International delegation and state sovereignty

Law and Contemporary Problems

Volumn 71, Issue 1, 2008, Pages 114-149

  Hathaway, Oona A ^a  

^a YALE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 39049125206     PISSN: 00239186     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (193)

1. The United Nations Treaty Series currently contains more than 158,000 treaties and related subsequent actions. United Nations, United Nations Treaty Collection Overview, available at http://untreaty.un.org/ English/overview.asp (last visited Aug. 25, 2007).
2. Some of the key works in this vein include JACK L. GOLDSMITH & ERIC A. POSNER, THE LIMITS OF INTERNATIONAL LAW (2005);
3. JOHN C. YOO, THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN AFFAIRS AFTER 9/11 (2005);
4. Curtis A. Bradley, A New American Foreign Affairs Law?, 70 U. COLO. L. REV. 1089 (1999);
5. Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 HARV. L. REV. 815 (1997).
6. The term was coined by Peter Spiro in his excellent article, The New Sovereigntists: American Exceptionalism and Its False Prophets, FOREIGN AFF., Nov.-Dec. 2000, at 9, available at http://www.foreignaffairs.org/2000/6.html (follow "The New Sovereigntists" hyperlink) (last visited Sept. 3, 2007).
7. For example, at a conference titled Trends in Global Governance: Do They Threaten American Sovereignty?, John Yoo, a professor at the University of California at Berkeley, cautioned that "[n]ovel forms of international cooperation increasingly call for the transfer of rulemaking authority to international organizations that lack American openness and accountability." UN Wars, US War Powers, 1 CHI. J. INT'L L. 355, 361 (2000).
8. Robert D. Putnam, Diplomacy and Domestic Politics: The Logic of Two-Level Games, 42 INT'L ORG. 427 (1988).
9. See, e.g., Curtis A. Bradley, International Delegations, the Structural Constitution, and NonSelf-Execution, 55 STAN. L. REV. 1557, 1567-82 (2003) (examining U.S. participation in international delegations and resulting implications for U.S. domestic sovereignty);
10. Julian G. Ku, The Delegation of Federal Power to International Organizations: New Problems with Old Solutions, 85 MINN. L. REV. 71, 88-113 (2000) (discussing the transfer of some federal powers to international organizations).
11. See generally Edward T. Swaine, The Constitutionality of International Delegations, 104 COLUM. L. REV. 1492 (2004) (considering the constitutional implications of delegating legislative authority to international organizations);
12. Ernest A. Young, The Trouble with Global Constitutionalism, 38 TEX. INT'L L.J. 527 (2003) (discussing the effects of globalization and globalized lawmaking on the structure of the U.S. Constitution and U.S. lawmaking). This debate has played out in the public eye most recently in the debate over the use of foreign and international law by U.S. courts.
13. See, e.g., Kenneth Anderson, Foreign Law and the U.S. Constitution, POL'Y REV., June-July 2005, at 33, available at http://www.hoover.org/publications/policyreview/ 2932196.html (last visited Sept. 3, 2007) (discussing the use of foreign and international law in recent U.S. Supreme Court opinions).
14. See Oona A. Hathaway & Ariel N. Lavinbuk, Rationalism and Revisionism in International Law, 119 HARV. L. REV. 1404,1415-20 (2006) (reviewing The Limits of International Law, by Jack L. Goldsmith & Eric A. Posner, and discussing the underlying premise that states do, and should continue to, act in their own self-interest when complying with international law).
15. Moreover, when the countries affected are democratic, the critics raise the specter of not just a shift of power from local authorities to distant decisionmakers, but a shift of power from democratic domestic institutions to unelected, undemocratic, and unaccountable international organizations, New Sovereigntists, of course, are not the only ones who are worried about whether international institutions are sufficiently democratic and accountable. Even the strongest advocates of international law recognize the possible problems. See, e.g., Ruth W. Grant & Robert O. Keohane, Accountability and Abuses of Power in World Politics, 99 AM. POL. SCI. REV. 29 (2005) (addressing the problem of accountability at the global level and suggesting methods for improvement). A three-year ongoing project in Global Administrative Law centered at NYU also aims to address such problems.
16. See Institute for International Law and Justice, Welcome to the Website of the Global International Law Project, http://www.iilj.org/ global_adlaw/ (last visited Sept. 3, 2007).
17. Kenneth W. Abbott & Duncan Snidal, Hard and Soft Law in International Governance, 54 INT'L ORG. 421, 436-37 (2000). Shortly before Abbott and Snidal, Andrew Moravcsik used the term to refer to "the surrender of national discretion" in a discussion of states' decisions to accede to the European Convention on Human Rights.
18. Andrew Moravcsik, The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe, 54 INT'L ORG. 217, 227 (2000).
19. The earliest use of the phrase seems to be in a discussion of the European Recovery Program by Robert Pahre, Multilateral Cooperation in an Iterated Prisoner's Dilemma, 38 J. CONLICT RESOL. 326, 349 (1994).
20. There is the separate question whether nonconsensual international law - customary law and jus cogens - imposes sovereignty costs. Because such international law never involves delegations of authority as defined in Curtis A. Bradley & Judith Kelley, The Concept of International Delegation, 71 LAW & CONTEMP. PROBS. 1 (Winter 2008), the topic is put to one side in this paper.
21. Id. at 3-4. To be considered a delegation, it is not necessary that the actions of the international body be formally binding on states as a matter of international law-that is instead a factor to be considered in assessing the degree of delegation.
22. Id. at 4.
23. If one includes delegation to private entities in the definition of "international delegation," then it is possible to have an international delegation without an international agreement (consider the International Accounting Standard Board mentioned in id. at 8). However, the vast majority of international delegations (and the most significant ones substantively) are created by multilateral international agreements.
24. Dec. 10, 1948, U.N. Doc. A/810 (Dec. 12, 1948), available at http://www.unhchr.ch/udhr/lang/eng.pdf (last visited Sept. 3, 2007).
25. A substantial number of bilateral international agreements are binding but involve no delegation (extradition agreements, for example), but most multilateral agreements that are intended to be binding do include at least some minimal delegation. The Convention on the Prevention and Punishment of the Crime of Genocide is largely intended to set standards of conduct, but like most binding multilateral agreements it does include an explicit delegation: Disputes between the Contracting Parties relating to the interpretation, application or fulfillment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute. United Nations Convention on the Prevention and Punishment of the Crime of Genocide art. 9, approved Dec. 9, 1948, 78 U.N.T.S. 277, available at http://www.unhchr.ch/html/menu3fb/p_genoci.htm (last visited Sept. 3, 2007). (Notably, large numbers of ratifying states opted out of this delegation by entering reservations indicating either, that they did not accept this provision or that their express consent would be required to submit a dispute under the Genocide Convention to the International Court of Justice.)
26. Whether international law that does not involve a delegation of authority to an international institution gives rise to sovereignty costs depends in part on precisely how one defines sovereignty costs. If one accepts Abbott and Snidal's definition of sovereignty costs as encompassing everything from "simple differences in outcome on particular issues" to "fundamental encroachments on state sovereignty," then any international law that is effective (that is, that modifies state behavior in some way) necessarily imposes a sovereignty cost.
27. Abbott & Snidal, supra note 9, at 436. Yet taken literally at least, this seems an excessively broad definition, for it means that any event or action that leads to a different outcome imposes a cost on state sovereignty. As discussed below, more widely accepted today is a definition that emphasizes reductions in state autonomy.
28. See, e.g., Bradley & Kelley, supra note 10, at 27 (citing recent definitions). By this definition, international agreements that do not include a delegation would be highly unlikely to entail sovereignty costs.
29. This definition builds on, but is distinct from, classical conceptions of sovereignty. In the classical view, a sovereign must not only be the highest and final authority, but its authority must also be absolute, unlimited, and exclusive. 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 40 (1902) ("[T]here... must be in all of [the several forms of government] a supreme, irresistible, absolute, uncontrolled authority, in which the jura summi imperii, or the rights of sovereignty, reside.").
30. Hobbes and Rousseau shared this view. THOMAS HOBBES, LEVIATHAN 155 (E.P. Dutton & Co. 1950) (1881);
31. JEAN-JACQUES ROUSSEAU, THE SOCIAL CONTRACT 69 (Maurice Cranston trans., Penguin Books 1969) (1762). Few scholars today would agree that sovereignty must be absolute and unlimited, and that absolute and unlimited sovereignty is not an element of the definition offered here.
32. See, e.g., CHRISTOPHER W. MORRIS, AN ESSAY ON THE MODERN STATE 177-93 (1998).
33. A has sovereignty over B if A has the authority to govern the behavior of B, for example, by making rules that constrain B's conduct. See THOMAS POGGE, 103 ETHICS 48, 57 (1992); Pogge begins his description of state sovereignty by considering sovereignty as a two-place relation: A is sovereign over B if and only if (1) A is a governmental body or officer..., and (2) B are persons, and (3) A has unsupervised and irrevocable authority over B (a) to lay down rules constraining their conduct; or (b) to judge their compliance with rules; or (c) to enforce rules against them through preemption, prevention, or punishments; or (d) to act in their behalf vis-à-vis other agencies ... or persons....
34. Id.
35. To be sovereign, the state has to be not just an authority, but the highest authority. See, e.g., MORRIS, supra note 16, at 177 ("An authority may be ultimate if it is the highest authority."). Sovereignty thus requires a "hierarchy of authorities," id., with one superseding all others. In the United States, for example, the federal government is supreme over state governments, because on matters within its purview its rules and judgments supersede those of the states. It must, moreover, be final. The sovereign's decision must not be subject to appeal, for if it were, the authority to which the decision is appealed would be higher than the sovereign itself.
36. See F.H. HINSLEY, SOVEREIGNTY 1 (2d ed., Cambridge Univ. Press 1986) (1966) (defining sovereignty as the "final and absolute authority in the political community"). Stephen Krasner expresses a similar idea when he notes that Westphalian sovereignty rests on "the exclusion of external actors from [domestic] authority structures." SOVEREIGNTY: ORGANIZED HYPOCRISY 4 (1999).
37. Territoriality is a distinctive characteristic of modern state sovereignty. It means that each state is associated with a defined territorial space and each territorial space is associated with a particular governing state authority. Of course, the appropriate governing authority and precise territorial bounds may be contested. For example, both the states of India and Pakistan claim sovereignty over the territory of Kashmir. Indeed, the very fact that this is a significant source of conflict serves to illustrate how usual it is to have unsettled authority over any particular territorial space.
38. THE CONCEPT OF LAW 217 (1st ed. 1961).
39. Bradley & Kelley, supra note 10, at 3.
40. S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, at 18 (Sept. 7).
41. See United Nations Vienna Convention on the Law of Treaties arts. 11-17, May 23, 1969, 1155. U.N.T.S. 331 (entered into force Jan. 27, 1980), available at http://untreaty.un.org/ilc/texts/ instruments/english/conventions/1_1_1969.pdf (last visited Sept. 3, 2007) [hereinafter Vienna Convention on the Law of Treatiesc].
42. To take just one example, when a state joins the World Trade Organization, it retains the power to withdraw from the Organization. General Agreement on Tariffs and Trade - Multilateral Trade Negotiations (The Uruguay Round): Agreement Establishing the Multilateral Trade Organization [World Trade Organization] art. XV, ¶ 1, Dec. 15, 1993, 33 I.L.M. 13 (1994) (hereinafter Agreement Establishing the WTO]. In these circumstances, it is wrong to say that member states have suffered from a meaningful loss of state sovereignty, for states retain the power to revoke that authority.
43. Bradley & Kelley, supra note 10, at 2-4.
44. Were this article focused on international law more broadly, it would need to include a fifth category: When consent is not required. Customary international law does not rest on express state consent as does international treaty law. I am aware of no delegations, however, that are made through customary international law.
45. For more on the broader topic of the voluntary nature of treaties, see Oona A. Hathaway, Between Power and Principle, 72 U. CHI. L. REV. 469 (2005).
46. See also Vienna Convention on the Law of Treaties art. 34 ("A treaty does not create either obligations or rights for a third State without its consent."); RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES pt. I, introductory note, at 18 (1987) ("Modern international law is rooted in acceptance by states which constitute the system.");
47. LOUIS HENKIN, INTERNATIONAL LAW: POLITICS AND VALUES 28 (1995) ("For treaties, consent is essential. No treaty, old or new, whatever its character or subject, is binding on a state unless it has consented to it.")
48. See WILHELM G. GREWE, THE EPOCHS OF INTERNATIONAL LAW 196 (Michael Byers trans., Walter de Gruyter 2000) (discussing treaty-making among soverigns in the Middle Ages). In the earliest years of international law, treaties were considered to be private contracts between the signatory princes. The princes represented only themselves and not an abstract "state." Hence the law that applied to private contracts applied to treaties.
49. Christian Baldus, The Roman Peace Treaty, in PEACE TREATIES AND INTERNATIONAL LAW IN EUROPEAN HISTORY: FROM THE LATE MIDDLE AGES TO WORLD WAR ONE 103, 113-17 (Randall Lesaffer ed., 2004). This continued until around 1540, when the concept of the internal sovereignty of the state apparently began to emerge.
50. In my view, state behavior is the end result of a contest for control by multiple political actors within the state, mediated by domestic political institutions. This perspective is most closely identified with what political scientists would call "liberal institutionalism." For overviews of this approach from the political-science and legal perspectives, respectively, see Andrew Moravcsik, Taking Preferences Seriously: A Liberal Theory of International Politics, 51 INT'L ORG. 513 (1997);
51. Anne-Marie Slaughter, A Liberal Theory of International Law, 94 AM. SOC'Y INT'L L. PROC. 240 (2000);
52. see also, Peter Alexis Gourevitch, Squaring the Circle: The Domestic Sources of International Cooperation, 50 INT'L ORG. 349 (1996).
53. See Vienna Convention on the Law of Treaties arts. 11-17.
54. U.S. CONST. art. II, §2, cl. 2. Compared to the ratification processes specified in every existing national constitution in the world, the U.S. system - in which the House is involved in making federal statutes but not in treaty-making - is unusual.
55. See Oona A. Hathaway, The Domestic Political Foundations of International Law: Codebook (2007) (unpublished manuscript, on file with author); see also PARLIAMENTARY PARTICIPATION IN THE MAKING AND OPERATION OF TREATIES (Stefan A. Riesenfeld & Frederick M. Abbott eds., 1994).
56. This is all the more distinctive because the United States also makes international treaties part of the supreme law of the land, meaning that they are treated as self-executing unless specified otherwise. For more on self-executing treaties, see Bradley, supra note 6 (considering the constitutional implications of U.S international delegation);
57. Jordan J. Paust, Self-Executing Treaties, 82 AM. J. INT'L L. 760 (1988) (discussing the legal effects of international treaties on individual constitutional rights);
58. David Sloss, Non-Self-Executing Treaties: Exposing a Constitutional Fallacy, 36 U.C. DAVIS L. REV. 1 (2002) (analyzing the modern doctrine of non-self-executing treaties and the balance between conflicting rules of law and the separation of powers principle);
59. Carlos Manuel Vazquez, Treaty-Based Rights and Remedies of Individuals, 92 COLUM. L. REV. 1082 (1992) (surveying the rights of individuals under international treaties).
60. Indeed, the United States is unusual among democracies in its exclusion of part of the legislative apparatus from the decision to ratify treaties. In the vast majority of states, the process used to ratify treaties is functionally equivalent to that used for passing legislation. Hathaway, supra note 31.
61. Congressional-executive agreements, by contrast, require a majority vote in each house of Congress, just as does ordinary federal legislation (hence, they avoid many of the problems outlined here). There are questions, however, about whether congressional-executive agreements are an adequate constitutional substitute for the advice and consent of the Senate required by the Constitution. The debate is discussed in depth in BRUCE ACKERMAN & DAVID GOLOVE, IS NAFTA CONSTITUTIONAL? (1995).
62. See James Raymond Vreeland, Why Do Governments and the IMF Enter Into Agreements? Statistically Selected Cases, 24 INT'L POL. SCI. REV. 321 (2003) (arguing that as the number of veto players increases, executives are more likely to turn to IMF agreements);
63. James R. Vreeland, Institutional Determinants of IMF Agreements (UCLA Int'l Inst., Global Fellows Working Papers (2004)), available at http://repositories.cdlib.org/cgi/ viewcontent.cgi?article=1004&context=international (last visited Sept. 3, 2007) (contending that governments that are more constrained domestically often seek to use IMF agreements to push through unpopular policies that would otherwise be impossible to achieve).
64. For related arguments, see MARGARET E. KECK & KATHRYN SIKKINK, ACTIVISTS BEYOND BORDERS 13 (1988) (putting forward a "boomerang" model of international politics);
65. Luigi Spaventa, Two Letters of Intent, in IMF CONDITIONALITY 441, 463 (John Williamson ed., 1983) (arguing that IMF demands allowed the Italian government and Italian unions to force their constituencies to accept unpopular, but necessary, fiscal programs to help turn around Italy's economic recession in the mid-1970s)
66. Peter Gourevitch, The Second Image Reversed: The International Sources of Domestic Politics, 32 INT'L ORG. 881, 911 (1978) ("The international system is not only a consequence of domestic politics and structures but a cause of them.");
67. Moravcsik, supra note 9, at 226 ("[I]nternational institutional commitments, like domestic institutional commitments, are self-interested means of 'locking in' particular preferred domestic policies... in the face of future political uncertainty.");
68. Putnam, supra note 5, at 457 ("[Governments exploit] IMF pressure to facilitate policy moves that [are] otherwise infeasible internally.").
69. In many cases, states may enter Reservations, Understandings, and Declarations (RUDs) - which, in effect, permit states a limited line-item veto. See Vienna Convention on the Law of Treaties art. 19;
70. ANTHONY AUST, MODERN TREATY LAW AND PRACTICE 100-30 (2000). RUDs are subject to abuse, as they are much less visible and less well understood than treaty ratification. Hence a state may ratify a treaty in order to obtain the benefits of membership, and then issue RUDs that make that commitment unenforceable.
71. In fact, the United States did just that in the cases of the United Nations International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976), available at http://www.ohchr.org/english/law/pdf/ccpr.pdf,
72. and the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 (entered into force June 26, 1987), available at http://www.ohchr.org/english/law/pdf/cat.pdf. To avoid these problems, some multilateral agreements prohibit or restrict the use of RUDs.
73. See, e.g., Agreement Establishing the World Trade Organization art. XVI, para. 5 ("No reservations may be made in respect of any provisions of this Agreement. Reservations... of the provisions of the Multilateral Trade Agreements may only be made to the extent provided for in those Agreements.").
74. There are two other potentially important differences between international and domestic lawmaking. First, in international lawmaking, the president generally has the origination power, whereas in domestic lawmaking, the origination power generally rests with the legislative branch. Second, some states permit executives to enter into congressional-executive agreements or sole executive agreements with other states - agreements that in some cases extend beyond the usual scope for unilateral executive authority and hence give the executive greater lawmaking power than in the domestic context.
75. For example, Steve Charnovitz argues that "trade negotiations are... used to effectuate domestic policy reform," specifically citing the example of the Agreement on Trade-Related Aspects of Intellectual Property (TRIPs agreement). See Steve Charnovitz, Patent Harmonization under World Trade Rules, 1 J. WORLD INTELL. PROP. 127, 133 (1998).
76. For a detailed argument for this change, see Oona A. Hathaway, Treaties' End: The Past, Present, and Future of International Lawmaking in the United States, 117 YALE L.J. (forthcoming 2008) (on file with author).
77. See also ACKERMAN & GOLOVE, supra note 34;
78. U.S. Department of State, Circular 175 Procedure, available at http://www.state.gov/s/l/treaty/c175/ (last visited Aug. 31, 2007) (discussing the Circular 175 Procedure, which "refers to regulations developed by the State Department to ensure the proper exercise of the treaty-making power").
79. As discussed in brief below, one might argue that such restrictions on domestic authority are a good thing, either because they allow more efficient outcomes or because they protect other values. This might be particularly true if the domestic government is not democratic and hence does not pursue the citizenry's interests.
80. See Randall Lesaffer, The Grotian Tradition Revisited: Change and Continuity in the History of International Law, in 73 THE BRITISH YEAR BOOK OF INTERNATIONAL LAW 103, 118 (2002) (discussing how successors were bound to treaties in the Spanish Age of international law, circa 1450-1648).
81. See, e.g., D. P. O'CONNELL, STATE SUCCESSION IN MUNICIPAL LAW AND INTERNATIONAL LAW 3-8 (1967) (discussing the relationship between state succession and continuity of states);
82. Oscar Schachter, State Succession: The Once and Future Law, 33 VA. J. INT'L L. 253 (1993) (arguing that new governments should continue to abide by treaties signed by old governments).
83. O'CONNELL, supra note 42, at 3-8. Even then the new states may choose to accept all the legal obligations of the original parent state, as, for example, Serbia did in the wake of the breakup of Yugoslavia. There are, however, some exceptions to the general rule that a change in state personality dissolves prior commitments. For example, Menno T. Kamminga states that [t]he International Committee of the Red Cross (ICRC) has also long taken the view that a successor state is automatically bound by the international humanitarian instruments that were binding on the predecessor state, unless the successor state has made a specific declaration to the contrary. In practice, however, the ICRC has encouraged successor States to formally confirm their adherence to these instruments and, where successor States insisted upon acceding rather than succeeding to the Geneva Conventions and their Protocols, the ICRC has not objected.
84. State Succession in Respect of Human Right Treaties, 7 EUR. J. INT'L L. 469, 473-74 (1996). Similarly, the Human Rights Committee, which monitors the International Covenant on Civil and Political Rights, has declared that "all the peoples within the territory of a former State party to the Covenant remained entitled to the guarantees of the Covenant."
85. UN Human Rights Comm., Human Rights Comm. Annual Report to the U.N. Gen. Assembly, ¶ 49, UN Doc. A/49/40 (1994), available at http://www1.umn.edu/humanrts/hrcommittee/hrc-annual94.htm (last visited Sept. 3, 2007).
86. For more on succession in the context of human-rights treaties, see Kamminga, supra.
87. Author's calculations, based on the dataset described in Hathaway, supra note 31.
88. More specifically, forty-nine countries experienced at least a three-point, one-year improvement in the ten-point "democracy" scale from Polity. There were 172 instances in which states' democracy scores increased by at least one point - often for several years in a row. Author's calculations, based on the Polity Dataset.
89. LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 10 (2d ed. 1988).
90. See discussion supra Part III.A. Tribe argues that this remains an important puzzle of constitutional theory, but suggests that the "outlines of an answer" can come from studying impulse control. He cites a study that suggests that even pigeons are capable of acting to "bind their 'own future freedom of choice' in order to reap the rewards of acting in ways that would elude them under the pressures of the moment."
91. Id. at 11.
92. Jon Elster considers similar questions and arrives at a similar conclusion. He argues that "inconsistent time preferences" arise in part from "weakness of will"-that is, the tendency to privilege the present over the future. This weakness of will leads individuals to act in ways that later give rise to regret. A rational response to such irrational impulses, Elster argues, is for an individual to seek to bind its later self - that is, to adopt the "Ulysses strategy." JON ELSTER, ULYSSES AND THE SIRENS: STUDIES IN RATIONALITY AND IRRATIONALITY 65-76 (1979).
93. The majority of treaties include provisions for withdrawal in the treaty text itself. Those that do not are generally considered to be governed by Article 56 of the Vienna Convention on the Law of Treaties, which applies to treaties completed after 1980. For more on treaty exit and the related decision to "unsign" a treaty, see Laurence R. Helfer, Exiting Treaties, 91 VA. L. REV. 1579 (2005);
94. Edward T. Swaine, Unsigning, 55 STAN. L. REV. 2061 (2002 . Bradley and Kelley discuss the related issue of "permanence" of the delegation. Bradley & Kelley, supra note 10, at 20-24.
95. Helfer, examining the United Nations Office of Legal Affairs Handbook of Final Clauses, identifies six types of denunciation and withdrawal clauses: (1) treaties that may be denounced at any time; (2) treaties that preclude denunciation for a fixed number of years, calculated either from the date the agreement enters into force or from the date of ratification by the state; (3) treaties that permit denunciation only at fixed time intervals; (4) treaties that may be denounced only on a single occasion, identified either by time period or upon the occurrence of a particular event; (5) treaties whose denunciation occurs automatically upon the state's ratification of a subsequently-negotiated agreement; and (6) treaties that are silent as to denunciation or withdrawal. Supra note 48, at 1597.
96. Todd S. Purdum, A Wider Atlantic: Europe Sees a Grotesque U.S., N.Y. TIMES, May 16,2002, at A3.
97. There is no comprehensive data currently available on the number of treaties that include the various types of exit provisions. In the human-rights area, Larry Helfer identifies only four treaties that do not contain denunciation clauses. See id. at 1642 n.172.
98. Helfer also notes that "[t]reaties that expressly preclude unilateral exit are uncommon." Id. at 1593 n.31.
99. See Kelvin Widdows, The Unilateral Denunciation of Treaties Containing No Denunciation Clause, in 53 BRITISH YEARBOOK OF INTERNATIONAL LAW 83, 99-100 (1982) (discussing the lack of withdrawal provisions in the UN Charter and stating that only one country has made a partial attempt to withdraw);
100. Egon Schwelb, Withdrawal from the United Nations: The Indonesian Intermezzo, 61 AM. J. INT'L L. 661, 671 (1967) (discussing Indonesia's withdrawal attempt and stating, "Members of the United Nations have the right to withdraw... but only in... exceptional circumstances");
101. Joseph H.H. Weiler, Alternatives to Withdrawal from an International Organization: The Case of the European Economic Community, 20 ISRAEL L. REV. 282 (1985) (discussing withdrawal from the European Economic Community).
102. One of the best modern discussions of the topic is Laurence R. Helfer, supra note 48. For earlier works on the topic, see Widdows, supra note 52;
103. Schwelb, supra note 52, at 671;
104. Weiler, supra note 52.
105. Vienna Convention on the Law of Treaties art. 62. Specifically, the Vienna Convention states, A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless: (a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and (b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty.
106. Id.
107. This remains a matter of debate. See Helfer, supra note 48,
108. and Widdows, supra note 52.
109. Informal agreements tend to be more subject to renegotiation after the fact than are formal written agreements. See, e.g., Charles Lipson, Why Are Some International Agreements Informal?, 45 INT'L ORG. 495 (1991) (discussing informal agreements in general). That very flexibility, however, can be a drawback as well, for all the reasons discussed above.
110. Latin phrase meaning "agreements must be kept." BLACK'S LAW DICTIONARY 1140 (8th ed. 2004).
111. See, e.g., Medellin v. Dretke, 544 U.S. 660, 677 (2005) (per curiam) ("[W]herever the Convention, which has been in continuous force since 1969, conflicts with this subsequently enacted statute, the statute must govern.");
112. Breard v. Greene, 523 U.S. 371, 376 (1998) (per curiam) ("We have held 'that an Act of Congress... is on a full parity with a treaty, and that when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null.'" (quoting Reid v. Covert, 354 U.S. 1, 18 (1957) (plurality opinion)));
113. Whitney v. Robertson, 124 U.S. 190, 194 (1888) (stating that when an act of legislation conflicts with the self-executing provisions of a treaty, "the one last in date will control the other");
114. Curtis Bradley & Lori Fisler Damrosch, Medellin v. Dretke: Federalism and International Law, 43 COLUM. J. TRANSNAT'L L. 667, 680 (2004-2005) (calling the doctrine of the relationship between statutes and treaties that gives subsequently enacted statutes precedence "well-settled");
115. Julian G. Ku, Treaties as Laws: A Defense of the Last-in-Time Rule for Treaties and Federal Statutes, 80 IND. L.J. 319 (2005) (arguing that federal statutes should govern when enacted after the adoption of a treaty). The enactment of subsequent contrary legislation may very well leave the country in violation of international law, but that law would be unenforceable in domestic courts. In order for the treaty to no longer be binding according to international law, the country must formally withdraw from it.
116. For more on treaty withdrawal, see sources cited supra note 53.
117. This concept of unintended consequences is related to principal-agent slack, which has been extensively explored by political scientists and legal scholars in the areas of legislative and judicial decisionmaking. See, e.g., Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1206 (1990-1991);
118. Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1432-37 (1986-1987);
119. William R. Dougan & Michael C. Munger, The Rationality of Ideology, 32 J.L. & ECON. 119 (1989);
120. Joseph P. Kalt & Mark A. Zupan, The Apparent Ideological Behavior of Legislators: Testing for Principal-Agent Slack in Political Institutions, 33 J.L. & ECON. 103 (1990);
121. Joseph P. Kalt & Mark A. Zupan, Capture and Ideology in the Economic Theory of Politics, 74 AM. ECON. REV. 279 (1984);
122. John McArthur & Stephen V. Marks, Constituent Interest vs. Legislator Ideology: The Role of Political Opportunity Cost, 26 ECON. INQUIRY 461 (1988).
123. Alec Stone Sweet and Thomas Brunell write, "It cannot be stressed enough that the Court initiated and sustained this process in the absence of express authorization of the Treaty, and despite the declared opposition of Member State governments." Constructing a Supranational Constitution, in THE JUDICIAL CONSTRUCTION OF EUROPE 45, 66 (2004). Some disagree with this interpretation of events.
124. See, e.g., ANDREW MORAVCSIK, THE CHOICE FOR EUROPE: SOCIAL PURPOSE AND STATES POWER FROM MESSINA TO MAASTRICHT 472 (1998) (arguing that "European integration was a series of rational adaptations by national leaders to constraints and opportunities stemming from the evolution of an interdependent world economy, the relative power of states in the international system, and the potential for international institutions to bolster the credibility of interstate commitments").
125. For more on the European transformation, see also KAREN J. ALTER, ESTABLISHING THE SUPREMACY OF EUROPEAN LAW: THE MAKING OF AN INTERNATIONAL RULE OF LAW IN EUROPE (2001).
126. Curtis Bradley, Unratified Treaty Amendments and Constitutional Process 1 (Feb. 6, 2006) (unpublished workshop paper), available at http://www.law.duke.edu/publiclaw/pdf/workshop06sp/bradleyc.pdf.
127. United National Environment Programme, Montreal Protocol on Substances that Deplete the Ozone Layer art. 2 ¶ 9(d), art. 10 ¶ 9, available at http://ozone.unep.org/pdfs/Montreal-Protocol2000.pdf.
128. The unratified treaty amendments can also raise the type of problem discussed in the first subsection above ("Consent by Whom"). Bradley argues that unratified treaty amendments that allow the executive greater, sole control over the amendment process arguably delegate unconstitutional powers to the executive. More important, for the purposes of this paper, they create a lawmaking process that differs in important ways from the usual domestic lawmaking process. Bradley, supra note 61.
129. There is an ongoing debate as to whether a state that refuses to change its behavior as required by the Dispute Settlement Understanding and faces sanctions as a consequence is acting in compliance with the treaty. It is not necessary to resolve that question here. It is enough to notice that the WTO does not provide for any further method of compulsion. See Steve Charnovitz, Recent Developments and Scholarship on WTO Enforcement Remedies, in INTER-GOVERNMENTAL TRADE DISPUTE SETTLEMENT: MULTILATERAL AND REGIONAL APPROACHES 151 (Julio Lacarte & Jaime Granados, eds. 2004) (discussing recent enforcement mechanisms employed by the WTO).
130. Compare Warren F. Schwartz & Alan O. Sykes, The Economic Structure of Renegotiation and Dispute Resolution in the World Trade Organization, 31 J. LEGAL STUD. 179 (2002) (arguing that the WTO is a liability-rule system that promotes efficient breach),
131. with John H. Jackson, International Law Status of WTO Dispute Settlement Reports: Obligation to Comply or Option to "Buy Out"?, 98 AM. J. INT'L L. 109 (2004) (arguing that the WTO imposes a property rule with an obligation to perform)
132. and Joost Pauwelyn, How Strongly Should We Protect International Law? 2 (Mar. 14, 2006) (unpublished manuscript) ("[I]nternational law is best protected on a sliding scale between strict inalienability and simple liability."), available at http://eprints.law.duke.edu/archive/00001309/01/ How_strongly_should_we_protect_and_enforce_IL.pdf.
133. Put another way, state parties delegate to the WTO the power to decide whether they can use trade measures in response to violations of the WTO agreement.
134. See, e.g., Judith L. Goldstein & Richard H. Steinberg, Negotiate or Litigate?: Effects of WTO Jusicial Delegation on U.S. Trade Politics, 71 LAW & CONTEMP. PROBS. 257 (Winter 2008) (arguing that members are often bound by decisions of the WTO's DSB, even when these decisions further policies that would not otherwise be supported in multilateral negotiations).
135. Article IX to the Agreement Establishing the World Trade Organization provides, "Except as otherwise provided, where a decision cannot be arrived at by consensus, the matter at issue shall be decided by voting." ¶ 1. Consensus is defined in the following way: "The body concerned shall be deemed to have decided by consensus on a matter submitted for its consideration, if no Member, present at the meeting where the decision is taken, formally objects to the proposed decision." Art. IX ¶ 1 n.1.
136. The Agreement Establishing the World Trade Organization provides that most amendments be made by a two-thirds vote: Amendments to provisions of this Agreement... of a nature that would alter the rights and obligations of the Members, shall take effect for the Members that have accepted them upon acceptance by two-thirds of the Members and thereafter for each other Member upon acceptance by it. The Ministerial Conference may decide by a three-fourths majority of the Members that any amendment made effective under this paragraph is of such a nature that any Member which has not accepted it... shall be free to withdraw from the WTO or to remain a Member with the consent of the Ministerial Conference. Art. X ¶ 3.
137. See, e.g., Richard H. Steinberg, In the Shadow of Law or Power? Consensus-Based Bargaining and Outcomes in the GATT/WTO, 56 INT'L ORG. 339 (2002) (analyzing the, decisionmaking processes in the GATT/WTO).
138. For a detailed account of the process of changing WTO law, see Hunter Nottage & Thomas Sebastian, Giving Legal Effect to the Results of WTO Trade Negotiations: An Analysis of the Methods of Changing WTO Law, 9 J INT'L ECON. L. 989 (2006).
139. James Fallows, After Centuries of Japanese Isolation, A Fateful Meeting of East and West, SMITHSONIAN, July 1994, at 20. Commodore Perry's entrance into Tokyo Bay was such dramatic act of diplomacy that it later became the centerpiece of Stephen Sondheim's musical Pacific Overtures.
140. Commodore Perry eventually went ashore for a tense meeting with Japanese officials, where he delivered a letter from President Millard Fillmore and promised to come back for an answer the following year with an even larger force. In February 1954, Commodore Perry made good on his promise, leading eight ships back into Tokyo Bay to begin negotiating. W.G. BEASLEY, THE RISE OF MODERN JAPAN 28-29 (1995).
141. For a thorough discussion of Commodore Perry's efforts to open Japan, see PETER Boom WILEY WITH KOROGI ICHIRO, YANKEES IN THE LAND OF THE GODS: COMMODORE PERRY AND THE OPENING OF JAPAN (1990), especially chapters 9 & 12.
142. For Commodore Perry's account, see THE JAPAN EXPEDITION, 1852-1854: THE PERSONAL JOURNAL OF COMMODORE MATTHEW C. PERRY (Roger Pineau ed., 1968).
143. Entered into force in 1980, the Vienna Convention on fhe Law of Treaties provides that a treaty is void if its conclusion has been procured by the "threat or use of force in violation of the principles of international law." Art. 52. Hence today the Treaty of Peace and Amity between the United States and Japan, signed as it was under the shadow of a small armada of gunboats, would (and should) be void.
144. See Agreement Regarding the Surrender of Persons to the International Criminal Court, U.S.- Swaz., May 10, 2006, State Dep't No. 06-253, 2006 WL 4464971;
145. Press Statement, United States Department of State, U.S. Signs 100th Article 98 Agreement (May 3, 2005), available at http://www.state.gov/r/pa/prs/ps/2005/45573.htm (last visited Sept. 1, 2007).
146. UN Doc. A/CONF.183/9 (July 1998), reprinted in 37 I.L.M. 999 (1998), available at http://www.un.org/law/icc/statute/english/ rome§atute(e).pdf.
147. Under the American Servicemembers' Protection Act (ASPA), countries that belong to the ICC are not eligible for U.S. military assistance unless they are explicitly exempted in the ASPA legislation, the President waives the requirement for national-security reasons, or the President waives the requirement because the countries have concluded an Article 98 agreement with the United States. 22 U.S.C. §7424 (b)-(c) (2000). Similarly, under the "Nethercutt Amendment," originally passed as part of the Fiscal Year 2005 Appropriations Bill, countries that belong to the ICC are not eligible for U.S. economic support funds unless they are statutorily exempted, the President waives the requirement for national-security reasons, or the President waives the requirement because the countries have concluded an Article 98 agreement with the United States. 2005 Consolidated Appropriations Act, Pub. L. No. 108-47,117 Stat. 848.
148. World Trade Organization, Members and Observers, http://www.wto.org/ english/thewto_e/whatis_e/tif_e/org6_e.htm (last visited Nov. 27, 2007) (showing 151 members).
149. Lloyd Gruber, building on the work of Peter Bachrach and Morton Baratz, among others, makes perhaps the most sustained argument along these lines in his book, RULING THE WORLD: POWER POLITICS AND THE RISE OF-SUPRANATIONAL INSTITUTIONS 95-167 (2000). Gruber's claim that Mexico did not join NAFTA because it expected the agreement to make it better off than it would have been absent an agreement between Canada and the United States is highly contestable as an empirical matter. However, the accuracy of the example on this point does not matter as much as does the broader dynamic that it aims to illustrate.
150. Robert Nozick, Coercion, in PHILOSOPHY, SCIENCE, AND METHOD: ESSAYS IN HONOR OF ERNEST NAGEL 440 (Sidney Morgenbesser, Patrick Suppes & Morton White eds., 1969). Some think, however, that this view is too restrictive and that conditional offers might also be considered coercive.
151. Id. at 447.
152. Whether the recipient is made worse off than it ought to be is in turn determined by examining whether the proposer proposes to violate the recipient's rights if the proposal is denied. ALAN WERTHEIMER, COERCION 217-21 (1987).
153. Some international agreements might be seen not simply as offers but as what some have called "throffers"-proposals that make one better off than normal under one conditional, but worse off than normal under the alternative conditional. The term was coined by Hillel Steiner, Individual Liberty, PROC. OF THE ARISTOTELIAN SOC'Y, at 33, 39 (1975), and the concept was discussed more recently in MICHAEL TAYLOR, COMMUNITY, ANARCHY, AND LIBERTY 12 (1982).
154. See also David Zimmerman, Coercive Wage Offers, 10 PHIL. & PUB. AFF. 121 (1981) (examining the phenomenon of "coercive offers"). Whether a throffer is coercive or not depends again on whether the proposal constitutes a threat.
155. RESTATEMENT (SECOND) OF CONTRACTS § 175(1) (1979) ("If a party's manifestation' of assent is induced by an improper threat by the other party that leaves the victim no reasonable alternative, the contract is voidable by the victim."). Of course, the exact bounds of this principle are far from clear.
156. See John P. Dawson, Economic Duress: An Essay in Perspective, 45 MICH. L. REV. 253, 289 (1947) ("The history of generalization in this field offers no great encouragement for those who seek to summarize results in a single formula.");
157. Oren Bar-dill & Omri Ben-Shahar, Credible Coercion 33-38 (Univ. of Mich. John M. Olin Ctr. for Law and Econ. Research Paper No. 04-005, Mar. 3, 2004), available at http://ssrn.com/abstract=512903.
158. A proposal need not involve military pressure to constitute a threat. Today, national economies are highly intertwined and interdependent, hence the threat of coordinated economic sanctions can carry force just as surely as does a gun.
159. Many would not consider it a delegation at all, for the term "delegation" is generally reserved for voluntary acts by the delegating state.
160. Many have questioned whether this dichotomy is real or specious. Some argue that the two are indistinguishable in practice while others contend that one cannot exist without the other. (For example, it is commonly argued that preservation of negative liberty requires positive action by government to prevent some from taking the liberty of others.)
161. This, in turn, Berlin worried, opened the door to totalitarianism. He says, Once I take this view, I am in a position to ignore the actual wishes of men or societies, to bully, oppress, torture in the name, and on behalf, of their "real" selves, in the secure knowledge that whatever is the true goal of man... must be identical with his freedom. ISAIAH BERLIN, LIBERTY 180 (1969). Philip Pettit, among others, attempts to overcome this problem by proposing a third conception of freedom, which he and others dub "republican freedom."
162. See PHILIP PETTIT, REPUBLICANISM (1997) (arguing for a theory of freedom as "non-domination," with domination distinct in important ways from interference).
163. ELSTER, supra note 47, at 37.
164. This school of thought has been variously recast as "modified structural realism," "intergovernmental institutionalism," "neoliberal institutionalism," and "new institutionalism." See OONA A. HATHAWAY & HAROLD JONGJU KOH, FOUNDATIONS OF INTERNATIONAL LAW AND POLITICS 49-78 (2005).
165. Early on, "regimes" were defined as "principles, norms, rules and decisionmaking procedures around which actors' expectations converge in a given area,"
166. STEPHEN D. KRASNER, Structural Causes and Regime Consequences. Regimes as Intervening Variables, in INTERNATIONAL REGIMES 2 (Stephen D. Krasner ed., 1983), and as "sets of governing arrangements" that include "networks of rules, norms, and procedures that regularize behavior and control its effects,"
167. ROBERT O. KEOHANE & JOSEPH S. NYE, POWER AND INTERDEPENDENCE: WORLD POLITICS IN TRANSITION 19 (1977). They required neither formal institutions nor enforcement powers, and hence much of the ensuing literature on regimes focused on informal cooperation and largely ignored traditional international organizations and international law. Yet the most recent work in this vein has adopted a broader view of institutions that encompasses law as well as international legal institutions. In this view, legal institutions, like other institutions, are seen as "rational, negotiated responses to the problems international actors face." Barbara Koremenos et al., The Rational Design of International Institutions, 55 INT'L ORG. 761, 768 (2001) (emphasis omitted).
168. Ulrich Beek, The Terrorist Threat: World Risk Society Revisited, 19 THEORY, CULTURE & SOCIETY 39, 48-49 (2002).
169. See also ABRAM CHAYES & ANTONIA CHAYES, THE NEW SOVEREIGNTY (1995) (discussing the negotiation, adaptation, and implementation of modern international treaties).
170. Moravcsik, supra note 9, at 226 ("[I]nternational institutional commitments, like domestic institutional commitments, are self-interested means of 'locking in' particular preferred domestic policies... in the face of future political uncertainty.").
171. The International Air Services Transit Agreement, in conjunction, with many bilateral agreements and the Convention on International Civil Aviation, permits civilian aircraft to fly across the territories of state parties without obtaining prior permission. See International Air Service Transit Agreement (1944), available at http://dgca.nic.in/int-conv/Chap-II.pdf
172. Convention on International Civil Aviation (known as the Chicago Convention) (9th ed. 2006) (1944), available at http://www.icao.int/icaonet/dcs/7300.html (follow appropriate links for original and subsequent editions) (last visited Sept. 2, 2007).
173. The Convention for the Unification of Certain Rules for International Carriage by Air (1999), available at http://www.condonlaw.com/ attachments/montreal_1999.pdf, standardizes and internationalizes the various liability regimes under which air carriers operate.
174. The 1886 Convention on Technical Uniformity provides for uniform construction and maintenance of rolling stock and loading of railway wagons among member states. See International Law: 100 Ways It Shapes Our Lives (American Society of International Law, Washington, D.C.) 2006, at 14, available at http://www.asil.org/pdfs/ asil_100_ways_05.pdf (listing one hundred ways international law affects the daily lives of citizens).
175. The 1949 United Nations Convention on Road Traffic, Sept. 19, 1949, 125 U.N.T.S. 22, available at http://untreaty.un.org/ENGLISH/bible/ englishinternetbible/PartI/chapterXI/subchapB/treaty1.asp (last visited Sept. 3, 2007), allows citizens of member states to obtain an international driver's license.
176. The 1968 UN Convention on Road Traffic, Nov. 8, 1968, available at http://www.geocities.com/bkkriders/law/unc/roadl968.pdf, facilitates and encourages the use of universal traffic rules, road signs, and signals in member states.
177. For example, the Agreement Establishing the WTO, and the North American Free Trade Agreement (NAFTA), U.S.-Can.-Mex., Dec. 17, 1992, 32 J.L.M. 289 (1993).
178. This is one purpose of bilateral tax treaties, of which there are hundreds. See, e.g., Andreas F. Lowenfeld, Investment Agreements and International Law, 42 COLUM. J. TRANSNAT'L L. 123 (2003) (evaluating the failure of efforts to negotiate multilateral investment treaties and observing that thousands of bilateral investment treaties are in force).
179. There are hundreds of bilateral investment treaties between states. See, e.g., Reuven S., Avi-Yonah, International Tax as International Law, 57 TAX L. REV. 483 (2004) (comparing international law with international tax law).
180. See, e.g., United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397, available at http://www.un.org/Depts/ los/convention_agreements/texts/unclos/unclos_e.pdf; Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 993 U.N.T.S. 243, available at http://www.eites.org/eng/ disc/text.shtml#texttop (last visited Sept. 2, 2007);
181. International Convention for the Regulation of Whaling, Dec. 2, 1946, 161 U.N.T.S. 72, available at http://www.iwcoffice.org/_documents/ commission/convention.pdf.
182. This section, which is less applicable to international delegations than to international law more generally, is included in order to establish the point - not addressed by any other paper in this symposium - that sovereign consent is not the sole source of international legal legitimacy. This is, of course, only the beginning of an argument that deserves more complete treatment than can be offered here.
183. See, e.g., Louis Henkin, Human Rights and State "Sovereignty," 25 GA. J. INT'L & COMP. L. 31, 31 (1995-1996) (suggesting that a half-century of human rights has been the cause, or the result, or both, of changes in international law, the international system, and the spread of "constitutionalism," and stating that those changes have undermined assumptions about state sovereignty);
184. W. Michael Reisman, Sovereignty and Human Rights in Contemporary International Law, 84 AM. J. INT'L L. 866, 869 (1990) (stating that contemporary international law protects the people's, as opposed to the states', sovereignty, and that internal human rights no longer fall completely within the jurisdiction of an individual state, but instead are the concern of the international community);
185. Kofi Annan, Two Concepts of Sovereignty, ECONOMIST, Sept. 18, 1999, at 49, available at http://www.un.org/News/ossg/sg/ stories/kaecon.html (last visited Sept. 3, 2007) (declaring that state sovereignty is being redefined and states are being recast as "instruments at the service of their people": "the aim [of the UN Charter] is to protect individual human beings, not... those who abuse them").
186. For two views on whether rights language should be used in discussions of economic issues, see, for example, the debate between David Ellwood, Jeffery Frankel & Amartya Sen, Human Rights Debate: Is the Language of Rights Useful in the Fight Against Poverty? (Harvard Univ. Instit. of Pol., JFK Jr. Form Video and Podcast Archive, Feb. 11, 2005), available at http://ksgaccman.harvard.edu/iop/ events∀rum_listview.asp?Type=PS (scroll down to "2/11/ 2005" and, choose Real Player link) (last visited Sept. 2, 2007) (addressing the utility of human rights language in discussions on poverty);
187. see also Christiana Ochoa, Advaancing the Language of Human Rights in a Global Economic Order: An Analysis of a Discourse, 23 B.C. THIRD WORLD L.J. 57 (2003) (discussing how human rights and international economic discourses intersect).
188. The origins of the nation-state were long traced to the Treaty of Westphalia in 1648. Today, however, most scholars agree it is, in fact, the invention of nineteenth century Europe. See, e.g., Andreas Osiander, Sovereignty, International Relations, and the Westphalian Myth, 55 INT'L ORG. 251 (2001) ("[Westphalia isc] a product of the nineteenth- and twentieth-century fixation on the concept of sovereignty.").
189. UN Charter art. 2, para. 4, available at http://www.un.org/ aboutun/charter/chapter1.htm (last visited Sept. 3, 2007) ("All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.").
190. This view of the Charter as a covenant that conditions membership in the community is not without precedent. It is, indeed, reflected in the recent report of the UN High-Level Panel on Threats, Challenges and Change. The panel wrote, "In signing the Charter of the United Nations, States not only benefit from the privileges of sovereignty but also accept its responsibilities." It continued, "Whatever perceptions may have prevailed when the Westphalian system first gave rise to the notion of State sovereignty, today it clearly carries with it the obligation of a State to protect the welfare of its own peoples and meet its obligations to the wider international community." United Nations, Secretary-General's High-Level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility (2004), available at http://www.un.org/ secureworld/report2.pdf.
191. MICHAEL ROSS FOWLER & JULIE MARIE BUNCK, LAW, POWER, AND THE SOVEREIGN STATE 12 (1995).
192. Article 92 of the UN Charter incorporates the Statute of the International Court of Justice. See UN Charter art. 92, para. 4, available at http://www.un.org/aboutun/charter/chapter1.htm (last visited Sept. 3, 2007) ("The International Court of Justice shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed Statute, which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charter.");
193. id. art. 93, para. 1 ("All Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice."). The Statute of the International Court of Justice, in turn, provides that the Court, "whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply ... international custom, as evidence of a general practice accepted as law." Art. 38 §§ 1, 1(b) 1945. This article of the statute is generally regarded as a definitive statement of the proper sources of international law.