Reputational Risk and Enforceability in International Law

The lack of an automatic enforcement mechanism represents the greatest challenge to the development of international organizations and the body of international public law that they represent. Evidence of the impact of this non-enforceability is found in all areas of the international realm—economic, humanitarian, and political-strategic. However, the nature of political-strategic affairs heightens the impact of possible damage to national reputation and sets this branch of international law and organization apart.

The World Trade Organization (WTO) has no absolute means through which to ensure compliance with its standards, even when its Dispute Settlement Panel determines that a member state has violated the WTO’s international liability and must alter its behavior or face retaliation from the harmed state. More to the point, there is no absolute means to ensure compliance with WTO standards. One need only look to the gambling case brought against the United States by the Caribbean nation of Antigua and Barbuda in order to verify the ineffectiveness of WTO panel decisions. In 2003, Antigua and Barbuda brought a legitimate complaint to the WTO that the United States had improperly restricted the sale of online gaming and betting services from the island nation. Nevertheless, even after the complaint was raised, the United States, another WTO member state, refused to comply with WTO standards, due in part to domestic political and ethical concerns about gambling.¹ Because Antigua and Barbuda has little leverage against the United States, its WTO-sanctioned countermeasures (to the tune of $221 million) have been ineffective, permitting the behemoth to continue barring the sale of gambling services across its national borders.² Subsequent to the WTO ruling, the United States retroactively altered its commitment to the General Agreement on Trade in Services—effectively continuing to violate its previously agreed international economic obligations.³

Humanitarian bodies have proven no more adept at ensuring compliance with international norms and standards. The authority and eventual judgment of human rights tribunals may be flaunted by states unwilling to deliver the politically powerful to the judgment of the international community. For years, Serbia refused to deliver a number of suspected Serbian war criminals to the International Criminal Tribunal for the former Yugoslavia so that their actions could be considered and judged on the international stage.⁴ (Included among these war criminals was Ratko Mladic, the Bosnian Serb general who was responsible for the massacre of nearly 8,000 Muslim men and boys at Srebrenica in 1995, and Radovan Karadzic, the former Serbian president.⁵ ) To date, Serbia has refused to directly deliver either Mladic or Karadzic. Both men remain fugitives from international law.⁶

The United Nations and the body of international humanitarian and political law that it represents are similarly at the mercy of member states that choose to enforce or disregard their agreed-upon commitments and obligations. This is most evident in the case of the Security Council, where a single member may utilize its veto block action on the part of the entire UN. Without an international police force to ensure compliance with the will of the majority, absolute compliance with international norms remains a hope rather than a certainty.

If international relations are considered as an iterative game, the high stakes of security and military affairs paradoxically give the prospect of reputational risk greater persuasive power in ensuring compliance with international obligations. The United States has suffered dramatically in terms of international public opinion because of its war in Iraq, and in certain Muslim countries, because of its perceived acquiescence to Israel’s occupation of the West Bank and Gaza. More striking, the United States’ reputation is falling in stature in countries that have been traditional allies, as well as those who might prove invaluable as future allies, for example Turkey, Morocco, and Jordan.⁷

Unilateralism in international affairs—whether political, economic, humanitarian, or otherwise—is not merely a willingness to go it alone, but a wager that in the long term, the action in question will validate any short-term reputational damage. The wager of the United States in Iraq has yet to prove its worth, while in...