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Multilateralism's Life Cycle

  • Harlan Grant Cohen (a1)
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1 Shear, Michael D., Trump Will Withdraw U.S. From Paris Climate Agreement , N.Y. Times (June 1, 2017).

2 Ashthana, Anushka, Quinn, Ben & Mason, Rowena, UK Votes to Leave EU After Dramatic Night Divides Nation , Guardian (June 24, 2016).

3 Woolf, Nicky, McCurry, Justin & Haas, Benjamin, Trump to Withdraw from Trans-Pacific Partnership on First Day in Office , Guardian (Nov. 22, 2016).

4 Mauldin, William, Trump's Big Gamble: Luring Countries into One-on-One Trade Deals , Wall St. J. (Jan. 27, 2017).

5 Onishi, Norimitsu, South Africa Reverses Withdrawal from International Criminal Court , N.Y. Times (Mar. 8, 2017).

6 Moore, Jina, Burundi Quits International Criminal Court , N.Y. Times (Oct. 27, 2017).

7 Philippines President Threatens to Quit ‘Stupid’ UN in Foul Mouthed Tirade Over War on Crime, Telegraph (Aug. 21, 2016).

8 China's Xi Pledges to Support Paris Climate Agreement, Al Jazeera (May 9, 2017).

9 Heydarian, Richard Javad, This Is How a Superpower Commits Suicide , Wash. Post (Nov. 13, 2017); Amur, Jennifer, 4 Things to Watch Now That the U.S. Has Withdrawn from TPP Trade Deal , Wash. Post (Jan. 23, 2017).

10 Rich, Motoko, The Trade Deal Trump Killed Is Back in Talks Without U.S. , N.Y. Times (July 14, 2017).

11 Donnan, Shawn, Long Live the TPP — Pacific Trade Pact Survives Largely Intact , Fin. Times (Nov. 13, 2017).

12 See Alvarez, José E. & Kingsbury, Benedict, AJIL at 111 , 111 AJIL 1, 23 (2017).

13 See infra text at notes 41–47.

14 See Wuerth, Ingrid, International Law in the Post-Human Rights Era , 96 Tex. L. Rev. 279 (2017).

15 See, e.g., de Búrca, Gráinne, Human Right Experimentalism , 111 AJIL 277, 303–04 (2017); Saunders, Pammela Quinn, The Integrated Enforcement of Human Rights , 45 N.Y.U. J. Int'l L. & Pol. 97 (2012).

16 None of this is meant to suggest that multilateralism's success is the cause of any current backlashes. Each of these multilateral regimes has its own complex narrative, and the crises these regimes face are specific to them. In any given case, the factors noted here may not be the dominant sources of regime discontent. Instead, this essay highlights a series of structural effects of multilateralism's success that can undermine a multilateral regime.

17 Whether multilateralism actually “caused” multipolarity is impossible to say. It is fair to say that the wider dispersion or wealth and power it represents was among the desired effects of post-World War II multilateralism and that multipolarity might thus be seen as a sign of multilateralism's success.

18 Trade, at What Price?, Economist (Apr. 2, 2016).

19 Sanger, David E. & Haberman, Maggie, Donald Trump Sets Conditions for Defending NATO Allies Against Attack , N.Y. Times (July 20, 2016).

20 See, e.g., Zasloff, Jonathan, Choose The Best Answer: Organizing Climate Change Negotiation in the Obama Administration , 103 Nw. U. L. Rev. Colloquy 330, 333 (2009); Rajamani, Lavanya, The Climate Regime in Evolution: The Disagreements that Survive the Cancun Agreements , 5 Carbon & Climate L. Rev. 136, 138 (2011) (“Developing countries, in particular Brazil, South Africa, India and China (BASIC) are reluctant to accept global goals for emissions reductions in the absence of an acceptable and equitable burden sharing arrangement. In their view, without such an arrangement, these goals will translate into effective limits on their development.”); Catching Up with China, Economist (Oct. 10, 2015).

21 … or threaten the WTO more directly. See Gregory Shaffer, Manfred Elsig & Mark Pollack, The Slow Killing of the World Trade Organization, Huffington Post (Nov. 17, 2017), at https://www.huffingtonpost.com/entry/the-slow-killing-of-the-world-trade-organization_us_5a0ccd1de4b03fe7403f82df.

22 One obvious factor in both the continued survival of an institution and its ability to adapt in the face of the forces described here is the relative perceived value it continues to generate for its members. The more value it seems to produce, the stronger it will likely be.

23 See infra text at notes 91–96 (describing the potential for free-riding).

24 See Alter, Karen J. & Raustiala, Kal, The Rise of International Regime Complexity , Ann. Rev. L. & Soc. Sci., 10 (forthcoming 2018), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3085043.

25 See infra text at notes 60–88.

26 See, e.g., Posen, Barry R., Emerging Multipolarity: Why Should We Care? , 108 Current Hist. 347 (2009); Waltz, Kenneth, Theory of International Politics (1979).

27 See Ruggie, John Gerard, International Regimes, Transactions, and Change: Embedded Liberalism in the Postwar Economic Order , 36 Int'l Org. 379, 381–82 (1982) (distinguishing the trade liberalizing preferences of nineteenth century British Empire from the mercantilist views of the seventeenth century Dutch Empire).

28 See Wendt, Alexander, Anarchy Is What States Make of It: The Social Construction of Power Politics , 46 Int'l Org. 391 (1992).

29 See, e.g., Schumpeter, Joseph A., History of Economic Analysis (1954); Burns, Arthur F. & Mitchell, Wesley C., Measuring Business Cycles (1946). Some scholars have suggested that business cycles themselves (not analogies to them) may explain shifts internationally between cooperation and competition. See, e.g., Cassing, James, McKeown, Timothy J. & Ochs, Jack, The Political Economy of the Tariff Cycle , 80 Am. Pol. Sci. Rev. 843 (1986).

30 See, e.g., Marx, Karl, Preface to a Contribution to the Critique of Political Economy , reprinted in The Marx-Engels Reader 36 (Tucker, Robert C. ed., 2d ed. 1978) (outlining Marx's notion of “historical materialism”).

31 … with the notable exception of the immortal jellyfish, Turritopsis dohrnii.

32 See, e.g., Brummer, Chris, Minilateralism: How Trade Alliances, Soft Law and Financial Engineering are Redefining Economic Statecraft (2014).

33 In this sense, the idea that organizing principles like multilateralism may have life cycles might be at one with studies of international law as an autopoietic system, which suggest that the system will adapt to such forces by pushing towards different methods of organization when such seem necessary. See, e.g., D'Amato, Anthony, Groundwork for International Law , 108 AJIL 650 (2014); D'Amato, Anthony, International Law as an Autopoietic System , in Developments of International Law in Treaty Making 335 (Wolfrum, Rudiger & Roeben, Volcker eds., 2005); Teubner, Gunther, Law as an Autopoietic System (1993).

34 See infra text at notes 120–22.

35 See Dickinson, Elizabeth, New Order: How “the Multipolar World” Came to Be , For. Pol'y (Oct. 15, 2009) (cataloguing the various references to multipolarity).

36 Id.

37 U.S. National Intelligence Council, Global Trends 2025: A Transformed World, at vi (2008).

38 See, e.g., Perlez, Jane, Leader Asserts China's Growing Importance on Global Stage , N.Y. Times (Nov. 30, 2014) (quoting Xi saying, “The growing trend toward a multipolar world will not change”).

39 Kanter, James, Trump Threatens Europe's Stability, A Top Leader Warns , N.Y. Times (Jan. 31, 2017).

40 See, e.g., Burke-White, William, Power Shifts in International Law: Structural Realignment and Substantive Pluralism , 56 Harv. Int'l L.J. 1 (2015); Kupchan, Charles A., No One's World: The West, the Rising Rest, and the Coming Global Turn (2012); Kennedy, Paul, The Rise and Fall of the Great Powers (1987).

41 World Bank, Global Development Horizon 2011: Multipolarity: The New Global Economy (2011).

42 Id. at 1.

43 Id.

44 Id.

45 Id. at 3.

46 UN Conference on Trade and Development, Key Statistics and Trends in International Trade 2015, UN Doc. UNCTAD/DITC/TAB/2015/1 (2015).

47 Christine Lagarde, The Role of Emerging Markets in a New Global Partnership for Growth, Int'l Monetary Fund (Feb. 4, 2016), at https://www.imf.org/en/News/Articles/2015/09/28/04/53/sp020416#P26_3019.

48 Robertson, Winslow & Benabdallah, Lina, China Pledged to Invest $60 Billion in Africa. Here's What That Means , Wash. Post (Jan. 7, 2016).

49 Perlez, Jane, China Showers Myanmar With Attention, as Trump Looks Elsewhere , N.Y. Times (July 19, 2017).

50 China-Led AIIB Approves 13 New Members, Canada Joins, Reuters (Mar. 23, 2017).

51 Harris, Peter, How to Live in a Multipolar World , Nat'l Interest (Jan. 3, 2016).

52 Building Peace in West Africa, Afr. Renewal (April 2004).

53 Kupchan, supra note 40, at 3.

54 The current multipolarity is, of course, the product of many converging historical events, in which multilateral institutions have played but a role. While it would perhaps go too far to suggest that multilateralism “caused” the current multipolarity, it would be fair to say that multipolarity was a desired outcome and that multilateral institutions played a role in encouraging and fostering it.

55 See, e.g., UN Charter pmbl. (including as goals, to “promote social progress and better standards of life in larger freedom,” and “to maintain international peace and security”); International Covenant on Civil and Political Rights, pmbl., Dec. 16, 1966, 999 UNTS 171 (recognizing that “the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”).

56 See, e.g., Marrakesh Agreement Establishing the World Trade Organization, pmbl., Apr. 15, 1994, 1867 UNTS 154 (“Recognizing … that there is need … to ensure that developing countries, and especially the least developed among them, secure a share in the growth in international trade.”).

57 See, e.g., Waltz, Kenneth, The Stability of a Bipolar World , 93 Daedalus 881, 888 (1964).

58 See, e.g., Jervis, Robert, Unipolarity: A Structural Perspective , 61 World Pol. 188, 190 (2009); Ikenberry, G. John, Institutions, Strategic Restraint, and the Persistence of American Postwar Order , 23 Int'l Sec. 43 (1998–1999).

59 See, e.g., Moravcsik, Andrew, Europe: Rising Superpower in a Bipolar World , in Rising States, Rising Institutions: Challenges for Global Governance 151 (Alexandroff, Alan S. & Cooper, Andrew F. eds., 2010).

60 See, e.g., Jervis, supra note 58; Posen, supra note 26; Ikenberry, supra, note 58; Waltz, supra note 26.

61 See Burke-White, supra note 40.

62 See Koremenos, Barbara, Lipson, Charles & Snidal, Duncan, Rational Design of International Institutions , 55 Int'l Org. 761 (2001) (describing assumptions)

63 See Consolidated Versions of the Treaty on the European Union and the Treaty on the Functioning of the European Union, Oct. 26, 2012, 2012 (P 0001) 0390.

64 Appellate Body Report, European Communities—Conditions for the Granting of Tariff Preferences to Developing Countries, WTO Doc. WT/DS246/AB/R (adopted April 20, 2004).

65 Rachael Bale, How the Trans-Pacific Partnership Will—and Won't–Protect Wildlife, Nat'l Geo. (Nov. 5, 2015).

66 See, e.g., Yu, Peter K., The RCEP and Trans-Pacific Intellectual Property Norms , 50 Vand. J. Transnat'l L. 673, 738 (2017) (describing intellectual property obligations as part of the World Trade Organization's “single undertaking”); Wagner, Markus, Regulatory Space in International Trade Law and International Investment Law , 36 U. Pa. J. Int'l L. 1, 27 (2014) (describing how the Uruguay round's “single undertaking” impacted members’ regulatory space).

67 See, e.g., Guzman, Andrew, How International Law Works: A Rational Choice Theory (2007).

68 See Brewster, Rachel, The Limits of Reputation on Compliance , 1 Int'l Theory 323 (2009).

69 See id. at 328–30; see also Brewster, Rachel, Unpacking the State's Reputation , 50 Harv. Int'l L.J. 231, 244 (2009).

70 See Simmons, Beth A., Mobilizing for Human Rights: International Law in Domestic Politics 77 (2009).

71 Id. at 80.

72 See Ruggie, supra note 27, at 381 (describing view).

73 See Finnemore, Martha, Norms, Culture, and World Politics: Insights from Sociology's Institutionalism , 50 Int'l Org. 325 (1996).

74 Goodman, Ryan & Jinks, Derek, How to Influence States: Socialization and International Human Rights Law , 54 Duke L.J. 621 (2004).

75 Simmons, Beth Ann, Treaty Compliance and Violation , 13(1) Ann. Rev. Pol. Sci. 273, 286 (2010) (explaining that “compliance with certain international environmental agreements can be expensive for industry, at least initially. Where violators can be excluded from certain international ‘club goods,’ however, compliance rates can be improved.”).

76 Id.

77 See Vinjamuri, Leslie, The International Criminal Court and the Paradox of Authority , 79 L. & Contemp. Probs. 275 (2016). Simmons, Beth Ann and Danner, Allison, Credible Commitments and the International Criminal Court , 64 Int'l Org. 225 (2010).

78 While Beth Simmons and Allison Danner found that evidence that states ratified in order to make credible commitments to international justice, see Simmons & Danner, supra note 77, Terence Chapman and Stephen Chaudoin found that states most likely to ratify were those with the least reason to fear prosecution. Chapman, Terence L. & Chaudoin, Stephen, Ratification Patterns and the International Criminal Court , 57 Int'l Stud. Q. 400 (2012). Jay Goodliffe and Darren Hawkins found that the best predictor of Rome Statute ratifications was actually trade relations and security alliances. Goodliffe, Jay & Hawkins, Darren, A Funny Thing Happened on the Way to Rome: Explaining International Criminal Court Negotiations , 71 J. Pols. 977 (2009).

79 Bosco, David, Rough Justice: The International Criminal Court in a World of Power Politics 68 (2014).

80 Id. at 68–69.

81 Id. at 69. See also the chronological list of states parties to the Rome Statute, at https://asp.icc-cpi.int/en_menus/asp/states%20parties/Pages/states%20parties%20_%20chronological%20list.aspx.

82 See Simmons, supra note 70, at 90–92.

83 See, e.g., generally Maruyama, Warren, Preferential Trade Arrangements and the Erosion of the WTO's MFN Principle , 46 Stan. J. Int'l L. 177 (2010).

84 See, e.g., Lewis, Meredith Kolsky, The Prisoners’ Dilemma Posed by Free Trade Agreements: Can Open Access Provisions Provide an Escape? , 11 Chi. J. Int'l L. 631, 646, n. 55 (2011) (observing that it is “evident that a great many FTAs” do not cover “substantially all trade” as required by GATT Article XXIV and citing European and Japanese free trade agreements as examples).

85 See id. at 652–53.

86 Ryan Goodman & Derek Jinks, Socializing States: Promoting Human Rights Through International Law 2013 (describing “isomorphism” and “decoupling”).

87 Id.

88 See Max Du Plessis & Dire Tladi, The ICC's Immunity Debate – The Need for Finality, EJIL:Talk! (Aug. 11, 2017), at https://www.ejiltalk.org/the-iccs-immunity-debate-the-need-for-finality.

89 Effectiveness is a concept itself worthy of analysis. See, e.g., Shany, Yuval, Assessing the Effectiveness of International Courts: A Goal-Based Approach , 106 AJIL 225 (2012); Meyer, Timothy L., How Compliance Understates Effectiveness , 108 AJIL Unbound 93 (2014). I use “effectiveness” here simply to describe an institution's relative ability to achieve the goals (or at least the perceived goals) of the regime in which it is embedded.

90 Joanna Harrington, Venezuela Denounces American Convention on Human Rights, EJIL:Talk! (Sept. 12, 2012), at https://www.ejiltalk.org/category/international-tribunals/inter-american-commission-on-human-rights.

91 See Telegraph, supra note 7.

92 See Lewis, supra note 84, at 651, 652–53; Pauwelyn, Joost, Legal Avenues to ‘Multilateralizing Regionalism’: Beyond Article XXIV , in Multilateralizing Regionalism Challenges for the Global Trading System (Baldwin, Richard ed., 2009).

93 EU, Britain Agree to Seek Same WTO Quotas After Brexit: Sources, Reuters (Oct. 3, 2017).

94 See Murphy, John F., The United States and the Rule of Law in International Affairs 242–43 (2004); See also Alvarez, José E., The New Dispute Settlers: (Half) Truths and Consequences , 38 Tex. Int'l L.J. 405, 444 (2003) (observing that the United States would only join the ICC if it could be convinced that it “will not simply be able to free-ride on international institutions that apply only to others”).

95 China Refuses South China Sea Arbitration Award, Xinhua News (July 12, 2016); Jane Perlez, Tribunal Rejects Beijing's Claims in South China Sea, N.Y. Times, July 12, 2016, at Al.

96 See, e.g., Your Rules or Mine?, Economist (Nov. 13, 2014) (suggesting China may be free-riding on law of the sea rules rather than supporting them).

97 See, e.g., van Aaken, Anne, Behavioral International Law & Economics , 55 Harv. Int'l L.J. 421, 428 (2014); Heffetz, Ori & Frank, Robert, Preferences for Status: Evidence and Economic Implications (Johnson School Research Paper Series #05-09 July 2008); Fehr, E. & Schmidt, K.M., A Theory of Fairness, Competition, and Cooperation , 114 Q. J. Econ. 817 (1999); Myers, David, The Pursuit of Happiness 4344 (1992).

98 Fehr & Schmidt, supra note 97, at 826.

99 Id. at 821; Starmans, Christina, Sheskin, Mark & Bloom, Paul, The Science of Inequality: Why People Prefer Unequal Societies , Guardian (May 4, 2017).

100 Heffetz & Frank, supra note 97, at 13–14.

101 Id. at 26–27; van Aaken, supra note 97, at 427, 429.

102 Heffetz & Frank, supra note 97, at 26–27; Easterlin, Richard A., Morgan, Robson, Switek, Malgorzata & Wang, Fei, China's Life Satisfaction, 1990–2010 , 109 PNAS 9775 (June 19, 2012).

103 Cf. Berejekian, Jeffrey, The Gains Debate: Framing State Choice , 91 Am. Pol. Sci. Rev. 789 (1997).

104 See Rodrik, Dani, The Globalization Paradox: Democracy and the Future of the World Economy 110 (2011) (observing that “the world economy has achieved unprecedented levels of growth since World War II. Nothing in history comes even close.”).

105 Id. at 258–59; Editorial Board, Global Trade After the Failure of the Doha Round, N.Y. Times (Jan.1, 2016).

106 Rogers, Alex, Meet the Critics of President Obama's Trade Deal , Time (Apr. 27, 2015).

107 Chow, Daniel C.K., How the United States Uses the Trans-Pacific Partnership to Contain China in International Trade , 17 Chi. J. Int'l L. 370, 386–87 (2015).

108 See Alter & Raustiala, supra note 24, at 10.

109 Lawrence, Felicity, Trump is Right: NAFTA Is a Disaster. But US Workers Aren't the Big Losers , Guardian (Nov. 18, 2016); Zoellick, Robert B., The Case for Trade, and Why American Leaders Need to Make It , Harv. Bus. Rev. (Sept. 19, 2016); The Impact of China Joining the WTO, Wall St. J. (May, 22, 2017); Paletta, Damian, Trump Preparing Withdrawal from South Korea Trade Deal, a Move Opposed by Top Aides , Wash. Post (Sept. 2, 2017).

110 Stokes, Bruce, Brexit Vote Highlighted UK's Discontent with EU, but Other European Countries Are Grumbling too , Pew Res. Ctr. (June 24, 2016), at http://www.pewresearch.org/fact-tank/2016/06/24/brexit-vote-highlighted-uks-discontent-with-eu-but-other-european-countries-are-grumbling-too; Brexitland Versus Londonia, Economist (Jul. 2, 2016).

111 Branko Milanović, The Greatest Reshuffle of Individual Incomes Since the Industrial Revolution, Vox (July 1, 2016), at http://voxeu.org/article/greatest-reshuffle-individual-incomes-industrial-revolution.

112 For a terrific discussion of this graph, see Roberts, Anthea, Being Charged by an Elephant: A Story of Globalization and Inequality , EJIL:Talk! (Apr. 19, 2017), at https://www.ejiltalk.org/being-charged-by-an-elephant-a-story-of-globalization-and-inequality.

113 See, e.g., generally Trachtenberg, Marc, A Constructed Peace: The Making of the European Settlement, 1945–1963 (1999) (describing how the United States maintained its authority within NATO by making sometime concessions to its NATO allies).

114 Rucker, Philip, DeYoung, Karen & Birnbaum, Michael, Trump Chastises Fellow NATO Members, Demands They Meet Payment Obligations , Wash. Post (May 25, 2017).

115 See, e.g., Stuster, J. Dana, Saudi Power Play Sends Shockwaves Abroad , Lawfare (Nov. 14, 2017), at https://www.lawfareblog.com/saudi-power-play-sends-shockwaves-abroad.

116 Cf. Alter & Raustiala, supra note 24, at 10 (describing strategies of regime shifting).

117 See, e.g., Curry, Bill, The ABCs of TPP , Globe & Mail (Oct. 5, 2015).

118 See generally United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 1833 UNTS 397.

119 See Kahler, Miles, Multilateralism with Small and Large Numbers , 46 Int'l Org. 681, 694 (1992).

120 See, e.g., Simmons, Beth A., Mobilizing for Human Rights: International Law in Domestic Politics (2007).

121 See, e.g., Chesterman, Simon, The Spy Who Came in from the Cold War: Intelligence and International Law , 27 Mich. J. Int'l L. 1071, 1098 (2006) (“It is noteworthy, however, that these U.S. policies have been protested most strongly by the uniformed military… .”); Golden, Tim, Tough Justice: After Terror, a Secret Rewriting of Military Law , N.Y. Times (Oct. 24, 2004) (“Military lawyers were largely excluded from that process in the days after Sept. 11. They have since waged a long struggle to ensure that terrorist prosecutions meet what they say are basic standards of fairness.”).

122 James Macharia, South African Court Blocks Government's ICC Withdrawal Bid, Reuters (Feb. 22, 2017). Multilateralism might be supported by constructivist strategies of internationalization and socialization even as rationalist calculi in its favor begin to run out. But these strategies may be on a clock. If the idea is to bring a large number of states into a regime in hopes of acculturating their leaders and populations to that institution's norms, that process cannot take forever. Those norms need to become anchored before the rationalist calculus shifts against continued membership.

123 See Alvarez, José E., Multilateralism and Its Discontents , 11 Eur. J. Int'l L. 393, 394 (2000) (“Multilateralism is [international lawyers’] shared secular religion.”).

124 See Ramji-Nogales, Jaya, Designing Bespoke Transitional Justice: A Pluralist Process Approach , 32 Mich. J. Int'l L. 1 (2010).

125 Meyer, Timothy L., How Local Discrimination Can Promote Global Public Goods , 95 Bos. U. L. Rev. 1937 (2015).

126 See, e.g., Alvarez, supra note 123, at 399 (“The tendency to stress the virtues of multilateral solutions, narrowly understood to mean liberal institutions on the model of the UN, artificially restricts the range of available prescriptions for modern human rights dilemmas.”).

127 See, e.g., Rodrik, supra note 104, at 233–80 (making the case for an international economic order that grants states more room to plot their own policy directions); Ramji-Nogales, supra note 124 (arguing that the legitimacy of international criminal justice is judged by how well it speaks to local conditions and needs); deGuzman, Margaret M., The Global-Local Dilemma and ICC Legitimacy , in Legitimacy and International Courts (Grossman, Nienke, Cohen, Harlan Grant, Follesdal, Andreas & Ulfstein, Geir eds., 2018) (same).

128 See, e.g., Alvarez, supra note 123; Stein, Eric, International Integration and Democracy: No Love at First Sight , 95 AJIL 489 (2001).

129 Scott Barrett, Why Cooperate (2007).

Thank you to Tim Meyer, Melissa J. Durkee, and Dan Bodansky and participants at the Annual Meeting of the European Society of International Law for helpful conversations, thoughts, and critiques. Thank you also to Victoria Barker and Lauren Brown for serving as research assistants and willing sounding boards.

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