From Contract to Legislation: The Logic of Modern International Lawmaking

Abstract

The future of international lawmaking is in peril. Both trade and climate negotiations have failed to produce a multilateral agreement since the mid-1990s, while the U.N. Security Council has been unable to comprehensively respond to the humanitarian crisis in Syria. In response to multilateralism’s retreat, many prominent commentators have called for international institutions to be given the power to bind holdout states — often rising or reluctant powers such as China and the United States — without their consent. In short, these proposals envision international law traveling the road taken by federal systems such as the United States and the European Union: from contractual lawmaking, in which states are free to make commitments to each other and free to decline commitments to which they object, to legislative lawmaking, in which states — through international institutions — make collective decisions about what legal obligations to undertake.

In this Article, I argue that international legislatures — institutions such as the Ministerial Conference of the World Trade Organization (WTO) and the Conference of the Parties to the United Nations Framework Convention on Climate Change (UNFCCC) that make collective decisions about the legal obligations that members may make to each other — are already numerous. But international legislatures of the kind envisioned by global government’s proponents are unlikely to emerge because the rise of international legislatures is not driven by the desire to reduce the role of holdouts. To the contrary, I contend that legislatures exist to magnify the ability of holdouts to stall and even paralyze lawmaking. Further, I argue that the increased importance of holdouts is, within limits, beneficial for international lawmaking.

In contractual lawmaking, states are free to expel holdouts from negotiations and make commitments among a smaller group of the willing. Moving from contract to legislation removes this freedom. In the U.S. Congress, the minority’s holdup power is created through procedures such as the filibuster in the Senate and the committee system, under which a proposal with majority support can nevertheless fail to obtain a floor vote due to the opposition of a few key committee members. In international legislatures, this holdup power is created chiefly through a process known as “adoption,” which requires that an institution as a whole, usually by consensus, approve an agreement before any individual member state can sign and ratify it. Adoption does not imply that member states will ratify or be bound by the agreement; as with agreements like the Kyoto Protocol, some states that vote for adoption will not ratify the agreement. Instead, one of the adoption procedure’s main effects is to empower states with no intention of joining a treaty to nevertheless veto its enactment by cooperation-minded states.

The increased holdup power created by legislatures is a feature, not a bug. This holdup power is beneficial because it allows states to enforce legislative bargains: deals in which a state makes concessions in one negotiation in exchange for another state’s concessions in a later related negotiation. Such iterative negotiations — found in free trade talks, environmental regimes, and efforts to establish a robust international criminal law — are a hallmark of modern international lawmaking. Absent some enforcement mechanism, though, states would be unwilling to “trade votes” across negotiations out of fear that other parties would not uphold their end of the bargain. International legislatures thus do not lubricate international lawmaking by allowing states to be bound against their will. Quite the opposite, international legislatures facilitate lawmaking by allowing states to stall lawmaking in the event that a legislative bargain is violated. This rationale for holdup power explains a number of puzzles in international law. In particular, it explains why international legislatures have not adopted robust majoritarian voting and further clarifies how international institutions enforce international law, which critics often claim is unenforceable.

Keywords: international law, international organizations, international institutions, compliance, United Nations, legislatures, lawmaking, World Trade Organization, consent, International Criminal Court, treaties, global governance, climate change, holdup power, exclusion clauses

JEL Classification: K33