1
Why State Consent Still Matters—Non-State
Actors, Treaties, and the Changing Sources
of International Law
By
Duncan B. Hollis*
INTRODUCTION
Following the end of the Cold War and the subsequent proliferation of international
rules, processes, and organizations, some international law scholars
argued that there was no longer a need to debate the existence of international
law.1 It was, as Thomas Franck coined it, a “post-ontological era,” where international
lawyers could turn their attention away from debating “whether international
law is law” and focus instead on evaluating the law’s substantive content.2
New work soon followed, exploring patterns of compliance with international
law, methods for predicting its effectiveness, and standards for evaluating its
fairness.3
Despite the important contributions of such scholarship, recent developments
suggest that the pronouncement of a post-ontological age was premature.
Issues as diverse as terrorism, hegemony, and globalization all demonstrate that
the international lawyer cannot yet dispense with the question of what makes
international law “law” and where one looks to find it.
Realpolitik, and with it the ghosts of Austin and Bentham, have returned to
prominence in certain circles since September 11, 2001, and the U.S. invasion of
Iraq. Many proponents of this approach question the obligatory nature of longrecognized
legal regimes ranging from the U.N. Charter to the Geneva Conventions.4
These proponents argue for the primacy of national security interests—
*
Assistant Professor of Law, Temple University Beasley School of Law, and, from 1998-
2004, Attorney Adviser, Office of the Legal Adviser, U.S. Department of State. The author wishes
to thank Evan Bloom, Jacob Cogan, Craig Green, and Sean Murphy for valuable comments on earlier
drafts.
1. See, e.g., Jose Alvarez, Foreword: Why Nations Behave, 19 MICH. J. INT’L L. 303, 303
(1998) (“[A]n ever increasing number of scholars are going beyond well-worn debates about
whether international law is truly ‘law’ to undertake ‘post -ontological’ inquiries appropriate to the
new ‘maturity’ of the international legal system.”); Anne-Marie Slaughter Burley, International Law
and International Relations Theory: A Dual Agenda, 87 AM. J.INT’L L. 205, 205 (1993).
2. THOMAS FRANCK , FAIRNESS IN INTERNATIONAL LAW AND INSTITUTIONS 6 (1995).
3. See, e.g., id.; Andrew T. Guzman, A Compliance-Based Theory of International Law,90
CAL. L. REV. 1823 (2002); Harold Hongju Koh, Why Do Nations Obey International Law? , 106
YALEL.J. 2599 (1997).
4. See, e.g., Michael Glennon, The Fog of Law: Self-Defense, Inherence, and Incoherence in
Article 51 of the United Nations Charter, 25 HARV. J.L. & PUB. POL’Y 539, 540 (2002)
(“[I]nternational ‘rules’ concerning the use of force are no longer regarded as obligatory by states.”).
2 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 23:1
particularly, efforts to combat terrorism and the proliferation of weapons of
mass destruction—even if pursuing those interests requires discarding or dismissing
existing regimes of international law.5
Others view the dramatic demonstration of U.S. power in Iraq differently,
suggesting that it raises the specter of international hegemonic law. Such a system
would replace the rule of equally sovereign states creating law through consent
and practice with a system whereby a single actor, the hegemon, dictates
new rules of law.6 While advocates of realpolitik would likely dismiss international
law as such, opponents and proponents of a system of international hegemonic
law instead analyze whether U.S. predominance is somehow transforming
the existing international legal order into something new and quite different.
A separate strain of scholarship has raised the question of globalization’s
impact on state sovereignty.7 Unlike the consolidation of power which is central
to the realpolitik and hegemonic law perspectives, globalization arguably functions
as a decentralizing influence that diminishes the importance of sovereign
states as other actors—international organizations, multinational corporations,
non-governmental organizations (NGOs), and even individuals—exercise increased
influence in the creation, implementation, and enforcement of international
law.8
Responding to each of these issues may well involve post-ontological
analyses, such as investigating patterns of compliance with international humanitarian
law and U.N. Security Council resolutions or assessing the fairness
In early 2002, the White House Counsel described the Geneva Convention provisions on treatment
of prisoners of war as “quaint” and “obsolete” in light of the new war on terrorism. See Draft
Memorandum from White House Counsel Alberto Gonzales, to President George W. Bush 2 (Jan.
25, 2002), available at http://msnbc.com/modules/newsweek/pdf/gonzales_memo.pdf (last visited
Jan. 27, 2005).
5. Although not addressing the implications for ontological analysis specifically, Thomas
Franck has recognized the more general implications of these develo pments. See Thomas Franck,
What Happens Now? The United Nations After Iraq, 97 AM. J. INT’L L. 607, 610 (2003) (describing
certain U.S. policymakers’ “plan to disable all supranational institutions and the constraints of international
law on national sovereignty. If, as now seems all too possible, this campaign succeeds . . .
what sort of world order will emerge from the ruins of the Charter system?”).
6. See, e.g., Detlev F. Vagts, Hegemonic International Law, 95 AM. J. INT’L L. 843 (2001);
Jose Alvarez, Hegemonic International Law Revisited, 97 AM. J. INT’L L. 873 (2003).
7. See, e.g., STEPHEN D. KRASNER, SOVEREIGNTY: ORGANIZED HYPOCRISY 3 (1999). Although
subject to no strict definition, globalization encompasses notions of increasing transboundary
movements, whether of capital, goods, people, pollution, diseases, or ideas. Id.at 12.
8. See, e.g., Duncan B. Hollis, Private Actors in Public International Law: Amicus Curiae
and the Case for the Retention of State Sovereignty, 25 B.C. INT’L & COMP. L. REV. 235, 235-236
(2002) (discussing the debate over globalization’s impact on sovereignty in terms of the decrease in
subjects excluded from international regulation and the increase in non-state actors’ participation);
Phillip Trimble, Globalization, International Institutions and the Erosion of National Sovereignty,
95 MICH. L. REV. 1944, 1946 (1997) (citing “globalism” as a “visible challenge[] to national sovereignty”);
Jack Goldsmith, Sovereignty, International Relations Theory, and International Law, 52
STAN. L. REV. 959, 959 (2000) (acknowledging that some perceive “[n]ational sovereignty . . . to
have diminished significantly in the past half century as a result of economic globalization” and
other manifestations of globalization).
2005] WHY STATE CONSENT STILL MATTERS 3
of non-state actor participation in international fora. However, these issues cannot
be addressed solely from that perspective. Scholars and practitioners alike
must also engage thes e issues on the so-called ontological level. Asking
whether international humanitarian law or U.N. Charter provisions on the use of
force continue to have legal effect in an age of terrorism requires attention to the
most basic question of what it means to qualify something as “international
law.” Similarly, asking whether international hegemonic law reflects the future
of the international legal order or whether globalization means the inevitable decline
of state sovereignty requires analysis of whether the very foundations of
the international legal order are themselves undergoing change. These issues
have traditionally been the subject of the doctrine of sources of international
law. As such, whether or not one views this as an era that values postontological
analysis, new scholarship is needed to determine whether the
sources of international law are changing in fundamental ways.
Of course, the difficulty in taking up the subject of sources (and perhaps
one reason some sought to declare victory and move past it) is that scholars and
practitioners have never been able to agree on a definitive list of what sources
contain the rules of international law, let alone what method, or methods, provide
the basis of obligation for such rules.9 It is, therefore, difficult to evaluate
whether recent developments reflect changes to the sources of international law.
Indeed, competing views on the operation of international law have long deadlocked
sources doctrine.
The stalemate over sources doctrine does not mean, however, that all efforts
to evaluate change in the international legal order are doomed to fail. By
shifting the frame of reference, new opportunities may emerge to break the
deadlock. This article seeks to engender such a shift by proposing that sources
doctrine incorporate considerations of authority. It argues that international
lawyers must go beyond the traditional lines of inquiry, such as what makes international
law binding (the basis of obligation) and where one finds it (the
sources of international law), to ask who is making the law. In doing so, a new
perspective is presented for evaluating whether and how the international legal
order is changing. Investigating whether the actors making international law
have changed may, in turn, offer new insights into the longstanding inquiries regarding
the basis of obligation and sources of international law themselves.
9. See, e.g., PETERMALANCZUK, AKEHURST’S MODERN INTRODUCTION TOINTERNATIONAL
LAW 35 (7th ed. 1997) (“The changes in international society since 1945 have led to basic disputes
on the sources of international law and it must be noted at the outset that they have become an area
of considerable theoretical controversy.”). The situation seems little altered from 1981 when Sir
Robert Jennings wrote, “I doubt whether anybody is going to dissent from the proposition that there
has never been a time when there has been so much confusion and doubt about the tests of the validity—or
sources—of international law, than the present.” Robert Y. Jennings, What is International
Law and How Do We Tell It When We See It? , SCHWEITZERISCHES JAHRBUCH FÜR INTERNATIONALES
RECHT 37, 60 (1981), reprinted in SOURCES OF INTERNATIONAL LAW 28 (Martti
Koskenniemi ed., 2000).
4 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 23:1
This article begins with a brief review of the longstanding debates over the
sources of international law. It then explains why the issue of authority should
form a key component of any study of sources and provides an overview of the
ways in which the authority to make, interpret, and apply treaties has changed.
Specifically, this article evaluates whether the role non-state actors play in making,
applying, and interpreting treaties has changed who is truly authorized to
form treaties. It finds that, although non-state actors have a proven capacity to
make treaties and participate in their application and implementation, the treaty
paradigm generally continues to be pre-conditioned on the presence of state consent.
The article argues that evidence of state consent to non-state actor participation
in treaties demo nstrates a need for sources scholarship to focus as much
attention on changes in who makes international law as has previously been devoted
to the issue of changes in where one looks to find the law.
Finally, the article concludes that a sources doctrine that considers existing
distributions of legal authority may serve as a useful tool for assessing the impact
of recent developments such as globalization and hegemony on the international
legal order. Such an authority-based approach ultimately provides a less
dynamic picture of international law than these developments might suggest,
one where state consent still matters. At the same time, it provides a baseline
for future analysis; a way to compare whether and how states could give the
power to create and apply international law to other entities; and a way to assess
whether a single actor’s influence has grown so large as to effectively usurp the
role of other actors in making and applying the law. In looking at what states
are consenting to, moreover, an authority-based approach offers a perspective on
international law as it is practiced—a perspective that may serve to counterbalance
the views of those who argue against the law’s very existence.
II.
THE STALEMATE OVER SOURCES
The debate over the sources of international law still engages age-old arguments
between positivists dedicated to law created through the consent of
states and naturalists supporting international law as divined from moral dictates
existing independent of state consent.10 Other candidates have arisen over the
10. See, e.g., MALCOLM N. SHAW, INTERNATIONAL LAW 40-44 (4th ed. 1997); ALFRED P.
RUBIN, ETHICS AND AUTHORITY IN INTERNATIONAL LAW 6 (1997). This debate is complicated as
proponents of both positivist and naturalist positions adopt widely divergent methodologies. Thus,
positivism has advocates who focus on demonstrating international law as the reflection of state consent,
others who focus on divorcing international law from its ethical elements, and those who defend
the law’s normativity and prescriptive force. See Bruno Simma & Andreas L. Paulus, The Responsibility
of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View, 93 AM.
J. INT’L L. 302, 303-304, 307 (1999); S.S. “Lotus” (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, at 18
(Sept. 17) (“[T]he rules of law binding upon States . . . emanate from their own free will.”); HANS
KELSEN, PRINCIPLES OF INTERNATIONAL LAW 4 (R. Tucker ed., 2d ed. 1967) (distinguishing legal
orders from moral and social orders); Prosper Weil, Towards Relative Normativity in International
2005] WHY STATE CONSENT STILL MATTERS 5
years, each identified as the source of obligation in international law.11 At the
same time, whole new methodologies have emerged such as the New Haven
School, International Law and Economics, International Law and International
Relations, and the New Stream movement, each of which suggests new ways to
look at or argue about international law.12
Most international lawyers, however, rely on the articulation of sources in
Article 38 of the Statute of the International Court of Justice—treaties, custom,
and recognized general principles—to identify what legal rules to apply in a particular
case.13 Similarly, most international lawyers continue to explain how
these rules constitute law by referring to the notion that “the general consent of
states creates rules of general application.”14
Law?, 77 AM. J. INT’L L. 413, 421 (1983) (arguing for uniformity of treatment of the rules of international
law). Similarly, naturalist scholars derive their version of international law from sources
ranging from divine dictates to more secular bases. See, e.g., Alfred Verdross & Heribert F. Koeck,
Natural Law: The Tradition of Universal Reason and Authority, in THE STRUCTURE AND PROCESS
OF INTERNATIONAL LAW: ESSAYS IN LEGALPHILOSOPHY DOCTRINE ANDTHEORY 31 (R. St.J. Macdonald
& Douglas Johnston eds., 1983) (noting that Christian defenders of natural law, including
Grotius, relied on the Bible to demonstrate legal norms); FERNANDO R. TESÓN , A PHILOSOPHY OF
INTERNATIONAL LAW 2 (1998) (articulating a Kantian conception of international law based on certain
“morally legitimate” principles).
11. Writing in 1971, Oscar Schachter identified 11 other possible bases of international legal
obligation in addition to state consent and natural law, and one can say with some certainty that the
candidate rolls have only expanded in the ensuing thirty years. Oscar Schachter, Towards a Theory
of International Obligation, in THE EFFECTIVENESS OF INTERNATIONAL DECISIONS 9-10 (Stephen
Schwebel ed., 1971) (citing consent of states; customary practice; a sense of “‘rightness’—the juridical
conscience”; natural law or natural reason; social necessity; the will of the international
community; “direct (or ‘stigmatic’) intuition”; common purposes of the participants; effectiveness;
sanctions; “‘sy stemic’ goals”; shared expectations as to authority; and rules of recognition).
12. See generally Symposium, Method in International Law, 93 AM. J. INT’L L. 291 (1999).
For more comprehensive treatments of these methods, see MYRES S. MCDOUGAL & W. MICHAEL
REISMAN, INTERNATIONAL LAW ESSAYS: A SUPPLEMENT TO INTERNATIONAL LAW IN
CONTEMPORARY PERSPECTIVE (1981) (representing the New Haven School); Jeffrey L. Dunoff &
Joel P. Trachtman, Economic Analysis of International Law, 24 YALE J. INT’L L. 1 (1999) (representing
the International Law and Economics approach); Anne-Marie Slaughter et al., International
Law and International Relations Theory: A New Generation of Interdisciplinary Scholarship , 92
AM. J. INT’L L. 367 (1998) (representing the International Law and International Relations outlook);
MARTTI KOSKENNIEMI, FROM APOLOGY TO UTOPIA: THE STRUCTURE OF INTERNATIONAL LEGAL
ARGUMENT (Lakimielsliiton Kustannus ed., 1989) (representing the New Stream perspective).
13. Article 38(1) of the ICJ Statute provides that “[t]he Court, whose function is to decide in
accordance with international law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly recognized
by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most
highly qualified publicists of the various nations, as subsidiary means for the determin ation
of rules of law.”
Statute of the International Court of Justice, June 26, 1945, art. 38(1), 59 Stat. 1031, 1060 [herein after
ICJ Statute].
14. See IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 4 (6th ed. 1995);
Louis Henkin, General Course on Public International Law, in IV RECUEIL DES COURS 46 (1989)
(“Stat e consent is the foundation of international law. The principle that law is binding on a State
6 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 23:1
A. Disputing the Traditional Sources
Challenges abound to Article 38’s identification of treaties, custom, and
recognized general principles as an exhaustive list of the sources of international
law. Sir Gerald Fitzmaurice noted the difficulty of referring to treaties as a
source of law because they only bind the parties to the treaty.15 Sir Robert
Jennings considered it “an open question whether [Article 38] is now itself a
sufficient guide to the content of modern international law,” proposing other
sources such as the results of treaty negotiating conferences as well as the decisions
and recommendations of international organizations.16 Still others question
Article 38’s failure to acknowledge the so-called “relative normativity” of
international law, most apparent through doctrines such as jus cogens, obligations
erga omnes, and the whole generation of soft-law principles.17
Nor has the concept that state consent serves as the exclusive source of obligation
in international law escaped censure. Scholars question what gives legal
force to the consent of states expressed through treaties. Do treaties bind states
because they consent to the treaty’s binding effect? Such a construction leads to
an infinite logical regression of states consenting to consent. Or, does a treaty’s
legal force derive from a non-consensual basis such as natural law? If so, consent
cannot be the only basis for creating international law.18
Notwithstanding such criticism of Article 38 and state consent, most international
lawyers still rely on them as international law’s operating framework.
Martti Koskenniemi opines that we do so “by default” because there is “such a
wide variety of theories about the point of international law, and such profound
disagreement over them . . . that no such theory can plausibly be used as a reference
point for reaching acceptable resolutions in normative problems.”19 Indeed,
past efforts to identify alternatives to state consent, much like the efforts to
only by its consent remains an axiom of the political system, an implication of State autonomy.”).
15. Gerald G. Fitzmaurice, Some Problems Regarding the Formal Sources of International
Law, in SYMBOLAE VERZIJL 153, 157 (1958).
16. Jennings, supra note 9, at 59, 61, 70-73, 80-83, reprinted in SOURCES OF INTERNATIONALLAW,
supra note9, at 27, 29, 38-41, 48-51.
17. See Jose E. Alvarez, Positivism Regained, Nihilism Postponed, 15 MICH. J. INT’L L. 747,
747-48 (1994) (reviewing G.M. DANILENKO, LAW-MAKING IN THE INTERNATIONAL COMMUNITY
(1993), and critiquing his attempt to rescue the positivist doctrine of international law, specifically
Article 38, from the threats posed by relative normativity).
18. See, e.g., THOMAS M. FRANCK , THE POWER OF LEGITIMACY AMONG NATIONS 187
(1990) (“‘Why are treaties binding?’ is a question usually answered by the superficial assertion that
‘treaties are binding because states have agreed to be bound’ . . . . But the binding force . . . cannot
emanate solely from the agreement of the parties. It must come from some ultimate unwritten rule
of recognition, the existence of which may be inferred from the conduct and belief of states.”);
RUBIN, supra note 10, at 15 (“An asserted rule that makes ‘consent’ to the legal order a constitutive
fact is itself either a natural law rule or a rule that rests on prior consent, thus introducing an infinite
regress.”); Fitzmaurice, supra note 15, at 164 (“the rule pacta sunt servanda . . . does not require to
be accounted for in terms of any other rule. It could neither not be, nor be other than what it is. It is
not dependent on consent, for it would exist without it.”).
19. Martti Koskenniemi, Introduction, in SOURCES OF INTERNATIONAL LAW, supra note 9,
at xii.
2005] WHY STATE CONSENT STILL MATTERS 7
establish consent itself as the only basis for international law, have attracted adherents
without crowning a new normative basis for the law.20 Nor have efforts
to suggest sources beyond those in Article 38 had better luck. True, some states,
academics, and jurists have identified new “sources” of international la w such as
certain General Assembly resolutions, the work of the International Law Co mmission,
and even aspirational texts such as the American Declaration of the
Rights of Man.21 Others, however, just as definitively deny them such independent
status.22
In some sense then, Article 38 and the principle of state consent have come
to represent a “common denominator.” Alfred Rubin puts it more eloquently,
noting that if one envisions the path from morality to law as leading through a
fairly well-defined swampy area that is dangerous to those who get lost, our major
signpost is the summary of sources now found in Article 38.23
Assessing whether the sources of international law are changing, however,
requires that we step off this path to explore for new routes to the creation of in-
20. See, e.g., id.; Schachter, supra note 11, at 9.
21. See, e.g., T. Olawale Elias, Modern Sources of International Law, in TRANSNATIONAL
LAW IN A CHANGING SOCIETY : ESSAYS IN HONOR OF PHILIP C. JESSUP 34, 41, 50-51 (1972) (identifying
the International Law Commission as a “law-making body” and concluding that votes on General
Assembly resolutions are binding); Alvarez, supra note 17, at 774-75 (asking, “[c]an anyone
today afford to ignore the General Assembly’s role in norm creation?” and citing instances where
international and domestic courts have relied on General Assembly resolutions as sources of law);
Report No. 75/02 Mary and Carrie Dann, Case 11.140 (Dec. 27, 2002), at ¶ 163,compiled in Annual
Report of the Inter-American Commission of Human Rights 2002, Organization of American States,
OEA/Ser.L/V/II.117, Doc. 1, rev. 1 (Mar. 7, 2003), available at http://www.cidh.oas.org/annualrep/2002eng/USA.11140b.htm
(last visited Jan. 27, 2005) (citing “well-established and longstanding
jurisprudence and practice of the inter-American system according to which the American
Declaration is recognized as constituting a source of legal obligation for OAS member states”).
22. The United States, for example, has rejected any legal obligations under the American
Declaration. See Indigenous People, 2002 DIGEST § H, at 378-82 (U.S. views on the Petition of
Mary and Carrie Dann). In the context of General Assembly resolutions, many, including the United
States, continue to emphasize that such reso lutions are not binding on Member States by themselves,
but may have weight as evidence of a rule of customary international law. See, e.g., BROWNLIE,
supra note 14, at 14; United Nations General Assembly Declarations, 1978 DIGEST §2, at 9 (quoting
Stephen Schwebel on the legal force of General Assembly resolutions, including statements he made
on behalf of the United States as Deputy Legal Adviser of the Department of State in 1975). Others,
meanwhile, take a middle path, emphasizing the normative influence of documents that do not fall
within the Art icle 38 framework, but admitting they are not true “sources” of international law. See,
e.g., Oscar Schachter, The Nature and Process of Legal Development in International Society, in
THE STRUCTURE AND PROCESS OF INTERNATIONAL LAW: ESSAYS IN LEGALPHILOSOPHY DOCTRINE
ANDTHEORY, supra note 10, at745, 788 (“It is, of course, true that such [General Assembly] resolutions
are not a formal source of law within the explicit categories of article 38(1) . . . [y]et few would
deny that General Assembly resolutions have had a formative influence in the development of international
law in matters of considerable importance to national states.”); Christopher C. Joyner, U.N.
General Assembly Resolutions and International Law: Rethinking the Contemporary Dynamics of
Norm-Creation, 11 CAL. W. INT’L L. J. 445, 477 (1981) (“while General Assembly resolutions are
not ipso facto new sources of international law, they can contribute to the normative process of law-
creation.”).
23. RUBIN, supra note 10, at 192. The same could presumably be said if one views law as a
derivation of politics separate from, or in addition to, morality.
8 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 23:1
ternational law beyond state consent, or new places to look for the law beyond
treaties, custom, general principles, and the judicial and academic opinions that
accompany them. Yet, given the doctrinal confusion over both the existing
sources of international law in Article 38 and the basis of their obligation, we
can question the utility of such an endeavor. To continue with Professor
Rubin’s analogy, in venturing off the existing path, we inevitably risk getting
stuck in the swamp.
B. Integrating Questions of Authority into the Doctrine of Sources
Given the existing, horizontal distribution of authority in international law,
it is not altogether surprising that the doctrine of sources has bogged down in
varied and conflicting assertions of what constitutes a source of international
law, let alone what makes such law obligatory. The international legal order
continues to lack universal, centralized, legislative and adjudicatory bodies that
could definitively delineate the sources of law and judge their content. As Leo
Gross noted a half century ago, we are left in a situation where, in the absence of
such authorities, “each state has a right to interpret the law, the right of autointerpretation,
as it might be called.”24 A state’s view, however, remains just
that—one interpretation, not a final decision on the law’s content or applicability.
Only if all concerned parties consent, whether by treaty, adjudication, or arbitration,
does an actual determination of the legal norm, at least with respect to
those parties, become possible.25 Absent that consent, controversies over what
the law is, or even what the sources of law are, may continue indefinitely.
Viewed from this perspective, debates over the sources of international law
too frequently overlook one essential part of the inquiry: Who has the authority
to decide where to find the law and label it as such?26 In reality, many jurisprudential
debates that on the surface involve questions of what gives international
law an obligatory character and where one looks for its content may be recast as
debates about authority—debates about which entities or persons have the authority
to determine what constitutes international law and where to look for
it.27
In looking at the sources of international law, therefore, we need to ask not
merely “what” and “where”, but also “who” —not merely what element gives
law its legal force and where do we find it, but also, who is it that makes this
law? First, who makes the law itself; who creates legal obligations, be it by
24. Leo Gross, States as Organs of International Law and the Problem of Autointerpretation
(1953), reprinted in ESSAYS ONINTERNATIONAL LAW ANDORGANIZATION 386 (1984).
25. Id. at 386-88.
26. See RUBIN, supra note 10, at 24-25. Other scholars in the post-ontological context have
suggested the need to address the “why” question—why do the subjects of international law comply
with it? See, e.g., Alvarez, supra note 1, at 306 (introducing a symposium on compliance scholarship
dedicated to studying why states generally obey international law).
27. RUBIN, supra note 10, at 24-25, 165.
2005] WHY STATE CONSENT STILL MATTERS 9
treaty, custom, or recognized general principles? Second, who has authority?
Who is it that the law-creators have consented to apply, interpret, or even mo dify
the law for them?
By integrating such a search for authority into the doctrine of sources, we
may find a framework for moving beyond the old and unresolved debate about
the sources of international law. Asking “who” in addition to “what” and
“where” allows us to shift the debate away from arguments about whether state
consent forms the only basis or merely one of several bases of obligation in international
law. Similarly, an authority-based analysis does not require the identification
of an exclusive list of the sources of international law, be they in Article
38 or some larger lis ting. We can evaluate changes in who exercises
authority to make and apply international law even if only within those “common
denominator” sources of obligation (state consent) and law (Article 38) on
which all agree. Moreover, in doing so, we may gain a fresh perspective on the
traditional debate. For example, if we found state consent had operated to
change who participates in the formation of the traditional sources of international
law that would demonstrate an expansion of the generally accepted basis
of obligation from state consent to a situation where the consent of states and
non-state actors together creates the law. Thus, if asking whether the sources of
international law have changed, we can, and should, be asking whether we have
changed who it is that states have consented to make treaties, to create custom
and to recognize general principles of law and who it is that is authorized to apply,
interpret or even modify them.
III.
NON-STATE ACTOR TREATY-MAKING: A CASE STUDY OF AUTHORITY IN
INTERNATIONAL LAW
To demonstrate how this approach might operate, consider the law of treaties.
An authority-based approach examines the treaty-makers themselves.
Avoiding such well trodden ground as what gives treaties their legal force and
which categories of treaties constitute a source of law, it seeks to identify actors
who have authority to make, implement, interpret, or modify treaties in addition
to the sovereign states that have traditionally exercised such authority.28 If such
actors exist, this approach asks how does their authority inform our understanding
of treaties as a source of law and state consent as a basis for obligation?29
28. States, by definition, are considered to possess the capacity to make treaties. See, e.g.,
Vienna Convention on the Law of Treaties, May 23, 1969, art. 6, 1155 U.N.T.S. 331,334.
29. It is important to distinguish from the outset that this line of inquiry into who makes the
law is distinct from the separate issue of the “subjects” of international law—those states, international
organizations, and other entities, including individuals, whose conduct may be regulated by
international law. It is true that evidence of a treaty-making capacity may demonstrate that a particular
entity is a subject of international law whose conduct may thus be regulated by international
law. The focus of the current line of analysis, however, lies in looking at who concludes treaties as
evidence of a capacity to make international law rather than simply asking who is subject to it.
10 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 23:1
Jose Alvarez has already highlighted how shifting the fora of treaty negotiations
from ad hoc conferences to international institutions increased the influence
of various non-state actors such as NGOs, international civil servants, and
experts in the treaty-making process.30 For purposes of sources doctrine, however,
the issue is not merely one of influence; if it were, we would long-ago
have had to dispense with the idea that equally sovereign states make treaties
and custom to account for what Philip Jessup called the “inescapable fact of
power differentials” among states.31 Instead, sources doctrine involves a description
of the distribution of formal legal authority, as distinct from the distribution
of political or even moral authority, both of which may help explain why
those with legal authority act in a certain way.32 An authority-based approach
thus focuses on who can actually create international law or authorize its definitive
interpretation or application. Under this approach, three candidates emerge
as potential sources of authority in addition to sovereign states: sub-state actors,
supranational actors, and ext ra-national actors.
A. Sub-State Actors
Sub-state actors are semi -autonomous territorial entities that are legally dependent
upon, or associated with, independent sovereign states.33 They include
sub-national components of federal states, overseas territories, and other dependent
territories of existing states. In reality, although often thought of as
anomalies, states have afforded these entities a role in treaties for some time. In
the earliest international organizations—the Universal Postal Union and the International
Telecommunications Union—states gave colonial administrations
separate and full membership in the respective organizations.34 In rare cases, a
sub-state actor could join a treaty directly; for instance, Ukraine and Belarus
joined the U.N. Charter while part of the Soviet Union. India and the Philippines
did the same prior to their independence.35
30. See generally Jose E. Alvarez, The New Treaty Makers, 25 B.C. INT’L & COMP . L. REV.
213 (2002).
31. PHILIP C. JESSUP, AMODERN LAW OFNATIONS 30 (1948).
32. The difference between exercises of legal and political authority may be demonstrated
through consideration of how a domestic legislative body operates. Laws are usually enacted
through a process that includes a certain majority vote of the legislators. A single legislator, however,
may have political authority that far exceeds his or her single vote; his or her decision-making
may influence dozens of votes on any particular issue. Nevertheless, the existence of such political
authority does not necessarily alter or change the distribution of legal authority where each legislator
has a single vote and where a certain majority of those votes is required to pass a law. Of course, at
some point, distributions of legal authority may become so divorced from the political reality of how
law-making occurs that the entire legal system requires reconsideration. This is the case, for example,
for those concerned with international hegemonic law.
33. Oliver J. Lissitzyn, Territorial Entities in the Law of Treaties, III RECUEIL DES COURS
66-71 (1968).
34. Id. at 64-65; HENRY G. SCHERMERS & NIELS M. BLOKKER, INTERNATIONAL
INSTITUTIONALLAW52(3d ed. 1995).
35. Lissitzyn, supra note 33, at 6; SCHERMERS & BLOKKER, supra note 34, at 50; ANTHONY
2005] WHY STATE CONSENT STILL MATTERS 11
It would be a mistake, however, to write these precedents off as the peculiar
products of colonial and Cold War environments.36 More than ever, substate
entities now directly participate in both bilateral and multilateral treaties on
matters in which they claim competence. Swiss Cantons, German and Austrian
Länder, Hong Kong, Bermuda, Jersey, The Cook Islands, New Caledonia, Quebec,
Puerto Rico, Tatarstan, and Flanders all serve as examples of sub-state actors
that have concluded treaties in recent years.
On what basis do sub-state actors participate in treaties? Their ability to
conclude treaties is largely a function of whether they have been authorized to
do so.37 In his 1968 Hague Lectures on Territorial Entities in the Law of Treaties,
Oliver Lissitzyn explained this authorization requirement by suggesting that
international law imposes only two prerequisites on sub-state entity treatymaking:
(1) the consent of the state responsible for the sub-state actor; and (2)
the willingness of the sub-state actor’s treaty partners to regard it as capable of
entering into treaties.38 The contemporary treaty-making practice of sub-state
AUST,MODERNTREATY LAW ANDPRACTICE 47 (2000).
36. Although he recognized his conclusion wasn’t inevitable, Lissitzyn thought sub-state
treaty-making was in decline. Lissitzyn, supra note 33, at 87 (“[T]he extent to which dependent entities
appear as distinct partners in treaty relations will continue to fluctuate in the future as it has in
the past, although the present over-all trend seems to be in the direction of diminishing it. But, the
growing complexity of transnational relations and concerns may yet reverse this trend.”).
37. Such direct “participation” in treaties should be distinguished from the separate, and often
equally important, role that sub-state actors play in determining the extent to which a sovereign
state can exercise its own treaty-making authority. Depending on the const itutional distribution of
authority, sub-state actors may have authority to accept or reject whether the sovereign state can assume
treaty obligations in certain areas where the sub-state actor exercises competence. See, e.g.,
J.G. Brouwer, The Netherlands, in NATIONALTREATY LAW AND PRACTICE133,144 (Monroe Leigh,
Merritt R. Blakeslee, and L. Benjamin Ederington, eds., 1999) [hereinafter 1999 NATIONALTREATY
LAW AND PRACTICE ] (describing Netherlands Antilles and Aruba’s “absolute veto” authority on
treaties involving economic and financial matters affecting their interests); Hans D. Treviranus &
Hubert Beemelmans, Federal Republic of Germany, in NATIONAL TREATY LAW AND PRACTICE 43,
55 (Monroe Leigh & Merritt R. Blakeslee eds., 1995) [hereinafter 1995 NATIONAL TREATY LAW
AND PRACTICE ] (noting a modus vivendi—the Lindau arrangement—where the German Federal
Government seeks the agreement of its Länder before concluding a treaty affecting their legislative
competence). As a result, the state may not be able to ratify the treaty or may, if available, need to
invoke territorial or federal clauses to exclude obligations under the treaty with respect to the nonconsenting
sub-state entity. Maurice Copithorne, Canada, in NATIONAL TREATY LAW AND
PRACTICE 1, 6-7 (Monroe Leigh, Merritt R. Blakeslee, and L. Benjamin Ederington, eds., 2003)
[hereinafter 2003 NATIONAL TREATY LAW AND PRACTICE ] (describing consequences of Canadian
provinces’ authority to accept or decline participation in treaty regimes implicating areas of provincial
competence). In some cases, the role the sub-state component plays in how a state exercises the
state’s treaty-power may also explain why the sub-state actor is authorized to conclude treaties independently.
See, e.g., 5 UNITED NATIONS CONVENTION ON THE LAW OF THE SEA 1982: A
COMMENTARY 183 (Myron Nordquist ed., 1989) [hereinafter UNCLOS COMMENTARY] (noting that,
in the context of the 1982 Law of the Sea Convention, several metropolitan states and sub-state actors
argued for separate sub-state participation in the treaty on the grounds that the metropolitan
states had “renounced [certain] . . . powers and transferred them, together with the appurt enant
treaty-making competences, to the representatives of the territories concerned.”).
38. Lissitzyn, supra note 33, at 84;Report of the International Law Commission on the Work
of Its Eighteenth Session, (draft) art. 5.2, [1966] 2 Y.B. Int’l L. Comm’n 172, 191, U.N. Doc.
A/CN.4/SER.A/1966/Add.1 (providing that “States members of a federal union may possess a ca-
12 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 23:1
actors is consistent with both of these requirements. However, questions remain
about the “independent” capacity of these actors and the consequences of “unauthorized
agreements.”
1. Internal Authorization of Sub-State Treaty-Making
In most cases where a sovereign state does not authorize its political subdivision
to make treaties, that sub-state actor will not negotiate and conclude
treaties independently.39 In India, for example, sub-state actors have no capacity
to conclude international agreements and there is little practice of them doing
so.40 A state that is unwilling to authorize a sub-state actor to pursue independent
treaty-making may, however, be willing to conclude a treaty on its behalf.41
In other cases, sovereign states authorize their sub-state components to enter
into treaties directly and in their own name. Frequently, this authorization
will only apply to a single agreement. For example, in 1981, Canada concluded
a social security agreement with the United States. In this agreement, Canada
authorized its province, Quebec, to conclude a separate subsidiary agreement
with the United States in light of Quebec’s distinct pension system. 42 Quebec
and the United States concluded that agreement in 1983.43 For its part, the
United Kingdom has used an “Instrument of Entrustment” to authorize certain
overseas territories such as Bermuda, the British Virgin Islands, and Jersey to
enter into specific treaties with the United States and Canada.44 Even the
pacity to conclude treaties if such capacity is admitted by the federal constitution and within the limits
there laid down.”). This provision was deleted during negotiations of the 1969 Vienna Convention
on the Law of Treaties. IAN SINCLAIR, THE VIENNA CONVENTION ON THELAW OFTREATIES 21
(2d ed. 1984).
39. But see infra notes 57-61 and accompanying text (discussing “unauthorized agreements”
concluded by sub-state actors).
40. K. Thakore, India, in 1995 NATIONAL TREATY LAW AND PRACTICE , supra note 37, at
79, 101.
41. Thus, the Kingdom of the Netherlands may conclude an agreement for the benefit of one
of its constituent parts such as Netherlands Antilles or Aruba. Brouwer, supra note 37, at 144. See
also Agreement Between the Government of the United States of America and the Government of
the United Kingdom of Great Britain and Northern Ireland, Including the Government of the Cayman
Islands, For the Exchange of Information Relating to Taxes, Nov. 21, 2001, U.S.-U.K.,Treaties
and International Agreements Online, CTIA No. 15989.000; AUST, supra note 35, at 53 (citing an
agreement between New Zealand and the United Kingdom on behalf ofthe Channel Islands).
42. Agreement With Respect to Social Security, Mar. 11, 1981, U.S.-Can., art. XX, 35
U.S.T. 3403, 3417.
43. Understanding and Administrative Arrangement with the Government of Quebec, Mar.
30, 1983, U.S.-Quebec, T.I.A.S. No. 10,863.
44. Ian Sinclair & Susan Dickson, United Kingdom , in 1995 NATIONAL TREATY LAW AND
PRACTICE , supra note 37, at 244. For example, on September 12, 2002, the United Kingdom informed
the United States that it had “entrusted” the Insular Authorities of Guernsey, Jersey and the
Government of the Isle of Man to negotiate and conclude Tax Information Exchange Agreements
with the United States on the understanding that the United Kingdom remained responsible for the
international relations of these territories. See, e.g., Press Release, U.S. Treasury Department,
Treasury Secretary O’Neill Signing Ceremony Statement: United States and Jersey Sign Agreement
to Exchange Tax Information (Nov. 4, 2002), at http://www.treas.gov/press/releases/po3595.htm
2005] WHY STATE CONSENT STILL MATTERS 13
United States sometimes authorizes its dependent territories to join treaties on a
case-by-case basis. For example, in 1986 the United States authorized Puerto
Rico to join the Caribbean Development Bank.45
Increasingly, however, states have formalized the treaty-making authority
of certain sub-state components through domestic laws. In most cases, this substate
entity authorization remains subject to a residual level of state supervision.
In 1988, for example, Austria amended its Constitution to authorize Austrian
Länder to conclude international treaties with neighboring states and their constituent
parts with respect to matters falling within the Länder’s exclusive competence.46
This approach mirrors that under the German Constitution (“Basic
Law”), which authorizes German Länder to make treaties. Germany’s authorization
has led to some 80 agreements between German Länder and neighboring
European countries.47 Similarly, Swiss Cantons have concluded some 140 international
agreements, although these agreements have been mainly administrative
in nature.48 Since 1993, Belgium’s law has authorized its component “regions”
to enter into treaties on matters within a region’s exclusive comp etence
(e.g., each region’s water and environmental resources).49 Under this authority,
Belgium’s three regional governments—Flanders, Wallonia, and BrusselsCapital—have
entered into two multilateral agreements with France and the
Netherlands, one for the protection of the Sheldt river and the other for that of
the Meuse river.50 Moreover, the development of the European Union may lead
to more frequent and significant exercises of such sub-state treaty-making pow-
ers.51
Sub-state treaty making is not simply a European phenomenon, however.
Through the Russian Constitution and internal agreements among the subjects of
(last visited Jan. 27, 2005).
45. Self-Governing and Non-Self-Governing Territories, 1981-1988 CUMULATIVE DIGEST,
vol. 1, § 5, at 436, 438-40 [hereinafter Kozak] (regarding testimony of Michael G. Kozak, thenPrincipal
Deputy Legal Adviser to the U.S. Department of State, before the House Committee on
Interior and Insular Affairs on July 17, 1986, regarding international activities of U.S. territories and
commonwealths). Subsequently, Puerto Rico withdrew from the Caribbean Development Bank.
46. Franz Cede & Gerhard Hafner,Federal Republic of Austria , in 1999 NATIONALTREATY
LAW ANDPRACTICE , supra note 37, at 1, 12.
47. Treviranus & Beemelmans, supra note 37, at 54. The Federation retains the authority to
approve these agreements, although to date it has not denied any proposed agreements by the
Länder. Id.
48. Luzius Wildhaber et al., Switzerland, in 1995 NATIONAL TREATY LAW AND PRACTICE,
supra note 37, at 117, 125-26, 151-153. Articles 10(1) and 102(7) of the Swiss Constitution require
that the Federal Council approve such cantonal agreements. Id. at 153.
49. AUST, supra note 35, at 50.
50. Belgium (Brussels-Capital, Flanders, Wallonia Regional Governments)-France-Netherlands:
Agreements on the Protection of the Rivers Meuse and Scheldt, done at Charleville Mezieres,
France, Apr. 26, 1994, 34 I.L.M. 851 (1995). Article 9 of both agreementsrequires each of the regional
governments to separately notify France upon the completion of their required domestic procedures
for entry into force. Id.at 858.
51. See Treviranus & Beemelmans, supra note 37, at 54 (discussing the treaty-making authority
of German Länder and noting that the “development of the European Union will . . . increase
the import ance of the treaty-making power of the Länder.”).
14 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 23:1
the Russian Federation, Russia has authorized certain of its sub-state components,
such as Yaroslav and Tatarstan, to conclude treaties. 52 Tatarstan has
concluded agreements concerning commerce, science and technology, and culture
with Azerbaijan, Bulgaria, and apparently even a few Polish provinces.53
In 1991, Mexico enacted a law authorizing centralized agencies of both Mexico’s
state and municipal public administrations to enter into international
agreements.54 Similarly, although the U.S. Constitution denies U.S. states the
right to enter into “treaties” as that term is defined under U.S. law, it does authorize
them to enter into “compacts” with foreign powers, provided that the
U.S. state obtains the approval of the U.S. Congress.55 Historically, this authority
has been exercised rarely by U.S. states and even more infrequently in recent
years.56
What U.S. states are doing, however, is concluding unauthorized agreements
with foreign powers.57 For example, in 2000, the U.S. state of Missouri
concluded a Memorandum of Agreement with the Canadian province of Manitoba
on water issues without Congressional authorization.58 Other sovereign
states are experiencing similar problems; the requirement of state authorization
appears to have driven some sub-state actors to make more frequent use of unauthorized
arrangements with foreign states, other sub-state actors, and interna-
52. W. E. Butler, Russia, in 2003 NATIONALTREATY LAW ANDPRACTICE, supra note 37,at
151, 152-53 (citing Yaroslav region’s agreements with Belarus, Kazakhstan, Moldova, Uzbekistan,
Ukraine, and individual German Länder).
53. Babak Nikravesh, Quebec and Tatarstan in International Law, 23 FLETCHER F. WORLD
AFF. 227, 239 (1999).
54. Luis Miguel Díaz, Mexico, in 2003 NATIONAL TREATY LAW AND PRACTICE , supra note
37, at 101, 104. Although not considered treaties under Mexican law, these inter-institutional
agreements are defined as being governed by “public international law.” Id. at 117 (citing article
2(II) of the Law regarding the Making of Treaties).
55. U.S. CONST. art. 1, § 10, cl. 1 (“No State shall enter into any Treaty”); U.S. CONST. art.
1, § 10, cl. 3 (“No State shall, without the Consent of Congress . . . enter into any Agreement or
Compact . . . with a foreign Power.”).
56. Among the most well-known examples are a 1956 New York-Canada agreement to establish
a port authority for the Niagara River bridge, a 1958 Minnesota-Manitoba highway agreement,
1949 and 1952 Forest Fire Compacts between northeastern U.S. states and Canadian provinces,
and various compacts authorized under the 1972 International Bridge Act. See, e.g., LOUIS
HENKIN, FOREIGN AFFAIRS AND THE U.S. CONSTITUTION 153 (2d ed. 1996); International Bridge
Act, 33 U.S.C. § 535a (1972). Unlike Mexico’s law, however, the applicable law for compacts between
U.S. states and foreign powers is unclear. See Lissitzyn, supra note 33, at 29 (finding considerable
evidence that compacts are legally binding, but that “the evidence for the view that compacts
of States of the Union with foreign entities are governed by the law of treaties is inconclusive”).
57. See, e.g., AUST, supra note 35, at 48-49.
58. At the request of Senator Byron Dorgan of North Dakota, William H. Taft IV, Legal
Adviser to the U.S. Department of State, wrote a letter to Senator Dorgan that analyzed the constit utional
questions posed by the unauthorized agreement where Missouri and Manitoba undertook to
cooperate in opposition to inter-basin water transfers between the Missouri River and Hudson Bay
basins, despite federal policy supporting at least some such transfers. See Capacity to Make: Role of
Individual States of the United States: Analysis of Memorandum of Understanding Between Missouri
and Manitoba, 2001 DIGEST § A, at 179-98 [hereinafter Taft Letter].
2005] WHY STATE CONSENT STILL MATTERS 15
tional organizations.59 Quebec has concluded some 230 “ententes” with foreign
governments, nearly 60% of which were with foreign states.60 South Africa had
similar problems with its provinces concluding “international agreements” despite
constitutional provisions giving the national government exclusive authority
over such agreements.61
The conclusion of such unauthorized agreements by sub-state actors might
suggest that these actors have become truly independent treaty-making “authorities.”
There are, however, several problems with such a proposition. First, very
little information exists concerning these unauthorized instruments; they are
rarely published or consolidated in ways that allow for an evaluation of their legal
character.62 Second, the sovereign state will frequently step in post hoc to
rectify the absence of authority. Mexico, for example, enacted its law authorizing
sub-state entities’ “international agreements” to provide a legal foundation
for what was an existing practice.63 In 1986, the Swiss Federal Council authorized
the Swiss Ambassador to sign an agreement on cultural and technical cooperation
between itself “acting for the canton of Jura” and the Republic of the
Seychelles. In doing so, it rebuked the canton of Jura for having independently
negotiated the agreement, and insisted on the Swiss Federal Council’s exclusive
power to negotiate such international agreements.64
Finally, where unauthorized sub-state arrangements are available, their legal
status is often murky.65 This may be because the commitments in the texts
of these arrangements are often political, rather than legal, in nature.66 The am-
59. See, e.g., Treviranus & Beemelmans, supra note 37, at 56 (discussing use by German
Länder of Joint Declarations and Protocols); Copithorne, supra note 37, at 2. States are likely to
view such activity as problematic because it means that they are not able to exercise full control over
the international activities of their sub-national units in a manner befitting their sovereign status.
States may also have concerns about legal responsibility for the actions of their sub-state units, even
where those actors operated without authority from the states themselves.
60. Nikravesh, supra note 53, at 239.
61. Neville Botha, South Africa, in 2003 NATIONAL TREATY LAW AND PRACTICE , supra
note 37, at 199,219.
62. See, e.g., Wildhaber et al., supra note 48, at 153 (“It is difficult to get hold of all [Swiss]
cantonal agreements. More than half of them have not been officially published.”).
63. Díaz, supra note 54, at 104.
64. Wildhaber et al., supra note 48, at 154.
65. AUST, supra note 35, at 50 (declaring the legal status of unauthorized agreements “problematical”);
Lissitzyn, supra note 33, at 84 (discussing how the “validity of an agreement made by a
dependent entity without the consent of the dominant State is one on which little guidance is available
in practice”).
66. This is frequently the case with Quebec’s “ententes.” See Nikravesh, supra note 53, at
250-51 (noting that Quebec ententes rarely require legally mandated performance); Copithorne, supra
note 37, at 2;Treviranus & Beemelmans, supra note 37, at 56 (discussing use by German Länder
of non-legal arrangements). In the United States, the practice is to permit sub-state actors to conclude
arrangements that do not involve international commitments or to work out modifications that
ensure that result. See, e.g., Kozak, supra note 45, at 435; Taft Letter, supra note 58. For example,
on April 22, 1999, the U.S. state of North Carolina signed a “Memorandum of Intent” with the Republic
of Moldova that detailed cooperation between, among other entities, North Carolina’s National
Guard and Moldova’s military. Memorandum of Intent Between the Republic of Moldova
and the State of Carolina, Apr. 22, 1999, available at http://www.secretary.state.nc.us/Partner-
16 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 23:1
biguity may also result from a sovereign state’s refusal to recognize the validity
of the agreements entered into by one of its sub-state entities. Canada, for example,
refuses to recognize its provinces’ international arrangements as international
agreements unless it has consented to them. 67 Notwithstanding Canada’s
position, France views all of its “ententes” with Quebec as binding under international
law.68
2. External Consent to Sub-State Treaty-Making
France’s willingness to regard its agreements with Quebec as binding under
international law illustrates that a sovereign state’s decision to authorize its substate
entities to make treaties is not the only criterion for such treaty-making. A
second prerequisite is the potential treaty partners’ willingness to accept the substate
actor as a treaty partner. This element must also be satisfied before authorized,
let alone unauthorized, treaty-making can occur.
In practice, most states take a more conservative approach than France. A
would-be treaty partner usually seeks confirmation that a sub-state actor has the
authority to conclude treaties and the competence to undertake obligations with
respect to the treaty’s subject matter. Israel, for example, consults with foreign
governments to confirm that the sub-state actor has the authority to conclude the
envisaged treaty. If the sub-state actor does not have this authority, Israel will
redraft the document to ensure that the text does not constitute a binding international
agreement.69 In 2001, the United States took the same approach with the
United Kingdom, confirming first with the United Kingdom that the Governments
of Guernsey, the Isle of Man, and Jersey had the authority to conclude bilateral
tax information exchange agreements with the United States.70 When the
United States determined that the Cayman Islands lacked the necessary entrustment
to sign a similar tax information exchange agreement in its own name, the
ship/memorandum.htm (last visited Jan. 27, 2005). In doing so, however, the Memorandum was
specifically crafted to indicate in Article 6 that it did not constitute an international agreement. Id.
67. Copithorne, supra note 37, at 11-12. For example, Canada consented to an education
entente concluded by France and Quebec on February 27, 1965. Nikravesh, supra note 53, at 235.
Similarly, the United States and Canada both stepped in to “consent” to and indemnify an agreement
concerning the Ross Dam on the Skaggit River on behalf of the city of Seattle and British Columbia,
where the two sub-state entities had originally concluded an agreement on the subject by themselves.
Treaty Between the United States of America and Canada Relating to the Skagit River and Ross
Lake, and the Seven Mile Reservoir on the Pend D’Oreille River, Apr. 2, 1984, U.S.-Can., T.I.A.S.
No. 11,088.
68. Nikravesh, supra note 53, at 242.
69. Ruth Lapidoth, Israel, in 2003 NATIONAL TREATY LAW AND PRACTICE , supra note 37,
65, 78. Furthermore, before concluding a 1980 maritime boundary treaty with the Cook Islands, the
United States sought and received confirmation from New Zealand of the Cook Islands’ treatymaking
power and competence over maritime matters. See Treaty on Friendship and Delim itation of
the Maritime Boundary Between the United States and the Cook Islands, June 11, 1980, U.S.-Cook
Islands, 35 U.S.T. 2061; Conclusion and Entry into Force, 1981-1988 CUMULATIVE DIGEST, vol. 1,
§ 1, at 1207-08.
70. See supra note 44.
2005] WHY STATE CONSENT STILL MATTERS 17
United States concluded the agreement with the United Kingdom, which acted
on behalf of the Cayman Islands.71
Notwithstanding the increased frequency of their bilateral treaty-making,
few sub-state actors participate in multilateral agreements because the states negotiating
these agreements generally refuse to consent to the sub-state actor’s
participation. The reasons for these objections vary from a concern that substate
actors might merely act as proxies for a sovereign state that is already a
party to the treaty to a more general objection to opening up treaties to non-state
actors. For example, attempts to expand sub-state territorial participation in negotiations
for a South Pacific Regional Environmental Program (SPREP) met
strong resistance. In one noted exchange between the United States and Guam,
the latter demanded that the treaty grant sub-state actors the same right to form
and block consensus as states for matters over which they had competence.72 At
the end of the negotiations, however, the states gave territories only limited
membership rights and retained consensus powers for themselves.73
More recently, France argued that New Caledonia should be allowed to join
the Convention on the Conservation and Management of Highly Migratory Fish
Stocks in the Central and Western Pacific Ocean. France took this position because
its 1999 constitutional amendment afforded New Caledonia a separate
treaty-making capacity, and France had promised New Caledonia greater autonomy
in its foreign relations.74 At the same time as it lobbied for New Caledonia’s
right to join the treaty, however, France also indicated it would join the
71. See, e.g., Press Release, U.S. Treasury Department, Treasury Secretary O’Neill’s Signing
Ceremony Statement: United States and United Kingdom Sign Agreement to Exchange Tax Information
With Respect to the Cayman Islands (Nov. 27, 2001), at http://www.treas.gov/
press/releases/po823.htm (last visited Jan. 27, 2005).
72. See SOUTH PACIFIC REGIONAL ENVIRONMENT PROGRAMME , REPORT OF THE
PLENIPOTENTIARY MEETING ON THE SPREP TREATY (June 14-16, 1993), available at
http://www.sprep.org.ws/publication/pub_detail.asp?id=86 (last visited Jan. 27, 2005).
73. Agreement Establishing the South Pacific Regional Environmental Program, June 16,
1993, 1993 U.S.T. Lexis 105, available at CENTER FOR INTERNATIONAL EARTH SCIENCE
INFORMATION NETWORK, http://sedac.ciesin.org/entri/texts/acrc/SPEnviro.txt.html (last visited Jan.
27, 2005). Article 4(3) of the Agreement provides that work “shall be conducted on the basis of
consensus of all Members, taking into account the practices and procedures of the South Pacific region,”
but that “[i]n the event that a decision is required in the SPREP Meeting, that decision shall be
taken by a consensus of the Parties. The consensus of the Parties shall ensure that the views of all
Members of the SPREP Meeting have been properly considered and taken into account.” Id., 1993
U.S.T. Lexis at *18. Article 3 provides that meetings are open to parties to the agreement and,
where they have “appropriate authorization of the Party having responsibility for their international
affairs,” the following territories—American Samoa, French Polynesia, Guam, New Caledonia,
Northern Mariana Islands, Palau, Tokelau, and Wallis and Futuna. Id., 1993 U.S.T. Lexis at*16-17.
74. Article 77 of the French Constitution authorizes French law to transfer powers “definitively”
to New Caledonia. LA CONSTITUTION [CONST.] tit. XIII, art. 77. Certain treaty-making
powers were included among the powers transferred. See Law No. 99-209 of Mar. 19, 1999, arts.
21, 22, J.O., Mar. 21, 1999, p. 4197, 4198-99, La Gazette du Palais, May-June 1999, Legislation,
304, 305-06 (giving New Caledonia authority to conclude international conventions in specific areas
such as regulation and exercise of the rights of exploration and exploitation and conservation of marine
resources in the Exclusive Economic Zone).
18 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 23:1
treaty. Other states objected to separate French and New Caledonian membership
where the Convention contemplated decision-making by a supermajority
vote of the parties.75 Like SPREP, the final version of the treaty was not open
to direct sub-state participation and such actors were denied direct voting rights.
In a few notable cases, however, states have shown a willingness to open
up treaties to direct sub-state actor participation. Article 305 of the 1982 United
Nations Convention on the Law of the Sea (UNCLOS) allows three categories
of associated states and territories to sign and ratify the Convention with all the
attendant rights and obligations afforded to states under the Convention.76 In all
three cases, the entity must have competence over the matters governed by the
Convention, including the competence to enter into treaties in respect of those
matters.77 The same approach has been followed in the related United Nations
Fish Stocks Agreement.78
The Agreement establishing the World Trade Organization (WTO) approaches
sub-state actor participation slightly differently. Article XII authorizes
any “customs territory possessing full autonomy in the conduct of its external
commercial relations and of the other matters provided for in this Agreement
and the Multilateral Trade Agreements” to accede on terms agreed to between it
and the WTO.79 Prior to their reversion to the People’s Republic of China from
75. Convention on the Conservation and Management of Highly Migratory Fish Stocks in
the Western and Central Pacific Ocean, opened for signature Sept. 5, 2000, INTERNET GUIDE TO
INTERNATIONAL FISHERIES LAW, available at http://www.oceanlaw.net/texts/westpac.htm (last visited
Jan. 27, 2005). These same states, including the People’s Republic of China, however, were
willing to give Taiwan greater voting rights. As adopted, the Convention allows Taiwan to agree to
the Convention with full voting rights. See, e.g., id. (Arrangement for the Participation of Fishing
Entities).
76. United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982,
arts. 305(1)(c)-(e), 306, 1833 U.N.T.S. 396, 517-18 [hereinafter UNCLOS] (authorizing rat ification
or acceptance of the Convention by (1) “self-governing associated States which have chosen that
status in an act of self-determination supervised and approved by the United Nations”; (2) “selfgoverning
associated States . . . [with] instruments of association”; and (3) “territories that enjoy full
internal self-government, recognized as such by the United Nations, but [which] have not attained
full independence”).
77. Id. These two criteria were considered fundamental to determining which participants
would be allowed to join the Convention. UNCLOS COMMENTARY , supra note 37, at 184. To date
no qualifying territories have joined the Convention, although a number of self-governing associated
states such as the Cook Islands and Niue have done so. DIVISION FOR OCEAN AFFAIRS AND THE
LAW OF THESEA, U.N., STATUS OF THEUNITED NATIONS CONVENTION ON THELAW OF THESEA ET
AL.: TABLE RECAPITULATING THE STATUS OF THE CONVENTION AND OF THE RELATED
AGREEMENTS, at http://www.un.org/Depts/los/reference_files/status2005.pdf (last visited Jan. 27,
2005).
78. See Agreement for the Implementation of the Provisions of the United Nations Convention
of the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of
Straddling Fish Stocks and Highly Migratory Fish Stocks, Aug. 4, 1995, arts. 1(2)(b), 37-40, 2167
U.N.T.S. 88, 90, 125-26. See also DIVISION FOR OCEAN AFFAIRS AND THE LAW OF THE SEA, U.N.,
CHRONOLOGICAL LISTS OF RATIFICATIONS OF, ACCESSIONS AND SUCCESSIONS TO THE
CONVENTION AND THE RELATED AGREEMENTS, at http://www.un.org/Depts/los/reference_files/
chronological_lists_of_ratifications.htm (last visited Jan. 27, 2005).
79. Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, art.
XII, 1867 U.N.T.S. 3, 162 [herein after WTO Agreement]. Thus, Macau joined the WTO before the
2005] WHY STATE CONSENT STILL MATTERS 19
the United Kingdom and Portugal respectively, both Hong Kong and Macau
joined the WTO pursuant to Article XII. Hong Kong and Macau have since
continued their independent membership despite China’s accession to the
WTO.80
What does this practice generally mean for sub-state actor treaty participation?
Do we need to add sub-state actors as a new category under the lis t of
“who” is entitled to conclude treaties? Such an addition appears premature
given that sub-state treaty-making remains a function of state consent; sub-state
actors remain dependent on authorization to make treaties from the responsible
sovereign states as well as from their would-be treaty partners. As demonstrated
above, states continue to oversee and regulate the conditions, if any, under
which their sub-state components can conclude treaties. These conditions may
be case-specific or based in law. Moreover, states generally take the view that,
where a sub-state actor concludes a treaty within the conditions laid down by the
state, it is the state, not the sub-state component, that bears international legal
responsibility under the resulting agreement.81 Some states even take the view
that they may terminate their sub-state entities’ international agreements.82
Because sovereign states control sub-state actor participation and execution
of international agreements so tightly, it is hard to consider them much more
than agents or designees of the state.83 It is unlikely that a sub-state actor would
have the same right of autointerpretation as state actors in cases where the sovereign
state has a different interpretation of a treaty. Even in cases where a substate
actor negotiates outside the scope of any existing authority, states have
People’s Republic of China did.
80. See WTO, UNDERSTANDING THE WTO: THE ORGANIZATION: MEMBERS AND
OBSERVERS, at http://www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm (last visited Jan. 27,
2005). In addition, although it would not necessarily qualify as a sub-state actor as defined in this
essay, Taiwan also relied on Article XII to join the WTO in 2002. Id.
81. See, e.g., AUST, supra note 35, at 49 (regarding federal states such as Germany and
Switzerland as legally responsible for treaties of sub-federal units); id. at 52 (considering the United
Kingdom as ultimately responsible for the performance of treaties by its overseas territories); Kozak,
supra note 45, at 431 (“the Federal Government is responsible internationally for the affairs of the
territories and commonwealths in precisely the same manner as for the states of the Union. Thus the
Federal Government is held responsible for meeting commitments relating to them and for ensuring
that the obligations of other nations towards them are met.”). When signing the Amsterdam Treaty
in 1997, Belgium clarified that it would bear full responsibility for compliance with all treaty obligations,
even though it characterized its signature of the treaty as one by which it and its regions “entered
into an undertaking at the international level.” AUST, supra note 35, at 51. But see Díaz, supra
note 54, at 111 (noting Mexico does not view sub-national international agreements as binding on
the Mexican federation).
82. Cede & Hafner, supra note 46, at 12 (noting that the Federal Government can require the
Land to terminate its treaties).
83. Lissitzyn, supra note 33, at 15 (noting that while treaty conclusion by a dependent entity
may lead to the determination that the sub-state actor is an international person possessing its own
treaty-making capacity, whether or not it is a “State,” a second juridical explanation is also possible
where the sub-state actor may be regarded as having no distinct international personality or capacity
of its own, but merely the authority to act as an agent or organ of the dominant state which retains
the requisite capacity).
20 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 23:1
taken steps to either affirm or reject the results of those negotiations. Moreover,
as the SPREP and New Caledonia cases suggest, treaty-making by sub-state actors
remains derivative of not only the consent of the states to which they are a
part but also the consent of other states parties to the treaty.
Nevertheless, the trend by which some sub-state actors are concluding international
agreements outside the conditions laid down by their states merits
attention. Moreover, the fact that certain treaty regimes now allow sub-state actors
to participate separate from and in addition to the states with which they are
associated (e.g., the Cook Islands and New Zealand in UNCLOS; China, Hong
Kong and Macau in the WTO) suggests that an agency theory of sub-state actor
treaty-making is not a sufficient explanation. Therefore, although we cannot yet
categorize sub-state actors as a new class of “authorities” in the treaty context ,
depending on how these trends progress in the future, it is possible that states
will authorize sub-state participation in treaties in ways that allow them to
achieve such a status.
B. Supranational Actors
Just as states may be subdivided into various sub-state components, so too
may they organize themselves into a “supranational” entity. The creation of
such an actor involves more than the mere investment of powers in some organization
or grouping of states, which frequently occurs in the creation of an
international organization.84 Although there is no fixed definition for what constitutes
a supranational entity, at least two criteria distinguish it from other actors.85
First, states must transfer to the entity powers that they themselves previously
exercised over their nationals.86 Second, in exercising these previously
84. Even though supranational organizations can in some ways be viewed as a category of
international organizations, this essay treats them as separate and distinct actors because of the different
authorities that they have been allowed to exercise internationally, particularly in the treaty
context. See infra notes 118-119, 130-134 and accompanying text.
85. See Francesco Capotorti, Supranational Organizations, in 4 ENCYCLOPEDIA OF PUBLIC
INTERNATIONAL LAW 737, 737 (2000) (indicating that the term “supranational” has not acquired a
distinct legal meaning). In the absence of an agreed definition, scholars have, as here, used different
criteria to give the term meaning. See, e.g., id. at 739-40 (identifying a supranational organization
according to whether the entity has independent decision-making authority, direct relations with individuals
in member states, and the existence of a legal system with its own judicial body); Laurence
Helfer & Anne-Marie Slaughter, Toward a Theory of Effective Supranational Adjudication, 107
YALE L.J. 273, 287 (1997) (describing a supranational organization as a particular type of international
organization empowered to exercise directly some of the functions otherwise reserved to
states); SCHERMERS & BLOKKER, supra note 34, at 41-42 (listing six descriptive factors for supranational
organizations, including the power to bind member states; the power to make rules binding on
inhabitants of member states; decision-making that is not entirely dependent on cooperation of all
member states; the ability to enforce its decisions; financial autonomy; and restrictions on unilateral
withdrawal without the consent of the organization).
86. Thus, rather than merely investing an entity with powers to bind member states, a supranational
organization will actually take over competence on certain matters previously exercised by
the member states, and its exercise of such competences will bind not only member states but also
their nationals. See, e.g., Capotorti, supra note 85, at 738-39.
2005] WHY STATE CONSENT STILL MATTERS 21
national powers, a supranational actor must have independent authority from its
member states.87
The European Union (“EU”) is the paradigmatic example of a supranational
actor.88 In the treaty context, however, the EU has not traditionally
played a direct role in making treaties. Rather, its component communities—the
European Community (“EC”) and the European Atomic Energy Community
(“Euratom”)—have traditionally performed such functions.89 The EC now has
an extensive network of international agreements; as of May 2002, it had concluded
roughly 600 bilateral agreements.90 Moreover, as of April of 2003, the
EC had joined approximately 90 multilateral treaty regimes ranging from the
Food and Agriculture Organization (“FAO”) to the WTO.91
As with sub-state actors, the ability of a supranational actor to join a treaty
depends on the extent to which sovereign states have consented to its participation.
First, the supranational actor’s member states must transfer competence to
it over all or part of the treaty’s subject matter and authorize it to enter into international
agreements on such matters. The EC Member States have in fact
done this through the treaty establishing the European Community.92 In that
treaty, the Member States transferred competence over certain matters to the EC,
which entitles the EC to exercise those competences internationally.93 This
87. See, e.g., id. at 739 (looking to the “actual ‘independence’ of the decision-making machinery”);
SCHERMERS & BLOKKER, supra note 34, at 41 (identifying “independence” in terms of
binding decisions adopted by majority decision or composing a decision-making organ of independent
individuals).
88. Helfer & Slaughter, supra note 85, at 287.
89. Until recently, the European Union was only a political organization, organized into
three pillars: (i) its communities, namely the European Community (EC), Euratom, and the European
Coal and Steel Community (ECSC), the last of which expired in 2002; (ii) the Common Foreign and
Security Policy (CFSP); and (iii) Justice and Home Affairs (JHA). Although its Member States had
previously granted the EC and Euratom international legal personality, including the authority to
enter into treaties, they did not do so with respect to the EU until more recently. See, e.g., AUST,
supra note 35, at 55-56; DOMINIC MCGOLDRICK, INTERNATIONAL RELATIONS LAW OF THE
EUROPEAN UNION 13, 37 (1997); I. MACLEOD ET AL., THE EXTERNAL RELATIONS OF THE
EUROPEAN COMMUNITIES 25 (1996). For a discussion of the EU’s new treaty-making authorities,
see infra notes 99-101 and accompanying text.
90. See, e.g., EUROPEAN COMMISSION, ANNOTATED SUMMARY OF AGREEMENTS LINKING
THE COMMUNITIES WITHNON-MEMBER COUNTRIES5 (updated through May 13, 2002) (listing “current
agreements. . . which have been signed but have not yet entered into force, interim or provisional
measures applying them in practice and a reference to sectoral measures which are not strictly
international agreements but which (independently) cover one or more aspects traditionally covered
by agreements.”).
91. See id.; Constitution of the United Nations Food and Agriculture Organization, as
Amended, Nov. 20, 1959, art. II(3), 12 U.S.T. 980, 987-88 [hereinafter FAO]; WTO Agreement,
supra note79, art. XIV, 1867 U.N.T.S. at 163.
92. MCGOLDRICK , supra note89, at 29-30, 43 (discussing articles of the EC Treaty granting
the EC authority to enter into agreements on matters ranging from the environment to development
cooperation to the role of the European Court of Justice’s interpretation of the Treaty to grant the EC
wide treaty-making powers); MACLEOD ET AL., supra note 89, at 38, 56-57 (reviewing areas of EC
competence, including fisheries, transport, common commercial policy, education, vocational training
and youth, culture, public health, and the environment).
93. The Member States’ transfer of various competences in the EC Treaty can be either ex-
22 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 23:1
transfer can result in either “exclusive” EC treaty-making authority, where the
EC but not its Member States may conclude treaties, or “mixed” authority,
where Member States retain the freedom to also conclude treaties on the same
subject.94 For example, Member States have transferred to the EC all of their
competence with respect to fisheries. In this context, therefore, the EC now
joins fish treaties in lieu of its Member States and participates in those treaties
with a single vote.95 In other areas, where the EC only has shared competence
(e.g., the environment and transportation), the EC and its Member States participate
jointly, exercising votes according to the number of Member States that
have joined the treaty.96
The EC only has the power to join treaties the subject matter of which falls
within the competence accorded to it by its Member States. Member States may
challenge whether the EC is acting within the scope of its authority in concluding
a particular treaty.97 For example, a number of Member States contested the
EC’s ability to join the European Convention on Human Rights before the European
Court of Justice (“ECJ”). The ECJ concluded that the EC did not yet have
competence over the enforcement of human rights and prevented it from joining
plicit or implicit. MCGOLDRICK, supra note 89, at 43-66. Under the EC Treaty, “competence” refers
not simply to particular subject areas but, more accurately, to objectives spelled out under the
Treaty, such that it is not a subject matter but the attainment of the objective within the powers authorized
under the EC Treaty that characterizes “competence.” MACLEOD ET AL., supra note 89, at
38. The notion that the EC’s external competence stretches to the same extent as its internal competence
is known as the “doctrine of parallelism.” MCGOLDRICK, supra note 89, at 48. Moreover, the
EC may engage in treaty-making even for those areas of its competence that are available, although
not yet exercised internally. Id. at 58.
94. AUST, supra note 35, at 55-56; MCGOLDRICK, supra note 89, at 78. Mixed competence
is also possible in cases where the EC has potentially exclusive competence, but has yet to exercise
it, leaving residual competence in the Member States. This appears to be the case, for example, in
the area of aviation safety, where the creation of the European Aviation and Space Agency (EASA)
potentially gives the EC exclusive competence, but where, for the time being, the EC appears willing
to allow its Member States’ bilateral aviation safety agreements to continue, pending further development
of the Agency. EASA Implementation to Impact Certification of Europe-Bound Products, 93
BUS. & COMMERCIAL AVIATION 53 (2003); David Kaminski-Morrow, Transition to New Safety
Agency Going Smoothly: EASA Chief, AIR TRANSPORT INTELLIGENCE (Oct. 3, 2003), available at
http://www.airtransportintelligence.com (last visited Jan. 27, 2005).
95. For example, the parties to the 1949 Convention establishing the Inter-American Tropical
Tuna Commission recently amended the Convention to authorize EC participation and ban participation
by EC Member States unless those Member States represented a territory lying outside the
EC Treaty’s geographic scope. See, e.g., Protocol to Amend the 1949 Convention on the Establishment
of an Inter-American Tropical Tuna Commission, June 11, 1999, 40 I.L.M. 1494.
96. Indeed, “[f]rom a strictly legal perspective, in relation to an agreement over which competence
is shared, neither the EC nor the member states should become a party without the other.
Neither of them in isolation is capable of fulfilling all of the obligations under the agreement.”
MCGOLDRICK, supra note89, at 80-81. In practice, the situation of mixed agreements is more muddled
with both the EC and its Member States frequently coordinating to delineate a common position
in lieu of alternative assertions of authority. Id. at 81.
97. Id. at 94-97 (explaining that the Member States may bring a case to the European Court
of Justice, which may, as a matter of Community law rather than international law, determine
whether the EC can enter into an agreement).
2005] WHY STATE CONSENT STILL MATTERS 23
the treaty.98
In addition to the EC, the EU Member States have amended the Treaty on
European Union to authorize the EU itself to conclude agreements in the areas
of foreign affairs and justice.99 The EU recently concluded its first two agreements
with the United States on extradition and mutual legal assistance.100
There are even plans for a consolidation of all EU, EC, and Euratom treatymaking
powers within the EU through the new Treaty Establishing a Constitution
for Europe.101
The fact that Member States authorize the EC and EU to enter into treaties
in certain areas does not, of course, guarantee that such agreements will be concluded.102
Other treaty partners must also agree (that is, they must give their
external consent). They have done so for the EC with increasing frequency in
the multilateral context through the use of the so-called REIO clause.103 Treaties
containing this clause permit REIOs—regional economic integration
organizations—that have competence in respect of matters governed by the
treaty and that have been duly authorized to join the treaty to sign and consent to
be bound by the treaty.104 The REIO then has similar rights and obligations as
states parties, although limitations are included to ensure that the REIO and its
member states do not collectively enjoy any additional rights unavailable to
states that have chosen not to organize supranationally.105 Examples of EC
participation in international treaties through a REIO clause include the
98. Id. at 99-100.
99. AUST, supra note 35, at 56; Treaty of Nice Amending The Treaty on European Union,
The Treaties Establishing the European Communities and Certain Related Acts, art. 1(4), Feb. 26,
2001, O.J. (C 80) 1 (2001) (amending art. 24 of the Treaty on European Union).
100. GENERAL SECRETARIAT OF THE COUNCIL OF THE EUROPEAN UNION, EUROPEAN
UNION, FACTSHEET: EXTRADITION AND MUTUAL LEGAL ASSISTANCE (June 25, 2003), at
http://europa.eu.int/comm/ external_relations/us/sum06_03/extra.pdf (last visited Jan. 27, 2005).
101. See, e.g., Treaty Establishing a Constitution for Europe, Oct. 29, 2004, arts. III-323to
III-326, 47 EUR-Lex C 310 (Dec. 16, 2004), available at http://europa.eu.int/eurlex/lex/JOHtml.do?uri=OJ:C:2004:310:SOM:EN:HTML
(last visited Jan. 27, 2005); Angelo Petroni,
Your Liberty is at Risk in the EU’s New Constitution, WALL ST. J. EUR., Oct. 7, 2003 (describing
push to give EU full “legal personality”).
102. Member States may, however, be under an obligation as a matter of EC law to push for
EC membership in treaties where the EC has mixed or exclusive competence. MCGOLDRICK , supra
note 89, at 87.
103. Id.; MACLEOD ET AL., supra note 89, at 32. The EC has no ability to join multilateral
treaties in its own right; the treaties are open only to participation by states and REIOs.
104. An example of such a clause is found in Article 53(2) of the Convention for the Unification
of Certain Rules for International Carriage by Air, May 28, 1999, S. TREATY DOC. 106-45, at
24 (2000), 1999 U.S.T. Lexis 175, at 72-73 [hereinafter Montreal Convention] (“[t]his Convention
shall similarly be open for signature by Regional Economic Integration Organisations. For the purpose
of this Convention, a ‘Regional Economic Integration Organisation’ means any organisation
which is constituted by sovereign States of a given region which has competence in respect of certain
matters governed by this Convention and has been duly authorized to sign and to ratify, accept,
approve or accede to this Convention.”).
105. A REIO’s participation will generally be accompanied by provisions that allow the
REIO to vote on matters for which it has competence with the number of votes of its member states,
but only where its member states do not exercise their own votes (i.e., there is no additional vote).
See Convention on Biological Diversity, June 5, 1992, art. 31, 1760 U.N.T.S. 142, 161 [hereinafter
24 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 23:1
in international treaties through a REIO clause include the Convention on Biological
Diversity (“CBD”), the Montreal Convention for the Unification of Ce rtain
Rules for International Carriage by Air, the United Nations Framework
Convention on Climate Change (“FCCC”), the Constitution of the United Nations
Food and Agriculture Organization (“FAO”), the Vienna Convention for
the Protection of the Ozone Layer, the U.N. Convention Against Illicit Traffic in
Narcotic Drugs and Psychotropic Substances, and the Convention on Nuclear
Safety.106 Even in those cases where there is no REIO clause, treaties such as
UNCLOS allow international organizations that meet certain criteria to join the
treaty, and the EC has been able to satisfy such criteria.107
The willingness of sovereign states to authorize EC and EU participation in
treaties is not, however, uniform. Particularly with respect to older treaties such
as the United Nations Charter and the International Labor Organization, states
are unwilling to consider treaty amendments that would allow membership by
non-state actors.108 Recent calls by the EU to join treaty regimes such as the
International Monetary Fund (IMF) and the International Civil Aviation Organization
(ICAO) have met with a cool reception.109
Although both the internal authorization of and external consent to EC
treaty-making are similar to the prerequisites for sub-state treaty-making, the EC
appears to operate with much greater independence than its sub-state counterCBD].
Similarly, acceptance of a treaty by a REIO is not usually counted for “entry into force” purposes.
See id., art. 36(5), 1760 U.N.T.S. at 163. Finally, although the EC is often reluctant to define
the scope of its competence, some REIOs require it to declare its competence under the treaty in order
to join the treaty. See, e.g., id., art. 34(3), 1760 U.N.T.S. at 162; MCGOLDRICK, supra note 89, at
115.
106. CBD, supra note 105, arts. 2, 31, 33, 34-36, 1760 U.N.T.S. at 146-47, 161, 162-63;
Montreal Convention, supra note 104, art. 52, S. TREATY DOC. 106-45, at 43, 1999 U.S.T. Lexis
175, at 112; United Nations Framework Co nvention on Climate Change, May 9, 1992, arts. 1(6), 20,
22, 23, S. TREATY DOC. 102-38, at 5, 24, 25, 26, 31 I.L.M. 849, 853, 870-71 [hereinafter FCCC];
FAO, supra note 91, art. II, 12 U.S.T. 980, 987-88; Vienna Convention for the Protection of the
Ozone Layer, Mar. 22, 1985, arts. 1(6), 12-17, T.I.A.S. No. 11,097, at 5, 14-17, 1513 U.N.T.S. 323,
325, 331-33 [hereinafter Vienna Ozone Convention]; United Nations Convention Against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances, Dec. 19, 1988, arts. 26-29, 28 I.L.M. 493,
523-24; Convention on Nuclear Safety, June 17, 1994, arts. 30-31, 1963 U.N.T.S. 293, 328-29.
107. UNCLOS, supra note 76, Annex IX, art. 1, 1833 U.N.T.S. at 578 (laying out detailed
provisions for participation by “international organization[s],” which are defined as “intergovernmental
organization[s] constituted by States to which [their] member States have transferred competence
over matters governed by this Convention, including the competence to enter into treaties in
respect of those matters”).
108. See, e.g., AUST, supra note 35, at 56; MCGOLDRICK, supra note89, at 82.
109. See, e.g., Paul Hofheinz, EU Urged to Revamp Voting at IMF to Counterbalance U.S.,
WALL ST. J. EUR., Apr. 19, 2002 (discussing the EU Commissioner’s call for the EU Member States
to be represented at the IMF by a single representative); Press Release, European Commission,
Strength through Unity: The Commission Asks for the European Community’s Accession to the
ICAO and the IMO, Reference IP/02/525 (Apr. 9, 2002), available at http://europa.eu.int/
rapid/pressReleasesAction.do?reference=IP/02/525&format=HTML (last visited Jan. 27, 2005) (announcing
European Commission request for authorization to negotiate amendments to the constit uent
treaties of the International Civil Aviation Organization (ICAO) and the International Maritime
Organization (IMO) to allow EC participation).
2005] WHY STATE CONSENT STILL MATTERS 25
parts. An individual Member State is unable to revoke its transfer of comp etence
to the EC.110 Unlike sub-state actors, the EC itself takes on legal responsibility
for its treaty obligations.111 Given this legal responsibility, the EC has a
corresponding right of autointerpretation with respect to its treaties that sub-state
actors do not likely enjoy. Moreover, mechanisms to access legal fora such as
the ECJ exist within the EU to resolve disputes between Member States and the
EC over the scope of their respective treaty-making competences. Although
sub-state actors’ unauthorized treaties may be ignored or rejected by sovereign
states, even an unauthorized EC treaty will create international legal obligations
for the EC, a point confirmed by the ECJ in France v. Commission.112 As the
recent debate over EC Member States’ “Open Skies” treaty commitments demonstrates,
the EC may also challenge whether its Member States improperly exercised
treaty-making authority that they had previously transferred to the
EC.113
A strong case can be made for adding supranational actors such as the
European Community—and soon perhaps the European Union itself—to the list
of the entities that are capable of entering into international treaties independently.
What remains to be seen, however, is whether the EC represents a truly
new class of actors with treaty-making authority or simply a case sui generis.
The REIO clause is formulated in such a way that, if other regional groupings of
states were to follow the EC example and transfer competence to supranational
bodies authorized to act internationally, those entities could utilize REIO clauses
in much the same way as the EC. At the present time, however, although bodies
such as ASEAN and Mercosur have demonstrated a limited treaty-making capacity,114
the REIO clause is generally understood to refer only to the EC.115
110. MACLEOD ET AL., supra note89, at 40.
111. Id. at 124-25; supra notes 81-82 and accompanying text (indicating that sovereign
states are legally responsible for the treaty commitments of their sub-state entities). It is unclear,
however, where legal liability rests in the case of mixed agreements, where both the EC and Member
States together accept responsibility to perform the treaty. The reluctance of the EC and its Member
States to delineate their respective competences under a treaty may suggest both should be held
jointly liable. MACLEOD ET AL., supra note 89, at 158-60.
112. AUST, supra note 35, at 253.
113. Press Release, European Commission, Commission Takes Action to Enforce ‘Open
Skies’ Court Rulings, Reference IP/04/967 (July 20, 2004), available at http://europa.eu.int/
rapid/pressReleasesAction.do?reference=IP/04/967&format=HTML (last visited Jan. 27, 2005) (announcing
the Commission’s issuance of a “letter of formal notice under Article 228 of theTreaty [on
European Union] against eight Member States—Austria, Belgium, Denmark, Finland, Germany,
Luxembourg, Sweden and the United Kingdom—over their failure to comply with the judgments of
the European Court of Justice issued against them on 5 November 2002 in the so -called ‘open skies’
cases”).
114. For example, the EC has concluded an Interregional Framework Cooperation Agreement
between the EC and its Member States and the Southern Cone Common Market (Mercosor).
Interregional Framework Cooperation Agreement Between the European Community and its Member
States, of the One Part, and the Southern Common Market and its Party States, of the Other Part,
Oct. 2, 1995, 1996 O.J. (L 069) 4. The United States and ASEAN concluded an agreement establishing
an ASEAN Agricultural Development and Planning Center. Exchange of Notes Constituting
an Agreement Concerning an Agricultural Development and Planning Centre, June 28, 1980, U.S.-
26 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 23:1
C. Extra-National Actors
“Extra-national” actors comprise a third category of entities that may constitute
a distinct source of authority in the treaty context. Unlike the sub-state
actor that gains its authority from the sovereign state with which it is associated
or the supranational actor that exercises competences transferred to it by its
member states, the extra-national actor exists separate from nation-state systems.
Comprising a category that is vast in quantity and kind, extra-national actors include
international organizations and other international institutions created by
states for a particular purpose (e.g., Conferences of the Parties and Meetings of
the Parties), and even individuals to whom states designate the performance of
some function.116 Actors in this category, like their sub-state and supranational
counterparts, have the power to conclude treaties. In addition, extra-national actors
may also have the authority to apply, interpret, and even modify treaty
obligations.
1. Extra-National Treaty-Makers
Extra-national actors may negotiate and conclude treaties.117 International
organizations have long possessed the capacity to conclude treaties and their
practice of doing so is well-documented.118 The rules for such treaties are laid
out in the 1986 Vienna Convention on the Law of Treaties between States and
International Organizations and between International Organizations (“1986 Vienna
Convention”).119
Although less well-known and more limited in practice, other extra ASEAN,
32 U.S.T. 1371.
115. MACLEOD ET AL., supra note89, at 32; MCGOLDRICK , supra note89, at 33.
116. Robin R. Churchill & Geir Ulfstein, Autonomous Institutio nal Arrangements in Multilateral
Environmental Agreements: A Little-Noticed Phenomenon in International Law, 94 AM. J.
INT’L L. 623, 658 (describing autonomous instit utional arrangements of multilateral environmental
agreements (MEAs) as a cat egory of intergovernmental organizations).
117. For example, as of January 1, 2003, in addition to sub-state and EU-relatedtreaties,the
United States listed bilateral treaties in force with no less than 45 international organizations, instit utions,
and tribunals. See generally U.S. DEP’T OF STATE, TREATIES INFORCE (2003).
118. SCHERMERS & BLOKKER, supra note 34, at 1096, 1099 n.214 (noting, by 1983, publication
in the United Nations Treaty Series of 2000 agreements to which international organizations
were parties); AUST, supra note 35, at 54; PHILIPPE SANDS & PIERRE KLEIN, BOWETT’S LAW OF
INTERNATIONAL INSTITUTIONS 480 n.49 (2001) (noting estimates of more than 10,000 treaties concluded
by international organizations by 1973). This practice of treaty-making by extra-national
actors should be distinguished from cases where they serve as sponsors or the negotiating forum for
treaties solely between states. Id. at 483-84.
119. Vienna Convention on the Law of Treaties Between States and International Organizations
or Between International Organizations, Mar. 21, 1986, U.N. Int’l L. Comm’n, U.N. Doc.
A/CONF.129/15, reprinted in UNITED NATIONS CONFERENCE ON THE LAW OF TREATIES BETWEEN
STATES AND INTERNATIONAL ORGANIZATIONS OR BETWEEN INTERNATIONAL ORGANIZATIONS,
OFFICIAL RECORDS, DOCUMENTS OF THE CONFERENCE , vol. II, 94 (1995), available at
http://www.un.org/law/ilc/texts/trbtstat.htm (last visited Jan. 27, 2005) [hereinafter 1986 Vienna
Convention]. The rules track the 1969 Vienna Convention on the Law of Treaties with modifications
to accommodate the different nature of international organizations. AUST, supra note 35, at 54.
2005] WHY STATE CONSENT STILL MATTERS 27
national actors have also demonstrated a capacity to conclude treaties. For example,
even though the Comprehensive Nuclear Test Ban Treaty Organization
does not yet exist, its Preparatory Commission has concluded a number of treaties.120
International institutions and tribunals that were never intended to qualify
as international organizations have engaged in treaty-making as well. For
example, treaty-based regimes such as the Multilateral Fund of the Montreal
Protocol and the Conference of the Parties to the Climate Change Convention
have concluded agreements with their host states.121 Similarly, the Organization
for Security and Cooperation in Europe—which, despite its name, does not
constitute an international organization—concludes agreements with states hosting
its missions such as a 1998 Agreement with the Federal Republic of Yugoslavia
on the OSCE Kosovo Verification Mission.122 Even international tribunals
may conclude treaties; both of the International Tribunals established by the
U.N. Security Council for prosecuting war crimes in Rwanda and the Former
Yugoslavia have concluded agreements relating to the surrender of persons to
each Tribunal.123
Examining the basis for this practice, we find that the same prerequisites
previously identified for sub-state and supranational treaty-making—internal authorization
and external consent—also apply to extra -national actors making
treaties. The internal authorization can be explic it or implicit. States and other
actors (for example, the U.N. Security Council) that create an extra-national actor
or designate it to fulfill some function can explicitly authorize it to conclude
120. See, e.g., Agreement Between the Preparatory Commission for the Comprehensive Nuclear-Test-Ban
Treaty Organization and the Government of the Islamic Republic of Mauritania on
the Conduct of Activities, Including Post -Certification Activities, Relating to International Monitoring
Facilities for the Comprehensive Nuclear-Test-Ban Treaty (Sept. 16-17, 2003) (copy on file with
author); Agreement Between the Preparatory Co mmission for the Comprehensive Nuclear-Test-Ban
Treaty Organization and the Agency for the Prohibition of Nuclear Weapons in Latin America and
the Caribbean (Sept. 18, 2002) (copy on file with author).
121. Churchill & Ulfstein, supra, note 116, at 651-655 (citing the “1998 Agreement between
the Multilateral Fund for the Implementation of the Montreal Protocol and Canada” and the “1996
Agreement between the United Nations, the Federal Republic of Germany, and the secretariat of the
Climate Change Co nvention”).
122. See Agreement Between the Organization for Security and Cooperation in Europe and
the Federal Republic of Yugoslavia on the OSCE Kosovo Verification Mission (Oct. 16, 1998)
(copy on file with author). Although the text uses the term “will” rather than “shall,” it otherwise
evidences an intention to create legal obligations. It provides, inter alia , that Yugoslavia will accept
the OSCE Verification Mission as a diplomatic entity in the terms of the Vienna Convention on Diplomatic
Relations and assign it responsibility to verify compliance by all parties in Kosovo with
U.N. Security Council Resolution 1199.
123. See, e.g., U.S. DEP’T OF STATE, TREATIES IN FORCE (2003), at 139 (referencing agreements
on the surrender of persons with the International Tribunal for the Prosecution of Persons Responsible
for Genocide and other Serious Violations of Humanitarian Law in the Territory of
Rwanda (Jan. 24, 1995) (International Criminal Tribunal for Rwanda, or ICTR) and the International
Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian
Law in the Territory of the Former Yugoslavia (Oct. 5, 1994) (International Criminal Tribunal
for the Former Yugoslavia, or ICTFY)).
28 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 23:1
treaties on particular subjects.124 Alternatively, the ext ra-national actor may
rely on the doctrine of implied powers to establish the existence and scope of its
treaty-making capacity.125 As articulated in the Preamble to the 1986 Vienna
Convention, international organizations have the capacity to conclude those treaties
“necessary for the exercise of their functions and the fulfillment of their purposes.”126
Thus, even though many international organizations, institutions,
and tribunals have no explicit authority to conclude treaties, they still do so
where necessary. Necessary functions for these actors range from headquarters
agreements establishing their status in host states and relationship agreements
coordinating activities with other international institutions.127
Regardless of whether the extra-national actor’s treaty-making authority is
explicit or implicit, it does have limits. Extra-national actors may only conclude
treaties in those areas in which they are competent to act.128 As the International
Court of Justice reasoned in the Reparations case, “the rights and duties of
an entity such as the [United Nations] must depend upon its purposes and functions
as specified or implied in its constituent documents and developed in practice.”129
In practice, these limitations have operated to prevent most international
organizations from joining multilateral treaties that either create rules of
general application or establish other international actors.130 As Schermers and
124. See, e.g., U.N. CHARTER arts. 57, 63 (envisaging relationship agreements between the
United Nations and its specialized agencies); U.N. CHARTER art. 43 (addressing agreements on contributions
of armed forces, assistance, and facilities to the Security Council); SCHERMERS &
BLOKKER, supra note 34, at 1098-1100; SANDS& KLEIN, supra note 118, at 480-81.
125. SANDS & KLEIN, supra note 118, at 480-81 (citing examples of UN agreements on
technical assistance and UNICEF implementing Chapter IX of the Charter even though there is no
specific grant of power to conclude those agreements within the Charter); SCHERMERS & BLOKKER,
supra note 34, at 1100-1101. The doctrine of implied powers has evolved in international instit utional
law as the principle that an organizat ion must be “deemed to have those powers which, though
not expressly provided in the Charter, are conferred upon it by necessary implication as being essential
to the performance of its duties.” Reparation for Injuries Suffered in the Service of the United
Nations, 1949 I.C.J. Rep. 174, 182 (Apr. 11). See also Effect of Awards of Compensation Made by
the United Nations Administrative Tribunal, 1954 I.C.J. 47, 57 (July 13) (same). These powers are
clearly “subsidiary” to those conferred on the organizatio n in its constituent instrument. See Legality
of the Use by a State of Nuclear Weapons in Armed Conflict, 1996 I.C.J. 66, 79 (July 8).
126. 1986 Vienna Convention, supra note 119.
127. See, e.g., SANDS & KLEIN, supra note 118, at 480 (citing the example of Council of
Europe inter-governmental agreements); SCHERMERS & BLOKKER, supra note 34, at 1097, 1100
(noting that the rules of an international organization could limit its power to conclude treaties, but
that the development of international institutional law otherwise appears to generally allow organizations
to do so); Churchill & Ulfstein, supra note 116, at 649 (applying the implied powers doctrine
as a basis for the treaty-making authority of autonomous institutions created by multilateral environmental
agreements).
128. See, e.g., SANDS & KLEIN, supra note 118, at 481; SCHERMERS & BLOKKER, supra note
34, at 1097.
129. 1949 I.C.J. at 180. See also id. at 198 (“Powers not expressed cannot freely be implied.
Implied powers flow from a grant of expressed powers, and are limitedto those that are ‘necessary’
to the exercise of powers expressly granted.”) (Hackworth, J., dissenting).
130. See, e.g., SANDS & KLEIN, supra note 118, at 484; SCHERMERS & BLOKKER, supra note
34, at 1101, 1119.
2005] WHY STATE CONSENT STILL MATTERS 29
Blokker observed in their classic treatise, International Institutional Law,
“[o]rganizations which cannot make binding rules even in their own field of
competence—and most international organizations cannot do so—are incompetent
to make binding agreements in those fields with others.”131
In the same vein, the external consent of other treaty partners may also affect
the treaty-making power of extra-national actors. Although provisions have
been made to accommodate treaty participation by sub-state and supranational
actors, states have been reluctant to do the same for extra-national actors, most
likely on the ground that extra-national actors lack competence to perform the
treaties’ obligations.132 But, this reluctance is also visible even where extranational
actors actually engage in the conduct regulated by the treaty. For example,
even though NATO, an extra-national actor, is authorized by its members
to use force in certain circumstances, it is not entitled to become a party to international
humanitarian law treaties.133 These limitations help explain why the
vast majority of treaties concluded by extra-national actors are bilateral agreements
that seek simply to define the organizations’ activities and legal status or
to provide for cooperation with other organizations.134
When they do conclude treaties, extra-national actors, like supranational
actors, operate independently. International organizations and other autonomous
international institutions concluding treaties bear international legal responsibility
for the obligations undertaken.135 The treaties are not binding or enforceable
against the organization’s members.136 In this respect, extra-national actors
may possess the same right of autointerpretation as states that are parties to the
treaty. Thus, extra-national actors certainly fall within the list of entities that
can make treaties. However, the nature and extent of their treaty-making authority
is a product of the functions assigned to these actors and the willingness of
131. SCHERMERS & BLOKKER, supra note 34, at 1101.
132. Even where a multilateral agreement purports to be open to participation by “international
organizations” (for example, UNCLOS), closer examination demonstrates such participation is
usually reserved to supranational actors who are equivalent to REIOs. See supra notes 102-107 and
accompanying text. The one notable exception to this approach is the 1986 Vienna Convention, supra
note 119, art. 1, at 95.
133. See SCHERMERS & BLOKKER, supra note 34, at 1116-17 (acknowledging the current
absence of international organizat ion participation in “law-making” treaties, while noting that, in the
future, “[o]rganizations using military forces may have to become parties to treaties on the law of
war; organizations operating a radio station or operating ships or aircraft may have to becomeparties
to treaties on telecommunications or navigation [and] . . . [i]nternational organizations may wish to
adhere to universal or regional conventions on human rights”).
134. See SANDS& KLEIN, supra note 118, at 484.
135. Id. at 482 (concerning international organizations); Churchill & Ulfstein, supra note
116, at 649 (finding institutions of multilateral environment agreements possess international legal
personality and the capacity to conclude agreements in the form of treaties instead of their states parties
or the secretariat of the international organization hosting such institutions). Whether legal responsibility
would rest with all extra-national actors would require further study. For example, it is
unclear whether the ICTFY and ICTR are legally responsible for their agreements or if responsibility
would reside with the United Nations whose Security Council authorized their creation.
136. SANDS & KLEIN, supra note 118, at 482.
30 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 23:1
states to accept their participation. Until changes occur in both these areas, the
treaty-making capacity of extra-national actors will remain limited.
2. Extra-National Interpretation, Application, and Modification of Treaty
Obligations
Extra-national actors play a second and more significant role in the treaty
process. In looking at who is authorized to apply, interpret, or even modify
treaty obligations, we find that extra-national actors represent new authorities in
addition to sovereign states. They may serve as a solution to the traditional
state-based autointerpretation framework, where those who make the treaty authorize
one or more extra -national actors to apply or interpret it definitively,
rather than leaving each state to do so for itself.137 States parties to a treaty may
even empower extra -national actors to define and amend treaty obligations.138
States have a long history of using treaties not only to set out legal norms,
but also to authorize extra-national actors to interpret and apply treaties in specific
cases involving specific parties. The 1794 Jay Treaty, under which the
United States committed to pay the British for outstanding debts following the
Revolutionary War, established a binational arbitral commission to ascertain the
amount of losses and damages to British subjects.139 Similarly, the 1909 U.S.Canada
Boundary Waters Treaty established an International Joint Commission
responsible for making binding determinations about the uses, obstructions, and
diversions of boundary waters on one side of the border that affect the natural
level or flow of boundary waters on the other side.140
The Permanent Court of International Justice and the International Court of
Justice that succeeded it represent examples of extra -national actors to whom
states may designate the authority to interpret treaties in specific cases.141 That
137. In some sense, this may also take place with respect to supranational actors, as least in
so far as applying, interpreting, or modifying member state treaty relationships inter se. Thus, in
establishing the EU, the Member States created a structure that includes mechanisms (for example,
the ECJ) that can authoritatively pronounce for the Member States the scope and extent of their EC
Treaty commitments as between themselves.
138. Of course, states have an equally lengthy and more frequent practice of authorizing
extra-national actors to play less formal roles with respect to treaties. For example, extra-national
actors may be authorized to make recommendations to states with respect to the application or interpretation
of treaty provisions, which lack direct legal force for the parties to those treaties. See, e.g.,
Convention for the Establishment of an Inter-American Tropical Tuna Commission, May 31, 1949,
U.S.-Costa Rica, arts. 1, 2, 1 U.S.T. 230, 232-38, 80 U.N.T.S. 3, 4, 6, 8, 10 (authorizing the Commission
to make recommendations on catch limits and other methods for maintaining and increasing
the populations of fish covered by the Convention); Churchill & Ulfstein, supra note 116, at 642
(discussing “soft law” measures taken by autonomous institutions set up under various multilateral
environmental agreements).
139. Treaty of Amity, Commerce and Navigation Between the United States of America and
the United Kingdom, Nov. 19, 1794, U.S.-U.K., art. 6, 8 Stat. 116, 119-21.
140. Treaty Between the United States and Great Britain Relating to Boundary Waters, and
Questions Arising Between the United States and Canada, Jan. 11, 1909, U.S.-U.K., art. III, 36 Stat.
2448, 2449-50.
141. See, e.g., ICJ Statute, supra note 13, art. 36(2)(a), 59 Stat. at 1060.
2005] WHY STATE CONSENT STILL MATTERS 31
trend continues today with more recent creations such as the WTO Dispute Settlement
Panels and Appellate Body, NAFTA Panels, and the International Law
of the Sea Tribunal (ITLOS).142 Many multilateral environmental agreements
take a slightly different approach, establishing “compliance mechanisms” by
which an extra-national actor has the authority to review questions of noncompliance
with treaty obligations by individual parties and the treatment accorded
to such parties.143 Of course, no recitation of extra-national authority in
interpreting and applying treaty provisions is complete without mentioning the
United Nations Security Council and its authority to delineate what constitutes a
threat to international peace and security under the U.N. Charter and to decide
upon responsive actions to redress such situations.144
Nor is this phenomenon limited to cases where the extra-national actor applies
a treaty norm to a specific case involving specific parties. States parties to
a treaty may also authorize extra-national actors to actually refine or even define
treaty norms. How does this occur? Generally, contracting states retain the
right to consent individually to amendments to the basic treaty text. In some
cases, however, the contracting states will create an extra-national actor and authorize
it to modify or amend certain parts of the treaty, such as its annexes.145
Most treaties that create extra-national actors and empower them with the
affirmative ability to refine and define treaty norms provide dissenting states an
“opt out” clause by which dissenting states can avoid being bound by the extra-
142. See Understanding on Rules and Procedures Governing the Settlement of Disputes,
WTO Agreement, supra note 79, Annex 2, 33 I.L.M. 1226 (1994); North American Free Trade
Agreement, Dec. 8, 11, 14 and 17, 1992, ch. 20, 32 I.L.M. 289, 298-99 (1993); UNCLOS, supra
note 76, Pt. XV, Annex VI, 1833 U.N.T.S. at 508-16, 561-70.
143. This authority may be granted by the treaty itself or the extra-national actor may assert
such authority based on its constituent instrument. See, e.g., Montreal Protocol on Substances that
Deplete the Ozone Layer, Sept. 16, 1987, art. 8, 1522 U.N.T.S. 29, 35 [hereinafter Montreal Protocol];
U.N. ESCOR, Econ. Comm’n for Eur., Executive Body for the Convention on Long-Range
Transboundary Air Pollution, 15th Sess., Annex 3, at 28, U.N. Doc. ECE/EB.AIR/53 (1998), available
at http://www.unece.org/env/documents/1998/ece/eb/ece.eb.air.53.e.pdf (last visited Jan. 27,
2005) (establishing an Implementation Committee to review parties’ compliance with their obligations
under the LRTAP Convention and its Protocols). In some cases, moreover, the treaty only authorizes
recommendations by the extra-national actor with respect to cases of potential noncompliance.
See, e.g., Convention on International Trade in Endangered Species of Wild Fauna and
Flora, Mar. 3, 1973, art. XI(3), 27 U.S.T. 1087, 1104-05, 993 U.N.T.S. 243, 251 [hereinafter
CITES]; FCCC, supra note 106, art. 13, S. TREATY DOC. 102-38, at 20, 31 I.L.M. at 867; Kyoto Protocol
to the United Nations Framework Convention on ClimateChange, Dec. 11, 1997, art. 18, 37
I.L.M. 22, 40 [hereinafter Kyoto Protocol]. A number of MEAs are still in the process of drafting
non-compliance procedures. See Non-Compliance Regimes in Multilateral Environmental Agreements,
Note by the Secretariat, U.N. Env’t Programme, Intergovernmental Negotiating Comm. for
an Int’l Legally Binding Instrument for Implementing Int’l Action on Certain Persistent Organic
Pollutants, 7th Sess., Agenda Item 5, at 2, U.N. Doc. UNEP/POPS/INC.7/22 (2003), available at
http://www.pops.int/documents/meetings/inc7/en/K0360754_7_22.pdf, at 2 (last visited Jan. 27,
2005) (reviewing existing and draft non-compliance mechanisms).
144. See U.N. CHARTER arts. 39-51.
145. See generally Churchill & Ulfstein, supra note 116, at 638-641. States may do this, for
example, because of a shared interest in creating a more dynamic treaty regime that can be changed
even if not all of the states parties consent to a specific change.
32 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 23:1
national actor’s amendments. The International Whaling Convention illustrates
how such an “opt out” provision operates. The Convention creates an International
Whaling Commission (IWC) that is authorized to amend, by a threefourths
majority vote, the Convention Schedule that contains obligations with
respect to the conservation and utilization of whale resources.146 These amendments
are effective for all parties except where a state objects within ninety
days. In that case, all parties that then object within 180 days are not bound by
the challenged amendment.147 The International Maritime Organization has followed
a similar approach; amendments are adopted by a two-thirds vote and
bind all parties except those who indicate they will not accept the amendment
within one year of its adoption.148
Modern multilateral environmental agreements replicate these procedures
for amendments to annexes.149 For example, under the London Dumping Convention,
the annexes listing the substances that may not be dumped and those
that may be dumped only with a permit are subject to amendment by a twothirds
majority vote that binds all parties 100 days after adoption. The amendments
do not bind states that indicate their objection to the amendment within
the 100-day period.150 Amendments to the rest of the London Dumping Con-
146. International Convention for the Regulation of Whaling, Dec. 2, 1946, arts. III, V, 62
Stat. 1716, 1717-18, 1718-19, 161 U.N.T.S. 72, 76, 78, 80, 82.
147. Id., art. V(3), 62 Stat. at 1719, 161 U.N.T.S. at 80, 82.
148. Convention of the Intergovernmental Maritime Consultative Organization, Mar. 6,
1948, art. 52, 9 U.S.T. 621, 635, 289 U.N.T.S. 3, 72. The Intergovernmental Maritime Organization
Assembly may also, by a two-thirds vote, determine that a particular amendment is of such a nature
that states not accepting it will cease to be party to the Convention within twelve months of the
Amendment’s adoption. Id.
149. See, e.g., Basel Convention on the Control of Transboundary Movements of Hazardous
Wastes and their Disposal, Mar. 22, 1989, art. 18, 1673 U.N.T.S. 126, 144-45 (requiring a threefourths
majority vote to amend an annex, with such amendments being binding on all states that do
not object within 180 days of adoption); Vienna Ozone Convention, supra note 106, art. 10, T.I.A.S.
No. 11,097, at 12-13, 1513 U.N.T.S. at 330-31 (requiring a three-fourths majority vote to amend the
annex, binding on all states that do not object within six months of circulation of the amendment);
FCCC, supra note 106, art. 16, 31 I.L.M. at 869, S. TREATY DOC. 102-38 at 22-23 (same); CBD,
supra note 105, art. 30, 1760 U.N.T.S. at 161 (requiring two-thirds majority vote to amend annexes,
binding all states that do not object within one year of the notification of adoption); CITES, supra
note 143, arts. XV-XVI, 27 U.S.T. at 1110-14, 993 U.N.T.S. at 254-56 (requiring two-thirds majo rity
vote to amend certain annexes binding all states that do not object within 90 days of adoption);
Stockholm Convention on Persistent Organic Pollutants, May 22, 2001, arts. 21-22, 40 I.L.M. 532,
548-49 [hereinafter Stockholm POPs Convention] (requiring three-fourths majority vote to amend
annexes and binding all states except (a) those who object within one year of adoption and (b) those
states which, upon ratification, indicated they would only accept such amendments expressly);
Kyoto Protocol, supra note 143, art. 20(4), 37 I.L.M. at 41 (requiring three-fourths majority vote to
pass a proposed annex or amendment to an annex—other than Annex A or B—and making such annex
or amendment to an annex binding on all states that do not object within six months of circulation
of the amendment to all parties).
150. Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other
Matter, Dec. 29, 1972, art. XV(2), 26 U.S.T. 2403, 2413, 1046 U.N.T.S. 137, 144-45 [hereinafter
London Dumping Convention]. Article 22 of the 1996 Protocol to the London Dumping Convention
follows the same procedure. 1996 Protocol to the London Convention 1972, Nov. 7, 1996, art. 22,
36 I.L.M. 1, 17-18.
2005] WHY STATE CONSENT STILL MATTERS 33
vention are adopted by a supermajority vote but, upon entry into force, only bind
those states that consented to be bound by the amendment.151
The “opt out” approach also has precedents outside of the environmental
context. ICAO is authorized to promulgate “international standards” in relation
to matters such as communications systems, rules of the air, and air traffic control
practices that become part of a state party’s obligations under the 1944 Ch icago
Convention.152 A state that is unwilling to comply with the international
standard has sixty days to notify ICAO of how its own national practice will differ
from the standard.153 Similarly, the World Health Organization has the authority
to adopt regulations on various health matters that bind all members except
for those that notify their rejection of, or reservations to, the regulations
within a set period of time.154
Some treaties will not incorporate any “opt out” provision and actually authorize
an extra-national actor to amend certain treaty obligations for all parties
without exception.155 This may involve cases where the extra-national actors’
authority depends on achieving consensus among its members; certain annex
amendments to the POPs and PIC Conventions operate in this fashion.156 Such
consensus requirements make it unclear whether the amendments are truly the
product of extra-national authority or simply cases where the states parties use
the extra-national entity as a forum in which to conclude the amendments in
151. London Dumping Convention, supra, note 150, art. XV(1), 26 U.S.T. at 2413, 1046
U.N.T.S. at 144.
152. Chicago Convention on International Civil Aviation, Dec. 7, 1944, arts. 37, 54, 90, 61
Stat. 1180, 1190-91, 1186-97, 1205, 3 Bevans 944, 953-54, 958-59, 967.
153. Id., art. 38, 61 Stat. at 1191, 3 Bevans at 954.
154. Constitution of the World Health Organization, July 22, 1946, arts. 21-22, 62 Stat.
2679, 2685, 4 Bevans 119, 125.
155. Although the results are similar, such cases should be distinguished from cases where
by virtue of the operation of the treaty itself (rather than the action of an extra-national actor in the
form of an internat ional organization, standing conference of the parties, etc.) an amendment comes
into force for all parties through the consent of some supermajority of states parties. See, e.g., U.N.
CHARTER art. 108 (declaring that amendments enter into force for all members upon ratification by
two-thirds of the members, including all permanent members of the Security Council); UNCLOS,
supra note 76, art. 316(5), 1833 U.N.T.S. at 521 (stating that amendments concerning the Area or
the International Law of the Sea Tribunal come into force for all states parties upon ratification or
accession by three-fourths of the states parties); Statute of the International Atomic Energy Agency,
Oct. 23, 1956, art. XVIII, 8 U.S.T. 1093, 1110-11, 276 U.N.T.S. 3, 34, 36 (declaring that amendments
come into force for all parties when two thirds of the members have deposited instruments of
acceptance of an adopted amendment).
156. Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals
and Pesticides in International Trade, Sept. 10, 1998, art. 22(5)(b), 38 I.L.M. 1
[hereinafter PIC Convention]; Stockholm POPs Convention, supra note 149, art. 22(5), 40 I.L.M. at
549. The 2000 U.S.-Russia Polar Bear Agreement would operate in the same vein, albeit on a bilateral
basis. It will establish a bi-national Polar Bear Commission consisting of representatives of both
governments that will establish, by consensus, limitations on the quantity and methods used with
respect to killing the shared polar bear population. Agreement Between the Government of the
United States of America and the Government of the Russian Federation on the Conservation and
Management of the Alaska-Chukotka Polar Bear Population, Oct. 16, 2000, U.S.-Russ., art. 8, S.
TREATY DOC. No. 107-10, at 7-8 (2002).
34 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 23:1
question.
In other cases, however, the extra -national actor is clearly authorized to act
independently from the unanimous views of its members. The most well-known
example of this approach is found in the Montreal Protocol on Substances that
Deplete the Ozone Layer. That treaty authorizes a supermajority vote of the
Meeting of the Parties (“MOP”) to adjust for all parties control measures with
respect to the consumption and production of ozone depleting substances covered
by the treaty.157 The Chemical Weapons Convention and the Comprehensive
Nuclear Test Ban Treaty also contemplate supermajority votes of their respective
Conference of the Parties (“COP”) to change certain annexes for all
parties.158
Another recent example making the case for extra -national actor autonomy
involves the debate over Iceland’s attempt to rejoin the International Whaling
Convention.159 In that case, Iceland sought to condition its participation in the
Convention on a res ervation to the commercial whaling moratorium adopted by
the IWC as part of the Convention’s Schedule.160 A number of states, including
the United States, opposed the reservation and objected to Iceland’s attempt to
avoid accepting the moratorium obligation.161 Nevertheless, states ultimately
recognized that the question of the acceptability of the reservation was for the
IWC itself, not individual member states. After two hotly contested IWC decisions
to reject the reservation in July 2001 and May 2002, the IWC decided in
October 2002 that Iceland’s reservation was acceptable.162 As a result of extranational
action, therefore, Iceland became a party to the Convention, albeit
without any moratorium obligations.
Generally, the treaty that creates the extra -national actor explicitly authorizes
it to obligate member states to some course of conduct.163 In some cases,
157. Montreal Protocol, supra note 143, art. 2, 1522 U.N.T.S. at 31-33. By contrast, expansion
of the Protocol to cover new ozone depleting substances requires an amendment to the Treaty,
where individual states cannot be bound absent their consent. It should be noted, however, that consensus
has formed the basis for such decisions to date and the supermajority provisions have gone
unused. Indeed, the use of consensus is widespread in the MEA context. See, e.g., Churchill & Ulfstein,
supra note 116, at 642-43.
158. Convention on the P rohibition of the Development, Production, Stockpiling and Use of
Chemical Weapons and on Their Destruction, Jan. 13, 1993, arts. VIII(B)(18), XV(4)-(5), 1974
U.N.T.S. 45, 334-35, 351-52 (noting that the Executive Council recommends certain annex amendments,
such as listing of chemicals, subject to reporting and verification obligations that are adopted
within 90 days unless a party objects, in which case a two thirds majo rity vote of the Conference of
the Parties is required to amend the annex, binding all parties 180 days after adoption); Comprehensive
Nuclear Test Ban Treaty, Sept. 10, 1996, art. VII, 35 I.L.M. 1439, 1455-56 (same).
159. Sean D. Murphy, Blocking of Iceland’s Effort to Join the Whaling Convention, 96 AM
J. INT’L L. 712 (2002).
160. Id. at 713.
161. Id.
162. Id.; Chris Wold, Implementation of Reservations Law in International Environmental
Treaties: The Cases of Cuba and Iceland, 14 COLO. J.INT’L ENV’TL L.&POL’Y 53, 57 (2003).
163. See SCHERMERS & BLOKKER, supra note 34, at 813 (“As a general rule of modern international
institutional law . . . international organizations cannot take binding external decisions
2005] WHY STATE CONSENT STILL MATTERS 35
however, an extra-national actor may exercise such authority without an explicit
treaty basis. Take, for example, the London Dumping Convention. The extranational
actor that it creates, the Consultative Meeting of the Parties (“CMP”),
expanded the definition of “dumping” under the Convention to include the disposal
of waste into or under the seabed from the sea but not the disposal of
waste from land by tunneling.164 Although the resulting definition may be considered
authoritative for states party to the treaty, it is unclear whether it derives
its authoritative status from the collective action of the contracting parties or by
virtue of some implied power of the CMP.165 Another possibility involves extra-national
actors using existing authority to address specific cases in ways that
actually set out general standards that are effectively equivalent to treaty obligations.
For example, U.N. Security Council Resolution 1373, relying on Chapter
VII authorities, represents a new form of Security Council decision that does not
deal with the behavior of states in the context of a specific crisis or with respect
to a specific country. Rather, it sets out general standards of behavior for states
to follow in addressing terrorist financing.166
States may, however, resist what they consider unauthorized activity by extra-national
actors. For example, certain states objected to the decision of the
Basel Convention Conference of the Parties (COP) to ban OECD exports of
hazardous wastes to developing countries as beyond the COPs’ authority under
that Convention.167 The COP decision was later revised into an amendment between
the states parties.168 In the Iceland case, two states, Mexico and Italy,
challenged the IWC’s decision on Iceland’s status as a party on the grounds that
the IWC improperly allowed Iceland to participate in the votes to decide
whether its reservation was acceptable. In a number of controversial cases, losing
states have objected to the manner in which the ICJ exercised its authority to
interpret and apply various treaties.169 States may even challenge an extranational
actor’s assumption of authority in a given situation by arguing that the
unless their constitutions expressly so provide.”).
164. See Churchill & Ulfstein, supra note 116, at 641 (also citing example of interpretations
advanced by the CITES Conference of the Parties for entry into force of amendments and the criteria
for amending the appendices).
165. See id. (considering the amended London Convention definition authoritative, but noting
different rationales for reaching such a conclusion).
166. See U.N. SCOR, 56th Sess., 438th mtg., U.N. Doc. S/RES/1373 (2001).
167. Report of the Second Meeting of the Conference of the Parties to the Basel Convention
on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, U.N. Env’t
Programme, 2d Sess., Decision II/12, at 19-20, U.N. Doc. UNEP/CHW.2/30 (1994), available at
http://www.basel.int/meetings/cop/cop1-4/cop2repe.pdf (last visited Jan. 27, 2005); Churchill & Ulfstein,
supra note 116, at 639.
168. Churchill & Ulfstein, supra note 116, at 639.
169. See, e.g., Press Release, Embassy of the Federal Republic of Nigeria, Washington,
D.C., Nigeria’s Reaction to the Judgement of the International Court of Justice at The Hague (Nigeria,
Cameroon with Equitorial Guinea Intervening) (Nov. 7, 2002), available at
http://www.nigeriaembassyusa.org/110802_1.shtml (last visited Jan. 27, 2005); U.S. Withdrawal
from the Proceedings Initiated by Nicaragua in the ICJ, 85 U.S. DEP’T ST. BULL., Mar. 1985, at 64.
36 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 23:1
authority actually rests with another extra-national actor. At the WTO, for example,
member states objected to Appellate Body attempts to authorize NGOs to
participate in dispute settlement proceedings as amicus curiae on the grounds
that only the WTO General Council could authorize such participation.170
What do these examples say about extra-national actors as “new” actors
in international law in addition to sovereign states? On the one hand, the case
can be made that extra-national actors that can apply, interpret, or even amend
treaties constitute new “authorities” in international law that are truly autonomous
from the states that created them. From the Jay Treaty’s Commissioners
to ITLOS, states may afford extra-national actors the authority to definitively
interpret or apply treaty obligations in ways that are unavailable to any single
sovereign state. Examples such as the IWC and the Montreal Protocol MOP
demonstrate that extra-national authorities may interpret or amend the very
treaty obligations assumed by states even for states that would otherwise oppose
such interpretations or amendments.
On the other hand, state consent often continues to have relevance to exe rcises
of extra-national authority in ways that limit an extra -national actor’s claim
to full autonomy. “Opt-out” clauses deprive extra -national actors of the ability
to modify states’ obligations against their will. Moreover, in practice, extranational
actors have not actually amended treaty obligations for objecting states,
even in the absence of “opt-out” clauses. For example, all adjustments to the
Montreal Protocol to date have proceeded on a consensus basis rather than the
supermajority vote provided for in the Protocol.171 States have also demo nstrated
a willingness to challenge extra -national activity that they view as ultra
vires or otherwise beyond what the states creating the extra -national actor expected
it to do.
Thus, states have clearly invested certain extra-national actors with a level
of autonomy in the context of interpreting, applying, and even modifying treaty
obligations. As a result, they operate to an extent as independent actors in the
treaty context. At the same time, however, the states that create these extranational
actors have placed real limits on the scope of this independence, preventing
one from considering these actors without any reference to the states
that created them. Such state action suggests that states prefer to rely not only
on the original grant of authority to an extra -national actor but also seek to establish
contemporaneous consent to the exercise of that authority.172 Of course,
170. See Hollis, supra note 8, at252-253.
171. See supra note 157 and accompanying text.
172. The use of the term “contemporaneous consent” should not, however, be confused with
notions of voluntarism where state sovereignty is cited as a basis for dismissing international legal
commitments as a matter of right. Instead, it should be viewed as the concept of accountability, or
what Jose Alvarez suggested might be some form of international administrative law, where states
may insist that extra-national actors do not exceed the authorities delegated to them, implicitly or
explicitly, by the states that created the actor. See, e.g., Alvarez, supra note 30, at 232-33. Of
course, absent state consent to some method to definitively review the propriety of an extra-national
2005] WHY STATE CONSENT STILL MATTERS 37
the very fact that states require opt-out clauses, seek consensus decision-making,
and resort to claims of ultra vires action demonstrates that states accept that extra-national
actors may, if authorized, function independently of states and in
ways that bind states to particular interpretations, applications, or amendments
of their treaty obligations.
CONCLUSION
Writing in 1923, the PCIJ’s Wimbeldon judgment characterized the right of
entering into international agreements as “an attribute of State sovereignty.”173
It remains an attribute of state sovereignty today. States have shown a clear
preference to enact legal rules by treaty in lieu of other accepted sources of law
under Article 38.
What is no longer clear, however, is whether the treaty-making power constitutes
an attribute exclusive to state sovereignty. Sub-state, supranational, and
extra-national actors have all demonstrated a capacity to negotiate and conclude
treaties in their own names. Extra-national actors may also serve as vehicles for
interpreting, applying, and defining treaty obligations separate and apart from
the views of individual sovereign states.
At the same time, these actors are not yet entirely free of the states with
which they are associated. Questions remain about the need for sovereign state
authorization of sub-state agreements and the notion that it is the state, not the
sub-state actor, which bears legal responsibility for a sub-state actor’s treaty
commitments. Although the EC and extra-national actors have demonstrated the
capacity to conclude treaties for which they alone bear legal responsibility, even
they are not able to do so entirely free from the views of the states that created
them. The EC, in practice, shares legal responsibility in many “mixed” agreements
where it continues to split competence with its Member States; extranational
actors are limited to treaties that fulfill the powers states expressly or
impliedly conferred upon them. In all three cases, moreover, the views of other
treaty partners matter. Even when a state or group of states grant treaty-making
authority to a non-state actor, that authority has little meaning absent agreement
or acquiescence by other state actors to the exercise of such authority.
What do these developments in treaty-making authority say about the
changing sources of international law? Despite Fitzmaurice’s accurate observation
that treaties only create specific obligations for parties rather than general
rules of law, evidence of formal participation by non-state actors in treatyactors’
exercise of authority, the problem of autointerpretation remains. One state’s insistence that
an extra-national actor’s application of its treaty obligation constitutes an improper delegation of
authority might be countered by another state’s viewing the same action as an entirely appropriate
exercise of the extra-national actor’s delegated authorities.
173. The S.S. Wimbeldon, 1923 P.C.I.J. (ser. A) No. 1, at 25 (June 28).
38 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 23:1
making still has utility in evaluating who makes international law.174 Even if,
as a matter of treaty law, treaties only bind states parties, the reality of modern
treaty-making is that treaties serve as the primary vehicle through which general
rules of law are now elaborated (or, in the case of customary international law,
codified). As such, if sub-state, supranational, and extra -national actors can
make such treaties, would not their views and practices have relevance to the
content of customary international law and “recognized” general principles of
international law as well? The current role non-state actors play in the treaty
process may thus reflect the beginning of a shift in the international legal order
from a community of sovereign states making the law to one where states and
other non-state actors with varying levels of authority make the law.
That conclusion is not free from doubt, however, so long as state consent to
non-state actor treaty participation still matters. The fact that these non-state actors
are creatures of state consent, and may in many cases require their continuing
consent to operate, suggests that it is premature to disregard the old statecentric
paradigm. In the end, the issue may ultimately turn on how one views
the concept of continuing state consent to non-state actor participation in lawmaking.
Is it no more than a sociological commentary on the law’s efficacy or
does it reflect a legal principle that it is states who continue, through their consent,
to dictate who forms the law, who interprets it and who applies it?
Returning to the question of the sources of international law, this article has
sought to move beyond the traditional questions of what the basis of obligation
in international law is and what sources one looks at to see it expressed. The
questions raised by non-state actor participation in treaties demonstrate that international
lawyers need to devote more attention to the distribution of authority
in international law rather than debating only what the law “is.” An authoritybased
perspective calls attention to the possibility that, even if they have not yet
done so, states could, by their own consent, change which actors make international
law. Therefore, maligned as the doctrine may be, international law needs
more scholarship, not less, on the doctrine of consent as a basis of obligation in
international law, looking at who is consenting, on whose behalf, and to whom
such consent is being given.
This may not unlock all of the stalemates in sources doctrine; scholars will
still debate issues such as the legal force of soft law principles and whether other
methods beyond state consent create international law. But, by focusing on authority—on
who it is that makes the law—international lawyers may gain a fresh
perspective on the way the international legal order is presently structured.
From this perspective, we can see the increasing importance of non-state actor
participation in treaties along with the continuing efforts by states to oversee and
control such participation. At present, despite the heightened influence of nonstate
actors, states have had success in continuing to require that the formal crea-
174. See supra note 15 and accompanying text.
2005] WHY STATE CONSENT STILL MATTERS 39
tion and application of treaties turn on the presence of state consent.
An authority-based perspective also offers an opportunity to appreciate
how the system could change—how states could, by their own consent, authorize
non-state actors to stand alongside states in the creation and application of
international law. We can use this authority-based perspective, therefore, to assess
the impact globalization is having on the international legal order; to predict
under what conditions non-state actors would have sufficient independence to
truly constitute new law-makers in addition to sovereign states. In the same
way, we can use this approach to assess whether and when a single actor’s consent
could trump the consent of all other actors such that we would need to revise
the theory of general state consent making international law to a more
hegemonic perspective. In looking at “who” is making international law, moreover,
we inevitably also gain valuable knowledge about “what” states and other
actors are actually consenting to. This information, in turn, offers a compelling
image of the international legal order in operation, an image that can counteract
those followers of realpolitik who would paint a picture of international law as
more theory than practice.
Finally, in offering a new look at who makes international law, an authority-based
approach offers hope for a reinvigoration of the doctrine of sources
more generally. Without a better understanding of international law as “law”
and who has the authority to create and apply it, analyses of compliance and the
law’s effectiveness may lack a firm foundation. We need to know why states
and other actors view law as binding and what they consider to constitute law to
provide the necessary baseline for evaluating whether the law generates different
patterns of compliance or has greater effectiveness than norms that do not qualify
as law. Rather than burying the questions inherent in defining international
law, we should take those questions, warts and all, and address them hand in
hand with post-ontological inquiries into the law’s fairness and effectiveness. In
an age of terrorism, hegemony, globalization, and proliferating non-state actors,
international lawyers will surely need both approaches to discuss and, it is
hoped, develop and defend an international rule of law that is comprehensible,
fair, and effective for meeting the challenges of the years to come.