The success of the POPs negotiations, especially in light of the strong debate over certain portions of the treaty text, is encouraging and promises success for the regime at the implementation stage. The way that negotiators resolved their differences and reached consensus at Stockholm holds lessons not only for future toxics treaties, but also for multilateral environmental agreements (MEAs) generally. This paper focuses on the story of the POPs negotiations, the treaty they generated, and the lessons that can be learned from that experience. In Part II, I present the problem of persistent organic pollutants, discussing their global impacts on human and animal health, particularly on women and young children. In Part III, I discuss the growth of international concern over POPs, spurred by research into endocrine disruption and other health effects, and the way that this awareness developed into a mandate to construct a global POPs treaty. In Part IV, I discuss tensions inherent in environmental treaty negotiations, examine the negotiating stages of the POPs treaty process, and highlight important debates between participants. In Part V, I examine factors that suggest the likely success of the POPs treaty, focusing on aspects of the negotiation process that apply broadly in other global, environmental contexts, and conclude that the Stockholm Convention teaches important lessons about effective environmental treaty development.

In the past fifty years, progress has been made in varying degrees in establishing consensus on particular issues, monitoring human rights abuses, enforcing human rights, and developing a body of law to guide this task into the future. While the nations of the world have agreed on some important fundamental human rights, disagreement persists as to the full set of human needs and activities that should be protected as rights. One view holds that civil and political rights, typically understood as negative rights reserved by the individual against state interference, are the primary bulwark against oppression, and that these rights are sufficient for full realization of equality and prosperity. A contrasting view holds that the state’s primary duty is to provide affirmatively for the collective welfare of its citizens. On this view, positive social, economic, and cultural rights are to be promoted before negative civil and political rights.

Parallel to the enhancement of human rights has been the diminution of states’ rights, or sovereignty. From the Peace at Westphalia forward, a sovereign’s control of its territory and its final authority to make law within its borders have been seen as the fundamental building blocks of international law. Recently, however, global forces, including markets, communications, and transportation, have, become more independent of the control of sovereign states, and a growing number of multilateral agreements with provisions for extra-national enforcement has, to some extent, deprived states of the “last word” on a number of issues previously within their domain. While most nations desire the benefits of increasingly integrated “globalized” forces, there remains serious disagreement regarding the role of sovereign nations in a global order. One view, espoused by some “globalists,” holds that sovereigns are becoming less relevant and less necessary to the extent that wealth (and thus welfare) is created and distributed by global forces. Some globalists go so far as to argue that sovereignty impedes the true potential of globalization. Some skeptics, however, argue that globalization is merely a cover for imperialism, and that sovereigns are still necessary—perhaps increasingly so—to protect the welfare of their citizens, and represent their needs against those of disembodied and unaccountable “global” forces. It seems that although sovereign nations retain great practical and ideological import, when the interests of global forces and sovereigns come into conflict, the latter are increasingly made to yield.

A third trend brought to center stage by globalization involves the stature and extent of property rights in the global era. Traditionally seen as the exclusive domain of the sovereign, in which states exercise territorial and legislative autonomy, property disputes have become globalized, and the locus of control, at least in certain areas, has steadily shifted from national to transnational arenas. The unsettled nature of property rights is central to understanding this trend, as well as the seemingly intractable disputes regarding the scope of human rights law and the power of the state. The inability to reconcile these disputes stems, at least in part, from a fundamental disagreement about the meaning of property, as well as who should have the final authority to decide how property is protected and ultimately distributed. Mirroring the divergence in human rights and sovereignty, the global dispute over property comes down to the dispute between the liberal ideology that animates free-market capitalism and the socialist ideology that animates state-planned economies. The former view holds that in order to generate industry and wealth, property must be strictly protected against intrusion by the state and others. The latter view holds that in order to ensure that property is equitably distributed, states must retain unencumbered authority to tailor the levels of protection that property receives. Though there is considerable disagreement in this area, there is a general trend toward increasing the protection of private property as against the state and prioritizing speculative property over other types.

This trend in property, more than any other, is at the root of the prioritization of individual rights over collective welfare, and the ascendance of global market forces over sovereign authority. The results are the decreased stature of and commitment to social, economic, and cultural rights, the diminished capacity of states to protect public welfare within their territories, and a distortion of civil and political rights.

If we hope to reconcile the divergence in these crucial areas, the global community must articulate an answer to this fundamental question: How should we treat property in a global world? In order to do so, we must decide the following: what is the purpose of property, why or when does it deserve legal protection, and how can we enforce those protections? Though these questions are enormous, this note will provide a modest contribution to this dialogue, in the hope that we will begin to come to terms with the importance of property in defining—and defending—human rights in a globalized world.

Part I of this note will explore the effects of parallel global trends in human rights, sovereignty, and property towards individualism, globalization, and liberalism, respectively. Part II will then address some of the impacts that these trends are having on social, economic, and cultural rights; on public welfare protection; and on civil and political rights. Part III will compare and contrast three alternative theories of property that seek to elevate human needs above speculative interests. Part IV will attempt to articulate a vision of property that reconciles civil/political rights with social/economic/cultural rights in the context of a continuing role for sovereign states.

“There is probably nothing in this world more political than money.” After the Cold War was won by the proponents of free trade principles, the political spotlight fell upon the World Bank as the premier multilateral institution devoted to international aid. As understanding about the nature of development grew, developed countries and NGOs increased pressure on the Bank to expand its mission to include not only macroeconomic reform, but also reform in other social and political arenas such as human rights, protection of the environment and cultural heritage, and establishment of legal institutions. At the same time, the Bank’s own difficult experience further motivated it to expand its mission to accommodate these new areas of development assistance.

Greater pressure from developed countries such as the United States and the swift expansion of the World Bank’s mission have made the Bank’s policies a focal point for criticism and discussion about the direction of international aid in development. Some critics find that the World Bank has strayed too far from its macroeconomic underpinnings, and should rein itself in to focus on the areas of its original core competencies. Others, noting the rather dismal record of World Bank assistance based solely on economic kinds of reform, believe that the Bank necessarily must expand its function to be of any use at all to the global community; these observers suggest that the Bank continue on its path toward a “holistic” approach to development and poverty reduction.

The questions facing the World Bank today are not new. Though an institution of a wholly different character, the British East India Company (the Company) faced many of the same organizational problems, transforming from a generally ignored conglomeration of merchants seeking profit in the spice trade into the British Empire’s administrative agency in India. In its rise to prominence and later its decline, the Company became a key figure in the imperialist drive toward colonialism in the seventeenth and eighteenth centuries, and has become a well-known symbol for the prevailing mercantilist thought of the time. Soon after its beginnings as one of several private European trade conglomerates formed to explore the spice trade in the East Indies, the Company came under enormous pressure from the British government to compete with other European trade companies for trade routes and political influence in Asia. Over the Company’s two hundred year existence, the British Empire and prevalent imperialist thought pushed the Company to expand its mission to fit the Empire’s colonial goals, until, its mission expanded beyond manageable bounds, the Company ceased to be a trading company at all. Finally, the British Empire molded the Company into an administrative agent for the Empire’s colonial aspirations in India.

Expansion of the Company’s mission, driven by the ideological thrust of imperialism and the prevailing political economic theory of mercantilism, became both necessary for its survival and also the reason for its transformation into a bloated administrative agency. The World Bank potentially faces a similar dilemma. Having started as a bank concerned with purely economic reform, the Bank has been pushed by developed countries and NGOs to address and be accountable for numerous humanitarian concerns involved in its loan projects. Though the Bank has learned over the years that the humanitarian aspects of development aid must be addressed to bring about meaningful change, the Bank risks expanding its mission beyond manageable limits by championing these numerous and potentially conflicting causes in development.

This article will analyze the history and development of both the Company and the World Bank, and from the comparison will draw an important lesson for the World Bank: though some expansion of its mission may in current circumstances be necessary for its continued relevance, over-expansion beyond the Bank’s capabilities will be destructive to the organization itself, and will ultimately undermine its effectiveness in assisting development. Part I begins with a brief history of the Company, and describes its gradual expansion of mission from a loosely organized merchant venture to the agent of military control and territorial governance in India. Part II describes the World Bank’s shifting development policy since its inception, and draws parallels between the Bank’s current mission dilemma and the organizational factors that led to the collapse of the Company. Finally, Part III evaluates three current recommendations for the future direction of the World Bank.

Many of these new global legal structures have evolved in response to the needs of the global economy, with its adamant push for a system free of regulatory barriers. The normative outlook of these systems, however, is not limited to the economic domain. It has significant spill-overs, with wide-ranging social implications, from environmental to cultural. The influence of these systems over the life of the global citizenry has increased substantially over the last decade. The WTO legal system, for example, has addressed disputes involving difficult environmental dilemmas—from the risks associated with the use of synthetic growth hormones in cattle, to the damage caused to sea turtles by shrimp trawling, to the risks associated with the industrial use of asbestos. International standards-setting organizations, such as the International Organization for Standardization (ISO) and the Codex Alimentarius Commission, have been involved in the production of controversial standards, such as the ISO environmental management standards (the ISO 14000 series) and the Codex Commission’s evolving standards on foods derived from biotechnology.

The affinity of these global legal structures to economic interests has adversely influenced their sensitivity to “civic” concerns and has been subject to extensive criticism in both grass-root and academic circles. The recent protests against globalization—from Seattle 1998 to Quebec and Gothenburg 2001— were driven by a deep skepticism of the legitimacy of these a-national legal structures, and a conviction that their decision-making procedures should undergo deep reform. What emerges from these protests is a profound aspiration for a “voice”—for greater civic involvement in these global processes of norm production. The critique of this evolving network of legal governance has been fierce. Thus it was argued, for example, that the alliance between the three Bretton Woods institutions (the WTO, the World Bank and the IMF) and the Multinational Enterprises community is imposing upon the global society a new form of “faceless” tyranny, which is driven by uncontrollable and (socially) inattentive economic rationality, and is governed by a dubious regime of “unaccountable ‘experts’ adjudicating behind closed doors.”

This demand for a voice presents the global community with a difficult dilemma. While it is hard to question the urgency and genuineness of this aspiration, casting the demand for a voice in a coherent theoretical or pragmatic form remains a difficult task. Two questions seem to lie at the heart of this difficulty. First, what does the notion of “legitimacy” mean in the transnational context? Second, in what sense does the call for “democratization” solve the problem of “legitimacy”? These difficulties point to the deep problem of the association between legitimacy and democracy at the transnational level.

This article seeks to confront this problem by taking a closer look into this coupling. In its first part (sections I to III) the article reviews some of the more prominent responses to the challenge of transnational legitimacy: from the Westphalian-inspired concept of “indirect democratic supervision,” to the more universalistic ideas of “NGOs-led democratization” and “directly deliberative democracy.” This article argues that none of these narratives provides a convincing response to the democracy/legitimacy puzzle. In its second part (sections IV and V), the article develops an alternative interpretation to the problem of legitimacy (and its resolution), drawing on the ideas of “normative creativity” and “social pluralism.”

Before proceeding with the argument, it is important to take a closer look at the idea of “legitimate law” (or “authority”). One possible approach to this concept views the question of legitimacy from a functional or substantial perspective: to the extent that a transnational norm promotes the common good, it should be seen as legitimate. From this perspective, the process leading to the adoption of a certain norm is not relevant to the question of its legitimacy. Under this account, democracy has no role in the creation of legitimacy: the question is rather which set of criteria constitutes the best expression of the common good. There are numerous answers to this question—from economics to science and religion—each with its own community of experts. The declining trust in experts and professional expertise, however, has eroded significantly the power of expert knowledge to provide privileged accounts of the common good and, hence, to serve as a source and arbiter of legitimacy.

The broadening acceptance of the democratic ideal in contemporary (global) society means that the legitimacy of transnational regimes is judged, increasingly, by the nature of the process that led to the regimes’ creation, and by the public accountability of those who implement them. This tendency reflects a widely-shared expectation that the people affected by a certain normative structure should be involved in its design and implementation. Legitimacy is seen as a measure of consent and control. The continuing protests against “globalization,” then, seem to be motivated by a feeling that the current political map does not provide an adequate response to this widely-shared expectation. This political failure is twofold. On one hand, despite all the talk about globalization, we still lack the necessary institutional mechanisms that could enable a world- wide democratic experience. There is no global political center from which the legitimacy of transnational norms (and the systems that produce them) could be derived. On the other hand, the institutions of the “nation-state”—which still operates as the main locus for political action—offer no real solution to this global deficiency (in contrast to what is postulated by the Westphalian paradigm).

The increasing dissatisfaction with the traditional mechanisms of legitimization (from professional expertise to the institutions of the nation-state) points, then, to the importance of developing alternative accounts of legitimacy. This challenge is taken here. The article is organized as follows. Part I examines in more detail the structure of one of the new domains of transnational law—that of technical standardization. It looks, in particular, into the role of one key player: the ISO. This short case study explores two questions that underlie the broader concerns of this article. First, to what extent does this new normative domain raise issues of public concern? How critical is the encroachment of the ISO into the civic domain? Second, to what extent does the decisionmaking structure of the ISO provide opportunities for public participation? Part II provides a more detailed critique of the Westphalian narrative and its legitimization argument (the notion of “indirect democratic supervision”) and argues that this narrative fails to provide an adequate response to the challenge of legitimacy.

Part III considers the more universalistic approaches of “NGO-led democratization” and “directly deliberative democracy”. While these two responses offer a challenge to the state-centered logic of the Westphalian model, both remain unconvincing in their attempt to resolve the legitimacy/democracy puzzle. Part IV looks more closely at the theoretical underpinnings of the idea of “directly deliberative democracy”. It argues that none of the possible pathways that lead from democracy—in its directly deliberative interpretation—to legitimacy are convincing. The fragility of the legitimacy/democracy connection points, then, to the need for an alternative understanding of legitimacy, for another standpoint from which to observe the current calls for the democratization of transnational law. The section concludes by putting forward such an alternative viewpoint, drawing on the idea of “creative norm-making” or “creative institution.”

The Internet engenders “the notion of distributed power: decentralization, openness, possibility of expansion, no hierarchy, no center, no conditions for authoritarian or monopoly control.” The Internet has become vital to the broader dynamics of organizing global society, “both economically and politically.”

One of the vital aspects of organizing global society has been individual liberty. With the introduction of the Internet, traditional notions of liberty are challenged.
The global reach of information transfer requires examining liberty in its new form—“cyberliberty.” Cyberliberty expands across all borders, affects all nations, and as of yet, has not been defined by any nation. This note recommends a definition of cyberliberty in order to provide a legal foundation for regulating conduct on the Internet. The definition is predicated upon freedom from the control and influence of states through their assertion of prescriptive jurisdiction, a liberty that has always been an essential element of sovereignty.

Part I briefly describes how traditional international law principles of prescriptive jurisdiction have been applied to activities on the Internet. It then identifies some limits to these methods that arise from the unique characteristics of the Internet. Part II surveys philosophic conceptions of liberty, recognizing the implications of liberty on the Internet, and recommends a definition of cyberliberty that favors expansive liberty and clear expectations for Internet actors.

With a nudge and a wink, a Nigerian became one of the most recognizable Poles. The populace of one of Europe’s most homogeneous nations suddenly embraced an African-Pole. Its response revealed that, even in a society still discovering its own post-Cold War independence and identity, citizenship and nation may be just terms of convenience. They mean little more than a team to cheer for; even if some Polish children cheered for England or Germany in the World Cup, no one reprimanded them. The era during which the nation-state not only claimed to be unchallengeable but also was assumed to be sacrosanct has come to an end. The nation—as a source of identity—may be reduced to the status of a sports uniform.

The theory of globalization this Note builds upon is the model of denationalization. In this model, globalization is a radical rearrangement of communities that results in a need to relocate our sources of laws and legal norms. Most denationalization analysis focuses on the interplay between communities and societies on the regional or global scale and questions the possibility of denationalization. This Note takes a different tack, accepting for the sake of sparking further discussion that a fully or partially denationalized world is inevitable, and examining what effect the denationalization of identity may have on the relationship between the individual and the law. Examining current legal structures through new lenses can help us anticipate how they might change. From whence do the rules we feel compelled to follow come? What might individuals who do not recognize political borders consider binding law? I argue that a nation state-based legal system is ill suited to a world of multiple identities. Legal scholars need to consider new theories of the law and the legal institutions that result. This Note proposes a global legal culture as an alternative legal philosophy and structure, one that can help the legal profession envision how to alter existing legal institutions and build new ones. The changes considered are gradual, even generational, and are not meant to replace existing structures entirely. But they have profound implications for nation-states, the legal profession, and, most importantly, the man on the street in Delhi or Kansas City.

Part I of this Note discusses changing concepts of citizenship and identity, focusing on their psychological implications. There has been an explosion of excellent literature exploring the implications of globalization for citizenship and identity in the last ten years. This Note supports that work by providing three examples of how psychological dimensions of individual identity are changing, and how that change is affecting our world. The deeper project, which begins in Part II, suggests that identity is becoming denationalized to such an extent that it will fundamentally change the role of law in global society. Part II aggregates the fragmented identities of globalization and suggests that existing laws and legal systems cannot adequately respond to the reality of a world where political borders no longer define community and identity. An alternative is the cultivation of a global legal culture. Part III then presents and responds to possible arguments against the idea of a denationalized world and a global legal culture. The conclusion briefly considers what sort of institutional changes may result from this shift in legal theory, with the intent of opening the door to further discussion.

But NGOs are not always opponents to governmental institutions and do not always challenge their policies. Rather, they are often directly involved in the design of policies and may shape political processes from inside the official arenas. For example, at the United Nations, NGOs are significantly involved in the activities and performances of the intergovernmental organizations (IGOs). They advise U.N. commissions and committees regularly, they work together with U.N. agencies and implement projects for them, or they assist U.N. institutions and provide necessary information. In his Millennium report, Secretary- General Kofi Annan re-emphasized that strengthening the relations between the United Nations and private actors constitutes a priority of his mandate. He seeks “[t]o give full opportunities to non-governmental organizations and other non-state actors to make their indispensable contribution to the [United Nations] Organization’s work.”

Despite the increasing involvement of NGOs in the processes and proceedings of global politics and international law, the features and functions of the “new player” NGO have not yet been clearly identified. Definitions and interpretations of the term NGO vary enormously and can often be misleading or even contradictory. For some, “NGO” simply describes many different types of organizations which are not governmental, including multi-national companies, national liberation groups, and many more. For others, “NGO” is reserved exclusively for private non-profit organizations encouraging higher values within the legal scope of their society. In international law, the term “NGO” is equally confusing in its application. In this paper, I will argue that there is a lack of agreement on NGOs as subjects of international personality. While in many countries domestic legislation for “private associations” serves as a basis for NGO identification and recognition, at the international level, international legal standards to define and regulate the perception of NGOs have not yet been established.

This “non-status” of NGOs in international law may be considered an opportunity for maintaining a variety of voices of civil society in the international sphere. Since the criteria for actor NGOs are not rigorously regulated, various kinds of societal actors may be given the opportunity to contribute to the political process when they would otherwise be excluded. This non-status, however, also creates various problems. Most importantly, in the light of the increasing participation of NGOs in international political processes, the lack of regulation raises questions about NGO representativity and legitimacy. For whom do NGOs actually stand? Who authorizes them to represent what views? Many NGOs, particularly the well-known organizations such as Amnesty International, the WWF, or CARE, can claim to have a large membership or supporters from many parts of the world; many other NGOs are instead simply self-appointed, consisting of only a small group of people (or even a single individual) and representing the opinions of a relatively small number of people.

For the purposes of this study, I will examine the status of NGOs in international law through a historical analysis covering the last century. In Part I of this article, I will describe current NGO involvement in global governance and analyze certain problems resulting from NGOs’ lack of status in international law. Then, in Parts II through IV, I will trace back various attempts to codify an international standard for NGOs from 1910 to the present day. In this context, I will take into account the indirect recognition of NGOs that occurs when intergovernmental organizations (the League of Nations and the United Nations) grant them a consultative status. In addition, I will take a closer look at other juridical approaches to the international personality of NGOs, including the Belgian Law of 1919 and the European Convention on the Recognition of the Legal Personality of International NGOs (INGOs).

According to conventional accounts, from the 1950s to roughly the 1990s, infrastructure projects in many countries were financed and carried out by states. When the state had insufficient capital or technological capacity, either the World Bank or private transnational corporations entered the project arena in an auxiliary capacity. As a result, when human rights problems arose in connection with infrastructure projects, non-governmental organizations (NGOs) and community groups targeted the state and, on occasion, the World Bank. Perhaps coincidentally, as these non-state initiated campaigns succeeded in holding states and the World Bank accountable for their roles in perpetrating human rights abuses, we were told that, due to mismanagement by and incapacity of the state and the World Bank, both parties were exiting the infrastructure business.

A shift is underway, initiated in many countries during the 1980s, away from the development approach and towards the global project finance approach to infrastructure projects. Under the global project finance approach, neither the state nor the World Bank finance or carry out infrastructure projects. Instead, private companies seek funding for projects through international capital markets and then build and operate projects to recoup costs and to garner a profit. What this shift will mean for the protection of human rights is uncertain. Within the development paradigm, NGOs directed their strategies at states and the World Bank. On the level of argumentation, they successfully transformed the development discourse, promoting the idea of a more people-centered and environmentally friendly “sustainable development” approach. With the initiation of global project finance, the constellation of actors involved in specific projects changes and the discourse of development is supplanted by the discourse of the market. The shift in the roster and in the roles of participants, and the transformation of the justificatory discourse, raises questions regarding how NGOs will convince project planners to take human rights risks into account when undertaking infrastructure projects.

Although many countries have only recently shifted away from the development approach and towards the global project finance approach, several countries have been pursuing projects under the latter approach since the late 1980s. Projects have been initiated and some even completed in such diverse infrastructure sectors as airports, dams, mining, power, roads, and telecommunications. We see a common mode of argumentation, with the market discourse driving the shift across sectors. Quite often, a small set of investment banks, international lawyers, and insurance firms have been involved in infrastructure projects under both approaches. At the same time, great variety exists across sectors in the companies, NGOs, governments, and other participants in specific projects.

To analyze the implications of this shift for the realization of human rights, this article employs the concept of a “human rights risk.” A human rights risk is simply the possibility that a human rights problem will adversely affect the interests of those persons undertaking an infrastructure project. Given the fact that a common set of actors—e.g. international bankers, transnational law firms, transnational corporations, a segment of elites in fully industrialized and developing countries—is involved in projects across periods, we may say that this group constitutes “those persons undertaking an infrastructure project.” This article inquires how this group approaches human rights under the development frame and then under the global project finance frame. Part I examines the various strategies undertaken by NGOs and community groups to manage human rights risks in the context of infrastructure projects—transnational public law litigation, anti-corruption legislation, and market-based mechanisms. Part II then compares how these strategies are employed with reference to projects undertaken under the development and global project finance approaches, examining the Narmada dams in India, the North-South Expressway in Malaysia, and the recently proposed Puebla-Panama Plan in Mexico. In conclusion, several observations are made regarding the significance of the shift towards privatized infrastructure projects for the realization of human rights.