Monitoring compliance with unratified treaties: The ILO experience

Law and Contemporary Problems

Volumn 71, Issue 1, 2008, Pages 181-217

  Helfer, Laurence R ^a  

^a VANDERBILT UNIVERSITY LAW SCHOOL   (United States)

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EID: 48949101248     PISSN: 00239186     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (186)

1. Curtis A. Bradley & Judith G. Kelley, The Concept of International Delegation, 71 LAW & CONTEMP. PROBS. 1 (Winter 2008).
2. Id. at 4.
3. See id. at 33 (encouraging scholars to give greater attention to "soft delegation[sc]").
4. To their credit, Bradley and Kelley refer to the powers and functions of the ILO at several points in their article.
5. See id. at 13 (mentioning the ILO's investigative powers);
6. id. at 15, 29 (mentioning the ILO's agenda-setting authority);
7. id. at 32 n.111 (referring to the ILO as an international institution that has expanded its authority over time).
8. KIMBERLY ANN ELLIOTT & RICHARD B. FREEMAN, CAN LABOR STANDARDS IMPROVE UNDER GLOBALIZATION? 93 (2003).
9. Id. at 95, 102;
10. see also Sean Cooney, Testing Times for the ILO: Institutional Reform for the New International Political Economy, 20 COMP. LAB. L. & POVY 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);
11. 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") (internal citation omitted).
12. For descriptions of this monitoring power, see JOSÉ E. ALVAREZ, INTERNATIONAL ORGANIZATIONS AS LAW-MAKERS 331 (2005) (opining that the ILO engages in treaty-making "with strings attached");
13. Frederic L. Kirgis, Jr., Specialized Law-Making Processes, in UNITED NATIONS LEGAL ORDER 109, 116, 115 (Oscar Schachter & Christopher C. Joyner eds., 1995) (characterizing the ILO as "a super-treaty system" and observing that "a state-merely by being a member of the ILO - incurs significant responsibilities, and subjects it self to peer pressure, regarding not only conventions it ratifies, but also those of which it disapproves").
14. See infra Part IV.
15. See infra Part II.C (discussing the Committee on Freedom of Association).
16. For a recent series of essays applying principal-agent theory to IOs, see DELEGATION AND AGENCY IN INTERNATIONAL ORGANIZATIONS (Darren Hawkins et al. eds., 2006).
17. For a different perspective that considers IO officials and staff as autonomous actors, see MICHAEL BARNETT & MARTHA FINNENMORE, RULES FOR THE WORLD: INTERNATIONAL ORGANIZATIONS IN GLOBAL POLITICS 2-3, 158 (2004) (arguing that "IOs are active agents in their own change," agents that have a propensity toward dysfunctional, even pathological, behavior").
18. As Bradley and Kelley make clear, the actors who serve as agents include not only IO officials and staff but also IO member states acting collectively. See Bradley & Kelley, supra note 1, at 6-9.
19. See Darren G. Hawkins et al., Delegation Under Anarchy: States, International Organizations, and Principal-Agent Theory, in DELEGATION AND AGENCY IN INTERNATIONAL ORGANIZATIONS, supra note 10, at 3, 27-37.
20. Vienna Convention on the Law of Treaties art. 34, May 23, 1969, 1155 U.N.T.S. 331;
21. see also 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.").
22. Oona A. Hathaway, International Delegation and State Sovereignty, 71 LAW & CONTEMP. PROBS. 123 (Winter 2008).
23. But see id. at 124-43 (questioning whether formal consent is sufficient to legitimate states' adherence to international legal rules).
24. For a detailed interdisciplinary analysis of the ILO's rich and varied history, see Laurence R. Helfer, Understanding Change in International Organizations: Globalization and Innovation in the ILO, 59 VAND. L. REV. 649 (2006).
25. See Bradley & Kelley, supra note 1, at 12-14.
26. Constitution of the International Labour Organization pmbl., June 28, 1919, 49 Stat. 2712, 225 C.T.I.A. 373 [hereinafter 1919 ILO CONSTITUTION].
27. Helfer, supra note 16, at 673-74.
28. See ANTONY ALCOCK, HISTORY OF THE INTERNATIONAL LABOUR ORGANIZATION 16-17 (1971).
29. See INT'L LABOUR OFFICE, ILO, THE INTERNATIONAL LABOUR ORGANISATION: THE FIRST DECADE 68-69 (1931) [hereinafter ILO, THE FIRST DECADE].
30. "Representatives of governments, organized labor, and employers... participate in the work of the ILO in a ratio of 2-1-1, respectively. Worker and employer delegates.... form separate caucuses and often vote with their respective groups rather than with their governments." Helfer, supra note 16, at 651.
31. ILO, THE FIRST DECADE, supra note 21, at 69. In practice, the ILO has nearly always adopted conventions by large majorities of governments, workers, and employer delegates.
32. See also TORSTEN LANDELIUS, WORKERS, EMPLOYERS AND GOVERNMENTS: A COMPARATIVE STUDY OF DELEGATIONS AND GROUPS AT THE INTERNATIONAL LABOUR CONFERENCE, 1919-1964 66-91 (1965).
33. 1919 ILO CONSTITUTION, supra note 18, art. 405.
34. See also Bradley & Kelly, supra note 1, at 15 (analyzing this as an example of agenda-setting authority).
35. 1919 ILO CONSTITUTION, supra note 18, art. 405.
36. See E. A. LANDY, THE EFFECTIVENESS OF INTERNATIONAL SUPERVISION: THIRTY YEARS OF I.L.O. EXPERIENCE 12 (1966).
37. J.F. McMahon, The Legislative Techniques of the International Labour Organization, 41 BRIT. Y.B. INT'L L. 1, 88 (1965-66) (quoting Report of the Director, Proceedings of the International Labour Conference, 3d Sess. 57 (1921)).
38. See C. Wilfred Jenks, The Interpretation of International Labour Conventions by the International Labour Office, 20 BRIT. Y.B. INT'L L. 132 (1939).
39. ILO CONSTITUTION, supra note 18, art. 423.
40. ALVAREZ, supra note 7, at 226 ("The ILO secretariat, without explicit constitutional warrant, [became] the principal organ for rendering these effectively conclusive but formally 'advisory' interpretations.").
41. McMahon, supra note 27, at 100.
42. See ERNST B. HAAS, BEYOND THE NATION-STATE: FUNCTIONALISM AND INTERNATIONAL ORGANIZATION 253 (1964) [hereinafter HAAS, BEYOND THE NATION STATE] (characterizing the ILO's. "indirect practice of studying the impact of unratified Conventions" as an "accretion[] in institutional autonomy and responsibility"); ILO, THE FIRST DECADE, supra note 21, at 267-76, 310-12, 317-20 (reviewing efforts by the ILO Office to overcome obstacles to ratification of conventions and to gather information on the implementation of recommendations).
43. Constitution of the International Labour Organization art. 19, § 5 cl. (e) (as amended Oct. 9, 1946), 62 Stat. 3485, 15 U.N.T.S. 35 [hereinafter 1946 ILO CONSTITUTION] (requiring nonratifying member states to "report... at appropriate intervals... the position of its law and practice in regard to the matters dealt with in the Convention, showing the extent to which effect has been given, or is proposed to be given, to any of the provisions of the Convention by legislation, administrative action, collective agreement or otherwise and stating the difficulties which prevent or delay the ratification of such Convention").
44. Id. at art. 19, § 6 cl. (d) (requiring member states to "report ... at appropriate intervals... the position of the law and practice in their country in regard to the matters dealt with in the Recommendation, showing the extent to which effect has been given, or is proposed to be given, to the provisions of the Recommendation and such modifications of these provisions as it has been found or may be found necessary to make in adopting or applying them").
45. See INT'L LABOUR OFFICE, ILO, OFFICIAL BULLETIN, vol. XXVII Constitutional Questions 179, 420, 464-66 (Dec. 15, 1945) [hereinafter ILO, Constitutional Questions ].
46. See id. 181, 537, 553, 650, 714, 718, 947.
47. Id. at 470 (amendments proposed by Sir John Forbes Watson).
48. Concerns that United States membership in the ILO would upset the balance between federal and state power were first expressed at the time of the organization's founding, and they persisted after the United States joined the organization in 1934. See Pitman B. Potter, Inhibitions Upon the Treaty-Making Power of the United States, 28 AM. J. INT'L L. 456 (1934).
49. HAAS, BEYOND THE NATION-STATE, supra note 32, at 545-46 n.73 (stating that, because of "the high level of American labor standards," the United States "gladly agreed to the suggestion that all member states submit periodic reports on the degree of implementation of [ILO treatiesc] irrespective of formal ratification"). The United States did, however, successfully defeat a proposal for a constitutional provision obligating member states periodically to resubmit unratified conventions to their respective national legislatures. Id.;
50. see also ILO, Constitutional Questions, supra note 35, at 759 (statement of Sir John Forbes Watson that "[sc]uch a country as the United States did not under the present system receive its due credit for the advanced character of its social conditions, and [that] some way of formally recognising these advanced standards was necessary").
51. HAAS, BEYOND THE NATION-STATE, supra note 32, at 264.
52. See id. at 265, tbl.5.
53. ILO CONSTITUTION, supra note 33, art. 19, § 5 cl. (b).
54. Int'l Labour Office, ILO, Memorandum Concerning the Obligation to Submit Conventions and Recommendations to the Competent Authorities (1959), Appl. 195 (Rev. 1), quoted in McMahon, supra note 27, at 18.
55. McMahon, supra note 27, at 18.
56. See Bradley & Kelley, supra note 1, at 14-15.
57. McMahon, supra note 27, at 15.
58. ILO CONSTITUTION, supra note 33, art. 19, § 5 cl. (e).
59. INT'L LABOUR OFFICE, ILO, THE IMPACT OF INTERNATIONAL LABOUR CONVENTIONS AND RECOMMENDATIONS 11-26 (1976);
60. see also E.A. Landy, The Influence of International Labour Standards: Possibilities and Performance, 101 INT'L LAB. REV. 555, 563 (1970).
61. Landy, supra note 48, at 563.
62. Id. at 564 (quoting an Australian govermnent official).
63. HAAS, BEYOND TBE NATION-STATE, supra note 32, at 265.
64. See id. at 381-83.
65. See Int'l Labour Office, ILO, Election of the Officers of the Governing Body for 2000-01, GB.278/1 (June 2000), available at www.ilo.org/public/english/standards/relm/gb/docs/gb278/pdf/gb1pdf.
66. The ten "states of chief industrial importance" are Belgium, Brazil, Canada, France, Germany, India, Italy, Japan, the United Kingdom, and the United States. Id.
67. See HAAS, BEYOND THE NATION-STATE, supra note 32, at 381-83;
68. ERNST B. HAAS, HUMAN RIGHTS AND INTERNATIONAL ACTION: THE CASE OF FREEDOM OF ASSOCIATION 25-30 (1970) [hereinafter HAAS, HUMAN RIGHTS AND INTERNATIONAL ACTION];
69. C. WILFRED JENKS, THE INTERNATIONAL PROTECTION OF TRADE UNION FREEDOM 187-200 (George W. Keeton & George Schwarzenberger eds., 1957).
70. DAVID TAJGMAN & KAREN CURTIS, INT'L LABOUR OFFICE, ILO, FREEDOM OF ASSOCIATION: A USER'S GUIDE ix (2000), available at http://www.ilo.org/public/english/standards/norm/download/ resources/freedomassociation.pdf.
71. HAAS, BEYOND THE NATION-STATE, supra note 32, at 383.
72. Id.
73. Nicolas Valticos, Les méthodes de la protection internationale de la liberté syndicale, in 144 RECUEIL DES COURS, COLLECTED COURSES OF THE HAGUE ACADEMY OF INTERNATIONAL LAW 77(1975).
74. HAAS, BEYOND THE NATION-STATE, supra note 32, at 383.
75. ILO, Freedom of Association and Protection of the Right to Organise Convention, ILOLEX No. C087 (July 9, 1948)
76. [hereinafter ILO, Freedom of Association and Protection of the Right to Organise Convention], available at http://www.ilo.org/ilolex/ cgi-lex/convde.pl?C087 (last visited Feb. 1, 2008);
77. ILO, Right to Organize and Collective Bargaining Convention, ILOLEX No. C098 (July 1, 1949)
78. [hereinafter ILO, Right to Organize and Collective Bargaining Convention], available at http://www.ilo.org/ilolex/cgi-tex/ convde.pl?C098 (last visited Feb. 1, 2008).
79. HAAS, BEYOND THE NATION-STATE, supra note 32, at 407-08;
80. see also Philip Alston, 'Core Labour Standards' and the Transformation of the International Labour Rights Regime, 15 EUR. J. INT'L L. 457, 481 (2004) (stating that the CFA examined "allegations in situations in which the government concerned had neither ratified [the relevant conventionsc] nor given its voluntary agreement to the ILO to consider the matter").
81. ILO CONSTITUTION, supra note 33, pmbl. (recognizing "the principle of freedom of association").
82. N. VALTICOS & G. VON POTOBSKY, INTERNATIONAL LABOUR LAW 295 (1995);
83. see also HAAS, supra note 32, at 407-08 (stating that "the ILO Constitution['sc] capacity to generate binding norms" provided the authority for the CFA to review complaints against all ILO member states).
84. HAAS, HUMAN RIGHTS AND INTERNATIONAL ACTION, supra note 54, at 27.
85. See ERIC GRAVEL ET AL., THE COMMITTEE ON FREEDOM OF ASSOCIATION: ITS IMPACT OVER 50 YEARS 10-11 (2002).
86. See JOHN P. HUMPHREY, HUMAN RIGHTS & THE UNITED NATIONS: A GREAT ADVENTURE 83-84 (1984);
87. Virginia A. Leary, Lessons from the Experience of the International Labour Organisation, in THE UNITED NATIONS AND HUMAN RIGHTS: A CRITICAL APPRAISAL 580, 602-03 (Philip Alston ed., 1992).
88. HAAS, BEYOND THE NATION-STATE, supra note 32, at 415-16.
89. Id. at 383.
90. For a more detailed discussion of this crisis, see Helfer, supra note 16, at 705-07.
91. Brian A. Langille, Core Labour Rights - The True Story (Reply to Alston), 16 EUR. J. INT'L L. 409, 421 (2005).
92. ILO, ILO Declaration on Fundamental Principles and Rights at Work, ILOLEX No. 261998 (June 19, 1998) [hereinafter 1998 Declaration], available at http://www.ilo.org/public/english/standards/relm/ilc/ ilc86/com-dtxt.htm (last visited Feb. 1, 2008).
93. The eight fundamental conventions are: ILO, Freedom of Association and Protection of the Right to Organise Convention, supra note 60;
94. ILO, Right to Organize and Collective Bargaining Convention, supra note 60;
95. ILO, Forced Labour Convention, ILOLEX No. C029 (June 28, 1930), available at http://www.ilo.org/ilolex/cgi-lex/convde.pl?C029 (last visited Feb. 1, 2008);
96. ILO, Abolition of Forced Labour Convention, ILOLEX No. C105 (June 25, 1957), available at http://www.ilo.org/ilolex/cgi-lex/ convde.pl?Cl05 (last visited Feb. 1, 2008);
97. ILO, Equal Remuneration Convention, ILOLEX No. C100 (June 29, 1951), available at http://www.ilo.org/ilolex/cgi- lex/ convde.pl?C100 (last visited Feb. 1, 2008)
98. ILO, Discrimination (Employment and Occupation) Convention, ILOLEX No. C111 (June 25, 1958), available at http://www.ilo.org/ilolex/ cgi-lex/convde.pl?C111 (last visited Feb. 1, 2008)
99. ILO, Minimum Age Convention, ILOLEX No. C138 (June 26, 1973), available at http://www.ilo.org/ilolex/cgi-lex/convde.pl?C138 (last visited Feb. 1, 2008);
100. ILO, Worst Forms of Child Labour Convention, ILOLEX No. C182 (June 17, 1999), available at http://www.ilo.org/ilolex/cgi-lex/ convde.pl?Cl82 (last visited Feb. 1, 2008).
101. 1998 Declaration, supra note 71, ¶ 2. The operative paragraph of the Declaration provides that "all Members, even if they have not ratified the Conventions in question, have an obligation arising from the very fact of membership in the Organization, to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights which are the subject of those Conventions."
102. Id.
103. See Brian A. Langille, The ILO and the New Economy: Recent Developments, 15 INT'L J. COMP. LAB. L. & IND. REL. 229, 244-45 (1999).
104. 1998 Declaration, supra note 71, ¶ 2.
105. ILO, Follow-up to the Declaration, ILOLEX No. 261998 (June 19, 1998), available at http://www.ilo.org/public/english/standards/ relm/itc/ilc86/com-dtxt.htm (last visited Feb. 1, 2008).
106. See 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, 444-46 (2005).
107. See 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 DEVELOPMENT AND HUMAN RIGHTS 35, 45 (Linos-Alexander Sicilianos & Maria Gavouneli eds., 2001).
108. Maupain, supra note 77, at 445.
109. See Cooney, supra note 6, at 379-80 (stating that although the Declaration "looks promising as a new focus of ILO activities," it suffers from "several shortcomings");
110. Patrick Macklem, Labour Law Beyond Borders, 5 J. INT'L ECON. L. 605, 619 (2002) ("Although [the Declaration] addresses some of the deficiencies traditionally associated with international labour standards as a mode of regulating transnational corporate activity, it reproduces others in new forms.");
111. Andrew J. Samet, Doha and Global Labor Standards: The Agenda Item That Wasn't, 37 INT'L LAW. 753, 755 (2003) (criticizing the Declaration's follow-up mechanism as "limited by the ILO's failure to develop a politically potent process to debate and prioritize" violations);
112. Leah F. Vosko, The Shifting Role of the ILO and the Struggle for Global Social Justice, 2 GLOBAL SOC. POL'Y 19, 29 (2002) (arguing that the Declaration is "unlikely to alter fundamentally the corporate/state-centric power relations characterizing the ILO historically").
113. Langille, supra note 74, at 249;
114. see also Francis Maupain, International Labor Organization Recommendations and Similar Instruments, in COMMITMENT AND COMPLIANCE: THE ROLE OF NON-BINDING NORMS IN THE INTERNATIONAL LEGAL SYSTEM 372, 388 (Dinah Shelton ed., 2000) (stating that the Declaration "initially met with great suspicion and even open hostility from some governments").
115. Langille, supra note 74, at 248.
116. Id. at 231. Industrialized countries and workers organizations were, on the whole, supporters of the Declaration, whereas developing states and some employer groups opposed its adoption.
117. Id. 4t 249.
118. Id. at 249.
119. In fact, the ILO constitution does not make reference to all of the fundamental labor rights that the Declaration incorporates. See Maupain, supra note 78, at 43 (noting the differences between the objectives mentioned by the constitution and those endorsed by the Declaration). In the decade since the Declaration's adoption, however, no state has challenged its constitutional pedigree.
120. 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, 365 (2002) (analyzing the Uruguay Round of trade negotiations leading to the creation of the WTO and demonstrating that "GATT/WTO decision- making rules have allowed adherence to both the instrumental reality of asymmetrical power and the logic of appropriateness of sovereign equality").
121. GOVERNING BODY, ILO, Follow- Upon the Discussion of the Report of the Director-General to the 85th Session (1997) of the International Labour Conference - (a) Inclusion on the Agenda of the 86th Session (1998) of the International Labour Conference of an Item Concerning a Declaration on Workers' Fundamental Rights, GB.270/3/1 (November 1997), available at http://www.ilo.org/public/english/ standards/relm/gb/does/gb270/gb-3-1.htm (last visited Feb. 1, 2008).
122. Enhancing the precision of international rules increases the "legalization" of those rules and thus increases sovereignty costs. See Kenneth W. Abbott et al., The Concept of Legalization, 54 INT'L ORG. 401, 401-06, 412-15 (2000).
123. Enhanced legalization also occurs when previously underenforced international rules become subject to new monitoring mechanisms. See Laurence R. Helfer, Overlegalizing Human Rights: International Relations Theory and the Commonwealth Caribbean Backlash Against Human Rights Regimes, 102 COLUM. L. REV. 1832, 1855-58 (2002).
124. For an analysis of the first decade of ILO monitoring of fundamental labor rights under the Declaration's authority, see Int'l Lab. Office, ILO, Review of Annual Reports Under the Follow-up to the ILO Declaration on Fundamental Principles and Rights at Work, GB.295/5, 295th Sess. (Mar. 2006), available at http://www.ilo.org/dyn/ declaris/DECLARATIONWEB.DOWNLOAD_BLOB?Var_DocumentID=5939 (last visited Feb. 1, 2008).
125. Maupain, supra note 78, at 44.
126. Alston, supra note 61, at 459 (noting, but not endorsing, this viewpoint).
127. Langille, supra note 74, at 232 (describing, but ultimately rejecting, this view).
128. Id. at 233-34.
129. See Janet R. Bellace, The ILO Declaration of Fundamental Principles and Rights at Work, 17 INT'L J. COMP. LAB. L. & INDUS. REL. 269, 279 (2001).
130. See Alston, supra note 61, at 495-506.
131. See id. at 470-71.
132. See Langille, supra note 74, at 247.
133. See Helfer, supra note 16, at 711 (reviewing claims of the Declaration's proponents and its critics and citing additional authorities);
134. Vosko, supra note 80, at 28-32 (same).
135. Bradley & Kelley, supra note 1, at 10. The number of such delegations increases if they are defined to include the authority to amend regulatory schedules or annexes attached to treaties.
136. See id. at 14;
137. Bernhard Boockmann & Paul W. Thurner, Flexibility Provisions in Multilateral Environmental Treaties, 6 INT'L ENVTL. AGREEMENTS 113, 117-25 (2006) (surveying amendment procedures in 400 environmental agreements, protocols, and annexes).
138. For a comprehensive recent discussion of these issues that incorporates numerous examples and citations to additional authorities, see ALVAREZ, supra note 7, at 217-57.
139. See Kirgis, supra note 7, at 116-17, 145;
140. Jutta Brunnée, International Legislation, in THE MAX PLANCK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW (Rüdiger Wolfrum ed.) (forthcoming 2008).
141. United Nations Convention on the Law of the Sea arts. 207-12, Dec. 10, 1982, 1833 U.N.T.S.
142. ALVAREZ, supra note 7, at 220.
143. Id.
144. Id. at 220-21.
145. Interpretation of the American Declaration of the Rights and Duties of Man Within the Framework of Article 64 of the American Convention on Human Rights, Advisory Opinion OC-10/89, 1990 Inter-Am. Ct. H.R. (ser. A), No. 10 (July 14, 1989).
146. See Douglass Cassel, Inter-American Human Rights Law, Soft and Hard, in COMMITMENT AND COMPLIANCE, supra note 81, at 393, 397-98.
147. The United States has repeatedly and vociferously objected to the de facto legally binding status of the American Declaration. See id. at 397.
148. E.g., ALVAREZ, supra note 7, at 222.
149. Bradley & Kelley, supra note 1, at 17-25.
150. Barbara Koremenos, When, What, and Why do States Choose to Delegate?,71 LAW & CONTEMP. PROBS. 151 (Winter 2008).
151. See id.
152. Id. at 176-79;
153. see also Laurence R. Helfer, Exiting Treaties, 91 VA. L. REV. 1579 (2005) (analyzing tradeoffs between treaty denunciation clauses and other treaty risk-management provisions).
154. Karen J. Alter, Delegating Sovereignty to International Courts: Self-Binding vs. Other-Binding Delegation, 71 LAW & CONTEMP. PROBS. 62 (Winter 2008).
155. Michael Tierney's contribution to this symposium makes this point most forcefully. See Michael J. Tierney, Delegation Success and Policy Failure: Collective Delegation and the Search for Iraqi Weapons of Mass Destruction, 71 LAW & CONTEMP. PROBS. 286 (Winter 2008) ("If we want to explain (or judge) the choices of states, the behavior of IOs, or the outcomes within and around international institutions, then a focus on the formal decision rules within IOs and official mandates issued by member states is an underappreciated research strategy.").
156. Michael Tierney cautions that, because "informal rules and norms are more difficult to identify, ex ante, analysts will disagree on the substance of informal rules purportedly guiding behavior in any given case." Under these conditions, he warns, "'testing' hypotheses can degenerate into spin control, cherry-picked cases, and literary criticism." Id. I disagree with Tierney's statement to the extent that it includes longstanding, unofficial practices that have no formal pedigree, in an IO's founding charter - such as the ILO Office's nearly ninety-year history of interpreting international labor treaties. In addition, the lack of agreement on informal rules (to the extent it exists) reflects the fact that scholars often ignore informal IO practices even where they have measurable real-world effects. Giving more systematic attention to these issues rather than ignoring them can help to distinguish informal practices that are theoretically consequential from those that are not.
157. See Steinberg, supra note 86, at 350-67 (analyzing how powerful nations exploited the GATT/WTO's formal negotiating rules to capture asymmetric gains at the expense of weaker states).
158. Barbara Koremenos, If Only Half of International Agreements Have Dispute Resolution Provisions, Which Half Needs Explaining?, 36 J. LEGAL STUD. 189, 194-207 (2007).
159. See Anne Peters, International Dispute Settlement: A Network of Cooperational Duties, 14 EUR. J. INT'L L. 1, 20-21 (2003) (noting that reservations to dispute-settlement clauses are pervasive, but arguing against their validity).
160. See Laurence R. Helfer & Anne-Marie Slaughter, Toward a Theory of Effective Supranational Adjudication, 107 YALE L.J. 273, 285-86 (1997) ("[sc]tates are reluctant to sue one another. The decision to invoke the jurisdiction of an international tribunal, even where it is available in the context of a specific dispute, inevitably involves a host of political and legal considerations.");
161. Laurence R. Helfer, Adjudicating Copyright Claims Under the TRIPs Agreement: The Case for a European Human Rights Analogy, 39 HARV. INT'L L.J. 357, 361 & n.14 (1998) (explaining that "no state has ever challenged another's laws under the... cumbersome dispute settlement mechanisms" contained in several multilateral intellectual-property agreements).
162. See Bradley & Kelley, supra note 1, at 31 (discussing changes in sovereignty costs resulting from recent International Court of Justice decisions interpreting the Vienna Convention on Consular Relations).
163. Hathaway, supra note 14, at 123-33.
164. See Michael Barnett & Liv Coleman, Designing Police: Interpol and the Study of Change in International Organizations, 49 INT'L STUD. Q. 593, 593-94,(2005) ("We know a lot about the conditions under which states will establish IOs, why states will design them the way they do, and some of the conditions under which states will grant autonomy to IOs.").
165. 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).
166. For a more detailed treatment of these theories, see Helfer, supra note 16, at 657-71.
167. Kirgis, supra note 7, at 119;
168. see also Helfer, supra note 16, at 720-26 (considering the ILO's relevance to international law and politics).
169. See supra Parts I & III.A. Kirgis recognizes that selected features of the ILO's distinctive powers could be replicated in other IOs.
170. See Kirgis, supra note 7, at 119.
171. 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);
172. George W. Downs et al., Managing the Evolution of Multilateralism, 52 INT'L ORG. 397, 398 (1998) (same).
173. See Ernst-Ulrich Petersmann, Constitutionalism and International Organizations, 17 NW. J. INT'L L. & BUS. 398, 442 (1996-97) (characterizing agreements relating to services and intellectual property as part of "global package deals" negotiated within the GATT/WTO).
174. See Brunnée, supra note 101, ¶¶ 11-34 (reviewing numerous examples).
175. See George W. Downs et al., Is the Good News About Compliance Good News About Cooperation?, 50 INT'L ORG. 379, 383 (1996);
176. James McCall Smith, The Politics of Dispute Settlement Design: Explaining Legalism in Regional Trade Pacts, 54 INT'L ORG. 137, 148 (2000) (stating that "the more ambitious the level of proposed integration, the more willing political leaders should be to endorse legalistic dispute settlement").
177. The protection of international labor standards has been modeled using two collaboration games - the Prisoners' Dilemma and the Stag Hunt. 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, 91-92 (2003);
178. Alan Hyde, A Game- Theory Account and Defence of Transnational Labour Standards - A Preliminary Look at the Problem, in GLOBALIZATION AND THE FUTURE OF LABOUR LAW 143, 146-51 (John D.R. Craig & S. Michael Lynk eds., 2006).
179. See supra Part II.A.
180. Kirgis, supra note 7, at 142.
181. See supra Part II.D.
182. See Int'l Lab. Office, Comm. on Legal Issues and Int'l Lab. Standards, Ratification and Promotion of Fundamental ILO Conventions, GB.297/LILS/6, at 1 (Nov. 2006), available at http://www.ilo.org/public/english/standards/relm/gb/docs/gb297/pdf/ lils-6.pdf.
183. Hyde, supra note 132, at 162 n.25.
184. Langille, supra note 132, at 93;
185. see also Hyde, supra note 132, at 162 n.25 (citing numerous empirical studies).
186. Langille, supra note 132, at 96.