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International Integration and Democracy: No Love at First Sight

Published online by Cambridge University Press:  06 June 2017

Eric Stein
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In this essay I suggest a correlation between the integration level of an international institution and the public discourse about the lack of democracy and legitimacy in the institution’s structure and functioning. This discourse includes ideas for remedial action at both the national and international levels; it also becomes inevitably intertwined with other reform proposals that may call for an incremental or—particularly in the case of a more integrated organization—a radical restructuring. Having originated in the highly integrated European Community, the debate on the “democracy-legitimacy deficit” has reached other institutions, particularly the World Trade Organization (WTO) and the international financial bodies, and has become one component of the backlash rhetoric against “globalization.”

Type
Research Article
Information
American Journal of International Law , Volume 95 , Issue 3 , July 2001 , pp. 489 - 534
Copyright
Copyright © American Society of International Law 2001

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References

1 I use the term “discourse” in this essay to comprise a broad spectrum of communications, such as statements by academics, practitioners, and authoritative and civic-society spokespersons, as well as normative texts, including judicial opinions.

2 The editors of the authoritative Yearbook of International Organizations “assume that an organization is intergovernmental if it is established by signature of an agreement engendering obligations between governments.” [1999/2000] 4 Y.B. Int’l Orgs. 547, 549-50. “Regimes” are defined broadly as “sets of implicit or explicit principles, norms, rules and decision-making procedures around which actors’ expectations converge in a given issue area of international relations.” Robert O. Keohane, After Hegemony: Cooperation and Discord in the World Political Economy 57 (1984). 2 United Nations: Law, Policies and Practice 928 (rev. Eng. ed., Rüdiger Wolfrum ed., 1999) estimates the current number of IGOs at “around 300.” A “huge proportion” of the new IGOs were created not by governments but by other IGOs; “traditional IGOs” established by treaties declined from 394 in 1982 to 339 in 1992, while the “emanations” from other IGOs increased from 669 to 808. See David Held, Democracy and the Globalorder: From the Modern State to Cosmopolitan Governance 108 (1995) (citing Krasner and others); Shanks, Cheryl, Harold, K. Jacobson, & Jeffrey, H. Kaplan, Inertia and Change in the Constellation of International Governmental Organizations, 1981-1992, 50 Int’l Org. 593, 594 (1996)CrossRefGoogle Scholar.

3 On “internationalization” or “globalization” generally, see Jeffrey I. Anderson, Regional Integration and Democracy: Expanding on the European Experience 5 (1999); Deirdre Curtin, Postnational Democracy: The European Union in Search of Political Philosophy (1997); Held, supra note 2; Boutros, Boutros-Ghali, Democracy: A Newly Recognized Imperative, 1 Global Governance 3 (1995)CrossRefGoogle Scholar; Robert, O. Keohane, International Relations and International Law, 38 Harv. Int’l L.J. 487, 491–93 (1997)Google Scholar.

4 In 2000, 40.7% of the world’s people were said to be living in “free societies” (the highest percentage in the history of the survey); 23.8% were “partly free” and 35.5% “not free.” Freedom House, Freedom in the World: Annual Survey of Political Rights and Civil Liberties 2000-2001, Press Release (Dec. 20, 2000), at <http://freedomhouse.org/research/freeworld/2001>. But see Zakaria, Faieed, The Rise of Illiberal Democracies, Foreign Aff. Nov./Dec. 1997, at 22 CrossRefGoogle Scholar. See generally The Rule of Law and the Underprivileged in Latin America (Juan, E. Méndez, Guillermo, O’Donnell, & Paulo, Sérgio Pinkeiro eds., 1999)Google Scholar. On the effort to draw a sharp distinction between “liberal” and “illiberal” regimes’ behavior in the international arena, see the exchange between Anne-Marie, Slaughter and José, E. Alvarez, A Liberal Theory of International Law, 94 ASIL Proc. 240 (2000)Google Scholar. See also Harold, H. Koh, Why Nations Obey International Law, 106 Yale L.J. 2599, 2650 (1995)Google Scholar.

5 For instance, more than a hundred states are party to the International Covenant on Civil and Political Rights, Dec. 16, 1966, Art. 25, 999 UNTS 171, which guarantees nondiscrimination, the right to free elections, and participation in public affairs. Gregory, H. Fox, The Right to Political Participation in International Law, 17 Yale J. Int’l L. 539 (1992)Google Scholar; Thomas, M. Franck, The Emerging Right to Democratic Governance, 86 AJIL 46 (1992)Google Scholar; see also Hobe, Stephan, Die Zukunft des Völkerrechts im Zeitalter der Globalisierung, 37 Archiv Des Völkerrechts (1999)Google Scholar(noting the Moscow meeting of the Conference on Security and Co-operation in Europe, Oct. 3, 1991, and the Badinter Commission). On European regional law, see infra part V.

6 Dahrendorf, Ralf, The Third Way and Liberty: An Authoritarian Streak in Europe’s New Center, Foreign Aff., Sept./Oct. 1999, at 13, 16 CrossRefGoogle Scholar; see also Dimitris, N. Chryssochoou, Democracy in the European Union, pt. III, at 107 (1998)Google Scholar; Robert, O. Keohane, International Institutions: Can Interdependence Work ? Foreign Pol’y, Spring 1998, at 82, 92 Google Scholar; James, N. Rosenau, Governance and Democracy in a Globalizing World, in Re-Imagining Political Community: Studies in Cosmopolitan Democracy 28 (Archibugi, Daniele, Held, David, & Martin, Köhler eds., 1998)Google Scholar [hereinafter Re-Imagining]. Paradoxically, in the operational sense, the looser the parliamentary control over the executive in foreign affairs, the easier it is for the state to participate in IGOs.

7 On the “neo-Brickerite” criticism of international institutions, see Thomas, M. Franck, Notes from the President, ASIL Newsl., Jan.-Feb. 1999, at 4 Google Scholar. See also Detlev, F. Vagts, International Agreements, the Senate and the Constitution, 36 Colum. J. Transnat’l L. 143, 153–54 (1997)Google Scholar. But see Kemp, Jack & Fred, L. Smith Jr., Beware of the Kyoto Compromise, N.Y. Times, Jan. 13, 1999, at A25 Google Scholar.

8 On the GATT Secretariat, see Michael, J. Trebilcock & Howse, Robert, The Regulation of International Trade 57–58 (2d ed. 1999)Google Scholar; Paul, B. Stephan, Accountability and International Lawmaking: Rules, Rents and Legitimacy, 17 Nw. J. Int’l L. & Bus. 681 (1997)Google Scholar.

9 Y.B. Int’l Orgs., supra note 2, at 550. The criteria employed are described at 547-48.

10 Anderson, Kenneth, The Ottawa Convention Banning Landmines, the Role of International Non-Governmental Organizations and the Idea of International Civil Society, 11 Eur. J. Int’l L. 91, 95, 104 (2000)Google Scholar; see also James, C. Hathaway, America, Defender of Democratic Legitimacy? id. at 121, 125 Google Scholar (replying to Anderson). See generally Falk, Richard, The United Nations and Cosmopolitan Democracy: Bad Dream, Utopian Fantasy, Political Project, in Re-Imagining, supra note 6, at 308, 321–28 Google Scholar. For a skeptical view of the ability of NGOs to provide accountability in the European Union, see Beate, Kohler-Koch, Organized Interests in European Integration: The Evolution of a New Type of Governance, in Participation and Policy-Making in the European Union 50, 54–56 (Wallace, H. & Young, A. R. eds., 1997)Google Scholar.

11 Fareed Zakaria, supra note 4, points to the rise of “illiberal democracies” from Peru to the Philippines, in which free elections without constitutional liberalism produce centralized regimes, erosion of liberty, ethnic competition, and domestic conflict. Similar tendencies appear in some of the transitional regimes in the states of the former Soviet Union. Ricardo Housman, the chief economist for Latin America at the International Bank for Development, cites an inadequate regulatory environment, corruption, and—among political problems in Latin America—fragmentation of parties, volatility in voting patterns, low levels of popular participation, election of governments by a minority of voters, lack of transparency, and lack of cohesion between executive and legislative branches. IBD América, May-June 2000, at 21.

12 Daniel, J. Elazar, Constitutionalizing Globalization: The Postmodern Revival of Confederal Arrangements (1998)Google Scholar; Kenneth, W. Abbott, “Economic” Issues and Political Participation: The Evolving Boundaries of International Federalism, 18 Cardozol. Rev. 971 (1996)Google Scholar. In particular, see Curtin, supra note 3, with a historical survey at 1-25. Paterson, Matthew, Overview: Interpreting Trends in Global Environmental Governance, 75 Int’l Aff. 793 (1999)Google Scholar, describes two “contradictory accounts”: a common interest of states, multinationals, and international agencies, which have the goal of organized capital accumulation and development; and a myriad of locally organized, but transnational groups, social movements, and NGOs, mobilized to resist the states, multinationals, etc. See also Miller, Judith, Globalization Widens Rich-Poor Gap, U.N. Report Says, N.Y. Times, July 13, 1999, at A8 Google Scholar (describing a report by the United Nations Development Programme urging that the “rules of globalization” should be rewritten to prevent the sixty countries that are worse off now than they were in 1980 from falling even further behind). Czech Republic President Václav Havel said that globalization is leading to the “reckless destruction of the planet,” to the spread of a “civilization based on pseudo-values, the swelling of organized crime and terrorism, and a short-sighted form of market economy that abuses poorer countries.” Czech President Criticizes Globalization, Radio Free Europe/Radio Liberty [RFE/RL], Newsline, Jan. 3, 2000, pt. II, at 3, at <http://www.rferl.org/newsline/2000/01/030100.html>.

13 Robert, A. Dahl, On Democracy (1998)Google Scholar; Held, David, Models of Democracy (1987)Google Scholar; Lijphart, Arend, Democracies: Patterns of Majoritarian and Consensus Government in Twenty-One Countries (1984)CrossRefGoogle Scholar; Bienen, Derk. Rittenberger, Volker, & Wagner, Wolfgang, Democracy in the United Nations System: Cosmopolitan and Communitarian Principles, in Re-Imagining, supra note 6, at 291–92 Google Scholar; Marks, Susan, Democracy and International Governance 2 Google Scholar (unpublished manuscript, on file with author). For an interesting discussion of alternative models to representative democracy, “republican and institutional balance,” and the Schumpeterian competitive elite model, see Craig, P. P., Democracy and Rule-Making Within the EC: An Empirical and Normative Assessment, 3 Eur. L.J. 105, 113–16 (1997)Google Scholar.

14 Guéhenno, J. M., La Fin De La Democratie (1993)Google Scholar. The problem of democratic control over such agencies has already arisen in a regional context: namely, the Central Bank in the European Union. It is argued, however, that these agencies can be made accountable to political institutions both ex ante and ex post. Conversation with Petros C. Mavroidis (Oct. 12, 2000).

15 See generally Bienen, Rittenberger, & Wagner, supra note 13, at 287-93.

16 Stephan, supra note 8, at 721, 734—35. There is a need for a “third transformation” of the definition of democracy. “[I]t is no longer possible for democratic states to be fully democratic in a non-democratic international system.” Bienen, Rittenberger, & Wagner, supra note 13, at 288.

17 Steinberger, Helmut, Der Verfassungsstaat als Glied einereuropäischen Gemeinschaft, 50 Veröffentlichungen Der Vereinigung Der Deutschen Staatsrechtslehrer 9, 39 (1991)Google Scholar (report with reference to the European Union).

18 See Curtin, supra note 3, at 18-27.

19 See supra text at note 5. Jon Elster, Introduction to Constitutionalism and Democracy 1 (Jon Elster & Rune Slagstad eds., 1998), offers the basic definition of democracy as “simple majority rule, based on the principle, ‘One person one vote.’”

20 See definitions in Lijphart, supra note 13. See also Curtin, supra note 3; Dahl, Roberta, Democracy and Its Critics (1989)Google Scholar; Robert, A. Dahl, On Democracy (1998)Google Scholar; Democratization (Potter, David, Goldblatt, David, Kiloh, Margaret, & Lewis, Paul eds., 1997)Google Scholar; Held, David, Models of Democracy (1987)Google Scholar Crawford, James & Marks, Susan, The Global Democracy Detail, in Re-Imagining, supra note 6, at 72, 8 Google Scholar1 (noting a definition of representative democracy by the Inter-American Commission of Human Rights); Stein, Eric, Reflections on Democracy in the European Union, in New Directions in International Law: Essays in Honor of John H. Jackson 3 (Marco, C.E.J. Bronckers & Quick, Reinhard eds., 2000)Google Scholar. According to Susan Marks, democracy is

an essentially contested concept. In no setting is the meaning of democracy a technical issue, on which a scholar might hope authoritatively to pronounce. Rather, the significance attached to “rule by the people” is always and everywhere a political struggle, with winners and losers and exceptionally high stakes. It follows that democracy is defined and redefined not through scholarly fiat, but through the interplay of social forces.

Marks, supra note 13, at 30 (footnote omitted). On civic republican democracy, see Scott, Joanne, Law, Legitimacy and EC Governance: Prospects for Partnership, 36 J. Common Mkt. Stud. 175, 176–78 (1998)Google Scholar (citing Epstein, Pettit, Young, Selznick, and Sunstein). See also Craig, supra note 13.

21 According to Philip Soper, the rule of law includes

the largely formal or procedural properties of a well-ordered legal system…. : a prohibition of arbitrary power (the lawgiver is also subject to the laws); laws that are general, prospective, clear, and consistent (capable of guiding conduct); and tribunals (courts) that are reasonably accessible and fairly structured to hear and determine legal claims. Contemporary discussions of the rule of law focus on two major questions: (1) to what extent is conformity to the rule of law essential to the very idea of a legal system; and (2) what is the connection between the rule of law and the substantive moral value of a legal system?

The Cambridge Dictionary of Philosophy 699 (Robert Audi gen. ed., 1995).

22 Howse, Robert & Nicolaidis, Kalypso, Legitimacy and Global Governance: Why Constitutionalizing the WTO Is a Step Too Far, in Efficiency, Equity and Governance: the Multilateral Trading System at the Millennium (Pierre, Sauvé & Subramanian, Arvind eds., forthcoming) (manuscript at 25)Google Scholar.

23 Ronald, B. Mitchell, Sources of Transparency: Information Systems in International Regimes, 42 Int’l Stud. Q. 109 (1998)Google Scholar. The right to freedom of expression and to receive and impart information is guaranteed in Article 19 of the International Covenant on Civil and Political Rights, supra note 5, and Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 UNTS 221.

24 See Thomas, M. Franck, The Power of Legitimacy Among Nations (1990)Google Scholar; Thomas, M. Franck, Legitimacy in the International System, 82 AJIL 705 (1988)Google Scholar; Jose, E. Alvarez, Book Review Essay, 24 N.Y.U.J. Int’l L. & Pol. 199 (1991)Google Scholar. Some human rights activists urge that undemocratic, oppressive regimes should be denied international recognition.

25 Karl, W. Deutsch, The Analysis of International Relations 198 (2d ed. 1978)Google Scholar. “[T]he possibility for various internal decision processes [within an organization] makes the choice between integration and inter-governmentalism a choice along a continuum instead of a stark binary choice.” Id. Another suggested scheme envisages four dimensions of integration: scope (range of issues), depth (extent of policy coordination and harmonization), institutionalization (decision making in organized, predictable way), and centralization. The Challenge of Integration: Europe and the Americas 5 (H. Peter Smith ed., 1993).

26 For my purposes, I do not see the need to distinguish integration from “cooperation” on the basis of “intensity of relations between the participating states and the manner in which those relations are . . . managed” and the absence of intention “to impinge greatly on national sovereignty” since it remains under the control of states. Brigid Laffan, Integration and Co-Operation In Europe 3 (1992). The yardstick appears uncertain and the intention to protect sovereignty may weaken in the process. See generally Chryssochoou, supra note 6, at 6; Joel, P. Trachtman, The Theory of the Firm and the Theory of International Economic Organization: Toward Comparative Institutional Analysis, 17 Nw.J. Int’l L. & Bus. 470, 535 (1996/97)Google Scholar.

27 On the second group, the empirical-social group of factors, see Weiler, J. H. H., The Constitution Of Europe—“Do the New Clothes Have an Emperor?” and Other Essays on European Integration 84 (1999)Google Scholar.

28 See infra text at notes 203-07.

29 Weiler, supra note 27, at 221.

30 See infra text at note 120.

31 Kiriyama, Nobuo, Institutional Evolution in Economic Integration: A Contribution to Comparative Institutional Analysis for International Economic Organization, 19 U. PA. J. Int’l Econ. L. 53 (1998)Google Scholar. James, McCall Smith, The Politics of Dispute Settlement Design: Explaining Legalism in Regional Trade Pacts, 54 Int’l Org. 137 (2000)Google Scholar, provides an interesting study of some sixty regional IGOs that explores the relationships between the asymmetry of the economies of the members, the levels of integration, and “legalism” (judicializauon). Focus is on formal procedures, not policy outcomes. The actual functioning of the IGOs is beyond the scope of the study. Id. at 172. See also infra text at notes 110-11.

32 Conversation with an OECD staff member (fall 2000). See generally Convention on the Organization for Economic Cooperation and Development, Dec. 14, 1960, 12 UST 1728, 888 UNTS 179 (particularly Art. 5(a) authorizing binding decisions). Members may enter reservations and in some instances derogations regarding the codes. Trebilcock. & Howse, supra note 8, at 277, 292.

33 Zakaria, Haji Ahmad & Ghoshal, Baladas, The Political Future of ASEAN After the Asian Crisis, 75 Int’l Aff. 759 (1999)Google Scholar.

34 David Held envisages three types of “international agencies and organizations”:

— Global networks of coordination such as the Group of 7, with minimal institutions but considerable influence.

— Technical organizations such as the Universal Postal Union, which provide extension of services offered by individual states and are “nonpolitical” and uncontroversial.

— Organizations that deal with “more central questions of the management and allocation of rules and resources,” such as the United Nations, the WTO, the International Monetary Fund (IMF), and the World Bank, which have become controversial and politicized. In the latter—or possibly in a separate fourth category—figures the European Union, a system combining an economic community with elements of a political community, which is a model for many regional organizations.

HELD, supra note 2, at 109, 111; see also Stephan, supra note 8, at 681.

35 “Specialized agencies” have concluded standard agreements with the United Nations. For a list, see 1B International Organization and Integration, at xvi-xix (P.J. G. Kapteyn etal. eds., 1982).

36 The UN Charter refers to “free political institutions” only in connection with non-self-governing territories. UN Charter Art. 73(b). On membership, see id., Art. 4.

37 Id., Art. 2(7).

38 Id., Art. 71. A corresponding provision has been accepted by UN specialized agencies.

39 On nonstate actors’ participation in the International Labour Organization, see infra text at note 41.

40 Falk, Richard, The United Nations and Cosmopolitan Democracy, in Re-Imagining, supra note 6, at 309, 321–24 Google Scholar.

41 See generally Charnovitz, Steve, The International Labor Organization in Its Second Century, 2000 Max Planck Y.B. Unl (forthcoming)Google Scholar.

42 WHO Const., July 22, 1946, Art. 2, 62 Stat. 2679, 14 UNTS 185; David, P. Fidler, The Future of the World Health Organization: What Role for International Law? 31 Vand.J. Transnat’l L. 1079, 1084–86 (1998)Google Scholar [hereinafter Fidler, Future]. See generally Beigbeder, Yves, Nashat, Mahyar, Marie-Antoinette, Orsini, & Tiercy, J. F., The World Health Organization (1998)Google Scholar [hereinafter Beigbederetal.]; David, P. Fidler, International Law and Public Health: Materials on and Analysis of Global Health Jurisprudence (2000)Google Scholar [hereinafter Fidler, International Law]; Reposturing the WHO: The World Health Organization Is About to Be Given a Much Needed Kick in the Backside, Economist, May 9, 1998, at 79; World Health Report 1999—Message from the Director-General, at <http://www.who.int/whr/1999/en/dgmessage.htm> [hereinafter Director-General’s Message] (visited July 16, 2001).

43 Regulation No. 1, Unification of Statistical Classification of Morbidity and Mortality (1948, revised several times); and Regulation No. 2, International Sanitary Regulations (1951). Beigbederetal., supra note 42, at 72.

44 In 1996 the Health Assembly initiated work on an international framework convention for tobacco control. This would be the first convention to be adopted under Article 19 of the WHO Constitution. World Health Organization, Intergovernmental Negotiating Body, Chair’s Text of a Framework Convention on Tobacco Control, Doc. A/FCTC/INB2/2 (Jan. 9, 2001); Beigbeder Et Al., supra note 42, at 71; Meeting Set to Establish Global Rules on Tobacco, N.Y. Times, Oct. 15, 2000, at 4.

45 Beigbeder Et Al., supra note 42, at 84.

46 International Code of Marketing of Breast-milk Substitutes, May 21, 1981, Doc. WHO/MCH/NUT/90.1. Other issues that created controversy were the effort to regulate international drug commerce, the abusive sale of pharmaceuticals in the Third World, and also the response to the AIDS epidemic. Fidler, International Law, supra note 42, at 101, 103.

47 Beigbeder Et Al., supra note 42, at 75-84.

48 Id. at 81.

49 Y.B. Int’l Orgs., supra note 2, at 2300, 2302-03.

50 A major WHO success was the eradication of smallpox. According to a WHO spokesperson, health research focuses disproportionately on diseases of concern to high-income countries, with only 0.20% of research dollars spent on “the biggest killers,” pneumonia and diarrheal diseases. Olson, Elizabeth, Switzerland: Health Spending, N.Y. Times, May 2, 2000, at A10 Google Scholar. The WHO has been criticized for not paying attention to AIDS. David, P. Fidler, David, L. Heymann, Stephen, M. Ostroff, & Terry, P. O’Brien, Emerging and Reemerging Infectious Diseases: Challenges for International, National, and State Law, 31 Int’l Law. 773, 799 (1997)Google Scholar (asking whether the WHO’s power in the field should be increased).

51 See, e.g., Economist, supra note 42, at 79; Turner, Jill, For WHO or For Whom? World Health Organization’s Influence on Health Policy, Lancet, June 7, 1997, at 1639 Google Scholar.

52 Turner, supra note 51, at 1640.

53 Director-General’s Message, supra note 42.

54 Private conversation with a WHO staff member (fall 2000).

55 See WHO Const, ch. VII; Fidler, Future, supra note 42, at 1079, 1090-91.

56 Beigbeder Et Al., supra note 42, at 84-85; Fidler, Future, supra note 42, at 1099-1100.

57 Nordic Un Project, the United Nations in Development: Reform Issues in the Economic and Social Fields: a Nordic Perspective 66-67 (Stockholm 1991), cited in Beigbeder Et Al., supra note 42, at 85. “The scientific progress of the antibiotic revolution . . . allowed public health officials to go directly after the pathogenic microbes rather than thinking about international legal regimes designed to control diseases.” Fidler, International Law, supra note 42, at 121.

58 The Agreement Establishing the World Trade Organization contains institutional and procedural provisions. It is a leading portion of the complex 26,000-page treaty, with four important annexes comprising most of the pages and all of the substance. Annex 1, for instance, contains twelve agreements on different subjects. Also included is a series of “understandings,” “ministerial decisions,” and “declarations.” Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, 1867 UNTS 3 [hereinafter WTO Agreement]; General Agreement on Tariffs and Trade 1994, Apr. 15, 1994, 1867 UNTS 190 [hereinafter GATT 1994]. See generally Jacques, H. J. Bourgeois, Berrod, Frederique, & Eric, Gippini Fournier, The Uruguay Round Results: a European Lawyers’ Perspective (1995)Google Scholar; Marco, C. E. J. Bronckers, A Cross-Section Of WTO Law (2000)Google Scholar; Robert, E. Hudec, Enforcing International Trade Law: The Evolution of the Modern Gatt Legal System (1993)Google Scholar; International Tradelaw and the Gatt/WTO Dispute Settlement System (Ernst-Ulrich, Petersmann ed., 1997)Google Scholar John, H. Jackson, Legal Problems of International Economic Relations (3d ed. 1995)Google Scholar; John, H. Jackson, The World Trade Organization—Constitution and Jurisprudence 36–41 (1998)Google Scholar [hereinafter Jackson, World Trade Organization] ; John, H. Jackson, The World Trading System (2d ed. 1997)Google Scholar; Ernst-Ulrich, Petersmann, The Gatt/WTO Dispute Settlement System—International Law, International Organizations and Dispute Settlement (1997)Google Scholar; Trebilcock & Howse, supra note 8; Robert, F. Housman, Democratizing International Trade Decision-Making, 27 Cornell Int’l L.J. 699 (1994)Google Scholar.

59 At the time of publication, the WTO had 140 members and current applicants included China and Russia. For information about the WTO and dispute settlement reports, see the WTO Web site at <http://www.wto.org>.

60 The liberalization commitments cover trade in goods (tariffs and nontariff barriers), services (including financial services and competition in telecommunications), aspects of agriculture, government procurement, sanitary and phytosanitary measures, antidumping, subsidies and countervailing measures, and intellectual property. Trebilcock & Howse, supra note 8, at 37-38. The WTO budget is only $ 80 million, an amount the IMF is said to spend on travel. Washington, Europe, Nov. 1999, at 11.

61 Marco, C. E.J. Bronckers, Better Rules for a New Millennium: A Warning Against Undemocratic Developments in the WTO, 1999 J. Int’l Trade 547, 548 Google Scholar.

62 The General Council seems to have overall supervising authority. There is, however, in addition, a Council for Trade in Goods, a Council for Trade in Services, and a Council for Trade-Related Aspects of Intellectual Property Rights. For an informative table of the institutional scheme, see Jackson, The World Trading System, supra note 58, at 66. See generally Jackson, World Trade Organization, supra note 58, at 41. The WTO Agreement does provide for authoritative interpretation of the broad general principles by the two all-member organs, but this provision has remained a dead letter. Bronckers, supra note 61, at 551. A three-fourths majority is required for such interpretation. A corresponding power has been used in the GATT by the Contracting Parties.

63 Voting has been used in cases of waiver of certain obligations. “Consensus” is defined as a situation where no member present formally objects to the decision. WTO Agreement, supra note 58, Art. IX n.1; Jackson, World Trade Organization, supra note 58, at 68.

64 In theory, new rules could be established by an amendment in accordance with Article X of the WTO Agreement, supra note 58, but the prerequisite of formal acceptance by members makes the process “very hard, if not impossible to use.” Letter from Professor William J. Davey, to the author (Oct. 16, 2000) (on file with author). In principle, new rules are adopted at the end of the negotiating rounds, which add to, or amend, the constituent agreements; new provisions are created only sporadically between the negotiating rounds. Bronckers, supra note 61, at 553. According to Article X, in negotiations for further evolution of the WTO conducted within a standing committee, changes may be adopted by a two-thirds majority. Thus, conceivably a party could be outvoted and therefore bound internationally without its consent. Some may view this possibility as raising questions of constitutionality and “sovereignty,” while others may welcome it as facilitating desirable changes. See Housman, supra note 58, at 714.

65 See John, H. Jackson, Dispute Settlement and the WTO: Emerging Problems, 1 J. Int’l Econ. L. 329 (1998)Google Scholar [hereinafter Jackson, Emerging Problems]. See generally Jackson, World Trade Organization, supra note 58, at 75; Palmeter, David & Petros, C. Mavroidis, Dispute Settlement in the World Trade Organization (1999)Google Scholar; Trebilcock & Howse, supra note 8, at 61; Cottier, Thomas, Dispute Settlement in the World Trade Organization: Characteristics and Implications for the European Union, 35 Common Mkt. L. Rev. 325 (1998)Google Scholar; Symposium on the First Three Years of the WTO Dispute Settlement System, 32 Int’l Law. 609 (1998). The secretariat proposes panelists from a roster of names. The parties usually agree on the selection of the panelists. If they fail to agree, the director-general decides. Vermulst, E. & Driessen, B., An Overview of the WTO Dispute Settlement System and Its Relationship with the Uruguay Round Agreements: Nice on Paper But Too Much Stress for the System, in The World Trading System 415, 423–33 (Howse, Robert ed., 1998)Google Scholar. William, J. Davey, Supporting the World Trade Organization Dispute Settlement System, J. World Trade, Feb. 2000, at 167, 169 Google Scholar, recommends the creation of a “permanent body of some kind.” See also Yong, K. Kim, The Beginnings of the Rule of Law in the International Trade System Despite U.S. Constitutional Constraints, 17 Mich. J. Int’l L. 967, 978–81 (1996)Google Scholar.

66 Trebilcock & Howse, supra note 8, at 36-37. Some of the pressures for compliance include continuous monitoring and fallback procedures in case the parties do not agree on the composition of the panel or its terms. Pauwelyn, Joost, Enforcement and Countermeasures in the WTO: Rules Are Rules—Toward a More Collective Approach, 94 AJIL 335 (2000)Google Scholar; see also infra note 68.

67 Trebilcock & Howse, supra note 8, at 63-64.

68 Jackson makes a strong case that an adopted panel/appellate report creates an international law obligation. Jackson, World Trade Organization, supra note 58, at 81-89; see also John, H. Jackson, The WTO Dispute Settlement Understanding—Misunderstandings on the Nature of Legal Obligation, 91 AJIL 60 (1997)Google Scholar; Petros, C. Mavroidis, Remedies in WTO Legal System: Between a Rock and Hard Place, 11 Eur. J. Int’l L. 763, 778–88 (2000)Google Scholar. But see the “contract theory” approach in Roessler, Frieder, Warren, F. Schwartz, & Alan, O. Sykes, The Economic Structure and Dispute Resolution in the WTO/GATT System (unpublished paper for workshop at University of Michigan Law School)Google Scholar. See further Hippler, Judith Bello, The WTO Dispute Settlement Understanding: Less Is More , 90 AJIL 418 (1996)Google Scholar.

69 On conflict of interest and working procedure of the Appellate Body, see Jackson, World Trade Organization, supra note 58, at 18; Steven, P. Croley & John, H. Jackson, WTO Dispute Procedures, Standard of Review, and Deference to National Governments, 90 AJIL 193 (1996)Google Scholar; Palmeter, David & Petros, C. Mavroidis, The WTO Legal System: Sources of Law, 92 AJIL 398 (1998)Google Scholar.

70 “Our function in this case is judicial. . . . We are guided . . . by the jurisprudence of the Appellate Body.” United States—Sections 301-310 of the Trade Act of 1974, WTO Doc. WT/DS152/R, paras. 7.12, 7.14 (Dec. 22, 1999) [hereinafter U.S.—Trade Act]; see Petersmann, supra note 58, at 84-85 (citing HUDEC, supra note 58). See generally Frederick, M. Abbott, NAFTA and the Legalization of World Politics: A Case Study, 54 Int’l Org. 519 Google Scholar (Special Issue, Summer 2000) Judith Goldstein, Miles Kahler, Robert O. Keohane, & Anne-Marie Slaughter, id. (exploring the problems of legalization); Reich, Arie, From Diplomacy to Law—The Juridicization of International Trade Relations, 17 Nw. J. Int’l L. & Bus. 775 (1996/97)Google Scholar. On the authoritative interpretation, see supra note 62.

71 Housman, supra note 58, at 710-12. Oral hearings of the European Court of Justice are normally public. However, written pleadings are accessible only to parties or to third parties with a legitimate interest. Dyrberg, Peter, Current Issues in the Debate on Public Access to Documents, 24 Eur. L. Rev. 157 (1999)Google Scholar.

72 Eechout, Piet, The Domestic Legal Status of the WTO Agreement: Interconnecting Legal Systems, 34 Common Mkt. L. Rev. 11 (1997)Google Scholar. An individual may sue potential suppliers directly in national courts under the GATT Agreement on Government Procurement, amended Apr. 15, 1994, WTO Agreement, supra note 58, Annex 4(b).

73 WTO Secretariat, Overview of the State-of-Play of WTO Disputes, Statistical Overview at 2 (July 13, 2001). See generally Hudec, supra note 58.

74 Howse & Nicolaidis, supra note 22, at 17, passim. But see Cottier, Thomas, Limits to International Trade: The Constitutional Challenge, 94 ASIL Proc. 220 (2000)Google Scholar; Petersmann, infra note 106.

75 U.S.—Trade Act, supra note 70, paras. 7.76, 7.78. The panel indicated that, in considering whether one state has violated its treaty obligations, die adjudicatory body may consider not just die interests of the state, but also the impact on private actors. Steve Charnovitz, The WTO and the Rights of the Individual, Intereconomics, Mar./Apr. 2001, at 98. In the United States and the European Community, the legislation implementing the WTO Agreement purports expressly to exclude direct effect in national law; in Canada and Australia, such exclusion is the result of both dualism practice and the implementing legislation; and in Switzerland, the denial of direct effect derives from rulings of the Federal Supreme Court. In Japan’s monist system, the situation is unclear; it is up to the courts to decide which provisions of the WTO Agreement are to be applied directly, but it is unlikely that the courts would strike down an act of the legislature. For detailed treatment, including the practice in Belgium, Germany, Korea, Costa Rica, and Brazil, see Implementing The Uruguay Round (John H. Jackson & Alan O. Sykes eds., 1997) [hereinafter Uruguay Round]. The definitional problem of “direct effect” is noted in id. at 460-61. See also text after note 7 supra.

76 Since the establishment of the GATT, tariffs have been cut by roughly 90%. In addition, the volume of international trade has increased fifteen times since 1960. Delegation of the Commission of the European Community, Washington, Europe, Nov. 1999, at 8.

77 Gary C. Hufbauer & Barbara Kotschwar, The Future Course of Trade Liberalization (Institute for International Economics, 1998) John Whalley & Colleen Hamilton, The Trading System After The Uruguay Round 59-76 (1996); Douglas A. Irwin, The GATT in Historical Perspective,85 Am. Econ. Rev. 323 (1995). They see “great uncertainty as to the quantifiable and non-quantifiable aspects.” Whalley & Hamilton, supra, at 75.

78 Kim, supra note 65, at 975-78. For the treaty, see Free Trade Agreement, Jan. 2, 1988, Can.-U.S., 27 ILM 281 (1988).

79 E.g., Implementation of the Uruguay Round Trade Agreements and Establishment of the World Trade Organization: Hearings Before the Subcomm. on Trade of the House Comm. on Ways and Means, 104th Cong. 5 (1996) (statement of Amb. Michael Kantor); Kim, supra note 65, at 979. The Uruguay Round Agreement Act states that federal law shall prevail over any conflicting provision of die Agreement. Pub. L. No. 103-465, 108 Stat. 4809 (1994).

80 See infra text at notes 137-42; Kim, supra note 65, at 968 n.3. For the treaty, see North American Free Trade Agreement, Dec. 17, 1992, U.S.-Can.-Mex., 107 Stat. 2066, reprinted in 32 ILM 296 (1993). In the European Community, a constitutional issue arose over the division of treaty power between the member states and the Community. In Japan, the approval of the WTO Agreement by the Diet avoided a potential controversy over the authority of the executive to conclude treaties. In Canada, the key constitutional issue was which level of government— federal or provincial—had the authority to implement parts of the WTO Agreement. Uruguay Round, supra note 75 (reporting also on constitutional issues in other states). On the constitutional challenge to congressional delegation of power, see Delegating State Powers: the Effect of Treaty Regimes on Democracy and Sovereignty (Thomas, M. Franck ed., 2000)Google Scholar; Michael, C. Dorf & Charles, F. Sabel, A Constitution of Democratic Experimentalism, 98 Colum. L. Rev. 267, 270–72 (1998)Google Scholar. For more extensive discussion, see text following note 131 infra.

81 John, H. Jackson, The Great 1994 Sovereignty Debate: United States Acceptance and Implementation of the Uruguay Round Results, 36 Colum. J. Transnat’l L. 157, 187 (1997)Google Scholar; see also Jackson, World Trade Organization, supra note 58, at 77; Jackson, the World Trading System, supra note 58, at 99.

82 Ralph Nader, quoted in Shell, G. R., Trade Legalism and International Relations Theory: An Analysis of the World Trade Organization, in 2 the World Trading System, supra note 65, at 333, 382 n.4Google Scholar; see Howse, Robert, Eyes Wide Shut in Seattle: The Legitimacy of the World Trade Organization, in The Legitimacy of International Institutions (Heiskanen, V. & Coicaud, J.-M. eds., 2001)Google Scholar.

83 United States—Restrictions on Imports of Tuna (GATT panel, unadopted, Aug. 16, 1991), 30 ILM 1594 (1991); see also Agreement for the Reduction of Dolphin Mortality in the Eastern Pacific Ocean (EPO) J u n e 1992, 33 ILM 936 (1994). On another decision with the same result, of May 15, 1998, sharply criticized, see Howse, Robert, The Turtles Panel—Another Environmental Disaster in Geneva, J. World Trade, Oct. 1998, at 73 Google Scholar. United States—Import Prohibition of Certain Shrimp and Shrimp Products, WTO Doc. WT/DS58/R (May 15, 1998) [hereinafter U.S.—Shrimp/Turtle].

84 Seattle Is Under Curfew After Disruptions, N.Y. Times, Dec. 1, 1999, at A1; Seattle WTO Ministerial Conference, Harmonization Alert, Nov.-Dec. 1999, at 1-4, at<http://www.harmonizationalert.org>. When President Clinton proposed that workers’ rights and environmental protections be included in the negotiations, and mentioned sanctions for noncompliance with standards to be agreed upon, some developing countries, including Egypt, Brazil, and India, refused even to discuss it. Shipwreck in Seattle, N.Y. Times, Dec. 5, 1999, at 14; Trade Ministers Sidestep a Sticky Issue: Secrecy, N.Y. Times, Dec. 4, 1999, at A6; U.S. Isolated on Key Issues at Trade Talks in Seattle, id. Egypt’s chief trade representative stated: “[W]e needed a decision to stop this process until we can figure out how to balance transparency and efficiency.” Impasse on Trade Delivers a Stinging Blow to Clinton, N.Y. Times, Dec. 5, 1999, § 1, at 1.

85 Housman, supra note 58, at 711-13. In Public Citizen v. Office of United States Trade Representative, 804 F.Supp. 385 (D.D.C. 1992), the court held that GATT panel submissions and decisions must be released promptly upon receipt of a proper request under the Freedom of Information Act unless protected by a specific exemption.

86 Robert, O. Keohane & Joseph, S. Nye Jr., The Club Model of Multilateral Cooperation and the World Trade Organization: Problems of Democratic Legitimacy (rev. June 30, 2000)Google Scholar (paper presented at John F. Kennedy School of Government, Harvard University, June 1-2, 2000).

87 On remedies for the democracy-legitimacy deficit, see Jan Aart Scholte, with Robert, O’Brien & Williams, Marc, The WTO and Civil Society, J. World Trade, Feb. 1999, at 107, 116–18 Google Scholar.

88 On President Clinton in 1998 in Davos, see Clinton Shift on Trade: Wake-Up Call, N.Y. Times, Jan. 31, 1998, at A6; and in Geneva, on the 50th anniversary of the GATT/WTO, WTO Doc. WT/FIFTY/H/ST/8 (1998). See Trebilcock & Howse, supra note 8, at 66-78. The WTO director-general advocated enlargement of the negotiating circle and improvement of the decision-making process. Bulletin Quotidien Europe [Bull. Quot. Eur.], Jan. 6, 2000, at 10.

89 Acting under Article 5 of the WTO Agreement, supra note 58, which authorizes the council to make “appropriate arrangement” for consultation and cooperation with the NGOs concerned, the General Council agreed to de-restrict WTO documents more quickly and to make information more accessible. There was consensus, however, that any further NGO participation was inappropriate. GATT/WTO Agreements make no fewer than forty-one references to “transparency” in domestic legal systems, which is viewed as essential for enforcement. Kim, supra note 65, at 989-92; see also Debevoise, Whitney, Access to Documents and Panel and Appellate Body Sessions: Practice and Suggestions for Greater Transparency, 32 Int’l Law. 817 (1998)Google Scholar.

90 Bronckers, supra note 61, at 565 (discussing giving more power to the secretariat and other recommendations); Davey, supra note 65.

91 United States—Import Prohibition of Certain Shrimp and Shrimp Products, WTO Doc. WT/DS58/AB/R, paras. 88-91, 187a (Oct. 12, 1998) (on briefs); see also United States—Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom, WTO Doc. WT/DS138/AB/R (May 10, 2000); European Communities—Regime for the Importation, Sale and Distribution of Bananas, WTO Doc. WT/DS27/AB/R, paras. 10-12 (Sept. 27, 1997) (on private counsel); Indonesia—Certain Measures Affecting the Automobile Industry, WTO Doc. WT/DS54/R (July 9, 1998). On comparable power of arbitration tribunals under NAFTA, see Methanex Corp. v. United States, Petitions from Third Persons to Intervene as “Amici Curiae,” paras. 47-53 (arb. under Ch. 11 of NAFTA & UNCITRAL Arb. Rules, 2001).

92 Shell, supra note 82, at 378.

93 Atik, Jeffery, Identifying Antidemocratic Outcomes: Authenticity, Self-Sacrifice and International Trade, 19 U. Pa. J. Int’l Econ. L. 229, 234, 261 (1998)Google Scholar.

94 Id. at 261-62.

95 GATT 1994 Art. XX headnote.

96 Charnovitz, Steve, Free Trade, Fair Trade, Green Trade: Defogging the Debate, 27 Cornell Int’l L.J. 459, 481–87 (1994)Google Scholar; see Howse & Nicolaidis, supra note 22, at 27-35. As an interesting comparison with the European Community, the European Court of Justice reinterpreted the constituent treaty prohibition on protective legislation to reduce significantly the scope of the prohibition. With the Community discipline (and its own authority) firmly established, the Court loosened the strict review standard allowing the member states’ lawmakers more leeway. Joined Cases C-267/91, C-268/91, Criminal Proceedings Against Bernhard Keck & Daniel Mithouard, 1993 ECR1-6097.

97 Jeffrey, L. Dunoff, The Death of the Trade Regime, 10 Eur. J. Int’l L. 733, 759–61 (1999)Google Scholar; see also Lawrence, R. Heifer & Anne-Marie, Slaughter, Toward a Theory of Effective Supranational Adjudication, 107 Yale L.J. 273, 316 (1997)Google Scholar.

98 Some member states’ constítutions might allow some WTO provisions in their national legal order to have direct effect, while others would not. Since WTO dispute settlement organs, unlike the European Court, lack the authority to impose a uniform rule on this issue that would bind all parties, the argument against granting direct effect is the absence of reciprocity, “a mercantilist argument.” Cottier, Thomas, Davey, William, Mavroidis, Petros, & Komuro, Norio, Is the WTO Dispute Settlement Mechanism Responsive to the Needs of the Traders: Would a System of Direct Action by Private Parties Yield Better Rules? 32 J. World Trade 147, 154–63 (1998)Google Scholar [hereinafter Panel Discussion]. But see text at note 75 supra.

99 Trebilcock & Howse, supra note 8, at 456-58, 462-63; Charnovitz, supra note 41, at 10-16, 22-30. See generally Howse, Robert & Mutua, Makau, Protecting Human Rights in a Global Economy: Challenges For The World Trade Organization (International Center for Human Rights and Democratic Development, Quebec, Canada 2000)Google Scholar; Frank, J. Garcia, The Global Market and Human Rights: Trading away the Human Rights Principle, 25 Brook.J. Int’l L. 51 (1999)Google Scholar; McCrudden, Christopher, International Economic Law and Pursuit of Human Rights: A Framework for Discussion of the Legality of ‘Selective Purchasing’ Laws Under the WTO Government Procurement Agreement, 2J. Int’l Econ.L. 3 (1999)Google Scholar.

100 See, for example, the Appellate Body report in the Shrimp/Turtle case, supra note 83, WTO Doc. WT/ DS58/AB/R (Nov. 6, 1998); Petros, C. Mavroidis & Damien, J. Neven, Some Reflections on Extraterritoriality in International Economic Law: A Law and Economic Analysis, in Mélange En Hommage à Michel Waelbroeck 1297, 1311–18 (1999)Google Scholar.

101 One recent panel report has been vigorously criticized for “failing to interpret the TRIPS Agreement in a manner that does justice to the delicate balance of social and economic interests reflected in the stated purposes of that Agreement” and for adopting an interpretation “that unduly curbs the regulatory autonomy of Members and that will undermine the legitimacy of the WTO in the eyes of its critics at a difficult point in the Organization’s history.” Howse, Robert, The Canadian Generic Medicines Panel—A Dangerous Precedent in Dangerous Times, 3 J. World Intell. Prop. 493, 506 (2000)Google Scholar; see U.S.—Trade Act, supra note 70. See generally Jackson, Emerging Problems, supra note 65.

102 Shell, supra note 82, at 378. A panel discussion concluded that private action possibly with direct effect “has some promise although it has some problems.” Panel Discussion, supra note 98, at 165.

103 Democracy and legitimacy require standing and enforcement rights of private parties. Andrea, K. Schneider, Democracy and Dispute Resolution: Individual Rights in International Trade Organizations, 19 U. Pa. J. Int’l Econ. L. 587, 589 (1998)Google Scholar.

104 Shell proposes such linkage, but Philip Nichols believes that it should be made primarily in domestic politics and that market-oriented rules should yield to conflicting maximal values. Philip, M. Nichols, Trade Without Values, 90 Nw. U. L. Rev. 658 (1996)Google Scholar, cited in Kenneth, W. Abbott, The Decline of the Nation State, 18 Cardozo L. Rev. 971, 976 (1996)Google Scholar; Daniel, C. Esty, Linkages and Governance, 19 U. Pa. J. Int’l Econ. L. 709 (1998)Google Scholar; see also John, O. McGinnis, The Decline of the Western Nation State and the Rise of the Regime of International Federalism, 18 Cardozo L. Rev. 903 (1996)Google Scholar.

105 Panel Discussion, supra note 98, at 148,158-59 (Eleanor Fox). Consider the experience with the investment chapter in NAFTA, infra text at notes 145-47.

106 Andrew, L. Strauss, The Case for Utilizing the World Trade Organization as a Forum for Global Environmental Regulation, 3 Widenerl. Symp. J. 309 (1998)Google Scholar; WTO, Singapore Ministerial Declaration, Doc. WT/MIN(96)/DEC (Dec. 18, 1996) (stating that trade and labor cases should be dealt with by the International Labour Organization); see also Trade and Environment in the New WTO Round, Doc. WT/GC/W/197 (June 1, 1999); Dunoff, supra note 97, at 756. Ernst-Ulrich Petersmann suggests that subjecting national policies such as those on trade and social matters to international supervision in different fora advances the principle of checks and balances. Ernst-Ulrich, Petersmann, Constitutionalism and International Organization, 17 Nw.J.Int’l L. & Bus. 398, 431 (1997)Google Scholar. Petersmann, despairing of the opposition by the “trade politicians and trade diplomats” to a European-style constitutionalization, calls for the creation of a new constituency (beyond that of the export industry) and for national parliaments and civil society to press for inclusion in future WTO rounds of a new initiative to “strengthen individual rights, constitutional safeguards and more representative institutions.” Of his many writings on this subject, see most recently Ernst-Ulrich, Petersmann, From ‘Negative’ to Positive Integration’ in the WTO: Time for Mainstreaming Human Rights into WTO Law, 37 Common Mkt. L. Rev. 1363, 1570 Google Scholar, passim (2000). He also proposes the establishment of an advisory WTO Economic and Social Committee composed of civil-society representatives and an advisory “parliamentary body” to help keep national parliaments better informed, id. at 1373. For suggestions on how the WTO should cope generally with the linkage problems, see Anderson, Kym, Environmental and Labor Standards: What Role for the WTO? in The WTO as an International Organization 231, 245–52 (Anne, O. Krueger ed., 1998)Google Scholar. See also Thomas, J. Schoenbaum, International Trade and Protection of the Environment: The Continuing Search for Reconciliation, 91 AJIL 268 (1997)Google Scholar; Richard, H. Steinberg, Trade-Environment Negotiations in the EU, NAFTA and WTO: Regional Trajectories of Rule Development, 91 AJIL 231 (1997)Google Scholar. McCrudden, Christopher and Davis, Ann, A Perspective on Trade and Labor Rights, 3 J. Int’l Econ. L. 43 (2000)Google Scholar, foresee continuing pressure on the WTO to encompass labor issues, if for no other reason because it has more effective enforcement instruments than the ILO.

107 According to GATT Art. XXIV, regional groupings have to request a waiver of the most-favored-nation rule.

108 For the NAFTA, see supra note 80. See generally Smith, supra note 31.

109 Trebilcock & Howse, supra note 8, at 24. Examples are the African Common Market, the Andean Community, Asia-Pacific Economic Cooperation (APEC), the Association of Southeast Asian States (ASEAN), the Caribbean (CARICOM), and Mercosur. New Dimensions in Regional Integration (Jaime de Melo & Arvind Parnagariya eds., 1993) explores integration in sub-Saharan Africa, Latin America, western and eastern Europe, and East Asia, and its prospects in the Middle East. See also Frederick M. Abbott, Law and Policy of Regional Integration: The Nafta and Western Hemispheric Integration in the World Trade Organization System (1995); Regional Integration and Democracy: Expanding on The European Experience (Jeffrey J. Anderson ed., 1999) [hereinafter Regional Integration].

110 In a regional grouping, the relatively large countries tend to prefer less judicialization than their smaller partners and they also tend to prevail in defining the lowest common denominator. Again, where economic asymmetry among members is high and the level of integration low, the judicialization of dispute settlement is invariably low. By focusing exclusively on third-party review, the study did not take into account dispute settlement modes and organs such as secretariats, commissions, and surveillance authorities. McCall Smith, supra note 31. In what was termed “naïve institutionalism,” the inquiry did not purport to deal with the actual development and impact of the pacts. Robert O. Keohane, Comments, in Miles Kahler, International Institutions and The Political Economy of Integration, cited in McCall Smith, supra, at 172.

111 Among those listed in the category of the highest judicialization (a permanent judicial tribunal), the East African Community and the West African Economic Community have been formally dissolved, the Court of Justice of the Economic Community of West African States awaits the realization of the treaty commitments, and the jurisdiction of the Economic Court of the Commonwealth of Independent States “appears to be severely restricted.” Judicial bodies envisaged for the Central American Common Market, the Andean Pact, the European Free Trade Area, and the Common Market for Eastern and Southern Africa draw on the model of the European Court of Justice. McCall Smith, supra note 31, at 158; see also Sequeira, Maxicel, Bilateral Bickering Stalls Regional Integration, Tico Times, Mar. 3, 2000, at 9 Google Scholar (suggesting that Central America is in a strange process of simultaneous social integration and political disintegration). Is regionalism preferable to multilateralism? Sec Frederick, M. Abbott, Integration Without Institutions: The NAFTA Mutation of the EC Model and the Future of the GATT Regime, 40 Am. J. Comp. L. 917 (1992)Google Scholar.

112 Trebilcock & Howse, supra note 8, at 39. See generally William J. Davey, Pine and Swine: Canada-United States Trade Dispute Settlement: The Fta Experience and Nafta Prospects (1996); Frederick W. Mayer, Interpreting Nafta: The Science and Art of Political Analysis (1998); Nafta: A Problem-Oriented Coursebook (Ralph H. Folsom, Michael Wallace Gordon, & David Lopez eds., 2000).

113 Public Citizen v. Office of United States Trade Representative, 782 F.Supp. 139 (D.D.C. 1992), rev’d, 5 F.3d 549 (D.C.Cir. 1993), cert. denied, 510 U.S. 1041 (1994). The NAFTA “package” did not need to be submitted to Congress before the U.S. government had prepared an environmental impact statement; NAFTA is not “final agency action” reviewable under the Administrative Procedure Act. For a related proceeding, see Public Citizen v. Office of United States Trade Representative, 822 F.Supp.2d 21 (D.D.C), 5 F.3d 549 (D.C. Cir. 1993), cert, denied, 510 U.S. 1041 (1994). See generally David, A. Gantz, Principal Features of the North American Free Trade Agreement, in Making Free Trade Work in The Americas 34 (Kozolchyk, Boris ed., 1993)Google Scholar.

114 For a succinct enumeration, see Gantz, supra note 113, at 34-51. See also Trebilcock & Howse, supra note 8, at 39–42.

115 NAFTA, supra note 80, Art. 2001 (1) e4; ABBOTT, supra note 109, at 28; Trebilcock & Howse, supra note 8, at 43.

116 Housman, supra note 58, at 722.

117 E-mail from Professor William J. Davey to the author (Nov. 2, 2000) (on file with author).

118 Sections 3 and 4 of Article 2005 allow only the NAFTA procedures in environmental, conservancy, sanitary, and phytosanitary matters.

119 NAFTA, supra note 80, Arts. 2012-18; ABBOTT, supra note 109, at 100-01; Abbott, supra note 70. The roster of prospective panelists is to consist “to the fullest extent practicable” of judges or former judges and the majority of the panel must be lawyers. NAFTA Annex 1901.2.1, .2.2. The process is to be based “on judicial rules of appellate procedure.” NAFTA Art. 1904.14. It is argued that particularly in the light of textual and contextual differences between the WTO and the NAFTA, the final NAFTA reports under Chapter 20 are less likely to be viewed as imposing an international obligation on the losing party than on its counterpart in the WTO. The only obligation is to negotiate in good faith. This question apparently has not been widely explored. E-mail from Frederick M. Abbott to the author (May 22, 2001).

120 The provisions of Chapter 19 encapsulate a laboriously negotiated compromise between Canada and the United States. Canada insisted on a change in what it viewed as protectionist American legislation and practice, and the United States peremptorily rejected any such change.

121 Trebilcock & Howse, supra note 8, at 84.

122 Id. at 43. In contrast with decisions under Chapter 20, discussed above, the decisions under Chapter 19 are likely to be considered as imposing international legal obligations. See supra note 119.

123 Gustavo Vega-Cánovas, NAFTA and the EU: Toward Convergence? in Regional Integration, supra note 109, at 225, 240-41. He reports that thirty-five antidumping cases have arisen since March 1992 in what appears to be a “recurring problem, causing deep frustration among businesses.” Id. at 240.

124 Trebilcock & Howse, supra note 8, at 83.

125 Laurence, R. Heifer, in Forum, Do the Lessons of EU Integration ‘Travel’? ECSA Rev., Winter 2000, at 2, 4–5 Google Scholar. In 1999 a Canadian company sued the U.S. government in an American court for violating Chapter 11 of NAFTA. Harmonization Alert, June-July 1999, at 1. See generally Pavel, Šturma, Commerce et investissement, 52 Revue Hellenique De Droit International 39 (1999)Google Scholar. A Mexican professor of international law considers Chapter 11 incompatible with the Mexican Constitution, particularly because it does not provide for exhaustion of local remedies (citing Arts. 133, 27, and 13 of the Constitution), and he advocates a reservation to NAFTA. Bernardo, Sepulveda Amor, International Law and National Sovereignty: The NAFTA and the Claims of Mexican Jurisdiction, 19 Hols. J. Int’l L. 565, 573, 590–93 (1997)Google Scholar. It is said that criticism of Chapter 11 “spilled over” into the debate on the proposed Multilateral Agreement on Investment and contributed to its defeat.

126 North American Agreement on Environmental Cooperation, Sept. 14, 1993, Can.-Mex.-U.S., pt. V, Arts. 5, 6, 8, 12, 32 ILM 1480 (1993); Trebilcock & Howse, supra note 8, at 436; Frona, M. Powell, The North American Commission for Environmental Cooperation’s San Pedro Report: A Case Study and Analysis of the CEC Process, 6 Envtl. Law. 809 (2000)Google Scholar.

127 NAFTA, supra note 80, Annex 34, Art. 3. Withdrawal of NAFTA trade benefits is also available as a penalty.

128 Trebilcock & Howse, supra note 8, at 438-39.

129 Sept. 8, 9, 12, 14, 1993, Can.-Mex.-U.S., 32 ILM 1499 (1993); The North American Agreement on Labor Cooperation: Linking Labor Standards and Rights to Trade Agreements: A Conference, 12 Am. U.J. Int’l L. & Pol’y 815 (1997).

130 See Reba, S. Koerner, Pregnancy Discrimination in Mexico: Has Mexico Complied with the North American Agreement on Labor Cooperation? 4 Tex. F. on C.L. & C.R. 235 (1999)Google Scholar. See generally Stephen, F. Diamond, Labor Rights in the Global Economy: A Case Study of the North American Free Trade Agreement, in Human Rights, Labor Rights and International Trade 199, 212–21 (Lance, A. Compa & Stephen, F. Diamond eds., 1996)Google Scholar; Robert, E. Herzstein, The Labor Cooperation Agreement Among Mexico, Canada and the United States: Its Negotiation and Prospects, 3 U.S.-Mex. L.J. 121 (1995)Google Scholar.

131 Vega-Cánovas, supra note 123, at 241. Mexico has become the second largest market for U.S. exports. Anne O. Krueger, Trade Creation and Trade Diversion under NAFTA (Working Paper 7429, National Bureau of Economic Research, Dec. 1999), at <http://www.nber.org/papers/w7429>; see Joining Together, Standing Apart; National Identities After Nafta (Dorinda G. Dallmeyer ed., 1997) [hereinafter Joining Together] . In particular, see Robert A. Pastor, id. at xi-xiv; Louis L. Ortmayer, id. at 25-34; and Alejandro Nadal, id. at 51-62. For a case study of the impact on the environment, see Powell, supra note 126.

132 For Mexico, see Const. Art. 27; see also id., Art. 13. On incompatibility, see Sepúlveda, supra note 125, at 592. For Canada, see Constitutional Act §96 (1867); Gesser, Avi, Why NAFTA Violates the Canadian Constitution, 27 Denv. J. Int’l L. & Pol’y 121, 130 (1998)Google Scholar. See also Louis, Manuel Perez de Acha., Binational Panels: A Conflict of Idiosyncrasies, 3 Sw. J. L. & Trade Am. 431, 434 (1996)Google Scholar.

133 Writers have considered judicial precedents limiting the powers of both the federal and the provincial authorities to delegate judicial authority to other than “section 96 courts,” and the notorious 1937 ruling of the Privy Council striking down federal legislation aimed at implementing an ILO convention. Gesser, supra note 132, at 137-50 (citing case law). The disruption of domestic federalism and federal-state relations was raised in the United States as well. David, A. Wirth, Government by Trade Agreement, in Joining Together, supra note 131, at 111, 112–29 Google Scholar.

134 In that procedure, Congress delegates advance negotiating authority to the president on the understanding that it will approve or disapprove the resulting text without amendment. Harold, H. Koh, Congressional Controls on Presidential Trade Policy-Making After I.N.S. v. Chadha, 18 N.Y.U.J. Int’l L. & Pol. 1191 (1986)Google Scholar. See generally Wirth, supra note 133.

135 As a concession to NAFTA opponents, Congress included in the implementing legislation a provision for an accelerated appellate procedure for judicial review of the actions of die NAFTA binational panels, 19 U.S.C. §1516a(g)(4)(A) (Supp. V 1999). The first of the early cases before the federal courts, brought by an important trade association and arising out of the Extraordinary Challenge Committee’s ruling, was withdrawn by voluntary motion to dismiss (Jan. 5, 1995). Coalition for Fair Lumber Imports v. United States, No. 94-1627 (D.C. Cir. filed Sept. 14, 1994). A second case was dismissed unanimously because of the plaintiffs lack of standing to sue the president and the U.S. government. Am. Coalition for Competitive Trade v. Clinton, 128 F.3d 761 (D.C. Cir. 1997). See the extensive provisions for consultation with the states and protection of their competence in the U.S. implementing legislation, 19 U.S.C. §3312(b)(l)(A) (Supp. II1997).

136 Made in USA Found, v. United States, 56 F.Supp.2d 1226 (N.D. Ala. 1999), appeal dismissed, 242 F.3d 1300 (11th Cir. 2001), 2001 U.S. App. LEXIS 2800; see Ackerman, Bruce & Golove, David, Is NAFTA Constitutional? 108 Harv. L. Rev. 799 (1995)CrossRefGoogle Scholar; Laurence, H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 Harv. L. Rev. 1221 (1995)Google Scholar.

137 William, J. Davey, The Appointments Clause and International Dispute Settlement Mechanisms: A False Conflict, 49 Wash. & Lee L. Rev. 1315 (1992)Google Scholar; Kim, supra note 65, at 985-86.

138 E.g., Boyer, Ethan, Article III, the Foreign Relations Power, and the Binational Panel System of NAFTA, 13 Int’l Tax & Bus. Law. 101 (1996)Google Scholar (constitutional under the Schor balancing test); Denis, J. Edwards, NAFTA and Article III: Making a Drama out of a Crisis, 1 NAFTA: L. & BUS. Rev. Am. 69 (1995)Google Scholar (constitutional); Brian, F. Havel, The Constitution in an Era of Supranational Adjudication, 78 N.C. L. Rev. 257 (2000)Google Scholar (constitutional); Kim, supra note 65, at 967 (constitutional); Demetrios, G. Metropoulos, Constitutional Dimensions of the North American Free Trade Agreement, 27 Cornell Int’l L.J. 141 (1994)Google Scholar (unconstitutional); Tangney, Patrick, The New Internationalism: The Cession of Sovereign Competences to Supranational Organizations and Constitutional Change in the United States and Germany, 21 Yale J. Int’l L. 395 (1996)Google Scholar (doubtful). In a 1997 address, the chief judge of the U.S. Court of International Trade, Gregory W. Carman, expressed serious doubts about the constitutionality of Chapter 19, calling it a “flawed system.” He was particularly troubled by the presidential executive order implementing the NAFTA, which accepts “in advance all decisions of binational panels and the Extraordinary Challenge Committee.” Gregory, W. Carman, Address: Resolution of Trade Disputes by Chapter 19 Panels: A Long-Term Solution or Interim Procedure of Dubious Constitutionality, 21 Fordham Int’l L.J. 1, 9 (1997)Google Scholar. Mexico omitted Chapter 19 from trade agreements with the Latin American countries, as did Canada and Chile. Id. at 10.

139 Sec Boyer, supra note 138, at 115, 123; Kim, supra note 65, at 983 (citing the precedent of the U.S.-Canada Free Trade Agreement).

140 Boyer, supra note 138, at 141. Even Chomsky’s linguistic theory is enlisted to put a seal of constitutionality on the NAFTA. Havel, supra note 138, at 272.

141 See generally Louis Henkin, Foreign Affairs and The United States Constitution 26 (2d ed. 1996). The nondelegation doctrine does not apply with equal force to foreign affairs. See Harold, H. Koh, The Fast Track and United States Trade Policy, 18 Brook, J . Int’l L. 143, 168 (1992)Google Scholar; see also Dames & Moore v. Regan, 453 U.S. 654 (1981); Delegating State Powers, supra note 80; Kim, supra note 65, at 984. On the provisions of the Canadian and Mexican Constitutions, see supra note 132.

142 Daniel, Salée, NAFTA, Quebec, and the Boundaries of Cultural Sovereignty: The Challenge of Identity in the Era of Globalization, in Joining Together, supra note 131, at 73, 88 Google Scholar.

143 Compare the problem of publicity in the WTO, supra text after note 88.

144 Housman, supra note 58, at 722-27; Petros, C. Mavroidis, Trade and Environment After the Shrimps-Turtles Litigation, J. World Trade, Feb. 2000, at 73 Google Scholar.

145 Helfer, supra note 125, at 5 (quoting Paul Kingsnorth, A Very Happy Birthday for NAFTA, Ecologist, Jan. 1, 1999).

146 Jack, Ian, Ottawa Pushes for Reform of NAFTA Lawsuit Provisions: $1 Billion in Claims, Fin. Post (Can.), Apr. 20, 1999 Google Scholar, cited in id.

147 Heifer, supra note 125. See the discussion on state v. individual stakeholder, supra text after note 104.

148 See Housman, supra note 58, at 728-47 (with detailed suggestions).

149 Loungnarath, Vilaysoun & Stehly, Celine, The General Dispute Settlement Mechanism in the North American Free Trade Agreement and the World Trade Organization System—Is North American Regionalism Really Preferable to Multilateralism? J. World Trade, Feb. 2000, at 39 Google Scholar.

150 Consolidated Treaty on European Union, Oct. 2, 1997, 1997 O.J. (C 340) 145 [hereinafter Eu Treaty] ; Consolidated Ec Treaty, Oct. 2, 1997, 1997 O.J. (C 340) 173 [hereinafter EC TREATY]. A handy consolidated version including changes by the Treaty of Amsterdam was published by the Council of the European Union, General Secretariat, Intergovernmental Conference, Consolidated Versions, CONF 4005/97 & Adds. 1 & 2.

For an introduction to the structure of the European Union, see, for example, P. J. G. Kapteyn & Pieter Verloren Van Themaat, Introduction to the Law of the European Communities (L.W. Gormleyed., 3d rev. ed. 1998); Lawmaking in the European Union (Paul Craig & Carol Harlow eds., 1998); P. S. R. F. Mathijsen, A Guide to European Union Law (7th ed. 1999); Michael Newman, Democracy, Sovereignty and the European Union (1996); Weiler, supra note 27.

151 See generally Weiler, J. H. H. & Joel, P. Trachtman, European Constitutionalism and Its Discontents, 17 Nw. J. Int’l L. & Bus. 354, 355 (1997)Google Scholar.

152 Council of Europe Statute pmbl., Art. 3, 87 UNTS 103. The Council of Europe has repeatedly rebuked Ukraine for failing to fulfill its obligation to abolish the death penalty and for harassing independent media. RFE/RL, Newsline, Oct. 19, 1999, pt. II, at 3. Additionally, EU institutions have often criticized central/eastern European states for their failure to respect principles of democracy and human rights.

153 Optional Protocol No. 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, Art. 3, 213 UNTS 262.

154 OSCE election commitments were established in the document on the Copenhagen meeting of the Conference on the Human Dimension of the CSCE, June 29, 1990, paras. 6, 7, 8, 29 ILM 1305 (1990). See most recently the Istanbul Summit Declaration, with a new Charter for Security, Nov. 19, 1999, sees. III, IV, 39 ILM 255 (2000). ASIL, International Law in Brief, Nov. 22-26, 1999, at 9-10, at <http://www.asil.org>; NATO Rev., Spring/Summer 2000, at 23-26.

155 Mancini, Federico & David, T. Keeling, Democracy and the European Court of Justice, 57 Mod. L. Rev. 175 (1994)Google Scholar.

156 EU Treaty pmbl., Art. 6 (ex-Art. F), Art. 7 (ex-Art. F. 1). In the crucial vote on sanctions against a delinquent state, the vote of that state is not taken into account. EC Treaty Art. 11 (ex-Art. J. 1), Art. 177 (ex-Art. 130u). An “early warning” procedure of a persistent breach of basic rights was introduced by the Nice Treaty of 2000, infra note 165. The EU member states went so far as to impose limitations on the contacts with one of the members (Austria) because that country included in its government representatives of a political party deemed opposed to EU principles, even though that party had emerged as the second most popular group in a free election. Bull. Quot. Eur., Jan. 31/Feb. 1, 2000, at 5-6; Martti Ahtisaari, Jochen Frowein, & Marcelino Oreja, Report (adopted Sept. 8, 2000), at <http://www.austria.gv.at/e/> (visited July 16, 2000).

157 See supra text at notes 18-24. See generally Mario Teló, Democratie Art Construction Europeenne (1995).

158 Council Regulation 975/1999, 1999 O.J. (L 120) 1 (setting as a general objective of cooperation policy toward developing countries, the advancement of democracy, the rule of law, and respect for human rights; and also setting forth the procedure for implementing this objective); Stein, supra note 20.

159 Eric Stein, Thoughts From A Bridge: A Retrospecttve of Writings on New Europe and Americanfederalism 220-43 (2000) [hereinafter Stein, Bridge].

160 This procedure was called partial “de-parliamentarisation” and “de-democratisation” by Kirchhof, Paul, The Balance of Powers Between National and European Institutions, 5 Eur. L.J. 225, 227, 238 (1999)Google Scholar. See generally Ress, Georg, Democratic Decision-Making in the European Union and the Role of the European Parliament, in 2 Institutional Dynamics of European Integration: Essays in Honour of Henryg. Schermers 153 (Curtin, Deirdre & Heukels, Ton eds., 1994)Google Scholar.

161 It is not organized by “government majority” and opposition.

162 The Court of Justice has declared that the Community is “based on the rule of law.” Case 294/83, Parti écologiste ‘Les Verts,’ 1986 ECR 1339, 1365, para. 23.

163 The Court transformed the preliminary ruling procedure of the original Article 177 of the EEC Treaty from a check on Community institutions into a device through which private litigants could challenge national measures as inconsistent with Community law. Parties have done so with a vengeance. Stein, Eric, Lawyers, Judges, and the Making of a Transnational Constitution, 75 AJIL 1 (1981)Google Scholar, reprinted in Stein, Bridge, supra note 159, at 15.

164 Richard Rorty, Contingency, Irony, and Solidarity 20 (1989). Rorty speaks of Galileo’s role in replacing Aristotelian vocabulary with “the words which were needed to fit the world properly.” Id. at 19. In the end everybody except the Thomists agreed. For today’s “Thomists,” who challenge the Court’s basic thinking, see Kirchhof, supra note 160, and Frankfurter Allgemeine Zeitung, Apr. 12, 1996, at 11, cited and effectively criticized in Jochen, A. Frowein, Legitimation und Wirkung des Rechts der Europäischen Union/Gemeinschaft, in Perspektiven Des Rechts In Der Europäischen Union 105 (Forum, Heidelberger, Müller-Graff, C. F. ed., 1998)Google Scholar. Kirchhof was the reporting judge on the German Constitutional Court case mentioned in note 168 infra, and believes that the Community is just a run-of-the-mill association of states. See Hartley, T. C., Constitutional Problems of the European Union 29 (1999)Google Scholar (arguing that the Community has no original authority independently of its member states). Contra Eijsbouts, W. T., Review Essay: Classical and Baroque Constitutionalisms in the Face of Change, 37 Common Mkt. L. Rev. 213, 216, 220 (2000)Google Scholar. For a strained argument, see Spiermann, Ole, The Other Side of the Story: An Unpopular Essay on the Making of the European Community Legal Order , 10 Eur. J. Int’l L. 763 (1999)CrossRefGoogle Scholar. On the relationship between language and governance, see Inger-Johanne, Sand, Understanding the New Forms of Governance: Mutually Interdependent, Reflexive, Destabilised and Competing Institutions, 4 Eur. L.J. 271, 289–90 (1998)Google Scholar.

165 Treaty of Nice, Dec. 12, 2000, 2001 O.J. (C 80) 1. For the Charter of Fundamental Rights of the European Union, Dec. 7, 2000, see 2000 O.J. (C364) 1, reprinted in 40 ILM 266 (2001). The European Court’s practice was codified in Article 6 (ex- Art. F) of the European Union Treaty. See also Ernst, Joachim Mestmäcker, Über das Verhdltnis der europäischen Wirtschaftsordnung zu den Mitgliedstaaten, Veröff. Joachimjungius-Ges.Wiss. 149, 158 (1994)Google Scholar. The Union activities in the human rights field have been partly in response to member states’ constitutional courts (particularly Germany’s), which made their approval of further transfers of powers to the Union conditional on an effective observance of basic rights by the Union institutions. See most recently the German Constitutional Court in the “Bananas case,” BVerfG, 2 Bvl. 1/97 (June 7, 2000), relying on earlier precedents. Some are dissatisfied with “excessive reliance” on the courts in the application of human rights and they call for a comprehensive and coherent human rights policy with, among others, a separate commissioner and a Directorate General for Human Rights within the Commission and a special agency with a monitoring function. Alston, Philip & Weiler, J. H. H., An ‘Ever Closer Union’ in Need of a Human Rights Policy: The European Union and Human Rights, in The Eu and Human Rights 3, 21–22, & passim (Alston, Philip ed., 1999)Google Scholar; Alston, Philip, Leading by Example: A Human Rights Agenda for the European Union for the Year 2000, id. at 919 Google Scholar. Others argue that because of the important differences between the “negative” civil and political rights and the “positive” economic and social rights, such proposals are both unrealistic and overintrusive. Armin, von Bogdandy, The European Union as a Human Rights Organization? Human Rights and the Core of the European Union, 37 Common Mkt. L. Rev. 1307, 1310–16 (2000)Google Scholar.

166 Karen, J. Alter, Who Are the ‘Masters of the Treaty’?: European Governments at the European Court of Justice, 52 Int’l Org. 121 (1998)Google Scholar.

167 Zakaria, supra note 4, at 27; see also Hume, David, Essay Von the Origin of Government, in David Hume: The Philosophical Works 113, 113–14 (Thomas, Hill Green & Thomas, Hodge Grose eds., 1964)Google Scholar (stating that “[w]e are . . . to look upon all the best apparatus of our government, as having ultimately no other object or purpose but the distribution of justice, or in other words, the support of the twelve judges”).

168 In France, a popular referendum on the Maastricht Treaty was approved by a 51.04% majority. In Denmark, this process took two referenda (56.2% majority), while a proposal to join the common currency was defeated in a separate referendum. For some of the opinions of the highest courts, see German Constitutional Court, 2 BvR 2134, 2159/92, BVerfGE 89, 155; in Spain, Diego, J. Liñán Nogueras & Javier, Roldán Barbero, The Judicial Application of Community Law in Spain, 30 Common Mkt. L. Rev. 1135, 1139 (1993)Google Scholar; Gil, Carlos Rodríguez Iglesias & Alejandro, Valle Galvez, El Derecho comunitario y las relaciones entre el Tribunal dejusticia de las Comunidades Europeas, el Tribunal Europeo de Derechos Humanos y los Tribunates Constitucionales nacionales, 1 Revista Dederecho Comunitarioeuropeo 329, 364 (1997)Google Scholar; in France, Cons. Const, Apr. 9, 1992 J.0.1992, 92-308; Chaltiel, Florence, La Constitution francaise etl’Union Européenne, apropos de la révision constitutionelle du 25 Janvier 1999, Revue Du Marché Commun Et De L’tjnion Européenne, Apr. 1999, at 228 Google Scholar; in Italy, Adinolfi, Adelina, The Judicial Application of Community Law in Italy 1981-1997, 35 Common Mkt. L. Rev. 1313, 1322 (1998)Google Scholar; in Greece, Maganaris, Emmanuel, The Principle of Supremacy of Community Law in Greece—from Direct Challenge to Non-Application, 24 Eur. L. Rev. 426 (1999)Google Scholar; in Denmark, Katja Høegh, Denmark: The Danish Maastricht Judgment, 24 Eur. L. Rev. 80 (1999)Google Scholar; Thomas, Fredrik, Das Maastricht-Urteil des dänischen Obersten Gerichtshofs von 6 April 1998, 58 Zeitschrift Fur Auslandisches Offentliches Recht Und Volkerrecht [Zaorv] 879 (1998)Google Scholar. From a veritable avalanche of literature, I cite A, Jochen, Frowein, Das Maastricht-Urteil und die Grenzen der Verfassungs-Gerichtsbarkeit. 54 Zaorv, 1 (1994)Google Scholar; Kirchhof, supra note 160; MacCormick, N., The Maastricht Urteil: Sovereignty Now, 1 Eur. L. J. 259 (1995)Google Scholar; Weiler, J. H. H., Does Europe Need a Constitution ? Demos, Telos and the German Maastricht Decision, 2 Eur. L.J. 219 (1995)Google Scholar; Weiler, J. H. H. & Ulrich, R. Haltern, The Autonomy of the Community Legal Order: An Analysis of Possible Foundations or Through the Looking Glass ? 37 Harv.J. Int’l L. 411 (1996)Google Scholar; Zuleeg, Manfred, The European Constitution Under Constitutional Constraints: The German Scenario, 22 Eur. L. Rev. 19 (1997)Google Scholar.

169 Weiler would jettison the insistence on supremacy in this context and finds it more realistic to think in confederal-consociational terms, envisaging “conversation of many actors in a constitutional interpretative community constitutional conversation, not a constitutional diktat.” Weiler & Haltern, supra note 168, at 447. His position deserves consideration. I wonder whether in practice his and my views would make a difference. For a criticism of the debate in Germany on the “Kompetenz-Kompetenz issue” as reminiscent of the controversy over Bismarck’s federalism, see Oeter, Stefan, Souverenitdt und Demokratie als Probleme in der ‘Verfassungs-entwicklung’ der Europdischen Union, 55 Zaörv 659 (1995)Google Scholar. This is not the first time in history that a central power in a divided-power system has been challenged by a component unit and the system has survived. See the “doctrine of nullification” pressed by South Carolina against federal law. Bernard Bailynetal., the Great Republic 501-02 (4th ed. 1992).

170 Ec Treaty Art. 10 (ex-Art. 5).

171 Benjamin, R. Barber, Strong Democracy: Participatory Politics For A New Age 142–43 (1984)Google Scholar, cited in Ulrich, R. Haltern, Idolatry and Identity—Human Rights and Citizenship in the European Union 34 (1999)Google Scholar (unpublished manuscript, on file with author).

172 Case C-376/98, Germany v. Parliament and Council (Oct. 5, 2000); von Bogdandy, supra note 165, at 1320-30. Recent decisions of the European Court of Justice and the Court of First Instance are available online at <http://europa.eu.int/en>.

173 Thus, the Court reinterpreted the Community Treaty provision invalidating protective legislation of the member states so as to exclude a broad category of national measures from the reach of the prohibition. See Joined Cases C-267/91, C-268/91, supra note 96; Reich, Norbert, ‘The November Revolution’ of the European Court of Justice: Keck, Meng and Audi Revisited, 31 Common Mkt. L. Rev. 459 (1994)Google Scholar. The Court is blamed for not being activist enough in gender antidiscrimination cases, while viewed by others as overactivist for holding provisions of the German Constitution and legislation that exclude women from weapons-related military service as contrary to Community law. Ellis, Evelyn, The Recent Jurisprudence of the Court of Justice in the Field of Sexual Equality, 37 Common Mkt. L. Rev. 1402, 1425–26 (2000)Google Scholar; see also Case C-285/98, Tanja Kreil v. Germany (Jan. 11, 2000), discussed in id. at 1433 n.2.

174 Europe After Maastricht: An Ever Closer Union 124 (Renaud Dehousse ed., 1994). On the proper exercise of the power of judicial review of federal legislation, see James Bradley Thayer, John Marshall 104-10 (1901).

175 Renaud Dehousse, European Court of Justice 173 (1998). Regarding the criticism of the Court particularly from Germany, see Mancini & Keeling, supra note 155, at 185-86.

176 See supra text at notes 83-84.

177 If an individual seeks redress of a violation of Community law by one of its institutions, she must in principle file a complaint against the national measure implementing that Community law. The national court must ultimately refer the issue of Community law to the Community Court of First Instance, with the possibility of appeal to the Court of Justice. In certain instances the complainant may invoke the Community judiciary directly, thus avoiding a lengthy and costly procedure through national courts. See Stein, Eric & Joseph, G. Vining, Citizen Access to Judicial Review of Administrative Action in a Transnational and Federal Context, 70 AJIL 219 (1976)Google Scholar, reprinted and partially updated in Stein, Bridge, supra note 159, at 161. Understandably, the Court of Justice prefers the facts of the case to be collected by the domestic court, as well as an indication of that court’s view on the law. My critique goes only to the few cases where the individual plaintiff is denied standing before the European judiciary by a formalistic and restrictive interpretation of the vague texts of the constituent treaty such as lack of “individual interest.” See, most recently, Case T-69/96, Hamburger Hafen-und Lagerhaus AG v. Commission, para. 51 (CFI Mar. 21, 2001), in which the Court of First Instance considered the absence of an effective remedy “irrelevant” because that court cannot exceed the limits of its jurisdiction set forth in the EC Treaty. But see Gil, Carlos Rodríguez Iglesias, Judicial Protection of the Citizen Under European Law, in The Clifford Chance Millennium Lectures 195, 196 (Markesinis, Basil ed., 2000)Google Scholar.

178 Blondel, Jean, Sinnott, Richard, & Svensson, Palle, People and Parliament in The European Union: Participation, Democracy, and Legitimacy 71 (1998)Google Scholar. This work is an effort to explain the low level of participation in the elections for the European Parliament.

179 Doehring, Karl, Demokratiedefizit in derEuropäischen Union, Deutsches Verwaltungsblatt, No. 19, 1997, at 19–20 Google Scholar, cited in Stein, Bridge, supra note 159, at 335, 338.

180 Majone considers the standards of representative democracy irrelevant to European integration: since voters insist on national sovereignty, there can be no political integration and the only answer is to keep economics separated from politics. The key issue for democratic theory concerns tasks that may be legitimately delegated to institutions insulated from politics and how they can be made independent and accountable (the “regulatory model” of the Community). Majone, Giandomenico, Europe’s ‘Democratic Deficit’: The Question of Standards, 4 Eur. L.J. 5 (1998)Google Scholar. This view may have been more appropriate before the competence of the Union was broadened to embrace aspects of social, cultural, foreign, security, and other policies.

181 Ress, supra note 160, at 166 n.49; see also Beyers, Jan & Dierickx, Quido, The Working Groups of the Council of the European Union: Supranational or Intergovernmental Negotiations? 36 J. Common Met. Stud. 289 (1998)Google Scholar.

182 Coreper, Europe’s Managing Board, Economist, Aug. 8, 1998, at 46. Generally, the proposals elaborated by committees are negotiated and approved in the powerful Committee of Permanent Representatives, which is composed of the member states’ ambassadors to the European Union. They are then formally submitted to the Council (and—where so required—to the European Parliament). There is no public access or publicity in this phase. When the Council delegates certain powers to the Commission to “assist” it, the Commission is required to establish committees composed of representatives of member states and chaired by Commission staff, “comitology” in Brussels lingo. T. C. Hartley, The Foundation of European Community Law 18 (3ded. 1994). See Council Decision 1999/468/EC Establishing the Procedures for the Exercise of Implementing Powers Conferred on the Commission, 1999 O.J. (L 184) 23. According to Article 7, the European Parliament is to be informed “on a regular basis” and a list of the committees as well as an annual report on their working is to be published by the Commission. Some 300 such committees meet in secrecy. Helmut Kortenberg [pseudonym of an EC official], Comitologie: le retour, 34 Revue Trimestrielle De Droit Europeen 317 (1998).

183 Office of Press and Public Affairs, Eur. Comm’n, Washington, D.C., Accessing European Union Information (1998). In addition to publicizing information on the Internet, the Commission holds briefings for the press and issues press releases on pending proposals. The need for publication in twelve languages causes delays.

184 According to the documentation service of the Court of Justice, the following member states have adopted rules conferring a general right of access to “administrative” documents on individuals: Belgium, Spain, Finland, Portugal, Sweden, Austria, Denmark, and Greece. Case C-58/94, Netherlands v. Council, 1996 ECR1-2169, 2179 (opinion of advocate general); see Dyrberg, Peter, Current Issues in the Debate on Public Access to Documents, 24 Eur. L. Rev. 157 (1999)Google Scholar; Michael, O’Neil, The Right of Access to Community-Held Documentation as a General Principle of the EC Law, 4 Eur. Pub. L. 403 (1998)Google Scholar; see also Public Access to the Institutions’Documents, 1993 O.J. (C 156) 5 (containing a list of specific EC provisions requiring publication and an overview of member states’ legislation).

185 See generally Openness and Transparency in the European Union (Deckmyn, Veerle & Thomson, Ian eds., 1998)Google Scholar; H, Willem, Buiter, Alice in Euroland. 37 J. Common Mkt. Stud., 181 (1999)Google Scholar (dealing with lack of transparency in the Economic and Monetary Union arrangements, including the Central Bank); Peterson, John, Playing the Transparency Game, 2J. Eur. Pub. Pol’y 69 (1995)Google Scholar; Vesterdorf, Bo, Transparency—Not Just a Vogue Word, 22 Fordham Int’l L. J. 902 (1999)Google Scholar; Roberto, Viciano Pastor, Publicité et acces aux documents officiels dans les institutions de I’Union européenne avant et aprés le Traité d’Amsterdam, in 1 Mélanges En Hommage A Michel Waelbroeck 649 (Dony, Marianne ed. with Aline De, Walsche, 1999)Google Scholar.

186 Code of Conduct Concerning Public Access to Council and Commission Documents, 19930.J. (L 340) 41; see also Council Decision 93/731 on Public Access to Council Documents, 1993 O.J. (L 340) 43; EC Treaty Art. 255 (ex-Art. 191a), with Declaration 17 annexed to the Final Act. The Council exempted documents whose disclosure could undermine protection of the public interest (i.e., public security, international relations, monetary stability, court proceedings, inspections, and investigations), the individual and privacy, commercial and industrial secrecy, the Community’s financial interests, and the confidentiality requested by persons who supplied the information or required by legislation of the member state that supplied the information. Finally, access maybe refused to protect “the confidentiality of the Council’s proceeding.” The code of conduct was also implemented by other organs of the Union. Commission Decision 94/90 on Public Access to Commission Documents, 1994 O.J. (L 46) 58. See, most recently, Council Decision 2001/320/EC on Making Certain Categories of Council Documents Available to the Public. 2001 O.J. (L 111) 29. The European Parliament pressed for greater openness at an early date, e.g., Resolution on the Compulsory Publication of Information by the European Community, 1984 O.J. (C 172) 176. For an extensive list of writings, see Dyrberg, supra note 184, at 157 n.1. The Amsterdam Treaty reaffirmed the right of access to documents and called on the Council to implement it in a regulation. On January 26, 2000, the Commission adopted a proposal for a European Parliament and Council Regulation Regarding Public Access to Parliament, Council and Commission Documents, Com (2000) 30. The exception of confidentiality has been criticized as too broad. Bull. Quot. Eur. Jan. 28, 2000, at 11-12; Deirdre, M. Curtin, Democracy, Transparency and Political Participation: Some Progress Post-Amsterdam, in Openness and Transparency in the European Union, supra note 185, at 115 Google Scholar. The Commission uses the Internet to publicize its proposals.

187 Council Decision 1999/385, adopting the Council’s Rules of Procedure, Arts. 5-8, 1999 O.J. (L 147) 13; EP/ Transparency, Bull. Quot. Eur., Mar. 23, 2001, at 13; see also Council Decision 2000/23/EC on the Improvement of Information on the Council’s Legislative Activities and the Public Register of Council Documents, 2000 O.J. (L 9) 22.

188 Case T-309/97, Bavarian Lager Co. v. Commission, 3 Common Mkt. L. Rev. 544 (1999).

189 On appeal, the Court of Justice affirmed the rulings of the Court of First Instance. It is noteworthy that, with the exception of the Netherlands and the Nordic states, France, Britain, and some other member states urged the Court to sustain the confidentiality of the requested documents. For the list of cases through April 1999, see Dyrberg, supra note 184, at 161-62. More recently, in Case T-188/97, Rothmans Int’l BV v. Commission (CFI July 19, 1999) and Case T-l 4/98, Hautala v. Council (CFI July 19, 1999), decisions refusing access to documents were struck down as unlawful. 22 Eur. C. Monitor 17-20 (2d term 1999). It was disputed whether, prior to the Maastricht Treaty, the Court had established free access as a principle common to the constitutional tradition of member states, although it was clearly stated by the advocate general in Case C-58/94, Netherlands v. Council, 1996 ECR1-2169, 2182.

190 Case T-610/97 R, Carlsen v. Council, 1998 ECR 11-485, 505; Dyrberg, supra note 184, at 164, 166. In the area of justice and home affairs,” which was marked by endemic secrecy, the Council decided to make public a register of all unclassified documents. EC Justice and Home Affairs Council, Press Release 1998-03-26-6889/98 (Mar. 19, 1998); see Jochen, Abr. Frowein & Krisch, Nico, DerRechtsschutzgegenEuropol, 19 Juristenzeitung 589 (1998)Google Scholar. EU policies on border crossing and movement of people generally have been criticized as reducing standards on the rule of law in part because of the secrecy, restrictions on the competence of the Court of Justice, and the lack of accountability in determining refugee status. Meijers, H. Et Al., Democracy, Migrants and Police in the European Union (1997)Google Scholar.

191 Case C-58/94, supra note 184, at I-2180, 2182, passim. The advocate general cited, in addition to the Maastricht and Amsterdam Treaties, Article 10 of the European Convention for the Protection of Human Rights, supra note 23, and Article 19 of the International Covenant on Civil and Political Rights, supra note 5, which guarantees the rights to freedom of expression and to receive and impart information. The rationale for these rights is better knowledge on the part of citizens and more effective participation and supervision by public opinion. Dyrberg, supra note 184, at 158, suggests that the right of access is an efficient way to enhance citizens’ confidence in public authorities and to improve the functioning of public officials.

192 Lodge, Juliet, Transparency and Democratic Legitimacy, 32 J. Common Mkt. Stud. 343, 345 (1994)Google Scholar.

193 M, Deirdre, Curtin, The Constitutional Structure of the Union: A Europe of Bits and Pieces. 30 Common Mkt. L. Rev., 17 (1993)Google Scholar. For a suggested catalog of Union competences, see Europa ‘96—Reform Programm Fur Die Europaische Union 18-31 (Werner Weidenfeld ed., 1994).

194 European Commission, An Open and Structured Dialogue Between the Commission and Special Interest Groups, SEC (92) 2272.

195 Weiler, supra note 27, at 85.

196 With a touch of irony, a German writer reports that the German parliamentary committee of sixty members meets in secret. Lamprecht, Rudolf, Untertan in Europa: Uber den Mangel an Demokratie und Transparenz, 1997 Neue Juristische Wochenschrift 505 Google Scholar. Claude Chesson, a former member of the EU Commission and French minister of foreign relations, believes that the European Parliament will have only symbolic importance and that the burden for democracy will fall on national parliaments. Bull. Quot. Eur., Dec. 17, 1998, at 16.

197 Anne-Marie, Slaughter, The Real New World Order, Foreign Aff., Sept/Oct. 1997, at 183 Google Scholar. José, Alvarez, Do Liberal Stales Behave Better’?: A Critique of Slaughter’s Liberal Theory, 12 Eur. J. Int’l L. 183 (2001)Google Scholar, questions the adequacy of the evidence offered to support this trend.

198 Chryssochoou, supra note 6, at 35. See generally Jacobs, Francis, Corbett, Richard, & Shackleton, Michael, The European Parliament (2d ed. 1992)Google Scholar; Smith, Elvind, National Parliaments as Cornerstones of European Integration (1996)Google Scholar; The European Parliament, The National Parliaments, and European Integration (Richard, S. Katz & Wessels, Bernhard eds., 1999)Google Scholar; Philippe, A. Weber-Panariello, Nationale Parlamente in Der Europäischen Union (1995)Google Scholar; Shackleton, Michael, The Internal Legitimacy Crisis of the European Union, in Europe’s Ambiguous Unity 69, 73–75 (Alan, W. Cafruny & Lankowski, Carl eds., 1997)Google Scholar.

199 British Labor MEP Edward Newman said in the European Parliament that ten million people had signed over 6500 petitions “in the last five years.” Bull. Quot. Eur., Apr. 19/20, 1999, at 12.

200 Duisenberg Survives Grilling by MEPs, EP News, May 1998, at 1.

201 Bull. Quot. Eur. (n.s.), May 20, 1998, at 2-3; Bull. Quot. Eur., May 27, 1998, Documents at 1, 3.

202 Schmitter would replace the current EP composition with three “collegia” that contain representatives elected respectively from the largest, middle-sized, and small states; any decision would require a concurrent majority in all three collegia. The Council’s president would be replaced by a “troika” elected by the three collegia. The same process would apply to appointments of the president and members of the Commission. Philippe C. Schmitter, Howto Democratize The European Union—and Why Bother? 84-87 (2000). For other useful suggestions, see Michael Newman, Democracy, Sovereignty and the European Union 179-85 (1996). The Commission has suggested limiting its own size, introducing a qualified majority as a general rule in the Council with limited use of unanimity, providing options for vote weighing in the Council, enlarging the Community’s power in foreign commercial policy, etc. Bull. Quot. Eur. Jan. 27, 2000, at 3-4.

203 “[T]he European Assembly that calls itself ‘Parliament.’” Kirchhof, supra note 160, at 238.

204 See Weiler & Trachtman, supra note 151, at 377-85.

205 Oeter, supra note 169, at 710 (quoted from the English summary).

206 Id. at 711. See generally Culture and Identity in Europe: Perceptions of Divergence and Unity in Past and Present (Michael Winde ed., 1996).

207 Schmitter, supra note 202, at 118. Schmitter discusses Great Britain, where “there was no single-formal constitutional ‘act of will,’ just a lengthy accumulation of precedents.” In regard to Germany, it “seems especially characteristic of German scholars who postulate a ‘universalistic’ sequence whereby an ethnos must precede a demos, and the latter can only be created by an explicit constitutional act whereby this demos or people ‘submit itself to a political order of its own invention.” Id. (quoting Claus Offe, The Democratic Welfare State: A European Regime Under the Strain of European Integration (unpublished essay, Humboldt University 1999)). Perhaps this was because of Germany’s being “one of the few European states where a ‘belief in commonality’ . . . preceded the formation of its national state or because of the strength of legal formalism in itsjuridical tradition.” Id. “ [B]ut it seems reflective of a broader strand of German thinking that goes back to jellinek, Weber, Habermas, and the contemporary German [Constitutional] Court judge, Dieter Grimm .. ..” Id. at 131 n.3. On the United States at the time of the Revolution, see Zuleeg, Manfred, What Holds a Nation Together? Cohesion and Democracy in the United States of America and in the European Union, 45 Am. J. Comp. L. 505, 578–79 (1997)Google Scholar, citing American historians.

208 The new citizenship includes the right of free movement and residence throughout the Union’s territory; the right of a member state’s national, resident in another member state, to vote and run for office in local elections of that state and also in elections for the European Parliament; the right to diplomatic protection by any member state; and the right to petition the European Parliament and to apply to the ombudsman. In addition, this citizenship “bundle” comprises significant rights to the free movement of goods, services, capital, and persons (economic rights already accorded in constituent treaties and protected within the rule-of-law system). See generally Massimo, La Torre, European Citizenship: An Institutional Challenge (1998)Google Scholar; Elizabeth, M. Meehan, Citizenship and the European Community (1993)Google Scholar; Weiler, supra note 27, at 344-49. There has been some criticism of the Union’s citizenship provisions—mistakenly based on the concept of national citizenship—on the ground that they are so minimal as to debase the concept of political citizenship. I find this criticism difficult to understand, particularly in view of the clause specifically enabling the unanimous Council “to adopt provisions designed to strengthen or to add to the above rights,” which it shall recommend to the member states for adoption in accordance with their respective constitutional requirements. EC Treaty Art. 22 (ex-Art. 8e).

209 Weiler also suggests the establishment of a European constitutional council for resolving constitutional disputes with the highest national courts, an idea with unfortunate implications. Weiler, supra note 2V, at 353-54. For an effective criticism of this proposal, see Kapteyn, P.J. G., The Court of Justice of the European Communities After the Year 2000, in Institutional Dynamics of European Integration, supra note 160, at 135, 146–47 Google Scholar (citing other critics at 147 n.22). Prof. Kapteyn is a judge of the European Court of Justice. See also Walker, Neil, Sovereignty and Differentiated Integration in the European Union, 4 Eur. L.J. 355, 387 (1998)Google Scholar. For a series of modest, but useful, reform suggestions, see Newman, supra note 202; Weidenfeld, supra note 193, at 37-48.

210 Simon Hix & Christopher Lord, Political Parties in The European Union (1997). Court of Justice President Rodríguez Iglesias warns that participation of national parliaments beyond a certain point might limit substantially “the possibilities of common action.” Gil, Carlos Rodriguez Iglesias, Zur Verfassung der Europäischen Gemeinschaft, 23 Europäische Grundrechte Zeitschrift 125, 131 (1996)Google Scholar.

211 The German Länder (states) succeeded in obtaining a constitutional amendment assuring their participation in the formulation and implementation of German government policies in relation to the Union. A, Martin, Rogoff, The European Union, Germany and the Länder: New Patterns of Political Relations in Europe. 5 Colum. J. Eur. L., 415 (1999)Google Scholar. In Austria the Lander and the parliament were empowered to formulate bargaining mandates for the Austrian ministers in the Council. However, the Lander must present a unanimous point of view in order to bind the ministers. Falkner, Gerda, Effects of EU Membership on a New Member State, 38 J. Common Mkt. Stud. 223, 241 (2000)Google Scholar.

212 There are about 3000 special interest groups in Brussels, with up to 10,000 employees working in the lobbying sector; 50 offices of Länder, regional, and local authorities; 200 individual firms with their own representation; 100 consultant firms; and 100 law firms in Belgium specializing in Community law and many more in other member states. There are no Commission rules on accreditation. See The Commission s Approach Towards Special Interest Groups, at <http://europa.eu.int/index_en.htm> (visited July 16, 2001). In 1998, 200,000 students (5% of the entire EU student population) studied in another member state.

215 Michael, Zürn & Wolf, Dieter, European Law and International Regimes: The Features of Law Beyond the Nation State, Eur. L.J. 272, 291 (1999)Google Scholar.

214 Federico Mancini, G., Europe: The Case for Statehood, 4 Eur. L.J. 29, 34–35 (1998)Google Scholar. The German minister for foreign affairs (not speaking on behalf of the government) made a similar suggestion by advocating a federation with a directly elected president and a parliament with real powers. N.Y. Times, June 28, 2000, at A10. For a response by the French president and foreign minister, see id.; Economist, July 1, 2000, at 47-48; Bull. Quot. Eur., Aug. 12, 2000, at 4 (citing French President Jacques Chirac as proposing “to work towards drafting a constitution . . . that would be submitted for future ratification by all the people” but reaffirming his hope for a “limited Europe of States rather than a United States of Europe” and opposition to a “European Superstate”). See also Fischer, Joschka, Von Staatenbund zur Foderation—Gedanken uber die Finalitdt der europdischen Integration, Integration, July 2000, at 149 Google Scholar.

215 Mancini, supra note 214, at 35 (quoting the decision of the German Constitutional Court, supra note 168, and the writings of Justices Grimm and Kirchhof, who participated in the decision). Although the writers explain their position by the absence of an indispensable European-wide political discourse, Mancini sees “the metaphysical concept of Volk” “hiding behind the demos.” Id. at 34, 35.

216 W, Fritz, Scharpf, Democratic Policy in Europe. 2 Eur. L.J., 136 (1996)Google Scholar.

217 He views the constituent treaties “not only as an agreement among states (a Union of States) but as a ‘social contract’ among the nationals of those states”—ratified in accordance with the constitutional requirements in all member states—”that they will in the areas covered by the Treaty regard themselves as associating as citizens in this civic society.” This society is based not on organic national-cultural identity but on a matrix of values including specific European values (such as the welfare state) and a discipline of decision-making procedures representing interests beyond those of the individual member state. The structure is supported not by a “European demos,” which does not exist, but by multiple demoi. Weiler & Trachtman, supra note 151, at 384; see also Weiler, supra note 168. In a similar vein, see Timothy, Garton Ash, Europe’s Endangered Liberal Order, Foreign Aff., Mar./Apr. 1998, at 51 Google Scholar; MacCormick, Neil, Democracy, Solidarity and Citizenship in the Context of the European Union, 16 Law & Phil. 331 (1997)Google Scholar; Fritz, W. Scharpf, Can There Be a Stable Federal Balance in Europe”? in Joachim Jens Hesse & Vincent Wright, Federalizing Europe? 361 (1996)Google Scholar.

218 Elazar, supra note 12, at 63.

219 Devuyst, Youri, The Community Method After Amsterdam, 37 J. Common Mkt. Stud. 109, 118 (1999)Google Scholar. On decreasing support for a federation, see Goodbye, Federal Europe, Economist, Nov. 15, 1997, at 51. A skeptic would see two equally Utopian contradictory visions: a European federation without the exclusionary, centralized features of a superstate, and a supranational/confederal/consociational Union resisting the destabilizing forces described above. See generally Zenon, Bañkovski & Christodoulidis, Emilios, The European Union as an Essentially Contested Project, 4 Eur. L.J. 341 (1998)Google Scholar.

220 Treaty of Nice, supra note 165, Declaration on the Future of the Union, 2001 O.J. (C 80) at 86, para. 6. The unanimity voting requirement will be reduced for thirty more kinds of decisions (but not for some important decisions such as on taxation, immigration, workers’ rights, and the environment); the size of the European Parliament will be increased and minor new powers added; the number of votes allocated to each member in the Council will be reassigned and the qualified majority voting formula adjusted as of January 1, 2005; the number of Commission members will be reduced in an undefined rotation system “when the Union consists of 27 member states”; greater flexibility will be given to the core members to proceed with closer integration ahead of the others; a new Charter of Fundamental Rights was “proclaimed”; and provision was made for the quick approval of a rapid reaction force. Id., Protocol on the Enlargement of the European Union, 2001 O.J. (C 80) at 49; id., Declaration on the Future of the Union, 2001 OJ. (C80) at 85; id., Declaration on the European Security and Defence Policy, 2001 OJ. (C 80) at 77. For interesting ideas on improving the intergovernmental conference procedure, see A, George, Berman, The European Intergovernmental Conference: An American Perspective. 25 Syracuse J. Int’l L. & Com., 61 (1998)Google Scholar.

221 EC Commission, White Paper on European Governance, Commission Staff Working Document, SEC(2000) 1547/7 final (Oct. 11, 2000).

222 Falk, supra note 10, at 326; see also Crawford & Marks, supra note 20, at 72.

223 Shell, supra note 82, at 365, 373 (citing Symposium, The Republican Civic Tradition, 97 Yale L.J. 1493 (1988) (contributions of Mark Seidenfeld and Cass R. Sunstein)).

224 See supra text following note 194.

225 Moravcsik, Andrew, Preference and Power in the European Community: A Liberal Intergovemmentalist Approach, in Economic and Political Integration in Europe: Internal Dynamics and Global Context 29 (Bulmer, Simon & Scott, Andrew eds., 1994)Google Scholar, criticized by Weiler, supra note 27, at 227; see also Kaufmann, Marcell, Europäische Integration Und Demokratieprinzip (1997)Google Scholar (insisting on continuing sovereignty of national parliaments against some federalist or functionalist mirage).

226 International Trade Law and the GATT/WTO Dispute Settlement System, supra note 58, at 239-40; Davey, Remarks, Symposium, supra note 223, at 162.

227 This proposal was approved unanimously for the WTO at the Seattle ministerial meeting in December 1999 by the parliamentarians of the WTO members present. Bridges Wkly. Trade News Dig., Oct. 31, 2000.

228 “Indeed, some of the organizations that have pressed hardest for a democratization of the WTO have done little to secure democracy in their own operations.” Scholte, J. A. with Robert, O’Brien & Williams, Marc, The WW and Civil Society, 33 J. World Trade 107, 122 (1999)Google Scholar.

229 The principle of subsidiarity, as generalized from the amended European Community Treaty, may be defined as follows: an international institution should take action only if and insofar as the objective of the proposed action cannot be sufficiently achieved by the member states, and therefore, by reason of the scale or effects of the proposed action, can be better achieved by the international institution. See EC Treaty Art. 5 (ex-Art. 3b).

230 A “World-U Parliament,” as a subsidiary organ of the UN General Assembly, should be elected directly by the people and should advise and report to the General Assembly. Japan Association for United Nations Studies, The Role of the United Nations in the Twenty-first Century World (Sept. 8, 1999); see also Falk, Richard & Strauss, Andrew, On the Creation of a Global Peoples Assembly: Legitimacy and the Power of Popular Sovereignty, 36 Stan. J. Int’l L. 191 (2000);Google Scholar Yokota, Yozo, A Charter for a New World Organization: Comments on Mr. Maurice Bertrand’s Proposal, in Anew Charter For A Worldwide Organisation? 133 (Bertrand, Maurice & Warner, Daniel eds., 1997)Google Scholar; Citizens in the International Realm: The New Participatory Demands, 95 ASIL Proc. 162 (forthcoming 2001) (remarks by Andrew, L. Strauss, Falk, Richard, Thomas, M. Franck, & Jessica, Tuchman Mathews)Google Scholar.

231 Falk, supra note 10.

232 Harold, K. Jacobson, International Institutions and Systems Transformation, 2000 Ann. Rev. Pol. Sci. 149, 161 (citing, among others, March, Olsen, and Slaughter)Google Scholar.

233 Bunyan, John: Good News For The Vilest of Men, The Advocateship of Jesus Christ 27 (Richard, L. Greaves ed., 1985) (1668)Google Scholar.