Global Prohibitions Regime: The Evolution of Norms in International Society

Global Prohibitions Regime: The Evolution of Norms in International Society

Ethan Nadelmann

Introduction

1st Problem: Piracy and

privateering 2nd Problem:

Slavery3rd Problem:

Fugitives Beyond Border

4th Problem: International

Drug Trafficking5th Problem: Prostitution6th Problem:

Killing of Whales and Elephants

7th Problem: Fate and Future of

global prohibition

regimes

• norms that prohibits, both in international law and in the domestic criminal law of states

• piracy, slavery, trafficking in slaves, counterfeiting of national currencies, hijacking of aircraft, trafficking in women and children for purposes of prostitution and trafficking in controlled psychoactive substances

• Norms strictly restrict the conditions under which states can participate in and authorize these activities and proscribe all involvement by non-state actor.

• Substance of norms and process -> institutionalized in global prohibition regimes.

• Evolution of norms into global prohibition regime

Introduction



Slavery3rd Problem:






global prohibition

regimes

What happens when a state refuse to participate in global prohibition regimes?

Those who refuse or fail to conform are labeled as deviants and condemned not just by states but by most communities and individuals as well.

What factors do international regimes tend to reflect? • moral and emotional factors• religious beliefs, humanitarian sentiments, faith in

universalism, compassion, conscience, paternalism, fear and prejudice are often involved in international regimes.

Example: Regimes stemming out from Western Europe reflect the needs and interests of powerful states as well as the influence of the Enlightenment and contemporaneous religious and moral notions.

Introduction



Slavery3rd Problem:






global prohibition

regimes

How do international regimes emerge?

• To protect the interests of the state and other powerful members of the society.

• To deter, suppress, or punish undesirable activities

• To provide for order, security and justice among members of a community.

• To give force and symbolic representation to the moral values, beliefs and prejudices of those who make the laws.

** inadequacy of unilateral and bilateral law enforcement measures in the face of criminal activities that transcend national borders.

Introduction



Slavery3rd Problem:






global prohibition

regimes

How do international regimes emerge?

• Certain criminal law evolve into international prohibitions regime because or moral proselytism

• Moral proselytism: compulsion to convert others to one’s beliefs and to remake the world in one’s image

Introduction



Slavery3rd Problem:






global prohibition

regimes

Transnational moral entrepreneurs

– these groups mobilize popular opinion and political support both within their host country and abroad

- stimulate and assist in the creation of like-minded organizations in other countries and play a significant role in elevating their objective beyond its identification with the national interests of their government.

- efforts are often directed to persuading foreign audiences

Introduction



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global prohibition

regimes

- States or governments do not hold moral views, rather, the capacity of moral arguments to influence government policies

- moral views of individuals: cosmopolitan in nature. - Other regimes are concerned not with particular criminal activities but with the mechanisms of international cooperation against crime. These “procedural” regimes often prove essential to the effective functioning of “substantive” prohibition regimes as well.

- “a universal international society” -> grounded in the gradual homogenization and globalization of norms developed among the European states

Introduction



Slavery3rd Problem:






global prohibition

regimes

STAGES OF REGIME DEVELOPMENT 1st stage: most societies regard the targeted activity as entirely legitimate under certain conditions and with respect to certain groups of people. 2nd stage: The activity is redefined as a problem as evil. 3rd stage: regime proponents begin to agitate actively for the suppression and criminalization of the activity by all states and the formation of international conventions.

4th stage: the activity becomes the subject of criminal laws and police action throughput much of the world, and international institutions emerge to play a coordinating role. 5th stage: An incidence of proscribed activity is greatly reduced, persisting only on a small scale and in obscure locations.

Introduction



Slavery3rd Problem:






global prohibition

regimes

Before seventeenth century Premises of the Medieval International Law (Georg Schwarzenberger)

a.) War was the basic state of international relations even between independent Christian communities.

b.)Rulers saw themselves entitled to treat foreigners at their absolute discretion

c.)High seas were no-man’s-land.

Introduction



Slavery3rd Problem:






global prohibition

regimes

Political Magnates’ View on Piracy:

• Source of wealth and political power

• Useful both for increasing their own possessions and for undermining the strength of competitors

Introduction



Slavery3rd Problem:






global prohibition

regimes

In the sixteenth century • Rewards and incidence of piracy jump dramatically with the broad

expansion of the maritime commerce. Note: officially or unofficially sponsored by European

governments.

How piracy/ privateer was practiced during:

Wartime privateering is in effect

an officially sanctioned version of piracy directed toward a state’s enemies and anyone engaged in trading with its

enemies.

Introduction



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global prohibition

regimes

How piracy/ privateer was practiced during:

Peacetime same private shippers were granted letters of reprisal by their

governments• authorizing them to recoup any losses due to piracy by

pirating from other ships bearing the same nationality as the pirates

What happens when professional privateers lost their official sanctions?

EITHER sought employment by another monarch OR became unsanctioned pirates.

Introduction



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global prohibition

regimes

Early seventeenth century C.M. Senior

“...prospects of infidels carrying Christians into bestial captivity in North Africa gave efforts to eradicate piracy an urgency and crusading zeal which they had previously lacked...one objective on which all Christian nations were agreed was the desirability of crushing the Turkish pirates.” • Between, French, Spanish, Dutch, and English fleets sailed against

the pirate base in North Africa.

Introduction



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global prohibition

regimes

End of seventeenth century • Change in Europe’s International Relations

a rapid change increase in the volume of trade and diplomacy

• Private fiefdoms and armies were co-opted or eliminatedpirates were warned to abandon their ways or risk the wrath of increasingly powerful navies

• Royal Navy1690s: improved England’s power to police the high seas

and its growing empire; gave particular force to the new injunction against pirating

Introduction



Slavery3rd Problem:






global prohibition

regimes

What Britain has exercised in order to stop piracy:• pirates and their collaborators were hunted down

• colonial administrators admonished to enforce the new antipiracy laws ardently

• foreign leaders warned to cease sponsoring pirate expeditions and to crack down on unauthorized pirates operating within and from their territories.

• failed to comply often found British and other European naval forces crowding local harbors to lend force to their demand.

Note: According to Senior, “Piracy is undergoing a transformation from being a national industry to becoming an international threat.”

Introduction



Slavery3rd Problem:






global prohibition

regimes

Immediate regularization on International Relation was impossible then due to the following reason:

• both states and privateers continued to operate against one another in the Americas and Asia

• European powers did not apply the same standards of behavior to their dealings with most nations beyond their continent.

• non-European states and even some of the colonies regarded the European efforts as unwarranted and unwelcome infringements into local struggles over power and wealth.

• Privateering or government-sanctioned piracy during wartime, was not effectively delegitimized until the nineteenth century.

Introduction



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global prohibition

regimes

• Maxim: Pirata est hostice humani generis [a pirate is an enemy of the human race]

seeped from the treatises on the international law into the political psyches of governments.

• norm of civilized behavior during peacetime extended to one’s fellow citizens and allies and, also to anyone other than an armed combatant.

• delegitimization of government-sanctioned piracy was not sufficient to ensure the virtual elimination of piratical activities from the high seas

• Eventually, piracy had been all but eliminated from the high seas at the latter part of the nineteenth century.

Introduction



Slavery3rd Problem:






global prohibition

regimes

17th and 18th century

• After the Peace of Utrecht (1713) 10 million Africans was transported in America.

• Liverpool became the center of slave trading

19th century

• 1807: the banning of slave trade started

• 1833: removal of the institution of slavery

• 1840s: the Royal Navy sent warships to control slave trafficking and the bilateral and multilateral agreements between African rulers and European countries regarding slave trade were also made

Introduction



Slavery3rd Problem:






global prohibition

regimes

19th century

• Paris Peace Conference (1814-1815), Congress of Vienna (1815) and Congress of Verona (1822): Britain promoted anti-slavery campaigns

• 2 diplomatic devices are introduced by Harold Nicolson

• Treaty of London (1841), Treaty of Washington (1862) and Brussels Convention (1890) promoted global criminalization of slave trade

Introduction



Slavery3rd Problem:






global prohibition

regimes

Britain

Why did Britain suppress Slavery?• The idea of the natural rights of man from the religious and

humanitarian principles and the principles of enlightenment

• Moral entrepreneurs and Anti Slavery Society emerged which made British elite and government oppose slavery

• White man’s burden

Introduction



Slavery3rd Problem:






global prohibition

regimes

Britain abolitionist

• played a part in raising Britain government internationally

• made an impact on foreign opinion regarding immorality of slavery

• British and Foreign anti-slavery society

• Promoted liberal principles that dominated Europe

Introduction



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global prohibition

regimes

Regimes against slavery

• Supported by most governments

• Criminalize international commerce

• Moral entrepreneurs played a big role

• Pronounced that the elimination of slavery will result to other forms of labor.

Introduction



Slavery3rd Problem:






global prohibition

regimes

Early 17th Century

• Hugo Grotius argued that governments were obliged either to return criminals to the “locus deficit”

• This made both the practice of extradition and the negotiation of extradition treaties rare occurrences

•

Introduction



Slavery3rd Problem:






global prohibition

regimes

18th Century

1. European governments negotiated dozens of extradition treaties to address problems of fugitives such as Pirates, and border bandits; Military deserters.

2. Most vigorous extradition efforts were directed to those who conspired against sovereign, embezzled funds from the treasury, or committed violent acts against the officials and other well connected members of the upper class.

3. Governments interest in extraditing and punishing fugitives expanded as they represented their citizens interests and assumed broader criminal justice responsibilities.

Introduction



Slavery3rd Problem:






global prohibition

regimes

Late 19th Century

• Extradition relations have expanded in number

• Problems in the lack of complementarity in extradition between COMMON LAW NATIONS and CIVIL LAW NATIONS

• Civil law tradition of non-extradition of nationals represents the most conspicuous relic of nationalist resistance to international law enforcement cooperation

Introduction



Slavery3rd Problem:






global prohibition

regimes

Today

• International law scholars acknowledge the Grotian Perspective regarding the obligation to extradite or prosecute

• Governments are increasingly willing to devise the ways of circumventing their own legal restrictions on renditions of fugitives

• Indications that both common law and civil law countries are considering legalistic and nationalist reservations to unencumbered extradition of vicarious prosecution.

Introduction



Slavery3rd Problem:






global prohibition

regimes

Samples of Psychoactive Substances:• Alcohol• Tabacco• Opium• Coffee• Coca Different Uses of these Substances:• Medicinal• Ritual• Recreational Purposes Some of the Ways of Government Control:• death penalty• taxation• zoning

Introduction



Slavery3rd Problem:






global prohibition

regimes

Vast majority of states count themselves as members of the global drug prohibition regime

• production, sale and even possession of such substances that are outside strictly regulated medical and scientific channels are punished with criminal sanctions

• criminal justice agencies in most countries are deeply involved in investigating and prosecuting drug law violations

• the rhetoric “war on drugs” has also been globalized

Introduction



Slavery3rd Problem:






global prohibition

regimes

United Kingdom• British government

principal sponsor of the opium trade

• Eventually, opposition regarding the trade gain force during the Opium Wars

Examples of Organizations:British Quakers

leading moral entrepreneurs of the antiopium campaign

• Anglo-Oriental Society for the Suppression of the Opium Tradeplayed a major role during the next four decades in

organizing sentiment against the opium trade, proselytizing to the public, and lobbying the government.

Introduction



Slavery3rd Problem:






global prohibition

regimes

• Reversal on British government policymoral impulses over political and economic interests

Note: Britain did not extend to support for an aggressive global campaign against the trade

Introduction



Slavery3rd Problem:






global prohibition

regimes

United States• Americans, notably missionaries returned from the Far East, were

the ones who initiated the campaign globally.

Effects of campaign:• emergence of drug control legislation• emergence of drug prohibition• Antiopium laws in the State

city ordinances in San Francisco (1857) and Virginia City, Nevada (1876)

• Even with the vigorous international efforts of American Prohibitionists, the effort to create an antialcohol regime failed.

Introduction



Slavery3rd Problem:






global prohibition

regimes

Note: • the nature of the global drug control regime reflected the

predominance of the United States and Europe in establishing global norms concerning the selection and appropriate uses of psychoactive substances.

• the global drug enforcement regime reflected the desire and capacity of the United States to impose its drug-related norms on the rest of the world.

• the future of the global drug control regime will certainly hinge in good part on the substitutability of those drugs which make up most of the illicit global drug traffic today by psychoactive substances and stimuli that are available.

Introduction



Slavery3rd Problem:






global prohibition

regimes

Sidenote:

Advantage of Drug trafficking:

• unlike currency counterfeiting, no particular expertise or resources are required to produce, smuggle, or sell many of the illicit drugs.

• unlike slaves, illicit drugs are easily concealed by producers, smugglers, dealers, and consumers.

• unlike piracy, slavery, and counterfeiting, drug trafficking produces very few victims who have an interest in notifying criminal justice authorities.

Introduction



Slavery3rd Problem:






global prohibition

regimes

Late 19th century

• White slavery was first referred to entire system of licensed prostitution in existence throughout much of Europe and parts of US

• Activist sought the abolition of licensed prostitution

• White slavery was known as the “White slave trade”

Introduction



Slavery3rd Problem:






global prohibition

regimes

• International Movement to abolish was led by transnational moral entrepreneurs

• Dominant figures in Europe: Josephine Butler persuaded Parliament to repeal the contagious Diseases Prevention Act

• In the US: Mann-Elkins Act prohibited international traffic in women for purposes of prostitution

• An international conference and agreement was made to condemn the practice. Unfortunately, the creation of this regime was not followed

Introduction



Slavery3rd Problem:






global prohibition

regimes

• Different social, economic and demographic conditions stimulated transnational movement of prostitutes during the 1800s

Today

• Small scale of international movement of women for purposes of prostitution

• Development of effective contraception and start of the “Sexual Revolution” reduced inhibitions to female activity

Introduction



Slavery3rd Problem:






global prohibition

regimes

• Despite all that, prostitution is peculiarly resistant to criminal justice measures.

• The existence of a nearly universal notion that a particular activity is wrong has not translated into the evolution of a global regime to prohibit it.

Introduction



Slavery3rd Problem:



Drug Trafficking5th Problem: Prostitution

6th Problem: Killing of Whales

and Elephants


global prohibition

regimes

Whales

• The resistance of the killing of whales started during the 1930s and 1940s

• 52 nations supported the ban of killing of whales in 1972 United Nations Conference.

• People against it increased in numbers, exposing it through the media

• There is an international convention that controls it but did not entirely ban the killing

• Some countries such as Japan, Iceland, Greenland, Spain and Soviet Union still violate the international convention

Introduction



Slavery3rd Problem:





and Elephants


global prohibition

regimes

Whales

• There are still what they call “Pirate Whalers” of Peru, Chile and Taiwan.

• Countries like the United States, Australia and most especially Greenpeace played a great role in managing the whalers.

Introduction



Slavery3rd Problem:





and Elephants


global prohibition

regimes

Elephants

• In East and central Africa the population of elephants greatly decreased

• Other government officials and some conservationist supported the resistance in killing of elephants especially as a sport

• They succeeded in banning of selling ivory in the global trade in 1989 with the help of the US government

Introduction



Slavery3rd Problem:





and Elephants


global prohibition

regimes

Elephants

• People against it used different tactics like producing the movie entitled Bloody Ivory

• Selling of ivory cannot be fully eliminated as long as nations will favor the sale of ivory such as Japan which consumes 40% of Africa’s ivory

• Convention on International Trade in Endangered Species was able to reduce the price of ivory in mid-1989

Introduction



Slavery3rd Problem:





and Elephants

7th Problem: Fate and Future

of global prohibition

regimes

I. Activities Targeted By Future Global Prohibition Regimes

A. Extraterritorial Violations of Federal Statutes a. Against Tax Evasion, Money laundering, etc. b. Emergence of Multilateral Regimes

B. Unauthorized Development of Atomic, Biological, Chemical and Other Weapons

Anti-Hi-jacking Regime

C. Protection, Reduction and Conservation Civil Regulatory Agencies, Criminal Sanctions

II. Possibility of Legitimate Activities to Be Target of Global Prohibition Regimes

International Traffic in Tobacco

Introduction



Slavery3rd Problem:





and Elephants

7th Problem: Fate and Future

of global prohibition

regimes

III. Lessons and Insights Into The Evolution of Norms in Global

SocietyEmergence of Norms and Its Promotion

IV. Norms That Evolve Into Global Prohibition RegimesA. 1st: Mirror the Criminal Law of States That Have Dominated Global

SocietyB. 2nd: Target Criminal Activities

V. Global Prohibition RegimesA. Certain Activities Must Be Banned B. Vulnerability of An Activity to Global Suppression Efforts By States

Date post:	12-Nov-2014
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Global Prohibitions Regime: The Evolution of Norms in International Society

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