Monday, June 06, 2005

Transatlantic Turbulence and the International Plane

Scholars can provide you with easy answers as to why international law doesn’t function as a ‘normal’ legal system (It has no centralised power, no effective sanctions, it’s politicised etc. etc.). One example from the last week poses the question of why this has to be the case.

Europe and the United States recommenced battle before the WTO last week, in what is predicted to be the most expensive trade dispute in the organisation’s history. The squabble revolves around State subsidies provided by the EU and US, for Airbus and Boeing respectively. The dispute highlights an ‘efficacy gap’ between dispute resolution in trade law as opposed to international law in general.

The WTO process is quick (normally no more than 15 months from initial complaint to appellate judgment) and binding on the parties. In the case of non-compliance by the losing party, the other State can be authorised by the WTO to take countermeasures, for instance by imposing tariffs on the offending party’s exports. Other international legal institutions like the International Court of Justice must be a wee bit embarrassed surely – the Genocide in Bosnia case, for instance, has been on the docket of the ICJ since 1993, and a public hearing on the merits is not due until February 2006.

Why does the WTO dispute resolution system work so much more efficiently than that under general public international law? From a legal perspective, the easy answer is that it has an effective sovereign (in that States give up a reasonable measure of sovereignty to the WTO), and effective sanction (rulings backed up by the possibility of countermeasures in the event of non-compliance by a party). It also has tight procedural deadlines. Public international law in general has none of the above.

But more importantly, why are States prepared to cede sovereignty to the WTO over trade when they are not prepared to do so (to the same extent) to other institutions over international criminal law, human rights, or the use of force? The economy and national security are both priorities for States, both are big domestic election issues – why submit wholeheartedly to an international regime for one and not the other?


Akbar said...

Neil said: "Why does the WTO dispute resolution system work so much more efficiently than that under general public international law?"

Here are a few answers:

(1) WTO disputes are perceived to be less "politicised." In their internal discourse, the WTO DSS participants have managed to forget the politics of int. trade law away. Once WTO disputes came to be seen as essentially "technical," they became much easier to resolve.

(2) States are more intensively interested in the prompt resolution of international trade disputes. Think exporters' associations, industrial lobbies, pressure groups, etc.

(2a) Put 1 and 2 together and what follows is: parties to WTO disputes are more sincerely interested in the efficacious resolution of their disagreements. [The less politicised the dispute, the smaller the incentive for strategic behaviour. The stronger the domestic pressure, the stronger the incentive to "get things done" asap.]

(3) The scope of applicable law is much narrower.

A final remark: I am not sure one can really compare the institutional efficiency of the WTO DSS either with the ICJ or with the general PIL DSS. Different leagues, different ball games, different audiences.

Neil McDonald said...

You’ve hit the nail on the head with your comments, 'Akbar'.

Of course any crude comparative study has its shortcomings. But I think the real point of the exercise is to find out why the WTO works efficiently and PIL in general does not, and how PIL could learn from the WTO DSS.

I agree with the comment on a lack of politicisation within the WTO DSS. How do we promote this in general PIL? The same external factors exerting pressure can be found in general PIL – NGOs, amici curiae – but without the same effect on proceedings. How do we promote this in general PIL? Do we want to?

In the end, does everything come down to economic influence (e.g. of the industrial lobby) and the fact that in other PIL disputes we don’t have the same parity between players that we see in the WTO DSS (e.g. US less inclined to take Iraq to task before the ICJ if it can just blow it up)?

In other words, is it all about money and power? We're talking about unchecked aggression here, dude.

Akbar said...

Neil said "I agree with the comment on a lack of politicisation within the WTO DSS. How do we promote this in general PIL?"

But why depoliticise PIL in the first place? I always thought for something as large in scope - territorial, demographic, ratione materiae, etc. - as PIL, the depoliticisation of the reflective discourse would always be a profoundly bad idea. Call me cynic (at least it's an ethos, dude), but I think there's no way anyone can get the whole humanity to agree on how to run itself, i.e. how to distribute wealth, violence, aid, tax burden, income, decisionist discretion, death, etc. across the continents, nations, classes, and so on. Which leads to the conclusion that, however you turn it, there will ALWAYS be lots and lots of politics in international relations (and thus, by logical extension, PIL too). Any attemtp to paper over this basic fact, I'd think, should be prima facie suspicious. It'd lull you into a feeling of (for lack of a better word) false security, instead of opening your eyes to the stark inexorable fact that history - especially global history - is never a question of technical management, but always a dark and open struggle: the less you are aware of it, the more likely you're going to suffer a crashing defeat.

I mean, the depoliticisation of the WTO DSS was in itself enough of a disastrous development. Why wish to spread it to PIL? (I'm talking about drawin a line in the sand, dude.)

So, to conclude, in response to the latter of the two questions: "How do we promote this in general PIL? Do we want to?", my answer would be simple: under no circumstances.

Neil said " ...find out why the WTO works efficiently and PIL in general does not ..."

This assumes that (i) there is some kind of objective measuring rod applying which you could measure the institutional efficiency of the WTO DSS ; and that (ii) it can also be used to measure the general PIL DSS. I disagree with both of these assumptions.

Efficiency is not a matter of objective reality. To paraphrase the Bard, it is always in the eye of the beholder (meaning it is always decided in reference to a set of a priositic NORMATIVE criteria).*

How do you know that the PIL DSS is not efficient? If your starting reference point (normative presupposition) were, say, the prevention of a nuclear holocaust, it'd appear the PIL DSS has done quite marvelously.

* Many CLS scholars - Mark Kelman for one - have explored this when criticising the orthodox (Chicago-style) law and economics.

Neil said: "In the end, does everything come down to economic influence?"

I'd say, no.

Neil said: "In other words, is it all about money and power?"

Again, I'd say, no. Like capital and transaction costs, power has many faces. Not all of them are hard or tangible.

Neil McDonald said...

In terms of efficiency, I fully agree that we can't measure the effectiveness of PIL according to alien criteria. But what do we measure it according to?

Your example of the absence of nuclear holocaust as proof of PIL in action. Does this imply that non-eventualities like this, and the non-invasion of Iran, and the non-colonisation of the moon are by dint of international law? Is this not by chance (or political expedience if you prefer) rather than design?

If we look at the UN, it was fundamentally designed to 'save succeeding generations from the scourge of war'. That aim is set out in a legal document. There are still loads of wars between States. There's a yardstick for you...

Akbar said...

(1) Well if you really get that textualist about the UN, then it was actually the preamble that said this and in it, moreover, it was the nebulous "peoples" who were "determined" to achieve this goal, not the UN itself (whoever the "peoples" are, the notion of "saving the future generations from the scourge of war," I must say, sounds more like something you'd normally expect to come from the mouth of John Connor from the Terminator saga than any mere mortal).

The UN, meanwhile, according to article 1 of its charter, was created merely to "maintain international peace." Maintenance obviously does not have to mean perfect preservation. As Hedley Bull would probably argue, it is the peace in the international arena that the UN was created to maintain. An occasional limited war here or there - however horrible on its own terms - does not vitiate its achievements on this front. Coalitions of the willing (that go around telling the Security Council that they know better what it really had in mind than it does itself) do.

(2) "Your example of the absence of nuclear holocaust as proof of PIL in action. Does this imply ..."


(3) Why are you presuming that international law can be so definitively divorced from politics that anyone can actually point out the clear identity of any given event's causality, even if it is a non-eventuality? Or, indeed, that for anyone to be able to say that law works one must necessarily find as a practical illustration a case in which law was the only causal factor at play? International relations don't work like that.