Not so truly international institutions (San Francisco Chronicle) January 21, 2004

Democratic House Leader Nancy Pelosi articulated one of her party’s campaign themes this week, saying that President Bush “disregards international institutions” and “rejects global treaties.” Of course this perpetuates the stereotype of Bush as a cowboy leader who is positioning the United States as a “Lone Ranger” in international affairs.

Before jumping to such conclusions, however, consider just how international these institutions and treaties really are. Take the International Criminal Court, for example, one of the organizations Democratic presidential hopefuls say Bush was wrong not to join. How international is this institution, and is the United States out of step in not ratifying its treaty?

These are timely questions because the president of the ICC, Philippe Kirsch, was in the United States campaigning for the court last week. He had visited China, because the most populous nation in the world also has not ratified the treaty creating the court, and he was on his way to Russia, which is the third of five permanent members of the United Nations Security Council to not ratify the court treaty.

In fact, of more than 190 states in the United Nations, less than half have ratified the statute creating the court. More interesting still, the population of those countries ratifying the court constitutes only about 25 percent of the world’s people. Besides China, Russia and the United States, other nations that have not ratified the court include India, Japan, Mexico, Israel, Egypt, Pakistan and Indonesia.

So, if more than half the nations of the world, representing some 75 percent of the world’s population, have not ratified this international institution, who is really behind it? The answer is that the International Criminal Court — along with the Kyoto climate and Ottawa landmine treaties — is largely a creation of nongovernmental organizations (NGOs).

The expanded role of NGOs in treaty-making is one of the most important untold stories in international law and politics. It has been estimated that the number of international NGOs has quadrupled in the last decade to the point where there are now more than 50,000 of them. Previously relegated to the hallways of diplomatic negotiations as advisers, NGO leaders now take the initiative in drafting, negotiating and promoting international treaties.

In the case of the international court, for example, experts widely acknowledge that the most important force behind the creation of the court was an NGO headed by American William Pace. Some 1,000 NGOs, led by human rights organizations such as Amnesty International and Human Rights Watch, were a part of his umbrella organization and they collaborated with and led the efforts of several small and medium-sized states to set the agenda. Similarly, American NGO leader Jody Williams received the Nobel Prize for her crucial leadership in the adoption of the Ottawa landmine convention.

What’s wrong with this picture? NGOs are wonderful advocates, but not balanced leaders of truly international processes. For one thing, they are generally single-issue interest groups. They would and did sacrifice a number of legal and procedural niceties in creating a court, for example, in order to accomplish their human rights’ agenda.

They also undercut multilateral institutions, such as the International Law Commission, which had been charged by the United Nations and with developing a court, and the U.N. Security Council, which has historically referred cases to international criminal courts.

Significantly, the NGOs developing treaties seem to be on the same side of the issues. Those participating in climate control negotiations favor strong standards, while those creating the international court wanted a court of unprecedented jurisdictional powers. Rather than seeking a broad consensus among nations, the NGOs favor coalitions of the willing to adopt strong treaties that achieve their goals. Their lack of accountability and active leadership role caused one state delegate to the international court meeting to ask: “Who elected these NGOs anyway?”

Before concluding that the United States has taken a narrow or misguided position on international treaties and institutions, look more deeply. Though they have high-sounding titles, international treaties and organizations are just politics in formal attire.

This op/ed appeared on Page A-23.