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The Twilight of Multilateralism: Domestic Courts' and Sub-State Entities' Role in International Law


Red Eiffel Tower by Robert Delaunay at Solomon R. Guggenheim Museum, New York Solomon R. Guggenheim Founding Collection


Article by Christian Delev,


On July 7th 2020, President Donald Trump declared the United States’ formal withdrawal from the World Health Organization Constitution in the midst of the COVID-19 pandemic. To most observers, this course of action should not be an anomaly: in the last decade, multilateralism has witnessed a steady decline due to States’ inabilities to overcome “collective action problems”–situations where two or more actors must cooperate in order to further their common interests, even though each actor can individually benefit more by defecting from agreed-upon rules at the expense of others. Yet, while many States like China and the United States have opted for bilateralism, “infra-national multilateralism”–or multilateralism led by sub-State actors including domestic courts, municipalities and cities–has been suggested as a possible route to maintain multilateral cooperation and overcome global collective action problems. In this post, I argue that while cities and domestic courts can, in some instances, overcome collective action problems better than States can, their abilities are restricted by noted differences in the interests which they represent, domestic legal constraints, and regulatory capture.


I make this argument in three parts: first, I outline the ways in which collective action problems limit States and outline and assess the reasons for their preference for bilateralism; second, I consider the ways in which cooperation between domestic courts and cities differs from inter-State multilateralism and its ability to overcome such problems; finally, I analyze the restrictions placed on municipalities and domestic courts, particularly their regulatory capture, composition, and domestic legal restraints.


Why States Fail to Overcome Collective Action Problems


Unlike situations in which States are faced with making collective decisions where either option would almost equally benefit them (coordination games), collective action problems emerge where States must cooperate in spite of their different interests. Mancur Olson has argued that small, homogeneous groups are better equipped to overcome such problems. Accordingly, in cases where many distinct States are involved, it becomes more difficult to overcome a collective action problem. For instance, due to the widely different interests of developed and developing countries during the WTO’s Doha Round, issues such as regulating fisheries and lowering agricultural subsidies created deadlock in negotiations. Similarly, many States (e.g. the US) have been restricted through the move against multilateralism since it is perceived as favoring special interests and offering only long-term gains, despite national governments desire for short-term gains.


Moreover, hegemons’ inabilities to further their interests in multilateral settings may contribute to the failure of establishing multilateralism. Benvenisti and Downs adapt Weingast’s game theory model to illustrate three scenarios that may emerge: (1) the hegemon follows weaker States’ interests, (2) the weaker States cooperate to overcome the hegemon, or (3) the hegemon cooperates with some weaker States against others. Multilateralism weakens hegemons by challenging their powers, since the longer multilateral cooperation persists, the more homogeneous weaker States become, and the easier it becomes for them to jointly challenge the hegemon. While Benvenisti and Downs do present institutional fragmentation strategies, such as creating multiple “narrow” multilateral agreements, “infrequently” convening negotiations, limiting international bureaucracies, and “creating or shifting to an alternative venue,” the availability of anti-fragmentation strategies, including ensuring international tribunals’ independence and bridging different legal regimes, could restrict hegemons. In the long-run, multilateralism restricts hegemons’ capability in asserting their powers. For instance, while the United States has shaped the Anti-Dumping Agreement (ADA) to internationalize the existing US legal system, its subsequent interpretation in United States – Continued Existence and Application of Zeroing Methodology, inter alia, has rightly restricted the forms of permissible anti-dumping regimes under the agreement, despite article 17.6(ii) establishing the ADA’s prima facie wide hermeneutic scope. Similarly, the emergence of new hegemonic powers, particularly China, may threaten old hegemons’ abilities to unilaterally assert their powers within institutional settings. This is particularly visible in the World Health Organization context, where China has used its strong position to prevent Taiwan from joining the organization.


Crucially, the rising presence of bilateral agreements allows hegemons to maintain their powers. For instance, China’s pragmatic “hub-and-spoke network” allows it to maintain control over weaker States by directly negotiating with them. Consequently, China retains significantly more opportunities to challenge weaker States and prevent them from collectively utilising multilateral rules against the hegemonic power. Benvenisti has also suggested that the United States used a similar “divide and conquer” strategy when first negotiating the TPP agreement with Pacific States, and then attempting to press the EU to accept the almost identically structured TTIP agreement, or when negotiating the USMCA by first reaching an agreement with Mexico and only subsequently including Canada in negotiations.


Domestic Courts and Municipalities’ Ability to Overcome Collective Action Problems


Unlike States, cities and domestic courts are capable of “overcoming” the collective action problem for a number of reasons. First, in line with Olson’s theory of collective action, cities–particularly urban and highly developed ones–are relatively constant since they represent similar social and economic interests. For instance, global city networks including the C40 group and ICLEI represent megacities’ environmental interests and are capable of cooperating because they share similar objectives, geographic characteristics (e.g., proximity to oceans and seas) and less pressure from special interest groups, like the agricultural lobby. Likewise, domestic courts generally share in their objectives, including the strengthening of the “domestic democratic mechanism” and in holding States to account for their existing international legal obligations where they represent communal or minority interests. The International Association of Refugee and Migration Judges accordingly allows refugee judges to cooperate in protecting refugees’ interests as embodied in international law.


In terms of their power, cities and sub-States are well capable of representing their common objectives and challenging States whenever they fail to comply. Historically, the Hanseatic League existed as a network between Northern European cities which protected merchant guilds’ interests against those of States, even waging wars against Denmark in the 14th and 15th centuries. More recently, city networks’ pressure forcing States to sign the Paris Agreement and cities and other sub-State entities bringing challenges before domestic tribunals vis-à-vis environmental protection (e.g., California v. Trump climate change litigation) signify their impact on inter-State relations based on both domestic and international law. Furthermore, their ability to influence international corporations’ general environmental standards through internal regulation (e.g., the ‘California Effect’) means that their policies expand beyond the local remit.


Likewise, domestic courts have been able to utilize their powers to apply both international and domestic law in order to hold States accountable. For instance, the Hoge Raad successfully held the Dutch government to account in the Netherlands v. Urgenda case vis-à-vis their emissions obligations using international human rights law. In Vedanta Resources v. Lugowe, the UK Supreme Court relied on domestic tort law to extend human rights violations and environmental harm claims against a UK parent company caused by its Zambia-based foreign subsidiary. Domestic courts provide the means to effectively oppose governments and maintain or even develop multilateral standards where they have similar interests.


Restrictions to Domestic Courts and Municipalities Overcoming Collective Action Problems


While domestic courts and municipalities are equipped to overcome collective action problems, they are nonetheless restricted by certain factors. First, municipalities are capable of being “captured” by special interests. Stigler argues, using the example of the United States’ decline in motorway carriers despite the rise in licence applications, “every industry or occupation that has enough political power to utilize the state will seek to control entry.” Accordingly, municipalities are theoretically susceptible to regulatory capture by relevant special interests. However, agency capture should be understood as a general limit on what municipalities can do, and not as a complete usurpation of states’ ability to “overcome” collective action problems.


Second, the composition of municipalities and domestic tribunals can heavily influence their abilities to cooperate with others. Municipalities, for instance, are particularly susceptible to small interest groups–particularly local land developers–using their “voice” and “exit” strategies to enable policy change. Differences in composition can also allow local populist movements to organize and challenge attempts by municipalities to pursue multilateralism. Even so, compositional differences are relevant only to the extent that they are notable.


Likewise, concerning judicial bodies, domestic selection procedures could lead to the definition of some domestic tribunals by judicial appointment procedures. For instance, in the United States, the ability to elect judges allows for “conservative” and “liberal” judges to hold differing political opinions and personal biases that can sway the resolution of cases. The electability of judges is particularly crucial vis-à-vis the United States Supreme Court, where the executive branch and legislature effectively control judicial selection procedures. Hence, a single political party who controls both the US Senate and Presidency has an increased ability to appoint judges of their choice. Hungary exhibits a similar phenomenon, wherein the judiciary’s composition has been reformed to favour the government using a controversial retirement law. While the law was later overturned, it nonetheless prevented many judges from returning to their previous high-ranking positions.

Finally, domestic law can serve as a significant constraint on both municipalities and domestic courts. For instance, the domestic allocation of competences can restrict local and regional governance power. Similarly, regional and national law can prevent municipalities from adopting certain policies. For instance, some American states, such as Indiana have adopted “home rule” laws to restrict municipalities from pursuing unilateral environmental policies. In addition, despite California’s ongoing litigation against the Trump Administration, the EPA’s decision to revoke the federal state’s Clean Air Act waiver has prevented higher environmental standards from being adopted against air pollution.


Author

Christian Delev is a first-year PhD researcher at St Catharine’s College, University of Cambridge. He is also Managing Editor at the Cambridge Journal of International Law.


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