Helfer: Monitoring Compliance with Un-Ratified Treaties

Laurence R. Helfer (Vanderbilt - Law) has posted Monitoring Compliance with Un-Ratified Treaties: The ILO Experience (Law & Contemporary Problems, forthcoming). Here's the abstract:

This article, part of an interdisciplinary symposium on international delegation, analyzes grants of authority to international organizations (IOs) to monitor compliance with un-ratified treaties and non-binding norms and standards.

It begins with a historical review of the different ways in which officials and review bodies of the International Labor Organization (ILO) to monitor compliance with treaties and recommendations that the organization has adopted but that a member state has not ratified or otherwise accepted as legally binding. The ILO membership has repeatedly expanded these monitoring powers since the organization's founding in 1919. It has done so both informally (by allowing ILO officials to expand the scope of the initial delegation that established the organization) and formally (by amending the ILO constitution to codify and further enlarge these informal expansions of the organization's monitoring authority). Taken together, these developments challenge the conventional wisdom that the delegation of authority to the ILO involves only modest sovereignty costs.

The article then uses the ILO's history to emphasize the importance of delegations that authorize international bodies to monitor compliance with nonbinding international rules. Such delegations often arise and thrive outside of the formal channels of authority. This makes it essential for scholars to look beyond treaty texts and institutional design features to consider how power is actually exercised within IOs and how the costs and benefits of international delegations change over time. Finally, the article considers what insights the ILO offers for delegations to other IOs. It argues that monitoring compliance with unconsented-to legal rules is an alternative institutional response to a problem that many IOs confront: how to ensure that all states affected by a cooperation problem participate in the resolution of that problem rather than free riding on the efforts of other countries.