The myth of international delegation

California Law Review

Volumn 96, Issue 6, 2008, Pages 1693-1723

  Guzman, Andrew T ^a   Landsidle, Jennifer ^b  

^a UNIVERSITY OF CALIFORNIA   (United States)

^b U S DEPARTMENT OF STATE   (United States)

Author keywords

[No Author keywords available]

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EID: 58049159944     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (160)

1. The proposed change may include some set of transfers to compensate those that would otherwise be made worse off.
2. "Today, nary a thought is given when international organizations, like the U.N., attempt to enforce their myopic vision of a one-world government upon America, while trumping our Constitution in the process. Moreover, many in our own government willfully or ignorantly cede constitutionally guaranteed rights and freedoms to the international community." Rep. Bob Barr, Protecting National Sovereignty in an Era of International Meddling: An Increasingly Difficult Task, 39 HARV. J. ON LEGIS. 299, 323-24 (2002).
3. "[The American people] see the U.N. aspiring to establish itself as the central authority of a new international order of global laws and global government." Sen. Jesse Helms, Address Before the United Nations Security Council (Jan. 20, 2000), at http://www.jessehelmscenter.org/jessehelms/speeches. asp (last visited September 8, 2008).
4. "[F]or virtually every area of public policy, there is a Globalist proposal, consistent with the overall objective of reducing individual nation-state autonomy, particularly that of the United States." John R. Bolton, Should We Take Global Governance Seriously?, 1 CHI. J. INT'L L. 205, 220 (2000).
5. Indeed, international engagement is often better described as increasing the ability of a state to exercise its sovereignty. See David Epstein & Sharyn O'Halloran, Sovereignty and Delegation in International Organizations, 70 LAW & CONTEMP. PROBS. 77, 91 (2008) ("Barring coercion or extreme exit costs, though, participation in international organizations is voluntary and therefore should be seen as a natural extension of member states' rights and an exercise of their sovereignty . . . ."); Oona A. Hathaway, International Delegation and State Sovereignty, 70 LAW & CONTEMP. PROBS. 115, 122 (2008) ("[S]tates remain free from external control in any meaningful sense, for they are controlled by the decisions of the international body only so long as they agree to be. Once their agreement ceases, the control over them ceases as well."); Kal Raustiala, Rethinking the Sovereignty Debate in International Economic Law, 6 J. INT'L ECON. L. 841 (2003) (exploring the various theories that institutions such as the WTO strengthen rather than threaten sovereignty).
6. Though even the extent of effective delegation in this case is debated. See Alexander Thompson, Screening Power: International Organizations as Informative Agents, in DELEGATION AND AGENCY IN INTERNATIONAL ORGANIZATIONS (Darren G. Hawkins, David A. Lake, Daniel L. Nielson & Michael J. Tierney, eds., 2006).
7. See JEREMY RABKINC, WHY SOVEREIGNTY MATTERS 34 (1998) ("Global governance, then, does not threaten to replace the American government, but it does threaten to distract and confuse and, ultimately, to weaken it."); Herbert W. Titus, Senior Legal Adviser, The Liberty Committee, Constitutional Analysis of H.R. 1146-The American Sovereignty Restoration Act of 2001, http://www.gunowners.org/ fs0102.htm (stating that the United States should follow the advice of George Washington, "who cautioned his countrymen to 'steer clear of permanent alliances with any portion of the foreign world,' lest the nation's security and liberties be compromised by endless and overriding international commitments.").
8. One final point of clarification is appropriate. There is debate within the United States about the appropriate scope of delegation of authority among the various branches of the government. How much power should the President have, for example, to commit the state internationally? These questions, though important, are not the subject of this Essay.
9. Another challenge this essay faces is that it is difficult to demonstrate a negative. It is difficult to show that there is virtually no delegation of substantive legislative or decision-making authority because one can always be accused of overlooking some example. We address this problem by considering what strike us as the most important examples of delegation and by turning to the writings of those who are concerned about delegation to see what examples they have in mind.
10. Darren G. Hawkins, David A. Lake, Daniel L. Nielson & Michael J. Tierney, Delegation Under Anarchy: States, International Organizations, and Principal-Agent Theory, in DELEGATION AND AGENCY IN INTERNATIONAL ORGANIZATIONS (Darren G. Hawkins, David A. Lake, Daniel L. Nielson & Michael J. Tierney eds., 2006).
11. Kenneth W. Abbot, Robert O. Keohane, Andrew Moravcsik, Anne-Marie Slaughter & Duncan Snidal, The Concept of Legalization, 54 INT'L ORG. 401, 401 (2000) ("that third parties have been granted authority to implement, interpret, and apply the rules; to resolve disputes; and (possibly) to make further rules") (emphasis added).
12. Julian G. Ku, The Delegation of Federal Power to International Organizations: New Problems with Old Solutions, 85 MINN. L. REV. 71, 72 (2000) ("the transfer of constitutionallyassigned federal powers ... to an international organization").
13. Edward T. Swaine, The Constitutionality of International Delegations, 104 COLUM. L. REV. 1492, 1494, 1494 n.3 (2004) ("vesting them with the authority to develop binding rules," and specifying that "the authority so vested must be capable of some kind of legal effects on the international or domestic plane: something more than pronouncements or hortatory acts") (emphasis added).
14. Curtis A. Bradley & Judith G. Kelley, The Concept of International Delegation, 71 LAW & CONTEMP. PROBS. 1 (2008).
15. Bradley and Kelley state that Group of Seven summits do not involve an international delegation under their definition because there has been no grant of authority "to the collective or any international body." Id. at 4. But if one takes their definition seriously such a summit involves all sorts of delegations. There has been an international delegation by the participants in the summit to the host nation to plan the event and to expend funds on it. There has been a delegation by every state present to every other state present because the very existence of the event grants to each state the authority to speak at the event itself (a form of taking action). There has also been delegation to the Group of Seven as a collective by virtue of the fact that the group can decide, for example, to abandon the meeting or to declare it a failure without the consent of every state. Id. at 3.
16. Other problems with this broad definition include that the definition does not requires that a state possess the authority that it is alleged to have delegated. We find it difficult to understand the term delegation without the original source possessing the relevant authority in the first place. Id. at 12.
17. See id. at 15 (referencing the establishment of the Working Group on Internet Governance (WGIG) by the UN Secretary General to "investigate and make proposals for action, as appropriate, on the governance of the Internet by 2005").
18. The term "sovereignty costs" is itself ambiguous, but we use it here simply to mean whatever aspects of a delegation one might be concerned with. This includes a restriction on a state's choice set, for example, or a surrender of the power to influence the interpretation of a treaty. Because these concerns may include other things we use the term "sovereignty costs."
19. Barbara Koremenos, When, What, and Why Do States Choose to Delegate? Characteristics of Delegation in a Random Sample of International Agreements, 71 LAW & CONTEMP. PROBS. 151 (2008).
20. Id. at 5.
21. Id.
22. Later in the article we discuss why even when amendment is possible without unanimous consent there may not be a significant delegation. Koremenos does find that a number of agreements create entities capable of making decisions based on a majority of votes case (her data also indicate that most, though not all such institutions have a one-country, one-vote rule). But because she has not qualified her definition of delegation, there is no way to know what decisions these bodies are permitted to take. These bodies could be entrusted, for example, with decisions over minor administrative issues such as the dates on which country reports are due or might be bodies charged with the administration of the organization. Id. at 5-6.
23. One additional weakness to Koremenos' approach is that it cannot easily identify the degree of delegation by looking at the treaty text by itself. As Heifer points out, "analyses restricted to formal treaty provisions can also fall prey to the converse error-incorrectly identifying modest delegations as consequential." Laurence R. Heifer, Monitoring Compliance with Un-ratified Treaties: The ILO Experience, 71 LAW & CONTEMP. PROBS. 193, 212 (2008).
24. It is surely the case that the distinction between politics that are the result of delegation and politics that are not will be difficult to identify in many instances. The key point, however, is not so much how one would make this distinction in close cases but rather that it must not be ignored in easy ones.
25. See Swaine, supra note 13, at 1506 (defining general categories of delegations, including delegations of treaty-amending authority and delegations of "more standard" legislative authority).
26. Id. at 1506. It is important to notice that an amendment provision is a type of delegation once-removed. Member States established the organization by agreement and consented to some set of functions and obligations, including the amendment provision itself.
27. Id. at 1504. In addition to a two-thirds majority, passage of an amendment requires the votes of five of the ten Members represented on the Governing Body as members of chief industrial importance. These members include the United States, Germany, Brazil, China, France, India, Italy, Japan, Russia, and the United Kingdom.
28. Withdrawal under such conditions would be justified under international law, even if the organization did not explicitly provide for withdrawal. Article 62 of the Vienna Convention states that a state may withdraw in response to a fundamental change in circumstance if the effect of the change is "radically to transform the extent of obligations still to be performed under the treaty." Vienna Convention on the Law of Treaties art. 62, May 23, 1969, 1155 U.N.T.S. 331 [hereinafter Vienna Convention]. A change from an organization without rule-making authority to one with such authority would surely qualify.
29. ALBERT O. HIRSCHMAN, EXIT, VOICE AND LOYALTY: RESPONSES TO DECLINE IN FIRMS, ORGANIZATIONS, AND STATES (1970); J.H.H. Weiler, The Transformation of Europe, 100 YALE L.J. 2403 (1991).
30. ILO Constitution art. 19.5(e), June 28, 1919, 49 Stat. 2712, 225 C.T.I.A. 373 [hereinafter ILO Constitution], In the event that an ILO convention is adopted by a two-thirds majority, Article 19.5(b) requires all Members to bring the convention before the domestic authorities responsible for ratifying treaties. The obligation on Members ends there.
31. ILO Declaration on Fundamental Principles and Rights at Work art. 2, adopted June 18, 1998, 37 I.L.M. 1233, available at http://www.ilo.org/dyn/declaris/DECLARATIONWEB. static Jump?var-language= EN&var-pagename=DECLARATIONTEXT.
32. Id.
33. Id.
34. The International Court of Justice is charged with interpretation of ILO issues. ILO Constitution, supra note 30, art. 37.
35. In fact, as Heifer points out, the Declaration's monitoring mechanisms-which have reinforced the finding that investment is attracted, not repelled by, adherence to core labor standards-help to convince governments that compliance with international labor rules is both individually and collectively rational. Thus, the ILO provides valuable information to states and non-state actors which enhances the benefits of compliance with international rules without incurring the higher sovereignty costs of formally binding states to unconsented to legal obligations. Heifer, supra note 23, at 24.
36. See, e.g., Bradley & Kelley, supra note 14, at 12; Swaine, supra note 13, at 1507
37. Articles of Agreement of the International Monetary Fund art. 28, Dec. 27, 1945, 60 Stat. 1401, T.I.A.S. No. 1501, 2 U.N.T.S. 39.
38. See, e.g., Neil Siegel, International Delegations and the Values of Federalism, 71 LAW & CONTEMP. PROBS. 93 (2008).
39. Marrakesh Agreement Establishing the World Trade Organization arts. 4, 10, reprinted in 33 I.L.M. 1144(1994).
40. Id. art. 10(2).
41. Id. art. 10(3). This provision is a bit complicated in that, after a two-thirds majority approves an amendment that would affect the rights and obligations of members, the amendment takes effect for the members that have accepted it. The Ministerial Conference (a body including all WTO members) has the authority to decide, by a three-fourths majority, that any such amendment is of such a nature that any member that does not accept it must withdraw from the organization. There is, therefore, a narrow instance in which the decision would be mandatory for continued membership in the organization.
42. See Swaine, supra note 13, at 1511.
43. The Vienna Convention defines a reservation as "a unilateral statement, however phrased or named . .. whereby [a State] purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State." Vienna Convention, supra note 28, at arts. 2(1)(d).
44. General Comment 24, U.N. GAOR Hum. Rts. Comm., 50th Sess., Supp. No. 40, P 1, U.N. Doc. A/50/40 (1996).
45. Vienna Convention, supra note 28, art. 19. This phrase is drawn from the International Court of Justice Advisory Opinion Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 1951 I.C.J. 15 (May 28).
46. FRANK NEWMAN ET AL., INTERNATIONAL HUMAN RIGHTS: LAW, POLICY, AND PROCESS 679 (3d. J. 2001).
47. Id.; Vienna Convention, supra note 28, arts. 20-21.
48. Letter from Conrad Harper to Francisco José Aguilar-Urbina, Chairman, U.N. Human Rights Committee (Mar. 28-29, 1995), available at http://www.un.org/documents/ga/docs/50/plenary/a50-40.htm.
49. International Covenant on Civil and Political Rigths and Optional Protocol art. 40(4), adopted Dec. 16, 1966, G.A. Res. 2200, U.N. GAOR, 21st Sess. No. 16, U.N. Doc. A/6316 (1966), 999U.N.T.S. 171 (1967) [hereinafter ICCPR].
50. Id. arts. 41-42.
51. COMM. ON FOREIGN RELATIONS, U.S. SENATE, IO6TH CONG., STUDY ON TREATIES AND OTHER INTERNATIONAL AGREEMENTS 182 (Comm. Print 2001).
52. Swaine, supra note 13, at 1512, 1512 n.71 (providing a list of examples of such agreements).
53. Id.; see also Curtis A. Bradley, Unratified Treaty Amendments and Constitutional Process (Feb. 2, 2006) (unpublished workshop paper, on file with author).
54. The Montreal Protocol on Substances that Deplete the Ozone Layer art. 2.9(c), Sept. 16, 1987, S. Treaty Doc. No. 10, 100th Cong., 1st Sess., 26 I.L.M. 1541 [hereinafter Montreal Protocol].
55. Duncan B. Hollis, Why State Consent Still Matters-Non-State Actors, Treaties, and the Changing Sources of International Law, 23 BERKELEY J. INT'L L. 137, 171 (2005).
56. Controls over new chemicals apply only to parties that ratify the relevant amendment.
57. See Codex Alimentarius, http://www.codexalimentarius.net/web/ index-en.jsp (last visited Aug. 5, 2008).
58. Agreement on the Application of Sanitary or Phytosanitary Measures, Apr. 15, 1994, art. 3.2, 3.4, Annex A(3)(a) in Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, Apr. 15, 1994, 33 I.L.M. 1125, 1381, reprinted in III COMPILATION OF INTERNATIONAL LAWS 273 (FDLI 1996) [hereinafter SPS Agreement]; Agreement on Technical Barriers to Trade, Apr. 15, 1994, art. 2.5, in Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, Apr. 15, 1994, 33 I.L.M. 1125, 1427, reprinted in III COMPILATION OF INTERNATIONAL LAWS 281 (FDLI 1996) [hereinafter TBT Agreement].
59. Zoonoses are diseases or infections naturally transmitted between vertebrate animals and humans. Zoonoses and Veterinary Public Health, World Health Organization, at http://www.who.int/zoonoses/en/(last visited Sept. 29, 2008).
60. SPS Agreement, supra note 58, at Annex A(3)(b)-(c).
61. Model Protocol Additional to the Agreement(s) Between State(s) and the International Atomic Energy Agency for the Application of Safeguards art. 16(b), IAEA Doc. INFCIRC/540 (Sept. 1997) (corrected) [hereinafter Model Protocol].
62. Id. art. 1.
63. Id. art. 2(a)(iv), 2(a)(ix).
64. Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and Their Destruction art. 1.2, opened for signature Jan. 13, 1993, U.N. GAOR, 47th Sess., Supp. No. 27, U.N. Doc. A/47/27, App. I (1992) [hereinafter CWC].
65. Mike Nishimura, Constraints on Sovereignty in the Chemical Weapons Convention from the Perspective of International Law, in SOVEREIGNTY AND THE GLOBAL COMMUNITY 6i (Howard M. Hensel ed., 2004).
66. Although the CWC does not specify which obligations are subject to challenge inspections, non-compliance with fundamental obligations implying "a damage for object and purpose of the Convention" would probably justify the use of a challenge inspection. Id. at 61-62.
67. CWC, supra note 64, art. IX.2.
68. Id. art. IX.8.
69. Id. Verification Annex, Part X.C.38-39.
70. Id. Verification Annex, Part X.C.45.
71. Nishimura, supra note 65, at 62.
72. CWC, supra note 64, art. XII.3.
73. Id. art. XII.3-4.
74. Nishimura, supra note 65, at 70.
75. Id. (reporting as of May 2003).
76. CWC, supra note 64, art. XVI.2. Although States Parties are required to provide some statement, "in reality, almost any statement made by the withdrawing State will be accepted as a valid notice of withdrawal, for the clause gives very little clue, if any, as to the criterion for validity of this notice." Nishimura, supra note 65, at 72.
77. See U.N. Charter art. 25. To cite just one example, Security Council Resolution 1373, which compels all nations-not just Security Council members-to take specific actions against financing terrorist activities.
78. One of us has written about precisely such sovereignty costs at the WTO, though without concluding that they exceed the associated benefits. Andrew T. Guzman, Global Governance and the WTO, 45 HARV. INT'L L.J. 303 (2004).
79. See Paul Schiff Berman, Dialectical Regulation, Territoriality, and Pluralism, 38 CONN. L. REV. 929, 950 ("The proliferation of international tribunals also, of course, creates the opportunity for plural norm creation."); Benedict Kingsbury, Foreword: Is the Proliferation of International Courts and Tribunals a Systemic Problem?, 31 N.Y.U. J. INT'L L. & Pol. 679, 679 (1999) ("The rapid proliferation of international courts and tribunals, and die increased activity of many of them, pose numerous practical problems . .."); Cesare P.R. Romano, The Proliferation of International Judicial Bodies: The Pieces of the Puzzle, 31 N.Y.U. J. Int'l L. & POL. 709, 709 (1999) (stating that one of the most important developments in international law in the post-Cold War age has been "the enormous expansion and transformation of the international judiciary"). But see Jose E. Alvarez, The New Dispute Settlers: (Half) Truths and Consequences, 38 TEX. INT'L L.J. 405, 411 (2003) (describing the claim that "[t]he recent proliferation of international tribunals constitutes the 'judicialization' of international law" as a "half truth" and possibly closer to myth).
80. In public international law, past decisions may be persuasive, but not binding. See IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 1-29 (6th ed. 2003).
81. Karen J. Alter, Delegating to International Courts: Self-Binding Vs. Other-Binding Delegation, 70 LAW & CONTEMP. PROBS. (forthcoming Jan. 2008) (manuscript at 36, available at http://ssrn.com/abstract= 1001949).
82. Eric A. Posner & John C. Yoo, Judicial Independence in International Tribunals, 93 CALIF. L. REV. 1,14(2005).
83. Id.
84. Id.
85. International Court of Justice, http://www.icj-cij.org/court (last visited Aug. 5, 2008).
86. Id.
87. Statute of the International Court of Justice art. 36(1), June 26, 1945, 59 Stat. 1055, 33 U.N.T.S. 993 [hereinafter ICJ Statute].
88. Eric A. Posner, The Decline of the International Court of Justice 9 (John M. Olin Law & Econ. Working Paper No. 233 (2d Series), 2004), available at http://www.law.uchicago.edu/Lawecon/index.html, at 9.
89. ICJ Statute, supra note 87, art. 36(1).
90. Posner, supra note 88, at 9.
91. Id.
92. Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Mar. 31).
93. ICJ Statute, supra note 87, art. 36(2).
94. Id.
95. See United Nations Member States, http://www.un.org/Overview/ growth.htm (last visited Aug. 5, 2008).
96. See Declarations Recognizing the Jurisdiction of the Court as Compulsory, at http://www.icj-cij.org/jurisdiction/index.php?pl=5&p2= l&p3=3&PHPSESSID=9d07068116022 7f37c 427c2068ebfled (last visited September 8, 2008).
97. Posner, supra note 88, at 8.
98. Id. at 3.
99. Nuclear Tests (Austl. v. Fr.) 1974 I.C.J. 253 (Order of Dec. 20); Nuclear Tests (N.Z. v. Fr.) 1974 I.C.J. 457 (Judgment of Dec. 20).
100. Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, 1984 I.C.J. 392 (Judgment of Nov. 26).
101. Gary L. Scott & Craig L. Carr, The ICJ and Compulsory Jurisdiction: The Case for Closing the Clause, 81 AMER. J. INT'L L. 57, 65 n.49 (1987).
102. Id.v
103. ICJ Statute, supra note 87, art. 36(3).
104. Declarations Recognizing the Jurisdiction of the Court as Compulsory, Honduras, at http://www.icj-cij.org/jurisdiction/index.php?p 1 =5&p2= 1 &p3=3&code=HN (last visited September 8, 2008).
105. Posner, supra note 88, at 3. As of 2004, the most common types of case adjudicated were border disputes (33 times); use of force (22 times); aerial incident (14 times); and property (14 times).
106. Id. at 11.
107. The following states allowed their declarations to expire or were withdrawn or terminated: Bolivia, Brazil, China, Colombia, El Salvador, France, Guatemala, Iran, Israel, South Africa, Thailand, Turkey, and the United States. INTERNATIONAL COURT OF JUSTICE, I.C.J. YEARBOOK 2002-2003 No. 57 127 n.l (2003).
108. At the same time, Australia withdrew consent to ITLOS jurisdiction.
109. International Court of Justice, Cases, at http://www.icj-cij.org/docket/ index.php?pl=3 (last visited September 8, 2008). Of the 140 cases taken by the Court to date, 24 have been advisory proceedings and 12 are still pending.
110. General Information-Overview, International Tribunal on the Law of the Sea, at http://www.itlos.org/start2-en.html.
111. United Nations Convention on the Law of the Sea art. 279, opened for signature Dec. 10, 1982, U.N. Doc A/CONF.62/122 (1982), 21 I.L.M. 1261 (1982) [hereinafter UNCLOS].
112. Id. art. 280.
113. Id. art. 282.
114. Id. art. 287(3), (5). Arbitrations are conducted in accordance with Annex VII.
115. Settlement of disputes mechanism under the Convention: Choice of procedure under article 287 and optional exceptions to applicability of Part XV, Section 2, of the Convention under article 298 of the Convention, at http://www.un.org/Depts/los/settlement-of-disputes/choice-procedure.htm (last visited September 8, 2008).
116. Id.
117. These countries include: Argentina, Australia, Austria, Belgium, Canada, Cape Verde, Chile, Croatia, Estonia, Finland, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Mexico, Oman, Portugal, Spain, Tunisia, Tanzania, and Uruguay. See id.
118. Proceedings and Judgments-List of Cases, at http://www.itlos.org/start2- en.html.
119. M/V "Saiga" (No. 2) (St. Vincent v. Guinea), 120 I.L.R. 143 (Int'l Trib. L. of the Sea 1999); Jillaine Seymour, The International Tribunal for the Law of the Sea: A Great Mistake? 13 IND. J. GLOBAL LEGAL STUD. 1, 2 (2006).
120. Seymour, supra note 119, at 2.
121. See, e.g., Seymour, supra note 119; R. CHURCHILL AND V. LOWE, THE LAW OF THE SEA 453-459 (2d ed., 1999); A. Odede, The Basic Structure of the Dispute Settlement Part of the Law of the Sea Convention, 11 OCEAN DEV. AND INT'L LAW 125 (1982); M. Gaertner, The Dispute Settlement Provisions of the Convention on the Law of the Sea: Critiques and Alternatives to the International Tribunal for the Law of the Sea, 19 SAN DIEGO L. REV. 577 (1982); J. W. Kindt, Dispute Settlement in International Environmental Issues: The Model Provided by the 1982 Convention on the Law of the Sea, VAND. J. of TRANSNAT'L L. 1097 (1989); J. K. Gamble, The 1982 UN Convention on the Law of the Sea: Binding Dispute Settlement?, 9 B.U. INT'L L.J. 39 (1991); T. Treves, Dispute Settlement Clauses in the Law of the Sea. Convention and their Impact on the Protection of the Marine Environment: Some Observations, 8 RECIEL 6 (1999).
122. Seymour, supra note 119, at 12.
123. UNCLOS, supra note 111, art. 189.
124. Id.
125. Id.
126. International Tribunal for the Law of the Sea, Proceedings and Judgments-List of Cases, at http://www.itlos.org/start2-en.html (last visited Sept. 29, 2008).
127. WTO Dispute Settlement Appellate Body, http://www.wto.org/english/tratop- e/dispu-e/appellate-body-e.htm#members (last visited Aug. 5,2008).
128. Understanding on Rules and Procedures Governing the Settlement of Disputes art. 17.1, Dec. 15, 1993, Marrakesh Agreement Establishing the World Trade organization, Annex 2, Legal Instruments-Results of the Uruguay Round, 33 I.L.M. 1125 (1994) [hereinafter DSU],
129. Id. art. 17.14.
130. Richard H. Steinberg, Judicial Lawmaking at the WTO: Discursive, Constitutional, and Political Constraints, 98 Am. J. INT'L LAW 247,263 (2004).
131. See, e.g., Claude E. Barfield, FREE TRADE, SOVEREIGNTY, DEMOCRACY: THE FUTURE OF THE WORLD TRADE ORGANIZATION (2001); John Ragosta, Navin Joneja, & Mikhail Zeldovich, WTO Dispute Settlement: The System Is Flawed and Must Be Fixed, 37 INT'L LAW 697, 748-50 (2003); Kal Raustiala, Sovereignty and Multilateralism, 1 CHI. J. INT'L L. 401 (2000) (expressing concern that the WTO dispute settlement system is simultaneously generative and insular); Daniel K. Tarullo, The Hidden Costs of International Dispute Settlement: WTO Review of Domestic Anti- Dumping Decisions, 34 LAW & POL'Y INT'L BUS. 109 (2002). Senator Max Baucus stated that WTO panels are "making up rules that the US never negotiated, that Congress never approved, and I suspect, that Congress would never approve." US DSU Proposal Receives Mixed Reactions, BRIDGES WKLY. TRADE NEWS DIG., Dec. 20, 2002, at [hereinafter Baucus Statement].
132. Appellate Body Reports, at http://www.wto.org/english/tratop-e/dispu-e/ ab-reports-e.htm (last visited September 8, 2008).
133. DSU, supra note 128, art. 3.2.
134. Id.
135. Indeed, the AB has, on several occasions, embraced the doctrine of judicial economy, thereby limiting the scope of judicial lawmaking. Steinberg, supra note 130, at 26.
136. Steinberg, supra note 130, at 260.
137. Id. at 275 (stating that the political constraint on the AB "should dampen concerns that judicial lawmaking at the WTO has become so expansive as to undermine the sovereignty of powerful states, create a serious democratic deficit for their citizens, or catalyze catastrophic withdrawal of their political support for the WTO.").
138. "Recommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements." WTO Dispute Settlement Understanding. art. 3.2.
139. Corte Interamericana de Derechos Humanos, http://www.corteidh.or.cr/ casos.cfm (last visited Aug. 5, 2008).
140. Inter-American Court of Human Rights, at http://www.pict-pcti.org/courts/ IACHR.html (last visited Sept. 8, 2008).
141. These countries are: Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominica, Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, Uruguay, and Venezuela. Protecting Human Rights, http://www.oas.org/key-issues/eng/KeyIssue-Detail.asp?kis-sec=2 (last visited Aug. 5, 2008).
142. Project on International Courts and Tribunals, http://www.pict-pcti.org/ courts/IACHR.html (last visited on Aug. 5, 2008).
143. 2006 Annual Report, http://www.corteidh.or.cr/informes.cfm.
144. Project on International Courts and Tribunals, http://www.pict-pcti.org/ courts/IACHR.html (last visited on Aug. 5, 2008).
145. Posner & Yoo, supra note 82, at 42-43.
146. Id. at 43.
147. Id.
148. Id. at 43. Posner and Yoo note that even in this case, the Honduran Disappeared Persons case, Honduras did not pay the award until eight years after the Court rendered its judgment.
149. European Convention for the Protection of Human Rights and Fundamental Freedoms art. 19, Nov. 4, 1950, 213 U.N.T.S. 221 [hereinafter European Convention].
150. Id. art. 46(1).
151. European Court of Human Rights, Information Document on the Court. http://www.echr.coe.int/NR/rdonlyres/981B9082-45A4-44C6-829A-202A51B94A85/0/ InformationdocumentontheCourt-September2006-.pdf (last visited Aug. 5, 2008).
152. Id.
153. European Court of Human Rights, The Budget of the Court, http://www.echr.coe.int/ECHR/EN/Header/The+Court/The+Budget/Budget/(last visited Aug. 5. 2008).
154. Converted on October 24, 2006.
155. European Convention, supra note 149, arts. 34, 35(1).
156. Mart. 34.
157. European Court of Human Rights, Information Document on the Court. http://ww.echr.coe.int/NR/rdonlyres/981B9082-45A4-44C6-829A-202A51B94A85/0/ InformationdocumentontheCourt-September2006-.pdf (last visited Aug. 5, 2008).
158. Id.
159. Posner and Yoo, supra note 82, at 65-66.
160. Project on International Courts and Tribunals, http://www.pictpcti.org/ courts/ECHR.html (last visited Aug. 5, 2008) ("Unlike in the cases of many other fora, compliance with the ECHR's judgments is common, exerting a deep influence on the laws and social realities of member States.").