“Lawmaking Under Pressure” Book Symposium – The Art of Compromise

About the author(s):

Verity Robson is the Legal Counsellor at the Permanent Mission of the United Kingdom to the United Nations and Other International Organisations in Geneva, where she provides advice on public international law and negotiates multilateral agreements. She previously served as an international law adviser in the Foreign and Commonwealth Office and the Government Equalities Office, and undertook a secondment to a public inquiry into allegations that international law was breached by the UK in Iraq. Verity holds Master’s degrees from the University of St Andrews and SOAS, University of London. She has been admitted as a Solicitor of the Senior Courts of England and Wales and in Scotland. Verity Robson can be found on twitter at @verityrobson.

After several years participating in multilateral negotiations, including on matters of international humanitarian law, within the frameworks of both the United Nations and the International Conference of the Red Cross and Red Crescent Movement, I was curious to read how the practice would be theorised in Giovanni Mantilla’s impressively researched and elegantly written book, which draws on records of the negotiation processes that resulted, respectively, in Article 3 common to the four Geneva Conventions of 1949 and in the second Additional Protocol of 1977.

Mantilla posits that State agreement to new rules of international law follows a two-stage pattern: firstly, what he terms “normative pressure” by norm entrepreneurs who put new standards on the intergovernmental table (p21) and, secondly, “forum isolation” during negotiations, when the fear of reputational damage shames an eventual minority of resistant States to acquiesce (p23).

From the perspective of a practitioner, the first stage rings true. Norm entrepreneurs play an essential role in bringing States to the negotiation room. Whether individual campaigners, civil society organisations, UN mandate holders, academics or other experts, their expertise, passion and vision for – in the case of non-international armed conflicts – a safer, more humane, better-regulated global arena play a vital role in drawing attention to legal lacunae as well as areas in which international legal protections could be strengthened.

Likewise, Mantilla’s discussion of the nature of multilateral compromise is compelling: “a collective political achievement shrouded in the powerful mantle of international law” (p8). He understands that, in the words of Philip Allott, “Negotiation is a process for finding a third thing which neither party wants but both parties can accept” (ibid). The eventual product – be it treaty or resolution – is a careful balance of components which, taken together, embody the parties’ shared concerns and reflect a sufficient number of their individual objectives to achieve broad acceptance.

But the suggestion that opprobrium could be the catalyst for compromise overlooks the underlying bases for multilateral negotiation. States engage rationally in multilateralism in recognition of the fact that, for the good of international peace and security, there is merit in sacrificing some exclusively national interests on the understanding that others will reciprocate. The necessary extent of those sacrifices is not usually apparent until negotiations are underway. A national position will be refined over the course of the process – which may last years, or straddle a change in administration.

Mantilla suggests that, “at the end of a lawmaking process there would appear to be more or less clear winners and losers” amongst participating States. Experience does not bear that out: as international actors, States have a right and perhaps even a duty to shape the global framework. At the conclusion of a productive law-making process there is generally a feeling that the job has been done and that progress, to a greater or lesser extent, has been made. In fact, the ones who may feel a degree of disappointment are the norm entrepreneurs who, by virtue of their role as champions for change, often strategically advocate for a norm pinned higher above the lex lata than the average State is willing to climb.

Where the exact balance of compromise among States will finally lie is harder to predict, and not only because the composition of the ultimate legal instrument reflects compromises between as well as within its constitutive elements. Power pulls the weight of compromise closer to the holder’s position, yet the power wielded in any given negotiation is correlative not only to geopolitical status more broadly but also to strategic and political alliances: whether between capitals or, more locally, between delegations.

Pragmatism about the consequences of compromise plays a role, too. In practice adoption means only that a majority of States parties are sufficiently content to allow the instrument to join the thematic corpus: it is not necessary for every one of them to have the intention to ratify the instrument, to help bring it into force internationally or to give effect to it domestically. A minority of States, knowing that they are unable to influence the text further toward a form they could support, may be resigned simply to knowing that, while they lack the numbers to block its adoption, they are under no obligation to accept the instrument as binding upon themselves. The prospect of crystallisation as custom is, at that point, a long way off.

Mantilla acknowledges this when he describes the results of multilateral lawmaking as “momentary achievements […] which despite being codified nevertheless remain subject to intense contestation” (p9). Forum isolation is therefore a misplaced concept: adoption is not the end of the process. If a State were truly ‘shamed’ into accepting a new norm, it would sign and ratify, too.

Two final points. I found puzzling the characterisation as “deception tactics” (p10) and “covert pushback” (pp60, 90, 132) of delegations’ attempts to shape treaty provisions with “ambiguous language which they read in a narrow manner but that was more generously interpreted by their proregulation peers” (p10). Ambiguity is inherent to language, and constructive ambiguity is integral to compromise. Given the different policy objectives, constitutional arrangements and languages that delegations bring to the table, it is hard to conceive of a successful multilateral negotiation that does not depend on compromise language, capable of simultaneously fulfilling competing needs.

Lastly, the word “codification” makes frequent appearances throughout the book, though what often appears to be signified is the progressive development of international humanitarian law in treaty format. Codification, as the International Law Commission might understand it, is something else.

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