TRADE POLICY, NEW CENTURY: WTO, PTAS AND T H E ASLAN TRANSFORMATION O F THE WORLD ECONOMY Razeen Sally4 In Geneva,

WTO rnernbers are trying to energise Doha-Round negotiations in the mn-up to the Hong Kong Ministerial Conference in Decernber 2005. Outside Geneva, preferential-trade-agreement (PTA) initiatives continue to proliferate. Also grabbing headlines is the dramatic opening and global economic integration of first China and now India. Finally, there have been subtle changes in the climate of ideas on trade liberalisation, and on markets and government intervention rnore generally. In the developing world, the enthusiasm for trade liberalisation in the 1980s and 90s has since waned. In the developed world, there is continued and perhaps increasing unease about the perceived costs of globalisation, not least the keener competition corning frorn China and India. What is one to make of all this? How has the Zeitgeist changed in the age-old clash between free trade and protection? Has this led to shifts in national trade +oLi~~&\?rfiafiat+tre-&e-pmspe & d r D o h a R m ~ @ wKat t h e W T O S t t longer-term future? Does the new wave of PTAs bode well or ill for the multilateral trading system? What are the trade (and wider econoniic and foreign) policy irnplications of China's and India's integration into world markets? How does all the above fit into the wider frarnework of international relations post-Cold War and post-September 1 l'? These are the questions I address in terms of a trade-policy stock-take, and a forward look to rnediuitermprospects.-The-firstsection, by-wayofanerrtrge; has some brief cornrnents on the general climate of ideas and on-the-ground trade-policy trends today. The next sections look at first at the WTO and then PTAs. Then follow some thoughts on the systernic implications of unilateral liberalisation, particularly in China. The final section puts trade policy in the context of international politics in the new century. ~ i b ~ l i s a t l o n e p t ' i c i s "post-Washington Consensus" m In general there has been no reversal of rnarket-based reforrns, including extemal liberalisation, since the heyday of the Washington Consensus a decade

Senior Lecturer in International Political Economy, International Relations Department. The London School of Economics and Political Science.

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ago. But the momentum in favour of more markets and less govemment intervention has slowed down considerably. Initial doubts post-Asian cnsis centred on financial liberalisation, especially of short-term capital flows. This has had a hock-on effect on trade policy. In Latin Amenca, Afnca, Russia and Southeast Asia, the real bursts of trade-and-FDI liberalisation in the 1980s and up to the mid-90's have been absent since. Govemments are more sceptical and defensive about further liberalisation; and there has been relatively little in the way of "second-generation" reforms (in domestic traderelated regulations and institutions) to underpin extemal liberalisation and boost competition. In the developed world, pervasive agicultural protectioism continues, with an admixtuie of new protectionism directed against China. The West has no ginnd project for liberalisation in the eatly 21'' century to compare with the Reagan and Thatcher refoms in the 1980s, or the EU'S Single Market progamme in the late 1980s and early 1990s. Hence protectionist flare-ups and lack of reform momentum in the West have reinforced liberalisationslowdown outside the West. The major exception to this state of affain is China. The last decade has Seen ~~hr~igges~de-ad-i~~&m-~~ibeflalisatian_pragramme has ever the world Seen. In short time, China has s w n g from extreme protection to rather Liberal trade policies, indeed very liberal by developing-country standards. This was crowned by its accession to the WTO, with by far the strongest commitments of any developing couniry. The Pace of intemal and extemal liberalisation has not let up since. While many others slowed down after the Asian cnsis, China continued to race ahead. Dveral1,with the exception of China, prevailing weather conditions for funher liberalisation have become more inclement. ~~~~~~~~~~~~~~~fOr-apmore focused discussion of trade policy today O multilateral, bilateral, regional and n unilateral tracks.

Barring outright failure, what inight an eventual deal look like? A big success would deliver substantially lower developed-country bamers to develoPingcountry exports of agriculture and manufactures, stronger liberalisation commitments by advanced developing countries, improved coinmitments on trade in services, and some marginal strengthening of WTO mies (e.g. on antidumping). As things stand, this scenario looks improbable. At the other extreme, the round could fail altogether. In between lies modest success: lirnited liberalisation with hardly any rule-strengthening This would keep the WTO show on the road, but it would leave the multilateral trading system in a weak and vulnerable state, increasingly henmed in by a messy. discnminatory patchwork of PTAs. That may be the likelier outcome. Ultimately, bringing the round to a successful conclusion and ensunng the WTO's longer-term relevance depend on tackiing its systemic problems. A much expanded post-Uruguay-Round agenda has broadened sectoral coverage and gone much deeper into poiitically-sensitive domestic regulation. This has resulted in a loss of focus and a dnft towards multiple and contradictory objectives. Hypennflation of the membership has almost crippled decision making. The WTO has become much more politicised, buffeted by extemal cnticism and with deep intemal fissures. These are all Symptoms of the "UNisaiion~ofthe-W=. To get the WTO out of its mt, its members need to d o two things: resrore focus on the core market-access agenda, i.e. progressive liberalisation; and revive effective decision making. The latter depends less on reforming formal procedures than on intergovernmental political will and informal decision making. This requires recognition of hard-boiled realities outside Geneva. About 50 countries account for well over 80 per Cent of international trade and foreign investment. This compnsecthe_OECD plus-20-25--developing-countriesthat have been globalising rapidly and successfully. These are the ones with workable govemments. sufficient appreciation of own interests, negotiating capacity and bargaining power. They must take the lead. Within this outer core, there is an inner core of "big beasts": the USA and EU, of course, but now joined by the increasingly influential developing-country majors, India, China and Brazil. Poorer and weaker developing countries - the -vast+&j&y-~fthe-f~~embership - m m " course b m l m and will exercise influence through the African, LDC, ACP and G90 groupings. But the plain fact is that their very marginal involvement in the world economy, badto-temble governance and scarce negotiating resources make them unable to play more than a secondary and reactive role.

Whither the WTO?

Z h e D h a u n d _ b i u i g s in the balance on the eve of the Hong Kong Ministerial Conference in December 2005. Only in July 'LUe-4 was a negotiating framework put together. This whittled down a previously large and unwieldy agenda into one focused on the key market-access issues (agriculture, services and non-agricultural goods). Trade facilitation was also included After that negotiations became deadlocked again, with no real movement until the USA's quite ambitious proposal on ak$cultural liberaiisation in October 2005

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Even with the right dose of realism, there are, in my view, greater limits to WTO-style multilateralism. The GATT was successful because it had (with hindsight) a slidine, relatively simple agenda, and small. club-like decision making, glued together by Cold-War alliance politics. Now, the WTO agenda is technically more complicated, administratively more burdensome and politically much more contmversial; decision making is unwieldy in a general assembly with near-universal membership; and the unifying glue of the Cold War has dissolved. For the WTO to work after the Doha Round, it needs to scale back ambitions and expectations. Market-access and mle-making negotiations shouid be more modest and incremental; and maybe trade rounds should become a thing of the past. There should be more emphasis on the unsexy, everyday tasks of improving policy transparency and administering existing d e s better Dispute settlement should not degenerate into backdoor lawmaking. Finally, core decision making should remain intergovernmental. Opening it to nongovernmental actors would result in an agenda hijacked by organised minonties pursuing a plethora of conflicting objectives.

gesture politics, with little sense of economic strategy They involve patchy, quick-fix sectoral deals while sensitive areas are carved out. They hardly go beyond WTO commitments, deliver little, if any, net liberalisation and procompetitive regulatory reform, and get tied up in knots of restnctive, overlapping mles of origin. Resource-intensive PTA negotiations also nsk diverting political and bureaucratic attention from the WTO and from necessary domestic reforms. Finally, the sway of power politics can result in highly asymmetrical deals, especially when one of the negotiating parties is a major player. Latin Amenca and Africa now contain a hotchpotch of weak and partial PTAs. This is being replicated in south and east Asia, where PTA initiatives have mushroomed since 1999. Very few of the latter look like delivering strong, clean agreements. The heart of the matter is that cross-border coinmerce within these regions, as elsewhere in the developing world, is throttled by the protectionist bamers that developing countries erect against their equally poor or even poorer neighbours. Will new PTAs make a big dent in these b h e r s and thereby spur regional economic integration? I doubt it. To use a Texanism, many, perhaps most, PTAs are "all hat and no cattle".

P -

In sum, with more modest goals and proportionate means in a restncted Going - about PTAs the wrong way - negotiating weak ageements that d & m 3 ~ v e n i m e m ~ ~ ~ t m : - W T ~ m i g - k t b e s t b ~ - & ~ ~ ~ r - \ ~ a ~attentionU h a - sensible unilateral reforms and the WTO - could easily lead to a ~ from its core purpose: to be, at the margin, a helpful auxiliary to market-based world where most international trade would be governed by a bewildering reforms, especially in the developing world. array of market-distorting preferences. Then the cornerstone of the multilateral trading System, the principle of non-discrimination, would become more an abstraction than concrete reality. That has profound political as well as PTAs as an alternative? economic ramifications. PTAs among small clubs of like-minded countties can take liberalisation and progmpetitive regulatory reform further than would be the case in the WTO. This can in turn stimulate multilatZFalplibTralisation;-ForPTAsto make---economic sense, they must have comprehensive sectoral coverage, be It is customary to look first to the WTO, or now to PTAs, or to a combination consistent with relevant WTO provisions (in Article XXIV GATT and of the two, to advance the liberalisation of international commerce. This Article V GATS), and indeed go beyond WTO commitments. Liberalisation "liberalism from above" overlooks fundamental lessons from theory, history should be genuine and tangible, not bogus. There should be strong provisions and the world around us today. Compelling political and econoniic arguments for improving transparency in domestic regulation. And mles of ongin should favour unilateral liberalisation, with governments freeing up international be as simple and harmonised as possible to minimise trade diversion and red tradedfIowsofca~~pandphb~-indepe~dennt-ly1~-~.i~~Rk~aati tape. Overall, govemments need to have a sensea-&&sgj.qvhg~negotiations. As any student of trade economics knows, welfare gains result entering into PTA negotiations - on choosing negotiating partners, assessing directly from imporr liberalisation, which replaces comparatively costly the costs and benefits of negotiating positions, and how they relate to the WTO domestic production and reallocates resources more efficiently. Such gains and to the national economic-policy framework. come quicker through own, unconditional liberalisation than through protracted, politicised and bureaucratically cumbersome international Unfortunately, strong, WTO-plus PTAs are the exception, not the rule. Most negotiations. This Nike strategy ("Just Do It!") makes political sense too. PTAs -especially those between developing countries - are weak and fall short of WTO provisions They tend to be driven by foreign-policy concems and

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Rather than relying on one-size-fits-all international blueprints, govemrnents have the flexibility to initiate policies and emulate better practice abroad in experimental, trial-and-enor fashion, tailored to specific local conditions. Observers often forget that the recent trade-policy revolution in the developing world has corne rnore "frorn below" than "from above". The World Bank estirnates that, since the 1980s, about 60 per Cent of developing-country trade liberalisation has come about unilaterally. Tme, many govemrnents liberalised reluctantly as part of IMF and World Bank stmctural adjustrnent p r o g r a m e s . But the strong and sustained liberalisers have gone ahead under their own stearn, without the need for much extemal pressure. The big news in globalisation today, and probably for the next few decades. is the rise of Asia, and within it the dramatic opening of first China and then India. China's massive trade-and-investrnent liberalisation p r o g r a m e over the past decade is the biggest the world has ever seen. Most of this was done unilaterally, not through international negotiations, and before WTO accession. China's extremely strong WTO cornmitrnents, and its very pragrnatic. businesslike and constmctive participation in the WTO since accession, are rnore the consequence than the cause of its sweeping unilateral refonns. China is in many ways today what Britain was i n i h e secon+kakf4t& nineteenth century: the unilateral engine of freer trade It is probably spumng a pickup in trade-and-FD1 liberalisation elsewhere - notably in India. There market-based reforrns since 1991 have proceeded more slowly than in China. but have been very substantial by previous Indian standards. Recently India has accelerated its unilateral liberalisation of tariffs and FDI. Would this have happened, or happened as fast, if China had not concentrated minds? Probably -.t n o
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International relations: a post-Cold War, post-September 11'" frame

So far the argument has placed trade policy in the frame of economic policy; and it has stressed the prirnacy of national economic policies and institutions. Now it is time to link up to foreign poiicy and international politics, for this frarne is also indispensable. A reasonably stable international political order is the categorical imperative for economic development. Without the global Pax - an orderly frarnework for international relations - there can be no security for national and international comrnerce. Trade policy rnust work with the grain of wider geopolitical realities. These have changed since the end of the Cold War, and rnore recently after September 1I'. No serious challenge exists to US leadership abroad; Europe and Japan are internally sclerotic and externally pusillanimous; other powers are on the rise, notably China, India and Brazil; the transatlantic alliance is no longer the fulcrurn of international relations; and politics and economics are shifting inexorably in an Asia-Pacific direction.

The one constant in this shifting political template is US leadership. For the foreseeable future, the USA will rernain the indispensable anchor for global security, prosperity and freedorn - far more irnportant than any international - o .~ . g i t ~ f m t e i ~ i m ~ r ~ ~ t k ain ~ ~ e securing the global Pax against systemic threats; in helping to rescue and reconstruct failed states; in rnaintaining Open and stable international financiai rnarkets; and, not least, in breaking down bamers to trade and the movement of capital and people across the world. Above all, the US rnust lead by exarnple, setting.the standard for liberal economic policies worldwide by what it does at home. This includes untying existing knots of domestic protectionisrn. US leadershipwill be exercised on several tracks: unilaterally; bilaterally and regionally, especially in relations with other powers; and multilaterally through international institutions. Daunting dornestic and external obstacles stand in the way of the eniightened exercise of US power and influence abroad. But robust US leadership is sine qua non to the future relevance and workabiiity of international institutions such as the WTO, IMF and World Bank. They would be larne and sidelined without it.

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The point to emphasise is this. Freer trade in the early twenty-first century. and modern globalisation rnore generally, are happening rnore "from below" than "frorn above". Their engine, now to be found in Asia, particularly in China, is bottorn-up liberalisation and regulatory reforrn that spreads through cornpetitive ernulation, like ripples and waves across seas and oceans. This process is not driven by international institutions Indeed, as argued earlier, the WTO a n d ~ ~ ~ ~ ~ e & & ~ d + g lifitations. r e a ~ r h ~ At best they can be helpful auxiliaries to national rnarket-based reforms. But their

Conclusion
To surn up: I arn pessirnistic about the prospects for a fresh wave of liberalisation through the WTO and other international institutions. More generally, top-down global-governance prescriptions are profoundly

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misguided. But I am reasonably optimistic that funher liberalisation, and with it the spread of economic globalisauon, will come from a different route: from below through unilateral example-setting and competitive emulation. Its engine is China today. These bade and wider economic policy ttends must also be seen in the bigger picture of international politics. Here the defhing features are US leadership now more important than ever - and relations between the USA and other powers, especially the rising powers in Asia-Pacific, and above all China. International institutions and the transatlantic relationship matter, but perhaps less than European conventional wisdom would have one believe.

WHY COALITIONS OF THE WILLING? THE EXAMPLE OF FREE TRADE AND ENVIRONMENTAL STANDARDS
Nele Matz*
I

Introduction
This brief contribution attempts to broaden and deepen some of the issues that arose during the discussion about different constellations of so-called "coalitions of the willing" and the consequences for international law. The relation between universality as one feature of modern international law and coalitions of the willing is addressed by section 2. The relationship between failures in the international System and certain subsystems and the establishment of coalitions of the willing is briefly referred to in section 3. Section 4 attempts to shed some light on the common interest necessarily involved when coalitions of the willing are formed. Finally, as a further example of a positive impact that coalitions of the willing may have, even when, due to the nature of the issue, they cannot fully achieve an obiective. the " issue of climate change shall be given a closer look in section 5.

Opposing Universality?
Universality of regulation and practice is often regarded as being a desirable objective for most issues in international law and policy. Accordingly, unilateral acts are often perceived as a threat to stability and a threat to enhanced cooperation within the international community. The intent to achieve universal appraisal is a relatively_new_development-in-international law. Striving for universality as an element of international law evolved with the adoption of treaties that contain constitutional eiements or that attempt to establish objective regimes for the benefit of humankind. With the change of scope of international treaties and in regard to the global nature of many problems the world is faced with today the need for wide participation in regimes that address these issues is obvious. However, this cannot lead to the conclusion that all unilateral measure, regional t r e a t k s o t d k k ~ a i i t i s n of the willing have a negative impact on international law.
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Yet, examples for a condernnation of unilateral measures by other rnembers of the international community are manifold: The critique conceming the United

Dr. iur., LL.M., Senior Research Feiiow. Max-Planck-Instihite for Comparative Public Law and International Law, Heidelberg.

Razeen Sally

misguided. But I am reasonably optimistic that further liberalisation, and with it the spread of economic globalisation, will come from a different route: from below through unilateral example-setting and competitive emulation. lts engine is China today. These trade and wider economic policy trends must also be Seen in the bigger picture of international polics. Here the defining features are US leadership now more important than ever - and relations between the USA and other powers, especially the rising powers in Asia-Pacific, and above all China. International institutions and the transatlantic relationship matter. but perhaps less than European conventional wisdom would have one believe.

1
!

WHY COALITIONS O F T H E WILLING? T H E EXAMPLE O F FREE TRADE AND ENVIRONMENTAL STANDARDS Nele Matz' Introduction This brief contnbution attempts to broaden and deepen some of the issues that arose during the discussion about different constellations of so-called "coalitions of the willing" and the consequences for international law. The relation between universality as one feature of modern international law and coalitions of the willing is addressed by section 2. The relationship between failures in the international system and certain subsystems and the establishrnent of coalitions of the willing is briefly referred to in section 3. Section 4 attempts to shed some light on the comrnon interest necessarily involved when coalitions of the willing are formed. Finally, as a further example of a positive impact that coalitions of the willing may have, even when, due to the nature of the issue, they cannot fully achieve an objective, the issue of climate change shall be given a closer look in section 5. Opposing Universality?

I
\

Universality of regulation and practice is often regarded as being a desirable objective for most issues in international law and policy. Accordingly, unilateral acts are often perceived as a threat to stability and a threat to enhanced cooperation within the international cornmunity. The intent to achieve universal appraisal is a relatively new development in international law. Stnving for universality as an element of international law evolved with the adoptionrf ~t~atie~~that~~ontain~nstitutionl~elem~~Fth~tE F-pP establish objective regimes for the benefit of humankind. With the change of scope of international treaties and in regard to the global nature of many problems the world is faced with today the need for wide participation in regimes that address these issues is obvious. However, this cannot lead to the conclusion that all unilateral measure, regional treaties or so-called coalitions of the willing have a negative impact on international law.
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Yet, examples for a condemnation of unilateral measures by other mernbers of the international cornmunity are manifold: The critique conceming the United

Dr. iur., LL.M., Senior Research Fellow, Max-Planck-Institute for Comparative Public Law and International Law. Heidelberg.

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When comparing the three main issues subject to discussion in the Course of the conference - coalitions of the willing in general public law. the fomung coalitions as concems world trade issues and as concems European integration A coalition of the willing should be distinguished from unilateral measures in a - it becomes apparent that all three issues share the element of a situation of stnct sense of meaning, although in the political and legal discoune the US, crisis or at least the perception of crisis: crisis of the international System of most likely due to their leading role, are often blamed for their unilateral acts global security that is characterized by disparity inter alia about humanitarian instead of regarding them as part of a coalition.' Coalitions of the willing are interventions, pre-emptive strikes and measures to combat terrorism; crisis formed by at least two states that act together and establish a subsystem either concerning the global trading system after major failures in the last WTO~ i t i i ~ ~ t s i a & k + o m m ~ n J e g ~ d e r ~ Y ~ , e ~ j ~ ~ s-~ e ~ fgi ~ a f e~~ ~ a t e r d t r a d e a g r ~ W C n S , o f E ~ m d a~ ~ ge ~ 3 ~ ~ perception is rather that coalitions are a threat to universality instead of being a integration in particular concerning the adoption of the constitution by the valuable contribution to international law. The notion of an avant-garde is member states and the enlargement of the Union. more likely to be found in fields either lacking international consensus. i . e in When putting such situations of crisis into relation to the issue of coalitions of cases where the coalition does not derogate from an established regime but the willing, the question about cause and consequence is raised: is it a coalition gives the first momentum for creating a regime Open to other actors or where of the willing that, in an effort to change established mles or practices not or an existing framework is 611ed In intemational trade law as well as in no longer accepted by the members of the coalition, leads to a cnsis that, as a intemational environmental law preferential or special agreements may be seen consequence, threatensor-at-least questionsafunctioningglobal framework?-P------asrolC-models-for;in the-first~case,-enhancedliberalization~and,~hesecond Altematively, is it the crisis, initiated by multiple factors, that leads to the case, stricter standards.' formation of coalitions of the willing, with their members trying to find and While the term "coalitions of the willing" has lately been used particularly uphold a working modus in times of a stalemate of the system? The question with a view to the group of states that engaged in the war in Iraq. the idea cannot be answered in an abstract manner but only with a view to every single behind it is nothing new. The tenn "group of like-rninded states" that aim to situation in which a coalition is established and even then a clear-cut analysis pursue a common objective has been well established in international policy. may be prevented by a combination of multiple and potentially diverse political motives for the different ~ n e m b e r s a f i h ~ l i t i Q n a ~ q u a ~ & ~ c r ~ - underlying reasons for the crisis of the international System in question.
P p

States' current external policy that emphasizes sovereignty and by this argument justifies unilateral acts even if they are either contrary to international law or oppose the creation of multilateral regimes is just one example for the relevance universalism has gained in intemational law and policy. In intemational trade law, for example, unilateral trade measures constitute in most cases a breach of legal trade principles and must be specifically justified to be upheld. Admittedly, in times of globalisation the necessity of cooperation of states and other actors to address Problems and regulate international relations cannot be denied and the wilful emphasis of unilateralism is feasible at least of damaging certain achievements of the international community. Yet, the tendency towards either regional agreements, e.g. the (failed) efforts to create a Free Trade Area of the Americas, or towards consensus only among certain groups of states (independent of geographical bonds) is more difficult to assess.

The Viema Convention on the Law of Treaties in its Article 41 Para I as weil as certain multilateral treaties, e.g. Article XXIV para. 4 GATT as f a as freetrade-areas are concerned, provide for the possibility that parties to a multilateral agreement may under certain conditions conclude f ~ r t h e r inter Se agreements. Such practice by states can also be addressed by the new ]abel "coalition of the willing", although the term is not restncted to inter agreements by parties to a multilateral treaty but also refers to groups of states that deviate from international practice or intemational law without adopting a formal agreement. Coalitions of the Wiiiing in a Situation of Crisis

'

See for example Meinhard Schrder, 'The Status of Public International Law seen from a European Percpective'. in Bernd von Hoffmann (ed.), Global Govemance: Reports and Discussions of a Symposium held in Trier on October 9 and 10, 2003 (Frankfurt am M a i : Lang, 2004). P. 11, pp. 15 et seq.

Concerning the international trade debate see also Axel Kallmayer, Verbot und Rechrferrigung von Prferenzabkommen i GATT (Baden-Baden: Nomos, 2005), p. 59 et m

Furthermore, it will be showed that a crisis is not necessarily tied to the existence of coalitions of the willing, e.g. in the case of climate change mitigation, and it shall also be remarked that a crisis is not necessanly negative either, since by its nature it includes at least the chance for improvement.

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Although a potentially destructive force of coalitions that rnay undermine so far accepted standards of international behaviour shall not be denied, coalitions of the willing rnay also prove to be one factor that gives an impulse for the development towards a new and better framework for certain issues of international concern. The Common Interest: A shared Element of Coalitions of the Wiiling One element that is particularly relevant when analysing coalitions of the willing is the specific common interest their members necessarily share. All coalitions of the willing share some sort of interest that unites their members as a group. In fact the same applies to "coalitions of the unwilling" as well, i.e. such groups whose members ally with the aim to boycott certain developments in the international sphere. The motives for formulating the interest and for joining a group of apparently like-rninded states rnay well differ, yet there needs to be one expressed common interest that justifies the alliance and distinguishes its members from the rest. In this sense, the common interest is the essence of all coalitions of the willing. The necessity to agree on the expression of a common interest becomes particularlyapparent, if the newly established coalition attempts to break with or develop further certain standards that are widely accepted in international law or policy. In this case the alliance formulates a different or at least more particular interest that deviates either from the existing Consensus concerning an issue or from the lack of such an understanding, i.e. either the coalition willingly moves further and attempts to change or at least oppose a prior common interest by a larger group of which it was part or it adheres to a general interest but develops the issue further, e.g. concerning more detailed a u e s t i o n s that had-so far-notbeen addressed. F r o m ~ h i s distinction~it~llows that such a specific common interest shared by coalition of the willing can either be formulated in a positive way, i.e. a group of actors that wants to achieve a certain objective or that wants to change current international practice or international law, or in a negative manner, i.e. a coalition that blocks a certain development by their common resistance. Whether the common interest shared by the members of a coalition of the willing has disruptive or creative force mav only prove ex p h y iudging its impacts on international law and practice. As concerns customary international law a significant coalition that actively boycotts certain state practice rnay be able to have greater weight than single persistent objectors and rnay even prevent the recognition of new customary international law. In any case unilateral acts as well as single acts by coalitions

of the willing cannot deprive international customary norms of their binding force. It takes more than a group of like-minded states to establish an a,-tus contrarius that can overcome valid norms as new customary international law. As far as the evolution of customary international law is concemed a coalition of the willing rnay only be able to initiate a process that is then followed by the other actors. The actual impact in this case is difficult to assess. In any case a coalition of the willing is not able to create new rules that are applicable to other states without their (tacit) approval. Consequently, a positive common interest can only result in a general change of international law or practice if it is subsequently shared by other states, whereas a negative comrnon interest is more likely to have greater weight preventing new customary law or a general recognition of practice. While a common interest is a factor that creates stability for the coalition concerning a certain issue, it shall be noted that coalitions of the willing that are based upon a common interest conceming one subject matter are not necessarily stable in the sense that the alliance cooperates in other matters as well. Coalitions of the willing must be seen with regard to the issue at hand and must not be considered a political fact for international relations in general. Interests of states in times of globalisation are diverse as are tactical considerations for joining a certain group in one issue but not for a ~ t h e r . 'J3ey rnay coincide with other states' interests conceming one but not the other issue. Allies in addressing agriculture in world trade may be opponents when it Comes to establishing a regime on climate change or as far as the potential development of international humanitarian law in the case of the humanitarian intervention is concerned. International Environmental Law as a n Example for Viable Coalitions
---P----

--

International environmental law is another field that offers examples for coalitions of the willing or initiatives of groups of like-rninded states as they are more often called. In some respect international environmental law and international trade law are comparable. Both necessarily interact not only with one another but also with further fields of international law. Hence, to allow members of the WTO to restrict trade inter se by agreeing e.g. on specific environmental s t a n d a r d s m ~ s t n a t b e n ~ x S k i s i ~ ~ i s trade but as a chance to pay a tribute to diverse interests and a different pnoritisation for equally important transboundary interests among states. But even if the discussion is limited to environmental matters, initiatives by groups of like-minded states can contribute to the evolution of feasibIe environmental regulation instead of hindenng such a process. Due to the

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global nature of environmental problems such as climate change or ozone depletion, many objectives in international environmental law can be best achieved with wide and preferably universal participation. Hence, universality is a strong element in international environmental law. However, this must not lead to the conclusion that coalitions of the willing are necessanly disruptive. To the contrary, striving for universal participation may only lead to compromise that allows for regulating frameworks but not for concrete goals. Targets and timetables are often either non-existent or watered down with the aim to bind as many states as possible to the framework. Such a process intends to postpone the adoption of stncter standards in future protocols or implementing agreements. This practice that is comrnon in international environmental law is nothing else but the promotion of coalitions of the willing, since subsequent protocols are only binding for those parties to the framework agreement that ratify the protocol. Hence, the approach leaves room for groups of states to act as role-models by adhering to stricter standards and by this to persuade other states to join. In this context a general feature of viable coalitions of the willing becomes apparent: they can potentially promote the objectives of the community of states in general, if they operate within a given framework and merely ally to promote its aims in a stncter or faster way. In this respect the framework-protocol approach is nothing else but a basic Consensus by a larger group and a coalition of the willing that goes further and subscrib5%kmore specific protocol. Yet, while a coalition of states may contribute to achieving the general objective by negotiating particularly stnct standards among themselves - demonstrating the will to be an avantgarde - it cannot alone solve the global problern.

In the context of climate change mitigation coalitions of the willing may also be established by agreement on flexible mechanisms not established or foreseen by the Kyoto Protocol. Particularly the flexibility of multiple approaches by different groups, even outside the Kyoto Protocol mechanisms, can be e ~ n ~ h a s i z e Whether such coalitions must be regarded as adverse to d.~ the Kyoto Protocol because they go a different way or whether they should be praised because they substitute the Kyoto mechanism by more viable tools remains to be seen in the future.

Conclusion
By forming coalitions of the willing, states can overcome shortcomings of a regime, first by a potentially small group that collaborates but eventually by improving the system as such, when more states join the group. In this sense, a coalition of the willing or a group of like-minded states that establishes more detailed, stricter or further mles that are in essence still based upon the common understanding of all regime-members can give a positive impetus for the achievement of the common objective. Exit-options for like-minded states that are left, e.g. by the WTO conceming the further liberalization of trade or to refine free trade pnnciples, are viable tools to bndge diverse interests - ~ s g n ~ ~ r s a f t c o~m m u n i t ly ~ o ~ o a l i t i oof s m i n the willing cannot generally be labelled as either an avant-garde or a threat at least for some issues their existence bears the potential for viable cooperation towards not only a common interest of the group but also for a common objective of all states if the coalition relies upon the objectives of a global regime.

Even if a formal protocol is not agreed upon, states can also join a coalition of the willing to cooperate in implementing an international agreement by specifically established practices. A good example for a coalition of the willing b o t h as-regards -~the-framework-protocol-approachas-wellas asubsequent-P implementing practice is the reduction of emissions of greenhouse gases. Even before the Kyoto Protocol entered into force, the EU developed its emission trading system to demonstrate their desire to fulfil objectives even before they became binding legal obligations. Trading Systems are powerful tools and show, again, the cross-cutting nature of trade and environment issues. For reasons of competition it might be wise for other states to join a specific trd~~~ated-b~~-0aktion+f-the+itli-ag7e~~-e6flce~~~irreduction units, instead of staying outside the system. The consequential tensions between global free trade on the one hand and environmental considerations are not necessarily enhanced by coalitions but result from the 3 See Taihi Sugiyama and Jonathan Sinton. 'Orchestra of Treaties: A Future Climate Regime nature of the different objectives. Scenario with Multiple Treaties among Like-Minded Countries' (2005) 5 International
Environmenral Agreements 65, at 66 et seq.