HILJ Symposium: Natalie Lockwood Responds to William Burke-White

Natalie Lockwood holds a J.D. from Harvard Law School, 2011; and an A.B. from Princeton University, 2006.

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.

First of all, let me begin by thanking Professor Burke-White for his careful reading and thoughtful response. I’m honored that someone whose own work I admire so much has taken the time and effort to engage with my article. I am also grateful to Opinio Juris and the Harvard International Law Journal for organizing this symposium.

My article, “International Vote Buying,” examines a feature of international relations that has not previously received much attention in legal scholarship—namely, the practice whereby states pay one another (with money or other concessions) to influence voting outcomes in international institutions such as the UN. For example:

• In 2003, the United States allegedly pledged millions of dollars to Angola in connection with a UN Security Council vote that would have paved the way for the invasion of Iraq.
• In 2008, Iran allegedly paid $200,000 to the Solomon Islands in exchange for future votes against Israel in the UN General Assembly.
• In December 2009, Russia allegedly offered the island state of Nauru $50 million in exchange for its extending diplomatic recognition to Abkhazia and South Ossetia, the two separatist provinces in Georgia.

While vote buying is near-universally banned in municipal legal systems as bribery or election fraud, there is no positive norm of international law that prohibits the practice among states. This incongruity raises some interesting questions: Is vote buying as problematic among states as it is among citizens domestically? Do the rationales against domestic vote buying retain any force at the international level? Should international law, like municipal law, seek to regulate or prohibit international vote buying?

Prof. Burke-White begins his response by answering the last question in the negative: a legal prohibition against international vote buying would be inappropriate, he says, because “there is no clear definition nor would any agreed upon definition be effective in separating vote-buying from diplomacy.”

I should mention immediately that the article doesn’t argue against his conclusion. The article offers a set of normative considerations for assessing international vote buying, but does not contend that particular, concrete forms of vote buying are problematic or not. Even less does it advocate for or against a legal prohibition.

Where I might disagree with Prof. Burke-White, however, is with respect to his premise that it is impossible to separate (problematic) vote buying from (unproblematic) diplomacy. Surely vote buying and diplomacy share many similar features, and in the middle they may well overlap. But to say that two things exist along the same spectrum is not to say that they are the same, or that it is impossible to tell the difference between them. Just as domestic law draws distinctions between illicit bribery and lawful campaign contributions, for example, we should be able—with sufficient effort and debate—to draw distinctions between the most problematic forms of vote buying (if indeed they are problematic) and ordinary diplomatic negotiation. Indeed, the article begins from the observation that states make all sorts of tradeoffs with one another all of the time, and that most of these are accepted and acceptable. The article’s task, then, is to inquire whether and why some such tradeoffs might be problematic when made between certain parties in certain circumstances.

Prof. Burke-White argues that, even if such distinctions were possible, “it is unlikely to be worth the international political effort and capital to try to draft a treaty that carefully distinguishes” between problematic vote buying and ordinary diplomacy. On this point, I agree—a detailed multilateral treaty is ill suited to that purpose. But a treaty isn’t the only possible approach to the issue, and even a treaty need not necessarily make fine-grained distinctions: it could instead defer that task to a court or tribunal. For instance, VCLT Article 52 states broadly that a treaty is “void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.” Surely there are no careful distinctions in that provision; it isn’t wholly implausible that a similar sort of provision might be used to address the most problematic forms of vote buying.

To reiterate, my purpose here is not to advocate a prohibition. It is only to question whether the difficulties of line drawing are, in themselves, sufficient reason to oppose such a prohibition.
The second part of Prof. Burke-White’s response addresses some of the broader themes and implications of my article. As Prof. Burke-White rightly notes, one of the article’s major purposes is to use vote buying as a prism through which to reassess our assumptions about international decisionmaking and power dynamics among states.

In this vein, Prof. Burke-White highlights the fact that “power in the international system is quickly becoming more a question of economic than military might” and suggests that “[o]ne way of framing international vote buying is as the most obvious—and perhaps egregious—means of exercising economic power.” He then asks rhetorically whether we should “treat the direct buying of votes the same way we treat the use of force to compel a vote.”

The suggestion that vote buying is an exercise of “economic power” analogous to the use of military force is interesting, but I am not sure that I share Prof. Burke-White’s intuitions here. To my mind, the economic analogue to military force would be economic sanctions, where the primary ‘wrong’ occurs on a bilateral basis in the direct coercion of one state by another. What makes vote buying more complicated is precisely that it isn’t coercive; it takes place between two consenting parties, and the ‘wrong’ (if it exists) is suffered by one or more third parties—perhaps by the community of states at large. The crucial feature of vote buying is therefore not its use of economic (as opposed to military) power, but its use of non-coercive power in arguably problematic ways. That is not to suggest that the economic aspects of vote buying are unimportant or that we need not recognize the growing role of economic power in international relations. What makes the issue of vote buying interesting, though, is that it highlights a number of ways in which even non-coercive influence—which is usually considered quite benign—can raise arguably-serious problems for the international system.