CIAO DATE: 03/02
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2000 (Volume 11 Issue 1)
'Unilateral actions' are taken by an unauthorized participant who contends they are, nonetheless, lawful. The lawfulness of such actions must be examined as a constitutive question before one proceeds to determine whether a particular action fulfilled the substantive criteria of lawfulness. Lawfulness is a function of constitutive structure. In coarchical systems without hierarchical institutions, unilateral action is perforce the mode of decision. In constitutive structures that include generally or intermittently ineffective hiearchical institutions, the lawfulness of unilateral action is more complex and unilateral action becomes normatively ambiguous as a result of the cognitive dissonance caused by the decalage between substantive lawfulness and procedural unlawfulness. In constitutive structures that incorporate effective decision institutions, unilateral action is presumptively unlawful. The normative ambiguity of unilateral actions in contemporary international law arises from the regrettable but acknowledged intermittent ineffectiveness of decision institutions. The appropriate remedy for this problem is to make the institutions effective.
Unilateralism includes recourse to juridical unilateral acts but may also denote the general tendency prevailing among some powerful states or groups of states to act without regard to respect for the equal sovereignty of their partners. The recent period shows a recrudescence of such behaviour. It raises the issue of the threat posed to the whole international system established after World War II as reflected in the UN Charter, in which one of the basis principles is the general obligation of cooperation. It is therefore necessary, first, to review the scope of the general obligation to cooperate, and second the consequential residual place of unilateral action in relation to the new wave of unilateralism as well as to the questions raised.
The article considers what is understood by the concept of unilateral state action. Through three examples - threatened unilateral sanctions for the cheaper acquisition of medical drugs, Kosovo and East Timor - it examines a range of unilateral acts and suggests that there is no dichotomy between unilateral and multilateral action. Rather the two merge into each other. Many acts are only unilateral in a narrow sense that disregards the disaggregation of the contemporary nation state and what masquerades as collective action or inaction may be manipulated by a state with a particular interest or take on the issue, be dictated by a single strong actor through the threat or use of the veto, or by a single state taking the lead. Such an analysis of unilateral and multilateral acts undermines the task of refining the legal framework. However the article closes with some suggestions with respect to enhancing the transparency and accountability of multilateral decision making.
Article 17 of the UN Charter establishes the duty of Member States collectively to provide financial support for the organisation, according to an apportionment scale decided by the General Assembly. Since the 1950s, certain members have unilaterally tried to challenge the duty to pay assessed contributions either on political or on legal grounds. This practice has recently posed serious threats to the financial viability of the UN because of selective withholding by the United States, the largest contributor to the UN.
This paper argues that unilateral selective withholdings aimed at advancing national values or priorities have no basis in the Charter. However, unilateral withholdings may be admissible as a last resort remedy for Member States to protect themselves against possible ultra vires or illegal acts of UN organs. To prevent abuses of this remedy, its exercise should be limited to clear violations of the law and be conditioned by three criteria: a) specific necessity, b) integrity, and c) consistency. In the absence of a centralized system of judicial review in the UN, these criteria would help prevent and minimize abuses of the ultra vires claim.
The 1999 Congressional season, the penultimate of the century, ended with President Clinton's grudging acquiescence to the terms set by House Republicans for forwarding the bulk of money claimed due by the United Nations. In return, the Clinton Administration agreed not to vet a rider to the UN funding bill which would withhold US funding to organizations urging foreign governments to adopt birth control measures. Lost in the shuffle of domestic politics was the issue of whether the United States in fact owed the United Nations what it claimed, and whether America's efforts at selective withholding indeed constituted a fall from grace, as critics charged. The legal issues were always far from clear. The UN dues standoff does not represent the hijacking of the American multilateralist vision by isolationist-minded Republicans on Capitol Hill. In fact, the United States has never claimed unwavering loyalty to a literalist interpretation of the principle of 'collective financial responsibility' of Article 19 of the UN Charter insofar as that meant acquiescence to the will, no matter how unreasonable, of the UN General Assembly majority on budgetary matters. Here, rhetoric impeded a negotiated solution.
The timely and in full financing of UN's activities is — for each Member State — not only a treaty obligation, but also an expression of its commitment to the UN's purposes and objectives. Furthermore, it is clearly a good investment in global stability. The UN, to be effective, must at all times be assured the funding necessary to carry on the operations decided and entrusted to it by its Member States. Otherwise, the UN is forced to live in a self-defeating state of permanent emergency. In the present unipolar world, the US — sooner or later — has to turn to the UN, looking for legitimacy. The American strategy of using the arrears on its contributions to the UN as a political instrument is an unfortunate and endemic mistake. Coming from the country which can claim to be the backbone of the UN, it frustrates its allies and weakens its bonds of solidarity with most other countries of the world. In addition, it does not allow the US to assume a real leadership role vis à vis the international community at large.
The paper examines the main reasons of the United States not joining the Rome Statute of the International Criminal Court and the Anti-Personnel Mines Treaty and discusses the consequences of this failure. It also makes some comparative observations on the 'unilateralism' of the United States vis à vis human rights treaties. It concludes that the objections of the United States, both with regard to the International Criminal Court Treaty as well as to the Anti-Personnel Mines treaty are primarily based upon its 'special global military responsibilities'. This is, in part, a hypocritical attitude. But the US also advances other differential arguments against the treaties that cannot be dismissed as being simply irrelevant to the subject matter of both conventions. It is also the sovereign right of the US not to accept international treaty obligations that it deems as being not in conformity with its national interest. As to the consequences, it is argued that there will be more difficulties in effectively implementing the conventions without American participation. Another consequence may be that the US will be viewed as continuing to set a bad example in the development of international law by claiming special privileges and immunities.
Establishment of the Ottawa Convention Banning Landmines was regarded by many international law scholars, international activists, diplomats and international organization personnel as a defining, 'democratizing' change in the way international law is made. By bringing international NGOs - what is often called 'international civil society' - into the diplomatic and international law-making process, many believe that the Ottawa Convention represented both a democratization of, and a new source of legitimacy for, international law, in part because it was presumably made 'from below'. This article sharply questions whether the Ottawa Convention and the process leading up to it represents and real 'democratization' of international law, challenges the idea that there is even such a thing as 'international civil society', at least in the sense that it is democratic and comes 'from below', and disputes that there can be such a thing as 'democratic' processes at the global level. It suggests, by way of alternative, that the Ottawa Convention and the process leading up to it should be seen as a step in the development of global transnational elites at the expense of genuinely democratic, but hence local, processes.
American exceptionalism - a belief that the United States has a unique mission to lead the world, but ought logically to be exempt from the rules it promotes - is at the root of much of the American academy's effort to rationalize the US government's increasing rejection of multilateralism as the cornerstone of modern public international law. Even American scholars who disagree fundamentally on the problems with multilateralism (Kenneth Anderson arguing that it favours anti-democratic intervention by unelected NGOs, Michael Reisman asserting that it privileges elitist state-based lawmaking in the face of more democratic non-state 'lawmaking' processes) can agree on the solution: more unilateralism by powerful states, particularly by the United States. In this critique, James Hathaway contends that the amorphous law-as-policy depictions of the problems with multilateralism disguise a determination to equate valid international law with the priorities of powerful states, and that the presumed solution of American unilateralism reflects a mistaken belief that the United States can be assumed always to operate on the basis of principle-derived autopilot.
This article analyses the conflicts-of-law problems that supposedly arise from the fact that every nation can unilaterally regulate every Internet transaction. It argues that the threat of multiple national regulation of Internet transactions is significantly exaggerated. It then examines a more serious problem: the spillover effects from unilateral national regulation. These spillovers do not affect the legitimacy of unilateral regulation, but they might argue for public and private harmonization strategies to eliminate the spillovers. Unfortunately, the prospects for such harmonization are generally dim in many contexts. This means that unilateral national regulation will continue to be a primary vehicle of Internet regulation - a prospect that is not nearly as destructive of the Internet's future as conventional wisdom suggests.
With the Internet being more or less an American affair, the question arises as to whether its regulation has also to be dominated by the US. This article explores different European attempts at regulating the Internet, taking Germany, France and the EU as examples. At least two problems emerge: regulatory fragmentation between different European states and between the EU and its Member States, and the fact that traditional legislative mechanisms probably work too slowly to cope with the development of Cyberspace. In spite of these European efforts, the US (through 'indirect unilateralism') still dominates Internet governance. It has privileged access to the level of Cyberspace regulation where the technical architecture of Cyberspace is determined, as illustrated by domain name system saga around ICANN (Internet Corporation for Assigned Names and Numbers). The conclusion is that, so far, Europeans have failed to shift the crucial issue of regulation of technical control over the Internet on to a truly international arena. The article acknowledges that it is not clear yet what a comprehensive international law approach to Internet governance could be like, but calls on international law to take up the issue of Internet governance and to take it seriously.
The paper identifies two insights that the problem of Internet regulation provides for understanding the more general problem of unilateralism. First, it suggests the existence of a wide variety of mechanisms for encoding the normative preferences of one nation as behavioural constraints on the citizens of another. In the Internet context in particular, technological and organizational adaptations to law play this role. A broad principle of cooperation among nations, which would require each nation to take account in its public actions of the constraints it would impose on the citizens of other nations, would therefore entail a breathtaking degree of cooperation and consideration among nations, or risk that the very breadth of its ambition will severely limit its domain of operation. Secondly, it suggests that the interplay between unilateral lawmaking on the one hand, and a harmonization ethic implemented by imperfectly articulated multilateral process on the other hand, creates an institutional environment ripe for the picking by non-representative commercial or other organizations to embed their values in the regulatory system that will ultimately emerge.
The Martens Clause is indisputably one of the contemporary legal myths of the international community. Being particularly ambiguous, it has been variously interpreted. The author dismisses the more radical interpretation whereby the clause upgrades to the rank of sources of international law the 'laws of humanity' and the 'dictates of public conscience'. The other, less extreme interpretation, whereby the clause merely serves to reject a possible a contrario argument, is equally without merit. He suggests that the clause was essentially conceived of, at the 1899 Hague Peace Conference, as a diplomatic gimmick intended to break a deadlock in the negotiations between the smaller and Great Powers. The clause could nevertheless be given a twofold legal significance. First, it could operate at the interpretative level: in case of doubt, rules of international humanitarian law should be construed in a manner consonant with standards of humanity and the demands of public conscience. Secondly, the clause, while operating within the existing system of international sources, could serve to loosen - in relation solely to the specific field of humanitarian law - the requirements prescribed for usus whilst at the same time raising opinio to a rank higher than that normally admitted.