Nongovernmental Organizations and International Law

This article examines NGOs and their advocacy activities aimed at influencing international relations. The article addresses longstanding issues such as the legal status of NGOs, as well as new problems such as whether NGO lobbying in intergovernmental forums is democratically legitimate. In doing so, the article draws upon past scholarship to shed light on the guiding ideas in the contemporary debate regarding NGOs. Part I examines issues regarding the identity of NGOs and then catalogs the ways that state practice incorporates NGOs into authoritative decision making. Part II looks at the legal status of NGOs in international law. Part III considers how NGOs have transformed international law over the past century. Part IV dives into the ongoing debate about the democratic legitimacy of NGO participation and seeks to clarify the conceptual underpinnings of the legitimacy of such participation. Finally, Part V asks whether intergovernmental decision makers have a duty to consult NGOs

New Opportunities for Nongovernmental Actors in the International Law Commission

Four years ago, I wrote an essay for the Centennial celebration of the American Journal of International Law on the topic of “Nongovernmental Organizations and International Law.” In the section of that essay where I discussed whether, under international law, states and international organizations have a duty to consult nongovernmental organizations (NGOs), I surveyed some current practices of consultation in international organizations. My invitation to participate in this symposium has presented me an opportunity to revisit those thoughts, to conduct more research, and to update our scholarship on how the ILC processes use input from private actors. My presentation contains three parts: First, my paper will survey ILC practices and trends in consultations with NGOs, business groups, academics, and practitioners. Second, my paper will discuss why the ILC should consult NGOs. Third, my paper will offer concrete proposals for additional steps that the ILC should take to enhance its dialogue with private economic and social actors

Transparency and Participation in the World Trade Organization

This paper discusses the challenge of improving transparency and participation in the World Trade Organization (WTO). Part I explores the development in international trade law of the norm for transparency and participation at the national level. The analysis begins with Immanuel Kant and traces the history of the issue in trade through the League of Nations and then to the postwar trading system culminating in the WTO. Part II describes the WTO\u27s practices regarding openness and public participation, and then criticizes the current limitations. Part III proposes several new steps for the WTO to take to promote transparency and participation. The paper is situated in the new subfield of global administrative law. The feature of the WTO that most renders it an administrative agency is that the principals - that is, the Members - have given the WTO competence as their joint agent to carry out certain discrete international functions. From the perspective of a national legislature, the WTO resembles an administrative agency in the sense that it makes decisions that affect a domestic polity and yet extend beyond the direct legislative control of national elected officials. It is that similarity to the domestic agency that forms the basis for the application of administrative law principles to the WTO itself. Just as a legislature would impose administrative law on a domestic agency to make it more fair, transparent, and accountable, that legislature could conceptualize a similar role for the application of administrative law principles to the WTO. In doing so, the legislature (or the electorate) might have two targets in mind: one will be the WTO and its decisionmaking. The other will be the government\u27s own representatives to the WTO for which WTO secrecy may present a barrier to effective parliamentary (and public)

Triangulating the World Trade Organization

This Article presents an analytic method for considering proposals to expand the scope of the WTO. In doing so, the Article organizes competing ideas concerning the rationale for the WTO and shows how varying assumptions can lead to different conclusions on the proper content of international trade law. This Article seeks to advance the debate by comparing these assumptions and also considering the key literature about trade linkage. The Article proceeds in three parts. Part I shows why the purpose of the WTO is not self-evident and how a framework can be useful for improving the debate about the organization\u27s mission. Part II presents a three-category framework reflecting the different ambits in which the WTO operates: (1) the relationship between states, (2) the relationship between the state and individuals, and (3) the relationship between intergovernmental organizations. Finally, Part III summarizes the analysis and explains how the frames can help triangulate the WTO within international law

The Illegitimacy of Preventing NGO Participation

This article discusses whether non-governmental organizations (NGOs) may be excluded from the international governance system. The article describes three ideological viewpoints of NGOs: 1) state positivism, which views states as the ultimate decision-maker and finds that an international organization (IO) cannot grant any role to NGOs that is outside of the IO’s founding treaty, 2) functionalism, which finds the IO to be the decision-maker regarding the role played by an NGO, and 3) the community view, which views the IO as a compilation of decision-makers and places an individual, rather than a state, at the center. Although the majority view is that there is no obligation to permit NGO participation in IOs, I support the minority view that such a duty may exist. These categories provide innovative thoughts on how to incorporate NGOs in the international system in the future

Assessing the ILO\u27s Efforts to Develop Migration Law

The world community has increasingly recognized the movement of people as an issue of global policy rather than an exclusive sovereign preserve of individual governments. In considering whether a good case exists for establishing a World Migration Organization, policymakers and stakeholders should look at whether existing international organizations can be better used to enhance international cooperation on migration policy. One such organization may be the International Labour Organization (“ILO”), a UN specialized agency that has worked on migrant issues from its beginning. This article analyzes the work of the ILO in international migration as prolegomena to assessing whether its role could be expanded or whether it could serve as a model for a new agency. This article first provides a brief survey of what the ILO has done on the issue of migration since 1919. Then, the article discusses the implications of the ILO experience for the idea of promoting transborder migration through an international organization

Reviewing Carbon Changes and Free Allowances Under Environmental Law

This article analyzes the American Clean Energy and Security Act under international environmental law and standards. The Act requires that importers pay a fee if certain requirements regarding the country and sector are satisfied. The article presents general difficulties with enforcing international environmental law, namely, the absence of a unitary government. Next, the article describes the following sources of international law: custom, treaties, soft law, and non-binding declarations. I conclude that the carbon tariffs from the American Clean Energy and Security Act are inconsistent with both hard and soft international environmental law

Designing American Industrial Policy: General versus Sectoral Approaches

The United States has been searching for a sensible and effective industrial policy since the 1780s. This study, written at the outset of the Clinton Administration, puts forward a theory of the proper industrial policy for any national government to have, especially the US government. The flaw in most proposals for industrial policy is that they are put forward by and seek to gratify uncompetitive rent-seeking industries. Instead, national industrial policy designers should focus on correcting the market failures that impede pro-growth economic performance. General approaches, such as strengthening public infrastructure, are likely to be much more effective than sectoral approaches, particularly tactics such as protectionist government trade policies. National policymakers should also obey the rules of international economic law

Assessing the ILO\u27s Efforts to Develop Migration Law

The world community has increasingly recognized the movement of people as an issue of global policy rather than an exclusive sovereign preserve of individual governments. In considering whether a good case exists for establishing a World Migration Organization, policymakers and stakeholders should look at whether existing international organizations can be better used to enhance international cooperation on migration policy. One such organization may be the International Labour Organization (“ILO”), a UN specialized agency that has worked on migrant issues from its beginning. This article analyzes the work of the ILO in international migration as prolegomena to assessing whether its role could be expanded or whether it could serve as a model for a new agency. This article first provides a brief survey of what the ILO has done on the issue of migration since 1919. Then, the article discusses the implications of the ILO experience for the idea of promoting transborder migration through an international organization