HILJ Symposium: A Response to “International Vote Buying”

by William Burke-White

[William W. Burke-White is Deputy Dean and Professor of Law at University of Pennsylvania Law School.]

This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts from this series can be found in the related posts below.

Natalie Lockwood’s article, “International Vote Buying,” recently published in the Harvard International Law Journal, makes an important contribution to a set of understudied questions around the legality and appropriateness of international vote-buying. Lockwood quickly admits that international law itself says little about the legality of such vote buying and, therefore, examines the question through an analogy with the legal rules governing vote buying in a variety of domestic contexts. She recognizes, however, that the analogy, while informative, is imperfect. There are significant differences between nature of domestic polities in which such vote buying is generally subject to legal prohibition and the nature of the international community. Yet, the analogy helps inform our thinking about whether vote buying should be prohibited at the international law.

In this brief response, I seek to do two things. First, I want to question both the effectiveness and appropriateness of a legal prohibition on vote-buying. Second, I want to suggest that more significant contribution of Lockwood’s article goes far beyond vote-buying and helps refocus debate on the changing nature of power and influence in the international system.

Let me begin my response by questioning the viability of any legal prohibition on vote buying for a simple yet practical reason—there is no clear definition nor would any agreed upon definition be effective in separating vote-buying from diplomacy. Lockwood presents a typology of vote buying at the international level. Some examples in that typology are obvious and perhaps most problematic to our moral sensibilities, e.g. when one state hands a large wad of cash (or foreign assistance) to another on the sidelines of a diplomatic meeting in exchange for a supporting vote in that meeting. While such examples are shocking, they are, it would appear, relatively rare. Certainly, a legal rule could be developed prohibiting such direct payoffs. But the reality of diplomacy is that states always engage in a range of horse-trading, nudging, and either soft or hard promises of support on one issue in exchange for support on another. At times, such negotiations may involve promises—hard or soft—for investments, assistance, or other pecuniary support. At other times, they may involve policy tradeoffs where states may make a policy sacrifice on one issue so as to garner support on another issue about which they care more. That is, whether we like it or not, diplomacy.

Setting aside our moral concerns about vote-buying there is good reason to think that diplomatic horse-trading is necessary for the effective functioning of the international system. Lockwood recognizes this in her discussion of efficiency, but I think the point may carry more significance than she suggests. In almost any diplomatic negotiation – whether the drafting of a treaty or a vote at the Security Council—promises, trades, and side-deals are necessary to reach agreement. If, in every circumstance, a state simply voted its own absolute preferences, there would be far less agreement and, I would speculate, that the international legal system might simply grind to a halt. Very rarely is there such an alignment of interest at the international level that a meaningful treaty can be agreed upon or a tough Security Council resolution passed. It is often only because states make trades and tradeoffs that agreement is ultimately reached, that a treaty is given substance or a resolution provides real bite.

Why not then simply ban the more egregious forms of vote-buying (e.g., the hand off of a wad of chase) and allow the negotiation and horse trading inherent in diplomacy to continue? Here is where the definitional problem and the distinction between what might be called bribery and what might be an example of diplomacy becomes acute (note that coercion and bribery of a state’s representative (rather than payoffs to the state itself) are already prohibited. See Vienna Convention on the Law of Treaties, arts. 50, 51). Certainly, a treaty could be drafted prohibiting actual cash payoffs. Such a treaty, however, would seem to serve little purpose given that these types of direct payoff examples are rare and likely would not be stopped even if a legal prohibition were in place. Alternatively, a treaty or jus cogens norm could prohibit formal agreements (e.g. other treaties) in which explicit promises of a vote are made. Such a rule would prevent the enforcement of such bargains, but again the vast majority of so called vote buying is far more subtle and would likely not come within the scope of such a prohibition. Ultimately, differentiation between what might seem morally reprehensible vote-buying and day-to-day diplomacy is not so easy. What about the foreign aid by one state after a helpful vote by another at the Security Council? What about the investment treaty that is ratified when a state is thought of as a useful ally or emerging partner? Should those be banned as well? Certainly a treaty could be drafted that seeks to differentiate, but I fear it would do little good and might in fact result in a chilling effect on the kinds of diplomatic exchange that make international cooperation possible.

Those concerns lead me to suggest that an outright prohibition on vote buying will either be ineffective or, if it is effective, might well cause more harm than good. At the very least, it is unlikely to be worth the international political effort and capital to try to draft a treaty that carefully distinguishes the kinds of vote buying we, perhaps, find most problematic.

But, Lockwood’s article actually does far more than just open these problematic and perhaps intractable questions about international vote buying. It seems to me that Lockwood’s most important contribution has less to do with the international law of vote buying than with the nature of the international community and changing structure of the international legal system. By reexamining the differences between domestic polities and the international community, Lockwood reframes and reasserts long-standing distinctions that ought to frame our thinking about the international community and international law today. Through the prism of vote-buying, she inquires into the nature of the international community itself, the meaning of sovereign equality, and the role of power in international law and international relations. It is her reexamination of those questions that may give this paper lasting significance.

Let me touch on one critical aspect of the structure of the international community and the nature of power today that perhaps underlies our concerns and sensibilities with respect to international vote buying. Most scholars of international law and international relations would readily admit that a state’s power has direct bearing on its ability to achieve its legal objectives, notwithstanding the principle of sovereign equality. While occasionally band-wagonning by less powerful states in international legal institutions will block the powerful, power matters in the international law. Traditionally such power has been defined in terms of military might. And while international law prohibits the threat or use of force to coerce votes in an international legal context, (UN Charter, Art. 2(4); Vienna Convention on the Law of Treaties, art. 52.) power and power differentials continue to inform diplomatic bargaining, treaty negotiation, and the substance of international legal rules.

Two things, however, are changing. First, power in the international system is quickly becoming more a question of economic than military might. Second, the United States’ relative economic advantage vis-à-vis other states is declining. While the United States may have had relatively little concern about the influence of power in the international system when we had a relative monopoly on that power, we are far more concerned with the role of economic power when our monopoly on that power appears to be slipping.

One way of framing international vote buying is as the most obvious—and perhaps egregious—means of exercising economic power. To flip Thucididies’ old adage, the rich will do what they will, the poor will accept what they must. Should we then treat the direct buying of votes the same way we treat the use of force to compel a vote through an express legal prohibition? Both the UN Charter and the Vienna Convention on the Law of Treaties seek to prohibit the occurrence or at least the legal effect of such uses of military power. Perhaps we should and international vote buying would be the place to start. But just as the threat of the use force is difficult if not impossible to recognize and proscribe, the more subtle uses of economic power in diplomacy and international law will prove extremely difficult to regulate.

Perhaps, instead, it is simply time to recognize that economic might has taken its place firmly beside military might in both diplomacy and international law. As US scholars or diplomats, we may not like it when rising economic powers use their new-found influence to shape international outcomes and we may find it morally reprehensible when that is done in the most egregious ways. But, fundamentally, we must come to grips with the legal and diplomatic realities of economic power and influence in the international system. Beyond its important contributions to the more narrow question of vote buying, Lockwood’s article has helped focus our attention on both the forms of economic influence and that influence has changed and will continue to change the structure and operation of international law.

http://opiniojuris.org/2013/03/04/hilj-symposium-a-response-to-international-vote-buying/

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