The Robert L. Levine distinguished lecture series: The rise or the fall of international law?

Fordham Law Review

Volumn 69, Issue 2, 2000, Pages 345-371

  Weiss, Edith Brown ^a  

^a NONE

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EID: 0348236943     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (135)

1. See htttp://www.un.org/icty/indictment/english/mil-ii99052Ye.htm; http://www.un.org/icty/indictment/english/kar-ii950724e.htm (visited Aug. 31, 2000); Michael P. Scharf, The Tools for Enforcing International Criminal Justice in the New Millennium: Lessons from the Yugoslavia Tribunal, 49 DePaul L. Rev. 925 (2000).
2. See htttp://www.un.org/icty/indictment/english/mil-ii99052Ye.htm; http://www.un.org/icty/indictment/english/kar-ii950724e.htm (visited Aug. 31, 2000); Michael P. Scharf, The Tools for Enforcing International Criminal Justice in the New Millennium: Lessons from the Yugoslavia Tribunal, 49 DePaul L. Rev. 925 (2000).
3. See htttp://www.un.org/icty/indictment/english/mil-ii99052Ye.htm; http://www.un.org/icty/indictment/english/kar-ii950724e.htm (visited Aug. 31, 2000); Michael P. Scharf, The Tools for Enforcing International Criminal Justice in the New Millennium: Lessons from the Yugoslavia Tribunal, 49 DePaul L. Rev. 925 (2000).
4. Regina v. Bartle (Ex Parte Pinochet) and Regina v. Evans (Ex Parte Pinochet), U.K. re House of Lords, Mar. 24, 1999, reprinted in 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).
5. Regina v. Bartle (Ex Parte Pinochet) and Regina v. Evans (Ex Parte Pinochet), U.K. re House of Lords, Mar. 24, 1999, reprinted in 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).
6. For purposes of this Article, the term "State" refers to a country or the national state. Subnational units such as provinces, Länder in Germany, or states in the U.S. will be referred to as, e.g., the "U.S. State of California."
7. See J.L. Brierly, Law of Nations 7-16 (Sir Humphrey Waldock ed., 6th ed 1963)
8. S.S. Lotus (Fr. v. Turk.) 1927 P.C.I.J. (ser. A) No. 10, at 18 (Sept. 7).
9. United Nations Development Programme, Human Development Report at 58 (1999) [hereinafter HDR].
10. Thomas L. Friedman, The Lexus and the Olive Tree 13 (1999).
11. See Joseph S. Nye, Jr., What New World Order?, Foreign Aff., Spring 1992, at 83, 91.
12. See Charles Tilly, Reflections On the History of European State-Making, in The Formation of National States in Western Europe 3, 24 (Charles Tilly ed., 1975).
13. The United Nations reports 55 member states in its first yearbook, which covers the period through mid-1947. See 1947 U.N.Y.B. 863-64, U.N. Sales No. 1947.I.18.
14. See United Nations Member States (last modified May 1, 2000) 〈http://www.un.org/overview/unmember.html〉.
15. Principle 7, Rio Declaration on Environment and Development, June 14, 1992, U.N. Doc.A/CONF.151/26/Rev. 1 (Vol.I) at 3, reprinted in 31 I.L.M. 874 (1992) ; see Paul G. Harris, Common but Differentiated Responsibility: The Kyoto Protocol and United States Policy, 7 N.Y.U. Envtl. L.J. 27, 30 (1999).
16. Principle 7, Rio Declaration on Environment and Development, June 14, 1992, U.N. Doc.A/CONF.151/26/Rev. 1 (Vol.I) at 3, reprinted in 31 I.L.M. 874 (1992) ; see Paul G. Harris, Common but Differentiated Responsibility: The Kyoto Protocol and United States Policy, 7 N.Y.U. Envtl. L.J. 27, 30 (1999).
17. See 4 Y.B. of Int'l Org. 549 (1999).
18. See, e.g., Chiara Giorgetti, The Role of Nongovernmental Organizations in the Climate Change Negotiations, 9 Colo. J. Int'l Envtl. L. & Pol'y 115, 126-130 (1998) (discussing several specific environmental non-governmental organizations and their roles in FCC negotiations); Edith Brown Weiss, International Environmental Law: Contemporary Issues and the Emergence of a New World Order, 81 Geo. L.J. 675, 693-94 (1993) (discussing the growing role of NGOs in the process of forming international environmental agreements).
19. See, e.g., Chiara Giorgetti, The Role of Nongovernmental Organizations in the Climate Change Negotiations, 9 Colo. J. Int'l Envtl. L. & Pol'y 115, 126-130 (1998) (discussing several specific environmental non-governmental organizations and their roles in FCC negotiations); Edith Brown Weiss, International Environmental Law: Contemporary Issues and the Emergence of a New World Order, 81 Geo. L.J. 675, 693-94 (1993) (discussing the growing role of NGOs in the process of forming international environmental agreements).
20. See Edith Brown Weiss, The Five International Treaties: A Living History in Engaging Countries: Strengthening Compliance with International Environmental Accords 89, 109-11 (Edith Brown Weiss & Harold K. Jacobson eds., 1998) [hereinafter Brown Weiss, Engaging Countries].
21. See James Wallace, An 'Institution that People Love to Hate' Lets Them Sound Off, Seattle Post-Intelligencer, Nov. 30, 1999, at A18.
22. See United Nations Treaty Collection, 〈http://untreaty.un.org/English/overview.asp〉 (visited Aug. 9, 2000). Most are bilateral agreements or agreements among a relatively small number of States.
23. 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).
24. Paul C. Szasz, International Norm-making, 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 Non-Binding 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).
25. Paul C. Szasz, International Norm-making, 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 Non-Binding 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).
26. Paul C. Szasz, International Norm-making, 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 Non-Binding 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).
27. See The OECD Guidelines for Multinational Enterprises (visited July 19, 2000) 〈http://www.oecd.org/daf/investment/guidelines/mnetext.htm〉.
28. Stockholm Declaration of the United Nations Conference on the Human Environment, June 16, 1972, Report of the United Nations Conference on the Human Environment, U.N. Doc. A/CONF.48/14/Rev.1, at 3 (1973), reprinted in 11 I.L.M. 1416 (1972).
29. Rio Declaration on Environment and Development, June 14, 1992, U.N. Doc.A/CONF.151/26/Rev. 1 (Vol.I) at 3, reprinted in 31 I.L.M. 874 (1992).
30. Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests, June 14, 1992, U.N. Doc. A/CONF.151/6, reprinted in 31 I.L.M. 881 (1992).
31. Brown Weiss, Engaging Countries, supra note 15, at 157-72.
32. The UNCITRAL agreements include the following: Convention on the Recognition and Enforcement of Foreign Arbitral Awards (entered into force June 7, 1959); UNCITRAL Arbitration Rules, General Assembly Resolution 31/98 (1976); United Nations Convention on the Carriage of 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); United Nations Convention on International Bills of Exchange 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); United Nations Convention on the Liability of Operators of Transport Terminals in International Trade (A/CONF. 152/13 Annex) (Vienna, 1992); United Nations Convention on Independent Guarantees and 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), Cross-Border Insolvency (1997). See UNCITRAL 〈http://www.uncitral.org/index.htm〉 (visited July 11, 2000).
33. The UNCITRAL agreements include the following: Convention on the Recognition and Enforcement of Foreign Arbitral Awards (entered into force June 7, 1959); UNCITRAL Arbitration Rules, General Assembly Resolution 31/98 (1976); United Nations Convention on the Carriage of 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); United Nations Convention on International Bills of Exchange 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); United Nations Convention on the Liability of Operators of Transport Terminals in International Trade (A/CONF. 152/13 Annex) (Vienna, 1992); United Nations Convention on Independent Guarantees and 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), Cross-Border Insolvency (1997). See UNCITRAL 〈http://www.uncitral.org/index.htm〉 (visited July 11, 2000).
34. The UNCITRAL agreements include the following: Convention on the Recognition and Enforcement of Foreign Arbitral Awards (entered into force June 7, 1959); UNCITRAL Arbitration Rules, General Assembly Resolution 31/98 (1976); United Nations Convention on the Carriage of 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); United Nations Convention on International Bills of Exchange 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); United Nations Convention on the Liability of Operators of Transport Terminals in International Trade (A/CONF. 152/13 Annex) (Vienna, 1992); United Nations Convention on Independent Guarantees and 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), Cross-Border Insolvency (1997). See UNCITRAL 〈http://www.uncitral.org/index.htm〉 (visited July 11, 2000).
35. The UNCITRAL agreements include the following: Convention on the Recognition and Enforcement of Foreign Arbitral Awards (entered into force June 7, 1959); UNCITRAL Arbitration Rules, General Assembly Resolution 31/98 (1976); United Nations Convention on the Carriage of 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); United Nations Convention on International Bills of Exchange 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); United Nations Convention on the Liability of Operators of Transport Terminals in International Trade (A/CONF. 152/13 Annex) (Vienna, 1992); United Nations Convention on Independent Guarantees and 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), Cross-Border Insolvency (1997). See UNCITRAL 〈http://www.uncitral.org/index.htm〉 (visited July 11, 2000).
36. The UNCITRAL agreements include the following: Convention on the Recognition and Enforcement of Foreign Arbitral Awards (entered into force June 7, 1959); UNCITRAL Arbitration Rules, General Assembly Resolution 31/98 (1976); United Nations Convention on the Carriage of 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); United Nations Convention on International Bills of Exchange 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); United Nations Convention on the Liability of Operators of Transport Terminals in International Trade (A/CONF. 152/13 Annex) (Vienna, 1992); United Nations Convention on Independent Guarantees and 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), Cross-Border Insolvency (1997). See UNCITRAL 〈http://www.uncitral.org/index.htm〉 (visited July 11, 2000).
37. The UNCITRAL agreements include the following: Convention on the Recognition and Enforcement of Foreign Arbitral Awards (entered into force June 7, 1959); UNCITRAL Arbitration Rules, General Assembly Resolution 31/98 (1976); United Nations Convention on the Carriage of 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); United Nations Convention on International Bills of Exchange 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); United Nations Convention on the Liability of Operators of Transport Terminals in International Trade (A/CONF. 152/13 Annex) (Vienna, 1992); United Nations Convention on Independent Guarantees and 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), Cross-Border Insolvency (1997). See UNCITRAL 〈http://www.uncitral.org/index.htm〉 (visited July 11, 2000).
38. The UNCITRAL agreements include the following: Convention on the Recognition and Enforcement of Foreign Arbitral Awards (entered into force June 7, 1959); UNCITRAL Arbitration Rules, General Assembly Resolution 31/98 (1976); United Nations Convention on the Carriage of 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); United Nations Convention on International Bills of Exchange 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); United Nations Convention on the Liability of Operators of Transport Terminals in International Trade (A/CONF. 152/13 Annex) (Vienna, 1992); United Nations Convention on Independent Guarantees and 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), Cross-Border Insolvency (1997). See UNCITRAL 〈http://www.uncitral.org/index.htm〉 (visited July 11, 2000).
39. The UNCITRAL agreements include the following: Convention on the Recognition and Enforcement of Foreign Arbitral Awards (entered into force June 7, 1959); UNCITRAL Arbitration Rules, General Assembly Resolution 31/98 (1976); United Nations Convention on the Carriage of 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); United Nations Convention on International Bills of Exchange 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); United Nations Convention on the Liability of Operators of Transport Terminals in International Trade (A/CONF. 152/13 Annex) (Vienna, 1992); United Nations Convention on Independent Guarantees and 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), Cross-Border Insolvency (1997). See UNCITRAL 〈http://www.uncitral.org/index.htm〉 (visited July 11, 2000).
40. The UNCITRAL agreements include the following: Convention on the Recognition and Enforcement of Foreign Arbitral Awards (entered into force June 7, 1959); UNCITRAL Arbitration Rules, General Assembly Resolution 31/98 (1976); United Nations Convention on the Carriage of 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); United Nations Convention on International Bills of Exchange 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); United Nations Convention on the Liability of Operators of Transport Terminals in International Trade (A/CONF. 152/13 Annex) (Vienna, 1992); United Nations Convention on Independent Guarantees and 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), Cross-Border Insolvency (1997). See UNCITRAL 〈http://www.uncitral.org/index.htm〉 (visited July 11, 2000).
41. The UNCITRAL agreements include the following: Convention on the Recognition and Enforcement of Foreign Arbitral Awards (entered into force June 7, 1959); UNCITRAL Arbitration Rules, General Assembly Resolution 31/98 (1976); United Nations Convention on the Carriage of 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); United Nations Convention on International Bills of Exchange 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); United Nations Convention on the Liability of Operators of Transport Terminals in International Trade (A/CONF. 152/13 Annex) (Vienna, 1992); United Nations Convention on Independent Guarantees and 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), Cross-Border Insolvency (1997). See UNCITRAL 〈http://www.uncitral.org/index.htm〉 (visited July 11, 2000).
42. See Hague Conference on Private International Law, Preliminary Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters (Oct. 30, 1999, as amended) 〈http://www.hcch.net/e/conventions/draft36e.html〉 (visited July 11, 2000); see also Linda J. Silberman & Andreas F. Lowenfeld, A Different Challenge for the ALI: 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).
43. See Hague Conference on Private International Law, Preliminary Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters (Oct. 30, 1999, as amended) 〈http://www.hcch.net/e/conventions/draft36e.html〉 (visited July 11, 2000); see also Linda J. Silberman & Andreas F. Lowenfeld, A Different Challenge for the ALI: 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).
44. 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, supra note 19, at 205-18.
45. See Jody Freeman, The Private Role 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; Transnational Notions 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., 1998).
46. See Jody Freeman, The Private Role 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; Transnational Notions 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., 1998).
47. See Jody Freeman, The Private Role 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; Transnational Notions 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., 1998).
48. 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, 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, reprinted in 20 I.L.M. 676 (1980), and as amended at 30 I.L.M. 676 (1990).
49. 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, 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, reprinted in 20 I.L.M. 676 (1980), and as amended at 30 I.L.M. 676 (1990).
50. See, e.g., Shigeo Kawagishi, Extraterritoriality and 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).
51. See Cuban Liberty and Democratic Solidarity Act (Libertad) ("Helms-Burton Act"), 22 U.S.C. § 6021 et seq. (Supp. 1998). In response, the European Union passed EU Council Regulation 2271/96 on November 22, 1996. 1996 O.J. (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 Democratic Solidarity (Libertad Act), 90 Am. J. Int'l L. 419 (1996).
52. See Cuban Liberty and Democratic Solidarity Act (Libertad) ("Helms-Burton Act"), 22 U.S.C. § 6021 et seq. (Supp. 1998). In response, the European Union passed EU Council Regulation 2271/96 on November 22, 1996. 1996 O.J. (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 Democratic Solidarity (Libertad Act), 90 Am. J. Int'l L. 419 (1996).
53. 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.
54. See Agreement on Acid Precipitation, July 26, 1982 (New York-Quebec), reprinted in 21 I.L.M. 721.
55. See Mass. Ann. Laws ch. 7, § 22G-J (Law. Co-op. 1998); see also infra notes 82-89 and accompanying text (discussing the United States Supreme Court's decision to invalidate the Massachusetts Burma Law).
56. See Enforcing Restraint: Collective Intervention in Internal Conflicts 12 (Lori Fisher Damrosch ed., 1993). In her introduction, Damrosch notes that the case studies establish the international community's willingness to endorse strong collective action in certain internal conflicts. See id. at 12; see also Thomas M. Franck, The Democratic Entitlement, 29 U. Rich. L. Rev. 7, 24 (1994) (examining a burgeoning "right to democracy," which was used partly to justify international intervention in Haiti).
57. See Enforcing Restraint: Collective Intervention in Internal Conflicts 12 (Lori Fisher Damrosch ed., 1993). In her introduction, Damrosch notes that the case studies establish the international community's willingness to endorse strong collective action in certain internal conflicts. See id. at 12; see also Thomas M. Franck, The Democratic Entitlement, 29 U. Rich. L. Rev. 7, 24 (1994) (examining a burgeoning "right to democracy," which was used partly to justify international intervention in Haiti).
58. See Convention on Environmental Impact Assessment in a Transboundary Context, Feb. 25, 1991, E/ECE/1250, reprinted in 30 I.L.M. 800. The Convention was not yet in effect as of August 2000.
59. See National Environmental Policy Act of 1969, 42 U.S.C.A. § 4332 (West 1994).
60. Convention on the Transboundary Effects of Industrial Accidents, Mar. 17, 1992, UN/E/ECE/1268 (1992), reprinted in 31 I.L.M. 330.
61. Council Directive 82/501/EEC of 24 June 1982 on the Major Accident Hazards of Certain Industrial Activities (as amended), 1982 O.J. (L 230) 25, at 1; Documents in European Community Environmental Law 624-42 (Phillipe Sands & Richard G. Tarasofsky eds., 1995) (providing amended Directive).
62. Protocol on Environmental Protection to the Antarctic Treaty, Oct. 4, 1991, Doc. XI ATSCM/2 (June 21, 1991), reprinted in 30 I.L.M. 1455 (1991).
63. Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277.
64. See Weiss, Engaging Countries, supra note 15, at 90-92.
65. Washington Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 993 U.N.T.S. 243, reprinted in 11 I.L.M. 1088 (1973), 〈http://www.wcmc.org.uk/CITES/eng/index_side.shtml (visited July 26, 2000); Convention for the Protection of the World Cultural and Natural Heritage, Nov. 16, 1972, U.N. Doc. ST/LEG/SER. C/10, reprinted in 11 I.L.M. 1348 (1972), 〈http://www.unesco.org/whc/nwhc/pages/news/main2.htm〉 visited July 26, 2000).
66. Washington Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 993 U.N.T.S. 243, reprinted in 11 I.L.M. 1088 (1973), 〈http://www.wcmc.org.uk/CITES/eng/index_side.shtml (visited July 26, 2000); Convention for the Protection of the World Cultural and Natural Heritage, Nov. 16, 1972, U.N. Doc. ST/LEG/SER. C/10, reprinted in 11 I.L.M. 1348 (1972), 〈http://www.unesco.org/whc/nwhc/pages/news/main2.htm〉 visited July 26, 2000).
67. Michael Edwards and David Hulme, Too Close for Comfort? The Impact of Official Aid on Nongovernmental Organizations, 24 World Dev. 961, 962 (1996).
68. See id. at 965.
69. 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).
70. Statement of the (Sullivan) Principles (Fourth Application), Nov. 8, 1984, reprinted in 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, reprinted in 24 I.L.M. 1485 (1985).
71. Statement of the (Sullivan) Principles (Fourth Application), Nov. 8, 1984, reprinted in 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, reprinted in 24 I.L.M. 1485 (1985).
72. See Heidi S. Bloomfield, "Sweating" the International Garment Industry: A Critique of the Presidential Task Force's Workplace Codes of Conduct and 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).
73. Stuart J. Kaufman, The Fragmentation and Consolidation of International Systems, 51 Int'l Org. 173, 195 (1997). Robert Keohane and Joseph Nye, writing in Foreign Affairs, observed that the "[r]ules require authority, whether in the form of public government or private or community governance." Robert O. Keohane & Joseph S. Nye Jr., Power and Interdependence in the Information Age, Foreign Aff., Sept.-Oct. 1998, at 82.
74. Stuart J. Kaufman, The Fragmentation and Consolidation of International Systems, 51 Int'l Org. 173, 195 (1997). Robert Keohane and Joseph Nye, writing in Foreign Affairs, observed that the "[r]ules require authority, whether in the form of public government or private or community governance." Robert O. Keohane & Joseph S. Nye Jr., Power and Interdependence in the Information Age, Foreign Aff., Sept.-Oct. 1998, at 82.
75. Stuart J. Kaufman, The Fragmentation and Consolidation of International Systems, 51 Int'l Org. 173, 195 (1997). Robert Keohane and Joseph Nye, writing in Foreign Affairs, observed that the "[r]ules require authority, whether in the form of public government or private or community governance." Robert O. Keohane & Joseph S. Nye Jr., Power and Interdependence in the Information Age, Foreign Aff., Sept.-Oct. 1998, at 82.
76. See Jürgen Habermas, Legitimation Crisis 95-143 (Thomas McCarthy trans., Beacon Press 1975).
77. See supra notes 5-7 and accompanying text.
78. See Ingolf Pernice, The Framework Revisited: Constitutional, Federal and Subsidiarity Issues, 2 Colum. J. Eur. L. 403, 404 (1996).
79. See supra part I.
80. When Pinochet stepped down in 1990, he was granted immunity by the incoming government. However, once the extradition proceedings began in earnest, the argument coming from Santiago changed from claims that Spain's decision to prosecute Pinochet violated Chile's sovereign decision to grant him immunity to claims that only Chile had the right to prosecute Pinochet. See generally Wedgwood, supra note 2 (discussing extradition hearings). The Santiago Court of Appeals voted on May 23, 2000 to strip General Pinochet of his immunity. See Virginia Hamill, World in Brief: Chilean Court Strips Pinochet of Immunity, Wash. Post, June 6, 2000, at A22.
81. Curtis A. Bradley & Jack L. Goldsmith, Pinochet and International Human Rights Litigation, 97 Mich. L. Rev. 2129, 2130 (1999) (referring to the debate).
82. United Nations Convention Against Torture and Other Forms of Cruel and Inhuman Punishment, Feb. 4, 1985, reprinted in 26 I.L.M. 1490.
83. 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, reprinted in 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).
84. 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).
85. See, e.g., Treaty on European Union and Final Act, Feb. 7, 1992, Title II, ¶ 36, reprinted in 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).
86. Treaty Establishing the European Community, Oct. 2, 1997, reprinted in 37 I.L.M. 56, 80 (1998).
87. See Paul D. Marquardt, Subsidiarity and Sovereignty in the European Union, 18 Fordham Int'l L.J. 616, 617 (1994).
88. Rio Declaration on Environment and Development, June 14, 1992, U.N. Doc. A/CONF.151/26/Rev.1 (Vol. I) at 3-8, reprinted in 31 I.L.M. 874, 878 (1992).
89. See Mark Tushnet, Federalism and Liberalism, 4 Cardozo J. Int'l & Comp. L. 329, 330-32 (1996).
90. See id. at 331.
91. U.S. Const, art. I, § 10.
92. The instrument permitted the North Dakota parties to deepen and widen the channel of the Mouse River at a location fourteen miles into Canada in order to drain and reclaim land in North Dakota and provided for project costs to be shared. When litigated, the Supreme Court of North Dakota said in 1917 that it was analogous to a commercial contract and did not infringe upon a sole power of the federal government. See McHenry County v. Brady, 163 N.W. 540, 547 (1917); Peter R. Jennetten, State Environmental Agreements with Foreign Powers: The Compact Clause and the Foreign Affairs Power of the States, 8 Geo. Int'l Envtl. L. Rev. 141, 168-69 (1995).
93. See Jennetten, supra note 66, at 169.
94. See Environmental Cooperation Agreement, May 7, 1992, U.S.-Ukraine, T.I.A.S. No. 11466; see also Jennetten, supra note 66, at 170 (citing several other agreements between British Columbia and the U.S. state of Washington).
95. See British Columbia/Washington Environmental Cooperation Council Annual Report, § 2.2.1 (July 1994). The Memorandum provides for exchanging draft permits and permit applications 30 days prior to decision-making. See Jennetten, supra note 66, at 170.
96. Memorandum of Understanding on Environmental Cooperation, May 10, 1993 Quebec-New York; Jennetten, supra note 66, at 156, 171.
97. Water Quality Agreement: In-Lake Phosphorus Criteria, 1993. New-York-Quebec-Vermont. See id. at 171.
98. California, Mexico to Build Plant to Treat Waste, Lab to Test Pesticide Residues, 17 (18) Int'l Env't Rep. 729 (BNA) (Sept. 7, 1994).
99. See Oran R. Young, North American Resource Regimes: Institutionalized Cooperation in Canadian-American Relations, 15 Ariz. J. Int'l & Comp. L. 47, 52 (1998).
100. See generally Juliane Kokott, Federal States in Federal Europe: The German Länder and Problems of European Integration, 3 Eur. Pub. L. 607 (1997) (discussing the interaction between EU-level federalism and German-level federalism).
101. The Committee is staffed by ministers or representatives appointed by the regional governors, in an attempt to bring at least some EU decision-making closer to the people. See Naomi Roht-Arriaza, The Committee On the Regions and the Role of Regional Governments in the European Union, 20 Hastings Int'l & Comp. L. Rev. 413, 449-51 (1997) (discussing the development and politics of regions in the EU, including case studies of several EU countries).
102. "Since 1985, the Länder have maintained their own offices or missions in Brussels." Kokott, supra note 74, at 621. The German federal government, however, maintains in its constitution the right to transfer sovereign rights of the Länder to the European Union. See id. at 617; David P. Currie, The Constitution of the Federal Republic of Germany 352-54 (1994) (providing text of Articles 23 and 24).
103. See John Newhouse, Europe Adrift 23-72 (1997).
104. 512 U.S. 298 (1994).
105. See id. at 331.
106. Such controversies have occurred in Alaska, California, Idaho, and Oregon. The courts have not been sympathetic. The Supreme Court's 1984 decision in South-Central Timber Development Inc. indicated that in the absence of congressional consent, bans on in-state manufacturing requirements violated the Commerce Clause. See South-Central Timber Dev. Inc. v. Wunnicke, 467 U.S. 82, 84 (1984) (holding that Alaska's requirement that timber from state lands be processed in the state prior to export was not authorized by congressional policy regarding timber taken from federal land, though application of that policy to state lands was not expressly stated).
107. See Forest Resources Conservation and Shortage Relief Act of 1990, 16 U.S.C. § 620 (1994). This section was declared unconstitutional by the Ninth Circuit in Board of Natural Resources of Washington v. Brown, 992 F.2d 937, 949 (9th Cir. 1993), and Congress amended the statute in 1993 to require the Secretary of Commerce to prohibit the export of unprocessed timber from state lands to meet domestic shortfalls, unless a state had exempted itself by submitting a state plan for prohibiting timber exports from state lands. See 16 U.S.C. § 620(c), 620(d) (1993).
108. 120 S. Ct. 2288 (2000).
109. See id. at 2291.
110. See id. at 2293 n.5.
111. See id. at 2302.
112. See id. at 2291-92.
113. See id. at 2289-90.
114. United States-Measures Affecting Government Procurement, complaint by the European Communities (WT/DS88/1) and United Staes-Measures Affecting Government Procurement, complaint by Japan (WT/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.
115. 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 Amici Curiae in Support of Respondent, Natsios v. National Foreign Trade Council, (No. 99-474), available in 2000 WL 177175, at *7.
116. Crosby, 120 S. Ct. at 2296.
117. See David Held, Democracy and the Global Order 3-27 (1995).
118. Edith Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity (1989).
119. 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." 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〉.
120. 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." 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〉.
121. 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), reprinted in 33 I.L.M. 123 (1994); see Ted Allen, The Philippine Children's Case: Recognizing Standing for Future Generations, 6 Geo. Int'l Envtl. L. Rev. 713, 713 (1994).
122. 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), reprinted in 33 I.L.M. 123 (1994); see Ted Allen, The Philippine Children's Case: Recognizing Standing for Future Generations, 6 Geo. Int'l Envtl. L. Rev. 713, 713 (1994).
123. 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 Engage Countries, in Weiss, Engaging Countries, supra note 15, at 511-23.
124. 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 Engage Countries, in Weiss, Engaging Countries, supra note 15, at 511-23.
125. Jürgen Habermas, The European Nation State: Its Achievements and Its Limitations On the Past and Future of Sovereignty and Citizenship, 9 Ratio Juris 125, 134 (1996).
126. See HDR, supra note 6, at 38.
127. See id. at 154.
128. See id.
129. 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.
130. See id. at 154.
131. See id. at 63.
132. See id. at 62.
133. See id.
134. See id. at 68.
135. See id. at 70-71. Some national governments have attempted to protect the knowledge, but these efforts are experimental. See, e.g., Fundación Sabiduría Indígena (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 knowledge).