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How can small domestic groups influence international law?

Scholar Eyal Benvenisti argues that small domestic interest groups may have a strategic advantage over large, less organized domestic groups like consumers and the electorate.

But how?

When it comes to international law the difference between the influence of groups within countries is more important than the influence of states. This is because states are not unified entities, and this is the key to small group power.

Mechanisms of Small Group Influence

How do small, organized groups influence international law and regulation? Why are larger groups, like consumers or the voting public, less likely to influence international law?

There are several things that work in the favor of small, organized groups within states.

• They have access to greater information and expertise than larger groups,
• They are focused on relatively defined interests,
• They often have access to positions of influence and power,
• They often have financial resources.

These strengths give small interest groups, like corporations or state administrations, the ability to influence international policy in ways that larger, less organized groups cannot. These small groups may even be able to “capture” government administrations and heavily influence the executive branch. It is more efficient to focus on influencing the executive and bureaucratic administrations than trying to move legislatures.

And, since it is the executive and government administrations that have the most influence in crafting international policy, the small, organized groups are able to garner a disproportionate level of influence in this arena.

How do small interest groups use their influence to shape international policy?

Negotiation

Small interest groups are involved in state negotiation of international treaties. They provide expertise, information, money, and personnel in international negotiations. Their influence may not be obvious since the details of these negotiations are largely hidden from public view. Also, states are officially the actors at the negotiating table. What may be less obvious is the small interest groups “behind” the state negotiators providing information and expertise.

By influencing the way that states negotiate treaties, small interest groups influence treaties and international policies. In some ways, the small interests are able to make international law in their own image.

Ratification

But, treaties still have to be ratified by states. Shouldn't this provide a check on the influence of small interest groups?

Not necessarily. In some states it is the government and not the legislature that is responsible for ratifying treaties. In these cases there may be little to no public oversight.

In countries like the U.S. where the legislature is responsible for ratifying a treaty, the executive may limit the legislature's ability to modify the treaty to more closely match the interests of the larger public by forcing “up or down” votes on the treaty. This “take it or leave it” approach leaves the legislature (and therefore the public) with less influence on the content or structure of treaties.

Protecting Treaties from Domestic Publics

Why don't large groups like the electorate provide checks on the interests of small groups? Surely constitutional limits on the executive should provide limits on small group influence. In reality, the ability of larger publics to check the influence of small interest groups is quite small. Treaties are to a large extent buffered from both the legislatures and domestic courts.

Buffered from the Legislature

As it was noted above, legislatures may be limited in their ability to alter treaties. This, in addition to the highly technical aspects of some treaties, make legislative oversight and pubic accountability difficult.

Buffered from Domestic Courts

Domestic courts should, in theory, be able to rule on international treaties. For instance, if a domestic firm does not abide by international treaties (say, by not following anti-pollution guidelines), the court could rule against the company. Or, when domestic law and international law are in conflict the court could argue that domestic law trumps international law. In situations like these the courts could shape the domestic impact of international law.

In real life, however, courts rarely do this. In practice, says Benvenisti, domestic courts are much more likely to defer to the executive in matters of international law. So, the interests of small groups as they are expressed in international treaties are largely buffered from domestic court influence.

Also, court judges know that if they rule against small private interests, the groups may simply locate elsewhere (like another country) to escape court jurisdiction.

Buffered from Political Changes

Because states are not free to unilaterally change treaties (at least without costs) treaties have the ability to outlast changes in the domestic political climate. For instance, the fall of communism dramatically changed the political situation in Hungary and Slovakia. However, the International Court of Justice ruled that treaty obligations regarding the Danube river set in place in 1977 were still in force in 1997. The domestic situations had changed and there was widespread opposition in Hungary, but the treaty remained in place.

Bottom Line

Small, well organized interest groups have an enormous impact on international lawmaking. These small groups protect their interests against larger public interests through their influence during the negotiation and ratification phases of international lawmaking.

Other Keytexts from this source

How to Make International Lawmaking More Democratic

Small Groups Play Domestic and International Processes Against Each Other to Avoid Regulation