The current issue (vol. 100, no. 2) of the American Journal of International Law, just published, presents striking evidence of the astonishing successes as well as dismal failures of those inter-governmental institutions that so inspired those present at the creation of the Society, such as Elihu Root and James Brown Scott.  Although the latest AJIL issue covers the usual motley of topics, it emphasizes, both implicitly and explicitly, the degree to which the 20th century’s “move to institutions” (as evocatively described by David Kennedy “The Move to Institutions,” 8 Cardozo L. Rev. 841 (1987)) has changed international law.  The three centennial essays included in the issue (and not merely my own which is focused, entirely, on international organizations (or IOs)) are, to my (undoubtedly biased) mind, the child of IOs (click here for the centennial essays. Adobe Acrobat required.).  As my essay in that issue emphasizes, it is hard to imagine Dinah Shelton’s topic (the rise of normative hierarchies in international law) or Steve Charnovitz’s (the growing impact of non-governmental organizations), without considering the role of IOs as aiders and abetters to both phenomena.  IOs are owed their share of credit (or blame) for inspiring the notion of an “international community” against which “jus cogens” or “erga omnes” obligations are measured and are largely responsible for promulgating such hierarchical concepts; they are also at least partly to blame for the clout of NGOs, including as formal observers to IOs or participants in amici submissions to institutionalized dispute settlers.

An implicit focus on IOs and their increasingly diverse normative output continues in that issue’s current developments section, which is devoted to the latest developments in that (admittedly slow-moving) engine of progressive development-cum-codification, the International Law Commission (ILC)(click for more from AJIL ), its section on international decisions (surveying the latest caselaw produced by ICSID arbitrators and the even more institutionalized European Courts of Human Justice and Human Rights respectively), and its section on U.S. contemporary practice.  The last includes numerous national actions in reaction to, or in anticipation of, developments  before international institutions, including the ICJ (and post-Avena developments in U.S. courts)(click for more from AJIL), the Security Council (and the United States Government’s  endorsement of a “responsibility to protect”)(click for more from AJIL), the UN Committee on Torture (and U.S. legislation passed shortly before the U.S. was scheduled to appear before that committee)(click for more from AJIL), the International Criminal Court (and U.S. efforts to lessen its confrontational stance with respect to it)(click for more from AJIL), the IAEA (and efforts to curb Iran’s nuclear program)(click for more from AJIL), and a number of other organizations (including the World Health Organization’s and the UN Food and Agriculture Organization’s initiatives to curb Asian flu)(click for more from AJIL).

Even realists inclined to doubt the reality and/or effectiveness of IO-inspired law should accord some grudging respect to IOs since after all their normative ripples appear to be having effects on the powerful.  Indeed, if this issue’s current developments are any indication, even the nascent ICC would appear to be prompting the most powerful nation on earth to change its tune.

And the current AJIL issue also suggests that IOs’ hold on international legal scholarship continues unabated.  Certainly this is suggested by the book review section.  The reviews consider books on Presidential war powers (click for review of The Powers of  War and Peace: The Constitution and Foreign Affairs After 9/11), dispute settlement in the Law of the Sea Convention (click for review of Dispute Settlement in the UN Convention on the Law of the Sea), developments in the Inter-American Court of Human Rights (click for review of The Practice and Procedure of the Inter-American Court of Human Rights), counter-terrorism rules (click for review of Enforcing International Law Norms Against Terrorism), and jus coges and erga omnes obligations (click for review of The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations).  All of these works reflect scholarship or scholarly trends that have been indelibly affected by (or react to) international organizations – even when, as is the case of John Yoo’s book on foreign affairs powers after 9/11, their authors seem hostile to the institutionalized multilateralism that IOs represent.

100 AJIL No. 2, in its entirety, and not merely my essay in it, suggests the degree to which the idealist, messianic warriors for multilateralism -- who created the Society and post-WWII IOs -- succeeded in changing international law’s sources, its content, its law-making actors, and its tools for increasingly institutionalized or socialized enforcement.

 But this issue of the AJIL also highlights the growing dissatisfactions associated with IOs’ considerable normative output.  These include the growing doubts that even the most fundamental norms rhetorically (and repeatedly) affirmed by IOs or by institutionalized international tribunals will ever be taken seriously by anyone (or more accurately any state) – as is suggested by Dinah Shelton’s comments regarding the  plight of jus cogens; the backlash generated by the efforts of NGOs (whose efforts often involve IO forums that give them voice) – as discussed by Steve Charnovitz;  the perceived threats to “sovereignty” posed by some of the emerging caselaw produced by institutionalized dispute settlers – as is suggested by Knox’s survey of NAFTA caselaw (click for more from AJIL); the risk of fractured international law posed by those same dispute settlers – as is suggested both by Knox and by Patricia Egli’s summary of the Leon Van Parys case  (click for more from AJIL); or the apparent lack of a “check” (judicial or otherwise) on some of the most potent forms of IO “legislation” produced to date – as is suggested by Frank Hoffmeister’s account of the Bosphorus Hava Yollari Turizm decision by the European Court of Human Rights (rejecting a human rights challenge to EC regulations implementing Security Council decisions)(click for more from AJIL).  In addition, as is suggested by some of the developments surveyed in the contemporary practice section, the product of some IOs – such as ICJ decisions – are posing special problems for the forms of governance associated with federal states such as the United States which purport to reserve some issues to their component states notwithstanding globalization’s institutionalization (click for more from AJIL).

And the growing concerns about the normative impacts of IOs are not limited to the United States.  It is not merely those who, as Jeb Rubenfeld describes us, are historically attached to notions of nationalistic “popular sovereignty” or democratic self-rule who are worried about whether IOs are acting responsibly (click here for The Two World Orders by Jed Rubenfeld).  Such concerns obviously extend beyond the United States when these drive an agenda item for the International Law Commission, a body which responds to the edicts of the UN General Assembly and whose membership is broadly representative.

As Michael Matheson’s survey of the 57th session of ILC indicates, that body is at work attempting to adapt its previous effort delineating articles on state responsibility to IOs.  As Matheson indicates, to date, that effort involves a pretty faithful tracking of the wording and structure of the ILC’s prior efforts so that, for example, the proposed articles “confirm that an international organization, like a state, may be responsible for aiding, assisting, or directing and controlling another entity in the commission of an internationally wrongful act . . . .”

I personally think that the ILC’s effort is misconceived.  While I sympathize with the general proposition that states should not be free to do collectively what they are barred from doing individually, a global ‘delete and replace’ substituting “international organization” for the word “state” in the articles of state responsibility does not seem like a viable way to proceed.  Even assuming that a Security Council, World Bank, IMF, or WTO decision materially contributes to an international wrongful act, I suspect that the members of these respective organizations did not intend to have their organization be found “responsible” or even that they contemplated what this means.  Assuming that lack of Security Council supervision contributed to the theft of significant property belonging to Iraq during the oil-for-food scandal, what does it mean to say that the “UN” is responsible for this? To what extent do we want the “organization” to be held responsible for the actions of its many distinct agents, from members of the UN secretariat to the experts they employ? How should the conceptions of IO responsibility being discussed by the ILC be understood relative to the complex existing regimes on IO privileges and immunities, which for the most part do not contain a “commercial” exception for either IOs or their agents? Or do the ILC’s proposed articles presume that those immunities should remain operative and only IOs’ members ought to be found derivatively responsible for the acts of their organizational agents?  If so, are states really ready to treat IO acts as the acts of their “agents” or to pierce the “IO” veil as we sometimes do with corporations?  And while we understand the remedies that state responsibility entails, do all comparable remedies apply with respect to IO responsibility?  Are all UN members derivatively responsible for paying for consequential damages since all pay for UN dues or are only the members of the IO organ most directly responsible for damage, for example, the Security Council in the oil-for-food case be liable?  (Or, in the last instance, should only the veto-wielding members be held to account?)

While it is possible that the members of the ILC have solved all of these questions, I suspect that states have not.  I also suspect that making IOs and the norms that they produce, interpret, influence, or enforce more accountable to both the national and international rule of law will involve more complicated efforts than tinkering with the rules of state responsibility.  As my centennial essay in that 100 AJIL No. 2 states, the perceived democratic, principle-agent, administrative/bureaucratic, and ideological flaws in IO law-making are complex.  Remedying these will require multiple, no less complex efforts on different levels of governance.  The most likely ways to make our new IO law-makers more accountable may involve less positivistic and more practical actions, including those canvassed by a study group of the ILA (click for Accountability of International Organizations, Final Report of Comm. On Accountability of International Organizations, 2004), including enhanced parliamentary involvement in IO processes, establishment of forms of ombudsmen, and insistence on greater transparency and access.