Codifying custom

University of Pennsylvania Law Review

Volumn 160, Issue 4, 2012, Pages 995-1069

  Meyer, Timothy ^a  

^a UNIVERSITY OF GEORGIA   (United States)

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EID: 84859628979     PISSN: 00419907     EISSN: 19428537     Source Type: Journal    
DOI: None     Document Type: Review

References (195)

1. JAN PETER SASSE, AN ECONOMIC ANALYSIS OF BILATERIAL INVESTMENT TREATIES 43 (2011).
2. See STEPHAN W. SCHILL, THE MULTILATERALIZATION OF INTERNATIONAL INVESTMENT LAW 31-60 (2009) (discussing post-World War II efforts to negotiate a multilateral investment regime).
3. General Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat. A-11, 55 U.N.T.S. 184.
4. General Agreement on Trade in Services, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1B, 1869 U.N.T.S. 183.
5. See, e.g., Neer v. Mexico, 4 R.I.A.A. 60, 61-62 (U.S.-Mex. Gen. Cl. Comm'n 1926) (holding that a foreign government's treatment of an alien "should amount to an outrage" in order to hold the government liable).
6. Andreas F. Lowenfeld, Investment Agreements and International Law, 42 COLUM. J. TRANSNAT'L L. 123, 125-28 (2003) (discussing developing countries' increased use of BITs in recent years to attract capital from multinational companies).
7. For the jurisprudential origins of the codification movement, see "LEGISLATOR OF THE WORLD": WRITINGS ON CODIFICATION, LAW, AND EDUCATION (Philip Schofield & Jonathan Harris eds., 1998), which collects the letters and writings of Jeremy Bentham, the originator of codification.
8. See also G.W.F. HEGEL, ELEMENTS OF THE PHILOSOPHY OF RIGHT § 211, at 241 (Allen W. Wood ed., H.B. Nisbet trans., 1991) (stressing the need to codify custom as law in order to prevent the confusion and indeterminacy of common law systems). Bentham is credited with coining the term "codification" and arguing that it would promote clarity in the law.
9. See Judith Resnick, Bring Back Bentham: "Open Courts," "Terror Trials," and Public Sphere(s), 5 LAW & ETHICS HUM. RTS. 2, 19-20 (2011);
10. ALAN BOYLE & CHRISTINE CHINKIN, THE MAKING OF INTERNATIONAL LAW 165-66 (2007).
11. U.N. Charter art. 13, para. 1.
12. The OECD's failed attempt to pass the Multilateral Investment Agreement is a prominent example. Org. for Econ. Cooperation & Dev. [OECD], The Multilateral Agreement on Investment: Draft Consolidated Text, DAFFE/MAI(98)7/REV1 (Apr. 22, 1998) [hereinafter Draft MAI], available at http://www1.oecd.org/daf/mai/pdf/ng/ng987r1e.pdf. The Draft MAI will be discussed below as an example of how codification may present barriers to interntational agreement.
13. See, e.g., United Nations Convention on the Law of the Sea pmbl., Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter UNCLOS] (citing codification of the law of the sea as a main purpose of the convention); United Nations Convention on the Law of Non-Navigational Uses of International Watercourses pmbl., opened for signature May 21, 1997, 36 I.L.M. 700 (citing codification of this area of international law as a main purpose of the convention).
14. Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135.
15. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. TREATY DOC. NO. 100-20 (1988), 1465 U.N.T.S. 85 [hereinafter CAT].
16. See, e.g., R.R. Baxter, Multilateral Treaties as Evidence of Customary International Law, 41 BRIT. Y.B. INT'L L. 275, 293 (1965-1966) (arguing that treaties codifying law may influence, shape, and alter the law in signatory countries);
17. Richard Falk, Reparations, International Law, and Global Justice: A New Frontier (noting that the purpose of international law is to "codif[y] behavioral trends in state practice and shift[] political attitudes on the part of governments with the intention of stabilizing and clarifying expectations about the future"), in THE HANDBOOK OF REPARATIONS 478, 480 (Pablo de Greiff ed., 2006);
18. Bing Bing Jia, The Relations Between Treaties and Custom, 9 CHINESE J. INT'L L. 81, 108 (2010) ("[A] piece of authoritative work of codification. . [is] intended to clarify and settle applicable rules of international law. . .");
19. H. Lauterpacht, Codification and Development of International Law, 49 AM. J. INT'L L. 16, 19 (1955) ("It is probably a fact that the absence of agreed rules partaking of a reasonable degree of certainty is a serious challenge to the legal nature of what goes by the name of international law.");
20. Iain Scobbie, The Invocation of Responsibility for the Breach of 'Obligations Under Peremptory Norms of General International Law,' 13 EUR. J. INT'L L. 1201, 1202 (2002) (equating the codification of custom with its clarification).
21. In so arguing, this Article contributes to the literature on strategic international lawmaking by states, and specifically on the relationship between different forms of legal commitments, such as treaties, soft law, and customary international law. See, e.g., Kenneth W. Abbott & Duncan Snidal, Hard and Soft Law in International Governance, 54 INT'L ORG. 421, 434-50 (2000) (detailing the advantages of soft law, such as protected sovereignty, increased certainty, and more frequent compromise);
22. Andrew T. Guzman & Timothy L. Meyer, International Soft Law, 2 J. LEGAL ANALYSIS 171, 176-79 (2010) (putting forth four explanations for why states use soft law);
23. Barbara Koremenos, Loosening the Ties that Bind: A Learning Model of Agreement Flexibility, 55 INT'L ORG. 289, 290-304 (2001) (developing a theoretical model for international agreements with respect to how states choose their international legal commitments);
24. Kal Raustiala, Form and Substance in International Agreements, 99 AM. J. INT'L L. 581, 583-85 (2005) (discussing legality, substance, and structure as three dimensions of the institutional design of international agreements);
25. Edward T. Swaine, Rational Custom, 52 DUKE L.J. 559, 564 (2002) (attempting to reconcile custom and rational choice theory).
26. RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 102(2) (1987);
27. see also Statute of the International Court of Justice art. 38(1)(b), June 26, 1945, 59 Stat. 1055 (authorizing the International Court of Justice to apply "international custom, as evidence of a general practice accepted as law" in resolving international disputes).
28. The literature critiquing the traditional formulation of custom is voluminous. For the most well-known critique, see ANTHONY A. D'AMATO, THE CONCEPT OF CUSTOM IN INTERNATIONAL LAW (1971). D'Amato famously argued that the traditional test for custom is circular: "But if custom creates law, how can a component of custom require that the creative acts be in accordance with some prior right or obligation in international law?" Id. at 53.
29. See id. at 58 (decrying the lack of standard criteria to evaluate the amount of time required to define international law as customary).
30. See Andrew T. Guzman, Saving Customary International Law, 27 MICH. J. INT'L L. 115, 124-28 (2005) (reviewing the controversies over what counts as state practice for purposes of determining customary international law);
31. Report of Sub-Committee Upon the History and Status of Codification, 4 AM. SOC'Y INT'L L. PROC. 208, 214-18 (1910);
32. see also Arthur Watts, Codification and Progressive Development of International Law (providing a comprehensive overview of the history of international codification), available at http://www.mpepil.com/subscriber- article?script=yes&id=/ epil/entries/law-9780199231690-e1380&recno= 1&author=Watts%20QC%20%20Arthur, in MAX PLANCK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW (Rüdiger Wolfrum ed., 2012) (forthcoming).
33. See, e.g., Resolution of Sept. 25, 1931, 12 League of Nations O.J., Spec. Supp. 92, at 9 (1931);
34. Resolution of Sept. 27, 1927, 8 League of Nations O.J., Spec. Supp. 53, at 9-10 (1927);
35. Resolution of Sept. 22, 1924, 5 League of Nations O.J., Spec. Supp. 21, at 10 (1924).
36. Manley O. Hudson, The Permanent Court of International Justice, 35 HARV. L. REV. 245, 256 (1922).
37. See Guillaume Sacriste & Antoine Vauchez, The Force of International Law: Lawyers' Diplomacy on the International Scene in the 1920s, 32 LAW & SOC. INQUIRY 83, 101 (2007) (discussing the failure of this conference in the broader context of the interwar international law community).
38. Examples include the Inter-American Juridical Committee, the Asian-African Legal Consultative Committee, and the European Committee on Legal Cooperation.
39. See, e.g., B. Graefrath, The International Law Commission Tomorrow, 85 AM. J. INT'L L. 595, 608 (1991) (discussing other codifying institutions).
40. Statute of the International Law Commission, G.A. Res. 174 (II), art. 1, U.N. Doc. A/RES/174(II) (Nov. 21, 1947) [hereinafter ILC Statute].
41. Given this fact, it is perhaps not surprising that the composition of the ILC has been a subject of contestation and revision. At its inception, the ILC had only fifteen members, eight of whom were from Europe or the United States, with an additional four from Latin America, three from Asia, and none from Africa. JEFFREY S. MORTON, THE INTERNATIONAL LAW COMMISSION OF THE UNITED NATIONS 8-9 (2000). To accommodate the growth in the number of U.N. member states, the ILC's membership has been expanded three times: in 1957 to twenty-one, in 1962 to twenty-five, and in 1981 to thirty-four. Id. Each expansion diluted the share of American and European seats, and there is evidence that this expansion increased partisan dynamics at the ILC. Using a dataset compiled from public records of ILC proceedings during the development of the Draft Code of Crimes Against the Peace and Security of Mankind, Professor Morton argues that the ILC members show high levels of geographic and ideological cohesion. Id. at 83-92. This cohesion, he asserts, is inconsistent with an apolitical view of the ILC membership advocated by many scholars and practitioners. Id.
42. See, e.g., Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331 [hereinafter VCLT];
43. Vienna Convention on Diplomatic Relations art. 47.2(b), Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95 [hereinafter VCDR];
44. Convention on the High Seas, Apr. 29, 1958, 13 U.S.T. 2312, 450 U.N.T.S. 11.
45. Nonstate actors also play an important role in codification in at least two ways. First, they can influence states' negotiation of a codifying treaty, much in the way NGOs participated in the negotiation of the Rome Statute. See William R. Pace & Mark Thieroff, Participation of Non-Governmental Organizations (describing how many "governments, the Secretary General, other United Nations officials and media experts have commented on the decisive role of NGOs at the Rome Conference"), in THE INTERNATIONAL CRIMINAL COURT: THE MAKING OF THE ROME STATUTE: ISSUES, NEGOTIATIONS, RESULTS 391, 392-93 (Roy S. Lee ed., 1999). Second, nonstate actors can "codify" the law themselves, although they generally lack the ability to make their "codifications" binding on states directly.
46. See Jordan J. Paust, Nonstate Actor Participation in International Law and the Pretense of Exclusion, 51 VA. J. INT'L L. 977, 997 (2011) (discussing Professor Francis Lieber's codification of the customary laws of war in the Lieber Code, one of the most well-known private codification efforts). Nevertheless, states can adopt these nonbinding codifications as evidence of their views of custom. I defer detailed examination of the role nonstate actors play in codification to future work, focusing here instead on state-centric codification efforts.
47. See, e.g., U.S. DEP'T OF STATE, 2004 U.S. MODEL BILATERAL INVESTMENT TREATY, annexes A, B, art. 5(1) (2004) [hereinafter 2004 U.S. MODEL BIT], available at http:// www.state.gov/documents/organization/117601.pdf ("Each Party shall accord to covered investments treatment in accordance with customary international law, including fair and equitable treatment and full protection and security.").
48. See Int'l Criminal Court [ICC], Assembly of States Parties of the International Criminal Court, The Crime of Aggression, ICC Doc. RC/Res. 6, annex III ( June 11, 2010) (noting that the definition of the crime of aggression, consistent with article 10 of the Rome Statute, should not limit or prejudice existing or developing rules of international law).
49. The International Court of Justice (ICJ) set forth ways in which treaties can be related to customary rules in the North Sea Continental Shelf Cases. There, the ICJ decided that treaty rules (1) may declare customary rules, (2) crystallize emergent customary rules, or (3) over time become customary rules. North Sea Continental Shelf (F.R.G./Den.; F.R.G./Neth.), 1969 I.C.J. 3, 39, 41-42 (Feb. 20). Treaty rules in category (3) are not properly thought of as codifications, because they are not initially claimed to be custom.
50. See, e.g., Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 DUKE L.J. 557, 591 (1992) (noting that certain "standard[s] make[]. . ex post, case-by-case determinations").
51. see also Andrew T. Guzman & Jennifer Landsidle, The Myth of International Delegation, 96 CALIF. L. REV. 1693, 1694 (2008) ("When one turns to examine instances of international delegation, what becomes immediately apparent, at least to the authors, is how little of it there actually is."). In the domestic context, the adjudication of questions likely to reappear before the courts is a strategic enterprise because of the path dependence of adjudicated law. Repeat litigants try to ensure that early decisions set forth favorable rules that they can employ in future litigation.
52. See, e.g., Catherine Albiston, The Rule of Law and the Litigation Process: The Paradox of Losing by Winning, 33 LAW & SOC. REV. 869, 877-86 (1999) (describing strategic decisionmaking in the U.S. litigation process);
53. Stephen J. Choi & G. Mitu Gulati, Contract as Statute, 104 MICH. L. REV. 1129, 1145-58 (2006) (discussing the problems present in litigating interpretations of boilerplate contract terms).
54. see also Joel P. Trachtman, Regulatory Jurisdiction and the WTO, 10 J. INT'L ECON. L. 631, 633 (2007) (arguing that some rules are better worked out through adjudication, while others are better worked out through negotiation). The proliferation of international tribunals has, to some extent, changed this practice. Some courts, such as the European Court of Justice or the European Court of Human Rights, play a major role in interpreting supranational, if not international, obligations. Nevertheless, compared with domestic courts, the level of delegation to international tribunals, where states are constrained by the tribunal's decisions going forward, remains quite low.
55. See India: Airport Pat-Down Draws Protest, N.Y. TIMES, Dec. 10, 2010, at A8 (reporting that the Indian foreign minister considered the pat-down of an ambassador to be "unacceptable").
56. See, e.g., George Norman & Joel P. Trachtman, The Customary International Law Game, 99 AM. J. INT'L L. 541, 548 n.34 (2005) (considering the suggestion that customary international law may be less detailed than treaty norms).
57. See Jonathan Remy Nash, Essay, Standing and the Precautionary Principle, 108 COLUM. L. REV. 494, 500 (2008) ("Some argue that the precautionary principle is hampered by a lack of clarity, or, at least, agreement as to the principle's meaning." (footnote omitted)).
58. see also John O. McGinnis, The Appropriate Hierarchy of Global Multilateralism and Customary International Law: The Example of the WTO, 44 VA. J. INT'L L. 229, 239 (2003) ("The first advantage of multilateral agreements over customary international law is that they provide a more precise definition of the agreed upon rule for the simple reason that the provisions to which states have agreed are written down in the text of the agreement.").
59. EILEEN DENZA, DIPLOMATIC LAW: A COMMENTARY ON THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS 189 (Oxford Univ. Press, 1998) (1976).
60. See Zhu Lijiang, Chinese Practice in Public International Law: 2008, 8 CHINESE J. INT'L L. 493, 537 (2009) (stating that Chinese law provides that "[d]iplomatic pouches sent or received by a diplomatic mission shall. . comply with the relevant provisions of the Chinese government on the weight and dimensions of diplomatic pouches").
61. For an excellent analysis of the dispute between the United States and the European Union over genetically modified organisms, see generally MARK A. POLLACK & GREGORY C. SHAFFER, WHEN COOPERATION FAILS: THE INTERNATIONAL LAW AND POLITICS OF GENETICALLY MODIFIED FOODS (2009).
62. Cf. Andrew T. Guzman, The Design of International Agreements, 16 EUR. J. INT'L L. 579, 582 (2005) (arguing that international sanctions create a loss to one party without an offsetting gain, yielding a net loss).
63. Technically, a change in the law is Kaldor-Hicks superior to the status quo if, assuming zero transaction costs, it is possible to imagine transfers such that the change in the law is Pareto superior to the status quo. The transfers need not actually occur, however, and thus some states can be left worse off by a Kaldor-Hicks improvement in the law. Andrew T. Guzman, The Consent Problem in International Law 6 ( June 14, 2011) (unpublished manuscript), available at http://www.ssrn.com/abstract=1862354.
64. see also Laurence R. Helfer, Nonconsensual International Lawmaking, 2008 U. ILL. L. REV. 71, 72-73 (discussing the advantages and disadvantages of requiring state consent to international agreements).
65. League of Arab States, Arab Charter on Human Rights 2004, May 22, 2004 [hereinafter Arab Charter], translated in 12 INT'L HUM. RTS. REP. 893, 895 (2005). The negotiation of the crime of aggression in the Rome Statute also illustrates how codification may not result in clarification. Codifying states may deliberately obscure a rule as a compromise between two different interpretations. See infra Section III.D.
66. Mervat Rishmawi, The Arab Charter on Human Rights and the League of Arab States: An Update, 10 HUM. RTS. L. REV. 169, 169 (2010).
67. Press Release, U.N. High Comm'r for Human Rights, Statement by UN High Commissioner for Human Rights on the Entry into Force of the Arab Charter on Human Rights ( Jan. 30, 2008), available at http://www.unhchr.ch/huricane/ huricane.nsf/0/6C211162E43235FAC12573E00056E19D?opendocument.
68. RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 702(i) (1987).
69. G.A. Res. 3379 (XXX), ¶ 6, U.N. Doc. A/RES/3379 (Nov. 10, 1975).
70. G.A. Res. 46/86, U.N. Doc. A/RES/46/86 (Dec. 16, 1991).
71. For example, the U.S. delegate to the conference negotiating the Vienna Convention on Consular Relations proposed a jurisdictional protocol, arguing that "the codification of international law and the formulation of measures to ensure compliance with its provisions should go hand in hand." 1 United Nations Conference on Consular Relations, Mar. 4-Apr. 22, 1963
72. Vienna Conference on Consular Relations, at 249, U.N. Doc. A/CONF.25/16 (Mar. 26, 1963);
73. see also U.N. SCOR, 49th Sess., 3453d mtg. at 7, U.N. Doc. S/PV.3453 (Nov. 8, 1994) (transcribing the Czech delegate's remark that the creation of the International Criminal Tribunal for Rwanda as a "breakthrough" in the codification of international law).
74. Optional Protocol to the Vienna Convention on Consular Relations Concerning the Compulsory Settlement of Disputes, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261 [hereinafter VCCR Optional Protocol on Disputes].
75. Statute for the International Tribunal for the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 561.
76. See Leena Grover, A Call to Arms: Fundamental Dilemmas Confronting the Interpretation of Crimes in the Rome Statute of the International Criminal Court, 21 EUR. J. INT'L L. 543, 569 (2010) (describing the Rome Statute's effect as "the crystallization of certain [international] norms").
77. See, e.g., Jordan J. Paust, Antiterrorism Military Commissions: Courting Illegality, 23 MICH. J. INT'L L. 1, 12 (2001) (arguing that the International Covenant on Civil and Political Rights sets forth a minimum standard of due process and human rights guaranteed to all people);
78. Kweku Vanderpuye, Traditions in Conflict: The Internationalization of Confrontation, 43 CORNELL INT'L L.J. 513, 539 (2010) (noting that article 14 of the Covenant sets forth universally recognized human rights obligations).
79. See International Covenant on Civil and Political Rights art. 40, opened for signature Dec. 16, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) (providing details of required reports that all states must submit upon adopted measures).
80. 304 U.S. 64 (1938).
81. See Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 HARV. L. REV. 815, 870 (1997) (asserting that customary international law should be treated as state law, absent federal common law);
82. Curtis A. Bradley et al., Sosa, Customary International Law, and the Continuing Relevance of Erie, 120 HARV. L. REV. 869, 891-92 (2007) (providing a more updated analysis after Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), and other case law dealing with the treatment of international law as nonfederal common law).
83. But see Harold Hongju Koh, Commentary, Is International Law Really State Law?, 111 HARV. L. REV. 1824, 1827 (1998) (arguing that customary international law is federal law). (Pubitemid 128429214)
84. See U.S. CONST. art. VI, cl. 2 ("[A]ll Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land. . .").
85. See Karl M. Meessen, Antitrust Jurisdiction Under Customary International Law, 78 AM. J. INT'L L. 783, 790 (1984) (using conflicting antitrust law to demonstrate Germany's reliance upon customary international law).
86. see also Diane Marie Amann, The Crime of Aggression, the United States, and the Value of Peace 8-11 (Oct. 15, 2010) (unpublished manuscript) (on file with author) (analyzing potential jurisdictional paths that could arise if states adopted certain amendments to international criminal law).
87. See Marc Galanter, Why the "Haves" Come Out Ahead: Speculations on the Limits of Legal Change, 9 LAW & SOC'Y REV. 95, 97-104 (1974) (listing nine distinct advantages that "repeat players" have over "one-shotters" in the formation of rules through both rulemaking and litigation proceedings).
88. See, e.g., LLOYD GRUBER, RULING THE WORLD 5-10 (2000) (putting forth a theory of the interplay between power politics and international institutionalization where "[t]he losers acquiesce because they know that the winners are in a position to proceed without them").
89. Timothy Meyer, Soft Law as Delegation, 32 FORDHAM INT'L L.J. 888, 917-21 (2009) ("In the decision between hard and soft law. . power can be important in determining the form of a legal agreement.");
90. Gregory C. Shaffer & Mark A. Pollack, Hard vs. Soft Law: Alternatives, Complements, and Antagonists in International Governance, 94 MINN. L. REV. 706, 728-30 (2010) ("[T]he interaction of hard and soft law will be shaped primarily by the preferences of powerful states such as the United States and the EU. . .").
91. See Eyal Benvenisti & George W. Downs, The Empire's New Clothes: Political Economy and the Fragmentation of International Law, 60 STAN. L. REV. 595, 610-12 (2007) (discussing the common practice of "serial bilateralism," by which powerful states create "narrow negotiation venues as a means of limiting the ability of weaker states to form countervailing coalitions");
92. Kal Raustiala, The Architecture of International Cooperation: Transgovernmental Networks and the Future of International Law, 43 VA. J. INT'L L. 1, 86-87 (2002) ("Rather than agree on a global standard, competing standard-setting states may simply opt for a 'miniliateral' solution. . .").
93. See, e.g., Laurence R. Helfer, Regime Shifting: The TRIPs Agreement and the New Dynamics of International Intellectual Property Lawmaking, 29 YALE J. INT'L L. 1, 6, 13-18, 53-63 (2004) (discussing developing states' efforts to move international intellectual property lawmaking away from the WTO and into more hospitable fora).
94. Richard H. Steinberg, In the Shadow of Law or Power? Consensus-Based Bargaining and Outcomes in the GATT/WTO, 56 INT'L ORG. 339, 359-360 (2002).
95. Jason Webb Yackee, Pacta Sunt Servanda and State Promises to Foreign Investors Before Bilateral Investment Treaties: Myth and Reality, 32 FORDHAM INT'L L.J. 1550, 1560 (2009).
96. Nicholas DiMascio & Joost Pauwelyn, Nondiscrimination in Trade and Investment Treaties: Worlds Apart or Two Sides of the Same Coin?, 102 AM. J. INT'L L. 48, 52 (2008) (internal quotation marks omitted).
97. Andrew T. Guzman, Why LDCs Sign Treaties that Hurt Them: Explaining the Popularity of Bilateral Investment Treaties, 38 VA. J. INT'L L. 639, 645-46 (1998) (observing that there was international consensus sur rounding the Hull Rule for the first half of the twentieth century);
98. See, e.g., José E. Alvarez, A BIT on Custom, 42 N.Y.U. J. INT'L L. & POL. 17, 20 (2009) ("[T]hose who see investment treaties as. . unconnected to. . customary international law. . are wrong.").
99. Cf. Zachary Elkins et al., Competing for Capital: The Diffusion of Bilateral Investment Treaties, 1960-2000, 2008 U. ILL. L. REV. 265, 280 (arguing that as more and more capitalimporting states adopted bilateral investments, competitive pressures drove late adopters to sign BITs as well).
100. The Calvo doctrine asserts that foreigners are not entitled to special privileges, such as the right to take investment disputes to international tribunals. For more information on the Calvo doctrine, see Wenhua Shan, Is Calvo Dead?, 55 AM. J. COMP. L. 123, 124-30 (2007).
101. Jeswald W. Salacuse, The Emerging Global Regime for Investment, 51 HARV. INT'L L.J. 427, 469-70 (2010).
102. See Christopher M. Ryan, Meeting Expectations: Assessing the Long-Term Legitimacy and Stability of International Investment Law, 29 U. PA. J. INT'L L. 725, 747-48 (2008) (de scribing three bills proposed by the Argentine legislature in 2004 and 2005 aimed at "limit[ing] Argentina's participation in the international investment law system").
103. Timothy Meyer, Power, Exit Costs, and Renegotiation in International Law, 51 HARV. INT'L L.J. 379, 400 (2010) (arguing that both the quality of an individual state's outside options, other than an existing agreement, and its ability to make "a credible threat" to the existing scheme shape the course of such "renegotiation").
104. Compare Jonathan I. Charney, The Antarctic System and Customary International Law (arguing that the principle of common heritage is not a "rule of general international law applicable to all areas outside of national jurisdiction" because there is no wide consensus as to its general applicability), in INTERNATIONAL LAW FOR ANTARCTICA 51, 75 (Francesco Francioni & Tullio Scovazzi eds., 2d ed. 1996)
105. with Rüdiger Wolfrum, Common Heritage of Mankind (arguing that "[t]he common heritage principle is part of. . customary international law. . providing general but not specific legal obligations with respect to the utilization of areas beyond national. . jurisdiction"), in 1 MAX PLANCK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 692, 694 (Rudolf Bernhardt ed., 1992). Similar to UNCLOS article 311.6, article 47 of the VCDR includes an obligation not to discriminate in the application of the Convention, subject to exceptions. VCDR, supra note 38, art. 47. By its terms, this obligation applies only to parties to the Convention. In practice, however, the implemented legislation often makes no distinction in the extension of privileges between parties to the VCDR and nonparties, instead distinguishing on the basis of reciprocal treatment.
106. See Sol Picciotto, Linkages in International Investment Regulation: The Antinomies of the Draft Multilateral Agreement on Investment, 19 U. PA. J. INT'L ECON. L. 731, 753-54 (1998) (asserting that OECD countries could have used multilateral agreements "on an investment protection standard. . as the basis for common action against breaches of " this standard). (Pubitemid 128418431)
107. Understanding with Respect to Disciplines for the Strengthening of Investment Protection, U.S.-E.U., May 18, 1998, available at http://www.eurunion.org/partner/summit/Summit9805/invest.htm.
108. See WILHELM G. GREWE, THE EPOCHS OF INTERNATIONAL LAW 555-56 (Michael Byers ed. & trans., 2000) (discussing the role humanitarian concerns played in the rise of British disapproval of the slave trade, but noting that these concerns were conveniently tied to economic changes).
109. See generally Michael Byers, Note, Policing the High Seas: The Proliferation Security Initiative, 98 AM. J. INT'L L. 526, 534-36 (2004).
110. See, e.g., United States v. Smith, 18 U.S. (5 Wheat.) 153, 161-62 (1820) (holding that piracy is against the law of nations based on the universal view of the relevant authorities).
111. Treaty for the Suppression of the African Slave Trade art. 1, Dec. 20, 1841, 92 Consol. T.S. 437, 441.
112. Treaty for the Accession of Belgium to the Treaty of 20 December 1841 for the Suppression of the Slave Trade, Feb. 28, 1848, 102 Consol. T.S. 95, 96-97.
113. Lyons-Seward Treaty art. 1, Apr. 7, 1862, 12 Stat. 1225.
114. See John O. McGinnis, The Comparative Disadvantage of Customary International Law, 30 HARV. J.L. & PUB. POL'Y 7, 9-11 (2006) (asserting that a problem of customary international law is its neglect of democratic decisionmaking, and listing five different democratic deficits);
115. John O. McGinnis & Ilya Somin, Democracy and International Human Rights Law, 84 NOTRE DAME L. REV. 1739, 1771-73 (2009) (arguing that "[d]omestic political actors cannot create norms by failing to object," unlike in customary international law). I do not address these arguments here.
116. See Harlan Grant Cohen, Finding International Law: Rethinking the Doctrine of Sources, 93 IOWA L. REV. 65, 78 (2007) (remarking that in the prevailing positivist view, international law is based primarily on the consent of sovereign states instead of custom).
117. See Beth Van Schaack, Negotiating at the Interface of Power and Law: The Crime of Aggression, 49 COLUM. J. TRANSNAT'L L. 505, 520-21 (2011).
118. See MOHAMED EL BARADEI & CHLOE GAVIN, CROWDED AGENDAS, CROWDED ROOMS: INSTITUTIONAL ARRANGEMENTS AT UNCLOS III, at 3-7 (1981) (explaining the terms of "the Gentlemen's Agreement" of 1973 that established the decisionmaking framework of UNCLOS III).
119. See Convention on the Rights and Duties of States, Dec. 26, 1933, 49 Stat. 3097, 165 L.N.T.S. 19 (codifying the customary rules of statehood);
120. see also D.J. HARRIS, CASES AND MATERIALS ON INTERNATIONAL LAW 102 ¶ 2 (5th ed. 1998) (observing that the Montevideo Convention is widely accepted as codifying the customary requirements of statehood).
121. Declaration on the Maritime Zone, Aug. 18, 1952, 1006 U.N.T.S. 325.
122. Declaration of Montevideo on the Law of the Sea, May 8, 1970, 9 I.L.M. 1081.
123. See INTERNATIONAL LAW IN THE WESTERN HEMISPHERE 58-64 (Nigel S. Rodley & C. Neale Ronning eds., 1974) (detailing the history of seabed agreements between Latin American countries).
124. Declaration on the Establishment of a New International Economic Order, G.A. Res. 3201, U.N. GAOR, 6th Sess., Supp. No. 1, U.N. Doc. A/9959 (1974).
125. Guzman's claims that the Hull Rule was custom prior to the NIEO, but was then demolished by it, have both been criticized as incorrect. That is, some believe there was no customary law to be demolished, and others believe the customary law in question both existed and survived the NIEO's challenge. Compare Jeswald W. Salacuse & Nicholas P. Sullivan, Do BITs Really Work?: An Evaluation of Bilateral Investment Treaties and Their Grand Bargain, 46 HARV. INT'L L.J. 67, 68 (2005) (characterizing post-World War II customary investment law as "an ephemeral structure consisting largely of scattered treaty provisions, a few questionable customs, and contested general principles of law"), and Yackee, supra note 107, at 1565 & n.66 (discussing and citing scholars who "argue quite plausibly that customary international law has never fully reflected the Hull formulation"), with Alvarez, supra note 112, at 39 ("[T]he traditional customary rules of state responsibility, including the international minimum standard, were not displaced by some [developing countries'] efforts to establish the NIEO."). For my purposes, it is enough that the developed world claims that NIEO undermined customary investment rules, prompting them to engage in codification. Given the indeterminacy of legal rules, the strength of claims during negotiations about what legal rules require is more important than the binary distinctions that tribunals make about whether a law exists and covers the challenged conduct.
126. See Gabriella Blum, Bilateralism, Multilateralism, and the Architecture of International Law, 49 HARV. INT'L L.J. 323, 351 (2008) ("The introduction of additional parties to treaty negotiations is hardly ever cost-free. It potentially increases barriers to efficient agreements and exacerbates problems of information asymmetry, strategic barriers, psychological barriers, and institutional constraints.").
127. See, e.g., Daniel J. Gervais, Reinventing Lisbon: The Case for a Protocol to the Lisbon Agreement (Geographical Indications), 11 CHI. J. INT'L L. 67, 120 (2010) ("A massive addition of new members to the Lisbon system would naturally entail administrative obligations. . ."). While transaction costs certainly do increase with new members, the marginal increase in transaction costs probably falls as the overall number of members rises.
128. See Peter K. Yu, Sinic Trade Agreements, 44 U.C. DAVIS L. REV. 953, 977 (2011) (noting that countries with limited resources "may not have the ability to dedicate efforts to normmaking in a multitude of competing fora").
129. See Erik Franckx, The 200-Mile Limit: Between Creeping Jurisdiction and Creeping Common Heritage?: Some Law of the Sea Considerations from Professor Louis Sohn's Former LL.M. Student, 39 GEO. WASH. INT'L L. REV. 467, 470 n.6 (2007) (noting the efforts of two prominent ambassadors to form a "private negotiating group. . competent to deal. . with the [exclusive economic zone]").
130. See Joel R. Paul, The Rule of Law Is Not for Everyone, 24 BERKELEY J. INT'L L. 1046, 1052 (2006) (book review) ("[T]he Vienna Convention on the Law of Treaties provides that the parties to a treaty are bound to it unless they act in conformity with the treaty to amend its express terms.").
131. See Arthur M. Weisburd, Customary International Law: The Problem of Treaties, 21 VAND. J. TRANSNAT'L L. 1, 11 (1988) (noting that the importance of state practice to international legal obligations means that treaties cannot freeze customary law simply by codifying it).
132. The adoption of the definition of the crime of aggression was similarly qualified by interpretive understandings, which the United States designed with the goal of "undermin[ing] any tendency to refer to these definitions as evidence of the progressive development of customary international law." Beth Van Schaack, "The Grass That Gets Trampled When Elephants Fight": Will the Codification of the Crime of Aggression Protect Women?, 15 UCLA J. INT'L L. & FOREIGN AFF. (forthcoming 2012) (manuscript at 32 n.179). This effort was itself undermined by the fact that the United States proposed to include an explicit reference to "customary international law" in the "understandings" and was rebuffed.
133. See Beth Van Schaack, Understanding Aggression I, INTLAWGRRLS ( Jun. 24, 2010, 6:00 AM), http://www.intlawgrrls.com/2010/06/understanding-aggression.html (reviewing and discussing the debate over the interpretive " understandings" that occurred in advance of the ICC Kampala Conference on May 31, 2010).
134. Hague Convention Respecting the Laws and Customs of War on Land art. 2, Oct. 18, 1907, 36 Stat. 2277 [hereinafter Hague Convention] (consuming the applicability of Article I's mandate to issue orders to respect the regulations and customary law).
135. International Military Tribunal (Nuremberg), Judgment and Sentences, Oct. 1, 1946
136. (internal quotation marks omitted), reprinted in 41 AM. J. INT'L L. 172, 248-49 (1947).
137. See, e.g., BG Grp. Plc. v. Argentina, Final Award, ¶ 302 (UNCITRAL Arb. Trib. 2007), http://italaw.com/documents/BG-award-000.pdf (finding that the minimum standard is not fixed in time);
138. Int'l Thunderbird Gaming Corp. v. Mexico, Award, ¶ 194 (NAFTA UNCITRAL Arb. Trib. 2006), http://italaw.com/documents/Thunderbird Award.pdf (condoning treating the minimum standard as evolving law);
139. KENNETH J. VANDEVELDE, BILATERAL INVESTMENT TREATIES: HISTORY, POLICY, AND INTERPRETATION 194, 228-29 (2010) (describing arbitration decisions that found an evolving standard of treatment).
140. But see Glamis Gold, Ltd. v. United States, Award, ¶ 21 (NAFTA UNCITRAL Arb. Trib. 2009), http://italaw.com/documents/Glamis-Award.pdf
141. (agreeing that "fair and equitable treatment" remains subject to the standard articulated in Neer v. Mexico, 4 R.I.A.A. 60 (U.S.-Mex. Gen Cl. Comm'n 1926), but suggesting that the standard has evolved over time).
142. Neer, 4 R.I.A.A. at 61-62.
143. Pope & Talbot Inc. v. Canada, Award on the Merits of Phase 2, ¶ 118 (NAFTA Arb. Trib. 2001), http://www.naftaclaims.com/Disputes/Canada/ PopeFinalMeritsAward.pdf (rejecting Canada's argument for the standard of egregious conduct Neer would require);
144. see also Tecnicas Medicambientales Tecmed S.A. v. United Mexican States, IC SID Case No. ARB(AF)/00/2, Award, ¶ 116 (May 29, 2003), 43 I.L.M. 133 (noting that international law is not "frozen in time");
145. Mondev Int'l Ltd. v. United States of Am., ICSID Case No. ARB(AF)/99/2, Award, ¶ 125 (Oct. 11, 2002), 6 ICSID Rep. 192 (2004) (finding that customary law refers to law as "it stands no earlier than the time at which NAFTA came into force").
146. See, e.g., Barbara Koremenos, Contracting Around International Uncertainty, 99 AM. POL. SCI. REV. 549, 551 (2005) (noting that involving more states in negotiations may make the negotiations last longer than those between fewer states).
147. See, e.g., Michael J. Gilligan, Is There a Broader-Deeper Trade-Off in International Multilateral Agreements?, 58 INT'L ORG. 459, 461 (2004);
148. See, e.g., Protocol to the International Convention for the Prevention of Pollution from Ships art. 5, para. 1, Feb. 17, 1978, 1340 U.N.T.S. 61 (providing that the Convention "shall enter into force twelve months after the date on which not less than fifteen States, the combined merchant fleets of which constitute not less than fifty per cent of the gross tonnage of the world's merchant shipping, have become Parties to it").
149. See BETH VAN SCHAACK & RONALD C. SLYE, INTERNATIONAL CRIMINAL LAW AND ITS ENFORCEMENT: CASES AND MATERIALS 347 (2007).
150. See ICC, Assembly of States Parties, 5th Sess., Special Working Grp. on the Crime of Aggression, Informal Inter-Sessional Meeting of the Special Working Group on the Crime of Aggression, ¶ 18, ICC-ASP/5/SWGCA/INF.1 (Nov. 23-Dec. 6, 2006), available at http://www.icc-cpi.int/iccdocs/asp-docs/ICC-ASP- 5-SWGCA-INF1-English.pdf.
151. See id. ("Additional states submitted 'information concerning the appointment of representatives,' bringing the number of potential voting states up to 85. . ." (quoting Valerie Oosterveld, Final Day in Kampala, INTLAWGRRLS ( June 11, 2010), http://www.intlawgrrls.com/2010/06/final-day-in- kampala.html)).
152. See Todd J. Zywicki & Edward Peter Stringham, Common Law and Economic Efficiency (George Mason Law & Econ. Research Paper Series, Paper No. 10-43, 2010), available at http://ssrn.com/abstract=1673968 (reviewing the literature on whether the common law evolves toward efficiency).
153. See Eugene Kontorovich, Inefficient Customs in International Law, 48 WM. & MARY L. REV. 859, 889-94 (2006) (offering a list of circumstances under which a community is most likely to develop efficient norms-such as small group size and frequent group member interaction-and subsequently arguing that international states do no possess such attributes).
154. See Republic of Argentina v. City of New York, 250 N.E.2d 698, 700 (N.Y. 1969) ("The Department of State is of the opinion that under recognized principles of international law and comity the several states of the United States, as well as their political subdivisions, should not assess taxes against foreign government-owned property used for public noncommercial purposes."
155. (quoting Letter from Richard D. Kearney, Acting Legal Adviser, Dep't of State, to the Comptroller of the City of N.Y. (Sept. 2, 1965)) (internal quotations omitted)).
156. See Jurisdictional Immunities of the State (Ger. v. It.), ¶ 107 (Feb. 3, 2012), available at http://www.icj-cij.org/ docket/files/143/16883.pdf (upholding Germany's immunity under international law from judgments against it rendered by Italian courts).
157. See Permanent Mission of India, 618 F.3d at 177;
158. see also Republic of Argentina, 250 N.E.2d at 700 n.2 ("In view of the many consulates and other government offices which it maintains abroad, the United States unquestionably has a real interest in having the court find that such property is immune from taxation under international law.").
159. See Permanent Mission of India, 618 F.3d at 175;
160. see also Designation and Determination under the Foreign Missions Act, 74 Fed. Reg. 31,788, 31,788 ( July 2, 2009) (discussing the state practice of granting residences exemption from taxation and designating it as a benefit under the Foreign Missions Act).
161. Permanent Mission of India, 618 F.3d at 178.
162. 74 Fed. Reg. at 31,788.
163. The dispute in Permanent Mission of India involved the tax-exempt status of a permanent mission to the United Nations, 618 F.3d at 175, a slightly different question than the tax-exempt status of diplomatic missions. Nevertheless, the broader point about the effect of tax exemptions remains the same.
164. See Rep. of the Int'l Law Comm'n, 58th Sess., May 1-June 9, July 3-Aug. 11, 2006, ¶ 242-45, U.N. Doc A/61/10;
165. GAOR, 61st Sess., Supp. No. 10 (2006) (describing the phenomenon of fragmentation in international law and the challenge it poses).
166. See, e.g., Harlan Grant Cohen, Finding International Law, Part II: Our Fragmenting Legal Community, 44 N.Y.U. J. INT'L L. & POL. (forthcoming 2012)
167. Andreas Fischer-Lescano & Gunther Tuebner, Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law, 25 MICH. J. INT'L L. 999, 1001-02 (2004) (discussing "[t]he issue of how to combat" fragmentation, as well as "all the problems of contradictions between individual decisions, rule collisions, doctrinal inconsistency and conflict between different legal principles. . increasingly concerning case law, expert committees, ICJ Presidents and academic controversies") (footnotes omitted).
168. See, e.g., William W. Burke-White, International Legal Pluralism, 25 MICH. J. INT'L L. 963, 967 (2004) ("An alternate perspective on the increasing number of fora for international legal adjudication is that international law is today more relevant than it has ever been in the past.");
169. see also ANNE-MARIE SLAUGHTER, A NEW WORLD ORDER 10 (2004) ("[W]e need global rules without centralized power but with government actors who can be held to account through a variety of political mechanisms. . . [A] world order based on government networks, working alongside and even in place of more traditional international institutions, holds great potential.");
170. Martti Koskenniemi & Päivi Leino, Fragmentation of International Law? Postmodern Anxieties, 15 LEIDEN J. INT'L L. 553, 555 (2002)
171. (quoting H.E. Judge Gilbert Guillaume, President, Int'l Court of Justice, Speech to the Gen. Assembly of the United Nations (Oct. 30, 2001) (transcript available at http://www.icj-cij.org/court/index.php? pr=82&pt=3&p1= 1&p2=3&p3=1)) (internal quotation marks omitted);
172. See Caroline Henkels, Overcoming Jurisdictional Isolationism at the WTO-FTA Nexus: A Potential Approach for the WTO, 19 EUR. J. INT'L L. 571, 574 (2008) (explaining that jurisdictional overlap and the rise in adjudicative fora with compulsory jurisdiction increases the risk of conflicting decisions and fragmentation).
173. Kal Raustiala & David G. Victor, The Regime Complex for Plant Genetic Resources, 58 INT'L ORG. 277, 299 (2004) (arguing that actors, when given the choice of any of a multitude of fora for developing international rules, will select a forum that is best suited to their interests).
174. See J. Patrick Kelly, The Twilight of Customary International Law, 40 VA. J. INT'L L. 449, 510 & n.254, 511 (2000) (detailing the "curious era" in which new states adopted the minimum customary standards of the once-controlling Western nations).
175. See Curtis A. Bradley & Mitu Gulati, Withdrawing from International Custom, 120 YALE L.J. 202, 230-31 (2010) (arguing that Western countries developed the theory that one could not withdraw from customary international law during decolonization to ensure that customary international law developed by Western states would continue to bind new states).
176. The median voter model is a theoretical model of voting in which the median member of a group determines the group's policy choices. See generally Duncan Black, On the Rationale of Group Decision-making, 56 J. POL. ECON. 23 (1948) (articulating and outlining the original rationale behind the theorem).
177. Jesse Richman, Parties, Pivots, and Policy: The Status Quo Test, 105 AM. POL. SCI. REV. 151, 152 (2011).
178. See Jonathan B. Potts, Note, Stabilizing the Role of Umbrella Clauses in Bilateral Investment Treaties: Intent, Reliance, and Internationalization, 51 VA. J. INT'L L. 1005, 1006 (2011) (noting that the United States is a party to 40 BITs and that approximately 2600 exist worldwide).
179. 4 R.I.A.A. 60, 61 (U.S.-Mex. Gen. Cl. Comm'n 1926)
180. See, e.g., Glamis Gold, Ltd. v. United States, Award, ¶ 21 (NAFTA UNCITRAL Arb. Trib. 2009), http://italaw.com/documents/Glamis-Award.pdf (holding that the standard for fair and equitable treatment had not changed since Neer).
181. G.A. Res. 3281 (XXIX), U.N. Doc. A/RES/3281 (Dec. 12, 1974).
182. Andean Commission, Common Regime of Treatment of Foreign Capital and of Trademarks, Patents, Licenses, and Royalties, Decision 24 art. 50, Nov. 30, 1976, 16 I.L.M. 138, 153.
183. See U.N. Conference on Trade & Dev. (UNCTAD), Bilateral Investment Treaties 1959-1999, at 25-123, U.N. Doc. UNCTAD/ITE/IIA/2 (2000), available at http://www.unctad.org/en/docs/poiteiiad2.en.pdf (listing all BITs that countries entered into between 1959 and 1999, including those to which Andean Pact nations were parties).
184. See, e.g., Marek Wierzbowski & Aleksander Gubrynowicz, Conflict of Norms Stemming from Intra-EU BITs and EU Legal Obligations: Some Remarks on Possible Solutions (arguing that it would be difficult to get states to agree that FET is part of the international minimum standard), in INTERNATIONAL INVESTMENT LAW FOR THE 21ST CENTURY 544, 549 (Christina Binder et al. eds., 2009).
185. See 2004 U.S. MODEL BIT, supra note 40, at 38; 2004 CANADA MODEL FOREIGN INVESTMENT PROMOTION AND PROTECTION AGREEMENT, annex B, art. 13(1), available at http://www.international.gc.ca/trade-agreements-accords-commerciaux/assets/ pdfs/ 2004-fipa-model-en.pdf.
186. See Suzanne A. Spears, The Quest for Policy Space in a New Generation of International Investment Agreements, 13 J. INT'L ECON. L. 1037, 1051 (2010) (noting that a 2005 free trade agreement between India and Singapore and a 2006 BIT between China and India incorporated interpretative statements similar to those adopted in 2004 in the United States and Canada's model BITs).
187. Common Mkt. for E. and S. Africa (COMESA), Investment Agreement for the COMESA Common Investment Area art. 20(8), May 23, 2007 available at http://vi.unctad.org/files/wksp/iiawksp08/docs/wednesday/ExerciseMaterials/ invagreecomesa.pdf.
188. See Ass'n of Se. Asian Nations (ASEAN), ASEAN Comprehensive Investment Agreement annex 2, Feb. 26, 2009, available at http://www.asean.org/documents/ FINAL-SIGNED-ACIA.pdf ("Nondiscriminatory measures of a Member State that are designed and applied to protect legitimate public welfare objectives, such as public health, safety and the environment, do not constitute an expropriation. . .");
189. See Pierre Sauvé, Multilateral Rules on Investment: Is Forward Movement Possible?, 9 J. INT'L ECON. L. 325, 330-31 (2006) (acknowledging the impasse that developed between countries that supported investment negotiations in the WTO and those that opposed them).
190. Id. at 331. Brazil, for its part, has signed 15 BITs but has not brought a single one into force. See ICSID Database of Bilateral Investment Treaties, ICSID, http://icsid.worldbank.org (follow "Publications" hyperlink; then follow "Search Listings of Bilateral Investment Treaties" hyperlink; then follow "Brazil (15)" hyperlink) (last visited Jan. 15, 2012).
191. George Chifor, Caveat Emptor: Developing International Disciplines for Deterring Third Party Investment in Unlawfully Expropriated Property, 33 LAW & POL'Y INT'L BUS. 179, 271 n.326 (2002).
192. See Stefan D. Amarasinha & Juliane Kokott, Multilateral Investment Rules Revisited (arguing that the failure of the MAI was partially attributable to a "lack of support from industry who found that. . existing BITs provided better protection"), in THE OXFORD HANDBOOK OF INTERNATIONAL INVESTMENT LAW 119, 127 (Peter Muchlinski et al. eds., 2008).
193. OECD, Negotiationg Grp. on the Multilateral Agreement on Inv., The Multilateral Agreement on Investment: Commentary to the Consolidated Text, DAFFE/MAI(98)8/REV1 (Apr. 22, 1998), available at http://www1.oecd.org/af/mai/ pdf/ng/ng988r1e.pdf.
194. OECD, The MAI and Bilateral, Regional and Sectoral Agreements, Note by the Chairman, DAFFE/MAI(96)26 (Aug. 30, 1996), available at http://www1.oecd. org/daf/mai/pdf/ng/ng9626e.pdf.
195. See Anca Radu, Foreign Investors in the EU-Which 'Best Treatment'? Interactions Between Bilateral Investment Treaties and EU Law, 14 EUR. L.J. 237, 241 (2008) ("The Commission. . found that a number of provisions in the BITs concluded by eight [Central and Eastern European] countries with the USA and Canada were inconsistent with the EU law and had to be renegotiated.").