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Multilateralism and Its Discontents
Jose E. Alvarez*
Full text available: PDF format **
Abstract
The contributions by Gerson and Anderson in the previous issue of EJIL suggest that multilateralism's critics are not merely hard-headed political realists but include both ends of the political spectrum and a wide number of scholars emerging within the international legal academy - including critical legal scholars, feminists, constructivists, liberal theorists, public choice theorists and those within law and economics. International lawyers, who have for too long defined themselves by our opposition to unilateralism, need to define the role and limits of multilateralism as well as of unilateralism. Both multilateral and unilateral processes for law-making and law enforcement may harm mankind and undermine the rule of law. Both Gerson and Anderson are, in radically different ways, warning us against multilateralism that fails to develop an organic relationship between the international and the domestic.
Most of the contributors in this and the last issue of the EJIL have ably, even convincingly, denounced unilateralism. Repeatedly, we have put unilateral action, especially that undertaken by the United States, in the dock and convicted such action as an offence to the international legal order. Although we did not manage to define `unilateralism' coherently or consistently, most of us have long defined ourselves as its opponents and we continue to do so. Allan Gerson and Kenneth Anderson did not follow this script. Discussing the United States' stance on financing the UN, Gerson had the temerity to suggest, albeit indirectly, that international legality - in terms of conformity with the UN Charter - was not the final arbiter of legitimacy. Anderson, discussing the Landmines Convention, attacked another sacred icon, the concept of `international civil society'. Both seemed inclined to put multilateralism in the dock.
The adverse, even emotional, reactions to Gerson's and Anderson's papers1 tell us much about the internationalist project and about international lawyers' blind spots. Why do Gerson's and Anderson's views, reminiscent of those expounded by realists for decades, make us so defensive?
International lawyers share an appealing evangelistic, even messianic, agenda. We are on a mission to improve the human condition. For many, perhaps most of us, this mission requires preferring the international `over the national, integration over sovereignty'.2 Multilateralism is our shared secular religion. Despite all of our disappointments with its functioning, we still worship at the shrine of global institutions like the UN. As Martti Koskenniemi suggested some time ago, as a group, international lawyers tend to see ourselves as `among the avant-garde of liberal modernity - against conservative nationalism, sovereignty and power politics'.3 By putting multilateralism in the dock, Anderson and Gerson were implicitly challenging the notion that bettering the lot of human kind requires expanding the competence and enforcement powers of international institutions. We were offended by the suggestion that we need to re-examine the idea that multilateral approaches, preferably accompanied by institutionalized dispute settlement, are the most enlightened responses to modern dilemmas. We were distressed by the suggestion that we have allowed our evolutionary aspirations and logic to colour our capacity for critical thinking. Like Susan Marks, Gerson and Anderson were criticizing us for acting as if we, the enlightened international elite, know what the `end of history' portends: namely, internationalist institutions responsive to the functionalist needs of the global polity.4
The very title of the conference suggests that the burden is on unilateralism to prove its worth. Predictably, most of the papers examine the legality or wisdom of particular (often US) unilateral responses; few ask whether anything other than a unilateral response is actually needed. Gerson and, most especially Anderson, suggest, by contrast, that the burden of proof should be on those responsible for the proliferation of multilateral treaties, regimes and institutions, including some 55 international or regional entities devoted to dispute settlement alone.5 Gerson and Anderson force those of us still engaged in the internationalist project to consider what we have wrought in its name. The grains of truth contained in their analyses force us to re-examine our instinctive tendency to criticize unilateral responses simply because these appear to run counter to our professional commitment to further what Bruno Simma has called our global `community interest'.6
* Professor of Law,
Columbia Law School. Some of these remarks are adapted from the author's
presentation `The United States Financial Veto' printed in American Society of
International Law, Proceedings of the 90th Annual Meeting, 27-30 March,
1996 (1997) 319.
** The free viewer (Acrobat Reader)
for PDF file is available at the
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Systems.
1 See
papers by Cardenas and Hathaway respectively.
2
Koskenniemi, `International Law in a Post-Realist Era', 16 (1995) AYBIL
1, at 1.
4 See
Marks, `The End of History? Reflections on Some International Legal Theses', 8
EJIL (1997) 449 (criticizing `liberal millenarianism').
5 For a
list of existing international dispute settlement bodies, including both
judicial and quasi-judicial venues, see supplement to 31 NYUJL and Pol.
No. 4.
6 See
Simma, `From Bilateralism to Community Interest in International Law', 250
RdC (1994, VI) 217.
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