by Christine Jojarth. New York and Cambridge: Cambridge University Press, 2009. 325pp. Hardback. $90.00/£50.00. ISBN: 9780521886116. Paperback. $34.99/£18.99. ISBN: 9780521713764. eBook format. $28.00. ISBN: 9780511513107.
Reviewed by Andrew Kowalsky, Osgoode Hall Law School at York University. Email: AndrijKowalsky [at] osgoode.yorku.ca.
Illicit drugs, small arms, blood diamonds, and money laundering: four policy concerns no one state concerned with transnational security can ignore. Between 1988 and 2003, the international community implemented four anti-trafficking initiatives to excise these staples from the illicit global market (Friman and Andreas 1999, at 1). The purpose of Christine Jojarth’s recent book, CRIME, WAR, AND GLOBAL TRAFFICKING: DESIGNING INTERNATIONAL COOPERATION is to explain variance in the institutional design of these countermeasures. In so doing, Jojarth shows international lawmakers face difficult tradeoffs when legislating responses that balance credibility with flexibility. The purpose of this review is to describe the nature of Jojarth’s effort.
Using a case study approach, Jojarth examines how policy architects designed the legal and institutional frameworks of: (1) the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Hereinafter UN Convention Against Illicit Traffic); (2) the 2003 Financial Action Task Force and its Forty Recommendations; (3) the Kimberly Process Certification Scheme of 2002; and, (4) the 2001 United Nations Program of Action on Small Arms and Light Weapons (Hereinafter UN Program of Action). Chapters 2 and 3 present a novel, theoretically inspired bifurcated model that allows Jojarth to assess what an optimal anti-trafficking institutional design should be. A favourable design is one that responds to an underlying problem constellation conceptualized in terms of variables – asset specificity, behavioural uncertainty and environmental uncertainty – drawn from transaction cost economics theory. A predicted design is then compared and assessed against the actual anti-trafficking governance structure from a vantage point incorporating Abbot et al’s (2000), legalization thesis variables of obligation, precision and delegation. Much of the revelatory analysis in the work involves situating each of the four anti-trafficking institutional designs within a soft-hard law continuum and exploring whether policymakers optimally designed them.
The discussion regarding the UN Convention Against Illicit Traffic (Chapter 4) and the UN Program of Action (Chapter 7) illuminates just how diverging political consensus results in two interrelated crimes receiving starkly different institutional designs. When lawmakers were drafting the UN Convention Against Illicit Traffic they were effectuating a long-standing, nearly [*889] universal international policy condemning transborder drug smuggling. However, when states profit from the drug trade they may be motivated to dodge their legal obligations, despite any rhetoric to the contrary. This “prisoner’s dilemma” meant that drafters would have to account for an underlying problem constellation marked by a high degree of asset specificity and behavioural uncertainty that, unless addressed, would invite certain states to skirt their obligations with impunity (p.119). As Jojarth shows, the UN Convention Against Illicit Traffic’s legal bindingness on signatories, strong compliance mechanisms, and precisely drafted provisions represent a hard law design exhibiting high levels of obligation and precision. Since smuggling drugs and arms is equally deleterious, one could predict that similar form would also follow function.
Yet, unlike the three other anti-trafficking regimes, the UN Program of Action defied design prediction. A review of its pith and substance suggests a soft law arrangement with governance structures that fail to create a sufficient degree of obligation, precision, and delegation to ensure compliance of net payers. Jojarth’s explanation for the discrepancy illustrates that when indirect economic costs and political considerations weigh too heavily for superpowers indirectly implicated in a suspect export trade, a sub-optimal institutional design follows. In this instance, these governments are seen as rational, structured actors who will choose national interests over the international common good. However, to fully appreciate entrenched protectionism influencing institutional design required an extended back and forth review and syncretisation of the discussion contained within the institutional design predictions portion of the chapter and that of the section on actual institutional design.
In suggesting a readership for CRIME, WAR, AND GLOBAL TRAFFICKING: DESIGNING INTERNATIONAL COOPERATION, my own experiences with this study are instructive. Jojarth’s work was recommended for review and discussion amongst colleagues in an Osgoode Hall Law School graduate level seminar on law on Regulation and Governance. This book is a natural selection for a course concerned with the relationship between state and non-state institutions in policy making. First, Jojarth’s current work traces its genesis to the author’s doctoral studies at the London School of Economics. Graduate students can read the book with a view to analyzing the components of an insightful and well-researched extended study (Kamler and Thompson 2006). Second, Jojarth’s contextualization of the mischief each of the four anti-trafficking regimes addresses provides rich insight into which agendas instigate the international law-making process. Third, readers are exposed to the mechanics of statutorily interpreting international law treaties and binding agreements. Fourth, no discussion of regulation in an era of globalization seems complete without considering the changing role of the state in international law making (see, e.g., Kahler 2004). The study’s discussion on the direct and significant influence of industry and NGO representatives in the policy design mix of the Kimberly Process Certification Scheme challenges conventional wisdom that NGOs’ [*890] limited legal personality limits their input in the creation and application of international law (Kindred, et al. 2000, at 48.). Hence, this is a book that graduate students in law, political science, public administration, international relations, and globalization studies would find insightful. Apart from an instructional device, teachers comprising classic international law and diplomacy camps would find this work a stimulating examination of traditional international law making process and cooperation being reconfigured at the structural level.
Readers of all stripes should appreciate that creating a two-stage design paradigm full of numerous variables and their subcomponents, and then testing it, generates a protracted analysis. This is why in-chapter summaries on predicted institutional and actual institutional designs are helpful. They do not, however, in and of themselves lessen an extended reading endeavour that at times becomes overly academic.
CRIME, WAR, AND GLOBAL TRAFFICKING: DESIGNING INTERNATIONAL COOPERATION represents an important contribution to the fledgling literature on institutional design theory. It should inspire additional research analyzing how and why destabilizing global menaces influence international policy makers to design the counter-regimes they do. Any related future research will have to explore whether the study’s problem-oriented design model is limited to interrelated policy issues bounded within the crime-war continuum or applicable to novel areas. Case study results generally develop concepts used for further study (Cavaye 1996, at 229).
Abott, Kenneth W., Robert O. Keohane, Andrew Moravcsik, Anne-Marie Slaughter, and Duncan Snidal. 2000. “The Concept of Legalization.” 54 INTERNATIONAL ORGANIZATION 401-419.
Cavaye, A.L.M. 1996. “Case Study Research: A Multi-Faceted Research Approach for IS.” 6 INFOORMATION SYSTEMS JOURNAL 227-242.
Friman, H. Richard, and Peter Andreas. 1999. “Introduction: International Relations and the Illicit Global Economy,” in H. Richard Friman and Peter Andreas (eds). THE ILLICIT GLOBAL ECONOMY AND STATE POWER. Lanham, MA: Rowman & Littlefield Publishers, Inc.
Kahler, Miles. 2004. “Global Governance Redefined.” The Conference on Globalization, the State and Society, Washington University School of Law, 13-14 November 2004. Online:
http://law.wustl.edu/Centeris/Papers/globalization/KAHLERMilesFINALPAPER.pdf (date accessed: 19 November 2009).
Kamler, Barbara, and Pat Thompson. 2006. “Doctoral Writing: Pedagogies for Work with Literatures.” AERA Annual Meeting, San Francisco, CA, April 2006. Online: http://www.deakin.edu.au/current-students/assets/resources/study-support/study-skills/research/kamler.pdf (date accessed: 17 November 2009). [*891]
Kindred, Hugh M., Phillip M. Saunders, et al. 2000. INTERNATIONAL LAW CHIEFLY AS INTERPRETED AND APPLIED IN CANADA (6th ed). Toronto: Emond Montgomery Publications.
© Copyright 2009 by the author, Andrew Kowalsky.