MYTHS AND REALITIES OF GLOBAL GOVERNANCE.

• Author: Hathaway, Oona A.
• Position: International Law and U.S. Foreign Policy

Is more global governance necessary? That was the question posed to me by the organizers of the 2021 Federalist Society Annual Conference. (1) It struck me when hearing this question that there are often deep misconceptions about the meaning of global governance lurking behind debates over whether there should be "more" or "less" of it. I hope to shine light of some of them today.

Global governance is not one thing, of course. It is a multitude of different international legal arrangements covering an array of activities that states as well as nonstate actors engage in. Yes, there is the United Nations, but that is simply one of many multinational organizations--and perhaps not even the most important of them. Global governance includes well-known organizations such as the International Monetary Fund, (2) the International Criminal Court, (3) and the North Atlantic Treaty Organization, (4) but it also includes lesser-known organizations such as the International Coffee Organization, (5) the Court of Arbitration for Sport, (6) and the Wassenaar Arrangement. (7) These organizations did not emerge of their own accord. Indeed, the greatest misconception that exists about global governance is that international organizations operate at the expense of states. The reality, instead, is that they are created by states to serve specific purposes that states find valuable. (8) They give states a way to achieve ends that they could not achieve on their own--or that they would find much more difficult and expensive to achieve on their own. To illustrate this argument, this essay examines five key topics in global governance--international courts and tribunals, trade, use of force, international human rights, and geopolitical competitition.

International Courts and Tribunals

International courts and tribunals have been a hot-button topic in debates over international institutions and global governance more generally. There are different ways in which this debate plays out. Here I offer a couple of examples to illustrate those differences.

First, consider the Avena case, (9) in which the International Court of Justice ordered the United States to reconsider death sentences of over fifty Mexican nationals whose rights under the Vienna Convention on Consular Relations had not been observed. When they were initially charged, their local Mexican consulate should have been notified that they were being charged with a crime. (10) And then the consulate should have had an opportunity to assist in their defense. (11) That was not done, and they did not receive any assistance as a result. (12) After they were sentenced to death, there was a realization that for a long time, many U.S. jurisdictions had not been meeting the United States' obligation under the Vienna Convention on Consular Relations to notify consuls when foreigners were charged. (13) Mexico brought a case against the United States in the International Court of Justice. (14) The International Court of Justice decided that the United States had violated its treaty obligations and ordered the United States to review and reconsider the convictions and sentences of the Mexican nationals who were on death row. (15)

Now, you might wonder why the International Court of Justice had jurisdiction over the case. The answer is that the United States had signed an Optional Protocol to the Vienna Convention on Consular Relations. (16) The Optional Protocol says that if there is a dispute under the Convention, then a state can go to the International Court of Justice to seek resolution. (17) The United States ratified the treaty and the protocol because they were seen as advantageous to the United States and its citizens. (18)

Here's why: if you travel abroad, and you get charged with a crime while you're in a foreign country that has signed and ratified the treaty (which most states have), you have the right, under the Vienna Convention on Consular Relations, to have a U.S. consulate notified. (19) And then the consulate can assist in your defense. (20) If you're an American traveling abroad, you want that because that means you're going to get American support and there is much less likelihood that you will be railroaded and thrown in jail without anybody knowing it. If there is a dispute between the United States and the country that is holding you, you want some place for that dispute to be able to go other than that country's own courts. The International Court of Justice is a pretty good place for that. (21) So the United States signed the treaty and the Optional Protocol, giving jurisdiction over disputes to the Court, because it was in the best interest of Americans.

The other court that has attracted a lot of attention in recent years is the International Criminal Court (ICC). (22) This court has recently been especially controversial because the prosecutor there was permitted to proceed with an investigation of crimes that were committed in Afghanistan during the war there by the United States, Taliban, and other actors. (23) That investigation proceeded through the initial approval process that allows the prosecutor to begin to move forward. (24) Under the Trump Administration, the United States put in place sanctions against judges, the prosecutor, and others from the court who were involved in the case, including lawyers who were just representing clients at the ICC. (25)

Now, the first thing to keep in mind about both of these courts, and really all international courts, is that none of these courts have jurisdiction over Americans without reason. (26) The courts themselves did not suddenly decide that they want to have jurisdiction. They're granted jurisdiction by states through various rules, usually through treaties. (27)

As I noted earlier, the International Court of Justice had jurisdiction in the Avena case because the United States gave it jurisdiction by ratifying the Optional Protocol to the Vienna Convention on Consular Relations. (28) And, again, it did so because Americans benefit from the Vienna Convention and the protections it offers.

But what about the ICC? The United States has not joined the ICC, (29) and that has been a key argument against the investigation of U.S. actions in Afghanistan. (30) But what this argument against ICC jurisdiction ignores is that Afghanistan is a party to the ICC. (31) It signed and ratified the Rome Statute, which created the ICC and gives it jurisdiction over crimes committed by or in the territory of member states. (32) The alleged crimes fall within the jurisdiction of the Court, then, because they occurred in Afghanistan, (33) which is a party to the ICC.

The idea that a sovereign state has jurisdiction over a person who commits a crime in its territory is usually taken for granted. If I go to London and I commit a crime--say, I steal something--I can be brought in front of English courts even though I am an American, because I committed my crime in England. (34) There is a similar principle at work here. The main difference is that Afghanistan has transferred jurisdiction over the crime to the ICC by joining the Rome Statute. (35) So the ICC has been granted jurisdiction by the state that has the right to exercise jurisdiction over the crime.

Let me then turn to the question: should we have more international courts? It is worth noting that there are already a lot of international courts and tribunals. (36) I just mentioned two of them. There are also a number of international arbitral bodies. (37) There are many more formal and informal dispute resolution bodies at the international level than is commonly recognized.

Why do all these bodies exist? Why do states create them? It is because they need some way to resolve disputes among and between them and their citizens. These courts, and these arbitral bodies, give states a peaceful way to resolve disputes. Without them, the alternative would be to go to a foreign court where the state or its citizen might not necessarily get a fair hearing. (38) And so one of the reasons a state might want to have access to an international court for certain kinds of disputes is it provides neutral ground on which to make its arguments.

In addition to the courts I have mentioned, for instance, there are arbitral bodies that address questions like investment disputes (39) or commercial disputes. (40) These are very much favored by international business, because they offer an important way in which, if a business investment is illegally expropriated by a state, a business can seek recourse. (41) It is favored by states, as well, because access to international arbitration encourages international investment, especially in countries with less developed legal systems. Under the New York Convention, (42) the party that is harmed can enforce the decision of that arbitral body pretty much anywhere in the world. And so states, businesses, and individuals benefit from these bodies. (43) That is why they have been created, and that is why I expect we will continue to see more of them.

U.S. courts are the place of first recourse for most Americans. But sometimes Americans are going to have disputes with foreigners, and we may prefer to have access to an international court or arbitral body rather than be stuck in the courts of other nations or have access to no court at all. That is why we see these courts emerging, evolving, and continuing to expand.

Trade

The key global institution for trade is the World Trade Organization, (44) the successor organization to the trade regime that the United States and its allies worked hard to build in the years immediately following World War II. The idea behind this global trade regime is that we need a robust global economic order if we're going to keep the peace. (45) State economies were devastated after the war, and expanding global trade was seen as core to the effort to rebuild them. Not only would that help rebuild societies that had...