Should States be Monopolizing International Treaty Law?

• Author: Honert, Audrey L.

1. INTRODUCTION 487 II. BACKGROUND 488 A. History of Treaties 488 B. Subjects of International Law 490 C. Actors in International Law 490 D. The Cape Town Treaty 491 E. Bottom-Up Lawmaking: Soft International Law 494 F. International Law Compliance 495 G. Measuring Success of the Cape Town Treaty 496 III. ANALYSIS 496 A. The Cape Town Treaty and the Conventions Plus Protocol: Bottom-up Treaty-making 497 1. Industry Specialists 497 2. Industry Norms Becoming Technical Rules 498 3. A Closed Legal System, Outlined Procedure, 498 and Remediation Tools 4. An Institutional Home 499 5. Self-executing Treaty to Create Soft Law 500 B. The Cape Town Treaty and the Persuasion Treaty Theory:Enhancing Bottom-up treaty-making 500 1. Creating New Regulatory Methods 501 2. Putting Corporate Choices in the Public Eye 501 3. Publicizing Corporate Choices 502 IV. RECOMMENDATIONS 503 A. Future Implementation: Applying Bottom-up 504 Treaty-making B. Future Study: Quantitative Third-Party 505 Compliance Analysis V. CONCLUSION 505 I. INTRODUCTION

   There are numerous ways international law becomes law. It is formed through a variety of methods, a melange that includes customary practice, widely held principles, even scholarly and judicial pronouncements. Yet treaties between States remain the most common source of international law. states voluntarily become signatories to treaties and are bound by their terms, establishing new international law in the process. But the dominance of this model, which elevates the nation-state above all other legal actors, may damage the efficacy of the international law regime. Indeed, "[w]hether international law is ultimately effective in accomplishing its goals may depend less on whether a [S]tate complies and more on whether sub-state entities act consistently with the goals of international law." (1) There is evidence that "sub-state entities" (the private sector) comply with international law only 51% of the time. (2) This level of noncompliance is especially troubling at a time when non-state-actors' actions weigh heavily on the objectives set forth in almost all types of treaties including those on human rights, the environment, global health, and financial regulations.

   This Note proposes that bottom-up soft international lawmaking can be used to create hard international treaty law, and that bottom-up treaty law naturally creates conditions that enhance treaty compliance according to the persuasion treaty theory. That is, that the norms and standards enforced among non-state actors can be injected into the treaty making process as a way of enhancing non-state actor compliance. A convergence of these two theories has been modeled by the novel Cape Town Treaty, which could serve as a template for a new kind of international lawmaking. Part II provides background on international law, international law compliance, the persuasion treaty theory, and the Cape Town Treaty. Part III argues that the Cape Town Treaty is an example of bottom-up hard international lawmaking and that the bottom-up lawmaking model naturally creates conditions that are likely to encourage treaty compliance. Finally, Part IV makes incremental recommendations for future treaty-makers based on the Cape Town Treaty model. This Note is offered as a contribution to the growing body of scholarship arguing that the State-centric international lawmaking model is just one of numerous models that should be used to create international law in the future. (3)

2. BACKGROUND

   1. History of Treaties

      The term "international law" was coined in 1789 by Jeremy Bentham to refer to "the mutual transactions between sovereigns as such." (4) One way international law is created is through treaties. (5) Sir Gerald G. Fitzmaurice, a rapporteur on the Law of Treaties for the United Nations (U.N.) International Law Commission defined a treaty as:

      [A]n international agreement embodied in a single formal instrument... made between entities both or all of which are subjects of international law possessed of international personality and treaty-making capacity, and intended to create rights and obligations, or to establish relationships, governed by international law. (6) The law of treaties has been codified in the Vienna Convention on the Law of Treaties (Vienna Convention) in 1980. (7) While the Vienna Convention organized treaty-making by establishing concrete steps to treaty development and implementation, (8) treaties have been utilized by States for centuries. In 160 B.C., the Jews and the Romans entered into a bilateral mutual defense treaty; in 1648, the Peace of Westphalia, a multilateral treaty, ended the thirty-year war between the Catholics and Protestants in the Holy Roman Empire and Sweden; and the declarative bilateral treaty of 1867 outlined the cession of Alaska from Russia to the United States. (9) To date, the Vienna Convention has been adopted and ratified by 116 countries. (10)

      As one of the primary sources of international law, treaties are legally binding because they are voluntarily created and entered into by sovereign States. (11) Treaties are created to accomplish different goals. For example, a contract treaty--such as the aforementioned 1867 treaty that outlined the purchase of Alaska--facilitates an exchange. (12) A legislation-like treaty formulates rules to regulate behavior. (13) An aspirational treaty codifies goals for the international community. (14) And a constitutionlike treaty such as the u.N. Charter establishes the foundation of an international legal body. (15)

      The immediate post-WWII era was the apex of the idealistic international law system. International lawyers maintained faith in the State-centric system, believing "almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time." (16) This sunny belief was at odds with a growing chorus of political scientists and international relations theorists who asserted that "law is simply a mask for power" and "when power and law come into conflict in international affairs, politics is the phenomenon and law is the epiphenomenon." (17) This strained dichotomy--one half conceiving of international law as the embodiment of noble principles, the other as the shrewd application of power--is brought into sharp relief by the ever-shifting answers given to the following question: who does international law govern? (18)

   2. Subjects of International Law

      During the 19th and 20th centuries, the positivist theory of international law defined individuals as objects of international law, meaning individuals had no rights or duties under international law. (19) However, individuals as subjects have long resided on the periphery of international law. In 1784, a U.S. court determined that the Chevalier De Longchamps, an individual, was guilty of violating international law. (20) In 1900, the U.S. Supreme Court determined that individual U.S. citizens had the right to rely on the international customary law that protects fishing boats from seizure during war in The Paquete Habana case. (21) After WWII, military tribunals at Nuremberg and Tokyo prosecuted individuals as war criminals under international law. (22) Today, individuals are less likely to be thought of as mere objects of international law; instead, individuals are subjects of international law whose rights are established in numerous multilateral treaties. (23)

   3. Actors in International Law

      While individuals can now be the subject of international law, the current

      Westphalian international law model (24) only allows States to create law; therefore, "private actors do not have legal identity in the production of law. " (25) Despite this technicality, non-state actors have carved out avenues of influence--both legal and illegal. Article 71 of the U.N. Charter is one legal route for non-governmental organization (NGO) lobbying in the international arena. (26) Article 71 states: "The Economic and Social Council [ECOSOC] may make suitable arrangements for consultation with non-government organizations which are concerned with matters within its competence." (27) ECOSOC (28) has established three levels of accreditation for which NGOs can apply to be consultants: General, Special, and Roster. (29) General Consultants have a broad range of access and privileges, while Special and Roster Consultant's access has a more limited scope. (30) Currently, there are 4,600 ECOSOC-accredited NGOs. (31) The legal scope of influence, however, is limited to ECoSoC and does not extend to other highly influential U.N. governing bodies such as the General Assembly (32) or the Security Council. (33) other prototypes exemplifying legal consultation by non-state actors are exemplified in the International Monetary Fund's model--where expert input is elicited during specific decision periods--as well as in the International Labour organization, U.N. Women, and the GAVI Alliance--which offer membership and voting rights to non-State actors. (34)

      Defining non-state actors in this sphere is rife with complication. The ECoSoC consultation accreditation program is limited to nonprofits; however, the accreditation qualifications are interest-blind, meaning NGos can advocate on behalf of for-profit businesses. (35) Indeed, many multinational corporations have created nonprofit organizations for the sole purpose of having a voice on the international stage. (36) other private actors have chosen more nefarious routes to influence such as bribery, backdoor-dealing, and illegal lobbying. (37) Currently, there is "no international law that regulates business participation in the making of treaties." (38)

   4. The Cape Town Treaty

      The multilateral Cape Town Treaty entered into force on March 1, 2006--the culmination of years of collaboration between States, corporations, and intergovernmental organizations. (39) The goal of the treaty was to address "the lack of recognition, priority, or...