International Organizations Then and Now - Alvarez

International Organizations: Then and Now
Author(s): José E. Alvarez

Source: The American Journal of International Law, Vol. 100, No. 2 (Apr., 2006), pp. 324-
347
Published by: Cambridge University Press
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INTERNATIONAL ORGANIZATIONS: THEN AND Now
ByJos E. Alvarez*
International organizations (or IOs)-intergovernmental entities established by treaty, usu-

ally composed of permanent secretariats, plenary assemblies involving all member states, and
executive organs with more limited participation-are a twentieth-century phenomenon hav-
ing little in common with earlier forms of institutionalized cooperation, including those in
ancient world.1 The story of how, shortly after the turn of the last century, the Euro-Ameri
lawyers that dominated the field of international law sought to transcend the chaos of war
"moving to institutions" has been told elsewhere and needs no repeating here. David Kennedy
Martti Koskenniemi, and David Bederman, among others, have described the disparate in
viduals, separated by nationality, juridical philosophy, and competing "idealist"/"realis
schools of thought, who nevertheless shared a messianic, quasi-religious, and coherent "inter
nationalist sensibility" that sought to institutionalize multilateral diplomacy with a view
promoting civilization and progress.2 Kennedy locates the move to international organization
in turn-of-the-century reformist aspirations for parliamentary, administrative, and judicial
mechanisms that, in the Victorian language of the day, would convert "passion into reason."3
By the time thisJournalwas established, the Congress of Vienna's concert system had provid
a model for an incipient (albeit only periodic) pseudo-parliament; diverse public administ
tive unions and river commissions suggested the possibilities for international administratio
and even the interstate pooling of funds; and the Permanent Court of Arbitration presaged
international judiciary.4
The decisive move to institutionalize what heretofore had been only fitful attempts to codif
discrete areas of international law, jointly administer the global commons (such as with resp
to certain rivers and postal services), and peacefully settle interstate disputes, came, of cour
in 1919, when the Covenant establishing the League of Nations was concluded. This was
break with prior practice that transformed ad hoc practice into more integrated institution
* Of the Board of Editors.

1 See, e.g.,A. E. R. Boak, GreekInterstateAssociationsandtheLeague ofNations, 15 AJIL 375 (1921); seealsoJo
Ober, Classical Greek Times, in THE LAW OF WAR (Michael Howard et al. eds., 1994) (discussing, among o
things, theAmphictyonic League, an organization of Greek peoples that regulated the affairs of Delphi); Steve Sh
pard, The Laws of War in the Pre-Dawn Light: Institutions and Obligations in Thucydides' Peloponnesian War, 4
COLUM. J. TRANSNAT'L L. 905 (2005) (semble). But Boak, who points out that the Greek leagues "were only
ated and held together under the leadership of one state more powerful than the rest," concludes his article w
prescient query: he wonders whether the nascent League of Nations would fail for lack of a comparably powerf
state or group of states capable of coercive enforcement. Boak, supra, at 383.
2 See, e.g., MARTTI KOSKENNIEMI, THE GENTLE CIVILIZER OF NATIONS: THE RISE AND FALL OF INTER
NATIONAL LAW, 1870-1960 (2002); David Kennedy, The Move to Institutions, 8 CARDOZO L. REV. 841 (198
David J. Bederman, Appraising a Century ofScholarship in the American Journal of International Law, 100 AJ
(2006); see also Michael Barnett & Martha Finnemore, The Power ofLiberal International Organizations, in POWE
IN GLOBAL GOVERNANCE 161, 163-71 (Michael Barnett & Raymond Duvall eds., 2005) (describing the
vailing liberalism dominating IO thinking in scholarly and policy circles).
3 Kennedy, supra note 2, at 848, 859.
4 Id. at 858; see also D. W. BOWETT, THE LAW OF INTERNATIONAL INSTITUTIONS 1-9 (4th ed. 1982)
324
2006] CENTENNIAL ESSAYS 325
The establishment of the League of Nations-a subject that understandably rece

erable attention in this Journal-sought to make permanent the forms of great-pow
eration first seen in the course of World War I. It also sought to change, in rhetorica
in fact, the waging of war into the discourse of "dispute resolution."5
As is clear from President Wilson's address-published in theJournal-when h
the draft League Covenant at a Paris conference on February 14, 1919, those w
League presaged many contemporary dilemmas: how best to deploy law in the servi
how to further "democratic" representation in a body representing the "great body
ples of the world," how to construct a constitutive instrument that would also be a
life" suited to "changing circumstances," how to ensure transparency in internation
and how best to promote the development of the "helpless peoples of the world."6 T
siderable extent, the post-World War II establishment of the United Nations a
Woods systems was only a continuation, with midcourse corrections and embe
(such as creating institutions to address problems of international finance and econ
(interrupted) hope to institutionalize the aspirations of the "international communi
twentieth century's "move to institutions," as Kennedy describes it, constituted a m
utopian aspirations to institutional accomplishment; that is, a move to replace
institutions that would promote the economic development of the colonized, end w
international dispute settlement, affirm human rights and other "community" goa
discourse, advance "democratic" governance at both the national and the internation
and codify and progressively develop, on the basis of "scientific principles," in
rules-all by turning to the construction ofproceduralist rules, mechanisms for adm
regulation, and forums for institutionalized dispute settlement.8
Despite the collapse of the League of Nations, and revolutionary changes in foreig
and technology, public international lawyers have today largely achieved their
dream to institutionalize. The nearly three hundred IOs-regional and global, pr
both high-profile issues of war and peace and more prosaic "technocratic" matters-
forty institutionalized international dispute settlers that now address virtually eve
human endeavor, including matters once regarded as exclusively subject to national
these lawyers' faith in technocratic and legal elites, neutral forms of adjudication m
the independent judiciary of rule-of-law states, Western models of governance and
kets, and functionalist needs as the drivers of international cooperation.9 Although
5 Kennedy, supra note 2, at 849, 866. Despite the U.S. decision not to participate, theJournal cl
subsequent League developments. See, e.g., Charles Noble Gregory, The FirstAssembly of the League
AJIL 240 (1921).
6 See Current Note, The League of Nations, 13 AJIL 570, 572-75 (1919). President Wilson's add
ticularly prescient given current concerns over the "democratic deficits" of IOs, see infra at notes 9
responding text. He noted that since it is "impossible to conceive a method or an assembly so large a
to be really representative of the great body of the peoples of the world," the best alternative was to
ernment be represented by two or three representatives, though only a single vote, so that a number
speak from time to time for each government. Id. at 572.
7 For a backward-looking view of the UN Charter as correcting the perceived flaws of the League o
enant, see BOWETT, supra note 4, at 17-22. For discussion of the turn to institutions in the interna
area, see, for example, the centennial essays by John H. Jackson, InternationalEconomic Law-A Grow
Sub-Subject of nternationalLaw, 100 AJIL, and Detlev F. Vagts, InternationalEconomic Law and theAm
ety ofInternational Law, 100 AJIL (both forthcoming July 2006).
8 Kennedy, supra note 2, at 984-85.
9 For descriptions of existing IOs, see HENRY G. SCHERMERS & NIELS M. BLOKKER, INTERNAT
TUTIONAL LAW: UNITY WITHIN DIVERSITY (4th rev. ed. 2003); PHILIPPE SANDS & PIERRE KLEI
LAW OF INTERNATIONAL INSTITUTIONS (5th ed. 2001). Note that a substantial proportion of new
created not by governments but by other IOs and that traditional IOs created by treaty declined fr
326 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 100:324
differ in relation to many variables-from degree of legalization10 to measurable real-world

impact '-1they are the unmistakable progeny of the "Grotian tradition" memorably described
by Hersch Lauterpacht in 1946.12 The UN and Bretton Woods organizations, and other IOs
that aspire to global participation, such as the World Trade Organization (WTO), institution-
alize Lauterpacht's eleven features of the "Grotian tradition." They attempt to subject the total-
ity of international relations to the rule oflaw; inspire conceptions of a new form ofjusgentium;
affirm the social nature of humankind; recognize that individual human beings (and not just
states) are of direct concern to international law; seek to subject all states, including the most
powerful, to the rule of law; reject the idea that the decision to wage a "just war" is ultimately
the "supreme prerogative" of individual states; subject the privilege of remaining neutral to IO
(e.g., Security Council) exception; rely on the binding force of treaty promises; affirm the foun-
dational rights and freedoms of the individual; err on the side of pacifism; and reflect a tradition
of "idealism and progress."13
In large and small ways, IOs have accomplished more than their creators anticipated. As this
Journal's other centennial essays begin to suggest, they have transformed the sources of inter-
national obligations as well as their content, the principal lawmaking actors, and even our
understanding of what "international law" is and what it means to "comply" with its rules.14
I. IOs AND THE RULES OF INTERNATIONAL LAW
Dinah Shelton's examination of "normative hierarchy" suggests some of the changes in

modern sources of international obligation that are at least partly attributable to institution-
alization. 15Jus cogens and erga omnes obligations are products of the age ofIOs precisely because
they made real (or more real than ever before) the idea of a "community of states as a whole"
on which such hierarchical concepts could be built. The articulation ofjus cogens-in Article
53 of the Vienna Convention on the Law of Treaties16-resulted from the kind of "package
deal" that characterizes treaty making in institutionalized global venues involving UN expert bodies
(in this instance, the International Law Commission [ILC]) and UN-authorized treaty-making
to 339 in 1992, while "emanations" from other IOs increased from 669 to 808. Eric Stein, InternationalIntegration
andDemocracy: No LoveatFirstSight, 95 AJIL489,489 -90 n.2 (2001). For a listing of international dispute settlers,
see Project on International Courts and Tribunals, Synoptic Chart: The International Judiciary in Context (Nov.
2004), at <http://www.pict-pcti.org>.
10 For one attempt to measure the "degree" of legalization, see Kenneth W. Abbott, Robert O. Keohane, Andrew
Moravcsik, Anne-Marie Slaughter, & Duncan Snidal, The Concept of Legalization, 54 INT'L ORG. 401 (2000)
(measuring legalization in accordance with three variables: obligation, precision, and delegation).
11 Compare Beth Simmons, Money andthe Law: Why Comply with thePublic InternationalLaw ofMoney? 25 YALE
J. INT'L L. 323 (2000) (empirical analysis of relatively high levels of compliance with certain rules of the Interna-
tional Monetary Fund), with Oona Hathaway, Do Human Rights Treaties Make a Difference? 111 YALE L.J. 1935
(2002) (empirical analysis of relatively low levels of compliance with institutionalized human rights regimes). For
a survey of contemporary approaches to compliance, many of which consider the relevancy of institutional factors,
see generally Kal Raustiala & Anne-Marie Slaughter, International Law, International Relations and Compliance, in
HANDBOOK OF INTERNATIONAL RELATIONS 538 (Walter Calnaes, Thomas Risse, & Beth Simmons eds., 2002).
Work on the institutionalization of compliance has often been grounded in drawing from or contrasting the expe-
riences of the European Union, see, e.g., Jeffrey T. Checkel, Why Comply? Social Learning and European Identity
Change, 55 INT'L ORG. 553 (2001), and especially that regime's reliance on judicialized lawmaking, seegenerally
MARTIN SHAPIRO & ALEC STONE SWEET, ON LAW, POLITICS, AND JUDICIALIZATION (2002).
12 Hersch Lauterpacht, The Grotian Tradition in International Law, 1946 BRIT. Y.B. INT'L L. 1.
13 Id. at 19-51.
14 For a book-length treatment of this thesis, see JOSE E. ALVAREZ, INTERNATIONAL ORGANIZATIONS AS
LAW-MAKERS (2005).
15 Dinah Shelton, Normative Hierarchy in International Law, 100 AJIL 291 (2006).
16 Vienna Convention on the Law of Treaties, May 23, 1969, Art. 53, 1155 UNTS 331.
conferences; that is, it placated, as Shelton indicates, the Soviet bloc and newly independent stat
and was part of a single package that stabilized treaty relations through codification, as sought
the West, in exchange for softening the rigor of some preexisting rules, as sought by others.17 Art
53 is also the kind of compromised provision that sometimes emerges from global IO venues w
negotiators with fundamentally inconsistent desires find themselves under pressure to prod
some tangible product within a preestablished time frame.18 Little wonder that, as vaguely defi
in Article 53 (or since),jus cogens remains a "concept in evolution."'9 It was also predictable tha
as Shelton suggests, jus cogens and erga omnes obligations would be more likely to be cited by IO
such as UN human rights treaty bodies, the ILC, and the International Court ofJustice (ICJ), t
by states. One would expect such concepts, evocative of community interests and inspired byArt
2(6) of the UN Charter, to be principally cited by that community's ostensible representativ
Indeed, the premise of hierarchically superior norms assumes that the will of all should prevail o
the renegade "other." This is the same premise that underlies Article 103 of the Charter, which
its that some community rules (and its principal institutional representative, namely the Unite
Nations itself) are superior to others by dint of the claims of the United Nations to universal p
ticipation and its pursuit of universally desired goals.20
The turn to these hierarchical norms also stems from the proliferation of international rule
produced in the age of IOs. When an IO, such as the International Labour Organization (ILO),
becomes such an effective treaty machine that states can no longer keep up with their respect
reporting obligations, it is natural that the organization itself would need to enunciate
"core" obligations expected of all members, even though no such setting of priorities is expl
itly authorized by its constitutive instrument or the underlying labor conventions.21 Much
the impetus for attempting to elevate certain treaty obligations over others emerges as well fro
17 SeegenerallyANTONIO CASSESE, INTERNATIONAL LAW IN A DIVIDED WORLD 176-77 (1986) (describin

the evolution of the rules in the Vienna Convention). The term "package deal" may mean either provisions o
treaty negotiated, on the basis of consensus, that appeal to different groups of states, or treaty provisions subjec
an express limitation on reservations or severability designed to prevent the dismantling of the "package" at the t
of ratification. See Hugo Caminos & Michael R. Molitor, Progressive Development ofInternationalLaw andthe Pac
age Deal, 79 AJIL 871 (1985). According to Cassese's description of the negotiating dynamics of the Vienna C
vention, the insertion ofjus cogens appears to fit both descriptions of a "package deal," at least to some degree, s
the concept was favored by developing countries especially and its inclusion seems to have played a role in secu
their acceptance of a package that did not include some of their other preferred "progressive" changes. In additi
although the Vienna Convention on the Law of Treaties does not prohibit reservations, the terms of Article 53 (b
ring any derogation from a "peremptory norm") attempt to achieve the second purpose of some "package deals
at least with respect to jus cogens.
18 Compare Bruno Simma, Consent: Strains in the Treaty System, in THE STRUCTURE AND PROCESS OF INTE
NATIONAL LAW 487, 494 (Ronald St. J. Macdonald & Douglas M. Johnston eds., 1983) (contending that wh
IO forums produce a treaty, the "lowest common denominator" provisions deemed necessary to facilitate its con
clusion in global venues, or to encourage the widespread ratification that is often regarded as the indicator of succ
may devalue the entire exercise).
19 Shelton, supra note 15, at 301 n.63 (citing commentary at 1986 UN conference).
20 An abundant literature derives from this premise that the UN Charter constitutes a kind of "constitution"
the world. See, e.g., ERIKA DE WET, THE INTERNATIONAL CONSTITUTIONAL ORDER (2005); Blaine Sloan,
UnitedNations Charter as a Constitution, 1989 PACE Y.B. INT'L L. 61; N. White, The UnitedNations System: C
ference, Contract, or Constitutional Order? 4 SING. J. INT'L & COMP. L. 281 (2000).
21 See Fundamental ILO Conventions, at <http://www.ilo.org/public/english/standards/norm/whata
fundam/index.htm> (last modified Oct. 20, 2000). This is not the ILO's sole attempt to suggest a hierarchy with
international labor law. The ILO's Constitution has also been read to imply members' commitment to cert
"core" obligations, such as the right to form labor unions, and to include a sub silentio commitment to respond
complaints alleging the violation of such rights. See FREDERIC L. KIRGIS JR., INTERNATIONAL ORGANIZATION
IN THEIR LEGAL SETTING 413-25 (2d ed. 1993). As Shelton suggests, other IOs have done the same. Shelton
supra note 15, at 314-15 (discussing hierarchically superior norms, as found by the Human Rights Commit
under the International Covenant on Civil and Political Rights).
the sheer proliferation ofIOs, the fact that most of them have engaged in various forms of"mis-
sion creep," and the consequent need for IOs to work out problems at the "joints" between their
respective "regime complexes."22 One way to resolve IO turf battles or boundary issues that can
no longer be easily resolved through the mechanical application of the rules applicable to suc-
cessive treaties is to suggest normative hierarchies-as between, for example, the WTO's trade
rules, the ILO's labor norms, and quasi-institutionalized environmental regimes.
As IOs, whether prompted by the functionalist needs of their members or the desires of their
bureaucrats, expand their original mandates, their normative reaches extend beyond what their
creators had anticipated, generating yet more regulatory imperatives to resolve the resulting
potential conflicts. Thus, the expanding range of institutionalized human rights regimes,
which now address a dense set of individual and group rights in political, economic, cultural,
and social domains, inevitably intrudes into the expanding missions of the World Bank (an
institution that in turn no longer sees itself as confined to the financing of infrastructure
projects) or the International Monetary Fund (IMF) (now no longer confined to maintaining
states' fidelity to fixed exchange rates).23 The predictable outcome is, first, a growing de facto
acceptance of teleological interpretation of IO charters, permitting the expansion of IO man-
dates and making it possible for IOs to respond to them creatively,24 and second, innovative
regulatory phenomena as varied as World Bank operational policies relating to the treatment
of indigenous peoples and IMF structural adjustment conditions intended to advance an
alleged human right entitlement to "democratic governance."25
The turn to various forms of"soft law," also addressed by Shelton, is in no small part attrib-
utable to IOs.26 Given the lack of stare decisis in the international system, perhaps the largest
22 See, e.g., Kal Raustiala & David G. Victor, The Regime ComplexforPlant Genetic Resources, 58 INT'L ORG. 277,
279-80 (2004) (describing the consequences of the rising density of international institutions as "regime com-
plexes" consisting of partially overlapping rules evincing path dependence, forum shopping, norms to handle issues
at the "joints" between regimes, and delegations of authority to various interpreters or enforcers). For descriptions
ofvarious forms of"mission creep" among IOs and its consequences on relationships between IOs, see, for example,
THE UN SECURITY COUNCIL: FROM THE COLD WAR TO THE 21ST CENTURY 1-115 (David M. Malone ed.,
2004); Jessica Einhorn, The World Bank's Mission Creep, FOREIGN AFF., Sept/Oct. 2001, at 22; Andre Newburg,
The ChangingRoles ofthe Bretton Woods Institutions: Evolving Concepts ofConditionality, in INTERNATIONAL MON-
ETARY LAW: ISSUES FOR THE NEW MILLENNIUM 81 (Mario Giovanoli ed., 2000); Paul C. Szasz, The WorldBank
and Tobacco, in LIBER AMICORUM IBRAHIM F. I. SHIHATA 793 (Sabine Schlemmer-Schulte & Ko-yung Tung
eds., 2001); David Vines, The WTO in Relation to the Fund and the Bank: Competencies, Agendas, and Linkages, in
THE WTO AS AN INTERNATIONAL ORGANIZATION 59 (Anne O. Krueger ed., 1998). Seegenerally Symposium:
The Boundaries of the WTO, 96 AJIL 1 (2002).
23 Seegenerally MAC DARROW, BETWEEN LIGHT AND SHADOW: THE WORLD BANK, THE INTERNATIONAL
MONETARY FUND AND INTERNATIONAL HUMAN RIGHTS LAW (2003).
24 For a discussion of how the interpretation of 10 charters has been "constitutionalized" through teleological
interpretation, see ALVAREZ, supra note 14, at 65-108. See, e.g., Hannes L. Schloemann & Stefan Ohlhoff, "Con-
stitutionalization "andDispute Settlement in the WTO: National Security as an Issue of Competence, 93 AJIL 424, 424
(1999) ("Constitutional structures are developing much faster in international trade law than in any other area of
international law. . ."). For a thoughtful review and critique of such views with respect to the WTO, see DEBORAH
Z. CASS, THE CONSTITUTIONALIZATION OF THE WORLD TRADE ORGANIZATION (2005).
25 See RONALD CHARLES WOLF, TRADE, AID, AND ARBITRATE 101-10 (2004); David F. Fidler, A Kinder,
Gentler System of Capitulations? International Law, StructuralAdjustment Policies and the Standards ofLiberal, Glob-
alized Civilization, 35 TEX. INT'L L.J. 387 (2000); Benedict Kingsbury, Operational Policies oflnternationalInsti-
tutions as Part of the Law-making Process: The World Bank and Indigenous Peoples, in THE REALITY OF INTERNA-
TIONAL LAW 323 (Guy S. Goodwin-Gill & Stefan Talmon eds., 1999); see also Daniel Kalderimis, IMF
Conditionality as Investment Regulation: A TheoreticalAnalysis, 13 SOC. & LEGAL STUD. 103 (2004).
26 Christine Chinkin has enumerated six definitions of "soft" law; namely, norms that (1) have been articulated
in nonbinding form; (2) contain vague or imprecise terms; (3) emanate from bodies lacking international lawmak-
ing authority; (4) are directed at nonstate actors whose practice cannot constitute custom; (5) lack any correspond-
ing theory of responsibility; and (6) are based solely upon voluntary adherence. Christine Chinkin, Normative
Development in the International Legal System, in COMMITMENT AND COMPLIANCE: THE ROLE OF NON-BIND-
ING NORMS IN THE INTERNATIONAL LEGAL SYSTEM 21, 30 (Dinah Shelton ed., 2000).
body of emerging "soft law" today is the ever-increasing numbers of judgments issue
ious permanent international courts and tribunals, as well as the myriad comments an
issued by institutionalized human rights treaty bodies and officials such as the UN sp
porteur on torture.27 These judicialized, or at least reasoned, opinions, some formally
(but only on parties to them) and many purely advisory, constitute attempts at treat
tomary law interpretation that-as can be said of the opinions issued by the WTO
Body, the ICJ, and the ad hoc war crimes tribunals-are influential generally and, in a
are treated as quasi-binding precedents by the bodies issuing them. For this reason, ir
of their formally nonbinding status on nonparties, these manifestations of soft law c
ignored by international lawyers and, at the very least, form a subsidiary source of int
obligation as much as any "judicial opinion" identified in Article 38 of the ICJ's Statut
same might be said of many resolutions, codes of conduct, conference declarations, an
products ofIOs, some of which are mentioned by Shelton, that, even when not cited b
ernments as binding authority, are frequently deployed by other actors-nongove
organizations (NGOs), multinational corporations, and international secretariats-
ing, settling disputes, or assisting in the interpretation of binding law, both national an
national. As Shelton suggests, recourse to such instruments, though bemoaned by trad
positivists like Prosper Weil, is characteristic of other institutions-from those of the
istrative state to the modern corporation-that also develop informal mechanisms to en
social norms in permanent iterative settings involving repeat players.
The changes in the forms of international obligation have been accompanied by IO-i
changes in their content. Many of the substantive normative principles most closely assoc
modern public international law owe their existence to IOs. Consider the ostensible "dut
erate" or to negotiate multilaterally prior to undertaking unilateral action, as cited by Europ
yers critical of recent U.S. attempts to forgo many multilateral regimes, or as deployed by
Appellate Body in the Shrimp/Turtle case.28 Whether or not such a duty exists generally
certain regimes such as trade or environmental protection, it is premised on the existen
ularized (usually permanent) forums that concretize the broader "community" to which
is owed.29 The same can be said of other familiar treaty or customary law concepts, such as
but differentiated responsibilities" and "duties to warn" or "to consult."30
Many other changes in contemporary international legal process-the ways modern t
and rules of custom arise or die-are also attributable to institutionalization. This
scarcely surprise since the majority of today's multilateral treaties are the product of
tionalized venues. They result from treaty-making conferences authorized by IOs wit
tated time frames and locales; are based on prior consideration by designated "ex
diverse as those within UNCITRAL, the ILC, and technocratic committees such as aviat
27 See generally ALVAREZ, supra note 14, at 458-520, 545-66.

28 See, e.g., CASSESE, supra note 17, at 185 (contending that the "duty to cooperate" emerges naturally
universal participation of states in modern lawmaking settings since it makes negotiations between diver
conflicting groups of states possible); Pierre-Marie Dupuy, The Place and Role of Unilateralism in Co
International Law, 11 EUR. J. INT'L L. 19, 22-25 (2000) (arguing that the "law of coexistence" broug
the UN system is the "basis for the whole post-war international legal order" and requires states to "cho
of compromise and negotiated settlement").
29 See, e.g., Bruno Simma & Andreas L. Paulus, The 'International Community': Facing the Challeng
ization, 9 EUR. J. INT'L L. 266, 266 (1998) (claiming that the Lotus principle "is giving way to a mo
nitarian, more highly institutionalized international law, in which states 'channel' the pursuit of most o
vidual interests through multilateral institutions").
30 See FREDERIC L. KIRGIS JR., PRIOR CONSULTATION IN INTERNATIONAL LAW: A STUDY OF ST
TICE (1983); Christopher D. Stone, Common butDifferentiatedResponsibilities in InternationalLaw, 98 AJI
specialists within the International Civil Aviation Organization (ICAO); emerge from man-
agerial forms of treaty making such as framework conventions elaborated by later protocols
negotiated in quasi-institutionalized conferences of the parties (COPs) or meetings of the parties
(MOPs); or rely on institutionalized reporting obligations that apply even prior to ratification or
that require a state to "opt out" to avoid being bound.31 These innovations have subverted the prin-
ciple of state consent as legitimating norm, and transformed the negotiating dynamics as well as the
specific outcomes of multilateral treaty negotiations.32 IO venues have generally made it easier to
conclude the ambitious multilateral treaties that characterize the modern era-treaties that both
aspire to and sometimes require nearly universal participation to achieve their grandiose goals (such
as to establish rules on the areas of the global commons, the interpretation of treaties, or the conduct
of diplomatic relations). It is also to be expected that treaties that are themselves the outcome of
modern institutionalized venues, unlike nineteenth-century interstate compacts, would sometimes
establish yet more institutionalized forms of cooperation (such as the permanent International
Criminal Court) that in turn rely on models (e.g., Security Council-generated ad hoc war crimes
tribunals) or institutions (e.g., the Security Council or an "independent civil service") that are the
unique progeny of the age ofIOs.
Political scientists and economists further explain the success of such ambitious treaty ven-
tures as the result of IO-derived path dependencies, increased access to or a lowering of costs
with respect to information, reductions in transaction costs or the risks of free riders, and
enhanced opportunities for the pooling of assets, expertise, issue linkage, and package deals.33
Less abstractly, IO negotiating venues simply make it easier to conclude treaties that involve
ever-larger numbers of states because they make it unnecessary to revisit basic rules of proce-
dure or voting, permit reliance on "independent" secretariats for compromise formulations or
final clauses (as with respect to entry into force or reservations), and provide a neutral central
registry for ratifications and reservations.34
But IOs do not just explain treaty successes; they also explain many contemporary treaty
failures. Choosing between IO negotiating forums-part of a broader "forum shifting" phe-
nomenon-is now a crucial strategic choice. Powerful states may choose to advance their inter-
ests through the shrewd sequential selection of negotiating forums-as the United States did
regarding the regulation of corruption, by first negotiating bilaterally, later going to a regional
organization sympathetic to its views (the Organization for Economic Co-operation and
Development), and only thereafter moving to more globally representative institutions such
31 See generally ALVAREZ, supra note 14, at 273-337; Paul C. Szasz, General Law-making Processes, in THE
UNITED NATIONS AND INTERNATIONAL LAW 27 (Christopher C. Joyner ed., 1997); Frederic L. Kirgis Jr., Spe-
cialized Law-making Processes, in id. at 65.
32 International organizations' deployment of their implied powers and reliance on the principle of effectiveness
have contributed to postmodern doubts about relying on state consent as the basis for all international obligations.
See generally MARTTI KOSKENNIEMI, FROM APOLOGY TO UTOPIA: THE STRUCTURE OF INTERNATIONAL
LEGAL ARGUMENT 270-91 (1989).
33 There is a large literature on how IOs are formed by states to overcome collective problems, produce Pareto-
improving outcomes, and enable efficient solutions to contracting problems, incomplete information, and other
market imperfections. See, e.g., ALVAREZ, supra note 14, at 338-65; Kenneth W. Abbott & Duncan Snidal, Why
StatesAct Through FormalInternational Organizations, 42 J. CONFLICT RESOL. 3 (1998); William J. Aceves, Insti-
tutionalist Theory and International Legal Scholarship, 12 AM. U. J. INT'L L. & POL'Y 227, 242-56 (1997).
34 See generally Roy S. Lee, Multilateral Treaty-making and Negotiation Techniques: An Appraisal, in CONTEM-
PORARY PROBLEMS OF INTERNATIONAL LAW: ESSAYS IN HONOUR OF GEORG SCHWARZENBERGER ON HIS
EIGHTIETH BIRTHDAY 157 (Bin Cheng & E. D. Brown eds., 1998). For a detailed look at the contribution of IOs
to the procedural rules governing multilateral treaty making, see ROBBIE SABEL, PROCEDURES AT INTERNA-
TIONAL CONFERENCES: A STUDY OF THE RULES OF PROCEDURE AT CONFERENCES AND ASSEMBLIES OF
INTERNATIONAL INTER-GOVERNMENTAL ORGANIZATIONS (1997).
as the WTO (and ultimately the General Assembly).35 On the other hand, c
"wrong" IO-such as one whose diverse membership makes reconciling incomp
ests and devising a package deal impossible-may prove disastrous. Indeed, it h
gested that both strong and weak states have been known to play the forum-shif
either to encourage a favorable outcome in a friendly venue or to undermine a re
ture they do not favor.36 For better or worse, the involvement ofIOs has demonstr
treaty making.
But IOs have also changed the ways we determine whether "success" has be
Imprecision in treaty terms is no longer a potentially fatal defect in effectivenes
the result of the negotiators' decision to have their treaty-contract be completed
whether through institutionalized adjudication (as in the WTO) or other form
interpretation, both formal and informal (as through recommendations issued
body such as the ILO Assembly, opinions issued by IO legal counsel, views rendere
bodies, or protocols approved by MOPs).37 For these reasons, the efficacy of mult
ties embedded in institutionalized regimes or entrusted to institutional interp
longer be judged as through a single snapshot at an instant in time; such compact
akin to legislative enterprises whose progress can best be measured as through a vid
over time.
The complex (and evolving) regime that now applies to reservations to multilate
is also the child of IOs. The initial decision to sacrifice the integrity of multilater
favor of encouraging universality of participation reflected a predictable ranking o
General Assembly and its path-breaking Genocide Convention, together with the
sory opinion of 1951 that interpreted the Convention. The relatively expeditious t
tion of customary law that recognized this change from the preexisting regime (wh
all treaty parties to accept a proposed reservation) was made possible by other instit
ties; namely, the International Law Commission and the subsequent UN conference
duced the Vienna Convention on the Law of Treaties.38
Furthermore, IOs remain the principal venues for the continuing evolution
regarding treaty reservations. Thus, the effort to demarcate more restrictive rules
reservations to human rights treaties, as well as certain states' attempts to resist su
are both taking place within an institutionalized forum-the Human Rights
more than through intermittent diplomatic exchanges between discrete pairs of s
tion, to resolve this dispute, the community of states is turning-with as y
results-to yet another institutional forum, the ILC, which has an ostensibly broad
self-interested mandate than the Human Rights Committee.39 Another unique pro
age of IOs-the UN secretariat in charge of registering treaties- has become
35 See generally Kenneth W. Abbott, Rule-Making in the WTO: Lessonsfrom the Case ofBribery
4 J. INT'L ECON. L. 275 (2001); Laurence R. Heifer, Regime Shifting: The TRIPsAgreement and the
oflnternational Intellectual Property Lawmaking, 29 YALE J. INT'L L. 1 (2004).
36 See Heifer, supra note 35.
37 See, e.g., KIRGIS, supra note 21, at 426 -31 (describing role of International Labour Office in th
oflabor conventions); Joel P. Trachtman, The Domain of WTO Dispute Resolution, 40 HARV. INT
(describing the gap-filling function of WTO adjudicators).
38 See Reservations to the Convention on the Prevention and Punishment of the Crime of Genoc
Opinion, 1951 ICJ REP. 15 (May 28); Vienna Convention on the Law of Treaties, supra note 16,
discussion of how the content of the Vienna Convention reflected the universal venue in which it
see CASSESE, supra note 17, at 187-91.
39 Seegenerally Ryan Goodman, Human Rights Treaties, Invalid Reservations, and State Consent, 96
change; that office now appears to be modifying the very nature of treaty reservations by accept-
ing reservations not proposed at the time of ratification unless other states object.40
Of course, treaties are not the only traditional source of international law that have been
transformed by IOs. Customary law in the age ofIOs has been channeled away from historians
consumed with surveying extensive state practice over decades or even centuries (as in The
Paquete Habana)41 to institutionalized shortcuts, including reliance on General Assembly res-
olutions, widely ratified multilateral treaties deemed to be expressions of "community" inter-
ests, and other institutionalized work products such as the ILC's draft rules on state respon-
sibility and commentaries. This approach is as likely to be taken by national courts, as in Judge
Kaufman's decision in the Filartiga case, as by scholars and international tribunals.42 The
"new" customary international law is most often the product of the interaction of organs that
claim communal legitimacy based on neutral status (e.g., IO political organs, IO secretariats,
and international courts), expertise (e.g., IO expert bodies), or universal participation (e.g., IO
plenary bodies).43 These rules differ from nineteenth-century forms of custom in the speed
with which they form and evolve, the degree of participation claimed, and, often, the extent
to which the rules substantively intrude on previously sacrosanct sovereign domains. While
many have praised this new kind of"supranational," "world," "declaratory," or "universal" law
as a new version ofjus gentium, others have pointed to the same phenomenon to suggest new
reasons to resist its domestic incorporation.44 But neither the proponents of"new custom" nor
its detractors deny the impact of the move to institutions.
II. IOS AND THE LAWMAKING ACTORS
Perhaps the biggest change in the ever more institutionalized international legal process concerns
its lawmaking actors and subjects. IOs have "democratized" international lawmaking at least to the
extent that they have encouraged the participation of more states, not merely the "civilized" ones,
as well as nonstate actors, in the production of international rules. Moreover, since, as noted, inter-
national obligations are no longer limited to the formal sources of law listed in Article 38 of the ICJ
40 Palitha T. B. Kohona, Some Notable Developments in the Practice of the UN Secretary-General as Depositary of
Multilateral Treaties: Reservations and Declarations, 99 AJIL 433, 435-39 (2005).
41 The Paquete Habana, 175 U.S. 677 (1900).
42 Filartiga v. Pefia-Irala, 630 F.2d 876 (2d Cir. 1980). Thus, even the generally conservative U.S. Restatement
ofForeign Relations Law recognized the possibility that some General Assembly resolutions could have an impact
on customary law. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES ? 103
reporters' note 2 (1987).
43 For an early recognition of the impact of UN political organs on such fundamental concepts as the "domaine
reserve" of states, see ROSALYN HIGGINS, THE DEVELOPMENT OF INTERNATIONAL LAW THROUGH THE
POLITICAL ORGANS OF THE UNITED NATIONS (1963). For a critical look at judges' reliance on unratified treaties,
see W. Michael Reisman, Unratified Treaties and Other UnperfectedActs in International Law: Constitutional Func-
tions, 35 VAND. J. TRANSNAT'L L. 729 (2002).
44 See, e.g., Jonathan I. Charney, Universal International Law, 87 AJIL 529 (1993); Hiram E. Chodesh, Neither
Treaty nor Custom: The Emergence ofDeclaratory International Law, 26 TEX. J. INT'L L. 87 (1991); Jost Delbriick,
Prospectsfora 'World (Internal) Law'?9 IND. J. GLOBAL LEGAL STUD. 401 (2002); John W. Head, Supranational
Law: How the Move Toward Multilateral Solutions Is Changing the Character of International Law, 42 U. KAN. L.
REV. 605 (1994); Benedict Kingsbury, Nico Krisch, & Richard B. Stewart, The Emergence of GlobalAdministrative
Law, 68 LAW & CONTEMP. PROBS. 15 (2005); see also Benedict Kingsbury, Sovereignty and Inequality, 9 EUR.
J. INT'L L. 599, 611 (1998) (describing the emergence of "world law" through "mimesis, or world culture, or reg-
ulatory competition-from which most states are not free to depart except at intolerable cost"). But see Curtis A.
Bradley & Jack L. Goldsmith, Customary InternationalLaw as Federal Common Law: A Critique ofthe Modern Posi-
tion, 110 HARV. L. REV. 815 (1997) (contending that the qualities of the new forms of customary law provide rea-
sons for not according it the status of U.S. federal law); Curtis A. Bradley & Jack L. Goldsmith, The Current Ille-
gitimacy of International Human Rights Litigation, 66 FORDHAM L. REV. 319 (1997) (semble).
Statute but embrace global forms of regulation that more closely approximate the law o
istrative state, these obligations involve in addition to states, as both lawmaking acto
IOs, individuals, NGOs, multinational corporations, and networks of regulatory of
IOs are surely part of the reason why, as Steve Charnovitz indicates, NGOs have
as instigators and enforcers of international law.46 It is no accident that the mos
NGO roles in the international legal process as, for example, behind-the-scenes tr
and promoters of such contemporary global treaties as the 1989 Convention on th
the Child, the Convention Against Torture, the Statute of the International Crim
and the Ottawa convention banning land mines, or as agents of change, for instan
ing the establishment of the UN High Commissioner for Human Rights, have
The rise to international prominence of NGOs is necessarily the story of the sym
their erstwhile adversaries and abettors, the IOs, from the United Nations to the
have given them observer or consultative status, permitted them to opine as amici,
legitimized them (as by citing their reports). IOs have also empowered (or in s
empowered) other nonstate actors, including business associations, representat
lateral corporations, and trade unions, by permitting or denying them access to t
tum of IO lawmaking. IO lawmaking processes, such as those producing (and e
Codex Alimentarius, have helped to "privatize" the international legal process.
The expansion of lawmaking actors and subjects is to be expected of institut
themselves a new kind of"international legal person" that, in the words of the IC
equivalent nor superior to states, but, within the scope of their charters, can act
makers and law subjects.48 Although some may prefer to describe them as merely
lawmaking action, IOs-whether traditional or not-are for all practical purpos
of lawmaking actor, to some degree autonomous from the states that establish th
now be seen not only as capable of concluding treaties with other international le
(other IOs or states) but as vehicles for the forms of regulation associated with th
branches of government or national administrative agencies-and not just in
fields of the law such as civil aviation and telecommunications; this aspect also be
of "high politics," as through the fertile acts of improvisation that have transfor
VI and VII of the UN Charter to permit the contracting out of the use of force,
of multilateral sanctions, and peacekeeping/peace enforcement actions or determi
45 See, e.g., Kingsbury, Krisch, & Stewart, supra note 44.

46 Steve Charnovitz, Nongovernmental Organizations and International Law, 100 AJIL 348 (2
essay in this issue).
47 See generally DAVID M. LEIVE, INTERNATIONAL REGULATORY REGIMES: CASE STUD
METEOROLOGY, AND FOOD (1976); Naomi Roht-Arriaza, 'SoftLaw'in a 'Hybrid'Organization: T
Organization for Standardization, in COMMITMENT AND COMPLIANCE, supra note 26, at 263
some instruments not produced within IOs, such as the international standards of the Internation
for Standardization (ISO) and soft codes produced by some IOs, may come to be "hardened" (or enf
the actions of other IOs. See David A. Wirth, Commentary, in id. at 330, 338-41 (describing th
dards under the WTO's Agreement on Technical Barriers to Trade); see also ALVAREZ, supra n
48 See Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion,
174 (Apr. 11) (finding that the attributes of the United Nations as an international legal person can
a "principle of effectiveness" that implies the existence of certain powers even when these are not
in its charter [such as the power to conclude treaties, nowhere mentioned in the UN Charter, or t
national claim for injuries], if these are necessary to enable that organization to fulfill its purpos
49 But see Steve Charnovitz, The Relevance of Non-State Actors to International Law, in DEV
INTERNATIONAL LAW IN TREATY MAKING 543, 544 - 48 (Riidiger Wolfrum & Volker Riben e
ing that the UN Security Council, NATO, the Financial Action Task Force, and the WTO "are
actors, but rather are arenas for utilizing persuasion and applying power"; id. at 546).
the International Atomic Energy Agency (IAEA) with respect to arms control.50 As construc-
tivists have shown, although IOs are intergovernmental in nature and rarely accept nonstate
parties as members, their organs and the individuals working within them (from secretaries
general to IO-designated experts) are having an independent impact on international law.
1Os cannot be dismissed as the mere agents of their collective principals, namely their state
members.5' As Michael Barnett and Martha Finnemore point out, the "rational-legal" (or
impersonal or technocratic) character of many IOs accords them a share of autonomy that can
shape the behavior of others, including states.52 While members of 1O secretariats, like most
international judges or arbitrators, are usually self-effacing when it comes to acknowledging
their own authority-a modesty that may be essential to maintaining the myth that they are
simply conduits for the desires of states-in practice they contribute to the "social constitution
of the world," through the promotion of both law and social goods that are deeply and ines-
capably political.53
IOs have also become adept at reproducing themselves, especially (but not only) through
their delegated power to establish subsidiary organs. Organizations in the UN system in par-
ticular have generated, over the course of five decades, a bewildering number of organs and bod-
ies; while today the pace of establishing new formally independent intergovernmental orga-
nizations appears to be slowing down, the urge to institutionalize remains. Each year produces
more subsidiary IO organs and even an occasional proposal for another permanent IO to
address a newly apparent functional need.54 This growth includes the security field, as is sug-
gested by the density of IOs involved in arms control or counterterrorism.55 Indeed, the pro-
liferation of IOs has overtaken international lawyers' ability to classify them. Scholars wrestle
with growing uncertainty about the definition of "international organization," "international
legal persons," and the parameters of the once narrowly demarcated field of "international
institutional law."56 While international lawyers used to assume, in accordance with the ICJ's
advisory opinion in the Reparationfor Injuries case, that IOs are both defined and limited by
50 Seegenerally Kingsbury, Krisch, & Stewart, supra note 44. For a description of the evolving powers of the Secu-
rity Council, see THE UN SECURITY COUNCIL, supra note 22.
51 Compare Daniel L. Nielson & Michael J. Tierney, Delegation to International Organizations:Agency Theory and
World Bank Environmental Reform, 57 INT'L ORG. 241 (2003) (describing IOs in principal/agent terms but also
discussing the possibility of "agency slippage" through which an IO's collective principals may lose control over their
IO "agents"), with Karen J. Alter, Agents or Trustees?International Courts in TheirPolitical Context (TranState Work-
ing Paper No. 8, Nov. 15, 2004), available at <http://ssrn.com/abstract= 622222> (critiquing Nielson and Tier-
ney's principal/agent theory as applied to international courts valued for their autonomy).
52 Barnett & Finnemore, supra note 2, at 169-75.
53 Id. at 174-81 (citing as examples the IMF's coercion of states to get on the "right track," IO "shaming" tech-
niques, establishment of "best practices," strategic use of information, agenda-setting activities, and other "consti-
tutive" activities; the latter relate, for example, to defining what constitutes "development" or even a legitimate state
(as in determining the proper scope of peacekeepers regarding the maintenance of a free market, a working democ-
racy, and the "rule of law"). For a survey of UN contributions to development thinking and practice, see, for exam-
ple, RICHARD JOLLY, LOUIS EMMERIJ, & THOMAS G. WEISS, THE POWER OF UN IDEAS: LESSONS FROM THE
FIRST 60 YEARS (2005).
54 Thus, some scholars and policymakers have proposed creating new interstate organizations to handle envi-
ronmental issues, refugees, counterterrorism, or international investment. For examples of the continuing prolif-
eration ofsubentities within existing IOs, see Paul C. Szasz, The Complexification ofthe UnitedNations System, 1999
MAX PLANCK Y.B. UN L. 3.
55 See, e.g., id. To date, the Security Council has created at least three distinct sub-bodies in connection with its
efforts since the events of September 11, 2001, to combat terrorism. Seegenerally Eric Rosand, Security CouncilRes-
olution 1373, the Counter-Terrorism Committee, and the FightAgainst Terrorism, 97 AJIL 333 (2003); Eric Rosand,
The Security Councils Efforts to Monitor the Implementation ofAl Qaeda/Taliban Sanctions, 98 AJIL 745 (2004).
56 Compare SANDS & KLEIN, supra note 9, at 16-19 (defining IOs and the "nature of international institutional
law"), 115-19 (describing "other autonomous organizations," including environmental COPs/MOPs and com-
modity agreements).
their "international legal personality," this view is now contested. Today, "autonomous insti-
tutional arrangements," such as COPs and MOPs under environmental framework agre
ments, appear to enjoy many ofthe capacities of traditional IOs, although they are not general
recognized as international legal persons. These COPs and MOPs are concluding treaties w
international legal persons (such as traditional IOs and states) and appear to be deploying oth
"implied powers" pursuant to the principle of effectiveness-even without the attribute
traditional IOs such as permanency or their own secretariats.57 Even as IOs have softened th
contours of international law, they appear to be softening the categories of lawmaking acto
themselves.
But perhaps the greatest impact IOs have had on lawmaking actors has been felt within th
principal lawmakers: the states. As Antonia and Abram Chayes famously suggested, IOs have
changed the nature of "sovereignty" into a status consideration, so that its enjoyment i
longer measured by degree of autonomy but by extent of membership and participation
IOs.58 Indeed, the most powerful states in the world are to some extent constrained by thes
organizations or their organizationally based norms and find it necessary to turn to IOs to ful
national goals. Thus, at this writing, the United States appears to be paying a price, at least
terms of the sharing of burdens, for the lack of explicit Security Council authorization for
Operation Iraqi Freedom; even the present unilaterally inclined U.S. president has turned
the Council to legitimate the occupation of Iraq and to assist the United States in conducting
the war on terrorism, as well as in controlling weapons of mass destruction (WMDs).59 Othe
powerful states, such as France, which has attempted to exercise European leadership throug
its Security Council veto, has felt its power ebb and flow with its fortunes on that body. A
smaller states, such as Bosnia-Herzegovina, Libya, and Nicaragua, remain dependent on t
protection of the Council, and have tried to use other institutional entities, such as the ICJ,
level the playing field between themselves and the Council.60 The economic policies that man
states can apply to their own polities are delimited by, among other things, decisions of the
World Bank, the IMF, and the WTO.
Participation in IOs has also helped to transform the internal structure of governments. F
example, IOs have promoted the establishment of national civil aviation administrations to s
isfy the ICAO's standards and recommended practices, medical authorities to respond to
requests by the World Health Organization for information on the outbreak of communicab
diseases and to give effect to its related global warnings, law enforcement units to impleme
57 See Robin R. Churchill & Geir Ulfstein, Autonomous InstitutionalArrangements in MultilateralEnvironmen

Agreements: A Little-Noticed Phenomenon in International Law, 94 AJIL 623 (2000).
58 ABRAM CHAYES & ANTONIA HANDLER CHAYES, THE NEW SOVEREIGNTY 27 (1995); see also Kal Rau
tiala, Rethinking the Sovereignty Debate in International Economic Law, 6 J. INT'L ECON. L. 841, 853, 86
(2003) (arguing that IOs are sovereignty-enhancing instruments if"sovereignty" is redefined to mean somet
other than the ability to take autonomous action). For an argument that sovereignty under the UN Charter is be
redefined to mean "conditional" sovereignty such that the right of a state to have its sovereignty respected is
dependent on its fulfilling its Charter obligations, see Anne-Marie Slaughter, Security, Solidarity, and Sovereig
The Grand Themes of UN Reform, 99 AJIL 619, 627-30 (2005).
59 See, e.g., SC Res. 1540 (Apr. 28, 2004); SC Res. 1483 (May 22, 2003), 42 ILM 1016 (2003); SC Res. 1
(Jan. 28, 2002); SC Res. 1373 (Sept. 29, 2001).
60 SeeApplication of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn.-Her
v. Serb. & Mont.) (Int'l Ct. Justice, pending); Questions of Interpretation and Application of the 1971 Mont
Convention Arising from theAerial Incident at Lockerbie (Libyav. UK; Libya v. U.S.), Provisional Measures,
ICJ REP. 3, 114 (Apr. 14); Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Mer
1986 ICJ REP. 14 (June 27); see also Ian Hurd, The Strategic Use of LiberalInternationalism: Libya and the UNSa
tions, 1992-2003, 59 INT'L ORG. 495 (2005); Ian Johnstone, The Power oflnterpretive Communities, in PO
IN GLOBAL GOVERNANCE, supra note 2, at 185.
the Security Council's counterterrorism regime or the requisites of the WTO's TRIPs Agree-
ment, and independent national courts capable of satisfying an ever-growing array of
demands-from respecting the rights of criminal defendants as interpreted by the Human
Rights Committee and regional human rights courts to respecting property and contractual
rights as required by the WTO and the IMF.61 And if, as Anne-Marie Slaughter has suggested,
states are something other than the opaque billiard balls described by some political scientists
and consist of diverse internal interest groups, IOs like the ILO, which for decades has both
empowered and delegitimated particular groups within states such as labor unions, have helped
to inspire this insight.62 IOs also work alongside (and may empower) the transnational net-
works of government regulators that increasingly cast doubt on the "unitary" intent of many
governments.63 IOs, no less than transnational networks of government regulators, have estab-
lished symbiotic relationships with national subactors, which in turn has affected states' inter-
nal politics.64
III. IOS AND LEGAL SCHOLARSHIP
For legal scholars, the most prominent impact of IOs has been on the nature of scholarship
itself. David Bederman's tour d'horizon of the "peculiarly messianic" American brand of inter-
national legal scholarship within thisJournal, for example, includes, as a prominent leitmotif,
the periodic appeal of institutionalism, along with the ebbs and flows of faith in the "inexorable
advancement of international law."65 Indeed, the prominent breaks in his chronology of modes
of scholarly discourse in the Journal-namely, 1914-1921, 1940-1946, the early and late
Cold War periods, and the post-Cold War period- coincide not only with prominent global
conflicts of the past century, but also with crucial institutional developments and the scholarly
reactions prompted by them: faith in permanent arbitral mechanisms inspired by the Hague
Peace Conference, approval and disapproval of the U.S. Senate's rejection of the League of
Nations, the "explosion of interest" in international institutions inspired by the utopian visions
of the interwar period and the subsequent establishment of the United Nations, appreciation
of the growing pains of UN law in the early years of the Cold War, dissection of the fault lines
revealed in the General Assembly and Security Council during the Cold War period, and, since
1990, the euphoria and dashed hopes regarding institutionalized multilateralism that ensued
as the Cold War gave way to the "war on terrorism."
61 For instances of the impact of IOs on the internal structures of states, see, for example, MARTHA FINNEMORE,
NATIONAL INTERESTS IN INTERNATIONAL SOCIETY 34-66 (1996) (discussing UNESCO's impact on national
science policies). Note that IOs' impact on national laws and institutions is not dependent on whether their rules
are "self-executing" as a matter of national law. Thus, WTO decisions have had an impact on the practices of both
the executive and the legislative branches in the United States notwithstanding that WTO law is not "self-execut-
ing." See, e.g., United States-Sections 301-310 of the Trade Act of 1974, Doc. WT/DS 152/R (adopted Jan. 27,
2000) (holding the United States to its word that it would not unilaterally enforce trade remedies inconsistentlywith
its WTO obligations).
62 See, e.g., David A. Wirth, Trade Union Rights in the Workers'State: Poland and the ILO, 13 DENV. J. INT'L
L. & POL'Y 269 (1984) (describing how the ILO both legitimated Solidarity within Poland and discredited that
country's nonindependently licensed labor union).
63 See, e.g., ANNE-MARIE SLAUGHTER, THE NEW WORLD ORDER (2004); Sabino Cassese, Global Standards
for NationalAdministrative Procedure, 68 LAW & CONTEMP. PROBS. 109 (2005).
64 See, e.g., Wirth, supra note 62. See generally SLAUGHTER, supra note 63.
65 Bederman, supra note 2, at 21. For a survey of how IOs have influenced, and in some cases may have inspired,
the methods of international law surveyed in this Journal's Symposium on Method, 93 AJIL 291 (1999), see Jose E.
Alvarez, International Legal Perspectives, in THOMAS G. WEISS & SAM DAWS, THE OXFORD HANDBOOK ON
THE UNITED NATIONS (forthcoming 2006).
Richard H. Steinberg and Jonathan M. Zasloff's survey of the trajectory of the rol
in the various isms that have characterized scholarly discourse can easily be adapted
ies-a discipline that has also traversed a period of classicism and forms of realism, a
sociological, rationalist, and liberal responses.66 Indeed, as Steinberg and Zasloffimp
of these competing isms are defined by the scholars' underlying approach to IOs. So
tural realists," for example, have defined themselves, as well as their scholarly opposi
the classicists), by disparaging the prospects of institutionalized multilateral co
Realist-institutionalists like Lloyd Gruber have turned to the international financia
tions in particular to demonstrate the asymmetrical use of power.68 The Chayeses'
model is based on reporting and other noncoercive mechanisms typical of insti
tings; in fact, the very definition of"sovereignty" that characterizes the internationa
cess school is premised, as noted, on the function of IOs.69
Of course, IOs-as suppliers of needed forms of centralization and independen
prominent roles in the work of rationalist institutionalists like Robert Keohan
Abbott, and Duncan Snidal.70 Thomas Franck's centennial contribution to thisJourn
much in this tradition. His defense of the law on the use of force, directed princip
realist naysayers, is essentially a defense of the Charter of the United Nations and
tion of why states, even those inclined to use naked force, continue to need the mu
legitimacy supplied by that institution.71 Franck argues, consistently with his Gro
bears, that even the foremost military power in the world must respond to commu
tations about its use of unilateral force.72
And even those not committed to explaining why states find IOs useful, such as l
economics scholars, sometimes ask the same questions about IOs that Ronald
about the business firm, that is, "Why do they exist and, if their existence is justi
there not just one big one?"73 Accordingly, Joel Trachtman and Jeffrey Dunoff ex
need to establish institutionalized hierarchy as a functionalist response to situations
rising levels of asset specificity, uncertainty, and complexity; they advance an ambit
for law and economics that would help to explain the interactions between inst
dispute settlers and between IOs.74
66 Richard H. Steinberg & Jonathan M. Zasloff, Power andInternationalLaw, 100 AJIL 64 (2006
ALVAREZ, supra note 14, at 17-57; Louis B. Sohn, The Growth ofthe Science oflnternational Organiza
RELEVANCE OF INTERNATIONAL LAW 251 (Karl W. Deutsch & Stanley Hoffmann eds., 1968)
67 CompareJohn Mearsheimer, The FalsePromise ofInternationalInstitutions, 19 INT'L SECURITY, W
95, at 5, with INIS L. CLAUDE JR., SWORDS INTO PLOWSHARES: THE PROBLEMS AND PROGRE
NATIONAL ORGANIZATION (1971).
68 LLOYD GRUBER, RULING THE WORLD (2000); see also POWER IN GLOBAL GOVERNANCE, s
notes 127-30 infra and corresponding text.
69 CHAYES & CHAYES, supra note 58.
70 ROBERT O. KEOHANE, AFTER HEGEMONY (1984); Abbott & Snidal, supra note 33.
71 Thomas M. Franck, The Power ofLegitimacy and the Legitimacy ofPower: International Law in an
Disequilibrium, 100 AJIL 88 (2006).
72 Id. As the debate over the legality of Operation Iraqi Freedom suggests, even within the United St
debate is not limited to determining whether the U.S. Congress authorized that operation but exten
the UN Security Council implicitly did so. See, e.g., William H. Taft IV & Todd F. Buchwald, Pree
andInternational Law, 97 AJIL 557 (2003). As this debate also implies, the participation of a state
the dynamics between its branches of government (executive, judicial, and legislative) and, if it is a fe
also alter the dynamics between the federal and state levels. See generally ALVAREZ, supra note 14,
73 Jeffrey L. Dunoff & Joel P. Trachtman, Economic Analysis ofInternational Law, 24 YALE J. IN
49-53 (1999) (adapting Coase). The authors contend that, for example, the "best" organization is
maximizes the positive sum of transaction gains, transaction losses, and transaction costs." Id. at 39.
74 Id. at 41. For these authors, an "asset specific investment" is one that can realize its full value only in
of continued relations with another party or that requires binding another person over time.
Similarly, liberal theorists, such as Andrew Moravscik, have sought to explain the origin and
function of institutionalized regimes like those governing human rights on the basis of the
domestic interest groups.75 And even Slaughter's reconceptualization of the nature of global
governance, which does not rely on traditional IOs, defines the novelty of transnational net-
works of subgovernmental actors in part by what they are not; hers is a "New World Order"
precisely to the extent that these networks avoid the strictures associated with permanent IOs.76
The move to institutions has also resulted in alternative, and more hopeful, conceptions of
why nations behave. As noted, many constructivists use, as prime examples of the malleable
interests of states, the consequences of evolving institutional practices.77 Work on compliance
by such scholars challenges the traditional framework of liberals and realists, who posit that IOs
merely serve the predetermined interests of rational states and are effective only to the extent
that they serve these needs. These constructivists argue instead that states "must be understood
... in relation to the institutions in which they are engaged" and that their engagement in these
institutions-the interaction, communication, and discourse that occurs within IOs-helps
to reconstruct states' interests, and indeed their identities, over time.78 On this view, the ideas,
shared understandings, and norms (soft and hard) that emerge from participation in IOs "con-
strain and enable choices" for states.79 The sociological approaches to compliance pursued by
scholars such as Jutta Brunnee, Stephen Toope, Ryan Goodman, and Derek Jinks, all rely to
some extent on concepts of"socialization" based on, for example, membership in international
organizations.80 As described by Brunnee and Toope, IO-grounded "interactional" law has
much in common with the new forms of national regulation described by "democratic exper-
imentalists" in both the United States and Europe.81 The claim is that some IO sources of law
function at an "internalized, normative level" and "not merely at the level of rational calcu-
lation."82 This understanding of the interaction between states and IOs expands the ways
"compliance" with this new kind of "interactional" law occurs, altering perceptions of how
international regulation is effected and the way its consequences ought to be measured. It
changes the forms of the traditional "carrots" and "sticks" used to induce compliance with
international law, but it also suggests that states may be induced to conform by institutional
ethos, without explicit consideration of relative costs and benefits or coercive enforcement
75 Andrew Moravcsik, Explaining International Human Rights Regimes: Liberal Theory and Western Europe, 1
EUR. J. INT'L REL. 157 (1995).
76 Seegenerally SLAUGHTER, supra note 63. At the same time, Slaughter apparently no longer claims that trans-
national networks are displacing IOs; her more recent work acknowledges that these networks often work alongside
and in tandem with IOs. Compare Anne-Marie Slaughter, The RealNew World Order, FOREIGN AFF., Sept./Oct.
1997, at 183, with SLAUGHTER, supra.
77 See, e.g., Cassese, supra note 63 (discussing the impact of the WTO both on subunits within governments and
in changing government's perceived interests).
78 Jutta Brunnee & Stephen J. Toope, Persuasion and Enforcement: Explaining Compliance with International
Law, 2002 FINNISH Y.B. INT'L L. 273, 276.
79 Id. at 277.
80 See, e.g., Brunnee & Toope, supra note 78; Ryan Goodman & Derek Jinks, How to Influence States: Social-
ization and International Human Rights Law, 54 DUKE L.J. 621 (2004).
81 Compare Orly Lobel, The Renew Deal: The Fall ofRegulation and the Rise of Governance in Contemporary Legal
Thought, 89 MINN. L. REV. 342 (2004) (describing "bottom-up" approaches for implementing or enforcing
national law), with Brunnee & Toope, supra note 78 (describing international mechanisms for inducing compli-
ance), andJanet Koven Levit, A Bottom-up Approach to International Lawmaking: The Tale of Three Trade Finance
Instruments, 30 YALEJ. INT'L L. 125 (2005) (describing lawmaking aspects of the ICC Banking Commission, the
Berne Union, and the Arrangement on Officially Supported Export Credits).
82 Brunnee & Toope, supra note 78, at 276.
(such as binding adjudication).83 It directs attention to "bottom-up" processes for enco

compliance, as well as the "top-down" processes traditionally associated with internatio
and organization. It also suggests that when states do engage in institutionalized intern
adjudication, as they increasingly do in several regimes, the normative ripples ma
thanks to the legitimacy conferred on multilateral dispute settlers, beyond solving th
at hand and, for example, may "socialize" national judges into greater acceptance of in
tional rules.84
IV. IO SCHOLARSHIP TODAY
Most of today's international lawyers continue to be engaged in the "progressive" G

tradition. For a motley group that includes neopositivists, liberal institutionalists,
some neorealists, the turn to institutions remains a worthy objective, and the goal of
makers and scholars remains the same as it was when the League of Nations was create
lishing yet more institutional forms for governing the world without world governmen
is the continuation of a century-old effort to perfect a more integrated, or at least mo
ent, system of institutions that, as John Jackson puts it (no longer in Lauterpacht's V
terms), will transform "power-oriented" diplomacy, based on balance of power, to "ru
ented" adjudication, based on the rule of law.85
Accordingly, many international lawyers remain hard at work proposing new IOs or
posing institutional reforms to correct the "birth defects" of the IOs that we now have
more porous nature of national borders leads lawyers to assume that there is more nee
ever for yet deeper or more evolved forms of institutionalized international governan
those who began the move to institutions, today's contributors to specialized jou
Global Governance continue to believe that "only with global governance will states an
be able to cooperate on economic, environmental, security, and political issues, settle t
putes in a nonviolent manner, and advance their common interests and values"
" [a] bsent an adequate supply of global governance, states are likely to retreat behind pr
barriers and re-create the conditions for enduring conflict."87
Like those who pinned their faith on scientific progress through the League of Nati
the majority of international lawyers and fellow travelers in international relations rar
83 See, e.g., id. at 292 ("interactional law generates self-bindingness and adherence to norms, even in
of material incentives or sanctioning mechanisms").
84 See, e.g., SLAUGHTER, supra note 63, at 65-103; Paul Schiff Berman, Judges as Cosmopolitan Tr
Actors, 12 TULSA J. COMP. & INT'L L. 109 (2004).
85 JOHN H. JACKSON, WILLIAM J. DAVEY, & ALAN O. SYKES, LEGAL PROBLEMS OF INTERNATIO
NOMIC RELATIONS 254 (4th ed. 2002); see also Jackson, supra note 7; cf Kennedy, supra note 2, at 9
how the League of Nations proponents sought to decontextualize wars by turning them into "disput
86 See, e.g., REPORT OF THE COMMISSION ON GLOBAL GOVERNANCE, OUR GLOBAL NEIGHB
(1995); Ernst-Ulrich Petersmann, Constitutionalism and InternationalAdjudication: How to Constitut
UNDispute Settlement System? 31 N.Y.U. J. INT'L L. & POL. 753 (1999). For a more limited proposa
the domain of the WTO, see Andrew T. Guzman, Global Governance and the WTO, 45 HARV. INT'L
(2004); Andrew T. Guzman, Choice of Law: New Foundations, 90 GEO. L.J. 883 (2002).
87 Michael Barnett & Raymond Duvall, Power in Global Governance, in POWER IN GLOBAL GOV
supra note 2, at 1, 1.
88 There is a clear and unmistakable connection between today's self-identified "progressive" developer
national law and early advocates of international organization in thisJournal. See, e.g., Albert Kocourek, S
tions on the Problem ofa Society of Nations, 12 AJIL 508 (1918); John Bassett Moore, International Law
and Future, 1 AJIL 12 (1907); Paul S. Reinsch, International Unions and Their Administration, 1 AJI
IO, proposed or existing, that they do not like. IOs, after all, "bring out the best in the inter-
national community and rescue it from its worst instincts";89 they "level the playing field"
between the powerful and the weak, the rich and the poor, by promoting recourse to the delim-
ited, "neutral" discourse of law.90 Developments like the establishment of the International
Criminal Court are celebrated as a new "constitutional moment" for the international com-
munity;91 the proliferation of institutionalized dispute settlers praised as a new judicial
"branch" for global governance.92 Like those who were present at the creation of the United
Nations, today's liberal institutionalists and constructivists continue to believe
in the possibility, although not the inevitability, of progress; that modernization processes
and interdependence (or, now, globalization) are transforming the character of global pol-
itics; that institutions can be established to help manage these changes; that democracy is
a principled objective, as well as an issue of peace and security; and that states and inter-
national organizations have an obligation to protect individuals, promote universal values,
and create conditions that encourage political and economic reform.93
Key themes in IO scholarship continue to reflect this progress narrative, this faith in the pos-
sibility of continued scientific progress through an expanding domain of institutionalized
international law. Much contemporary scholarship, at least in law, contains policy prescrip-
tions for how best to "constitutionalize" IOs;94 how best to use IOs to manage the "decentral-
ization" of the state;95 or how best to institutionalize compliance with international rules.96 At
the same time, the leading IO scholarship of our day wrestles with the structural and systemic
challenges brought about by the prior century's successful move to institutions.97 Within the
United States, the present-day heirs ofGrotius urge the current Bush administration, as League
advocates did prior to the Senate's rejection of the Covenant, to continue to work within the
UN system rather than act unilaterally, especially with respect to the war on terrorism and the
use of force. They urge compliance with WTO Appellate Body rulings, recourse to the IAEA
and common approaches with the European Union with respect to WMDs, and ratification
of UN-sponsored multilateral treaties. The European heirs of Grotius urge much the same on
89 Barnett & Duvall, supra note 87, at 1.

90 See, e.g., Hurd, supra note 60; Johnstone, supra note 60.
91 See, e.g., Leila Nadya Sadat & S. Richard Carden, The New International Criminal Court:An Uneasy Revolution,
88 GEO. L.J. 381, 407 (2000).
92 See, e.g., Cesare Romano, TheProliferation ofInternationalJudicialBodies: ThePieces ofthePuzzle, 31 N.Y.U.J.
INT'L L. & POL. 709 (1999). For a critique ofsuch views, seeJose E. Alvarez, TheNew Dispute Settlers: (Half Truths
and Consequences, 38 TEX. INT'L L.J. 405 (2003).
93 Barnett & Duvall, supra note 87, at 5 (citing Doyle, Zacher & Matthews, Keohane, and Deudney & Iken-
berry). For a recent rearticulation of such views, see, for example, Slaughter, supra note 58. Seegenerally Lauterpacht,
supra note 12, at 19-53.
94 See, e.g., Petersmann, supra note 86.
95 See, e.g., SLAUGHTER, supra note 63.
96 See, e.g., Claire R. Kelly, Enmeshment as a Theory of Compliance, 37 N.Y.U. J. INT'L L. & POL. 303 (2005);
Anne-Marie Slaughter & Laurence R. Helfer, Toward a Theory ofEffective SupranationalAdjudication, 107 YALE
L.J. 273 (1997). See generally 96 ASIL PROC. (2002) (entitled "The Legalization of International Relations/The
Internationalization of Legal Relations").
97 As Laurence Helfer has noted, today's scholars attempt to resolve the potential conflicts brought about by the
proliferation of IOs (as through proposals for normative and institutional hierarchies between institutionalized
regimes), seek to improve compliance with IO-generated norms, attempt to deter states' attempts to enter and exit
institutionalized regimes, and generally try to buttress the legitimacy of IOs. Laurence R. Helfer, Constitutional
Analogies in the International Legal System, 37 LOY. L.A. L. REV. 193 (2003).
their own governments but also see IOs as the only means by which the superpow
like, might be restrained."98 Indeed, the uses of IOs lie at the center of recent di
between U.S. and European policymakers (and some scholars) with respect to t
of unilateral actions.99 But, as is suggested by the differences between some cont
and European scholars and policymakers, the institutionalization of international
provoked legitimacy concerns.
The most familiar challenge, invoked by opponents of distinct IOs on the right
and especiallywithin the United States, concerns the "democratic" credentials of t
national law produced in the age of IOs. Much contemporary scholarship deals wit
of complaints that particular IOs, or IOs generally, fail to represent domestic con
in the way elected representatives within democracies do, that their processes for
are insufficiently transparent or insufficiently open to participation by national in
or members oftransnational civil society, or that IOs fail to respect individual rig
with democratic governments (from the rights to due process under the Internat
nant on Civil and Political Rights to the welfare rights under the International Co
Economic, Social and Cultural Rights). Although these forms of democratic critiqu
consistent with each other, they challenge the bona fides of IOs as varied as the W
International Criminal Court for failing to make the necessary "vertical" or top-d
tions between their international forms of governance (including by internationa
course of adjudication) and those at the national level.'0l
Other critiques of IOs, most commonly made by developing countries, challenge
failing to respect in practice the sovereign equality that is usually solemnly affir
charters. 10 Whether directed at institutional organs with weighted forms of votin
the rights of certain states over others (such as the UN Security Council, the Wor
the IMF) or institutions that more subtly privilege the interests of some states over
as the WTO Appellate Body and even ad hoc war crimes tribunals), these "hor
plaints often merge with "vertical" democratic critiques in practice. 02 The results
herent, occasionally even violent, public protests (like those targeting recent
98 Simon Chesterman, The United Nations and the Law of War: Power and Sensibility in Interna
FORDHAM INT'L L.J. 531, 532 (2005).
99 See, e.g., Martti Koskenniemi, What Should International Lawyers Learn fom Karl Marx? 17 L
L. 229,240 (2004) (describing how some see a "new struggle between an unmediated foreign policy m
cated by a single superpower and an anti-imperial formalism insisting on mediation through law a
institutions"). See generally Unilateralism in International Law: Its Role and Limits: A United State
posium, 11 EUR. J. INT'L L., Nos. 1, 2 (2000); Paul W. Kahn, The Question of Sovereignty, 40 ST
259 (2004); Jeb Rubenfeld, The Two World Orders, WILSON Q., Sept. 2003, at 22. For an early
comparable U.S.-Europe divides, see David Jayne Hill, Editorial Comment, The ThirdAssembly
Nations, 17 AJIL 77, 79 (1923).
l00 For an overview of these challenges, see, for example, ALFRED C. AMAN JR., THE DEMO
(2004); Paul B. Stephan, International Governance andAmerican Democracy, 1 CHI. J. INT'L L. 2
supra note 9; Grainne de Buirca, Democratizing Transnational Governance: Lessons from th
(Columbia Law School Young Scholars Workshop, 2004-05), at <http://www.law.columbia.ed
resources/faculty_lunch/>. U.S. scholars tend to focus on the "representational" failings of IOs, see
supra note 99, whereas European scholars tend to focus on the failures of IOs to respect the internat
of individuals and of states, see, e.g., ERIKA DE WET, THE CHAPTER VII POWERS OF THE UN
SECURITY COUNCIL (2004).
101 This is not a new concern. See, e.g., Denys P. Myers, Representation in Public International Un
(1914) (discussing, among other things, the tendency of powerful nations to use the votes of their
colonies to enhance their voting prowess, to the detriment of sovereign equality, in administrativ
102 For a general critique of the "Americanized" turn to institutionalized international adjud
Mattei, A Theory of mperial Law: A Study on U.S. Hegemony and the Latin Resistance, 10 IND. J.
STUD. 383, 416-24 (2003).
rounds) or revisionist defenses of old-fashioned sovereignty, this time as a tool to protect

against IO-inflicted inequalities.103 In some quarters, IOs are no longer valued as useful mech-
anisms for pooling sovereign interests or as neutral appliers of the real interests of all states, but
are seen as agents who have "run amok" in disregard of the interests of their collective principals
or as overly faithful agents-though only of some of their most powerful members. Ironically,
those IOs regarded as having been the most successful in the Grotian enterprise of creating or
enforcing ever more international law, such as the WTO, have been the subject of the most
vociferous complaints-precisely on the grounds that they have done the most to undermine
the power of (some) states to govern themselves.104
IOs also face challenges on ideological grounds. Many express the concern that the Bretton
Woods institutions and even erstwhile voices of the developing world, such as UNCTAD, are
now enforcers of a model of governance and development premised on the "Washington con-
sensus" or are proselytizers of "best practices" that invariably support the business interests of
multinational enterprises, usually based in the West, at the expense of more equitable models
of sustainable development.105 Or they contend, more forthrightly, that some IOs are instru-
ments of hegemonic control or devices to promote Gramscian collaboration on the part of the
victimized.106 Other forms of ideological critique focus on the gender politics of IOs or target
the epistemic communities (e.g., "free traders") that have "captured" particular IOs.107
The heirs of Grotius have been quick to respond with a wide range of potential remedies.
Proposed reforms to address the various kinds of "democratic deficits" range from the radical
and highly unlikely, such as creating a parliamentary assembly of elected representatives of the
peoples of the world to function alongside the present General Assembly, to the more easily
accommodated, such as greater acceptance of amicus briefs before institutionalized interna-
tional adjudicators, enhanced parliamentary involvement in decisions to accede to institu-
tional regimes and in IO processes thereafter, establishment of forms of ombudsmen within
IOs, and greater transparency and access for members of international civil society.108 Others
103 See, e.g., Kingsbury, supra note 44. For an entirely different defense of sovereignty that is nonetheless
grounded in perceived threats posed by IOs, see JEREMY A. RABKIN, THE CASE FOR SOVEREIGNTY (2004).
104 See Stein, supra note 9.
105 These ideological concerns range from the mildly critical, see, e.g., Benedict Kingsbury, FirstAmendmentLib-
eralism as Global Legal Architecture: Ascriptive Groups and the Problems of the Liberal NGO Model of International
CivilSociety, 3 CHI. J. INT'L L. 183 (2002) (suggesting the narrowing effects of conceptions of "First Amendment"
rights in the United States and Western states), to the all-embracing, see, e.g., Mattei, supra note 102, at 383 (crit-
icizing the turn to "imperial" law through the vehicle of"predatory economic globalization"). Notably, today's cri-
tiques have gone beyond the international financial institutions. See, e.g., Kristen Boon, Legislative Reform in Post-
conflict Zones: Jus Post Bellum and the Contemporary Occupant's Law-making Powers, 50 MCGILL L.J. 285 (2005)
(discussing attempts at market reform in the guise of UN peacekeeping). Seegenerally SUSAN MARKS, THE RIDDLE
OF ALL CONSTITUTIONS: INTERNATIONAL LAW, DEMOCRACY, AND THE CRITIQUE OF IDEOLOGY (2003).
106 See, e.g., Jose E. Alvarez, Hegemonic International Law Revisited, 97 AJIL 873 (2003); Lloyd Gruber, Power
Politics and the Institutionalization ofInternational Relations, in POWER IN GLOBAL GOVERNANCE, supra note 2,
at 125; Nico Krisch, International Law in Times ofHegemony: Unequal Power and the Shaping ofthe International
Legal Order, 16 EUR. J. INT'L L. 369 (2005); Mattei, supra note 102; see also HUMANIZING OUR GLOBAL ORDER:
ESSAYS IN HONOUR OF IVAN HEAD (Obiora Chinedu Okafor & Obijiofor Aginam eds., 2003).
107 See, e.g., HILARY CHARLESWORTH & CHRISTINE CHINKIN, THE BOUNDARIES OF INTERNATIONAL
LAW 171-200 (2000); Robert Howse, From Politics to Technocracy-and Back Again: The Fate of the Multilateral
Trading Regime, 96 AJIL 94 (2002); see also ALVAREZ, supra note 14, at 640-45.
108 For discussion of these reform proposals, see, for example, Accountability of International Organisations, in
INTERNATIONAL LAW ASSOCIATION, BERLIN CONFERENCE (Final Report of Comm. on Accountability of Interna-
tional Organizations, 2004), available at <http://www.ila-hq.org/pdf/Accountability/Final%20Report%202004.
pdf>; Stein, supra note 9, at 531-34. See also the ongoing discussions within the International Law Commission in con-
nection with the topic of responsibility of international organizations, for example, in Giorgio Gaja, Second Report on
Responsibility of International Organizations, UN Doc. A/CN.4/541 (2004). But others have denied that a "democratic
deficit" truly exists at the international level, defending the legitimacy ofIOs either on the basis that they are technocratic
propose dealing with the proliferation of IO-induced "global administr

on-by turning to analogous features within national administrative law th
its domain.109 Horizontal concerns over interstate equity have prompted prop
example, would reform the weighted-voting schemes of the international fin
or expand the size of (or diminish the use of the veto within) the UN
Although critiques that IOs embody and promote particular ideologies po
challenges, those who have not entirely lost faith in the "transforming promis
responded by calling, among other things, for political or legal constraints on
those peculiarly subject to hegemonic control, such as the UN Security C
But the vertical, horizontal, and ideological complaints against IOs persist n
most of the proposed Grotian reforms have yet to emerge. The push to enhan
insistent precisely because international lawyers have been relatively successf
"exit."'12 Indeed, continued participation in IOs, and in UN and Bretton W
in particular, is regarded today as so intrinsic to the enjoyment of sovereign
longer a real option for most states most of the time.113 As this observation
the critiques of IOs now being heard, whether on the streets where prominen
the pages of scholarly journals, are inspired by the very success of the Groti
led to their establishment, proliferation, and growing legal clout.
More troubling for the future of IOs is that many of the challenges they n
the very foundations of the "Grotian" tradition that produced them. Today's
much further than those once advanced by realist skeptics of international la
critiques do not merely question, as did President Wilson's critics, whether an
community" sharing common values really exists. They do not question t
those IOs that purport to deal with use of force at the heart of sovereignty,
of Nations and the United Nations. Today, thanks in part to a very publi
academic) backlash generated by institutionalization, every aspect of the Grot
contested and no IO escapes critical scrutiny.
The value of universal participation has been tainted, on the one hand, by t
of undemocratic states (as in the UN Human Rights Commission) and, on the
the extent to which universal participation, when paired with certain forms
sensus, may exacerbate rule by the powerful.14 The proliferation of legal acto
or regulatory organizations already subject to parliamentary and executive approval or on the prem
to a diverse set ofunique accountability mechanisms. See, e.g., Grainne de Buirca, supra note 100; R
0. Keohane, AccountabilityandAbuses ofPowerin WorldPolitics, 99 AM. POL. SCI. REV. 29 (2005).
on the viability of establishing an international parliamentary assembly as a remedy for the UN d
pare Richard Falk & Andrew Strauss, Toward GlobalParliament, FOREIGN AFF., Jan./Feb. 200
elected world assembly), with Robert A. Dahl, Can International Organizations Be Democratic?
DEMOCRACY'S EDGES 19 (Ian Shapiro & Casiano Hacker-Cordon eds., 1999) (arguing that such a
sible).
109 See Kingsbury, Krisch, & Stewart, supra note 44 (identifying a need for "global administrative space" char-
acterized by enhanced procedural participation, adherence to substantive standards, reliance on reasoned decisions,
and forms of review).
110 See Koskenniemi, supra note 99, at 231.
111 See, e.g., DE WET, supra note 100; AUGUST REINISCH, INTERNATIONAL ORGANIZATIONS BEFORE
NATIONAL COURTS (2000); Chesterman, supra note 98.
112 SeegenerallyEyal Benvenisti, Exit and Voice in theAgeofGlobalization, 98 MICH. L. REV. 167 (1999); Richard H.
Steinberg, Judicial Lawmaking at the WTO: Discursive, Constitutional, and Political Constraints, 98 AJIL 247 (2004).
113 But see Laurence R. Helfer, Exiting Treaties, 91 VA. L. REV. 1579 (2005) (explaining when and why states
abandon their treaty commitments).
114 For an example of the former critique, see Kenneth Anderson, Squaring the Circle? Reconciling Sovereignty and
Global Governance Through Global Government Networks, 118 HARV. L. REV. 1255, 1296 n.67 (2005) (book
in the age of IOs is no longer regarded as an unalloyed good, at least not by those who see the
"decentralization" of the state as undemocratic or unaccountable, 115 or those who contend that
IO-based legalization and democratization at the national level do not always go hand in
hand." 6 The possibility that IOs may mobilize internal interest groups within liberal states or
at the international level has a darker edge-for those who suggest that IO processes have
empowered primarily Western-based NGOs and multinational corporations or, alternatively,
for those who argue that IO processes have increased the power of national interest groups
(such as trade protectionists) to the detriment of global welfare.117 The Grotians' faith in tech-
nocratic expertise has been shaken by a public-choice literature that emphasizes the risks of del-
egating authority to the "unaccountable" agents of lOs-from their designated experts to their
civil servants-and especially the likely damage to national or global welfare of capture, rent
seeking, and log rolling.18 Trust in international civil servants has been further undermined
by contemporary revelations (e.g., from the UN oil-for-food scandal to widely publicized rapes
attributed to UN peacekeepers), as well as by Weberian insights into the pathologies of bureau-
cracies, international and national."19 Adjudicative lawmaking has been criticized either
because international dispute settlers are considered too similar to "unaccountable" judges in
otherwise democratic states or because they are deemed too distinct in their features to share
the legitimacy of national judges who are made accountable to the electorates of democratic
review) (contending that the United Nations is "almost by definition a corrupt network because its doors are open
to the wicked as well as the good"). For an example of the latter, see Andrew Hurrell, Power, Institutions, and the
Production oflnequality, in POWER IN GLOBAL GOVERNANCE, supra note 2, at 33, 51 (suggesting that the stability
of hegemonic power "depends on consensus as well as coercion and on the capacity to engender collaboration").
115 See, e.g., Anderson, supra note 114.
116 See, e.g., Miles Kahler, Conclusion: The Causes and Consequences ofLegalization, 54 INT'L ORG. 661 (2000);
see also Jeffery Atik, IdentifyingAntidemocratic Outcomes: Authenticity, Self-Sacrifice, and International Trade, 19 U.
PA. J. INT'L ECON. L. 229 (1998) (describing how WTO processes limit democratic choices); Stephan, supra note
100 (arguing that IOs are undemocratic to the extent that they strengthen the powers of the executive branch,
enhance the power of certain interest groups over others, or bolster the power of 10 bureaucrats).
117 See, e.g., Kenneth Anderson, The Ottawa Convention Banning Landmines, the Role of nternational Non-gov-
ernmental Organizations and the Idea oflnternational Civil Society, 11 EUR. J. INT'L L. 91 (2000). For a critique of
the WTO on the basis of which interests it empowers within the North, see, for example, Gregory Shaffer, Power,
Governance, andthe WTO:A ComparativeInstitutionalApproach, in POWER IN GLOBAL GOVERNANCE, supra note
2, at 130, 135 (contending that while powerful constituencies within the United States and the European Union,
such as large multinationals and trade associations, harness state power in the WTO to promote their interests, busi-
ness and NGOs in smaller countries cannot). Even with respect to the United States, the WTO's impact on dem-
ocratic processes and domestic interest groups has divided commentators. Compare John O. McGinnis & Mark L.
Movsesian, The World Trade Constitution, 114 HARV. L. REV. 511 (2000) (praising the WTO for "correcting" the
flaws in the U.S. democratic process that give rise to trade protectionism), withJudith Goldstein & Lisa L. Martin,
Legalization, Trade Liberalization, andDomesticPolitics:A Cautionary Note, 54 INT'L ORG. 603 (2000) (suggesting
that WTO legalization may have mobilized antitrade groups while discouraging exporters from mobilizing in
defense of free trade), andPaul B. Stephan, Accountability andInternationalLawmaking: Rules, Rents andLegitimacy,
17 NW. J. INT'L L. & BUS. 681,713 (1996 -97) (suggesting that what passes for WTO-induced trade liberalization
"may turn out to be special interest legislation"). For a critique of the WTO on constructivist grounds, that is, for
helping to create and sustain a "club" atmosphere for a narrow-minded epistemic community of free traders, see
Howse, supra note 107.
118 For a critical view of the "rent seeking" by nonstate interest groups that are given access to IO lawmaking
processes, see, for example, Stephan, supra note 117. (Rent seeking has been defined as efforts to obtain quota rents,
or the using up of real resources in an effort to secure rights to economic rents arising from government policies.)
See also Jonathan R. Macey, Regulatory Globalization as a Response to Regulatory Competition, 52 EMORY L.J. 1353
(2003) (explaining the impetus for international regulation as stemming from the perceived self-interests of the reg-
ulators themselves); Enrico Colombatto & Jonathan R. Macey, A Public Choice Model ofInternational Economic
Cooperation and the Decline of the Nation State, 18 CARDOZO L. REV. 925 (1996) (semble).
119 See generally ALVAREZ, supra note 14, at 365-94. For a description of the "pathological" features of 10
bureaucracies, see Michael N. Barnett & Martha Finnemore, The Politics, Power and Pathologies of International
Organizations, 53 INT'L ORG. 699 (1999).
states through a variety of mechanisms.120 The development agenda of IOs has been cr
as a continuation-albeit accompanied by more politically correct rhetoric- of the co
enterprise or, more moderately, for failing to recognize the need for a more nuanced appl
the "Washington consensus."'21 Faith in functionalism as the engine for instituti
cooperation has been shaken by the premise that the problems attendant on globalizatio
not consist only of"market failures" requiring ever-rising forms of international regulat
also emerge from self-inflicted "government failures" produced by mistaken reliance o
legal elites who have undertaken ineffectual or counterproductive codification efforts.1
fidence in permanent venues for international discourse has been undermined by critic
on the identity of the participants in that discourse and its prospects for success.123 C
tivists' and managerialists' hopes for greater levels of compliance through "socialization
induced changes in state interests have been shaken by empirical scholarship that quest
level of compliance within IO regimes,124 as well as contentions that to the extent that
indeed remaking states, they are changing them "in ways that favor the interests of t
tional capital" and not always that favor the interests of the most affected populations
Much of the contemporary hostility toward IOs reflects a growing recognition that
efits of the values advanced by IOs-centralization and independence-are not dist
equally among states.126 There is a growing awareness, particularly as IOs centralize the
power as well as concentrate the power of their most powerful members, that institut
tion may not have truly "leveled the playing field" as advertised, even though the relativ
of rich and poor or West and "other" are undoubtedly "more equal" than before, when
of today's states were deemed entirely outside the domain of "civilized" law. Some of th
ticism about the value of IOs as "neutral" venues for regulation or discourse stems from
modern doubts about the law's neutrality. Even that supposed great leveler of power wi
some organizations, institutionalized dispute settlement, has come under challenge becau
asymmetric material resources in setting out the rules and procedures, the power dynam
determine which treaty-contract issues will be "completed" by the adjudicative pro
120 Seegenerally Stephan, supra note 117. For a critique of the assumptions that international lawyers m
the desirability ofjudicial "independence" at the international level, see Eric A. Posner & John C. Yoo,Jud
pendence in International Tribunals, 93 CAL. L. REV. 1 (2005).
121 See, e.g., ANTHONYANGHIE, IMPERIALISM, SOVEREIGNTYAND THE MAKING OF INTERNATION
190-95,263-68 (2005); DANI RODRIK, GROWTH STRATEGIES (Aug. 2004), at <http://ksghome.har
-drodrik/growthstratl O.pdf>.
122 Stephan, supra note 100.
123 See, e.g., Martin Shapiro, A Deliberative, "Independent" Technocracy v. Democratic Politics: Will the G
the E. U.? (IILJ Working Paper 2004/5), at <http://www.iilj.org/global_adlaw/> (critiquing transnatio
nance processes, including within the European Union, as forms for deliberative democracy); Jiirgen
Michael Schr6ter, Deliberative Europe and the Rejected Constitution, Paper presented at conference o
democracy in Europe, European University Institute (Sept. 22-24, 2005) (critiquing deliberative practic
the European Union), at <http://www.iue.it/LAW/ResearchTeaching/Cidel/Index.shtml>.
124 See, e.g., Hathaway, supra note 11; see also Andrew T. Guzman, A Compliance-Based Theory of nter
Law, 90 CAL. L. REV. 1823, 1885 (2002) (concluding that, given the ineffectiveness of certain int
regimes, international lawyers should devote their efforts to economic regulation rather than concern t
with war, arms control, territorial limits, neutrality, or human rights).
125 Mark Laffey & Jutta Weldes, Policing and Global Governance, in POWER IN GLOBAL GOVERNANC
note 2, at 59, 65; see also Hurrell, supra note 1 14, at 52 (describing those who believe "socialization" "der
from great power imposition or from the competing dynamics of the state system"); Krisch, supra note 1
(discussing the prospects for "hegemonic" socialization); Nico Krisch, Imperial International Law 58 (G
Working Paper 01/04), at <http://www.nyulawglobal.org/workingpapers/detail/documents/KrischFinalo9
[hereinafter Krisch, Imperial IL] (criticizing some IOs' reliance on the market as a tool for hegemonic com
through use of Standard and Poor's or Moody's ratings for countries).
126 Cf Abbott & Snidal, supra note 33 (describing the benefits of IO-based forms of centralization
pendence).
unequal power of states to operate in the shadow of dispute settlement, and states' unequal abil-
ities to access dispute settlement or to avoid its constraints.'27 Such doubts feed skepticism
about the value of"constitutionalization" (as with respect to the WTO) and the merits of pro-
moting legalization by granting private parties access to international dispute resolution.'28
Even the once-innocuous idea that IOs serve as disseminators of innovative ideas is no longer
regarded with equanimity-not by those who contend that IO notions of good governance,
including ideas about the proper separation of powers, the central role of courts, the proper
sphere for regulating business, and technical standards, are unduly and unwisely influenced by
the United States.129
As this criticism suggests, recognition that state power continues to matter within IOs (and
that its exercise generates predictable resistance) has undermined the progress narrative that
characterized the turn to IOs. The manifold examples of the purported exercise of power
through IOs-that is, the exercise of state power through forum shifting, recourse to private
arbitration (as under the auspices of the International Centre for Settlement of Investment Dis-
putes), the imposition of multilateral forms of conditionality (as by the IMF), expressive but
selective condemnations of "rogue" states (as by the IAEA and the Security Council), and the
absence of equal, effective access to institutionalized dispute settlement (as in the WTO)-
raise considerable doubts about whether the new conception of sovereignty as "status" and the
new ways states are being made to "behave" really constitute progress. 30 Enthusiasm for insti-
tutionalization has waned as more states find that the "progress" that IOs bring increasingly
makes them unwilling rule takers rather than avid participants in a "pooling of sovereignty"
for the benefit of all.'13
Second thoughts about the value of institutionalization, by those who were not "present at
the creation" and have a less vested interest in IOs' success, account for contemporary reform
proposals that are strikingly un-Grotian. Some of these suggest a twenty-first-century move
away from institutions nearly as intense as the post-World War II move toward them.
Doubts about the "bureaucratic sclerosis" that characterizes most IOs may explain why the
pace of institutionalization appears to be slowing down (at least by some measures) or why
some regions of the world, such as Asia, have not shared the general post-World War II enthu-
siasm for them.132 It may also explain the appeal of less institutionalized alternatives (such as
127 See, e.g., Andrew T. Guzman & Beth A. Simmons, Power Plays and Capacity Constraints: The Selection of
Defendants in World Trade Organization Disputes, 34 J. LEGAL STUD. 557 (2005) (empirical study concluding that
the lack of financial, human, and institutional capital explains LDCs' continuing inability to participate fully in
international dispute settlement); Shaffer, supra note 117 (describing the embedded inequities of WTO dispute
settlement with respect to poorer states); see also Gruber, supra note 106.
128 Compare Alec Stone Sweet, Judicialization and the Construction of Governance, 32 COMP. POL. STUD. 147
(1999) (describing how granting private parties access to international dispute settlement contributes to legaliza-
tion), with Robert Howse & Kalypso Nicolaidis, Enhancing WTO Legitimacy: Constitutional or Global Subsidiarity?
16 GOVERNANCE 73 (2003) (questioning the value of proposals to grant private causes of action in order to con-
stitutionalize the WTO). For a synthesis ofanticonstitutional views within the WTO literature, see CASS, supra note
24, at 207-37.
129 See, e.g., Krisch, Imperial IL, supra note 125, at 55; see also B. S. Chimni, International Institutions Today: An
Imperial Global State in the Making, 15 EUR. J. INT'L L. 1 (2004).
130 See, e.g., Hurrell, supra note 114, at 57-58 (agreeing that "conditional sovereignty" exists but suggesting that
it is mostly conditional for the weak).
131 See, e.g., Barnett & Finnemore, supra note 2, at 182.
132 On "bureaucratic sclerosis," see id. For the suggestion that we are now in a "post-institutionalist" period dom-
inated by continued proliferation of NGOs but a more restrained stance toward establishing new IOs, see CHAR-
LOTTE KU, GLOBAL GOVERNANCE AND THE CHANGING FACE OF INTERNATIONAL LAW 26-34 (ACUNS
Rep. & Papers No. 2,2001), availableat <http://www.acuns.org/public/research_library/>. For an account of the
resistance to certain forms of "legalization" in Asia and the Pacific, see Miles Kahler, Legalization as Strategy: The
Asia-Pacific Case, 54 INT'L ORG. 549 (2000).
transnational networks of government regulators or models of governance like env

treaties' COPs and MOPs) or hybrid, not-quite-international models for interna
dication (such as the Special Court for Sierra Leone). Some suggested reforms start f
non-Grotian premise that multilateral rules produced by the representatives of the
tional community" will not necessarily be morally superior to or more efficacious t
unilateral assertions of extraterritorial jurisdiction, bilateral treaties, or recourse to
institutions or regional adjudication.133 Various proposals attack IOs' increasing
regulatory, or adjudicative prowess by urging restraints on the principle of implied p
permissible scope of delegated authority, or the interpretive gap-filling power of in
adjudicators.134 Others propose greater or more creative recourse to concepts that a
ential to or more protective of sovereignty (such as through doctrines permitting d
procedural grounds, reliance on forms of subsidiarity, the principle of non liquet, a
return to the Lotus presumption), particularly by adjudicators who are in a position
the regulatory effects of IO legal products.135 Some have suggested that IOs simply
lessons of"government failures" elsewhere and engage in less lawmaking by turning t
ket or deregulation-as many states have done.136
The present state of 1O studies (and of IOs) lies in the eye of the beholder. For so
glass is more than half empty. Deepening skepticism about the value of internation
tionalization across the political spectrum in the United States and among many in E
the global South can easily be portrayed as part and parcel of contemporary public in
lawyers' "existential crisis "137-a loss of the turn-of-the-century idealism that gave
in the first place. For others, perhaps the majority for whom the "heroic "138period
tional law and institutions has not yet ended, the plethora of current proposals for in
reform and alternatives to IO forms of governance suggest not buyers' remorse but
belated, recognition that the study of IOs should never be confused with their celeb
133 Seegenerally Stephan, supra note 117. At the extreme, some democratic sovereigntists question
are truly necessary, while reviving old doubts about the binding force of international law. See, e.g., J
Is There Really "Law" in International Affairs? 10 TRANSNAT'L L. & CONTEMP. PROBS. 1 (2000)
treaties are "politically" but not "legally" binding); John R. Bolton, Should We Take Global Governan
1 CHI. J. INT'L L. 205 (2000). Even some of those who presumably disagree with Bolton as to the
treaties contend that some forms of IO lawmaking are useless or pernicious. See, e.g., Stephan, supra
134 See, e.g., Curtis A. Bradley, International Delegations, the Structural Constitution, and Non-Self
STAN. L. REV. 1557 (2003);Jan Klabbers, The ChangingImage ofInternational Organizations, in THE
OF INTERNATIONAL ORGANIZATIONS 221, 231-32 (Jean-Marc Coicaud & Veijo Heiskanen ed
135 See, e.g., J. Patrick Kelly, JudicialActivism at the World Trade Organization: Developing Principl
straint, 22 NW. J. INT'L L. & BUS. 353 (2002); Antonio Perez, The Passive Virtues and the World Cour
Abstention by the International Court ofJustice, 18 MICH. J. INT'L L. 399 (1997). For the Lotus case,
(ser. A) No. 10.
136 See, e.g., Klabbers, supra note 134, at 238.
137 Koskenniemi, supra note 99, at 230.
138 KOSKENNIEMI, supra note 2, at 511.
139 Robert O. Keohane, International Institutions: Two Approaches, 32 INT'L STUD. Q. 379, 380 (1988).

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International Organizations: Then and Now

Author(s): José E. Alvarez

International organizations (or IOs)-intergovernmental entities established by treaty, usu-

* Of the Board of Editors.

The establishment of the League of Nations-a subject that understandably rece

differ in relation to many variables-from degree of legalization10 to measurable real-world

I. IOs AND THE RULES OF INTERNATIONAL LAW

Dinah Shelton's examination of "normative hierarchy" suggests some of the changes in

17 SeegenerallyANTONIO CASSESE, INTERNATIONAL LAW IN A DIVIDED WORLD 176-77 (1986) (describin

27 See generally ALVAREZ, supra note 14, at 458-520, 545-66.

II. IOS AND THE LAWMAKING ACTORS

45 See, e.g., Kingsbury, Krisch, & Stewart, supra note 44.

57 See Robin R. Churchill & Geir Ulfstein, Autonomous InstitutionalArrangements in MultilateralEnvironmen

III. IOS AND LEGAL SCHOLARSHIP

(such as binding adjudication).83 It directs attention to "bottom-up" processes for enco

IV. IO SCHOLARSHIP TODAY

Most of today's international lawyers continue to be engaged in the "progressive" G

89 Barnett & Duvall, supra note 87, at 1.

rounds) or revisionist defenses of old-fashioned sovereignty, this time as a tool to protect

propose dealing with the proliferation of IO-induced "global administr

transnational networks of government regulators or models of governance like env

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