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International Studies Quarterly (2004) 48, 779804

Explaining Costly International


Institutions: Persuasion and Enforceable
Human Rights Norms
DARREN HAWKINS
Brigham Young University

Why do states create enforceable international human rights norms that


empower third parties to prevent and sanction domestic human rights
abuses? Recent theories suggest that international institutions are
shaped not only by power and interests but also by the content of ar-
guments during intensive communication and argumentation processes.
Moving beyond the simple notion that communication matters, I ar-
gue that states are likely to be persuaded by arguments that draw on
widespread taken-for-granted norms, in particular, prohibitions on
bodily harm, the importance of precedent in decision making, and the
link between cooperation and progress. This model extends previous
theories by specifying mechanisms and scope conditions for interna-
tional change through persuasion. I illustrate the argument by exam-
ining the convention against torture, a costly international institution
that allows domestic courts to prosecute crimes that occur in the ter-
ritory of other states (universal jurisdiction). Because of its enforcement
mechanisms, the torture convention poses a difficult case for theories
explaining international institutions. If persuasion models can explain
even costly institutions, they should be more widely considered as ex-
planations for all kinds of international institutions.

Some international human rights norms that began in the 1940s as superficial
declarations of principle have become subject to international enforcement. A series
of events dating to the late 1990s underscores this point. In July 1998, states
reached agreement on the creation of an International Criminal Court with juris-
diction over war crimes and crimes against humanity. Just 3 months later, in a
stunning move, British police arrested former Chilean strongman Augusto Pino-
chet on charges of human rights abuse brought by a Spanish judge. In an equally
unprecedented event, the Yugoslav war crimes tribunal charged a sitting head of
state, Slobodan Milosevic, for war crimes in May 1999 and then put him on trial in
February 2002. During the same period, a variety of states began court proceedings
against foreign nationals once considered safe from prosecution.1

Authors note: I wish to thank Brigham Young University and the David M. Kennedy Center for International
Studies for funding this research. Scott Cooper, Joshua Cooper, Valerie Hudson, Wade Jacoby, Jutta Joachim,
George Kent, Maria Eugenia Villarreal, and a series of anonymous reviewers offered valuable comments on earlier
versions of this article. This research has also benefitted from presentation at the Tuesday Group faculty seminar in
the political science department at BYU. A battery of research assistants, including Jenny Champoux, Ryan Chavez,
Jetta Hatch, Camille Jackson, Maren Mangum, and Jeremy Smith, provided essential help.
1
Wide net in Argentine torture case, New York Times, September 11, 2000; Dictators in the dock: New
attempts to bring despots to justice, The American Prospect, August 14, 2000; NATO troops seize a top Serb facing
war crimes charge, New York Times, April 4, 2000.

r 2004 International Studies Association.


Published by Blackwell Publishing, 350 Main Street, Malden, MA 02148, USA, and 9600 Garsington Road, Oxford OX4 2DQ, UK.
780 Explaining Costly International Institutions

The movement from principled declarations to enforceable principles poses a


serious analytical puzzle for international relations scholars. States have no com-
pelling reason to open their human rights practices to scrutiny from others or to
care about the ways in which other states treat their citizens. Even if democratic
states become more secure by spreading democracy and human rights to othersFa
contestable proposition, of courseFthey still have little reason to allow others to
investigate and enforce human rights violations committed by their own citizens. In
other issue areas, the self-interest in preventing and punishing norm violators is
more evident. On trade issues, for example, other states are harmed when a ren-
egade state violates free trade agreements, and enforcement offers a natural form
of collective protection. Even so, states did not create a strong free trade enforce-
ment mechanism until the establishment of the World Trade Organization in the
1990s. Why, then, have states moved toward enforcement in human rights issues?
Why would states want to empower others to take action against them, or to expend
resources punishing other states for domestic abuses?
To answer these questions, I develop a political process model drawn from recent
theories emphasizing communication and persuasion. In this model, it is the content
of arguments rather than state power or exogenous state interests that has the
greatest influence on what type of agreement is reached and whether states support
it. In particular, arguments that fit with widespread taken-for-granted understand-
ings in the international arena are more likely to result in strong state action. Three
of the most dominant understandings concern the value of protection from bodily
harm, the role of precedent in decision making, and the importance of interna-
tional cooperation to resolve widespread social problems.
This process model challenges explanations of international institutions that fo-
cus more exclusively on power, domestic politics, or the costbenefit calculations of
unitary states. In the realist tradition, some analysts expect powerful states to be
responsible for enforcement of international norms, when it occurs at all (Krasner,
1993). Others, adopting a liberal approach, suggest that domestic politics drives the
creation of newly enforceable norms. In one prominent example, Moravcsik (2000)
argues that state interests are shaped by domestic institutions, and that unstable
democratic governments are the most likely proponents of international human
rights enforcement. Still other scholars have argued that new international insti-
tutions emerge when unitary states believe that their benefits outweigh their costs
and they facilitate mutually desirable cooperation (Martin and Simmons, 1998).
In contrast, I draw on recent constructivist theories to suggest that state interests
are sometimes uncertain and can be formed over time through processes of com-
munication and persuasion. I go beyond the proposition that communication
matters to identify which types of persuasive arguments are the most likely to
inform state interests and the resulting international agreements. This article re-
sponds to calls for theoretical development within the constructivist approach that
specifies the mechanisms and scope conditions of international change (Checkel,
1998; Ruggie, 1998). I am not suggesting that all international agreements follow
the model articulated below. Rather, I develop a causal mechanism that relies on
persuasion and show how it provides a superior explanation for the incorporation
of an enforcement mechanism in a key global human rights treaty.
The virtue of the model is that it develops existing constructivist-style propo-
sitions that are either too vague or too narrow into more specific, testable and
falsifiable arguments and illustrates their plausibility in a difficult case. International
institutions with enforcement authority constitute difficult cases for any theory be-
cause they require states to pay substantial sovereignty costs, contracting costs, and
agency costs, as elaborated below. It is relatively easier to explain the existence of
international institutions that impose relatively few costs on states. If persuasion can
be shown to influence states on enforcement issues, then persuasion models should
be applicable to a range of international institutions.
DARREN HAWKINS 781

The paper proceeds as follows. In the first section, I define international en-
forcement, explain the costs associated with it, and develop the empirical puzzle
posed by the central empirical subject, the convention against torture. Turning to
theory, I then explain why persuasion matters, with a focus on identifying a priori
the content and nature of arguments that are likely to be persuasive. I then ex-
amine the history of the convention against torture in some depth, with a focus on
international negotiations as well as domestic developments in the Netherlands and
the United States. After considering alternative explanations, I generalize the
model in a concluding section, arguing that it can help explain important patterns in
the enforceability of human rights treaties and can be applied to other issue areas.

International Enforcement
I define international enforcement as a formal agreement among states that del-
egates authority to third parties to take adversarial, compulsory action against states
or state agents that are violating international rules, or are suspected of such vi-
olations.2 The authorized enforcers could be other states, intergovernmental or-
ganizations (IGOs), or nonstate organizations either at the international or domestic
levels. By adversarial, compulsory action, I refer to activities that are unwanted by
the accused state or state agent, and that have a legally binding character. To
constitute enforcement, authorized agents do not need to utilize force or even have
force at their disposalFalthough they may. Rather, they must be officially empow-
ered by states to interpret and apply the rule of law, and control resources that can
be used to prevent abuses or to punish offenders. Such resources include weapons
and money, certainly, but also judges, courts, prisons, and institutional privileges
such as membership and decision-making authority within international organiza-
tions. Enforcement authority has become a more prominent feature of interna-
tional institutions since the end of the Cold War and is related to the legalization of
those institutions (Abbott, Keohane, Moravcsik, Slaughter, and Snidal, 2000).
Prominent examples of enforcement IGOs include the World Trade Organization,
the European Court of Justice, and the International Criminal Court.
Enforcement authority is theoretically interesting because it is costly. Delegating
enforcement authority to others requires that states pay sovereignty costs, con-
tracting costs, and agency costs. Sovereignty costs include possible reputational
costs for state violators, an increased probability that violations will be reciprocated,
a restricted range of policy options, and the decreased authority of domestic actors
to make independent, unilateral policy choices (Abbott and Snidal, 2000:436441).
Contracting costs exist for all international agreements but are especially high when
the stakes are higher, as with enforcement provisions. States care more about the
outcome and so are likely to adopt harder bargaining positions, to require more
time to learn about the proposed agreement and its implications, and to subject
international negotiations to closer domestic political and bureaucratic scrutiny
(Abbott and Snidal, 2000:434436). Agency costs refer to the costs of supervising
and monitoring the agent to whom states have delegated enforcement authority.
States do not simply grant enforcement IGOs limitless autonomy, but rather ex-
pend important resources overseeing those agents and checking them if they be-
come too unruly. Further, delegation to IGOs often involves both collective action
problems and long delegation chains, thereby increasing agency costs (Nielson and
Tierney, 2003:247251).
One enforcement mechanism that has recently garnered a lot of attention is
universal jurisdiction, defined as the principle that a states jurisdiction is based on
the nature of the crime rather than other factors such as where the crime occurred

2
This definition draws on Abbott et al. (2000:415418). See also Donnelly (1986:603605) and Arend
(1999:2935).
782 Explaining Costly International Institutions

or the nationality of the alleged perpetrator or victim (Ratner and Abrams,


2001:160162). This principle allows Nigeria, for example, to prosecute a crime
committed in Germany by an American against an Indonesian. Historically, states
applied the principle to universally repudiated crimes that occurred outside any
states formal territorial jurisdiction, such as piracy (Boulesbaa, 1999:204205).
More recently, states have endorsed universal jurisdiction for the crimes of hijack-
ing, hostage taking, and crimes against diplomats (Lippman, 1994:316). It is im-
portant to note that international treaties grant extraterritorial jurisdiction only to
states ratifying the treaties. As a result, jurisdiction over such crimes is not truly
universal in the sense of applying to all states. While the term universal may
not be precisely accurate, it is conventionally and widely used to refer to broad
extraterritorial jurisdictional grants based on the nature of the crime (Ratner and
Abrams, 2001), and I apply it this way in this study.
In 1984, states first applied the principle of universal jurisdiction to human rights
abuses when they adopted the Convention Against Torture and Other Cruel, In-
human or Degrading Treatment or Punishment (Boulesbaa, 1999:204205; Rod-
ley, 1999:4850, 129130). Article 5 of the convention allows states to establish
jurisdiction over crimes involving torture not only when the crime occurs within its
territory, but also when the alleged offender is a national of that state, when the
victim is a national of that state, or when the alleged offender is present in its
territory and the state decides not to extradite the accused. Article 7 requires states to
adopt such jurisdiction rather than simply permitting them to do so.
Although the torture convention did not invent universal jurisdictionFa point
that will become important laterFit applied the principle in an important new way
(Randall, 1988:819; Rodley, 1999:120132). Previously, universal jurisdiction cov-
ered crimes that had some transnational character or crimes that were not spon-
sored by the state, or both (Randall, 1988). The Geneva Conventions, for example,
adopted universal jurisdiction for war crimesFbut these crimes were generally
committed by one states armed forces against foreign nationals and thus had a
clear transnational character. In approving the torture convention, states explicitly
opened their own officials to prosecution by other states. In essence, prosecuting
authority is handed to third-party states for crimes that are both state-sanctioned
and targeted against a states own citizens! Equally surprising, the torture treaty was
adopted by the United Nations (UN) General Assembly by unanimous agreement
and has been widely ratified. As of December 2002, 132 states of all ideologies and
regime types had ratified the convention, out of a possible total of 193.3
It is important to note that this process of norm creation is distinct from the issue
of norm compliance (Finnemore and Sikkink, 1998; Martin and Simmons, 1998).
Norm creation occurs when states accept, in principle, a new rule or set of rules
intended to govern their behavior. Norm compliance occurs when states alter their
behavior to conform more closely to the rule. Norm creation is most easily seen
when states approve a new formalized treaty and can be dated from the point at
which the treaty is opened for signature and ratification. The establishment of
universal jurisdiction does not mean that states will actually utilize that mechanism.
In fact, the absence of enforcement is undoubtedly much more common than
enforcement.
Yet none of this suggests that the torture treaty is unimportant. Although the
treaty (at one level) consists of mere words, they are words that states have resisted
saying for a few hundred years now. Ever vigilant for their sovereignty, states
have fiercely opposed formalized statements that would create the possibility of
jurisdiction over the domestic affairs of another. Yet the torture convention spe-

3
Office of the United Nations High Commissioner for Human Rights, Status of ratifications of the principal
international human rights treaties, December 9, 2002. Current version available at http://193.194.138.190/pdf/
report.pdf.
DARREN HAWKINS 783

cifically creates that possibility. At another level, the convention represents more
than just words, for the words are reflective of deeper shared understandings
among states. States are not merely mouthing words without meaning; rather, a
good many of them actually believe that torture is such a heinous crime that it
should be subjected to universal jurisdiction. This shared belief constitutes a change
from previous beliefs about torture and is worthy of explanation. Finally, states
have actually exercised universal jurisdiction in some important cases that are likely
to pave the way for an ever-broader use of the power. What was once a simple
moral vision has now actually occurred, in part because the anti-torture convention
made it possible.
The case of Augusto Pinochet, of course, highlights the practical importance of
universal jurisdiction in general and of the torture treaty in particular (Wilson,
1999; OShaughnessy, 2000:157170). In Spain, prosecutors brought charges
against Pinochet under domestic Spanish laws that recognize the principle of uni-
versal jurisdiction for crimes such as genocide and torture. In Great Britain, the
courts focused on the torture treaty, in large part because it explicitly grants uni-
versal jurisdiction, and Chile, Spain, and Great Britain are all party to it. In fact, the
Pinochet government itself acceded to the treaty on September 29, 1988, thereby
establishing a date from which Chilean officials, including Pinochet, could be held
liable for torture in extraterritorial courts. Although the Pinochet case is the most
well-known use of universal jurisdiction, it is scarcely the only one. A recent study
shows that 109 states have domestic legislation authorizing universal jurisdiction,
that 14 states have initiated cases using that authority, and that high-level courts in
12 of those states have upheld the authority (Hawkins, 2003). Almost all these cases
have occurred since 1994. It is important not to overstate the extent of enforcement
actually occurring, but the use of universal jurisdiction in human rights cases seems
likely to grow further as victims and activists continue to seek justice. Why did states
open this potential Pandoras box in the first place?

How and Why Persuasion Matters


Each year, states, IGOs, NGOs, businesses and individuals make a large number of
proposals for new international norms. Not all of these ideas become norms (prin-
ciples establishing behavioral oughts that are widely accepted by states) or are
institutionalized in formal organizations or treaties. What determines whether an
idea gains widespread acceptance as a norm and is embodied in institutions? How
does this process work? Without denying that multiple causal paths may exist, I
develop a communicative interaction model that relies on persuasion.
All international institutions result from communicative processes. States com-
municate their interests and bargaining positions and inform each other of the
trade-offs they wish to make. If communication only included such straightforward
information provision, there would be little reason to study it as an independent
explanatory factor. Yet communication also involves arguing, shaming, persuasion,
learning and similar methods of social influence (Risse, 2000; Checkel, 2001;
Johnston, 2001; Schimmelfennig, 2001). Argumentative rationality (Risse, 2000)
refers to a communicative process in which actors collectively deliberate over their
assumptions about the world, the values they share, how those assumptions and
values should apply to their behavior, and whether particular behaviors actually
conform with abstract standards.
This conception encompasses both rhetorical action, in which actors strategi-
cally use arguments to promote their interests (Schimmelfennig, 2001), as well as
complex social learning, in which actors lack well-defined interests and are thus
open to new ideas and views (Checkel, 2001). In the logic of rhetorical action, self-
interested actors are shamed into adopting new positions when others demonstrate
the gap between professed values and actual behavior. In the logic of social
784 Explaining Costly International Institutions

learning, actors become convinced through arguments and debate that a different
position is logically or normatively superior. While these two causal mechanisms
vary in theory, it is difficult to separate them in practice. In the first case, individuals
change their position because of demonstrated inconsistencies and a desire for
normative approval; in the second, they change position because they have iden-
tified a new logic that seems superior. In any given communication, actors are likely
to utilize and respond to both tactics.
Further, these two communicative processes share important analytical features
that justify joining them in the same category of argumentative rationality, which I
freely interchange with the term persuasion. Both rhetorical action and learning
assume self-interested actors; both emphasize the importance of collective identities
or understandings; and both assume that state interests and values and the strat-
egies that flow from them are malleable and open to change through communi-
cative interaction. For rhetorical action to operate, states must be motivated by a
combination of strategic individualistic goals and a strong sense of collective identity
and values. The same may be said of social learning, or true reasoning, in which
actors pursue individual goals while seeking reasoned consensus (Risse, 2000:9).
Persuasion models differ from many existing theories not in denying individual
state rationality but rather in the extent to which they emphasize state collective
goals and identities and the malleability of state goals and strategies through social
interaction.
Drafting a new treatyFthe most common basis for international institutionsFis
fundamentally a communicative process in which state delegates argue and delib-
erate the pros and cons of variations in wording. The drafting process provides a
setting in which persuasion can take place. Following Habermas, Risse identifies
two key preconditions that must exist for argumentative rationality to prevail: a
common lifeworld, and relative equality among the participants. Although no
studies exist on this issue, it is at least plausible to believe that these conditions
describe the experts who represent their states at many international negotiating
forums. Despite large cultural differences among countries, the international ex-
perts assigned to hammer out agreements on a particular issue often share im-
portant similarities that approximate the idea of a common lifeworld. Those
similarities include shared educational and professional backgrounds, shared com-
mitments to the ideal of international cooperation, and shared acceptance of the
procedural rules. Further, states interact in an atmosphere of relative equality
thanks to procedural rules that are blind to state power, such as the principle of one
state, one vote. Informally, of course, some state opinions count more than others in
influencing the debate. Yet compared with domestic legislative bodies controlled by
parties and elected officials, international negotiating forums are quite nonhierar-
chical and lack sharp differences in levels of authority among the participants.
While Risses (2000) insights into argumentative rationality provide a potentially
rich framework for understanding international relations, they lack much explan-
atory content. Risse suggests that arguments determine international outcomes,
and that better arguments prevail over less good arguments. However, he says
little about what constitutes a better argument. Realists who argue that interests
determine behavior must specify those interests and construct analytical models
that show how they play out. In the same vein, constructivists who argue that
communication determines outcomes must clarify which types of arguments are
likely to prevail and what types of outcomes are likely.
Ideas and arguments are persuasive when they fit well or resonate with wide-
spread preexisting understandings, a condition that applies to both rhetorical ac-
tion and learning (Kratochwil, 1989:2839; Goldstein and Keohane, 1993:2324;
Cortell and Davis, 1996, 2000; Legro, 1997; Schimmelfennig, 2001; Joachim,
2003). Persuasion is a fundamentally social and cognitive process that takes place
within broader sets of understandings that facilitate communication and social
DARREN HAWKINS 785

action. In rhetorical action, persuadees become convinced that their positions are
inconsistent with some collective identity or deeply held norm. In social learning,
actors with uncertain interests facing a complex reality routinely choose between
competing arguments about the best course of action. In the absence of some clear
external criteria by which to judge those arguments, actors are persuaded by ar-
guments that fit well with their preexisting understandings.
In the international arena, such preexisting shared understandings are surpris-
ingly widespread and well developedFa point made by neoliberal institutionalist,
legal, sociological, and constructivist traditions alike (Keohane, 1989:17; Franck,
1990:195207; Meyer, Boli, Thomas, and Ramirez, 1997; Wendt, 1999). As a result,
the content of the argument matters: When that content is congruent with pre-
existing international understandings, states are more likely to be persuaded by the
arguments.
The difficulty is that, with a few prominent exceptions (Ruggie, 1983; Wendt,
1999), international relations scholars have failed to describe the nature of (i.e.,
operationalize) these taken-for-granted beliefs in the international arena. As a re-
sult, scholars slip into circular arguments in which arguments are persuasive be-
cause they are congruent with preexisting understandings, and the evidence for
congruence is that actors were persuaded by the arguments. Clearly, the nature of
the preexisting understandings must be specified prior to undertaking the analysis.
While this discussion often invokes the shared understandings of states, I use this
terminology as shorthand to describe the individuals who represent those states in
their international interactions.
Drawing on insights from literature on the sociology of organizations and trans-
national networks, I identify three widespread, taken-for-granted beliefs relevant to
a wide variety of issues: the value of preventing bodily harm; the importance of
precedent in making decisions and resolving disputes; and the belief that inter-
national cooperation is essential in resolving social problems. While these are not
the only three implicit, taken-for-granted understandings shared by states, they are
broad enough and common enough to provide an initial operationalization of the
background beliefs that shape international communication. It is precisely because
they are taken for granted that they are not widely discussed or analyzed, yet they
can be observed by scholars who look for underlying assumptions in state com-
munications (Finnemore and Sikkink, 1998:904905).
First, states agree broadly on the need to protect vulnerable individuals from
bodily harm (Keck and Sikkink, 1998:2728). In other words, states take it for
grantedFwhen they are communicating openly with each other at leastFthat
individual physical suffering is bad and should be prevented. This is not to say that
states actually believe that all individual suffering is bad. Rather, they have reached
a common understanding that enlightened and civilized states do not intentionally
inflict harm on individual citizens, and that states should in fact work toward the
easing of individual pain. If states really do believe otherwise, they also understand
that they must keep these beliefs to themselves, as such beliefs would not be ac-
cepted openly by others. Evidence for the widespread nature of the principle
against human suffering may be found throughout the UN Charter and in the
preamble of many resolutions from any UN body. More specific evidence can be
found from cases where states have actually tried to justify the infliction of bodily
harm, as Chile did soon after the inception of authoritarian rule. The overwhelm-
ing nature of the reaction against Chiles arguments suggests that Chile violated a
strong taken-for-granted understanding (Hawkins, 2002:5567).
It is worth noting that the broad mandate against individual suffering can ac-
commodate a variety of more specific norms, from proposals to ban land mines to
efforts to end domestic violence. Keck and Sikkink (1998:204206) theorize that
the prohibition of bodily harm is particularly well ingrained among states because
the issue crosses cultural and ideological boundaries and therefore enjoys
786 Explaining Costly International Institutions

transnational resonance. Others have noted that issues focusing on bodily harm
have strong emotional appeal, are capable of mobilizing large groups, and involve
very high stakes of pain, suffering, and death (Jennings, 1999).
Second, states generally agree that international decisions should draw on pre-
cedents. Sociologists and cognitive theorists have long recognized that organiza-
tions routinely make decisions by relying on precedent-oriented mechanisms like
standard operating procedures and imitation (March and Simon, 1958). More re-
cently, sociological approaches to international relations have suggested that states
themselves can be conceptualized as organizations that value precedent and im-
itation, in part to establish their legitimacy with each other and in part to make
decisions under conditions of complexity (Meyer et al., 1997; Ron, 1997). Re-
searchers in this school have repeatedly shown that states adopt forms and practices
simply because the precedent exists and seems appropriate, even when they have
no functional need to do so (Finnemore, 1996).
Shared state beliefs in the value of precedents are reinforced by the formal
nature of the IGOs within which international negotiation takes place. IGOs rou-
tinely use precedent to make a large variety of procedural decisions, from the
placing of agenda items to voting rules. By simply participating in the process, state
negotiators have already accepted precedents as a way to make decisions and re-
solve disputes. Such acceptance is implicit and taken for granted. Additionally,
many individual representatives from states involved in the drafting process are
legal specialists well acquainted with the importance of precedents in formalized
discussions. As a result, they are more likely to acquiesce to arguments that cite
strong precedent. Evidence of the widespread, taken-for-granted nature of the
precedent norm may be found in virtually every resolution passed by a UN body, as
they routinely cite a wide array of previous resolutions, declarations, and so forth,
as precedent to justify the current proposal. States may argue about which pre-
cedent is more appropriate, but few if any states challenge the assumption that
precedent is itself an appropriate factor in good decision making.
Third, states widely agree that international action constitutes an important and
appropriate method of resolving domestic social problems. This is not to say that all
states endorse all kinds of international action, or that all domestic actors within
states endorse cooperative actions. Rather, it simply asserts that for most identifiable
social problems, an understanding exists that international cooperation in some
form or another would help resolve them. The entire UN Charter, for example, is
founded on the explicit assumption that international cooperation will ameliorate
problems of war, poverty, human rights abuse, injustice, and a host of other ills.
Each new IGO created to meet a social problem is endowed with its own ration-
alized myth, and is created within the background understanding that such or-
ganizations constitute an appropriate way to address these problems (Meyer and
Rowan, 1991). States are not so nave as to believe that these organizations will
resolve the problems, but they do generally agree that cooperation is necessary for
progress.
The best evidence for the widespread nature of this assumption may be found in
the extent to which those who are skeptical of international institutions nevertheless
commonly appeal to the importance of international cooperation. During the run-
up to the U.S. invasion of Iraq, the second Bush administration consistently accused
other great powers of failing to cooperate on the issue. Likewise, U.S. conservatives
typically argue that the UN is inefficient, that it is biased, and that the United States
carries an unfair share of the burden. In the same vein, the United States does not
object to peacekeeping per se, but rather the way in which it is carried out and the
U.S. role in it. Even in conservative Republican administrations, those most re-
sponsible for forming foreign policy rarely argue that poverty, for example, is the
sole concern of each individual country and should never be subject to international
cooperation. None of these arguments challenges the assumption that international
DARREN HAWKINS 787

cooperation is positive; in fact, they reinforce that assumption by complaining about


the ways in which cooperation is achieved or by complaining about others lack of
cooperation.
Once a large number of states have endorsed a particular formula for cooper-
ation, arguments in favor of international action become even more compelling. As
a consensus on certain issues begins to emerge, states are loathe to break that
consensus and to come under condemnation as the ones holding up an agreement.
State representatives who put up obstacles can easily be tarred as opposing the
social good that is the object of the cooperative exercise. To stand alone against a
human rights initiative, for example, is to suggest to others that you either oppose
human rights in principle, or else do so in practice and fear being found out. States
do not wish to make either statement, even by implication. As a result, they begin to
abandon opposition positions and to endorse an emerging consensus while ex-
pressing general, unspecified, reservations. Such states realize, of course, that they
need not sign or ratify a convention once it has been adopted, making arguments in
favor of international institutions even more compelling.
In summary, I argue that states are likely to be persuaded by arguments that are
consistent with widespread, taken-for-granted understandings in the international
arena; in particular, the need to prevent bodily harm, the importance of following
precedents, and the link between international cooperation and progress. Alter-
native explanations for the emergence of enforceable international norms empha-
size the static and exogenous nature of state interests and the costbenefit
calculations of governments. Many scholars argue that states create new interna-
tional regimes when the benefits of those regimes outweigh the costs for each of the
participants. Others have focused on powerful democracies as the most likely
source of enforceable human rights norms while still others emphasize the role of
unstable democracies. In the following section, I illustrate the role of persuasion by
examining the convention against torture. A subsequent section explores the
alternative hypotheses.

UN Convention against Torture


Both NGOs and states acted as key norm entrepreneurs in initiating the global
convention against torture. Amnesty International placed the issue on the inter-
national agenda when it launched its campaign against torture in 1972 (Burgers
and Danelius, 1988:1318; Baehr, 1989:37; Burgers, 1989; Lippman, 1994:294
300; Korey, 1998:170180; Clark, 2001:4360). Sweden and the Netherlands soon
took up the issue and played the leading role in drafting and passing a nonbinding
UN General Assembly resolution against torture in 1975. Sweden and a few NGOs
then acted simultaneously to propose a global treaty against torture and to push the
idea of universal jurisdiction. In the fall of 1977, Sweden successfully introduced a
General Assembly resolution calling for the creation of such a treaty. At virtually the
same time, the International Association of Penal Law (IAPL), a transnational pro-
fessional organization, produced a draft torture treaty that incorporated universal
jurisdiction (Burgers and Danelius, 1988:26; Rodley, 1999:48). Together with the
International Commission of Jurists, the IAPL submitted this draft treaty to the UN
Commission on Human Rights (hereafter, Commission)Fthe official treaty-draft-
ing bodyFfor consideration. Within a few weeks of the IAPL meeting, which
Swedens attorney general attended, Sweden submitted a draft treaty that included
universal jurisdiction to the Commission (United Nations. Economic and Social
Council. Commission on Human Rights, 1978a; Baehr, 1989:39; Rodley, 1999:48).
In early 1978, the Commission decided to adopt the Swedish draft as its working
text.
Although the draft convention contained a number of important and innovative
features, the articles on universal jurisdiction attracted a large share of the
788 Explaining Costly International Institutions

controversy and yet survived the drafting process nearly intact to become a cor-
nerstone of the treaty. Draft Article 8 required all states party to the treaty to
establish jurisdiction over torture in any one of four cases: (1) the crime occurred in
that state; (2) the alleged offender was a national of that state; (3) the victim was a
national of that state; or (4) the alleged offender was present in that state and was
not extradited (United Nations. Economic and Social Council. Commission on
Human Rights, 1978a:3). The provision survived the drafting process to become
Article 5 in the convention against torture. The only substantive change to the
article during the drafting process occurred by substituting any territory under [a
states] jurisdiction for the more limited notion of a states territory. Although such
jurisdictional grants can sometimes be permissive in international law, draft Articles
11 and 14 required either state prosecution or extradition to a state willing to pros-
ecute. Article 7(1) in the final treaty reflects this same requirement.

Initial State Positions


Upon receiving the Swedish proposal, the United Nations requested state respons-
es prior to the initiation of formal negotiations. Some 21 states responded to this
request (a fairly typical response rate) by defining their initial positions on the
proposal. Their positions have been recorded in one of two ways: (1) a written
response to a formal UN inquiry on the draft treaty, preserved as official UN
documents, or (2) oral comments on the draft treaty, recorded by participants in the
process. Written records of oral comments may be found in the official reports of
the working group assigned to draft the convention, in the published memoirs and
analyses of the participants, and in official government documents not submitted to
the UN, I have relied on all of these sources in compiling the data.
In order to capture any changes in government positions during the process of
negotiations, I first list the initial positions that governments adopted within a year
of Swedens January 1978 proposal. Dropping microstates from the analysis, data is
available on the initial positions of 18 states, as summarized in Table 1.4 States are
classified as opposing universal jurisdiction if they specifically opposed those ar-
ticles, suggested amendments that would have weakened those articles, or ex-
pressed skepticism about the desirability of the treaty generally.
This coding scheme, of course, does not account for differences in the strength of
a states opposition nor does it capture the extent to which a state may have adopted
a bargaining position that it was willing to discard. This information is unobtainable
from the historical record; it is impossible to know how strongly any particular state
felt about its objections or how willing it was to discard them. Some may object, for
example, that the Dutch opposition was rather soft, citing as evidence the fact that
the Netherlands later became a strong proponent of the treaty. Yet such an ap-
proach would assume that governments do not change their views. Further, it
would impute motives to actors at one moment in time by using evidence from a
later time period. In the Dutch example, Peter Baehr, chairman of the Dutch
Advisory Committee on Human Rights and Foreign Policy in the late 1980s, has
written that the Netherlands was originally strongly opposed to the idea of uni-
versal jurisdiction (Baehr, 1989:40). All other evidence corroborates this analysis. In
all these cases, where the evidence of initial positions is quite clear, it would be
inappropriate to change the coding of initial positions to reflect later changes.
A few quotes from the primary documents may help illustrate state positions and
concerns. Great Britain, for example, argued that in contrast with offences of a
more obviously international character, such as hijacking and attacks on interna-

4
The Holy See and Barbados were dropped from the analysis in view of the multiple difficulties in comparing
them with the remaining states. Portugals comments on the treaty were internally contradictory and unclear, and
thus Portugal was also dropped from the analysis.
DARREN HAWKINS 789

TABLE 1. Initial State Positions on Universal Jurisdiction in the Convention against Torture, 1978

Support Universal Jurisdiction Oppose Universal Jurisdiction

Austria Argentina
Denmark Australia
Federal Republic of Germany France
Norway German Democratic Republic
Somalia Great Britain
Switzerland Morocco
United States Netherlands
Italy
Soviet Union
Spain
Uruguay
Sources: United Nations. Economic and Social Council. Commission on Human Rights (1978b), Baehr (1989),
Burgers (1989), Burgers and Danelius (1988).

tionally protected persons, the exceptionally wide extra-territorial jurisdiction con-


ferred by Article 8 in respect of torture goes beyond what is practicable (United
Nations. Economic and Social Council. Commission on Human Rights, 1978b).
France was a bit more tempered but still opposed universal jurisdiction because of
the difficulties involved in establishing the facts in cases that occurred elsewhere
(United Nations. Economic and Social Council. Commission on Human Rights,
1978b). In contrast to these opponents, the United States adopted the following
position: Torture is an offence of special international concern and should have
similarly broad jurisdictional bases. For this reason the United States believes in
addition to jurisdiction based on territoriality and nationality (of the offender),
universal jurisdiction should exist for acts of torture (United Nations. Economic
and Social Council. Commission on Human Rights, 1978b). Other supporters en-
dorsed the treaty broadly but offered only indirect support for ideas such as uni-
versal jurisdiction. For example, the Danish government found it of paramount
importance that a convention against torture be adopted and stated that the
Swedish draft convention forms an excellent basis for further negotiation and,
eventually, for adoption of a convention on the subject (United Nations. Economic
and Social Council. Commission on Human Rights, 1978b).

Communicative Interaction
How and why did a fairly radical proposal that initially received strong opposition
from a wide variety of states come to be adopted by consensus within 5 years? Why
did the opposition, which included some of the worlds most powerful states and
some that had the most to fear from enforceable human rights conventions, fall
apart within 5 years? To answer these questions, I turn to an analysis of the nature
and content of communication among states.
Treaty opponentsFinitially the more numerous groupFoffered three kinds of
objections.5 The first was that some provisions in the treaty, including universal
jurisdiction, violated sovereignty (UN Working Group, 1982:7). Opponents argued
that, while universal jurisdiction traditionally has existed for some crimes, such as
piracy, those crimes are fundamentally international in nature while torture is not.

5
Much of the evidence in this section is drawn from the annual reports of the working group on a draft
convention against torture of the UN Commission on Human Rights (United Nations. Economic and Social Council.
Commission on Human Rights (19741984)). To avoid repeated lengthy and confusing citations, I use the notation
UN Working Group and the year of the report, with page numbers when appropriate. The working group was
composed of a subset of the states sitting on the Commission on Human Rights. Also see the detailed narrative
summary in Burgers and Danelius (1988).
790 Explaining Costly International Institutions

As a result, opponents suggested that the torture convention should stick with
established monitoring mechanisms such as periodic reports submitted by states to
international bodies.
The second type of objection was that the treaty provisions would not really help
end torture. For some, existing international conventions already outlawed torture,
and simply drafting more conventions would not really help. Others argued that
accused torturers would never visit a state that might prosecute them, and that the
barriers to gathering evidence from other countries would be insurmountable
(Baehr, 1989:40). As a result, the entire convention, in this view, was an exercise
in futility.
The third type of objection was that the treaty could actually hurt innocent
victims. The most frequently cited potential victim was the individual unjustly ac-
cused of torture. Many argued that states might be politically motivated to accuse a
foreign national of torture unjustly (UN Working Group, 1982:67; 1983:56).
Treaty opponents also suggested that standards of judicial processes, such as
guarantees of due process rights, or standards of adequate evidence, might be
lowered significantly when trying alleged torturers who were not citizens of the
prosecuting state.
Proponents of a strong treaty, in turn, used three types of arguments to answer
these critiques. The first focused on prevention of state-inflicted bodily harm as the
fundamental goal of the convention. In many ways, this argument gave treaty
proponents the upper hand in the discursive give-and-take of negotiating sessions.
No state could take a position favoring torture simply because such a discursive
position would be so strongly rejected that it was unthinkable. As a result, many
states were forced to begin from a position that they did not in fact endorse. Any
number of states practice torture, and many even justify it to some audiences. Yet in
the careful atmosphere of international diplomacy in which states try to impress
each other with seemingly high levels of enlightenment, such justifications would
have been scorned.
Nor could states argue that sovereignty allowed them to do as they wished, and if
they wished to commit torture, then it was their sovereign right. At the end of
World War II, Hermann Goering had argued that the Holocaust was the sovereign
right of Germany and strictly Germanys business (Lauren, 1998:210). Even 40
years later, few states wished to associate themselves with the arguments of Nazi
Germany in an international forum. Further, for a delegate to argue that sovereign
states can torture people if they wish would be tantamount to admitting that the
delegates state tortures people and wishes to continue to do so. Such an argument
was simply indefensible within the confines of a formal international discussion.
As a result, strong norms of reasonable discourse prevented states from opposing
the torture convention on substantive grounds (i.e., favoring torture) or on
grounds that sovereignty trumps the right of an individual not to be tortured. In
this respect, silence in the documentary record is eloquent. Throughout the draft-
ing histories, no state ever attempted to justify torture or to claim that sovereignty is
a higher value than the right to bodily integrity. Quite the opposite, even states
opposing the torture convention argued that torture was a horrible scourge and
should be eradicated from the earth. Even if some believed that, used correctly,
torture could save lives by producing information about potential terrorist attacks,
no one dared voice that argument. Consequently, opponents framed their argu-
ments in terms of the rights of the accused, as noted above. Their reliance on
human rights standards to contest the treaty simply illustrates the weak rhetorical
position of convention opponents, and the importance of taken-for-granted un-
derstandings against bodily harm.
These same taken-for-granted understandings even made it difficult for states to
adopt a position whereby they favored a torture treaty but opposed universal ju-
risdiction. Treaty proponents sought to shame universal jurisdiction opponents
DARREN HAWKINS 791

with the catch phrase, No safe haven for torturers.6 They argued that to create
locations where torturers could flee to escape prosecution would be, in essence, to
sanction torture. They emphasized over and over again that torture was a partic-
ularly horrible violation that deserved particularly strong measures. Although it is
impossible to observe directly the impact of such arguments, process-tracing ev-
idence suggests that proponents made these arguments, that diplomats understood
them, that states changed their positions, and that the alterations in state discourse
incorporated language formulated by treaty proponents. Year after year, propo-
nents repeated their arguments during negotiations; each subsequent year, more
states would return with statements that incorporated the language and positions
adopted by proponents.
A particularly large change occurred in 1982. In the first 2 years (19801981),
negotiators placed the universal jurisdiction clause in brackets, signaling a conten-
tious passage. A variety of states suggested deleting the passage because they were
opposed to the principle or because it could not be realistically implemented (UN
Working Group, 1981:5657). Several others sought conditions on its use. Sweden
and other proponents, however, argued that universal jurisdiction was desirable in
order not to provide torturers with any places of refuge (Burgers and Danelius,
1988:58). The following year, negotiators removed the passage from brackets and
widely endorsed the Swedish discourse. In a marked change of tone, the diplomatic
summary of the negotiating session records that, Several speakers considered that
a system of universal or quasi-universal jurisdiction . . . was indispensable in a con-
vention against torture in order to ensure that there would be no safe havens for
torturers (UN Working Group, 1982:6). Many delegations explicitly reversed po-
sition while others scaled back their objections. Nigel Rodley, chief legal adviser to
Amnesty International and a key lobbyist for the treaty, recalls that the Australian
delegate gave a speech against universal jurisdiction where Rodley expressed ob-
vious displeasure.7 In private conversation later, the delegate expressed a desire to
change his governments position and wondered if he could invoke Amnestys
reaction to his speech in discussions with his government. A short time later, Aus-
tralia changed its position.
Second, proponents of a strong treaty invoked precedent, in careful, calculated
ways. Rather than citing common law traditions outlawing piracy, they turned to
specific provisions (black-letter law) of recent international conventions on ter-
rorism and other types of crimes. Proponents argued that universal jurisdiction had
been enshrined in four prominent treaties in the previous 1015 years; namely,
treaties on hostage-taking, hijacking, crimes against diplomats, and crimes endan-
gering the safety of civil aviation (UN Working Group, 1982:6). Further, propo-
nents argued that these treaties dealt with crimes that were no less horrifying or less
important than torture.8 If hijacking an airplane can be considered such a loath-
some crime that the perpetrator should be denied refuge in every state in the
world, then why not torture? Given these precedents, it became difficult for treaty
opponents to argue convincingly that torture was a less serious crime than hijack-
ing, or that torturers should be granted de facto safe haven by failing to write
universal jurisdiction into the convention. In an attempt to bridge the divide be-
tween opponents and proponents, Brazil proposed a system in which states would
have jurisdictional preference if the crime occurred in their territory (UN Working
Group, 1983:67). Proponents beat back this attempt to weaken universal juris-
diction by pointing out that this proposal differed from the precedent set by uni-

6
Interviews with Hans Danelius, a former Swedish foreign ministry official instrumental in drafting and ne-
gotiating the treaty, January 31, 2003, and Nigel Rodley, former legal advisor to Amnesty International, who was
heavily involved in lobbying for the treaty, January 27, 2003.
7
Interview, January 27, 2003.
8
Danelius interview, January 31, 2003.
792 Explaining Costly International Institutions

versal jurisdiction clauses in other treaties. In the end, even although states dis-
cussed a variety of different ways to approach the principle of universal jurisdiction,
they settled on language that was as close as possible to the four treaties routinely
invoked as appropriate precedent.
Where proponents of strong enforcement could not invoke precedent, however,
they lost to opponents. The original Swedish draft contained a path-breaking en-
forcement mechanism allowing an international committee to independently in-
vestigate alleged instances of torture. Led by the Soviet Union, states eventually
watered down this provision into a very weak call for cooperation between the
committee and torturing states, and Article 28 of the final convention even
allows states to opt out of this toothless measure (Burgers, 1989:5152). Further,
Costa Rica proposed an optional protocol with the similar intent of granting an
international body independent investigatory power (Voorhis, 1981). Strong op-
position led Costa Rica to postpone its proposal until drafting of the initial con-
vention was completed. Since then, states have continued to discuss the Costa
Rican proposal, finally adopting it in December 2002, although it only had two rat-
ifications and 20 signatures as of November 2003.9 One fundamental problem was that
both these proposals lacked precedents and thus could not be adequately defended.
The third argument that won support for universal jurisdiction focused on the
widespread belief that international action is beneficial and can resolve social
problems. In the case of the torture treaty, proponents argued that it was better to
do something than to do nothing (UN Working Group, 1982:7). Menno
Kamminga, a key Amnesty lobbyist, said that foreign ministry officials tended to
be more open to this type of argument than justice department officials, reflecting
different bureaucratic missions.10 According to him, foreign ministry officials tend-
ed to hold principled commitments to international cooperation while justice of-
ficials fretted about the practicality of translating universal jurisdiction into law and
practice. The international institutional settingFthe UN Human Rights Commis-
sion and its working group, with a General Assembly mandate to draft a torture
treatyFobviously favored pro-cooperation arguments. Even repressive states
skeptical of international action on behalf of human rights did not feel free to
play a simple obstructionist role by opposing any and all agreements. Since they
could not argue that torture is an unimportant crime or that torturers should be
granted safe haven in other states, they had to fall back on weaker arguments.
These consisted of fears that universal jurisdiction would not work or that it would
be used against innocent foreign nationals for political reasons.
Proponent states conceded that the convention would not stamp out torture, but
consistently argued that it was a step in the right direction and that its provisions
could be realistically implemented. For example, when Argentina argued against
universal jurisdiction by suggesting that no one would ever actually implement it,
the United States responded that most states practicing torture would never pros-
ecute their own officials either (Burgers and Danelius, 1988:7879). As a result,
proponents deftly associated opposition to universal jurisdiction with a do-nothing
attitude:

For the international community to leave enforcement of the Convention to such


a State [i.e., those practicing torture] would be essentially a formula to do nothing.
Therefore, in such cases, universal jurisdiction would be the most effective weap-
on against torture which can be brought to bear. It could be utilized against
official torturers who travel to other States, a situation which is not at all hypo-
thetical. It could also be used against torturers fleeing from a change in govern-

9
Office of the High Commissioner for Human Rights, http://www.unhchr.ch/html/menu2/6/cat/treaties/
proratification.htm, accessed December 8, 2003.
10
Interview, January 29, 2003.
DARREN HAWKINS 793

ment in their States if, for legal or other reasons, extradition to that State would
not be possible (UN Working Group, 1982:7).

Opposing states had no reply for this logic. Once states favoring the convention
drafted clauses that protected the rights of the accused, opposing states had no
other arguments remaining. Specifically charged to do something to outlaw torture,
delegates could not simply do nothing. As a result, they slowly acquiesced to the
principle of universal jurisdiction.
As some states switched positions to support universal jurisdiction, arguments in
favor of action became even more persuasive. Generally, states worked to avoid
positions in which they would stand alone against other states, especially those with
similar identities. Kamminga recalled that one of Amnestys major arguments was,
How can you be in the same camp as Uruguay and Argentina on this?11 When
some states began to switch to favor universal jurisdiction, a variety of other states
quickly followed. Further, informal voting rules required treaty provisions to be
adopted by consensus (Burgers, 1989:46), thereby putting pressure on states to join
the growing majority. Hans Danelius, who worked in the Swedish foreign affairs
ministry, participated in all stages of the negotiations, and wrote the first draft of the
convention, put it this way: Once there was a clear majority in favor of universal
jurisdiction . . . no government would wish to give the impression of preventing or
obstructing the successful termination of the work on a stronger protection of such
a fundamental human right as the right not to be exposed to torture. This could
indeed give rise to unpleasant internal or external criticism.12
Because states could always refuse to sign the treaty later, they were reluctant to
draw attention to themselves as obstructionists in the interim. Once most Western
states accepted universal jurisdiction, for example, Australia declared in 1982 that it
too accepted the principle (with reservations) with a view to facilitating progress
towards agreement on a final text (Burgers and Danelius, 1988:79; Burgers,
1989:4849). Once Argentina became democratic and switched its position in 1984,
Uruguay avoided isolation by saying it would no longer oppose universal jurisdic-
tion (Baehr, 1989:45; Burgers, 1989:49). Brazil, which had long argued that uni-
versal jurisdiction should depend on denying an extradition request, then began to
claim that it had only been trying to bridge the gap between proponents and
opponents, and said it would drop its proposal (UN Working Group, 1984:6). It
soon became evident that only China and East Germany wanted to qualify and to
weaken universal jurisdiction. At that point, China declared its acceptance of the
principle and East Germany reserved the right to determine its final position later,
thereby allowing the treaty to move forward and ultimately be adopted (UN
Working Group, 1984:67).
The preceding evidence demonstrates that, in the aggregate communicative
process, proponents utilized three types of arguments, that preexisting under-
standings gave these arguments important persuasive power, that opponents found
no enduringly useful counter-arguments, that opponents gradually changed their
positions to favor universal jurisdiction, and that when proponents used other
kinds of arguments they were not so successful. All of this evidence lends credibility
to my hypotheses. It is impossible, of course, to directly observe the ways in which
argumentation might change the ways that people think about an issue. At the
multilateral level, I have provided the best possible evidence by examining the
diplomatic record and participants memoirs and by interviewing those partici-
pants, both lobbyists and diplomats. I now extend the evidence and causal chain by
examining the changeFand lack of changeFin two particular countries.

11
Interview, January 29, 2003.
12
Interview, January 31, 2003.
794 Explaining Costly International Institutions

Particular Cases: The Netherlands and the United States


Evidence about the motives and causes for change in particular states is difficult to
come by. The torture treaty did not enjoy a high enough profile to attract much
legislative debate, and even less public reaction. For example, an extensive search
on Lexis-Nexis for any European or North American news source from 1979 to
1984 reporting on the torture treaty turned up a total of two articles. One in the
Christian Science Monitor mentioned briefly the fact that a treaty was being nego-
tiated while another in The Economist offered perceptive but brief information on
negotiations. Individual governments apparently made decisions about the treaty at
a cabinet level, where any helpful records testifying of government motive are
recorded in dozens of different languages and hidden away for a couple of more
decades.
Nevertheless, I have gathered as much evidence as possible on two states: the
United States and the Netherlands. These two states vary on key independent
variables (power, domestic politics, domestic ideology) and also varied on the de-
pendent variable (support for universal jurisdiction), thus offering a nice oppor-
tunity to probe the plausibility of various arguments (King, Keohane, and Verba,
1994). As one of the worlds most powerful states with a consistent history of re-
jecting most treaties that breach U.S. sovereignty, one might expect the United
States to have opposed universal jurisdiction. Instead, the United States was one of
the strongest proponents of universal jurisdiction from the start, and even signed
and ratified the torture treaty under the leadership of conservative presidents. In
the Netherlands, on the other hand, one might expect that its self-identity as a
global proponent of human rights would have led it to support universal jurisdic-
tion. In fact, the Netherlands at first opposed this provision, but within a few years
had changed its mind and became one of the most important supporters for a
strong treaty. In both cases I have accessed legislative records that include exec-
utive-branch reports on their reasons for supporting the torture treaty and a his-
tory of the governments positions on that treaty. I have also interviewed
international human rights activists and government officials involved in the
decision-making process.

The Netherlands
Participants and analysts agree that when the Netherlands switched its position to
favor unqualified universal jurisdiction in 1982, it marked the key turning point in
the battle for this provision.13 Prior to 1982, principled Dutch opposition allowed
authoritarian regimes and others to clothe their naked arguments against universal
jurisdiction in legitimate robes. The negotiating record demonstrates that after
the Netherlands changed its position, universal jurisdiction ceased to be a key
point of contention. Opposition remained, but it was isolated and marginalized
(Burgers and Danelius, 1988:7273; 7880). What triggered the change in the
Dutch position?
Careful process-tracing illustrates both the importance and limits of communi-
cation.14 Amnesty International first convinced some members of the Dutch par-
liament, both in opposition and in government, to present a motion on March 17,
1980 favoring universal jurisdiction in the draft treaty. The government responded

13
This section draws on primary documents, interviews, and the published analyses of key Dutch participants.
The official position of the Dutch government on the treaty, including a recounting of the history of the treaty and
the Dutch position, is found in The Netherlands, Tweede Kamer der Staten-Generaal (198586). I interviewed, by
correspondence, J. Herman Burgers, the key human rights officer within the Dutch Foreign Affairs ministry at the
time and later chairman of the UN working group to draft the convention. Peter Baehr, chairman of the Dutch
Advisory Committee on Human Rights and Foreign Policy in the late 1980s, provided additional useful information.
Also see Baehr (1989), Burgers (1989), and Burgers and Danelius (1988).
14
I rely in this paragraph on the source material cited in the previous footnote.
DARREN HAWKINS 795

in a letter on April 2, 1980, arguing that universal jurisdiction would not prove an
effective tool for preventing torture and that successful prosecutions of foreign
torture cases would be impractical. Amnesty responded by writing the Dutch gov-
ernment on April 17 and by lobbying members of parliament, arguing in both cases
that torture was a crime of sufficient magnitude to merit universal jurisdiction, that
there should be no safe haven for torturers, and that adequate precedent existed
in the anti-terrorist treaties. In large part because of their own principled beliefs
about international criminal law and appropriate methods of combating torture,
Dutch government officials continued to express doubts. Dutch parliamentarians,
on the other hand, overwhelmingly approved the motion on May 6, 1980, opposed
only by a small farmers party of the time. As Herman Burgers, the key Dutch
foreign ministry official, recalled it, The adoption of the motion settled the issue,
for this was not a matter on which the government would want to have a conflict
with parliament.15
In this case, it seems clear that pure communicative interaction was insufficient
to change the governments position and that it had to be combined with political
pressure. Yet it would go too far to say that persuasion was irrelevant. Amnesty and
other norm entrepreneurs used information and framing to make their case to
parliamentarians. Clearly, the Dutch government was not persuaded in the sense
that government officials altered their views. Indeed, nearly 20 years later Burgers
demonstrated that he had not changed his mind when he strongly reiterated his
ongoing doubts about universal jurisdiction.16 Yet persuasion does not require that
others become convinced that someone else is right. Rather, it requires that com-
munication occurring within a political process will result in an outcome that can be
explained by the extent to which the various arguments match up with prevailing
understandings. In the Netherlands specifically, just as in the broader international
system generally, arguments pointing to the importance of bodily harm and pre-
cedent trumped other sorts of arguments.
Back at the UN negotiating table, the norm of political cooperation played an
important role in completing the change in the Dutch position. Reacting to its
parliamentary vote, in 1981 the Dutch delegation introduced a motion that would
support yet weaken the universal jurisdiction provision by making it contingent on
a complaint by an interested party. Finding few allies for this proposal, Burgers
dropped it in 1982, the same year he was elected the chair of the negotiating body.
As he recalls it: When I entered the working group in 1982 and was elected its
chairman, it was already clear to me that the only chance for a successful conclusion
of its work depended on acceptance of the universal jurisdiction idea by the greatest
possible majority.17 As a result, he set aside his personal skepticism to help ensure
the treaty would be widely endorsed. In other words, the norm of political coop-
eration prevailed over other kinds of concerns. Two years later, the negotiators
approved the treaty with universal jurisdiction intact.

The United States


In the United States, strong cultural and political biases generally prevent en-
dorsement of enforceable international agreements that chip away at state sover-
eignty. Given this background and the Reagan administrations solid conservative
credentials, we would expect the United States to have opposed the torture con-
vention in the 1980s. Yet not only did the United States consistently support uni-
versal jurisdiction in international negotiations, the Reagan administration actually
signed the treaty in April 1988 and recommended Senate ratificationFin stark
contrast to its position on most other human rights agreements. The Bush admin-

15
Burgers interview, March 18, 2003.
16
Burgers interview.
17
Burgers interview.
796 Explaining Costly International Institutions

istration continued these efforts and the Senate subsequently ratified the conven-
tion on October 27, 1990, with wide approval from both conservatives and liberals.
Although the Senate attached a variety of reservations, declarations and under-
standings, none affected universal jurisdiction.
A costbenefit model would suggest that the United States accepted the torture
treaty because officials discounted the chances that universal jurisdiction would be
turned against U.S. citizens. Some evidence exists to support this contention. The
conventions definition of torture, for example, excludes sanctions imposed by do-
mestic law, thereby leaving out punishments that are legal in the United
StatesFsuch as the death penaltyFthat might be considered torture by others.
Additionally, in the document accompanying submission of the treaty for ratifica-
tion, the Reagan administration dismissed concerns that other states would use
universal jurisdiction to prosecute U.S. citizens by noting that the convention insists
on fair treatment for the rights of the accused, and that the U.S. Government
would strongly resist such an action (Reagan, 1988:911).
At the same time, other evidence points in the opposite direction. The treaty
clearly opens all states to risk, and provides no special assurances to powerful states
or key decision makers. The definition of torture in the convention is broad enough
to apply to a variety of activities, and, rather than being narrowly and specifically
drawn, could be interpreted in different ways by courts in different countries
(Lippman, 1994:313314). In the convention, torture refers to any act by which
severe pain or suffering, whether physical or mental, is intentionally inflicted . . .
(Article 1). Further, state officials are guilty of torture under the treaty not only for
the physical act of applying pain, but also for encouraging torture, or merely con-
senting or acquiescing to it (Article 1; Lippman, 1994:313314; Boulesbaa,
1999:2325). This provision clearly conflicts with state interests of decreasing the
liability of their officials.
Further, the United States has scarcely been reassured by nice legal language
guaranteeing rights of the accused and assertions of its intent to resist prosecution
in other enforceable international human rights agreements. Despite multiple legal
and power-oriented safeguards built into the proposed International Criminal
Court, for example, the United States still refuses to give its assent.
A more compelling explanation of U.S. behavior recognizes that while the United
States has interests in protecting its citizens against human rights prosecutions,
those interests are open to interpretation, and thus to persuasion. The evidence
suggests that all three types of arguments (preventing bodily harm, precedent, and
international cooperation) helped persuade conservative Reagan and Bush admin-
istration officials and U.S. senators to negotiate, sign, and ratify the treaty and to
support universal jurisdiction. The idea that torture is a particularly reprehensible
form of human rights abuse turns up repeatedly in official government documents
and the Senate hearing on the treaty. Secretary of State George Shultz, for example,
boasted of the U.S. role in ensuring that the Convention focus on torture rather
than on other relatively less abhorrent practices (United States, 1988). At various
points in the written record, U.S. officials essentially adopt the rallying cry of pro-
ponents No safe haven for torturers, using more legalistic, official language. Be-
cause the definition of torture was focused on severe individual harm rather than on
fuzzier issues like degrading practices, U.S. officials were much more supportive of
the treaty.18
U.S. officials also repeatedly insisted on the importance of existing precedents. In
the document transmitting the treaty to the Senate, the Reagan administration
stressed the fact that the system of universal jurisdiction conformed closely to the
precedent set by other treaties and that it closed loopholes that would otherwise be

18
Rodley interview, January 27, 2003. Rodley was closely involved with high-level negotiations in the Reagan
administration while it readied the treaty for submission to the Senate.
DARREN HAWKINS 797

available to torturers (Reagan, 1988:911). In the only Senate hearing on the treaty,
Bush administration officials strongly defended universal jurisdiction by citing the
precedent of other treaties, by noting that the United States was already a party to
those treaties, and by arguing that torture was equal to hostage-taking and hijack-
ing with respect to the nature of the criminal activity (U.S. Congress. Senate.
Committee on Foreign Relations, 1990a). Staunch conservative senators with strong
preferences for defending sovereignty, such as Sen. Jesse Helms, did not even raise
the issue of U.S. citizens being tried abroad (U.S. Congress. Senate. Committee on
Foreign Relations, 1990b).
Even the importance of international cooperation turns up regularly in the his-
torical record. In Ronald Reagans official transmittal letter to the Senate (United
States, 1988), his first argument in favor of the treaty was that it marks a significant
step in the development during this century of international measures against tor-
ture and other inhuman treatment or punishment. Reagan then went on to praise
the establishment of a regime for international cooperation in the criminal pros-
ecution of torturers based on universal jurisdiction. When Helms and others at-
tempted to attach a reservation asserting the general supremacy of the U.S.
Constitution over this treaty, Bush officials beat back the attempt by arguing that it
would undermine all sorts of international cooperative efforts and anger European
allies (U.S. Congress. Senate. Committee on Foreign Relations, 1990b:3545).
I am not arguing that the United States had no political motives related to the
torture treaty. Although the Cold War was drawing to a close, the United States was
still waging a public image battle with the Soviet Union in the late 1980s. The
torture treaty offered another vehicle (however small and publicly obscure) by
which the United States could demonstrate its virtue compared with Communist
degeneracy.19 On the other side of the coin, the United States was motivated to
protect its citizens from being prosecuted for torture, and the Justice Department
reportedly opposed universal jurisdiction because of concerns about FBI agents
being so prosecuted.20 I am arguing that these contradictory motives were insuf-
ficient to guide the United States to a clear position on the treaty and that therefore
the government was open to persuasion.
In conclusion, it is impossible to understand acceptance of the treaty (norm
creation) as a simple calculation that the costs would be negligible because the treaty
was written in narrow ways that would create little trouble for states. That states
have an interest in protecting their citizens from harm in other countries seems
undeniable. At the same time, the extent to which states emphasize that interest,
and the degree of threat they perceive to that interest, are subject to persuasion.
Strong arguments centered on bodily harm, precedent, and the need for interna-
tional action persuaded states to downplay concerns about misuse of the treaty, and
opened their officials to the risk of foreign prosecution.

Alternative Explanations
Do any existing theories of international institutions provide a better explanation
for the torture treaty and the pattern of events laid out above? State power variables
are of little help. Initial proponents of a strong treaty included both powerful and
weak states, as did opponents, suggesting stalemate in the negotiating process.
Sweden, and later the Netherlands, provided most of the initiative to keep the
negotiations moving forward, and the United States did not make the treaty a
priority (Baehr, 1989; Burgers, 1989). It seems unlikely that Swedish or Dutch
power convinced the Soviet Union to buy into the treaty. Nor did initial state

19
Even this motive was undercut by the fact that the Soviet Union ratified the treaty in March 1987 before the
Reagan administration even sent it to the Senate.
20
Rodley interview, January 27, 2003.
798 Explaining Costly International Institutions

positions divide along the typical bipolarity of the Cold War. While it is true that the
bulk of support came from Western democracies, a number of Western states also
initially opposed universal jurisdiction. Both Great Britain and France, for exam-
ple, joined the Soviet Union and East Germany in opposition to the treaty. Many
Western democracies switched positions to support universal jurisdiction only
shortly before Soviet-bloc states did.
In an important article, Moravcsik has argued that new or unstable democracies
are most likely to support enforcement mechanisms for human rights norms be-
cause they fear domestic threats from autocrats. Authoritarian regimes and estab-
lished democracies, on the other hand, are likely to oppose enforcement because
they have no need for such institutions and are unwilling to pay the sovereignty
costs. Some evidence supports this theory: authoritarian regimes initially lined up
against the treaty and Argentina dramatically changed its position to support the
treaty when a new democratic government came to power in 1984 (Burgers,
1989:49). Unfortunately, changes in position by the Netherlands, France, Australia,
the Soviet Union and its allies, and Uruguay cannot be explained in this way. Nor
does the theory help explain initial state positions among either established or new
democracies. Treaty proponents did not include any new democracies among their
ranks, including, notably, Spain, and established democracies split fairly evenly
between proponents and opponents.
Finally, a model focusing on the costs and benefits of the treaty cannot adequately
account for the changing state preferences on the question of universal jurisdiction
because neither the costs nor the benefits of the universal jurisdiction clause
in the treaty changed during the drafting process. A variety of states attempted to
weaken universal jurisdiction during the drafting process, but consistently failed.
Thus, the potential cost of universal jurisdiction remained constant. Nor is there
any evidence that states dropped their opposition to universal jurisdiction because
they became convinced that no one would actually utilize it. On the contrary,
drafting debates were peppered with comments that universal jurisdiction consti-
tuted a realistic enforcement mechanism. Indeed, the prolonged opposition of
authoritarian states suggests that they feared that universal jurisdiction might in
fact be exercised at some point. Even during the last 2 years of drafting sessions,
China, Uruguay, and Brazil expressed strong doubts about universal jurisdiction
(Burgers and Danelius, 1988:85, 9495). It is equally difficult to argue that the
benefits of the treaty increased over time. The treaty never generated much
international attention and thus offered states few opportunities to score public
relations points.
None of this denies that states actually calculate costs and benefits. States may
indeed have calculated the costs and benefits of universal jurisdiction somewhat
differently at the end of the negotiating process than at the beginning. Yet this
change in calculation was not rooted in any substantive changes in the nature of
universal jurisdiction. In other words, the treaty remained the same with respect to
universal jurisdiction, and yet states came to view it differently. If states altered their
costbenefit calculations, it was because of persuasion.
The main difficulty with these alternative theories revolves around their static
rather than dynamic approach. Most of the explanatory variables identified by
these approaches change little over time, yet states changed their positions quickly.
In 1979, more than half of the states engaged in the debate opposed the proposal;
by 1982, most states accepted it, and by 1984, all did (Burgers, 1989:4849). One of
the most striking features of the negotiating process is that states moved from
opposition to support, but not the other way around. No state, once it expressed
support for universal jurisdiction, ever withdrew its support, yet multiple states
withdrew their strong objections to universal jurisdiction. Variables that focus on
state power, domestic institutions, or costbenefit calculations have little hope of
capturing such a dynamic process. To do so, such approaches would have to focus
DARREN HAWKINS 799

on bargaining and side payments to losers. Yet the West was not capable of buying
off the East; new democracies were incapable of buying off authoritarian regimes
and established democracies; and treaty proponents offered no concessions to op-
ponents on universal jurisdiction. Power, interest, and bargaining models are thus
less helpful than a persuasion model at explaining the treaty.

Generalizing the Argument


The key theoretical question in this study concerns the origins of states interests
relative to international institutions. Most of the worlds states have expressed an
interest in creating enforcement mechanisms for some international human rights.
States have no natural or self-evident interest in helping the citizens of other states,
or in allowing others to intervene in their own domestic affairs. Where, then, does
this enforcement interest come from?
I have argued that state interests may stem from a dynamic political process that
involves communicative interaction and the causal mechanism of persuasion, de-
fined broadly. In particular, the content of arguments can influence states to enact
enforcement mechanisms for some kinds of human rights abuses. Arguments
lodged in the taken-for-granted beliefs of precedent, international cooperation, and
prevention of bodily harm are likely to prevail over all other types of arguments,
and states are likely to eventually adopt them as their official positions. In this way,
the convention against torture became subject to enforcement, and it seems likely
that more treaties will evolve in this way in the future.
International enforcement mechanisms in all issue areas, not just human rights,
constitute a difficult case for persuasion models because they are costly institutional
forms. States adopting international enforcement must pay sovereignty costs, con-
tracting costs and agency costs. I have shown that persuasion played an important
role in the adoption of one important international institution with enforcement
powers. If persuasion models can help explain even costly institutions, then per-
suasion should be more carefully considered as a causal mechanism by scholars
seeking to explain less costly international institutions, including those with lower
levels of delegation and obligation.
To demonstrate the utility of a persuasion model is not to say that state power and
interests are irrelevant variables. Many international human rights institutions
clearly seem to reflect such forces. The United States used its position as a Great
Power to shape the ICC Statute and has cited national interests in opposing it.
Great Powers on the Security Council have delayed and stalled rather than respond
forcefully to numerous human rights tragedies and have ensured that war crimes
tribunals would not harm their interests (Rudolph, 2001). The relative paucity of
strong international human rights institutions provides evidence for the contention
that states pursue their national interests, narrowly defined. The focus of inter-
national tribunals on militarily defeated governments (e.g., Nazi Germany, Serb-
nationalist Yugoslavia, and Hutu Rwanda) demonstrates that power matters in
shaping human rights institutions.
Yet the proper question is not simply whether interests and power matter, but
rather how and under what conditions persuasion can influence statesFespecially
given the reality of existing state interests and power. The argument developed
here would predict that international institutions are strongest where proponents
can invoke bodily harm, precedent, and the link between cooperation and
progressFeven if interests and power point in the opposite direction.
While detailed process-tracing would be needed to test the empirical validity of
the argument, easily observable broad patterns and prominent details in interna-
tional human rights institutions offer some initial support for the importance of
persuasion. As of August 2003, states had created some 52 international human
rights treaties and protocols (excluding regional agreements), with an additional 54
800 Explaining Costly International Institutions

declarations or statements of principle.21 Of these, only nine may be classified as


creating some kind of enforcement authority, as defined above. A persuasion model
predicts that these enforcement institutions will focus on bodily harm, rely on
strong precedent, and make tight links between cooperation and progress.
Initial evidence lends additional plausibility to this argument. All nine treaties
with enforcement authority deal with war crimes, crimes against humanity, torture,
and genocide. None of the treaties or declarations dealing with discrimination,
freedom of association, administration of justice (outside of torture issues), em-
ployment, social welfare, information, or cultureFto name several categoriesFau-
thorize enforcement. Realist perspectives emphasizing power might expect issues
close to U.S. democratic values, such as free speech and free association, to exhibit
the most enforcement mechanisms. Such issues are in fact among the most un-
derdeveloped in international human rights law. Liberal perspectives emphasizing
domestic politics might expect issues close to powerful domestic groups, such as
labor and employment rights, to exhibit strong enforcement mechanisms. Yet the
rights of employees and laborers enjoy little to no enforcement authority.
Some international conventions and declarations deal with bodily harm, but lack
enforcement authority. In these, the importance of precedent seems crucial because
most of them preceded later treaties that granted such authority. The 1948 treaty
outlawing genocide, for example, authorized enforcement by an international
court, should one be set up for that purpose. The treaty was drafted at a very early
stage of international human rights law and the court was never established. Yet the
1998 Rome Statute of the International Criminal Court (ICC) included genocide as
a punishable crime in language that drew carefully on the existing genocide con-
vention. Likewise, states considered a wide variety of crimes for inclusion in the
ICC statute before settling on three sets of crimes with strong existing precedent:
war crimes, genocide, and crimes against humanity.
Finally, initial probes of the political process leading to adoption of these en-
forcement mechanisms illustrates the importance of cooperation as a norm (Morris
and Scharf, 1995, 1998; Lee, 1999). In particular, proponents have used the co-
operation norm to persuade powerful opponents to either support the institution or
at least not to oppose it. When that has failed, proponents have used the coop-
eration norm to convince each other to adopt the institution over the objection of
powerful states. Russia was wary of the Yugoslav tribunal, France of the Rwandan
tribunal, the United States opposed the ICC, and China has disliked them all. The
war crimes tribunals were set up by the Security Council, where powerful states
could have vetoed their creation but nevertheless allowed them to proceed. Al-
though the United States could not veto the creation of the ICC, it used its con-
siderable political might to try to derail or weaken it. In all these cases, proponents
have consistently argued for the importance of international action to address do-
mestic human rights problems. In almost every case, opponents have acquiesced to
these arguments by noting their ongoing qualms while simultaneously arguing that
they do not want to stand in the way of international cooperation. For example,
China and Brazil argued that the Yugoslav Tribunal violated sovereignty and should
have been approved by all states, yet they recognized that sometimes exceptionally
grave circumstances may demand exceptional action on the part of the United
Nations and of Member States and that the urgency of restoring and maintaining
world peace required joint action (Morris and Scharf, 1995, Vol. 2:199201). Sim-
ilarly, in adopting the ICC, a wide variety of states argued that a flawed treaty was
better than no treatyFalthough the United States was a notable exception to this
pattern (Lee, 1999:569573). None of this proves that persuasion was important,
but it suggests that persuasion should be investigated seriously as a possibility.

21
This count includes conventions and protocols adopted by states acting collectively or in the Security Council.
See http://www.unhchr.ch/html/intlinst.htm for a nearly comprehensive listing.
DARREN HAWKINS 801

The causal factors developed above are not unique to human rights treaties and
could be tested in other contexts. The central taken-for-granted international beliefs
identified above are broad enough to apply to a variety of issue areas. With respect
to criminal issues, for example, a theoretical focus on interests or power might lead
analysts to expect stronger treaties on drug trafficking than on hijacking. Drug
trafficking is far more frequent than airline hijackings, affects more domestic in-
terests, has larger overall consequences for states and has disproportionate negative
effects on powerful states. Yet states have done little to set up international en-
forcement on drug trafficking issues while they have implemented universal juris-
diction for hijackings. This pattern may reflect the relative prominence of innocent
victims suffering bodily harm, a central image in hijacking cases but less important
in drug trafficking cases where those suffering harm are not usually associated with
innocence. It may also reflect the importance of precedent. The oldest universal
jurisdiction norms stem from 19th century British crusades against piracy, a crime
that has an obvious modern counterpart in hijacking (Randall, 1988).
Even in security issues, a hard issue area for persuasion models, a variety of cases
suggest that background international understandings could be an important fac-
tor. Many of the most prominent security treaties focus on bodily harm issues,
especially on weapons and practices that cause indiscriminant harm. These include
land mines, chemical weapons, submarine attacks on merchant ships, the bombing
of non-military targets, and the treatment of the wounded and prisoners of war
(Price, 1995, 1998; Legro, 1997). With respect to precedent, Richard Price has
shown how proponents of a land mine ban strategically used moral suasion and
social pressure to graft these new norms onto preexisting norms. The 1949
Geneva Conventions and their follow-up protocols also provide a constructive ex-
ample in the importance of precedent (van Elst, 2000:82325). They are the only
security-related norms that utilize enforcement mechanismsFin this case, univer-
sal jurisdictionFand they also have a very long history, with the first norms es-
tablished in the mid-1800s.
Other issue areas exhibit similar patterns. The womens movement has claimed
the most institutional success in recent years when they have framed the issue as
one of bodily harm (Joachim, 2003). Violence against women has received the most
attention among womens issues and has even been incorporated into a legally
binding (although not enforceable) treaty in the Americas (Hawkins and Humes,
2002). Despite the deep contentiousness surrounding abortion and reproduction
generally, womens groups have made the most progress on reproductive rights
when they have linked them to womens health. If womens rights follow human
rights patterns, these initial steps will set precedents for more costly international
institutions in the future.
In short, this article cautions against an over-reliance on interests and power as
default explanations for international institutions. At the least, scholars should
consider persuasion as a causal mechanism in their analyses. Approaches focusing
on social interaction have been criticized for failing to specify the mechanisms by
which that interaction translates into state interests and international outcomes,
and the conditions in which the processes occur (Legro, 1997; Checkel, 1998).
Some previous theoretical formulations have tended to suggest that when an issue
is correctly framed, or when persuasive arguments are made, action will result.
These arguments are unfalsifiable because they do not specify what constitutes a
correct frame or a persuasive argument. Other formulations are falsifiable but
more narrowly drawn and not clearly generalizable. In an important article,
Schimmelfennig (2001:48) has argued that European states successfully used rhe-
torical action to expand the European Union because they were able to draw on the
communitys standard of legitimacy in the form of a pan-European community
of liberal-democratic states. As with many studies of the EU, the argument is
insightful but of unclear generalizability.
802 Explaining Costly International Institutions

In this article, I have offered generalizable yet falsifiable propositions about the
ways in which communicative interaction produces new international institutions,
and about which types of arguments are likely to produce the strongest forms of
international action. It improves on existing theories that have either offered non-
falsifiable propositions or that have drawn narrower hypotheses that cannot clearly
be applied beyond the cases considered. Gradually, then, the constructivist research
program is gaining testable propositions about international behavior that can be
placed head-to-head against those from other research traditions. Rather than re-
solving the superior explanatory ability of one approach or another, this article
contributes an additional plausible explanation to the question: Where do inter-
national institutions come from? To the realist answer of powerful states and the
liberal response of self-interested governments is added the constructivist propo-
sition of state communication and persuasive arguments. All three propositions are
specific and testable, and deserve further research.

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