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“GLOBALISING SOVEREIGNTY”? PETTIT'S NEO-REPUBLICANISM, INTERNATIONAL LAW, AND INTERNATIONAL INSTITUTIONS

Published online by Cambridge University Press:  28 August 2015

Christopher Alexander Thomas
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Abstract

This article explores Philip Pettit's recent attempts to extend his republican theory of justice and legitimacy to the international sphere in accordance with his ideal of “globalised sovereignty”, with a specific focus on his treatment of international law and institutions. It uses the practice of international law and institutions, with examples largely drawn from international economic law, to test the assumptions built into Pettit's theory. It then considers whether and how some of those assumptions might need to be revised in light of the legal, institutional, and practical constraints of the international domain.

Keywords

republicanismPhilip Pettitdominationpublic international lawinternational institutions
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Articles
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The Cambridge Law Journal , Volume 74 , Issue 3 , November 2015 , pp. 568 - 591
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Copyright © Cambridge Law Journal and Contributors 2015 

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References

1 See especially P. Pettit, Republicanism: A Theory of Freedom and Government (Oxford 1997); P. Pettit, On the People's Terms: A Republican Theory and Model of Democracy (Cambridge 2012).

2 Pettit, P., “A Republican Law of Peoples” (2010) 9 Eur.J.Polit.Theory 70CrossRefGoogle Scholar; P. Pettit, “Legitimate International Institutions: A Neo-Republican Perspective” in S. Besson and J. Tasioulas (eds.), The Philosophy of International Law (Oxford 2010), 139; P. Pettit, Just Freedom (New York 2014). See also Pettit, P., “Democracy, National and International” (2006) 89 Monist 301CrossRefGoogle Scholar; P. Pettit, “Rawls's Peoples” in R. Martin and D.A. Reidy (eds.), Rawls's Law of Peoples: A Realistic Utopia? (Oxford 2006), 38; Pettit, Republicanism, pp. 150–53, 179. Cf. John Rawls, The Law of Peoples (Cambridge MA 1999).

3 In an early conference paper on these matters, Pettit opens by emphasising “I am no expert on the institutions of the international domain. My hope is, at best, to sketch a line that those who have a professional knowledge of this domain may find useful in considering the common complaint that international institutions inevitably erode democracy”: P. Pettit, “Two-Dimensional Democracy and the International Domain”, conference presentation, NYU Law School (4 October 2012), 1, available at <http://www.iilj.org/courses/documents/HC2004.Pettit.pdf>.

4 S. Besson and J.L. Martí, “Law and Republicanism: Mapping the Issues” in S. Besson and J.L. Martí (eds.), Legal Republicanism: National and International Perspectives (Oxford 2009), 3, 5.

5 See Polybius, The Histories (London 1889).

6 See Cicero, The Republic and the Laws, translated by N. Rudd (Oxford 2008).

7 See N. Machiavelli, Discourses on Livy (Oxford 2008); G. Bock, Q. Skinner, and M. Viroli (eds.), Machiavelli and Republicanism, new ed. (Cambridge 1993); J.G.A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton 1975).

8 See J. Harrington, The Commonwealth of Oceana and a System of Politics, J.G.A. Pocock ed. (Cambridge 1992).

9 See C. de Montesquieu, The Spirit of the Laws, translated by A.M. Cohler, B.C. Miller, and H.S. Stone (Cambridge 1989). See also Long, K., “Civilising International Politics: Republicanism and the World Outside” (2010) 38 Millennium 773CrossRefGoogle Scholar.

10 See J.J. Rousseau, The Social Contract and Other Later Political Writings, translated by V. Gourevitch (Cambridge 1997).

11 See e.g. W. Blackstone, Commentaries on the Laws of England, vol. 1 (Oxford 1765), 122 (“laws, when prudently framed, are by no means subversive but rather introductive of liberty”).

12 See e.g. A. Hamilton, J. Madison, and J. Jay, The Federalist Papers, C. Rossiter ed., No. 10 (London 1961), 56–65 (“Federalist No. 10”).

13 Lovett, F. and Pettit, P., “Neorepublicanism: A Normative and Institutional Research Program” (2009) 12 Annu.Rev.Polit.Sci. 11CrossRefGoogle Scholar.

14 Ibid., at pp. 11–12.

15 Although cf. Madison, who viewed the scalability of representative republicanism as preferable to direct democracy: see Hamilton et al., Federalist No. 10.

16 N.G. Onuf, The Republican Legacy in International Thought (Cambridge 1998), 3.

17 M.N.S. Sellers, “The Republican Foundations of International Law” in Besson and Martí, Legal Republicanism, p. 187.

18 Vitoria considered the exercise of political power (potesta civilis) at the domestic level to be inextricably related to the commonwealth (res publica). He argued that the norms of ius gentium were inextricably tied to a commonwealth of all the world – the res publica totius orbis – from which authority (auctoritas) they derive their normative validity: see Wagner, A., “Francisco de Vitoria and Alberico Gentili on the Legal Character of the Global Commonwealth” (2011) O.J.L.S. 1Google Scholar. See also Zapatero, P., “Legal Imagination in Victoria: The Power of Ideas” (2009) 11 J.Hist.Int.L. 221CrossRefGoogle Scholar. See also discussion of the res publica Christiana in C. Miéville, Between Equal Rights: A Marxist Theory of International Law (Leiden 2005), 173–75.

19 C. Wolff, Jus gentium methodo scientifica pertractatum, translated by J.H. Drake (Oxford 1934), Prolegomena. See discussion in Onuf, The Republican Legacy in International Thought, pp. 60–75. See also S. Besson, “Ubi Ius, Ubi Civitas: A Republican Account of the International Community” in Besson and Martí, Legal Republicanism, p. 205.

20 E. de Vattel, The Law of Nations, new ed. (London 1797), xv.

21 I. Kant, “Perpetual Peace: A Philosophical Sketch” in H.S. Reiss (ed.), Kant: Political Writings, 2nd enlarged ed. (Cambridge 1991), 93.

22 I. Kant, The Metaphysics of Morals, M. Gregor ed. (Cambridge 1996), at [6:354]. Although cf. para. [6:311], in which Kant notes: “Because of its form, by which all are united through their common interest in being in a rightful condition, a state is called a commonwealth (res publica latius sic dicta). In relation to other peoples, however, a state is called simply a power (potentia) (hence the word potentate)”.

23 See Q. Skinner, Liberty before Liberalism (Cambridge 1998), ix–x, 96–98.

24 See e.g. Q. Skinner, “The Paradoxes of Political Liberty” in S.L. Darwall (ed.), Equal Freedom: Selected Tanner Lectures on Human Values (Ann Arbor 1995), 15; Q. Skinner, “Pre-Humanist Origins of Republican Ideas” and “The Republican Ideal of Political Liberty” in Bock et al., Machiavelli and Republicanism, pp. 121, 239, respectively; Q. Skinner, Hobbes and Republican Liberty (Cambridge 2008).

25 See especially Pocock, The Machiavellian Moment.

26 M. Sandel, Democracy's Discontent: America in Search of a Public Philosophy (Cambridge MA 1996).

27 Pettit, Republicanism.

28 See e.g. F. Michelman, “Law's Republic” (1988) 97 Yale L.J. 1493.

29 See e.g. Sunstein, C.R., “Beyond the Republican Revival” (1988) 97 Yale L.J. 1539CrossRefGoogle Scholar.

30 See e.g. J. Braithwaite and P. Pettit, Not Just Deserts: A Republican Theory of Criminal Justice (Oxford 1990); J. Braithwaite, “Inequality and Republican Criminology” in J. Hagan and R. Peterson (eds.), Crime and Inequality (Stanford 1995); J. Braithwaite , “Republican Theory and Crime Control” in K. Bussman and S. Karstedt (eds.), Social Dynamics of Crime and Control: New Theories for a World in Transition (Oxford 2000); J. Braithwaite, Restorative Justice and Responsive Regulation (Oxford 2002).

31 See e.g. L. Quill, Liberty after Liberalism: Civic Republicanism in a Global Age (New York 2006); S. Slaughter, Liberty beyond Neo-Liberalism: A Republican Critique of Liberal Governance in a Globalising Age (New York 2005); D.H. Deudney, Bounding Power: Republican Security Theory from the Polis to the Global Village (Princeton 2008).

32 Cf. M.N.S. Sellers, Republican Principles in International Law: The Fundamental Requirements of a Just World Order (New York 2006); Besson, “Ubi Ius, Ibi Civitas”.

33 J.S. Mill, On Liberty, 2nd ed. (London 1859), 27.

34 J. Bentham, Principles of Legislation, 2nd enlarged ed. (Boston 1830), 259. This sentiment has recently been echoed in The Guardian by Tom Stoppard, who claims that “[e]very act of regulation by authority is an erosion of liberty”: “On Liberty: Edward Snowden and Top Writers on What Freedom Means to Them”, The Guardian, 21 February 2014.

35 See discussion of “instrumental republicanism” in Patten, A., “The Republican Critique of Liberalism” (1996) 26 Brit.J.Polit.Sci. 25CrossRefGoogle Scholar.

36 See especially P. Pettit, “Deliberative Democracy, the Discursive Dilemma, and Republican Theory” in J.S. Fishkin and P. Laslett (eds.), Debating Deliberative Democracy (Oxford 2003), 138. See also Besson and Martí, “Law and Republicanism”, p. 24. Cf. R.A. Epstein, “Modern Republicanism – Or, the Flight from Substance” (1988) 97 Yale L.J. 1633.

37 Pettit, “Legitimate International Institutions”, p. 143. See also P. Pettit, “The Common Good” in K. Dowding, R.E. Goodin, and C. Pateman (eds.), Justice and Democracy: Essays for Brian Barry (New York 2004), 150.

38 Pettit, Just Freedom, pp. 61–63; Pettit, Republicanism, pp. 185–200.

39 The example given is almost inevitably a “he”.

40 See Lovett and Pettit, “Neorepublicanism”, p. 16.

41 See Pettit, Republicanism, p. 148.

42 See e.g. Dagger, R., “Neo-Republicanism and the Civic Economy” (2006) 5 Polit.Philos.&Econ. 151CrossRefGoogle Scholar.

43 Pettit, “Legitimate International Institutions”, p. 142.

44 See Pettit, P., “Legitimacy and Justice in Republican Perspective” (2012) 65 C.L.P. 59Google Scholar.

45 Ibid. See also Lovett and Pettit, “Neorepublicanism”.

46 Ibid., at p. 12. The “basic ideas” include non-domination, the non-dominating state which promotes its citizens' freedom, and an ideal of good citizenship as committed to preserving this role for the state.

47 F. Lovett, “Republicanism” in The Stanford Encyclopedia of Philosophy, E.N. Zalta ed. (Winter 2014), available at <http://plato.stanford.edu/archives/win2014/entries/republicanism/>. Similarly, Pettit is keen to stress that republicanism “presents us with a programme for developing policy, not with a policy blueprint”: Pettit, Republicanism, p. 147.

48 Bohman, J., “Critical Theory, Republicanism, and the Priority of Injustice: Transnational Republicanism as Non-Ideal Theory” (2012) 43 J.Soc.Philos. 97CrossRefGoogle Scholar, making a related point about Pettit's emphasis on the “bilateral case”.

49 Cf. Rawls, The Law of Peoples, p. 4, in which Rawls divides the world into reasonable liberal peoples, decent peoples, outlaw states, societies burdened by unfavourable conditions, and benevolent absolutisms.

50 Pettit argues, however, that he goes beyond Rawls, in that non-domination “supports the Rawlsian proposal that representative states ought to live in mutual respect but it focuses attention, unlike Rawls himself, on the pre-conditions that must be fulfilled to make such a regime of respect possible”: Pettit, “Republican Law of Peoples”, p. 73. See also Pettit, “Rawls's Peoples”.

51 Pettit, “Republican Law of Peoples”, p. 73. See also Lovett and Pettit, “Neorepublicanism”, p. 22. Pettit does expand briefly on why he finds the cosmopolitan alternative unattractive in Pettit, Just Freedom, pp. 184–85. There are, however, a much broader range of criticisms of Rawls's ontology of peoples which Pettit has yet to address directly: see e.g. the criticisms summarised in G. Brock, Global Justice: A Cosmopolitan Account (Oxford 2009), ch. 2.

52 Pettit, Just Freedom, p. 183.

53 Ibid., at p. 153.

54 Pettit, “Legitimate International Institutions”, pp. 142–43.

55 Ibid., at p. 143. The “international order” is here only briefly defined as involving “the actions of many states and perhaps many individuals”.

56 Pettit, “Republican Law of Peoples”, p. 70.

57 It is unclear whether Pettit acknowledges the possibility of representative but ineffective states; at one point, he refers to “representative and therefore effective states”: Pettit, Just Freedom, p. 208.

58 Pettit, “Republican Law of Peoples”, p. 71. Cf. Raymond Aron's notion of “satisfied peoples” in R. Aron, Peace and War: A Theory of International Relations, translated by R. Howard and A.B. Fox (Garden City NY 1966), 160ff., as also used in Rawls, The Law of Peoples, pp. 46–48.

59 Pettit, “Republican Law of Peoples”, p. 71.

60 Pettit, Just Freedom, p. 156.

61 Ibid., at pp. 156–57.

62 Ibid., at p. 179. How this fits with the otherwise binary distinction between representative and non-representative states is unclear.

63 Ibid.

64 Pettit, “Legitimate International Institutions”, p. 153.

65 Pettit, “Republican Law of Peoples”, p. 71.

66 Pettit, “Legitimate International Institutions”, p. 155. See also Pettit, “Republican Law of Peoples”, p. 72. Pettit argues that the domination of states is problematic in its own right as states are corporate agencies through which individuals both act together and may be subjected to alien control, at p. 76; Pettit, Just Freedom, p. 154. See also generally C. List and P. Pettit, Group Agency: The Possibility, Design and Status of Corporate Agents (Oxford 2011).

67 See e.g. Rawls, The Law of Peoples, pp. 44–54; M.W. Doyle, Liberal Peace: Selected Essays (New York 2011). Francis Cheneval argues that “[t]he theory of international relations owes to the republican tradition the so-called theory of democratic peace”: F. Cheneval, “Multilateral Dimensions of Republican Thought” in Besson and Martí, Legal Republicanism, pp. 238, 250; see also Lynch, C., “Kant, the Republican Peace, and Moral Guidance in International Law” (1994) 8 Ethics & Int. Aff. 39CrossRefGoogle Scholar. Cf. A. Shiller, “Why Kant Is not a Democratic Peace Theorist” in A. Follesdal and R. Maliks (eds.), Kantian Theory and Human Rights (New York 2014), 175.

68 Lovett and Pettit, “Neorepublicanism”, pp. 21–22.

69 See discussion in S. Marks, The Riddle of All Constitutions (Oxford 2000), 47–48. See also Rosato, S., “The Flawed Logic of Democratic Peace Theory” (2003) 97 Am.Polit.Sci.Rev. 585CrossRefGoogle Scholar; cf. Kinsella, D., “No Rest for the Democratic Peace” (2005) 99 Am.Polit.Sci.Rev. 453CrossRefGoogle Scholar.

70 By contrast, Rawls engages more directly with the idea that a “more precise” form of democratic peace survives the practice of “actual democracies”, which are marked by “considerable injustice, oligarchic tendencies, and monopolistic interests”, intervening in other countries: Rawls, The Law of Peoples, pp. 48–51.

71 Pettit, “Republican Law of Peoples”, p. 89.

72 Ibid., at p. 86.

73 Ibid., at p. 72.

74 Ibid.; see also Pettit, “Legitimate International Institutions”, p. 154. Cf. Rawls, The Law of Peoples, pp. 106–07.

75 Ibid., at p. 89

76 Pettit, “Legitimate International Institutions”, p. 153.

77 Pettit, “Republican Law of Peoples”, p. 72; see also Pettit, “Legitimate International Institutions”, p. 143.

78 Bohman, “Critical Theory”, p. 101. This is of a piece with Pettit's assumption that “the representative state will act with the required authorization of its members”: Pettit, “Republican Law of Peoples”, p. 77.

79 Cf. G. Simpson, Great Powers and Outlaw States (Cambridge 2004).

80 Pettit has not yet addressed the issue of what happens when a representative and effective state has been held to violate international human rights norms in a way that may not be considered a violation of domestic human rights norms: cf. Pettit, Just Freedom, pp. 179–80.

81 Cf Benton, M., “The Problem of Denizenship: A Non-Domination Framework” (2014) 17 Crit.Rev.Soc.& Polit.Philos. 49CrossRefGoogle Scholar; Sager, A., “Political Rights, Republican Freedom, and Temporary Workers” (2014) 17 Crit.Rev.Soc.&Polit.Philos. 189CrossRefGoogle Scholar; J. Bohman, “Nondomination and Transnational Democracy” in C. Laborde and J. Maynor (eds.), Republicanism and Political Theory (Oxford 2007), 190.

82 The combined damages awarded in the three related Yukos arbitrations under the Energy Charter Treaty amounted to over US$50 billion: see Hulley Enterprises Limited (Cyprus) v The Russian Federation, Final Award, PCA Case No. AA 226 (18 July 2014); Yukos Universal Limited (Isle of Man) v The Russian Federation, Final Award, PCA Case No. AA 227 (18 July 2014); Veteran Petroleum Limited (Cyprus) v The Russian Federation, Final Award, PCA Case No. AA 228 (18 July 2014).

83 Unless equality here were to refer to the understanding that a local investor would have a reciprocal right to access ISDS in the event that they invested in the other state.

84 See e.g. Convention on the Settlement of Investment Disputes between States and Nationals of Other States, opened for signature 18 March 1965, 575 UNTS 159 (entered into force 14 October 1966) (“ICSID Convention”) Article 25.

85 See R. Dolzer and C. Schreuer, Principles of International Investment Law, 2nd ed. (Oxford 2012), 52–54; see also Aguas del Tunari SA v Bolivia, Jurisdiction, ICSID Case No. ARB/02/3 (21 October 2005), at [328]–[332].

86 See ICSID Convention Article 52(1).

87 The foreign investor may seek to argue that it is they that require protection from domination by the host state – in which case, however, it is not clear that ISDS is the preferable solution, as the investor could also seek to have their claim espoused by their home state.

88 See generally Corporate Europe Observatory and Transnational Institute, “Profiting from Injustice: How Law Firms, Arbitrators and Financiers are Fuelling an Investment Arbitration Boom” (November 2012), especially chs. 4–6 on conflicts of interest, third-party funding, and independent research, available at <http://www.tni.org/sites/www.tni.org/files/download/profitingfrominjustice.pdf>.

89 James Bohman's republican cosmopolitanism, by contrast, emphasises the anti-colonial legacy of republican thought: Bohman, “Nondomination and Transnational Democracy”, pp. 191–96.

90 See A. Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge 2005); K. Miles, The Origins of International Investment Law: Empire, Environment and the Safeguarding of Capital (Cambridge 2013).

91 Pettit, Just Freedom, p. 153.

92 Pettit, “Republican Law of Peoples”, p. 71. See also Pettit, Just Freedom, p. 157.

93 It would seem that these states must at least fall short of fulfilling republican ideals, as “the republican ideals of justice and democracy far outrun anything that has been achieved in national politics anywhere”: ibid., at p. 155.

94 Pettit, “Republican Law of Peoples”, pp. 75–77.

95 Ibid., at p. 77.

96 Forst, R., “Towards a Critical Theory of Transnational Justice” (2001) 32 Metaphilosophy 160CrossRefGoogle Scholar, pp. 163, 165–67.

97 See e.g. M. Foucault, The History of Sexuality: The Will to Knowledge (London 1998), 92–96.

98 Rigstad, M., “Republicanism and Geopolitical Domination” (2011) 4 J.Polit.Power 279CrossRefGoogle Scholar.

99 Pettit, “Republican Law of Peoples”, pp. 77–78.

100 This more subtle approach to domination is reminiscent of Steven Luke's third face of power, as a means of keeping “potential issues out of politics, whether through the operation of social forces and institutional interactions or through individual decisions”: S. Lukes, Power: A Radical View (London 1974), 24.

101 Pettit, “Republican Law of Peoples”, p. 79.

102 Ibid.

103 Although cf. C. Côté, “A Chilling Effect? The Impact of International Investment Agreements on National Regulatory Autonomy in the Areas of Health, Safety and the Environment”, PhD thesis, The London School of Economics and Political Science (2014).

104 Ethyl Corp v Canada, Jurisdiction, NAFTA/UNCITRAL (24 June 1998).

105 See e.g. the ongoing litigation in Australia – Certain Measures Concerning Trademarks and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging (Complainant: Ukraine), WT/DS434 (Panel composed 5 May 2014) and Philip Morris Asia Ltd. v Commonwealth of Australia, PCA Case No. 2012–12. See also D. Schneiderman, Constitutionalizing Economic Globalization (Cambridge 2008), 120–29 (on regulatory chill and plain packaging in Canada).

106 Pettit, Republicanism, p. 179.

107 Pettit, “Republican Law of Peoples”, p. 86.

108 Ibid., at p. 81.

109 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US), Merits, Judgment [1986] ICJ Rep 14.

110 Pettit, “Republican Law of Peoples”, p. 82.

111 See Wilson, B., “Compliance by WTO Members with Adverse WTO Dispute Settlement Rulings: The Record to Date” (2007) 10 J.I.E.L. 397Google Scholar.

112 See ICSID Convention Articles 53–55; Convention on the Recognition and Enforcement of Foreign Arbitral Awards, opened for signature 10 June 1958, 330 UNTS 38 (entered into force 7 June 1959) Articles III–VI; UNCITRAL Model Law on International Commercial Arbitration Articles 34–36.

113 See generally K.W. Abbott et al. (eds.), International Organizations as Orchestrators (Cambridge 2015).

114 Pettit, “Republican Law of Peoples”, pp. 81 (citation omitted) and 85–86. See also Pettit, Just Freedom, pp. 168–70.

115 Consider the UN Conference on Trade and Development (UNCTAD)-organised, week-long mass bilateral investment treaty negotiation rounds of the early 2000s: see e.g. UNCTAD, Round of Negotiations of Bilateral Investment Treaties for English-Speaking African Least Developed Countries: Final Report (Geneva 2003), available at <http://unctad.org/sections/dite_pcbb/docs/dite_pcbb_ias0012_en.pdf>. See also generally Van Harten, G., “Five Justifications for Investment Treaties: A Critical Discussion” (2010) 2 Trade, L. & Dev. 19Google Scholar; and Poulsen, L.N.S., “Bounded Rationality and the Diffusion of Modern Investment Treaties” (2014) 58 Int.Stud.Quart. 1CrossRefGoogle Scholar.

116 See generally UNCTAD, “Sovereign Debt Restructuring and International Investment Agreements”, IIA Issues Note No 2 (July 2011).

117 See Vattenfall AB and others v Federal Republic of Germany, ICSID Case No. ARB/12/12.

118 ICSID Convention Article 48(5); although note that Rule 48(4) of the Rules of Procedure for Arbitration Proceedings now requires the Centre to promptly publish excerpts of the Tribunal's legal reasoning regardless of such consent. See also UNCITRAL Arbitration Rules (2010), r. 34(5).

119 Pettit, “Republican Law of Peoples”, p. 81.

120 Ibid., at pp. 82–83.

121 Pettit, Republicanism, p. 132.

122 Ibid.

123 Ibid.

124 See Koskenniemi, M., “The Fate of Public International Law: Between Technique and Politics” (2007) 70 M.L.R. 1CrossRefGoogle Scholar.

125 See Anghie, Imperialism; M. Byers, Custom, Power and the Power of Rules (Cambridge 1999).

126 See C. Ulbert, T. Risse, and H. Müller, “Arguing and Bargaining in Multilateral Negotiations”, paper presented at “Empirical Approaches to Deliberative Politics”, European University Institute, Florence, 21–22 May 2004.

127 C.F. Zurn, Deliberative Democracy and the Institutions of Judicial Review (Cambridge 2007).

128 J. Habermas, Between Facts and Norms (Cambridge 1996), 167–68.

129 Pettit, “Democracy, National and International”. More generally, Pettit argues that the dispersal of power to multiple institutions of government generally serves the cause of non-domination, and that such dispersal is to be welcomed, including to international institutions: Pettit, Republicanism, ch. 6.

130 See R. Bellamy, Political Constitutionalism (Cambridge 2007); cf. Vinx, L., “Republicanism and Judicial Review” (2009) 59 U.T.L.J. 591CrossRefGoogle Scholar.

131 Van Harten, G. and Loughlin, M., “Investment Treaty Arbitration as a Species of Global Administrative Law” (2006) 17 E.J.I.L. 121Google Scholar; Ortino, F., “The Investment Treaty System as Judicial Review” (2013) 24 Am.Rev.Int'l Arb. 437Google Scholar.

132 See also J. Scott, “European Regulation of GMOs: Thinking about ‘Judicial Review’ in the WTO”, Jean Monnet Working Paper 04/04 (New York 2004); Ceva, E. and Fracasso, A., “Seeking Mutual Understanding: A Discourse-Theoretical Analysis of the WTO Dispute Settlement System” (2010) 9 W.T.R. 457Google Scholar.

133 Pettit, “Republican Law of Peoples”, p. 84; Pettit, “Legitimate International Institutions”, pp. 158–60.

134 See Rolland, S.E., “Developing Country Coalitions at the WTO: In Search of Legal Support” (2007) 48 Harv.Int'l L.J. 483Google Scholar.

135 Pettit, “Legitimate International Institutions”, p. 159.

136 Benvenisti, E. and Downs, G.W., “The Empire's New Clothes: Political Economy and the Fragmentation of International Law” (2007) 60 Stan.L.Rev. 595Google Scholar.

137 Pettit, “Republican Law of Peoples”, p. 83. Cf. Hathaway, O.A. and Shapiro, S.J., “Outcasting: Enforcement in Domestic and International Law” (2011) 121 Yale L.J. 252Google Scholar; A.T. Guzman, “Reputation and International Law”, UC Berkeley Public Law Research Paper No. 1112064 (2008).

138 Indeed, as the “only hope of institutionalizing the ideal of globalized sovereignty among representative states”: Pettit, Just Freedom, p. 170.

139 Ibid., at p. 208.

140 Ibid., at pp. 164–66.

141 Ibid., at pp. 163–64.

142 See e.g. Convention on the Rights and Duties of States (Montevideo Convention), adopted 26 December 1933, 165 LNTS 19 (entered into force 26 December 1934); Charter of the Organization of American States, opened for signature 30 April 1948, 119 UNTS 51 (entered into force 13 December 1951) ch. IV; Constitutive Act of the African Union, opened for signature 11 July 2000, 2158 UNTS 3 (entered into force 26 May 2001) Article 4.

143 International Law Commission, “Draft Declaration on the Rights and Duties of States”, in General Assembly Resolution 375(IV), UN GAOR, UN Doc. A/RES/375(IV) (6 December 1949), Annex.

144 S.M. Carbone and L.S. di Pepe, “States, Fundamental Rights and Duties” in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (online, January 2009), at [14].

145 Cf. Pettit, Just Freedom, pp. 184–85.