Current as of September 13, 2022
Session 6. Functions of the international public sector (Norm enforcement).
26 September 2023
This week, we will look at a function that derives from the creation of regimes. When a regime has established norms for international behavior and established a mechanism for monitoring, how are these norms to be enforced? This is the point where the international public sector takes on some of the characteristics of a Government. But because it is not a sovereign entity and has few of the resources of a State, the international public sector has to act in a somewhat more indirect way.
Characteristics of norm enforcement at the international level
The norm enforcement function derives from the idea that certain public tasks can be delegated to international organizations to perform. But a key factor is that it depends on voluntary compliance --which is based on the exercise of legitimate power. This is because unlike a national government, where if a norm is violated intentionally, a violator can be thrown in jail or assessed a collectable fine (use of coercion), or given tax breaks or government investment to provide an incentive to comply (utilitarian power), the only method of imposing compliance at the international level is a form of international "shaming." As in a small community, this often works.
Examples of where coercion and utilitarian power have been applied at the international level illustrate the case:
Coercion
These are essentially Chapter VII operations, where, under the UN Flag, Member States come to together to beat up on another one: Iraq in Kuwait invasion; ECOWAS in Sierra Leone. NATO in Bosnia and Kosovo. More recent examples included the Australian-led international force in East Timor and NATO bombing in Libya. Perhaps the most dramatic current example was the use of the threat of force by the United States and the United Kingdom regarding Iraq’s implementation of Security Council resolutions. However, when the invasion took place without a Security Council endorsement it was not a legitimate use of force under Chapter VII, a point made by then-Secretary-General Kofi Annan to the displeasure of the Bush Administration in the United States The Libya case was probably more successful, although that is still being debated. The threat of force seems to have been a factor in dealing with the chemical weapons in Syria, although again, that is being debated. A Security Council resolution may authorize the United States and its coalition of the willing to deal with ISIL (or ISIS as the media prefer it to be known).
Initially the only norm that triggered this was attempt to change national borders by force. This was the real reason that the Security Council authorized the Gulf War in 1991 and why it did not authorize the Gulf War in 2003. It was also the reason behind the Korean War in 1950. It clearly has not worked for the Russian invasion of the Ukraine.
We are now beginning to have some in the context of international norms of democracy and coups (Sierra Leone, Liberia, Mali and the Central African Republic), where the legitimacy of the overthrown regime was established by the United Nations, or where international human rights or humanitarian law norms are clearly being violated. This is also called R2P or Responsibility to Protect, which was the main justification for the Libya resolution. The Security Council resolution on terrorism is probably a third new area.
Another coercive measure is the imposition of sanctions: Iraq, again; Libya; Serbia; Iran; Sudan; Syria; the Russian Federation; North Korea. The problem is that it is a blunt instrument (Iraq argued that it hurts children) and can easily be evaded. One of the administrators of the humanitarian aspect of the Iraq Oil-for-Food Programme, Hans von Sponeck (who resigned in frustration because of the damage caused to innocent civilians by the sanctions) was entitled Different Kind of War: The UN Sanctions Regime in Iraq.
Utilitarian
Sometimes compliance can be promoted by utilitarian means. A state can be told that if it complies, it will receive an IMF loan, development assistance, or food aid, or support for joining the WTO. The use of the Green Climate Fund to encourage States to implement climate change measures is a new area.
Legitimacy
Fragility of use of legitimacy is seen in operations of the International Court of Justice: in any year there are few judgments, in part because only a limited number of States accept its mandatory jurisdiction. When a State that initially accepted jurisdiction feels it might lose a case, it defines itself out of jurisdiction (the US did so in the case of a complaint by Nicaragua that the US was putting mines into its territorial water during the Sandinista period...) The new International Criminal Court will also address the issue, although, as we have seen, the United States has opted out.
Conditions for norm enforcement
This is the newest function, one not particularly clear in the Charter, although it can arguably be derived from the fourth objective set out in the Preamble:
4. To be a centre for harmonizing the actions of nations in the attainment of these common ends.
We will look at four examples of norm enforcement: human rights, the dispute resolution function of the World Trade Organization, the International Tribunal on Law of the Sea and IAEA Safeguards.
We can posit several conditions that are required for the norm enforcement function to be performed:
Condition 1: the Regime is truly agreed
Obviously the underlying basis for the norms has to be solid. It is usually based on some underlying concept of interest on the part of the States (and non-State actors) who are affected by and accept the regime.
�.
Human
rights are considered essential for stability, therefore in everyone’s
interest.
�.
Stable
trade relations based on increasing flows is agreed to be essential for
development.
�.
The
consequences of unregulated use of the seas and oceans are considered bad.
�.
There
is an agreement that international action is needed to prevent the
proliferation of nuclear weapons.
Condition 2: the underlying treaties are practical
The nature of the dispute regulation is clearly spelled out in the treaties that underlie the regime.
�.
The
role of the monitoring bodies for human rights is clear.
�.
The
GATT treaty sets up an agreed system for dispute resolution
�.
The
Law of the Sea Tribunal’s function and procedures are clear.
�.
The
NPT specifies clear criteria for verfication.
Condition 3: a credible international secretariat is in place
The key here is credible.
�.
The
Office of the High Commissioner for Human Rights was established in 1993 after
a world conference but its predecessor organization has been in business for
almost 70 years, its staff are considered competent; given a good High
Commissioner (and all but the first one have been considered highly competent),
it can provide credible leadership.
�.
The
WTO has developed its own credibility
�.
The
LOS secretariat was initially made up of people (like Kumar Chitty, its first
Registrar) who were involved in the negotiations from the beginning.
�.
The
IAEA Safeguards Department has proven its effectiveness over an alnost sixty year period,
including especially in the inspections of Iraq after the Gulf War and in
identifying a North Korean breach of the Treaty and in inspections in Iran.
The original norm enforcement entity in the United Nations was that concerned with human rights. It was seen as an essential element in preventing future world wars. The origins and structure are outlined in Jack Donnelly's piece on the human rights regime, which, you should bear in mind, was written in 1986, before the end of the Cold War.
Origins
The Universal Declaration on Human Rights implied the notion of a need to avoid abuses. It implied a new notion of international norms of governmental behavior (political as well as economic, social and cultural).
International role in monitoring State compliance found in ECOSOC resolution 1503 which set up a procedure for complaints about "systematic and gross violations of human rights" This has now been carried over to the work of the Human Rights Council that, in 2006, replaced the Commission on Human Rights.
Treaties to implement the Universal Declaration began to come into play in the 1960’s (with racial discrimination). Now there are eight in force: the two covenants to implement the UDC, racial discrimination, women, torture, children, migrant workers; and persons with disabilities (that entered into force in 2009). Negotiations have begun on a convention on the rights of older persons.
Structure
Human Rights Council
The Human Rights Council was set up in 2006 to deal with human rights violations. It meets three times a year and can convene to address specific situations. It has adopted a mandatory Universal Periodic Review of human rights compliance of all States including those sitting on the Council. It replaced the Human Rights Commission, an Intergovernmental body that met once a year for a six week session but worked through sub-commissions and working groups as well as system of Special Rapporteurs. The Special Rapporteurs are particularly important since their reports are essentially uncensored and intended to embarrass malefactor countries, and they have been continued.
Treaty Monitoring Bodies
An example is found in the Committee on the Elimination of Discrimination against Women, the monitoring body for the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). It meets twice a year to review periodic reports of States parties to the Convention. . The session on 28 March, in Geneva celebrated its 40th anniversary. The next session, the 83rd will take place from 10 October to 28 October 2022 in Geneva.
National reports are the basis of enforcement. They are prepared by the Governments concerned to give the best possible construction on government efforts. However, by comparing results with the standards set out in the Convention, it is possible to see rather clearly how much, or how little, has actually been accomplished. Initial reports are to be submitted within two years of ratification or accession to the Convention and set the basis for subsequent reporting. They are supposed to represent the Status Quo Ante.
Thereafter, reports are to be submitted every four years, emphasizing new developments or matters left pending in the previous report.
The method of examination is called the "Constructive Dialogue" in which the State presents its report (usually in the form of an update of information on developments since the report was submitted -- often by a previous government, and then the expert members of the Committee ask questions. Much of the dialogue is highly formalized and stylized, like a No play, but often experts will provide new, tougher questions based on information they have received that is not contained in the government's report. State representatives often make damning admissions of non-compliance as a device to put pressure on decision-makers and legislatures at home to make changes. An example of such a dialogue is that reported for Belize, which presented both an initial and second report at the 21st session and, as the headline in the news release on the session said, "LACKING CONTRACEPTIVE ADVICE, BELIZE'S CURRENT HEALTH POLICY 'OBVIOUSLY NOT WORKING', FIRST LADY OF BELIZE TELLS ANTI-DISCRIMINATION".
The process admits to considerable NGO input. First, NGO's are encouraged to participate in the preparation of the national reports and governments are urged to facilitate this. Second, NGO's channel information not contained in reports to the experts so that they can be briefed. Third, international NGO's, like the International Women's Rights Action Watch, prepare articles on compliance with the Convention. One, the International Women's Rights Action Watch (IWRAW) has articles related to CEDAW, and also guidelines for national NGO's on who to prepare NGO "shadow reports" to counter or expand on national governmental presentations. Fourth, the Committee hears, sometimes formally, more often in personal discussions, representatives of NGOs. Fifth, many of the members of the Committee are NGO members themselves.
A form of closure is achieved by a practice of adopting Concluding comments on the reports. These are a form of good news (congratulations on progress), bad news ("concerns" about areas where compliance is less) and what to do next (suggestions for the next report). These are negotiated texts and reflect as much the political as the legal judgement of the Committee, with an expert from the region usually taking the lead in preparing a draft with the assistance of the Secretariat. An example is the concluding comments on Belize.
The Committee also makes "general recommendations" which are intended to provide a form of interpretation of the meaning of the Convention. These are normative recommendations, usually intended to address something that the drafters of the Convention seemed to have left out. An early recommendation finding that female circumcision was a human rights violation helped undercut State support for the practice, and the groundbreaking General Recommendation No. 18 clearly defined violence against women as a human rights issue. The Committee has now begun to analyze in detail the implications of several articles that are rather vague. General Recommendation No. 23 of 1997 on women's political rights is a very good example.
Secretariat
The Secretariat role in the management of the regime is multi-faceted. At one level, it provides servicing for expert bodies. At another level, through its support work, networking and channeling the input of NGOs, it can help shape the elaboration of new instruments and the monitoring of existing.
High Commissioner
An Innovation after 1993 World Conference was to create the post of High Commissioner for Human Rights, designed to have a visible leader in norm enforcement. The first Commissioner, an Ecuadorian diplomat, was a dud. An example of the sea change in the regime was the appointment of Mary Robinson, former President of Ireland and a noted human rights lawyer, as High Commissioner. Mrs. Robinson saw her task as calling to global attention examples of human rights violations, most notably in internal conflict situations. This pattern has been continued by Louise Arbour, her successor, byNavanethem Pillay,the recently retired High Commissioner, and by her successor, Zeid Ra’ad Al Hussein, by Michelle Bachelet, who had been the head of UN Women as well as President of Chile and now by Volker Turk of Austria, appointed and approved by the General Assembly on 8 September 2022.
The Office of the High Commissioner, formerly the Centre for Human Rights
The secretariat entity concerned is an old one, dating to the early years of the UN. It is mostly made up of lawyers, who were noted for their caution, conservatism and resistance to change (e.g. they were less than enthusiastic about developments in the area of women's human rights which, for historical reasons, were the responsibility of the Division for the Advancement of Women and its predecessors. As of January 2008, they took over responsibility of servicing the CEDAW from the Division for the Advancement of Women, meaning that they supervise all of the human rights treaty bodies.
Compliance issues
Issues in enforcement have to do with the extent to which States honor their commitments. There is considerable evidence that the "shaming" mechanism, which is beginning to be tied to other matters (like trade, loans, development assistance) is working, at least in extreme cases. It is clear that NGOs are beginning to become more important in the process and the Secretariats concerned are beginning to become more proactive. New areas for rights conventions are being advocated, in such areas as rights of persons with disabilities, rights of the aging.
However, the picture is not one of unbridled optimism. A genuine debate continues over whether rights are only individual but also collective. The implementation machinery continues to be tested.
A major area of debate has to do with the first "strong" general enforcement instrument, the International Criminal Court (as well as the functioning of the ad hoc Tribunals.)
Origins
For the origins of the WTO, using an introductory brochure, see http://www.wto.org/english/thewto_e/whatis_e/tif_e/tif_e.htm
Structure
�.
Ministerial
conference (biennial) - first in Singapore (where major issue was matter of
labor rights), then in Seattle (where an issue was the admission of China).
�.
General
Council (Disputes Settlement Body and Trade Policy Review Body)
�.
Specific
Councils - Trade in Goods, Trade in Services, Trade-related Aspects of
Intellectual Property Rights
�.
Plurilateral
Agreement Councils
�.
Committees
on Trade and Development, Balance of Payments, and Budget, Finance and
Administration
Disputes settlement
Based on "objective" application by Members. Complex structure based on panels. The structure of and process of dispute resolution can be accessed on the WTO website in the interactive training package.
The WTO went to work immediately. Have been 590 disputes, of which about 170 have been resolved or settled outside (for a completion rate of about 33 percent) As can be seen, the settlement rate was declining (it was 31 percent in the first year and a half, then 28 percent, but now increased). This suggests that there were some structural and management problems that have since been resolved.
Overview of the State-of-play of WTO Disputes
Almost every State Party has been involved in disputes. This is shown dramatically by the WTO site that describes country participation. The United States and the EU are the most frequent parties, often against each other.
Since 1995, there have been 529 disputes registered. To put these into context, the first was between Singapore (complainant) and Malaysia over the latter's Prohibition of Imports of Polyethylene and Polypropylene. The most recent case (submitted on 25 June 2014) is between Chinese Taipei (complainant) and Canada on Canada — Anti-Dumping Measures on Imports of Certain Carbon Steel Welded Pipe from The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu (Complainant: Chinese Taipei). The dispute shows the kinds of issues coming before the facility:
On 25 June 2014, Chinese Taipei requested consultations with Canada with respect to the provisional and definitive anti-dumping measures imposed by Canada on imports of certain carbon steel welded pipe (CSWP) originating in, among others, Chinese Taipei. Chinese Taipei claims that the measures are inconsistent with: Articles 1, 3.1, 3.2, 3.4, 3.5, 3.7, 5.8, 6.8, 6.10, 18 and Annex II of the Anti-Dumping Agreement;
Article VI of the GATT 1994.
A more recent case is:
The United States notified the WTO Secretariat on 13 September 2016 that it has initiated WTO dispute proceedings against China regarding China’s domestic support measures in the agriculture sector. The measures concern domestic support allegedly provided by China for agricultural producers of, among other crops, wheat, Indica rice, Japonica rice, and corn.
Some 295 of the cases were settled by the parties concerned (including the first one between Singapore and Malaysia) orwere adjudicated and sanctions imposed. Still others are still in process. The full status of cases can be seen on the WTO website.
The United States, in May 2014, submitted a case against Indonesia on certain measures it imposes on the importation of horticultural products, animals and animal products. On 16 May 2014, New Zealand requested to join the consultations. On 22 May 2014, Thailand requested to join the consultations. On 23 May 2014, Canada, the European Union and Chinese Taipei requested to join the consultations. On 26 May 2014, Australia requested to join the consultations. Subsequently, Indonesia informed the DSB that it had accepted the requests of Australia, Canada, the European Union, Chinese Taipei and Thailand to join the consultation.
Why would the system work?
The first case resolved was precedental. Based on a complaint by Venezuela against the US for restrictions on oil imports based on environment considerations:
· · (1) United States - Standards for Reformulated and Conventional Gasoline, complaints by Venezuela (WT/DS2) and Brazil (WT/DS4). A single panel considered the complaints of both Venezuela and Brazil. Complainants alleged that a U.S. gasoline regulation discriminated against complainants’ gasoline in violation of GATT Articles I and III and Article 2 of the Agreement on Technical Barriers to Trade (TBT). The report of the panel found the regulation to be inconsistent with GATT Article III: 4 and not to benefit from an Article XX exception, (WT/DS2/R, 29 January 1996). The United States appealed on 21 February 1996. On 22 April, the Appellate Body issued its report (WT/DS2/AB/R), modifying the panel report on the interpretation of GATT Article XX(g), but concluding that the Article XX(g) was not applicable in this case. The Appellate Report, together with the panel report as modified by the Appellate Report, was adopted by the DSB on 20 May 1996.
The second case involved a complaint by the United States against Japan:
· · · (2) Japan - Taxes on Alcoholic Beverages, complaints by the European Communities (WT/DS8), Canada (WT/DS10) and the United States (WT/DS11). Complainants claimed that spirits exported to Japan were discriminated against under the Japanese liquor tax system that, in their view, levies a substantially lower tax on "shochu" than on whisky, cognac and white spirits. A joint panel was established at the DSB meeting on 27 September 1995. The report of the panel, which found the Japanese tax system to be inconsistent with GATT Article III: 2, was circulated to Members on 11 July 1996. On 8 August 1996 Japan filed an appeal. The report of the Appellate Body was circulated to Members on 4 October 1996. The Appellate Body’s Report affirmed the Panel’s conclusion that the Japanese Liquor Tax Law is inconsistent with GATT Article III: 2 but pointed out several areas where the Panel had erred in its legal reasoning. The Appellate Report, together with the panel report as modified by the Appellate Report, was adopted on 1 November 1996. On 24 December 1996, the US, pursuant to Article 21(3) of the DSU applied for binding arbitration to determine the reasonable period of time for implementation by Japan of the recommendations of the Appellate Body. The Arbitrator found the reasonable period for implementation of the recommendations to be 15 months. The Arbitrator’s report was circulated to members on 14 February 1997.
Note that compliance with system is based on total outcome (win one, lose one)
Similarly, in the famous case of the European bananas:
· · · (1) European Communities - Regime for the Importation, Sale and Distribution of Bananas, complaints by Ecuador, Guatemala, Honduras, Mexico and the United States (WT/DS27). The complainants in this case other than Ecuador had requested consultations with the EC on the same issue on 28 September 1995 (WT/DS16). After Ecuador’s accession to the WTO, the current complainants again requested consultations with the EC on 5 February 1996. The complainants allege that the EC’s regime for importation, sale and distribution of bananas is inconsistent with GATT Articles I, II, III, X, XI and XIII as well as provisions of the Import Licensing Agreement, the Agreement on Agriculture, the TRIMs Agreement and the GATS. A panel was established at the DSB meeting on 8 May 1996. The Panel found that the EC’s banana import regime, and the licensing procedures for the importation of bananas in this regime, are inconsistent with the GATT. The Panel further found that the Lom waiver waives the inconsistency with GATT Article XIII, but not inconsistencies arising from the licensing system. The report of the Panel was circulated to Members on 22 May 1997.
Another example is Korea, which is currently involved in sixteen disputes either as plaintiff or defendant, some of which are under the consultation procedure, whereby WTO becomes a venue for what are essentially bilateral negotiations. The WTO location, however, means that the application of GATT criteria is determinative.
· · (1)(a) Korea - Measures Concerning the Testing and Inspection of Agricultural Products, complaint by the United States (WT/DS3). Request circulated on 6 April 1995. The dispute involves testing and inspection requirements with respect to imports of agricultural products into Korea. The measures are alleged to be in violation of GATT Articles III or XI, Articles 2 and 5 of the Agreement on Sanitary and Phytosanitary Measures (SPS), TBT Articles 5 and 6 and Agriculture Article 4. See below.
(1)(b) Korea - Measures Concerning Inspection of Agricultural Products, complaint by the United States (WT/DS41). This request for consultations, dated 24 May 1996, concerns testing, inspection and other measures required for the importation of agricultural products into Korea. The United States claims these measures restrict imports and appear to be inconsistent with the WTO Agreement. Violations of GATT Articles III and XI, SPS Articles 2, 5 and 8, TBT Articles 2, 5 and 6, and Article 4 of the Agreement on Agriculture are alleged. The United States requested consultations with Korea on similar issues on 4 April 1995 (WT/DS3/1). See above.
The acceptance of the judgements is a combination of indisputable neutrality in the application of procedures, and self-interest.
Each dispute is in effect a zero-sum game (one wins, the other loses). The system works because the whole is a non-zero sum game. Some of the exciting current cases include Antigua and Barbuda v. the United States of America (Internet gambling) and the European Union v. the United States of America (and the USA v. the EU, both about subsidies to their respective aircraft industries -- Boeing and Airbus). The US lost the first, may have won the second.
The WTO also examines the extent to which countries’ public policy conforms to global norms. These are period reviews of trade policy (mandatory on a biennial basis for the four largest traders).
Korea underwent a review in the autumn of 2005. After a two-day question and answer session, the Chairperson of the Panel read a summary (that would have been prepared by the WTO Secretariat):
· · Members acknowledged and appreciated the steps taken by the Republic of Korea over the past few years towards economic reform and market opening, including in the areas of tariff reduction, internal deregulation and liberalization of the investment rgime. They emphasized the importance of further steps to improve market access, to increase predictability, transparency and certainty in Korea’s trade practices, and to ensure that Korea’s regulatory and administrative rgimes are consistent with the stated aims of increased liberalization and openness. The need for improved access in the agricultural sector and continued liberalization in various fields of services was particularly emphasized. Overall, Members offered strong encouragement to the Republic of Korea to continue and accelerate the reform process in all economic areas and to be ready to undertake responsibilities within the WTO fully commensurate with the strength and dynamism of its economy.
Secretariat functions
What does the WTO Secretariat do in all of this? Here are its functions:
�.
Guardian
of the norms
�.
Sets
agenda and vets facts
�.
Services
meetings
�.
Develops
new norms through analysis of law and decisions
�.
Maintains
surveillance of trade trends
The Tribunal was established, the judges elected, Secretariat established in 1997. Its structure and functions are set out in of the Law of the Sea Convention.
It has two basic functions under the Law of the Sea Convention
The tribunal is partly technical, partly legal
The first Registrar (chief Secretariat official) was Kumar Chitty, old time member of the Law of the Sea Secretariat, who survived the many years of waiting for the Convention to come into force. He is a lawyer from Sri Lanka and served until June 2001. The current Registrar is Mr. Philippe Gautier (Belgium). The present Deputy Registrar is Mr. Doo-young Kim (Republic of Korea)..
To date it has considered 25 disputes. The first dispute dealt with the arrest and detention of a tanker from Saint Vincent and the Grenadines by the authorities in Guinea. The tribunal ruled in favor of Saint Vincent and the Grenadines.[Go to Proceedings and Judgments.]
A more important case involved two separate cases, one by Australia and the other by New Zealand against Japan for overfishing bluefish tuna stocks. It was on August 27, 1999 that the tribunal ruled in favor of Australia and New Zealand in a complex, politically-sensitive judgement. [Go to Proceedings and Judgments].
If there are disputes over the maritime boundaries in the Arctic as the icecap melts, they will be sent to the Tribunal. The fact that the United States is not a party to the Convention means that it cannot take advantage of the Tribunal, something which provoked the Bush Administration to submit the Treaty for ratification, something that the Obama administration has also suggested. The Senate, however, has not acted.
The norm that nuclear material should not be diverted for non-peaceful purposes has been agreed for almost half a century. The task of verifying that all nuclear material is being used for peaceful purposes (and therefore not diverted or not proliferating) was given to the IAEA. This was the first time a disarmament verification task was assigned to an international organization. Within the Agency, the operating entity is the Safeguards Department. Because of the sensitive nature of its tasks, it is in many ways autonomous (it does its own training, its electronic systems are self-standing, it maintains its own equipment).
Enforcement of norms rests with the Member States. The role of the Agency is to determine credibly that States were in compliance. This credibility was hurt by the Agency’s failure to detect the undeclared program in Iraq, but was bolstered by its effort in North Korea. It is now a major player in determining the facts about Iran's nuclear program (the reference is old, but the process is similar). An IAEA Safeguards report in May 2013 was cautionary. In the light of the recent agreement, the IAEA role has become more visible and, recently, the IAEA Director-General has gone to Iran to implement the agreements. And now, the formal verification for the Iran agreement has been made by the IAEA.
The Agency’s credibility is a function of a number of factors:
�. The extent to which the rules and procredures in the Safeguards Agreements negotiated with individual States are perceived to ensure that the Agency will detect violations.
�. The perceived quality (technical) and neutrality (political) of the Safeguards staff.
�. The perceived effectiveness of the trade and materials accounting system.
We will return to these when we look at the Agency later in the course.