Understanding change in international organizations: Globalization and innovation in the ILO

Vanderbilt Law Review

Volumn 59, Issue 3, 2006, Pages 649-726

  Helfer, Laurence R ^a  

^a VANDERBILT UNIVERSITY LAW SCHOOL   (United States)

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EID: 33750029046     PISSN: 00422533     EISSN: None     Source Type: Journal    
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References (407)

1. In this Article, I use the Americanized spelling of the ILO's name, but retain the original Anglicized spelling where it appears in official ILO documents and secondary sources.
2. See generally ANTONY ALCOCK, HISTORY OF THE INTERNATIONAL LABOR ORGANIZATION (1971);
3. DAVID A. MORSE, 1 THE ORIGIN AND EVOLUTION OF THE I.L.O. AND ITS ROLE IN THE WORLD COMMUNITY (1969);
4. THE ORIGINS OF THE INTERNATIONAL LABOR ORGANIZATION (James T. Shotwell ed., 1934).
5. The ILO Constitution directs each member state to appoint two government delegates, one worker delegate, and one employer delegate. Constitution of the International Labour Organization art. 389.1, June 28, 1919, 49 Stat. 2712, 225 C.T.I.A. 373 [hereinafter 1919 ILO Constitution]. The constitution directs governments to appoint worker and employer delegates "in agreement with the industrial organizations . . . which are most representative of employers or workpeople, as the case may be, in their respective countries." Id. art. 389.3. For discussions of the ILO's structure and the importance of tripartism to the organization's work, see N. VALTICOS & G. VON POTOBSKY, INTERNATIONAL LABOUR LAW 40-42 (1995);
6. C. Wilfred Jenks, The Significance for International Law of the Tripartite Character of the International Labour Organisation, in 22 TRANSACTIONS OF THE GROTIUS SOCIETY 45, 45-58 (1936);
7. David Strang & Patricia Mei Yin Chang, The International Labor Organization and the Welfare State: Institutional Effects on National Welfare Spending 1960-80, 47 INT'L ORG. 235, 241 (1993).
8. Robert W. Cox, Labor and Hegemony, 31 INT'L ORG. 385, 386-88, 409-10 (1977) [hereinafter Cox, Labor and Hegemony].
9. See generally Lucio Baccaro, What Is Dead and What Is Alive in the Theory of Corporatism (Decent Work Research Programme Discussion Paper No. DP/143/2002, Int'l Inst. Lab. Stud., 2002) (describing the different meanings of corporatism), available at http://www.ilo.org/public/english/bureau/inst/ download/dp14302.pdf.
10. KIMBERLY ANN ELLIOTT & RICHARD B. FREEMAN, CAN LABOR STANDARDS IMPROVE UNDER GLOBALIZATION? 93 (2003).
11. Charles Sabel et al., Ratcheting Labor Standards: Regulation for Continuous Improvement in the Global Workplace, at 4 (May 2, 2000), available at http://www.archonfung.net/papers/RLS21.pdf.
12. ELLIOTT & FREEMAN, supra note 5, at 95, 102.
13. See Edward Weisband, Discursive Multilateralism: Global Benchmarks, Shame, and Learning in the ILO Labor Standards Monitoring Regime, 44 INT'L STUD. Q. 643, 648 (2000);
14. see also Michael J. Trebilcock & Rob Howse, Trade Policy and Labor Standards, 14 MINN. J. GLOBAL TRADE 261, 274 (2005) ("[C]ompliance with ILO norms depends on a combination of public identification, embarrassment and shaming (a mild stick), and technical assistance to promote compliance (a mild carrot).").
15. See, e.g., Sean Cooney, Testing Times for the ILO: Institutional Reform for the New International Political Economy, 20 COMP. LAB. L. & POL'Y J. 365, 399 (1999) (stating that the ILO is "[v]iewed by many as a 'slow, cumbersome and low-profile institution'. . . [that] has not made the impact it should in the new political economy") (internal citation omitted);
16. William A. Douglas et al., An Effective Confluence of Forces in Support of Workers' Rights: ILO Standards, US Trade Laws, Unions, and NGOs, 26 HUM. RTS. Q. 273, 276 (2004) (noting "frequent allegations that the ILO 'has no teeth,' and that its work consequently makes little difference in the labor practices of governments") (citation omitted); Trebilcock & Howse, supra note 8, at 274 ("The ILO has been widely criticized by proponents of a trade/labor linkage for ineffective enforcement of its norms . . . .").
17. See Int'l Lab. Office, Committee on Legal Issues and International Labour Standards, Possible Improvements in the Standard-Setting Activities of the ILO: Addendum: Statistics on the Ratification of Conventions, GB.277/LILS/2(Add.1), 277th Sess. (Geneva Mar. 2000), available at http://www.ilo.org/public/english/ standards/relm/gb/docs/gb277/pdf/lils-2a1.pdf [hereinafter ILO, Statistics on Ratification];
18. Bernhard Boockmann, The Ratification of ILO Conventions: A Hazard Rate Analysis, 13 ECON. & POL. 281, 294 (2001).
19. See Robert J. Flanagan, Labor Standards and International Competitive Advantage, in INTERNATIONAL LABOR STANDARDS 15, 20, 29 (Robert J. Flanagan & William B. Gould IV eds., 2003).
20. Steve Charnovitz, Promoting Higher Labor Standards, 18 WASH. Q., Summer 1995, at 167, 173 (1995).
21. For the most influential political science accounts, see Special Issue, The International Labor Organization, 166 ANNALS AM. ACAD. POL. & SOC. SCI. 1 (1933) [hereinafter ANNALS ILO ISSUE];
22. Robert W. Cox, ILO: Limited Monarchy, in THE ANATOMY OF INFLUENCE: DECISION-MAKING IN INTERNATIONAL ORGANIZATION 102 (Robert W. Cox & Harold K. Jacobson eds., 1974) [hereinafter Cox, Limited Monarchy];
23. ERNST B. HAAS, BEYOND THE NATION-STATE: FUNCTIONALISM AND INTERNATIONAL ORGANIZATION (1964);
24. E. A. LANDY, THE EFFECTIVENESS OF INTERNATIONAL SUPERVISION: THIRTY YEARS OF I.L.O. EXPERIENCE (1966) [hereinafter LANDY, THIRTY YEARS].
25. For influential accounts by international legal scholars, some of them former ILO officials, see ALCOCK, supra note 2; C. WILFRED JENKS, SOCIAL JUSTICE IN THE LAW OF NATIONS: THE ILO IMPACT AFTER FIFTY YEARS (1970) [hereinafter JENKS, ILO IMPACT]; MORSE, supra note 2.
26. The International Labor Office is the ILO's permanent secretariat. The Office is headed by the Director General, who is appointed by the Governing Body, the ILO's executive arm. See VALTICOS & VON POTOBSKY, supra note 3, at 42.
27. For a discussion of the distinction between exogenous and endogenous sources of change within IOs, see infra note 43.
28. The Challenge of Non-State Actors, 92 AM. SOC'Y INT'L L. PROC. 20, 35 (1998) (reprinting the statement of Jessica Tuchman Mathews, President of the Carnegie Endowment for International Peace).
29. See, e.g., JOSÉ E. ALVAREZ, INTERNATIONAL ORGANIZATIONS AS LAW-MAKERS 17-45 (2005);
30. JACK L. GOLDSMITH & ERIC A. POSNER, THE LIMITS OF INTERNATIONAL LAW 7-10 (2005);
31. THE RATIONAL DESIGN OF INTERNATIONAL INSTITUTIONS (Koremenos et al. eds., 2004);
32. HENRY G. SCHERMERS & NIELS M. BLOKKER, INTERNATIONAL INSTITUTIONAL LAW: UNITY WITHIN DIVERSITY (4th ed. 2004);
33. Beth A. Simmons & Lisa L. Martin, International Organizations and Institutions, in HANDBOOK OF INTERNATIONAL RELATIONS 192 (Walter Carlsnaes et al. eds., 2002).
34. For earlier influential contributions, see Kenneth W. Abbott & Duncan Snidal, Why States Act Through Formal International Organizations, 42 J. CONFLICT RESOL. 3, 8 (1998);
35. Stephan Haggard & Beth A. Simmons, Theories of International Regimes, 41 INT'L ORG. 491 (1987).
36. For a discussion of the few commentators that have addressed these issues, see infra Part II.
37. Cheryl Shanks et al., Inertia and Change in the Constellation of International Governmental Organizations, 1981-1992, 50 INT'L ORG. 593, 594 (1996).
38. Id. at 621-22.
39. See infra Part II (analyzing these theories and their variants in greater depth).
40. Cf. Peter J. Katzenstein & Nobuo Okawara, Japan, Asian-Pacific Security, and the Case of Analytical Eclecticism, 26 INT'L SECURITY 153, 154 (2001) (arguing "against the privileging of parsimony that has become the hallmark of paradigmatic debates" and in favor of "drawing selectively on different [theoretical] paradigms").
41. ILO activities not analyzed in this Article include technical assistance, educational activities, and the gathering and dissemination of cross-national labor statistics. See Strang & Chang, supra note 3, at 241.
42. "Lawmaking" includes the procedures by which an IO creates and revises legally binding treaty commitments and nonbinding recommendations. "Monitoring" focuses on implementation and compliance. It includes procedures for determining whether an IO's member nations are adhering to the organization's rules and norms and how the IO responds to the compliance information that it discovers. See Abbott & Snidal, supra note 17, at 22-23, 26-27.
43. See generally ALVAREZ, supra note 17, at 273-584 (reviewing multilateral treaty-making and dispute settlement by IOs). This assumes, of course, that the IO founders have delegated lawmaking and monitoring responsibilities to the organization. Not all IOs possess such delegated powers.
44. See Charlotte Ku, Global Governance and the Changing Face of International Law, 2 ACUNS REP. & PAPERS 5, 24 (2001) ("A census of international institutions tells us that at the end of the 20th century there are more than 250 conventional international governmental organizations... [,] more than 1500 other international bodies [,] and roughly 3700 other institutions of special types, making a total of almost 5500.") (internal citations omitted); see also ALVAREZ, supra note 17, at 4-17 (reviewing different definitions of IOs).
45. Serious study of cooperation via IOs and international regimes is generally traced to the publication of works by Robert Keohane and Stephen Krasner. See ROBERT O. KEOHANE, AFTER HEGEMONY: COOPERATION AND DISCORD IN THE WORLD POLITICAL ECONOMY (1984);
46. Stephen D. Krasner, Structural Causes and Regime Consequences: Regimes as Intervening Variables, reprinted in INTERNATIONAL REGIMES 1 (Stephen D. Krasner ed., 1983).
47. I include within historical institutionalism a family of related theories that includes sociological institutionalism and constructivist institutionalism and organization theory. (A fourth variant, rational choice institutionalism, is more easily subsumed under a discussion of rational choice theory.) These variants of historical institutionalism share a basic premise - that political action is shaped and constrained by historically constructed institutions that exhibit surprising durability notwithstanding changes in their economic or political environment or shifts in the preferences of actors. For a more detailed discussion of the different variants of historical institutionalism, see Peter A. Hall & Rosemary C.R. Taylor, Political Science and the Three Institutionalisms, 44 POL. STUD. 936 (1996).
48. For an analysis of the intersection between constructivism, rational choice, and historical institutionalism, see Thomas Risse, Constructivism and International Institutions: Toward Conversations Across Paradigms, in POLITICAL SCIENCE: THE STATE OF THE DISCIPLINE 597, 604-07 (Ira Katznelson & Helen V. Milner eds., 2002) [hereinafter STATE OF THE DISCIPLINE].
49. See, e.g., COMPARATIVE HISTORICAL ANALYSIS IN THE SOCIAL SCIENCES (James Mahoney & Dietrich Rueschemeyer eds., 2003);
50. THE NEW INSTITUTIONALISM IN ORGANIZATIONAL ANALYSIS (Walter W. Powell & Paul J. DiMaggio eds., 1991);
51. JOHN W. MEYER & W. RICHARD SCOTT, ORGANIZATIONAL ENVIRONMENTS: RITUAL AND RATIONALITY (1983);
52. J.T. Hage, Organizational Innovation and Organizational Change, 25 ANN. REV. SOC. 597 (1999);
53. Paul Pierson & Theda Skocpol, Historical Institutionalism in Contemporary Political Science, in STATE OF THE DISCIPLINE, supra note 29, at 693.
54. Michael Barnett & Liv Coleman, Designing Police: Interpol and the Study of Change in International Organizations, 49 INT'L STUD. Q. 593, 593-94 (2005).
55. Michael Tierney & Catherine Weaver, Principles and Principals? The Possibilities for Theoretical Synthesis and Scientific Progress in the Study of International Organizations 12-13 (2005) (unpublished manuscript, on file with author) (citations omitted); see also Barnett & Coleman, supra note 31, at 594 ("[W]e know relatively little about how, why, and when change will occur.").
56. See ALVAREZ, supra note 17, at 25; GOLDSMITH & POSNER, supra note 17, at 4-5; see also Kenneth W. Abbott, "Trust But Verify": The Production of Information in Arms Control Treaties and Other International Agreements, 26 CORNELL INT'L L.J. 1, 1 n.3 (1993) ("[R]ationalist theory often assumes that states act as unitary entities.").
57. See KEOHANE, supra note 27, at 85-109 (developing a functional theory of international regimes).
58. Id. at 85-109; Abbott & Snidal, supra note 17, at 8.
59. See Abbott, supra note 33, at 1-2 n.4 (defining a "strategic situation" as "involving a relationship of interdependence among a relatively small number of actors. When states . . . are involved in a strategic interaction, each state's actions affect the fortunes of others as well its own, and the best course of action depends on what others may do.").
60. PAUL PIERSON, POLITICS IN TIME: HISTORY, INSTITUTIONS, AND SOCIAL ANALYSIS 108 (2004).
61. See Darren Hawkins et al., States, International Organizations, and Principal-Agent Theory, in DELEGATION AND AGENCY IN INTERNATIONAL ORGANIZATIONS 1, 27-37 (Darren Hawkins et al. eds., forthcoming 2006), available at http://weber.ucsd.edu/~dlake/Delegation%20volume.htm.
62. See Ira Katznelson & Barry R. Weingast, Intersections Between Historical and Rational Choice Institutionalism, in PREFERENCES AND SITUATIONS: POINTS OF INTERSECTION BETWEEN HISTORICAL AND RATIONAL CHOICE INSTITUTIONALISM 1, 7 (Ira Katznelson & Barry R. Weingast eds., 2005).
63. See Richard H. Steinberg, In the Shadow of Law or Power? Consensus-Based Bargaining and Outcomes in the GATT/WTO, 56 INT'L ORG. 339, 359-60 (2002).
64. See Christopher A. Whytock, A Rational Design Theory of Transgovernmentalism: The Case of E.U.-U.S. Merger Review Cooperation, 23 B.U. INT'L L.J. 1, 12-30 (2005).
65. Katznelson & Weingast, supra note 39, at 5-8 (discussing rational choice variant of historical institutionalism).
66. Distinguishing between exogenous and endogenous sources of change in the study of institutions is a difficult and unsettled issue. See Duncan Snidal, The Politics of Scope: Endogenous Actors, Heterogeneity and Institutions, 6 J. THEORETICAL POL. 449, 456 (1994) ("The normal distinction between exogenous and endogenous variables is . . . awkward for institutional analysis.");
67. Avner Greif & David D. Laitin, A Theory of Endogenous Institutional Change, 98 AM. POL. SCI. REV. 633, 633 (2004) ("Endogenous institutional change appears . . . to be a contradiction in terms."). This is particularly true for an intergovernmental organization such as the ILO, whose membership is composed not only of governments but also of autonomous groups of workers and employers. However, most scholars analyzing IO change appear to agree - albeit using different labels at times - that change emanating from IO officials and staff is properly labeled as "endogenous," whereas that change resulting from shifts in state preferences or from alterations to the economic, political, or social environment is appropriately described as "exogenous." See Barnett & Coleman, supra note 31, at 594 ("The dominant view is that external forces in general and states in particular are responsible for its timing, direction, and content. . . . Yet if IOs can take on a life of their own, then they can be agents of change."); see also Tierney & Weaver, supra note 32, at 10 ("[S]cholars of IO are waking up to [the] reality . . . that IOs . . . exhibit varying degrees of autonomy and consequently possess their own preferences and bureaucratic cultures that are distinct from those of their member states."). I adopt these definitions of exogenous and endogenous here, but recognize that alternative labels are possible and that a more extended treatment of these issues is warranted.
68. See Simon Hug, Endogenous Preferences and Delegation in the European Union, 36 COMP. POL. STUD. 41 (2003) (discussing preference divergences between European Union member states and the supranational actors they appoint to the European Commission).
69. See Devesh Kapur, Processes of Change in International Organizations 8 (Harvard U. Weatherhead Ctr., Working Paper No. 00-02, 2000), available at http://www.wcfia.harvard.edu/papers/164_Helsinki3.wcfia.pdf;
70. Barbara Koremenos et al., The Rational Design of International Institutions, 55 INT'L ORG. 761, 766-67 (2001).
71. PIERSON, supra note 37, at 51. As I explain below, historical institutionalism also considers that critical junctures can be important precursors of institutional change. See infra Part II.C.
72. Wolfgang Streeck & Kathleen Thelen, Introduction: Institutional Change in Advanced Political Economies, in BEYOND CONTINUITY: INSTITUTIONAL CHANGE IN ADVANCED POLITICAL ECONOMIES 1, 7.
73. See Laurence R. Helfer, Exiting Treaties, 91 VA. L. REV. 1579, 1583 (2005) (describing an instance in which states withdrew from a treaty establishing an IO and established a rival organization).
74. See Koremenos et al., supra note 44, at 766-67 (arguing that "conscious design" is "the overriding mechanism guiding the development of international institutions" and institutional change).
75. PIERSON, supra note 37, at 108-12.
76. MICHAEL BARNETT & MARTHA FINNEMORE, RULES FOR THE WORLD: INTERNATIONAL ORGANIZATIONS IN GLOBAL POLITICS 22 (2004) ("IOs must be autonomous actors in some ways simply to fulfill their delegated tasks.") (emphasis in original).
77. See supra note 43 (discussing the distinction between endogenous and exogenous sources of IO change).
78. Barry R. Weingast, Rational-Choice Institutionalism, in STATE OF THE DISCIPLINE, supra note 29, at 660, 692 (characterizing issues of "endogenous emergence, choice and survival of institutions" as "frontier issues" for rational choice scholars).
79. Tierney & Weaver, supra note 32, at 10. For a debate over the benefits of independence in international tribunals, compare Eric A. Posner & John C. Yoo, Judicial Independence in International Tribunals, 93 CAL. L. REV. 1 (2005),
80. with Laurence R. Helfer & Anne-Marie Slaughter, Why States Create International Tribunals: A Response to Professors Posner and Yoo, 93 CAL. L. REV. 899 (2005).
81. Barnett & Coleman, supra note 31, at 595.
82. See Hawkins et al., supra note 38.
83. See id. at 7.
84. See Barnett & Coleman, supra note 31, at 595. But see Helfer & Slaughter, supra note 53, at 942-55 (analyzing both exogenous state controls and endogenous cultures of professionalism that together create a zone of "constrained independence" for international courts and tribunals).
85. Ernst Haas was the principal proponent of neofunctionalism for both global and regional organizations. See HAAS, supra note 13; ERNST B. HAAS, THE UNITING OF EUROPE: POLITICAL, SOCIAL, AND ECONOMIC FORCES, 1950-57 (1958);
86. Ernst Haas, International Integration: The European and the Universal Process, 15 INT'L ORG. 366 (1961).
87. Haas's theory of neofunctionalism was a modification of earlier, functionalist theories of international integration through IOs. See DAVID MITRANY, A WORKING PEACE SYSTEM: AN ARGUMENT FOR THE FUNCTIONAL DEVELOPMENT OF INTERNATIONAL ORGANIZATION (1944).
88. See Anne-Marie Burley & Walter Mattli, Europe Before the Court: A Political Theory of Legal Integration, 47 INT'L ORG. 41, 53-57 (1993).
89. See HAAS, supra note 13, at 47-50.
90. Neofunctionalists recognize that IOs change in response to changes in their environment, but these exogenous forces are not the focus of their analysis. See HAAS, supra note 13, at 129-31.
91. See Tim Büthe & Gabriel T. Swank, The Politics of Antitrust and Merger Review in the European Union: Institutional Change and Decisions from Messina to 2004 at 6-12 (Dec. 2005) (unpublished manuscript, on file with author) (summarizing history of neofunctionalism and reviewing writings of scholars who have endorsed it);
92. David Zaring, International Law by Other Means: The Twilight Existence of International Financial Regulatory Organizations, 33 TEX. INT'L L.J. 281, 313-16 (1998) (same).
93. See HAAS, supra note 13, at 119-25; R.W. Cox, Towards a General Theory of International Organization, 19 INDUS. & LAB. REL. REV. 99, 101 (1965)
94. (reviewing ERNST B. HAAS, BEYOND THE NATION-STATE: FUNCTIONALISM AND INTERNATIONAL ORGANIZATION (1964)) [hereinafter Cox, General Theory of IO].
95. Zaring, supra note 62, at 314.
96. See Ernst B. Haas, The Obsolescence of Regional Integration Theory, in 25 INSTITUTE OF INTERNATIONAL STUDIES: RESEARCH SERIES (1975). Recently, however, scholars have begun to revisit the insights of neofunctionalist theory, in particular as it relates to legal issues.
97. See, e.g., Gráinne de Búrca, Rethinking Law in Neofunctionalist Theory, 12 J. EUROPEAN PUB. POL. 310 (2005);
98. Philippe C. Schmitter, Ernst B. Haas and the Legacy of Neofunctionalism, 12 J. EUROPEAN PUB. POL. 255 (2005).
99. Michael G. Huelshoff, Domestic Politics and Dynamic Issue Linkage: A Reformulation of Integration Theory, 38 INT'L STUD. Q. 255, 258 (1994).
100. Katznelson & Weingast, supra note 39, at 4-5.
101. See PIERSON, supra note 37, at 110 (arguing that multiple actors, multiple purposes, and multiple effects are more pronounced "in the construction of constitutions"). The constitutions of IOs manifest similar features. See infra Part III.B.
102. Streeck & Thelen, supra note 46, at 11, 19.
103. See PIERSON, supra note 37, at 14-15; Paul Pierson, The Path to European Integration: A Historical Institutionalist Analysis, 29 COMP. POL. STUD. 123, 147 (1996).
104. See PIERSON, supra note 37, at 20-30.
105. Streeck & Thelen, supra note 46, at 9 (emphasis omitted).
106. Id. at 19.
107. Id. at 18-31.
108. See PIERSON, supra note 37, at 17-53.
109. Katznelson & Weingast, supra note 39, at 7-21.
110. BARNETT & FINNEMORE, supra note 50, at 3, 158.
111. Id. at 42-43.
112. Id. at 43 ("IOs tend to define both problems and solutions in ways that favor or even require expanded action for IOs.").
113. Barnett & Coleman. supra note 31, at 595.
114. Id. at 600-02.
115. See BARNETT & FINNEMOEE, supra note 50, at 2.
116. See Katznelson & Weingast, supra note 39, at 6; see also Tierney & Weaver, supra note 32, at 13 (emphasizing that the processes of how IOs change raise "extremely difficult questions").
117. See BARNETT & FINNEMORE, supra note 50, at 164 (asserting, based on historical and empirical study of three IOs, that "IOs appear to be steadily expanding their mandates in a convergent direction: all are increasingly involved in the domestic affairs of states, and, specifically, all are trying to create durable, modern nation-states that are organized around democracy and markets").
118. See supra text accompanying note 24 (defining ILO lawmaking and ILO monitoring).
119. The ILO Constitution appears as Part XIII of the Treaty of Versailles. As explained below in Part III.D, the constitution was amended after World War II. See generally EBERE OSIEKE, CONSTITUTIONAL LAW AND PRACTICE IN THE INTERNATIONAL LABOUR ORGANISATION (1985) (providing a detailed analysis of the ILO Constitution and general practices of the ILO).
120. See Abbott, supra note 33, at 1 n.4 (defining a strategic situation).
121. See Koremenos et al., supra note 44, at 773 (listing enforcement, number, and uncertainty, inter alia, as independent variables that states face when seeking resolve collective action problems).
122. See id. at 769 (listing membership, flexibility, and centralization, inter alia, as dependent variables that states manipulate when designing IOs to particular strategic situations).
123. See SCOTT BARRETT, ENVIRONMENT AND STATECRAFT: THE STRATEGY OF ENVIRONMENTAL TREATY-MAKING 195-220 (2003) (analyzing the importance of membership rules in promoting international cooperation);
124. George W. Downs et al, Managing the Evolution of Multilateralism, 52 INT'L ORG. 397, 398 (1998) (same).
125. 1919 ILO Constitution, supra note 3, pmbl. (emphasis added); see also INT'L LAB. OFFICE, INTERNATIONAL LABOUR ORGANISATION: THE FIRST DECADE 35 (1931) [hereinafter ILO, THE FIRST DECADE] (stating that "the universality at which the [ILO] must logically aim is three times emphasised in the Preamble").
126. See Brian A. Langille, Re-Reading the Preamble to the 1919 ILO Constitution in Light of Recent Data on FDI and Worker Rights, 42 COLUM. J. TRANSNAT'L L. 87, 91 (2003) [hereinafter Langille, Re-Reading the ILO Preamble]; Trebilcock & Howse, supra note 8, at 270-71.
127. 1919 ILO Constitution, supra note 3, art. 405 (describing procedures for adoption of international labor standards).
128. See ILO, THE FIRST DECADE, supra note 91, at 273-74 (noting difficulties in getting rival states to ratify ILO conventions); Trebilcock & Howse, supra note 8, at 261-62 ("Many of these early efforts were motivated by the concern that in the absence of international labor standards, international competition in an environment of increasingly freer trade would precipitate a race to the bottom."). But see infra note 110 (citing recent empirical studies indicating that compliance with core labor standards neither increases the cost of exports nor deters foreign investment, undermining the race-to-the-bottom rationale for international labor standards).
129. See 1919 ILO Constitution, supra note 3, art. 427; ILO, THE FIRST DECADE, supra note 91, at 28 (stating that the "social justice" element of international labor standards has "moral value" and is "an end in itself);
130. Langille, Re-Reading the ILO Preamble, supra note 92, at 98 (describing a more empirically accurate view of international labor standards "as part of the package of interactive economic, social, and political freedoms, which are both the destination and the way to successful economies and societies"). Commentators disagree, however, over precisely which labor standards rise to the level of human rights. See Trebilcock & Howse, supra note 8, at 273.
131. See Koremenos et al., supra note 44, at 778-79 (analyzing the independent variable of uncertainty); B. Peter Rosendorff & Helen V. Milner, The Optimal Design of International Trade Institutions: Uncertainty and Escape, 55 INT'L ORG. 829, 832-35 (2001) (discussing escape clauses and political uncertainty).
132. Barbara Koremenos et al., Rational Design: Looking Back to Move Forward, 55 INT'L ORG. 1051, 1076 (2001).
133. 1919 ILO Constitution, supra note 3, art. 405, ¶ 1 (authorizing the ILO to adopt both conventions and recommendations).
134. Id. art. 405, ¶ 3 (directing ILO members to consider modifying treaties and recommendations to accommodate countries with different climatic conditions, less advanced economies or labor markets, and other special circumstances); id. art. 427 (noting the difficulty of obtaining "strict uniformity in the conditions of labour").
135. See ILO, THE FIRST DECADE, supra note 91, at 33 (describing views of founders emphasizing "the impossibility of drafting immediately a code which could apply permanently over a long period and of foreseeing all the future developments . . . which might be aimed at later").
136. However, as explained below, infra Part III.C.1, the Constitution itself did not expressly address the ILO's power to revise conventions. See C. Wilfred Jenks, The Revision of International Labour Conventions, 14 BRIT. Y.B. INT'L L. 43, 48 (1933) [hereinafter Jenks, Revision].
137. Koremenos et al., supra note 44, at 771-72 (describing centralization options).
138. See George W. Downs et al., Is the Good News About Compliance Good News About Cooperation?, 50 INT'L ORG. 379 (1996) (describing need for strong enforcement mechanisms to encourage compliance with international law); Koremenos et al., supra note 44, at 768 (describing need for "incentive-compatible" rules).
139. See Robert W. Staiger, The International Organization and Enforcement of Labor Standards 24 (May 2001) (unpublished manuscript, on file with author) ("[E]ffective prevention of race-to-the-bottom/regulatory-chill problems in the context of labor standards requires that enforcement measures be put in place and potentially utilized."); see also Trebilcock & Howse, supra note 8, at 270 (noting that proponents of the race-to-the-bottom rationale for labor standards argue that the race "can only be pre-empted by international agreement on and enforcement of minimum labor standards").
140. 1919 ILO Constitution, supra note 3, art. 409; ILO, THE FIRST DECADE, supra note 91, at 71.
141. 1919 ILO Constitution, supra note 3, art. 419 (authorizing "measures of an economic character" for failure to follow recommendations of Commission of Enquiry or Permanent Court of International Justice). As I discuss more fully below, the ILO amended its constitution after the Second World War to remove this express reference to economic sanctions. In addition, the organization has never actually imposed economic sanctions, although it is on the verge of doing so against Myanmar for its widespread use of forced labor. See infra Part IV.B.3.
142. Note, however, that recent works by rational choice scholars question whether states do in fact view human rights in this way. See GOLDSMITH & POSNER, supra note 17, at 110-19 (describing an instrumentalist logic for compliance human rights agreements). Moreover, some empirical evidence suggests that noncompliance with human rights treaties is often widespread. Id. at 122-24 (citing several supporting studies).
143. 1919 ILO Constitution, supra note 3, art. 408 (requiring ILO member states to file annual reports "on the measures which it has taken to give effect to the provisions of conventions to which it is a party" and authorizing the Director General to publicize summaries of the reports to the entire ILO membership).
144. See Weisband, supra note 8, at 648 (describing shaming as the motivating force behind the ILO's monitoring regime).
145. Drusilla K. Brown, Labor Standards: Where Do They Belong on the International Trade Agenda?, 15 J. ECON. PERSP. 89, 102 (2001) (analyzing the "incentives for both high- and low-income countries to choose high labor standards").
146. Langille, Re-Reading the ILO Preamble, supra note 92, at 93;
147. see also EMPLOYMENT, LABOUR & Soc. AFFAIRS COMM. & TRADE COMM., ORG. FOR ECON. CO-OPERATION & DEV., TRADE, EMPLOYMENT AND LABOUR STANDARDS: A STUDY OF CORE WORKERS RIGHTS AND INTERNATIONAL TRADE (1996), available at http://213.253.134.29/oecd/pdfs/browseit/2296031E.PDF (demonstrating how adherence to core labor standards increases productivity and cost-effectiveness, thereby attracting investment);
148. Drusilla K. Brown, International Trade and Core Labour Standards: A Survey of the Recent Literature 45, ¶ 262 (Org. for Econ. Co-operation & Dev., Lab. Mkt. & Soc. Pol'y Occasional Papers, Paper no. 43, 2000), available at http://puck.sourceoecd.org/vl=1167854/cl=14/nw=1/rpsv/cgi-bin/ wppdf?file=5lgsjhvj7rwd.pdf ("Furthermore, empirical evidence suggests that firms are more likely to invest in countries with some labor protections than in countries with poor labor practices, particularly with regard to working children.");
149. David Kucera, The Effects of Core Workers Rights on Labour Costs and Foreign Direct Investment: Evaluating the "Conventional Wisdom" (Int'l Labour Org., Int'l Inst. for Labour Studies, Decent Work Research Programme, Discussion Paper No. DP/130/2001, 2001), available at http://www.ilo.org/public/ english/bureau/inst/download/dp13001.pdf (rebutting the "conventional wisdom about low-standard countries being a haven for foreign investors"); Flanagan, supra note 11, at 46 (stating that available "data show no reliable evidence that high labor standards reduce a country's share of foreign direct investment).
150. Langille, Re-Reading the ILO Preamble, supra note 92, at 96;
151. see also ABRAM CHAYES & ANTONIA HANDLER CHAYES, THE NEW SOVEREIGNTY: COMPLIANCE WITH INTERNATIONAL REGULATORY AGREEMENTS 22-28 (1995) (advocating a "managerial approach" to promote compliance with international law).
152. See supra Part II.A.
153. Cf. HAAS, supra note 13, at 141-42 (referring to "constitutional weaknesses built into the ILO Constitution").
154. Cox, Limited Monarchy, supra note 13, at 102.
155. See ILO, THE FIRST DECADE, supra note 91, at 32.
156. 1919 ILO Constitution, supra note 3, arts. 399 & 420.
157. See HAAS, supra note 13, at 143 (explaining how the "final power of action continued to rest with governments" in the League of Nations) (emphasis omitted); see generally Cox, Limited Monarchy, supra note 13, at 102-03 (describing the origins and development of the ILO in the context of the League of Nations).
158. 1919 ILO Constitution, supra note 3, art. 394, ¶ 1.
159. Id. art. 396, ¶¶ 2-3, and 402. The Office's agenda-setting function is subject to the right of any government to object to the inclusion of any item in the agenda.
160. See id. arts 408-20 (allocating these powers to the member states or to ILO political bodies).
161. See 1919 ILO Constitution, supra note 3, pmbl. (identifying workplace conditions requiring international attention); HAAS, supra note 13, at 144 (stating that governments did not "feed [new] demands into the ILO because they had not expected the need for any policy" beyond those specified in the constitution).
162. See HAAS, supra note 13, at 144, 143 (recounting the "self- consciously dynamic polic[ies]" adopted by the first ILO Director General Albert Thomas and describing the pre-war evolution of the ILO as an "unintended consequence of the very immediate and expediential governmental concern" of its founders); E.J. PHELAN, YES AND ALBERT THOMAS 245-57 (1936) (reviewing competence-expanding activities of ILO's first Director General and his support of worker delegates);
163. Virginia A. Leary, Lessons from the Experience of the International Labour Organisation, in THE UNITED NATIONS AND HUMAN RIGHTS 580, 613 (Philip Alston ed., 1992) ("The Office plays a leadership role in promoting the objectives of the ILO . . . . ILO officials have been initiators in the work of the Organisation, considering themselves not as simple executors of the desires of member States, but rather as collaborators in the pursuit of social justice.").
164. See HAAS, supra note 13, at 145 (describing the ILO as a "coordinator and unifier of national trade groups"); PHELAN, supra note 122, at 240-47 (explaining Director General Thomas's vision of the ILO as a collaboration of national trade unions).
165. Cox, Limited Monarchy, supra note 13, at 122;
166. see also C. WILFRED JENKS, THE INTERNATIONAL PROTECTION OF TRADE UNION FREEDOM 519, 522 (1957) (arguing that support of worker organizations was essential to development of additional authority by ILO Office).
167. See MARK F. IMBER, THE USA, ILO, UNESCO, AND IAEA: POLITICIZATION AND WITHDRAWAL IN THE SPECIALIZED AGENCIES 43 (1989) (noting the praise and respect the ILO received from other IOs during the inter-war period);
168. C. Wilfred Jenks, The Need for an International Legislative Drafting Bureau, 39 AMER. J. INT'L L. 163, 172-73 (1945) [hereinafter Jenks, Legislative Drafting Bureau] (detailing the careful and effective methods of treaty-making in the ILO's first two decades);
169. Charles W. Pipkin, Relations with the League of Nations, in ANNALS ILO ISSUE, supra note 13, at 124, 128 (describing the successful leadership of the ILO during the inter-war years).
170. ILO, THE FIRST DECADE, supra note 91, at 35;
171. see also Josef Sulkowski, The Problem of Universal Membership in the International Labor Organisation 5 ÖSTERREICHISCHE ZEITSCHRIFT FÜR ÖFFENTLICHES RECHT 70, 70-72 (1952-53) (describing the ILO's goal of universal membership).
172. 1919 ILO Constitution, supra note 3, art. 387.
173. ILO, THE FIRST DECADE, supra note 91, at 35; see also id. at 36-41 (discussing legal and political issues regarding admission of new members to the ILO).
174. Id. at 43.
175. Id. at 42-46, 328-31; ALCOCK, supra note 2, at 118-33.
176. 1919 ILO Constitution, supra note 3, art. 405, ¶ 5.
177. J.F. McMahon, The Legislative Techniques of the International Labour Organization, 41 BRIT. Y.B. INT'L L. 1, 93 (1965-66).
178. OSIEKE, supra note 86, at 148-51, 167.
179. Id.
180. 1919 ILO Constitution, supra note 3, art. 423.
181. See C. Wilfred Jenks, The Interpretation of International Labour Conventions by the International Labour Office, in Notes, 20 BRIT. Y.B. INT'L L. 132, 132-41 (1939) (detailing the frequency with which the Office gives unofficial interpretations);
182. ILO, THE FIRST DECADE, supra note 91, at 276 (discussing the member states' preference for such interpretations).
183. McMahon, supra note 132, at 91-96 (noting the Office's "exceptional and special knowledge" in reviewing practices of ILO member states and preparing drafts of conventions).
184. ALVAREZ, supra note 17, at 226 (internal punctuation omitted).
185. McMahon, supra note 132, at 100.
186. See ILO, THE FIRST DECADE, supra note 91, at 267-76, 310-12, 317-20 (discussing efforts by Office to overcome obstacles to ratification and to gather information on the implementation of recommendations).
187. In recent years, the Office has continued to stress the influence of unratified conventions and recommendations on the domestic laws and practices of member states. See INT'L LAB. OFFICE, THE IMPACT OF INTERNATIONAL LABOUR CONVENTIONS AND RECOMMENDATIONS 11-26 (1976) [hereinafter INT'L LAB. OFFICE, IMPACT OF CONVENTIONS].
188. ILO, THE FIRST DECADE, supra note 91, at 277;
189. ILO, Statistics on Ratification, supra note 10, graph 1.
190. See id. at 278 (stating that it would be "unreasonable" to expect ratification of maritime conventions by non-maritime states). But see infra notes 217-218 and accompanying text (describing the practice of "empty ratifications" of maritime conventions by some landlocked states).
191. See McMahon, supra note 132, at 62-65 (describing the drafting procedure); Jenks, Legislative Drafting Bureau, supra note 125, at 172-73 (explaining the need for a uniform drafting technique).
192. See Francis Maupain, Is the ILO Effective in Upholding Workers' Rights?: Reflections on the Myanmar Experience, in LABOUR RIGHTS AS HUMAN RIGHTS 85, 91 (Philip Alston ed., 2005) [hereinafter Maupain, Reflections on Myanmar] (discussing the expansion of the ILO's mandate by the Permanent Court of International Justice, which held that the organization's jurisdiction covered all workers).
193. Nicolas Valticos, Fifty Years of Standard-Setting Activities by the International Labour Organisation, 135 INT'L LAB. REV. 393, 399 (1996).
194. See id. at 402.
195. McMahon, supra note 132, at 80; see also id. at 77-85 (discussing history of and rationales for ban on reservations).
196. See J.M. Servais, Flexibility and Rigidity in International Labour Standards, 125 INT'L LAB. REV. 193 (1986) (detailing the flexibility devices used in ILO conventions); VALTICOS & VON POTOBSKY, supra note 3, at 55-61 (same).
197. See ILO, THE FIRST DECADE, supra note 91, at 33 (describing the founders' awareness that ILO would need to address new labor issues in the future); id. at 86 (stating that the problem of revision of conventions "is not mentioned" in the Constitution of 1919 but "it was bound to arise sooner or later").
198. Jenks, Revision, supra note 100, at 49-52.
199. E.g., Marking of Weight (Packages Transported by Vessels) Convention, art. 7, ¶¶ 2-3, June 21, 1929, ILOLEX No. C27, available at http://www.ilo.org/ilolex/english/convdisp1.htm (providing that, on the date that a revising convention entered into force, the original convention would be closed to future ratifications but would remain in force for those states that had previously ratified it).
200. Maritime labor treaties provide an apt illustration. The ILO Conference adopted the first Wages, Hours of Work and Manning (Sea) Convention in 1946. June 29, 1946, ILOLEX No. C76, available at http://www.ilo.org/ilolex/english/ convdisp1.htm.
201. The treaty was followed three years later, however, by the Wages, Hours of Work and Manning (Sea) Convention (Revised), 1949, and nine years after that by a second revising convention, Wages, Hours of Work and Manning (Sea) Convention (Revised), 1958. June 18, 1949, ILOLEX No. C93, available at http://www.ilo.org/ilolex/english/convdisp1.htm;
202. May 14, 1958, ILOLEX No. C109, available at http://www.ilo.org/ilolex/ english/convdisp1.htm.
203. As I explain in the next section, this approach to treaty revision later created problems for the organization. See infra Part III.E.2.
204. For detailed discussions, see OSIEKE, supra note 86, at 171-83, 210-34; T.K. Samson, The Changing Pattern of ILO Supervision, 118 INT'L LAB. REV. 569, 569-80 (1979).
205. See HAAS, supra note 13, at 251 (describing expanding reporting obligations for member states); id. at 348-50 (comparing constitutionally mandated procedures with those that have been developed ad hoc by the ILO); JENKS, ILO IMPACT, supra note 13, at 42 (explaining changes in supervisory procedures).
206. See HAAS, supra note 13, at 252; OSIEKE, supra note 86, at 173.
207. An early observer noted that the Committee of Experts "presents critical observations, acknowledges responses of governments, discusses them, refutes them, formulates commentaries on the interpretations presented, and advances suggestions." HAAS, supra note 13, at 253 (translating and quoting JEAN ZARRAS, LE CONTROLE DE L'APPLICATION DES CONVENTIONS INTERNATIONALES DU TRAVAIL 173 (1937)). Committee members were careful, however, to couch their conclusions in the form of "observations" rather than "criticisms." Id.
208. Samson, supra note 155, at 569.
209. See ALCOCK, supra note 2, at 280 (describing first Commission of Inquiry, convened in 1961 to respond to a complaint by Ghana against Portugal); HAAS, supra note 13, at 362 (same).
210. See OSIEKE, supra note 86, at 223 & n.124 (noting legal dispute over whether workers and employers could submit complaints that could trigger the creation of a Commission of Inquiry).
211. See David A. Wirth, Reexamining Decision-Making Processes in International Environmental Law, 79 IOWA L. REV. 769, 779 (1994) (describing limitations of interstate dispute settlement procedures).
212. Recent Commissions of Inquiry have been overwhelmingly requested by non-state actors. See VALTICOS & VON POTOBSKY, supra note 3, at 290-93.
213. Streeck & Thelen, supra note 46, at 9.
214. See ALCOCK, supra note 2, at 99 (describing decline in ratifications); id. at 110-12 (outlining failure to adopt conventions concerning unemployment and social security).
215. See id. at 110 (discussing the Forty-Hour Week Convention, June 4, 1935, ILOLEX No. C47, available at http://www.ilo.org/ilolex/english/convdisp1.htm);
216. see also Cox, General Theory of IO, supra note 63, at 102 (stating that at "critical moments in [the ILO's] history, its leadership has put forward bold programs" and citing the "anti-depression program" of Director General Harold Butler).
217. ALCOCK, supra note 2, at 160-61.
218. Id. at 151-70, 171 n.1 (discussing the ILO's activities during World War II); VALTICOS & VON POTOBSKY, supra note 3, at 33 (stating that ILO membership fell from sixty-two states in the 1930s to forty-eight states in the early 1940s).
219. See Edward Phelan, Acting Dir., Int'l Lab. Office, Address at the International Labour Conference (May 10, 1944), in INT'L LAB. OFFICE, "A NEW ERA": THE PHILADELPHIA CONFERENCE AND THE FUTURE OF THE I.L.O. 132-45 (1944) (discussing the post-war future of the ILO); see also HAAS, supra note 13, at 152 (noting that, in response to "the very real challenge of a drastically changed international environment," the ILO Office increasingly "assumed the role of the leader and executive, the initiator and promoter of policy").
220. Int'l Lab. Org., Declaration Concerning the Aims and Purposes of the International Labour Organization (adopted May 10, 1944 in Philadelphia), available at http://www.ilo.org/public/english/about/iloconst.htm#annex. The specific policy goals included promoting full employment, raising living standards, recognizing the right of collective bargaining, protecting life and health in all occupations, and protecting equality of educational and vocational opportunity. Id.
221. ALCOCK, supra note 2, at 184.
222. Id. at 171.
223. Cox, Limited Monarchy, supra note 13, at 104 (describing the Soviet Union's preference "that labor interests be expressed directly through the new United Nations machinery");
224. VICTOR-YVES GHEBALI, THE INTERNATIONAL LABOUR ORGANIZATION: A CASE STUDY
225. Constitution of the International Labour Organization, as amended Oct. 9, 1946, 62 Stat. 3485, 15 U.N.T.S. 35 [hereinafter 1946 ILO Constitution].
226. HAAS, supra note 13, at 161-66; see also VALTICOS & VON POTOBSKY, supra note 3, at 19, 46-47 (arguing that the Declaration of Philadelphia expanded the ILO's regulatory authority).
227. 1946 ILO Constitution, supra note 174, art. 19.5(e).
228. See GERARD J. MANGONE, A SHORT HISTORY OF INTERNATIONAL ORGANIZATION 226 (1954) (describing post-war efforts to draft additional labor conventions).
229. See Cox, Limited Monarchy, supra note 13, at 105; GHEBALI, supra note 173, at 104-07. These politically motivated events were the catalyst of the temporary withdrawal of the United States from the ILO between 1977 and 1980. See IMBER, supra note 125, at 58 (analyzing Secretary of State Henry Kissinger's argument that the United States' withdrawal was precipitated by, inter alia, the ILO's "disregard for due process and increasing politicization").
230. See MORSE, supra note 2, at 45-76 (describing initiatives promoted by Director General between 1948 and 1968).
231. Cox, Limited Monarchy, supra note 13, at 105;
232. see also Efrén Córdova, Some Reflections on the Overproduction of International Labor Standards, 14 COMP. LAB. L.J. 138, 144 (1993) (describing how worker groups "press for inclusion of standards specific to their sector in the International Labor Code") (discussing demand for new labor standards in former colonial territories).
233. HAAS, supra note 13, at 171.
234. See Leary, supra note 122, at 587-88.
235. See HAAS, supra note 13, at 166-68; see also Fundamental ILO Conventions, available at http://www.ilo.org/public/english/standards/norm/whatare/fundam/ (listing dates of adoption of ILO human rights treaties).
236. See Philip Alston, The United Nations' Specialized Agencies and Implementation of the International Covenant on Economic, Social and Cultural Rights, 18 COLUM. J. TRANSNAT'L L. 79, 94 (1979);
237. Michael J. Dennis & David P. Stewart, Justiciability of Economic, Social, and Cultural Rights: Should There Be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing, and Health?, 98 AM. J. INT'L L. 462, 480-81 (2004).
238. See JOHN P. HUMPHREY, HUMAN RIGHTS & THE UNITED NATIONS 83-84 (1984) (discussing the UN's desire for a joint UN-ILO commission to protect trade union rights); Leary, supra note 122, at 602-03 (discussing UN opposition to ILO Freedom of Association Committee).
239. Philip Alston, "Core Labour Standards" and the Transformation of the International Labour Rights Regime, 15 EUR. J. INT'L L. 457, 481 (2004). The authority to review the conduct of non-ratifying states derived from the ILO Constitution, which protects freedom of association. "[It] has therefore been held that this principle should be observed by all [member states] by virtue of their membership [in] the Organization alone." VALTICOS & VON POTOBSKY, supra note 3, at 295.
240. Maupain, Reflections on Myanmar, supra note 145, at 93 n.25.
241. Córdova, supra note 180, at 143.
242. Id. at 142-43.
243. See supra notes 123-124 and accompanying text (discussing support of worker groups for ILO Office during the organization's first two decades).
244. Cox, Limited Monarchy, supra note 13, at 122.
245. Maupain, Reflections on Myanmar, supra note 145, at 90.
246. HAAS, supra note 13, at 192.
247. Id. at 201; see also id. at 199-202 (discussing the dominance that the International Confederation of Free Trade Unions exercised over other trade union groups in the ILO during the 1950s and 1960s).
248. See Valticos, supra note 146, at 401 (stating that ILO adopted sixty-three conventions and sixty-eight recommendations between 1944 and 1969).
249. See Boockmann, supra note 10, at 292; Cooney, supra note 9, at 376. A 2000 ILO study found that ratification rates for different categories of conventions - such as labor administration, working conditions, social security, and safety and health - ranged between approximately 15% and 35% of ILO member states. Only "fundamental conventions," including human rights treaties, had significantly higher ratification rates - around 68% of member states. ILO, Statistics on Ratification, supra note 10, graph 7.
250. Recall that each state nominates two government delegates, one employer delegate, and one worker delegate to the ILO Conference, and that a two-thirds vote is required to adopt a treaty. See supra note 3.
251. See TORSTEN LANDELIUS, WORKERS, EMPLOYERS AND GOVERNMENTS: A COMPARATIVE STUDY OF DELEGATIONS AND GROUPS AT THE INTERNATIONAL LABOUR CONFERENCE, 1919-1964, at 66-91 (1965).
252. 1946 ILO Constitution, supra note 174, arts. 19.5-6.
253. Cf. Robert D. Putnam, Diplomacy and Domestic Politics: The Logic of Two-Level Games, 42 INT'L ORG. 427 (1988) (arguing that international politics shapes how national governments pursue state interests and how those interests are in turn defined through domestic politics).
254. See supra Part III.C.2.
255. STEPHEN D. KRASNER, SOVEREIGNTY: ORGANIZED HYPOCRISY 5-6 (1999).
256. Córdova, supra note 180, at 161.
257. 1946 ILO Constitution, supra note 174, art. 19.5(e). Other scholars, employing public choice theory, have argued that international bureaucrats seek to expand their authority and discretion through the creation or interpretation of international rules. See Paul B. Stephan, Accountability and International Lawmaking: Rules, Rents, and Legitimacy, 17 NW. J. INT'L L. & BUS. 681, 706, 718-19 (1996-97). As noted in the text, however, the ILO Constitution contains unique features that exacerbate these public choice concerns.
258. E.A. Landy, The Influence of International Labour Standards: Possibilities and Performance, 101 INT'L LAB. REV. 555, 563-64 (1970) [hereinafter Landy, Influence of Standards];
259. see INT'L LAB. OFFICE, IMPACT OF CONVENTIONS, supra note 141, at 25-26 n.5 (citing Landy article with approval).
260. See Córdova, supra note 180, at 161-62; Ignacio A. Donoso Rubio, Economic Limits on International Regulation: A Case Study of ILO Standard-Setting, 24 QUEENS L.J. 189, 235 (1998);
261. see also INT'L LAB. OFFICE, IMPACT OF CONVENTIONS, supra note 141, at 25-26 (stating that reports on unratified conventions "have a dynamic effect in occasioning a re-examination by governments, employers, and workers of the adequacy of national law and practice and consideration by the ILO of the need for reinforcing its own activities") (emphasis added).
262. See HAAS, supra note 13, at 247 (distinguishing between general and specific conventions).
263. Francis Maupain, Revitalization Not Retreat: The Real Potential of the 1998 ILO Declaration for the Universal Protection of Workers' Rights, 16 EUR. J. INT'L L. 439, 444 (2005) [hereinafter Maupain, Revitalization Not Retreat].
264. Córdova, supra note 180, at 151 (references to individual treaty numbers omitted).
265. See supra Part III.C.2.
266. Nicolas Valticos, The Future Prospects for International Labour Standards, 118 INT'L LAB. REV. 679, 685 (1979) (stating that, as of 1979, 40 of 150 ILO conventions were revisions of earlier conventions); Valticos, supra note 146, at 404 (stating that, as of 1969, 25 of 130 ILO conventions were revisions of earlier conventions).
267. See Cooney, supra note 9, at 373 (commenting that ILO conventions and recommendations set targets "that only the richest countries could realistically achieve"); Rubio, supra note 206, at 211 (discussing inflexibility of ILO conventions).
268. See HAAS, supra note 13, at 246 ("Conventions found to be too demanding are often revised downward by later conferences; upward revisions occur less often.").
269. Servais, supra note 149, at 196-97.
270. Although ratification rates remained low for many treaties, the total number of ratifications rose during the half-century following World War II. ILO, Statistics on Ratification, supra note 10, at 2 & graph 1 (total ratifications of all ILO conventions increased from 908 in 1944, to 3527 in 1969, to 6255 in 1994).
271. HAAS, supra note 13, at 258; see also LANDY, THIRTY YEARS, supra note 13, at 198 (reaching a similar conclusion).
272. LANDY, THIRTY YEARS, supra note 13, at 83-84; see also Córdova, supra note 180, at 155-56 (discussing rise of "hasty and spurious forms of ratification").
273. See LANDY, THIRTY YEARS, supra note 13, at 84-86; see also Córdova, supra note 180, at 156 (listing Luxembourg's ratification of maritime conventions as an example of a bogus ratification); Strang & Chang, supra note 3, at 243 & n.36 (characterizing as "implausible" Luxembourg's ability to implement maritime conventions).
274. HAAS, supra note 13, at 268.
275. See supra note 158 and accompanying text. The continuous output of conventions and recommendations vastly enlarged the Committee's workload. See HAAS, supra note 13, at 253 (discussing Committee's roles and functions); see also id. at 257 (stating that Committee of Experts reviewed government reports concerning more than 3,200 ratifications between 1927 and 1963). To address the backlog, the ILO increased the interval between the submission of reports from annually to once every two years, and then once every four years for most conventions. See Samson, supra note 155, at 570. In another time- and cost-saving measure, the Committee began to publish only its most important "observations;" its remaining comments were simply forwarded to governments for their review. See id.
276. See Cooney, supra note 9, at 377 ("[W]here a convention is . . . ratified, the [ILO] monitoring system considers whether or not a country's legal system complies with that convention, and essentially stops there."); WALTER GALENSON, THE INTERNATIONAL LABOR ORGANIZATION: AN AMERICAN VIEW 214-15 (1981) (noting resistance of ILO officials to "prob[ing] more deeply into the actual implementation of legislation and its effect on social and economic conditions" in ratifying states);
277. LANDY, THIRTY YEARS, supra note 13, at 57 (noting that the "primary emphasis" of supervision is on "the achievement of legislative conformity" with ILO conventions).
278. Strang & Chang, supra note 3, at 242 (reporting that Landy's study of ILO monitoring between 1927 and 1963 found 73% full implementation); see LANDY, THIRTY YEARS, supra note 13, at 66 (reporting that, in 72% of ratifications during this period, the Committee of Experts made no "observations" on states' failure to comply).
279. GALENSON, supra note 221, at 210 (applying this example to the ILO convention requiring the establishment of minimum wages "for all wage earners whose terms of employment are such that coverage would be appropriate") (internal quotations omitted).
280. Flanagan, supra note 11, at 35.
281. Id. at 29. This argument assumes that states did not improve their national labor practices in anticipation of subsequently ratifying the ILO conventions.
282. Cf. Maupain, Revitalization Not Retreat, supra note 208, at 442 (arguing that ILO initiatives should be measured by whether "they make a verifiable contribution to the advancement of the Organization's objectives in the real world").
283. HAAS, supra note 13, at 253.
284. Leary, supra note 122, at 598; see also Oliver Liang, Informational Dimensions of the ILO's Committee of Experts 3 (2004) (unpublished manuscript, on file with author) (describing the "esoteric codex of linguistic signifiers" used by the Committee of Experts to indicate degrees "of approval or disapproval"). The Committee diffused states' criticism in another way: by segregating the sections of its reports containing comments to governments from those describing treaty ratifications and "cases of progress" (the Committee's verbal notation for improvements in response to its past criticisms). Weisband, supra note 8, at 651. This separation made it extremely difficult to compare domestic labor standards between member states and within a single state over time. See Liang, supra, at 5 (stating that the reports of the Committee of Experts contain "informational limits" that make them "a difficult source for quantitative indicators of facts on the ground").
285. See Weisband, supra note 8, at 651 (noting that the working methods of the Committee of Experts had the paradoxical effect of undermining the "logic of the ILO monitoring regime").
286. Liang, supra note 228, at 3 ("The ILO publishes a maximum of 8,000 printed copies of the [Committee of Expert's] report, circulated mostly in a closed community of cognoscenti who [are] familiar with the Committee's purpose and language.").
287. See supra text accompanying notes 190-194 (describing these differences).
288. Conversely, ILO conventions had their greatest impact in "pluralist democracies where labor [was] politically organized but not politically dominant." Strang & Chang, supra note 3, at 254. These were countries in which the interests of domestic labor groups were aligned with the interests of organized labor unions that held the reigns of influence in the ILO. See HAAS, supra note 13, at 448-49.
289. Virginia A. Leary, "Form Follows Function": Formulations of International Labor Standards - Treaties, Codes, Soft Law, Trade Agreements, in INTERNATIONAL LABOR STANDARDS, supra note 11, at 179, 187.
290. See Koremenos et al., supra note 44, at 766-67 (discussing how to account for evolution of institutions within a rational design framework); see also Streeck & Thelen, supra note 46, at 7-8 (reviewing literature).
291. BARNETT & FINNEMORE, supra note 50, at 33, 162.
292. See PIERSON, supra note 37, at 34-44.
293. Id. at 126-30.
294. See BARNETT & FINNEMORE, supra note 50, at 37.
295. Scholars who analyze domestic and international institutions disagree on the extent to which learning is a factor in producing change. Compare PIERSON, supra note 37, at 38 (stating that, in politics, "learning is very difficult [and] cannot be assumed to occur"), with BARNETT & FINNEMORE, supra note 50, at 160-61 (positing that "learning from failure" results in expansions of IO activities).
296. See HECTOR BARTOLOMEI DE LA CRUZ ET AL., THE INTERNATIONAL LABOR ORGANIZATION: THE INTERNATIONAL STANDARDS SYSTEM AND BASIC HUMAN RIGHTS 60-61 (1996); Alston, supra note 186, at 463-64.
297. Cox, Labor and Hegemony, supra note 4, at 409-10.
298. Cooney, supra note 9, at 370.
299. See id. at 370-71. Indeed, as early as the 1970s, official ILO reports indicated that workers covered by collective bargaining agreements comprised less than a tenth of the world's work force. See Cox, Labor and Hegemony, supra note 4, at 411.
300. See Cooney, supra note 9, at 365-66; Christine Haight Farley, Men May Work from Sun to Sun, But Women's Work is Never Done: International Law and the Regulation of Women's Work at Night, 4 CIRCLES: BUFF. WOMEN'S J.L. & SOC. POL'Y 44, 46-48 (1996).
301. Cooney, supra note 9, at 371.
302. See supra Part III.A (discussing the rational design of international labor standards).
303. INT'L LAB. OFFICE, REPORT OF THE DIRECTOR GENERAL TO THE 81ST SESSION OF THE INTERNATIONAL LABOUR CONFERENCE, DEFENDING VALUES, PROMOTING CHANGE: SOCIAL JUSTICE IN A GLOBAL ECONOMY - AN AGENDA FOR THE ILO (1994).
304. Id. at 29.
305. Id. at 26.
306. Id. at 43-44.
307. Id. at 44-45.
308. See Alston, supra note 186, at 464-65 (reviewing Director General's proposals).
309. For a comprehensive review of all of the lawmaking and monitoring reforms adopted during the last decade, see Int'l Lab. Office, Comm. on Legal Issues and Int'l Lab. Standards, Improvements in the Standards-Related Activities of the ILO: A Progress Report, GB.292/LILS/7 at 1 (Mar. 2005), available at http://www.ilo.org/public/english/standards/relm/gb/docs/gb292/pdf/lils-7.pdf [hereinafter Int'l Lab. Office, 2005 Progress Report].
310. The eight fundamental conventions are: the Freedom of Association and Protection of the Right to Organize Convention, 1948, July 9, 1948, ILOLEX No. C87, available at http://www.ilo.org/ilolex/cgi-lex/convde.pl?C087;
311. Right to Organize and Collective Bargaining Convention, 1949, July 1, 1949, ILOLEX No. C98, available at http://www.ilo.org/ilolex/cgi-lex/convde.pl? C098;
312. the Forced Labour Convention, 1930, June 28, 1930, ILOLEX No. C29, available at http://www.ilo.org/ilolex/cgi-lex/convde.pl?C029;
313. the Abolition of Forced Labour Convention, 1957, June 25, 1957, ILOLEX No. C105, available at http://www.ilo.org/ilolex/cgi-lex/convde.pl?C105;
314. the Equal Remuneration Convention, 1951, June 29, 1951, ILOLEX No. C100, available at http://www.ilo.org/ilolex/cgi-lex/convde.pl?C100;
315. the Discrimination (Employment and Occupation) Convention, 1958, June 25, 1958, ILOLEX No. C111, available at http://www.ilo.org/ilolex/cgi-lex/convde. pl?C111;
316. the Minimum Age Convention, 1973, June 26, 1973, ILOLEX No. C138, available at http://www.ilo.org/ilolex/cgi-lex/convde.pl?C138;
317. and the Worst Forms of Child Labour Convention, 1999, June 17, 1999, ILOLEX No. C182, available at http://www.ilo.org/ilolex/cgi-lex/convde.pl?C182.
318. Int'l Lab. Office, Comm. on Legal Issues and Int'l Lab. Standards, Ratification and Promotion of Fundamental ILO Conventions, GB.294/LILS/5 at 1 (Nov. 2005), available at http://www.ilo.org/public/english/standards/relm/gb/ docs/gb294/pdf/lils-5.pdf [hereinafter Int'l Lab. Office, Promotion of Fundamental Conventions].
319. Int'l Lab. Office, 2005 Progress Report, supra note 253, at 1.
320. See Int'l Lab. Office, Promotion of Fundamental Conventions, supra note 255, at 1-2.
321. See Steinberg, supra note 40, at 359-67.
322. See Alston, supra note 186, at 466, 471, 480; Robert Howse, The World Trade Organization and the Protection of Workers' Rights, 3 J. SMALL & EMERGING BUS. L. 131, 134-35 (1999).
323. Brian A. Langille, Core Labour Rights - The True Story (Reply to Alston), 16 EUR. J. INT'L L. 409, 421 (2005) [hereinafter Langille, Core Labour Rights].
324. Int'l Lab. Org., Declaration on Fundamental Principles and Rights at Work (June 1998), http://www.ilo.org/public/english/standards/decl/declaration/text/ tindex.htm (follow "text of the declaration" hyperlink) [hereinafter Int'l Lab. Org., Declaration].
325. Id.
326. 1946 ILO Constitution, supra note 174, art. 19.5(e).
327. Int'l Lab. Org., Declaration, supra note 261.
328. Maupain, Revitalization Not Retreat, supra note 208, at 444-45.
329. Id. at 445.
330. See Alston, supra note 186, at 479-80; see also supra text accompanying note 186.
331. Francis Maupain, The Liberalization of International Trade and the Universal Recognition of Workers' Fundamental Rights: The New ILO Declaration on Fundamental Principles and Rights at Work and Its Follow-up, in SCIENTIFIC AND TECHNOLOGICAL DEVELOPMENTS AND HUMAN RIGHTS 35, 44 (Maria Gavouneli & L.A. Sicilianos, eds. 2001).
332. Alston, supra note 186, at 459 (noting but not endorsing this viewpoint).
333. Andrew J. Samet, Doha and Global Labor Standards: The Agenda Item That Wasn't, 37 INT'L LAW. 753, 755 (2003). Samet is a former Deputy Under-Secretary of Labor for International Affairs and U.S. representative to the ILO. Id. at 753.
334. See Alston, supra note 186, at 476-513 (outlining problems with the core labor standards approach).
335. See Langille, Core Labour Rights, supra note 260, at 412-37;
336. Maupain, Revitalization Not Retreat, supra note 208, at 440-63.
337. See Maupain, Reflections on Myanmar, supra note 145, at 95-97.
338. 1919 ILO Constitution, supra note 3, art. 419.
339. 1946 ILO Constitution, supra note 174, art. 33.
340. See Maupain, Reflections on Myanmar, supra note 145, at 107-14 (discussing the legal uncertainty of ILO-authorized trade sanctions against Myanmar).
341. Id. at 96.
342. Int'l Lab. Org., Resolution Concerning the Measures Recommended by the Governing Body Under Article 33 of the ILO Constitution on the Subject of Myanmar, ILO Conf. 88th Sess. (June 14, 2000), available at http://www.ilo.org/ public/english/standards/relm/ilc/ilc88/resolutions.htm#I.
343. Id. ¶ 1(b).
344. See Maupain, Reflections on Myanmar, supra note 145, at 99-105.
345. Burmese Freedom and Democracy Act of 2003, 50 U.S.C. § 1701, Pub. L. 108-61, §§ 1 to 9 (2006).
346. Id. § 2(10).
347. Id. § 3(a)(3)(A). For a discussion of the sanctions adopted by the European Union, see External Relations, Eur. Union, The EU's Relations with Burma/Myanmar (Nov. 2005), http://www.europa.eu.int/comm/external_relations/ myanmar/intro/index.htm.
348. See Int'l Lab. Office, Conclusions Concerning Myanmar, GB.294/6/1 & GB.294/6/2 (Nov. 2005), http://www.ilo.org/public/english/standards/relm/gb/ docs/gb294/pdf/myanmar-conc.pdf;
349. Int'l Lab. Office, Developments Concerning the Question of the Observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29), GB.294/6/2 (Nov. 2005), http://www.ilo.org/public/english/standards/relm/gb/ docs/gb294/pdf/gb-6-1.pdf.
350. See Maupain, Reflections on Myanmar, supra note 145, at 118 (characterizing the use of sanctions against Myanmar as "a significant innovation" and a reflection of the ILO's defense of "international public (moral) order").
351. See Int'l Lab. Office, 2005 Progress Report, supra note 253, at 2 (describing the process for updating the ILO's standards).
352. See, e.g., Working Party on Pol'y Regarding the Revision of Standards, Int'l Lab. Office, Follow-Up to the Recommendations of the Working Party: Information Note on the Progress of Work and Decisions Taken Regarding the Revision of Standards, GB.283/LILS/WP/PRS/1/2. at 1 (Mar. 2002), http://www.ilo.org/public/english/standards/relm/gb/docs/gb283/pdf/prs-1-2.pdf [hereinafter Int'l Lab. Office, Information Note].
353. Int'l Lab. Office, Instrument for the Amendment of the Constitution of the International Labour Organisation, 1997, Questions and Answers (2005), http://www.ilo.org/public/english/bureau/leg/download/campaign2005.pdf (analyzing proposed amendment to ILO Constitution that, if adopted, will authorize the ILO Conference, by a two-thirds vote, to abrogate a convention "which appears . . . to have lost its purpose or that . . . no longer makes a useful contribution to attaining the objectives" of the ILO);
354. see also Int'l Lab. Office, Information Note, supra note 287, at 14-15 & n.38 (describing powers conferred by the amendment and the number of ratifications required before it can take effect).
355. "Abrogation" terminates "all the legal effects of a ratified Convention, meaning reporting obligations as well as the obligation to implement the Convention." Tim De Meyer, The Ratification of International Labour Conventions in the Asian-Pacific Region: Up to the Standard? 42 n.49 (Centre for ASEAN Studies Discussion Paper No. 16, 1998), available at http://143.129.203.3/cas/PDF/CAS16.pdf.
356. "Withdrawal" has the same legal effect as abrogation, but is applied to ILO treaties that are not in force because of a lack of ratifications or subsequent denunciations. "Shelving" renders a treaty dormant and subjects it to only minimal review by the ILO's monitoring mechanisms. Int'l Lab. Office, Information Note, supra note 287, at 14, 15.
357. Comm. on Legal Issues & Int'l Lab. Standards, Int'l Lab. Office, Improvements in the Standards-Related Activities of the ILO: Outlines of a Future Strategic Orientation for Standards and for Implementing Standards-Related Policies and Procedures, at 3, GB.294/LILS/4 (Nov. 2005), http://www.ilo.org/public/english/standards/relm/gb/docs/gb294/pdf/lils-4.pdf [hereinafter Int'l Lab. Office, 2005 Improvements in Standards].
358. Int'l Lab. Office, Information Note, supra note 287, at 13;
359. Int'l Lab. Office, 2005 Progress Report, supra note 253, at 4.
360. Int'l Lab. Office, 2005 Improvements in Standards, supra note 291, at 2.
361. Eighty member states had ratified the amendment seven years after its adoption in 1997. Ratifications from 118 states are required for the amendment to enter into force. Int'l Lab. Office, 2005 Progress Report, supra 253, at 4 n.22.
362. A search performed using the advanced search web page of ILOLEX, in the category of "ratifications by member states," using the word "denounced," for the years 1996 to 2005 inclusive, yielded 263 denunciations. ILOLEX advanced query form, http://www.ilo.org/ilolex/english/ iloquery.htm. For a more detailed analysis of why states have denounced ILO conventions, see Helfer, Exiting Treaties, supra note 47, at 1596-99.
363. Int'l Lab. Office, Information Note, supra note 287, at 11.
364. Int'l Lab. Office, 2005 Progress Report, supra note 253, at 5.
365. Langille, Core Labour Rights, supra note 260, at 425
366. (citing Breen Creighton, The Future of Labour Law: Is There A Role for International Labour Standards?, in THE FUTURE OF LABOUR LAW 253, 258 (C. Bernard et al. eds., 2004)).
367. Int'l Lab. Office, 2005 Progress Report, supra note 253, at 6 (noting that convention received 150 ratifications in six years). Other recently adopted treaties have been far less widely adopted, although none of them is a fundamental convention.
368. See ILOLEX: Database of International Labour Standards, http://www.ilo.org/ilolex/english/newratframeE.htm (indicating that four of the most recently adopted treaties have received between four and eighteen ratifications as of July 2005).
369. Int'l Lab. Office, Proposed Consolidated Maritime Labour Convention (Int'l Lab. Conf., 94th (Maritime) Sess., Report I(1B), 2006), available at http://www.ilo.org/public/english/stand ards/relm/ilc/ilc94/rep-i-1b.pdf.
370. A former ILO official has described the CMLC as an "extremely ambitious" and "revolutionary project." Maupain, Revitalization Not Retreat, supra note 208, at 441.
371. See Int'. Lab. Office, Adoption of an Instrument to Consolidate Maritime Labour Standards 6-8 (Int'l Lab. Conf., 94th (Maritime) Sess., Report I(1A), 2006), http://www.ilo.org/public/english/standards/relm/ilc/ilc94/rep-i-1a.pdf;
372. Int'l. Lab. Office, Consolidated Maritime Labour Convention: Commentary to the Recommended Draft 2, 5, 11-12 (Preparatory Technical Maritime Conference, Sept. 13-24, Report No. PTMC/04/2, 2004), http://www.ilo.org /public/english/standards/relm/ilc/ilc94/ptmc/pdf/cmlc-comment.pdf [hereinafter Int'l Lab. Office, CMLC Commentary].
373. Int'l Lab. Office, CMLC Commentary, supra note 300, at 33 (reviewing elements that all negotiating groups believed should be included in the CMLC);
374. see High-Level Tripartite Working Group on Maritime Labour Standards, Int'l Lab. Office, Final Report, at 16-17, 23-24 (TWGMLS/2001/10, Jan. 2001), available at http://www.ilo.org/public/english/dialogue/sector/techmeet/ twgmls01/twgmls-fr.pdf.
375. See Joint Maritime Commission, Int'l Lab. Office, Final Report, App. 2 (JMC/29/2001/14, Jan. 2001), available at http://www.ilo.org/public/english/ dialogue/sector/techmeet/jmc01/jmcfr.pdf. The Maritime Session of the International Labor Conference approved the final text of the CMLC on February 23, 2006.
376. See Dep't of Communication, ILO, ILO Adopts Sweeping New Charter for Maritime Sector: New Convention Will Guarantee "Quality Shipping" Worldwide (Feb. 23, 2006), http://www.ilo.org/public/english/bureau/inf/pr/2006/ 7.htm.
377. Comm. on Migrant Workers, Int'l Lab. Conf., Report of the Committee on Migrant Workers, at 60 (June 2004), available at http://www.ilo.org/public/ english/standards/relm/ilc/ilc92/pdf/pr-22.pdf.
378. Int'l Lab. Office, Date, Place and Agenda of the 92nd Session (2004) of the International Labour Conference, at 31-32 (GB.283/2/1, Mar. 2002), http://www.ilo.org/public/english/standards/relm/gb/docs/gb283/pdf/gb-2-1.pdf.
379. See Comm. on Migrant Workers, Plan of Action, supra note 303, at 60-64.
380. Prior to the adoption of the plan of action, one commentator lamented that "the ILO instruments concerning migrant workers seem to have been generally ignored by the international community" and that ILO activity on migrant worker issues was "effectively dormant." RYSZARD CHOLEWINSKI, MIGRANT WORKERS IN INTERNATIONAL HUMAN RIGHTS LAW: THEIR PROTECTION IN COUNTRIES OF EMPLOYMENT 135-36 (1997).
381. Int'l Lab. Office, Report of the Director General to the 87th Session of the Int'l Labor Conference: Decent Work (June 1999), available at http://www.ilo.org/public/english/standards/relm/ilc/ilc87/rep-i.htm.
382. Id. Informal work is especially prevalent in developing countries, accounting for nearly 60% of total employment in Latin America and 90% of new urban jobs in Africa. Id.
383. See Cooney, supra note 9, at 371 (stating that ILO worker delegates "do not share the experiences of non-organized workers, and are faced with conflicts of interest" in representing them).
384. Lucio Baccaro, Civil Society, NGOs, and Decent Work Policies: Sorting Out the Issues 1 (Decent Work Research Programme Discussion Paper No. DP/127/2001, Int'l Inst. Lab. Stud., 2001), available at http://www.ilo.org/public/english/ bureau/inst/download/dp12701.pdf.
385. Id.
386. Id. at 23.
387. Bureau for Workers' Activities, ILO, ILO Partnership to Eliminate Child Labour in the Soccer Ball Industry in Pakistan (Feb. 14, 1997), http://www.itcilo.it/english/actrav /telearn/global/ilo/guide/ilosoc.htm.
388. Baccaro, supra note 309, at 24.
389. Id.
390. See Int'l Prog, on Elimination of Child Lab., IPEC Reflections on Current Strengths and Weaknesses in the West Africa Cocoa/Commercial Agriculture Program to Combat Hazardous and Exploitative Child Labour (WACAP) 4 (June 27, 2005), http://www.ilo.org/public /english/standards/ipec/download/ 2005_07_wacap_en.pdf;
391. Int'l Lab. Office & UNICEF, Addressing Child Labour in the Bangladesh Garment Industry 7, 10, 16 (2004), http://www.ilo.org/public/english/standards/ ipec/publ/download/2001_syn_bgmea_en.pdf.
392. See Leah Vosko, "Decent Work": The Shifting Role of the ILO and the Struggle for Global Social Justice, 2 GLOBAL SOC. POL'Y 19, 24-25, 39-40 (2002).
393. Migrants Rights International, Migrant Workers and Advocates Address the ILO Tripartite Committee (2004), http://www.choike.org/nuevo_eng/informes/2078. html.
394. See Cooney, supra note 9, at 389-90.
395. See Int'l Lab. Office, 2005 Improvements in Standards, supra note 291, at 3-4 (emphasizing these instrumental benefits).
396. Comparing real-world events to hypothesized alternatives is a widely accepted method of testing hypotheses in the social sciences. See, e.g., COUNTERFACTUAL THOUGHT EXPERIMENTS IN WORLD POLITICS: LOGICAL, METHODOLOGICAL, AND PSYCHOLOGICAL PERSPECTIVES (Philip E. Tetlock & Aaron Belkin eds., 1996);
397. James D. Fearon, Counterfactuals and Hypothesis Testing in Political Science, 43 WORLD POL. 169 (1991).
398. This is so even if "an element of speculation and uncertainty is inevitable in entering the counterfactual realm." Mark W. Zacher, Multilateral Organizations and the Institution of Multilateralism: The Development of Regimes for Nonterrestrial Spaces, in MULTILATERALISM MATTERS: THE THEORY AND PRAXIS OF AN INSTITUTIONAL FORM 399, 401 (John G. Ruggie ed., 1993).
399. Rational choice has more traction in explaining the structures and functions of the 1919 ILO Constitution. See supra Part III.A. Because this theory does not take into account the founders' political concerns as well as their functional goals, however, it fails to explain why the founders' functional design choices are only partially and imperfectly embodied in the constitution. See supra Part III.B.
400. See supra Part II.A.
401. Notably, the only meaningful rejoinder to the ILO's overreaching - the withdrawal of the United States between 1977 and 1980 - was not a response to incremental expansions of ILO lawmaking and monitoring, but rather an effort to check the foray by other member states into unrelated geopolitical issues. See IMBER, supra note 125, at 64-66.
402. See supra Part II.B.
403. See supra Part II.C.
404. See PIERSON, supra note 37, at 17-53.
405. See Barnett & Coleman, supra note 31, at 599-600 (identifying "organizational insecurity" as one of two explanatory variables that affect how IOs respond to pressures in their external environments).
406. BARNETT & FINNEMORE, supra note 50, at 164; see Edward T. Swaine, The Constitutionality of International Delegations, 104 COLUM. L. REV. 1492, 1605-07 (2004) (reviewing scholarship claiming that international organizations exhibit "mission creep" and seek to expand their mandates).
407. Richard H. Steinberg, Judicial Lawmaking at the WTO: Discursive, Constitutional, and Political Constraints, 98 AMER. J. INT'L L. 247, 248-49 (2004).