The Futility of Unification and Harmonization in International ...

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8A. Process IdealsIn a perfect world we would make laws in a way that blends complete democratic accountabilitywith full realization of skilled technical expertise. We care about accountability because the personsaffected by laws should have some kind of voice in how the rules laid down affect their lives. It iscertainly just, and perhaps even conducive to the enactment of instrumentally good laws, for theactors who must comply with the legislative mandate to have some way of rewarding those who enactsuccessful laws and punishing those whose laws prove hurtful. At the same time we care abouttechnical expertise, both prospectively and retrospectively. Prospectively, specialists help lawmakersto anticipate the consequences of laws and to identify the choices that the lawmaking project mustconfront. Retrospectively, specialists help us to interpret the impact of legislation in a complex worldand to specify the criteria for success and harm.When it comes to lawmaking that aims at widespread unification of diverse bodies of national law,we must accept some adjustments of these ideals. In the absence of any international publiclegislature, we cannot expect the lawmakers to face the same kind of electoral accountability thatnational parliamentarians ordinarily confront. No mechanism exists for voters to pass judgment onthe international lawmakers. At best they can vote for the domestic governments that in turn choose15the drafters of international agreements. Nor is exit, the conventional alternative to voice fordisciplining decisionmakers, an attractive option. Widespread rejection by national governmentsdefeats the purpose of legal unification.If the unification process necessarily must sacrifice something in the way of accountability, it maycompensate by exploiting technical expertise more fully than national lawmakers normally do.Unencumbered by petty political obstacles, experts engaged in the drafting of unified laws may havethe freedom to develop sophisticated and well-balanced drafts that anticipate and resolve a wide rangeof potential problems. We should expect them to produce legislation that achieves both elegance anda certain scientific soundness.B. The Lawmaking BodiesWhat kinds of organizations promote unification in the real, as opposed to an idealized, world?A survey of the field suggests that international institutions served mainly by technical expertsdominate the process. None of these organizations directly enacts legislation, and hence politicalaccountability remains largely absent. Rather, these bodies draft laws for national governments toadopt, either as treaties or domestic legislation.At present a variety of groups engage in various kinds of international unification projects.Typical is the UN Commission on International Trade Law (UNCITRAL). This organizationembodies thirty-six official delegations representing national governments chosen on a rotating basis15For a more extensive discussion of these problems, see Paul B. Stephan, Accountability and InternationalLawmaking: Rules, Rents and Legitimacy, 17 NORTHWESTERN J. INT’L L. & BUS. 681 (1996-97).
y the UN General Assembly. It possesses a permanent secretariat that administers its work andprovides publicity. It operates largely through working groups consisting of experts. UNCITRALselects the members of the working group on the basis of its particular assignment. The secretariatenjoys substantial background influence over the composition of the group as well as selection ofprojects. The working groups develop a draft, which a conference of delegates from the variousmember states must approve. It is not unusual for the draft to go through several revisions in lightof conference review, and for the entire process to consume many years.UNCITRAL holds annual conferences to review and approve what the working groups havedone. The delegates to the conferences, like the members of the working groups, typically arespecialists in international law, often drawn from the academy, rather than politicians or civil servants.The end of the Cold war has seen some increase in UNCITRAL’s activity. Since 1991 it hasapproved two conventions and four model laws, as compared to one convention and one model lawbetween 1981 and 1991 and a total of seven conventions and five model laws during the entire thirtyyears of its existence. 16The International Institute for the Unification of Private Law (UNIDROIT) and the HagueConference on Private International Law (Hague Conference) operate in much the same way as doesUNCITRAL. UNIDROIT first appeared as an organ of the League of Nations, obtained formalstatus as an independent international organization in 1940, and then revived following World WarII. Its membership consists of 58 nations whose governments send representatives to periodicconferences to review and approve the work of task forces. To date it has produced eightinternational conventions, two of which became largely obsolete upon the adoption of the Conventionon Contracts for the International Sale of Goods (CISG). It also has done background work for anumber of other unification projects, including the CISG.The Hague Conference, which began work in 1893 but did not take on a permanent institutionalcharacter until 1955, has 45 members, most of whom also belong to UNIDROIT. Like UNCITRALand UNIDROIT, it carries out its work primarily through task forces (called special commissions)that present their results to delegates from the member states that meet in quadrennial diplomaticconferences. Since World War II it has promulgated 33 Conventions, some of which have achievedwidespread adoption.At the regional level, the European Union and the Organization of American States also employspecialists in working groups to draft multilateral conventions involving international commercial lawand otherwise to encourage unification and harmonization of commercial law. Both have developed,inter alia, laws affecting carriage of goods by rail and intermodal transport and transnational privatelitigation. The European Union has launched a more ambitious project to harmonize the civil law ofall fifteen of its members.916This data reflects information posted on the UNCITRAL homepage and is current as of May 25, 1998. Seehttp://www.un.or.at/uncitral/status.
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