Exclusions of Grandeur

International Negotiation: A Journal of Theory and Practice,
Vol. 8, No. 1, April 2003, The Hague

For two years at the U.S. State Department, I worked to convince developing countries, our European allies, and the United Nations that U.S. dues to the United Nations should be lowered and that the United Nations itself must be reformed — or else the United States would not pay back its more than $1 billion in arrears.

Through various pressures, a few compromises, and sheer stubbornness, the United States prevailed. We didn’t put a name on how we had proceeded. But after reading a recent issue of the journal International Negotiation, I realize, much like the protagonist of Le Bourgeois Gentilhomme who suddenly discovered he had been speaking prose all his life, that I have engaged at various times (sometimes simultaneously!) in cosmopolitanism, progressive multilateralism, and hegemonic coercion.

Jargon aside, the thrice-yearly journal’s April 2003 edition, centered on the theme of "multilateral negotiation and the management of complexity," offers an extremely valuable set of articles on the changes under way in the craft of international negotiation.

In one such article, Carleton University professor Fen Osler Hampson and Toronto lawyer Holly Reid examine the five-year process that led to the successful negotiation of the Ottawa Treaty to ban land mines and the much longer one leading up to the signing of the Rome Statute of the International Criminal Court (ICC) in 1998. The authors duly note that in the area of human security, middle power states such as Australia, Belgium, and Canada are now allying with non-governmental organizations (NGOs) in new, robust coalitions. For example, these countries — plus Norway, New Zealand, and Peru — in concert with the International Committee of the Red Cross, the International Campaign to Ban Landmines, and the Vietnam Veterans of America Foundation obtained ratification of the Ottawa Treaty, despite U.S. opposition. These new alliances buck the traditional view that great powers drive negotiating processes. Most notably, the authors believe the size and diversity of the pro-Ottawa coalition allowed it to isolate and later co-opt some of the great powers.

But the authors don’t examine the implications of excluding great powers. In the case of Ottawa, the United States effectively assured the success of the treaty by following most of its prescriptions: proscribing manufacture, export, and most usage of land mines, while holding on to the country’s exceptions. These included using a particular kind of anti-tank mine and continuing deployment of land mines along the Korean cease-fire line. If the United States had not unilaterally implemented the main provisions, one could question the true value of the treaty, most of whose sigNATOries neither manufactured, exported, nor deployed land mines prior to agreeing to the ban.

The implications of the outcome of the icc treaty are more ominous. Hampson and Reid ignore the poisonous atmosphere of the negotiations’ final stage, where it seemed participants, especially the NGOs, wanted to force the United States not to sign. The United States engendered this anger through its complex and rigid position; the country repeatedly argued for some type of U.S. veto over the court’s jurisdiction over Americans. The conference, with NGO acquiescence, made concessions to other countries — for example, allowing France temporarily to opt out of jurisdiction over war crimes — but denied any deference to a similar request by the United States. In a desperate, last-minute effort, David Scheffer, leader of the U.S. delegation, asked that the United States be able to opt out of jurisdiction over war crimes and crimes against humanity until the court had more experience handling these issues. The conference refused. The treaty went on to approval and ratification without the United States.

Exclusion of the United States has led to what I would add to the lexicon of theoretical concepts: unforeseen consequences. In this case, supporters of the ICC  now must face the fierce opposition of the Bush administration rather than the more benign variety of the Clinton administration. The United States has recently forced various countries to sign bilateral agreements exempting U.S. personnel from the jurisdiction of the court and forced the United Nations temporarily to exempt U.S. members of U.N. peacekeeping operations, thus fundamentally undermining the treaty.

William Zartman, one of the guest editors of this issue, offers a theorem that explains a good deal of U.S. hegemonic behavior: "We are trapped by our own proclivities, being more sensitive to losses than to gains and therefore inviting coercion rather than inducement." U.S. negotiators, conscious of the contentiousness of senatorial ratification processes, know that proclivity only too well.