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The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?

Published online by Cambridge University Press:  27 February 2017

Daniel Bodansky
Daniel Bodansky*
Affiliation:
University of Washington
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Extract

This article is about a problem only just becoming visible: the legitimacy of international environmental law, and more specifically, the perception that the international environmental process is insufficiently democratic. Until now, international lawyers have tended to focus on what environmental standards are needed and how those standards can be made effective. But as decision-making authority gravitates from the national to the international level, the question of legitimacy will likely emerge from the shadows and become a central issue in international environmental law. This article seeks to clarify the nature of the legitimacy challenge and to survey possible sources of legitimacy for international institutions.

Type
Research Article
Information
American Journal of International Law , Volume 93 , Issue 3 , July 1999 , pp. 596 - 624
Copyright
Copyright © American Society of International Law 1999

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References

* The author completed the research for this article as a Jean Monnet Fellow at the European University Institute in Florence. He wishes to thank Philip Alston, Richard Bilder, William Burke, David Caron, Joan Fitzpatrick, André Nollkaemper, David Victor, and Farhana Yamin for their many helpful comments and suggestions. He also wishes to acknowledge the excellent research assistance of Soren Rottman.

1 Stanley I. Benn, Authority, in 1 Encyclopedia of Philosophy 215 (Paul Edwards ed., 1967); Richard E. Flathman, Legitimacy, in A Companion to Contemporary Political Philosophy 527 (Robert E. Goodin & Philip Pettit eds., 1993). Earlier, authority was largely seen as deriving from God or from the natural order of social hierarchy and did not involve the imposition of one person’s will on another.

2 Benn, supra note 1, at 216 (paraphrasing Jean-Jacques Rousseau, The Social Contract, bk. I, ch. 1).

3 The writers who have focused most clearly on the legitimacy of international institutions have been conservative critics, who have long argued that institutions such as the UN General Assembly are illegitimate because of the “one state, one vote” rule, which allows decisions to be made by countries that are themselves undemocratic and constitute only a small fraction of the world’s population. See, e.g., Michael Lind, One Nation One Vote? That’s Not Fair, N.Y. Times, Nov. 23, 1994, at A2 (criticizing UN General Assembly and World Trade Organization). Among the relatively few discussions of legitimacy by international lawyers are Abram Chayes & Antonia H. Chayes, The New Sovereignty: Compliance with International Regulatory Agreements 127–34 (1995); Thomas M. Franck, The Power of Legitimacy Among Nations (1990); Jose E. Alvarez, The Quest for Legitimacy: An Examination of The Power of Legitimacy among Nations, 24 N.Y.U.J. Int’l L. & Pol. 199, 242–43 (1991) (reviewing Thomas M. Franck, The Power of Legitimacy Among Nations (1990)).; David D. Caron, The Legitimacy of the Collective Authority of the Security Council, 87 AJIL 552, 558 (1993) (assessing legitimacy of Security Council); Phillip R. Trimble, A Revisionist View of Customary International Law, 33 UCLAL. Rev. 665, 716–31 (1986) (questioning the legitimacy of customary international law). Discussions by international relations scholars include Ernst B. Haas, When Knowledge Is Power 87–88 (1990); The Implementation and Effectiveness of International Environmental Commitments: Theory and Practice (David G. Victor et al. eds., 1998); Inis L. Claude, Jr., Collective Legitimization as a Political Function of the United Nations, 20 Int’l Org. 367, 372 (1966) (legitimacy of international organizations); Jerome Slater, The Limits of Legitimization in International Organizations: The Organization of American States and the Dominican Crisis, 23 Int’l Org. 48, 52 (1969) (legitimacy of Organization of American States).

4 See, e.g., Hans J. Morgenthau & Kenneth N. Thompson, Politics among Nations: The Struggle for Power and Peace (6th ed. 1985); Susan Strange, Cave! hic dragones: A Critique of Regime Analysis, in International Regimes 337 (Stephen D. Krasner ed., 1983).

5 See, e.g., Oran R. Young, Compliance and Public Authority: A Theory with International Applications (1979) (no discussion of legitimacy as basis of compliance).

6 Although consent represents a firm basis of popular legitimacy, from a philosophical standpoint, consent theory raises considerable difficulties. See generally Leslie Green, The Authority of the State (1988); Hanna Pitkin, Obligation and Consent—I, 59 Am. Pol. Sci. Rev. 990, 991 (1965).

7 U.N. Charter, Art. 25 (states agree to carry out the decisions of the Security Council).

8 See Caron, supra note 3; Sean D. Murphy, The Security Council, Legitimacy, and the Concept of Collective Security after the Cold War, 32 Colum. J. Transnat’l L. 201, 246–69 (1994); Burns H. Weston, Security Council Resolution 678 and Persian Gulf Decision Making: Precarious Legitimacy, 85 AJIL 516 (1991).

9 Jeremy Rabkin, Why Sovereignty Matters 1 (1998); Patti Goldman, The Democratization of the Development of United States Trade Policy, 27 Cornell Int’l L.J. 631 (1994) (questioning legitimacy of WTO); David A. Wirth, Reexamining Decision-Making Processes in International Environmental Law, 79 Iowa L. Rev. 769 (1994).

10 The burgeoning literature on the “democratic deficit”—and, more generally, the problem of legitimacy in the European Union—includes: The European Union: How Democratic Is It? (Svein S. Andersen & Kjell A. Eliassen eds., 1996); Democracy and the European Union (Andreas Føllesdal & Peter Koslowski eds., 1998); European Identity and the Search for Legitimacy (Soledad Garcia ed., 1993); Klaus Armingeon, The Democratic Deficit of the European Union, 50 Aussenwirtschaft 67 (1995); Gráinne de Búrca, The Quest for Legitimacy in the European Union, 59 Mod. L. Rev. 349 (1996); Renaud Dehousse, Constitutional Reform in the European Community: Are There Alternatives to the Majoritarian Avenue? 18 W. Eur. Pol. 118 (1995); Heinz Hauser & Alexia Müller, Legitimacy: The Missing Link for Explaining EU-Institution Building, 50 Aussenwirtschaft 17 (1995); Giandomenico Majone, Europe’s ‘Democratic Deficit’: The Question of Standards, 4 Eur. L.J. 5 (1998); J. H. H. Weiler, European Democracy and Its Critique, 18 W. Eur. Pol. 4 (1995).

11 P. P. Craig, Democracy and Rule-making Within the EC: An Empirical and Normative Assessment, 3 Eur. L.J. 105, 112–13 (1997).

12 See, e.g., Dehousse, supra note 10, at 131 (“Only by bringing [the EU] closer to standards of European democracy can one hope to restore its credibility in the eyes of the general public.”); Philippe Schmitter, Is It Really Possible to Democratize the Euro-Polity? in Democracy and the European Union, supra note 10, at 14 n.5.

13 See, e.g., Hilary F. French, Strengthening International Governance, 3 J. Env’t & Dev. 65 (1995); Goldman, supra note 9; Kal Raustiala, Democracy, Sovereignty, and the Slow Pace of International Negotiations, 8 Int’l Envtl. Aff. 3 (1996).

14 Jack Kemp & Fred L. Smith Jr., Beware of the Kyoto Compromise, N.Y. Times, Jan. 13, 1998, at A25.

15 Katy Brady, Aarhus Convention Signed, 28 Envtl. Pol’y & L. 171,173 (1998) (quoting Brennan Van Dyke of the Center for International Environmental Law). On the importance of participation in international environmental regimes, see The Implementation and Effectiveness of International Environmental Commitments, supra note 3; Jonas Ebbesson, The Notion of Public Participation in International Environmental Law, 1997 Y.B. Int’l Envtl. L. 51 (1998).

16 Naomi Roht-Arriaza, Shifting the Point of Regulation: The International Organizationfor Standardization and Global Lawmaking on Trade and the Environment, 22 Ecology L.Q, 479 (1995).

17 The UN Food and Agriculture Organization (FAO) and the World Health Organization (WHO) jointly established the Codex Alimentarius Commission in 1962, in order to develop international food safety standards. See generally Donna L. Malloy, The Codex Alimentarius Provides International Standards for Food Production and Safety, 12J. Agric. Tax’n & L. 334–41 (1991); Lewis Rosman, Public Participation in International Pesticide Regulation: When the Codex Commission Decides, Who Will Listen?, 12 Va. Envtl. L.J. 329 (1993); David G. Victor, Effective Multilateral Regulation of Industrial Activity: Institutions for Policing and Adjusting Binding and Nonbinding Legal Commitments (1997) (unpublished Ph.D. dissertation, Massachusetts Institute of Technology) (on file with author). The term “codex alimentarius” is Latin for “food code.” Although Codex standards are only recommendations, and states are under no legal obligation to adopt them, the GATT Uruguay Round agreements establish them as reference standards. National standards that are equivalent to international (i.e., Codex) standards are presumed to be GATT-compliant, while standards exceeding Codex standards require additional support, in particular, scientific evidence. This has led some commentators to question the legitimacy of the Codex process. For example, Rosman somewhat hyperbolically asserts that “the Codex regime threatens the legitimacy essential to maintaining a system of regulatory decision making in a democratic society.” Rosman, supra, at 363.

18 Montreal Protocol on Substances That Deplete the Ozone Layer, Sept. 16, 1987, Art. 2(9), 26 ILM 1541 (entered into force Jan. 1, 1989) [hereinafter Montreal Protocol] (allowing control measures to be “adjusted” by a vote of two-thirds of the protocol parties, representing a majority of both developed and developing country parties); see infra note 64 and accompanying text.

19 Declaration Adopted at The Hague, March 1989, reprinted in UN Doc. A/44/340-E/1989/120, Annex 5; see also Geoffrey Palmer, New Ways to Make International Environmental Law, 86 AJIL 259 (1992). Some environmental alarmists have suggested that global environmental problems will ultimately necessitate authoritarian responses. E.g., William Ophuls, Ecology and the Politics of Scarcity (1977); see generally Wouter Achterberg, Can Liberal Democracy Survive the Environmental Crisis?: Sustainability, Liberal Neutrality and Overlapping Consensus, in The Politics of Nature: Explorations in Green Political Theory 81 (Andrew Dobson & Paul Lucardie eds., 1993).

20 See MiChael j. Sandel, Democracy’s Discontent: America in Search of a Public Philosophy (1996).

21 See Tom Athanasiou, Divided Planet: The Ecology of Rich and Poor 26 (1996); French, supra note 13, at 65; Goldman, supra note 9; Phillip R. Trimble, Globalization, International Institutions and the Erosion of National Sovereignty and Democracy, 95 Mich. L. Rev. 1944, 1966 (1997) (“If international institutions are to acquire and exercise the sovereign powers required to respond to the negative forces of globalism, they … will have to become more democratic.”); Wirth, supra note 9, at 802.

22 Political Sparks Fly over Euro, Int’l Herald Trib., Apr. 27, 1998, at 1; see also Laurence Gormley & Jakob de Haan, The Democratic Deficit of the European Central Bank, 21 Eur. L. Rev. 95 (1996).

23 For example, closing military bases and reforming Social Security.

24 See, e.g., Jeffery Atik, Identifying Antidemocratic Outcomes: Authenticity, Self-Sacrifice and International Trade, 19 U. Pa. J. Int’l Econ. L. 229 (1998) (trade law); Caron, supra note 3; Krishna Jayakar, Globalization and the Legitimacy of International Telecommunications Standard-Setting Organizations, 5 Global Leg. Stud. J. 711 (1998); Murphy, supra note 8.

25 See, e.g., David Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance 269–74 (1995) (proposing the establishment of a directly-elected “independent assembly of democratic peoples”).

26 For example, sometimes “legitimate” means “genuine,” as in such phrases as: “the Yankees are a legitimate contender for the title,” or “the situation in Bosnia is a legitimate emergency.” In other cases, “legitimate” means “justified,” as in: “he raised a legitimate concern,” or “she has a legitimate expectation of being paid.”

27 See, e.g, Thomas M. Franck, Fairness in International Law and Institutions 7, 22, 25, 26 (1995) (equating “legitimacy,” inter alia, with procedural fairness, utilitarianism, a desire for order, and right process). Often “legitimacy” seems to be used as little more than a general term of support or approbation, like a “hurrah.” One begins to suspect, as Hanna Pitkin notes, “that terms like ‘legitimate,’ ‘authority,’ ‘obligation’ may be parts of an elaborate social swindle, used to clothe those highway robbers who have the approval of society with a deceptive mantle of moralistic sanctity.” Pitkin, supra note 6, at 991.

28 “Authority,” in turn, means “the right to command, or give an ultimate decision.” 1 Oxford English Dictionary 572 (1933). To claim authority is to assert the right to direct others, while to actually exercise authority is to have that claim accepted. In accepting another’s authority, one defers to the other’s directives, independent of coercion or rational persuasion, because of some perceived quality or attribute of the entity exercising authority—charisma, moral rectitude, expertise, or legal office, to name a few. Cf. Hannah Arendt, Between Past and Future: Eight Exercises in Political Thought 93 (1968) (“If authority is to be defined at all … it must be in contradistinction to both coercion by force and persuasion through arguments.”); David P. Gauthier, Practical Reasoning: The Structure and Foundations of Prudential and Moral Arguments and Their Exemplification in Discourse 136 (1963) (appeals to audiority and to reason are alternatives).

29 For some representative definitions of legitimacy, see Archibald Cox, The Role of the Supreme Court in American Government 103 (1976) (legitimacy is the ability “to command acceptance and support from the community so as to render force unnecessary”); Robert A. Dahl, Modern Political Analysis 41 (2d ed. 1970) (“A government is said to be ‘legitimate’ if the people to whom its orders are directed believe that the structure, procedures, acts, decisions, policies, officials or leaders of government possess the quality of ‘lightness,’ propriety or moral goodness—the right, in short, to make binding rules.”); Jürgen Habermas, Communication and the Evolution of Society 178 (T. McCarthy trans., 1979) (“Legitimacy means that there are good arguments for a political order’s claim to be recognized as right and just; a legitimate order deserves recognition. Legitimacy means a political order’s worthiness to be recognized.”); Seymour Martin Lipset, Political Man: The Social Bases of Politics 77 (1959) (legitimacy means “the capacity of the system to engender and maintain the belief that the existing political institutions are the most appropriate ones for the society”) Joseph Raz, Authority and justification, 14 Phil. & Pub. Aff. 3, 5 (1985) (institutions have “legitimate authority only if and to the extent that their claim [to have a right to rule] is justified”). In contrast, Thomas Franck’s influential book, The Power of Legitimacy Among Nations, supra note 3, has a somewhat different focus. It examines the effective authority of individual legal norms, rather than the justification of international institutions or decision-making processes. Thus, Franck focuses on several factors (for example, determinacy) that seem to have little to do with the justification of authority, but which may affect a norm’s ability to influence conduct. Conversely, he devotes comparatively little space to the topic of this article, namely how the authority of international regimes might be justified—for example, on the basis of democratic decision making, state consent, public participation, or expertise. Of Franck’s four legitimacy factors, the only one that relates to justification is “adherence”—the property of being duly enacted in accordance with the legal system’s secondary rules—which I will discuss below under the rubric, “legal legitimacy.” See supra note 48 and accompanying text. Despite initially defining legitimacy in terms of “right process,” virtually none of his analysis focuses on such procedural issues as transparency, deliberation, elections, voting, and so forth.

30 Hanna Pitkin, Obligation and Consent—II, 60 Am. Pol. Sci. Rev. 39 (1966) (“Legitimate authority is precisely that which ought to be obeyed, … to which rational men considering all relevant facts and issues would consent …”).

31 Thomas Nagel, Moral Conflict and Political Legitimacy, 16 Phil. & Pub. Aff. 215, 218 (1987); Claude, supra note 3, at 372.

32 See Achterberg, supra note 19, at 91.

33 Indeed, much of Western political theory since the time of Hobbes and Locke has been concerned with the legitimacy of governmental authority.

34 According to Weber, legitimacy is a sense of duty, obligation, or oughtness towards rules, principles, or commands. Martin E. Spencer, Weber on Legitimate Norms and Authority, 21 Brit. J. Soc. 123, 126 (1970); see also Claude, supra note 3, at 369 (equating legitimacy with capacity to elicit approval); Slater, supra note 3, at 52 (legitimacy can be defined in terms of diffuse support); Martin Wight, International Legitimacy, in Systems of States 153 (Hedley Bull ed., 1977) (equating international legitimacy with international acceptance and recognition by other states).

35 For example, Franck claims that, as an empirical matter, governments perceive a rule as more legitimate if it receives “symbolic validation.” Franck, supra note 3, at 91–110. But, even if this claim is empirically accurate, symbolic validation does not necessarily contribute to the normative legitimacy of the rule.

36 See Green, supra note 6, at 41 (discussing H. L. A. Hart). On this basis, it is possible to distinguish between the legitimacy of the impeachment process of President Clinton, and whether Clinton should in fact be impeached and removed from office.

37 Raz, supra note 29, at 13 (“The fact that an authority requires performance of an action is a reason for its performance which … should exclude and take the place of [all other relevant reasons when assessing what to do].”). Similarly, when one accepts the authority (jurisdiction) of a court or an arbitrator, one agrees to accept its decision, whether or not one believes the decision to be correct.

38 1 Max Weber, Economy and Society 31 (Guenther Roth & Claus Wittich eds., 1968); see also Charles L. Black, The People and the Court: Judicial Review in a Democracy 52 (1960) (calling the legitimacy of a government “the condition of its life”); Franck, supra note 3; Habermas, supra note 29, at 178–79 (“the stability of [a political] order of domination (also) depends on its (at least) de facto recognition [as legitimate]”).

39 Franck, supra note 3; Claude, supra note 3, at 368.

40 Caron, supra note 3, at 558; see also Slater, supra note 3, at 52 (the more an international organization is perceived as legitimate, the more likely its members will be to comply with directives even when not under any serious compulsion to do so).

41 See, e.g., Mohamed Haron, The Issue of Antarctica—A Commentary, in Antarctic Challenge III, at 271, 275 (Rüdiger Wolfrum ed., 1988) (“The ‘bottom line’ concerning the survivability and workability of the Antarctic Treaty System is its ability to acquire legitimacy across a wide spectrum of the international community.”); Richard Falk, The Antarctic Treaty System: Are There Viable Alternatives?, in The Antarctic Treaty System in World Politics 399,412 (Arnfinn jørgensen-Dahl & Willy Østreng eds., 1991) (“It seems evident that the quality of future viability of ATS depends on its legitimacy in the eyes of the wider world community …”).

42 Rulers usually employ a variety of means to have their directives obeyed—force, threats, arguments, even pleas. By the same token, people (or states) may obey directives for a mix of different reasons. Some states may accept the Security Council’s authority as legitimate; others such as Iraq may obey due to fear of punishment or calculations of self-interest. Moreover, these various bases of compliance often interrelate. Coerced compliance may become internalized over time and take on the character of legitimacy. Conversely, when an institution’s authority is widely accepted by states as legitimate, that enhances its ability to employ other means of compliance such as coercion or persuasion. The ability of the Security Council, for example, to use force to compel countries such as Iraq to comply depends on its authority vis à vis other UN member states, who must carry out its will. The concepts of “authority” and “legitimacy” are what Max Weber called “ideal types,” abstractions that represent one component of reality. See H. H. Gerth & C. Wright Mills, Introduction to From Max Weber: Essays in Sociology 59 (H. H. Gerth & C. Wright Mills eds., 1946).

43 Alan Hyde has critiqued empirical attempts to establish a causal link between legitimacy and effectiveness. Alan Hyde, The Concept of Legitimation in the Sociology of Law, 1983 Wis. L. Rev. 379 (1983). Tom Tyler’s work, however, suggests that beliefs about legitimacy do in fact contribute to obedience. Tom Tyler, Why People Obey The Law (1990). For some illustrations of the widely-shared assumption that legitimacy matters, see R.W. Apple Jr., Now, The People Will Have a Chance to Judge, N.Y. Times, Sept. 12, 1998, at A1 (even if Clinton survives the Lewinsky scandal, “his moral leadership, that intangible legitimacy that makes a President a force in the country, has been shattered”); Michael Wines, When Minds Do Not Meet, N.Y. Times, Aug. 31, 1998, at A1 (Russia is a place where “the popularity of a leader—or his unpopularity—affects not only his power but also his legitimacy”). In drawing a link between popular legitimacy and effectiveness, we must be careful to identify criteria or indicators of legitimacy other than actual effectiveness. Otherwise, we run the risk of circularity, by making effectiveness part of the very definition of legitimacy (“legitimacy is the tendency to induce compliance in the absence of coercion or self-interest”), as Thomas Franck at times seems to do. See Robert O. Keohane, International Relations and International Law: Two Optics, 38 Harv. Int’l L.J. 487, 493 (1997).

44 In this process, international institutions can serve important supporting functions—they can help focus international attention on an environmental problem, provide a forum for negotiations, enhance transparency, and channel assistance to states that lack the capacity to comply. See Institutions for the Earth: Sources of Effective International Environmental Protection (Peter M. Haas et al. eds., 1993). But they rarely exercise authority over states so as to raise concerns about legitimacy.

45 The distinction I am drawing here is between consent to the secondary rules about how law is created, interpreted, changed, and applied and consent to the primary rules governing behavior. See H. L. A. Hart, The Concept of law 79–81 (2d ed. 1994). The different ways that a state may accept a court’s jurisdiction also illustrate the difference between general and specific consent. On the one hand, a state may generally consent to a court’s (compulsory) jurisdiction (for example, by means of the optional clause to the Statute of the International Court of Justice); on the other hand, it may specifically consent to a court’s jurisdiction to hear a particular dispute (for example, by means of a compromis).

46 See Louis Henkin, International Law: Politics and Values 26 (1995) (although “states could consent to lawmaking by majority … [or] by a representative body,” instances of their doing so are “highly exceptional and limited”).

47 Montreal Protocol, supra note 18, Art. 2 (9). Outside the environmental arena, the Security Council is the most visible and important institution with nonunanimous decision-making authority, but other international institutions have similar authority in limited spheres. See generally Frederic L. Kirgis, Jr., Specialized Law-making Processes, in 1 The United Nations Legal Order 109 (Oscar Schachter & Christopher C. Joyner eds., 1995); Wirth, supra note 9, at 791–97. For example, the International Civil Aviation Organization can adopt binding international standards for civil aviation over the high seas. Kirgis, supra, at 136. Similarly, the constitutive instruments for the World Health Organization, the International Atomic Energy Agency, and the World Bank can be amended by qualified majority vote. Wirth, supra note 9, at 793–94.

48 This definition is based on the Latin root, “legitimus,” which means lawful. Dolf Sternberger, Legitimacy, in 9 International Encyclopedia of the Social Sciences 244 (David Sills ed., 1968). The connection between law and legitimacy is fundamental to the idea of the rule of law, which makes political authority subject to the restraint of general, open, and relatively stable rules. See generally Joseph Raz, The Rule of Law and Its Virtue, 93 Law Q. Rev. 195 (1977); see also F. A. Hayek, The Road to Serfdom 54 (1944) (on rule of law); Jerry L. Mashaw, Greed, Chaos and Governance: Using Public Choice to Improve Public Law (1997) (legitimacy flows from rule of law). According to this view, a directive’s authority derives from the fact that it was duly promulgated in conformity with more general, secondary rules for law creation (for example, the constitution in the case of legislation, an agency’s organic statute for administrative rulemaking, or an international organization’s constitutive treaty for any secondary legislation it may adopt). Similarly, an official’s authority is not personal, but instead flows from her office, and must be exercised within the bounds of the pre-existing rules. A policewoman has a right to command, but only to the extent that she acts within the scope of her lawful authority. Franck calls this quality of legal rules “adherence.” Franck, supra note 3, at 184. For Weber, legal-rational authority depended on the formal process of enactment of rules, not their specific content. In his view, belief in legality is “the essential basis of all stable authority in modern society.” Roger Cotterrell, Law’s Community: Legal Theory in Sociological Perspective 136 (1995); see also Max Weber, Max Weber on law in Economy and Society (Max Rheinstein & Edward Shils trans., 1954).

49 Arnfinn Jørgensen-Dahl, The Legitimacy of the ATS, in The Antarctic Treaty System, supra note 41, at 287; Governing the Antarctic: The Effectiveness and Legitimacy of the Antarctic Treaty System (Olav Schram Stokke & David Vidas eds., 1997).

50 Antarctic Treaty, Dec. 1, 1959, Art. IX(2), 12 U.S.T. 794, 402 U.N.T.S. 71.

51 See generally Chayes & Chayes, supra note 3, at 130; William Aron et al., Flouting the Convention, Atlantic Monthly, May 1999, at 22; David D. Caron, The International Whaling Commission and the North Atlantic Marine Mammal Commission: The Institutional Risks of Coercion in Consensual Structures, 89 AJIL 154 (1995).

52 International Convention for the Regulation of Whaling, Dec. 2, 1946, preamble, 62 Stat. 1716, 161 UNTS 72.

53 Id. Art.V(2).

54 Andrew Pollack, Commission to Save Whale Endangered Too, N.Y. Times, May 18, 1993, at C4.

55 Environmentalists also argue that the WTO panel procedures do not give the public an adequate opportunity to participate, and that the panels are composed primarily of trade rather than environmental experts. See Goldman, supra note 9, at 693–97; Wirth, supra note 9, at 786–91.

56 GATT Dispute Panel Report, United States—Restrictions on Imports of Tuna, B.I.S.D. (39th Supp.) at 155 (1993), reprinted in 30 ILM 1954 (1991); GATT Dispute Panel Report, United States—Restrictions on Imports of Tuna, June 16, 1994, GATT Doc. DS29/R, reprinted in 33 ILM 839 (1994); WTO Appellate Body, United States—Import Prohibition of Certain Shrimp and Shrimp Products, Oct. 12, 1998, WT/DS58/AB/R, reprinted in 38 ILM 118 (1999).

57 This was the argument, for example, made by Earthjustice Legal Defense Fund in its Comments to the WTO Appellate Body in the WTO Shrimp-Turtle dispute. After discussing what it viewed as errors in the WTO panel report, Earthjustice argued that

[t]ogether, these errors indicate that the Panel went beyond its legitimate dispute settlement role and authority to create new rules concerning the application of Article XX.… Such a task is inappropriate for a dispute resolution panel. Rather, the creation of new rules is a legislative function legitimate only to governments directly responsible to the people affected. Unless the Appellate Body corrects these mistakes, the Panel’s report in this case will severely weaken public confidence in the legitimacy of the WTO ….

Earthjustice Legal Defense Fund, Comments to the Appellate Body of the World Trade Organization Concerning United States—Import Prohibition of Certain Shrimp and Shrimp Products, June 16, 1998, at 2.

58 See Palmer, supra note 19, at 259 (“The existing methods [of international lawmaking] are slow, cumbersome, expensive, uncoordinated and uncertain. Something better must be found if the environmental challenges the world faces are to be dealt with successfully.”). But see Jonathan Baert Wiener, On the Political Economy of Global Environmental Regulation, 87 Geo. L.J. 749, 793 (1999) (“[A]dvocates of environmental protection should not necessarily be so quick to seek a coercive, legislative model for the global arena. The voluntary assent rule may be a bit like the tortoise, slow but steady, unperturbed by the distracting demands of self-serving enthusiasts along the way. A coercive rule may be more like the hare, faster but more prone to stray from the straight and narrow.”).

59 The Norwegian political scientist, Arild Underdal, has referred to this phenomenon as the “law of the least ambitious program.” Arild Underdal, The Politics of International Fisheries Management: The Case Of the Northeast Atlantic 36 (1980).

60 Cromwell Riches, Majority Rule in International Organization: A Study of the Trend from Unanimity to Majority Decision 7 (1940).

61 These innovative mechanisms include rapid amendment procedures, provisional application of agreements pending entry into force, differential standards, and selective incentives. See Peter H. Sand, Lessons Learned in Global Environmental Governance (1990).

62 See Richard E. Benedick, Ozone Diplomacy: New Directions in Safeguarding the Planet (2d ed. 1998).

63 Palmer, supra note 19 at 278–82; cf. Garrett Hardin, The Tragedy of the Commons, 162 Science 1243 (1968) (tragedy of the commons problems will require “mutual coercion, mutually agreed upon”).

64 Montreal Protocol, supra note 18, Art. 2(9).

65 Kyoto Protocol to the UN Framework Convention on Climate Change, Art. 18, FCCC Conference of the Parties, 3d Sess., UN Doc. FCCC/CP/1997/7/Add.2.

66 Suzi Kerr et al., Policy Options for Addressing Compliance Issues Raised by Emissions Trading, Center for Clean Air Policy report (Nov. 1998) (unpublished manuscript, on file with author).

67 The Council uses a system of weighted voting, under which Germany, France, Italy and the United Kingdom have 10 votes each; Spain has 8 votes; Belgium, Greece, the Netherlands, and Portugal have 5 votes each; Austria and Sweden have 4 votes each; Ireland, Denmark and Finland have 3 votes each; and Luxembourg has 2 votes.

68 For an early example of this approach to environmental problems, see Richard A. Falk, This Endangered Planet: Prospects and Proposals for Human Survival (1971).

69 See supra note 19. At a press conference, Norwegian Prime Minister Gro Brundtland commented that “[t]he principles we have endorsed are in fact radical, but anything less would not serve us.” Edward Cody, Global Environmental Power Sought, Wash. Post, Mar. 12, 1989, at A27.

70 Palmer, supra note 19, at 279–80.

71 Cf. Claude, supra note 3, at 369 (arguing against equation of legality and legitimacy).

72 See Murphy, supra note 8, at 248–49 (critics of the legitimacy of the Security Council look beyond whether Council is acting within its legal competence).

73 Weiler’s category of “formal (legal) legitimacy” is similar to what I am calling here simply “legal legitimacy.” He states that “the notion of formal legitimacy in institutions or systems implies that all requirements of the law are observed in the creation of the institution or system. This concept is akin to the juridicial concept of formal validity.” J. H. H. Weiler, The Transformation of Europe, 100 Yale L.J. 2403, 2468 (1991). But to avoid the problem posed by unjust laws, Weiler’s category of “formal (legal) legitimacy” includes substantive (non-formal) elements, in particular, that the legal rules be created by democratic institutions and processes. Id. In contrast, my discussion keeps these two elements of legitimacy distinct.

74 Id. at 2468–69. Despite occasional claims to the contrary, see, e.g., Prosper Weil, Towards Relative Normativity in International Law, 77 AJIL 413, 420 (1983) (“[T]here can be no question today, any more than yesterday, of some ‘international democracy’ in which a majority or representative proportion of states is considered to speak in the name of all and thus be entitled to impose its will on other states.”), there is nothing in international law that prevents states from agreeing to governance arrangements that authorize the majority to make binding decisions. See Wellington Koo, Jr., Voting Procedures in International Political Organizations 10 (1947); Riches, supra note 60, at 9.

75 P. H. Partridge, Consent and Consensus 29 (1971).

76 Id. at 29–30; see also Henry Sidgwick, The Elements of Politics 610 (2d ed. rev., London, Macmillan 1897) (democracy should rest on the “active consent” of the governed).

77 Weiler, supra note 73, at 2473; see also Dehousse, supra note 10, at 119 (describing proposals to solve the legitimacy crisis by strengthening the Council).

78 In federal states, some commentators have raised a similar question about the extent to which the federal government can legitimately consent to international obligations that bind its constituent parts. See Curtis A. Bradley, The Treaty Power and American Federalism, 97 Mich. L. Rev. 390 (1998) (questioning the legitimacy of international treaties vis á vis states of the United States).

79 Cf. Paul B. Stephan, Accountability and International Lawmaking: Rules, Rents and Legitimacy, 17 Nw. J. Int’l L. & Bus. 681, 684 (1996–97).

80 Vienna Convention on the Law of Treaties, May 23, 1969, Art. 46, 1155 UNTS 331 (internal law governs competence to conclude treaties).

81 As Alexander Hamilton noted in The Federalist No. 75, treaties are “not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign.” The Federalist No. 75, at 450–51 (Clinton Rossitered., 1961).

82 Of course, unless an international environmental treaty is found to have direct effects, then it applies to individual conduct only indirectly, through national implementing legislation. Nevertheless, in practice, the range of discretion of national legislatures is significantly diminished, if not entirely eliminated, by an international treaty regime such as Marpol. Thus, although, strictly speaking, individual conduct may be governed by national law, in practice the applicable standards are set by international law. See Stephan, supra note 79, at 686.

83 See, e.g., Bradley, supra note 78, at 456 (“[B]oth the form and substance of modern treaty law resembles domestic legislation.”); Michael P. Van Alstine, Dynamic Treaty Interpretation, 146 U. Pa. L. Rev. 687, 700 (1998) (“From a substantive perspective … the [private law] conventions have the look and feel of standard federal statutes.”); David A. Wirth, The Uneasy Interface Between Domestic and International Environmental Law, 9 Am. U.J. Int’l L. & Pol’y 171, 172 (1993).

84 See Trimble, supra note 21, at 1955.

85 For example, the U.S. Administrative Procedure Act contains an explicit exemption for foreign affairs. 60 Stat. 237; see Louis Henkin, Foreign Affairs and the United States Constitution 261 (2d ed. 1996)

86 See Wirth, supra note 83; Goldman, supra note 9.

87 The rapid amendment procedure contained in many recent environmental agreements illustrates the insufficiency of state consent as a basis of legitimacy. Traditionally, treaty amendments bound only those states that explicitly consented. Generally this consent was expressed through ratification, which in countries like the U.S. requires legislative approval. Many recent international environmental regimes depart from this model by establishing a system of tacit consent, pursuant to which amendments to technical annexes come into force automatically, following approval by the convention parties, except for those states that specifically opt out. See, e.g., Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES), done March 3, 1973, Art. XV, 27 U.S.T. 1087, 993 UNTS 243; Convention for the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, opened for signature Dec. 29,1972, Art. XV(2), 26 U.S.T. 2403,1046 UNTS 120. Rapid amendment procedures have also been provided for in non-environmental treaties, including the UN Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, Jan. 13, 1993, Arts. 15(4)-(5), 32 ILM 800, 820 (1993) (rapid amendment procedure for annexes listing materials subject to the Convention’s controls); UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Dec. 20, 1988, Arts.l2(5)-(6), UN Doc. E/CONF.82/15,28 ILM 493 (1989) (same). The rapid amendment procedure allows regimes to respond more flexibly both to new scientific knowledge and to new environmental problems. If a species becomes endangered, for example, the parties to CITES can vote to include it in Appendix I, thereby prohibiting commercial trade, without waiting for the affirmative consent of each CITES party.

But, as some critics have noted, rapid amendment procedures promote flexibility at the expense of consensual legitimacy. See Karl Kaiser, Transnational Relations as a Threat to the Democratic Process, 25 Int’l Org. 706 (1971); David A. Koplow, When Is an Amendment Not an Amendment?: Modification of Arms Control Agreements Without the Senate, 59 U. Chi. L. Rev. 981, 1069–72 (1992). Under rapid amendment procedures, the decision whether or not to object is ordinarily made by the executive rather than the legislative branch. The upshot is that new environmental standards can be adopted and come into effect, without the explicit consent of the legislature. For an attempted justification, see Note, Discretion and Legitimacy in International Regulation, 107 Harv. L. Rev. 1099 (1994).

88 In medieval times, the term “legitimus” meant in essence, conforming to ancient custom. Sternberger, supra note 48, at 245.

89 But, as Partridge notes, although we sometimes think of consent theory as a recent development, “some sort of notion of consent … has been present throughout virtually the whole history of political speculation.” Partridge, supra note 75, at 10. Consent theory was prominent, for example, in antiquity, and, during the middle ages, the idea was “ubiquitous” that “supreme political authority, even though it may be, in some sense, ‘of God,’ was made legitimate by the free consent or acceptance of ‘the people.’” Id. at 14.

90 See Franck, supra note 3 (emphasizing “right process”); Tyler, supra note 43; Wirth, supra note 9, at 798 (“[P]rocedural integrity is itself an important source of authority and legitimacy for international law.”).

91 See Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 149, 171 (1951) (Frankfurter J., concurring) (legitimacy of administrative decisions has procedural basis), quoted in Wirth, supra note 83, at 186. Another possible basis for the legitimacy of administrative law is expertise, an argument that Majone has emphasized in the European Union. See notes 152–68 and corresponding text.

92 An Essay on Man, III, line 303.

93 Indeed, if they were convinced, we would not need to speak of authority or legitimacy at all.

94 It may be that the latter relation is more important than the former: a regime may not need to be notably successful in order to be deemed legitimate, but if it is an abject failure, then this undermines its legitimacy. See Caron, supra note 3, at 559–61 (failure of an institution to deliver on its promises and goals can give rise to perceptions of illegitimacy).

95 This is a relatively recent phenomenon. Historically, governments usually claimed some other basis of legitimacy—divine right, tradition, or rule by the natural elite, to name a few. See David Held, Models of Democracy (1987). As C. B. Macpherson observes, “Democracy used to be a bad word. Everybody who was anybody knew that democracy, in its original sense of rule by the people or government in accordance with the will of the bulk of the people, would be a bad thing—fatal to individual freedom and to all the graces of civilized living. That was the position taken by pretty nearly all men of intelligence from the earliest historical times down to about a hundred years ago.” C. B. Macpherson, The Real World of Democracy 1 (1966).

96 R. Mckeon, Democracy in a World of Tensions 522 (1951).

97 Bertrand de Jouvenal has argued that “discussions about democracy … are intellectually worthless because we do not know what we are talking about.” Bertrand de Jouvenal, du Pouvoir 338 (1947), quoted in Giovanni Sartori, The Theory of Democracy Revisited 6 (1987).

98 See, e.g., Carol C. Gould, Rethinking Democracy: Freedom and Social Cooperation in Politics, Economy and Society (1988) (arguing for a broader conception of democracy that applies to economic and social life).

99 Deliberative Democracy: Essays on Reason and Politics (James Bohman & William Rehg eds., 1997); Democracy and Difference: Contesting the Boundaries of the Political (Seyla Benhabib ed., 1996).

100 Stanley I. Benn, Democracy, in 2 Encyclopedia of Philosophy 338, 338 (Paul Edwards ed., 1967).

101 Environmental politics provides empirical support for a substantive justification of democracy since Western liberal democracies have done a demonstrably better job of protecting the environment than the non-democratic regimes of the former Soviet Union and Eastern Europe. Robert Paehlke, Environmental Challenges to Democratic Practice, in Democracy and the Environment: Problems and Prospects 18, 19 (William M. Lafferty & James Meadowcroft eds., 1996).

102 See, e.g., Franck, supra note 27, at 482–84; Held, supra note 25, at 269–74.

103 See, e.g., Andrew Jordan, Paying the Incremental Costs of Global Environmental Protection: The Evolving Role of GEF, Env’t July-Aug. 1994, at l2, 18, 33 (comparing more “democratic” UN voting rules with less “democratic” Bretton Woods approach); See also Charles N. Brower, Compliance with International Law, 1997–1998 Proc. Am. Branch Int’l Law Ass’n 70, 71 (1998) (“[T] he international community is a democratic one.… [I]t is indeed, ‘One State, one vote.’”).

104 See, e.g., Daniel Magraw, Nafta’s Repercussions: Is Green Trade Possible, Env’t, Mar. 1994, at 14, 41 (equating greater transparency and public participation with “democratization”); Wirth, supra note 9.

105 See Inis L. Claude, Jr., Swords into Plowshares: The Problems and Progress of International Organization 133 (2d ed. 1959).

106 See generally R. P. Anand, Sovereign Equality of States in International Law, 197 Recueil des Cours 9 (1986 II).

107 The link between sovereign equality and liberal theory is apparent in Pufendorf, who in essence argued, “All persons in a state of nature are equal; the persons of international law are in a state of nature; therefore they are equal.” P.J. Baker, The Doctrine of Legal Equality of States, 1927 Brit. Y.B. Int’l L. 1, 6; see also Henkin, supra note 46, at 104–05 (discussing relationship of international law and liberal theory).

108 Compare John Locke, Second Treatise of Government II, §4 (the state of nature is “a State of perfect Freedom … and a State also of Equality”) with Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States, GA Res. 2625, UN GAOR, 25th Sess., Supp. No. 28, at 121, UN Doc. A/8028 (1971) (principles of sovereignty and sovereign equality).

109 But see KOO, supra note 74, at 8 (“one state, one vote” rule doesn’t necessarily follow from sovereign equality).

110 See notes 132–51 and corresponding text.

111 Robert A. Dahl, A Democratic Dilemma: System Effectiveness Versus Citizen Participation, 109 Pol. Sci. Q. 23, 32 (1994) (with the exception of the European Union, “no transnational structures exist with even the semblance of a democratic process”).

112 Weiler, supra note 73, at 2466.

113 Treaty on European Union, Feb. 7, 1992, Art. 189b, 1992 O.J. (C 224) 1, 31 ILM 247 (1992).

114 For example, the co-decision procedure applies to only about 25% of the European Union’s legislative activity, rather than to all EU legislation. Gerda Falkner & Michael Nentwich, European Union: Democratic Perspectives after 1996, at 8 (1995). The 1997 Amsterdam Treaty would significantly expand the spheres subject to the co-decision procedure. See Sally Langrish, The Treaty of Amsterdam: Selected Highlights, 23 Eur. L. Rev. 3 (1998).

115 David Held, Prospects for Democracy 274 (1993).

116 French, supra note 13, at 50.

117 Dahl, supra note 111, at 29–30.

118 In the European Union context, Joseph Weiler has referred to this problem as “inverted regionalism.” Weiler, supra note 10, at 6. The desire to keep government “close to the people” provides a “democratic” argument against EU competence, independent of the democratic (or undemocratic) nature of EU governance itself. As Weiler argues, “even if the Union were to replicate in its system of governance the very same [i.e., democratic] institutional set-up found in its constituent states, there would be a diminution in the specific gravity, in the political weight, in the level of control of each individual within the redrawn political boundaries.” Supra note 10, at 6.

119 See Robert Paul Wolff, In Defense of Anarchism (1970).

120 J. Roland Pennock, Democratic Political Theory 213 (1979).

121 Elaine Spitz, Majority Rule 151–52 (1984).

122 Anthony Arblaster, Democracy 78 (1987); see also Robert D. Putnam, Making Democracy Work (1993); Sandel, supra note 20, at 5 (democracy depends on “a sense of belonging, a concern for the whole, a moral bond with the community whose fate is at stake”); Claude, supra note 105, at 137–38; Fritz Scharpf, Legitimacy in the European Union (1998) (unpublished manuscript, on file with author) (majority rule depends on “thick” identity, i.e., commonalities of history, language, culture and ethnicity that make people trust in the benevolence of their fellow citizens).

123 See generally Robert A. Dahl & Edward R. Tufte, Size and Democracy (1973). 124 Id. at 5.

125 Weiler, supra note 10, at 10.

126 Id. at 11.

127 Id. at 17–19.

128 This is true not only of individuals but of states, which helps explain why majority decision-making procedures remain exceptional and are used only when “a common interest has been recognized [among states] and fundamental principles have been agreed upon.” Riches, supra note 60, at 297.

129 Weiler, supra note 10, at 12.

130 A related problem with global democracy would be the difficulty of providing information to so many people, so that they can make informed choices. Democracy is more than the mere aggregation of individual wills; it involves deliberation about the public good, which becomes progressively more difficult as the scale of the polity increases. Dahl, supra note 111, at 30.

131 See supra notes 77–87 and accompanying text.

132 See, e.g., Daniel C. Esty, Greening the Gatt: Trade, Environment and the Future 94 (1994) (stressing need for transparency) Jeffrey L. Dunoff, Institutional Misfits: The GATT, The ICJ & Trade-Environment Disputes, 15 Mich. J. Int’l L. 1043,1117 (1994) (institutional legitimacy enhanced by transparent procedures and decision making processes); Daniel J. Fiorino, Environmental Policy and the Participation Gap, in Democracy and the Environment: Problems and Prospects 194 (William M. Lafferty & James Meadowcraft eds., 1996); Kate O’Neill, Out of the Backyard: The Problems of Hazardous Waste Management at a Global Level, 7 J. Env’t & Dev. 138,159 (1998) (equating citizen participation with legitimacy); Wirth, supra note 9. Transparency and public participation are, of course, not the only possible bases of procedural legitimacy. Due process protections, for example, tend to focus instead on fundamental fairness.

133 See Steinar Andresen & Jørgen Wettestad, The Effectiveness of International Resource Cooperation: Some Preliminary Notes on Institutional Design, 13 Int’l Challenges 61,67 (1993) (participation by key stakeholders such as scientists, industry representatives and environmentalists increases legitimacy of international environmental regimes).

134 See supra note 49 and accompanying text.

135 Intergovernmental Panel on Climate Change, Report of the 2nd Sess., June 28–30, 1989, Annex III.

136 Office of Technology Assessment, Climate Treaties and Models: Issues in the International Management of Climate Change, OTA-BP-ENV-128, at 4 (1994) (“[I]f the entire endeavor is to be seen as legitimate, it must represent a broad international consensus, possibly including most nations of the world.”).

137 Deirdre Curtin, The Constitutional Structure of the Union: A Europe of Bits and Pieces, 30 Common Mkt. L. Rev. 17, 38–39 (1993) (“labyrinthine complexity of the decision-making process” is “one of the main causes of the persisting ‘democratic deficit’”); see also Deirdre Curtin & Herman Meijers, The Principle of Open Government in Schengen and the European Union: Democratic Retrogression?, 32 Common Mkt. L. Rev. 391, 440 (1995) Juliet Lodge, Transparency and Democratic Legitimacy, 32 J. Common Mkt. Stud. 343 (1994).

138 Dehousse, supra note 10, at 123. The 1997 Amsterdam Treaty simplified the range of legislative procedures, eliminating in large part the cooperation procedure and streamlining the co-decision procedure.

139 Lodge, supra note 137, at 345.

140 Weiler wryly comments that “comitology is an apt neologism—a phenomenon that requires its very own science, which no single person has mastered.” Weiler, supra note 10, at 9.

141 Curtin & Meijers, supra note 137, at 440; De Búrca, supra note 10, at 368–71; Renaud Dehousse, Toward the Regulation of Transnational Governance? Citizens’ Rights and the Reform of Comitology Procedures, at 6 (1998) (unpublished manuscript, on file with author); Majone, supra note 10, at 20–21 (focusing on transparency, the need to justify decisions and judicial review, as elements of procedural legitimacy).

142 Dehousse, supra note 141.

143 See generally Ebbesson, supra note 15; Neil A. F. Popovic, The Right to Participate in Decisions that Affect the Environment, 10 Pace Envtl. L. Rev. 683 (1993); Kal Raustiala, The “Participatory Revolution” in International Environmental Law, 21 Harv. Envtl. L. Rev. 537 (1997).

144 See, e.g., Rio Declaration on Environment and Development, princ. 10, UN Doc. A/CONF.151/26 (1992), reprinted in 31 ILM 874 (“Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities … and the opportunity to participate in decision-making processes.”). David Wirth observes that “[a] n explicit call for direct public participation in international processes is notably absent from this exhortation.” Wirth, supra note 9, at 773.

145 Åarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, June 25,1998, Art. 3 (7), UN Doc. ECE/CEP/43,38 ILM 517 (1999); Brady, supra note 15.

146 See supra note 17.

147 See supra note 16.

148 Roht-Arriaza, supra note 16, at 526 (domination of ISO by large corporate interests and industrialized-country delegations are potential sources of lessened legitimacy).

149 See Peter J. Spiro, New Global Potentates: Nongovernmental Organizations and the “‘Unregulated’ Marketplace,” 18 Cardozo L. Rev. 957 (1996).

150 See Fiorino, supra note 132, at 209 (likelihood of effective participation declines as decision making further away from those affected).

151 Arthur Earl Bonfield, The Federal APA and State Administrative Law, 72 Va. L. Rev. 297, 319 (1986).

152 See Jørgensen-Dahl, supra note 49; Governing the Antarctic, supra note 49.

153 Plato, Protagoras, §319b (W.K.C. Guthrie trans., 1956), reprinted in The Collected Dialogues of Plato 317 (Edith Hamilton & Huntington Cairns eds., Princeton Univ. Press 1961). For a more recent account that bases legitimacy on expertise, see Majone, supra note 10. The use of the term “authority” to mean “expert” (as in, “Kugel is an authority on the Bible”) reflects the close connection between authority and expertise.

154 See William C. Clark & Giandomenico Majone, The Critical Appraisal of Scientific Inquiries with Policy Implications, 10 Sci., Tech. & Human Values 6,15 (1985).

155 C. E. Lindblom, The Policy Making Process 12 (2d ed. 1980), quoted in Clark & Majone, supra note 154, at 15.

156 Giandomenico Majone, Science and Trans-Science in Standard Setting, 9 Sci., Tech. & Human Values 15, 15 (1984).

157 David Estlund, Making Truth Safe for Democracy, in The Idea of Democracy 71 (David Copp et al. eds., 1993).

158 See Leiv Lunde, Science or Politics in the Global Greenhouse: A Study of the Development towards Scientific Consensus on Climate Change, Fridtj of Nansen Rpt. 1991/8 (1991). Although some states have questioned the work of the IPCC, the 1996 Geneva Ministerial Declaration endorsed the IPCC second assessment reportas “the most comprehensive and authoritative assessment of the science of climate change.” UN Framework Convention on Climate Change Conference of the Parties, 2d Sess., UN Doc. FCCC/CP/1996/15/Add.1, at 71.

159 UN Framework Convention on Climate Change, adopted May 9, 1992, Art. 2, S. Treaty Doc. No. 102–38 (1992),31 ILM 849 (1992).

160 See R. H. Moss, Avoiding “Dangerous” Interference in the Climate System: The Role of Values, Science and Policy, 5 Global Envtl. Change 3 (1995).

161 David A. Wirth, The Role of Science in the Uruguay Round and NAFTA Trade Disciplines, 27 Cornell Int’l L.J. 817, 834 (1994). As Wirth explains, “a risk assessment may help in setting a standard designed to limit the probability that an individual will develop cancer after a lifetime of exposure to a particular chemical substance to no more than one chance in a million. By contrast, the choice of the one-in-a-million goal—as opposed to, say, zero or one-in-a-thousand—is one of public policy.” Id. at 833.

162 Alvin Weinberg has coined the term “trans-scientific” to describe questions like this, which can be asked of science but cannot be answered by science. Alvin Weinberg, Science and Transcience, 10 Minerva 209 (1972).

163 See generally Interpreting the Precautionary Principle (Timothy O’Riordan & James Cameron eds., 1994).

164 Majone, supra note 156, at 15; see also Sheila Jasanoff, Skinning Scientific Cats, New Statesman and Society, Feb. 26, 1993, at 29; Karen T. Litfin, Framing Science: Precautionary Discourse and the Ozone Treaties, 24 Millennium: Journal of International Studies 251 (1995).

165 See, e.g., Milton M. R. Freeman, Science and Trans-Science in the Whaling Debate, in Elephants and Whales: Resource for Whom? (Milton M. R. Freeman & Urs P. Kreuter eds., 1994) (criticizing the IWC moratorium on commercial whaling and the UN General Assembly prohibition on driftnet fishing for lack of a scientific basis); Aron, Burke & Freeman, supra note 51. Note that if the IWC moratorium were based on the moral belief that whaling is wrong, then science would be irrelevant. But, in order to be consistent with the requirements of the Whaling Convention, the claimed basis of the moratorium has been conservationist rather than preservationist.

166 Agreement on the Application of Sanitary and Phytosanitary Measures, Apr. 15,1994, arts. 2.2, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, Legal Instruments—Results of the Uruguay Round (1994) [hereinafter SPS Agreement]. Under the SPS Agreement, a state may deviate from international food safety standards only if there is a “scientific justification” or the state undertakes a risk assessment that takes into account “available scientific evidence.” Id., arts. 3.3, 5.2. Some environmentalists have questioned the SPS Agreement’s requirements regarding scientific evidence and justification. See, e.g., Wirth, supra note 161.

167 WTO Appellate Body, EC Measures Concerning Meat and Meat Products (Hormones), Jan. 16, 1998, WT/DS26/AB/R, para. 197.

168 Scharpf, supra note 122.

169 See Franck, supra note 3, at 26.

170 United Nations Convention on the Law of the Sea, opened far signature Dec. 10, 1982, Art. 121 (3), 1833 UNTS 3, reprinted in United Nations, Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index, UN Sales No. E.83.V.5 (1983) (entered into force Nov. 16,1994).

171 See Wirth, supra note 83.