Richard H. Steinberg

In the Shadow of Law or Power? Consensus-Based Bargaining and Outcomes in the GATT/WTO

This article explains how consensus decision making has operated in practice in the General Agreement on Tariffs and Trade/World Trade Organization (GATT/WTO). When GATT/WTO bargaining is law-based, consensus outcomes are Pareto-improving and roughly symmetrical. When bargaining is power-based, states bring to bear instruments of power that are extrinsic to rules, invisibly weighting the process and generating consensus outcomes that are asymmetrical and may not be Pareto-improving. Empirical analysis shows that although trade rounds have been launched through law-based bargaining, hard law is generated when a round is closed, and rounds have been closed through power-based bargaining. Agenda setting has taken place in the shadow of that power and has been dominated by the European Community and the United States. The decision making rules have been maintained because they help generate information used by powerful states in the agenda-setting process. Consensus decision making at the GATT/WTO is organized hypocrisy, allowing adherence to the instrumental reality of asymmetrical power and the sovereign equality principle upon which consensus decision making is purportedly based.

Judicial Lawmaking at the WTO: Discursive, Constitutional, and Political Constraints

Since the establishment of the World Trade Organization (WTO), commentators have debated the wisdom of replacing the model of political-diplomatic dispute settlement under the General Agreement on Tariffs and Trade (GATT) with a model of legalized dispute settlement. Under the GATT model, a dispute settlement panel report could be given full legal force only if adopted by a consensus of GATT Contracting Parties, including the party that lost the case. Under the WTO model, a report of the panel or the Appellate Body is adopted automatically unless WTO members, including the prevailing member, decide by consensus to block it, which is sometimes referred to as “negative consensus.” Many analysts whose work has focused on the politics of dispute settlement have emphasized the success, political flexibility, and apparent sustainability of the older model and cautioned that the legalized approach might be too cumbersome in various political contexts. Those favoring the legalized approach have emphasized its legitimizing capacity and potential to constrain more powerful WTO members from engaging in unilateral or rule-breaking behavior.

Power and International Law

A hundred years ago, the American Journal of International Law (AJIL) was founded by a group of publicists who believed that international law could abolish (or at least substantially diminish) the role of power in world affairs. So deep was this belief that it often served as a background operating assumption in international legal scholarship and did not even require discussion. But since 1940, dozens of articles in the Journal have focused on the relationship between law and power. Indeed, many AJIL articles have been written by scholars and practitioners whose life work has focused on power and international law—how power constrains international law (or dooms it to irrelevance), how the powerful can harness international law to their ends, and how international law may autonomously reconfigure power in its own right.

Power and Cooperation in International Environmental Law

This major work consists of carefully commissioned original and incisive contributions from leading scholars in the field of international economic law. Covering a full range of topics, the Handbook provides an accessible treatment of the law in each area, as well as a thoughtful synthesis and discussion of related public policy issues from a broadly social science perspective.

An Empirical Study of ICTY and ICTR Sentencing: Doctrine Versus Practice

The International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) were tasked as vehicles for deterrence against future atrocities, retribution against perpetrators, restoration of peace and reconciliation, substituting and reflecting local customs, establishing a historical record of the events, building international law and jurisprudence on the topic, expressing humanity’s stake in redressing horrendous crimes, and justice. The Tribunals expressly adopted all of the objectives identified above and began building their sentencing doctrine around those objectives. This paper asks what factors in fact explain the length of sentences handed down by the ICTY and ICTR. Do the factors that the Tribunals claim to be considering in sentencing in fact affect sentence length? Do the sentencing factors rejected by the Tribunals as inappropriate in fact bear upon sentence length? Do factors not discussed at all by the Tribunals affect sentences? We find that several factors that the Tribunals claim matter bear no significant relationship to sentence length, and that one factor that is supposed to be inapposite is in fact related significantly to sentence length. These findings raise important questions, which we also address: Why aren’t these international courts doing what they say they are doing? And to what extent might the Tribunals’ de facto sentencing practices advance or undermine their various (and sometimes conflicting) objectives?

Punishment and policy in international criminal sentencing: an empirical study

The International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) have sentenced over 130 perpetrators for genocide, crimes against humanity, grave breaches of the Geneva Conventions, or war crimes. Sentencing judgments discuss the factors considered by the judges and impose a term of imprisonment. We regressed the sentence length meted out for each perpetrator on the doctrinal factors said to explain the term of imprisonment and on other factors rumored to affect sentencing. We find that the gravity of the crime and aggravating factors declared by the Tribunals as sentencing factors are significantly related to sentence length but that the mitigating factors proclaimed by the tribunals—all but one of which are associated with diplomatic and policy objectives—are not significantly related to the term of imprisonment. We conclude that international criminal sentences prioritize punishment of the individual based on the seriousness of the crime over the other diplomatic and policy goals that the judges claim to be pursuing. We conjecture that this discrepancy is based on functional differences: the sentencing judgment discussion seeks to advance the many policy objectives of the Tribunals, while the declared term of imprisonment is largely an expressive act of retributive justice, which might also facilitate deterrence and reconciliation.

UCLAForum.com – ICT and ICC OTP case study

Purpose – UCLAForum.com is a co‐operative venture between the UCLA Sanela Diana Jenkins Human Rights Project and the International Criminal Court Office of the Prosecutor (ICC OTP). The main purpose of the forum is to create an opportunity for the greater legal community to engage in a dialogue covering topics of special interest to the Prosecutor. The purpose of this paper is to document the process of developing this unique resource in the form of a case study.Design/methodology/approach – This study provides the history of the project, web‐use statistics, structural details that shed light on the use of information communication technology (ICT) within a complex partnership of UCLA School of Law and ICC OTP, and provides a summary of the outcome to date.Findings – There have been six debates to date. Individuals from 190 countries speaking 90 languages have visited the forum and almost 280,000 words have been written on the Forum since its launch in September 2010.Social implications – UCLAForum.com is...

Trade: In the Shadow of Law or Power? Consensus-Based Bargaining and Outcomes in the GATT/WTO (2002)

International organizations use one or a combination of three types of decision-making rules for most non-judicial action: “majoritarian” (decisions are taken by a majority vote of member states, and each member has one vote); “weighted voting” (decisions are taken by a majority or super-majority, with each state assigned votes or other procedural powers in proportion to its population, financial contribution to the organization, or other factors); or “sovereign equality.” Organizations with these latter rules – which are rooted in a notion of sovereign equality of states derived from natural law theory and later adopted by positivists and others – formally negate status, offer equal representation and voting power in international organizations, and take decisions by consensus or unanimity of the members. Organizations like the Association of Southeast Asian Nations (ASEAN), Conference on Security and Cooperation in Europe (CSCE), the Executive Committee of the International Monetary Fund (IMF), the GATT/WTO, Common Market of the South, Mercado Comun del Sur (MERCOSUR), North Atlantic Treaty Organization (NATO), Organization for Economic Cooperation and Development (OECD), and many specialized agencies of the United Nations (UN), including the UN Development Program (UNDP) and the Executive Committee of the UN High Commission on Refugees (UNHCR), usually have taken decisions only with the consensus or unanimous support of member states. These organizations employ a host of procedures (described below) that purport to respect the sovereign equality of member states.

Reconciling Transatlanticism and Multilateralism: Great-Power Management of the World Trading System

In 1995, geostrategic demands and trade interests converged to refocus attention on transatlantic trade policy. With the fiftieth anniversary of the end of the Seeond World War and imminent plans for expanding NATO, geostrategists searched for trade policy initiatives that would reinforce the US commitment to Europe.2 With fresh memories of ultimately successful European Union-US cooperation in closing the Uruguay Round and an awareness that transatlantic trade differences and rows had almost sunk the Round, trade policy strategists sought new ways to improve transatlantic relations.3 That renewed interest in transatlanticism generated new trade initiatives and agreements between the European Union and the United States, statements of support for extensive transatlantic trade liberalization, and a formal dialogue between business leaders in the United States and Europe intended to generate new government-to-government trade agreements, as well as several new books on transatlantic trade relations.