The dominant story of transboundary environmental impact assessment in international law has the following elements: (1) customary international law prohibits transboundary pollution; (2) according to the classic version of this prohibition, contained in Principle 21 of the 1972 Stockholm Declaration, states must ensure that activities within their territory or under their control do not harm the environment beyond their territory; (3) to ensure that activities within their jurisdiction will not cause transboundary harm, states must assess the potential transboundary effects of the activities; and (4) to that end, states enter into international agreements requiring them to carry out transboundary environmental impact assessment (transboundary EIA) for activities that might cause transboundary harm.

In August 2001, the International Law Commission (ILC) adopted its “Draft Articles on the Responsibility of States for Internationally Wrongful Acts,” bringing to completion one of the Commission’s longest running and most controversial studies. On December 12, 2001, the United Nations General Assembly adopted Resolution 56/83, which “commend [ed the articles] to the attention of Governments without prejudice to the question of their future adoption or other appropriate action.”

A continuing debate in international human rights law concerns the result of invalid reservations to multilateral treaties. The cardinal rule holds that a reservation cannot be incompatible with the object and purpose of a treaty. Yet a normative puzzle remains: what legal remedy should follow the determination of the invalidity of a reservation? Leading commentators have discussed a limited set of options. Three choices can be identified:

A burgeoning literature addresses the links between the World Trade Organization and ostensibly “nontrade” issues, including corruption and bribery, health care (such as tobacco control), human rights generally or labor rights in particular, diverse environmental concerns, issues of “culture,” and even the fight against terrorism. Current WTO scholarship, at least that published in the United States, seems to be obsessed with exploring the outer boundaries of the trade regime. In the face of a vast array of potential recipes for linkage to particular nontrade issues, as well as cautionary tales against such linkage, what is to be gained from revisiting these questions?

The relationship between the International Monetary Fund (Fund) and the World Trade Organization (WTO) is a continuation of the long-standing relationship between the Fund and the Contracting Parties to the General Agreement on Tariffs and Trade (GATT), as modified by new developments associated with the establishment of the WTO. The two organizations generally act in a complementary and cooperative fashion. Discussions about the legal aspects of the relationship, however, including recent WTO dispute settlement cases concerning the Fund, reflect misunderstandings about the legal nature of Fund activities and how they relate to the WTO provisions on this relationship. In addition, certain issues about the Fund/WTO relationship are not clearly resolved in the text of the WTO Agreements. This article discusses key legal provisions of the WTO Agreements that concern the Fund and explains the legal nature of the Fund’s activities relevant to these provisions.

The handling by the International Law Commission (ILC) of state responsibility, hazardous activities, and strict liability reveals in many ways the Commission’s strengths and limitations. This work also tells much about the development of international law and the extent to which there is—or is not—an international community. The Commission’s work on state responsibility in particular also illustrates the validity of Holmes’s immortal statement about logic and the life of the law, the utility of Occam’s razor, and the value of William James’s pragmatism. Even if Philip Allott were close to the mark—as he often is—in calling the draft articles, as they then were, “bland gruel,” it is hard to ignore the need for the articles or their contribution to the unification of international law. Both are witnessed by tribunals’ eagerness to cite the Commission’s texts even before their formal adoption. While this practice has upset some as premature, it reflects the symbiotic process that has evolved over time as both the Commission and courts and tribunals labor to clarify existing law. Codification of lex lata may be no less effective if contained in a paragraph of a report rather than in an article of a multilateral treaty.

In the wake of the terrorist attacks in the United States on September 11, 2001, a variety of proposals emerged for bringing the perpetrators tojustice. These proposals included the use of courts-martial, the creation of a special tribunal (whether under the auspices of the United Nations or otherwise), and prosecution in U.S. federal courts.1 On November 13, 2001, President George W. Bush issued a military order entitled "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism" (Military Order).2 Pursuant to the Military Order, the United States may establish military commissions to prosecute terrorists for violations of the laws of war and "other applicable laws."

Trade and the environment. Trade and workers’ rights. Trade and competition policy. Trade and eighteen million tiny feet. It begins to resemble a question from an IQ test: which of the preceding pairs of issues does not fit? Increasingly, it seems there is no pairing with trade for which some argument cannot be made. The “trade and …” industry is booming.

At the beginning of the twenty-first century, the international community is globalizing, integrating, and fragmenting, all at the same time. States continue to be central, but many other actors have also become important: international organizations, nongovernmental organizations, corporations, ad hoc transnational groups both legitimate and illicit, and individuals. For the year 2000, the Yearbook of International Organizations reports that there were 922 international intergovernmental organizations and 9988 international nongovernmental organizations. If organizations associated with multilateral treaty agreements, bilateral government organizations, other international bodies (including religious and secular institutes) , and internationally oriented national organizations are included, the number of international organizations reaches nearly thirty thousand. Another twenty-four thousand are listed as inactive or unconfirmed. Corporations that produce globally are similarly numerous. As of September 27, 2002, an estimated 6,252,829,827 individuals lived on our planet. Some of these individuals and groups have made claims against states for breaching their obligations, particularly for human rights violations. In short, international law inhabits a much more complicated world than the one that existed fifty or even thirty years ago.

It is now more than an academic question whether one should regard terrorism as crime or as war. The attacks mounted by the Al Qaeda organization on September 11, 2001, were of unprecedented scale, heretofore seen only in wartime, killing three thousand people in a few hours’ time. Most victims were civilians, and most were Americans, yet the dead included people from eighty-seven countries. Had the emergency evacuation of the World Trade Center towers not run efficiently, as many as twenty-five thousand more might have died.

The psychological sense that this was an act of war is founded on the extraordinary destructiveness of the act. In the past, even terrorism has evinced an implicit set of expectations—using violence to intimidate or gain publicity, targeting civilians so as to undermine the confidence placed in organized authority, but generally stopping short of this irrational magnitude of destruction. Only nihilism might seem to explain a scale of wreckage that serves no programmatic demands or political ambition.

One of the biggest challenges facing the World Trade Organization is to determine its own mission. The failure to launch new trade talks at the WTO’s Ministerial Conference at Seattle in late 1999 was due, in large part, to disagreements between members about what “new” issues should be placed on the negotiating agenda. These problems continued to stymie the WTO in the run-up to the Doha ministerial meeting in 2001.

In January 2002, Zacarias Moussaoui, a French national of Moroccan descent, pleaded not guilty in Virginia federal court to six counts of conspiring to commit acts of international terrorism in connection with the September 11 attacks on the Pentagon and the World Trade Center. In other times, it would have seemed unremarkable for someone charged with conspiring to murder American citizens and destroy American property on American soil to be tried in a U.S. civilian court. More than two centuries ago, Article I, Section 8, Clause 10 of the United States Constitution granted Congress the power to "define and punish Piracies, Felonies committed on the High Seas, and Offenses against the Law of Nations," a power that Congress immediately exercised by criminalizing piracy, the eighteenth-century version of modern terrorism. Since then, Congress has criminalized numerous other international offenses. In recent decades, United States courts have decided criminal cases convicting international hijackers, terrorists, and drug smugglers, as well as a string of well-publicized civil lawsuits adjudicating gross human rights violations. Most pertinent, federal prosecutors have successfully tried and convicted in U.S. courts numerous members of Al Qaeda, the very terrorist group charged with planning the September 11 attacks, for earlier attacks on the World Trade Center and the U.S. embassies in Tanzania and Kenya.

The adoption in August 2001 by the International Law Commission (ILC) of its articles on responsibility of states for internationally wrongful acts well and truly brings to a close the twentieth century’s engagement with international law as (in Martti Koskenniemi’s memorable refashioning of George Kennan’s savage critique) a “gentle civilizer of nations.” Including the entry into force of the Rome Statute of the International Criminal Court, the seven pillars of international legal codification have been completed with some form of assistance by the ILC: diplomatic immunities, the law of the sea, a comprehensive law of treaties, the Nuremberg Principles, andjurisdictional immunities of states. Indeed, the articles on state responsibility may represent an even greater methodological challenge for international law codification because they pose fundamental questions regarding the identity and nature of states. Like the Montevideo Convention on Rights and Duties of States and the ILC’s own somewhat obtuse efforts on the international law of state succession, the articles on state responsibility go to the intellectual core of public international law by delimiting the character of states and the nature of their obligations when they interact with other international actors. Perhaps, then, it is no surprise that the ILC’s journey into that doctrinal realm took over half a century, and consumed the attention of five special rapporteurs and countless Commission members.

In this paper, we argue that market access issues associated with the question of the optimal mandate of the World Trade Organization should be separated from nonmarket access issues. We identify race-to-the-bottom and regulatory-chill concerns as market access issues and suggest that the WTO should address these concerns. We then describe ways that WTO principles and procedures might be augmented to do so. As for nonmarket access issues, we argue that as a general matter these are best handled outside the WTO, and that, while implicit links might be encouraged, explicit links between the WTO and other labor and environmental organizations should not as a general matter be forged. We view this as a measured approach to labor and the environment within the WTO.

“Trade and … ” linkages arise when nontrade issues are linked to trade. Thus, if the United States declines to trade with Myanmar until it complies with certain human rights or democracy standards, this is a “trade and … ” linkage. All “trade and … ” linkages are constructed, in the sense that the decision to link trade to other issues is always a political decision and is not otherwise determined by the nature of things. Governments link trade concessions to the satisfaction of other, nontrade policy interests, either politically or legally, whenever they find such linkage useful to the achievement of their goals.

The Military Order issued on November 13,2001,1 by President George W. Bush does not offer a clear rationale for subjecting international terrorists, and persons suspected of links to them, to trial by military commissions. Military commissions can be designed for several purposes: (1) to prosecute violations of the law of war, as an alternative to courts-martial; (2) to fill a legal vacuum where armed conflict disables the civil courts; and (3) to impose swift and certain punishment against civilians suspected of specific crimes. While the first two purposes are legitimate and reflected in past United States practice, the third is questionable and a sharp departure from democratic traditions. The ambiguous nature of the “war” against international terrorism and the sweeping text of the November 13 Military Order obscure which objective(s) the order is intended to accomplish.

The International Law Commission’s articles on reparations restate the existing law on remedies, but they also innovate in significant ways to reinforce broader community interests in international legality. Given the dearth of precedents on reparations, both aspects can be helpful to tribunals and parties engaged in traditional interstate litigation, but the progressive elements, if they are accepted by states, could have wider application in supporting mechanisms to enhance implementation and observance of international obligations. The combination of codification and progressive development, however, is sometimes an uneasy fit and leaves unanswered several important questions about the theoretical foundation and practical application of the law of reparations. Even the seeming clarity of the articles is deceptive because some of the concepts included in the broadly drafted provisions can be difficult to apply in practice.