Christopher A. Whytock

Who 'Won' Libya? The Force-Diplomacy Debate and Its Implications for Theory and Policy

The debate over credit for Libyas shift away from rogue state policies, most especially by settling the Pan Am 103 Lockerbie terrorism case and abandoning its weapons of mass destruction (WMD) programs, is lively politically and challenging analytically. It has important implications for theories of force and diplomacy, particularly coercive diplomacy, and policy debates including such cases as Iran and North Korea. U.S. coercive diplomacy against Libya can be divided into three phases: the Reagan strategy of unilateral sanctions and military force, which largely failed; the mixed results from the more multilateral strategy of the George H.W. Bush and Bill Clinton administrations; and the substantial success achieved through the secret direct negotiations initiated along with Britain in the latter Clinton years and furthered under George W. Bush, which culminated in Libya closing down its WMD programs. These differences in success and failure are principally explained by (1) the extent of balance in the coercer states strategy combining credible force and deft diplomacy consistent with three criteriaproportionality, reciprocity, and coercive credibilitytaking into account international and domestic constraints; and (2) target state vulnerability as shaped by its domestic politics and economy, particularly whether domestic elites play a circuit breaker or transmission belt role in blocking or carrying forward external coercive pressure.

Private-Public Interaction in Global Governance: The Case of Transnational Commercial Arbitration

Scholars of international relations and global governance are increasingly interested in the transnational commercial arbitration system. So far, they have tended to characterize the system as a form of private global governance. However, using a combination of empirical and legal analysis, this article draws attention to the critical role of the state in the transnational commercial arbitration system, and shows that both rule-making and enforcement in the system depend largely on interactions between private and public actors. By treating arbitration as a form of private governance, scholars run the risk of obscuring these interactions and hindering their understanding of how transnational economic activity is governed. This article therefore argues for a modest reorientation of global governance scholarship on transnational commercial arbitration in a direction that focuses more closely on private-public interaction. More broadly, this article suggests that understanding interactions between private and public actors is a key to understanding global governance in general, and it raises doubts about the analytical desirability of a sharp distinction between private and public forms of global governance.

Faith and Scepticism in Private International Law: Trust, Governance, Politics, and Foreign Judgments

In both the European Union (EU) and the United States (US), the law governing the enforcement of foreign judgments is evolving, but in different directions. EU law, especially after the elimination of exequatur by the 2012 ’Recast’ of the Brussels I Regulation, increasingly facilitates enforcement in member states of judgments of other member states’ courts, reflecting growing faith in a multilateral private international law approach to foreign judgments. In US law, on the other hand, increasingly widespread adoption of state legislation based on the 2005 Uniform Foreign-Country Money Judgments Recognition Act (2005 Act), which adds new case-specific grounds for refusing enforcement, suggests growing scepticism. In this essay, I explore possible reasons for these diverging trends. I begin with the most obvious explanation: the Brussels framework governs the effect of internal EU member state judgments within the EU, whereas the 2005 Act governs the effect of external foreign country judgments within the US. One would expect more mutual trust – and thus more faith in foreign judgment enforcement – internally than externally. But I argue that this mutual trust explanation is only partially satisfactory. I therefore sketch out two other possible explanations. One is that the different trends in EU and US law are a result of an emphasis on ’governance values’ in EU law and an emphasis on ’rights values’ in US law. Another explanation – and perhaps the most fundamental one – is that these trends are ultimately traceable to politics.