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Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakeholders

Published online by Cambridge University Press:  20 January 2017

Eyal Benvenisti
Eyal Benvenisti*
Affiliation:
Faculty of Law, Tel Aviv University; Global Law Faculty, New York University School of Law
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Extract

We live in a shrinking world where interdependence between countries and communities is increasing. These changes also affect—as they should—the concept of sovereignty. In past decades the predominant conception of sovereignty was akin to owning a large estate separated from other properties by rivers or deserts. By contrast, today’s reality is more analogous to owning a small apartment in one densely packed high-rise that is home to two hundred separate families. The sense of interdependency is heightened when we recognize the absence of any alternative to this shared home, of any exit from this global high-rise. The privilege of bygone days of opting out, of retreating into splendid isolation, of adopting mercantilist policies or erecting iron curtains is no longer realistically available.

Type
Research Article
Information
American Journal of International Law , Volume 107 , Issue 2 , April 2013 , pp. 295 - 333
Copyright
Copyright © American Society of International Law 2013

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Footnotes

*

For many helpful comments I wish to thank Helmut Aust, Itzhak Benbaji, Gabriella Blum, Avinoam Cohen, Hanoch Dagan, Tsilly Dagan, Shai Dothan, George W. Downs, Olga Frishman, Chaim Gans, David M. Golove, Benedict Kingsbury, Mattias Kumm, Judy Lichtenberg, David Luban, Doreen Lustig, Georg Nolte, Naama Omri, Arie Rosen, Michel Rosenfeld, Richard B. Stewart, Ingo Venzke, Joseph H. H. Weiler, Moran Yahav, and the participants at workshops held at the Georgetown Law Center, the Institute of Advanced Studies at the Hebrew University of Jerusalem, the Humboldt University, NYU School of Law, and Tel Aviv University Faculty of Law. I thank Michal Avraham, Britta Schiebel, Yael Cohen, Alex Sorokin, and Reut Tondovsky for excellent research assistance. This research was supported by the Israel Science Foundation (grant no. 1515-10).

References

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2 Universal Declaration of Human Rights, Art. 21(3), GA Res. 217A(III) (Dec. 10, 1948) (“the will of the people shall be the basis of the authority of government”).

3 see Waldron, Jeremy, Are Sovereigns Entitled to the Benefit of the International Rule of Law?, 22 Eur. J. Int’l L. 315, 325 (2011)CrossRefGoogle Scholar (“states are recognized by [international law] as trustees for the people committed to their care”); see also Evan Fox-Decent & Criddle, Evan J., The Fiduciary Constitution of Human Rights, 15 Legal Theory 301 (2009)Google Scholar; Criddle, Evan J. & Fox-Decent, Evan, A Fiduciary Theory of Jus Cogens, 34 Yale. J. Int’l L. 331 (2009)Google Scholar (developing the concept of fiduciary relationship that exists between the state and persons subject to its powers, as the moral basis for recognizing human rights obligations).

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8 see Panel Report, China—Measures Related to the Exportation of Various Raw Materials, WT/DS394/R (adopted Feb. 22, 2012) (holding that by joining the WTO, China agreed to limit its sovereign rights over its natural resources and therefore could not restrict the export of certain raw materials). On the possibility that specific trade law obligations limit states’ discretion to restrict exports of minerals and raw materials in high global demand, see Bin, Gu, Mineral Export Restraints and Sustainable Development—Are Rare Earths Testing the WTO’s Loopholes?, 14 J. Int’l Econ. L. 765, 769–70 (2011)Google Scholar.

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10 As was demonstrated by the cold responses to the International Law Commission’s recent suggestions in this respect. see Eduardo Valencia-Ospina (Special Rapporteur), Fifth Report on the Protection of Persons in the Event of Disasters, paras. 16 (“Delegations endorsed the Commission’s view... that the concept of ‘responsibility to protect’...applied only to four specific crimes: genocide, war crimes, ethnic cleansing and crimes against humanity.”), 28 (“[A] number of States opposed the idea that the affected State was placed under a legal obligation to seek external assistance in cases where a disaster exceeded its national response capacity. In their view, the imposition of such a duty constituted infringement of the sovereignty of States as well as of international cooperation and solidarity and had nobasis in existing international law, customary law or State practice.”), UN Doc. A/CN.4/652 (Apr.9, 2012), at http://untreaty.un.org/ilc/documentation/english/a_cn4_652.pdf; cf. Institut de droit international, Resolution: Humanitarian Assistance, para. III(3) (Sept. 2, 2003) (“Whenever the affected State is unable to provide sufficient humanitarian assistance to the victims placed under its jurisdiction or de facto control, it shall seek assistance from competent international organizations and/or from third States.”).

11 For such a functional justification of sovereignty, see Sidgwick, Henry, The Elements of Politics 252 (4th ed. 1919Google Scholar) (“the main justification for the appropriation of territory to governments is that the prevention of mutual mischief among the human beings using it cannot otherwise be adequately secured”).

12 Eyal Benvenisti, Sharing Transboundary Resources (2002).

13 Kis, Jaános, The Unity of Mankind and the Plurality of States, in The Paradoxes of Unintended Conseuences 89, 89, 96 ([Ralf] Dahrendorf et al. eds., 2000). For discussion of this point, see infra notes 67–93 and accompanying textGoogle Scholar.

14 E.g., Daniele Archibugi, The Global Commonwealth of Citizens: Toward Cosmopolitan Democracy (2008); Goodin, Robert E., Enfranchising All Affected Interests, and Its Alternatives, 35 Phil. & Pub. Aff. 40 (2007)Google Scholar. On possible modalities for extending suffrage to aliens, see Rodríguez, Cristina M., Noncitizen Voting and the Extraconstitutional Construction of the Polity, 8 INT’L J. Const. L. 30 (2010)Google Scholar.

15 Some of the leading books include Charles Beitz, The Idea of Human Rights(2009);David Miller, National Responsibility and Global Justice(2008);Pogge, Thomas, World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms (2d ed. 2008)Google Scholar; Allen Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundation for International Law (2004).

16 The mutual sense of “solidarity” that presumably unites all individuals and must guide states was developed by Georges Scelle, 2 PreÉCis De Droit Des Gens 1 (1934). On solidarity in international law and politics, see Solidarity: A Structural Principle of International Law (Ruüdiger Wolfrum & Chie Kojima eds., 2010); Andrew Hurrell, On Global Order: Power, Values, and the Constitution of International Society 65–67 (2007); Wolfrum, Ruüdiger, Solidarity Amongst States: An Emerging Structural Principle of International Law, in Völkerrecht als Wertordnung 1087 (Pierre-Marie Dupuy et al. eds., 2006)Google Scholar.

17 Kumm, Mattias, The Cosmopolitan Turn in Constitutionalism: On the Relationship Between Constitutionalism in and Beyond the State, in Ruling the World: International Law, Global Governance, Constitutionalism (Dunoff, Jeffrey & Trachtman, Joel eds., 2009Google Scholar). For refined conceptions of sovereignty, see, for example, Samantha Besson, Sovereignty in Conflict, 8 Eur. Integration Online Papers (2004), available at http://eiop.or.at/eiop/pdf/2004-015.pdf; Sovereignty in Transition (Neil Walker ed., 2003).

18 Waldron,supra note3;Helmut Aust, Complicity and the Law of State Responsibility(2011)(see especially chapter 3 on “Complicity and the International Rule of Law”); Kingsbury, Benedict, International Law as Inter-public Law, in Nomos Xlix: Moral Universalism and Pluralism 167 (Richardson, Henry R. & Williams, Melissa S. eds., 2009Google Scholar); Dyzenhaus, David, The Rule of (Administrative) Law in International Law, 68 LAW & Contemp. Probs. 127 (2005)Google Scholar.

19 On global administrative law, see Kingsbury, Benedict, Krisch, Nico & Stewart, Richard B., The Emergence of Global Administrative Law, 68 Law & Contemp. Prob. 15(2005)Google Scholar; on the focus on international public authority, see Bogdandy, Armin von, Dann, Philipp & Goldmann, Matthias, Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance Activities, 9 German L. J. 1375 (2008)CrossRefGoogle Scholar; The Exercise of Public Authority by International Institutions:Advancing International Institutional Law(Armin von Bogdandy, Rüdiger Wolfrum, Jochen von Bernstorff, Philipp Dann & Matthias Goldmann eds., 2010).

20 Milanovic, supra note 6, at 106–17 (setting “universality” as the “baseline, which requires at least a rational justification for a wholesale denial of rights” by states).

21 see the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights (2011), at http://www.rtfn-watch.org/uploads/media/Maastricht_ETO_Principles__EN.pdf; Margote. Salomon, Global Responsibility for Human Rights:World Poverty and the Development of International Law (2007); see also infra notes 171–75 and accompanying text.

22 See supra note 9. The most obvious cases involve the prevention and suppression of crimes against humanity and grave breaches of the laws of war. see Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bos. & Herz. v. Serb. & Mont.), 2007 ICJ Rep. 43, paras. 396–407 (Feb. 26); Reisman, W. Michael, Acting Before Victims Become Victims: Preventing and Arresting Mass Murder, 40 Case W. Res. J. Int’l. L. 57 (2008)Google Scholar.

23 For criticism of this assumption see, for example, Mark Mazower, Governing the World 415–21 (2012).

24 The present article refers to the concept of sovereignty from the external perspective of international law rather from the internal perspective of constitutional law. For a parallel effort to outline a cosmopolitan paradigm of constitutionalism, see Kumm, supra note 17, at 258.

25 French Co. of Venezuelan R.R. (Fr. v. Venez.), 10 R.I.A.A. 285, 353 (Fr.-Venez. Mixed Cl. Comm’n 1905) (“[The Government’s] first duty was to itself. Its own preservation was paramount.”).

26 Sidgwick, supra note 11, at 309–10; Beitz, Charles R., Cosmopolitan Ideals and National Sentiment, 80 J. Phil. 591, 599–600 (1983)CrossRefGoogle Scholar.

27 See, e.g., Mosler, Hermann, The International Society as a Legal Community, 140 Recueil Des Cours 1, 17 (1974 IV)Google Scholar (discussing the psychological element required by the concept of the international legal community: a conviction shared by independent societies that they are partners and mutually bound by reciprocal rules). For Nicolas Politis, the “international community” was “an immense sum of fictions” better conceived as “composed of individuals grouped in national societies.” Politis, Nicolas, Le problème des limitations de la souveraineté et la théeorie de l’abus des droits dans les rapports internationaux, 6 Recueil Des Cours 5–6 (1925)Google Scholar (“Si l’État est une pure abstraction, la communauté internationale... est une abstraction plus grande encore: c’est une immense somme de fictions.... Elle est tout simplement composée d’individus groupés en sociétés nationales.”). Hurrell, supra note 16, at 65–66, refers to a solidary vision according to which states are “agents for the individuals, groups, and national communities that they are supposed to represent[,]... and agents or interpreters of some notion of an international public good” and of core norms. On the concept of the international community and its evolution, see Mehrdad Payandeh, Internationales Gemeinschaftsrecht (2010); Andreas L. Paulus, Die Internationale Gemeinschaft Im VÖlkerrecht (2001); Koskenniemi, Martti, “International Community” from Dante to Vattel, inVattel’s International Law From a XXI Century Perspective 49 (Chetail, Vincent & Haggenmacher, Peter eds., 2011)Google Scholar.

28 see Kumm, supra note 17, at 315. (“Within liberal democracies citizens are encouraged to conceive of themselves as free and equals and to reflect on the legitimate limits of their individual freedom to do as they please within a framework that takes other persons seriously as free and equal.”).

29 Article 1 of the International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS 171, provides:

(1) All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

(2) All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

See also id., Art. 47 (“Nothing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources.”); Nico Schrijver, Sovereignty Over Natural Resources: Balancing Rights and Duties (1997) (emphasizing not only the rights of the sovereign people but also its duties as recognized by international law).

30 As new states quickly realized even in the nineteenth century, sovereignty conferred much less autonomy and equality than they had anticipated. Lorca, Arnulf Becker, Sovereignty Beyond the West: The End of Classical Inter national Law, 13 J. Hist. Int’l L. 7 (2011)CrossRefGoogle Scholar.

31 Koskenniemi, Martti, What Use for Sovereignty Today?, 1 Asian J. Int’l L. 61, 70 (2011)CrossRefGoogle Scholar.

32 Joseph Raz, The Morality of Freedom 204 (1986) (“An autonomous person is part author of his own life.... A person is autonomous only if he had a variety of acceptable options to choose from, and his life became as it is through his choice of some of these options.”).

33 John Stewart Mill, Considerations on Representative Government 57 (1861).

34 Id., ch. VIII; see also Mill, John Stuart, On Liberty, inOn Liberty and Other Writings 59 (Collini, Stefan ed., 1989Google Scholar) (1859) (“He who lets the world, or his own portion of it, choose his plan of life for him, has no need of any other faculty than the ape-like one of imitation. He who chooses his plan for himself, employs all his faculties.”).

35 Mill, supra note 33, at 58.

36 Ronald Dworkin, Sovereign Virtue 202 (2000) (“[A]n adequate political process must strive, against formidable obstacles, to... insure a degree of political leverage for each citizen.”).

37 United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938); John Hart Ely, Democracy and Mistrust: A Theory of Judicial Review (1980).

38 On the information asymmetries that plague diffuse voters, see Anthony Downs, An Economic Theory of Democracy(1957), and the public choice literature—for example, Research Handbook on Public Choice and Public Law (Daniel A. Farber & Anne Joseph O’Connell eds., 2010), and Jerry L. Mashaw, Greed Chaos and Governance (1997). On the administrative procedures that overcome such asymmetries, see Steven P. Croley, Regulation and Public Interests: The Possibility of Good Regulatory Governance (2008).

39 Benvenisti, Eyal, Exit and Voice in the Age of Globalization, 98 Mich. L. Rev. 167 (1999)CrossRefGoogle Scholar (discussing how globalization increases the political leverage of the more mobile voters). On the interplay between voice, exit, and loyalty, see Albert O. Hirschman, Exit, Voice, And Loyalty: Responses to Decline in Firms, Organizations, and States (1970).

40 On the influences of foreign lobbies, see Schneiderman, David, Investing in Democracy? Political Process and International Investment Law, 60 U. TORONTO L.J. 909, 931–40 (2010)CrossRefGoogle Scholar (presenting and assessing evidence that foreign corporate actors are as effective as nationally based corporate actors and hence do not need special judicial protection).

41 Urbinati, Nadia & Warren, Mark E., The Concept of Representation in Contemporary Democratic Theory, 11 Ann. Rev. Pol. Sci. 387, 397 (2008)CrossRefGoogle Scholar; Cohen, Jean L., Constitutionalism Beyond the State: Myth or Necessity? (A Pluralist Approach), 2 Humanity 127 (2011)CrossRefGoogle Scholar; Fraser, Nancy, Reframing Justice in a Globalizing World, 36 New Left Rev. 1(2005)Google Scholar. For similar concerns about the “political space” in the context of local government, see Ford, Richard Thompson, The Boundaries of Race: Political Geography in Legal Analysis, 107 Harv. L. Rev. 1844 (1994)CrossRefGoogle Scholar.

42 There is a literature that attempts to determine the sphere of the affected stakeholders. See, e.g., Nancy Fraser, Scales of Justice:Reimagining Political Space in a Globalizing World 65–66(2009) (suggesting the “all- subjected principle,” which includes all those subjected to a structure of governance that sets the ground rules that govern their interaction); Goodin, supra note 14 (arguing for the “all possibly affected principle,” with “affected” including “anything that might possibly happen as a result of the decision”). On the definition of affected stakeholders adopted by the Aarhus Convention Compliance Committee, seeinfra text accompanying note 131.

43 In general, developed economies have similar preferences, whereas developing countries are more diverse and hence more vulnerable to divide-and-rule strategies. see Benvenisti, Eyal & Downs, George W., The Empire’s New Clothes: Political Economy and the Fragmentation of International Law, 60 Stan. L. Rev. 595 (2007)Google Scholar.

44 Kingsbury, supra note 18.

45 Benvenisti & Downs, supra note 43, at 609–11.

46 Dreher, Axel & Vaubel, Roland, Do IMF and IBRD Cause Moral Hazard and Political Business Cycles? Evidence from Panel Data, 15 Open Econ. Rev. 5 (2004)CrossRefGoogle Scholar.

47 Wouters, Jan, Marx, Axel & Hachez, Nicholas, Private Standards, Global Governance and Transatlantic Cooperation: The Case of Global Food Safety Governance, inPrivate Standards and Global Governance 244 (Marx, Axel, Maertens, Miet, Swinnen, Johan & Wouters, Jan eds., 2012)Google Scholar; Fabrizio Cafaggi, New Foundations of Transnational Private Regulation (Eur. Univ. Inst., Working Paper No. RSCAS 2010/53, 2010); Fabrizio Cafaggi, Private Regulation, Supply Chain and Contractual Networks: The Case of Food Safety (Eur. Univ. Inst., Working Paper No. RSCAS 2010/10, 2010).

48 Alec Van Vaerenbergh, Regulatory Features and Administrative Law Dimensions of the Olympic Movement’s Anti-doping Regime (Inst. for Int’l L. & Just. Working Paper No. 2005/11, 2005).

49 The Unanimous Declaration of the Thirteen United States of America (1776).

50 The Federalist No. 46 (James Madison).

51 MILL, supra note 33, at 303.

52 Economic analysis of the optimal size of nations also explores the negative aspects of heterogeneity within states. see Alberto Alesina & Enrico Spolaore, The Size of Nations (2003); Dahl, Robert A., A Democratic Dilemma:System Effectiveness Versus Citizen Participation, 109 POL.SCI.Q. 23(1994)CrossRefGoogle Scholar (discussing the inverse relation between the scale of the political institutions and the opportunities for the citizen to participate in and influence them).

53 see Mill, supra note 33, ch. XVI (“Of Nationality as Connected with Representative Government”), XVII (“Of Federal Representative Governments”), XVIII (“Of the Government of Dependencies by a Free State”).

54 Cf. Michael Walzer, Spheres of Justice 40 (1983) (presenting this question as requiring only internal debate within the excluding community).

55 Bruce A. Ackerman, Social Justice in the Liberal State 93 (1980); see also Seyla Benhabib, The Rights of Others: Aliens, Residents and Citizens (2004) (arguing that national communities have a moral duty to justify to strangers seeking access the reasons for excluding them).

56 Contemporary philosophers reach the same outcome by recognizing the primacy of individuals’ human rights over state sovereignty. Mathias Risse, On Global Justice 134–51 (2012); John Rawls, The Law of Peoples 79 (1999); Beitz, supra note 15, at 128–31; Miller, supra note 15; James Griffin, on Human Rights 31 (2009).

57 Universal Declaration of Human Rights, supra note 2, pmbl.

58 Id.

59 Raz, Joseph, Human Rights in the Emerging World Order, 1 Transnat’l Legal Theory 31, 42 (2010)CrossRefGoogle Scholar (“[H]uman rights, as they function in the world order, set limits to sovereignty.”); Institut de droit international, Resolution on the Protection of Human Rights and the Principle of Non-intervention in Internal Affairs of States (1989), Art. 1., at http://www.idi-iil.org/idiE/resolutionsE/1989_comp_03_en.PDF. (“Human rights are a direct expression of the dignity of the human person. The obligation of States to ensure their observance derives from the recognition of this dignity as proclaimed in the Charter of the United Nations and in the Universal Declaration of Human Rights. This international obligation, as expressed by the International Court of Justice, is ‘erga omnes;’ it is incumbent upon every State in relation to the international community as a whole, and every State has a legal interest in the protection of human rights. The obligation further implies a duty of solidarity among all States to ensure as rapidly as possible the effective protection of human rights throughout the world.”); Prosecutor v. Tadicć, Case No. IT-94-1-I, Defence Motion for Interlocutory Appeal on Jurisdiction, para. 97 (Oct. 2, 1995) (“[T]he impetuous development and propagation in the international community of human rights doctrines, particularly after the adoption of the Universal Declaration of Human Rights in 1948, has brought about significant changes in international law.... A State-sovereignty-oriented approach has been gradually supplanted by a human-being-oriented approach. Gradually the maxim of Roman law hominum causa omne jus constitutum est (all law is created for the benefit of human beings) has gained a firm foothold in the international community as well.”).

60 Beitz, supra note 15, at 137 (defining human rights as interests sufficiently important to be protected by the state, and arguing that when states fail to do so, the failure is a suitable object of international concern).

61 Emer de Vattel, 1 The Law of Nations or the Principles of Natural Law §231 (1758); see also id. §229. (“[N]ature, or rather... its Author,... has destined the earth for the habitation of mankind; and the introduction of property cannot have impaired the right which every man has to the use of such things as are absolutely necessary—a right which he brings with him into the world at the moment of his birth.”).

62 Tomuschat, Christian, International Law: Ensuring the Survival of Mankind on the Eve of a New Century: Gen eral Course on Public International Law, 281 Recueil Des Cours 9, 95 (1999)Google Scholar; see also Tomuschat, Christian,Obligations Arising for States Without or Against Their Will, 241 Recueil des Cours 195 (1993 IV)Google Scholar; Simma, Bruno, From Bilateralism to Community Interest in International Law, 250 Recueil des Cours 217 (1994 VI)Google Scholar.

63 René-jean Dupuy, La Communauté Internationale Entre Le Mythe Et L’histoire 169–70(1986).

64 C. Kaltenbron Von Stachau Kritik Des Völkerrechts 260–61 (1847), cited in Jochen von Bernstorff, The Public International Law Theory of Hans Kelsen 19 (2010). This is the monist view, carefully explored by Kelsen, Pure Theory of Law 214–15, 333–47 (Max Knight trans., 1967). See also Hans Kelsen, General Theory of Law and State 383–88(Anders Wedberg trans.,1949);Hans Kelsen, Principles of International Law 440–47 (1952); Jochen Von Bernstorff, The Public International Law Theory of Hans Kelsen (2010).

65 Island of Palmas (Neth./U.S.), 2 R.I.A.A. 829, 869 (Perm. Ct. Arb. 1928).

66 See Huber’s statement in British Claims in the Spanish Zone of Morocco (Spain v. U.K.), 2 R.I.A.A. 615, 641 (Perm. Ct. Arb. 1925) (Huber, sole arb.) (“La responsabilité est le corollaire nécessaire du droit. Tous droits d’ordre international ont pour conséquence une responsabilité international.” [Responsibility is the necessary corollary of rights. All international rights entail international responsibility.] (translation from Khan, Daniel-Erasmus, Max Huber as Arbitrator: The Palmas (Miangas) Case and Other Arbitrations, 18 EUR. J. Int’l L. 145, 156 (2007))CrossRefGoogle Scholar.

67 Sidgwick, supra note 11, at 255 (“I do not think that the right of any particular community to the exclusive enjoyment of the utilities derived from any portion of the earth’s surface can be admitted without limit or qualification, any more than the absolute exclusive right of a private landowner can be admitted.”).

68 Kis, supra note 13, at 111.

69 Hugo Grotius, de Jure Belli Ac Pacis [on the Law of War and Peace] (1625), reprinted in 2 Classics of International Law 186 (Francis W. Kelsey trans., James Brown Scott ed., 1925).

70 Mahnoush H. Arsanjani, International Regulation of Internal Resources 53–70 (1981) (noting the need to limit sovereignty due to increasing external demands on internal resources).

71 Grotius, supra note 69, at 193.

72 Id. at 196–7 (“[I]t is altogether possible that ownership was introduced with the reservation of such a use, which is of advantage to the one people, and involves no detriment to the other.”).

73 Koskenniemi, Martti, Empire and International Law: The Real Spanish Contribution, 61 U. Toronto L.J. 1, 14–16 (2011)CrossRefGoogle Scholar (emphasizing Vitoria’s conceptualization of the prince’s dominium over his commonwealth as deriving from the collective decision to delegate such authority to him).

74 Grotius, Hugo, Mare Liberum [The Freedom of the Seas] (Ralph von Deman Magoffin trans., Scott, James Brown ed., Oxford Univ. Press 1916) (1609)Google Scholar.

75 Grotius, supra note 69, at 196–97.

76 Supra note 61, §208.

77 Id. §203.

78 Id. §81 (“The cultivation of the soil deserves the attention of the government, not only on account of the invaluable advantages that flow from it, but from its being anobligation imposed by nature on mankind. The whole earth is destined to feed its inhabitants; but this it would be incapable of doing if it were uncultivated. Every nation is then obliged by the law of nature to cultivate the land that has fallen to its share[.]”); see also Immanuel Kant, Perpetual Peace: A Philosophical Essay (M. Campbell Smith trans., 1917) (1795), (referring to “the common right to the face of the earth, which belongs to human beings generally”); Georg Cavallar, The Rights of Strangers:Theories of International Hospitality, The Global Community and Political Justice Since Vitoria (2002).

79 Grotius, supra note 69, at 193.

80 “[O]riginally no one has more of a right to be at a given place on earth than anyone else.” Kant, Immanuel, Toward Perpetual Peace and other Writings on Politics, Peace, and History 82 (geld, Pauline Klein ed., 2006)Google Scholar.

81 Risse, supra note 56 (referring to “Common Ownership”).

82 Namely, the extension of sovereign rights to the continental shelves and the exclusive economic zones. UN Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 1833 UNTS 396, available at http://www.un.org/Depts/los/index.htm.

83 See id., Arts. 136 (“The Area and its resources are the common heritage of mankind.”), 137(2) (“All rights in the resources of the Area are vested in mankind as a whole....”); see also Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, opened for signature Jan. 27, 1967, 610 UNTS 205.On the concept, see Wolfrum, Rüdiger,Common Heritage of Mankind, in The Max Planck Encyclopedia of Public International Law (Wolfrum, Ruüdiger ed., online ed. 2009)Google Scholar.

84 See the judgment of the International Tribunal for the Law of the Sea in “Juno Trader” (St. Vincent v. Guinea Bissau), ITLOS Case No. 13 (Dec. 18, 2004) (expressing different opinions on the right of hearing of foreign crew before the domestic detaining institutions), at http://www.itlos.org/fileadmin/itlos/documents/cases/case_no_13/judgment_181204_eng.pdf).

85 see Hanoch Dagan, Property: Values and Institutions 57–75 (2011); Gregory S. Alexander, The Global Debate Over Constitutional Property:Lessons for American Takings Jurisprudence 97–147 (2006); Richard Barnes, Property Rights and Natural Resources (2009); Horwitz, Morton J., The History of the Private/Public Distinction, 130 U. PA. L. REV. 1423, 1426 (1982)CrossRefGoogle Scholar.

86 Cohen, Morris R., Property and Sovereignty, 13 Cornell L. Q. 8, 13 (1927)Google Scholar.

87 Id. at 26. For Locke, the assumption underlying and justifying the owner’s power of exclusion was that “there was still enough, and as good left” for others. John Locke, Second Treatise of Government, sec. 33 (C. B. Macpherson ed., 1980) (1690).

88 Article 14(2) of Germany’s Basic Law provides: “Property entails obligations. Its use shall also serve the public good.” The official translation is available at http://www.gesetze-im-internet.de/englisch_gg/index.html. On this limitation, see Dagan, Hanoch, The Social Responsibility of Ownership, 92 Cornell L. Rev. 1255 (2007)Google Scholar, Alex Ander, supra note 85, and Rudolf Dolzer, Property and Environment: The Social Obligation Inherent in Ownership (1976).

89 Absent prohibited exclusionary grounds such as race, religion, or situations of considerable need. Waldron, Jeremy, Property, Justification and Need, 6 Can. J.L. & Jurisprudence 185 (1993)CrossRefGoogle Scholar (on the necessity of developing a theory to justify the exclusion that inheres in private property).

90 see Dagan, supra note 85.

91 See Institut de droit international, Règles internationales sur l’admission et l’expulsion des eétrangers (1892); Institut de droit international,Principes recommandeés par l’institut, en vue d’un projet de convention en matière d’émigration (1897); see also SCELLE, supra note 16, at 79.

92 Cohen, supra note 86, at 26.

93 Michael Heller, The Gridlock Economy:How Too Much Ownership Wrecks Markets, Stops Innovation, and Costs Lives (2008); Heller, Michael, The Tragedy of the Anticommons: Property in the Transition from Marx to Markets, 111 Harv. L. Rev. 621 (1998)CrossRefGoogle Scholar.

94 The tension between this freedom and the obligations toward others is already present in Article 1 of the International Covenant on Civil and Political Rights, supra note 29, as the freedom is “without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and inter national law.”

95 Cf. Verdross, Alfred, Le fondement du droit international, 16 Recueil Des Cours 249, 314 (1927 I)Google Scholar (“sa souveraineté ne désigne que le fait [que l’État souverain] est subordonné àucune autre puissance qu’au droit de gens”); Buchanan, supra note 15, at 102 (“[P]opular sovereignty does not mean unlimited sovereignty. Instead, popular sovereignty means only that the people of a state are the ultimate source of political authority within the state and that government is chiefly to function as their agent.”); David P. Calleo, Rethinking Europe’s Future 141 (2001) (“national sovereignty means above all a legitimate government that has at its disposal the formal power to choose between available alternatives, and not to pursue an alternative dictated by a foreign power”) (cited with approval by the Czech Constitutional Court, judgment no. 2008/11/26 - Pl. ÚS 19/08: Treaty of Lisbon I, para. 107, available at http://www.concourt.cz/print/4217).

96 The Lisbon Treaty judgment, BVerfG June 30, 2009, 2 BvE 2/08, para. 223 (citing Ferdinand Von Martitz, 1 Internationale Rechtshilfe in Strafsachen 416 (Leipzig, H. Haessel 1888)), at http://www.bundesverfassungsgericht.de/entscheidungen/es20090630_2bve000208en.html.

97 Hills, Roderick M. Jr., Compared to What? Tiebout and the Comparative Merits of Congress and the States in Constitutional Federalism, in The Tiebout Model at Fifty: Essays in Public Economics in Honor of Wallace Oates (Fischel, William A. ed., 2006)Google Scholar.

98 see Case C-2/90, Comm’n v. Belg.,1992 ECR I-4471, para. 28 (“[W]aste, whether recyclable or not, is to be regarded as ‘goods’ the movement of which, in accordance with Article 30 of the Treaty, must in principle not be prevented.”). To justify imposing barriers to the movement of wastes, the state must demonstrate that its need to protect both health and the environment is sufficiently compelling to prevail over the objective of the free movement of goods. See generally notes 90–98 and accompanying text.

99 On preconditions for imposing additional obligations, see discussion infra part III.

100 RAWLS, supra note 56, at35 (noting that “just peoples are fully prepared to grant the very same proper respect and recognition to other peoples as equals” and that this respect should be “willingly accorded to other reasonable peoples”).

101 see Halberstam, Daniel, Of Power and Responsibility: The Political Morality of Federal Systems, 90 VA. L. REV. 731, 739–62 (2004)CrossRefGoogle Scholar.

102 BVerfG Dec. 1, 1954, 4 BVerfGE 115, 140–42 (translated by Halberstam, supra note 101, at 760) (concerning the setting of salaries of public officials). That court later declared that the Länder were under an obligation of “mutual accord, consideration and cooperation” when regulating cross-border broadcasting of private television, 73 BVerfG 118, 197 (Nov. 4, 1986), and when recognizing professional qualifications, BVerfG June 28, 2005, 1 BvR 1506/04.

103 Joined Cases 6 & 11/69, Comm’n v. France, 1969 ECR 523, para. 16, discussed in Halberstam, supra note 101, at 764; see also Macdonald, R. St. J., Solidarity in the Practice and Discourse of Public International Law, 8 PACE Int’l L. REV. 259, 297 (1996)Google Scholar (“Since the prosperity of all member states is an aim of the treaty, one state may not harm another without reason or justification. Member states may also be obliged to take positive action to harmonize their legislation and policies to conform with those of other member states.”).

104 Consolidated Version of the Treaty on European Union, Art. 4(3), 2008 O.J. (C 115) 13.

105 Id., Art. 24(3).

106 References to “solidarity” are spattered throughout the current EU treaties, including Article 24(3) of the Consolidated Version of the Treaty on European Union and Article 222, the “Solidarity Clause,” of the Consolidated Version of the Treaty on the Functioning of the European Union, 2008 O.J. (C 115) 47, which obligates member states to “act jointly in a spirit of solidarity if a Member State is the object of a terrorist attack or the victim of a natural or man-made disaster.”

107 Under this doctrine, federal courts may strike down state policies if “the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.” Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970). This so-called Pike test requires the court to review the validity of the state rule by balancing its costs to interstate commerce and its benefits, and only when the benefits outweigh the costs will the regulation be regarded as con sistent with the Dormant Commerce Clause. According to Laurence Tribe, the justification for this rigorous examination is not only to ensure economic efficiency through open interstate commerce, but also to “insure national solidarity,” as the democratic processes within states tend to give precedence to local interests. Tribe, Lawrence H., American Constitutional Law 1057 (3d ed. 2000Google Scholar) (discussing Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 522–23 (1935)); see also id. at 1051–52.

108 See, e.g., Case C/41/02, Comm’n v. Netherlands, 2004 ECR I-11375, para. 47; Case 302/86, Comm’n v. Denmark, 1988 ECR 4607, para. 10 (holding that the prohibition on selling drinks in non-reusable containers “contrary to the principle of proportionality in so far as the aim of the protection of the environment may be achieved by means less restrictive of intra-Community trade”); see also Morettini, Simona, Community Principles Affecting the Exercise of Discretionary Power by National Authorities in the Service Sector, in Global and European Constraints Upon National Right to Regulate: The Services Sector 106, 118 (Battini, Stefano & Vesperini, Giulio eds., 2008Google Scholar) (noting that the European Court of Justice gives greater deference to states in matters of public health and safety, areas considered “closely related to national sovereignty,” as opposed to other areas such as con sumer protection, an area of European Community competence with broad agreement as to the appropriate level of protection).

109 General Agreement on Tariffs and Trade, Oct. 30, 1947, Art. XX(j), TIAS No. 1700, 55 UNTS 194; see Mavroidis, Petrosc., Trade in goods:An analysis of international trade agreements 355 (2d ed. 2012)Google Scholar (noting that “this provision was considered relevant not only for the post-war period of short supply of various goods, but also for cases of natural disaster”).

110 Agreement on Agriculture, Art. 12, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, in World Trade Organization, The Results of The Uruguay Round of Multilateral Trade Negotiations: The Legal Texts 39 (1999), reprinted in 33 ILM 1167 (1994).

111 Id. The article exempts “any developing country Member, unless the measure is taken by a developing country Member which is a net-food exporter of the specific foodstuff concerned.”

112 International Law Commission, Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, Art. 10, UN Doc. A/56/10 (2001).

113 Christian Wolff, 2 Jus Gentium Methodo Scientifica Pertractatum §§156–89 (Joseph H. Drake trans., 1934) (1749).

114 Id. §157.

115 Id. Wolff presents the following example:

So when there is a scarcity of crops the nation which has an abundance of grain ought to sell grain to the other, which needs it. But if indeed it is to be feared that, if grain should be sold, it would suffer the same disaster, it is not bound to allow that the other procure grain for itself from its territory. But the decision as to whether it can be sold without risk, is to be left to that nation from which the other wishes to provide grain for itself, and the latter ought to abide by this decision.

116 Id. §188.

117 See further discussion infra part IV.

118 René-Jean Dupuy made the link between the changing demands on global resources and the changing nature of the international obligations already in 1986. See supra note 63 (“Evolution logique en un temps où la surpopulation et la menace de pénurie exigent la conservation de tous les biens de cette terre.”).

119 The ICJ found Iran responsible for “fail[ing] altogether” to protect the the United States’ premises and for its “total inaction.” United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ REP 3, paras. 63–64 (May 24). Similarly, it found Albania responsible for not notifying approaching British warships about the existence of a minefield in Albanian waters (Corfu Channel (UK & N. Ir. v. Alb.), 1949 ICJ Rep. 4, 22 (Apr. 9)).

120 For examples in the WTO context, see infra text accompanying notes 194–95.

121 For an example in the environmental context, see infra text accompanying notes 129–30.

122 See also infra text accompanying note 202.

123 Rawls, supra note 56, at 56 (“[T]he ideal of the public reason of free and equal peoples is realized, or satisfied, whenever chief executives and legislators, and other government officials, as well as candidates for public office, act from and follow the principles of the Law of Peoples and explain to other peoples their reasons for pursuing or revising a people’s foreign policy and affairs of state that involve other societies.”); see also RISSE, supra note 56, at 335 (discussing states’ obligation to explain how they have taken into account their global justice obligations).

124 In Corfu Channel, supra note 119, at 22, the ICJ characterized the duty to give warning as based, inter alia, on “elementary considerations of humanity.” See, e.g., Convention on the Law of the Non-navigational Uses of International Watercourses, Art. 12, GA Res. 51/229, annex (May 21, 1997) (“Notification concerning planned measures with possible adverse effects: Before a watercourse State implements or permits the implementation of planned measures which may have a significant adverse effect upon other watercourse States, it shall provide those States with timely notification thereof. Such notification shall be accompanied by available technical data and information, including the results of any environmental impact assessment, in order to enable the notified States to evaluate the possible effects of the planned measures.”); see also Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, supra note 112, Art. 8 (“Notification and information: 1. If the assessment referred to in article 7 indicates a risk of causing significant transboundary harm, the State of origin shall provide the State likely to be affected with timely notification of the risk and the assessment and shall transmit to it the available technical and all other relevant information on which the assessment is based.”).

125 Appellate Body Report, United States—Import Prohibition of Certain Shrimp and Shrimp Products, W T/DS58/AB/R (adopted Nov. 6, 1998).

126 Appellate Body Report, European Communities—Trade Description of Sardines, WT/DS231/AB/R (adopted Oct. 23, 2002).

127 “Juno Trader,” supra note 84.

128 A body set up in 2004 to promote and improve compliance with the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, June 25, 1998, UN Doc. ECE/CEP/43, 38 ILM 517 (1999), available at http://www.unece.org/fileadmin/DAM/env/pp/documents/cep43e.pdf.see UN Economic&Social Council, Decision I/7, Review of Compliance, UN Doc.ECE/MP.PP/2/Add.8 (Apr. 2, 2004), at http://www.unece.org/fileadmin/DAM/env/pp/documents/mop1/ece.mp.pp.2.add.8.e.pdf.

129 Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, supra note 128, Art. 2(5).

130 UN Economic & Social Council, Findings and Recommendations with Regard to Compliance by Ukraine with the Obligations Under the Aarhus Convention in the Case of Bystre Deep-Water Navigation Canal Construction, UN Doc. ECE/MP.PP/C.1/2005/2/Add.3 (Mar. 14, 2005), at http://www.unece.org/fileadmin/DAM/env/documents/2005/pp/c.1/ece.mp.pp.c1.2005.2.Add.3.e.pdf.

131 UN Economic Commission for Europe, Task Force on Public Participation in Decision-Making, Draft List of Recommendations on Public Participation §2.1(e) (Oct. 25–26, 2010), at http://www.unece.org/fileadmin/DAM/env/pp/ppdm/PPDM_recommendations.pdf.

132 Id. at 112–20; Aaron Kirschenbaum, Equity in Jewish Law 185–97 (1991).

133 Kirschenbaum, supra note 132, at 187–91.

134 Hanoch Dagan, Unjust Enrichment: A Study of Private Law and Public Values (1997).

135 Grotius, supra note 74.

136 Id. at 38; see also Grotius, supra note 69, at 196.

137 For expansive readings of the doctrine, applying it to the reasonableness of the sovereign’s policies, see Hersch Lauterpacht, The Function of Law in the International Community 298 (1933), Helmut Philippaust, Complicity and the law of state responsibility 69–81(2011),Byers, Michael, Abuse of Rights: An Old Principle, A New Age, 47 McGill L. J. 389 (2002)Google Scholar, and Taylor, G. D. S., The Content of the Rule Against Abuse of Rights in International Law, 1972–73 Brit. Y.B. Int’l L. 323Google Scholar.

138 Lauterpacht, supra note 137, at 287. Similarly, Politis, supra note 27, at 86–93, regarded this concept as a general principle of international law that should inform its progressive development.

139 Unless there are reliable institutions that could review this discretion. On this question see infra part IV.

140 Corfu Channel, supra note 119. The Court referred to functional aspects: the channel’s “geographical situation as connecting two parts of the high seas[,]... its being used for international navigation,” and its “special importance to Greece by reason of the traffic to and from the port of Corfu.” Id. at 28–29.

141 Corfu Channel, supra note 119.

142 Article 125 asserts the unequivocal right of access to the sea (although transit is recognized only as a freedom; transit states have the right to take all necessary measures to protect their legitimate interests; and the terms and modalities for the exercise of the freedom of transit are left for agreement). This article of the Convention is mostly considered not to be a mere pactum de contrahendo. See, e.g., Robin R. Churchill & A. Vaughan Lowe, The Law of The Sea 327 (1988).

143 Lauterpacht, Elihu, Freedom of Transit in International Law, 44 Transactions Grotius Soc’Y 313, 321 (1958)Google Scholar; Stephen C. Vasciannie, Land-Locked and Geographically Disadvantaged Statesinthe International Law of the Sea 216–18 (1990); Sinjela, A. Mpazi, Freedom of Transit and the Right of Access for Land-Locked States: The Evolution of Principle and Law, 12 Ga. J. Int’l & Comp. L. 31, 40 (1982)Google Scholar.

144 Lauterpacht, Supra note 143, at 332; See also Marks, Susan, Transit Rights To Lesotho, 16 Commonwealth L. Bull. 329, 342 (1990)CrossRefGoogle Scholar (“There is perhaps nothing surprising...in a law which requires states to allow free transit across their territory where that transit is necessary to enable another state to gain access to the sea.”).

145 On the similarity between such analysis and administrative law adjudication, see Taylor, supra note 137.

146 Right of Passage over Indian Territory (Port. v. India), 1960 ICJ REP. 6, 45 (Apr. 12).

147 Iron Rhine Railway (Belg. v. Neth.), 27 R.I.A.A. 35 (2005).

148 (Costa Rica v. Nicar.), 2009 ICJ REP. 212 (July 13).

149 Id., para 79. Following the same logic, the Court found that the treaty allowed for “certain Costa Rican official vessels which in specific situations are used solely for the purpose of providing that population with what it needs in order to meet the necessities of daily life.” Id., para. 84.

150 Id., para 141.

151 Lac Lanoux Arbitration (Fr. v. Spain), 24 ILR 101 (1957).

152 Id. at 128.

153 Phillipe Sands, Principle of International Environmental Law 348–49(1995);Patricia W. Birnie, Allane. Boyle & Catherine Redgwell, International Law & The environment 102–03 (2009); see also Benvenisti, supra note 12, at 209–10.

154 WTO Ministerial Conference, Declaration on the Trips Agreement and Public Health, Art. 7, WT/MIN(01)/DEC/2 (Nov. 20, 2001), at http://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_trips_e.htm.

155 Id., Art. 6.

156 WTO General Council, Decision on Implementation of Paragraph 6 of the Doha Declarationon the TRIPS Agreement and Public Health, WT/L/540 (Sept. 1, 2003), at http://www.wto.org/english/tratop_e/trips_e/implem_para6_e.htm. On that decision see Matthews, Duncan, WTO Decision on Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health:A Solution to the Access to Essential Medicines Problem?, 7 J. Int’l Econ. L. 73 (2004)CrossRefGoogle Scholar.

157 Decision on Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health, supra note 156, para. 2(a)(ii).

158 Regulation (EC) 816/2006 of the European Parliament and of the Council of 17 May 2006 on Compulsory Licensing of Patents Relating to the Manufacture of Pharmaceutical Products for Export to Countries with Public Health Problems, 2006 O.J. (L 157) 1, 1.

159 Id., pmbl., para. 13.

160 As described on the official French governmental website France Diplomatie, the tax is a response to a situation “call[ing] for vigorous political action.” Melina Gazsi, UNITAID: The International Solidarity Levy on Air Tickets, at http://www.diplomatie.gouv.fr/en/france-priorities/development-and-humanitarian/institutions-and-issues-of/innovative-ways-to-fund/unitaid-the-international.

161 Id.

162 Id. (emphasis added).

163 On this dispute see Lakoff, Andrew, Two Regimes of Global Health, 1 Humanity 59 (2010)CrossRefGoogle Scholar, available at http://muse.jhu.edu/journals/hum/summary/v001/1.1.lakoff.html; Sedyaningsih, Endang R., Isfandari, S., Soendoro, T. & Supari, S. F., Towards Mutual Trust, Transparency and Equity in Virus Sharing Mechanism: The Avian Influenza Case of Indonesia, 37 Annals Acad. Med. Singapore 482 (2008)Google ScholarPubMed.

164 see World Health Organization Assembly, Pandemic Influenza Preparedness: Sharing of Influenza Viruses and Access to Vaccines and Other Benefits (2011), at http://apps.who.int/gb/ebwha/pdf_files/WHA64/A64_57Draft-en.pdf.

165 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bos. & Herz. v. Serb. & Mont.), 2007 ICJ Rep. 40, paras. 396–407 (Feb. 26); Reisman, supra note 22.

166 See supra note9.On the contents of this obligation, see, for example, Responsibility to protect—From Principle to Practice(Julia Hoffman & André Nollkaemper eds., 2012); Anne Orford, International Authority and the Responsibility to Protect (2011).

167 See supra note 10 and accompanying text.

168 Convention Relating to the Status of Refugees, supra note 5.

169 As interpreted under Article 3 of the European Convention for Protection of Human Rights and Fundamental Freedoms, ETS No. 5, Nov. 4, 1950.

170 Katrina Wyman,Sinking States, in Property in Land and other Resources(Daniel H.Cole & Elinor Ostrom eds., 2012); Tally Kritzman-Amir, Socio-Economic Refugees (2008) (unpublished Ph.D. dissertation, Tel Aviv Univ.) (on file with the author).

171 International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 UNTS 3.

172 Id., Art. 11(2)(b).

173 Committee on Economic, Social and Cultural Rights, General Comment No. 12, The Right to Adequate Food (Art. 11), UN Doc. E/C.12/1999/5 (May 12, 1999); see also Committee on Economic, Social and Cultural Rights, General Comment No. 3, The Nature of State Parties Obligations (Art. 2, para. 1), UN Doc. E/1991/23 (Dec. 14, 1990). The General Comments are available at http://www2.ohchr.org/english/bodies/cescr/comments.htm.

174 Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights, supra note 21.

175 see Agreement on Agriculture, supra note 110.

176 Coase, Ronald H., The Problem of Social Cost, 3 J.L. & Econ. 1 (1960)CrossRefGoogle Scholar.

177 Faye, Michael L., McArthur, John W., Sachs, Jeffrey D. & Snow, Thomas, The Challenges Facing Landlocked Developing Countries, 5 J. Hum. Dev. 31, 45 (2004)CrossRefGoogle Scholar; Marks, supra note 144; Sinjela, A. Mpaszi, Freedom of Transit and the Right of Access for Land-Locked States: The Evolution of Principle and Law, 12 Ga. J. Int’l & Comp. L. 31 (1982)Google Scholar. The recurring tensions between India and Nepal in this context are especially telling. see Surya P. Subedi, Dynamics of Foreign Policy and Law: A Study of Indo-Nepal Relations 69 (2005); Glassner, Martin Ira, Transit Problems of Three Asian Land-Locked Countries: Afghanistan, Nepal and Laos 1, 21 (1983)Google Scholar; Sarup, Amrit, Transit Trade of Land-Locked Nepal, 21 Int’l & Comp. L.Q. 287, 293 (1972)CrossRefGoogle Scholar.

178 Gerhard Hafner, Land-Locked States, para. 12, in The Max Planck Encyclopedia of Public International Law, supra note 83.

179 Kenneth Waltz, Man, The State and War: A Theoretical Analysis 198 (1959).

180 Joseph M. Grieco, Cooperation Among Nations: Europe, America, and Non-Tariff Barri Ers to Trade 39 (1990).

181 This point is implied by Krasner, Stephen D., Global Communications and National Power, Life on the Pareto Frontier, 43 World Pol. 336 (1991)CrossRefGoogle Scholar.

182 On the role of norms in facilitating cooperation in the management of shared resources, see Benvenisti, supra note 12, at 44–46, and Gary D. Libecap, Contracting for Property Rights (1989).

183 Carl Schmitt, The Concept of the Political 54 (George Schwab trans., 2007). Indeed, Vattel,supra note 61, §209, invoked humanity to justify colonialism, arguing that “the people of Europe, too closely pent up at home, finding land of which the savages stood in no particular need, and of which they made no actual and constant use, were lawfully entitled to take possession of it, and settle it with colonies.”

184 Kevin Davis & Benedict Kingsbury, Obligation Overload: Adjusting the Obligations of Fragile or Failed States (2010) (draft paper, on file with author).

185 Sundhya Pahuja, Decolonising International Law 138–44 (2011).

186 Martti Koskennoemi, The Gentle Civilizer of Nations 177 (2001).

187 Deng Yushan, Bring Some Sense of Global Responsibility to Brinkmanship-Obsessed Washington, Xinhua, July 28, 2011, available at http://news.xinhuanet.com/english2010/indepth/2011-07/28/c_131015312.htm.

188 For the argument that international tribunals use the malleable doctrine of customary international law for this purpose, see Benvenisti, Eyal, Customary International Law as a Judicial Tool for Promoting Efficiency, in The Impact of International Law On International Cooperation 85 (Benvenisti, Eyal & Hirsch, Moshe eds., 2004)CrossRefGoogle Scholar, and see infra notes 203–06.

189 In determining the extent of a person’s legal responsibility for the harm she caused, lawyers and economists measure the loss she inflicted on society, including on herself. see Cooter, Robert D. & Porat, Ariel, Does Risk to One self Increase the Care Owed to Others? Law and Economics in Conflict, 29 J. Legal Stud. 19 (2000)CrossRefGoogle Scholar (explaining why the Learned Hand rule, which is used by lawyers to identify negligence in torts, must also include the harm that the actor’s negligent act or omission caused to herself and not only the harm she inflicted on others); see also Posner, Richard, Economic Analysis of Law 167–71 (7th ed., 2007)Google Scholar (in agreement).

190 Convention Concerning the Protection of the World Cultural and Natural Heritage, Nov. 23, 1972, 1037 UNTS 151.

191 The committee keeps a “World Heritage List” of sites and also an “In Danger” list. Based on information received from sources “other than the State Party concerned,” the committee can list or delist sites as it deems appropriate, even without the consent of the state in whose territory the site is found. Despite the limited set of sanctions available to it, the committee has proved surprisingly effective. Mainly through shaming, it managed to convince Russia to protect Lake Baikal (which cost Russia an additional billion dollars to reroute the East Siberia–Pacific Ocean oil pipeline), and it contributed to resolving a dispute over mining that could have threatened Yellow stone Park. see Intergovernmental Committee for the Protection of the World Cultural and Natural Heritage, Operational Guidelines for the Implementation of the World Heritage Convention(1997),at http://whc.unesco.org/archive/out/guide97.htm; Battini, Stefano,The Procedural Side of Legal Globalization: The Case of the World Heritage Convention, 9 Int’l J. Const. L. 340 (2011)Google Scholar.

192 Sykes, Alan O., Domestic Regulation, Sovereignty, and Scientific Evidence Requirements: A Pessimistic View, 3 Chi. J. Int’l L. 353, 368 (2002)Google Scholar; see also John H. Jackson, World Trade and the Law of Gatt 788 (1969) (“The perpetual puzzle...of international economic institutions is...to give measured scope for legitimate national policy goals while preventing use of these goals to promote particular interests at the expense of the greater common welfare.”). On this question see also Howse, Robert, Adjudicative Legitimacy and Treaty Interpretation in International Trade Law, in The Eu, The WTO and The Nafta: Towards a Common Law of InterNational trade? 35 (Weiler, Joseph H. H. ed., 2000)Google Scholar; Croley, Steven P. & Jackson, John H., WTO Dispute Procedures, Standard of Review and Deference to National Governments, 90 AJIL 193 (1996)CrossRefGoogle Scholar.

193 Appellate Body Report, Korea—Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161/AB/R (adopted Dec. 11, 2000).

194 Id., para. 164 (the “determination of... ‘necessary’... involves in every case a process of weighing and balancing a series of factors which prominently include the contribution made by the compliance measure to the enforcement of the law or regulation at issue, the importance of the common interests or values protected by that law or regulation, and the accompanying impact of the law or regulation on imports or exports”). Even more telling is its subsequent report, United States—Measures Affecting the Cross-border Supply of Gambling and Betting Services, WT/DS285/AB/R (adopted April 7, 2005); in paragraph 306 the Appellate Body identifies the factors that deter mine “necessary” to include “the restrictive impact of the measure on international commerce.”

195 Mavroidis, supra note 109, at 331–35; see also Ming Du, Michael, Autonomy in Setting Appropriate Level of Protection Under the WTO Law: Rhetoric or Reality?, 13 J. Int’l Econ. L. 1077, 1100 (2010)CrossRefGoogle Scholar (“[T]he regulatory value protected by the disputed measure weighs heavily in the AB’s judgment.If the value at stake is high, e.g. human health and safety or protection of the environment, the AB tends to respect the Member’s judgment and to consider necessary very strict enforcement aimed at zero risk, even if that means a very heavy burden on imports.”); Robert Howse & Elisabeth Tuerk, The WTO Impact on Internal Regulations—a Case Study of the Canada-EC Asbestos Dispute, in The Eu and The WTO: Legal and Constitutional issues 283, 315 (Gréinne de Búrca & Joanne Scott eds., 2001) (“How far a member should be expected to go in exhausting all the regulatory alternatives to find the least trade-restrictive alternative is logically related to the kind of risk it is dealing with. Where what is at stake is a well-established risk to human life itself..., a member may be expected to act rapidly....”).

196 For criticism of a judicially enforced balancing test suggested by Article 25 of the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission on the Work of Its Fifty-Third Session, UN GAOR, 56th Sess., Supp. No. 10, at 43, UN Doc. A/56/10 (2001) (which invites balancing the interests of the state against the “serious[] impair[ment of] an essential interest” of the other state), see Sloane, Robert D., On the Use and Abuse of Necessity in the Law of State Responsibility, 106 AJIL 447 (2012)CrossRefGoogle Scholar, Special Issue, Necessity Across International Law, 2010 Neth. Y.B. Int’l L. 3, Michael Waibel, Sovereign Defaults Before International Courts and Tribunals (2011) (concluding, at 316, that ICSID tribunals are “unable to effectively deal with sovereign debt crises”), and Boed, Roman, State of Necessity as a Justification for Internationally Wrongful Conduct, 3 Yale Hum. Rts. & Dev. L. J. 1 (2000)Google Scholar.

197 Hersch Lauterpacht, The Development of International Law by the International Court (1958); Benvenisti & Downs, supra note 43. There are different assessments of the relative success and durability of this function. see Benedict Kingsbury, International Courts: Uneven Judicialization, in Global Order (James Crawford & Martti Koskenniemi eds., 2010) (“there are large gulfs between contemporary political theorizing about global justice and what actually is done in most international tribunals”); Shany, Yuval, No Longer a Weak Department of Power? Reflections on the Emergence of a New International Judiciary, 20 Eur. J. Int’l L. 73, 81 (2009)CrossRefGoogle Scholar (noting that international tribunals have assumed the functions of norm advancement and regime maintenance).

198 see Armin von Bogdandy & Ingo Venzke, On the Functions of International Courts: An Appraisal in Light of Their Burgeoning Public Authority 18–23 (2012) (Amsterdam Law School Legal Studies Research Paper No. 2012-69, Amsterdam Center for International Law No. 2012-10, and Postnational Rulemaking Working Paper No. 2012-5, 2012), at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2084079. For recent articulation, by an ICJ judge, of the role of international law as the “law for humankind,” see Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand) ((Cambodia v. Thai.), Provisional Measures, Sep. Op. Cançado Trindade, J., paras. 114–15 (Int’l Ct. Justice July 18, 2011) (footnote omitted) (“Beyond the States, the ultimate titulaires of the right to the safeguard and preservation of their cultural and spiritual heritage are the collectivities of human beings concerned, or else humankind as a whole.... [W]e are here in the domain of superior human values, the protection of which is not unknown to the law of nations, although not sufficiently worked upon in international case-law and doctrine to date. It is beyond doubt that the States, as promoters of the common good, are under the duty of cooperation between themselves to that end of the safeguard and preservation of the cultural and spiritual heritage.”)

199 Despite the discrete nature of their activity, these ad hoc panels, whose task is to interpret and apply bilateral obligations under bilateral treaties, strive to converge on common principles and to develop collectively a systemic vision of “investment law.” As recently stated in one arbitral award (among many), every panel must adopt a global vision: “A case-specific mandate is not license to ignore systemic implications. To the contrary, it arguably makes it all the more important that each tribunal renders its case-specific decision with sensitivity to the position of future tribunals and an awareness of other systemic implications.” Glamis Gold, Ltd. v. United States, para. 6 (NAFTA Ch. 11 Arb.Trib. June 8, 2009).

200 Southern Bluefin Tuna, Provisional Measures (N.Z. v. Japan; Austl v. Japan,), ITLOS case Nos. 3 & 4, paras. 70, 80 (Aug. 27, 1999) (“70. Considering that the conservation of the living resources of the sea is an element in the protection and preservation of the marine environment;...80. Considering that, although the Tribunal cannot conclusively assess the scientific evidence presented by the parties, it finds that measures should be taken as a matter of urgency to preserve the rights of the parties and to avert further deterioration of the southern bluefin tuna stock[.]”). Benzing, Markus, Community Interests in the Procedure of International Courts and Tribunals, 5 Law & Prac. Int’l Cts. & Tribunals 369, 382 (2006)Google Scholar; see also Mensah, Thomas A., Provisional Measures in the International Tribunal for the Law of the Sea (ITLOS), 62 ZaÖrv 43, 53 (2002)Google Scholar (both pointing out that International Tribunal for the Law of the Sea considered this aspect of the case on its own initiative, even though it had not been raised by the parties).

201 Benvenisti, supra note 12, at 44–46; Benvenisti, supra note 188; Caflisch, Lucius, Règles générales du droit des cours d’eau internationaux, 219 Recueil Des Cours 9, 32–33, 109–10 (1989 VII)Google Scholar.

202 Appellate Body Report, European Communities—Conditions for the Granting of Tariff Preferences to Developing Countries, WT/DS246/AB/R, para. 106 (adopted Apr. 20, 2004).

203 In the famous Eichmann judgment, the Israeli Supreme Court justified the assertion of universal jurisdiction to prosecute and adjudicate crimes against humanity by reference to the role of individual states as “the ‘guardian[s] of international law and agents for enforcement.” CrimA 336/61 Eichmann v. Attorney General of Israel [1962] PD 16(3) 2033, 2066, translated in 36 ILR 277 (1962) (referring to Morris Greenspan, The Modern Law of land Warfare 503 (1959));see also Regina v. Bow St. Metro. Stipendiary Magistrate,ex parte Pinochet Ugarte (No. 3), [2000] 1 A.C. 147 (H.L.).

204 In the United States such claims are based on the Alien Tort Statute, 28 U.S.C. §1350. see Filartiga v. PenaIrala, 630 F.2d 876 (2d Cir.1980) (“A state or nation has a legitimate interest in the orderly resolution of disputes among those within its borders, and... it is an expression of comity to give effect to the laws of the state where the wrong occurred[,]” subject to “universally accepted norms of the international law of human rights”) (doctrine upheld in part in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004)). In other countries the same outcome can be grounded in domestic choice of law rules: The Hague district court established civil jurisdiction over Shell Nigeria, the daughter company of Royal Dutch Shell PLC (headquartered in the Netherlands) and found it liable for negligence under Nigerian law. see [Dutch judiciary] press release, Decision on Oil Spills in Nigeria (Jan. 30, 2013), at http://www.rechtspraak.nl/Organisatie/Rechtbanken/Den-Haag/Nieuws/Pages/DutchjudgementsonliabilityShell.aspx. The House of Lords reviewed the legality of the expropriation of Kuwaiti assets by Iraq during the military occupation of Kuwait. Kuwait Airways Corp. v. Iraqi Airways Co. (Nos. 4 & 5), [2002] UKHL 19, [2002] 2 AC 883, para. 145 (Lord Hope of Craighead, referring to threats emanating from global terrorism) (“[T]he judiciary cannot close their eyes to the need for a concerted, international response to... threats to the rule of law in ademocratic society. Their primary role must always be to uphold human rights and civil liberties. But the maintenance of the rule of law is also an important social interest.”).

205 National courts “must search, untrammelled by notions of its national legal culture, for the true autonomous and international meaning of the [1951 Geneva Convention Relating to the Status of Refugees].” Regina v. Sec’y of State for the Home Dep’t, ex parte Adan, [2001] 1 All E.R. 593, 617 (per Hobhouse, L.J.). For more on this judicial cooperation, see Benvenisti, Eyal, Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts, 102 AJIL 241 (2008)CrossRefGoogle Scholar.

206 see Benzing, supra note 200, at 385–86, 395–404.

207 These and the rest of the questions for further study identified in this article are the subject of a GlobalTrust research project undertaken at Tel Aviv Faculty of Law under a European Research Council Advanced Grant (http://www.GlobalTrust.tau.ac.il).