American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.

/pdf/current-index-to-legal-periodicals-8re353ze53.pdf

Current index to legal periodicals

What motivates states to follow international norms, rules, and commitments? All social systems must confront what we might call the problem of social control—that is, how to get actors to comply with society's rules—but the problem is particularly acute for international relations, because the international social system does not possess an overarching center of political power to enforce rules. Yet, taken in balance with other values, a measure of order is a valued good. Some take this absence of centralized power to mean that the international system is like a Hobbesian state of nature, where only material power matters; others see it as evidence that international rules have force only when they are in the self-interest of each state. I show that these two conclusions are premature because of their shallow reading of international society and misinterpretation of the ways in which authority works in domestic society.

/pdf/legitimacy-and-authority-in-international-politics-3o1kgb7fb3.pdf

Legitimacy and Authority in International Politics

In 1989, peaceful change, which a leading realist theorist had declared a very low-probability event in international politics less than a decade before, accommodated the most fundamental geopolitical shift of the postwar era and perhaps of the entire twentieth century: the collapse of the Soviet East European empire and the attendant end of the cold war. Many factors were responsible for that shift. But there seems little doubt that multilateral norms and institutions have helped stabilize their international consequences. Indeed, such norms and institutions appear to be playing a significant role in the management of a broad array of regional and global changes in the world system today.

https://www.cambridge.org/core/services/aop-cambridge-core/content/view/S0020818300027831

Multilateralism: the anatomy of an institution

Leadership plays a critical but poorly understood role in determining the success or failure of the processes of institutional bargaining that dominate efforts to form international regimes or, more generally, institutional arrangements in international society. An examination of the nature of institutional bargaining serves as a springboard both for pinpointing the role of leadership in regime formation and for differentiating three forms of leadership that regularly come into play in efforts to establish international institutions: structural leadership, entrepreneurial leadership, and intellectual leadership. Because much of the real work of regime formation occurs in the interplay of different types of leadership, the study of interactions among individual leaders is a high priority for those seeking to illuminate the processes involved in the creation of international institutions. Not only does such a study help to explain the conditions under which regimes form or fail to form, but it also provides an opportunity to bring the individual back in to an important area of international affairs.

Political leadership and regime formation: on the development of institutions in international society

This article explains how consensus decision making has operated in practice in the General Agreement on Tariffs and Trade/World Trade Organization (GATT/WTO). When GATT/WTO bargaining is law-based, consensus outcomes are Pareto-improving and roughly symmetrical. When bargaining is power-based, states bring to bear instruments of power that are extrinsic to rules, invisibly weighting the process and generating consensus outcomes that are asymmetrical and may not be Pareto-improving. Empirical analysis shows that although trade rounds have been launched through law-based bargaining, hard law is generated when a round is closed, and rounds have been closed through power-based bargaining. Agenda setting has taken place in the shadow of that power and has been dominated by the European Community and the United States. The decision making rules have been maintained because they help generate information used by powerful states in the agenda-setting process. Consensus decision making at the GATT/WTO is organized hypocrisy, allowing adherence to the instrumental reality of asymmetrical power and the sovereign equality principle upon which consensus decision making is purportedly based.

http://disciplinas.stoa.usp.br/pluginfile.php/161149/mod_resource/content/1/Steinberg%202002.pdf

In the Shadow of Law or Power? Consensus-Based Bargaining and Outcomes in the GATT/WTO

This article discusses the exercises of collective authority by the Security Council. More specifically, it considers what it means to speak of an institution’s use of authority as illegitimate. It addresses particular circumstances that lead broad perceptions of illegitimacy regarding the collective authority of the Security Council, and discusses proposals for reform.

The Legitimacy of the Collective Authority of the Security Council

The ideal, once it is embodied in an institution, ceases to be an ideal and becomes the expression of a selfish interest, which must be destroyed in the name of a new ideal. This constant interaction of irreconcilable forces is the stuff of politics. Every political situation contains mutually incompatible elements of utopia and reality, of morality and power. E. H. Carr [T]he crucial question is not what principle is acknowledged but who is accepted as the authoritative interpreter of the principle or, to put it in institutional terms, how the process of legitimization works. Inis Claude, Jr. At this pivotal point in history, a fundamental and oft-raised issue is “international governance.” Means of effective governance are seen as necessary to more complex arrangements of world order. But achieving effective governance ultimately will mean the existence of institutions that legislate, that is, institutions that make decisions binding on the whole. As a general matter, states have been skeptical of, if not hostile toward and consequently unwilling to accept, such governance. The United Nations Security Council is a notable exception; in the sometimes broad, sometimes narrow, area of international peace and security, the Security Council has taken decisions in the name of, and binding upon, the entire international community.

/pdf/the-legitimacy-of-the-collective-authority-of-the-security-413gpvjigj.pdf

The adoption by the International Law Commission (ILC) in 2001 of its articles on state responsibility is an achievement that presents a paradox. This essay is about the form and authority of the articles, and the paradox that they could have more influence as an ILC text than as a multilateral treaty. The essay addresses the questions of the appropriate authority to be given an ILC text, why undue influence may be attributed to an ILC text (particularly by arbitral tribunals), and how an arbitral tribunal should approach interpreting and applying the articles on state responsibility.

The ILC Articles on State Responsibility: The Paradoxical Relationship Between Form and Authority

This note focuses on the questioning by pro-whaling nations of the institutional integrity of the International Whaling Commission in its pursuit of the cessation of all whaling. This challenge to the Commission is particularly manifest in the resumption of commercial whaling by Norway and the establishment by several states of the North Atlantic Marine Mammal Commission.

The International Whaling Commission and the North Atlantic Marine Mammal Commission: The Institutional Risks of Coercion for Consensual Structures

The adoption by the International Law Commission in 2001 of its Articles on State Responsibility is an achievement that presents a paradox. This essay is about the form and authority of the Articles, and the paradox by which they could have more influence as an ILC text than as a multilateral treaty. This essay addresses the questions of what is the appropriate authority to be given an ILC text, why an ILC text may be given undue influence (particularly by arbitral tribunals) and how an arbitral tribunal should approach interpreting and applying the ILC Articles on State Responsibility. This essay proceeds by first situating the ILC's work on state responsibility within the context of the codification movement generally and of concerns regarding that movement. The essay second discusses the ILC practice of undertaking its work in the form of a treaty rather than, for example, a narrative. It analyses the final debate in the ILC as to the form and authority of its project on state responsibility whereby the ILC chose to maintain the form of a treaty, but not recommend that it actually be the basis of a treaty, in significant measure because the ILC thought it would have more influence in that form. Similarly the U.N. General Assembly's subsequent acceptance of the ILC's approach is discussed. Given the ILC and General Assembly actions, the essay third considers how this scholarly commentary on state responsibility, written as though it were a treaty, should be approached, tested and elaborated upon by future arbitral panels and courts. To address these questions, the essay in its concluding sections considers the authority of the ILC's work as a source of international law, and examines how the treaty form can give rise to problems of false concreteness and false consensus, and how the interpreter may seek to overcome such potential problems.

David D. Caron

Papers

The Legitimacy of the Collective Authority of the Security Council

The Legitimacy of the Collective Authority of the Security Council

The ILC Articles on State Responsibility: The Paradoxical Relationship Between Form and Authority

The International Whaling Commission and the North Atlantic Marine Mammal Commission: The Institutional Risks of Coercion for Consensual Structures

The ILC Articles on State Responsibility: the Paradoxical Relationship Between Form and Authority