One way to understand the nature of international law is to contrast its philosophy with U.S. law. The American legal system essentially begins with the individual rights of each citizen expressed in the Declaration of Independence and the Bill of Rights. A major purpose of U.S. law is to protect those rights against intrusion by the government or other citizens. When necessary, some of those individual rights may be ceded to government. Even then Americans cede rights sparingly and to a level of government closest to the people: first, local, second, state, and finally, federal. Although the federal government has steadily expanded its reach in recent decades, the historical roots of the U.S. legal and political system run from the ground up, emanating from individual rights up the branches of government as necessary.
By contrast, international law, especially as it is being developed today, is essentially top-down in nature. A relatively small group of world leaders, augmented by hundreds of NGOs, decides that the world needs to ban land mines, create an aggressive international criminal court, or impose new standards about global warming. They attempt to leverage support from the United States and other nations through what new diplomacy advocates call “the mobilization of shame.” The treaties go into force without the support of most nations of the world, and certainly without the agreement of nations representing most of the population of the world. In some cases, the treaties purport to apply new international law even to citizens of nations that do not sign them. This formulation and, where possible, implementation of new international law by elites, is very different from the consent-driven rule of law developed in the United States.
Of course America’s traditional European allies are much more comfortable with this top-down development of law. Even America’s closest friend, Great Britain, had a royal tradition to its lawmaking that is quite foreign to the American system. When critics of the U.S. approach wonder how we can be so out of step with Britain and other democratic allies about these new diplomacy treaties, it is clear that they have forgotten their American history. “Taxation without representation” was the bitter fruit of an unrepresentative English system, and the Revolutionary War was largely fought over such differences. Further, the current development of the European Union, in which individual nations cede important powers to the group, underscores that Europe is still committed to a very different approach from the American tradition of individual rights and bottom-up democracy.
Another way in which international law differs from the U.S. rule of law is that international law has no constitution or overarching set of principles; instead it attempts to codify and enforce international politics as they are, or as the proponents of a change wish them to be. As the French writer Maurice Bourquin noted, “International law is the crystallization of international politics.” Indeed, some have argued that it is a misnomer to refer to international “law” since the term implies something far more concrete and enforceable than what travels under that banner.1 With no constitution to set forth international legal principles, no community to particularize them into laws, and no executive to enforce them, international law is not at all like the U.S. concept of the rule of law.
What international law is, and what we are seeing in this recent expansion, is essentially one tool in the kit of diplomatic power. In a sense, international law is only what the powerful nations of the time agree it is and are willing to enforce. For example, the U.S. and allied bombing of targets in Kosovo in 1999 did not have U.N. Security Council approval and therefore, under the U.N. Charter, presumably violated international law. Nevertheless, the major world powers agreed that was a good thing to do and any violation of international law never became a major issue. International law is also a tool to which weaker nations may resort, in the absence of other forms of power, while more powerful nations may prefer other tools.2
More specifically, the present expansion of international law is about small- and medium-sized states—mostly Canada and the European Union nations—joining with human rights NGOs to pursue a particular political agenda. It is to these players, the new diplomacy processes they are using, their agenda, and the effect on U.S. sovereignty and values that we now turn.
New Players Change the Table
The biggest change in post–Cold War diplomacy is the addition of nonstate actors, especially NGOs, to the bargaining table.3 Various figures about their growth have been cited and they are all impressive. Before World War I, for example, there were 176 international NGOs. By 1956, there were nearly 1,000, and by 1970 nearly 2,000. One source estimates that during the 1990s international NGOs grew from 5,000 to 27,000, while another suggests that these organizations quadrupled in the last decade so that there are now more than 50,000 of them.4
It is not just the quantity of these NGOs that is significant but also the role they now play in international diplomacy. In their early days NGOs were limited to providing advocacy and support in diplomatic hallways. In the past decade, however, they have moved from the hallway to the diplomatic table and have not only advocated but provided the main leadership and drafting of several treaties. About 1000 NGOs were front and center in the Ottawa Process leading to the treaty to ban land mines, and NGO leader Jody Williams won a share of the Nobel Prize for those efforts. Similarly NGO leader William Pace is acknowledged as the principal coordinator in the development of the ICC.
Nongovernmental organizations have not just joined the diplomatic table, but in treaties such as those banning land mines and establishing the ICC, they have supplanted the leadership of traditional world powers and, to some degree, even nation-states. As Professors Diana Tussie and Maria Pia Riggirozzi have noted: “NGOs have kicked at the doors and wriggled into the closed rooms of international negotiations. Chipping in at the sides of state power, in many instances they have altered daily operational procedures and priorities.”5 For example, the U.S. delegation was left out of the final negotiations on the ICC at the Rome conference in 1998 and, like other countries, was presented a “take it or leave it” package by NGOs and their colleagues from the like-minded states.6 The ICC has moved ahead without ratification by the United States, Russia, Japan, India, China, and other major powers.
The NGO leadership at the diplomatic table—a role previously reserved for nation-states—is problematic in several respects. For one thing, NGOs tend to be narrowly focused on a single issue, less concerned with the balancing of interests required of policy leaders. Unlike states, NGOs are not charged with juggling jobs, a national debt, and a variety of spending priorities. NGOs are largely formed to pursue a single mission, such as banning land mines, or a package of purposes, such as human rights. Their style is generally more one of debate and confrontation than compromise. This makes them excellent advocates but not balanced leaders of an international legal process. NGOs would sacrifice a wide range of procedural measures or legal niceties in order to enact treaties that further their agenda. Americans who would be suspicious of such single-issue groups in the United States should be doubly concerned about their influence in the undemocratic international arena.
A related problem is that nearly all NGOs participating in the development of these new international treaties are on one side of the issue. At meetings about the ICC, basically, all the NGOs in attendance favor an aggressive international criminal court, just as NGOs in Ottawa overwhelmingly supported the enactment of a rapid and total ban of land mines. There is also considerable anti-American sentiment among these NGOs, which is somewhat ironic since the largest number of NGOs is based in the United States and receives heavy funding from U.S. donors. Consequently, granting these new actors power at the diplomatic table has had a lopsided political effect in favor of aggressive new treaties and against U.S. foreign policy.
Finally, NGOs do not have the sort of accountability that would be expected of leaders developing international law.7 NGOs work from their own local base directly into the international arena, skipping over the national level with its give and take or checks and balan
ces system of democratic accountability. Indeed, it is ironic that U.S.-based NGOs are attempting, with some success, to put policies into effect internationally that they could not enact in their own country. They are accountable, finally, only to those donors who provide their funding. One participant in the Rome conference on the ICC asked a relevant question: “Who elected these NGOs anyway?” The answer, of course, is that, unlike the leaders of nation-states, they elected themselves.
Joining NGOs in leading the recent expansion of international law have been the “like-minded states.” These are essentially medium-sized and smaller states such as Canada, Australia, and the members of the European Union that have been eager to play a larger role on the diplomatic scene. When he served as Canada’s foreign minister, Lloyd Axworthy gave great impetus to the new diplomacy by hosting the Ottawa Conference, which stepped out of the normal international arms control processes and sought a fast-track treaty to ban land mines. When that collaboration of NGOs and like-minded states succeeded, these groups continued their efforts in Rome to create an aggressive new model for an international criminal court. The like-minded states have teamed with the NGOs to create a powerful new presence at the diplomatic table.
The New, New Diplomacy Game
There’s a new game in town.8 With the closing down of the Cold War table, and its predictable two-player military and economic power game, NGOs and small and medium-sized states have attempted to reshape the diplomatic table and introduce a new game. Though styled in idealistic terms—soft power, the rule of international law—the new diplomacy game is merely global politics by other means. The practitioners of the new diplomacy have been quite successful in the early rounds.
The new diplomacy is essentially pursuing an aggressive human rights agenda through attempted expansion of international law. The game, as it has been played out in the adoption of the land mines treaty and the development of the ICC, has several distinctive characteristics.
First the new diplomacy takes an objective being pursued by normal diplomatic processes and moves things in a different direction and on a faster track. Arms control negotiations, under the aegis of the U.N., were already under way on the problem of landmines. The U.N. Convention on Certain Conventional Weapons (CCW) and the U.N. Conference on Disarmament in Geneva had been formulated for just such a purpose. However, these conventional approaches were moving too slowly, and their objective—limitations on land mines rather than an outright ban—was too narrow for human rights advocates. Instead Canadian Foreign Minister Lloyd Axworthy and two major NGOs—the International Campaign to Ban Landmines and the International Committee of the Red Cross—called their own convention in Ottawa where they could control a different agenda: a treaty implementing a ban of land mines to be adopted in the record time of fifteen months.9
Similarly, an international criminal court had been in the works for decades, having been accelerated following the ad hoc tribunals for Rwanda and the former Yugoslavia.10 The United Nations had logically commissioned the International Law Commission (ILC) to draft a proposal for such a court, and the United States and other world powers were deeply involved and supportive. Once again, however, human rights activists were not satisfied with the direction of the ILC’s proposals and wanted a much broader authority for the court on a faster timetable.11 In Rome, a newly formed NGO, the Coalition for the International Criminal Court, and the like-minded states shoved the ILC proposal aside and advocated a court of much broader jurisdiction.12 No one expected a treaty to be approved in the short time of the Rome conference, but again the new diplomacy worked on a fast track and succeeded in producing a treaty.
A second tactic of the new diplomacy game is to supplant the normal consensus-based processes of international law with a noreservations, take-it-or-leave-it treaty that seeks support from a coalition of the willing. In the case of the ICC, for example, the U.N. had commissioned the International Law Commission to develop a proposal that would achieve the widest possible consensus.13 Instead NGOs and the like-minded nations preferred a stronger court with less support. Rather than seek consensus, both the land mines and ICC conventions simply took a vote. Both treaties precluded the possibility of a nation’s signing with reservations, a standard part of international law confirmed in the Vienna Convention on the Law of Treaties.14 Both treaties went into force without the support of the majority of the nations of the world, representing well under half the world’s population.
Other aspects of the new diplomacy game attempt to play away from the traditional power-based approach to international relations. Lobbying and marketing have been introduced to treaty negotiations through the new diplomacy process. The various efforts of the new diplomacy are characterized by the terms “participation,” “empowerment,” “people-centered,” and “consensus.” Indeed, new diplomacy drafts are circulated as “consensus documents.” In Ottawa, NGOs flooded delegates with faxes, e-mail messages, and calls to their cell phones. Daily displays showed the horror of land mines. Canadian Foreign Minister Axworthy openly referred to the campaign as “the mobilization of shame,” a refrain that has been repeated in other human rights efforts.
The United States has been slow to respond to the new diplomacy approach. By the time the United States articulated the changes it would need to support the land mines treaty, advocates were already locked into their positions. The U.S. delegation accomplished some changes to the Rome Treaty for the ICC but still ended up on the losing end of a lopsided vote for the treaty. President Clinton was ambivalent about the treaties, but President Bush has been strongly opposed. Ironically, the United States is characterized as isolationist and out of step for not supporting these new diplomacy victories when, in fact, proponents of the treaties knew they were advocating aggressive agreements that the United States would not approve. In the end, the new diplomacy advocates wanted the treaty their way, with or without international support, including that of the United States.
A Three-Way Expansion of International Law
Those keeping score on the new diplomacy game should watch for expansions of international law in three areas: (1) treaty-based law; (2) universal jurisdiction, as part of customary international law; and (3) international organizations and global governance. New diplomacy players are working for breakthroughs in all these aspects of international law. Taken together, these reforms could well revolutionize international law at the expense of state sovereignty.
If international law is largely soft and symbolic in comparison with U.S. law, treaty-based law is the firmest of the lot. Although states may give up some part of their sovereignty when they sign and ratify a treaty, they have nevertheless made their own sovereign decision to do so. Advocates of the new diplomacy expansion of international law have found a number of ways, some old and some new, to advance their agenda through treaties.
The treaty agenda over the last decade has become a very active one. New diplomacy advocates have figured out that, rather than raise an issue before the U.N. General Assembly, it makes more sense to call a conference on the matter, where they control the guest list and the program. The model for this approach was the 1992 Conference on Environment and Development in Rio de Janeiro, which brought a crowd of NGOs and produced an aggressive environmental regulatory agenda. Of course this has been followed by a host of conferences such as the one in Kyoto on global warming, the Ottawa Convention on land mines, and so on. These conferences produce a lot of heat and passion and often a draft of a treaty as well, focused generally on human rights, the environment, sustainable development, or other new diplomacy agenda items.
Even though treaties are generally only applicable to signatory states, they nevertheless have an impact on the diplomatic and policy environment. For one thing, they set the agenda that the world will discuss. In the case of land mines, for example, the normal arms control processes were focused on limitations, but the Ottawa Convention changed the conversation to a total ban. Kyoto set standards for global warming w
hich then became the topics to which others must react. By being the first and most passionate statements in their field, these treaties develop a set of global expectations. Treaties also provide a standard for the new diplomacy’s “blame, shame and name” approach in which countries that do not sign or follow the treaty become objects of attack. Russia experienced this recently when it signaled that it may not ratify the Kyoto accord on global warming. Its reasoning was much like that of the United States, which has not signed on. It is not that they oppose treaties—an accusation routinely made against the United States—but that the Kyoto accord poses dangers to Russian economic growth and may do little for the environment. Finally, Russia succumbed to the shame campaign and ratified the treaty. The globalists rarely accept that a nation may have strategic reasons or other priorities for refusing to ratify or follow a treaty.
These recent treaties pack another surprising punch. Both the land mines treaty and the Rome Treaty for the International Criminal Court do not allow nations to state reservations when they sign and ratify. The ability of a nation to express reservations and exceptions to parts of a treaty has been a standard part of international law, confirmed in the Vienna Convention on the Law of Treaties. This feature has allowed nations, such as the United States, to sign treaties they otherwise would not sign, by accepting the treaty in part but stating reservations to other sections. This novel assertion, which flies in the face of international law, is a bold one and it remains to be seen whether it will be accepted.
Bolder and more expansive still, the treaty creating the ICC purports to give the court jurisdiction over citizens of nonsignatory states, again in apparent violation of international law and the Vienna Convention.15 If a citizen of a nonsignatory state, such as the United States, commits a crime within the court’s jurisdiction on the territory of a signatory state, the treaty provides that charges can be brought.16 This has triggered quite a debate, which will probably not be resolved until a test case comes forward. Nevertheless, provisions such as these demonstrate the broad objectives and determined approach of the new diplomacy treaties.
A Country I Do Not Recognize Page 16