From the SelectedWorks of Milena Sterio

February 2008

The Evolution of International Law

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 The Evolution of International Law
Milena Sterio*

I. Introduction

Globalization, a phenomenon which can be described as inter-connectivity

between regions, peoples, ethnic, social, cultural and commercial interests across the
globe, has affected different legal fields, one of which is international law.1 Reshaped by
the potent forces of globalization, international law has transformed itself from a set of
legal rules governing inter-state relations, to a complex web of transnational documents,
providing a normative framework for all sorts of different actors on the international legal
scene.2 Phenomena which used to belong to domestic realms are now examined and
monitored through the international legal lens. Our planet is “shrinking” because issues
such as the environment, nuclear weapons, disease and terrorism have become of global
concern, and are thus measured by international law parameters.3 Domestic law has lost
its omnipotent, “sovereign” power and is now supplemented, corrected, and watched over
by international law.4 Thus, international law has undergone an evolutionary process
over the recent decades, transforming itself from an inter-state conflict resolution
instrument, to a powerful global tool, present in every-day life and influential of many
state actors’ and non-state entities’ decisions and policies.
This Article examines the evolution of international law brought about by the
impact of globalization, as well as the role that globalized international law plays in
different legal fields, and the impact that it asserts on state and non-state actors. First,
this Article describes the transformation of international law, by focusing on four
different phenomena: the proliferation of actors in international law; the proliferation of
*
Assistant Professor of Law, Cleveland-Marshall College of Law. J.D., Cornell Law School, magna cum
laude, 2002; Maitrise en Droit (French law degree), Université Paris I-Panthéon-Sorbonne, cum laude,
2002; D.E.A. (master’s degree), Private International Law, Université Paris I-Panthéon-Sorbonne, cum
laude, 2003; B.A., Rutgers University, French Literature and Political Science, summa cum laude, 1998.
The author would like to thank Ekaterina Zabalueva for her excellent research assistance and input with
this Article.
1
Many scholars have attempted to define globalization. See, e.g. Paul Schiff Berman, From International
Law to Law and Globalization, 43 COLUM. J. TRANSAT’L L. 485, 490 (2005); Philippe Sands, Turtles and
Torturers: The Transformation of International Law, 33 N.Y.U. J. INT’L L. & Pol. 527, 537 (2001); see
also infra Part II. Legal scholars also refer to globalization, for example, by calling for the need for a
broader frame of analysis entitled “law and globalization.” Berman, supra note 1, at 490.
Moreover, the term “globalization” has been used in many different fields besides the law, such as
anthropology, sociology, etc. For example, anthropologists have argued that we live in the “global cultural
ecumene” or a “world of creolization.” Ulf Hannerz, Notes on the global Ecumene, PUB. CULTURE, Spring
1989, at 66; Robert Foster, Making National Cultures in the Global Ecumene, 20 ANN. REV.
ANTHROPOLOGY 235 (1991); Ulf Hannerz, The World in Creolisation, 5 AFR. 546 (1987). Sociologists,
similarly, have shifted their emphasis from bounded “societies” to a “starting point that concentrates upon
analyzing how social life is ordered across time and space….” Anthony Giddens, THE CONSEQUENCE OF
MODERNITY 64 (1990).
2
See infra Part II.
3
John Alan Cohan, Sovereignty in a Postsovereign World, 18 FLORIDA J. INT’L L. 907, 910 (2006).
4
Id. at 936 (“[t]he traditional Westphalian notion of sovereignty by which a state had absolute territorial
control and the right to exercise domestic powers free from external constraints has, in large part, become
unrecognizable.”); id. at 941 (“[i]n various ways, the scope of sovereignty today is determined in a ‘top-
down,’ or vertical fashion, with international norms being imposed from without.”) .

1
norms in international law; the proliferation of organizations in international law; and the
expansion of jurisdiction in international law. Then, this Article assesses the role that
globalized international law plays in different legal fields, namely, international human
rights, international criminal law, and private international law. Finally, this Article
focuses on the impact that globalized international law has played on state actors, as well
as on the individual, by reshaping their behavior in the international realm.

II. Transformation of International Law

International law, as studied through a traditional framework, included two types

of normative systems: one promulgated by states themselves for their domestic relations,
and the other promulgated among states for inter-state relations.5 Throughout the 20th
century, such a formal view of international law became inadequate. For one, the
creation of individually enforceable norms in the field of international human rights
transformed individuals into international law players.6 Moreover, non-governmental
organizations (“NGOs”) came to play a prominent role on the international legal scene, as
did various regional organizations, institutions, and judicial bodies.7 The proliferation of
actors in international law contributed to a proliferation of international legal norms.
Moreover, even classic legal actors, such as courts, changed their role in light of this
modernization of international law. For example, judges today seem more willing to
apply international norms transnationally, to engage in a transnational judicial dialogue,
or to condone conceptions of universal jurisdiction.8
Thus, as scholars have already noted, international law has transformed itself,
changed by the powerful forces of globalization.9 Globalization refers to a “stretching
process,” in which “connections have been made between different social contexts or
regions and become networked across the earth as a whole.”10 For the purposes of
international law, globalization means that in a globalized world, international law
recognizes different state interests and finds ways to give effect to them, with the specific
consequence that what one state does on a particular matter may be of specific interest to
another state.11 Thus, activities which were treated as local under the traditional
conception of international law are now internationalized.12
Moreover, to add to this globalization puzzle, international legal norms seem no
longer to be created mainly by state actors; rather, today we deal with a world of
transnational law-making, cross-border activity and interaction, where state and non-state
actors together “disseminate alternative normative systems across a diffuse and

5
Berman, supra note 1, at 485.
6
Id. at 488.
7
Id. at 488-89.
8
Id. at 489. For a discussion of universal jurisdiction, see infra, Part II.D.
9
See generally Sands, supra note 1, Berman, supra note 1.
10
Sands, supra note 1, at 537; see also Giddens, supra note 1, at 64. On globalization in general and its
effect on the law, see, e.g., RICHARD A. FALK, PREDATORY GLOBALIZATION: A CRITIQUE (1999); Peter J.
Spiro, Globalization, International Law, and the Academy, 32 N.Y.U. J. INT’L L. & POL. 567 (2000);
Brigitte Stern, How to Regulate Globalization? in THE ROLE OF LAW IN INTERNATIONAL POLITICS 247 (M.
Byers ed., 2000).
11
Sands, supra note 1, at 537.
12
Id. at 538.

2
constantly shifting global landscape.”13 The phenomena worth describing brought about
by the globalization of international law include the proliferation of actors, norms, and
organizations in international law, as well as the expansion of traditional international
jurisdictional concepts.

A) New Actors in International Law

Traditionally, international law involved state actors and inter-state relations.14

Individuals, organizations, regional bodies, non-governmental institutions and the like
were left outside the reach of international law. 15 The United Nations was a forum open
exclusively to state parties. The International Court of Justice (“ICJ”), as well as its
predecessor, the Permanent Court of International Justice, were fora reserved for state
grievances only.16 It was inconceivable that an individual would come before such
tribunals, or that international law would govern anything but relations among state
parties.17
Today, the converse is true. International law, in its transformed or globalized
version, governs all sorts of relations, including those implicating states, regional bodies,
NGOs, trade organizations, commercial actors, and private individuals.18 It spreads into
legal fields such as environmental law, labor law, trade regulations, antitrust, health, and
insurance law, inter alia. Non-state actors play increasingly important roles in such
fields.19 Examples of such non-state actors that have assumed player roles in globalized
international law involve regional organizations, specialized bodies such as trade
organizations, NGO’s, as well as private individuals.
For example, regional organizations play dominant roles within their
“jurisdictions.” The North American Free Trade Alliance (“NAFTA”) is such a regional

13
Berman, supra note 1, at 492.
14
Id. at 492 (noting that traditional international law scholars located international law “in the acts of
governmental bureaucratic entities, such as the treaties and agreements entered into by nation-states, the
declarations and protocols of the United Nations… or other affiliated bodies, and the rulings of
international courts and tribunals.”); see also BARRY E. CARTER & PHILIP R. TRIMBLE, INTERNATIONAL
LAW 2 (3d ed. 1999) (“Public international law primarily governed the activities of governments in relation
to other governments.”).
15
BARRY E. CARTER, PHILIP R. TRIMBLE, ALLEN S. WEINER, INTERNATIONAL LAW (5th ed. 2007) at 14
(noting that the traditional concept of international law “was generally one of law between nation states.”)
[hereinafter “Carter, Trimble, Weiner”].
16
Id. at 10-12 (noting the establishment of the Permanent Court of International Justice in 1921, and of the
International Court of Justice in 1946, which were courts designed to “resolve legal disputes among
nations.”).
17
Berman, supra note 1, at 487 (noting that in an earlier generation, the study of international law focused
on norms promulgated by nation-states and among nation-states).
18
Paul Schiff Berman, A Pluralist Approach to International Law, YALE J. INT’L L. 301, 312 (2007)
(noting that we need “a more fine-grained, nuanced understanding of the way legal norms are passed on”
from such different groups in order to begin to study law and globalization) [hereinafter “Berman, Pluralist
Approach”].
19
Id, at 312 (noting that a wide variety of non-state actors are engaged in the establishment of norms,
which operate internationally and transnationally); id. at 321 (noting that states themselves are increasingly
“delegating power to private actors who exist in a shadowy world of quasi public/quasi private authority.”).

3
power that acts as a sovereign in matters of trade within the North American continent.20
In Europe, the European Union undertakes a sovereign role in matters such as labor law,
consumer regulations, antitrust, environmental law, etc.21 Moreover, NGOs play a
hugely important role on the international scene. They challenge traditional models of
state sovereignty with regard to different areas of law, and in particular human rights
norms; they formulate global standards of corporate behavior; and they generally claim to
represent some sort of a global interest.22 As another example, trade organizations, such
as the World Trade Organization (“WTO”), dictate the terms of global trade by creating
norms, by establishing an entirely new jurisdiction that handles disputes, and by tying
state and non-state interest in a global web of trade relationships embodied in the
organization’s structure and processes.23 Finally, private individuals exercise an
increasing amount of influence in the international legal field.24 Private parties can now
enter into investment treaties with state parties; moreover, they can sue state parties in
specific tribunals for breaches of such investment relations.25 Private parties can also rely
on international law to obtain certain guarantees, particularly in the field of human rights,
and they can also sue state parties for violations of such international standards.26

20
Berman, supra note 1, at 535 (discussing NAFTA ad hoc tribunals and their authority over national
courts on trade matters as an example of NAFTA’s power in terms of articulating jurisdictional norms).
21
Cohan, supra note 3, at 940-941 (2006) (discussing the role of the EU in modern world and noting that
the EU has been an active participant in many substantive conferences, such as the U.N. Conference on the
Law of the Seas, the Conference on Cooperation and Security in Europe, several environmental
organizations, and that it is a member of the Food and Agriculture Organization).
22
Berman, supra note 1, at 546 (noting the NGO’s are being taken into account by scholars more and more
“as an important normative force on the international scene”); id. at 547 (noting that NGO’s formulate
global standards of corporate behavior, and that such codes of conduct have emerged mostly in the human
rights field, environmental protection, and fair labor standards); id. at 548 (noting that “NGO’s often claim
to represent a global polity.”). Note, however, that some view NGO’s more as interest groups focused on
particular issues than as representatives of general constituencies. Kenneth Anderson, The Ottawa
Convention Banning Landmines, the Role of International Non-governmental Organizations and the Idea
of International Civil Society, 11 EUR. J. INT’L L. 91 (2000). .
23
Many commentators have noted the increasing role of the WTO in developing a global common law of
international trade. See, e.g., Raj Bhala, The Myth About Stare Decisis and International Trade Law (Part
One of a Trilogy), 14 AM. U. INT’L L. REV. 845, 850 (1999); Berman, supra note 1, at 521.
24
“The concerns, the actors, and the processes of ‘public’ international law have been expanded –
‘privatized’- in this century.” Ralph Steinhardt, The Privatization of Public Law, 25 GEO. WASH. J. INT’L L.
& ECON. 523, 544 (1991). See also Berman, supra note 1, at 510 (noting that conflicts law and
international business transactions have become a “staple of state-to-state relations, and non-state or private
actors have taken an increasingly important role in the articulation and enforcement of international
standards.”).
25
Under the Convention on the Settlement of Investment Disputes between States and Nationals of Other
States (“ICSID Convention”), private creditors are allowed to sue debtor states in an international forum.
ARON BROCHES, SELECTED ESSAYS: WORLD BANK, ICSID, AND OTHER SUBJECTS OF PUBLIC AND PRIVATE
INTERNATIONAL LAW 198 (1995); IGNAZ SEIDL-HOHENVELDERN, COLLECTED ESSAYS ON INTERNATIONAL
INVESTMENTS AND ON INTERNATIONAL ORGANIZATION 374 (1998). See generally G. Richard Shell, The
Trade Stakeholders Model and Participation by Nonstate Parties in the World Trade Organization, 25 PA.
J. INT’L ECON. L. 703, 715 (2004).
26
For example, individuals can now bring their claims against state parties directly in the European Court of
Human Rights. Sands, supra note 1, at 546-547 (describing the evolution in the European Court of Human
Rights procedures, culminating in allowing access to the tribunal to individual victims). Similarly,
individuals can bring complaints against state parties in the Inter-American Court of Human Rights.
Claudio Grossman, The Velasquez Rodriguez Case: The Development of the Inter-American Human Rights

4
 Thus, it is no longer true that international law represents a body of law that
governs relations among states; on the contrary, it is a complex web of treaties,
regulations, customary norms, codes of conduct and the like that shapes relationships
among state as well as non-state actors along horizontal and vertical axis of power.27

B) Proliferation of Norms in International Law

International law today encompasses thousands of different norms.28 Those

include, inter alia, multiple conventions and treaties in a multitude of areas of law, a
significant number of customary norms ranging from fields such as human rights to
foreign direct investment, a vast number of international legal decisions stemming from
various international tribunals, numerous international legal doctrines emanating from
scholars and publicists writing in a broad range of fields, as well as soft law instruments
such as codes of conduct, gentlemen’s agreements, governmental statements, etc.29
Such a proliferation of international legal norms stems from several factors. First,
the latter half of the 20th century has witnessed a proliferation in the number of
international legal bodies – organizations, institutions, conferences, tribunals – which all,
as one of their roles, draft and issue international law instruments.30 Second, also over
the course of the last century, international law has expanded into a variety of fields that
had traditionally been left to state sovereign reign.31 International law now governs areas
like health law, consumer law, labor law, and antitrust law, which entails more
international laws and regulations in those areas.32 Third, and most important,
international law now plays a different role in today’s globalized world. While a century
ago, international law was only meant to govern relations among states,33 this is no longer
true. International law aims to influence a variety of state and non-state actors, in many

System, in INTERNATIONAL LAW STORIES 81-83 (John E. Noyes, Laura A. Dickinson, Mark W. Janis eds.
2007) (describing the Inter- American Court’s complaints procedure) [hereinafter “Grossman, International
Law Stories”]. See also Berman, supra note 1, at 521 (noting a proliferation of international tribunals in
the human rights area); infra Part III.A.
27
See Berman, A Pluralist Approach, supra note 18, at 311 (challenging the “top-down” conception of
international law and calling for the need “to approach the multifaceted ways in which legal norms
develop.”).
28
Sands, supra note 1, at 548 (noting a great increase in the norms of international law).
29
See, e.g., Jeffrey L. Dunoff, Steven R. Ratner, David Wippman, INTERNATIONAL LAW: NORMS, ACTORS,
PROCESS (2nd ed. 2006) at 28 [hereinafter “Dunoff, Ratner, Wippman”].
30
See, e.g., Sands, supra note 1, at 553 (noting that today there are over twenty-five permanent
international courts and tribunals); see also Carter, Trimble, Weiner, supra note 15, at 11-13 (describing the
different international norm-creating institutions that have developed since World War II); see also Harold
Hongju Koh, Is There a “New” New Haven School of International Law, 32 YALE J. INT’L L. 559, 564
(2007), (noting that today we live in a world where non-state actors are capable of serving as transnational
decisionmakers) [hereinafter “Koh, ‘New’ New Haven School”].
31
Sands, supra note 1, at 548 (“International laws now address a broad and growing range of economic,
political, and social matters.”); Id. at 548-49 (noting that the same proliferation of international law erodes
state sovereignty).
32
Dunoff, Ratner, Wippman, supra note 29, at 29 (noting that both the breadth and depth of international
law have increased, “as the law regulates more areas than ever before…”).
33
International law traditionally was seen as a set of rules with the object of preserving the “peace and
harmony of nations.” See, e.g., IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 287 (3rd ed.
1979).

5
different legal fields, along different normative axis.34 It influences states’ legislative
bodies,35 supreme judicial organs,36 individual expectations,37 diplomatic concerns,
foreign policy issues, as well as a vast number of domestic legal areas on a substantive
level.
While it may be true that the proliferation of legal norms itself contributed to the
fact that international law seems so inherently present in such different legal spheres, it
may conversely be said that the higher level of interaction among state and non-state
parties in the recent decades has caused the very same proliferation of international legal
rules. In other words, the more states and non-state actors interact, the more friction they
create and the more law they need in order to resolve their differences. Similarly, global
interaction also induces parties to negotiate to prevent friction and future disputes,
thereby contributing to the proliferation of international legal norms.

C) Proliferation of Organizations in International Law

International law has not only witnessed a proliferation of legal norms, it has also
witnessed an expansion in the number of international legal organizations. At the end of
World War I, victorious states created the League of Nations, predecessor organization to
the United Nations and a body charged with the at least theoretical prevention of another
bloody war.38 At the same time, states realized that an international arbitrator may be
needed in other substantive areas, such as health, labor, or communications law.39 In
other words, states seemed to realize that if they achieved coordination in substantive
areas of law, then they would be less likely to engage in violent conflict in general. Thus,
the League of Nations was outfitted with special offices, such as the International
Telecommunication Union and the International Labour Office, charged with the task of
studying and promoting international cooperation on various issues of international
interest.40 Along the same lines of thinking, the Permanent International Court of Justice
was created, leading at least some to believe that the peaceful settlement of disputes
through international law was possible.41 While these developments proved inefficient in

34
Sands, supra note 1, at 527 (noting that international law today “serves a broader range of societal
interests, and that it now connects with a wider range of actors and subjects.”).
35
Justice Scalia, in his infamous dissent in Harford Fire Ins. Co. v. California, wrote that one of the
outstanding canons of statutory interpretation is the presumption that Congress, when it passes a law, acts
in accordance with the law of nations. Hartford Fire Ins. Co. v. California, 509 U.S. 764 (1993) (Scalia, J.,
dissenting).
36
In a recent criminal case, the Oklahoma Court of Criminal Appeals decided to commute the death
sentence of a foreign national, in light of an ICJ ruling directing the United States not to execute foreign
nationals whose rights under the Vienna Convention on Consular Relations had not been respected. Torres
v. State, No. PCD-04-442 (Okla. Crim. Ap. May 13, 2004), reprinted in 43 I.L.M. 1227 (2004).
37
See infra Part IV.B.
38
Dunoff, Ratner, Wippman, supra note 29, at 16 (noting the creation of the League of Nations for the
purpose of addressing questions of war and peace).
39
Id.
40
Id. (“The result was a shift in the way much international law was made, as the League took the lead in
preparing multilateral treaties on many subjects, encouraged states to reach bilateral agreements, and
drafted many nontreaty instruments that came to be influential among states.”).
41
Id.

6
preventing the outbreak of World War II, at least they geared states toward joint
organizational efforts as a method of preventing conflict.
The end of World War II saw the creation of the United Nations, the supreme
international organization, charged with many tasks but most importantly, conceived as a
global peacekeeper that would replace any unilateral use of force with joint decision-
making and acting on the international legal scene.42 In the wake of the United Nations
establishment, other regional bodes, assuming the roles of regional peacekeepers, were
equally born. In Europe, the North Atlantic Treaty Alliance (“NATO”) was established
with mostly Western European states as members, as well as the United States, to counter
the threatening power of the former Union of the Soviet Socialist Republics (“USSR”)
during the Cold War.43 In Africa, the Economic Community of West African States
(“ECOWAS”) was created as a mixed organization: its mission is economic, but it
encompasses mercenary forces that are charged with keeping peace in West Africa.44
Embracing the post-World War I ideas of preventing conflict by transferring
substantive decision-making in different areas to international bodies, international actors
engaged in negotiation to create international monetary, trade, economic, insurance,
investment, and other types of organizations. Thus, a multitude of international
organizations were created in the latter half of the 20th century, including the
International Monetary Fund, the WTO, the World Bank, the International Center for the
Settlement of Insurance Disputes (“ICSID”), World Intellectual Property Organization
(“WIPO”), etc.45 Similarly, states within the same regions acted to create regional
organizations charged with similar objectives. Organization for Security and
Cooperation in Europe, Association of Southeast Asian Nations, Organization of
American States as well as the Organization of African Unity are examples of such
regional bodies.46
The higher level of interaction among international law actors in the 20th century
seems to have produced a myriad of international and regional bodies charged with
resolving state, as well as non-state actors’ differences on substantive levels and with
providing an institutional forum where such different actors can assert their grievances.

D) Expansion of Jurisdiction in International Law

It seems logical that the recent higher level of international interaction would
produce more friction. In order to resolve disputes and to allocate international
responsibility, international law has developed and expanded its traditional notion of
jurisdiction. Historically, jurisdiction was conceived as the territorial power of the

42
Dunoff, Ratner, Wippman, supra note 29, at 25 (noting the United Nations was formed in 1945, that it is
a multilateral body designed to address a diverse set of issues, and that its Security Council is charged with
maintaining international peace and security).
43
Id. at 26.
44
Carter, Trimble, Weiner, supra note 15, at 1070 (noting that “[ECOWAS] began peacekeeping
operations in Liberia” and that “its forces have since operated in Sierra Leone and the Ivory Coast.”).
45
Dunoff, Ratner, Wippman, supra note 29, at 26.
46
Id.

7
sovereign to impose its laws on its subjects and to enforce its laws in its judicial organs.47
Today, however, jurisdiction in international law is mostly extra-territorial.
First, the development of human rights norms has contributed to the idea that
some crimes are so heinous that any nation in the world, acting on behalf of the entire
international community, can punish the offender.48 Thus, the concept of universal
jurisdiction was born, defined as the power of any state to punish offenders of universal
crimes, such as piracy, war crimes, slave trade, or genocide, without requiring any
territorial or substantive links to the prosecuting forum.49 What this concept practically
entails is tremendous. Adolf Eichmann, a German citizen living in Argentina, was tried
in Israel, under the theory of universal jurisdiction, for crimes against humanity which he
committed during World War II in Germany, when Israel was not even a state.50
Pinochet, the former Chilean dictator was indicted in Spain on charges of crimes against
humanity, for acts committed during his reign in Chile, and involving Spanish victims.51
Hissein Habré, who ruled Chad in the 1980’s, was recently subject to an international
arrest warrant in Belgium, under Belgium’s universal jurisdiction law.52
Moreover, states have been willing to grant access to their domestic courts to
victims of human rights violations, even where such victims are foreign or when such
violations took place in foreign countries or were committed by foreign defendants.
Thus, the Alien Tort Statute53 in the United States has been interpreted to provide
jurisdiction – and possibly a cause of action – to foreign plaintiffs suing foreign
defendants for violations of the laws of nations.54 Similarly, the United States federal

47
Berman, supra note 1, at 530 (noting that traditionally, questions of jurisdiction were analyzed by
reference to physical location).
48
The development of the human rights movement implied, first, that what a state did to its own citizens
was of international concern and that government officials could be responsible and prosecuted for abuses
against their own population. See Carter, Trimble, Weiner, supra note 15, at 779 (noting that the
Nuremberg trials after World War II were “important precedents in establishing the responsibility of
government officials for human rights abuses, even abuses committed against their own population”).
Then, the development of human rights norms came to encompass the idea that some crimes are so horrific
that any state can punish their offenders, in the name of the world community. See, e.g. Restatement (3d)
of the Foreign Relations Law §404 (1987), which specifies that ‘[a] state has jurisdiction to define and
prescribe punishment for certain offenses recognized by the community of nations as of universal
concern….” (emphasis added).
49
Dunoff, Ratner, Wippman, supra note 29, at 380 (“[t]he traditional rationale for universal jurisdiction is
that the prohibited acts are of an international character and are of serious concern to the international
community as a whole.”).
50
See generally, Attorney-General of the State of Israel v. Adolf Eichmann, 36 I.L.R. 277 (1962).
51
David Sugerman, From Unimaginable to Possible: Spain, Pinochet, and the Judicializatoin of Power, 3
J. SPANISH CULTURAL STUDS. 107, 116 (2002); Berman, supra note 1, at 534.
52
Dunoff, Ratner, Wippman, supra note 29, at 383.
53
28 U.S.C. §1350.
54
Filartiga v. Pena Irala, 630 F.2d 876 (2d Cir. 1980) (holding that the Alien Tort Statute provides
jurisdiction to a foreign plaintiff for a violation of the law of nations); Sosa v. Alvarez-Machain, 542 U.S.
692 (2004) (holding that the Alien Tort Statute is a jurisdictional statute, that it was not intended to create a
new cause of action for torts in violation of international law, but that the First Congress understood that
the Alien Tort Statute would provide a cause of action for a limited number of violations of the law of
nations, such as violation of safe conducts, infringement of the rights of ambassadors, and piracy; holding
also that today, “courts should require any claim based on the present-day law of nations to rest on a norm
of international character accepted by the civilized world and defined with a specificity comparable to the
features of the 18th century paradigms we have recognized…”).

8
courts have accepted to entertain a judicial challenge to the system of military
commissions to try al Qaeda detainees, established by President Bush, exemplifying once
more the expanded role of domestic courts in litigation centering around human rights
abuses and implying violations of international legal obligations.55
Finally, because state and non-state actors interact frequently on the international
commercial scene, states have been willing to assert extra-territorial jurisdiction to
regulate commercial conduct occurring abroad but having effect on domestic markets.56
For example, the United States relies on the so-called effects doctrine to establish the
extra-territorial reach of the Sherman Act, which American federal courts, as well as the
Supreme Court, have confirmed can regulate conduct occurring abroad.57 Similarly,
American courts rely on a variation of the effects doctrine to regulate securities markets
and to reach fraudulous conduct that took place abroad.58 The European market
authorities, although initially critical of the American approach, seem to have adopted
similar jurisdictional tests that strive for the imposition of extra-territorial regulation of
foreign conduct having effects on the European market.59
Similar issues have arisen in connection with the regulation of Internet activities.
Recently, a French court ordered Yahoo! to block access in France to a Yahoo! auction
site selling Nazi memorabilia, as this kind of sale was illegal under French criminal
laws.60 Yahoo! immediately moved for a U.S. court order declaring that the French court

55
In Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), the five-justice majority of the Supreme Court held that
the military commission system set up by the Bush Administration to try al Qaeda detainees did not satisfy
the requirements of so-called Common Article 3 of the 1949 Geneva Conventions. While the Supreme
Court did not decide whether these Conventions gave rise to judicially enforceable private rights in
domestic courts, id. at 2794, the majority struck down these military commissions because the Uniform
Code of Military Justice, the statutory authority for the President to establish military commissions, is
conditioned upon compliance with the law of war, including the Geneva Conventions. Id. at 2786.
56
Berman, supra note 1, at 531 (noting problems caused by cross-border activity and the desire by local
communities to apply their norms to extraterritrial activities). Such extra-territorial regulation has already
occurred in fields such as antitrust, securities, tax, trademark protection, etc. See, e.g., Milena Sterio,
Clash of the Titans; Collisions of Economic Regulations and the Need to Harmonize Prescriptive
Jurisdiction Rules, 13 U.C. DAVIS JOURNAL OF INT’L L. & POL’Y 95 (2007) [hereinafter “Sterio, Clash of
the Titans”].
57
See United States v. Aluminum Co. of America (Alcoa), 148 F.2d 416 (2d Cir. 1945); Hartford Fire Ins.
Co. v. California, 509 U.S. 764 (1993); F. Hoffman LaRoche v. Empagran, 542 U.S. 155 (2004)
(recognizing the extraterritorial reach of the Sherman Act but holding that the exercise of such jurisdiction
would not be reasonable where a foreign plaintiff’s claim is based wholly on foreign harm because it
“creates a serious risk of interference with a foreign nation’s ability independently to regulate its own
commercial affairs.”). But see Timberlane Lumber Co. v. Bank of America, N.T. & S.A., 549 F.2d 597 (9th
Cir. 1976) (tempering the extraterritorial application of the Sherman Act with considerations of
“international comity”).
58
Dunoff, Ratner, Wippman, supra note 29, at 373; Schoenbaum v. Firstbrook, 405 F.2d 200, 206 (2d Cir.
1968); see also Consol. Gold Fields PLC v. Minorco S.A., 871 F.2d 252, 261-62 (2d Cir. 1989).
59
Re Wood Pulp Cartel, [1988] E.C.R. 5193 (upholding the extraterritorial assertion of European
Community competition law where conduct occurred abroad but was “implemented” within the European
market). Note thus that the European Court of Justice never adopted the infamous “effects” test, but that in
practice, its “implementation” test operates very similarly to the effects test. See Dunoff, Ratner,
Wippman, supra note 29, at 375.
60
T.G.I. Paris, Nov. 20, 2000, available at http://www.juriscom.net/txt/jurisfr/cti/tgiparis20001120.htm.
For a discussion of the case, see Joel R. Reidenberg, Yahoo and Democracy on the Internet, 42
JURIMETRICS J. 261 (2002).

9
order was unenforceable, and provoking somewhat of a judicial battle.61 Ultimately,
Yahoo! capitulated by voluntarily deciding to comply with the French order,62 but this
judicial controversy highlights particularly well the type of extraterritorial problematic
linked to the assertion of jurisdiction in today’s globalized world.63
Thus, jurisdiction in modern, globalized international law recognizes the inter-
activity among all sorts of international state and non-state actors, and provides not only
access to more tribunals but also a basis for imposing substantive laws in an extra-
territorial manner.64

III. The Role of International Law in Different Fields

The globalization or evolution of international law has impacted different legal fields.
Three of such fields where the effects of globalization are the most striking include
human rights law, international criminal law and private or commercial international law.

A) International Human Rights

International law in its proliferated, or globalized, version, has played an

important role in several different legal fields. One of such fields is human rights law,
where the evolutionary trend on the international scene has had a major impact.

a. Creation of International Norms

The evolution of international law has brought about the creation of many new
human rights norms.65 Thus, throughout the 20th century several human rights
conventions have been negotiated and many customary human rights norms have
emerged.66 These new human rights norms are not only significant because of their

61
Yahoo! Inc. v. La Ligue Contre Le Racisme et L’antisemitisme, 169 F. Supp. 2d 1181 (N.D. Cal. 2001).
This decision was reversed by the Ninth Circuit on the ground that the district court could not obtain
personal jurisdiction over the original French plaintiffs until they actually sought to enforce the judgment or
otherwise engaged in activity in California. Yahoo! v. La Ligue Contre Le Racisme et L’Antisemistisme,
379 F. 3d 1120 (9th Cir. 2004).
62
See Press Release, Yahoo!, Yahoo! Enhances Commerce Sites for Higher Quality Online Experience
(Jan. 2, 2001) at http://docs.yahoo.com/docs/pr/release675.html (announcing new product guidelines for its
auction sites that prohibit “items that are associated with groups which promote or glorify hatred and
violence).
63
As another example of similar extra-territorial attempts to regulate commercial activity, provoking cross-
Atlantic tension, consider the August 2001 Statement of Objections released by the EU, accusing Microsoft
of illegally tying its Windows media plays video software into its Windows 2000 desktop software. See
Dunoff, Ratner, Wippman, supra note 29, at 349.
64
“This more fluid model of multiple affiliations, multiple jurisdictional assertions, and multiple normative
statements captures more accurately than the classical model of territoriality and sovereignty the way legal
rules are being formed and applied in today’s world.” Berman, supra note 1, at 537.
65
Dunoff, Ratner, Wippman, supra note 29, at 17 (“…the human tragedy of World War II led
governments… to devote significant resources to the creation of a corpus of law aimed at protecting
individuals from their own governments.”).
66
Major documents in the human rights field negotiated after World War II include the Universal
Declaration of Human Rights, the Genocide Convention, the International Covenant on Civil and Political
Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention Against

10
expanded number, but also because of their evolutionary nature. Because international
law no longer governs purely state relations, but also encompasses the rapport of non-
state actors vis-à-vis different states, a different set of norms has emerged to cover such
new relations.
For example, the prohibition on torture, arising out of the 1984 Torture
Convention67 and out of other treaties and international customary norms,68 necessarily
implies several things. States parties to the Torture Convention may not invoke torture
as an official governmental policy in their international relations with other states.69
Moreover, states may not treat individuals in ways that amount to torture, even when
such individuals are their own citizens.70 Finally, judges of one state may attempt to
prosecute officials of another state for acts amounting to torture.71

Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the
Elimination of Discrimination Against Women, the Convention on the Rights of the Child, and the
International Convention on the Suppression and Punishment of the Crime of Apartheid. Universal
Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, 3d Session, 1st plen. Mtg., U.N. Doc A/810
(Dec. 12, 1048) [hereinafter “Universal Declaration]; Convention on the Prevention and Punishment of the
Crime of Genocide, Dec. 9 1948, 78 U.N.T.S. 2777 [hereinafter “Genocide Convention”]; International
Covenant on Civil and Political Rights, 999 U.N.T.S. 171 (1966) [hereinafter “ICCPR”]; International
Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3 (1966) [hereinafter “ICESCR”];
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10,
1984, 1465 U.N.T.S. 85 [hereinafter “Torture Convention”]; The Convention on the Elimination of All
Forms of Discrimination Against Women, 1249 U.N.T.S. 13 (1981); Convention on the Rights of the
Child, 1577 U.N.T.S. 44 (1990); International Convention on the Suppression and Punishment of the Crime
of Apartheid, 1015 U.N.T.S. 243 (1973). See Dunoff, Ratner, Wippman, supra note 29, at 17 (“[s]tates
prepared and signed onto treaties covering genocide, civil and political rights, economic rights, racial
discrimination, women’s rights, apartheid, torture, and children’s rights).
67
See Torture Convention, supra note 66.
68
See, e.g., European Convention for the Protection of Human Rights and Fundamental Freedoms art.
15(2), Nov. 4, 1950, 312 U.N.T.S. 221; Organization of American States, American Convention on Human
Rights art. 27(2), Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123; Organization of American States,
Inter-American Convention to Prevent and Punish Torture art. 4, Dec. 9, 1985, O.A.S.T.S. No. 67, 25
I.L.M. 519.
69
The Torture Convention specifically defines “torture” in its prime article as “any act by which severe
pain or suffering, whether physical or mental, is intentionally inflicted on a person….when such pain or
suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or
other person acting in an official capacity.” Torture Convention, supra note 66, article 1 (emphasis
added). Thus, the Torture Convention specifically prohibits state-sponsored torture.
70
The Torture Convention strengthens existing norms against torture in a many ways: it requires state
parties to present reports focused explicitly on torture; it creates an expert committee to review those
reports; it provides for an optional individual complaints procedure. Dunoff, Ratner, Wippman, supra note
29, at 450. For example, the state of Israel has been under criticism by the Committee Against Torture, a
special committee of experts established by the Torture Convention, because of its controversial
interrogation techniques. See Consideration of Reports Submitted by States Parties Under Article 19 of the
Convention: Israel, U.N. Doc. A/49/44 (1994). This criticism exemplifies the notion that under modern-
day international law, states may no longer do whatever they wish within their jurisdiction. Similarly, the
United States has faced significant international criticism in light of its own more aggressive interrogation
techniques in the “Global War on Terror.” See Dunoff, Ratner, Wippman, supra note 29, at 465-66.
71
As mentioned above, see supra Part II.D, the concept of universal jurisdiction allows a forum to
prosecute an individual when that individual’s alleged crimes have absolutely no territorial nexus with the
prosecuting state. Thus, at least theoretically, the leader of state A, who tortured people within state A,
could be subject to criminal prosecution in state B, if state B has an expansive universal jurisdiction statute,
although state B has no other connection to the acts of torture that took place within state A.

11
 As the above discussion of the Torture Convention exemplifies, this new type of
international human rights norms differs from other, more traditional types of
international norms. Under traditional international law norms, State A may not do
certain things to State B, or to State C, or to any other State. Conversely, States B, C, and
the like may not do the same thing to State A. States A, B, and C, however, may do
whatever they wish within their own borders. New human rights norms vary strikingly
from the traditional model. For one, they do not regulate the behavior of State A vis-à-
vis the other states; rather, they regulate what State A does to its own citizens and
residents within its borders, as well as whether State A can justify its behavior before
States B and C, at the risk of seeing its leaders indicted for violations of such human
rights norms in States B and C.72
Moreover, the new type of human rights norms is coupled with other changes in
international law, in a manner that strengthens its role in state behavior. As mentioned
above, states traditionally exercised their jurisdictional powers territorially.73 The
evolutionary trend of international law has led states to rely more and more on extra-
territorial jurisdiction,74 and such powerful exercise of state judicial powers has been
particularly important in the human rights field. Thus, these new human rights norms are
often accompanied by the notion of universal jurisdiction, meaning that they can be
enforced by any state, anywhere in the world, against any offenders.75 The Torture
Convention, mentioned above, has a provision providing for universal jurisdiction for a
possible prosecution of offenders.76 Moreover, new human rights norms sometimes go
beyond simply prohibiting states from doing something: some of them also impose
certain duties on states, such as the duty to either prosecute or extradite offenders.77
Finally, modern human rights norms are more potent in light of the globalization
of international law. In other words, because of the proliferation of actors in modern
international law, states, as well as various non-state actors are now charged with the
creation, implementation, and monitoring of human rights norms.
“…individual states, the United Nations, and various regional organizations,
including the Council of Europe, the Organization of American States, and the
Organization of African Unity, working with countless non-governmental human
rights organizations, scholars, and lawyers, have developed an extensive body of
human rights treaties, declarations, and related instruments in an effort to develop
and clarify international human rights norms. These same actors have also

72
Thus, states today are obligated to cede sovereignty to the international community, which imposes
standards of “good governance and human rights norms” on all states. Cohan, supra note 3, at 941.
73
Berman, supra note 1, at 530.
74
See supra, Part II.D, for a discussion of extra-territorial jurisdiction.
75
See supra, Part II.D, for the concept of universal jurisdiction.
76
Article 5 of the Torture Convention provides for different basis of jurisdiction, including territorial
jurisdiction, passive personality and nationality principles, and it then goes on to specify that “[e]ach State
Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences
in cases where the alleged offender is present in any territory under its jurisdiction…” Torture Convention,
supra note 66, article 5.
77
For example, the Torture Convention has an “extradite or prosecute” provision in its article 7. Torture
Convention, supra note 66, article 7. Moreover, the Genocide Convention contains a provision requiring
member states to “give effect to the provisions of the present Convention, and, in particular, to provide
effective penalties for persons guilty of genocide or any of the other acts enumerated in article III.”
Genocide Convention, supra note 66, article 5.

12
 developed a complex system of institutions designed to monitor and to some
extent to implement existing norms. These institutions include regional human
rights courts, treaty bodies, groups of experts, and more.”78

b. Limitations on State Sovereignty

Because of their powerful reach and impact on state behavior, new human rights
norms impose severe limitations on state sovereignty.79 As indicated above, they dictate
that State A may no longer do whatever it wishes within its own borders – a concept that
had prevailed for many centuries in international law. Precisely because the globalized
version of international law takes into account individual interests, it affords individuals
more protection from state intrusion into their affairs by limiting state sovereign powers.
It had long been the role of domestic law to define what a sovereign may do to its
subjects. For example, nobody would dispute the fact that our Constitution grants our
President the power to enter into agreements with other nations, or the power to nominate
judges on the Supreme Court, or the power to approve the Congressional budget.
Nobody would dispute the fact either that our Congress has the power to draft laws that
criminalize certain individual behaviors, or that require us to pay taxes or get licenses if
we want to engage in certain professional activities. Somehow, we accept the notion that
our sovereign, domestically, can require us to do certain things or to refrain from doing
certain things. We also respect the idea that if another individual, or our sovereign, does
something that offends our rights, we can seek redress from our judicial organs.
The evolutionary version of international law attempts to play a similar role by
creating important human rights norms that function somewhat like domestic law. New
human rights norms require our sovereign, as well as us, individuals, to refrain from
engaging in certain types of behaviors, and as a corollary, to do certain things. For
example, our sovereign may not condone torture as an official state practice; if it finds
out that somebody in its territory has engaged in torture, it must punish such groups or
individuals accordingly.80 Moreover, because new human rights norms sometimes create

78
Dunoff, Ratner, Wippman, supra note 29, at 443.
79
In fact, many scholars have noted that the traditional 19th century model of state sovereignty became
outdated in the 20th century. See e.g. MATTHEW HORSMAN & ANDREW MARSHALL, AFTER THE NATION-
STATE: CITIZENS, TRIBALISM AND THE NEW WORLD DISORDER, ix (1994) (“The traditional nation-state, the
fruit of centuries of political, social and economic evolution, is under threat.”); George J. Demko &
William B. Wood, Introduction: International Relations Through the Prism of Geography, in REORDERING
THE WORLD: GEOPOLITICAL PERSPECTIVES ON THE TWENTY-FIRST CENTURY 3, 10 (George J. Demko &
William B. Wood eds., 1994 ) (“Once sacrosanct, the concept of a state’s sovereignty- the immutability of
its international boundaries- is now under serious threat.”); KENICHI OHMAE, THE END OF THE NATION
STATE, viii (1995); see also Berman, supra note 1, at 523.
80
Torture Convention, supra note 66, articles 1 and 7. Moreover, other international conventions impose
affirmative duties on states to punish violators of norms that such conventions seek to protect. See, e.g.,
Genocide Convention, supra note 66, article 4; Convention (No. 1) for the Amelioration of the Condition of
the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31, art. 50;
Convention (No. 2) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of
Armed Forces at Sea, 6 U.S.T. 3217, 75 U.N.T.S. 85, art. 51; Convention (No. 3) Relative to the Treatment
of Prisoners of War, Aug. 12 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135, art. 130; Convention (No. 4) Relative
to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287, art.
147.

13
privately enforceable judicial rights,81 individuals can seek redress from domestic or
international judicial organs for violations thereof, either by other individuals or by their
own sovereign.82 The latter idea – that one may sue its own sovereign for violations of
some supra-national norms,83 which transcend the powers of such sovereign and impose
limitations on its powers – is particularly revolutionary and had no place in traditional
international law.
The field of human rights law, in itself, thus represents a stark departure from
traditional international law models. In its modern, evolutionary version, human rights
law goes even further, by creating firm limits on state sovereignty and by establishing
norms that govern inter-state and intra-state behavior.84 Thus, the “new” state
sovereignty actually requires states to participate in a complex web of international,
transnational regimes, institutions, and networks in order to accomplish what they could
once do on their own, within their specific jurisdiction.85
Thus, globalized international law has imposed so-called “vertical constraints” on
states, whereby external human rights norms are imposed on states “by diplomatic and
public persuasion, coercion, shaming, economic sanctions, isolation, and in more
egregious cases, by humanitarian intervention.”86 A direct result of this phenomenon is
the fact that a sovereign state must now answer not only to its own nationals, but also to
the international community on the whole.87 A state may no longer reject a norm based
on a claim of exclusive sovereignty, as such a notion no longer exists. For example,
sovereignty will no longer operate as an excuse for violations of human rights norms
against slavery, genocide, torture, or arbitrary confiscation of property; moreover, human
rights norms have evolved to encompass claims of indigenous populations, special needs
of the disabled, health care, education, etc.88

The most fundamental point about human rights law is that it establishes a set of
rules for all states and all peoples. It thus seeks to increase world unity and to
counteract national separateness… In this sense, the international law of human

81
For example, in the United States there has been significant debate over whether certain provisions of the
Vienna Convention on Consular Relations grant individuals private judicially enforceable rights in
American courts. See Bruno Simma and Carsten Hoppe, The LaGrand Case: A Story of Many
Miscommunications, in INTERNATIONAL LAW STORIES (John E. Noyes, Laura A. Dickinson, Mark W. Janis
eds. 2007) (describing this controversy). Thus, the debate centers on whether an international treaty creates
individual rights that may be enforced in a domestic court of law against a domestic sovereign.
82
As noted above, individuals today are provided with numerous complaints procedures through
international and regional organizations, committees, tribunals and other judicial bodies. See Dunoff,
Ratner, Wippman, supra note 29, at 443.
83
For example, citizens of European countries may sue their own states in the European Court of Human
Rights for particular human rights violations. Sands, supra note 1, at 546-47. Similarly, citizens of Central
and South American countries may bring complaints against their states in the Inter-American Court of
Human Rights. Grossman, International Law Stories, supra note 26, at 81-83. See also infra part IV.B. for
a discussion of individual expectation under globalized international law.
84
Berman, supra note, at 527 (“While nation-states may not disappear, their sovereignty may well become
diffused in order to accommodate various international, transnational, or non-territorial norms.”).
85
For the idea of “new” sovereignty, see ABRAM CHAYES & ANTONIA HANDLER CHAYES, THE NEW
SOVEREIGNTY: COMPLIANCE WITH INTERNATIONAL REGULATORY AGREEMENTS (1995).
86
Cohan, supra note 3, at 941.
87
Id. at 942.
88
Id. at 943.

14
 rights is revolutionary because it contradicts the notion of national sovereignty –
that is, that a state can do as it pleases in its own jurisdiction.89

An influential report issued in December 2001 by the International Commission

on Intervention and State Sovereignty (ICISS) supports this revolutionary view of human
rights norms that operate as a vertical constraint on state sovereignty. The ICISS report,
entitled “The Responsibility to Protect,” highlighted the need to update the U.N. Charter
to incorporate this new understanding of state sovereignty.90 The report explained a shift
from the traditional concept of sovereignty (“sovereignty as control”) toward sovereignty
“as responsibility in both internal functions and external duties.”91 Thus, according to the
ICISS Report, if a population is suffering and its state is unwilling or unable to halt the
suffering, then the principle of non-intervention yields to the international responsibility
to protect.92
Thus, the revolutionary version of human rights law, imposed on states through
the general evolutionary trend in international law, has imposed additional restrictions on
states, thereby eroding the traditional notion of exclusive state sovereignty.

B) International Criminal Law

The evolutionary movement in the international legal field has exercised tremendous
influence in the area of international criminal law. The field itself is less revolutionary
than international human rights law, as the idea of individual international responsibility
for criminal acts seemed accepted several centuries ago.93 For example, states recognized
the first international crime, piracy, early on, and sought to punish individuals having
engaged in piracy, irrespective of such individuals’ state affiliation.94 Moreover, states
held trials for war crimes as early as the fifteenth century, and enacted various legal codes
in subsequent years. 95 During the nineteenth century, states negotiated several treaties
criminalizing slave trade, an act committed by individuals, not a state.96
With the rise of human rights norms, the field of international criminal law came to
encompass additional international violations having to do with attacks on human
dignity.97 Thus, atrocities committed in civil wars became criminalized on an
international level. To this end, throughout the 1990’s, the linkage of human rights
protection with international criminal responsibility contributed to the creation of several
international criminal courts, which are charged with prosecuting individuals accused of

89
DAVID P. FORSYTHE, HUMAN RIGHTS AND WORLD POLITICS 4 (1983) (emphasis added).
90
ICISS, THE RESPONSIBILITY TO PROTECT, REPORT OF THE INT’L COMM. ON INTERVENTION AND STATE
SOVEREIGNTY (2001), available at http://www.idrc.ca/books/ev_9436_201_1_DO_TOPIC.html (last
visited on Jan. 18, 2008).
91
Id.
92
Id.
93
Dunoff, Ratner, Wippman, supra note 29, at 607.
94
Id.
95
Id.
96
Id.
97
Dunoff, Ratner, Wippman, supra note 29, at 607 (noting that state and non-state actors have accepted,
over the last several centuries, the fact that individuals may be responsible under international law for acts
against human dignity).

15
specific crimes.98 Moreover, specific criminal offenses have been affirmatively
recognized as contrary to international law, and as providing substantive jurisdiction for
prosecution in one of the newly created international criminal tribunals.99 Thus, the
globalization forces behind the transformation of international law exercised an
expansive influence on the field of international criminal law, by broadening its horizons
and enlarging the idea of global accountability for heinous individual crimes.100

a. Creation of New International Courts

While the idea of international criminal prosecutions gained popularity in the

wake of World War II and the Nuremberg Tribunal,101 a very limited number of such
trials actually took place during the second half of the 20th century. The 1990’s,
however, witnessed a rebirth of the idea, which translated itself into the creation of
several new international criminal tribunals.
Following the bloody civil wars in the former Yugoslavia and Rwanda, the United
Nations utilized its Chapter VII powers to create two international criminal tribunals, the
International Criminal Tribunal for the Former Yugoslavia (“ICTY”), and the
International Criminal Tribunal for Rwanda (“ICTR”).102 These tribunals were charged
with a specific mandate: to prosecute individuals accused of specific heinous offenses,
such as genocide, war crimes and crimes against humanity, that took place in the territory
of the former Yugoslavia and Rwanda respectively during a specific time period.103 The
creation of the International Criminal Court (“ICC”) in 1998 followed the same
evolutionary trend in international criminal law: the idea that individuals accused of
extraordinarily heinous crimes should be prosecuted in an international forum.104

98
For a discussion of the creation of new international tribunals in the 1990’s, see Cherif Bassiouni, From
Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Court, 10
HARV. HUM. RTS. J. 11, 39-50 (1997)
99
For example, the ICTY specifically recognized that states had accepted that certain violations of
customary international humanitarian law created individual responsibility. See Prosecutor v. Tadic,
Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, International Criminal Tribunal
for the Former Yugoslavia, October 2, 1995, at paras. 128-134.
100
The globalization movement also influenced the idea of international criminal responsibility by
providing more alternatives to domestic criminal prosecution of human rights offenders. In today’s
globalized world, actors outside the relevant state may provide support to the offender’s home state; foreign
states may consider prosecuting the offender themselves under various extraterritorial jurisdictional
principles; states may also act to set up international tribunals to try such offenders. Dunoff, Ratner,
Wippman, supra note 29, at 608.
101
The Nuremberg trials took place in the so-called International Military Tribunal, established through the
London Charter. Id. at 609.
102
For a discussion on the creation of the ICTY and the ICTR, see Dunoff, Ratner, Wippman, supra note
29, at 652-53; Mark S. Ellis, Combating Impunity and Enforcing Accountability as a Way to Promote
Peace and Stability- The Role of International War Crimes Tribunals, 2 J. NAT’L SECURITY L. & POL’Y
111, 118-19 (2006); see also Davis B. Tyner, Internationalization of War Crimes Prosecutions: Correcting
the International Criminal Tribunal for the Former Yugoslavia’s Folly in Tadic, 18 FLORIDA J. INT’L L.
843, 853 (2006) (discussing the creation of the ICTY).
103
Dunoff, Ratner, Wippman, supra note 29, at 653.
104
For a discussion on the creation of the ICC, see Milena Sterio, Seeking the Best Forum to Prosecute
International War Crimes: Proposed Paradigms and Solutions, 18 FLORIDA J. INT’L L. 887, 895
(2006) [hereinafter “Sterio, Seeking the Best Forum”].

16
 While the jurisdictional mandates of some of these tribunals were strictly limited
temporarily, territorially and substantively,105 they nonetheless represent a giant step
toward solidifying the idea of individual international criminal responsibility, born in
Nuremberg and laid to rest during the second half of the 20th century. That is, under the
traditional notion of international law, most types of individual criminal responsibility
would be handled under domestic law, within a domestic jurisdiction.106 If a Canadian
family of a murder victim got angry with its Swedish killer, all it could do was to ask for
diplomatic protest that the Canadian government could exercise against Sweden, on
behalf of the Canadian victim and against the Swedish aggressor.107 Moreover, if a
military dictator from a given country decided to exterminate a minority group, such acts
would be seen as matters of purely domestic jurisdiction.108 In other words, the
concerned state could, if it chose to do so, prosecute the military leader domestically.
Practically speaking, such prosecutions never took place while the offending leader was
still in power, and very rarely took place after a change of regimes because of reasons
linked to regional instability, lack of democracy of the new regime, need for national
reconciliation, lack of recognition of international criminal norms, etc.109
The evolutionary movement that began transforming international law in general
played a dominant role in transforming the international criminal law field. With the
notion that international law encompasses much more than purely inter-state relations,
international criminal law gained freedom to explore the idea of criminalizing individual
offenses - typically handled in domestic fora - on an international level. The creation of
the above-mentioned international tribunals was a logical step in that direction, as it
provided specific jurisdictions to handle criminal prosecutions of individuals accused of
international offenses.
More recently, the field of international criminal law has transformed itself once
more, by encompassing the idea of hybrid tribunals – jurisdictions created by
international agreement between the host country and the United Nations, which mix
local law in their otherwise internationally-oriented statutes, and which employ a mix of

105
The ICTY and ICTR could prosecute individuals accused of genocide, crimes against humanity and war
crimes; the ICTY could consider any crimes committed in the former Yugoslavia after 1991, up to the
present, while the ICTR was confined to crimes in Rwanda in 1994; both tribunals are supposed to “wind
down” and complete their work by 2010. Dunoff, Ratner, Wippman, supra note 29, at 653, 656.
106
As noted above, certain crimes had been internationalized early, such as piracy and slave trade. See
Dunoff, Ratner, Wippman, supra note 29, at 607. However, most other crimes would be prosecuted within
a domestic criminal system.
107
For a discussion of the traditional notion of state responsibility, including so-called diplomatic
protection, see J.L. BRIERLY, THE LAW OF NATIONS 276-287 (6th ed. 1963).
108
Under traditional notions of sovereignty, any domestic policy choices, even those as flagrant as the
decision to exterminate a minority group, would be free from external or internal constrains. See Cohan,
supra note 3, at 914-915 (discussing “Westphalian sovereignty,” or the right of a sovereign state to be left
alone from external interference, and “domestic sovereignty,” or the right of a sovereign state to be free of
internal interference).
109
Dunoff, Ratner, Wippman, supra note 29, at 648. Note also that regimes often pass general amnesty
laws exonerating government-sponsored atrocities. See Steven R. Ratner, New Democracies, Old
Atrocities: An Inquiry in International Law, 87 GEO. L. J. 707, 720-729 (1999) (noting, inter alia, that
Argentina, Uruguay, Chile, Brazil, Peru, Guatemala, El Salvador, Honduras, Nicaragua, Haiti, Ivory Coast,
Angola, and Togo have all passed broad amnesty laws during the 1990’s).

17
domestic and international personnel. Examples of such tribunals include East Timor,110
the Special Court for Sierra Leone,111 the Iraqi High Tribunal112 and the Extra-Ordinary
Chambers in the Courts of Cambodia Tribunal.113 These hybrid courts solidify the idea
of international criminal responsibility while recognizing the need to involve aggressors’
home countries in the prosecution process, for substantive as well as practical reasons.
Moreover, they exemplify the notion of globalization – the idea of inter-connectivity
between the local and global domains and the linkage between domestic and international
matters.

b. Creation of New Offenses

With the rebirth of international criminal tribunals and their quick creation in the
1990’s, it became crucial to define specific offenses that would merit such high-profile
prosecution in the international dimension. International law, even in its most traditional
form, encompassed the idea that individuals should be treated fairly during war time.114
This notion logically follows the main premise of traditional international law: states, at
peacetime, have unlimited sovereignty within their territory. At wartime, however, states
transcend their borders and encroach on other states’ sovereignty. Thus, special rules are
needed to address situations where jurisdictional lines become blurred and territory no
longer equals sovereignty.
The multiple Hague Conventions stemming from the beginning of the 20th century,115
the four Geneva Conventions negotiated in the wake of World War II,116 and its two

110
For a discussion of the East Timor court, see Ellis, supra note 102, at 121-125; see also Note,
Prosecuting Saddam and Bungling Transitional Justice in Iraq, 45 VA. J. INT’L L. 467, 519 (2005)
[hereinafter “Prosecuting Saddam”].
111
For a discussion of the Special Court for Sierra Leone, see Sterio, Seeking the Best Forum, supra note
104, at 895-99; see also Ellis, supra note 102, at 136-39 (discussing the Special Court for Sierra Leone in
the context of an accountability policy in Liberia).
112
For a discussion of the Iraqi High Tribunal, see generally, Prosecuting Saddam, supra note 110;
MICHAEL P. SCHARF & GREGORY S. MCNEAL, SADDAM ON TRIAL: UNDERSTANDING THE IRAQI HIGH
TRIBUNAL (2006). Note that the Iraqi High Tribunal is not a truly hybrid court, because its seat is in
Baghdad, its prosecutor is Iraqi, and its judges are all Iraqi. Rather, the Iraqi High Tribunal has been
characterized as an “internationalized” domestic court, since its statute and rules of procedure are modeled
on the ICTR, ICTY and the Special Court for Sierra Leone. See id. at 2.
113
For a discussion of the Cambodian court, see Ellis, supra note 102, at 125-28; see also Dunoff, Ratner,
Wippman, supra note 29, at 656-57.
114
International law has long embraced the notion of jus in bello, commonly referred to as the law of war
or international humanitarian law, which attempts to shield individuals from certain types of war-time
harm, and which regulates the conduct of armed conflict. See Dunoff, Ratner, Wippman, supra note 29, at
527.
115
The “Hague law” refers to a series of conferences held in The Hague, producing a set of declarations
and conventions, most notably in 1899 and 1907. Id.
116
The four Geneva Conventions of 1949 place numerous obligations on states to protect people in
international armed conflict who are not actively engaged in hostilities. These people include the sick and
the wounded (Convention I), the sick and the wounded in navies (Convention II), prisoners of war
(Convention III), and civilians (Convention IV). In addition, Protocol I to the Geneva Conventions of 1977
includes additional rules covering international conflicts, and Protocol II to the same conventions includes
rules covering internal armed conflict. Convention (No. 1) for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31;
Convention (No. 2) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of

18
Additional Protocols,117 represent the bulk of international legal norms specifying codes
of behavior during wartime, as they relate to both soldiers and civilians. These norms,
crafted to handle traditional warfare where states and state armies fought in clearly
delineated battlefields, proved insufficient in the face of modern wars – often brutal civil
conflicts, involving para-military groups, guerrillas, civilians, and interference from
neighboring states. Recognizing this problem, drafters of the above-mentioned
international courts’ statutes sought to criminalize offenses in a manner that would
encompass specific conduct taking place in the new type of warfare. Thus, statutes of the
ICC, ICTY and the ICTR relied on the Nuremberg Charter to criminalize genocide and
war crimes, but they expanded the Nuremberg idea of crimes against humanity,118 which
criminalized behavior purely during wartime, into the notion of crimes against humanity,
which was no longer linked to wartime and applied equally during peacetime, as well as
to the new types of warfare.119 Moreover, in the context of specific conflicts, statutes of
some of the above tribunals adopted rules borrowed from domestic laws, in order to
criminalize conduct that was unique to the given war. Thus, the Special Court for Sierra
Leone statute gives prosecutor the possibility to indict individuals accused of not only the
most heinous offenses, such as genocide, war crimes and crimes against humanity, but
also of offenses specific to the civil war in Sierra Leone, such as offenses related to the
abuse of girls and those related to the destruction of property, as well as the use of child
soldiers. 120 Similarly, the Extraordinary Chambers in the Courts of Cambodia
criminalizes offenses such as the destruction of cultural property, crimes against
internationally protected persons pursuant to the Vienna Convention of 1961 on
Diplomatic Relations, as well as the crimes of homicide, torture and religious persecution
as defined in Cambodian domestic penal code.121
The field of international criminal law has thus transformed itself over the last two
decades, under the evolutionary influence of general international law. The notion of
inter-state relations as the governing mode of dialogue in international criminal law is no

Armed Forces at Sea, 6 U.S.T. 3217, 75 U.N.T.S. 85; Convention (No. 3) Relative to the Treatment of
Prisoners of War, Aug. 12 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Convention (No. 4) Relative to the
Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287. See also
Dunoff, Ratner, Wippman, supra note 29, at 628, 538.
117
Protocol Additional (No. 1) to the Geneva Conventions of Aug. 12, 1949, and Relating to the Protection
of Victims of International Armed Conflicts, June 8, 19777, 1125 U.N.T.S. 3, 16 I.L.M. 1391 (1977);
Protocol Additional (No. 2) to the Geneva Conventions of Aug. 12, 1949, and Relating to the Protection of
Victims of Non-International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609, 16 I.L.M. 1442 (1977).
118
Charter of the International Military Tribunal at Nuremberg, 82 U.N.T.S. 279 (1945), article 6.
119
Dunoff, Ratner, Wippman, supra note 29, at 621. Thus, the ICC Statute embraces the definition of
Crimes Against Humanity in its article 7, without requiring any nexus between the crime and a specific
war. Statute of the International Criminal Court, U.N. Doc. A/CONF. 183/9 (1998). The ICTY and ICTR
statutes adopt a similar definition of crimes against humanity. Statute of the International Criminal
Tribunal for the Former Yugoslavia, as amended, available at http://www.un.org/icty/legaldoc-
e/index.htm; Statute of the International Criminal Tribunal for Rwanda, Annex to S.C. Res. 955, U.N. Doc.
S/RES/955 (Nov. 8, 1994), available at http://www.ohchr.org/english/law/itr.htm.
120
Statute of the Special Court for Sierra Leone, Articles 4 and 5, available at https://www.sc-sl.org/scsl-
statute.html (last visited on December 10, 2007).
121
Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of
Crimes Committed During the Period of Democratic Kampuchea, available at http://www.eccc.gov (last
visited on February 1, 2008), articles 3, 7 and 8.

19
longer prevalent, and this field now governs individual criminal responsibility and
extends to spheres traditionally left to purely domestic powers.

C) Private International Law

The globalization movement has played a particularly dominant role in the world of
commerce. Large and even mid-size commercial operators no longer deal with local or
regional partners; today, they frequently engage in cross-border business, dealing with
foreign entities.122 Laws governing such cross-border transactions have changed
correspondingly. We no longer deal with purely national commercial laws, but instead,
have to look for supra-national legal authority that has the power to regulate cross-border
transactions.123 Thus, we have witnessed a rise of cross-border regulations, aiming to
provide a legal framework for the globalized commercial world. Along the same time,
we have also witnessed a proliferation of actors. Traditionally, only states could
conclude treaties and could, in such state-to-state treaties, choose to protect their national
business interests.124 Nowadays, commercial treaties are being concluded between states
and foreign investors directly.125 This public/private merger in the field of cross-border
commercial law epitomizes the entire shift of international law from a body of law
governing inter-state relations, to a complex web of regulations concluded between state
and non-state actors and governing private entity-state relations.126

a. Creation of New Cross-Border Regulations

Over the last few decades, several cross-border regulations have been concluded
to provide a legal regime for international transactions involving commercial entities
coming from two or more different states.127 In other words, in today’s inter-connected
world, globalization has dictated a harmonization of substantive rules in specific fields.
Such a harmonization supersedes national rules and undermines the traditional concept of
state sovereignty. It also illustrates the complexity of modern-day international law, in its
transformed or globalized version.
In the law of sales, the United Nations Convention on the International Sale of
Goods (“CISG”) was negotiated, representing a set of default rules that contracting
parties are referred to, should their international sale contract be silent on certain
issues.128 Under the CISG, transacting parties may opt out of any nation-state law and

122
Sterio, Clash of the Titans, supra note 56, at 97 (2007).
123
Hannah L Buxbaum, Conflict of Economic Laws: From Sovereignty to Substance, 42 VA. J. INT’L L.
931, 942-54 (2002) (discussing ways in which “regulatory power traditionally enjoyed by sovereign states
has shifted” to the supranational level, to private actors, and to “informal networks constituted among sub
state-level agencies in different countries.”).
124
A treaty is defined as an international agreement concluded between states, governed by international
law. Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331 (1969).
125
See Dunoff, Ratner, Wippman, supra note 29, at 216-217 (discussing corporations and businesses as
international actors).
126
Berman, supra note 1, at 550 (noting that private parties today exercise forms of governmentally
authorized power).
127
Id. at 520-23 (discussing the undermining of the public/private law distinction in the field of private
international law).
128
Convention on Contracts for the International Sale of Goods, 52 F.R. 6262, 6264-6280 (March 2, 1987).

20
instead choose a sort of lex mercatoria to govern their interactions, dispensing altogether
with the need to consult any state laws.129
In the field of international trade, the WTO already plays a hugely significant
role, providing not only a body of substantive rules, but a dispute settlement mechanism
as well, that encompasses state commercial interests.130 Under this mechanism, states act
against each other like private commercial entities would in a typical private arbitration.
Moreover, the WTO appellate tribunals seem to be creating an international common law
of trade and amassing a body of legal rules that challenge traditional conceptions of state
sovereignty and override domestic court decisions.131 Finally, NGO’s and international
civil society groups have become active in the WTO process, attempting to use the
appellate panels to further their specific goals, particularly in the fields of environmental
and labor law.132
Also in the field of transnational trade, NAFTA plays a dominant role in the
North American continent. Under NAFTA, private investors can challenge a NAFTA
government’s regulatory decision directly within the NAFTA dispute resolution system,
thereby again challenging the notion of state sovereignty.133 In the field of intellectual
property, WIPO functions similarly to the WTO.134 Moreover, numerous cross-border
regulations exist in the securities and tax fields, which are particularly impacted by the
globalization movement.135 Finally, international trade association groups and their
standard-setting organs have tremendous influence in creating voluntary guidelines that
become industry norms and often have strong public policy ramifications.136

129
Clayton Gillette, The Law Merchant in the Modern Age; Institutional Design and International Usages
Under the CISG, 5 CHI. J. INT’L L. 157, 159 (2004); Berman, supra note 1, at 522.
130
Berman, supra note 1, at 521-522; Dunoff, Ratner, Wippman, supra note 29, at 834.
131
See, e.g., Bhala, supra note 24, at 850 (“In brief, there is a body of international common law on trade
emerging as a result of adjudication by the WTO’s Appellate Body.”); Lori M. Wallach, Accountable
Governance in the Era of Globalization: The WTO, NAFTA and International Harmonization of Standards,
50 U. KAN. L. REV. 823, 825 (2002) (“Expansive international rules strongly enforced through
international dispute resolution bodies have significant implications for the laws and policies domestic
governments may establish, as well as for the processes domestic governments use to make policy.”);
CLAUDE E. BARFIELD, FREE TRADE, SOVEREIGNTY, DEMOCRACY: THE FUTURE OF THE WORLD TRADE
ORGANIZATION 9 (2001) (expressing concern that significant judicial lawmaking by the WTO might
diminish U.S. sovereignty).
132
See, e.g., Ernst-Ulrich Petersmann, Theories of Justice, Human Rights and the Constitution of
International Markets, 37 LOY. L.A. L. REV. 407, 455 (2003)
133
Greg Block, Trade and Environment in the Western Hemisphere: Expanding the North American
Agreement on Environmental Cooperation in the Americas, 33 ENVTL. L. 501, 507 (2003).
134
Lt. Col. Jeffrey K. Walker, The Demise of the Nation-State, the Dawn of New Paradigm Welfare, a
Future for the Profession of Arms, 51 A.F. L. REV. 323, 327 (2001) (discussing the fact that organizations
like the WTO and WIPO have encroached on state sovereignty, and that the latter sets and enforces
international trademark and patent policy).
135
See, e.g., Philip Genschel, Globalization, Tax Competition, and the Fiscal Viability of the Welfare State,
Working Paper 01/1, May 2001, available at http://www.mpi-fg-koeln.mpg.de/pu/workpap/wp01-1/wp01-
1.html (last visited on Jan. 16, 2008) (noting the influence of globalization on taxation); Steven M.
Davidoff, Paradigm Shift: Federal Securities Regulation in the New Millennium, Wayne State University
Research Paper No. 08-01, Jan. 6, 2008, available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1080087 (last visited on Jan. 16, 2008) (noting the
impact of globalization on securities regulation).
136
For example, in the chemical industry, groups such as the Canadian Chemical Manufacturers
Association and the International Counsel of Chemical Associations (ICCA) have set industry standards in

21
 All of the above involve cross-border regulatory rules in the form of treaties. All
of the above were negotiated by state parties, but were heavily influenced by private
commercial interests, epitomizing again the private/public merger and the complexity of
today’s globalized international law. According to Michael Reisman, the term “private”
in “private international law” is a “misnomer, for what is transpiring is a fundamental
interstate competition for power that falls squarely within the province of public
international law.”137

b. Expanded Role of Non-State Commercial Actors

Following the rise of cross-border regulations, typically negotiated and concluded

among states, private actors became more involved in international commerce, attempting
to exercise a direct influence on states and to obtain favorable treatment in their business
endeavors.138 Thus, private investors started lobbying their own governments to
conclude so-called bilateral investment treaties (“BITs”) with developing countries where
such investors were interested in conducting business.139 While BITs represent a
traditional form of international lawmaking – they are treaties negotiated among states –
they do signal a shift in the type of actors present on the international scene.140 BITs
truly are about investors’ interests and their power to lobby and persuade their
governments to conclude favorable treaties with foreign nations. They demonstrate that
powerful private interests can act and influence the international treaty process, and that
non-state actors have gained an important seat in the world of international relations.141
Following the proliferation of BITs, private investors began working directly with
foreign nations, on various financing projects, typically linked to building infra-structure
in developing countries. Thus, private investors started concluding commercial contracts
directly with foreign governments, which specify the investors’ role in the particular

conjunction with other NGOs and environmental organizations. See Lee A. Tavis, Corporate Governance
and the Global Social Void, 35 VAND. J. TRANSNAT’L L. 487, 508-509. As another example, the Fair labor
Association has created standards now accepted as the norm in the apparel industry. See Workplace Code
of Conduct and Principles of Monitoring, Fair Labor Ass’n, at
http://www.fairlabor.org/html/CodeofConduct.
137
W. MICHAEL REISMAN, INTRODUCTION TO JURISDICTION IN INTERNATIONAL LAW, at I (W. Michael
Reisman ed. 1999).
138
Dunoff, Ratner, Wippman, supra note 29, at 860 (noting that most of the growth in international
production over the past decade has come from cross-border mergers and acquisitions).
139
Id. at 861 (noting that several European states starting entering into BIT’s with the developing world,
and that the United States launched its own BIT program in 1977 and then began to enter into BIT’s with
developing states in the 1980’s).
140
As noted above, traditionally only states could be subject to international law; whoever wronged a
person indirectly harmed his state; finally, the harmed individual had to persuade his state to adopt his
grievance on the international level against the offending state. However, the pursuit of such claims by
states in the commercial world is problematic for political, diplomatic and foreign policy reasons. Thus,
with the rise of foreign investment, pressures built for alternative mechanisms, and BITs, which provide
strong investor protection as well as a dispute settlement procedure, are one of the provided responses. Id.
at 869.
141
Private investors also have important protection, besides BIT’s, under the ICSID Convention, operating
within the International Centre for the Settlement of Investment Disputes, an institution closely associated
with the World Bank. Under the ICSID Convention, private parties have direct access to an international
arbitral forum to pursue claims against host states. Id. at 870.

22
building project.142 This phenomenon, typically referred to as “project finance,”143
demonstrates that everything about traditional commercial law has changed. For one,
commercial agreements are no longer negotiated simply by states, but they also involve
private entities as direct contracting partners. Additionally, the subject-matter of treaties
has shifted from detailing particular state interests and trade-offs, to focusing on
investment relations and the rights and liabilities of private investors. Finally, these
project finance agreements signal that states are willing to relinquish a tremendous
amount of their sovereign power to private entities. For example, states will allow
private operators to run their roads, dams, factories, plants, etc.144 Globalization, in this
context, has impacted state behavior in a powerful way, by transferring sovereign-type
powers to non-state actors and by involving the latter heavily in the commercial
negotiation process.

IV. The Impact of Globalized International Law

As described above, international law has transformed itself over the past few
decades and now represents a complex body of global rules and regulations that apply to
a vast field of state, as well as non-state actors. While the latter phenomenon is relatively
non-controversial and has already deserved significant scholarly attention,145 the relevant
question for the purposes of this Article is whether such globalized international law has
had a significant impact on international legal actors. First, has, and how, globalized
international law affected state behavior; and, second, has, and how, globalized
international law affected individual behavior?

A) State Behavior

International law now displays a globalized shape: it covers a wide variety of legal
fields, it encompass a myriad of different rules and regulations, and it governs state as
well as non-state behavior.146 In light of such a radical transformation, the relevant
inquiry focuses on understanding how such transformation has affected state actors, and
whether their behavior on the international scene has changed in considerable ways.
Thus, I will examine two different phenomena in this part of my Article: first, whether
states comply with globalized international law more willingly than they did decades ago,
when international law exhibited a more traditional form, and second, the fact that states
may be more prone to incorporating globalized international law into their own domestic

142
See, e.g., Carter, Trimble, Weiner, supra note 15, at 15 (noting the rise of foreign investment in the
context of the evolving role of the individual in international law). Brealey, R.A., I. A. Cooper, and M.A.
Habib, Using Project Finance to Fund Infrastructure Investments, 9 JOURNAL OF APPLIED CORPORATE
FINANCE 3, 25-38 (1996) [hereinafter “Brealy, Cooper and Habib”].
143
Brealey, Cooper and Habib, supra note 142, at 25 (describing the fact that in recent years, private
funding of large infrastructure investments has increasingly taken the form of project finance, and
describing the main characteristics of such financings.).
144
Berman, supra note 1, at 550 (noting that states are increasing delegating authority to private actors).
145
See generally Berman, supra note 1, Berman, A Pluralist Approach, supra note 18, Sands, supra note 1.
146
See Cohan, supra note 3, at 954 (“Today there is a veritable panoply of treaties, regional agreements,
U.N. Declarations, and other protocols that globalization is pushing toward an orderless world so that
domestic actions in one state can have rippling effects that impact other states.”).

23
laws and to relying on globalized international law in their international relations. All
these observations can be simplistically explained by the fact that lines between
international and domestic legal domains have become so blurred that states no longer
view international law as the “enemy.”

a. Willing Compliance Phenomenon

Because international law is omni-present in state life, it seems that it no longer

meets the same resentment that it did in some legal cultures throughout the past
century.147 Moreover, it seems that Louis Henkin’s famed observation, that most states
obey their international legal obligations most of the time, is becoming truer by the
day.148 Particularly relevant, however, is the reason behind such state compliance,149 and
I argue here that the profound evolution of international law, into a globalized force
majeure, has instilled a legal sense of obligation in states toward this new globalized
international law. Because international law no longer entails mainly state relations, any
state behavior on the international scene today necessarily affects a wide range of actors.
Thus, states, when they (mis)behave, have to account for a variety of consequences that
their (mis)behavior will produce: they have to envision the impacted state, as well as non-
state actors, they have to calculate whether any of their international legal obligations
under the myriad of international treaties that they may be party to will be triggered, they
have to fear any grievances that may be asserted against them in a variety of possible
jurisdictions, inter alia. When such a complicated calculus must be performed before
any state action, I argue that states are likely more willing to at least take international
law into account, or to at least try not to disrespect it in a blatant manner.
I recognize that it may be difficult to call “willing” such state compliance with
international law, when any mis-compliance may result in serious sanctions, and when
the “willingness” may in fact stem from the fear of sanctions and consequences. I argue,
however, that the repetition of compliance with international law, although caused at first
by a threat of sanctions, may ultimately result in a new norm or custom of state behavior,
whereby states would truly obey international law from a sense of legal obligation and
from a tradition of long-standing and uniform practice to do so.

147
For example, the United States was overtly hostile to international law at the beginning of the 20th
century, as exemplified in its isolationist doctrine, which dominated American foreign policy between the
two world wars, and resulted in the United Stats’ refusal to join the League of Nations. See, e.g., M. Cherif
Bassiouni, From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent
International Court, 10 HARV. HUM. RTS. J. 11, 20 (1997) (“By then, the United States was in the throes of
isolationism, with its rejection of President Woodrow Wilson’s internationalist views, evidenced by
Congress’ refusal to have the United States become part of the League of Nations.”); U.S. Foreign Policy,
1776-2001, available at http://www.wbur.org/special/specialcoverage/feature_isolation.asp (last visited on
Jan. 16, 2008).
148
Louis Henkin, HOW NATIONS BEHAVE: LAW AND FOREIGN POLICY (2d. ed. 1979), 320-321.
149
Of course, there are many theories of compliance with international law. The major ones include
institutioalism, constructivism, the New Haven School, a Kantian model, and a managerial model. See
Dunoff, Ratner, and Wippman, supra note 29, at 30-31; see also Koh, “New” New Haven School, supra
note 30; see generally Berman, A Pluralist Approach, supra note 18; Harold Hongju Koh, Filartiga v.
Pena-Irala: Judicial Internalization into Domestic Law of the Customary International Law Norm Against
Torture, in INTERNATIONAL LAW STORIES 67-73 (John E. Noyes, Laura A. Dickinson and Mark W. Janis
eds. 2007) [hereinafter “Koh, Filartiga”].

24
 For example, after the terrorist attacks on the United States on September 11,
2001, the Bush administration chose to detain so-called enemy combatants at the
Guantanamo military base in Cuba.150 Under a traditional version of international law,
the United States would, if at all, be concerned only about the impact this detention had
on states whose nationals the detainees were.151 Other than those states, the United States
would be free to domestically treat the detainees as it wished, within the purview of its
domestic law evidently. The globalization movement that has transformed international
law brings a major change in the above analysis.
First, the United States must now consider not only the relevant state actors, but
also a number of non-state and supra-state ones. In addition to concerns raised by home
states of the detained individuals, the United States has gotten a vast number of
complaints about the Guantanamo detention facility from a variety of NGO’s, regional
state organizations, as well as human rights protection bodies.152 Moreover, the United
States can no longer consider only whether the detention program is legal under its
domestic law; it must also consider all relevant international conventions that it is a
member of.153 Thus, the United States could very well interpret the detention program as
legal under its Constitution and Bill of Rights, but the same conclusion may not hold true
under, for example, the four Geneva Conventions or the Hague Conventions or the
Torture Convention. To complicate things further, the evolutionary process of
international law has elevated certain legal principles to the status of customary norms,
that bind all states in a conclusory manner, without room for derogations or reservations,
even if states are not parties to specific treaties codifying such legal norms.154 Thus, if
something in the United States’ treatment of Guantanamo detainees were to violate a
customary norm of international law, such treatment would again, although legal under
domestic law, account to a violation of international law. Finally, the United States, in
addition to the proliferation of relevant actors impacted by its behavior and to the legal
norms it has to consider, must also account for a number of jurisdictions which may
choose to challenge the United States as a country, or some of its leaders, if the United
States’ behavior becomes so offensive as to warrant a judicial proceeding. States may

150
Oona A. Hathaway, Hamdan v. Rumsfeld: Domestic Enforcement of International Law, in
INTERNATIONAL LAW STORIES 234 (John E. Noyes, Laura A. Dickinson and Mark W. Janis eds. 2007)
(describing the establishment of U.S. military detention center at Guantanamo Bay); see also Dunoff,
Ratner, Wippman, supra note 29, at 999.
151
See supra Part II for a general discussion of the difference between the traditional version of
international law, and the globalized or evolutionary version of international law.
152
Hathaway, supra note 150, at 235-37 (describing the criticism that the Bush Administration received
because of the alleged abuse of Guantanamo detainees).
153
The Bush Administration effectively claimed that the Geneva Conventions did not apply to the conflict
with al Qaeda members. Id. at 235. This shows that the Bush Administration, although adamant about its
desire to continue the Guantanamo detention program, saw the need to justify its actions internationally,
and to prove that they were in compliance with United States’ international legal obligations. It is worth
noting also that the United States Supreme Court – possibly because of criticism of the Bush
Administration from domestic as well as international sources – ultimately held that the military
commissions designed to try al Qaeda detainees violated Common Article 3 of the 1949 Geneva
Conventions. See Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006).
154
For a general discussion of international custom, see Dunoff, Ratner, Wippman, supra note 29, at 78-81.
Note however that states can choose to “opt out” of an emerging customary norm by objecting to the rule as
it develops. Once a norm reaches the status of international custom, however, all states are bound by it. Id.
at 78.

25
assert grievances against the United States in the ICJ, in a traditional form of state-to-
state complaint procedure.155 Additionally, state and non-state actors may complain
about the United States to committees or judicial bodies set up under various
international conventions, regional organizations, or other human rights protection
mechanisms.156 Such state and non-state actors may target some of the United States’ top
political leaders directly, through criminal complaints brought in foreign domestic
courts,157 or possibly even international courts, under expansive jurisdiction statutes that
have grown under the evolutionary wing of international law to allow for such a
possibility.158
Thus, I argue that a country like the United States may at least think twice before
instituting a program as Guantanamo, in light of all the legal challenges such a program
may face on the international level.
In the specific case of the United States, international law has not necessarily
changed the Guantanamo policy at stake; however, international law has certainly
provoked a vigorous public debate at both the international as well as the national levels
on the legality of the said policy.159 The existence of such a debate signals the erosion of
state sovereignty brought about by the evolutionary process that has been transforming
international law. Such erosion of state sovereignty translates itself into a heightened
level of compliance with international law. While the compliance might be a direct
product of a pragmatic calculus, whereby states realize that it may be more strategically
advantageous for them to obey an international rule, I argue that it nonetheless signals a
phenomenon of willing legal obedience. Continuous repetition of such state practice of
willing compliance with international law may instill a profound sense of legal obligation
in states’ behavior in the years to come.

b. State Reliance on International Law Domestically and in

International Relations

155
Of course, ICJ jurisdiction is based on state consent, so that any exercise of jurisdiction by this tribunal
would have to be based on a treaty or on ad hoc consent. See Statute of the International Court of Justice,
article 36.
156
The European Convention on Human Rights has a procedure whereby individuals can bring claims
against states; the American Convention on Human Rights has a similar complaints procedure, and so do
other committees established within multilateral conventions, such as the Torture Convention. David
Seymour and Jennifer Tooze, The Soering Case: The Long Reach of the European Convention on Human
Rights, in INTERNATIONAL LAW STORIES 120 (John E. Noyes, Laura A. Dickinson, Mark W. Janis eds.
2007), [hereinafter “Seymour and Tooze”] (describing the European Convention’s complaints procedure);
Grossman, International Law Stories 81-83 (describing the American Convention’s complaints procedure);
Dunoff, Ratner, Wippman, supra note 29, at 450 (describing the Torture Convention mechanism).
157
For example, a U.S.-based NGO and several Iraqi citizens filed a criminal complaint with the German
Federal Prosecutor’s Office, alleging that U.S. Secretary of Defense Donald Rumsfeld, as well as other
U.S. government officials, were responsible for unlawful acts committed against detainees at the Abu
Ghraib prison and elsewhere. Dunoff, Ratner, Wippman, supra note 29, at 383. The complaint was
brought under the German universal jurisdiction statute. Id. Although this complaint was ultimately
dismissed by the German Prosecuting Attorney, id., it signals nonetheless the possibility that U.S. leaders
may face prosecution in a foreign domestic court.
158
See supra Part II.D for a discussion of universal jurisdiction statutes.
159
Cohan, supra note 3, at 942 (“Subsequently, human rights and civil liberties organizations, politicians,
and newspapers brought further pressure upon the Bush Administration to close the [Guantanamo]
detention center”); see also Hathaway, supra note 150, at 236.

26
 The above described phenomenon of willing compliance with international law
has already shaped state behavior in two different ways. First, states seem willing to
comply with international law on another level – by relying on it directly in their
domestic legal arenas. Second, states seem eager to rely on international law in justifying
specific actions undertaken in their international relations with other international
entities.
Traditionally, international law is part of domestic law only in a monist system; in
a dualist system, a particular international legal norm must first be incorporated into
domestic law by a specific statute.160 Similarly, in a traditional system, national
jurisdictions are independent of the ICJ and the ICJ is not supposed to function as a
supra-national jurisdiction. Yet, the globalization of international law has blurred these
lines as well. Because international law touches on so many aspects of every-day life and
now pertains to issues that had been traditionally left to the realm of domestic law,
domestic courts, when asked to resolve such issues, are increasingly faced with
international norms or international rulings on such norms by the ICJ or by other supra-
national courts.161 This is particularly true in the human rights legal field.
To name a few examples, litigation under the Alien Tort Statute in the United
States, revived since the Filartiga case,162 centers around violations of the law of nations.
Thus, U.S. domestic courts are called to pronounce themselves on when there has been a
violation of international law that would warrant damages in the domestic legal
system.163 General Augusto Pinochet extradition proceedings instituted between the
United Kingdom and Spain had domestic courts, particularly in the United Kingdom,
interpreting the Torture Convention, a multilateral international convention, on the issue
of diplomatic immunity and how diplomatic immunity under the Torture Convention
would affect Great Britain’s legal obligations vis-à-vis the relevant parties.164 More
recently, an Oklahoma criminal court specifically relied on an ICJ ruling165 in a case
involving the claim that the United States had violated the Vienna Convention on

160
Dunoff, Ratner, Wippman, supra note 29, at 267-68.
161
A good example of this kind of line-blurring is the Soering case, where the European Court of Human
Rights held that extradition of a British person by the United Kingdom to the United States, where he was
accused of murder, would breach Article 3 of the European Convention on Human Rights, banning torture
or inhuman or degrading treatment or punishment, because there was a risk of exposure of the defendant to
the death penalty and death row phenomenon in the United States. Soering v. United Kingdom, App. No.
14038/88, 11 Eur. H.R. Rep. 439 (1989).
162
Filartiga v. Pena Irala, 630 F.2d 876 (2d Cir. 1980)
163
Koh, Filartiga, supra note 149, at 65-66 (describing an era lf “’transnational public law litigation,’ a
novel and expanding effort by state and individual plaintiffs to fuse international legal rights with domestic
legal remedies.”).
164
Regina v. Box Street Metropolitan Stipendiary Magistrate and Others, Ex Parte Pinochet Ugarte (No. 3),
[2000] 1 A.C. 147 (H.L.).
165
Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America), 2004
I.C.J. 1 (Mar. 31). The ICJ held in this case that the United States had breached its obligation under Article
36(1)(a) of the Vienna Convention on Consular Relations to ensure that Mexican consular officials can
communicate with their nationals and can, under Article 36(1)(c), have the right to visit their nationals in
detention. The ICJ held that “the remedy to make good these violations should consist in an obligation on
the United States to permit review and reconsideration of these nationals’ cases by the United States
courts… with a view to ascertaining whether in each case the violation of Article 36… caused actual
prejudice to the defendant in the process of administration of criminal justice.” Id. at para. 121.

27
Consular Relations (“Vienna Convention”),166 giving specific deference to the ICJ
holding interpreting the Vienna Convention and holding the United States bound by the
Vienna Convention, and more importantly, by the ICJ interpretation thereof.167 Thus, on
a judicial level, states and their judges in particular, seem to be more willing to rely on
international law in reaching every-day decisions, simply because international law now
governs and influences all sorts of legal areas.168
In addition, states seem more willing to rely on international law on a diplomatic
level. Thus, in their international relations, states like to have the international law
“clutch” and to be able to pronounce the legality of their actions under international law.
Again, because international law now touches upon so many different legal areas, states
seem to be relying on it in many more aspects of their diplomatic behavior. International
law experts have taken up predominant positions in states’ governments, and virtually
every foreign policy or diplomacy decision is scrutinized for its coherence under
international law.
For example, when NATO countries decided to launch air strikes on the territory
of the former Yugoslavia, because of then-President Milosevic’s oppressive rule of the
province of Kosovo, they considered seeking United Nations Security Council approval
for their use of force.169 Even when the United Nations fell short of approving such use
of force, NATO countries still sought to justify their actions on an international necessity
ground,170 although, at least arguably, NATO members were acting within their

166
Vienna Convention on Consular Relations of April 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261
[hereinafter “Vienna Convetion”].
167
Torres v. State, No. PCD-04-442 (Okla. Crim. Ap. May 13, 2004), reprinted in 43 I.L.M. 1227 (2004).
Judge Chapel, concurring, stated that his court was, without any doubt, bound by the Vienna Convention,
and that because his court is so bound by this treaty, it is also bound to give full faith and credit to the ICJ’s
Avena decision. Dunoff, Ratner, Wippman, supra note 29, at 302.
168
The United States Supreme Court has shown a particular willingness to consider international law. In
Thompson v. Oklahoma, the Supreme Court determined that the Eighth Amendment Cruel and Unusual
Punishment Clause prohibited the execution of any offender under the age of 16 at the time that the crime
was committed, holding that this view was consistent with views expressed by “other nations that share our
Anglo-American heritage, and by the leading members of the Western European Community.” Thompson
v. Oklahoma, 487 U.S. 815, 830 (1988). In Roper v. Simmons, another case interpreting the Eighth
Amendment in connection with a juvenile offender, the Supreme Court wrote that it was appropriate to
refer “to the laws of other countries and to international authorities.” Roper v. Simmons, 543 U.S. 551, 575
(2005). The Supreme Court specifically took into consideration the U.N. Convention on the Rights of the
Child, which the United States has not ratified, and which bans capital punishment for crimes committed by
juveniles under 18. Id. at 576. The Supreme Court further stated that “[t]he opinion of the world
community, while not controlling our outcome, does provide respected and significant confirmation for our
own conclusions.” Id. at 578. Even Justice O’Connor in her dissent acknowledged that “[o]ver the course
of nearly half a century, the Court has consistently referred to foreign and international law as relevant to
its assessment of evolving standards of decency.” Id. at 504 (O’Connor, J., dissenting).
169
NATO member countries ultimately decided not to seek U.N. Security Council approval for their action
in Kosovo because of the threatened veto by Russia. Dunoff, Ratner, Wippman, supra note 29, at 940.
170
NATO Secretary-General Javier Solana, in his statement announcing the start of the air strikes on the
territory of the Federal Republic of Yugoslavia, referred to “military action intended to support the political
aims of the international community,” “humanitarian catastrophe,” “instability spreading in the region,”
without evoking a specific legal ground to justify the invasion. Press Statement of Javier Solana, NATO
Press Release 040 (1999).

28
jurisdiction and had at least regional authority to act.171 This signifies that international
law truly matters and that powerful organizations like NATO would rather comply with
international law, only taking action that is not authorized internationally when deemed
truly necessary. For example, the United States government sought United Nations
Security Council approval for both Gulf Wars, although the United States had the
military capacity to act unilaterally and although the United States also invoked self-
defense grounds, which would have justified the use of force in Iraq even without such
Security Council approval.172 It can be argued that the United States certainly sought
United Nations affirmation for strategic or diplomatic reasons, but it can be equally
argued that part of the affirmation process included a belief into the necessity of
compliance with international law.

B) Individual Behavior

The above-described calculus that states perform nowadays, when faced with
assessing the validity of their behavior in light of globalized international law, pertains as
well to individuals. In other words, in the same manner that states’ behavior seems
curtailed by the evolving and expanding forces of international law, individual rights
appear to be more squarely protected from state intrusion. Thus, the evolution and
globalization of international law that have eroded state sovereignty have provided a
sphere of protection to the individual, a sort of a buffer zone between individual rights
and states’ prerogatives to regulate individual behavior. Individuals, in this new
spectrum of protection stemming from globalized international law, now have different
expectations about what states can do to them, as well as newly created rights enforceable
in various courts of law.

a. Expanded Individual Expectations In the Face of Globalized

International Law

Just as states’ expectations have changed in the face of globalized international law,
individuals’ expectations have experienced a similar shift. Individuals today expect more
protection from international law. Because international law has become omni-present in
every-day life, individuals today can find a protectionist international legal norm in

171
NATO has jurisdiction in Europe and is charged with maintaining peace and security on that continent
by enabling member countries to exercise collective self-defense if one or more of such member countries
are under an armed attack. The North Atlantic Treaty, April 4, 1949, article 5, available at
http://www.nato.int/docu/basictxt/treaty.htm (last visited on Jan. 16, 2008); see also Carter, Trimble and
Weiner, supra note 15, at 549 (describing the role of NATO).
172
Dunoff, Ratner, Wippman, supra note 29, at 891 (noting that the U.N. Security Council authorization to
use force in the First Gulf War had been sought by the United State); id. at 894-5 (discussing the issue of
whether the United States could have used force in the First Gulf War legally in the absence of Security
Council authorization, on the ground of self-defense); id. at 905-08 (describing the United States’ efforts to
obtain Security Council authorization to use force in the Second Gulf War, and, once those efforts failed,
its ultimate decision to use force without Security Council approval). Note also that the United States, as
well as its allies in the Second Gulf War, attempted to legally justify their decision to use force on various
Security Council resolutions. Id. at 908-09. This exemplifies the importance of international legal
justification for controversial actions on the international level, even for powerful countries like the United
States.

29
almost every aspect of their lives. For example, international human rights norms protect
the individual from undue state interference with basic rights, such as the right to be free
of torture, to have one’s human dignity respected, to have a right to counsel, a right to
vote, and a right to a general education.173 For example, international labor laws protect
individual workers and place limits on the rights of their employers.174 For example,
international environmental laws provide the individual with a basic healthy living
environment.175 For example, international tax laws ensure that individuals do not have
to pay their taxes multiple times if they are involved in international transactions.176
Such a protectionist structure directly affects individuals by providing a shield, a web
of rules and regulations that ensure that the individual is not unnecessarily burdened by
the state. Unsurprisingly, individual expectations have changed. Individuals no longer
believe in absolute state sovereignty. Individuals today easily consult international law
on many different aspects of their lives. When faced with a question of state powers – in
other words, can my state do this to me? – individuals are likely to look to international
law as a shield and to invoke international legal norms to curb state behavior. Most
importantly, individuals are likely to invoke specific international legal norms as
bestowing certain rights on them, and as taking away such rights from their home
states.177

173
Many of these basic human rights stem from the so-called International Bill of Rights, consisting of the
Universal Declaration, the International Covenant on Civil and Political Rights, and the International
Covenant on Social, Economic and Cultural Rights. See Universal Declaration, supra note 66, ICCPR,
supra note 66, ICSECR, supra note 66.
174
International labor standards have been maintained and developed by the International Labour
Organization. For a complete database of conventions and recommendations setting forth international
labor standards, see http://www.ilo.org/ilolex/english/convdisp1.htm (last visited on Jan. 16, 2008) and
http://www.ilo.org/ilolex/english/recdisp1.htm (last visited on Jan. 16, 2008).
175
Major environmental law documents include the 1972 Stockholm Declaration, and the 1992 United
Nations Conference on Environment and Development (the Earth Summit). Dunoff, Ratner, Wippman,
supra note 29, at 718.
176
Numerous countries have concluded bilateral taxation treaties, exempting their citizens or residents from
being subject of double taxation, which occurs when two or more taxes may need to be paid for the same
asset, financial transaction and/or income, arising due to an overlap between different countries' tax laws
and jurisdictions. In the European Union, member states have concluded a multilateral agreement on
information exchange. This means that they will each report (to their counterparts in each other
jurisdiction) a list of those savers who have claimed exemption from local taxation on grounds of not being
a resident of the state where the income arises. These savers should have declared that foreign income in
their own country of residence, so any difference suggests tax evasion. See Double Taxation, available at
http://en.wikipedia.org/wiki/Double_taxation (last visited on Jan. 16, 2008).
177
As a corollary to this protectionist nature of globalized international law, it is important to note that the
evolution of certain international legal fields, such as international criminal law, has expanded individual
liability, thus imposing additional limitations on individual behavior. For example, the concept of
international criminal responsibility evolved over the latter half of the 20th century, and was implemented
particularly in the 1990’s in the judicial proceedings that have taken place in the ICTY and the ICTR. See
supra, Part III.B; see also Yusuf Aksar, IMPLEMENTING INTERNATIONAL HUMANITARIAN LAW: FROM THE
AD HOC TRIBUNALS TO A PERMANENT INTERNATIONAL CRIMINAL COURT 84-112 (2004) (discussing the
different types of individual criminal responsibility as they exist in the ICTY and ICTR, as well as under
the ICC statute). For literature on the work of the ICTY and the ICTR and their role in implementing the
notion of individual criminal responsibility, see Theodor Meron, Centennial Essay: Reflections on the
Prosecution of War Crimes by International Tribunals, 100 A.J.I.L. 551 (2006); Dermot Groome, Recent
Books on International Law: Book Review: International Crimes and the Ad Hoc Tribunals, 100 A.J.I.L.

30
 b. Newly Created Individual Rights In Light of Globalized International
Law

The globalization forces that have transformed international law and that have, as
described above, confined state behavior and expanded individual expectations, have also
affected specific individual rights. Individual rights are typically created by a domestic
legal system. In other words, the individual relies on a specific domestic legal norm,
which works to protect his or her rights, in a domestic court of law. We typically refer to
private judicially enforceable rights. In a dualist legal system, international law needs to
be specifically incorporated into domestic law by the passage of specific statutes; thus, an
international legal norm may only protect private, individual rights to the extent that the
incorporating domestic statute allows for such an outcome.178 However, this result seems
to have been somewhat undermined by recent litigation challenging this traditionalist
conception and seeking to establish that the individual can sometimes rely on
international law directly to have his or her individual rights protected in a domestic court
of law.
One example of such litigation occurred in the United States, a dualist legal
system. There had been significant judicial debate over the issue of whether the Vienna
Convention, in its article 36, creates a private judicially enforceable right.179 In other
words, litigation in the United States centered around the question of whether private
plaintiffs could directly rely on this international convention to have their private rights
enforced and protected by American courts.180 While the majority of the Supreme Court
chose not to directly answer this question in the latest case that it heard on the issue,181
the dissent strongly pointed out that the Vienna Convention is deemed to be a self-
executing treaty, and that its provisions are such that “they are intended to set forth
standards that are judicially enforceable.” 182 Thus, while the majority left the issue
unanswered, the dissent seemed to suggest that it would be prudent to let the individual
rely on this international treaty directly, possibly indicating a trend toward recognizing
the importance of international protectionist norms on the rights of the individual.183
In Europe, such a shift has already occurred during the second half on the 20th
century. There, individual rights are specifically protected under the European

993 (2006); Dapo Akande, International Law Immunities and the International Criminal Court, 98 A.J.I.L.
407 (2004).
178
Dunoff, Ratner, Wippman, supra note 29, at 268.
179
Article 36 of the Vienna Convention states that “if he so requests, the competent authorities of the
receiving State shall, without delay, inform the consular post of the sending State if, within its consular
district, a national of that State is arrested or committe4d to prison or to custody pending trial or is detained
in any other manner….[t]he said authorities shall inform the person concerned without delay of his rights
under this subparagraph.” Vienna Convention, article 36(1)(b).
180
Several foreign plaintiffs had raised this argument unsuccessfully in American courts. See, inter alia,
Breard v. Greene, The Republic of Paraguay v. Gilmore, 523 U.S. 371 (1998), Medellin v. Dretke, 125 S.
Ct. 2088 (2005)
181
Sanchez-Llamas v. Oregon, 126 S. Ct. 2669 (2006).
182
Id. at 2695 (Breyer J., dissenting).
183
The dissent noted that “the language, the nature of the right, and the ICJ’s interpretation of the treaty
taken separately or together so strongly point to an intent to confer enforceable rights.” Id. at 2698 (Breyer,
J., dissenting).

31
Convention on Human Rights, and individuals can bring specific grievances against their
home countries in the European Court of Human Rights.184 Thus, individuals in Europe
can rely on this multilateral treaty to have their rights protected and enforced in an
international tribunal, and subsequently, in domestic tribunals which follow the European
Court’s directive.185
Also in Europe, individuals and other corporate non-state actors have other newly
created rights stemming from a variety of European Union Regulations and Directives,
which offer protection on many levels, including antitrust laws, labor laws, insurance
laws, health laws, inter alia.186 Thus, the globalization trend in international law that has
been transforming the world seems to have particularly embedded itself in Europe. In the
United States, the trend seems weaker; nonetheless, American courts seem at least more
willing to consider international protectionist norms and their impact on individual rights.
Thus, individual expectations and behavior have changed across the globe in light
of the powerful influence of globalized international law, which has eroded state
sovereignty in significant ways and which has granted the individual certain quasi-
absolute rights and protections. The degree of protection afforded to the individual by
modern-day international law may vary from region to region and country to country, but
a core group of individual rights seem to have been firmly embedded in almost every
nation’s legal culture, a phenomenon brought about by the potent forces of globalized
international law.

V. Conclusion

The powerful forces of globalization have transformed international law, through

a process of evolution, which has had significant consequences on this legal field.
Besides the proliferation of actors, processes, and sources in international law, the above-
described evolution has heavily impacted several legal fields, in particular human rights
law, international criminal law, and private international law. The evolutionary process
has also magnified the impact of international law, in its globalized shape and form, on
state behavior and on individual expectations. While state powers and sovereignty seem
to have been curtailed by this evolutionary process, by the same token, individual powers
have been reinforced and reinvented through new transnational judicial norms and
processes. How far the evolution of international law will take us remains uncertain, but
it seems likely that international law will play a crucial role in the future life of both state
and non-state entities, and that its study will require a truly elaborate approach.187
184
See Sands supra note 1, at 546-47.
185
Seymour and Tooze, supra note 156, at 119 (noting that the judgments of the European Court of Human
Rights are binding on states as a matter of international law).
186
For a general discussion on the vast European Union regulatory powers, see Peter L. Strauss,
Rulemaking in the Ages of Globalization and Information: What America Can Learn from Europe, and
Vice Versa, 12 COLUM. J. EUR. L. 645 (2006); see also Carter, Trimble, Weiner, supra note 15, at 520-549;
see also id. at 531-532 (discussing the different kinds of legislative acts that can be adopted by the
European Community, including regulations and directives, inter alia); see also Cohan, supra note 3, at
940 (describing the expansive role of the European Union and the fact that it has gained “legal supremacy
over Member States”).
187
Scholars of the so-called “New” New Haven School of International Law have already started exploring
the problematic of finding the proper approach to the study of such a complex field as the modern-day
international law, while recommending the use of a pluralist approach, an inter-disciplinary focus, as well

32
as a commitment to the study of transnational law, inter alia. See, e.g., Laura A. Dickinson, Toward a
“New” New Haven School of International Law?, 32 YALE J. INT’L L. 547 (2007); Koh, “New” New
Haven School; supra note 30; Berman, A Pluralist Approach, supra note 18. However, this Article focuses
on the evolution of international law in light of globalization, and will leave the question of how to study
such globalized international law to future endeavors.

33