HILJ Online Symposium: Justifying Unfriendly Unilateralism

[Tim Meyer is an Assistant Professor of Law at the University of Georgia School of Law.]

This post is part of the HILJ Online Symposium: Volumes 54(2) & 55(1). Other posts in this series can be found in the related posts below.

Monica Hakimi’s Unfriendly Unilateralism is a very welcome addition to the growing body of literature on international lawmaking. Hakimi’s basic claim is that states often act unilaterally in ways that prompt changes to international law. She defines unilateral action as that which takes place outside the confines of the collective decision-making processes commonly associated with international lawmaking (p. 111). These unilateral actions can also work to the detriment of some states (hence, “unfriendly”). In the enforcement context, Hakimi argues, international law has long recognized a role for unfriendly unilateralism. Rules on countermeasures tell us when one state’s imposition of penalties on another state is excused. Hakimi’s article insightfully describes how the doctrinal focus on enforcement obscures and distorts the role that unilateralism can play in lawmaking. Hakimi makes two key points. First, descriptively, she argues that despite the focus on unilateralism’s role in relation to enforcement issues, states nevertheless use (often noncompliant) unilateral action to prompt changes in the law. Second, Hakimi argues that unilateral action can be good for international law. By overcoming the status quo bias that exists in collective decision-making procedures, unilateralism can allow the law to adapt to changed circumstances.

Hakimi’s descriptive claim is very persuasive. In developing her argument, Hakimi does a wonderful job of exposing one of the central tensions in international law: that states are both international law’s subjects and its authors. International lawyers, scholars, and states must be mindful that states often have mixed motives when acting. Some noncompliant actions are simple cheating and can be addressed as such. States intend other noncompliant acts to be juris-generative, though. Treating these acts as run-of-the-mine noncompliance risks, among other things, underestimating how invested states are in using international law as a tool to enhance cooperation.

Indeed, not only do states take unilateral action to prompt the law’s revision; they also build into international agreements devices that encourage unilateral action. Exit clauses, regime shifting, and soft law are common tools in states’ treaty-making practice that encourage renegotiation by permitting states to unilaterally depart from the legal status quo. As Hakimi very effectively documents, states’ resort to unilateralism—both when designing international agreements and after such agreements exist—can help circumvent the formal difficulties inherent in amending legal rules in a system in which all states must consent to their own legal obligations.

My biggest question about Unfriendly Unilateralism relates to its normative claim. I agree with Hakimi’s basic contention that unilateralism is desirable in some circumstances. I am uncertain, however, that Hakimi’s account tells us what those circumstances are. Hakimi offers several factors relevant to evaluating the desirability of unilateralism: 1) the relationship between unilateralism and collective decision-making procedures, 2) the severity of the unfriendliness, and 3) a normative appraisal of the substantive agenda being pursued, with an emphasis on whether the value in question is a “communal value” (pp.146-47).

I am not sure how these criteria would cash out in specific cases. Moreover, I worry that how the calculus comes out might depend on how one feels about the substantive agenda being advanced by the state acting unilaterally in each case. For example, Hakimi suggests that where unfriendly unilateralism assists the protection of communal values, such as the environment, human rights, or security, it is a good thing (p. 146). Despite the examples, though, I am not sure I know what a “communal interest” is. First, almost by definition, the subject matter of any international agreement is a matter of concern to the states entering the agreement. What, for example, distinguishes human rights as a communal value worth protecting through unilateralism from rules governing international trade and finance? Judging by the attention paid to such rules, they are certainly a matter of common concern. Indeed, trade liberalization has significantly contributed to alleviating poverty and improving poor living conditions in many parts of the world, while lax financial standards arguably played a role in contributing the recent financial crisis.

Second, who counts as a member of the relevant community? Human rights protections are “communal” in the sense that many people around the world care about them, but specific ideas about rights and how they should be protected can also be culturally relative. The idea of protecting environmental resources, rather than depleting them in the name of economic development, may also be shared by certain nations but not others. The idea of justifying unilateral action based on a particular community’s values could thus risk a kind of normative imperialism.

Even if we can identify a particular set of values justifying unilateral action, I am still unsure how Hakimi would evaluate the desirability of particular unilateral acts within those areas. The difficulty is that distributive tension as to the preferred legal rule will almost always exist in situations in which states are unable to agree through collective procedures on how to modify the law. As a normative matter, how does one decide who should benefit from unilateralism and who should lose from it? This difficulty is perhaps most obvious in the security context, where changes in legal rules can have major negative implications for some states. For example, the Reagan administration unilaterally interpreted the Anti-Ballistic Missile Treaty to permit its Strategic Defense Initiative, an interpretation widely thought to be implausible. Such unilateral (re)interpretation worked to the advantage of the United States and disadvantage of Russia. Does its desirability under the theory of unfriendly unilateralism depend merely on whether one is Russian or American? To take another example, Hakimi recounts several well-known instances of US unilateral action in support of marine conservation, both within the GATT/WTO and the International Whaling Commission (pp.128-130). Does the desirability of the American unilateralism in these situations depend on how one feels about the species being protected versus the economic costs of the restrictions? Or are there more general or objective criteria by which such unilateralism should be evaluated?

Finally, Hakimi suggests that unilateralism can be good when it circumvents procedural blocks to advancing the collective will. In so arguing, Hakimi is in good company. She joins a list of scholars including Andrew Guzman, Larry Helfer, Nico Krisch, and Joel Trachtman, among others, who have analyzed the difficulties created by international law’s consent requirement and the resulting pressure for nonconsensual forms of lawmaking. I too agree that the holdup power consent confers on noncooperative states can be problematic. But as I have recently argued, counter-majoritarian lawmaking procedures and the holdup power they create may also lubricate lawmaking. For example, rules on the adoption of a legal instrument by a diplomatic conference allow states with no intention of ratifying the instrument nevertheless to participate in, and thus potentially prevent, its adoption by the institution’s cooperation-minded members. In other words, the adoption procedure makes it so that states collectively must consent to each other’s legal obligations, not only consent individually to their own obligations through procedures such as ratification. This puzzling magnification of international law’s holdup power makes sense when one considers that states need a mechanism to make “vote-trading” agreements—by which I mean informal agreements to trade concessions across issues contained in separate instruments—enforceable. Absent such a mechanism, State A may be unwilling to make a concession today in exchange for concessions from State B tomorrow on a different issue. Adoption provides State A with some assurance that it can prevent State B and its allies from adopting a legal instrument tomorrow that does not reflect the initial multi-issue bargain.

More basically, counter-majoritarian lawmaking procedures may increase participation in legal regimes. States may be unwilling to join a legal regime if they fear the regime will ultimately subject them to rules to which they would not agree. Counter-majoritarian procedures thus have a benefit insofar as they allow for broader membership in a legal regime at the expense of the regime’s ability to make deep or evolving commitments. In some situations, trading breadth of membership for depth of commitments in this way may make sense because it increases overall welfare or vindicates values of universal participation. By undoing this benefit, regular unilateral action that circumvents collective decision-making can run the risk of causing legalized cooperation to unravel altogether.

Of course, many candidate criteria exist to evaluate when unilateralism is justified and when it is not. One might evaluate unilateralism, for example, in terms of whether a particular unilateral act (or the use of unilateral procedures such as withdrawal) from treaties increases overall welfare. Or one might ask whether unilateralism satisfies the Pareto principle of making no state worse off while making at least one state better off. Unilateralism might be justified if it maximizes the position of the least well-off state. How one feels about unilateralism in general or specific acts of unilateralism in particular likely depends on the criteria by which it is judged. These questions are thus really a call for clarification and perhaps future research building on the excellent insights in Unfriendly Unilateralism. Deciding how lawmaking procedures should balance different values—participation, welfare, legitimacy, efficiency, and equity, to name but a few—is one of the great debates of the twenty-first century. Unfriendly Unilateralism is an excellent starting point for that conversation.