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The Treaty Making Process: A Comparison of Recent Examples
(Notes for a presentation by FergusWatt
at the 1998 Conference of the Canadian Council on International Law.)
What I'd like to do is talk briefly about the treaty making agenda, as well as address treaty making processes.
What is new in the treaty making process?
Perhaps not much. Treaties are still negotiated by states, signed and ratified by states and, usually but not always, adhered to by states.So there's a nice simple answer. But if I left it at that and went home to my breakfast, I suppose the CCIL brass would be a little annoyed.
Of course, the formal treaty making process may not have changed much in recent years. But the world has changed. International politics has changed. Our understanding of important international concepts and goals, like security, development, governance, sovereignty, have all changed. And the means of forming political consensus has changed.
Indeed, one could be forgiven for naively wondering why the formal modalities of international law-making have not changed.
Through no fault of over-worked diplomats and practitioners, it must be recognized that the 'treaty makers' are losing ground. The 'supply' of effective international law is not keeping up with 'demand.' And demand is not going to lessen in the years ahead. The reasons are well known. Interdependence, information age, globalization -- pick you buzzword. The global governance agenda is large and still growing.
By illustration, lets have a look at the topics covered in the useful paper prepared by Department of Foreign Affairs staff for this conference summarizing "Some Examples of Current Issues of International Law of Particular Interest to Canada." International Criminal Court and Ad Hoc Tribunals; Extradition law; Traffic in firearms; A treaty on terrorist bombings; Children in armed conflict; Law of the sea and fisheries law; Environmental law (including climate change, biodiversity and cooperation arrangements with trading partners); Plant genetic resources; radioactive waste management; sanctions against Former Yugoslavia; Canadian participation in a civil space station; and a large roster of trade dispute issues and development of new trade law. How many of these topics would have been on such a list 20 or 30 years ago? And it should also be asked, for how many of these issues can it reasonably be said that the treaty makers are satisfactorily addressing the public interest: the need for effective law and international cooperation to resolve a growing roster of supranational problems.
The pressing demand for international lawmaking is not lost on the general public either. Recall for example some of the international topics featured in the popular press in just the last two weeks. MacLean's magazine chronicling in a large feature the mismanagement of the world's oceans. Hand-wringing and yet more innovation in the modalities of UN peace operations. And how would you like to have been on hand in Canada's Ministry of Finance when the call came down from the Minister's office: "IMF meetings coming up. Give me something on a new global architecture to regulate international finance." ("Yes, Minister!")
I draw attention to this growing global public policy agenda because I think this is central to an understanding of our topic this morning: what, if anything, is new in treaty making.
Now I know that some recent international treaty successes (e.g. Landmines, Criminal Court) have given rise to a lot of discussion and analysis of "NGO-middle power alliances" and "soft power" etc. As Convenor of the Canadian Network for an International Network for an International Criminal Court, I suppose I'm here today in my capacity as a soft power practitioner. I'm certainly not an international lawyer.
However, although I suppose I should be on the soft power bandwagon, I'm not. I find that it is a bit of a bandwagon, a trendy idea which may fall out of favour as soon as the next Minister for Foreign Affairs comes along. Not that I'm anxiously awaiting that day. I'm a fan of Mr. Axworthy.
But he loses me with this soft power stuff. Maybe I just don't get it.
In a speech at Harvard University this spring, Mr. Axworthy said:
"A key element of this new thinking is what has been called "human security." Essentially, this is the idea that security goals should be primarily formulated and achieved in terms of human, rather than state, needs.
. . . . The campaign that led to the signing last December of the convention banning anti-personnel mines was based on a human security approach. [Mr. Axworthy went on later in the speech to talk of the ICC treaty negotiations in the same vein.]
.. . . . Why was an unlikely coalition of NGOs, humanitarian organizations and non-major powers able to advance the agenda so significantly in an area seen, until recently, as a backwater of disarmament efforts? The answer, I believe, lies in the growing importance of "soft power" internationally.
. . . . As you are probably aware, Joseph Nye used this term at the start of the decade to define an increasingly important aspect of the conduct of international relations in a globalized, integrated world - the power to co-opt, rather than coerce, others to your agenda and goals. In Nye's view, military and economic power, while still important, did not have the overwhelming pre-eminence they once did. Instead, the ability to communicate, negotiate, mobilize opinion, work within multilateral bodies and promote international initiatives was increasingly effective in achieving international outcomes.
. . . . Soft power is particularly useful in addressing the many pressing problems that do not pit one state against another, but rather a group of states against some transnational threat to human security. When there is mutual benefit to finding a solution, skills in coalition-building become increasingly important. . . . "
(The soft power debates have also been more amply ventilated in the journals of our friends meeting just down the hall this weekend, the Canadian Institute of International Affairs.)
Is soft power the new currency of international politics? Or are we seeing the same old international politics, diplomacy and negotiation practice, carried on as it always has been, - although now with a growing and more visible NGO role? I suggest the latter may be closer to the truth.
The growing role of NGOs
The rules governing NGO participation at the UN and most other international organizations have changed only a little in recent years. NGOs are allowed to observe, up to a point; to meet official delegates on the margins of international meetings, up to a point; and to have access to official documents and other Secretariat services, up to a point. And the extent to which these rights and access is granted to NGOs seems itself to be a matter of negotiation at the outset of each international gathering. In the ICC negotiations, the issue came up at the PrepComs, and again at the Rome conference.
But while the situation is fluid, and while everyone recognizes that the ECOSOC standards and modalities of accrediting NGOs is out of date, there has been only minor progress over the years in improving NGO access.
However, while the rules of the game have changed only a little, the number of NGOs playing the game has mushroomed. The "game," the role of NGOs at treaty making fora, can be categorized as including: monitoring negotiations; educating domestic constituencies; and lobbying.
The way NGOs can be effective is primarily by staying informed. Often NGOs are more informed about what's going on than most government delegations. They then use that information: sharing it strategically with governments; disseminating it publicly.
As important points of access for the media and informed public constituencies, NGOs are important partners in the 'political sell' in any treaty-making venture. As such, they help shape the framework of what might be within the realm of acceptable outcomes at negotiations. Let me cite two examples.
First let's consider the MAI (Multilateral Agreement on Investment). These negotiations failed primarily because key NGOs weren't consulted. A broader political consensus did not underlie what governments were trying to achieve. Next thing you know, the Globe and Mail features a front page piece on "How the internet killed the MAI."
Second, with regard to the ICC negotiations, there are a number of provisions in the statute which have NGO fingerprints all over them. Articles on victim and witness protection and compensation were mentioned the other night, as well as mainstreaming gender issues throughout the treaty. Let's consider another: the idea of an independent Prosecutor. As the U.S. delegates kept reminding us, an independent ICC Prosecutor wasn't in the initial draft statute put forward in 1994 by the UN's International Law Commission. But NGOs and Like-minded governments made the case that an ICC would not function consistently and reliably if investigations and prosecutions were to be initiated on the basis of state complaint or Security Council referral.
The idea of an independent prosecutor resonated with the general public and was one of the most widely cited benchmarks of an "independent and effective" ICC. It became so important that, in the opinion of most observers, governments would not have been able to leave Rome without this as a component of the treaty. The point here is that through the public education function, NGOs are able to "move the goal posts," i.e. to influence the parameters of what will sell politically.
Finally, one last, perhaps obvious point. NGOs are more effective these days not only because there are more of them. The tools of their information-brokering trade have made their work much easier. We are all here well familiar with the way desk top publishing, the internet and other electronic communications have changed our lives, making the world a smaller place. NGOs are prime beneficiaries. We should in this context remember that these networking tools are still not yet widely available to many in the "two-thirds world." That is changing rapidly. But we're not a global village yet.
Having talked about some of the ways NGOs are changing the treaty making process, I'd like to say a few words about the limitations of the NGO voice in world affairs.
The number of NGOs and their influence on international politics has increased dramatically not only because more people happen to have a modem and extra time on their hands. As I mentioned earlier, there is a growing roster of global problems, a greater need for international cooperation, a growing agenda for treaty makers.
People care about the problems affecting their lives. So it's not surprising that, along with this global problematique, comes a demos -- an informed public advocating political action on a shared public policy agenda.
NGOs are not the best candidates to reflect this public interest. They are not democratically representative. (There is often a lack of democratic practice within individual organizations.) They are not very accountable to broader publics, except their own circle of members and supporters.
But one looks in vain for any other vehicle or forum for the necessary global debate and dialogue which can help forge the type of political consensus on global issues so needed to help drive the treaty making process. The UN General Assembly serves as a yearly record of the expressed views of national governments. But, setting aside the much-lamented overcrowding of the GA agenda and yearly repetition of set national positions, its more serious drawbacks and failures are built-in. As a forum for the bargaining among nation states, it is not structured to deal reliably with the need for international cooperation on the growing roster of supranational political problems. Far too often, global issues which should be a matter of common cause, are viewed by GA diplomats in terms of relative gain or loss for their government. Progress on humanity's shared global interests loses ground in the bargaining and competition among member states.
My hope for the long term is that parliamentarians will become more active on international issues. As we become more interdependent, national governments lose their grip on the levers of governance, their capacities to regulate public affairs. National parliamentarians must recognize this and see that their responsibilities as elected representatives means that they must become more involved in global affairs.
One model is the evolution of the European Union, where a role for parliamentarians was built in to the institutional machinery at the outset. As the free trading union grew to encompass a wider range of governance functions, the European Parliament also evolved. It became an elected body. It took on some (probably not enough) legislative functions. It was there to enable the forging of a political consensus on the evolution of the union.
My hope that parliamentarians will become more involved in international affairs and help address what might be called a "global democratic deficit" may be more theoretical than real. There is very little in the behaviour of parliamentarians to offer encouragement. Our Canadian House of Commons Foreign Affairs Committee took up the ICC issue very late in the day. And last year when parliamentarians met in Quebec city at a conference to consider the proposal for a Parliamentary Assembly for the Americas (a consultative body affixed to a possible Free Trade Area for the Americas), there was excellent attendance for a few opening speeches and then a lot of sightseeing while workshops were scheduled. In other words, they treated it like a junket.
So, to conclude,
Thank you.
(posted Oct25.98)
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