Eyal Benvenisti’s World Is Already Here (Even in the United States)

by Peter Spiro

Eyal Benvenisti’s excellent piece sets the stage for a substantial research agenda (hence the need for a major project to pursue its many possible applications). Benvenisti considers aspects of his trusteeship norm largely in the realm of international tribunals. There is also the possibility of direct internalization. I read the piece through the optic of US decisionmaking.

My first thought was, in effect, it’s not going to happen here. Take Benvenisti’s procedural duty to account for the interests of foreign stakeholders. That could readily map out in a cognate to the environmental impact statement, the longstanding requirement that the federal government analyze the environmental consequences of a broad range of government projects. The EIS process does not impose substantive constraints; it simply requires that environmental implications be brought to the table. By way of implementing the Benvenisti duty, the federal government could be required to undertake international impact statements for certain types of activity that are likely to have nontrivial impacts outside of the United States.

On the legislative side, one might imagine the emergence of practice under which Congress would invite foreign stakeholder testimony at legislative hearings, in something of the same way that committees will typically divvy up witness choices between the two parties. Committee reports could be required to assess the foreign impact of legislation in the the way that, for instance, Senate Standing Rules require reports to include cost estimates.

Neither kind of innovation sounds very plausible, though. The executive branch is loath to adopt extra bureaucratic requirements (which, even if only procedural, can result in significant administrative costs, direct and indirect). The locus of likely impacts would further complicate the adoption of some sort of IIS. Many executive branch activities with likely international impacts would be lodged in the Departments of State, Homeland Security, and Defense, activity that has historically been sheltered from such administrative requirements as the EIS and the Administrative Procedure Act. There is something cognitively dissonant about the concept of an International Impact Statement for, say, sanctions on Iran or the withdrawal of troops from Afghanistan.

It’s even less likely that Congress would adopt a practice under which foreign stakeholder interests became a routine part of legislative business. The costs wouldn’t be a hurdle so much as the culture is, one ostensibly resistant to foreign views. It’s part of sovereigntist dogma that the legislature represents the American people and only the American people, and that everything else is alien in an almost literal sense of the term.

So on first inspection the Benvenisti approach would not be very promisingly pressed in the US.

But scratching the surface only lightly, one can see that US decisionmaking already accounts for the interests of foreign stakeholders. Three agents — foreign corporations, foreign governments, and NGOs — do a pretty good job at making sure that foreign voices are heard in US decisionmaking.

Foreign corporations press their interests through lobbyists, an effective channel to the ears of both executive and legislative branch decisionmakers. Benvenisti recognizes the clout of foreign corporations, but only in the North/South context (at pages 303-04). That may present a possible pathology of trusteeship (multinationals dominating weak developing-country governments). But among developed states, it may be a part of the answer. Of course, even against the North/North landscape, lobbying is subject to all the ordinary pathologies of domestic governance, which Benvenisti acknowledges — lobbyists aren’t generally welcomed as the part of any answer. But their use is a way that foreign stakeholders can press their voices effectively within the imperfect confines of domestic governance.

Ditto for foreign governments, which also engage lobbyists in Washington. Foreign governments have always been a mouthpiece for foreign stakeholder interests. Historically it was through diplomatic channels only. Today, foreign governments work various channels on US policy. In addition to hiring lobbyists, they interact directly with decisionmakers at all levels. Where their interests are at stake, they try to advance them as political actors.

Finally, NGOs will take up other interests. On any issue implicating significant individual rights, it will almost always be the case that some NGO will adopt the cause — it’s a feature of the non-governmental ecosystem that empty niches get filled. Where such major NGOs as Human Rights Watch or NRDC pick up the ball, foreign stakeholders can be assured that their interests will be taken seriously in Washington.

There are issues of representativity in each context (not the least with NGOs). But that will always be the case in any context requiring agency relationships. Distortions tend to be self-correcting, as nonstate actors police state actors and each other. Some issues will have more traction with NGOs than others, but that typically reflects a judgment as to the probability of ultimate success (a problem corporations and foreign governments don’t have, since they are free to spend their money on losing causes).

There may also be questions about why these voices are being heard. When it comes to lobbyists material incentives are in play (though not directly, since foreign entities are barred from campaign contributions). With NGOs there may be votes at stakes from sympathetic domestic constituencies (a kind of proxy representation), though the kind of norms that Benvenisti articulates may also be in play, giving rise to a sense of proto-obligation among decisionmakers to consider foreign interests.

In any case, significant foreign constituencies are one way or another having their voices heard in domestic US institutions.

The Benvenisti program thus looks conservative rather than revolutionary. In Benvenisti’s apartment building of states, how could they not already be hearing each other, in the lobby and the hallways at least, if not through the walls? Of course, recognition is a major function of the development of international law, nudging holdouts and correcting anomalies, facilitating institutionalization. So the piece is a major contribution to the extent it systematizes and justifies developments that are taking hold on the ground in any event.

http://opiniojuris.org/2013/07/25/eyal-benvenistis-world-is-already-here-even-in-the-united-states/

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