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Maggie Gardner
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 only to the extent that parties comply with them. Because states generally cannot enforce their laws outside their own territory, transnational criminals can evade prosecution as long as some states are unable or unwilling to meet these treaty commitments. One solution for improving compliance with these treaties may be, counterintuitively, more unilateralism. Using case studies on transnational bribery and drug trafficking, this Article develops a theory of “channeled unilateralism” to explain how multilateralism and unilateralism can reinforce one another to further the same ends. Treaties that channel unilateralism are structured to help motivated states apply their laws to crimes that reach beyond their borders. Specifically, the treaties endorse extraterritorial extension of prescriptive jurisdiction and encourage the use of bilateral agreements for enforcement cooperation. These treaty provisions lower reputational and transaction costs for motivated states to expand their enforcement efforts as long as those efforts remain within the framework set by the treaty. Over time, these expanded unilateral efforts may promote broader compliance with the treaty regime by improving information, peer-to-peer contacts, and technical capacity. When channeled effectively, strong unilateral policies may strengthen rather than weaken multilateral regimes.
