Constructive Sovereignty

US Unilateralism in the Global Order

John Maszka

This paper addresses the issues surrounding the tremendous increase of American unilateralism precisely at a time of ever-increasing demand for international cooperation. The body of literature is saturated with examples of American unilateralism, and many case studies have been published. However this paper is unique in that it addresses this issue from a multivariate approach, across international institutions. While acknowledging that unilateralism is “embedded in the international system” (Maynes, 1999, 515), this paper argues that American unilateralism, particularly under the leadership of the George W. Bush administration, has been especially egregious. This is particularly important to international relations (IR) scholars of all theoretical backgrounds as increased American unilateralism has the potential to give rise to anti-American coalitions, create inefficiency through a loss of international cooperation, and diminish what legitimacy America may still enjoy as the leader of the international community (Brooks and Wohlforth, 2005). Framing the argument from an IR perspective, the paper borrows four measures of American unilateralism from Charles W. Maynes (1999): lack of restraint, growing sweep, intrusive character, and ahistorical thrust. It then applies these four measures to nine case studies from three separate international institutions, using the case studies to evaluate the institutions for effectiveness and legitimacy. The paper also discusses the role of the international legal order in helping to curtail unilateral behavior, thereby demonstrating yet another measure of political effectiveness. In conclusion, this paper argues that the IL perspective is on the right track. This is especially so given a Liberal perspective and a Constructivist argument. If individuals and private organizations are indeed the primary actors, and the argument is primarily a normative one (i.e. What is the right thing to do?), then international institutions stand a fair chance of becoming politically effective, legally binding, effective, efficient and legitimate. One good example of an international organization following this track is the EC legal system where domestic courts can impose international rulings on their own governments. The big problem, of course, is that the EC is only one good example. The vast majority of the world is not plugged in to the international community in an enforceable way. The most fitting example is the United States, and its egregious unilateralism. If the preponderant IR rationalist argument prevails, then individual states will continue to act according to their own predetermined interests. Even within an Institutionalist framework, international institutions can only mediate among unitary actors. They may decrease transaction costs, increase information, reduce uncertainty, facilitate communication, promote learning, and legitimize or delegitimize different kinds of behavior. But if international law is not enforceable, then individual states will continue to act in accordance with the balance of power, not in accordance with what is right. This leaves the members of international community at the mercy of the hegemon and the hand that the balance of power has dealt them. This paper proposes a third argument based on Constructive Sovereignty. Individual states must have an incentive to agree to international norms, and they must also possess the political and domestic will to embedd those norms so as to give them legitimacy and make them enforceable. The most obvious way to do this is through privitization of the many obstacles that are currently constraining broader cooperation. As the IL approach gains legitimacy among private organizations, corporations and actors, those private actors will voice their preferences and their respective states will represent those interests to the international community. As the private actors in each domestic population become more international, their preferences will also grow more international. It is only then that international norms will truly have legitimacy, and hence embeddedness, across state boundaries.



Introduction

This paper addresses the issues surrounding the tremendous increase of American unilateralism precisely at a time of ever-increasing demand for international cooperation. The body of literature is saturated with examples of American unilateralism, and many case studies have been published. However this paper is unique in that it addresses this issue from a multivariate approach, across international institutions. While acknowledging that unilateralism is “embedded in the international system” (Maynes, 1999, 515), this paper argues that American unilateralism, particularly under the leadership of the George W. Bush administration, has been especially egregious. This is particularly important to international relations (IR) scholars of all theoretical backgrounds as increased American unilateralism has the potential to give rise to anti-American coalitions, create inefficiency through a loss of international cooperation, and diminish what legitimacy America may still enjoy as the leader of the international community (Brooks and Wohlforth, 2005).
Framing the argument from an IR perspective, the paper borrows four measures of American unilateralism from Charles W. Maynes (1999): lack of restraint, growing sweep, intrusive character, and ahistorical thrust. It then applies these four measures to nine case studies from three separate international institutions, using the case studies to evaluate the institutions for effectiveness and legitimacy. The paper also discusses the role of the international legal order in helping to curtail unilateral behavior, thereby demonstrating yet another measure of political effectiveness.
The first section of the paper defines the four measures of American unilateralism as well as the terms “effectiveness,” “legitimacy” and “legalization.” as they are applied in the model. It also discusses the relevant literature. The second section introduces the case studies and details the analysis of the institutions for effectiveness and legitimacy. The paper concludes with a discussion of the findings and suggestions for further research.

I: Definitions and Literature

American Unilateralism

There are many IR sources that one could draw from in framing an argument concerning American unilateralism, far too many to list in this paper (see end note 1 for a partial list of relevant sources).[i] Maynes’ four-measure approach lends to a parsimonious yet rigorous analysis of American unilateralism, hence it is employed in this study. The four measures are defined as follows:
Lack of Restraint- This measure is defined by engagement in unilateral acts across the international community without regard for the opinion of its allies or any immediate need to protect its national borders.
Growing Sweep- This measure is defined by a lack of any effective counter-measures to prevent the continued unilateral domination of one state over all others.
Intrusive Character- This measure is defined by the use of political, economic and military means to force other sovereign states to enact domestic reforms largely against their cultural and legal traditions. In other words, against their will.
Ahistorical Thrust- This measure is defined by the flagrant disregard of decades of diplomacy aimed towards international cooperation and multilateralism.


Effectiveness
Effectiveness can be measured by utility; essentially how well something works. Oran Young and Marc Levy (1999, 4-5) present a multidimensional approach to measuring effectiveness based on five factors. The first is problem solving. This component measures whether or not a given problem is solved. The second is legal effectiveness. This component addresses whether the parties involved comply with the rules. The third is economic effectiveness, or essentially a cost-benefit analysis. The fourth is normative, which is a value-driven analysis. This component measures whether there is a level playing field. And the fifth is political. This component measures changes in actors’ behavior. It is a bit of a combination of all of the above. This component measures how effective a regime is at persuading the actors involved that the treaty or resolution involved is something worth getting behind, for whatever benefit it may offer.

Legitimacy
Steven Bernstein (2004, 1) suggests that there are three “distinct conceptions of legitimacy: 1) principled legitimacy rooted in democratic politics; 2) legitimacy as law or legalization; and 3) a sociological conception of legitimacy rooted in inter-subjective beliefs about appropriateness.” Bernstein (2005, 142) elaborates upon these further where he defines legitimacy as “the acceptance and justification of shared rule by a community.” Bernstein’s definition requires both the wide acceptance that an institution possesses authority and justification of that authority.
The first conception of legitimacy, that it is rooted in democratic politics, addresses the first requirement that there be wide acceptance of the institution’s authority; as “legitimacy requires democracy because it is the central principal in contemporary politics that justifies authority.” The second conception of legitimacy, legitimacy as law or legalization, also addresses this first requirement: “International legal scholars identify state consent as the basis of obligation.” It could also be argued that this conception addresses the second requirement for justification as well. Finally, the third conception, legitimacy rooted in inter-subjective beliefs about appropriateness, addresses the second requirement for justification: “To be legitimate, rules and institutions must be compatible or institutionally adaptable to existing institutionalized rules and norms already accepted by a society” (Bernstein 2005, 145, 153, 156). Legitimacy can be summed up as not referring to “some abstract conception of right but, rather, to the norms of a specified cultural system at a given time” (Clark, 2003, 80).
According to Erik Voeten (2005, 534) “legitimacy resides entirely in the subjective beliefs of the actors.” Voeten argues that this is far from legitimacy being normative; being based in a “set of specified standards.”
Finally, Tom Farer (2004) argues that legitimacy is a matter of degree. He sees the path to an effective international legal order as one blazed by a concert of leading powers that will push effectiveness and legitimacy beyond the current limits enjoyed by the UN Security Council.

Legalization
Goldstein et al (2001, 387) define legalization as containing three criteria: obligation, precision and delegation. Obligation is a measure of the extent to which states are bound to comply. “Fully legalized institutions bind states through law.” Precision pertains to the degree of detail or specificity of the verbiage. “Legalized institutions also demonstrate a high degree of precision, meaning that their rules unambiguously define the conduct they require, authorize or proscribe.” And finally, delegation pertains to the extent that the functions of interpretation, monitoring and implementation are delegated to a neutral third-party.

II: Case Studies
In this section, the paper looks at nine case studies in three different international istitutions. It applies the definitions of effectiveness, legitimacy and legalization and draws conclusions about the effectiveness and the legitimacy of each of the three international organizations based on their ability to stem American unilateralism. The cases are outlined individually, and then discussed collectively at the end of each section.

World Trade Organization (WTO)
Is the WTO effective? Is it legitimate? Perhaps the highest benchmark one can use in such a test is to measure its effectiveness and legitimacy in stemming American unilateralism. Keisuke Iida (2005, 320) explores whether the WTO has “disarmed Section 301." Noting that the United States grew increasingly more unilateral, especially in the 1980's, using Section 301 of the U.S. Trade Act of 1974 to sidestep the GATT; Iida concludes that the WTO has effectively countered this strategy. According to Iida (who bases her argument on the auto talks between Japan and the US, and the film dispute between Kodak and Fuji), this came about largely via a “learning process” in which the United States realized that any unilateral action under Section 301 would trigger a WTO case anyway.
But don’t get too warm and fuzzy just yet. This constructivist view of US trade relations, while promising, thinly veils an unfortunate reality: the dispute settlement process is an unfair process. In addition to being terribly expensive, prohibitively so for many developing countries (Iida, 2005), the process itself is biased toward rich nations. Busch and Reinhardt (2003) compared the GATT with the WTO and came to the conclusion that the likelihood of a rich, developed nation winning full concession has unquestionably increased, while the same probability for a poor-country complainant has not increased at all. The bias in the process, while viewed with skepticism by some such as Holmes et al. (2003), is due largely to poor states’ deficient legal capacity as well as their economic, political and military dependence on bilateral assistance from developed countries. This unfair advantage may be just the very reason that the United States finds it in its best interest to forego Section 301 in most instances. While one can cite exceptions, the far greater majority of cases are determined within the context of this larger, unlevel playing field.
What does this case suggest? It suggests that the WTO is facilitating the interests of the rich, developed countries, and is primarily playing by their rules. As we will soon discover, when the WTO does not rule in favor of the rich, developed nations, they simply refuse to play.

Shrimp/Turtle Case - WT/DS58
For instance, the 1997 Shrimp/Turtle case brought by India, Malaysia, Pakistan and Thailand demonstrates that while losing the legal battle, the United States won the political war. The U.S. imposed a ban on shrimp imports from these countries because they were caught without the use of turtle excluder devices (TEDs). The US endangered Species Act of 1973 listed five species of sea turtles as endangered and prohibited any capture, hunting or killing of the turtles. But the U.S. was providing other (largely Caribbean) countries with financial assistance to acquire TEDs and therefore placed no ban on their shrimp imports. The WTO Appellate Body (AB) ruled against the United States largely because of its unfair practices. However, the U.S. never lifted its ban. And despite several further appeals the WTO never actually enforced its decision (Trachtman, 1999). This case clearly demonstrates both the unilateralism of the United States and how the WTO panders to such unilateral action.

Hormone-Treated Beef Case- WT/DS26
Just so that no one is lulled into thinking that the United States only enjoys the upper hand against poor, developing countries, the hormone-treated beef case strongly implies that America’s political, economic and military advantages are the real issues as stake; as opposed to its legal standing either way. In 1980 the European Union (EU) imposed a number of bans on the use of growth hormones in domestic meat production as well as a ban on the import of meat treated with growth hormones. The United States and Canada filed a complaint with the WTO. And while a WTO dispute panel found that the EU had provided adequate evidence that hormone-treated meat presents health risks in general, it concluded that it had not presented sufficient specific evidence to justify restricting trade. The EU refused to lift the ban even after the Appellate Body determined it violated WTO rules, and the United States was awarded permission to impose $116.8 million per year in retaliatory trade sanctions (Barker and Mander, 1999).While the WTO defended the rights of sea turtles by refusing to enforce its own legal decision against the United States; the WTO enforced its failure to defend the rights of human beings to the tune of $117 million per year. The inconsistencies between the WTO’s actions in the shrimp-turtle and the hormone-treated beef cases strongly suggests that the WTO is more of a political organization than it is a trade organization.

Chiquita Banana Case- WT/DS27
Should there be any doubt that money, military might and politics drive national and international dispute resolution; the Chiquita banana case is an enlightening case. The EU offered preferential treatment to its former colonies in the Caribbean in the form of low tariffs and quotas on bananas. Without such preferential treatment, these small banana farmers could not compete against the giant, American owned banana plantations based in Latin America. Even though the small banana farmers only comprised 8 percent of the EU market, Chiquita threatened to invoke Section 301. In 1996 the United States filed a complaint against the EU’s unfair trade practices. Two days later the CEO of Chiquita, Carl Lindner, donated $500,000 to the Democratic Party. Later in 1998, Lindner donated $350,000 to the Republican National Committee. One month after the donation was made, the republican leadership in the Senate pushed for retaliatory sanctions against the EU. The WTO ruled in favor of the United States and granted permission to impose $191 million in retaliatory sanctions. The EU finally capitulated under U.S. financial pressure (Wallach and Sforza, 1999).
This case is an excellent example of how private actors, in this case Chiquita, determine the preferences of states; and how states then represent those interests. This, of course, is a Liberal argument. However, the United States is still very much a sovereign state, strategically representing those preferences. This would suggest a Rational argument, but I propose that the preferences can be both normative (Constructivist) and strategically defended. Rebecca Steffenson points to an excellent example of how preferences can be normative in her discussion of the pressure that international labor groups imposed upon the chocolate industry concerning West African cocoa plantations engaging in what amounted to child slavery.[1] An example of how those same preferences can be strategically represented is the hormone-treated beef case, where the United States retaliated against the EU by imposing tarrifs on a variety of foods, including chocolate.

The Carousel Approach
As just discussed, the United States (among others) employs the practice of strategically imposing tarriffs on specifically targeted sectors to make retaliatory trade sanctions more punative. This is an effective way of protecting its domestic interests. The United States also employs another strategy, known as carousel, which is a rotating of the list of tariffs on the retaliation list. By targeting sectors that supported the originally disputed practice, the U.S. is able to impose 100% tariffs in a way that really punishes the offending state. By rotating the list every 180 days, the U.S. is able to bring the non-compliant member to its knees (Sek, 2002). This is an especially strategic approach to representing state preferences.
But how does the WTO fare concerning effectiveness and legitimacy? From a legitimacy standpoint, it can be argued that the WTO meets all three of Bernstein’s criteria: it is more-or-less rooted in democratic politics; it is a legal organization; and there is broad international recognition of its authority. However, the WTO’s authority is trumped by the preferences of rich, developed nations. All three cases discussed within this section are glaring examples, of course. It is not difficult to see initial recognition of the WTO’s authority in any of these case, until that authority challenges the preferences of a rich, developed nation. In which case the traditional balance of power (political, military or economic) determines how the score will be settled. Furthermore, these three cases cause one to suspect the WTO’s impartiality. Nevertheless, even beyond these failings of limited legitimacy and impartiality, the WTO continues to lack an effective means to enforce its rulings.
From an IL perspective, the WTO is almost an effective legal means to regulate trade. Let us pretend for the moment that disputes are delegated to a neutral third-party dispute settlement body (DSB).[2] The DSB has the power to authorize retaliatory sanctions, and those sanctions are precise. But from an IR perspective, the question has to be asked: Where is the obligation? Who enforces it? All three cases discussed above reveal that in reality it’s the individual members that decide whether or not to comply. What determines the level of embeddedness? This may be a purely rationalist (calculated) decision based on a state’s predetermined interests, or it may be a constructivist (socialized) decision based on a learning process (as may have been the decision to join the WTO in the first place). However, none of the cases above demonstrate that the WTO is instrumental in enforcing its decisions.
Overall effectiveness as measured by utility (essentially how well something works) is problematic as well. In two of the three cases discussed, the WTO failed to solve the problem, exhibited no legal or economic effectiveness, and while it (debatably) provided a level institutional playing field, it created no political change. It can be argued with little contention that the WTO was only effective in one of the three cases discussed above. Only in the Chiquita Banana Case did the WTO effect any real change; and as already discussed, the WTO itself was not directly involved in enforcing that change.
American unilateralism is growing more prevalent, as is demonstrated by the lack of restraint the U.S. has demonstrated, by engaging in unilateral acts across the international community without regard for the opinion of its allies or any immediate need to protect its national borders. As we measure the WTO for its ability to stem the tide of American unilateralism, we find that the three cases discussed above expose the lack of any effective counter-measures to prevent the continued unilateral domination of one state over others. As already mentioned, the Chiquita Banana case demonstrates that the WTO has no power to enforce its own rulings. The United States prevailed, not because it won the case, but because it was the stronger player. Had the EU been able to withstand the financial pressure, it would have prevailed; and indeed it did prevail against the weaker Guatemala. This case and the shrimp/turtle case further demonstrate America’s use of political, economic and/or military means to force other sovereign states to enact domestic reforms largely against their cultural and legal traditions. Finally, Tom Farer supports the argument that American unilateralism has flagrantly disregarded decades of diplomacy aimed towards international cooperation and multilateralism, as characterized at the end of WWII.
In summary, the WTO is legal and it enjoys substantial legitimacy, but it is not effective. Even if one argues those cases where the U.S. complied with WTO decisions (even to the point of changing legislation to comply), closer scrutiny reveals that the real pressure did not come from the WTO. For example, the Helms-Burton Act (otherwise known as the “Bacardi Law”) allowed U.S. companies to sue foreign corporations for conducting business with Cuba. The Act was met with nearly universal opposition as extraterritorial and unfair, as it violates both the UN and OAS prohibition on the use of economic measures to influence foreign governments.[3] While the Clinton administration removed the portion that allowed American companies to sue foreign corporations, it did so from international pressure, and to avoid a boycott of Florida, not because of the WTO. In fact, the EU withdrew its complaint in April 1997 and never pursued damages.
In sum, this section concludes that for the reasons discussed within it, the WTO is not effective in stemming the tide of American unilateralism.

The United Nations (UN)
To continue our assessment of effectiveness and legitimacy as defined above and measured by the ability to stem American unilateralism, the paper now turns its attention to the UN. Unfortunately, at first glance the UN fares no better than the WTO. For instance, the Helms-Biden Agreement (H.R. 1757, the Foreign Affairs Reform and Restructuring Act) makes an already economically dependent UN even more vulnerable by placing demands and restrictions on every dollar the U.S. pays to the UN. In addition, not only does the most economically powerful country in the world throw its weight around in this fashion, but it also sets itself above the legal reach of the International Criminal Court (ICC). Finally, its position as a permanent, veto-holding member of the Security Council secures the United States’ political advantage as one of the world’s five elite countries.
Phyllis Bennis (2006) points to a few of America’s strategic maneuvers intended to manipulate the international system and secure its unilateral elbow room. In addition to the election of the American-backed Ban Ki-Moon to the UN Secretariat, Bennis calls our attention to the fact that the heads of both the World Food Program (WPF) and the United Nations Children’s Fund (UNICEF) are Bush administration nominees. Neither Josette Shiner (former undersecretary of state for economic, business and agriculture affairs) nor Ann Venemen (former secretary of agriculture) has previous experience to qualify for their respective positions. However, both come in support of the interests of U.S. agriculture. Many see this as a conflict of interest. This paper suggests that this is simply another example of the United States strategically representing its preferences.
Bennis also reminds us of the November 1990 “Yemen Precedent,” where the Yemeni ambassador voted against a resolution to go to war in Iraq. The U.S. had effectively bribed and threatened near unanimous support. Even China accepted a bribe not to veto the resolution. But in the words of the U.S. ambassador (which were broadcast around the world) Yemen had just cast “the most expensive ‘no’ vote” it would ever cast. Three days after the vote, the U.S. unilaterally retaliated by cutting its entire aid budget to Yemen. Thirteen years later, after the Security Council refused to pass a resolution in support of war with Iraq, the Bush II administration unilaterally went to war in Iraq anyway.
Again we are faced with an international institution that is politically driven by the balance of power, not by what is right. This paper argues that while the current heightened level of American unilateralism is unacceptable, it provides an excellent opportunity to expose today’s international system for what it is: and extension of the balance of power in the world.
Tom Farer (2004, 231) recognizes this reality when he argues that the UN Security Council needs to do more to authorize intervention when dealing with “chronic violators of human rights.” Farer is essentially making a constructivist argument that a concert of leading powers needs to decide to do what is right. As much as anyone might agree with Farer that a concert of major powers is necessary to effectively engage in such intervention, this author argues that such a concert will never exist until the individual state preferences (as determined by private actors and strategically represented by individual states) demand it. Bennis’ three examples clearly demonstrate America’s blatant unilateral abuse of its political, economic and military power; abuses that it would never allow any other nation (except perhaps Israel due to a very strong lobby) to get away with. However, should America’s preferences demand a more multilateral approach in the future, it will strategically represent those preferences. This is Constructive Sovereignty in a nutshell. We now turn to the UN cases.

The Republic of Nicaragua v. The United States of America
During the Reagan administration (beginning in March 1981) the United States actively supported the insurgency of Contra rebels against the leftist Sandinista regime in Nicaragua. On April 4, 1984, the United States vetoed a resolution condemning its mining of Nicaraguan ports (S/PV. 2529). On April 9, Nicaragua capitalized on US acceptance of the optional clause to file suit against the United States before the International Court of Justice (ICJ), which claimed compulsory jurisdiction. In direct response to the suit, the Reagan administration revoked US acceptance of the optional clause, first with regard to lawsuits on Central America, and later for any and all disputes.[ii]
The United States argued that the ICJ did not have jurisdiction. US lawyers advanced several reasons why the ICJ should not exercise jurisdiction (security issues are nonjusticiable; Nicaragua never properly accepted the optional clause; and others). US Ambassador to the United Nations Jeanne Kirkpatrick dismissing the court as a "semi-legal, semi-juridical, semi-political body, which nations sometimes accept and sometimes don't. The United States was the only member to argue against the validity of the judgment of the court, calling it a decision that the ICJ had “neither the jurisdiction nor the competence to render.” Other members, who sided with the United States in opposing Nicaragua's claims, did not challenge the ICJ’s findings either as to its jurisdiction, or on the substantive merits of the case.
The U.S. delegation also filed an affirmative defense for its activities in Nicaragua under the theory of collective self-defense. The ICJ, however, rejected this argument and refused to review counter-complaints filed by both the United States and El Salvador regarding Nicaraguan violations of international law in the form of active Sandinista support for Salvadoran rebels.
The United States also refused to appear before the court during the final hearings on the merits and never recognized the ICJ rulings as binding.
The court ruled in Nicaragua's favor after the United States lost the argument that the ICJ lacked jurisdiction to hear the case, and refused to participate.[iii] The ICJ found that the United States had violated international law by supporting Contra guerrillas in their war against the Nicaraguan government and by mining Nicaragua's harbors. The court found in its legal verdict that the US was "in breach of its obligations under customary international law not to use force against another State," "not to intervene in its affairs," "not to violate its sovereignty," "not to interrupt peaceful maritime commerce," and "in breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January 1956." The ICJ awarded Nicaragua an estimated $17 billion in damages (ICJ, 1984).
There was extensive fallout from this case. The United States viewed the ICJ with active hostility and distrust for years afterwards and has never reinstated its acceptance of the optional clause. It blocked enforcement making attempts at obtaining compliance futile. After the civil war in Nicaragua came to a close and 1990 elections brought President Violeta Barrios de Chamorro to power, Nicaragua formally withdrew its ICJ case in 1991, thereby abandoning all claims to the judgment. It did so only under intense pressure from the Bush administration, which made future U.S. aid to Nicaragua contingent on renunciation of the case (Friel and Falk, 2004).
In this case the United States was clearly acting strategically to protect its preferences. And while one would be hard-pressed to agree that vetoing the Security Council’s resolution condemning the mining of Nicaragua’s ports was justifiable, who enforces such determinations? Certainly not the UN. As the example of the international outrage against the cocoa plantations’ use of child slaves demonstrates, the burden falls upon private actors to both make such determinations and press for their enforcement.
This case also clearly illustrates that balance of power remains the status quo, and trumps the authority of any international organization. Once the ICJ awarded Nicaragua $17 billion in damages, Nicaragua abandoned the case for fear of a loss of aid from the U.S. From an IL perspective, justice was served. From an IR perspective, Nicaragua never had a chance. Small countries may get their day in court, and they may even win. But individual countries are left to enforce the court’s decision. Until state preferences represent the growing international interests of their respective domestic populations, more of the same can be expected.

Avena and Other Mexican Nationals (Mexico v. United States of America)
On January 9, 2003 Mexico brought a case against the United States in the International Court of Justice (ICJ) in an attempt to stay the execution of fifty-one Mexican nationals detained in U.S. jails and sentenced to death. The United States argued state sovereignty entitled it to independently try cases in U.S. courts outside international interference. The ICJ ruled in favor of Mexico.
This was the third case brought against the U.S. within a five-year period over alleged violations of the 1963 Vienna Convention in connection with the death penalty administered in the United States. On April 3, 1998, Paraguay brought a case before the ICJ to prevent the execution of Angel Francisco Breard, who was on death row in Virginia. On April 9, the ICJ ruled unanimously that the United States should take all measures to prevent Breard's execution. Yet, on April 14, he was executed as scheduled. The case was discontinued at Paraguay's request on November 10, 1998. In another case Germany filed a complaint against the United States over two German nationals convicted of armed robbery and murder in Arizona. The very next day, on March 3, 1999, the ICJ ruled unanimously that the U.S. should take all measures to prevent Walter LaGrand's execution; but the death sentence was carried out nonetheless. The Court's decision of June 27, 2001 found that the United States had violated the 1963. Under Article 59 of the ICJ Statute, decisions of the ICJ are binding only on the parties to the specific case. Hence, the 2001 judgment applies only to in cases of severe penalties imposed by U.S. courts upon German nationals. As of the present day, the United States continues to impose the death penalty on foreign nationals and currently holds over 100 foreign nationals on death row.
The death sentence cases point to stubborn American unilateralism. But they also point to the reality that state sovereignty has triumphed. Rather than reinvent the international wheel, this paper suggests that the chances of changing the international system are far more slim than are the chances of altering state preferences via pressure from private actors. The more effective course of action would be to embrace state sovereignty and shift the focus away from external pressure on states to change from the inside out.

Yugoslavia v. United States of America (NATO)
In the case of Yugoslavia vs. the United States, United Kingdom, Belgium, Canada, France, Germany, Italy, Greece, Netherlands, and Portugal, Yugoslavia alleged that the NATO bombing of Yugoslavia in the spring of 1999 violated the Genocide Convention, by indiscriminately targeting civilians. NATO was also charged with illegally funding, arming, and training the terrorist Kosovo Liberation Army. Yugoslavia demanded NATO to cease and desist all military actions against Yugoslavia and it sought damages. The ICJ ruled in favor of NATO claiming its actions did not constitute genocide. Furthermore, the United States claimed the ICJ had no jurisdiction against it as it had exempted itself from Article IX of the Geneva Convention. Once again, this case demonstrates extreme American unilateralism and the impotenece of the UN in general: specifically the ICJ.
As we turn our attention to effectiveness and legitimacy, from a legitimacy standpoint, it can be argued that the ICJ meets all three of Bernstein’s criteria: it is more-or-less rooted in democratic politics (if you happen to be a state that can afford to litigate); it’s definitely a legal organization; and there is broad international recognition of its authority (although Yugoslavia most certainly wouldn’t agree that the ICJ wields that authority fairly). Nevertheless, as we witnessed with the WTO, the authority is limited by the preferences of the rich developed states. The same basic problem exists with the ICJ as with the WTO; there is a complete lack of an effective means to enforce its rulings. When the most powerful countries don’t like the ICJ’s ruling, they simply ignore it.
From an IL perspective, the ICJ is almost an effective legal means to settle disputes. The disputing parties are able to delegate authority to judges that they all agree on, and ICJ rulings are precise. But again, from an IR perspective, the question has to be asked: Where is the obligation? Who enforces it? All three cases discussed above reveal that in reality it’s the individual members that decide whether or not to comply. This may be a purely rationalist (calculated) decision based on a state’s predetermined interests, or it may be a constructivist (socialized) decision based on a learning process (as may have been the decision whether to file the case with the ICJ in the first place). But in none of the cases is the ICJ instrumental in enforcing its decision.
Overall effectiveness as measured by utility (essentially how well something works) is problematic as well. In all three cases, the ICJ failed to stem American unilateralism, exhibited no legal or economic effectiveness, and while the ICJ might have provided a level institutional playing field, it created no political change in the U.S. policy. The ICJ was not effective in any of the three cases discussed above.
Additionally, these three cases address the lack of any effective counter-measures to prevent the continued unilateral domination of one state over all others. The United States prevailed, not because it won or lost the case, but because it continually places itself above the law, as these cases demonstrate. The case of Nicaragua further demonstrates America’s use of political, economic and/or military means to force other sovereign states to enact domestic reforms largely against their cultural and legal traditions.
All three cases in this section scream with blatant American unilateralism, which has only grown more blatant during the George W. Bush administration. Seema Gahlaut and Gary K. Bertsch have criticized that America’s actions in a unipolar world, particularly after 9/11, are counterproductive to its most strategically sensible option: build new alliances and strengthen existing ones. Instead, the Bush administration has actively undermined nearly all of its international agreements to pursue a unilateral course. The domestic private actors are to blame. This unilateralism is only allowed insofar as private actors (businesses, NGOs, lobbying groups, etc…) express preferences that tolerate it.

The World Bank
We now consider effectiveness, legitimacy and American unilateralism within the context of the World Bank (WB). Similar to the Bush-backed secretariat of the UN and directors of WFP and UNICEF, Bush’s nomination for president of the World Bank (Paul Wolfowitz) got the job despite a very cold reception by Europe, Asia and Latin America. While it is traditional that an American heads the WB, this is supposed to be conditional upon a 50% majority approval of the executive boards. Paul Wolfowitz did not have this approval, not even close. According to former World Bank economist William Easterly, Mr. Wolfowitz “is the embodiment of Americans forcing other societies to adopt American values whether they want them or not” (Weiss, 2005).
Today, roughly one half of the world’s population survives on less than $2 per day; and roughly half of those live on less than $1 per day. Poverty has greatly increased under the policies of economic globalization prescribed by the World Bank, IMF and WTO. Per capita incomes in more than eighty countries are now lower than they were more than a decade ago. What’s worse, according to the United Nations Development Programme (UNDP), “financial volatility, job and income insecurity, crime, threats to health, food insecurity, loss of cultural diversity, community disintegration and environmental degradation have all increased.” These indictments suggest that beyond impotence, these international institutions are culpable. We will explore the World Bank’s culpability further in the follwing three case studies.

Human Rights Violations
Ethiopia
Michael Chossudovsky (2000) offers Ethiopia as just one example. In the most prosperous agricultural regions of Ethiopia, several million people have been forced into starvation. Chossudovsky insists that their situation is not due to grain shortages or war but to 'free markets' and 'bitter economic medicine' imposed by the severe austerity measures of structural adjustment. The World Bank insisted upon the removal of price controls and subsidies to farmers. Deregulation in shipping dramatically drove food prices up in remote areas. With social spending drastically reduced or eliminated under the Structural Adjustment Programme (SAP), the IMF and World Bank enabled US multinationals to take advantage of the Ethiopian misfortune by providing genetically modified seed (banned by the European Union) as “aid.” The US agribusiness conglomerates in turn appropriated Ethiopia’s seed varieties. After genetically modifying and patenting them, the US conglomerates sold them back to Ethiopia. Furthermore, development loans fueled military spending. Since Washington supported both Eritrea and Ethiopia in the conflict, US arms sales skyrocketed. The profits were being split between the arms manufacturers and the agribusiness conglomerates. While Ethiopia was forced to export its grain production- including its emergency supply- to meet its debt servicing obligations, the people suffered unimaginably.

Singrauli, India
Another example of the World Bank's culpability can be seen in its Involuntary Resettlement Policy which violates a number of international human rights conventions. World Bank loans to Singrauli, India transformed a once rich ecosystem into an industrial wasteland littered with coal mines, power plants and transmission lines. More than 300,000 people have been displaced, many of them repeatedly, to accommodate “development” that again, only serves the interests of US stockholders and corrupt local politicians.

Environmental Degradation
Chad-Cameroon
In our third example, Korinna Horta (2000) argues that the World Bank sponsored Oil & Pipeline Project will benefit Exxon Mobile and Chevron, but will also create extensive damage to the environment and endanger the livelihoods of the poor in Chad and Cameroon. Through pollution, deforestation, and the elimination of wildlife, the oil fields and pipeline will line the pockets of corporate stockholders and corrupt African politicians, but will harm everyone else involved. Yet the World Bank eagerly approved the deal.
The most effective way to change such situations is to put pressure on the multinationals themselves to change their practices. This has proven effective in the past, and enjoys a much stronger potential for success than NGO representatives dressed as turtles. This is primarily because international organizations listen to states, not people. While this may be changing at a turtle’s pace with developments such as the WTO accepting amicus briefs, we are a long way from direct representation. The more advantageous use of resources would be to pressure the multinationals directly with threats of boycotts etc… This will in turn impact state preferences, which will then be strategically represented by the state.
As we turn our discussion to effectiveness and legitimacy we find the World bank to be a somewhat different animal than the ICJ or the WTO. From a legitimacy standpoint, the World Bank is not a democratic organization; it’s definitely not a legal organization; and while there is broad international recognition of its authority, that is only because of its ability to approve and deny loans. This authority is not evenly thinly disguised; it comes directly from the rich, developed states. This creates a slightly different problem than the enforcement problem we see with the WTO or the ICJ. With the World Bank we have an oversight problem: How do we prevent the World Bank from sponsoring projects that destroy the environment and violate human rights conventions all in the name of corporate investors and stockholders? The answer is, of course, Constructive Sovereignty.
From an IL/IR perspective, the World Bank and its policies are regulated by power and profits. All three cases discussed above reveal that in reality the World Bank is largely controlled by the US and serves its interests.
Overall effectiveness as measured by utility (essentially how well something works) is really a matter of one’s perspective. The World Bank is extremely effective in what it does, but that is not something to be happy about. All three cases demonstrate how the World Bank promotes American unilateralism, at the expense of the poor, the displaced and the environment.
Additionally, these three cases address the lack of any effective counter-measures to prevent the continued unilateral financial domination of one state over all others. The World Bank is essentially the United States’ financial leverage over the developing world; the people of which have no power over their own resources. These cases further demonstrate America’s use of political, economic and/or military means to force other sovereign states to enact domestic reforms largely against their cultural and legal traditions.
In conclusion, this paper argues that the international organizations discussed ultimately lack effectiveness and legitimacy. However, the overall prognosis is not hopeless; the IL perspective is on the right track. This is especially so given a Liberal perspective and a Constructivist argument. If individuals and private organizations are indeed the primary actors, and the argument is primarily a normative one (i.e. What is the right thing to do?), then international institutions stand a fair chance of becoming politically effective, legally binding, effective, efficient and legitimate. They will be politically effective because the domestic preferences represented by their respective state governments will apply pressure for international compliance to do what is “right.” International law will become more legally binding the more embedded it is in domestic courts, which will make it more effective because it will be more enforceable. This in turn will make it more legitimate in the eyes of the international community. Legitimacy will make it more efficient because member states will be more willing to commit without imposing a multitude of predetermined state interests as conditions for cooperation (e.g. the U.S. paying its UN dues). Legitimacy should also make it more feasible for international law to be more precise, as it won’t have to be watered down and vague to entice agreement. Finally, legitimacy will also make it easier for international courts to have more independence from the control of state government. One good example of an international organization following this track is the EC legal system where domestic courts can impose international rulings on their own governments. The big problem, of course, is that the EC is only one good example. The vast majority of the world is not plugged in to the international community in an enforceable way. The most fitting example is the United States, and its egregious unilateralism.
If the preponderant IR rationalist argument prevails, then individual states will continue to act strategically according to their own predetermined interests. Even within an Institutionalist framework, international institutions can only mediate among unitary actors. They may decrease transaction costs, increase information, reduce uncertainty, facilitate communication, promote learning, and legitimize or delegitimize different kinds of behavior. But if international law is not enforceable, then individual states will continue to act in accordance with the balance of power, not in accordance with what is right. This leaves the members of the international community at the mercy of the strong; essentially holding the hand that the international balance of power has dealt them.
This paper proposes a third perspective based on Constructive Sovereignty. Individual states must have an incentive to agree to international norms, and they must also possess the political and domestic will to embedd those norms so as to give them legitimacy and make them enforceable. The most obvious way to do this is through privitization of the many obstacles that are currently constraining broader international cooperation. As the IL approach gains legitimacy among private organizations, corporations and actors, those private actors will voice their preferences and their respective states will represent those interests to the international community. As the private actors in each domestic population become more international, their preferences will also grow more international. It is only then that international norms will truly have legitimacy, and hence embeddedness, across state boundaries.
























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[1] See also Chanthavong, 2000.
[2] Although the decision in the Hormone-treated Beef Case makes one wonder.
[3] Isn’t that essentially the basis of our foreign policy?
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[ii] .The United States had already submitted to the compulsory jurisdiction of the ICJ pursuant to the Declaration of President Harry S Truman of August 14, 1946. However, in anticipation of the outcome of the case, in 1984 the United States deposited with the Secretary-General of the United Nations a notification stating that the United States was temporarily modifying the 1946 Declaration. The 1984 notification provided that the 1946 Declaration "shall not apply to disputes with any Central American State or arising out of or related to events in Central America," and that the notification would "take effect immediately and shall remain in force for two years." Academics have noted that the modification of the 1946 Declaration by the President acting alone raises serious constitutional problems and that some form of congressional concurrence was required. Also, when the Senate ratified President Harry S. Truman's declaration accepting compulsory jurisdiction before the court in 1946, it added a passage requiring six months advance notice before the United States could temporarily suspend the court's jurisdiction. The Senate intended to proscribe any suspension designed to avoid specific litigation- which is just what the State Department had in mind in the Nicaraguan case. By acting without the requisite six month's notice, the administration was violating a duly ratified treaty which constitutionally had the force of domestic law."

[iii] .On October 27, 1986 the United States vetoed a Security Council resolution requiring it comply with the ICJ ruling. The ICJ concluded that the United States was subject to the Court's jurisdiction. The court had ruled on 26 November by 11 votes to one that it had jurisdiction in the case on the basis of either Article 36 (i.e. compulsory jurisdiction) or the 1956 Treaty of Friendship, Commerce and Navigation between the United States and Nicaragua. The Charter provides that, in case of doubt, it is for the Court itself to decide whether it has jurisdiction, and that each member of the United Nations undertakes to comply with the decision of the Court.
The Court also ruled by unanimity that the present case was admissible. The United States then announced that it had "decided not to participate in further proceedings in this case." About a year after the Court's jurisdictional decision, the United States took the further, radical step of withdrawing its consent to the Court's compulsory jurisdiction, ending its previous 40 year legal commitment to binding international adjudication. The Declaration of acceptance of the general compulsory jurisdiction of the International Court of Justice terminated after a 6-month notice of termination delivered by the Secretary of State to the United Nations on October 7, 1985.