From Contract to Legislation: The Logic of Modern International Lawmaking

The future of international lawmaking is in peril. Both trade and climate negotiations have failed to produce a multilateral agreement since the mid-1990s, while the U.N. Security Council has been unable to comprehensively respond to the humanitarian crisis in Syria. In response to multilateralism\u27s retreat, many prominent commentators have called for international institutions to be given the power to bind holdout states-often rising or reluctant powers such as China and the United States-without their consent. In short, these proposals envision international law traveling the road taken by federal systems such as the United States and the European Union: from contractual lawmaking in which states are free to make commitments to each other and free to decline commitments to which they object, to legislative lawmaking in which states-through international institutions-make collective decisions about what legal obligations to undertake. In this Article, I argue that international legislatures-institutions such as the Ministerial Conference of the World Trade Organization (WTO) and the Conference of the Parties to the United Nations Framework Convention on Climate Change (UNFCCC) that make collective decisions about the legal obligations that members may make to each other-are already numerous. But international legislatures of the kind envisioned by global government\u27s proponents are unlikely to emerge because the rise of international legislatures is not driven by the desire to reduce the role of holdouts. To the contrary, I contend that legislatures exist to magnify the ability of holdouts to stall and even paralyze lawmaking. Further, I ague that the increased importance of holdouts is, within limits, beneficial for international lawmaking