Jump to ContentJump to Main Navigation
Realizing UtopiaThe Future of International Law$

The Late Antonio Cassese

Print publication date: 2012

Print ISBN-13: 9780199691661

Published to Oxford Scholarship Online: September 2012

DOI: 10.1093/acprof:oso/9780199691661.001.0001

Show Summary Details
Page of

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see www.oxfordscholarship.com/page/privacy-policy). Subscriber: null; date: 17 October 2018

State Sovereignty is Not Withering Away: A Few Lessons for the Future

State Sovereignty is Not Withering Away: A Few Lessons for the Future

Chapter:
(p.26) 3 State Sovereignty is Not Withering Away: A Few Lessons for the Future
Source:
Realizing Utopia
Author(s):

José E. Alvarez

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199691661.003.0003

Abstract and Keywords

The Westphalian system of nation-states remains the system that we have. State sovereignty, though not unfettered, is not withering away. States have pooled, shared, delimited, or delegated away some of their powers through treaties, but they but can always take back powers that they have previously negotiated away. Now nations are reasserting their ‘sovereignty’ vis-à-vis foreign investors through changes to their national laws or their treaties. Three lessons can be drawn for the future. To the extent there are choices to be made between global regulation and sovereign control, the outcome may not reflect a progress narrative but a historical dialectic that periodically swings back and forth as international norms encounter resistance at the national level, thereby triggering re-evaluation and modification of the international regime or its rules. All international regimes, no matter how well constructed, ultimately rely on states to implement them at the domestic level; how that implementation occurs is subject to considerable state discretion; and much can occur to an international regime as its rules are translated for domestic consumption or application. We need to remain vigilant when it comes to the North/South dimensions of international regimes and reactions to them.

Keywords:   nation states, sovereignty, investment regime, international regimes, global regulation, foreign investors

The Westphalian system of nation-states remains the system that we have. State sovereignty, which even according to Bodin was not unfettered, is not withering away. States have pooled, shared, delimited, or delegated away some of their powers through treaties, but they but can always take back powers that they have previously negotiated away. The best illustration of this can be found in the investment regime. For long major states including the United States have favoured the most effective and sovereignty-intrusive of our international regimes at the global level: the international investment regime which protects the rights of foreign investors and consists of some 3,000 bilateral investment treaties (BITs) and free trade agreements (FTAs) with investment chapters, as supplemented by de facto regulators of capital markets such as the IMF. Now, however, nations are reasserting their ‘sovereignty’ vis-à-vis foreign investors through changes to their national laws or their treaties. Three lessons can be drawn for the future: (i) to the extent there are choices to be made between global regulation and sovereign control, the outcome may not reflect a progress narrative but a historical dialectic that periodically swings back and forth as international norms encounter resistance at the national level, thereby triggering re-evaluation and modification of the international regime or its rules; (ii) all international regimes, no matter how well constructed, ultimately rely on states to implement them at the domestic level; how that implementation occurs is subject to considerable state discretion; and much can occur to an international regime as its rules are translated for domestic consumption or application; and (iii) we need to remain vigilant when it comes to the North/South dimensions of international regimes and reactions to them. (p.27)

1. Globalists v Sovereigntists

International lawyers are in a quandary when it comes to assessing the future of state sovereignty. Traditional international lawyers, particularly those based in Europe, have long been at war with Jean Bodin's and Thomas Hobbes’ ‘absolute’ sovereignty. Many believe that the victories achieved by Europeans over ‘outdated’ forms of exclusive sovereign control—as institutionalized in relatively effective European Union institutions—ought to be emulated and even deepened further, if not globally at least at the regional level. For believers in a Grotian world order, international norms, particularly but not only its peremptory rules, need to penetrate deeper and supersede national jurisdiction and law. On this view, global progress is measured by the extent sovereigntyyields to international rules designed to enhance community values.1 For those bent on advancing world order through law, the state-centricity of international law is a burdensome constraint since generally the more international regulation, international institutions, and internationalized adjudication, the better.2 Others, of a more ‘critical’ legal bent, have lauded the ‘wonderful artificiality’ of statehood, praising how governments have used their sovereignty to resist the dark sides of global governance.3

Such binary attitudes reflect opposing views of the benefits of global governance and not only distinct views of the value of the Westphalian system. Not everyone has been inspired, at the moral or intellectual level, by what Martti Koskenniemi has described in Chapter 1 as the ‘oceanic feeling’ endorsing universal brother/sisterhood. Some have found inspiration instead in old-fashioned statehood—on the premise that states, particularly but not only by those governed on democratic principles as defined by the West, provide a more reliable answer to those dissatisfied by the democratic and legitimacy deficits of international institutions.4 What traditional international lawyers see as the culmination of international law's (p.28) progress narrative is criticized by the second group as ideologically captured and politically contestable governance by ‘independent’ experts from nowhere.5

Although the later ‘crits’ are associated with academic movements that originated in North American law schools, the debate on the future of state sovereignty (or indeed whether it ought to have a future at all) retains a North/South dimension. The mostly European defenders of global institutions on behalf of a ‘world community’, including the editor of this volume who sees such a world as a ‘realistic utopia’, find themselves pitted against those who purport to speak on behalf of the South and who see the hard-won sovereignty of the formerly colonized as a last bastion of protection against overweening global tools of the market and institutionalized hegemony laundered as ‘international regulation’.6

As Martti Koskenniemi has suggested, both groups adhere to an instrumentalist or functionalist conception of sovereignty.7 Both seek to maximize welfare for the greatest number but hold opposing views of how best to effectuate this goal. The globalist, citing innumerable historical examples, sees sovereignty as shielding tyrannical governments that violate human rights or incompetent rulers whose governance failings fail their populations in many other respects. The sovereigntist, armed with abundant, if more recent, failings of global institutions as varied as UN peacekeeping and the IMF, counters that governments are in a better position to improve the welfare of their own peoples.

Koskenniemi castigates globalists for failing to interrogate their own conception of the good. He argues that the laudable objectives of global institutions—security, the eradication of poverty, peace—are all highly contestable goals subject to inescapable political assessments and choices that cannot be reduced to mere technocratic, scientific, or juridical determinations by the ‘international community’.8 His argument for sovereignty is that the territorially defined peoples of the world are entitled to the ‘thrill’ of participating in their own respective forms of self-formation—whether or not defined in terms of republican self-rule:9

Sovereignty expresses frustration and anger about the diminishing spaces of collective re-imagining, creation and transformation of individual and group identities by what present themselves as the unavoidable necessities of a global modernity…[S]overeignty points to the possibility, however limited or idealistic, that whatever comes to happen, one is not just a pawn in other people's games but, for better or for worse, the master of one's life.10

Debates between sovereigntists and globalists have filled the pages of scholarly journals but more importantly they have helped to generate competing reactions (p.29) to real-world dilemmas, as with respect to how best to handle the adjudication of mass atrocities. For some, such crimes should best be left to undisturbed domestic jurisdiction. For others, the history of immunity and amnesia at the national level compels international action but differences remain with respect to the continuing value of ‘sovereign’ control. The result is an ungainly assortment of international war crimes tribunals with primacy over national jurisdiction, an International Criminal Court subject to complementarity, and ad hoc ‘hybrid’ tribunals incorporating features of both international and national systems of justice—all of which are sometimes ‘complemented’ by other forms of accountability as diverse as Gacaca trials or truth commissions. For some globalists, this pragmatic outcome—reproduced in other regimes with proliferating international adjudicative fora operating in the absence of stare decisis or hierarchical means of control—encourages harmful fragmentation that de-legitimizes international law.11

2. The myth that the state is ‘withering away’

A considerable number of scholars, including political scientists, have argued that sovereignty is ‘waning’, ‘withering away’, is in ‘decline’, ‘retreat’, is already ‘dead’, or even that it has always been a ‘myth’.12 They point to the steady accretion of international law and its impact on virtually every legal domain irrespective of categorization as ‘public’ or ‘private’ or potential effect on matters involving ‘foreign affairs’. To the extent ‘sovereignty’ connotes, as classical writers suggested, supreme authority, or absolute, uncontested power over all matters within a territory, or freedom from outside interference, or the equivalent of a non-trespassing sign forbidding entry onto private property, or Greta Garbo's demand to be left alone, these sovereignty doubters are correct since no such thing exists today. Individual members of the European Union are not sovereign with respect to matters governed by EU law and, beyond Europe, modern sovereignty, as Abram and Antonia Chayes have noted, has been reduced to issues of status or membership in distinct international organizations—to which states have delegated away distinct (and growing) powers.13 These international organizations have become ‘autonomous’ agents capable of exercising implied and un-enumerated powers as pedestrian as the capacity to exercise forms of diplomatic protection (see Reparation for Injuries case) and as grand as de facto control over a state's economic and (p.30) social policies (eg IMF conditionality).14 Thanks to the institutional practice of such organizations as well as decisions rendered by our proliferating body of international judges, there has been a steady diminution in conceptions of ‘domestic jurisdiction’.15

Governments have found the premise in the Wimbledon case—the idea that entering into a treaty is an exercise of sovereignty not its diminishment—so alluring that treaties, inter-state organizations, and international tribunals have proliferated at a fast clip, overtaken only by other diverse forms of delegating sovereign power to others, such as hybrid intergovernmental organizations (eg the Internet Corporation for assigned Names and Numbers (ICANN)), private organizations governing and largely governed by market actors (eg the International Standardization Organization (ISO)), or transnational networks of sub-state actors or government regulators (eg the Basel Committee of central bankers). In other cases, states have authorized non-state third party beneficiaries of their treaties to bring claims against them in international tribunals, thereby generating the international ‘case law’ that has become the linchpin for ever-more developed international investment law and human rights law. The ‘private attorney generals’ charged with enforcing international investment law under Bilateral Investment Treaties (BITs) and Free Trade Agreements (FTAs) or international human rights law under human rights treaties have become, along with the adjudicators that accept their creative treaty interpretations, de facto lawmaking actors. Whether all of this is labelled ‘global administrative law’, species of ‘global constitutionalism’, ‘humanity's law’, or new forms of ‘ius gentium’,16 these diverse regulatory methods demonstrate the extent to which today's sovereigns, unlike Bodin's, are being governed by others. There is hardly an attribute of sovereignty—from the value of one's currency to the definition of one's nationals—that remains subject to absolute national control.17

But those who see in such developments the end of sovereignty have confused a normative agenda for reality. To use ‘absolute sovereignty’ as the starting point for measuring the ‘decline’ of the modern state is to deploy an old myth to propagate a new one. Even Bodin never really suggested that sovereigns were absolutely in control. He famously contended, on the contrary, that even sovereigns were bound by natural and divine law, including respect for customary and property rights—although he insisted that no human law could judge or appeal to it.18 In the real (p.31) world of states, sovereignty has never been an absolute but an accordion of powers subject to degrees of sovereign control. No single description of what ‘state sovereignty’ means is likely to satisfy because the set of attributes that defines a state changes over time and varies with the state in question. Sovereignty, never a legal term of art, is and remains a malleable concept. From Westphalia through to today, sovereigns have pooled, shared, delimited, or delegated away some of their powers.

The dictum in Wimbledon reflects reality. Sovereignty and global governance are not binary oppositions or the products of a zero sum game. Sovereigns may gain as much or more as they purportedly lose when they adhere to a treaty, join an international organization, or agree to binding international adjudication. Governments give their consent to such arrangements because these are in their interests, as where joining an international organization permits the centralization of the powers of members or permits them to find a neutral means to satisfy their mutual interests.19 States delegated the most far-reaching international power of all—the power to use force—to the Security Council on the premise that this enhances the collective security of all states, for example.

At the same time, states may change their minds and attempt to take back powers that they have previously delegated away. International regimes may provoke sovereign backlash, particularly when Grotian aspirations fail to materialize. Consider what is arguably the most effective and sovereignty-intrusive of our international regimes at the global level: the international investment regime which protects the rights of foreign investors and consists of some 3,000 BITs and FTAs with investment chapters, as supplemented by de facto regulators of capital markets such as the IMF.20 As is well known, the world of BITs and FTAs is touted as among the most legally effective treaty regimes in existence since, in most instances, its third party beneficiaries, foreign investors, have secure, direct access to binding international arbitration to enforce the rights that have been accorded to them, usually without the need to exhaust local remedies or secure the permission of their state of nationality (as was the case under diplomatic espousal).21

There is now overwhelming evidence that erstwhile defenders of this regime, such as the United States, prominent developing nations (such as Argentina, Bolivia, Ecuador, and Venezuela), and many nations in between, are now back-tracking from the strong investment protections they once accorded foreign investors under treaties and conforming national laws. The United States Model Bilateral Investment Treaty, once a single-minded instrument designed to accord (p.32) the strongest protection possible to the foreign investor, in the course of 20 years, has been ‘re-balanced’ to narrow virtually every one of the rights given to foreign investors, to permit host states to assert broad exceptions to the guarantees that remain, to otherwise expand the scope for government regulation, and to narrow the discretion of or jurisdiction accorded to investor-state arbitrators.22 Other countries’ revised model BITs and FTAs are following the same path to sovereign re-empowerment.23 The number of states engaged in ‘re-calibrating’ their model investment protection agreements, attempting to renegotiate old agreements, or reviewing their investment policies—all with the intent of providing host states with greater latitude to take measures to protect health, safety, and the environment, respond (sometimes in a ‘self-judging’ fashion) to their ‘essential security’ interests, or otherwise pursue their notions of the public interest—has become a flood.24 Nations are also reasserting their ‘sovereignty’ vis-à-vis foreign investors through corresponding changes in their national laws. (Thus, for the first time since 1992 when it began undertaking such surveys, UNCTAD's latest report on point found that more than 30 per cent of changes to national laws were in the direction of restricting not liberalizing the entry or treatment of foreign investment.25) States, including rich capital exporters such as the United States, Germany, and Canada, are reasserting or strengthening their rights to screen the entry of foreign investors, especially to the extent these are controlled by other states (such as China) or sovereign wealth funds.26 Those states that have been on the receiving end of investor-state dispute settlement, or its threat most often, are having second thoughts about the sovereignty that they have ceded to arbitrators, or, in the case of the leading respondent state, Argentina, are even refusing to pay arbitral awards.27

The message being sent by the state creators of the investment regime is apparently being heard by the regime's other principal actors, namely investor-state arbitrators. A number of recent awards by the International Centre for Settlement of Investment Disputes (ICSID), including those issued by ICSID annulment committees, are responding to the threats posed to the regime—and the institution of (p.33) investment arbitration—and are revisiting earlier awards seen as unfavourable to the interests of states. Some arbitrators are revisiting earlier expansive interpretations of investor guarantees or broadening their conceptions of permissible state defences.28 Some arbitrators, along with a chorus of academics, are endorsing the return to sovereign discretion and state empowerment.29 Indeed, one annulment decision goes so far in the direction of protecting the respondent state that it appears to endorse a considerable broadening of the general customary defence of necessity.30

The ‘return of the state’ that we are seeing within the investment regime reflects broader developments, including disillusionment with the formulas for ‘good governance’ pursued by international financial institutions and governments’ desires to respond to the latest economic crisis through any means necessary. The latter has also driven states to re-enter the economic marketplace as both regulators and as entrepreneurs, that is, through new forms of ‘state capitalism’.31 In the investment regime and elsewhere, most prominently in the course of the post 9/11 ‘war on terror’, states are also re-discovering Carl Schmitt's notoriously empowering ‘law of the exception’.32 In fora as distinct as UN human rights committees and investor-state arbitrations, states are now citing their need to protect ‘security’ (often redefined to extend to their economic, and not merely their military, needs) as an end-run against individuals’ rights-based arguments. At least when it comes to security, and perhaps more generally, even the Lotus presumption—states can do what is not explicitly forbidden—may be staging a modest comeback.33 In some cases we are now re-learning how periodic threats to the security of states can empower them and create new opportunities for state discretion with respect to even such well-established regimes as those governing the use of force or military occupation. Led by erstwhile defenders of the investment regime such as the United States, states are reasserting their rights to govern in a number of international regimes. (p.34)

3. Broader lessons for the future of sovereignty

For those trying to predict the future of sovereignty, contemporary developments suggest three lessons.

(A) Lesson 1: global governance may be subject to a dialectic and is not (or is not merely) a progress narrative

The ongoing sovereign backlash against the international investment regime has divided international lawyers. Even some Grotian defenders of internationalism, including Europeans, support the move to restore ‘sovereign policy space’ in this instance.34 The drive to establish global rules in defence of property rights, along with a scheme to enforce these internationally that was by most measures more effective than even regional systems for human rights protections has been seen by some as insufficiently deferential to sovereigns and to others whom sovereigns are committed to protect.35 Even some Grotians are uncertain about whether in this case the turn to international governance and international adjudication truly enhances global welfare. Comparable doubts exist with respect to the net value added by other regimes, such as IMF conditionality or the turn to Security Council ‘legislation’. In these cases, as with respect to the investment regime, the preferred solution seems to be to restore sovereign discretion and not to increase the number of international rules that we have. Even some erstwhile Grotians doubt the proposition that global progress is marked by progress in global law.

The backlash against the investment regime suggests that to the extent there are choices to be made as between global regulation and sovereign control, the outcome may not reflect a progress narrative but a historical dialectic that periodically swings back and forth as international norms encounter resistance at the national level, thereby triggering re-evaluation and modification of the international regime or its rules.36 In the case of the international investment regime, there appears be a recursive cycle between champions of the market and regulation. If so, prognosticators of sovereignty should not be guided by those international lawyers who see only ever-rising levels of international regulation amidst steadily receding sovereignty such that one day, we would all banish, along with Louis Henkin, the ‘S’ word from our vocabulary. Perhaps those seeking to predict the future of sovereignty should be guided instead by historical prognosticators such as Karl Polanyi or describers of historical cycles’ effects on developing states such as Amy Chua.37 (p.35) Notably, neither of these authors denies the possibility that both states and global regulators can learn lessons from the mistakes of the past. Those who see recursive change as the dominant trend do not suggest that historical cycles simply revert to prior reversions of the status quo without change. The key insight is that the interaction between global regimes and ‘sovereign’ actors (and sub-actors) is a key ingredient in the transnational legal process.

(B) Lesson 2: sovereignty remains important even after a Grotian ‘win’

As is implicit in lesson 1, the states which, after all, establish global legal regimes retain exit and voice options that can radically transform these regimes over time. While some of these options—such as withdrawing from ICSID, changing the texts of model treaties, or refusing to conclude more BITs—are obvious, others are far more subtle.38 Those who built ICSID on the premise that this arbitration would ‘de-politicize’ the settlement of investor-state disputes probably did not anticipate that politics could re-emerge in the course of those arbitrations, albeit in a subtler form than the use of gunboat diplomacy to enforce diplomatic espousal of an investor's claim. They probably did not anticipate that party-appointed arbitrators and others would respond as much as they have to the needs of states—or to the prospect that states, if sufficiently threatened by arbitral awards, might pull the plug on the entire enterprise, including by failing to comply with such awards. They probably did not anticipate how the powerful legitimating forces urged on by international civil society in favour of transparency and acceptance of amicus briefs would help to transform perceptions of investor-state arbitration. They did not foresee how that institution—once seen as merely another form of commercial dispute settlement—would come to be seen as a high-profile venue for contestable forms of ‘public adjudication’.39 They did not foresee that as investor-state adjudications became regular sites for the proclamation of ‘good governance’, they would receive the same attention—and draw the same politicized contestation—as other forms of ‘constitutionalization’.40

Global governance schemes are as malleable as sovereignty. Even when they do not elicit backlash on the magnitude as that evident in the international investment regime, they prompt reactions and are subject to periodic or continuous contestation. This is so if only because all international regimes, no matter how well constructed, ultimately rely on states to implement them at the domestic level. How that implementation occurs is subject to considerable state discretion. Much can occur to an international regime as its rules are translated for domestic consumption or application.41 (p.36)

(C) Lesson 3: there are flaws and continuing values in seeing the contest between sovereignty and global governance through a North/South lens

The United States’ leadership role in re-storing ‘sovereign’ policy space in the investment regime runs somewhat counter to the usual North/South narrative. Critics of ‘hegemonic’ international law, and particularly of economic legal regimes such as the IMF or that governing investment, would not have predicted that the world's leading capital exporter, the state that has the most to gain from enhancing international protections for foreign investors, that has done the most to dismantle the Calvo doctrine that once barred investors from resorting to any forum other than local courts, and that produced the most investor-protective BIT in existence, would be leading the drive in the opposite direction. What these critics failed to anticipate was that the United States, along with other leading capital exporters and importers such as China, would eventually need to confront the reciprocal aspects of the investment regime. For the United States, repeated exposures as a respondent state within the North American Free Trade Agreement (NAFTA) has brought home the fact that it is not always easy to satisfy the legal conditions that it had blithely and for so long required of others.

As the example of the backlash now occurring against the investment regime suggests, it is too simple to portray supporters of global governance and its resisters in North/South terms—even when the underlying regimes were originally constructed by and for the interests of the North. Even a bilateral regime such as that of BITs constructed on model treaties drafted by Western states can acquire multilateral dimensions and come back to bite those very nations—particularly when the interpretation of investor protections is handed over to third party adjudicators.42 Consider the once innocuous fair and equitable treatment (FET) provision in BITs and FTAs. As that guarantee has been transformed in the course of investor-state adjudication from a basic prohibition on egregious denials of justice by states with weak judicial institutions into a tool of ‘global administrative law’ requiring far more exacting standards of process and procedure, even wealthy ‘rule of law’ states have felt its sting.43 At the same time, as some states of the ‘global South’ have developed their own multinational enterprises capable of investing abroad, those states—such as India, Egypt, China, and even Cuba—have become supporters of strong investment protections through BITs.44 As this suggests, it is not always easy to predict which states will defend or resist an international regime. In any case, predictions may be refuted as conditions change and states change their minds over time, in either direction.

The example of the contemporary investment regime suggests that we need to remain vigilant when it comes to the North/South dimensions of international (p.37) regimes and reactions to them. The extent of the backlash against the investment regime surely has something to do with the prominence and power of some of the states leading the charge. And how that backlash manifests itself—whether through defiant refusals to comply, withdrawals for ICSID, renunciations from BITs, or more subtle changes in the emerging case law— has a great deal to do with the respective powers of the states that are trying to exercise their ‘exit and voice’ options. Many states, particularly in Africa, are too disempowered to exercise these options or to do so without fear of severe consequence. Some states are more capable of ‘exit and voice’, in this regime as with respect to others.

For this reason, Koskenniemi's defence of sovereignty as enabling peoples to be ‘masters’ of their lives is subject to a significant caveat: the capacity to enjoy his ‘thrill’ of self-empowerment is not distributed evenly. Those who construct international regimes are very much aware, on the contrary, that states do not enjoy the sovereign equality that international law formally bestows upon them. Indeed, a common goal of globalists who construct such regimes is precisely to put more states on a more level playing field. Despite Koskenniemi's eloquent defence of sovereignty, Grotians may be on to something when they exalt the worth of their schemes for global governance.

4. Concluding remarks

These lessons do not provide clear guide-points for sovereignty's future. Like Koskenniemi's ‘oceanic feeling’ in favour of global brother/sisterhood, support for greater ‘sovereignty’ in particular instances—including within the investment regime—requires a defence in moral, legal, or economic terms. At the same time, the Westphalian system of nation-states—admittedly a blink of an eye in the scope of human history—remains the system that we have. How states react to global regimes over time remains the single greatest determinant of whether these regimes will succeed or fail, evolve or stagnate.

Notes:

(1) This point of view is suggested by Antonio Cassese's Introduction to this volume.

(2) For excellent examples in this volume of recipes for ‘progress’ along these lines, see Chapter 13, A. Cassese, ‘For an Enhanced Role of Jus Cogens’ (urging the use of jus cogens as a tool against state immunity); Chapter 24, id, ‘Fostering Increased Conformity with International Standards: Monitoring and Institutional Fact-Finding’ (urging greater adoption of these tools to ensure state compliance with international standards); Chapter 15, id, ‘Towards a Moderate Monism: Could International Rules Eventually Acquire the Force to Invalidate Inconsistent National Law?’ (recommending international and national measures, especially at the regional level, to secure the ‘true superiority’ of international over national norms).

(3) M. Koskenniemi, ‘The Wonderful Artificiality of States’, ASIL Proceedings of the 88th Annual Meeting (1994), 22. See also B. Kingsbury, ‘Sovereignty and Inequality’, 9 EJIL (1998) 599 (arguing that discarding sovereignty would intensify inequality, weaken restraints on coercive intervention, diminish critical roles of the state as the locus of identify and an autonomous zone of politics, and re-divide the world into zones, as between ‘liberal’ and ‘non-liberal’ states).

(4) For a useful survey of the democratic objections lodged against international institutions, see E. Stein, ‘International Integration and Democracy: Love at First Sight’, 95 AJIL (2001) 489.

(5) See, eg, D. Kennedy, ‘Challenging Expert Rule: The Politics of Global Governance’, 27 Sydney JIL (2005) 5.

(6) For those associated with Third World Approaches of International Law (TWAIL), global governance institutions as diverse as the UN Security Council, UN human rights bodies, the IMF, or the WTO are neo-colonialist in orientation and/or effect. See, eg, M. Mutua, ‘What is TWAIL?’, ASIL Proceedings of the 94th Annual Meeting (2000), 31; R. Gordan, ‘Saving Failed States: Sometimes a Neocolonialist Notion’, 12 Am U J Int'l L &Pol'y (1997) 903. For an ideological critique, see S. Marks, ‘Big Brother is Bleeping Us—With the Message that Ideology Doesn't Matter’, 12 EJIL (2001) 109.

(7) Koskenniemi, n 3 (What use for sovereignty today?).

(8) ibid, XXX.

(9) ibid.

(10) ibid.

(11) See, eg, ILC Fragmentation Project.

(12) See, eg, E. Lauterpacht, ‘Sovereignty—Myth or Reality?’, 73 Int'l Affairs (January 1997); C. Schreuer, ‘The Waning of the Sovereign State: Towards a New Paradigm for International Law?’, 4 EJIL (1993) 447; T.G. Weiss et al, ‘Sovereignty under Siege: From Intervention to Humanitarian Space’, in G. Lyons and M. Mastaduno (eds), Beyond Westphalia?: State Sovereignty and International Intervention (Baltimore: John Hopkins University Press, 1995), 87; J.A. Camilleri and J. Falk, The End of Sovereignty? The Politics of a Shrinking and Fragmenting World (Cheltennam: Edwin Elgar, 1992); A. Rosas, ‘The Decline of Sovereignty: Legal Perspectives’, in J. Livonen, The Future of the Nation State in Europe (Cheltenham: Edwin Elgar, 1993). In addition, see the various papers published in the special issue of Daedalus: ‘What Future for the Nation State?’ 124(2) Daedalus (1995). See also N. MacCormick, ‘Beyond the Sovereign State’, 56 MLR (1993) 1.

(13) A. Chayes and A. Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (Cambridge MA, London: Harvard University Press, 1995), 27.

(14) See generally, R. Collins and N.D. White (eds), International Organizations and the Idea of Autonomy: Institutional Independence in the International Order (London and New York: Routledge; 2011).

(15) For evidence drawn from the practice of the UN General Assembly and Security Council concerning the shrinking domain of Art. 2(7) of the UN Charter, see, eg, J.E. Alvarez, International Organizations as Law-Makers (Oxford: Oxford University Press, 2005), 146–83.

(16) See, eg, B. Kingsbury, N. Kirsch, and R.B. Stewart, ‘The Emergence of Global Administrative Law’, 68 L & Cont Prob (2005) 15 (describing forms of ‘global administrative law’ and ‘ius gentium’); R. Teitel, ‘Humanity's Law: Rule of Law for the New Global Politics’, 35 Cornell Int'l LJ (2002) 355; D. Schneiderman, Constitutionalizing Economic Globalization (Cambridge: Cambridge University Press, 2008); A. Stone Sweet and J. Matthews, ‘Proportionality Balancing and Constitutionalism’, 47 CJTL (2008) 73.

(17) See, eg, D. Patterson and A. Afilalo, The New Global Trading Order (Cambridge: Cambridge University Press, 2008); Roundtable on Citizenship, ASIL Proceedings of the 101st Annual Meeting (2007), 89.

(18) J. Bodin, On Sovereignty (J.H. Franklin ed. and trans., Cambridge: Cambridge University Press, 1992), 44–5.

(19) See K. Abbott and D. Snidal, ‘Why States Act through Formal International Organizations’, 42 J Conflict Resolution (1998) 3 (describing the functionalist attributes of international organizations in terms of centralization and independence).

(20) For an account of the rise and evolving nature of the international investment regime, see J.E. Alvarez, ‘The Once and Future Foreign Investment Regime’, in M.H. Arsanjani et al (eds), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman (Leiden: Nijhoff, 2011), 607. For a description of IMF conditionality as a form of investment regulation, see D. Kalderimis, ‘IMF Conditionality as Investment Regulation: A Theoretical Analysis’, 13 Soc & Leg Stud (2004) 104, at 113–19.

(21) For an extended argument that the rise of investor-state arbitration through state contracts and BITs reflects the ‘advancement’ of international law, see C. Leben, The Advancement of International Law (Oxford: Hart Publ., 2010).

(22) For a detailed enumeration of the changes to the US Model BIT over time, see, eg, J.E. Alvarez, ‘The Evolving BIT’, in I.A. Laird and T.J. Weiler (eds), Investment Treaty Arbitration and International Law (New York: Juris Net, 2010), 1; K.J. Vandevelde, ‘A Comparison of the 2004 and 1994 US Model BITs: Rebalancing Investor and Host Country Interests’, Ybk Int'l Investment L & Pol'y (2008–09) 283.

(23) See, eg, UNCTAD, World Investment Report 2010, 81–90.

(24) See, eg, UNCTAD Reports.

(25) UNCTAD Report 2011.

(26) For a general overview of these developments, see J.E. Alvarez, ‘Why are We “Re-calibrating” our BITs?’, in World Arbitration & Mediation Rev (forthcoming 2011). For specific descriptions of national security screening, see M.E. Plotkin and D.N. Fagan, ‘Foreign Direct Investment and US National Security: CFIUS under the Obama Administration’, Columbia FDI Perspectives, No. 24, 7 June 2010; S. Bhattacharjeee, ‘National Security with a Canadian Twist: The Investment Canada Act and the New National Security Review Test’, available at 〈http://www.vcc.columbia.edu/content/national-security-canadian-twist-investment-canada-act-and-new-national-security-review-test〉; M.E. Plotkin and D.N. Fagan, ‘The Revised National Security Process for FDI in the US’, available at 〈http://www.vcc.columbia.edu/content/national-security-canadian-twist-investment-canada-act-and-new-national-security-review-test〉.

(27) See, eg, K. P. Sauvant, ‘A Backlash against Foreign Direct Investment?’, Economist Intelligence Unit, World Investment Prospects to 2010: Boom or Backlash? (2006).

(28) See annulment rulings in CMS v Argentina, available at 〈http://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal=showDoc&docId=DC687_En&caseId=C4〉; Sempra v Argentina, available at 〈http://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal=showDoc&docId=DC1550_En&caseId=C8〉; Enron v Argentina, available at 〈http://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal=showDoc&docId=DC830_En&caseId=C3〉. For a critique of these decisions, see J.E. Alvarez, ‘The Return of the State’ (20 Minnesota J Int'l L (2011) 223).

(29) See, eg, O. Hall, Public Statement on the International Investment Regime, available at 〈http://www.osgoode.yorku.ca/public_statement/〉.

(30) See, eg, Alvarez, n 28, discussing the annulment ruling in Enron v Argentina.

(31) See, eg, K. Pistor (with C. Milhaupt), Law and Capitalism: What Corporate Crises Reveal about Legal Systems and Economic Development around the World (Chicago: University of Chicago Press, 2008).

(32) C. Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty ([1922] G. Schwab trans., Chicago: University of Chicago Press, 2005), 10–15. See also D. Dyzenhaus, The Constitution of Law, Legality in a Time of Emergency (New York and Cambridge: Cambridge University Press, 2006).

(33) See Separate Opinion by Judge Simma in ICJ Advisory Opinion in Kosovo.

(34) See, eg, O. Hall, Statement, n 29 (containing signatures of 37 prominent academics, including many international lawyers, from both sides of the Atlantic).

(35) For a comparison of the investment and human rights regimes, see G. Van Harten and M. Loughlin, ‘Investment Treaty Arbitration as a Species of Global Administrative Law’, 17 EJIL (2006) 121.

(36) For examples of the cycles of ‘recursive change’ in a number of international regimes, see G. Schaffer, ‘Transnational Legal Process and State Change: Opportunities and Constraints’, available at 〈http://ssrn.com/abstract=1612401〉.

(37) K. Polanyi, The Great Transformation (Boston, MA: Beacon Press, 1944); A. Chua, World on Fire: How Exporting Free Market Democracy Breeds Ethnic Hatred and Global Instability (New York: Doubleday, 2002).

(38) For an interesting analysis of the continuing power of states to influence the interpretation of their investment treaties over time, see A. Roberts, ‘Power and Persuasion in Investment Treaty Interpretation: The Dual Role of States’, 104 AJIL (2010) 179.

(39) See, eg, G. Van Harten, Investment Treaty Arbitration and Public Law (Oxford: Oxford University Press, 2007).

(40) See, eg, D. Schneiderman, Constitutionalizing Economic Globalization (Cambridge: Cambridge University Press, 2008).

(41) See, eg, Schaffer, n 36.

(42) See generally, S. W. Schill, The Multilaterization of International Investment Law (Cambridge: Cambridge University Press, 2009).

(43) See, eg, B. Kingsbury and S. Schill, ‘Investor-State Arbitration as Governance: Fair and Equitable Treatment, Proportionality and the Emerging Global Administrative Law’, in B. Kingsbury et al (eds), El Nuevo Derecho Administrativo Global en América Latina (Buenos Aires: Rap, 2009), 221.

(44) See J.E. Alvarez, ‘Contemporary Foreign Investment Law: An “Empire of Law” or the “Law of Empire”?’, 60 Ala L Rev (2009) 943.