NORMS WITHOUT THE GREAT POWERS Norms without the Great Powers International Law and Changing Social Standards in World Politics ADAM BOWER 1 OUPCORRECTEDPROOF–FINAL,12/11/2016,SPi 3 GreatClarendonStreet,Oxford,OX26DP, UnitedKingdom OxfordUniversityPressisadepartmentoftheUniversityofOxford. 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For Magdalena: I love you ~ Ti amo ~ Kocham Cię Preface This book is about the prospects for global governance without the great powers. More specifically, it concerns the consequences of pursuing inter- national legal rules and more broadly, norms, in situations where the most powerful states in the international system do not support the rule-making efforts. The question of whether the international community should seek to developnewinternationalstandardswithoutthebuy-inofgloballeaderslike the United States and China is a matter of no small importance. Indeed, despite the renewed talk of multilateralism that has characterized the Obama presidency, the United States retains an ambivalent relationship toward international institutions, whether concerning the laws of war (‘tar- geted killing’ programmes in the War on Terror), human rights (detention and treatment of terrorist suspects), or global climate change and environ- mentalprotectiontonamebutafewprominentexamples.Yettheseandother subjects of global import donot recedein theface of resistance from leading states—ifanything,theyonlybecomemoreintractableandchallenging.Hence theneedforseriousthinkingconcerningwhenandhowinternationalcooper- ationmightbepossible—anddesirable—undersuchtestingconditions. YetInternationalRelationsasascholarlydisciplinehascomparativelylittle directly to say about these questions, since prominent theories assume that successfulmultilateralinitiativesrequirethestewardshipoftheleadingstates. This notion of a special role—and commensurate responsibilities—for great powers also resonates with policymakers and the general public. For these reasons, the absence of the United States and other great powers from inter- nationalinstitutionsdeservesdetailedanalysis. This book aims to evaluate the promise, and limits, of multilateralism without the great powers in light of its purported costs. My interest in this topicdatesbacktothecommencementofmydoctoralstudies,andaseriesof conversations with my subsequent dissertation supervisor Richard Price. Dick’s observation, articulated in his 2004 International Journal article titled ‘Hegemony and Multilateralism’, was that actors seeking to generate new institutions contrary to the wishes of dominant states face a strategic choice with three principal options: (a) proceed despite great power opposition, resulting in a stronger agreement but without key participants (in the hopes thatmembershipcanbeexpandedlater);(b)grantconcessionstogreatpower demands, leading to a weaker treaty but with broader initial buy-in; or (c) abandon formal multilateralism altogether, and instead seek non-binding understandingsornothingatall.Acorollaryofthiscalculationisthequestion: underwhatcircumstancesisaparticularapproachadvisable? viii Preface NormswithouttheGreatPowersseekstocontributetothedebateoverthe future of multilateralism and global governance by providing an in-depth assessment of two archetypal examples of the first of these strategic options— thatis,creatingglobalinstitutionswithoutgreatpowersupport.Todosothe book seeks to answer two fundamental questions, one of which is primarily theoretical in nature, the other empirical. First, how might treaties generate broadly influential norms without the military, economic, and diplomatic resources frequently associated with predominantly powerful states? Second, hasthispotentialbeenrealizedinpractice:havetheAntipersonnelMineBan TreatyandInternationalCriminalCourtengenderednewsocialexpectations andpolicychangeinlinewiththeircoreobligations,andwhatvariancecanbe observedbetweenthetreatiesandacrossthesystemofstates?Aswillbecome apparent,thisbooktakesasitscentralfocusthe‘sowhat?’—or‘whatnext?’— problem that follows from the successful negotiation of a multilateral treaty. Thecreationofabindinglegalagreementthusservesasthestartingpointfor this study, which attends instead to the subsequent experience of implemen- tationandactorchange. Initsapplicationofacademicconcernsfortheoryandempiricalevidenceto practical questions of contemporary global governance, it is hoped that this book will appeal to a wide range of readers. International Relations scholars will, I believe, regard this a worthy subject of inquiry and a productive analytical approach, for reasons I laid out briefly above and elaborate upon in the chapters to come. It is also my sincere wish that diplomats and civil society practitioners involved in disarmament, international criminal justice, and human rights will find much that resonates with their own experiences and assessments, and that theevaluation of the cases willcontribute in some smallwaytofuturediscussionsconcerningtheprospectsforadditionalnorm- buildingin timesof greatpowerambivalence.Finally,Ihopethatthecentral concerns of this book will equally appeal to those in the wider public who retainacommitmenttothepursuitofan(evenmodestly)lessviolentworld. Even a book-length study must necessarily exclude important lines of inquiry, and the present work is no exception. Readers will notice that the proceeding analysis is primarily directed towards the experiences of states in adopting,contesting,andimplementingthetreatiesandassociatednormsthat aretheobjectofthisstudy.Forthisreason,otheractorsofconsequencereceive comparatively less attention. Any comprehensive assessment of legal and normative developments in world politics would have to encompass the increasingly important roles played by non-state entities, a list that would include non-state armed groups; transnational civil society actors; intergov- ernmental organizations, secretariats, and bureaucracies; multinational cor- porations; and private military companies to name but a few of the most relevant.Theparticularobjectivesofthisproject,andtheresultingdemandsof research design and data collection aimed at demonstrating the extent of Preface ix change with and among states, pointed to a more bounded focus. However, the book does detail the crucial agency of transnational civil society— especially the International Campaign to Ban Landmines, International Committee of the Red Cross, and Coalition for the International Criminal Court—inpromotingimplementationandaddressingnon-complianceinthe treaty cases, and in this respect takes seriously their vital influence in the still-evolvingstatusoftheseinstitutions. The decision to largely forego a systematic assessment of non-state armed groupsinthedevelopmentoftheMineBanTreatyandInternationalCriminal Court, in particular, was not made lightly. After all, non-state armed groups are prominent participants in contemporary armed conflict and as such contribute to the promotion of, and resistance to, international norms con- cerning the regulation of armed violence and criminal accountability. How- ever, further broadening the scope of the study would come at the cost of analyticdepth,asoneofthevirtuesofthecurrentpresentationisthewealthof detailed data with which to assess the relative success in changing social expectationswithinandbetweenstates.Otherscholarshaverecentlyprovided sophisticated accounts of the increasing engagement of non-state armed groups with international humanitarian law (e.g. Jo 2015) and interested readers woulddo well to consult these sources. Insofar as this book does not presumetoofferthelastwordonthesubject,therefore,myhopeisthatitwill provide impetus for further research on the contemporary status and trajec- tories of non-great power institutions which can—and should—include a numberofproductiveavenuesofinquiry. AdamBower Edinburgh 13May2016