Fairness in International Law and Institutions.

• Author: Trimble, Phillip R.

By Thomas M. Franck Oxford: Clarendon Press. 1995. Pp. xxxvi, 500. $55.

In the debate over whether to join the new World Trade Organization (WTO), Pat Buchanan had a point when he argued that U.S. adherence amounted to a significant loss of sovereignty. The new organization, with its rules and compulsory adjudication,(1) will surely constrain in significant ways the ability of the United States -- including that of Congress, administrative agencies, and the executive branch of the federal government, as well as that of the corresponding entities in the states -- to make decisions without reference to foreign interests that hitherto could more readily have been ignored. Although it is true that Congress may constitutionally pass legislation in derogation of WTO obligations, just as other parts of the federal government may violate WTO obligations without effective challenge under U.S. domestic law, as a practical matter the WTO's preference for international standards and the certainty of sanctions for violations will inevitably induce governmental decisionmakers to prefer compliance with international standards.(2) The resulting practical devolution of decisionmaking authority to international institutions is the essence of the loss of national sovereignty. Most importantly, it is a process that will continue as the forces of globalism accelerate in the next century.

Of course, as Professor Thomas Franck(3) points out in the opening line of his grand new book, "[s]overeignty has historically been a factor greatly overrated in international relations" (p. 3). All of international law represents a loss of sovereignty to one degree or another. For example, the ancient and uncontroversial law of diplomatic immunity means that the police cannot arrest a diplomat for a common crime. There are countless other examples, extending over centuries, of government actions being constrained by international law; they range from law enforcement on the high seas to the domestic treatment of aliens and their property. Even in the absence of pressure from compulsory adjudication or clear rules, the United States has often been sensitive to foreign interests when making its decisions, especially if those interests have influential domestic constituencies.

Now, however, the situation is different in several significant respects. First, the new WTO has virtually extreme authority to issue legally binding decisions. Second, the creation of the new system seems to have stimulated litigation, so the sheer number of decisions affecting the United States could be extremely high. Third, the WTO system is comprehensive, extending its reach well beyond the scope of traditional trade law. It now covers services, intellectual property, and "nontariff barriers" that could include health, safety, labor, and environmental regulations. Technical rules, such as those dealing with product safety or pesticide levels, will be vulnerable to challenge in the WTO unless they meet international standards, thereby inducing domestic policymakers to defer to international institutions. All of these developments combine to change the U.S. government decisionmaking environment by forcing decisionmakers to consider the specific international consequences -- including possible retaliation -- and longer-term international implications of their decisions. The prospect of sanctions will certainly reinforce the likelihood that a decisionmaker will take international law and standards into account. Finally, never before have international events so routinely had conspicuous impacts on local communities throughout the United States. Accordingly there is a new sense of vulnerability throughout the country.

The trend toward more international interdependence, of which the WTO is the most visible manifestation, has been accompanied by comparable changes in international law and the importance of international institutions. In the past, international law concerned itself mostly with states and official intergovernmental relations. Now it increasingly concerns itself with private personae, including multinational corporations, as well as governments, and it deals with subjects that traditionally were treated as purely domestic matters. International institutions have similarly proliferated and have taken on tasks that increasingly intrude into hitherto domestic affairs. They now exercise some degree of sovereign power. Professor Franck points out a dramatic example: "[T]he [International Monetary Fund (IMF)] was exercising `sovereign' powers in the narrow but very important field of its jurisdiction" (p. 4) when it allocated assets and obligations of the new states created by the dissolution of Yugoslavia -- which the IMF declared "has ceased to exist."(4)

The practical effects of international law have also changed. In the past, international law tended more to confirm the power of states rather than to restrain them, and international institutions were their instruments rather than their regulators. The United States in particular has more often been the beneficiary of international law -- and the de facto czar of international institutions -- rather than the target of restrictions or the recipient of orders. U.S. predominance has been undercut by the rise in economic power of Europe and Asia, by accelerating international interdependence, and by the end of the Cold War. Consequently, the new conditions loosely associated under the platitudinous rubric of "globalism" pose new and quite visible challenges to national sovereignty. As Franck observes, "[n]ever . . . have notions of sovereignty demanded as much . . . rethinking as now" (p. 3).

As globalization accelerates, international law and institutions will inevitably be implicated. Currently, both are strongly oriented toward preserving the status quo. If they remain static, then market-driven "private" forces may come overwhelmingly to dominate the lives of the world's people. Decisions by corporate executives, bankers, currency traders, and information moguls increasingly could come to displace decisions by governments on such matters as mortgage interest rates, the types of jobs available, the content of education, and attitudes toward family and religion. Democracy, or peoples' control of the conditions of their governance -- a matter especially dear to Professor Franck -- could even be compromised or sacrificed. Perfectly responsive, democratic governments could find themselves unable to maintain healthy labor markets, a devout populace, or a safe environment because of "private" decisions outside of their control. Their ability to maintain cultural integrity likewise could become subordinated to the world's entertainment industry, whose crass commercialism threatens artistic and religious values.(5) Professor Benjamin Barber has eloquently sketched a scenario under which democracy itself becomes caught in a destructive dialectic between ethnic nationalism and global commercialization.(6)

On the other hand, international law and institutions could react much more strongly to the forces of globalization, and they could constrain the effects of laissez-faire globalism rather than standing idly by. The WTO will play a conspicuous role, especially as -- or if -- it expands its mandate to reconciling environmental and trade norms, labor standards, competition policy, and an increasing number of transnational services. Through the WTO the importance of international standard-setting institutions like the International Organization for Standardization (ISO) will be magnified. If WTO-based trade sanctions were expanded to apply to enforcement of human rights, environmental, or labor standards, then the power of the organizations setting those standards, such as the International Labor Organization (ILO), would also be commensurately enhanced. A similar increase in power was given to the International Maritime Organization by the 1982 United Nations Convention on the Law of the Sea, under which state regulatory power can be curtailed when it conflicts with international standards. The enhanced importance of such institutions raises questions regarding how they make decisions, whose interests they reflect, and who is looking out for unrepresented groups. The creation of activist international institutions necessarily entails more loss of national sovereignty, and unless international lawmaking and institutions are indeed further transformed, the consequence could be the erosion of democracy as well. The loss of sovereignty does not trouble me, but the loss of democracy is another matter.

Professor Franck's ambitious new book, Fairness in International Law and Institutions, provides a grand review of major international institutions, especially those within the UN system, and developments in two areas of increasingly important substantive law, economic law and environmental law, in light of considerations of "fairness." He examines "fairness" in the development of legal doctrine, in the treatment of persons and peoples -- who do not participate in the formation of law but who are increasingly affected by it -- in the work of UN institutions, and in environmental and economic law. He concludes with a critique of, and recommendations for, the elaboration of fairness in international discourse and international institutions. Franck considers democratic practice to be an essential element in the production of fairness, and he recognizes that such practice is conspicuously lacking in international institutions. Although the discussion of democracy is only one of many dimensions of the book, Franck advocates more international efforts to reinforce democratic trends and even directly elected international parliaments as part of the continuing enterprise of incorporating fairness into international law and institutions.

Professor Franck's book is a refreshing new direction in international law scholarship. As he...