The adoption by the International Law Commission (ILC) in 2001 of its articles on state responsibility is an achievement that presents a paradox. This essay is about the form and authority of the articles, and the paradox that they could have more influence as an ILC text than as a multilateral treaty. The essay addresses the questions of the appropriate authority to be given an ILC text, why undue influence may be attributed to an ILC text (particularly by arbitral tribunals), and how an arbitral tribunal should approach interpreting and applying the articles on state responsibility.

As is known to every student of trade law and policy, the modern idea of free trade originates from the theories of absolute and comparative advantage developed by the classical political economists, Adam Smith and David Ricardo. Smith and Ricardo both addressed themselves to a sovereign unilaterally deciding its trade policy. They concluded that, with some qualifications or exceptions, a policy of liberalizing restrictions on imports would maximize the wealth of that sovereign.

At the time this essay is being written (in mid-February), much is still not known about the system of military commissions contemplated by the president’s Military Order of November 13, 2001, and about the circumstances in which such commissions will be used. For example, it is not yet clear what offenses will be tried, what rules of evidence will be adopted, whether the defendants’ choice of counsel will be restricted, and whether defendants will be able to pursue ajudicial appeal of their conviction or a collateral challenge to their detention. Presumably, these points will be clarified by further orders or regulations from the executive branch.

The development of the articles on state responsibility of the International Law Commission (ILC) has been described elsewhere, in particular in the ILC’s Yearbook. The phases of development of the first (1955-1996) andsecond (1998-2001) readings are well enough known, and there is little point in repeating this material. Whatever the trials and longueurs of their production, the articles with their commentaries now exist and may be assessed as a whole.

The first reading was the product of decades of work under successive special rapporteurs (Roberto Ago, Willem Riphagen, and Gaetano Arangio-Ruiz). The second readingwas equally a collective process and many members contributed to the final result. As I was formally responsible for shaping the work on second reading, I may not be the best person to comment on the outcome. Anything less than a full-scale defense of the text will be seen as an unauthorized retreat, and if the text cannot defend itself with the aid of the commentaries, it is too late for individuals to make up for any deficiencies.

The problem of linkage between “nontrade” subjects and the World Trade Organization is certainly one of the most pressing and challenging policy puzzles for international economic relations and institutions today. It is extensively and harshly debated by political leaders and diplomats, at both the national and the international levels of discourse, and is one of several issues that derailed the WTO Third Ministerial Conference in Seattle in late 1999. It also posed problems for the Fourth Ministerial Conference in Doha, Qatar, in November of 2001, and it threatens to derail the successful functions of the WTO itself.

The reconvened sixth session of the Conference of the Parties (COP-6bis) to the UN Framework Convention on Climate Change (FCCC) took place in Bonn from July 16 to 27, 2001, under the presidency of Jan Pronk, Netherlands minister of housing, spatial planning, and the environment. The meeting was noteworthy as the occasion for adopting the Bonn Agreements on the Kyoto Protocol rules, a crucial juncture for entry into force of the principal international instrument for reducing emissions of greenhouse gases. The rules were adopted in final form as the Marrakesh Accords at the seventh session of the Conference of the Parties (COP-7), held in Marrakesh, Morocco, from October 29 to November 9, 2001.

Commenting on the papers in this symposium is paradoxically a difficult task. The authors are remarkably distinguished and one can only learn from what they write. Indeed, I have learned much from them (especially from Dean David Leebron’s splendid clarification of several aspects of linkage, a paper that shows that he should have been an Oxford philosopher if only he had not been such a successful legal scholar). Yet it is easy for an invited commentator to be overwhelmed by despair because the authors write for the most part as if in a research vacuum. There is little attempt at relating what they write to the enormous literature on the problem of linkage.

The issue of whether and how the trading system should deal with social and economic policies not strictly within the ambit of the WTO has been with us at least since the inception of the GATT in 1947-1948. It is not a new question. The problem, however, has become even more vexing since the 1970s, as tariffs became less important in trading relationships and governments struggled to respond to a proliferation of nontariff barriers to trade. I will argue, in this Afterword, that the question is not whether the WTO should or should not deal with the “trade and … ” subjects—trade and environment, trade and public health, trade and labor rights, trade and human rights, trade and competition, trade and investment, and trade and intellectual property, to name a few. It already does and has done so, in many respects, since 1948. The question I would pose is this: how should these so-called nontrade subjects be dealt with within the WTO system? And who should define the scope of WTO recognition/cognizance of these subjects: WTO member governments (the “Members”) or the quasi-judicial bodies of the dispute settlement system (the panels and the Appellate Body)?

The contributors to this symposium, both principal authors and commentators, ably demonstrate that there are indeed “overarching constructs” linking the subdisciplines of international law. All of the writers here assume that linkage issues arise for the World Trade Organization, as they have with respect to a number of other intergovernmental organizations, precisely because centralized, quasi-autonomous institutions maybe relatively effective vehicles for the promotion of interstate cooperation between rational, egoistic state actors. All of them assume, as scholars of international relations and economists have long recognized, that many international regimes are linkage machines by their very nature. It is important to recall why this is so in order to consider when or how an organization’s attempts at linkage may fail.