Multilateral Enforcement of International Law in the 21st Century
By: Gerald F. Witherspoon, Sr. 20150102
The prospect of multilateralism, and the institutionalization thereof has been cultivated by globalization, international law, and regimes. From bloody massacres to economic warfare, globalization has accelerated confrontation. The outcome of such confrontation has widely been attributed to the political-economic preferences of state actors. Nevertheless, global issues such as the impacts of trade policies and competing food safety standards – elaborated below, provide an interesting example of how international regulatory regimes utilize international law to facilitate cooperation; be it voluntary or coerced.
Globalization has offered a strong prospect for multilateral cooperation as the interconnectivity and interdependency of economic and political systems has proven inherently intractable. Cooperation has become the way forward down a path where political-economic decisions are at the crossroads. Globalization has increased opportunities for conflict and exacerbated the primary concerns of nation states – self-preservation. The need to align strategically to counter increased threats has produced political-economic realignments made possible only through cooperation. The comparative advantages associated with the auto industry, for example, carries global implications regarding the redistribution of economic profits and power. Accordingly, the 2004 China Auto Parts case reflected China’s attempt to dominate the global car market through unfair trade practices (Silverburg 2011). The U.S. responded through the World Trade Organization (WTO). The very existence of international regulatory regimes such as the WTO is intended to facilitate cooperation amongst multiple countries to ensure these type of unethical trade practices do not go unanswered. Additionally, as Daniel Drezner pointed out in All Politics is Global, “The genetic engineering of food is a topic that inspires environmental NGOs and consumer groups across the globe into political activism” (2007, 149). The U.S and EU were situated at the center; however, all political issues are global.
For primers, under Article 27 of the Rome Statute, so-called sovereign leaders can be removed from office and made available to the International Criminal Court for criminal prosecution (Silverburg 2011). Although prosecutorial enforcement has hitherto been weak, the idea of its possibility has provided an international consciousness essentially non-existent pre-1945. Still further, the norms, standards, and procedures arising from advancements made in criminal and humanitarian law have provided a workable framework for those wishing to present themselves as upholders of international peace and security. Therefore, it is no longer expedient to assume international crimes will go unpunished and arguably more advantageous to consider how individual goals may be realized through multilateral cooperation. Less bloodily, the diverging standards and preferences between the U.S. and EU are highlighted by the controversy surrounding the precautionary principle associated with GMO proliferation (Drezner 2007). The Rio Convention on Biological Diversity (1992), the Treaty of Amsterdam (1997), the Cartagena Protocol on Biosafety (2000), gave the European Union the legal capacity to defend itself from the U.S.’ conflicting set of food standards and economic threats. On the other hand, the U.S. relied on the WTO to legally justify its regulatory preferences that were rooted in the 1994 Sanitary and Phytosanitary (SPS) agreement and the standards issued by the 1961 Codex Alimentarius Commission (Drezner 2007). Although some might use this case to argue a lack of cooperation, the Rio Convention represented 168 signatories and both superpowers agreed to mediation through the WTO (162 members). This signified cooperation in and of itself. Viewing the cooperation as bifurcated would be a more legitimate position. Furthermore, as Orsini et al. claimed, “Interactions take place over at least three dimensions: over (both material and political) substance, over norms, and over compliance” (2013, 37). These interactions become manageable through cooperative agreements.
As stated by Dave Benjamin in The Revolution in International Law, “NGOs have become a transnational check on sovereign states, pressuring them to subscribe to human rights norms and standards as well as actively and aggressively seeking the prosecution of state leaders who violate their peoples” (Silverburg 2011, 27). Nongovernmental organizations (NGOs) and other international regulatory regimes have become an intrinsic force providing oversight of the international judicial process. Drezner revealed how the diverging preferences between the U.S. and the EU demanded the involvement of regimes which also conflicted, and international law was called upon to sort methodically through the mess (2007). Nevertheless, the rival standards motivated other countries toward cooperation as they coalesced around a specific issue area. Drezner listed the Transatlantic Consumer Dialogue, Greenpeace USA, and others as regimes that had campaigned against GMOs. The reference mirrored Benjamin’s description of non-state actors as a transnational check. These and other regimes, coupled with the established international legal mechanisms proved effective in garnering cooperation, despite their outcomes.
International regulatory regimes, involving various non-state actors, are playing an expanding role in increasing the prospects for multilateralism. Some have already been instrumental in the indictments of leaders such as Omar al-Bashir. That said, some state actors may mask their intentions behind the courts, conventions, customs, principles, and provisions of international law while others may be compelled to cooperate out of fear or political pressure. Nevertheless, cooperation has proved salient as international regulatory regimes have utilized international law to mediate competing interests. As globalization continues to accelerate confrontations and transgressions, international regulatory regimes will be increasingly called upon to utilize international law to administer global justice.
In the purview of the strategic enforcement of international law, the question arises – enforcement by and against whom? The prospect of actually enforcing international law tends to favor those with the greatest levels of influence. Further, the ease in which international law is enforced seems to be intrinsically intertwined with accession to an established treaty or agreement. More clearly, the intentions to fully cooperate can be viewed in light of whether or not an actor has moved beyond the point of merely signing a piece of paper. The potential for public shame, trade restrictions, and military intervention to work effectively as strategies for enforcing international law, ultimately lies in the power, pressure, and prestige in and between the actors involved throughout the enforcement process.
Stephen Krasner described Waltz’s view of regimes as “…one small step removed from the underlying power capabilities that sustain them” (1982, 191). He was referring to the power of state actors. Here, I speak first of the soft type or the ability to attract toward cooperation with preferences through non-coercive means. Not that the influential actors do not have a history of projecting hard power, but that the influenced actors are attracted indirectly. For example, as summarized in the Economist, “China was eager to join the WTO on the basis that membership of a large, multilateral organization would enhance its ability to compete with other big countries” (Silverburg 2011, 144). This speaks of the capacity to influence state behavior through incentives or disincentives whether directly or indirectly. Economic incentives brought China to the table. Raj Bhala referred to it as the “honeymoon period” (Silverburg 2011, 143). Honeymoons typically end. Possessing the power to bring potential legal subjects to the table, then influence them to accept culpability for their crimes, is a laudable endeavor; a strategy made more effectual through multilateral expectations surrounding norms embedded in the courts, conventions, customs, principles, and provisions that compose international law.
The utilization of public shame as a strategy to enforce international law potentially weakens the legitimacy and political stability of the accused actor. The public declaration of a criminal violation is in itself a campaign to garner multilateral support for the prosecution of the defendant. Shaming the Nazi perpetrators of war crimes, crimes against peace, and crimes against humanity before the international community culminated in the Nuremberg trials. The Allied Powers used their hard-won power to influence the assemblance of the trial. The pressure (force toward compliance) applied by the judges and prosecutors derived from the London Charter, and the prestige (respect based on perceived quality) afforded to the International Military Tribunal. Fast-foreword, the ability to utilize the enduring Nuremberg Principles, Genocide Convention, Universal Declaration of Human Rights, and the International Criminal Court is a strategy in itself that can be used to justify military interventions and seek individual prosecution against those accused of similar crimes (Silverburg 2011).
The public shame strategy applied in other cases may lead more to a stalemate than an actual penalty. However, it paves the way for future penalization. For example, although the public was denied access to the WTO proceedings, the EC, Canada, and the United States declared a trade violation before the Appellate Body, which represented a public in the context of the general membership. More glaringly, it was a case of a masked trade restriction through a feigned trade policy. Counter-strategically, the accusers, aimed to enforce international law to restrict China’s trade practices. In the end, the EC, Canada, and the U.S. possessed the power to apply the Appellate Body’s overarching interpretation to China’s 2004 Automobile Policy concerning compliance. The pressure applied by the Appellate Body derived from the prestige afforded to Article III of the General Agreement on Tariffs and Trade (GATT), and finally, China’s accession to the WTO. As argued by Bhala, “Promises made by a country to gain membership into the WTO are not political campaign promises; rather, they have legal consequences” (Silverburg 2011, 162). The EC, Canada, and the U.S in conjunction with the GATT-WTO regime contained the power, pressure, and prestige to allow effective litigation to occur. Military intervention, viewed simply as a last resort – that is, after public shame and trade restrictions have failed to influence international legal compliance, does not demand further clarification. Nevertheless, it is important to note that the potential for military interventions (hard power) to remain an effective strategy for enforcement may be linked to the manageability of the Responsibility to Protect (R2P). Krasner pointed out, “…weakening of a regime involves incoherence among the components of the regime or inconsistency between the regime and related behavior” (1982, 189). R2P applied disproportionally against the weaker states it was supposedly designed to protect, may eventually delegitimize military intervention as an effective enforcement strategy. This highlights how multilateralism and the power, pressure, and prestige it entails, is an important sub-strategy to enhance the sustainability of the dominant enforcement strategies. Those currently exerting the most influence on the enforcement of international law are increasingly finding themselves on the receiving end of public shame campaigns.
Unfortunately, international law is currently best enforced when there is a comparative disadvantage between the powerful and the weak. Public shame, trade restrictions, and military intervention remain the dominant strategies for the enforcement of international law. They have demanded both attention and compliance. Likewise, the maturation of international regimes capable of moving beyond the acquisition of mere participation to achieve multilateral accession proves an extremely beneficial enforcement strategy. Therefore, powerful state actors should increasingly announce the end of the honeymoon and manipulate regimes toward the eradication of promises and commitments that do not manifest compliance. Multilateralism is key.
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