¹ The lectures should be published in 2003 in the Academy’s Recueil des Cours.

² Ruth Wedgwood, Double-Jointed Diplomacy, Christian Sci. Monitor, Aug. 1, 1996, at 20.

³ Dai Sil Kim-Gibson, Silence Broken: Korean Comfort Women (1999). In April 1998, the Yamaguchi District Court held that 3 of the 10 women who brought suit should be compensated by the Japanese government for their suffering, but refused to order the government to issue an official apology. See Japanese Court Rules in Favor of’ Comfort Women’, CNN, Apr. 27, 1998, available at <http://www.cnn.com/WORLD/asiapcf/9804/27/japan.comfort/>. In March 2001, however, the High Court in Japan overturned the lower court’s ruling, saying that the “issue was for the parliament to decide, not the courts.” See Japan Court Rules Against ‘Comfort Women’, CNN, Mar. 29, 2001, available at <http://www.asia.cnn.com/2001/WORLD/asiapcf/east/03/29/japan.comfort.women/> (paraphrasing Toshiaki Kawanami, J.).

⁴ The tribunal was organized by NGOs that have been assisting the surviving comfort women since 1991. In December 2001, the tribunal released its final “judgment.” Paul Rodgers, Court Gives Ex-Comfort Women Symbolic Victory, Women’s News, Dec. 7, 2001, available at <http://www.womensenews.org/article.cfm/dyn/aid/%20747>. A summary of the tribunal findings can be found online at <http://wwwl.jca.apc.org/vaww-netjapan/e_new/judgement.html>.

⁵ Koh, Harold H., How is International Human Rights Law Enforced? 74 Ind. L.J. 1397, 1411 (1998)Google Scholar. A “vertica)” conception of international law refers to the relationship between the individual and the state as opposed to a “horizontal” one, which refers to interactions between states. Professor Koh suggests that if human rights enforcement is considered in light of vertical transnational legal processes, it is easier to understand why international law is obeyed most of the time.

To avoid frictions in a nation’s continuing interactions, its bureaucracies or interest groups may press their leaders to shift over time from a policy of violation into one of compliance. It is through this repeated cycle of interaction, interpretation, and internalization—this transnational legal process—that international law acquires its “stickiness,” and that nations come to “obey” international human rights law out of a perceived self-interest that becomes institutional habit.

⁶ See 1 Oppenheim’s International Law 500 (Robert Y. Jennings & Arthur Watts eds., 9th ed. 1992).

⁷ See Mavrommatis Palestine Concessions, 1934 PCIJ, ser. A No. 2. see also James L. Brierly, the Law of Nations 276-87 (6th ed. 1963). Despite the growth of human rights law, the law of state responsibility unquestionably continues to be of great importance. The International Law Commission (ILC), after many years of work, recently adopted its draft articles on state responsibility to further the process of codification and progressive development in this area. See Report of the Drafting Committee, UN Doc. A/CN.4/L.602/Rev.l (2001). In addition, John Dugard presented to the ILC a report on diplomatic protection, in which he discusses, among other things, the controversial question of whether a state is obligated to exercise diplomatic protection on behalf of a national. See John R. Dugard, First Report on Diplomatic Protection, UN Doc. A/CN.4/506 & Corr. 1 & Add.1 (2000).

⁸ Under customary international law, a state is obligated to treat foreign nationals in accordance with an international standard of justice and is responsible to the state of the person’s nationality for any violations of that standard. The state of nationality is entitled to afford the person its diplomatic protection. This is described by Henkin as the “18th-19th century ‘international standard of justice’ for foreign nationals.” Louis Henkin , Human Rights and State “Sovereignty” 25, Ga. J. Int’l & Comp. L. 31 , 40 (1995/1996) (citing the Restatement (Third) of the Foreign Relations Law of the United States §711 (1987)).

⁹ Edwin M. Borchard, The Diplomatic Protection of Citizens Abroad : Or, the Law of International Claims (1915); Chittharanjan F. Amerasinghe, State Responsibility for Injuries to Aliens (1967).

¹⁰ In 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights (Declaration) without a dissenting vote. The Declaration, drawing on contemporary national sources such as national constitutions, defined for the first time certain rights guaranteed by nations to individuals. Universal Declaration of Human Rights, Ga Res. 217 III (A) (1948); see Fernando R. Tesón, Humanitarian Intervention: An Inquiry into Law and Morality 155-57 (2d ed. 1997) (describing the Nuremberg trials as putting forth a message that individuals are entitled to fundamental human rights). For a general discussion on the development of individual human rights, see Henry J. Steiner & Philip Alston, International Human Rights in Context 182-84 (2d ed. 2000).

¹¹ See generally Rosalyn Higgins, Problems and Process: International Law and How We Use it 105 (1994).

¹² See Bilder, Richard B., An Overview of International Human Rights Law: Guide to International Human Right Practices, in Guide to International Human Rights Practice 3-17 (Hannum, Hurst ed., 1983)Google Scholar.

¹³ For example, the United Nations has six separate committees that monitor the compliance of states that are party to the six major human rights treaties (Conventions): the International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Convention on the Rights of the Child. See generally Michael O’Flaherty, Human Rights and the UN: Practice before the Treaty Bodies (1996).

At present four treaty bodies—the Human Rights Committee, the Committee for the Elimination of Racial Discrimination, the Committee Against Torture, and most recently the CEDAW Committee—are empowered under an optional procedure to receive individual complaints, provided the states concerned have agreed thereto. The procedure allows individuals to bring complaints alleging violations of their rights under one of the Conventions. For a comparison of current procedures, see Comparative Summary of Existing Communications and Inquiry Procedures and Practices Under International Human Rights Instruments and Under the Charter of the United Nations: Report of the Secretary General, Commission on the Status of Women, 41st Sess., Agenda Item 5, UN Doc. E/CN.6/1997/4 (1997), available at <http://www.un.org/documents/ecosoc/cn6/1997/ecn61997-4.htm>. Though the decisions reached under UN complaint-recourse procedures are not technically binding, most states comply.

¹⁴ The European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 UNTS 222, pursuant to art. 25, as revised by Protocol 9, E.T.S. No. 140, (entered into force Oct. 1, 1994), provides for individual petitions to the European Court of Human Rights (made permanent under Protocol 11, E.T.S. No. 155, (entered into force Jan. 1, 1998). Similarly, the Regulations of the Inter-American Commission on Human Rights, art. 26, OEA/Ser.L.V/II/71, Doc. 6 rev. 1 at 75 (1988), provide for individual petitions.

¹⁵ See Impunity and Human Rights in International Law and Practice (Naomi Roht-Amaza ed., 1995).

¹⁶ Buergenthal, Thomas, Evolution of International Human Rights, 19 Hum. Rts. Q. 703, 717-20 (1997)CrossRefGoogle Scholar.

¹⁷ For a discussion on the International Military Tribunal at Nuremberg and the International Military Tribunal for the Far East in Tokyo, leading eventually to the development of the Rome Statute, see generally M. Cherif Bassiouni, the Statute of the International Criminal Court, A Documentary History (1988).

¹⁸ SC Res. 827 (May 23, 1993) [hereinafter ICTY].

¹⁹ SC Res. 955 (Nov. 8,1994) [hereinafter ICTR].

²⁰ SC Res. 1315 (Aug. 14, 2000). The United Nations has recently announced that it intends to abandon negotiations on setting up a Cambodian War Crimes Tribunal, although there have been efforts to urge the United Nations to reconsider. See EU Urges UN Rethink on Cambodia, BBC, Feb. 21, 2002, available a«<http://news.bbc.co.uk>.

²¹ Rome Statute of the International Criminal Court, July 17, 1998, 37 IL. 999 (1998). The Rome Statute will enter into force after 60 states have ratified it. Id. at art. 126. The Rome Statute has been signed by 139 states and, as of February 5, 2002, ratified by 52. See Rome Statute Signature and Ratification Chart, available at <http://www.igc.org/ico>.

²² See, e.g., Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol Ii), adopted June 8, 1977, 1125 UNTS 609. On the convergence of human rights and humanitarian law, see, e.g., Doswalk-Beck, Louise & Vité, Sylvain, International Humanitarian Law and Human Rights Law, 293 Int’l Rev. Red Cross 94 (1993)CrossRefGoogle Scholar. Individuals in these groups have, until (and even after) the recent advent of international war crime tribunals and national laws premised on universal jurisdiction, been able to engage in large-scale violations of human rights while enjoying de facto immunity from prosecution for what are criminal acts under the law of the state where these acts took place.

²³ Recentyears have seen considerable literature on this subject. See, e.g., Ratner, Steven R., Corporations and Human Rights: A Theory of Legal Responsibility, 111 Yalel. J. 443, 446 (2001)CrossRefGoogle Scholar (noting that “[t] he last decade has witnessed a striking new phenomenon in strategies to protect human rights: a shift by global actors concerned about human rights from nearly exclusive attention on the abuses committed by governments to close scrutiny of the activities of business enterprises, in particular multinational corporations”); Paul, Joel R., Holding Multi-National Corporations Responsible Under International Law, 24 Hastings Int’l & Comp. L. Rev. 285 (2001)Google Scholar; Frey, Barbara, The Legal and Ethical Responsibilities of Transnational Corporations in the Protection of International Human Rights, 6 Minn. J. Global Trade 153 (1997)Google Scholar; Cassel, Douglass, Corporate Initiatives: A Second Human Rights Revolution? 19 Fordham Int’l L. J. 1963 (1996)Google Scholar. See also Macek, Erin E., Scratching the Corporate Back: Why Corporations Have No Incentive to Define Human Rights, 11 Minn. J. Global Trade 101 (2002)Google Scholar; Lu, Su-Ping, Corporate Codes of Conduct and the FTC: Advancing Human Rights Through Deceptive Advertising Law, 38 Colum. J. Transnat’l L. 603, 605 (2000)Google Scholar; Boyd, Kathryn L., Collective Rights Adjudication in U.S. Courts: Enforcing Human Rights at the Corporate Level, 1999 Byu L. Rev. 1139 Google Scholar; de Bolivar, Maura M., American Indigenous Communities From Transnational Corporations Under International Human Rights and Environmental Law, 8 J. Transnat’l L. & Pol. 105 (1998)Google Scholar.

²⁴ Sarah Anderson & John Cavanagh, Top 200: The Rise of Corporate Global Power, Inst. for Pol’y Stud. (2000), available at <http://www.ips-dc.org/downloads/Top_200.pdf>.

²⁵ For a lively discussion of why it is “absurd to claim, as many globalisation skeptics do, that companies are nowadays more powerful than governments,” see is Government Disappearing? Economist, Sept. 27, 2001, available at <http://www.economist.com/surveys/PrinterFriendly.cfm?Story_ID=796053>.

²⁶ See generally Kelley, Glen, Multilateral Investment Treaties: A Balanced Approach to Multinational Corporations, 39 Colum. J. Transnat’l L. 483 (2000)Google Scholar.

²⁷ It is beyond this paper to discuss the interrelated political, economic, social and technological factors that are accelerating globalization and breaking down geographic boundaries. to mention one factor, perhaps arbitrarily, the internet is facilitating and improving the participation, and hence the strength, of NGOs. in the international norm-creating and enforcing process, thereby allowing NGOs. to influence, if not assume, certain of the roles of traditional sovereign entities. See Perritt, Henry H. Jr., Cyberspace and State Sovereignty, 39 Int’l Legal Stud. 155 (1997)Google Scholar.

²⁸ The United Nations did not adopt the code of conduct for MNCs drafted by its Centre for Transnational Corporations. Development and International Economic Co-operation: Transnational Corporations, UN ESCOR, 2d Sess., UN Doc. E/1990/1994 (1990); Draft United Nations Code of Conduct on Transnational Corporations, Unescor, Spec. Sess.,Supp. No. 7, Annex II, UN Doc. E/1983/17/Rev.l (1983). See also Muchlinski, Peter T., Attempts to Extend the Accountability of Transnational Corporations; The Role of Unctad, in Liability of Multinational Corporations Under International Law 97, 98-105 (Kamminga, Menno T. & Zia-Zarifi, Saman eds., 2000)Google Scholar. The Organization for Economic Cooperation and Development (OECD) and the International Labor Organization (ILO) did issue guidelines in the mid-1970s. The OECD’s Declaration on International investment and Multinational Enterprises Annex 1 (1976) is reprinted in Oecd Guidelines for Multinational Enterprises 57 (1994). With regard to the work done by the ILO, see Perez-Lopez, Jorge F., Promoting International Respect for Workers Rights Through Business Codes of Conduct, 17 Fordham Int’l L.J. 1 (1993)Google Scholar.

²⁹ Reverend Sullivan, Leon H., Sullivan Principles for U.S. Corporations Operating in South Africa, reprinted in 24 ILM 1496 (1985)Google Scholar.

³⁰ Sean MacBride, The Macbride Principles 2 (1984) (Irish National Caucus, Wash., DC).

³¹ See, e.g., Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 99 (2d Cir. 2000); Doe v. Unocal Corp., 110 F. Supp. 2d 1294 (CD. Cal. 2000), aff’d, 248 F.3d 915 (9th Cir. 2001); Beanal v. Freeport-McMoRan, Inc., 969 F. Supp. 362 (E.D. La. 1997), aff’d, 197 F.3d 161 (5th Cir. 1999).

³² See, e.g., Kneller, Robert, Human Rights, Politics, and Multilateral Development Banks, 6 Yale Stud. World Pub. Ord. (1980)Google Scholar; Bradlow, Daniel D., The World Bank, the Imf, and Human Rights, 6 Transnat’L L. & Contemp. Probs. 47 (1996)Google Scholar. Also relevant is the Global Compact, UN Secretary-General Kofi Annan’s initiative to engage world business leaders in the challenges of development, particularly its environmental, social, and human rights aspects. See the Global Compact, available at <http://www.unglobalcompact.org>.

³³ What are known as “first-generation” human rights—rights specifically concerned with individual freedoms—have brought the individual directly within the scope of international law. “Second generation” rights, comprising collective human rights in the economic and social sphere, have contributed to strengthening the presence of peoples in the domain of international law. As for recent “third generation” rights— the right to peace, to a clean environment, to development, to the common heritage of mankind—all of these broaden the perspectives of international law to a point where the individual, the people, the state, and even the human race are subjects of international law.

³⁴ NGOs can play a very important role in the development of international instruments. Two well-known examples are the Kyoto Protocol and the Landmine Convention. Kyoto Protocol to the United Nations Framework Convention on Climate Change, adopted Dec. 10, 1997, reprinted in 37 IL. 22 (1999); Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, opened for signature Dec. 3, 1997, reprinted in 36 IL. 1507 (1997). see also Mertus, Julie, Considering Nonstate Actors in the New Millennium: Toward Expanded Participation in Norm Generation and Norm Application, 32 N.Y.U.J. Int’l L. & Pol. 537 (2000)Google Scholar; Sands, Philippe J., The Environment, Community and International Law, 30 Harv. Int’l L.J. 393 (1989)Google Scholar.

³⁵ See Ratner, supra note 23 (describing decolonization and the “global transformation that resulted”).

³⁶ See generally Charles Lipson, Standing Guard: Protecting Foreign Capital in the Nineteenth and Twentieth Centuries (1985); see also Muchlinski, Peter T., The Rise and Fall of the Multilateral Agreement on Investment: Where Now? Int’l Law. 1033, 1034-37 (2000)Google Scholar (describing the development of international business protection and regulation with regard to noncolonial territories).

³⁷ UN Doc. E/CN.17/2001/PC/10, para. 7 (2001).

³⁸ Established under the 1965 “Washington Convention,” ICSID normally has jurisdiction over investment disputes between a state that is a party to the convention and an investor from another convention state. Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, 4 IL. 532 (1965), available at <http://www.worldbank.Org/icsid/basicdoc/9.htm>.

³⁹ Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 UST 2517, 330 UNTS 38. This convention, known as the “New York Convention,” provides for the recognition and enforcement of arbitral awards in over 125 countries around the world. The latest to ratify was die Islamic Republic of Iran, in January 2002.

⁴⁰ This goal continues to be of great importance. In fact, it is a significant motivation behind the Judgments Convention being negotiated at the Hague Conference on Private International Law.

⁴¹ In 1989, there were 385 Bits; by December 2000, there were 1,941. UNCTAD, Bilateral Investment Treaties at the End of 2000, Press Briefing, TAD/INF/NC19 (2001), available at <http://www.unctad.org/en/press/nc0119en.htm>.

⁴² See Picker, Colin B., A View from 40,000Feet: International Law and the Invisible Hand of Technology, 23 Cardozo L. Rev. 149, 157 (2001)Google Scholar (noting that international trade law is frequently industry-driven, and “in numerous areas of international law, industry plays a vital role in advising national negotiators and policy makers”).

⁴³ Nearly all Bits provide some protection against expropriation. See Rudolf Dolzer & Margrete Stevens, Bilateral Investment Treaties 98 (1995).

⁴⁴ Philip C. Jessup, Transnational Law 2 (1956). See also Jessup, Philip C., The Concept of Transnational Law, 3 Colum. J. Transnat’l L. 1 (1964)Google Scholar; Henryj. Steiner & Detlev F. Vagts, Transnational Legal Problems: Materials and Text xi-xiv (1968); Eugen Langen, Transnationales Recht (1981); Eugen Langen, Transnational Commercial Law (1973).

⁴⁵ See Koh, Harold H., Points of View: The Globalization of Freedom, 26 Yale J. Int’l L. 305 (2001)Google Scholar.

⁴⁶ For example, it is common that various norms outside the lex contractus, from at least two and often more national legal systems, affect any given contract, among them laws on exchange controls, taxation, and safety rules. Transnational law can refer to contracts that simply take into account varied legal environments and situations, legal rules, principles and contractual patterns that are internationally used or recognized in a uniform or similar way, and, of course, internationally uniform law in the proper sense, based on, for example, customary law. These categories are far from clearly defined. For example, lex mercatoriaviould be considered by some to encompass transnational customary law, codified or not, and also law of a Bit or a state that relates to international trade. Others see it differently. See Goldman, Berthold, The Applicable Law: General Principles of Law—The Lex Mercatoria, in Contemporary Problems in International Arbitration 113 (Lew, Julian D. M. ed., 1987)CrossRefGoogle Scholar.

⁴⁷ As Professor Koh has pointed out, this is perhaps the “most intriguing recent change” in transnational law. Harold Koh, H., Points of View: The Globalization of Freedom, 26 Yale J. Int’l L. 305, 306 (2001)Google Scholar.

⁴⁸ Consider, for example, the work done at the Oecd on criminalizing bribery of foreign government officials. This project combines both private commercial interests and public human rights concerns into one convention. Oecd, Convention on Combating Bribery of Foreign Public officials in International Business Transactions, Dec. 18, 1997, 37 IL. 1 (1998).

⁴⁹ See, e.g., Paul, Joel R., Holding Multi-National Corporations Responsible Under International Law, 24 Hastings Int’l & Comp. L. Rev. 285 (2001)Google Scholar (noting that “[t]here has been a marked upsurge in actions initiated by individuals [in domestic courts] to hold MNCs accountable under international law, particularly in the United States”); Slyz, George, International Law in National Courts, 28 N.Y.U.J. Int’l L. & Pol. 65 (1996)Google Scholar (noting that “ [t]oday, national courts regularly confront issues of international law”). See also International Law Decisions in National Courts (Thomas Franck et al. eds., 1996).

⁵⁰ See the Web site of the Project on International Courts and Tribunals at <http://www.pict-pcti.org/matrix/matrixhome.html> for a “Synoptic Chart” listing 125 international dispute resolution bodies and mechanisms.

⁵¹ ICTY, supra note 18; ICTR, supra note 19.

⁵² See generally George H. Aldrich, The Jurisprudence of the Iran-United States Claims Tribunal (1996); Charles N. Bro Wer & Jason D. Brueschke, the Iran-United States Claims Tribunal (1998); the Iran-United States Claims Tribunal: Its Contribution to the Law of State Responsibility (Richard B. Lillichet. al. eds., 1998).

⁵³ This commission was set up by the Security Council to deal with individual, corporate, and state claims against Iraq arising from its invasion of Kuwait. SC Res. 687 (Apr. 3, 1991). See generally The United Nations Compensation Commission (Richard B. Lillich ed., 1995); David Bederman, J., The United Nations Compensation Commission and the Tradition of International Claims Settlement, 27 N.Y.U.J. Int’l L. & Pol. 1 (1994)Google Scholar.

⁵⁴ For the full text of the peace agreement, see Ethiopia-Eritrea: Agreement Between the Government of the Federal Democratic Republic of Ethiopia and the Government of the State of Eritrea, Dec. 12, 2000, 40 IL. 260 (2001).

⁵⁵ Some of the leading international arbitration institutions are the London Court of International Arbitration (LCIA), the International Court of Arbitration of the International Chamber of Commerce (ICC), and the American Arbitration Association International Centre for Dispute Resolution (ICDR).

⁵⁶ See, e.g., Buergenthal, Thomas, Proliferation of International Courts and Tribunals: Is it Good or Bad? 14 Leiden J. Int’l L. 267 (2001)CrossRefGoogle Scholar; Charney, Jonathan I., Is International Law Threatened by Multiple International Tribunals’! 271 Recueil Des Cours 101 (1998)Google Scholar. See also the Proliferation of International Courts and Tribunals: Piecing Together the Puzzle, 31 N.Y.U.J. Int’l L. & Pol. 679-933 (1999) (containing the proceedings of a symposium); Implications of the Proliferation of International Adjudicatary Bodies JBR Dispute Resolution, ASIL Bull., No. 9 (Nov. 1995) (dedicated volume).

⁵⁷ For example, the ICJ has made some procedural rulings on evidence (specifically the treatment of witnesses) that mirror arbitration procedures.

⁵⁸ See supra note 49.

⁵⁹ See generally Fausto Pocar, on the relative competence of the European Community and its member states in the context of the Judgments Convention, in Law and Justice in a Multistate World: Atribute то Arthur T. Von Mehren (Symeon C. Symeonides ed., forthcoming 2002).

⁶⁰ Keeping in mind General de Gaulle’s dictum: “I am for law as long as it is not contrary to our interests.”