These thoughts coalesced recently as I was listening to Frank Ettawageshik, Chairman of the Little Traverse Bay Bands of Odawa Indians. Chairman Ettawageshik described an interconnected world of tribal governance. That world bowed, as necessary, to the formally constituted world of state sovereigns. But it also assumed that such sovereigns are passing affairs, leaving only the land and those peoples with a connection to it. Consequently, tribal governance institutions ought to be free, amongst themselves, to negotiate and bind themselves, to the extent possible given the realities of the world, by treaties formalizing the nature of their relations and obligations.
And so they have. Sometimes, such agreements have a substantial effect on the actions and sensibilities of duly constituted states in their inter governmental relations. The genesis and odyssey of the Tribal and First Nations Great Lakes Water Accord provides a useful example. It served both as a means through which Great Lakes Tribes on both sides of the U.S. Canada border bound themselves to certain actions in relation to the maintenance of water quality in the Great Lakes. On the other hand, the enactment of this "treaty" drove the state entities negotiating formal state to state arrangements with respect to the same issue to invite the participation of the Great Lakes Tribes into their discussion. See Council of Great Lakes Governors, Water Management Working Group, Meeting with Tribal and First Nations Representatives, Meeting Summary, Feb. 1, 2005. Though these agreements are not "treaties" in the narrow sense understood in international law, they nonetheless function to a large extent like treaties. In a world of shared and contingent sovereignty, of shifting public and private functions between states and non state entities (see Vienna Convention on the Law of Treaties), these agreements are likely to play a larger role in governance. In one sense these agreements may, as a formal matter, be treated as contracts of sorts. In another sense, they are contracts with significant social and political characteristics, and on that basis , not properly understood as contracts. Neither contract nor treaty, in the formal sense, these arrangements point to a new reality in legal regulation. Lawyers and academics, usually the last to know and even later to acknowledge, the rise of new realities, are likely to resist for a while. But in a very real sense, these are the arrangements by which large constituencies of partially self governing communities will arrange relations among themselves and others in the coming century.
Indian tribes, of course, are not the only non state organizations looking to the utilization of public purpose or social aspect arrangements that are formally contractual in character yet might be better understood as treaty or legislative arrangements. Multinational corporations, for example, through large scale supplier chain agreements, have managed to create systems of legislation that cross borders. See Larry Catá Backer, Economic Globalization and the Rise of Efficient Systems of Global Private Lawmaking, Wal-Mart as Global Legislator, 39(4) University of Connecticut Law Review 1739 (2007). Non governmental organizations have also sought to create relationships tinged with substantial public or governance elements in their arrangements for product or process certification (Fair Trade certification, forest product certification, etc.) suggest a pattern of consensual legislation that is closely bound up with small communities of stakeholders, arrangements relationships among themselves with only an indirect relationship to the state.
An increasingly hollow reliance on the limits and "rules" of traditional international law will tend to confine academic discussion to formal treaty structures within communities of political states. And that sort of bounding is meant to create subtle incentives to protect the borders of public law and public power from competitive elements. The difficulty, of course, is that those borders have been both breached and deemed irrelevant by important non state actors. See Larry Catá Backer, Economic Globalization Ascendant: Four Perspectives on the Emerging Ideology of the State in the New Global Order, 17(1) BERKELEY LA RAZA LAW JOURNAL 141 (2006). Published as Globalização Econômica e Crise do Estado: um estudo em quatro perspectives, Sequencia No. 51: 255-276 (December 2005). While it may be true enough that each of these communities will be engaging in the task of creating contract rather than "law" the effect, at least within these communities, will be functionally equivalent to hard international law. Perhaps even harder, since contract can be enforced more efficiently than treaties. Indeed, these borders are already being tested by public bodies. The United Nation's well known efforts to construct a regulatory scheme for multinational corporations that was based on, and leveraged, the public law effect or private contract relations among multinationals and their stakeholders suggests the future. See Larry Catá Backer, Multinational Corporations, Transnational Law: The United Nation’s Norms on the Responsibilities of Transnational Corporations as a Harbinger of Corporate Social Responsibility as International Law, 37 COLUMBIA HUMAN RIGHTS LAW REVIEW 287 (2006). The soft law of private contract, suffused with regulatory elements and public purpose, will yet serve as another basis for the construction of networks of transnational governance in this century.