Introduction
International law is still largely a construct that is created by, and imposes obligations on nation-states. The creation of obligations depends on state consensus. Obligations are imposed on states as subjects. This understanding often shifts focus away from a variety of non-state actors who continue to function as crucial entrepreneurs for the galvanization of several international law regimes. This blog post highlights the contribution of four different kinds of entrepreneurs in the past- an inter-governmental organisation made up of states, an individual, and a private corporation in three different regimes. This analysis is particularly important for regime creation today (as illustrated through Microsoft’s norm-entrepreneurship) in the modern digital age, where imposition of obligations needs to rely on a decentralized system with the co-operation of private multi-national tech corporations, along with observation and auditing by a range of civil society actors. To understand the entrepreneurship of new regimes however, we must look back in history to the creation of old ones. I have previously covered each of these regimes in greater detail in a paper here.
Entrepreneur 1: Inter-Governmental Organization- Asian-African Legal Consultative Organisation and the Law of the Seas
After the failure of the six-week United Nations second Conference on the Law of the Sea (“UNCLOS II”) in Geneva in 1960, it was clear that a third conference was desired by all the states that needed to be brought to the negotiating table to agree on the contours of a broad agreement. The incentives were different for each nation- the developed world wanted to preserve the ‘freedom of high seas’ framework that allowed continued exploitation of resources in open waters, while the newly decolonised developing world saw this as a clear opportunity to preserve the resources in the tracts of water near their shores.
In this process, the Asian-African Legal Consultative Committee ( then ‘AALCC”, now Asian-African Legal Consultative Organisation or AALCO) played a pivotal role. AALCO was established during the Bandung Conference of the Non-Aligned Movement in 1955 and was a key entrepreneur for the group of developing countries seeking to create a more equitable framework. A history of AALCC may be gleaned from the reports published in its online archives.
At the meeting of the Working Group of the AALCC on the Law of the Sea held in Geneva (1971), many delegations put forward papers that elucidated the positions of their respective states on key legal issues. The delegation of Kenya submitted a noteworthy paper on the ‘exclusive economic zone’ concept, while the delegation of Indonesia submitted a paper on the ‘concept of archipelago’ and the Malaysian delegate submitted a paper on ‘International Straits.’ (Archives may be found here.)These ideas were subsequently raised before the Second Committee of the Law of the Seas Conference and treated as a robust representation of the Asian and African countries. Following the initial success of these initiatives, the AALCC also worked on a regime to regulate the deep-sea bed. After the third session of the Law of the Sea Conference in Geneva (1975), which produced the Single Negotiating Text of the treaty, AALCC also prepared a detailed report in order to guide member states such that they could shape the regime in a manner that benefited their citizens and was more tailored to their socio-economic needs.
Entrepreneur 2: Non-Governmental Organization- International Committee of the Red Cross (ICRC) and International Humanitarian Law
AALCO’s role in shaping the modern UNCLOS framework is a case of an inter-governmental organisation bringing states together when enthusiasm already existed, and coalitions were beginning to form. The case of the International Committee of the Red Cross’s involvement with the development of International Humanitarian Law is slightly different- an international NGO for first capturing the spirit of peace in the aftermath of World War II, and subsequently catalysing a process that was fizzing out. This history is captured in Francois Buignon’s detailed article for the Chinese Journal of International Law.
There had been some progress made towards codifying the laws of war through the 1907 Hague Conventions. The four Geneva Conventions in 1949 were negotiated without much conflict due to the relatively uncontroversial and aspirational nature of the rules laid down. The ICRC played a significant pro-active role at this stage itself. Through a memorandum dated February 15, 1945, the ICRC stated that it would initiate consultations with various states to collect expertise and documentation. They also prepared the four draft conventions and circulated these documents to the Swiss government, which served as the depository of the Geneva Conventions and further circulated these drafts to all countries which were invited to the 1949 Conference.
However, very soon after their drafting, it was clear that these rules could not govern a world that was changing fast with new actors, including the newly decolonised states and non-state actors coming into the mix. The ICRC therefore took the lead in pressing for another conference in 1974. It already had a draft treaty prepared. The draft was created based on the experiences of their personnel, who worked on rendering humanitarian assistance and the various critiques of the Conferences of Governmental Experts which took place in 1971 and 1972.
The ICRC’s contributions culminated in the Additional Protocols, which have been widely signed and ratified.
Entrepreneur 3: Individuals- The ‘Outlawry’ Movement and the Norm Outlawing the use of Force
Well before States entered the arena in terms of conceptualizing a norm outlawing the use of force, individuals took charge- conceptualizing, theorizing and reconstructing international law. This history has been captured wonderfully in Oona Hathaway and Scott Shapiro’s fantastic book titled The Internationalists. Before the 20th century, Hugo Grotius (referred to as ‘The Father of International Law’) argued that warfare could be an alternative to a judicial system for the restoration of rights and ‘righting a wrong.’ This was the status quo for several centuries till a Chicago-based commercial lawyer named Samuel Levinson collaborated with John Dewey, then Professor of Philosophy at Columbia University to kick off what Hathaway and Shapiro term the outlawry movement.
Levinson penned an article for The New Republic titled “The Legal Status of War,” through which he argued that rather than working on cumbersome codes to regulate conduct of atrocities, international law must ban war in its entirety. James Shotwell, Professor of History at Columbia University and Dewey’s colleague was an advisor to President Woodrow Wilson during the Versailles negotiations after World War I. He also wrote to French Foreign Minister Briand and coaxed American Secretary of State Frank Kellogg to co-ordinate the drafting of a universal pact that would outlaw war. With 31 signatories by the effective date, the Kellogg-Briand Pact became a reality in 1924. While it failed to prevent the outbreak of World War II, the language of the pact was utilised by the Sub-Committee on International Organisation that was drafted by Shotwell himself fifteen years later, and served as the basis for the drafting of the United Nations Charter and setting up of the United Nations. Hathaway and Shapiro remind us that ideas matter, and individuals who care about these ideas can do a lot. Greta Thunberg’s individual efforts to protect the environment or Edward Snowden’s campaign to protect user privacy worldwide are modern day examples of such cases.
Entrepreneur 4: Private corporation- Dupont and the Montreal Protocol
Finally, private corporations have been crucial norm-entrepreneurs entering the fray due to several interests. DuPont, the world’s most dominant Chloro-Fluoro Carbons producer was surprisingly a key entrepreneur in the creation of the Montreal Protocol on Ozone Depleting substances. Maxwell and Briscoe have documented Dupont’s participation in a wonderful paper.
They argue that this apparently surprising move was undertaken as CFC profitability was depleting and Dupont had already identified a strategy to develop alternative chemicals. As Dupont started to lose the political debate on continued use of CFC’s, Irving Shapiro, Dupont’s Chief Executive Officer (and a lawyer!) took a stance for various environmental legislation. Dupont’s phaseout of CFCs won accolades from the government. Given the feasibility of this phase-out, DuPont supported the Montreal Protocol which compelled a 50% reduction in CFC production by the year 2000. Industry support was critical to pushing through the Protocol in 1987 and its revisions in June 1990. International regulation granted Dupont the opportunity to shift out of an industry that was fast becoming unprofitable and enter newer and more profitable markets in the long run. These advantages were reaped largely by a concentrated group of industry giants who had an early movers advantage. The negotiation of the Montreal Protocol serves as an example where the interests of key industrial players and government regulators aligned. Industry support spear-headed the process and enabled the shift towards a new international regime.
Entrepreneur 5: Microsoft and the Cyber Norms Debate
We are seeing similar spear-heading today in the cyber-security realm by Microsoft. Microsoft has actively engaged in ‘cyber diplomacy.’ As put by Brad Smith, Microsoft President and Carol Ann Browne in Tools and Weapons,”[Microsoft needed to prop the cybersecurity stool with a third important leg: stronger international rules and coordinated diplomatic action to restrain cyberthreats and help galvanize the international community to pressure governments to stop indiscriminate cyber-attacks.” Microsoft has approached international rule-making with great gusto. Introduced at the RSA Conference in San-Francisco 2017, the Digital Geneva Convention proposed a number of norms that should protect civilians from cyber-attacks during peace time, just as the Fourth Geneva Convention sought to protect civilians during war. Microsoft did not limit itself to a paper tiger and was instrumental in also galvanizing several other important initiatives. First among these was the Cybersecurity Tech Accord that brought together several technology companies with commitments to protecting their customers against malicious online threats. Another noteworthy achievement was its collaboration with the French government to spear-head the Paris Call for Trust and Security in cyberspace, which also contained a set of nine high level principles and counts among its signatories 79 states, 33 public authorities and local governments, 374 civil society organisations (of which I am proud to say Centre for Internet & Society is one) and 684 companies.
Microsoft’s contribution to the fragmented global debate on cyber norms formulation is a noteworthy one. Broadly speaking, the debate on cyber-security governance is fractured into two blocks. One block spear-headed by the United States and NATO allies advocates for cyberspace free of government regulatory intervention and multi-stakeholder observation, the application of existing standards of international law to cyberspace rather than the creation of an international treaty devoted to the same. The second block pushed by China, Russia and Shanghai Co-operation Organisation (SCO) states that there should be greater sovereign control over internet architecture, that existing international law does not apply, and a treaty specifically drafted for cyberspace is the need of the hour. I have covered these debates here.
India has not yet taken a clear stance in this debate. The debate has played out over multiple rounds of talks at the United Nations Group of Governmental Experts with little agreement over a set of universal norms that govern responsible behaviour in cyberspace. In this context, the role of a corporation like Microsoft that has a clear vested interest in the protection of global supply chains. It can not only act as a catalyst for furthering discussion but also possesses the technical expertise grounded in an understanding of the precise nature of risks involved. While it has not attempted to and should not attempt to replace decisions made by states that are ultimately politically accountable to its citizens, it can galvanize discourse like the ICRC did with the Geneva Conventions, while also funding initiatives like Dupont did with the Montreal Protocol.
Conclusion
Future regime shaping will certainly be driven by a multitude of interests and agendas. In complex domains like cyberspace or trade, the strategic interests of nation-states can no longer craft international law. History shows us that the next entrepreneur may be a banking lawyer frustrated with war as was the case with Samuel Levinson or a large corporation deeming that corporate and public interests intersect somehow. The next big idea could come from anywhere and it is the international community’s responsibility to keep active vigil for, and promote a diverse array of stakeholders. International law-making must not be limited to a select coterie of states and should truly serve as an avenue where any entity, regardless of power or origin can meaningfully participate.
This article has been authored by Mr. Arindrajit Basu, Research Manager at the Centre for Internet & Society. This blog is part of the RSRR Excerpts from Experts Blog Series, initiated to bring forth discussion by experts on contemporary legal issues.