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March|April 2005
Pop Con By David A. Strauss
Lawyers, Unite By Scott Cummings and Ingrid Eagly
America the Mercurial By Michael Ignatieff
Asking for Trouble By Phillip Carter

America the Mercurial

A new theory predicts when countries will honor or renege on their international obligations. Guess who doesn't fit the model.

By Michael Ignatieff

WHAT KIND OF LAW IS INTERNATIONAL LAW? A real constraint on the conduct of states, or a collection of paper treaties honored in the breach rather than in the observance? Since the war in Iraq and the disclosures of abuses at Abu Ghraib and Guantánamo Bay, these have once again become urgent questions. As far as most continental Europeans are concerned, the United States and Britain went to war in defiance of international law, and the two countries are detaining hundreds of foreigners in violation of treaties. If international law has so little traction on the conduct of powerful states, what good is it?

In a series of articles—the latest, "Between Power and Principle: An Integrated Theory of International Law," will be published in May by the University of Chicago Law Review—Oona Hathaway, an associate professor at Yale Law School, has developed "an integrated theory of international law." Hathaway seeks to rescue treaties and conventions from the claim that powerful states ignore them altogether and from the contrary view of liberal scholars that the world of states is steadily becoming more law-ordered. The world of states is not yet ruled by hard law, she argues, but it is not ruled only by force either. In a global economy, states create new international law to regulate the cross-border challenges that they cannot control on their own. In the process, they accept an evermore complex network of soft constraints on their own sovereignty.

The biggest challenge that Hathaway's theory must address is the behavior not of a host of nations but of the United States. By signing the United Nations Convention Against Torture yet gutting it in Abu Ghraib, by signing the U.N. Charter rules limiting the use of force and then using force without Security Council approval, and by ratifying human rights treaties and then ignoring criticism of its own performance from other countries, the United States has recognized the importance of law in framing international affairs while not respecting law's authority. Neither the political scientist nor the international lawyer can adequately explain this pattern.

MOST INTERNATIONAL LAWYERS BELIEVE THAT MOST COUNTRIES obey international law most of the time. Hathaway is more skeptical. In a 2002 article, she conducted a quantitative analysis of the relationship between human rights treaties and countries' human rights practices, looking at the experiences of 166 nations over about 40 years in the areas of genocide, torture, fair and public trials, civil liberties, and political representation of women. Her aim was to establish whether countries stick to the requirements of the human rights treaties they have joined, and whether those treaties succeed in improving the countries' human rights practices.

Among other things, Hathaway found that states sign up to agreements that they have no intention of abiding by, preferring symbolic adherence to actual compliance. Political scientists would conclude from her evidence that since states cannot be compelled to observe international law, the doctrine is irrelevant in explaining their behavior. But if international law is so irrelevant, why are treaties steadily proliferating? According to the U.N., more than 50,000 treaties govern the conduct of states today.

Hathaway argues that if a state already has a democratic constitution that protects individual rights, it may ratify international human rights agreements to express its moral approval of these norms. If a state is not yet democratic, it may sign up to human rights norms to demonstrate that it wants to be considered a good international citizen.

Two other factors, she argues, also influence a state's compliance. The first is the presence of actors and institutions with the capacity to demand that their country abide by its agreements. NGOs, political parties, free media, courts, and government lawyers can all play this role. Hathaway's key contribution is to insist that these domestic institutions are the critical variable in determining whether states will be good international citizens.

This important insight implies that democracy at home is the key to improving human rights worldwide. Hathaway argues that outsiders can't do much to improve China or Russia by naming and shaming their rulers or by inducing them to ratify an international treaty. Instead, would-be international reformers should focus on opening the state political system to competition and on fostering a free media and free NGOs. American policy makers and human rights activists should read Hathaway's theory as a call to bring together the often separate efforts to promote democracy and human rights.

Hathaway's second major contribution is to emphasize the role of incentives outside the law that help ensure compliance with international agreements. Countries eager to secure international aid or loans will sign treaties and comply with them if they believe that doing so will help them achieve their goal. Turkey, for example, is revising its policies on minority languages and the return of the displaced Kurds because it wants to get into the European Union.

How does Hathaway's theory fare when used to explain recent U.S. behavior toward international law? An obvious problem is that political incentives are unlikely to work on the United States, which so far isn't susceptible to the threatened loss of aid or loans. The whole problem with contemporary international law is the weakness of the nonlegal incentives available to prod the United States to be more multilateral in its foreign policy. Hathaway has little to say about this problem. She treats all states more or less the same rather than accounting for the degree to which strong states are more difficult to constrain than weak ones.

While she is right to focus on the decisive role of domestic institutions and constituencies, Hathaway is mistaken in assuming that domestic constituencies in all democracies will push their governments toward complying with international treaties. This may be the case in Canada and Western Europe, but it is not the case here at home. Uniquely among Western nations, the United States has an entrenched domestic constituency that actively opposes the loss of power it equates with international law. This constituency first emerged after 1945 among the Senate's defenders of segregation, when Southern Democrats opposed ratifying human rights treaties because they would put Jim Crow in the international dock. In deference to this lobby, the United States effectively withdrew from international human rights from the period of the Eisenhower presidency to the Carter Administration. In addition to the segregationists, another group opposed the Roosevelt Administration's liberal multilateralism on the grounds that the U.N. and the Security Council would step on the toes of U.S. sovereignty.

Conservative Republicans have consistently sounded the same theme in the decades since, in the jurisprudence of Supreme Court Justice Antonin Scalia and the arguments of John Bolton, under-secretary of state in the current Bush Administration. These critics challenge the democratic legitimacy of international law, arguing that only laws authored by the U.S. Congress should have authority over U.S. citizens. They dismiss as irrelevant Senate ratification of international conventions, insisting that the function of international law is to tie down U.S. power with meddlesome regulation. The existence of this lobby undermines the application of Hathaway's analysis to the United States.

THE STRONG STRAIN OF IDEOLOGICAL HOSTILITY to international law goes a long way toward explaining the mistreatment of prisoners at Abu Ghraib and Guantánamo. As Hathaway's theory would predict, the United States has been reluctant to shoulder international obligations. But in the past, once the government did so, it embraced them meticulously. The United States has a good record of compliance with the Geneva Conventions, which govern the treatment of prisoners of war. Past administrations complied with the Conventions because they wanted other states to do so when they held American detainees, and because Geneva's norms were consonant with—and partly derived from—American codes of warfare.

Yet now this pattern of compliance seems to be breaking down. Lawyers working for a president determined to exert maximum pressure on terrorist suspects sought to justify coercive methods of interrogation. While actual torture wasn't intended, the photos taken at Abu Ghraib show that the humiliation, terror, and degradation inflicted there crossed the line into egregious violations of international law.

The events at Abu Ghraib challenge Hathaway's theory by contradicting her assumption that in democracies, strong domestic institutions are the best guarantee of compliance. Government lawyers, for example, may buckle in the face of a president's strong determination to interpret prohibitions as permissions—legal restrictions on extreme forms of interrogation into authorizations of abuse. And the influential Americans who treat international law as irrelevant help to create conditions in which violations of international law are excused. To date, the Bush Administration has paid no political price for its flouting of the Geneva Conventions and other treaties.

Hathaway's theory breaks down barriers between legal theory and political science and brings a magnificent empirical database to bear on the impact that international law actually has on state behavior. These questions have been left to abstract theory for far too long. Her argument's chief flaw, however, lies in its failure to grapple with the conduct of the biggest state of them all—her own. The weak hold of the international rule of law over the world's greatest democracy is worrisome. More worrisome still is the failure of duty by the government lawyers charged with ensuring that the United States fulfills its international obligations. These failures have cost the United States dearly in terms of its standing among nations. International law as Hathaway assesses it may be soft law, but the consequences of violating it, even for the world's greatest power, can be hard indeed.

Michael Ignatieff is Carr Professor of Human Rights Practice at the Kennedy School of Government, Harvard University, and author most recently of The Lesser Evil: Political Ethics in an Age of Terror.

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