HILJ Online Symposium: Monica Hakimi Responds to Tim Meyer

[Monica Hakimi is the Associate Dean for Academic Programming and a Professor of Law at the University of Michigan Law School.]

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.

Thanks to Opinio Juris for hosting this symposium and to Tim for his very thoughtful comments. My article examines conduct that I call “unfriendly unilateralism”—where one state decides, outside any structured international process, to act unfriendly toward another. The economic measures that the United States and Europe are now taking against Russia in response to the Crimea situation are good examples. Likewise, before the U.N. Security Council authorized states to take a broad range of measures against Iran for its nuclear program, several states acted unilaterally.

Such conduct is, in my view, undervalued in the legal literature. Most international lawyers either dismiss unfriendly unilateralism as power politics that fall outside the law, or analyze it as a tool for enforcing the law—that is, for pressuring the target state to comply with existing law. In either event, the conduct is widely understood to be regretful or ineffective. To the extent that the conduct is inconsistent with the acting state’s own obligations, it also is unlawful—unless, of course, the acting state is enforcing the law after having been injured by the target’s breach.

My article’s descriptive claim is that unfriendly unilateralism can also play an important role in lawmaking. States variously use unfriendly unilateralism to: (1) preserve legal norms, (2) strengthen legal regimes by instigating stricter substantive standards or more rigorous oversight mechanisms, (3) reconcile competing objectives from different regimes, and (4) recalibrate regimes for changed circumstances. Of course, the idea that unilateral conduct can be juris-generative is not new; unilateral claims and counterclaims are a recognized part of the customary legal process. But when unilateralism is coupled with unfriendliness—that is, when the conduct is targeted at a specific state—international lawyers instinctively put on their enforcement lenses. They focus on how the conduct enforces existing law, not on how it helps make new law. For instance, several scholars have analyzed the unfriendly unilateralism against Iran as enforcement. Yet the acting states were using unfriendly unilateralism to support a broad and coordinated lawmaking effort. Their principal goal was to pressure Iran into accepting stricter substantive standards on nonproliferation and more rigorous oversight mechanisms. As the Iran example also demonstrates, unfriendly unilateralism is a fairly unique mode of lawmaking. Unlike in the ordinary customary process, a state that uses unfriendly unilateralism usually does not model the new norm. Rather, its unfriendly (and sometimes unlawful) conduct pressures the target into accepting or helping to develop an entirely different norm. This makes unfriendly unilateralism a potentially versatile and potent lawmaking tool.

It also makes many international lawyers uncomfortable. To many, unfriendly unilateralism looks more like the nastiness of power politics than like the order and stability of the rule of law. My normative claim is that using unfriendly unilateralism in lawmaking can, all things considered, be good for international law. And further, it can be good for international law even if the conduct itself is unlawful. To be clear, I do not take a position on whether using unfriendly unilateralism in any particular case is desirable. (More on this below.) My claim is pitched at a higher level of generality: unfriendly unilateralism can benefit the international legal order by helping to overcome pockets of intransigence and catalyze or support collective decisions. In other words, it can help compensate for shortcomings in the legal order’s formal lawmaking processes—and thereby enable the law to respond to current challenges, stay relevant, and adapt to change.

Tim seems to agree with all of this. Which means that I have largely accomplished what I set out to do. My article expressly leaves open the follow-up question that is Tim’s focus: when is unfriendly unilateralism desirable? When can we expect unfriendly unilateralism to help deepen interstate cooperation, bolster international law, or achieve shared policy goals—rather than destabilize interstate relations or undercut substantive policy objectives? I don’t have or claim to have a good answer here. In fact, I think the answer depends heavily on the specific circumstances of a case. Still, I end my piece with some preliminary thoughts for guiding the analysis. I say that one might consider: (1) whether the conduct is consistent with the acting state’s own obligations, (2) whether the conduct has some nexus to a collective decision, (3) the severity of the conduct, and (4) the substantive interests at stake. Tim is skeptical. He asks how my factors would cash out in particular cases, whether they are too subjective, and whether other factors, like the conduct’s welfare or distributional effects, should drive the analysis. These are all fair questions, and they are precisely the kinds of questions that I hoped readers would ask. Rather than dismiss unfriendly unilateralism as just power politics or treat it as an imperfect, often ineffective enforcement tool, analysts should consider its lawmaking potential. And they should keep in mind that, in some cases, tolerating unfriendly unilateralism in lawmaking is preferable to the alternative—a legal order that is idle and incapable of making or giving effect to collective decisions.