Substituting International Law

Abstract

INTRODUCTION In 2000, the federal German ministries were ordered to avoid international obligations as much as they could. The directive, addressing all ministries, stipulated that negotiators should explore alternatives to formal international undertakings before they commit to such. (1) Bureaucrats in other administrations indicate similar expectations, if not formal directives. The German directive of 2000 and the similar policies in other governments reflect both the novel ways in which governments interact across political borders as well as new concerns about international law and in particular international institutions. The directive suggests that international cooperation can be achieved without recourse to international legal tools and that, for at least some governments, it is becoming preferable in such cases to avoid international law and institutions. Clearly, coordinating intergovernmental activities is faster and more reliable nowadays than in previous times. The exchange of e-mails can easily replace the cumbersome process of drafting treaties by delegates as means of communication. The growing ease of communications is matched by the growing necessity to coordinate more and more spheres of activities across boundaries. The availability of communications and the need to use them bring diverse parts of national bureaucracies into direct contact, almost on a daily basis, with their foreign peers. These regular exchanges create closely knit clubs that are a far cry from the bygone days when even bilateral coordination depended on arms-length negotiations by emissaries and on limited monitoring capabilities. When bureaucrats replace ambassadors and e-mail exchange provide information as reliable as a written treaty if not more, there is a growing temptation to evade the formal requirements of international treaty-making (and of the domestic law that requires formal ratification of treaties). Governments that initiate coordination efforts across national boundaries consciously avoid making any claims about international and do not use treaties as the means for coordinating their activities. Alternatives to international law are created through diverse intergovernmental coordinated actions that do not involve the setting up of international organizations that are subjects of international law. Such intergovernmental action can simply be based on those governments' authority under their respective domestic laws to pursue domestic policies, or on relegating authority to private actors. Such coordinated practices do not betray opinio juris; in fact, the participating governments emphasize the opposite, namely their self-interest and lack of legal commitment. They consciously try to disengage from traditional international law. The common denominator of this increasing number of clubs is their effort to pass below the radar screens of international law. The outsiders to these clubs, the uninvited governments, adapt to the club rules not because these rules bind them, but because there are carrots attached to them, and sticks attached to their nonobservance. Indeed, the alternative rules are prescribed by an oligarchy of powerful states to affect themselves but also to affect all others. They are not binding among themselves but, informally, they modify the expectations and possibilities of other actors. These informal rules do not belong to the so-called soft law, those vague and hortatory declarations. They are quite specific, and their bite is unpleasant. Thus, they shape international but only indirectly, through alternative processes that offer sticks and carrots to the non-participating states. A TYPOLOGY OF ALTERNATIVE INSTITUTIONS I identify four types of alternatives to formal international law: Informal Government-to-Government Coordination These are some of what Anne-Marie Slaughter has called government networks. (2) These networks encompass most of the spheres of activity of contemporary governmental action and include a variety of government agencies, such as central bankers, antitrust regulators, securities regulators, criminal enforcement agents, and environmental protection agencies. …