More than two centuries have elapsed since the signatories of the U.S. Declara^ tion of Independence sought to manifest two radical propositions. The first is that governments, instituted to secure the “unalienable rights” of their citizens, derive “their just powers from the consent of the governed.” We may call this the “democratic entitlement.” The second proposition, perhaps less noted by commentators, is that a nation earns “separate and equal station” in the community of states by demonstrating “a decent respect to the opinions of mankind.” The authors of the Declaration apparently believed that the legitimacy of the new Confederation of American States was not made evident solely by the transfer of power from Britain but also needed to be acknowledged by “mankind.” This we may perceive as a prescient glimpse of the legitimating power of the community of nations.

Tucked away in the fairyland Duchy of Luxembourg and blessed, until recently, with benign neglect by the powers that be and the mass media, the Court of Justice of the European Communities has fashioned a constitutional framework for a federal-type structure in Europe. From its inception a mere quarter of a century ago, the Court has construed the European Community Treaties in a constitutional mode rather than employing the traditional international law methodology. Proceeding from its fragile jurisdictional base, the Court has arrogated to itself the ultimate authority to draw the line between Community law and national law. Moreover, it has established and obtained acceptance of the broad principle of direct integration of Community law into the national legal orders of the member states and of the supremacy of Community law within its limited but expanding area of competence over any conflicting national law.

In May 2001, at a diplomatic conference in Stockholm, Sweden, the international community adopted and opened for signature the new Stockholm Convention on Persistent Organic Pollutants (Stockholm Convention). Over ninety nations signed the convention at the conference, and one country—Canada—ratified it. The Stockholm Convention is designed to protect human health and the environment from persistent organic pollutants (POPs)—chemical substances that are persistent and toxic, that bioaccumulate in fatty tissue (achieving higher concentrations as they move up a particular food chain), and that are prone to long-range environmental transport. Among other things, the convention contains obligations to eliminate or severely restrict the production and use of a number of POP pesticides and industrial chemicals, to take strong measures to prevent or control the release of certain POPs that are formed as by-products of various combustion activities, and to ensure the safe and proper disposal or destruction of such substances when they become wastes.

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.

1. The purpose of this article is to examine, even at the risk of magnifying them somewhat for clarity, the potential dangers that some recent developments usually studied from other angles—the jus cogens theory, the distinction between international crimes and international delicts, the concept of a rule of general international law, the notion of obligation erga omnes—bring in their wake for the future of international law as a normative system intended to perform certain functions.

The development of feminist jurisprudence in recent years has made a rich and fruitful contribution to legal theory. Few areas of domestic law have avoided the scrutiny of feminist writers, who have exposed the gender bias of apparently neutral systems of rules. A central feature of many western theories about law is that the law is an autonomous entity, distinct from the society it regulates. A legal system is regarded as different from a political or economic system, for example, because it operates on the basis of abstract rationality, and is thus universally applicable and capable of achieving neutrality and objectivity. These attributes are held to give the law its special authority. More radical theories have challenged this abstract rationalism, arguing that legal analysis cannot be separated from the political, economic, historical and cultural context in which people live. Some theorists argue that the law functions as a system of beliefs that make social, political and economic inequalities appear natural. Feminist jurisprudence builds on certain aspects of this critical strain in legal thought. It is much more focused and concrete, however, and derives its theoretical force from immediate experience of the role of the legal system in creating and perpetuating the unequal position of women.

Know your limits. This familiar adage is not an inspirational rallying cry or a recipe for bold action. It serves better as the motto for the tortoise than the hare. But, after many false starts over the past twenty years, states were well advised to heed it when negotiating the Paris Agreement. While it is still far too early to say whether the Agreement will be a success, its comparatively modest approach provides a firmer foundation on which to build than its more ambitious predecessor, the Kyoto Protocol.

In December 1997, in Kyoto, Japan, over 160 parties to the 1992 United Nations Framework Convention on Climate Change (FCCC or Convention) adopted the Kyoto Protocol, which, for the first time, establishes legally binding limits for industrialized countries on emissions of carbon dioxide and other “greenhouse gases.” The Kyoto Protocol (the Protocol) is quite complex, reflecting the complicated political, economic, scientific and legal issues raised by human-induced climate change. The result of more than two years of preparatory discussions and eleven days of often-intense negotiations in Kyoto, the Protocol will be opened for signature in March 1998 for one year, although countries may accede to it after that period. It will enter into force ninety days after at least fifty-five parties to the FCCC, encompassing FCCC Annex I parties that accounted in total for at least 55 percent of the total emissions for 1990 of carbon dioxide (CO2) of Annex I parties, have ratified, accepted, approved or acceded to the Protocol.

The centennial of the Hague Convention (No. II; No. IV in the 1907 version) on the Laws and Customs of War on Land and the fiftieth anniversary of the four Geneva Conventions for the Protection of Victims of War of August 12, 1949, present an opportunity to reflect on the direction in which the law of war, or international humanitarian law, has been evolving. This essay focuses on the humanization of that law, a process driven to a large extent by human rights and the principles of humanity. As the subject is vast, major issues must inevitably be left out of my discussion, including the impact of the prohibitions on unnecessary suffering and indiscriminate warfare on the regulation of weapons, the proscription of antipersonnel land mines and blinding laser weapons, and the progression of international humanitarian law from largely protecting noncombatants to protecting combatants as well.

Over the last fifteen years, the problem of human trafficking has become a focus of government and advocacy agendas worldwide. Increasingly referred to as “modern-day slavery,” the phenomenon has prompted rapid proliferation of international, regional, and national anti-trafficking laws, and inspired states to devote enormous financial and bureaucratic resources to its eradication. It has also spawned an industry of nonprofits that have elevated the “abolition” of trafficking into a pressing moral campaign, which anyone can join with the click of a mouse. Scholars have also jumped into the fray, calling on states to marshal human rights law, tax law, trade law, tort law, public health law, labor law, and even military might to combat this apparently growing international crime and human rights violation.

One way of thinking about cultural property—i.e., objects of artistic, archaeological, ethnological or historical interest—is as components of a common human culture, whatever their places of origin or present location, independent of property rights or national jurisdiction. That is the attitude embodied in the Convention for the Protection of Cultural Property in the Event of Armed Conflict of May 14, 1954 (hereinafter “Hague 1954”), which culminates a development in the international law of war that began in the mid-19th century.

The state-based system of global governance has struggled for more than a generation to adjust to the expanding reach and growing influence of transnational corporations. The United Nations first attempted to establish binding international rules to govern the activities of transnationals in the 1970s. That endeavor was initiated by developing countries as part of a broader regulatory program with redistributive aims known as the New International Economic Order. Human rights did not feature in this initiative. The Soviet bloc supported it while most industrialized countries were opposed. Negotiations ground to a halt after more than a decade, though they were not formally abandoned until 1992.

Although still in the early stages of their institutional life, die International Criminal Tribunals for the former Yugoslavia (ICTY) and for Rwanda (ICTR) provide a unique empirical basis for evaluating the impact of international criminaljustice on postconflict peace building. The pursuit of justice may be dismissed as a well-intentioned, but futile, ritualistic attempt to restore equilibrium to a moral universe overwhelmed by evil. Moreover, measuring the capacity of punishment to prevent criminal conduct is an elusive undertaking, especially when a society is gripped by widespread habitual violence and an inverted morality has elevated otherwise “deviant” crimes to the highest expression of group loyalty. Yet an appreciation of die determinate causes of such large-scale violence demonstrates that stigmatization of criminal conduct may have far-reaching consequences, promoting postconflict reconciliation and changing die broader rules of international relations and legitimacy.

The surprising thing about international law is that nations ever obey its strictures or carry out its mandates. This observation is made not to register optimism that the half-empty glass is also half full, but to draw attention to a pregnant phenomenon: that most states observe systemic rules much of the time in their relations with other states. That they should do so is much more interesting than, say, the fact that most citizens usually obey their nation’s laws, because the international system is organized in a voluntarist fashion, supported by so little coercive authority. This unenforced rule system can obligate states to profess, if not always to manifest, a significant level of day-to-day compliance even, at times, when that is not in their short-term self-interest. The element of paradox attracts our attention and challenges us to investigate it, perhaps in the hope of discovering a theory that can illuminate more generally the occurrence of voluntary normative compliance and even yield a prescription for enhancing aspects of world order.

Over a very short period, the few decades since the early 1970s, “indigenous peoples” has been transformed from a prosaic description without much significance in international law and politics, into a concept with considerable power as a basis for group mobilization, international standard setting, transnational networks and programmatic activity of intergovernmental and nongovernmental organizations.

International agreements exhibit a wide range of variation. Many are negotiated as legally binding agreements, while others are expressly nonbinding. Some contain substantive obligations requiring deep, demanding policy changes; others demand little or simply ratify the status quo ante. Some specify institutions to monitor and sanction noncompliance; others create no review structure at all. Thus, there is considerable variation both in the form of international agreements—in their legal bindingness, as well as in the range of structural provisions for monitoring and addressing noncompliance—and in the substantive obligations they impose. This variation in form and substance raises several fundamental questions about the role of international agreements in world politics.’ Why do states differentiate commitments into those which are legally binding and those which are not? What relationship exists between legality and the substantive provisions of an accord, and between legality and structural provisions for monitoring behavior? What is the relationship between substantive obligations and monitoring provisions? Finally, what difference, if any, do these choices make as to the effectiveness of an agreement?