Constrained Unilateralism

When crime reaches across borders to threaten human security or undermine democracy, states often respond by adopting multilateral treaties that obligate each of them to suppress the transnational crime at home. These treaties help, but they suffer from holdout problems. Because states cannot enforce their laws outside their own territory, mobile transnational criminals will evade prosecution as long as some states are unwilling or unable to meet their treaty commitments. The solution may be, counterintuitively, more unilateralism. Using case studies on maritime drug trafficking, transnational bribery, and illicit trade in weapons of mass destruction, this Article develops a model of “constrained unilateralism” to explain how the international community can use one state’s enforcement efforts to increase treaty compliance by another. Under a model of constrained unilateralism, treaties are structured to help states apply their laws to crimes beyond their borders (the unilateral part) but within limits set by the international community (the constraining part). Specifically, the treaties endorse extraterritorial application of prescriptive jurisdiction and encourage the use of bilateral agreements for enforcement cooperation. These provisions lower reputational and transaction costs for motivated states to expand their enforcement efforts within the framework set by the multilateral treaty. Over time, these expanded enforcement efforts can help weak states and pressure recalcitrant states towards greater compliance with the treaty regime. When channeled effectively, strong unilateral enforcement may strengthen multilateral regimes in predictable and productive ways