Srini Sitaraman - State Participation in International Treaty Regimes

STATE PARTICIPATION
IN INTERNATIONAL treaty REGIMES

To Lakshmi and Siddharth
State Participation
in International Treaty Regimes
Srini Sitaraman
Clark University, USA
© Srini Sitaraman 2009
All rights reserved. No part of this publication may be reproduced, stored in a retrieval
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Srini Sitaraman has asserted his right under the Copyright, Designs and Patents Act, 1988,
to be identified as the author of this work.
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British Library Cataloguing in Publication Data

Sitaraman, Srini.
State participation in international treaty regimes.
1. Treaties. 2. International relations. 3. National
interest. 4. Political participation. 5. Treaties--Case
studies. 6. International relations--Case studies.
7. National interest--Case studies. 8. Political
participation--Case studies.
I. Title
327.1'01-dc22
Library of Congress Cataloging-in-Publication Data

Sitaraman, Srini.
State participation in international treaty regimes / by Srini Sitaraman.
p. cm.
Includes bibliographical references and index.
ISBN 978-0-7546-7372-9 -- ISBN 978-0-7546-9173-0 (ebook) 1.
International obligations. 2. Government liability (International law) 3.
Treaties. I. Title.
KZ4080.S58 2009
341.3'7--dc22
2009004056
ISBN 978 0 7546 7372 9 (hbk)

ISBN 978 0 7546 9173 0 (ebk.V)
Contents
List of Tables ix
List of Abbreviations xi
Preface xv
1 Conceptualizing State Participation and Resistance

with Multilateral Treaty Regimes 1
Analytical Case Studies 5

Domestic Politics and Treaty Participation 6
Realist International Relations Theory and Interstate Cooperation 14
Multilateralism as a Loose System of Global Governance 19
Foreign Policy Behavior of the Democracies 21
Integrating Domestic and International Politics 23
2 Probing the Organizational Structure of Treaty Regimes

and its Influence on Participation and Resistance 29
Evolution of Multilateral Treaties 29

Participation in Treaties 33
Why States Join Treaties 36
Consent with Treaties and State Participation 38
Participation in Treaties and Levels of Consent 39
Resistance to Participation in Treaties 42
Domestic Political Structure as a Source of Participation
and Resistance 44
Identifying Domestic Social Norms 47
Cross-National Analysis of Treaty Ratification 48
Global Environmental Treaties 50
3 State Participation in Multilateral Environmental

and Security Regimes 53
Multilateral Treaties 54
Data on Domestic Polities 55
Multilateral Environmental Treaty Regimes 58
Choice of MEAs for Treaty Participation Analysis 62
vi State Participation in International Treaty Regimes
State Participation in Multilateral Environmental Treaties 63

Assessing Participation in Multilateral Environmental Treaties 69
Controlling the Spread of WMD through Multilateral Treaties 71
Nuclear Non-Proliferation Regime 73
Other Types of Arms Control Agreements 76
WMD Capable States and Arms Control Regimes 87
Participation in Multilateral Arms Control Agreements 90
4 State Participation in Multilateral Human Rights Regimes 97
United Nations Human Rights Treaty System 99

State Participation in Human Rights Conventions 101
Civil and Political Liberties and Economic and Social Rights 105
Optional Protocol to the ICCPR 106
Women’s Rights 108
Torture Convention 110
Death Penalty 112
Anti-Discrimination Convention 114
Rights of the Child 117
Genocide Convention 118
War Crimes and Crimes Against Humanity 119
Protection of Refugees 122
Statelessness 123
Conventions to Abolish Slavery, Servitude, and Trafficking 125
Rights of Migrant Workers 128
Participation in Human Rights Conventions—A Summary 130
Monitoring Treaty Implementation 136
5 The Case of the United States 143
Origins of Rights Discourse in America 145

Bill of Rights and the Rights Discourse 147
Development of Rights Under the United States Constitution 149
United States and International Law 152
United States versus International Treaties 158
Federalism, State Rights, and Multilateral Treaties 165
American Civil Rights as Human Rights:
The Kennedy–Johnson Era 174
Nixon, Kissinger, Realpolitik, and American Foreign Policy 178
Rhetoric and Reality of Human Rights and US Foreign Policy 181
Dictatorships, Double Standards, and Human Rights 183
United States and the Genocide Convention 185
Reasons for Opposition—Genocide Convention 187
Assessing Opposition to the Genocide Convention 193
Contents vii
United States and CEDAW 195

Reasons for US Opposition to CEDAW 197
Proposed US Reservations, Understandings, and Declarations
for CEDAW 201
United States Participation in CEDAW—An Assessment 202
Rome Statute of the International Criminal Court 204
United States and the International Criminal Court 206
United States Participation in International Human
Rights Regimes 209
6 The Case of China 213
Notions of Law and Order in Imperial China: Confucianism

and Legalism 216
Individual Rights in the Chinese Legal Tradition 217
Legal Codes of Imperial China: Legalized Confucianism 219
Imperial China, Western Powers, and International Law:
The Manchu Period 222
Legal Reforms: The Republican and the Nationalist Eras 225
People’s Republic of China: Rule by Man Over Rule by Law 227
The Concept of Individual Rights in Revolutionary China 230
Communist China and International Law 232
Economic Reform and China’s Participation in Human Rights
Conventions 234
Human Rights and Rule of Law: International Pressure Linkages 239
Saving Face and Cultural Sensitivity to Foreign Criticism 240
Political Order and Human Rights in Post-Revolutionary China 243
Reforms and Social Stability—Strike Hard Campaigns
and the Death Penalty 246
Arrest, Arbitrary Detention, and Suppression of Dissent 252
Torture, Ill-Treatment, and Coercive Extraction of Confessions 254
Repression and Control of Religious Activities 258
Conclusion 260
7 State Resistance and Participation in Treaty Regimes:

A Macro-Assessment 265
Bibliography 277
Index 315
This page has been left blank intentionally
List of Tables
3.1 Number of environmental treaties 60

3.2 State participation in environmental treaties 64
3.3 List of 21 major arms control and disarmament treaties 77
4.1 State participation in human rights treaties, 1945–2008 102

4.2 RUDs, and objections attached to the core human
rights conventions 135
4.3 Overdue implementation reports to the core human rights
treaty bodies 139
5.1 Human rights conventions entered into by the United States 176
6.1 Human rights conventions entered into by China 236

6.2 Number of death sentences imposed and actual executions carried
out between 1990–2005 in the People’s Republic of China 248
List of Abbreviations
ABA American Bar Association

ABM Anti-Ballistic Missile Treaty
AI Amnesty International
ANC African National Congress
APM Anti-Personnel Mines Conventions
BWC Biological Weapons Convention
CAT Convention Against Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment
CBM Confidence Building Measures
CCP Chinese Communist Party
CCW Convention on Certain Conventional Weapons
CD Conference on Disarmament
CECC Congressional-Executive Commission on China
CEDAW Convention on the Elimination of All Forms of Discrimination
Against Women
CEIP Carnegie Endowment for International Peace
CIESIN Center for International Earth Science Information Network
CESCR Committee on Economic, Social, and Cultural Rights
CITES Convention on International Trade in Endangered Species
CPL Chinese Criminal Law
CPRD Convention on the Rights of Persons with Disabilities
CPRW Convention on the Political Rights of Women
CRC Convention on Rights of the Child
CTBT Comprehensive Test Ban Treaty
CTBTO Comprehensive Test Ban Treaty Organization
CWC Chemical Weapons Convention
EC European Commission
ECJ European Court of Justice
ECOSOC United Nations Economic and Social Council
EMU European Monetary Union
ENTRI Environmental Treaties and Resource Indicators
EU European Union
FAS Federation of American Scientists
FMCT Fissile Material Cut off Treaty
FMLA Family Medical Leave Act
GATT General Agreements on Tariffs and Trade
HDI Human Development Index
xii State Participation in International Treaty Regimes
HRC Human Rights Council

HRIC Human Rights in China
HRW Human Rights Watch
IACHR Inter-American Court of Human Rights
IAEA International Atomic Energy Agency
ICBL International Campaign to Ban Landmines
ICBM Intercontinental Ballistic Missile
ICC International Criminal Court
ICCPR International Convention on Civil and Political Rights
ICCPR-OP1 International Convention on Civil and Political Rights First
Optional Protocol
ICCPR-OP2 International Convention on Civil and Political Rights Second
Optional Protocol Abolishing Death Penalty
ICERD International Convention on the Elimination of All Forms
of Racial Discrimination
ICESCR International Convention on Economic, Social, and Cultural Rights
ICJ International Court of Justice
ICRC International Committee on the Red Cross
ICRMW International Convention on the Protection of Rights of All
Migrant Workers and Members of their Families
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the former Yugoslavia
ICUN International Union for Conservation of Nature
IMT International Military Tribunal
IWC International Whaling Commission
LRTAP Convention on Long-Range Transboundary Air Pollution Treaty
MEA Multilateral Environmental Agreements
MFN Most Favored Nation
MTCR Missile Technology Control Regime
NAFTA North American Free Trade Agreement
NATO North Atlantic Treaty Organization
NLG National Lawyers Group
NNWS Non-Nuclear Weapons State
NPT Nuclear Non-proliferation Treaty
NSG Nuclear Suppliers Group
NTI Nuclear Threat Initiative
NWS Nuclear Weapons State
OECD Organization for Economic Cooperation and Development
OHCHR Office of the High Commissioner for Human Rights
OP-CAT Optional Protocol to the Convention Against Torture and Other
Cruel, Inhuman, or Degrading Treatment or Punishment
OP-CRC-AC Optional Protocol to the Convention on the Rights of the Child
on the Involvement of Children in Armed Conflict
List of Abbreviations xiii
OP-CRC-SC Optional Protocol to the Convention on the Rights of the Child

on the Sale of Children, Child Prostitution and Child
Pornography
PRC People’s Republic of China
PRW Political Rights of Women
SALT Strategic Arms Limitations Talk
START Strategic Arms Reduction Treaty
UDHR Universal Declaration for Human Rights
UNCHE United Nations Conference on Human Environment
UNCHR United Nations Commission for Human Rights
UNCLOS United Nations Convention on the Law of Sea (UNCLOS)
UNDP United Nations Development Programme
UNECE United Nations Economic Commission for Europe
UNEP United Nations Environment Programme
UNFCC United Nations Framework Convention on Climate Change
UNGA United Nations General Assembly
UNHCR United Nations High Commissioner for Refugees
UNHCHR United Nations Office of the High Commissioner for Human
Rights
UNPR Universal Periodic Review
UNTS United Nations Treaty Series
WHO World Health Organization
WMD Weapons of Mass Destruction
WTO World Trade Organization
WWF World Wildlife Fund
Preface
This book is an outcome of a question that has puzzled me for the last several
years: what is the impact of international treaties, conventions, and regimes on
state behavior? To what extent these transnational mechanisms that stand apart
from states are effective in influencing state behavior. One of the principal
relational effects of treaty-based international regimes is that they are only
effective to the extent that states allow themselves to be legally bound by them.
States retain substantial powers to resist the influence of treaty-based regimes,
but at the same time states are being influenced by these treaty-based regimes to
modulate and modify their behavior over a period of time. What motivates states
to enter into these treaty-based agreements that seek to constrain their very own
behavior? This is an attempt to answer this question. Participation, understood
as formal ratification, is the first step towards implementation and compliance.
Therefore, what I have sought to do in this book is to investigate at what rate
states join or participate in these treaty-based regimes. Although multifarious
factors influence state participation and resistance to treaty-based regimes, I am
primarily interested in seeing to what extent domestic polity—measured using
the bivariate categorization of democracy and non-democracy—is associated with
treaty participation. As a first cut, we need to find out which domestic polity—
democracy and non-democracy—is more inclined to participate in multilateral
treaty regimes.
The focus of this book is on participation and not on compliance, which follows
formal entry into a treaty regime. Treaty participation of 71 democracies, 55 non-
democracies, and 30 partially free states out of the possible 192 United Nations
member states in 20 multilateral environmental treaties, five major arms control
agreements, and 31 human rights conventions are examined. Additionally, two
in-depth case studies examine how domestic political structure and social norms
in the United States and the People’s Republic of China impact the dynamics
of state participation and resistance to treaty regimes. This book is divided into
seven chapters; the first two chapters lay out the theoretical foundations of state
participation and resistance. The second chapter is focused more on international
law, while the first chapter focuses on the international relations literature broadly.
The third and fourth chapters investigate state participation in multilateral
Environment, Arms Control, and Human Rights treaties; these two chapters engage
in a broad participation analysis that provide cross-national comparative data on
state participation in treaty regimes. The fifth and sixth chapters look at the United
States and China, a democratic state and an authoritarian regime, to understand how
institutional dynamics and social norms influence state participation and resistance
xvi State Participation in International Treaty Regimes
towards multilateral treaty regimes. The concluding seventh chapter attempts to

stitch together the central points and discuss several alternative arguments.
Writing a book of this size has been an enormous intellectual challenge because
it requires understanding of voluminous literature in two competing areas—
international relations and international law—comprehension of 56 multilateral
treaties that confront diverse regulatory challenges both within and across issue
domains, and the ability to grapple with intricate legal issues in an advanced
democracy and an authoritarian country with a 3,000-year history. It was not my
original intention to delve deep into the legal histories of United States and China,
but I was increasingly drawn to the cases of the United States as it was embarking
on the global war against terror, which attracted media and academic attention
on American attitudes towards international law and international organizations,
and China’s ascendancy as a major power increased scrutiny of its labor and
human rights policies. Research on the United States and China chapters were
made possible by two faculty development grants from Clark University, which
facilitated research and travel to several libraries, enabled interviews and informal
discussions with think tanks and numerous individuals in Washington DC and
New York, and it also facilitated a visit to the People’s Republic of China in May
2008. Portions of this book were presented at the annual meetings of the American
Political Science Association, International Studies Association, Association
of Chinese Political Studies, Law and Society Association, and Northeast and
Midwest Political Science Associations. Special thanks are due to Matt Rosenstein,
Associate Director of ACDIS at the University of Illinois at Urbana-Champaign
for accepting an earlier version of the China chapter as a research monograph and
giving permission to include the monograph as a chapter in this book. Importantly,
I want to thank Matt and Kathy Conner at ACDIS for their editorial assistance,
which has brought a high degree of polish to the China chapter.
Several other people have helped during various stages in the evolution of this
manuscript; I want to thank Paul Diehl and Edward Kolodziej who guided me
during the early part of my academic career to think seriously about international
organizations and global governance, Paul Ropp for provoking a lifelong interest
in the study of China and Chinese history, and Mark Miller for his assistance in
fostering my interest in understanding the relationship between law and society.
My departmental colleagues at Clark University provided the necessary intellectual
sustenance, and motivation to pursue this research project to its conclusion; I am
grateful for their support. Students in my United Nations, International Law,
and Human Rights courses witnessed my early attempts to test out the theories
and ideas that eventually found their way into this book; special mention goes
to Rahima Bensaid and Nahid Ahmed for aiding library research on China, and
Beverlie Sopiep for assistance in marking the bibliography entries for some of the
chapters. Very special thanks to my editors at Ashgate, Kirstin Howgate, Margaret
Younger, and Emily Jarvis, for their patience in shepherding the manuscript
through its various stages and for their skilled editing. Critical comments from
Preface xvii
anonymous external reviewers helped me to sharpen my arguments and shift my

focus away from compliance to participation.
Most importantly I could not have finished this book without my family,
particularly without the unstinting support of my life partner—Lakshmi—who
looked after our home and our son when I regularly retired upstairs to write. She
even found time to assist me with calculations, tables, and charts as I fiddled with
different tools in the spreadsheet programs, for which I am eternally indebted.
Writing and revisions were done as we welcomed our son Siddharth into our lives,
who has enlivened our daily lives in so many ways and reminds us every day that
there is another life beyond books, research, and publication deadlines.
Chapter 1
Conceptualizing State Participation and
Resistance with Multilateral Treaty Regimes
Multilateral treaties refer to the normative and juridical practices and norms
adopted by formal and informal international institutions that intend to augment
cooperation among states and address collective action problems in areas such as
international security, trade and finance, environmental protection, human rights,
and humanitarian law. Many of these multilateral institutions have specific formal
and legal constitutions that are enshrined in the form of international treaties. These
treaty-based regimes have the capacity to influence public policies, shape national
identities, values, and norms of the states (Hewson and Sinclair 1999; Keohane
2002; Rosenau and Czempiel 1992; Young 1999). According to Chayes and
Chayes (1995), multilateral treaties provide the basic architecture of international
regimes that are institutional-juridical norms that attempt to universalize and seek
convergence in the behavior of the states in critical policy areas. Collectively,
the network of multilateral treaties in different issue areas provide the legal and
institutional framework to manage, regulate, sanction, and reward state behavior.
Together, these treaties located in different issue areas form an interlocking
governance grid that generates the necessary institutional power and normative
capacity to influence state behavior. Treaty regimes simultaneously operate both
at the domestic and international level seeking to address collective problems,
disseminate and distill information, and harmonize domestic rules and regulations
with international laws. By entering multilateral treaties and organizations, states
are able to distribute the costs of governance associated with a collective problem
to all the participating states. These treaties and organizations are not only useful
International treaty agreements such as the General Agreement on Tariffs and Trade
of the World Trade Organization (GATT/WTO), which provides the rules for governing
global trade relations, trade dispute resolution, and individual country tariff rules is one
such example of a global governance regime. There are numerous other treaty instruments
that deal with issues such as whaling rights, climate data collection, treatment of political
prisoners, and production and distribution of weapons of mass destruction materials.
Although the success of these treaty-based regimes varies widely, collectively they form a
network that provides both the normative and legal foundation for a regime-based global
governance system.
It should be noted that regime-based global governance is only one of the many types
of global order. Alternative forms of global order have been identified by Rosenau (1992)
and Kolodziej (1997); for the sake of analytical coherence, the focus here is exclusively on
multilateral treaties.
State Participation in International Treaty Regimes
in enforcing agreements; they also increase the costs of non-participation and

enhance the credibility of commitments (Keohane 1984). Participation in these
treaty regimes is entirely voluntary, many states have eagerly sought to join them.
Still other states have attempted to resist, limit, or selectively engage with these
treaty regimes, while many have joined them, but continue to violate their treaty
commitments through non-participation, non-implementation of treaty provisions,
and noncompliance despite giving formal consent through signature and/or
ratification.
Compliance has received substantial academic attention both among
international law and international relations scholars, but the topic of participation
has remained relatively understudied. Focus on participation is necessary and
important because it is the first step towards compliance. States increasingly have
become enmeshed in a web of treaties that gradually nudge the participating states
to implement the treaties they have ratified and improve their compliance record.
The fastidious attention devoted to crafting treaty provisions and the enormous
efforts states dedicate to bargaining over the specific language to be included in
a treaty denotes that a states’ decision to enter into a treaty reveals that it is not
only willing to limit its own policy choices and that of other parties, but it also
demonstrates that it accepts the legal, policy, and normative import of the treaty and
it is willing to legally bind itself to that commitment. Otherwise, careful drafting
of treaties and opening them for signature and ratification would be a pretentious
and unproductive exercise (Chayes and Chayes 1995, 3–4).
Since participation is the entry point for compliance, then the question why
states participate or resist multilateral treaties becomes highly consequential.
This question is different from compliance, which arises only after a state has
formally ratified a treaty. Stated differently, why states facing similar international
conditions generate divergent participatory responses, that is, why do some
states choose to enter international treaties voluntarily, while others opt out of
such participation? What explains the dynamics of variation in state participation
and resistance vis-à-vis treaty-based regimes? Why do states surrender a certain
amount of their sovereignty and voluntarily seek to place additional burdens
upon themselves by entering international legal arrangements? Simultaneously,
why are states unwilling to join certain multilateral treaties? This question is
significant because conventional wisdom among international law scholars is
that most countries invariably comply with international law most of the time
Throughout, the following concepts are synonymously and interchangeably

employed: regime-based governance; global governance regimes; regime-based
order; treaty regimes; and treaty-based regimes. All these terms refer to the system of
interconnected horizontal and vertical networks of multilateral treaties that seek to influence
the interactions of the states in the domestic as well as in the international domain. Rosenau
(1992) refers to this type of horizontally integrated international structures as “governance
without government.” The overall reference is to the system of transnational governance
established to govern the mutual behavior of the states in different issue areas.
Conceptualizing State Participation and Resistance
(Henkin 1979). However, as Edith Brown Weiss (1999) points out, all countries
never fully comply with their international legal obligations. Countries engage in a
range of behavior from substantial to procedural compliance, which is engaging in
reporting activities, submitting periodic reports, and receiving financial/technical
assistance, but they still fail to meet the true intent of their international legal
commitments. Variegated motivations might drive a country to enter into a treaty
such as external pressure in the form of sanctions or rewards or, a state may join
a treaty with the intent of complying and some may find it difficult or impossible
to comply because they lack the capacity (Weiss and Jacobson 1998, 2). However,
when states formally enter multilateral treaties they not only compel other states
to address a common problem, but they also in effect curb their own behavior;
participation is about controlling, and it is also about being controlled.
States incur political, monetary, and sovereignty costs in joining multilateral
organizations and treaties. This is readily evident to many states that choose
not to participate in certain multilateral institutions because such participation
would indeed constrain the scope of their domestic and international policies. By
disengaging, states choose to carve out political space to draft policies and engage
in actions that are not subject to the jurisdiction of external organizations and actors,
but are exclusively driven by domestic political compulsions. A state’s decision to
resist formal participation may be due to multiple motivations that are not readily
self-evident. Such motivations could only be unraveled through determined and
careful empirical examination using in-depth process tracing methods applied to
specific case studies, which is undertaken in Chapters 5 and 6.
The principal argument made in this book is that variations in state behavior—
resistance, eagerness to join some regimes and not others, and the desire to
control, manage or even constrain the actions of multilateral treaties and influence
the behavior of other states—can be partially explained by analyzing the causal
connections among domestic political structure, internal (domestic) social
norms, and international treaties in different issue areas. Although multilateral
treaty regimes place considerable political and moral pressures on domestic
actors through transnational mechanisms, the ultimate determinant of formal
participation, resistance, and post-ratification compliance abides within the state.
State participation and resistance—specifically, resistance to formal participation
(understood as ratification)—and how domestic factors propel states to demonstrate
(1) resistance to formal participation, that is, to ratification, and why states
continue to display (2) resistance even after formal participation through non-
implementation and noncompliance are the primary concerns of this book. While
the first type of participation and resistance measured using treaty ratification data
is more easily identifiable, the second type of resistance—lack of compliance—is
rather difficult to qualify, diagnose, and quantify that can be identified only through
in-depth analysis. A broad argument made in this book is that the catalyst of state
behavior resides in its domestic structures. Although the primary focus is on
domestic sources, external factors such as strength and capacity, and enforcement
capabilities of the treaty regimes will be brought to bear on the overall argument.
Of the seven substantive chapters, Chapter 1 will locate the proposed research
question within international relations literature on interactions between domestic
and international institutions, examine the variety of theoretical arguments,
highlight the lacunae in the existing literature, and underscore the importance of
relying on domestic factors as principal explanatory variables. Chapter 2 will focus
on assessing the complexities of participation, resistance, and compliance with
international treaty bodies. By drawing on international law and organizations
literature on treaties, this chapter will explore how to evaluate the varying
response—participation and resistance—of democracies and non-democracies
towards treaty-based regimes. Answering this question will require identification
of the mechanisms and processes through which independent variables—domestic
political structure and internal social norms—lead to divergent responses in
democracies and non-democracies. To achieve this objective, Chapter 2 will
address three questions: (i) What is a treaty, what is a regime, what is a treaty-
based regime, and how are they connected? (ii) What actions of a country can
be interpreted to be participatory and compliant, what actions are considered to
be participatory and what actions are determined to be non-cooperative or non-
compliant? And last, (iii) in what ways domestic political structure and internal
social norms in democracies and non-democracies respond to regime pressure to
generate varying participatory outcomes towards international treaty regimes?
Chapter 3 will provide an overview on state participation and resistance towards
multilateral treaties in the area of environment and arms control from a comparative
perspective. Chapter 4 will be exclusively devoted to the analysis of state
participation in multilateral human rights regimes. The objective of this chapter
is to trace patterns of discernable association between domestic regime type (that
is, democracy or non-democracy) and participation and resistance to international
treaties. Focus will be on the number of treaties ratified by democracies and non-
democracies from three different issue areas: international security and arms
control, environment, and human rights.
The first section of Chapter 3 will provide a broad overview of the different
types of treaties that are analyzed and it will be followed by a discussion of
the data on domestic regime type, which is collected from POLITY IV dataset
(Marshal et al. 2004). The second section will present comparative evidence
on state participation and resistance (measured using ratification as an index or
participation) in multilateral treaties from two issue areas—environment and
arms control—which will be collected, organized, and collated from the United
Nations Multilateral Treaty Index and from various convention secretariats, and
matched with the data from POLITY IV data on the structure of domestic political
organizations. Results of the comparative cross-national results will also be used
to identify the broad patterns of international cooperative efforts since the end of
the Second World War. It is anticipated that the cross-national analysis will show
not only the rapid movement towards global multilateralism, but also identify
which domestic regime—democracy or non-democracy—has revealed a greater
inclination to participate in treaty regimes. Chapters 5 and 6 of the book will focus
on two substantial case studies—the United States and China—and examine their
participation and non-participation activities vis-à-vis the multilateral human
rights regimes to understand the motivations and attitudes of these large and
political relevant states.
Analytical Case Studies
The primary objective of the case studies will be on explaining the differential
impact of human rights treaties and how it produces varying responses from
democratic and non-democratic states. The focus will be on how normative factors
influence the state’s decision to participate or resist participation using an advanced
democracy (United States) and a non-democratic country (People’s Republic of
China) from two different regions of the world that have exhibited distinctive
behavior towards multilateral treaties. Broader purpose of this analytic exercise is
not to highlight the political and economic idiosyncrasies of China and the United
States, but to use these two cases as illustrative models to reveal how variations
in domestic political arrangements and social norms can influence the external
behavior of a state. Although policies of other democracies and non-democracies
will not necessarily parallel the policies of China and the United States, it is
anticipated that this comparative exercise will provide a template through which
to analyze the behavior of other democratic and non-democratic countries from
different regions of the world towards multilateral regimes in future extensions
of this study.
One of the common questions that a comparative analyst is confronted with is:
why China and the United States? Why not select the United Kingdom and North
Korea or France and Iraq? In other words, what is the justification for focusing on
these two cases and not on others? The United States has led the way in the creation
of transnational governance mechanisms, but it has displayed little inclination to
join the very same regimes that it had created. In the area of weapons of mass
destruction, the United States is yet to ratify the Comprehensive Test Ban Treaty
(CTBT), the Ottawa Landmine Ban Treaty, and in 2002 it officially withdrew from
the Anti-Ballistic Missile (ABM) Treaty. In the environment issue area, the United
States has shown the greatest resistance to the ratification of the Kyoto Protocol
(1997) and has demonstrated particular zeal in preventing the Kyoto Protocol from
coming into force. Although one of the leading advocates of international human
rights, the United States itself has only ratified a limited number of human rights
treaties and it has encountered strong condemnation for its extra judicial practices
to confront the scourge of terrorism after the 9/11 attacks.
The People’s Republic of China (PRC), on the other hand, has shown
determination to participate only in those regimes that could potentially enhance
its international image and improve its domestic economic condition. The PRC
government displayed eagerness to join the World Trade Organization (WTO),
but even after signing and ratifying some of the major arms control treaties on
nuclear test ban and nuclear proliferation it has systematically violated the spirit
of these treaties by selling weapons to North Korea, Iran, Iraq, and Pakistan. The
Chinese Communist Party (CCP) restricts freedom of press, prevents freedom
of association and conducts all its political business in complete secrecy. Any
criticism of the government is a punishable offense, some of which could earn
death sentences. Besides, China stands accused of systematic violation of other
basic human rights, especially in the area of administration of justice. Chinese
prison authorities have shown no moral compunction in employing torture and
cruel punishment in the administration of justice. In the area of environment
China’s record is equally weak; it has emerged as one of the top polluters. China’s
record in protecting endangered species and other areas of environment is certainly
less than ideal. Overall, China and the United States provide interesting contrasts.
They have opposed, violated, and withdrawn from treaty regimes. Preliminary
analysis suggests the differences in domestic political structure and social norms
might be influencing treaty participation of China and the United States.
Both China and the United States are politically relevant and critically
important states. China is an emerging economic and regional (maybe global)
power with a population in excess of a billion. It is also one of the recognized
nuclear weapons states with deployed Intercontinental Ballistic Missiles (ICBM),
and one of the five permanent members of the United Nations Security Council
with veto power. China is also a nation that has increasingly or directly come into
conflict with the United States and other members of the Western world. This is
because China perceives multilateralism as a dominant cultural extensions of the
Western political values in the service of Western interests; particularly, it sees
the actions of the United States to be directly threatening to China’s place in the
interstate system (Ross and Feng 2008).
Domestic Politics and Treaty Participation
Anne-Marie Slaughter (2004), argues that obstacles to treaty participation,

implementation, and compliance could be almost exclusively found at the domestic
level because many states, especially developing countries with poor institutional
foundations, do not have the capacity nor the inclination to fulfill transnational
regulations effectively. According to Slaughter (2004), transnational regulation is
fundamentally dependent on domestic institutions such as police, national courts,
regulatory bodies, ministries, and bureaucratic agencies, which are the building
blocks of nation states. Although states are increasingly enmeshed in complex
global regulatory arrangements, political authority for implementing treaties abide
within national governments and they are not located at the transnational level.
Slaughter (2004, 5) reasons that it is essential to stop imagining the international
system of states as “unitary entities like billiard balls or black boxes” that are
only “subject to the rules created by international institutions that are apart from”
and sit atop the states. It is necessary to focus attention on nation states and their
domestic political structures to comprehend why some states participate more in

transnational treaty arrangements and why others resist. Importantly, the objective
of this project is to explain how and why state behavior differs in supporting and
resisting multilateral treaty regimes by focusing on domestic political structure
and internal social norms.
Interestingly, democracies, which have revealed a preference for the
establishment and support of treaty-based international governance, have resisted
participation in certain treaties, but demonstrated a broad pattern of cooperation and
compliance. Non-democracies have revealed a penchant for noncompliance and
non-participation, and an overall disinclination to fully cooperate with transnational
regulatory arrangements. What are the motivations that propel non-democratic
and democratic states to exhibit reluctance to participate in some treaties, but not
others? Are decisions guided by similar policy and strategic considerations or do
internal politics vary significantly in democracies and non-democracies to produce
divergent policy outcomes. Democracies are generally assumed to be cooperatively
inclined because the fundamental character of democratic institutions tends to
value transparency in decision-making, and they also tend to be accommodative of
multiple interests, capable of generating internal consensus, and making credible
commitments (Doyle 1983; Gaubatz 1996; Russett 1993; Schultz and Weingast
1996). A large body of research, popularly known as democratic peace theory, has
generated strong evidence to suggest that democracies generally tend to be more
pacific than non-democracies, and that two democracies do not conflict with each
other (Dixon 1994; Doyle 1997).
According to the democratic peace perspective, democracies are more likely
to engage in cooperative behavior than non-democracies because they possess
distinct institutional incentives for interstate cooperation; particularly the ability to
make credible commitments and sustain them is a principal institutional advantage
Democracies are characterized by genuine and periodic political competition

for power conducted freely and fairly. Political participation is open to all of its citizens
and it provides civil and social liberties without any interference from state agencies.
Democracies permit widespread deliberation and open public debate on issues that affect the
common good. In addition, democracies are also defined by continuous and uninterrupted
democratic rule and they have robust and stable institutions that are capable of enabling
orderly transition of power and establishing rule-governed societies (Schmitter and Karl
1991; Shapiro 1999).
Although there is no institutional uniformity among non-democracies, the
governance arrangements in non-democratic states generally involves the rule of an
aristocrat, monarch, bureaucrat, or a religious leader. Coercion and intimidation are
defining characteristics of non-democracies with little space for non-violent transfer of
power, civil liberties, and freedom of expression, but the actual practice of governance
might vary from non-democracy to the other. Some countries might be characterized by
complete state dominance and control (North Korea), while others might have a vibrant
civil society (Singapore) without any room for overt political expressions (see Chehabi
and Linz 1998).
that democracies possess (Oneal and Russett 1999; Remmer 1998). However,
few others believe that democracies are more prone to generating incoherent and
inconsistent foreign policies because of the highly competitive nature of domestic
politics and due to the vagaries of leadership change and populist electoral pressures
(Waltz 1967). There is a tendency among democracies to suffer from policy
paralysis and vacillating behavior because of the nature of democratic institutional
design and the conflicting push and pull of interest groups, mass electoral politics,
shifting elite coalitions, bureaucratic pressure, and media intervention. As a result
democracies on occasions will produce policies that seemingly contradict the
fundamental democratic character of a country. For instance, the United States,
which was one of the main architects of the Comprehensive Test Ban Treaty
(CTBT) that aims to extend a universal moratorium on nuclear testing, has failed
to ratify the CTBT. When the former President, Bill Clinton, presented the treaty
for ratification before the United States Senate, the treaty was rejected largely on
a party line vote of 48 for and 51 against (Kimba 1999). Although the executive
branch of the government signed the treaty and presented it for ratification, the
legislative body, the United States Senate, which is constitutionally authorized to
approve treaty ratifications, voted against CTBT ratification. Although national
security was a consideration, the rejection of the CTBT was largely because the
Republican Party, which held the majority in the United States Senate, wanted to
score political points against President Bill Clinton from the opposing Democratic
Party.
Japan, Iceland, and Norway that are otherwise extraordinarily cooperative with
international treaty regimes in various issues areas are the only three countries that
engage in the practice of whaling despite the moratorium on international whaling
introduced in 1982 by the International Whaling Commission (IWC). These three
countries engage in whaling, notwithstanding strong international objections,
under the euphemism “scientific whaling,” primarily for commercial purposes.
Irish voters (53.4 percent) rejected the Lisbon Treaty, which amends the existing
European Union and European Community treaties, in a nationwide referendum
motivated by the concern that this new European Union Treaty would force Ireland
to alter its central policies such as, low business tax rates, its military neutrality
and its ban on abortion (Pogatchnik 2008). Similarly in 2005, French and Dutch
voters rejected the ambitious European Constitution in a national referendum.
Democracies especially those that have a coherent and long-standing democratic
system, and sophisticated domestic political and judicial institutions, believe
that their domestic norms, values, and laws are superior to the values, norms,
and rules articulated through multilateral treaty bodies. Hence, they choose to opt
Democracies are expected to experience the effects of push and pull politics
because of the domestic institutional separation with various domestic agencies attempting
to influence the foreign policy agenda. The classic treatment of push and pull domestic
politics can be found in Graham T. Allison’s study of the Cuban Missile Crisis (1971); also
see the works by Kennan (1954); Kissinger (1966 and 1974); Morgenthau (1963).
out or defy treaty regimes that they find to be inconsistent with their democratic
institutional structure and their internal cultural norms. Although this type of
exceptionalist behavior is particularly relevant to the case of the United States, it
can also be utilized to understand the behavior of other democracies such as the
United Kingdom, France, Switzerland, Norway, Japan, and India. Democracies
oppose joining particular treaty regimes, while participating in many others, not
only because of cost-benefit and strategic concerns, but also because they believe
the domestic (internal) norms and laws are exceptional or superior compared to
the multilateral rules and norms. Proclivity among democracies to enter some
treaties, but resist participation in others—this exceptional streak—emerges from
a combination of domestic institutional dynamics (conflict between the executive
and legislative branch of the government), democratic legitimacy, and other internal
social norms. Notably, the decision to cooperate or resist multilateral institutions
in democracies depends on the interactive effect of internal social norms with
the game of electoral politics involving members of the legislature and executive
branch of the government.
Contrasting behavior of non-democracies, particularly, the general preference
for noncompliance emanates from trepidation that multilateral treaties might seek
to introduce such norms and values into their societies, which have the potential to
upset the political alignments and upset the prevailing domestic balance of power.
Non-democratic states may seemingly be in compliance, but they may be violating
treaty obligations, which can be achieved by signing a treaty, but not ratifying.
In some instances, non-democratic states can sign and ratify a treaty, but still fail
to comply or meet its treaty obligations, that is, obedezco pero no cumplo (obey,
but do not comply). More often non-democratic countries cooperate with treaty
regimes only in those instances in which multilateral norms do not challenge or
attempt to reconfigure the domestic political arrangements and directly imperil
the prevailing status quo. They practice selective compliance to reduce domestic
political costs and limit external political pressure. The ruling junta, party, or
government in non-democracies is mostly keen on preserving the existing internal
The discourse of “exceptionalism” is commonly associated with the American

national experience (Ignatieff 2005; Lipset 1996). Principally, it has been used to explain
America’s divergence or uniqueness in domestic politics, foreign policy, culture, and history
from other nations, particularly from other European countries. Nonetheless, the notion of
“exceptionalism” has become well enmeshed in political and sociological literature to the
extent that it is used to describe the foreign and domestic policies of the United Kingdom,
France, Switzerland, Japan, Romania, and East Asian countries (Calude 1989; Pei 1994;
Vladimir 1999; Wallace 1991). Exceptionalism, however, is interpreted or deployed in
diverse ways by scholars from different parts of the world.
Authoritarian countries such as North Korea, Iran, Myanmar, Cuba, and Libya
severely restrict the ability of its citizens to interact with or travel to other nations, and
limit the number of foreigners entering the country. The goal of authoritarian regimes is
to restrict the access to information that is not filtered by the official media outlets to limit
negative coverage.
10 State Participation in International Treaty Regimes
political and social order; hence, they are resistant to change and they fear that
such change could be induced by participation in multilateral treaty regimes.
Non-democracies view such change as threatening because it might potentially
endanger the ruling group’s survival, spawn political dissent, and topple the ruling
regime. Therefore, non-democracies, in general, have exhibited a persistent
tendency to resist cooperation with multilateral treaties. Countries such as North
Korea, Myanmar, Syria, Iran, and China have more often defied treaty norms than
consistently cooperated. In instances where the international treaty norms that
are not to their liking or interest, non-democracies have chosen to completely
ignore or violate such norms. Iran ratified the International Convention on Civil
and Political Rights (ICCPR) in 1975, but Iran is in violation of several provisions
of this convention, particularly Article 6, which grants the inherent right to life,
Article 7, which prohibits torture, and Article 18 and 19, which provides for
freedom of religious expression and freedom of thought. The Islamic Republic
of Iran has shown obedience as evidenced by its ratification of ICCPR, but Iran
has failed all of its basic compliance requirements because none of the provisions
of the Civil and Political Rights Convention have been fully and effectively
enforced. This failure results not only from the inherent institutional weakness
of the human rights treaty enforcement mechanisms, but also because the Iranian
state is unwilling to internalize or adopt the norms enshrined in the human rights
regimes. As Slaughter (2004) and Chayes and Chayes (1995) have pointed out
treaty implementation and compliance is primarily a domestic matter.
Contrastingly, democracies, although broadly participatory, tend to act
unilaterally in disavowing particular international treaties or selectively choosing
not to participate in them because they believe that their actions are beyond
international reproach or unlikely to elicit systematic complaints that non-
democracies encounter. Since democracies are already in compliance with various
other treaty regimes and because they provide monetary support to innumerable
multilateral causes, democracies believe it is within their prerogative or that they
are allowed a certain amount of leeway to engage in the practice of exceptionalism
on specific issues. There is an unsaid assumption that superior rule of law and
democratic legitimacy provides substantial political cache and considerable
flexibility in claiming exemption from particular international commitments
(Coate 1982; Gilbert 1999; Held 1995; Ignatieff 2005). Even if such actions
produce international criticism, democracies are uniquely positioned to absorb
such criticism especially if they enjoy sufficient domestic political support for
their international actions as demonstrated by India’s decision to conduct nuclear
tests in 1998 defying an informal international moratorium on nuclear testing.
North Korea’s decision to pursue a clandestine nuclear program in violation of

the nuclear non-proliferation agreement, Iraq’s intransigence in cooperating with United
Nations Security Council resolutions, and the Burmese military junta’s decision to imprison
the opposition political leaders and refuse international aid for its citizens affected by the
cyclone are some examples of obduracy shown by non-democratic regimes.
Conceptualizing State Participation and Resistance 11
The decision to test nuclear weapons received overwhelming domestic political

support and it propped up a coalition government that was teetering on the
verge of collapse, but testing of nuclear weapons led to widespread international
opprobrium (Ganguly 1999; Perkovich 2000).
In some instances, democracies will go to the extent of forming strategic
alliances with non-democratic countries to prevent the establishment of certain
multilateral regimes. The United States and China, although on the opposite ends
of the political spectrum, have used each other as an excuse to derail the 1997
Kyoto Global Climate Change treaty. This is because established democracies,
especially those that have a coherent democratic value system, rule of law, and
effective political and judicial institutions generally consider their domestic
political norms, cultural values, and laws to be superior to the norms and rules
of multilateral institutions. Attachment to these values can be seen in the foreign
policies of Presidents Ronald Reagan and George W. Bush of the United States;
such exceptionalist behavior was also witnessed during the rule of Prime Ministers
Margaret Thatcher and Tony Blair of the United Kingdom, Prime Minister
Junichiro Koizumi of Japan, and in the policies of Charles De Gaulle and Jacques
Chirac in France (Claude 1986; Kolodziej 1987).
Switzerland, until recently, resisted joining the United Nations to preserve its
unique national identity that thrives on a highly decentralized system of direct
democracy and consensual decision-making. There is substantial opposition in
Switzerland and Denmark towards entering the European Union (EU) (Hindley and
Howe 1996). Iceland’s exceptionalism is reflected in its decision not to join the EU
and the International Convention on Whaling. The United Kingdom has revealed
its deep reluctance to participate in the European Monetary Union (EMU). In the
United States there is opposition to Supreme Court Justices in using international
legal statutes to arrive at judicial decisions concerning American citizens because
of the belief in the primacy of the United States Constitution (Slaughter 2004,
36–41). Democracies that have well-developed legal traditions and coherent
rule of law systems tend to be wary of subjecting their domestic judicial organs
to the purview of international legal regimes because of the concern that such
internationalism might lead to the abrasion of the municipal (or internal) judicial
practices and erode primacy of the constitution and dilute the institutions of
democratic sovereignty (Held 1996; Held and Archibugi 1995). When democracies
oppose joining treaty regimes it is perceived as “principled opposition” justified on
moral and ethical grounds, whereas opposition by non-democracies is characterized
as non-cooperative, cynical, disruptive, and illegitimate.
Democracies also view some treaty regimes to be fundamentally undemocratic
because their citizens do not have any direct input in the selection and appointment
of regime leaders (Kapur 2000; Slaughter 2004). Scholars and policymakers in
democracies, such as the United States, are concerned that the nomination of
technocrats to multilateral institutions is far removed from any form of domestic
political consideration and legislative scrutiny. Significantly, the apprehension is
that multilateralism might disrupt the internal political coherence, effectiveness,
and legitimacy of democracies. Particularities of democratic heritage and economic

autonomy are a few of the issues that are heatedly debated in the United Kingdom
over its decision to reject entry into the Single European Currency System (the
Euro) and retain the British Pound Sterling (Talani 2000). Democracies will also
resist fully acceding their sovereignty over certain policy areas, especially when
they feel they are already in compliance with that regime or when they realize
that their participation will not necessarily strengthen that regime. In certain
situations, democratic states, such as the United States, might vociferously object
to participation in treaties such as the Women’s Rights Convention (CEDAW)
because of the perception that somehow CEDAW encourages abortion or
proscribes family planning, which is a divisive religious and political issue in the
United States (Blanchfield 2008). But, at the same time, the United States has
promoted the virtues of CEDAW and has encouraged other countries, especially
non-democracies to join CEDAW and engender equal rights for women, even
if there is considerable domestic opposition to ratifying CEDAW in the United
States. The administration of George W. Bush has withdrawn funds and other
forms of assistance to nations promoting family planning activities, including the
use of prophylactics, terming it as anti-life.
Non-democratic countries, on the other hand, appear to resist, ignore, modulate,
and blunt the ideological and political influence of certain treaties by attaching
reservations and declarations to the treaties. Furthermore, they also attempt to
manage or selectively engage with treaties and not fully comply because of
their concern that untrammeled political, economic, and social openness might
eventually lead to irrepressible domestic political demands that would loosen
their control over the government and civil society. For instance, countries such
as Egypt, Saudi Arabia, Syria, Iran, Pakistan, North Korea, Burma, and China
have stringent censorship laws that govern domestic press and restrict access to
news delivered through the global print and electronic media by filtering them
(Goldstein 1999). Iran blocks access to TV channels, Internet portals, and foreign
print media, such as books, magazines, and newspapers, that seek to “rudely make
fun of religious and political figures in the country” (BBC Online News 2003).
Censorship authorities simply shutdown domestic independent press and media,
and carefully screen imported printed material, blacking out pictures and articles
deemed unacceptable to the ruling regime. Authoritarian regimes are deeply wary
of political dissent because they perceive any opposition as a challenge to their
authority and political survival.
The purpose of censorship boards in non-democracies is to control the flow
of information that enters and exits the country and to manipulate information
in such a way that the media presents positive information that is amenable and
consistent with the dictates of the ruling cabal (Qinglian 2004). Non-democratic
states perceive multilateral treaties with trepidation because of the fear that it
might bring with it political ideas and norms that might potentially jeopardize the
prevailing domestic balance of power (Fawcett and Sayigh 1999; Freedom House
2003; Kalathil and Boas 2001). For example, the coalitions of Islamic states have
fiercely protested the intrusiveness of the human rights regimes because they view
the norms enshrined in these treaties to be antithetical to Islamic values (Human
Rights Watch 2005). Other non-democratic states seek to insulate themselves from
the normative constraints of multilateral institutions, notably in those instances
where they fail to shape or define the regime to their liking. In such instances,
they invoke cultural uniqueness, cultural relativism, and assert state sovereignty
to exempt themselves from treaty obligations.
Prevailing international relations theories, especially the neorealist and neoliberal
institutionalist theories have not fully explicated this interesting transformation in
interstate relations. This is largely because international relations (IR) theories,
influenced by neorealism, are prone to system centric interpretation of interstate
relations, which does not sufficiently appreciate the variations in domestic political
factors, particularly how domestic cultural and social norms impact state behavior
at the international level.10 As Ruggie (1993, 5) argues, there is no question that
international norms and institutions matter, but they are “viewed as byproducts
of, if not epiphenomenonal adjuncts to, the relations of force or the relations of
production.” Correspondingly, the global governance theories also overlook the
importance of local and regional governing arrangements and social norms because
of the strong propensity to theorize at the systems level across temporal and spatial
dimensions, which limits the independent explanatory capacity of the domestic
or subsystemic factors (Wendt 1987). There is a tendency to overemphasize the
power of the multilateral regimes and other transnational governance arrangements
and minimize the impact of state power and their willingness of states to resist the
influence of external factors. By including domestic political structure and social
norms, it is possible to generate a better understanding as to why democracies and
authoritarian governments support and display considerably different participatory
patterns towards international treaties.
Closer attention to domestic governing arrangements can, putatively, allow
us to explain why some states persistently deviate or adapt to global norms and
rules. Inclusion of domestic political variables, such as mass electoral pressure,
role of elites in preference formation, and the influence of domestic epistemic
communities, will inform and enrich the global governance theories and preclude
them from resorting to broad generalizations about state behavior and allow them to
explain global governance as a complex and hybrid process that includes state power
(Clark 1999). Our understanding of increasingly complex exchanges among people,
cultures, states, multinational institutions, and transnational corporations is enhanced
when systems level and subsystemic factors are simultaneously incorporated into an
explanatory framework. If domestic politics, social norms, and variations in the
structure of domestic political arrangements in democracies and non-democracies
10 Liberal theorists such as Keohane (2001) and Keohane and Nye (2001) have
smartly shifted their theoretical and empirical attention from a state centric approach and
acknowledged that transnational governmental and non-governmental organizations are
increasingly sharing political space with the states and their policy exclusivity.
are integrated, then it has the potential to improve our overall understanding of why
different states follow divergent policies towards multilateral treaties.
Realist International Relations Theory and Interstate Cooperation
International relations theory is dominated by various structural approaches that

emphasize different types of power arrangements (Viotti and Kauppi 1993).
Above all, structural realist theory has had a tremendous influence in shaping the
discipline of international relations (Donnelly 2000; Rosenberg 1994). The central
claim of the structural realist theory is that states dwell in perpetual anarchy or
operate in a self-help system; since there is no central supranational authority that
governs or regulates the pursuit of national interests of all the sovereign states
(Keohane 1986; Waltz 1979). Both realists and neorealists agree that states are the
principal, unitary, and rational actors with power (military, economic, and political)
to influence policies, ideas, and the behavior of other states in the international
system. Structural realists explain state behavior by focusing on the “whole” of
the system and not on the various “parts” or the units (states) that constitutes the
international system. As Waltz (1979) puts it, since all states seek the same thing—
security maximization in an anarchic environment—focusing on the actions of
individual states is unlikely to produce any theoretically interesting results.
Structural realists recognize that individual states are indeed varied and
functionally distinct. Nevertheless, the assumption of self-help does not allow for
much variation in the behavior of the states at the international level. Probabilistic
expectations about state behavior are derived from the anarchy postulate.
International system, which is characterized by anarchy, dictates that states have
to follow self-aggrandizing strategies to maximize their national interests or risk
their own survival (Mearsheimer 1994–1995). If all states in the self-help system
simultaneously operated to maximize their interests, then interstate cooperation
would be theoretically impossible. State interaction in the self-help system would
resemble a prisoner’s dilemma situation in which defection from cooperation will
become the collective outcome because states do not trust each other (Donnelly
2000). The test facing IR scholars is how to explain emergence of treaty-based
regimes, international organizations, and other non-conflictual activities of the
state in an environment that is predisposed to cheating, defection, and other non-
cooperative self-aggrandizing behavior. How can we explain the establishment of
myriads of bilateral and multilateral treaties, formation of sovereignty constraining
institutions such as the World Trade Organization (WTO), the establishment of
the European Union (EU), and a common European Currency (Euro)? European
Union member states have agreed to substantial dilution of autonomy and
independence in the economic and monetary policy and transferred political
authority to a transnational institution. Establishment of a common currency
system—the Eurozone—has integrated the monetary and economic policies of 16
European countries. States are increasingly ceding sovereign control over critical
sectors to supranational authorities. The establishment of European Monetary

Union (EMU) challenges the unitary rational actor model, which is the central
tenet of realist international relations theory. Brazil, Argentina, and South Africa
voluntarily surrendered their weapons of mass destruction (WMD), dismantled
their WMD production, and acceded to periodic international inspections (Paul
2000). This particular success in the nuclear security arena can be partly attributed
to the ability of the nuclear non-proliferation regimes to keep the “total set of
actual and potential” nuclear weapons states to a minimum (Ruggie 1993).
If treaty regimes are little more than a set of rules, norms, and principles
with limited enforcement: why do states join such regimes and trust other states
not to defect? The challenge then is to identify the factors that motivate the
states to discard the limitations imposed on them by the self-help international
system and engage in actions that could potentially contradict their security and
sovereignty imperatives (Hawkins 2002). Structural orientation of the neorealist
theories theoretically precludes it from incorporating domestic level factors such
as variations in domestic political structure and internal social norms (Donnelly
2000). Neorealist theory does not refute that there are significant internal
variations among the states, but it attempts to “abstract from every attribute of the
states except their capabilities” (Waltz 1979, 99). To identify common patterns
in the behavior of the states, neorealists suggest that it is necessary to focus on
the distribution of the capabilities across the system and not on the sui generis
character of the individual states.11
Neoliberal International Relations Theory and International Cooperation
Liberal theories of international relations come in different varieties. They can

be grouped into four categories: commercial liberalism, republican liberalism,
sociological liberalism, and neoliberal institutionalism. These liberal approaches
have generated alternative explanations for understanding international
cooperation, challenged the assumptions of the realists, and attempted to remedy
some of the theoretical inadequacies of neorealism (Baldwin 1993; Keohane
1989; Zacher and Sutton 1996). Commercial liberalism seeks to show the positive
linkages between free trade and peace by showing how international peace could
emerge through heightened trade relations promoted through the reduction of trade
barriers, abolition of tariffs, and widening of the free market system (Gowa and
Mansfield 1993; Remmer 1998; Rosecrance 1986).
Republican liberalism, also known as democratic peace theory, which has
a growing following among international relations theorists, focuses on the
11 Waltz (1967) in an earlier volume entitled Foreign Policy and Democratic Politics
had explored how the differences in the domestic political institutions affected the external
policies of the United States and the United Kingdom. Eventually, Waltz concludes that
it is difficult to develop a broad and grand theory of international relations if the focus is
exclusively on the policies of individual states; hence, he abandons that approach.
relationship between democracy and peace institutions (Dixon 1994; Doyle 1986;
Russet 1993). This branch of liberal international relations theory emphasizes the
importance of shared democratic values and domestic institutional constraints in
generating interstate cooperation, while sociological liberalism, considered to
be the intellectual predecessor to neoliberal institutionalism, emerged to explain
international cooperation and the development of international institutions.
Neoliberal theories are primarily interested in showing that the assumptions of
the structural realist theory are not necessarily inconsistent with transnational
engagement of the states (Axelrod 1984; Baldwin 1993; Keohane 1989; Stein
1990). Although neoliberalists accept the central tenets of structural realism that
states are unitary rational actors and that states function in an anarchic international
environment, they contend that states cooperate, coordinate, and even harmonize
their trading policies by developing anarchy mitigating institutions to overcome
the problem of mutual trust and transaction costs, and collectively enhances the
overall welfare of the participating states.
Neoliberal theory relies on the logic of gains maximizing behavior to explain
international cooperation. In contrast to the realist vision, which emphasizes the
difficulty of cooperation among self-interested rational actors in an anarchic
environment, neoliberals argue that that their definition of self-interested behavior
does not preclude states from wanting to maximize their mutual welfare gains
(Axelrod 1985). It is possible for states to arrive at autonomous and independent
decisions—despite anarchy—that are mutually rewarding. The language of
harmonization, coordination, and policy accommodation indicate that states are
capable of developing anarchy mitigating institutions to improve their mutual
gains. International organizations, treaties, regimes and their associated rules and
norms are anarchy mitigating institutions that facilitate exchanges among rational,
egotistic, and security maximizing states by reducing uncertainty and transaction
costs. International regimes are defined as “principles, norms, rules, and decision-
making procedures around which actor expectations converge in an given issue-
area” (Krasner 1983, 1).
International Institutions as Anarchy-Bridging Constructions
Three different schools of thought or approaches dominate the study of international

institutions: power (realist), interests (neoliberal), and cognition (constructivists)
(Hansclever et al. 1997). According to the power-based approaches interstate
cooperation is not possible without the leadership of a benevolent hegemon;
who is willing to bear the costs of implementation and enforcement of rules
and regulations (Gilpin 1981; Kindleberger 1973). From the realist perspective
international institutions are mere extensions or expressions of state power at
the international level. Lloyd Gruber (2000) argues that the frenzied growth in
multilateral institutions can be explained by the dynamics of “go it alone” power
dynamics. Regime beneficiaries, consisting of a coalition of powerful states, can
simply develop a regime to their liking and restructure the rules of international
exchange within that issue domain to their preference. Once a regime has been
established, the weaker states or late movers have no choice, but enter a regime
under the terms determined by the founders of the regime. Regime establishment
is nothing more than a poorly disguised substitute for coercive diplomacy and
power politics (Gruber 2000). The G8 countries determine the rules and standards
of the international regulatory system in areas such as intellectual property rights,
public health, and genetically modified substances; the weaker states have no
options, but to accept the regulatory arrangements established by the powerful
states (Drezner 2007).
Interest-based or liberal/rational approaches propose that states that have
common interests in increasing their mutual welfare gains will cooperate, if
the possibility of defection or cheating is significantly reduced. Norms-based
approaches or cognitive theories of international regimes significantly differ from
realist and liberal theories because they place importance on social norms, moral
values, knowledge, and epistemic communities in explaining interstate cooperation
(Adler 1997; Haas 1992; Hopf 1998; Katzenstein 1996; Wendt 1999). According to
cognitive or norms-based approaches, interstate cooperation emerges when states
are influenced by shared beliefs or norms in resolving collective action problems
and because they believe it is the “right thing to do” (Haas 1992).
Regime theorists have largely concentrated their analytical effort on
functional aspects of international regimes, such as implementation mechanisms,
financial transparency, rule compliance, verification techniques, and sanctioning
capabilities (Young 1998; 1999). Success and failure of a regime is largely
measured by its ability to increase transparency, effectively enforce the rules,
decrease uncertainty, reduce transaction costs, and potentially increase the welfare
gains for the participating states. Some international regimes are more successful
than others; success and failure vary as a function of the issue area and regime
capacity. International security regimes are more difficult to establish and secure
compliance because states are extremely wary about ceding sovereignty over
security matters to international institutions. Success and failure of a regime to
a large extent depends not just on the issue area, but also on the regime structure
and on the political mandate provided to a regime by the state actors (Davis 1993;
Jervis 1983; Weber 1997).
Realists, neoliberalists, and constructivists place emphasis on different
explanatory schemes, both epistemologically and ontologically, to explain motives
and interests that lead to the formation of multilateral regimes. Nonetheless, realists
and some neoliberals primarily view regimes as expressions of state interests
created to resolve specific collective action problems or generate gains, and they
are not viewed as independent adjudicators of state actions. Regime theorists
conceptualize each treaty instrument such as the Montreal Protocol (ozone
regulation), Kyoto Protocol (climate change treaty), Nuclear Non-Proliferation
Treaty (NPT), and Missile Technology Control Regime (MTCR) as independent
and autonomous institutions created to manage specific problems, instead of
viewing them as an interlaced system of governance thereby failing to identify the
synergistic issue linkages across the different regimes (Drezner 2002). As Hewson
and Sinclair (1999) point out, each institution is “bracketed,” that is, they are seen
as bounded creations, whereas global governance theorists view the network of
multilateral regimes both within and across different issue areas as a system or as
a patchwork of interdependent global governance arrangements (Prakash and Hart
1999; Rosenau 1992; Young 1999).12
Neoliberal institutionalist theories are facing increasing competition from global
governance theories because they have not overcome the restrictive structural
realist theoretical foundations to explain political transformations generated by the
accelerating rate of international transactions and increasing interdependence.13
Since neoliberal theories are deeply wedded to the notion of explaining state action
in an anarchic environment, they do not remove the theoretical “bracket” that view
treaty regimes both within and across different issue areas in isolation from each
other; hence, they do not identify the rapid increase in size and capacities of the
international regimes to be significant enough to recalibrate their assumptions.
Neoliberals also characterize international institutional arrangements purely
in terms of economic logic—as gains maximizing establishments, transaction
cost reducing instruments, and as mechanisms to reduce specific coordination
problems. Increase in global exchanges has developed a situation of complex
interdependence in which multilateral institutions have gained the capacity to
set global policy agendas. Global forces have not eclipsed state power, but states
are forced to compete for governance rights and policy sovereignty has eroded
considerably in certain policy areas making states more vulnerable to international
compulsions (Rosenau 1997).
Despite growing recognition that states are heavily enmeshed in transnational
governing arrangements, it is premature to conclude that the proliferation of global
institution warrants a change in the gestalt of international relations theory. The
issue of whether state sovereignty has diminished or remained stable with the
acceleration of globalization processes is hotly debated and remains unresolved.
Definition and the meanings associated with state sovereignty have come under
intense scrutiny (Krasner 1999; 2001). Mainstream IR theorists continue to
rely on terms such as international coordination, procedural accommodation,
policy harmonization, and internationalization to characterize the thickening
and deepening of multilateral institutions. Usage of these terms suggests that
12 The global governance perspective is comprised of multiple theoretical positions

that emphasize the collective importance of international regimes, organizations, non-
governmental groups, multinational corporations, and the power of market forces to
simultaneously operate along and against states.
13 There are some exceptions to this argument. In his 2001 Presidential address
to the American Political Science Association (APSA) Keohane argued that the rapid
transformation in interstate relations in the post-Cold War era, the growing interdependence
among countries, and the proliferation of international institutions pose new challenges in
creating institutions capable of effective governance.
the international system is still anarchic and that states are the principal actors.
Growing multilateralism is seen as an opportunity to reduce the transaction costs of
cooperation by developing robust institutions that are capable of increasing mutual
welfare gains on the basis of comparative advantage. As Ruggie (1993, 6) points
out, institutionalists have focused on “cooperation and institutions in a generic
sense” and formal international organizations and treaty-based regimes are treated
as “specific institutional subsets.” Neoliberal institutionalists define and understand
regimes and multilateralism in a purely nominal sense and are focused more on the
functional aspects instead of deliberating on the structural implications.
Multilateralism as a Loose System of Global Governance
Global governance theories attempt to capture the growing movement towards

management of interstate relations through the establishment of multilateral
institutions and generation of universal norms, in areas such as human rights, as an
emerging system of governance without government (Hewson and Sinclair 1999;
Rosenau 1992). Governance seen through the prism of domestic analogy points to
the ability of a state to devise and enforce rules and laws, and punish defectors and
cheaters. If this argument is extended to the international arena and filtered through
the lens of neorealist international relations theory, it encounters difficulties. This
is because there are no universally acknowledged global institutions that parallel
the national state, which has the power to create and implement rules and laws,
and punish violators. According to neorealist and neoliberal theory, only states
have the power and capability to enforce and punish. In short, the unitary state is
recognized as the ultimate and final repository for legitimate use of violence and
coercion both at the domestic and international level.
From a realist perspective international cooperation is predicated upon the
use of coercive power and threats of violence. A recent variation of the realist
argument suggests that large and powerful states have the power to “go at it alone”
(Gruber 2000). Institutionalized cooperation by one group of actors restricts
policy options for other states; chiefly, weaker states have no choice but eventually
join the regime and play by the rules devised by the stronger states that have
banded together to establish treaty regimes.14 Neoliberal accounts of international
cooperation depend on the logic of gains (absolute and relative) as motivating
factors in enabling cooperation. Constructivists see international cooperation and
defection as a function of unique social relations that emerge among like-minded
states that do not necessarily view each other as threats and are committed to the
larger collective goal of self-enhancement or as Wendt (1992) puts it, “anarchy is
14 World Trade Organization is an example of such an institution. It started with 23

members and presently it has expanded to 153 member states and 30 observer nations.
Newer entrants will have to play by the basic structural rules that were established by the
founding member states.
what states make of it.” Meaning and implications of anarchy vary as a function of
positive or negative political relationships that are intersubjectively shared by all
the states. Globalists do not articulate a theory of international relations that relies
on a single explanatory component. Nevertheless, they recognize the importance
of state power, emerging structures of market power, corporate power, and the
power of institutions (non-governmental and intergovernmental) to manipulate
norms and policies of individual states.
Global governance is seen as a “whole” or as a “total political process”
that exercises control through decentered locations of power, which has a
transformational impact on the states. Governance is not conceptualized as an
overarching, unidirectional, and hierarchical process. Rather, it is seen as a process
that consists of contradictory and dialectical tendencies with socio-political roots
both at the systemic as well as at the subsystemic level; it is simultaneously
both a top-down and bottom-up process. Another way of conceptualizing global
governance is to view it as a system of governance that has multiple locales or
sites of power in different parts of the world. Scholars of global governance,
nonetheless, are careful not to equate global governance with world government.
Governance is seen as a loose arrangement of political power scattered in different
locations both within and outside the borders of a state. It is an interconnected
system of governance without formal instruments and trappings of a national
government. Put differently, global governance is generally characterized as
governance without government, or as Sol Picciotto (1997, 5) puts it, there has
been a shift towards “governance” from “government” that involves the delegation
of function to specialized agencies because the main political institutions of the
state have failed to resolve allocation conflicts within the state. Theories of global
governance do not rely exclusively on neorealist logic of power, neoliberalist
logic of gains, and constructivist logic of norms; it combines them into a single
framework and suggests that interstate relations cannot be entirely understood
from a single perspective. Global governance theories do not view power (realist),
welfare gains (neoliberal), and norms (constructivist) to be adequate, when
considered in isolation, to explain conflict and cooperation in international politics
(Suganami 1989).
An aspect that is common to the four major schools of thought—neorealism,
neoliberalism, constructivism, and global governance—is their reliance on the
system level or the pursuit of a structural approach, that is, top-down method of
analysis, which privileges international system structure over unit level factors,
such as the individual political configuration in each state (Dessler 1992). Put
differently, these theories do not formally incorporate domestic political factors,
such as the varying influence of domestic political regimes, differences in culture,
local politics, religion, ethnicity, and race explicitly into their theories.
Theories of international relations and comparative politics suffer from the
affliction of great divide in the discipline. Conventional rationale for the separate
study of international and domestic politics is based on the assumption that distinct
political and economic forces govern domestic and international realms. Scholars
have developed separate frameworks and theoretical tools to study domestic and
international politics. The key to this great divide centers on governance and
government, which is a crucial feature of domestic politics, whereas international
politics is generally characterized by a lack of government. This fundamental
difference has not only led to gradual exacerbation of this great divide, but it has
also resulted in the academic compartmentalization of international relations and
comparative politics into separate fields of inquiry. However, there is growing
recognition among new generation of IR scholars that the analytic chasm separating
international and comparative politics must be bridged.
Foreign Policy Behavior of the Democracies
There has been renewed interest in shifting the focus of the analysis from systems
to the domestic level (Gourevitich 1986; Keohane and Milner 1996; Rogowski
1989; Simmons 1994; Small 1996). Domestic politics-based approaches argue that
domestic and international politics are highly interconnected; negotiations at the
domestic level affect the behavior of states at the international level and vice versa
(Evans et al. 1993; Putnam 1988). Theoretical models that derive probabilistic
expectations about state behavior from domestic political structure contend that
the broad institutional structure of a nation—democracy and non-democracy—and
the dynamics of internal politics have the capability to significantly influence the
external policies of a nation (Drake and McCubbins 1998; Milner 1997; Schultz
and Weingast 1996; Verdier 1993). Proponents of democratic peace theory suggest
that there is strong evidence to support the claim that two democracies seldom go
to war with each other because of shared democratic norms, inherent pacific nature
of democracies (vis-à-vis other democracies), and also because of institutional
constraints particular to democracies. Others have argued that since democracies
are highly pluralistic societies they often produce foreign policies, which may
be inconsistent with national interests of that country because the nature of
competitive politics makes consensus building and policy coordination difficult.15
Democracies can often fall victim to “analysis paralysis” and indecision.
Thucydides and Tocqueville and other theorists have pointed out that it is difficult to
15 Tocqueville (1969) made this argument initially is his book Democracy in America.
Later, this view found expression in the works of Kennan (1954), Kissinger (1974), and
Morgenthau (1963). Some scholars have been suggesting the opposite; they contend that
democratic structure positively benefits a country because of the ability to effectively
respond to public demands and it also provides legitimacy to state action (Moravcsik 1993;
Schultz 1996; Waltz 1967; Weingast 1996). Immanuel Kant and subsequently Waltz (1967)
and Doyle (1983; 1997) have pointed out that the reason that democracies rarely fight each
other is because of the domestic constraints imposed on democratic leaders to prevent them
from engaging in adventurous international policies.
deliberate with the inconstant commons.16 Von Bismarck remarked that the conduct
of foreign policy is difficult as such and it could do without the interference of
“three hundred asses” trying to impose their uninformed opinions (Waltz 1967, 9).
Bismarck made this remark when the Reichstag attempted to question the German
Chancellor’s foreign policy decisions. The United Kingdom’s Prime Minister,
Lord Salisbury and Sir Edward Grey, Secretary of Foreign Affair, believed that
if the opinions of the popularly elected assembly is not properly modulated or
even restrained, then an active foreign policy would simply become impossible
(Waltz 1967, 9). Former United States Secretary of State, Henry Kissinger (2001)
expressed similar doubts about the ability of democratic polities to generate
coherent and consistent foreign policies. Kissinger believed that the populism in
democracies interfered with foreign policies to an extent that the final result was
muddled, incoherent, and inchoate. Sir Edward Grey during the First World War
commented that signing treaties and presenting them to the English Parliament for
ratification was hazardous and the only positive outcome of this process was that
it ensured continuity because subsequent parliaments can undo the treaty (Waltz
1967, 9). At the urging of President George W. Bush the conservative members of
the United States Congress nullified the 1972 Anti-Ballistic Missile (ABM) Treaty
in 2002 and blocked the ratification of the Kyoto Protocol and other human rights
conventions. Previous attempts at invalidating the ABM treaty during the tenure
of Presidents Ronald Reagan and George H.W. Bush failed.
Robert Putnam (1988) points out that international negotiations with
democracies are difficult because of competing demands from different domestic
groups and they invariably yield suboptimal results because of the numerous
compromises required to finalize a deal. Negotiators have to simultaneously
balance the requirements of the treaty with that of vested domestic constituents,
democracies are more likely to encounter difficulties in participating in treaty
regimes because of the need to accommodate conflicting demands from different
interest groups with incompatible expectations. The desire of the part of the
executive branch to accommodate the needs of multiple domestic constituents to
ensure re-election prevents democratic states from showing any coherency in its
policy behavior. As Waltz (1979, 8) puts it, the “foreign policy of a democratic
country, theorists have repeatedly said, is necessarily isolationist or quiescent,”
but it would be incorrect to conclude “institutions and processes of democracy
make excellence in foreign policy difficult.”
Kenneth Schultz and Barry Weingast (1996) have argued that although
democracies may not always generate optimal external policies, they definitely enjoy
certain institutional advantages that are not available to non-democracies. Schultz
and Weingast suggest that democracies are capable of acquiring extraterritorial
resources because the domestic institutional structure of democracies allows the
chief executive to make credible external commitments. Multiple institutional
16 Thucydides writing about the Peloponnesian War blamed the constantly shifting
and unreliable inconstant commons for its inability to bring peace to Athens.
checks and balances involving the legislative bodies in a democracy ensure that
subsequent leaders will honor a commitment made by one chief executive. This
institutional advantage, Schultz and Weingast (1996) point out, allows democracies
to enjoy long-term gains in international competition compared to authoritarian
countries. Correspondingly, the proposition that two democracies rarely go to
war with each other derives its support from the institutional constraints that
are placed on the executive branch to restrain it from entering into unnecessary
foreign entanglements. The ability of the legislature and public opinion to restrain
the motivations of the chief executive from entering into costly wars is one of
the institutional advantages enjoyed by democracies (Fearon 1994). There are
exceptions to this condition, as exemplified by the decision of the United States
to invade Iraq in March 2003 by manipulating intelligence, maneuvering public
opinion, and duping the legislature into compliance.
The capacity of leaders in non-democracies to insulate themselves from
domestic audience costs gives them greater freedom to make foreign policy and
strategic decisions. Such decisions do not always yield successful results. Iraq’s
sudden move to invade Kuwait in 1990 resulted in Iraq’s ignominious and costly
exit from Kuwait, and the resulting war imposed misery both on the citizens of
Iraq and Kuwait. Authoritarian governments stifle domestic political competition
so that they can continue to stay in power and pursue their policies without any
opposition. This does not mean that authoritarian regimes do not change their policy
positions; it just means that foreign policy decisions are less likely to be influenced
by changes in domestic political preferences as it occurs in democracies. Although
authoritarian political systems experience domestic political competition in the
form of palace coups and internal power struggles, it is not similar to the vibrant
and open competition for power as experienced in democracies.17 Besides the lack
of an independent and free media thwarts any attempt to generate genuine policy
discussions in authoritarian polities. Many degrees of political freedom separate
the nature of political competition in authoritarian and democratic regimes because
of wide differences in the domestic political structure.
Integrating Domestic and International Politics
Studies that seek to show the interdependence between domestic and international
politics fall into two broad categories. One group is composed of IR theorists who
17 Authoritarian countries change their policies, often drastically, especially after
leadership changes that occasionally take place through violent coups, revolutions or
sometimes through relatively peaceful power shifts. Change in leadership from Brezhnev
to Gorbachev in the former Soviet Union produced a dramatic shift in foreign policy, which
eventually lead to its dissolution. Similarly, Iran’s Islamic revolution in 1979 changed
Iran’s foreign policy towards the West and towards its neighbors (see Homa Katouzian, in
Chehabi and Linz 1998).
strive to show the influence of domestic political change upon international politics
(second image); they aim to show how domestic political change can affect war
making intentions of a state. The second group generally consists of comparativists
who are interested in studying the impact of international factors or exogenous
influences on domestic politics and responses to external stimuli (second image
reversed). Second image and the second image reversed traditions reflect two
broad categories of domestic political approaches that seek to show how leadership
change, party politics, regime change, and institutional structure within a country
affects international outcomes (Gowa 1983; Maoz 1996; Milner 1988; 1997;
Simmons 1994; Solingen 1998). Jack Snyder (1991) develops a domestic politics
model borrowing from coalition and interest group theories to explain why great
powers such as the United States, the United Kingdom, and Germany over expand,
that is, attempt to increase their power over and beyond their political boundaries
and regional spheres of influence. Snyder contends competition among influential
domestic political groups such as military cabals, foreign office bureaucrats, and big
business produce over expansion among great powers.
Second image reversed approaches concern themselves with understanding why
states that are characterized by similar structural features respond varyingly to the
international market pressures (Gourevitch 1978). According to Rogowski (1989),
distributional effects of international trade generate domestic political alignments
for and against external trade due to uneven distribution of gains from trade.
Stakeholders who directly benefit from international trade will favor reduction
of tariffs and negatively affected groups will seek to increase protection. Jeffrey
Frieden (1991) uses a similar model to examine why responses to international
debt crisis generated varying policy responses from the different Latin American
countries. According to Frieden, the varied policy response was not only due to
the differential impact of debt crisis on different countries, but also because of
widespread differences in domestic economic structure and interest group politics
among South American nations.
Interest group politics in democratic states respond divergently to international
trade and capital movements, especially under imperfect international market
conditions, compared to non-democratic countries. Formal institutional structures,
dynamic relationship between organized pressure groups and elected leaders,
and voting preferences determine responses to international market imperatives.
Politicians interested in re-election make populist pledges while collecting
campaign contributions from various organized interest groups. A combination
of group interests and electoral politics determine how states simultaneously
respond to internal politics and external political pressure (Putnam 1988). The
general consensus is that negatively affected groups can be expected to petition the
state to improve their economic or political status and positively affected groups
will lobby the state to relax the prevailing constraints or attempt to sustain their
privileged economic or political position. The outcome of the competing lobbying
pressures depends on the power of the lobby groups to influence state policies and
also on the specifics of political structure.
International Norms and State Behavior
International relations literature has witnessed a growing reliance upon social

factors such as values, identities, and culture to explain why states cooperate or
defect from international institutions; why democracies do not go to war with other
democracies; why states acquire weapons of mass destruction; and why states
pursue particular public policies in the area of environment regulation or protection
of human rights? This “normative or the ideational turn” emerged as a response
to mainstream theories that exclusively relied on “material” or “hard” variables
and on behavioral and rationalist ontology (Ruggie 1998). This normative trend,
as Finnemore and Sikkink (1998) indicate, started with the explicit rejection of
idealism and acceptance of realism and rationalism as superior modes of inquiry.
Studies that rely on “soft” explanatory variables such as values, identities, norms,
ideas, beliefs, and culture, which emphasize the non-material or the cultural,
ethical, moral, and ideational dimensions of interstate relations were generally
thought to be weak in their theoretical and analytical rigor and more focused on
prescriptions, opinions, and suggestions.
Ideational explanations were accused of focusing more on what ought to be,
instead of concentrating on as it is. Nevertheless, these ideational or cognitive
approaches have transcended the normative versus positive debate to the extent
that positivists have recognized the importance of soft power of ideas, values,
and culture. Focusing on ideas and norms might help us understand the rapid
increase in transnational institutions that are motivated by legitimate social
purpose (Finnemore and Sikkink 1998). Transnational agencies that are devoted
to redressing human rights abuse, environmental degradation, and proliferation of
small arms and landmines seem to be not motivated by strategic objectives; instead
they seem to be influenced by legitimate normative objectives of doing the right
thing. Norms and values not only appear to explain the emergence of transnational
agents and establishment of numerous environmental and human rights treaties,
but they also serve as important explanations to understand changes in state
behavior. Proponents of a norms-based approach contend that non-material factors
can generate autonomous or stand-alone or competing explanations (Katzenstein
1996). Audie Klotz (1995) has shown how international norms on racial equality
and external political pressure played a significant role in influencing the identity
and interests of the South African state during the long struggle against apartheid.
Klotz demonstrates how diffusion of the racial equality norm energized various
epistemic communities to oppose South Africa’s brutal policy of racial segregation,
which led to the imposition of sanctions and various international bans on South
Africa. Due to the combination of domestic mobilization and external pressure
the apartheid regime suffered severe social costs, which eventually caused its
downfall.
Margaret Keck and Kathyrn Sikkink (1998) have described how transnational
human rights advocacy networks helped to instigate change in human rights
practices among South American countries from 1968 to 1993. Transnational
advocacy networks rallied support at global and domestic levels through a diverse
set of non-state actors to halt human rights atrocities committed by authoritarian
South American regimes. Other studies have also shown how international norms
of democracy and environmental protection transmitted through the activities of
global advocacy network have had an autonomous impact on the behavior and
identities of many states. David Lumsdaine (1993) describes how morality and
ethics, instead of pure strategic concerns, influence foreign aid decisions of donor
nations. This is exemplified by the Bush administration’s efforts to bar foreign
aid recipients and anti-AIDS campaigns from pursuing family planning activities
(Swarns 2003).
Normative approaches have also been applied to international security issues
such as ethnic conflict, interstate war, and the emergence of prohibitionary taboo
against the development, acquisition, and use of weapons of mass destruction,
particularly chemical weapons (Price and Tannenwald 1996). Various studies have
demonstrated that norms influence state action in all areas of international security,
such as nuclear weapons development, chemical weapons use, arms race, military
budget, military strategy and doctrine, and humanitarian intervention (Katzenstein
1996). Norms are defined as “standards of appropriate behavior for actors with a
given identity” (Finnemore and Sikkink 1998, 891). Chayes and Chayes (1995,
113) define norms as a “prescription for action in a situation of choice.” Scholars
who subscribe to the constructivist school conceptualize norms through language,
discourse, or other linguistic devices; they look for codified references to norms
enshrined in treaties, agreements, and other institutional procedures to identify
prescriptive, evaluative, constitutive, and regulative norms (Goertz and Diehl
1992). Although there is little agreement among scholars on how to operationalize
or measure norms, material and ideational theorists agree that norms indeed play
an important explanatory role, but they differ in their interpretation on how norms
matter, in what ways norms work, and whether norms have any independent
causal influence on state behavior. Others caution that the impact of norms are
underspecified, and in some instances the influence of norms remain indeterminate;
they suggest that marrying norms with strategic explanations might produce superior
understanding rather than deploying norms as an exclusive explanatory variable
(Finnemore and Sikkink 1998; Goertz and Diehl 1992; Katzenstein 1996). With a
few exceptions, almost all norms-based approaches generally seek to explain how
international norms influences state behavior. International norms are characterized
as a systemic force that analytically resides at the systems level, which is endorsed
through various discursive mechanisms and transnational advocacy networks to
influence the behavior of non-conforming states.
Alexander Wendt (1999) argues that the international social structure is
not sufficiently dense or thick enough to impute it with value or meaning;
hence, theorists need to be careful not to deduce norms automatically from the
international social structure. In other words, Wendt argues that any analysis should
avoid beginning with the assumption that norms exist (or take them as a given) in
the international social structure. Norms, evolve through complex interaction of
domestic and international politics. As Finnemore and Sikkink (1998, 893) put it,
international and domestic norms are linked and they resemble a two level game,
where domestic norm entrepreneurs can utilize international norms to solidify
their positions and international actors can bolster their position through reference
to subregional norms.
Andrew Cortell and James Davis (2000) argue that a state will comply with
international norms only in instances when the norm does not deeply conflict with
well-established competing domestic norms. Using the case of Japan’s relationship
with GATT/WTO, Cortell and Davis examine why norms and principles in GATT/
WTO were slowly accepted in Japan? Specifically, they investigate why Japan
employed innumerable non-tariff barriers and other exclusionary practices to
provide protection to domestic industries in contravention to the rules and norms
of GATT/WTO. Traditionally international norms are privileged and the power
and influence of domestic or subsystemic norms are underestimated, which
often conflicts with international treaty norms. Norms, however, are not fixed
or unchanging; they not only evolve progressively, but also retrogress; in short,
norms are highly contested.
Contestation between international and domestic norms is particularly acute
in the case of human rights regimes because they are value laden and such norms
often collide with local customs and practices, deeply held religious beliefs, and
other social mores. Human rights and other international governance norms could
also be opposed by the many nation states because of their perceived political
impact. This form of resistance can also result because of deliberate state inaction,
such as refusal to participate in a treaty regime, disavowal of a treaty for ideological
reasons, and general unwillingness to comply. Resistance can manifest overtly
in the form of mass protests or riots, as seen in the case of anti-globalization
demonstrations, broad social movements or, it can be more localized and lead to
radicalism.
Participation and resistance to a treaty can be understood from the perspective
of strategic imperatives of the states that are motivated by power, security, and
cost-benefit calculations. Powerful states can cooperate or defect from treaties as
they choose, simply because they have the power to do so, whereas weaker states
do not possess the power to cooperate or defect as they wish and sustain their
alliances (Moravcsik 2001). Treaty development, expansion, and deepening can
be explained by analyzing the “go-it-alone” power of the regime beneficiaries.
Simply put, strong states establish regimes and weaker states will follow because
they feel compelled to join or anticipate that benefits will be realized through
participation. A variety of neoliberal theories have suggested that the probability
of international cooperation increases, especially when gains are likely to accrue
to powerful interest groups in a state and the state leaders are likely to support such
cooperative ventures because such gains are transferable from the interest groups
to state leaders. Normativist or constructivist theories support the view that state
participation and resistance to treaties can be explained by examining the degree
of norm compatibility between domestic and international actors. States should be
motivated to enter regimes that aim to sustain and promote such norms because
they believe that it is the right thing to do and they do not always act on the basis
of narrow strategic or other rationalist concerns.
Chapter 2
Probing the Organizational Structure
of Treaty Regimes and its Influence
on Participation and Resistance
How does one examine the varying response—participation and resistance—of

democracies and non-democracies towards treaty regimes? To answer this
question we must be able to compare decision-making processes in democracies
and non-democracies that lead to participation or resistance. The challenge lies in
identifying the mechanisms and process through which independent variables—
domestic political structure and social norms—lead to divergent policy responses
(participation and resistance) in democracies and non-democracies. To achieve this
objective this chapter addresses three fundamental questions: (1) What is a treaty-
based regime? (2) What are the sources of participation and non-participation?
And (3) how differences in the domestic political structure and internal social
norms in democracies and non-democracies produce varying responses to political
and normative pressure from treaty regimes? The rest of the chapter will define
the concepts used and discuss the purpose and motivations for the cross-national
analysis of treaty ratification in three different issue areas: environment and arms
control (Chapter 3), human rights (Chapter 4), and two in-depth case studies
focused on the United States of America (Chapter 5) and the People’s Republic of
China (Chapter 6).
Evolution of Multilateral Treaties
Norms are regarded as standards for appropriate behavior or prescriptions for

proper action in a given situation, and they involve a sense of obligation that
they must be followed because it is the right thing to do. All countries do not
necessarily share the universality of international norms and its applicability is
systematically challenged in various venues. Frequent violation or departures
from a specific norm does not however invalidate them, but norms are definitely
strengthened by consistent adoption and adherence. International norms operate
in multiple dimensions and they can be prescriptive, consultative, and hortatory
or aspirational as in the case of human rights, which endeavor to promote the
virtues of democracy, forbid the death penalty, prohibit torture and other cruel
and unusual punishments, encourage anti-discrimination measures against women
and minorities, and promote racial equality. Environmental treaties advocate
environmental justice, resource conservation, and pollution control while most

arms control treaties seek to regulate the production and sale of weapons of
mass destruction. After the end of the Second World War, various norms have
been transformed into international legal codes through treaty development and
awareness campaigns launched by means of special international conventions,
declarations, and proclamations. Treaties have become the primary expression of
international law to codify evolving norms; specifically multilateral treaties have
become the most effective and central path for generating solutions and codifying
norms for contemporary global problems (Steiner and Alston 2000, 104).
In previous centuries, treaties were used in the areas of national security and
commerce to record bilateral or regional agreements to address territorial disputes,
peace settlements, reparations, alliance arrangements, special trade rights, tariff
accords, navigation rights, and to facilitate intergovernmental administrative
activities, such as granting rights and privileges for diplomats. Treaties are explicit
legal documents that identify mechanisms for addressing a particular interstate
problem. The striking legal advantage of treaties relative to customary international
law is that treaties are endowed with the power to establish, define, and identify
the jurisdiction of international organizations. Multilateral treaties contain specific
information on the parameters and definition of an issue; it establishes a method for
generating solutions, determines the costs and obligations for the parties involved,
and it also serves as an instrument to codify international norms.
Treaties might include a mechanism for dispute resolution and a process
for exemption from a treaty in the case of a national emergency. According to
Greenville (1974, 4) treaties are “landmarks that guide nations in their mutual
relations” and they “express intentions, promises and normally appear to contain
reciprocal advantages.” International treaties are based on the maxim pacta sunt
servanda (treaties must be observed), which serve as authoritative starting points
for international legal reasoning, and they represent a common recognition that
formal commitments made through signature and ratification will be honored in
good faith (Steiner and Alston 2000, 105). Article 26 of the Vienna Convention on
the Law of Treaties states that treaties are legally binding, and it specifically requires
that participating states honor the norms and rules in good faith. Legitimacy of
international law is derived from state consent; once states acquiesce to international
treaties they are bound by their consent and it behooves the participating states
to honor their commitments (Franck 1995, 25–46). Unlike customary law or
international regimes that are characterized by a loose conglomeration of rules,
The 1972 Stockholm Conference on the Environment led to the development of

environmental consciousness, which eventually culminated in the establishment of the
United Nations Environment Programme (UNEP).
The World Trade Organization (WTO) has a strong dispute resolution mechanism
and binding arbitration system built into the structure of the trade regime. Arms control
treaties have clauses which allows states to exempt themselves from the treaty in the case
of a national emergency.
Probing the Organizational Structure of Treaty Regimes 31
principles, and norms towards which actor expectations converge, treaties have an
explicit legal charter and institutional form that is presented in a written format.
Treaty goals are clearly codified and the states can give consent through signature
and ratification or accession. It is anticipated that the well-defined structure of a
treaty will lend clarity and provide opportunities to assess formal participation of
the states and monitor compliance.
After the birth of the United Nations, treaties have become a primary tool
for promoting interstate cooperation because they bring order, stability, and
predictability to interstate exchanges. Treaties not only reduce uncertainty
and transaction costs, strengthen norms, but also elevate the legitimacy of the
participating states. As Inis L. Claude (1966) points out, states choose to join the
United Nations because it provides “collective legitimation” for state policies,
especially when it involves coercive acts such as sanctions and military action.
Importantly, treaties have moved from a bilateral and regional orientation to the
multilateral stage in the twentieth century to address complex collective action
problems in areas such as international security and arms control, trade and
finance, environmental protection, and human rights.
International organizations such as the World Health Organization (WHO),
United Nations Environment Programme (UNEP), regional organizations,
such as the Inter-American Court of Human Rights (IACHR), European Court
of Justice (ECJ), and the European Commission (EC), and non-governmental
groups such as World Wildlife Fund (WWF), CARE International, Greenpeace,
and Amnesty International (AI) are largely responsible for norm dissemination
and norm promotion. An assortment of norms have been transformed into legal
statutes and incorporated into different multilateral treaties, which subsequently,
have morphed into treaty regimes that have evolved into an interdependent global
governance network based on issue linkages both within and across different
treaty areas. These governing networks perform a wide array of activities that
range from collecting and filtering information, providing technical, legal, and
monetary assistance to monitoring compliance.
Policy interdependence has increased the ability of regime managers to link
international policy issues across various treaties within the same issue area into
complementary clusters. Issue interplay is especially high both across and within
issue areas such as international trade and the environment because it is associated
with non-excludable common pool resources without clearly demarcated property
rights (Buck 1998; Ostrom 1991). Protecting endangered marine animals, such as
dolphins and whales, is intimately connected to the international fishing industry.
Large mechanized fishing trawlers routinely trap dolphins in their fishing nets, when
this issue became public and led to significant outcry, especially among conservation
groups, many states banned the sale of imported tuna from certain parts of world.
Addressing this problem required coordination between the international fishing
and endangered marine animals regime. The United States and the European Union
introduced legislation requiring certification guaranteeing trade in tuna fish is
dolphin-free. Global climate change has tremendous implications for international

trade and fossil fuel-based energy imports and exports, as a result it has moved
from the realm of low to high politics (Litfin 1998). Coal burning energy plants and
other industrial activities produce excessive pollution and acid rain that is carried
by wind currents across continents. Acid rain in China affects Japan, South-East
Asia, and even the West Coast of the United States. Transboundary impacts of acid
rain warrants international cooperation to control production activities globally. In
the area of human rights, the Universal Declaration for Human Rights (UDHR)
and the International Convention on Civil and Political Rights (ICCPR) serve as
broad foundational documents that have fawned numerous human rights treaties
and optional protocols dealing with specific issues raised in UDHR and ICCPR.
The principal aim of the human rights regimes is to initiate a process that would
eventually lead to some sort of convergence with multilateral treaty norms from
a culturally diverse conglomeration of states. Although most regimes are problem
specific and are narrowly defined, human rights treaties develop functional linkages
that emerge during the actual functioning and operation of the regime.
In the area of weapons of mass destruction (WMD), many regimes are nested
within others or they emerge in clusters to tackle different aspects of WMD
proliferation from multiple angles. The spread of nuclear weapons and technology
is primarily managed through the Nuclear Non-Proliferation Treaty (NPT), which
is administered by the International Atomic Energy Agency (IAEA). Prohibition
of underground, surface, upper, and under sea nuclear testing is conducted through
the Comprehensive Test Ban Treaty (CTBT), and verified by an independently
established international organization (the comprehensive test ban treaty
organization or the CTBTO). Likewise the Missile Technology Control Regime
(MTCR) is designed to prevent the export and exchange of missile technology and
components. Fissile Material Cut-off Treaty (FMCT) aims to ensure that nuclear
materials (plutonium and enriched uranium) are not diverted from civilian nuclear
energy projects for weapons production in unauthorized countries. Nuclear
Suppliers Group (NSG) is an export control treaty regime that is composed of
countries that agree not to sell or transfer dual-use technology to states that seek
to covertly develop weapons of mass destruction. Control of biological and
chemical weapons is managed through the Chemical and Biological Weapons
Convention (CWC and BWC). Collectively, the several WMD treaties that operate
as functionally interdependent regulatory networks to restrict the spread and use
of nuclear, biological, and chemical weapons are commonly referred to as arms
control regimes (Paul et al. 1998).
Dolphin-free tuna certification has become a major trade issue. Mexico pressed
the United States under NAFTA guidelines to relax the regulations so that Mexican tuna
can be sold in European Markets (Defenders of Wildlife, “U.S. Commerce Department
Tries Again to Repeal Dolphin Protection.” May 19 2000, available online at: http://www.
defenders.org/releases/pr2000).
Participation in Treaties
Behind every international regime there is a treaty or as Chayes and Chayes

(1995, 2) point out, “treaties give the regimes its basic architecture.” Treaties are
unambiguous formal laws, but they are not the only type of international legal
agreement, legal experts have recognized the importance and value of customary
international law that governs relations among states in disparate areas ranging
from defining appropriate standards for diplomatic relations, extradition of
criminals to the settlement of maritime navigation rights. A variety of soft laws
such as mutual declarations, joint statements, bilateral agreements, and other
legal instruments also serve to facilitate specific and substantive political and
economic problems (Abbot and Snidal 2000). Together, these sets of international
legal and normative instruments are often referred to as regimes. In the words of
Stephen Krasner (1983, 1) international regimes are “principles, norms, rules, and
decision-making procedures around which actor expectations converge in a given
issue-area.” Regime theorists generally rely on a softer and expansive definition of
international law, such as tacit customs and accepted practices, to identify the range
of cooperative and non-cooperative behavior among states. The focus is on how the
conglomeration of norms, rules, and decision-making procedures affect the policy
preferences of the states. Multilateral treaties are considered to be hard law, which
have an explicit formal character, a defined institutional structure, and a hierarchy
of governance and voting arrangements to contend over clearly delineated issues
identified through a series of treaty clauses. International agreements come in
different varieties—pacts, protocols (which serve as a supplement to the main
agreement), covenants, conventions, declarations, charters, exchange of notes, and
treaties; international standing of these legal instruments is of equal significance,
that is, they are more or less interchangeable. Participating in hard law agreements,
particularly treaty-based legal instruments involve considerable costs on the states
because it restricts their behavior, policy choices, and sovereignty (Abbot and
Snidal 2000, 422).
Treaties that are fashioned to deal with complex interstate regulatory problems
contain built-in enforcement capacity that varies as a function of the issue area.
The Montreal Protocol, also known as the ozone regime, which came into legal
force in 1987 to coordinate the activities of all states to rapidly reduce emissions of
ozone depleting chemicals, has a complex regulatory mandate. Since its creation,
the Montreal Protocol has not only grown in terms of size and membership, it has
also continuously expanded by including additional protocols to accommodate
newer types of ozone harming chemicals that were not initially included in the
treaty. The Montreal Protocol has a separate secretariat and budget, scientific
advisory staff, emissions monitoring stations in different parts of the world,
power to conduct inspections, expand the list of chemicals to be included in the
treaty provisions as per scientific advice, and the secretariat has the power to
propose optional protocols to be added to the original agreement with the consent
of state parties (Ozone Secretariat 2006). The Montreal Protocol is an organic
treaty that has an explicit legal mandate to operate a complex global regulatory
enterprise. Other environmental treaties, such as the international hazardous waste
and chemicals convention, which is a combination of three separate treaties—
Stockholm, Rotterdam, and the Basel Convention—that operate by establishing
a prohibitionary norm against the transboundary movement of hazardous wastes
and chemicals for improper disposal or salvage, contain similar institutional
capacities to compel participating states to comply. Correspondingly, multilateral
arms control treaties, such as the NPT and CTBT, have inbuilt coercive capacity
or “teeth” to introduce intrusive enforcement procedures. The NPT compliance
verification system for non-nuclear states includes routine inspections on specified
sites, unannounced visits to verify the cessation of production of fissile materials,
and continuous monitoring of all production and supply protocols concerning
nuclear materials (Schaper 2000, 59). The Strategic Arms Reduction Talks (START
III) treaty negotiated in 1997 by the former United States and Russian Presidents,
Bill Clinton and Boris Yeltsin, contains an elaborate process to identify and destroy
nuclear warheads of both countries under the joint supervision of United States
and Russian experts (Schaper 2000, 61).
Treaties not only vary by size, structure, and the number of states involved,
but they also deviate significantly in terms of expectation, capacity, function, and
importance both within and across issue domains. Arms control agreements, a few
trade, and some environmental treaties include built-in institutional capacity and a
formal verification and enforcement mechanism to ensure compliance. If there is
a material breach of the NPT, state parties in conjunction with the United Nations
Security Council could invoke measures that include political pressure, punitive
sanctions, or even military force to punish noncompliant states. In the case of
WTO, a country’s protectionist policies can be contested in the WTO arbitration
resolution board. If the arbitration board finds against the country engaging in
protectionist activities or violating intellectual property rights, and if that country
refuses to amend its policies and curb such behavior it can face countervailing
duties.
The actual process of compliance and verification involves multiple stages or a
set of graduated steps that begins with the language and mandate of the treaty. In a
small number of cases, some regimes also possess the ability to threaten sanctions,
such as the nuclear non-proliferation regime. Indubitably treaties outline detailed
provisions for dealing with specific regulatory arrangements, but some human
rights treaties contain nothing more than declaratory or hortatory statements that
identify desirable norms and encourage the participating states to adopt them with
due diligence. Implementation of human rights treaty norms is highly contested
and fraught with innumerable difficulties because it is entirely dependent on
domestic governmental entities and the enforcement capacity of the treaty regimes
is inadequate.
States choose to interpret and enforce human rights treaties in ways that
are suitable to their domestic social and political setting. Instances of brazen
violations and selective interpretation and application of human rights norms are
not uncommon. In addition states routinely attach reservations, objections or other

opt out declarations to weaken the normative impact of the human rights treaties
on themselves. Frequently, relative to other issue areas, human rights treaties
also persistently suffer from weak institutional design and limited enforcement
capacity (Donnelly 1998). Compliance with human rights regimes present
thorny problems because treaty articles are defined in soft language that is highly
contestable and susceptible to subjective evaluation. Ratifying states are expected
to submit periodic compliance reports to the appropriate treaty subcommittee
associated with the United Nations Human Rights Council. Invariably states are
tardy and delinquent in the submission of reports and in most situations the state
parties paint a highly positive picture of their human rights achievements and
gloss over weakness without acknowledging substantial problems (see Chapter 4
for a detailed discussion of these challenges). The United Nations Office of the
High Commissioner for Human Rights has started to incorporate reports of non-
governmental agencies such as Amnesty International, Human Rights Watch, and
International Red Cross, and information provided by grassroots human rights
NGOs for official consideration of a state’s human rights practices. Reports on
human rights abuses are compiled with the assistance of journalists, political
dissidents, and other persecuted parties. Consideration of the NGO reports,
which are known as shadow reports, has not been unproblematic; many countries
have protested the inclusion of NGO generated data into formal United Nations
conclusions. Human rights regimes typically function through the sharing of
information and issuing appeals, persuasion, and shaming. Occasionally, egregious
violations of human rights, such as crimes against humanity or genocide, have
produced United Nations sanctions and widespread social opprobrium. South
Africa’s apartheid regime was banned from almost all of the major sporting
events, such as the Olympics by the Commonwealth Association and European
countries (Klotz 1995).
Treaties function as stepping stones for the creation of international
organizations to deal with common problems; they contain information to be
negotiated and agreed upon at a later date on the basis of technical developments
and expected monetary contributions from the state parties. Uruguay Round of
negotiations under the auspices of the General Agreement on Trade and Tariffs
(GATT) led to the establishment of the World Trade Organization. The United
Nations Framework Convention on Climate Change in 1992 produced negotiations
that led to the establishment of the Kyoto Protocol in 1997 to reduce greenhouse
gas emissions and prevent global warming.
A state could participate in any of the five stages in the development of a
treaty: (stage І) norm emergence; (stage II) negotiation and drafting; (stage III)
signature; (stage IV) ratification; and (stage V) implementation, compliance, and
enforcement. Ideally states are involved in every stage of the negotiation and
drafting process, which routinely lasts for several years, after the appearance of
Formerly known as the United Nations Human Rights High Commission.

a treaty norm on the agenda. Nonetheless, for different reasons, all states do not
always participate in every stage of treaty development because many states do
not have the capacity to send in delegations of lawyers, experts, and diplomats to
every treaty negotiation. Newly established states accede to pre-existing treaties
to enhance their legitimacy and legal status of their statehood, and gain entry
into other international organizations (Alvarez 2002). States that are involved in
transforming international norms into a treaty are referred to as original parties
to the treaty. Normally, this group consists of a small group of states that might
work in collaboration with a United Nations agency to draft a treaty, but it is
not incumbent on treaty negotiating states to sign and ratify the treaty that it is
involved in drafting. However, typically the negotiating state parties are some
of the first states to sign and ratify the treaty that they were involved in ratifying.
States primarily join treaty negotiations and drafting to influence the institutional
structure, treaty language, rules, jurisdiction, expectations, and state commitments
at the drafting state. The third stage of treaty negotiation is one of the most important
stages in regime evolution because if the treaty is not effectively designed and if it
contains significant ambiguity, then the opportunity for non-participation increases.
A treaty might be perceived as non-inclusive and limiting if the language of the
treaty is too exacting and specific or if it places heavy sovereignty demands on
the participating countries. If the treaty is not to a state’s liking, then that state
may choose to shun the treaty, withdraw from negotiations, ignore it or, obstruct
negotiations by forming coalitions with like-minded states.
The United States formally withdrew its participation from the International
Criminal Court (ICC) in 2002 and declared that it had no intention of submitting
the treaty for ratification to the United States Senate because it would hamper its
ability to perform various peacekeeping and nation building operations effectively.
Eventually the United States government sought special exemptions known as the
Status of Forces Agreement (SOFA) from more than 100 countries for American
soldiers so that those serving in Iraq, Afghanistan, and other parts of areas of
the world would not fall under ICC jurisdiction. This move could be clearly
characterized as resistance to participate, but it is difficult to clearly discern the
motivations of most states because they do not always formally announce their
intentions to participate or not. India has been an exception in this regard vis-à-vis
the non-proliferation regimes; various Indian political parties have consistently
objected to India’s participation in the non-proliferation regimes by arguing that it
would weaken India’s national security and reinforce the existing nuclear weapons
inequalities vis-à-vis the nuclear powers such as China and the United States.
Why States Join Treaties
Realists emphasize the importance of state power, which they contend is the only
significant determinant in international politics because states have monopoly over
the legitimate use of force both domestically and internationally, and powerful
states are the final arbiters of international relations. Success and failure of
international treaties and regimes, realists argue, always depends on the interests
and power of the strong or hegemonic states; above all success depends on the
ability of strong states to impose their will on multilateral regimes and on weaker
states. Realists, such as Hans Morgenthau (1993, 268), believed that states do
indeed comply with international law, but only when they do not relate to national
security or other significant matters. Strong states routinely violated the Treaty
of Westphalia (1648) and only selectively granted the right of sovereignty to
weaker states (Krasner 1999, 122). In addition, powerful states gave themselves
considerable advantages while drafting treaties and coerced weaker states to
cooperate with multilateral institutions and sought exemptions from joining the
very same treaties that they were instrumental in drafting. Realists contend that
participation and non-participation can be explained by using the logic of state
power; they consider treaties to be mere extensions of state interests and argue that
the enforcement capacity of the treaty regimes is highly dependent on the power
of the strong states.
Power to endorse sanctions are held by the five permanent members of the
United Nations Security Council that incidentally are the five biggest economies
with sophisticated military resources, and only the five permanent members of the
United Nations Security Council—United States, United Kingdom, France, Russia,
and China—are legally authorized to possess nuclear weapons and technology
as per the provisions of the 1968 NPT treaty. Downs and his colleagues (1996,
380), argue that the high level of compliance despite weak enforcement witnessed
among certain treaties is an indication that most treaties require participants to
“make only modest departures from what they would have done in the absence of
an agreement.” Downs (1996, 383) and his colleagues also argue that states choose
to draft only treaties for which they expect high level of compliance and they are
unlikely to expend their resources in drafting treaties that are likely to experience
weak participation and compliance. In other words, this modified realist argument
implies that compliance is only possible when it is backed by strong enforcement
measures. Realists are skeptical about claims that multilateral treaties can change
the behavior and policies of a state; instead, they focus on cynical or strategic
reasons to explain such changes.
According to the alternative managerial model of compliance, if a treaty is
properly designed with sufficient transparency, limited ambiguity and indeterminacy,
and if the built-in incentive mechanisms and workable enforcement measures are
explicitly designed, then the possibility of participation increases (Chayes and
Chayes 1995; Mitchell 1993). The demand for multilateral treaties is determined
by its ability to reduce transaction costs and uncertainty and increase coordination
and transparency during routine interstate exchanges (Young 1989). Well-designed
treaties have a better chance of being effective and ensuring that participating states
observe their obligations. Indeterminacy can produce expansive interpretations
leading to deviations, including cheating or violation of treaty norms (Chayes
and Chayes 1995, 11). Participation is also enhanced by persuasive actions of the
local, regional, and international non-state actors who are directly and indirectly
associated with the treaties (Finnemore 1996). Credibility and legitimacy of state
actions and concerns over international shame or criticism can play a significant
role in motivating states to fulfill their treaty obligations. The desire to appear
as cooperative members among the world of nation states and gain international
legitimacy and burnish their reputation might galvanize states to comply; this is
probably true of newly independent states and countries that have transitioned to
democracy from other types of governance. If the participating states internalize
external norms and come to accept them to be legitimate and valuable, then they
are more likely to adopt prohibitory and prescriptive norms. Sanctions, coercion,
and regime strength need not always be the exclusive determinant of compliance
(Young 1994, 74).
Consent with Treaties and State Participation
Could participation and resistance be explained as a function of signature and

ratification or is it dependent on implementation and compliance with specific
treaty obligations? Does attachment of reservations weaken the impact of
participation? What counts as compliance with a treaty and what actions can be
determined to be noncompliant? Treaty acceptance and rejection is generally
framed as a binary act, a simple yes or no, which does not capture the legal nuances
nor does it encapsulate the degree of political support expressed by a state towards
a particular treaty (Diehl 2002–2003). Israel has not signed or ratified the NPT, but
it signed the CTBT in 1996 and it has not openly tested nuclear weapons and there
is no authoritative information that it has secretly obtained nuclear weapons or
engaged in the proliferation of weapons of mass destruction, but Israel is generally
regarded as an opaque nuclear weapons state (Cirincione et al. 2005; Cohen 2000).
So is Israel in violation of the Nuclear Non-Proliferation Treaty because it is a
non-signatory to the NPT and it has not yet ratified the CTBT? Can a state breach
a treaty if it has not signed or ratified a treaty?
Can a state be counted as a non-participatory state if it has just signed, but not
ratified the treaty? The answer to this question is: it depends. There is no action on
the part of the Israeli government that is suggestive that it has violated NPT norms.
However, by remaining outside the bounds of the treaty and by not signing or
ratifying, Israel has raised questions about its capacity, intentions, and capabilities.
The policy of deliberate nuclear opaqueness is a cause for concern because there
is no independent verification of Israeli claims that it is not proliferating or that
it is not in possession of nuclear weapons in violation of the NPT because it has
not formally acceded to the NPT. Formal ratification brings a country under the
ambit of the non-proliferation regimes and international law thereby making that
particular state vulnerable to institutional and legal, and normative constraints.
Once a state has formally consented to a treaty, it is legally binding upon the state
to respect its treaty commitments (pacta sunt servanda).
Consent is an important factor because by assenting a state formally declares

its willingness to legally bind itself and make a credible commitment, and
subject itself to the will of international law. States are obliged to comply with
the consented treaty norms irrespective of sanctions and other such enforcement
threats simply because they are obligated to do so; states that function outside
the formal boundaries of international law by not consenting are more difficult to
regulate relative to states that have formally entered a treaty. But, consent is not
simply limited to obedience through formal acts—signature and/or ratification;
it involves fulfilling the “true intent” of a treaty, that is, implementing and
fully complying with the treaty. Just because a treaty is in legal force does not
automatically guarantee consent among the participating states; treaty norms
have to be internalized, implemented, and enforced by the appropriate domestic
authorities. Establishment of necessary institutional mechanisms for effective
and efficient execution of a treaty generates transparency to allow independent
external monitoring.
Participation in Treaties and Levels of Consent
Consent involves multiple stages or levels; Fisher (1981) distinguishes between

first order and second order compliance. According to Fisher (1981) first order
compliance refers to the observance of substantive rules often embodied in
international treaties, and second order compliance refers to observance of
authoritative decisions by international organizations such as the United Nations
Security Council Resolution, dispute settlement directives of the GATT/WTO,
and the rulings of the International Court of Justice (ICJ). Unlike Fisher who
distinguishes compliance as a function of types of international law; in this
book consent with treaties is understood as ratification. The first level of consent
consists of signing the treaty (the starting point of legal consent); the second level
involves ratification of the treaty (formal consent involving domestic institutions
of the state, at which point the treaty comes into legal force for the consenting
state); and the third level of consent consists of post-ratification implementation
(the state not only accepts the treaty, but meets the true intent of the treaty). Once
a treaty is negotiated and the language agreed upon, it is opened for signature and
ratification; states have the following options: (1) affix signature, but not ratify; (2)
sign and ratify (a state can directly ratify or accede without signature); (3) ratify
with or without reservations, understandings, declarations, and objections; (4) opt
out of the treaty by not signing or ratifying; and (5) implement and fully comply
with the treaty after signature and ratification.
States can consent to treaties through (a) signature, (b) ratification, (c) accession,
and (d) exchange of instruments. Consent through signature is allowed under
the provisions of Article 12 of the Vienna Convention if the negotiating states
agree that signature should have the same legal effect as ratification. Exchange of
instruments generally occurs in the bilateral context primarily involving executive
agreements that do not require legislative approval or for which the legislature has
given pre-approval. Accession is the method by which a state becomes a party to
a treaty if the signature was restricted to the negotiating states and if the deadline
to sign the treaty has expired (Shaw 2003, 820). In the post-Second World War
period, signature is regarded as a first step towards full participation and does not
carry the same legal weight as ratification.
Consent by ratification is the most commonly practiced form of legal acceptance
of multilateral treaties. The ratification process deviates significantly from state to
state, but the primary purpose behind ratification is to ensure that the proper authorities
at the domestic level evaluate the agreement signed by the legal representative of a
state, such as the ambassador to the United Nations, so as to ensure that they have not
exceeded the authority vested in them by the state (Shaw 2003, 819). In democracies
consent by ratification typically involves approval of a treaty by the constitutional
powers of a state such as the Parliament, Congress or other such legislative body that
represents the power of the people. At the domestic level ratification is an institutional
check to safeguard that the head of the state (president or prime minister) or the
executive branch does not surpass their authority. Ratification has also emerged as
a measure of public opinion; it is a referendum on state policy and an opportunity
for the citizens to guarantee that the executive authority reflects the majority
sentiments and the national interests of the country (Chayes and Chayes 1995, 6).
From an international legal standpoint, ratification is a binding act that ensures that
a state will honor its treaty commitments. In an enforcement deficient international
system, a states’ legal assurance that it will honor its treaty obligations—pacta sunt
servanda—is the primary defense against noncompliance. Since ratification has
emerged as a decisive measure of state participation in international agreements, the
focus of the analysis will be exclusively on ratification.
The intent of a treaty is to amend the policies of a state in a particular issue
area or change its behavior. It is assumed that once a state consents to a treaty that
it will be implemented, as states are obliged to do; however, that is not always
the case in practice. The process of treaty acceptance is peppered with legal
flexibility that allows a state significant leeway in giving consent. A state can sign
a treaty and still not comply with the treaty because the signature is not legally
equivalent to ratification. By affixing its signature on a treaty a state indicates that
it is in agreement with the identified norms, but signing is not a legally binding
act; hence, compliance cannot be expected immediately after signature. Signatory
states do not have to acquiesce to verification and on-site inspections or submit
compliance and implementation reports to demonstrate that they are complying
or taking all the necessary steps towards compliance. Signatory states nonetheless
cannot violate the treaty norms even though their signature does not legally bind
them because signing binds the state into responsible behavior. The advantage
of signature without ratification is that signatory states can enjoy the benefits of
international legitimacy and appear as cooperative members to the international
community without subjecting themselves to the intrusiveness of post-ratification
implementation expectations. Signature is a step towards ratification; it is a strategy
to secure time to win over potential domestic opponents, secure promises of

rewards from other states, and carefully examine treaty provisions before agreeing
to ratify. Domestic politics in the form of interest group resistance, bureaucratic
inaction, and leadership change could explain some of the delays in ratification;
but in many instances, signature is the end point of participation.
A state might be unwilling to proceed beyond the signature stage because it
might not want to limit itself by entering binding legal obligations or it might have
no intention of ratifying the treaty. The United States was one of the original parties
to the Genocide Convention. President Harry S. Truman signed the convention in
1948, but the United States Senate did not ratify the treaty until 1986 and President
Ronald Reagan signed a bill authorizing ratification on November 4 1988. This
40-year time gap from signature to ratification was not necessarily because the
United States was opposed to the treaty provisions and did not want to meet its
treaty obligations; the delay was largely because of opposition to certain language
in the treaty and also because the Genocide Convention became entangled in a
series of domestic political disputes between the legislative and the executive
branch of the government over the limits of presidential powers. Alternatively,
a state might utilize the decision to ratify as a negotiation tool or as part of a
grand bargain to gain political or economic advantages. There was an expectation
that China might ratify the International Civil and Political Rights Convention to
coincide with the start of the Beijing Olympics in 2008, but this never transpired.
A state can choose not to comply or ignore a treaty in numerous ways. It can
sign and ratify a treaty, and then attach innumerable reservations so that it waters
down the key provisions of the treaty and significantly lessens the legal impact.
By raising objections or by attaching reservations and declarations to portions
of the treaty, states seek to exempt themselves from specific requirements that
they find objectionable while claiming to be in overall consent with the treaty.
Islamic nations routinely reject international laws inscribed in human rights
treaties that concern women’s rights in specific areas, civil and political liberties,
religious tolerance, prohibition of torture and reliance on cruel and unusual
punishment by claiming that international treaty laws are in direct contradiction
to Islamic Sharia law. In the area of human rights, states rely on two basic forms
of defense—cultural relativism and state sovereignty—to explain their resistance.
Attaching reservations, understandings, declarations, objections, and the selective
application of a treaty significantly reduces its effectiveness because the intended
purpose might never come into legal force; signature and ratification become mere
symbolic acts of formal obedience. States sometimes engage in the symbolic act of
formal participation (ratification) either as a consequence of contradictory domestic
and international pressures, which simultaneously pushes and pulls a state towards
treaty participation, but prevents the state from fully complying with the treaty.
Sometimes, states join a treaty because of the belief that it is the right thing to
do, that is, there is normative convergence between domestic and international
norms. States also enter treaty regimes because it is consistent with the “script of
modernity” or “out of feelings of necessity” (Diehl 2002–2003; Krasner 1999).
Mostly states that sign treaties, but do not ratify, want to appear as cooperative
members and enjoy the potential benefits that might accrue from becoming a
signatory to a treaty without being burdened with onerous compliance requirements
that come with ratification. States also engage in procedural compliance in which
a state can sign/ratify and even incorporate the treaty norms into its domestic
legal system and submit periodic compliance reports, and still fail to meet the
true intent of the treaty—a situation described as procedural compliance—either
as a function of deliberate policy or because it lacks the necessary institutional or
financial capacity to meet the treaty obligations (Weiss and Jacobson 1998).
Resistance to Participation in Treaties
Willful disobedience or blatant disregard is somewhat easy to identify, but

invariably resistance is much more complicated. The challenge is in identifying
and evaluating the varying levels of resistance and participation. Often treaty
arrangements are deliberately structured to permit states a variety of participation
mechanisms to increase inclusiveness with the treaty instrument by allowing states
to attach reservations and objections to a treaty and provide national courts of the
ratifying states wide latitude in the interpretation of international law (Redgwell
1997). Inclusiveness and increasing the appeal of the norms are the basic objective
of a treaty. As a consequence, international law of treaties permits varieties of
participation. Managing opposition to treaties is pursued through diplomatic moral
suasion, international pressure, naming and shaming, and sanctions and rewards.
So is resistance a function of poor institutional design, dearth of incentives, and
lack of enforcement or, does a state have legitimate reasons for its unwillingness
to enter a treaty? Is the American opposition to the global climate change treaty
different from Rwanda’s failure to practice the principles enshrined in the Genocide
Convention even after ratification? Are Iran and North Korea’s refusal to comply
with the nuclear non-proliferation regimes analogous to India and Pakistan’s
violation of norms against nuclear testing? In the case of Rwanda, the genocide
regime was simply not robust enough to prevent genocide from happening and
the enforcement capacity of the regime is deeply deficient. Put another way, the
social forces that precipitated the act of genocide within Rwanda was substantially
stronger compared to the normative and institutional capacity of the genocide
regime. Rwandan citizens simply failed to internalize the norms against genocide.
The United Nations Security Council was unwilling to use military force to prevent
the genocide of Tutsis by the Hutu majority. Rwanda simply did not have the
domestic wherewithal, namely robust domestic institutions, to comply with the
requirements of the genocide convention.
While Iran and North Korea’s violation of the Nuclear Non-Proliferation
Treaties are in many ways blatant because they not only consented, but they
also received substantial monetary and technical assistance to fulfill their treaty
obligations and remain as non-nuclear weapons states. Nevertheless, both North
Korea and Iran have chosen to deliberately violate the terms of their agreement.
India and Pakistan’s decision to conduct retaliatory nuclear tests in May 1998
punched a hole through the non-proliferation regimes, but it created a different
sort of problem. Both India and Pakistan have neither signed nor ratified any of
the major non-proliferation conventions to date. So does the 1998 nuclear tests
deliberately violate the norms of the nuclear non-proliferation and the test ban
treaty? Although India and Pakistan did not formally breach the treaty because they
are non-signatories, one could argue that their behavior is no different from Iran
and North Korea. Pakistan and India’s action substantially weakened the norms
against nuclear testing by demonstrating some of the intrinsic weakness of the
non-proliferation regimes. By staying outside the bounds of the non-proliferation
regimes, India and Pakistan were able to flagrantly violate treaty norms. One
could surmise that if they had ratified the non-proliferation treaties, they would
have come under the jurisdiction of the NPT regime and it would have been more
difficult for them to conduct nuclear tests. The congruence of international and
South Asian regional politics are such that the security threat posed by India and
Pakistan was interpreted differently by the United Nations Security Council.
After significant initial condemnation and sanctions, both India and Pakistan were
re-accommodated into the international community because of changes wrought
by the 9/11 terrorist attacks on the United States.
The binary logic of treaty acceptance and rejection does not inform us whether
the support for a treaty is strong or weak; whether a state is willing to comply
with a treaty; and how tolerant the compliant states are when other participants
and non-participants disregard treaty norms (Diehl 2002–2003). Domestic politics
might prevent participation with a treaty. Some states might take advantage of
the flaws in the treaty to escape its obligations. If a treaty is weak, with a poor
sanctioning mechanism and enforcement capacity, regime managers can do very
little but persuade other states and international organizations to influence the
behavior of the non-participants. Analogously, impoverished and unstable states
may not be able to effectively participate or comply with a treaty because of
a lack of resources and weak institutional capacity (Chayes and Chayes 1995,
113). Nevertheless, the desire to appear as sovereign equal of other states, and
gain the benefits of legitimacy that accrues from international cooperation, might
motivate unprepared states to ratify without possessing the capacity for effective
participation. A state’s decision to participate or resist depends largely on its
domestic political impulses and these domestic political interests differ widely as
a function of political structure and social norms. So the indexes of participation
measured using signature and ratification data may not reveal all the complexities.
Traditional modes of coding treaty acceptance using a simple binary logic do
not completely capture the range of behavior that lies between participation and
resistance (Diehl 2002–2003). To circumvent the problem of binary logic of treaty
acceptance and rejection, the following questions need to be asked: (a) Has the
state signed or ratified the treaty? If so, when? (b) Is the state meeting its treaty
obligations by implementing and complying with the treaty norms?
Domestic Political Structure as a Source of Participation and Resistance
Domestic political approaches to international cooperation present an interesting

amalgam of different theoretical approaches. The central distinction of the
domestic political approach is that it locates the explanation for participation and
resistance to multilateral agreements at the domestic level (Jacobsen 1996; Milner
1997). Put another way, domestic political theories do not regard system level
studies that seek to examine the effect of power, interests, institutions, incentives,
and norms on state behavior as capable of generating complete explanations
for variations in the policy actions of individual states. It is difficult to deduce
consistent explanations for differences in the public policies of individual states
based on structural characteristics of the international system. The focus of
domestic political studies on international cooperation has been on the interaction
of power, interests, institutions, incentives, and norms within the domestic
political arena, and its impact on a state’s external policies. According to this
approach, the final outcome—cooperation or non-cooperation—depends on the
domestic political organization and the dominant internal social norms. Politics
within parliamentary and presidential democracies, democracies with monarchial
heritage, democracies with two party systems, and democracies with multiparty
systems differ significantly.
When states formally enter multilateral treaties they not only influence the
behavior of other states to address a common problem, but they also in effect
curb their own behavior; participation is about controlling, and it also about being
controlled. There are political, monetary, and sovereignty costs associated both
with participation and resistance to multilateral organizations and treaties. This is
readily evident to many states that choose not to enter some treaties because such
participation would indeed constrain the scope of their domestic and international
policies. By disengaging, states choose to carve out political space to draft
policies and engage in actions that are not subject to the jurisdiction of external
organizations and actors.
Domestic political compulsions not only vary among democracies, but it
significantly varies between democracies and non-democracies. Non-democratic
politics range from totalitarianism as it was practiced in Nazi Germany, the
former Soviet Union and its East European satellite states, such as Albania and
East Germany, to dictatorships as seen in North Korea, Cuba, and Myanmar to
soft authoritarianism in Singapore and a modified version of it (development
authoritarianism) as it is practiced in China today. In totalitarian societies, every
aspect of private and public life of its citizens is completely dominated and controlled
by the state (Arendt 1964). Or as Hans Buchheim (1968, 14) puts it, “totalitarian
rule attempts to encompass the whole person, the substance and spontaneity” of
their existence, even their conscience. The state becomes completely dominant in
every aspect of social, political, and economic life in totalitarian systems, whereas
in dictatorships and authoritarian regimes there is significant latitude granted in
some aspects of economic, social, and religious sphere, but no political challenge
to the ruling regime is permitted (Roy 1994). Totalitarian state, unlike other types
of non-democratic states, do not “acknowledge the primacy of the society over
the state as an area of freedom” (Hein 1968, 14). Instead totalitarianism seeks to
deliberately interfere in the social sphere and reconstruct society according to its
grand plan and overarching ideological scheme, as exemplified by the policies
of Lenin and Stalin in the former Soviet Union. Red Khmer of Cambodia, led
by Pol Pot killed 1.7 million people from 1975 to 1978, sought to establish a
revolutionary socialist utopia inspired by Maoism.
To achieve its ambition of transforming the entire citizenry of Cambodia into
a massive peasant dominated agrarian cooperative, the totalitarian and murderous
regime of Pol Pot liquidated intellectuals, government officials, urbanities, ethnic
minorities, and other individuals corrupted or tainted by foreignness. Much like
Stalin, Hitler, and Mao, the Red Khmer regime of Pol Pot sought a complete
transformation of Cambodia society, culture, and government (Chandler 2000).
North Korea’s version of totalitarianism is based on the ideology of Juche or self-
reliance. Introduced by Kim Il-Sung and reinforced by his son Kim Jong-il, the
North Korean state seeks absolute control over every aspect of political, economic,
and social life. Afghanistan under the Taliban (1996–2001) had created a society,
however transient, guided by radical and often a misinterpreted translation of
Islamic religious texts, and based on a draconian system of laws that violated
every basic tenet of universal human rights (Nojumi 2002). Hannah Arendt (1964)
argued that the key difference between an authoritarian and a totalitarian system is
that authoritarianism merely aims to limit freedoms, whereas totalitarianism wants
to completely abolish freedom.
Institutional dissimilarities and varying ideological motivations influence
decision-making processes among non-democracies in different ways. From
the similarities in the structural characteristics of non-democratic regimes it is
evident that deep ideological orientations, namely religious theology, radical
communist ideology, and right wing revolutionary ideals influence their domestic
and international policies. The theocratic regime in Shia Iran and the monarchist
state of Saudi Arabia, carefully police both the private and public sphere through
the use of traditional methods of terror and intimidation (religious police) and
modern methods of electronic surveillance (monitoring the Internet and cell phone
conversations) to suppress dissent and impose the will of the state on society
(Fathi 2002). Norms such as women’s right to participate in political life, gender
equality, freedom in the choice of attire, spread of foreign culture, music, and
entertainment through the different media outlets are seen as corrupting influences
in Iran and Saudi Arabia (Khazen 1999; Wood 2002). These states build elaborate
mechanisms to restrict, censor, and limit the infiltration of such foreign values.
Liberal authoritarian regimes, such as South Korea (1961–1988) did not view
Western social values, foreign media, entertainment, and culture, or women’s
clothing choices as necessarily troublesome, but it did not tolerate any formal
political challenge to the ruling junta, until the eventual collapse of authoritarianism.
Post-Mao authoritarian China encourages active commercialism, sophisticated
consumer culture, Western-style capitalism, and enormous personal freedoms.

But, the Chinese Communist Party considers formal political organization or mass
political protest generated by labor unions, student groups, peasants, and religious
organizations to be deeply threatening (Snoddy 2002). In China, the state is willing
to even completely reconfigure the Maoist–Marxist ideology to allow unfettered
capitalism to thrive, but, views the emergence of organized religion, whether
Protestant or Catholic churches, Buddhist temples, indigenous Chinese religions
based on Confucian ideals, ancestor worship, and meditation groups, such as the
Falun Gong, to be exceedingly politically threatening unless they are controlled
by the government (Kindopp and Hamrin 2003). The critical difference here is
that South Korea (1961–1988) did not necessarily see organized religion as a
threat; but to the Chinese government, organized religion is considered disruptive
and divisive because it presents a challenge to the authority of the Communist
Party (Saich 2001). In the case of Saudi Arabia (Sunni Islam) and Iran (Shia
Islam) no other religion is to be practiced within the borders of these countries,
attempts at proselytization and celebration of other religions are considered to be
serious crimes that are subject to capital punishment (United States Department
of State 2002).
A common trait shared by non-democratic regimes, whether totalitarian or
authoritarian, is that none of them tolerate any criticism of the ruling government,
its policies or its leaders. Non-democracies share some similar characteristics,
such as (1) extraordinary concentration of power among a select few individuals in
the government; (2) decisions are made in secrecy and the ruling group is insulated
from popular pressures or other public opinion; (3) the state periodically resorts to
intimidation, force, coercion, and terror to suppress any dissent real or imagined; and
(4) the state does not allow the development of an independent, fair, and functional
judicial system that can operate free from political interferences. In addition, non-
democracies, irrespective of whether they are governed by military dictatorship,
hereditary monarchy, religious personalities, or dominated by a single party with
a revolutionary, communist or fascist ideology are typically characterized by lack
of; (1) regular, periodic, and peaceful change of political power; (2) fair and free
competitive elections and the extension of franchise to every eligible citizen of the
country; (3) civil, religious, and social liberties; and (4) freedom of speech and
expression. Authoritarian states perceive political mobilization and pluralism to be
so dangerous that they viciously suppress it. China, Egypt, Iran, Myanmar, North
Korea, Pakistan, Saudi Arabia, and Syria routinely censor foreign television news,
block Internet search engines, and restrict access to print media to prevent the flow
of any news that may be deemed critical of the government from both entering or
leaving the country (Kahn 2002; Zittarin and Edelman 2002). Non-democratic
states seek to insulate themselves from external and internal influences to ensure
their political survival.
Identifying Domestic Social Norms
“Values, cultures, and institutions pervasively influence how states define their
interests,” particularly, “states with similar cultures and institutions will share
common interests” (Huntington 1993, 34). Domestic cultural values and social
norms can be discerned by generally probing the social and historical structures,
the value structures, and by examining the written constitution and national
ideology of a state. Deeply held cultural and religious beliefs can present significant
hurdles to a state’s participation in multilateral regimes, especially human rights
regimes. As Huntington (1993) points out, cultures can change over time and their
impact on politics and economics might vary from one period to another, but the
economic and political development of almost all nations are culturally rooted.
Arts, literature, religious practices, and the structure of the legal system can
provide valuable clues to the values and social norms of a society, and how they
affect a state’s attitude towards external political pressure. We can deduce with the
assistance of existing materials that India is a predominantly Hindu nation, with
ancient traditions, cultural practices, and religious belief systems that influence
the national ideology and the public policies generated in India. The challenge lies
in identifying the differential impact of religious beliefs, traditions, and cultural
values on public policymaking; it requires determining how the social norms
within Hindu India, Islamic Iran, Communist or Confucian China, predominantly
Protestant United States, and Catholic South America, affect the attitudes of these
states towards multilateral treaties.
Norm identification is concerned with the issue of how do we know what
is a norm and what is not a norm in different societies. If there are multiple
norms surrounding an issue how do we determine what is the norm that ideally
characterizes a nation, and once a norm is identified, how do we trace its influence,
especially, on external policies of a country? When speaking of norms, the reference
is to broadly discussed opinions within a country towards issues such as capital
punishment and human rights, the value placed on environmental protection, the
importance accorded to weapons of mass destruction for national security reasons,
and the affinity towards economic ideologies such as capitalism and socialism.
This information can be discerned by studying the media, political actions, public
documents, historical sources, and policy pronouncements. For instance, the United
States is one of the few advanced democracies in which capital punishment is still
practiced; the Organization for Economic Cooperation and Development (OECD)
countries, which includes the European Union, Australia, and Canada no longer
sanction capital punishment. In the United States, however, the situation is more
complex; 38 out of the 50 states, including the federal government impose capital
punishment. The use of capital punishment is particularly high among certain
states, such as Texas, within the United States. However, there is widespread
opposition to capital punishment both among the judicial community and among
other sections of American society. Interestingly, different religious organizations
in the United States are aligned both for and against capital punishment.
Norms, as many scholars have pointed out, are not “ideals” that are separate from
politics; norms are inevitably entangled with politics because norms by definition
are “standards of behavior” that involve a sense of obligation, expectation, a sense
of duty or a course of action (Keohane 1984, 57). However, why some norms are
successful in influencing domestic policymaking and why others do not indicate
how a particular country accommodates contradictory normative influences
that are generated both within a country and those that are channeled through
international institutions (Drezner 2002, 7). To understand how norms influence
state behavior it is important to view norms through the perspective of actors
within states. In democratic societies, public policies are affected by the issue
platforms of politicians, and public attitudes towards domestic and international
policies that are translated through governmental institutions and the media,
which include official government publications, legislative hearings, government
reports, interest groups pamphlets, academic publications, newspapers, and/or
mass media reports. Since non-democracies lack transparency, because the state
agencies control the flow of information, government sources in non-democracies
are highly susceptible to bias and manipulation. Information about policy choices
and attitudes towards treaty regimes in non-democracies can only be discerned
from the United Nations and other such international organizations and trusted
non-governmental organizations.
Cross-National Analysis of Treaty Ratification
Cross-national comparative analysis or state participation in treaties will

center on comparing democracies and non-democracies to discern patterns
of participation with three different multilateral treaty areas—environment,
human rights, and weapons of mass destruction. Scores on democracy and non-
democracy are extracted from the POLITY IV dataset, which measures the
regulation of executive recruitment, openness of executive recruitment, and
the overall competitiveness of a polity (Gurr 1997). Data from the POLITY
IV dataset will be matched against ratification data extracted from the United
Nations treaty database to find out which domestic regime-type (democracy or
non-democracy) has a greater propensity to participate in multilateral treaties
measured as a function of ratification. The coding scheme will select only major
multilateral treaties that address important collective action issues. This is done
to simplify the United Nation’s treaty classification system and examine if each
issue area has any effect on a state’s decision to resist or participate. Results
from the analysis will disclose which domestic regime type—democracy or
non-democracy—has a greater or lesser inclination to participate in multilateral
treaties; the goal is to identify broad patterns of treaty participation as a function
of domestic regime-type. The treaty dataset encompasses three major multilateral
policy areas: non-proliferation of weapons of mass destruction or arms control;
environment or ecological protection; and human rights. Analysis concentrates
on these three substantive areas because of their intrinsic importance, high degree
of interdependency, and interconnectedness across multiple treaties. Preventing
the spread of weapons of mass destruction, protecting the environment, and
restraining systematic violations of human rights presents a collective action
challenge that requires the cooperation of all United Nation member states.
Multilateral Weapons of Mass Destruction Agreements
Proliferation of weapons of mass destruction is considered to be one of the most

serious international security threats. Although the disintegration of the Soviet
Union and the end of Cold War has diminished the possibility of a full-scale
nuclear combat between the United States and the former Soviet Union, the
threat from WMD proliferation has assumed new forms and dimensions. Nuclear,
biological, and chemical weapons present two types of risks in the post-Cold War
era: more nations are likely to acquire WMD and the possibility that terrorist and
sub-national groups might acquire WMD have dramatically increased. Nuclear
tests by India, Pakistan, and North Korea and the development of different types
of WMD programs by North Korea and Iran, the sale of ballistic missiles, and
the transfer of dual-use technology by China, North Korea, and Pakistan indicate
that the threat potential from WMD is high (Cirincione et al. 2005; Lynn-Jones
and Miller 1995). Restricting and managing the existing stockpiles of WMD and
limiting missile and technology proliferation is a major problem that is deeply
coupled with national interests and state sovereignty (Mistry 2003). Dealing with
WMD proliferation requires cooperative multilateral solutions, which include a
combination of threats, coercion, sanctions, and deterrence strategies, but without
the cooperation of participating states the net danger presented by WMD is unlikely
to significantly decrease.
Containing the spread of WMD has largely been pursued through multilateral
treaty arrangements. These treaties provide an effective framework for preventing
nuclear proliferation (NPT), maintaining the moratorium on nuclear testing
(CTBT), constraining missile proliferation (MTCR), halting production of fissile
materials (FMCT), and destroying chemical and biological weapons (CWC and
BWC). Despite these multilateral treaty efforts, weapons of mass destruction have
spread rapidly to the extent that it is possible for non-state actors to acquire them.
Many nations after signing and ratifying the multilateral treaties have violated
the provisions and engaged in proliferation activities. By analyzing the patterns
of ratification of WMD treaties by democracies and non-democracies, this
study hopes to identify broad linkages between domestic political structure and
participation in WMD regimes.
Global Environmental Treaties
The recognition that environmental change in one area of the earth could affect
another part is tied to the conceptualization of the earth as an integrated biosphere.
A biosphere is described as an area or domain of life in which all life and non-
life forms are permanently and continuously linked (Caldwell 1984, 22). Humans
are an integral part of the biosphere; human activity (agriculture and industrial
activities, and development of large-scale human societies) in one area of the earth
has the potential to produce environmental change in another part of the world.
Internationalization of environmental issues began with the popularization of the
scientific concept of the biosphere, which was accompanied by growing realization
that our environmental system is highly interconnected and interdependent. Since
the mid-1960s there has been a steady increase in the number of environmental
regimes to deal with what Garett Hardin termed as the “tragedy of the commons”
problem (Deudney and Matthew 1999). More than four hundred multilateral
treaties have been adopted to address multilateral environmental problems. For
the purposes of this chapter the focus will be on 20 environmental treaties that are
concerned with critical issues, such as global climate change, stratospheric ozone
depletion, conservation of biological diversity, oceans and their living resources,
deforestation, land use, land cover change, and desertification representing the
most salient environmental issues.
Multilateral Human Rights Treaties
International human rights regimes have primarily evolved through the UN-led
treaty-based system of norm diffusion and advocacy group campaign. Multilateral
treaties have expanded the human rights agenda to create a comprehensive agenda
comprising major human rights issues. This system has produced numerous
covenants, protocols, declarations, and world conferences that have identified a
wide array of rules, principles, and norms that determine what are acceptable and
unacceptable human rights policies. From 1945 to 2002 a total of 128 major human
rights treaties were negotiated, that averages to little over two treaties every year or
20 treaties every decade. The United Nations has identified more than 25 human
rights treaty areas including optional protocols and amendments that are pivotal to
the multilateral human rights system. Human rights conventions cover a complex
array of issues such as the right to self-determination, rights of women, rights of
the child, prevention of all forms of racial discrimination, protection of minorities,
prevention of torture and illegal detention, protection of freedom of association,
and international humanitarian law. Collectively these treaties define the standards
for appropriate behavior in the administration of justice, treatment of prisoners,
rules of conduct for international warfare, and humanitarian intervention.
Based on the author’s calculations.

Evolution of human rights treaties has not been a smooth, gradual, and steady
process, which then automatically culminated in the codification of norms into
international treaties. Regime development has been and still is fraught with deep
political fissures, failures, and unnerving silence while egregious violations occur
in different parts of the world. The actual implementation of human rights norms
is a highly contested process. This is because the task of implementing multilateral
human rights treaties ultimately abides with the participating states and they
interpret human rights treaties in ways that are consistent with their national laws.
States have also brazenly ignored international treaties that they have ratified, and
in some instances they have chosen to selectively interpret human rights laws
to meet domestic political compulsions. Implementation of human rights treaties
has suffered due to inconsistent interpretation, poor implementation, and gross
violation. This has led many commentators, policymakers, and some scholars to
suggest that the global human rights regime represents a hortatory ideal, which
will always remain subordinate to state interests. Hence, the human rights regime
and cacophony of moral voices surrounding them are dismissed as nothing more
than covenants without swords.
Lack of credible enforcement capacity is viewed as a fundamental structural
problem. Human rights are markedly different from the environment and weapons
of mass destruction because human rights abuses in one country do not affect
the welfare of other states as climate change does. Global warming caused by
excessive emission of carbon dioxide (CO2) has direct environmental consequences
not only for the emitting country, but it has implications for the entire planetary
ecosystem. Global warming is a trans-border pollution issue and it represents a
collective action problem. Systematic violation of human rights by one nation
does not have a similar direct effect on other states, although neighboring states
could be affected from the spillover effects of large-scale violence as witnessed
in Rwanda during the 1994 genocide and the current crisis in the Democratic
Republic of Congo. Human rights have strong deontological value and states that
violate human rights might be subject to moral opprobrium, face international
boycott, and sanctions. In the cross-national participation analysis, attention will
be on major human rights issues, such as the international bill of human rights,
prevention of all forms of discrimination, rights of women, human rights in the
administration of justice, and freedom of information and association. Each issue
area contains a set of multiple treaties that aim at comprehensively addressing the
principal human rights concerns.
South Africa was ostracized for its apartheid policies, and it was banned from
participating in international sports and other cultural events.
Chapter 3
State Participation in Multilateral
Environmental and Security Regimes
The purpose of this chapter is to analyze patterns of state participation with

multilateral conventions. Specifically, this chapter seeks to trace discernable
patterns of association between domestic regime-type (that is, democracy or non-
democracy) and state participation in multilateral treaties in two different issue
areas—environment and arms control—to identify whether domestic regime-type
is positively associated with a state’s cooperative behavior. This chapter is divided
into two broad sections; the first section provides an extensive overview of treaties
followed by a discussion of the data on domestic regime-type, which is gathered
from the POLITY IV dataset. The second section is divided into two parts in
which the patterns of ratification by democracies and non-democracies vis-à-
vis environmental and arms control treaties are analyzed. Chapter 4 is entirely
devoted to the analysis of state participation of democracies and non-democracies
in human rights conventions.
The United Nations treaty classification method categorizes the voluminous
body of multilateral treaties into 28 chapters, which covers wide ranges of areas,
such as trade in commodities, educational and cultural matters, status of women,
human rights, traffic in persons, law of seas, freedom of information, disarmament
and management of weapons of mass destruction, and environment and ecological
sustenance. Some of the subject areas significantly overlap multiple treaty
areas listed under the 28 chapters of the United Nations Treaty Series (UNTS).
For the purposes of this analysis, the issue of refugee rights, stateless persons,
women’s rights, and traffic in persons are included under the rubric of human
rights because each of these topics has an explicit human rights dimension.
Similarly, the United Nations Convention on the Law of Sea (UNCLOS) is
included under the environmental treaties category because of its implications
for international property rights, demarcation of territorial waters, environment
law, and management of environmental disasters. In the area of arms control, the
focus will be on non-proliferation of nuclear, chemical, and biological weapons
and on the prohibition of certain types of advanced conventional weapons such as
blinding lasers, landmines, and booby traps that are capable of causing excessive
and indiscriminate damage to human and animal life.
Multilateral Treaties
A treaty is generally characterized as a “solemn and formal international agreement,

governed by international law, between two or more entities capable of concluding
such an instrument” (United Nations 1997, xiii). All international agreements
reached between or among the United Nations member states and authorized
international organizations are registered with the United Nations Treaty Series
(UNTS) and published as mandated by Article 102 of the United Nations Charter
(United Nations Treaty Collection 2001, 1). Presently, more than 500 international
treaties have been deposited with the United Nations Secretariat. The terms
“treaty” and “international agreement,” which are referred to in Article 102 of the
United Nations Charter represents a wide array of international legal instruments.
These international legal agreements, which carry diverse nomenclature such
as “statutes,” “covenants,” “accords,” “protocols,” and “conventions” establish
the rights and obligations of the participating states and are a reflection of the
objectives and the responsibilities of the said agreement among state parties.
A treaty must be entered in writing and it is generally governed by the
conventions of international law identified in the 1969 and 1986 Vienna Convention
on the Law of Treaties. According to Articles 26 and 27 of the 1969 Vienna
Convention, a treaty is binding on the states that accept it (pacta sunt servanda),
which imposes a set of legal obligations, rights, and duties on the contracting
parties and only states recognized by the United Nations and the international
community and certain international organizations are authorized to become
parties to treaties (United Nations Treaty Collection 2001, 2). State consent to
a treaty is generally demonstrated through ratification, accession, acceptance,
approval and even signature if state parties agree to that mode of consent as per the
provisions of Article 12 of the Vienna Convention on the Law of Treaties. United
Nations Convention on the Law of Sea (UNCLOS) is an example of one such
binding treaty. This convention “has to be taken as a whole,” it cannot be bartered
or its legal validity and legitimacy cannot be watered down by the participating
states (UNCLOS 2002, 1). UNCLOS seeks a much higher degree of cooperation
as opposed to an international declaration, such as the 1992 Rio Declaration
on Environment and Development. Although declarations are considered to be
sources of international law and they can be specifically tailored to be binding
upon the agreeing parties, they do not carry the same legal weight as a treaty,
which requires signature and formal ratification.
Participation in an international treaty is a definitive legal act; detailed procedures

govern the deposit of international treaties with the United Nations. For more information
see United Nations, United Nations Treaty Section—Treaty Handbook (UN Press, New
York, 2001).
According to the United Nations Treaty Reference Guide, the term convention and
treaty are used synonymously in a generic sense; both terms are employed to describe a
multilateral agreement with more than three state parties.
State Participation in Multilateral Environmental and Security Regimes 55
The Universal Declaration for Human Rights (UDHR) is an example of

ideals or a collection of norms that all nations are expected to aspire to achieve.
Declarations, however, could eventually lead to the negotiation of a binding
treaty. The United Nations General Assembly proclaimed the Declaration on the
Elimination of Discrimination Against Women in 1967, which eventually led to
the drafting of the Convention on the Elimination of all forms of Discrimination
against Women (CEDAW) in 1979. Declarations are not binding treaties; they
do not require formal signature or ratification and do not impose compliance
requirements on the state parties, whereas treaties require state parties to make
specific commitments. Treaty bodies might seek varying levels of cooperation
from participating states and accordingly it might devise legal instruments that
are obligatory rather than compulsory and binding. The World Trade Organization
(WTO) is an example of a treaty-based international organization that encourages
deep cooperation because it includes specific compliance, sanctioning, and dispute
resolution mechanisms.
Data on Domestic Polities
Data on domestic regime-type—democracy and non-democracy—is gathered

from the POLITY IV dataset (Marshall et al. 2006). The POLITY IV dataset
was used to identify the macro figures on the pace of global democratization and
calculate the total number of democracies and non-democracies because it gives
the most current information. A country’s regime-type is determined by relying
on “subjective codings of the competitiveness of political participation, the
openness and competitiveness of recruitment, and the level of constraints on the
chief executive” (Jaggers and Gurr 1995, 471). Although presently there are 192
countries that are officially recognized by the United Nations and accepted as a
member state, continuous time series data on regime change, regime stability, and
persistence of a particular regime-type are only available for 162 countries from
1800–2006. Continuous time series data on 30 countries are not available through
POLITY IV dataset; hence, the analysis is limited to 162 United Nations member
states. Even though the 30 countries not included in the POLITY IV dataset could
be ranked as democratic and non-democratic using other information, such as
Freedom House Data, to maintain the coherence of analysis these 30 states are
not formally included in this study. Since the focus is on post-Second World War
multilateral treaties negotiated through the auspices of the United Nations, only
data from 1945–2006 is drawn from the POLITY IV dataset. POLITY IV grades a
state’s domestic political system on a scale of zero to ten. A score of zero indicates
that there is complete lack of freedom (or no democracy) and a score of ten, which
Continuous time series data on political and civil liberties and political openness or
other indicators of democracy can be obtained from Freedom House (available online at:
http://www.freedomhouse.org/).
is the highest possible score, indicates that a country is completely free and enjoys
a wide range of civil and political liberties. Countries that score between zero and
three are coded as undemocratic, any country that scores between four and seven
is classified as partially free, and countries that score between eight and ten are
categorized as fully democratic.
Using this measurement scheme, a total of 71 democracies, 30 partially free
countries, and 55 non-democracies were identified as of 2006 (see Appendix I for
the list). Data on six countries (Afghanistan, Bosnia and Herzegovina, Ethiopia,
Iraq, Ivory Coast, and Somalia) were not available because these countries were
under military occupation, experiencing political transition or civil war, and in
some cases they do not have a functioning central government. A significant
advantage of using the POLITY dataset is that it provides continuous time series
data on domestic regime change, which allows tracking of transitions in domestic
polity of 162 United Nations member states. The POLITY dataset provides specific
dates of domestic regime transformation that would allow us to see whether a
state was democratic, partially free, or non-democratic when it ratified a treaty.
But the disadvantage of POLITY IV is that it provides data only on 162 states,
whereas according to the United Nations there are 192 recognized states in the
international system. POLITY IV undercounts the number of democracies because
data on many of the smaller island states such as St. Kitts and Nevis, Palau, Sao
Tome and Principe, San Marino, and Micronesia are not included in its database
(see Appendix II for the list 30 states).
Many of these island states and other smaller nations such as, Suriname and
Belize are categorized as democratic or as free according to the Freedom House
data on polities. Out of the 30 states that are not included in the POLITY IV
dataset, 27 are ranked as democratic by the Freedom House data, which ranks
countries as free and not free from 1973–2007 by focusing exclusively on political
and civil liberties (Freedom House 2007). However, in 30 cases, POLITY IV
and Freedom House differ in their rankings; for example, Bolivia and Guatemala
are classified as democratic in POLITY IV, but Freedom House classifies them
as partially free. Pooling these two datasets would increase the number of cases
available for analysis, but it would reduce the analytical coherence because these
two datasets are constructed using a different methodology and ranking systems.
From POLITY IV it can be determined that the highest concentration of
non-democracies (21) and the lowest number of democracies (7) are found
in Sub-Saharan Africa. The Middle East and North Africa account for 15 non-
democracies followed by nine in Asia-Pacific, five in Central Asia, two in South
Asia (Pakistan and Bhutan), two in Europe (Armenia and Belarus) and one in
South America (Cuba). In contrast, most of the democracies are clustered in
Europe (31), which includes both Western and Eastern Europe and some of the
former Soviet Republics, followed by the Americas (17) that stretches from the
northern tip of Canada to the southern coast of Chile. North and South America,
and East and Western Europe account for 70 percent of all the democracies in
the world. The Middle East and North Africa, Sub-Saharan Africa, and Central
Asia account for 75 percent of all non-democracies. Partially free countries, with
scores ranging from four to seven, are rather problematic because they cannot be
neatly classified as democratic or non-democratic. Colombia, Ecuador, Estonia,
Georgia, Honduras, Nepal and Ukraine are very close to being categorized as a
democracy with a score of seven; Malaysia, Nigeria, and Venezuela fall right in
the middle of the partially free category with a score of five. Half of the partially
free nations are from Sub-Saharan Africa; a number of them have transited from
non-democratic to partially free status, which is a positive development, but they
have not demonstrated all the characteristics of fully functional democratic state.
In this chapter, 22 countries are categorized as advanced democracies because
they have been continuously democratic for more than four decades since 1945 or
prior to that. These 22 democracies have experienced sustained democratic rule
for more than four decades and they have well-organized and effective democratic
institutions that are characterized by vibrant political competition, periodic change
in leadership, free press, and extensive protection of civil and political liberties.
Nineteen of these 22 democracies are members of the influential Organization
for Economic Cooperation and Development (OECD), which is an international
organization that seeks the promotion of market economy and democracy, and the
European Union. States making the list of 22 advanced democracies possess high
levels of economic development and they have assumed prominent leadership
positions in international bodies, including the United Nations Security Council,
International Monetary Fund (IMF), World Bank, and the North Atlantic Treaty
Organization (NATO). The group of 22 has pursued advancement of international
law through the creation of treaties encompassing diverse areas to address
complex transboundary issues. Besides the group of 22 advanced democracies,
there are 49 democracies that are included in this study that transited to democratic
governance between 1950–2006 in four separate waves. These 49 democracies
have not experienced more than five decades of uninterrupted democratic rule;
some states such as the Slovak Republic, Poland, and the Czech Republic
transitioned to democracy only in the 1990s, but they have already joined OECD
and the European Union.
When the process of decolonization started in the 1950s, the pace of
democratization was hampered by the Cold War and the splitting of United
Nations member states along north–south lines. During the four decades from
1950 to 1980, only 16 countries transited towards democratic rule. Interestingly
after the end of Cold War, that is, between 1990–2006, 32 countries became
democratic. Only Jamaica moved towards democracy in 1959 and in the 1960s,
four countries—Trinidad and Tobago (1962), Botswana (1968), Mauritius (1968),
and Venezuela (1969)—transited towards democracy, Venezuela has since moved
back into the partially free status in 1999. Four European states, Cyprus (1975),
Luxembourg is a democracy and has membership in the European Union and the
Organization for Economic Cooperation and Development (OCED), but it is not included in
the list of advanced democracies simply because POLITY IV does not provide any data.
Greece (1975), Portugal (1976), Spain (1978), and two other countries—Ecuador
(1979) and Papua New Guinea (1976)—became fully democratic during the
1970s, but Ecuador has also since reverted to partially free status. Four South
American countries—Argentina, Bolivia, Brazil, and Uruguay (1984)—two Asian
States—Philippines and South Korea—and Turkey switched to democratic rule
in the 1980s. Samuel Huntington (1991) characterized this democratization trend
as the third wave of democratization because the push towards democratization
occurred in three waves: 1828–1926 (first wave), 1943–1962 (second wave), and
1970–1989 (third wave). Recently, some scholars have pointed out that a fourth
wave of democratization began with the collapse of Communism and the end of
Cold War (McFaul 2002).
After the fall of the Berlin wall in 1989, Bulgaria (1990), Hungary (1990),
Poland (1990), Latvia (1991), Lithuania (1991), Slovenia (1991), the Czech
Republic (1993), and Slovakia (1993) transited towards democratic rule in Europe.
In South America, Chile (1990), Panama (1990), Nicaragua (1995), the Dominican
Republic (1996), and Guatemala (1996) shifted to democratic governance along
with Thailand (1991), Taiwan (1992), Mongolia (1993), Namibia (1994), and
South Africa (1994). In the present decade, the new millennium, another 16 states
transitioned to democratic governance, including many of the splintering republics
of former Yugoslavia (Macedonia 2004, Montenegro 2006, and Serbia 2006).
Thirty partially free countries—which includes Estonia, Georgia, the Russian
Federation, Ukraine in the Eurasian continent; Bangladesh, Nepal, and Sri Lanka
in South Asia; Colombia, Ecuador, El Salvador, and Venezuela in Latin America;
and Benin, Congo, Liberia, Madagascar, Sierra Leone, and Zambia—that are
experimenting with various forms of governance, but have not fully evolved
towards complete democratization; hence, they are treated as a separate category
for the purposes of participation analysis. Countries that are clearly demarcated as
a democracy and non-democracy are the primary analytic focus.
Multilateral Environmental Treaty Regimes
Environmental problems by definition are international in scope because their

causes and consequences are rarely contained within national boundaries.
International environmental law is one of the central mechanisms for managing
natural resources and their shared jurisdiction (DeGarmo 2004, 22). Multilateral
environmental treaties (MEAs) are the most common way of managing
environmental resources because they serve to communicate shared expectations
and offer a framework to coordinate and manage state action, and enhance public
support for the protection of natural resources and pollution abatement (DeGarmo
2004, 22). MEAs are utilized as a prevention and conservation mechanism, prior
For the purposes of this analysis and according to the UN, Taiwan is not recognized
as a state, and Thailand has been classified as a partially free state since 2006.
to the occurrence of personal injuries, exacerbation of an ecological problem, and

reverse the depletion of a valuable natural resource; they target a set of specific
problems produced by natural and human induced changes to the environment.
Pollution prevention and conservation is not the only purpose because MEAs also
strive to distribute the costs associated with clean-up and preservation equitably.
It is important to note that MEAs were established as a collective international
mechanism to confront common global challenges of environmental pollution and
degradation. Environmental treaties seek to regulate not only the behavior of the
participating states, but also seek to modify the behavior of a wide array of actors
including industrial enterprises, individuals, and other actors who may contribute
directly to pollution exacerbation (Victor et al. 1998, 2).
Multilateral environmental treaty-making has proceeded in two directions: a
one stop comprehensive approach or the popular two-step approach that evolves
from a framework convention to a treaty with binding commitments with particulars
detailed in a series of issue-specific protocols. The Law of Seas (UNCLOS) treaty
is an example of a comprehensive or all-encompassing agreement that regulates
navigational rights, territorial sea limits, defines the economic jurisdiction of states
over oceans, sets the legal status of the resources on the seabed that are beyond
the comprehension of national jurisdiction, provides innocent passage to ships
through narrow straits, governs conservation and management of living marine
resources, and protects the marine environment (UNCLOS 2002). Typically most
MEAs move from a framework convention to a fully binding treaty as exemplified
by the cases of ozone regulation and climate change conventions. This two-step
approach allows states to converge on broad commitments and agree on the science
behind the specified environmental problem and then negotiate precise agreements
outlining state responsibilities and a mechanism for pollution abatement.
Although the notion of environmental protection and conservation is as old
as human history, there is little disagreement among scholars of international
environmental history that the modern environmental movement began with the
1972 United Nations Conference on Human Environment (UNCHE) in Stockholm,
Sweden. Significance of the UNCHE conference is that it internationalized the
environmental problem and compelled states to assume collective responsibility
for their actions (DeGarmo 2004, 35). Since early 1970s, the number, scope,
and breadth of environmental treaties have proliferated and they have become
truly multilateral because of the growing realization that localized solutions
are ineffective in addressing issues that have complex and far-reaching global
implications. Meanwhile, the scale and diversity of environmental problems, such
as atmospheric pollution, urban sprawl, desertification, ecosystem destruction,
species loss, and climate change have grown considerably in size and complexity,
which has increased the need for global solutions (Hurrell and Kingsbury 1992).
Industrial pollution, climate change, acid rain, movement of hazardous materials,
and protection of endangered species require the cooperation of numerous state
parties because resources, such as the earth’s upper atmosphere and the oceans, are
common pool property over which no one state can claim exclusive sovereignty.
Degradation of common pool resources affects the environmental quality of

life of all member states that share such resources and no one state can singularly
prevent and rectify ecological damage that occurs through pollution and
overexploitation. Typically MEAs are designed as collective self-regulation and
management solutions to maintain and preserve common pool resources, reverse
centuries of ecological profligacy, and distribute the costs of pollution and clean-
up among member states. The incentive structure of the MEAs generally focuses
on environmental conservation and sustainable use of environmental resources so
that such resources are available continually to subsequent generations (DeSombre
2004, 76). Focus on sustainable consumption of environmental resources is not
without controversy because states would prefer to exercise ultimate sovereignty
over resources under their control and put selfish national interests first rather than
collective global environmental welfare. The anarchic structure of the modern
international system constrains the ability of environmental treaty regimes to
effectively regulate state behavior. Despite limits imposed by the anarchic
international structure, states have arrived together either voluntarily or motivated
by dire environmental consequences to develop collective self-regulation
mechanisms.
Table 3.1 Number of environmental treaties
Treaty Aggregation Institutions Years Range No. of Treaties*

UNEP—Multilateral Environmental Treaties 1946–2001 97
UNEP—Regional Environmental Treaties 1933–2003 145
ENTRI—Regional + Multilateral 1866–1999 464
Notes: UNEP—United Nations Environment Programme; ENTRI—Environmental

Treaties and Resource Indicators, Columbia University. *Based on the author’s data
compilation and calculation.
After the end of the Second World War, and particularly after the 1972 UNHCE
conference, environmental treaty development accelerated. However, calculating
the rate of development of MEAs is a bit challenging because of significant
discrepancies in the identification of treaties with environmental dimension and
difficulties in separating regional environmental treaties (REAs) from multilateral
environmental agreements (MEAs). Different agencies use different metrics, as
Regional Environmental Treaties (REA) can be regional multilateral where it

encompasses three or more states within a particular region or it can be merely bilateral
involving two states. Multilateral environmental treaties apply to all the 192 member states
of the United Nations and they confront problems that have true global implications.
a consequence the number of MEAs are either under or overestimated. According

to the United Nations Environment Programme (UNEP), which is one of the
authoritative global clearing houses for information on international environmental
law and policy and an intergovernmental environmental management organization,
97 multilateral environmental treaties have been introduced since the end of
the Second World War (see Table 3.1). If the data from regional environmental
conventions are included, 145 environmental agreements came into force from
1933 to 2001. Data from Environmental Treaties and Resource Indicators
(ENTRI) of Columbia University show that from 1866 to 1999, that is, over a 133-
year period, 464 regional and multilateral environmental treaties were adopted
(see Table 3.1). From 1945 to 1999 according to ENTRI data, 447 regional and
multilateral environmental treaties were introduced and in the previous 78-year
period (1866–1944) only 17 treaties came into operation. Despite the fact that
ENTRI data relies on a broad definition of environmental treaties and classifies a
variety of treaties as having an environmental component, which overestimates the
number of MEAs, there is no disputing that both UNEP and ENTRI concur that
the rate of environmental treaty-making increased speedily after the establishment
of the United Nations and then experienced another substantial acceleration after
the 1972 UNHCE Stockholm conference.
UNEP numbers on multilateral environmental treaties show that more than two-
thirds or 77 percent of the treaties were adopted after the 1972 UNHCE Stockholm
conference. During the five-decade period since the establishment of the United
Nations, 97 multilateral environmental treaties were negotiated according to UNEP
estimates and 280 treaties were adopted according to ENTRI count (see Table 3.1).
Several prominent treaties, such as the Conservation of Antarctic Seals, Convention
to Protect Endangered Species of Wild Fauna and Flora, Montreal Ozone Protocol,
and the Convention on Long-Range Transboundary Air Pollution Treaty (LRTAP)
were adopted because of the impetus provided by UNHCE. Similarly, the 1990s
also witnessed an explosive growth in environmental treaty development when
110 new environmental accords were introduced; several prominent treaties such
as the 1997 Kyoto Protocol on Global Climate Change, preceded by the 1994
United Nations Framework Convention on Climate Change (UNFCC), and in
1998 the Rotterdam Convention on the Prior Informed Consent (PIC) Procedure
for certain International Trade in Hazardous Chemicals and Pesticides.
Expeditious development in treaty-based international environmental law
resulted from increasing environmental consciousness and because of the efforts
of the United Nations Environment Programme (UNEP) and from the lobbying
and educational efforts of international and domestic NGOs, such as Greenpeace
Based on the author’s calculation; Susskind and colleagues (2002, xi) also quote
a similar number. Environmental Treaties and Resource Indicators (ENTRI) dataset of
the Center for International Earth Science Information Network (CIESIN) of Columbia
University which includes data on regional and bilateral data from 1868 to 1999, lists 464
environmental agreements.
International and the Nature Conservancy. The Convention on International Trade

in Endangered Species (CITES) came into effect because of the moral suasion
efforts of the International Union for Conservation of Nature (IUCN). During the
first year of the CITES’s operation the IUCN served as the informal secretariat for
the CITES convention and it still serves as the official secretariat for the Ramsar
Convention on Wetland Protection and Preservation of Waterfowl Habitat, which
came into force in 1971 (Curlier and Steiner 2002).
Choice of MEAs for Treaty Participation Analysis
Twenty multilateral environmental treaties, which include the four amendments to

the 1987 Montreal Ozone Protocol, are analyzed in this chapter; these 20 treaties
selected for analysis represent the most salient transboundary environmental
concerns and encompasses a wide range of environmental issues such as
genetically modified substances, persistent organic pollutants, climate change,
protection of migratory fish stocks, marine pollution, regulating seabed mining,
long-range transboundary air pollution, movement of hazardous waste, protection
of endangered species, flora and fauna, conservation and preservation of wetlands
and other natural resources, prevention of desertification, maintaining biological
diversity, protecting world cultural and natural heritage sites, and preventing
atmospheric pollution from carbon dioxide, sulfur oxide, nitrous oxide, and
other such hazardous chemicals. Each treaty area addresses highly complex and
interdependent transboundary environmental concerns.
The set of 20 environmental conventions were chosen for participation
analysis not only because of issue salience, but also because these MEAs serve
as influential frameworks for spawning other environmental treaties and they also
bridge highly interconnected global ecosystem management issues. For example,
the Vienna Convention for the Protection of the Ozone Layer (1985) culminated
in the negotiation of the Montreal Protocol on Substances that Deplete the Ozone
Layer (1987), which subsequently generated interest in drafting a global warming
treaty to restrict greenhouse emissions leading to an agreement on United Nations
Framework Convention on Climate Change in 1992 that culminated in the 1997
Kyoto Protocol.
The Vienna Convention for the Protection of Ozone Layer (1985) was
designed to be a framework convention, which only called for the international
recognition of ozone layer depletion as a universal problem and encouraged
voluntary cooperative efforts on the participating states to regulate the production
of ozone depleting materials (Wettestad 2002). The Montreal Protocol was drafted
as a binding treaty with compliance expectations in a two-step process by relying
on the Vienna Convention as a framework. After the Montreal Protocol was
adopted in 1987 it was subsequently amended on four occasions—London (1990),
Copenhagen (1992), Montreal (1997), and Beijing 1999—and its regulative scope
was expanded to include a wide variety of ozone depleting chemicals. Similarly,
the United Nations Framework Convention on Climate Change (UNFCC) was

adopted in 1994, which has universal participation. As a framework convention the
UNFCC establishes the overall institutional framework for combined international
efforts to tackle the common threat posed by climate change by stabilizing the
concentrations of greenhouse gas emissions in the upper atmosphere at a level
that would allow the ecosystem to adapt to changing climatic conditions (UNFCC
1994, Article 2). UNFCC obligates state parties to update and publish materials
and generate scientific data detailing the “national inventories of anthropogenic
emissions” and take steps to mitigate climate change through emissions control,
technological advances, and promoted sustainable development (UNFCC 1994,
Article 4).
The Kyoto Protocol on Climate Change (1997) represents a significant
advancement over UNFCC because it includes minimum participation requirements,
a system of differential responsibility to curb greenhouse emissions, and it does
not permit the attachment of reservations. In addition, the Kyoto Protocol also
incorporates a system of trading in carbon permits among participant states to
regulate carbon emissions.
Ozone layer depletion is caused by a specific set of industrial chemicals; hence,
management of the ozone problem is relatively less challenging compared to
global climate change because the focus of the ozone conventions is on controlling
the production, utilization, and distribution of ozone destroying chemicals, which
is more manageable because the ozone pollution source is more concentrated
(Sitaraman 2001). A supply side technological solution was devised that involved
the development of alternatives and substitutes to Chlorofluorocarbons (CFCs),
which eliminated the need for continued use of CFCs and Hydrochlorofluorocarbons
(HCFCs). States were able to become parties to the ozone convention by
switching to CFC substitutes thereby eliminating the need for regulating CFC
use and production, and eventually CFC production was gradually terminated
through cooperation of the manufacturers, such as Dupont Chemicals. Tackling
global climate change presents a major challenge because the primary sources of
pollution are fossil fuels such as petroleum products, coal, timber, and methane
that are nearly impossible to separate from daily economic life. Fossil fuels are
the basic energy source that drives the global economic system. Distribution costs
associated with reducing greenhouse gas emissions are enormously high because
it involves shifting away from fossil fuels and finding reliable alternative energy
sources.
State Participation in Multilateral Environmental Treaties
Analysis of ratification percentages of democracies and non-democracies

provides some revealing insights. Although the overall participation patterns
do not demonstrate a marked trend suggesting that democracies are more likely
to participate in environmental treaties than non-democracies, there is limited
Table 3.2 State participation in environmental treaties
State Parties
Non- Partially
Dems %
Total % Dems % Free%
Year Multilateral Environmental Treaties Treaty Objectives Not-
Ratified Non- Non-
Ratify
Ratify Ratify
Wetlands conservation and waterfowl
1 1971 Ramsar Convention (Under ICUN) 82 4 25 10
habitat
World Cultural and Natural Heritage Protects sites, buildings, and natural
2 1972 96 0 4 3
Treaty heritage of value
3 1973 Convention on Endangered Species Regulates trade in endangered species 90 1 11 7
Marine pollution, territorial rights, deep
4 1982 Convention on Law of Sea (UNCLOS) 81 10 36 27
sea mining
Vienna Convention for the Protection of Protect ozone layer depletion (Framework
5 1985 100 0 0 0
the Ozone Layer Treaty)
Montreal Protocol on Substances that Protect ozone layer depletion (strictly
6 1987 100 0 0 0
Deplete the Ozone Layer binding)
7 1990 London Amendment to Montreal Protocol Expanded list of CFCs 98 1 2 0
Copenhagen Amendment to Montreal
8 1992 Tightened controls and included HCFCs 97 1 9 3
Protocol
Montreal Amendment to Montreal
9 1997 License control and ban methyl bromide 86 7 24 10
Protocol
Expanded list of controlled chemicals and
10 1999 Beijing Amendment to Montreal Protocol 74 15 40 20
amended monitoring
Control of transboundary movements of
11 1989 Basel Convention on Hazardous Waste 89 1 15 7
hazardous wastes
UN Framework Convention on Climate Regulate emissions of greenhouse gases
12 1992 100 0 0 0
Change (Framework Treaty)
Table 3.2 continued State participation in environmental treaties
State Parties
Non- Partially
Dems %
Total % Dems % Free%
Year Multilateral Environmental Treaties Treaty Objectives Not-
Ratified Non- Non-
Ratify
Ratify Ratify
Preserve the biological diversity among
13 1992 Convention on Biological Diversity 99 1 0 0
all species
United Nations Convention to Combat
14 1994 Prevent desertification and deforestation 100 0 0 0
Desertification
15 1994 Part XI of the UNCLOS Convention Relates to seabed mining 69 13 49 40
Conservation and Management of
Conservation of straddling and migratory
16 1995 Straddling and Highly Migratory Fish 37 42 95 67
fish stocks
Stocks (UNCLOS)
Regulate emissions of greenhouse gases
17 1997 Kyoto Protocol Climate Change Treaty 95 3 7 3
(binding treaty)
Rotterdam Convention on the Movement Places important control on sale and
18 1998 63 28 36 33
of Hazardous Materials movement of toxic chemicals
Seeks to prevent risks posed by GMOs to
19 2000 Cartagena Biosafety Protocol Treaty 77 17 22 30
the environment and global food supply
Stockholm Convention on Persistent Severely restricts or bans production of
20 2001 89 17 15 27
Organic Pollutants highly toxic and hazardous materials
Notes: Total Number of UN Member States is 192. Numbers refer to percent non-ratified.
Source: UN Environment Programme (UNEP), various Treaty Convention Secretariats, and UN Treaty Series. All data accurate as of December 2008.
evidence that indicates that treaty participation rates of democracies are relatively
superior to non-democracies. Some of the MEAs boast universal or near universal
participation; all the 192 United Nations member states have ratified the Vienna
and Montreal accords on the protection of ozone layer, the United Nations
Framework Convention on Climate Change (UNFCC), and the United Nations
Convention to Combat Desertification (UNCCD). The Convention on Biological
Diversity (CBD) has been ratified by 189 states; amendments to the Montreal
Protocol, especially the London Amendment, which expands the list of CFCs and
the Copenhagen Amendment, which incorporates HCFCs into the list of controlled
chemicals have 188 and 184 state parties respectively. The World Cultural and
Natural Heritage Convention, Kyoto Protocol on Climate Change, Convention
on Endangered Species, and the Convention on Biological Diversity have been
ratified by more than 92 percent of the states (see Table 3.2).
The Ramsar Convention on Wetlands (and Waterfowl Habitats), the Basel
Convention on the control of Transboundary Movements of Hazardous Waste, and
the Montreal Amendment to the Montreal Protocol on the Protection of the Ozone
Layer have been ratified by 85 percent of the state parties. The Stockholm Convention
on Persistent Organic Pollutants, Cartagena Biosafety Protocol, United Nations
Law of Sea Convention, and the Beijing Amendment to the Montreal Protocol have
been ratified by only 70 percent of the state parties. Part XI of the Law of the Sea
Convention concerning the regulation of seabed mining and fish stocks (also a part
of the UNCLOS) that seeks to conserve and protect straddling and migratory fish
stocks and the Rotterdam Convention on Prior Informed Consent Procedure for
Certain Hazardous Chemicals are two MEAs with the lowest ratification rates. Fish
stocks and the seabed mining treaty, both of which are part of the comprehensive
Law of Seas Convention, have been ratified only by 37 and 67 percent of the states,
and 63 percent of the states have entered the Rotterdam convention concerning
transboundary shipment of hazardous wastes. The Convention on Long-Range
Transboundary Air Pollution Treaty (LRTAP) was negotiated through the United
Nations Economic Commission for Europe (UNECE) and it is entirely focused on
reducing intra-Europe acid rain and disbursement of industrial pollutants through
the atmosphere. Presently, LRTAP has 51 state parties including Eastern European
states, the Russian Federation, Canada, and the United States; two Central Asian
states—Kyrgyzstan and Kazakhstan—have also become party to this convention.
LRTAP has been subsequently amended, expanded, and modified through eight
additional protocols—states have to separately ratify each of these protocols—to
deal with the abatement and acidification of ground level ozone, persistent organic
pollutants, sulfur emissions, nitrogen oxides, and volatile organic compounds.
Ramsar Convention
The Convention on Wetlands is of international importance especially for waterfowl

habitat and is popularly known as the Ramsar Convention; it was adopted under
the stewardship of the World Conservation Union in Ramsar, Iran in 1971. The
primary objective of this convention is to conserve and preserve “all wetlands

through local, regional and national actions and international cooperation, as a
contribution towards achieving sustainable development throughout the world”
(Ramsar Convention Secretariat 2006, 6). In excess of 1,600 wetlands around the
world, covering over 145 million hectares, including a wide variety of “wetland
habitats such as marshes, peatlands, floodplains, rivers and lakes, and coastal
areas such as saltmarshes, mangroves, and seagrass beds, but also coral reefs
and other marine areas no deeper than six meters at low tide, as well as human-
made wetlands such as waste water treatment ponds and reservoirs” are protected
(Ramsar Convention Secretariat 2006).
Ramsar was envisaged as an international convention because wetlands
traverse boundaries and because conservation has a direct ecological and economic
benefit, such as stabilization of local climate conditions, storm protection and
flood mitigation, water purification and storage, and retention of nutrients (Ramsar
Convention Secretariat 2006, 9–10). Four basic objectives of this convention are:
(1) conservation of wetlands; (2) promotion of international cooperation in wetland
conservation; (3) facilitating communication about wetland conservation; and (4)
extending the work of the convention (Ramsar Convention Secretariat 2006, 16).
The wetlands conservation treaty does not have a built-in regulatory regime and
it carries no punitive sanctions for violating treaty commitments; it is based on
the assumption of “common and equitably shared transparent accountability”
(Ramsar Convention Secretariat 2006, 16). In other words, this treaty operates by
appealing to the common environmental consciousness of the states and anticipates
that states will cooperate without enforcement and sanctions. State parties are,
however, expected to submit a national report every triennium to the convention
secretariat detailing the measures undertaken to implement the treaty and bring the
state party in compliance with the objectives of the Ramsar Convention.
There are 157 member states to the Ramsar Convention, that is, 82 percent of
the United Nations member states have ratified, which means 35 countries have
not become parties. All democracies have become members with the exception
of the Solomon Islands, which transitioned to democracy in 2006, whereas 15
non-democracies, two partially free states, and 18 countries, such as Afghanistan,
Andorra, Brunei, Dominica, Ethiopia, Grenada, Iraq, and Kiribati, for which
there is no polity data from POLITY IV have not joined the Ramsar treaty.
Non-democratic states that include Bhutan, Eritrea, Kazakhstan, Kuwait, Laos,
North Korea, Oman, Qatar, Saudi Arabia, Singapore, Swaziland, Turkmenistan,
United Arab Emirates, Yemen, and Zimbabwe have not joined the Ramsar treaty.
Since Ramsar involves wetland protection and participating states have to list
at least one wetland for protection after entry into the convention, it might not
have any relevance for desert and arid regions such as Kuwait, Oman, Qatar,
Saudi Arabia, United Arab Emirates, and Yemen; in other words, they might
not have any wetlands to protect. Nevertheless, the overall pattern suggests that
democracies are more participatory compared to non-democracies and that bigger
and economically developed states are more internationally engaged. There is
evidence that some non-democracies intentionally destroyed their wetlands with

the intent to deprive the people dependent on such marshlands, as demonstrated by
the case of Marsh Arabs in Saddam Hussein’s Iraq. Saddam Hussein deliberately
destroyed the marshes and wetlands in Southern Iraq, an area of approximately
12,000 square miles by draining, burning and damming the region to punish the
Marsh Arabs who were dependent on the wetlands for their livelihood (USIP, The
Marsh Arabs of Iraq, 2002).
Convention on Endangered Species
The Convention on International Trade in Endangered Species of Wild Fauna and

Flora (CITES) was drafted by members of the World Conservation Union in 1963
and it was eventually adopted by 80 states in 1973 in Washington DC and it came
into force in 1975. CITES was designed primarily to halt the trade in varieties
of wild animals and plants, and an array of wildlife products derived from such
endangered plants and animals, including items such as “food products, exotic
leather goods, wooden musical instruments, timber, tourist curios and medicines”
to ensure sustainability of species and plant diversity for future generations
(Discover CITES). Since international trade in wild animals and plants traverses
national boundaries, CITES was intended as a cooperative effort among states to
prevent overexploitation and encourage preservation. This convention functions by
restricting international trade in endangered plants and animals by controlling export,
import, and re-export or re-import through a system of strong licensing controls.
A list of species, subspecies, and the general population of plant or animal groups
are placed on three separate import and export control lists (Appendix I, II, III)
and states must establish a central management authority and scientific advisors to
administer the licensing system and study the effect of trade in species, flora and
fauna and their impact on the ecosystem (Discover CITES). Trade in endangered
species is permitted only if proper documentation and prior approval is obtained
from the trading state parties. Even though CITES is a legally binding international
agreement, state parties do not have to substitute national laws with CITES inspired
legislation. States retain the power to implement the endangered species convention
according to domestic political, economic, and legal discretion. Compliance with
CITES is pursued in a “supportive and non-adversarial” manner with the objective
of “ensuring long-term compliance” (COP14 Doc. 23, 2007, 3).
The CITES convention protects over 35,000 species of wild animals and plants
that are separated into three groups. The first category (Appendix І) includes 892
species, 36 subspecies, and 22 populations of highly endangered animals and
plants that are facing extinction or near extinction. This is followed by Appendix II
species, which include species and plants that are not immediately threatened with
extinction, but they may become extinct unless international trade is restricted. The
second category also consists of so-called “look-alike species,” which resemble
other species that are identified for conservation purposes. Overall this category
protects 33,033 species, 26 subspecies and 19 population groups of endangered
animals and plants that are the largest among the three groups of protected animals
and plants. The third category (Appendix III) includes species and plant lists
created at the behest of state parties that aim to regulate trade to prevent illegal use
and unsustainable exploitation (Discover CITES).
Presently CITES has 173 state parties or it has been ratified by 90 percent
of the United Nations member states. Nineteen countries that have not ratified
are without exception small states with non-democratic or partially free political
systems such as Andorra, Angola, Armenia, Bahrain, Bosnia and Herzegovina,
Haiti, Iraq, Kiribati, Maldives, Marshall Islands, Micronesia, Nauru, Tajikistan,
Timor-Leste, Tonga, Turkmenistan, and Tuvalu; the only non-ratifying democratic
state among this group is Lebanon (which transitioned to democracy in 2004).
Again although not overwhelming, the trend suggests that there is some evidence
that democracies and other economically advanced states are more engaged with
multilateral treaty regimes.
Assessing Participation in Multilateral Environmental Treaties
Four of the 20 multilateral environmental treaties under consideration in this

chapter have been ratified by all the 192 United Nations member states. Few other
treaties have near universal ratification, but most of them fall short of the universal
participation requirement, which may be because the intended target country has
joined the convention and that the participation of other states is superfluous to
the successful functioning of the treaty; hence, non-targeted state parties are not
as enthusiastic about ratifying and the treaty bodies do not aggressively push for
inclusion of all member states. To the extent, states that choose not to participate
in certain treaties is suggestive that something about the treaty does not favor
a particular state’s interest. Although this is not true in every instance, there is
some presumptive indication to suggest that democracies are more inclined to
join multilateral environmental agreements compared to non-democracies and
partially free countries.
Analysis of the non-ratifiers of the 20 environmental treaties in this chapter
points out that the participatory record of non-democracies is relative poor
compared to other types of domestic polities, particularly democracies. Twice the
number of non-democracies have failed to ratify the 20 environmental treaties;
this non-ratification pattern suggests that other factors may be influencing state
participation in environmental treaties. The migratory fish stocks treaty has not
been ratified by 52 non-democracies and 30 democracies; UNCLOS has not been
ratified by 20 non-democracies and seven democracies; the seabed mining treaty
is yet to be ratified by 27 non-democracies. Twenty-two non-democracies have
not ratified the Beijing Amendment to the Montreal Protocol. Overall participation
patterns indicate that domestic political structure as determined by whether a state
is democratic and non-democratic seems to provide some presumptive explanation
to the variations in participation in multilateral environmental treaties.
The participation of advanced democracies in environmental treaties is

particularly noteworthy. More than 90 percent of the 22 advanced democracies
have become party to the 20 environmental treaties under consideration. Austria,
Belgium, Denmark, Finland, France, Germany, India, Japan, the Netherlands, New
Zealand, Norway, and the United Kingdom have 100 percent participation. Israel,
Switzerland, and United States standout for their incomplete participation; the
United States is clearly the exception in this regard, it has entered only 13 of the
20 MEAs under consideration, and Israel has ratified only 14 treaties. Switzerland
has not joined any of the UNCLOS conventions, including the seabed mining
and the migratory fish stocks treaty. Another interesting fact that emerges from
this analysis is that newly independent democracies—especially countries that
became democratic after 1989—have demonstrated a higher proclivity for joining
MEAs after transitioning towards democracy. Seventy percent of the 20 MEAs
have been ratified by 90 to 100 percent of the United Nations member states and
an additional 20 percent have been ratified by 80 percent of the new democracies.
Only the migratory fish stocks treaty and the Rotterdam convention have poor
participation among newer democracies. After becoming independent and
democratic, Bulgaria, the Czech Republic, Hungary, Lithuania, Namibia, Romania,
Slovenia, and South Africa have joined all of the 20 multilateral environmental
treaties. Before independence, South Africa had joined only four environmental
agreements. Montenegro became democratic in 2006 and it has ratified 16 of
the 20 treaties and Albania has yet to ratify only the Rotterdam Convention on
the movement of hazardous wastes. Prior to democratization, Mongolia had
ratified only one environmental treaty; after its transitioning to democratic rule,
Mongolia joined 17 multilateral environmental conventions. Other countries such
as Chile, Namibia, Nicaragua, Panama, and Peru also exhibited similar patterns;
they rapidly acceded to as many environmental regimes as possible after they
transitioned to democratic rule.
For states that transited to democracy after 1950, but before 1989, the
relationship between domestic regime-type—democracy—and participation in
MEAs is more difficult to determine because development of MEAs increased
rapidly only in the 1990s. Out of the total of 20 MEAs that are being analyzed in this
study, only three treaties—the World Cultural and Natural Heritage Treaty (1972),
the Convention on Endangered Species (1973), and Ramsar Convention (1971)—
were negotiated in the 1970s and four treaties were adopted in the 1980s. The rest
of the treaties entered into force only in 1990s and by that time the 19 countries
that democratized between 1950 and 1990 had already become democratic.
Therefore, it cannot be suggested that the correlation between domestic regime-
type and a state’s participation in MEAs is substantially strong. Some evidence
exists to indicate a possible link between domestic regime-type and international
cooperation, especially for nations such as South Korea—they had ratified none of
the seven treaties that came into force before it became democratic—and decided to
ratify all of them after it became fully democratic. Subsequent to democratization,
South Korea has joined all of the 20 multilateral environmental treaties. Brazil and
Argentina, which democratized in 1984 and 1987 respectively, have very nearly
joined all of the 20 MEAs; Argentina is yet to ratify the migratory fish stocks
and the Rotterdam treaty, whereas Brazil has ratified all of the 20 MEAs under
consideration in this chapter. To demonstrate its commitment to environmental
multilateralism, Brazil hosted the 1992 United Nations Earth Agenda Summit, in
its capital Rio de Janeiro, which was instrumental in laying the foundations for the
subsequent negotiation of the United Nations Framework Convention on Climate
Change and the Convention on Biodiversity.
Examination of the 20 major MEAs implies that the overall ratification
record of democracies is superior relative to non-democracies. There are some
indications to infer that domestic regime-type—democracy—may influence a
state’s decision to join international environmental accords. States that became
simultaneously independent and democratic such as Croatia, Czech Republic,
Macedonia, Slovakia, and Slovenia have demonstrated an extraordinarily high
proclivity to participate in environmental treaty regimes. Advanced democracies
have exhibited a notably strong record of participation in environmental accords.
The glaring exception is the United States that has ratified only 13 of the 20
MEAs; ratification records of Israel and Lesotho, which become democratic only
in 2006, are identically weak.
An intriguing finding is that non-democracies do indeed ratify numerous
MEAs. Critical questions that this study generates are as follows: Are states
entering environmental treaties because: (1) they believe their participation is
unlikely to affect their behavior in any particular way, that is, it does not impose any
participation costs? (2) They share the environmental values and norms enshrined in
these treaties, that is, states are genuinely motivated by normative considerations?
Or (3) are they participating because of international pressure or other strategic
considerations, such as wanting to appear as cooperative members to reap the benefits
of international aid and other forms of assistance? What this analysis suggests is that
democracy and non-democracy, which serves as proxy for domestic institutional
norms and politics, seems to capture some variance in explaining why some states
participate in international treaty regimes, while others resist. However, this factor
alone is insufficient to understand the multivariate motivation of state participation
in multilateral environmental regimes. Explanations for state participation might
also depend on the strength, organizational capacity, enforcement, and sanctioning
ability of these multilateral regimes. There is insufficient space to explore these
consequential factors in this chapter.
Controlling the Spread of WMD through Multilateral Treaties
Development of arms control treaty regimes to control and prevent the proliferation
of weapons of mass destruction (WMD) emerged as an outgrowth of the escalating
arms race between the United States and the Soviet Russia. Prior to the Second
World War, the Geneva Protocol was adopted to prevent the use of chemical,
biological, or other poisonous gases and the Kellogg–Briand Pact was signed
in 1928 by more than 60 countries in an effort to ban aggressive war. Inherent
structural inadequacies in these and other early efforts at multilateral arms control
came to a halt during the Second World War. Subsequently, development of
nuclear weapons became the central issue dominating the international political
landscape. Global arms control movements after the end of the Second World War
could be classified into four phases: (1) development of international controls;
(2) atoms for peace; (3) nuclear non-proliferation regimes; and (4) post-Cold War
weapons proliferation era (Foran 1992, 17). During the first phase, the United
States government understood the extraordinary destructive potential of nuclear
weapons, which motivated it to aggressively police the proliferation of technical
knowledge on nuclear weapons. Virginia Foran (1992, 17) describes the initial
period as “nonproliferation by secrecy” in which the United States was the sole
beneficiary of nuclear power. Hence, it was not surprising that it attempted to guard
nuclear secrets and prevent other states from gaining this strategic advantage.
When the Soviet Union tested its first atomic weapon in 1949, the United
States realized that nuclear weapons and other weapons of mass destruction would
become a major international security challenge. The second phase, which can
be characterized as controlled proliferation, was launched through the Atoms for
Peace Program (1953–1961). American President, Dwight Eisenhower, launched
this program with the goal of sharing nuclear know-how with select allies primarily
for the purposes of producing nuclear energy. President Eisenhower proposed the
establishment of an International Atomic Energy Agency (IAEA) “to which the
governments principally involved” would make “joint contributions from their
stockpiles of normal uranium and fissionable materials” (Eisenhower 1953). This
process of controlled proliferation gradually increased the number of nuclear
powers and gave raise to fears of proliferation and nuclear catastrophe. During
Eisenhower’s term, the size of the American nuclear arsenal increased from 1,200
to 18,700 warheads in 1960 and the size of the Soviet arsenal increased from 50 to
1,700 warheads (Fischer 1997). Presently the five nuclear weapons states—China,
France, Russian Federation, United Kingdom, and United States—combined hold
26, 260 nuclear weapons with Russian Federation accounting for 16,000, United
States 10,300, and China, United Kingdom, and France hold an average of 320
weapons each (Cirincione et al. 2005, 8). This figure of 27,260 does not include
India, Israel, and Pakistan, which are estimated to possess anywhere between 50
to 170 nuclear weapons each (Cirincione et al. 2005, 8).
Eisenhower’s objective of shifting the logic of superpower nuclear weapons
competition to a peaceful nuclear world did not achieve complete fruition. As
the Cold War rivalry intensified, the third phase (1960–1990) witnessed the
construction of transnational weapons of mass destruction (WMD) regimes that
disavowed complete or total disarmament and instead aimed to develop limited or
The seeds of the Indian nuclear weapons program started with American supplied
nuclear fuel, which was diverted from civilian purposes to develop nuclear weapons.
partial regimes to manage and contain the growing proliferation tide. Arms control
agreements, such as the Baruch Plan that aimed at complete global disarmament,
did not succeed largely because the Soviet Union and a few other states strongly
objected to its stringent verification protocols and the superpowers believed that
complete disarmament was practically unrealizable (Kartchner 1996, 21).
With the advent of satellite tracking and other sophisticated technologies
confidence among arms control experts increased because they believed that
technology could be deployed as an effective tool to develop non-intrusive
verification measures (Foran 1992, 179). The emergence of technological solutions
for verification facilitated the negotiation of the Partial Test Ban Treaty (PTBT),
which sought to ban nuclear tests in the upper atmosphere, outer space, and on
the sea surface or on the seabed. Impetus for the negotiation of the Nuclear Non-
Proliferation Treaty (NPT) came after China conducted its first nuclear test in
1964 and India began to actively pursue an offensive nuclear weapons program.
Three years of difficult and protracted negotiations led to the adoption of the NPT
in July 1968 and the treaty entered into force in March 1970 after 70 countries
had ratified the treaty. NPT is considered to be a venerable and central pillar of
the international arms control regime and it has engendered the development of a
network of arms control agreements both at the multilateral and regional level.
Nuclear Non-Proliferation Regime
International regime theories argue that arms control treaties are more difficult to
negotiate, adopt, and secure compliance with because the business of producing
arms for self-defense is considered to be one of the core functions over which
states refuse to concede sovereignty (Jervis 1993). Any treaty that seeks to
control production or limit the sale and distribution of arms is likely to encounter
challenges with regards to participation and compliance because it directly
involves the issue of state interests and sovereignty. Cheating and defection are
endemic because of a general lack of trust among the participating states, but arms
control conventions are not very different from human rights and environment
treaties. Arms control conventions also assume different forms; they can be
aspirational, that is, express a desire for universal disarmament or seek or prohibit
the production, sale, and export of certain types of weapons; they can be limited,
such as the Partial Test Ban Treaty (PTBT); and they can be preventive, such as the
Antarctic and the Outer Space treaties that aim to inhibit the militarization of the
Antarctic and outer space. Arms control treaties, unlike human rights conventions,
are very specifically crafted to develop solutions to particular problems; they are
well defined and have a narrow scope with built-in safeguards and verification
agreements. They have a lot in common with the environmental treaties because
arms control conventions are also largely preventive and protective. Since military
arms have direct consequences for the natural environment, many of them are
cross listed as environmental treaties.
Arms control conventions differ from human rights and environmental treaties
in two significant ways: (1) arms control conventions can be deliberately designed to
be discriminatory; and (2) they rely heavily on technology to verify implementation
and compliance. NPT is a prime example of a discriminatory treaty, which separates
the participating states into two categories, nuclear weapons states (NWS) and non-
nuclear weapons states (NNWS). Any state that conducted a nuclear test prior to
July 1967 is considered to be a NWS and any state that did not conduct a nuclear test
before July 1967 is considered to be a non-nuclear weapons state (Foran 1992, 180).
Once a non-nuclear state becomes a party to the NPT, it cannot change its status to
a nuclear weapons state by conducting nuclear tests; such attempted transitions are
serious violation of the NPT. Only NWS—China, France, the Russian Federation,
the United Kingdom, and the United States—are permitted to conduct nuclear tests,
stockpile nuclear arsenals, and engage in nuclear weapons research. There are two
different sets of laws, one governing nuclear states and another regulating non-
nuclear states with regards to nuclear testing and weapons. Non-nuclear states are
allowed to have civilian nuclear programs for electricity generation and research
reactors for peaceful purposes as long as they agree to full scope nuclear safeguards
and direct monitoring by the International Atomic Energy Agency (IAEA). The
Indian government has argued that this principle of discrimination inherent in the
NPT, which discriminates between the NWS and NNWS is equivalent to what the
Indian government has labeled as “nuclear apartheid” (Singh 1998).
According to the terms of “full scope safeguards” non-nuclear state parties
must complete full declaration of “all nuclear facilities, including research and
development facilities, nuclear power reactors, and sites where raw materials such
as natural uranium are mined or prepared” (Foran 1992, 180). In contrast, nuclear
states are not required to submit to IAEA safeguards and have their facilities
inspected or subject themselves to any quantitative limits on production, stockpile,
and sale of nuclear arms. However, nuclear states have to pledge that they would
not transfer nuclear technology to NNWS or proliferate weapons or weapons
technology. At the conclusion of the August 2000 NPT review conference, 51 state
parties were not in compliance with the comprehensive safeguards agreement; as
of May 2009 that number had declined to 26 states (IAEA, NPT Status Overview,
May 2009). Despite some obvious shortcomings, the NPT was indefinitely
extended during the 1995 NPT review conference and it continues to serve as a
foundation to build other types of WMD non-proliferation regimes.
The Nuclear Non-Proliferation Treaty has near universal membership; out of
192 United Nations member states 189 countries have ratified the NPT. Several
countries ratified the NPT only after the end of the Cold War: France and China
joined the NPT only in 1992; South Africa in 1992; Argentina in 1995; Ukraine in
1995; Brizil in 1998; and Cuba in 2002. It has taken the NPT four decades to reach
near universal ratification status; 29 countries ratified in the 1980s, 50 countries
ratified the NPT in the 1990s, and the newly independent states of Montenegro and
East Timor joined in 2003 and 2006 respectively. Two democratic countries—India
and Israel—and one non-democratic country—Pakistan—have refused to become
parties to the NPT. India is a long-standing opponent of the NPT because India
continues to insist that NPT legalizes the imbalance in military power between
the weaker non-nuclear and the stronger nuclear weapons countries (Singh 1998).
Since Pakistan and India are involved in a long-standing territorial conflict over
the northern Indian state of Kashmir, Pakistan has also not entered the NPT. In
1998, both India and Pakistan conducted retaliatory nuclear tests becoming two
of the newest additions to the nuclear club that was capped at five by the NPT.
Because India and Pakistan conducted their nuclear tests after July 1968, they
are not permitted to enter the NPT as states possessing nuclear weapons; hence,
presently they remain outside the legal scope of NPT despite possessing nuclear
weapons.10 Presently, there are five de jure nuclear weapons states and three—
India, North Korea, and Pakistan—de facto nuclear powers and one opaque nuclear
power—Israel—that are categorized as non-nuclear weapons as per the provisions
of the NPT. India, Pakistan, Israel are non-signatories to the NPT and North Korea
withdrew from the NPT in 2003 and has defied the NPT by openly testing nuclear
weapons in October 2006 (Chanlett-Avery and Squassoni 2006, 2).
Israel has refused to ratify the NPT among various other arms control agreements
because it is enmeshed in widespread regional conflict with its Arab neighbors.
Although many of the Arab states are parties to NPT, some of them, especially
Iran and Algeria are thought to be developing clandestine nuclear programs
(Cirincione et al. 2005, 259–72; Stolberg 2003).11 There is a growing concern that
Iran might be in a position to deploy offensive nuclear weapons in a few years;
hence, international diplomatic efforts have focused on containing Iranian nuclear
ambitions (National Intelligence Estimate 2007; Perkovich 2005). Iraq’s nuclear
weapons program was halted due to a strategic strike on Iraq’s nuclear facilities in
Osrik by the Israeli commando forces in the early 1980s. Sanctions and the United
Nations inspection regime imposed on Iraq after its invasion of Kuwait in 1991 had
significantly reduced Iraq’s nuclear weapons capacity (Sharma 2002; Cirincione,
On January 22 2003 North Korea submitted a petition withdrawing from the NPT; it
withdrew its membership from the IAEA in June 1994 and conducted underground nuclear
tests in defiance of international condemnation in October 2006 and recently in May 2009.
Pakistan was non-democratic until December 2008; a new civilian government was elected
into power in January 2009.
10 India conducted its first nuclear test in 1974, after which punitive sanctions were
imposed on India for violating the norms of the NPT that resulted in a ban on the sale of nuclear
fuel and technology. Again, India and Pakistan were sanctioned in the wake of May 1998 tests,
which were eventually removed in return for cooperation in the global war on terror following
the September 11 terrorist attacks on the United States. Recently, India and the United States
have agreed to a special 1–2–3 nuclear deal, which would allow India to import nuclear raw
materials from the Nuclear Suppliers Group (NSG) for its civilian energy program despite
non-ratification of the NPT and CTBT. In return India has agreed to separate out its nuclear
facilities into two groups—nuclear and civilian—which would enable better monitoring.
11 In 1983 because of perceived fears of attack by Libya’s Colonel Moammar Gadhafi,
Algeria began a clandestine weapons program with the assistance from China and Niger.
Wolfsthal and Rajkumar 2002). Subsequently, the United States military attack
on Iraq in 2003, deposing Saddam Hussein’s regime effectively ended the Iraqi
military threat and its offensive weapons programs.12 North Korea, which joined
the NPT in December 1985, admitted that it has developed nuclear weapons in
contravention to the terms of NPT (NRDC, Nuclear Notebook 2003). Various
reports suggest that North Korea benefited from the clandestine exports of nuclear
materials from China and Pakistan (Cirincione 2000, 207–19). Participants in the
2000 NPT Review Conference expressed concern over the fact that IAEA was
“unable to verify the correctness and completeness of the initial declaration of
nuclear materials made by the Democratic Republic of Korea” (Rauf et al. 2000,
107–8). NPT review conference participants were also concerned that they were
“unable to conclude that there was no diversion of nuclear material” from North
Korea to other states with nuclear ambitions (Rauf et al. 2000, 107–8).
Under the NPT, nuclear weapons states are allowed to transfer nuclear
technology and materials to non-nuclear weapons states for peaceful purposes,
chiefly for meeting energy demands. However, this bargain was not fulfilled by
nuclear weapons states uniformly. Certain industrially advanced nations, such
as Belgium, Germany, Italy, and Japan received substantial support from NWS,
especially from the United Kingdom, and the United States. Non-nuclear states
that did not have a civilian nuclear research program saw the special privileges
conferred on advanced non-nuclear weapons states as being unfair and that it further
tilted the power balance in favor of the P-5 states (Foran 1992, 181). This issue
has also produced significant consternation among NPT members and has been a
subject of routine discussions in the conference on disarmament (CD) meetings.
During the Cold War many aspiring nuclear weapons states were able to balance
against the two competing superpowers for nuclear materials and technology, but
the post-Cold War era has created new avenues for nuclear smuggling reducing the
ability of P-5 states to govern the nuclear ambitions of emerging middle powers
and new contenders for major power status.
Other Types of Arms Control Agreements
Unlike environment and human rights conventions, there are fewer multilateral
treaties in the sphere of international security and arms control. According to the
United Nations Disarmament Commission (UNDC), there are 21 multilateral
arms control treaties that include the five regional—African, Central Asian, Latin
American, South Pacific, and Southeast Asia—nuclear weapons free zone treaties.
12 The issue of Iraqi nuclear weapons is mired in a serious dispute because the original
claim that Iraq possessed offensive weapons of mass destruction was one of the primary
reasons that the US launched a military campaign against Iraq in March 2003. Subsequently
it was discovered that no WMD were present in Iraq raising doubts about the original claim
and questioning the United States pretext for the Iraqi invasion.
With the exception of the Geneva Protocol, adopted in 1925, which aims to ban the
use of noxious and other poisonous gases during the conduct of war, the rest of the
arms control agreements were adopted after the end of the Second World War and
during the escalation of the Cold War. Among these 21 treaties, only five treaties
are considered to be central to the multilateral arms control regime: Nuclear
Proliferation Treaty (NPT); Comprehensive Test Ban Treaty (CTBT); Biological
Weapons Convention (BWC); Chemical Weapons Convention (CWC); and the
Anti-Personnel Mines Convention or the Ottawa Landmine Ban treaty (APM). The
Table 3.3 List of 21 major arms control and disarmament treaties
Date of
Arms Control and Disarmament Treaties Adoption/
Signature
1 Geneva Protocol 1925
2 The Antarctic Treaty 1959
Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under
3 1963
Water (Partial Test Ban)
Activities of States in the Exploration and Use of Outer Space (Outer
4 1967
Space Treaty)
Prohibition of Nuclear Weapons in Latin America and the Caribbean
5 1967
(Treaty of Tlatelolco)
6 Nuclear Non-proliferation Treaty (NPT) 1968
Emplacement of Mass Destruction on the Seabed and the Ocean Floor
7 1971
and in the Subsoil (Seabed Test)
8 Biological Weapons Convention (BWC) 1972
9 Hostile Use of Environmental Modification Techniques (ENMOD) 1977
Activities of States on the Moon and Other Celestial Bodies (Celestial
10 1979
Bodies)
11 South Pacific Nuclear Free Zone Treaty (Treaty of Rarotonga) 1985
12 Conventional Armed Forces in Europe (CFE) 1990
13 Treaty on Open Skies (Open Skies) 1992
14 Chemical Weapons Convention (CWC) 1993
15 Southeast Asia Nuclear Weapon Free Zone (Bangkok Treaty) 1995
16 Comprehensive Test Ban Treaty (CTBT) 1996
17 African Nuclear Weapon Free Zone Treaty (Pelindaba Treaty) 1996
18 Anti-personnel Mines Convention (APM) 1997
Inter-American Convention Against the Illicit Manufacturing of and
19 1997
Trafficking in Firearms
Inter-American Convention on Transparency in Conventional Weapons
20 1999
Acquisitions
21 Nuclear Weapon Free Zone in Central Asia (Treaty of Semipalatinsk) 2006
Source: United Nations Treaty Series and United Nations Disarmament Agency (UNDA).
other 16 arms control treaties, besides the five core arms control treaties are the five
nuclear weapons free zone treaties and 11 esoteric and relatively obscure treaties
such as the outer space and celestial bodies convention that they do not feature in
regular discussions among the state parties at the United Nations Disarmament
meetings. Primary concern of the state parties and the United Nations are the NPT,
CTBT, BWC, CWC, and APM conventions.
The set of 21 multilateral arms control treaties can be categorized into three
groups: (1) treaties that prevent militarization or modification of certain parts of
the earth, sea, and outer space; (2) treaties that seek to control proliferation, restrict
testing, and prohibit the use of nuclear, biological, chemical and other advanced
conventional weapons; and (3) treaties that attempt to create zones of peace by
restricting the deployment and testing of mass destructive weapons in specific
regions of the world. Export control regimes, also known as supply-side regimes,
are treaty-based working agreements devised by a community of like-minded states
that seek to restrict and limit the transfer of weapons and technology to further the
non-proliferation objectives of major arms control conventions (Anthony 2002).
States that are members of the export control regimes voluntarily agree not to
share information or technology, especially with regard to technology that has
dual-use purposes, with countries that are considered to be proliferation threats.
Six international export control regimes—Australia Group, European Commission
Dual-Use Export Control System, Missile Technology Control Regime (MTCR),
Nuclear Suppliers Group, Wassenaar Arrangement, and the Zangger Committee—
currently monitor the sales and transfer of nuclear, biological, and chemical
materials and technology, and missile technology (Anthony and Zanders 1999).
Fissile Material Cutoff Treaty (FMCT) or FISSBAN treaty, another export
control agreement, which seeks to prohibit the production and distribution of
fissile materials for the production of nuclear weapons, is yet to be successfully
negotiated largely because of substantial opposition from the United States.
The following section of this chapter examines state participation and resistance
to five core arms control treaties that were identified for analysis because of issue
salience, universal importance, and for their extensive linkages with other treaty
regimes, particularly environmental regimes. The primary focus is only on the
core multilateral arms control treaties; it excludes the regional nuclear weapons
free zone treaties, which have inadequate monitoring and enforcement measures,
and passing attention is paid to treaties such as Emplacement of Mass Destruction
on the Seabed and the Ocean Floor and in the Subsoil (Seabed Test Treaty), Hostile
Use of Environmental Modification Techniques (ENMOD), and Nuclear Weapon
Tests in the Atmosphere, in Outer Space and under Water (Partial Test Ban).
Comprehensive Test Ban Treaty
The Comprehensive Test Ban Treaty (CTBT) was opened for signature on September
24 1996 with the objective of banning all forms of nuclear testing, which includes
testing in the upper or lower atmosphere, surface level, underground, and in the
ocean surface or seabed. The protocol of the CTBT is divided into three separate
parts with two annexes. The first part describes the functioning of the International
Monitoring System (IMS) that includes relying on seismological, radionuclide,
hydroacoustic, and infrasound monitoring (National Academy of Sciences 2002).
Monitoring devices are placed in different locations to detect any nuclear testing
that is true zero yield.13 The second part of the CTBT concentrates on on-site
inspections (OSI), which require “at least 30 affirmative votes by the members of
the treaty’s 51 member Executive Council” (Rauf et al. 2000, 50). The third part
of CTBT focuses on Confidence Building Measures (CBM) that involves a series
of consultations and discussions among the participating state parties to sustain
the robustness of the test ban regime. Annex I of the CTBT lists the various treaty
monitoring systems located in different parts of the world and Annex II outlines
the parameters for identifying nuclear tests. CTBT protocol has also established
a treaty monitoring organization—CTBTO—Comprehensive Test Ban Treaty
Organization—located in Vienna to ensure compliance among participating state
parties. CTBT has not yet entered into force; 44 states included in Annex II of the
treaty have to ratify CTBT before it can be entered into force. These 44 states are
targeted by CTBT because they are considered to possess the potential, intention,
and the capacity for developing and testing a nuclear weapon.
Chemical and Biological Weapons (CBW)
A significant military characteristic of chemical and biological weapons is that

they only affect living organisms. Biological Weapons intentionally introduce
pathogenic microorganisms or biologically produced toxins with the aim of causing
mass panic, illness, and death among civilian, military, or animal populations
within a short span of time; these are “mass casualty weapons” (Cirincione
2000, 45). Virulence, rate of spread of infection, and the lethality of biological
weapons is dependent on the type of agent used, stability of the bioweapon, and the
ease with which the biological toxins can be disseminated through the atmosphere
or other modes. There are four groups of biological agents: (1) bacterial agents that
cause anthrax or tularemia; (2) rickettsial agents that cause Q fever or epidemic
typhus; (3) viral agents that cause smallpox or hemorrhagic fevers; and (4)
biological toxins, such as ricin and botulinum toxin, which are created by living
13 CTBT monitoring system has the capacity to monitor all tests that are above and
beyond “true-zero yield,” that is, those are tests that produce a self-sustaining nuclear
reaction that leads to a nuclear explosion, but the monitoring system does not prohibit
or verify, and it does not have the technical capacity to verify subcritical nuclear testing.
Subcritical tests are a type of nuclear tests that relies on traditional “fissile materials but
there is non self-sustaining nuclear chain reaction.” During subcritical testing there is no
yield (or no visible or detectable nuclear explosion) produced as a result of the nuclear
test, especially for tests conducted underground (Los Alamos Study Group, “Sub-critical
Testing”).
organisms (Cirincione 2000, 46). Although chemical and biological weapons are
generally considered together, they have distinguishing characteristics; hence, they
are separately regulated through the Chemical and Biological Weapons (CBW)
Convention.
Chemical weapons, in contrast to biological weapons, are not based on
live organisms; they are derived from non-living or inanimate agents. Mixing
predetermined amounts of different chemicals, called precursors, produces chemical
weapons that can be weaponized and deployed against civilian or military targets
(Cirincione 2000, 50). Chemical agents are generally classified into three groups.
The first category consists of blood gases, such as hydrogen cyanide, that acts as
a poison and inhibits the oxygen supply to the human or animal brain effectively
shutting down the functions of all biological matter. The second category includes
blister agents, such as mustard gas and phosgene oxime, that penetrate through
skin pores and immobilize the victim, and chlorine agents which damage lungs
and suffocate those exposed to a slow death. Third, nerve agents, such as Sarin and
VX, which rapidly interrupt the “transmission of nerve impulses,” thereby shutting
down the central nervous system (Cirincione 2000, 50; Cirincione et al. 2005, 57).
Nerve agents are highly toxic and can spread rapidly through the atmosphere and
by human contact (OPCW, Basic Facts). Both biological and chemical weapons
can be dispersed through aerosol (through the air) or in the form of liquid bomb
capsules.
Biological Weapons Convention
Biological Weapons Convention (BWC) was adopted in 1973 and the Chemical
Weapons Convention was opened for signature on January 1993. Chemical and
Biological Weapons treaties codify commonly shared prohibitive norms against
the use of these weapons (Price and Tannenwald 1996). The primary objective
of the CBW regimes are to eliminate the use of chemical and biological weapons
as instruments of warfare (Chevrier 2002, 143). In contrast to NPT and CTBT,
chemical and biological weapons conventions are disarmament treaties; parties to
BWC and CWC have to relinquish production of biological and chemical weapons
and destroy any existing stockpiles, whereas the NPT does not put any qualitative
or quantitative limits on the ability of the nuclear weapons states (states allowed
under NPT to possess nuclear weapons) to develop, acquire, test, and stockpile
nuclear weapons. The United States ended its biological weapons program in
November 1969 by President Richard Nixon prior to entering the BWC. Military
strategists, such as Thomas Schelling, describe this move as “dominant negative
preference”—unilaterally disarming irrespective of whether the other side is in
possession of the weapon or not (Chevrier 2002, 145).
The critical difference between BWC and CWC is that the BWC does not have
a monitoring or a verification system or, include provisions for on-site inspections
to ensure compliance of the participating states (Chevrier 2002, 143). The
biological weapons convention is fundamentally a good faith treaty that places the
burden of compliance on state parties. Two leading negotiating state parties and
depositories for the BWC—the United States and the United Kingdom—believe
that verification, as it is generally understood and applied to other arms control
agreements, is not possible with regard to biological weapons. The United States,
importantly, is strongly opposed to an intrusive inspection regime associated with
BWC because it holds the position that a bioweapons verification regime cannot
operate without interfering with the legitimate aspects of peaceful biological and
microbiological research.
Primary roadblocks for the implementation of a BWC verification regime
are centered on two basic concerns: (1) some state parties are concerned that an
intrusive inspection regime might compromise national security and intrude upon
state sovereignty; and (2) few other states are more concerned about the potential
loss of commercial propriety information from the biotechnology sector that could
lead to costly losses and violate intellectual property laws (Chevrier and Smithson
1996, 212–4). These two fundamental concerns have been the chief barriers to
the development of an inspection regime for biological weapons; furthermore, the
United States is one of the primary opponents to the establishment of a verification
protocol because it believes that it would be nearly impossible to build a successful
and dependable verification system for biological weapons.
Informal cooperation and consultation among state parties and a formal
compliant mechanism lodged through the United Nations Security Council serve
as ad hoc verification tools for biological weapons convention. Obdurate issue
compliance with BWC is routinely raised in every periodic review conferences
among state parties. During the third review conference of the BWC held in 1991,
the Ad Hoc Group of Governmental Experts were asked to identify and “examine
potential verification measures from a scientific and technical standpoint” (OPBW,
VEREX Report). This ad hoc review panel, which carries the name VEREX, is
tasked to determine whether a state party is “developing, producing, stockpiling,
acquiring or retaining microbial or other biological agents” and whether a state is
developing systems for the delivery of biological warfare agents (OPBW, VEREX
Report). One of the central tools proposed for determining compliance with BWC
are on-site and challenge inspections, but progress has been limited because of
opposition to the development of an intrusive verification regime by a few states,
particularly the United States, United Kingdom, and Russian Federation. Presently,
the United States largely relies on its intelligence network to monitor compliance
with BW protocols.
Chemical Weapons Convention
The Convention on the Prohibition of the Development, Production, Stockpiling

and Use of Chemical Weapons and on their Destruction (generally known as
the Chemical Weapons Convention (CWC)) was adopted in January 1993 and it
entered into force in 1997 after 65 countries deposited instruments of ratification.
The chemical weapons treaty was the outcome of negotiations conducted over two
decades within the Conference on Disarmament (CD). Four main objectives of the
CWC are: (1) “ensuring a credible, transparent regime to verify the destruction
of chemical weapons;” (2) providing “protection and assistance against chemical
weapons;” (3) encouraging “international cooperation in the peaceful uses of
chemistry;” and (4) universal participation of all United Natons member states
in the convention through international cooperation and national capacity
building (OPCW 2008). CWC prohibits the development, production, acquisition,
stockpiling, and transfer of chemical weapons to any state, individual, or group;
it also prohibits the use of chemical weapons, engaging in military preparations
involving chemical weapons; and assisting or encouraging production of chemical
weapons or agents. CWC also requires that all state parties destroy existing
stockpiles of chemical weapons located in all territories under the control of the
state party and shutter all production facilities in all geographical locations that are
under the jurisdiction of any state party to the convention (CWC, Article 1).
Declarations made by the ratifying state parties and on-site inspections
performed by the Organization for the Prohibition of Chemical Weapons (OPCW)
inspectors are the two primary devices to ensure compliance with the CW convention
(Manley 2002, 2235). To assist compliance with CWC, verification provisions are
built on a list of chemicals that are separated into four categories based on their
toxicity and on their commercial and military utility (Chevrier and Smithson 1996,
204). The Chemical Weapons Convention (CWC) has four different schedules of
chemicals. Chemicals listed in Schedule І are to be identified for elimination, items
in Schedule ІІ are closely monitored and controlled, and some chemicals can be
utilized only for non-military purposes. The list of 14 chemicals in Schedule I of
the CWC are to be destroyed by all state parties within ten years after the treaty
enters into force. Chemicals listed in Schedule II and Schedule IV can be produced,
but the production facilities are subject to routine inspections and state parties
are obligated to submit periodic compliance reports to the OPCW, which serves
as the secretariat of the CW convention. The OPCW sets “mandatory reporting
thresholds for the production, processing, consumption, and acquisition of import
and export of chemicals” (Chevrier and Smithson 1996, 204). Besides routine
on-site inspections of storage and production facilities to ensure compliance with
the treaty, the OPCW can also conduct challenge inspections. If any state party
to the CWC suspects that member states are in violation of CWC protocols, they
can request the OPCW to conduct challenge inspections in suspected locations
(OPCW Inspections). According to CW protocol all state parties must agree to
challenge inspections within 12 hours of receiving the notification, direct the
OPCW team to the inspection site within 36 hours, and facilitate access to the site
within 108 hours.
After the CWC came into force in 1997, the OPCW has conducted 3,528
inspections of chemical industry sites in 81 state parties to the convention, which
includes 2,010 inspections of chemical weapons sites, and 100 percent of all
declared chemical weapons stockpiles have been inventoried and verified (CWC
Basic Facts and Figures 2008). The problem free implementation of the CWC’s
stringent verification protocols is frequently cited as the principal reason for the
success of the CWC compared to other arms control agreements. The Cooperation
of the chemical industry in each member state, particularly with regard to sharing
information on dual-use chemicals, is one of the most successful aspects of the
CWC; hence, it is hailed as a treaty that transcends the traditional arms control
mold (Chevrier 2002, 143).
Landmine Ban Convention
Convention on the Prohibition of the Use, Stockpiling, Production, Transfer of

Anti-Personnel Mines and their Destruction also known as anti-personnel mines
(APM) convention or as the Ottawa Treaty/Landmine Ban Convention was the
outcome of “international response to humanitarian crisis caused by the global
proliferation of anti-personnel mines” (ICRC 1998, 1). Although landmines are
not considered to be weapons of mass destruction, they have the capacity to cause
considerable damage to human and animal life. Landmines fall under the category
referred to by United Nations as “certain conventional weapons which may be
deemed to be excessively injurious or have indiscriminate effects” or inhumane
effects on the general population (CCW Convention 1980). One of the detestable
features of a landmine is its capacity to cause indiscriminate damage to human
beings or animals well after a conflict has concluded. Mines do not distinguish
between the civilian and non-civilian population and they are dormant for many
years before causing excessive physical harm. According to an International Red
Cross (ICRC) report, landmines “laid during the Second World War continue to
be discovered” and on many occasions these mines kill or wound civilians many
years after the conclusion of the war (ICRC 1998, 1).
In Cambodia alone there are over 35,000 amputees injured by landmines and
thousands die every year because of injuries caused by landmine explosions (ICBL
1999). The International Campaign to Ban Landmines (ICBL), reports that every
day “approximately sixty people are killed or seriously injured” because of anti-
personnel mines (Shalin 1998). Landmines pose a daily threat in many war torn
countries of the world such as Afghanistan, Angola, Bosnia, Cambodia, Chechnya,
Croatia, Iraq, Mozambique, Nicaragua, and Somalia. Permanent members of the
United Nations Security Council, China, Soviet Russia, and the United States are
some of the leading producers of landmines during the last 25 years. According to
ICBL a total of 50 countries have manufactured as many as 200 million landmines
just in the last two decades (ICBL 1999).
Landmine Ban treaty came into effect through a circuitous route. A treaty
banning landmines, booby traps, and other devices was negotiated under the
auspices of the Convention on Prohibitions or Restrictions on the Use of Certain
Conventional Weapons which may be deemed to be Excessively Injurious or to
have Indiscriminate Effects, also known as the Convention on Certain Conventional
Weapons (CCW). The CCW convention prohibits the use of certain conventional
weapons that are deemed to be excessively harmful or injurious or cause
indiscriminate injury. This convention was concluded in October and it entered

into force in December 1980. The CCW is a framework or an umbrella convention
with four separate protocols that prohibit the use of different types of conventional
weapons. Protocol I restricts the use of weapons that leave undetectable fragments
in the human body. Protocol II bans the use of mines, booby traps and other devices
that may cause excessive damage to human and animal life. Protocol III outlaws
the use of incendiary weapons and Protocol IV prohibits the use of blinding laser
weapons. These four protocols can be classified into two separate “normative
baskets” (Kaye and Solomon 2002, 923). Protocols I and II come under purview of
the first normative basket, which seeks to “protect combatants from ‘excessively
injurious’ weapons” such as blinding lasers and the second basket, which includes
Protocols II and III primarily aims to “protect civilians from weapons deemed to
‘have indiscriminate effects’” (Kaye and Solomon 2002, 923–4). Each state party
to the CWC must ratify the framework convention and each of the four protocols
separately. Protocol II of the CCW was subsequently amended and strengthened
by the state parties during the First Review Conference of the CCW held in 1996
and the amended Protocol II was annexed to the CCW text; this convention is now
commonly referred to as the Landmine Ban or the Ottawa Treaty.
The Landmine Ban treaty was born largely due to efforts of non-governmental
organizations, particularly ICBL and ICRC, the United Nations, and because of
the vigorous diplomatic impetus provided by Canada. The Canadian government
initiated the “Ottawa Process,” which led to the adoption of the “Ottawa
Declaration” in October 1996 and the Ottawa Landmine Ban treaty was opened
for signature in December 1997 (ICRC 1998). When the 40th instrument of
ratification was deposited with the United Nations Secretary General, the Ottawa
Treaty came into force on March 1999. As of September 2008, according to the
United Nations Disarmament Commission (UNDC), there are 156 state parties
to the landmine ban treaty and 39 countries are yet to join. The landmine ban is a
disarmament treaty similar to the Chemical Weapons Convention because it aims
to completely ban or remove all landmines from active circulation, production,
and stockpiling.
Article 7 (Transparency Measures) of the convention states that each state
party is expected to submit an initial report 180 days after the treaty is entered
into force detailing the location of mined regions, stockpiles, and identify any
production facilities. Based on the recommendations of the expert committee,
state parties with minefields or mine production facilities are expected to take
measures in cooperation with other state parties to demine areas and destroy
stockpiles. According to the Landmine Monitor Report published by ICBL, out of
the 156 state parties to the treaty, 96 percent have submitted initial reports, only six
state parties—Cape Verde, Equatorial Guinea, Ethiopia, Gambia, Haiti, and Sao
Tome—have not submitted their initial transparency reports as required by Article
7 of the convention (ICBL 2007, 18). State parties are also expected to introduce
corresponding national implementation measures by passing domestic legislation to
bring domestic laws and regulations in compliance with the international landmine
ban convention (Article 9, Landmine Treaty). So far only 35 state parties have
implemented national measures; others are in the process of introducing domestic
legislation. Large stockpiles of anti-personnel mines are still in the possession of
36 non-participating states to the Ottawa Landmine Ban treaty.
Seventy percent of the state parties have declared that they have no mined
areas, 38 states have declared the existence of mined areas and unexploded
landmines have affected 49 state parties (ICBL 2003). Furthermore, according to
the ICBL, 44 countries have declared that they have no stocks of landmines, 49
countries have completed destroying their existing stockpiles of landmines, ten
states are in the process of destroying the stocks, seven parties have not begun the
process of destruction, and 23 states have not yet officially declared their stockpile
status (ICBL 2003). Nearly 40 million or 20 percent of the global stockpiles of
the estimated 200 million mines have been destroyed due to the efforts pursued
under Article 5 of the Landmine Ban treaty (ICBL 2006). China (110 million), the
Russian Federation (26.5 million), and United States (10.5 million) are the largest
possessors of landmines; these three countries combined hold 92 percent of the
global stockpiles of anti-personnel mines. Not surprisingly, China, the Russian
Federation, and the United States have not ratified the Landmine Ban treaty.
State Resistance and Participation in Arms Control Conventions
Data on arms control treaties were collected from United Nations Disarmament
Commission, United Nations Treaty Series, and from the convention secretariats
that administer the treaties, such as the Organization for the Prohibition of
Chemical Weapons (OPCW) and the Comprehensive Test Ban Treaty Organization
(CTBTO) and the International Atomic Energy Agency (IAEA). A review of
the ratification record of the democracies, non-democracies, and partially free
states reveals that compared to human rights and environmental treaties a larger
number of democracies have ratified the five core arms control conventions under
consideration in this chapter. The ratification record of advanced democracies
is particularly remarkable; more than 90 percent of the advanced democracies
have ratified the NPT, CTBT, CWC, BWC, and the APM conventions. Among
advanced democracies only Israel has the lowest ratification rate; it has ratified
none of the five major arms control treaties. After Israel, India has the next lowest
ratification rate, it has joined only the CWC and BWC, and India is followed by
the United States, which is yet to ratify the CTBT and APM treaties. Finland and
Poland are the only two European states that have not ratified the anti-personnel
mines convention; all the other European countries have ratified all of the five
major arms control conventions. India, Israel, and the United States are the only
three advanced democracies that have the lowest participation rates; the rest of the
advanced democracies have a 100 percent participation in the major multilateral
arms control agreements under consideration in this chapter.
The overall ratification record of all democracies is particularly noteworthy.
Ninety-six percent of all democracies have ratified the NPT, 97 percent have
become parties to the CWC, 96 percent have joined the BWC, 86 percent have
ratified the CTBT, 87 percent have ratified the Landmine Ban treaty, and more
than 70 percent have entered the CCW, and the Seabed Test treaty. Among other
democracies, Comoros and Trinidad and Tobago have not ratified the BWC;
Dominican Republic has not become party to the CWC; Ghana, Guatemala,
Indonesia, Lebanon, Papua New Guinea, Solomon Islands, and Trinidad and
Tobago are the other non-parties to CTBT; and Finland, Lebanon, Mongolia,
Poland, South Korea, and Uzbekistan are yet to enter the Ottawa Landmine Ban
treaty. Out of the universe of 71 democracies, only a subset of three advanced
democracies and 14 democracies, which includes several small states with
populations of less than a million, have not participated in some of the five major
arms control treaties. The overall participation rate of the advanced democracies is
rather impressive with the exception of India, Israel, and the United States.
Forty percent of the countries that became democratic after 1950 ratified the
NPT after they transitioned towards democratic rule. Similarly, nearly 40 percent
of the United Nations member states have joined the CCW, ENMOD, Seabed,
and the Biological Weapons conventions after they become democratic.14 Newer
democracies and newly independent states that transitioned to democratic rule after
the end of the Cold War have demonstrated great eagerness to enter multilateral
arms agreement. Although more than 70 percent of the new democracies ratified
the anti-personnel mines, CTBT, and the Chemical Weapons conventions after
they became democratic, this does not provide an accurate picture because the
APM, CTBT, and the CWC were negotiated only in the 1990, by that time many
of the states had already made the transition towards democracy.
The ratification record of non-democracies is relatively weak compared to the
democracies. The Nuclear Non-Proliferation Treaty has near universal ratification
record among non-democracies with the exception of Pakistan that has not ratified
the NPT and conducted nuclear tests in 1998 in defiance of the NPT. Iran and
Democratic Republic of Korea are in serious violation of the NPT because both
these countries are pursuing a nuclear weapons program despite being a non-
nuclear weapons state party. Under the term of the NPT, non-nuclear weapons
states are prohibited from acquiring nuclear weapons capability or pursuing a
nuclear weapons program. Both Iran and North Korea are in violation of NPT, but
North Korea’s violations are particularly egregious as they present a serious threat
to international security and peace.
Less than 20 percent of the non-democracies have ratified the CCW and the
ENMOD treaty;15 only 62 percent have ratified the CTBT, 71 percent have ratified
the BWC, 62 percent have joined the APM convention, and only 38 percent
14 This ratification analysis of participation in CCW, ENMOD, and Seabed Test
treaties were performed using POLITY IIID dataset, UNTS, UNDC database from 2003.
15 This ratification analysis was performed using POLITY IIID dataset and UNTS
database from 2003.
have ratified the treaty outlawing testing of nuclear weapons in the seabed;16 but
surprisingly 91 percent of the non-democracies have ratified the Chemical Weapons
Convention. Analyzing the ratification pattern of non-democracies reveals some
revealing trends. Four countries Egypt, Myanmar, North Korea, and Syrian Arab
Republic have ratified only one of the five core arms control conventions; Angola
and Pakistan each has ratified only two of the core treaties, seven countries—the
Central African Republic, Chad, China, Iran, Kazakhstan, Saudi Arabia, and the
United Arab Emirates—have ratified three of the core conventions, and 12 countries
have ratified four of the five core treaties—NPT, CTBT, CWC, BWC, and APM.
Among partially free states Nepal and Sri Lanka have each not ratified two of the
five treaties, Liberia has joined only three, and ten states have not ratified at least
one of the five major arms control agreements. The interesting trend here is that
the same set of non-democratic and partially free states have unfailing refused to
become parties to the core multilateral arms control agreements and are impairing
the functioning and viability of these regimes.
WMD Capable States and Arms Control Regimes
Besides the fact that there are fewer treaties in the arms control arena, two other
factors distinguish arms control conventions from other regime areas. One is the
issue of state capacity, that is, some democratic and non-democratic states, particular
smaller states, which have joined many arms control agreements may never acquire
WMD because they do not possess the necessary technological capacity, financial
wherewithal or the willingness to possesses such weapons. Although proliferation
of conventional and non-conventional arms might have implication for all state
parties irrespective of size and capacity, states that have become parties to
multilateral arms control agreements do not necessarily pose proliferation threats
and they might never pose such threats. The formal participation in multilateral
arms control agreements demonstrates commitment to peace and security, and the
willingness of the state parties to meet their international security obligations. Arms
control conventions are, however, targeted against a subset of states that present
substantial challenges to the effective functioning of arms control regimes. These
countries are targeted because they have the capacity and aspiration to acquire
certain mass destructive weapons and have the potential to endanger international
peace and security. For instance, CTBT’s entry into force is dependent upon the
ratification by a select group of 44 countries listed in the Annex II of the treaty
text; in other words, the CTBT is specifically aimed at bringing these 44 countries
within the ambit of the CTBT. Without the ratification of these 44 states, CTBT
cannot become operational. So far 35 Annex II states have ratified the CTBT;
China, Egypt, India, Indonesia, Iran, Israel, North Korea, Pakistan and the United
16 Non-democratic state participation in the treaty prohibiting testing in the seabed
was also conducted using POLITY IIID dataset and UNTS database from 2003.
States are the 9 Annex II states that have not ratified CTBT and they are effectively
blocking the treaty from coming into legal force.
Even if a country chooses to voluntarily forego the opportunity to acquire
WMD, a neighboring country might acquire WMD and, hence, alter the
geostrategic balance of the region triggering an arms race. In the Middle East,
many Arab states have pursued clandestine nuclear, chemical, and biological
weapons programs because of the enduring conflict with Israel and by extension
with the United States and because of Israel’s unwillingness to join any of the
major arms control treaties and demonstrate transparency in its weapons program.
In East Asia, North Korea’s nuclear program poses a hazard to Japan and South
Korea, and China’s threat to forcefully occupy Taiwan has made it unavoidable
for Japan, South Korea, and Taiwan to consider acquiring WMD even though
they may not have any independent aspirations to acquire WMD. In South Asia
the enduring conflict between India and Pakistan has ignited an arms race in the
region. Therefore, in the arms control arena ratification by certain states that pose
a threat to its neighbors, states that hold the potential and the capacity to develop
WMD, and states that are involved in a conflict are of critical importance to ensure
the success of a regime.
According to publicly available information provided by leading think tanks,
government agencies, and international organizations, such as the Carnegie
Endowment for International Peace (CEIP), Nuclear Threat Initiative (NTI), and
the Federation of American Scientists (FAS), and the United States Department
of State, anywhere between 25 to 30 states are considered to be target treaty
participants in the major areas of concern—nuclear, chemical, biological, and
ballistic missiles. Out of these 30 countries, five democracies (France, India, Israel,
the United Kingdom, and the United States), six non-democracies (China, Egypt,
Iran, North Korea, Pakistan, and Syria), and one partially free state (the Russian
Federation) are central to the success of non-proliferation and disarmament
regimes. Participation of these 12 countries is considered absolutely essential
for the effective functioning of arms control regimes. These 12 countries can be
divided into the following categories: (1) states with an active nuclear weapons
program sanctioned by NPT; (2) states with an active nuclear weapons program
not sanctioned by NPT; (3) states that are pursuing or have pursued a nuclear
weapons program or other WMD program at one time or another; (4) states that
have the technological capacity and opportunity to acquire WMD; and (5) and
states that have voluntarily renounced their aspirations to acquire WMD.
Among the democracies France, the United Kingdom, and the United Staes are
legally allowed to possess nuclear weapons under the terms of NPT. Both India
and Israel have not joined NPT or CTBT, but only India has openly demonstrated
its nuclear capacity by conducting nuclear tests in 1974 and again in 1998. Israel
continues to remain an opaque nuclear power, but there is widespread speculation
that it is in possession of clandestine nuclear weapons (Cohen 1998; Hersh 1991).
Japan, according to a report published by the Federation of American Scientists,
can be considered as a virtual nuclear power state because it has all the necessary
technological ingredients plus an active civilian nuclear energy program with 55

nuclear reactors that are capable of generating up to 50 gigawatts of electricity,
which puts Japan as the third largest nuclear power producer behind the United
States and France (United States Department of Energy 2008, 11). There is no
evidence to suggest that Japan has reprocessed plutonium or engaged in other
activities demonstrating its intention to acquire nuclear or other mass destructive
weapons. Japan is constitutionally prohibited from acquiring or manufacturing
nuclear weapons, and it has steadfastly disavowed the need for nuclear weapons
and repeatedly called for global disarmament and has agreed to the full scope
safeguards agreement and additional safety protocols of the IAEA. The concern,
however, is that Japan might go nuclear to deter China’s emergence as a dominant
military power in East Asia (Chanlett-Avery 2008, 16–18). Taiwan and South
Korea are presumed to have the capacity to develop an independent deterrent to
counter the threats posed by China and North Korea. Diplomatic pressure and
security guarantees from the United States have contained the nuclear aspirations
of Taiwan and South Korea.
The People’s Republic of China and the former Soviet Union are allowed
to retain nuclear weapons under the terms of NPT, but these two countries have
periodically violated NPT protocols. China has been involved in numerous
clandestine deals that might have assisted the North Korean and Pakistani nuclear
weapons program, and there is some information to suggest that nuclear materials
might have been transferred to Iran, Syria, and Algeria through Pakistan (Carnegie
Endowment Policy Brief 2000; Cirincione et al. 2005, 171–6). One of the positive
outcomes resulting from the end of Cold War is the accession of many states to the
NPT with the accompanying pledge not to produce or store nuclear weapons within
their borders. Belarus, Kazakhstan, Uzbekistan, and Ukraine returned all of the
nuclear materials and weapons stored by the former Soviet Union, renounced their
aspirations to acquire or hold weapons of mass destruction and opened themselves
to full scope safeguards by the IAEA. Argentina and Brazil also renounced the
nuclear weapons program and joined the NPT and CTBT. South Africa declared
that it had destroyed the six nuclear weapons that it had in its possession and joined
the NPT in 1992 after the dissolution of the apartheid regime and entered several
arms control conventions. The preamble of the NPT calls on all state parties to
“achieve at the earliest possible date for the cessation of the nuclear arms race and
to undertake effective measures in the direction of nuclear disarmament” (Nuclear
Non-Proliferation Treaty 1968). Forty years after the adoption of NPT, the goal of
nuclear disarmament still remains distant and unattainable.
The opacity of Israel’s nuclear program, close ties between Pakistani nuclear
scientists and terrorist groups, inadequate protection of nuclear materials and
weapons in Russia and the republics of the former Soviet Union, North Korea’s
nuclear threats, and China’s clandestine arms sales pose the biggest challenge
to continued success of the arms control regimes. Similar patterns characterize
the participation of the same group of states in the area of chemical, biological,
and missile proliferation. Countries that have either pursued or sought to pursue
a nuclear weapons program have also evinced interest in the development of

chemical and biological weapons and mechanisms for the delivery of such
weapons. Nine non-democratic countries have an active biological and chemical
weapons program and at least 18 non-democratic states have acquired or
indigenously developed short-range (travels less than 1,000 kilometers) ballistic
missile capacity, and China, India, Iran, Israel, North Korea, Pakistan, and Saudi
Arabia are capable of delivering WMD payload through medium-range ballistic
missiles that range from 1,000 to 3,000 kilometers (Cirincione et al. 2005, 15).
China, Egypt, Iran, Israel, North Korea, and Syria are suspected of possessing
biological and chemical weapons stockpiles and pursuing an active biological and
chemical weapons research program (Cirincione 2002, 16, 69–98; Cirincione et
al. 2005, 81–2). Additional reports also suggest that Myanmar, Pakistan, Saudi
Arabia, Sudan, and Vietnam might be also pursuing chemical weapons research
and developing chemical warfare plans (Cirincione et al. 2005, 81). Canada,
France, Germany, Japan, the United Kingdom, the United States, some of the
former Soviet Republics, and South Africa have discontinued their biological
weapons program and entered the BWC and CWC.
Participation in Multilateral Arms Control Agreements
There are some suggestions that democratic rule might be positively associated
with participation in multilateral arms control conventions. This link is particularly
strong among the newer democracies, which have displayed great eagerness in
acceding to multilateral arms control treaties. The Missile Technology Control
Regime (MTCR), which is an export control regime that governs the sale and
transfer of missile components, has 32 members none of whom are non-democracies.
The MTCR was established in 1987 primarily by the G8 members, subsequently
membership was expanded to include Argentina, Brazil, the Czech Republic,
Hungary, Poland, and South Africa, which became parties to the MTCR after they
transited to democratic rule. In addition, there is also reason to indicate that the
link between participation in multilateral arms control agreements and domestic
regime-type is especially strong among OECD/European Union democracies;
countries such as Australia, Austria, Belgium, Canada, Denmark, Germany,
Greece, Hungary, Iceland, Ireland, Italy, Japan, Luxembourg, the Netherlands,
New Zealand, Norway, Portugal, Spain, Sweden, and Switzerland have become
parties to all the major arms control conventions. Although democracies are
highly participatory in multilateral treaty regimes, there are important democratic
standouts such as India, Israel, the United States, and to some extent France. The
United States Senate failed to ratify the CTBT convention in 1999 and refused
to join the landmine ban treaty. President George W. Bush withdrew from the
bilateral Anti-Ballistic Missile (ABM) Treaty with the Russian Federation on June
13 2002 citing the demise of the Cold War and the urgent need to develop an anti-
ballistic missile shield to counter the missile proliferation threat from so-called
rogue states and confront the challenges faced by terrorist threats. India is deeply
opposed to CTBT and NPT; it has developed nuclear weapons in open defiance
of the non-proliferation regime and not ratified the APM convention. France has
also displayed a similar exceptional streak; it did not join the NPT until 1992 and
France conducted a series of nuclear tests on January 27 1996 before entering
the CTBT on September 24 1996 (FAS, France-Nuclear Forces Guide). Nine
democracies are yet to become parties to the landmine ban convention.
Examination of the broad trends in state participation in multilateral arms
control agreements indicates that strengthening treaty verification measures will not
entirely address compliance issues. States enter arms control agreements because
they are convinced that possessing certain types of mass destructive weapons are
not in the national interest and they also do not increase regional security.
Or as the renowned military strategist Thomas Schelling puts it, unilateral

disarmament irrespective of what the other side does or what weapons it possess
suggests that a country to arrived at a point where holding certain types of
weapons is no longer regarded as beneficial for its overall strategic welfare
(Chevrier 2002, 145).
Argentina, Brazil, South Africa, and the Ukraine voluntarily acceded to numerous
arms control conventions, after transitioning towards democracy, but some
countries, especially democratic states are more reluctant to forego their weapons.
They hold on to WMD either because of perceived security threats or because of
certain nationalistic reasons. An argument can be made that India’s reasons for
developing nuclear weapons is not entirely because of security threats posed by
China and Pakistan, but it is driven by domestic political motivations.
Israel has decided to pursue an opaque nuclear weapons policy because of
regional hostilities. Japan stands in stark contrast to other states because it has
decided not to acquire nuclear weapons, despite facing national security threats
from some of its neighbors. Germany also has disavowed the nuclear option,
whereas neighboring France continues to hold on to its nuclear arsenal; so does the
United Kingdom. France and the United Kingdom are allowed to possess nuclear
weapons as per the terms of the NPT, whereas India and Israel are not allowed,
but they do, and they do not participate in any of the nuclear non-proliferation
regimes. Not only are non-democracies not participating in arms control regimes,
but they are also pursuing activities that are contrary to the expectations of the
treaties that they ratify. A problem of compliance verification that is endemic to
multilateral treaty regimes indicates that regime strength and effectiveness of a
treaty alone will not guarantee participation and cooperation; the degree to which
states internalize the norms of the different conventions is more likely to determine
the success of arms control regimes.
Appendix I List of 162 United Nations member states by domestic

regime-type
Democracies Non-democracies Partially-free No polity data

1 Albania 1 Algeria 1 Bangladesh 1 Afghanistan
Bosnia and
2 Argentina 2 Angola 2 Benin 2
Herzegovina
3 Australia 3 Armenia 3 Colombia 3 Ethiopia
Congo, Dem
4 Austria 4 Azerbaijan 4 4 Iraq
Rep
5 Belgium 5 Bahrain 5 Ecuador 5 Ivory Coast
6 Bolivia 6 Belarus 6 El Salvador 6 Somalia
7 Botswana 7 Bhutan 7 Estonia -
8 Brazil 8 Burkina Faso 8 Georgia -
9 Bulgaria 9 Burundi 9 Guinea-Bissau -
10 Canada 10 Cambodia 10 Guyana -
11 Chile 11 Cameroon 11 Haiti -
Central African
12 Comoros 12 12 Honduras -
Rep
13 Costa Rica 13 Chad 13 Liberia -
14 Croatia 14 China 14 Madagascar -
15 Cyprus 15 Congo 15 Malawi -
16 Czech Rep 16 Cuba 16 Malaysia -
17 Denmark 17 Djibouti 17 Mali -
18 Dominican Rep 18 Egypt 18 Mozambique -
Equatorial
19 Finland 19 19 Namibia -
Guinea
20 France 20 Eritrea 20 Nepal -
21 Germany 21 Fiji 21 Niger -
22 Ghana 22 Gabon 22 Nigeria -
Russian
23 Greece 23 Gambia 23 -
Federation
24 Guatemala 24 Guinea 24 Sierra Leone -
25 Hungary 25 Iran 25 Sri Lanka -
26 Iceland 26 Jordan 26 Timor-Leste -
27 India 27 Kazakhstan 27 Togo -
28 Indonesia 28 Kenya 28 Ukraine -
Korea, Dem
29 Ireland 29 29 Venezuela -
People’s Rep
30 Israel 30 Kuwait 30 Zambia -
31 Italy 31 Kyrgyzstan - -
Lao People’s
32 Jamaica 32 - -
Dem Rep
Appendix I continued List of 162 United Nations member states by

domestic regime-type

Libyan Arab
33 Japan 33 -
Jamahiriya
Korea, Rep
34 34 Mauritania - -
(South Korea)
35 Latvia 35 Morocco - -
36 Lebanon 36 Myanmar - -
37 Lesotho 37 Oman - -
38 Lithuania 38 Pakistan - -
Macedonia,
39 39 Qatar - -
FYR
40 Mauritius 40 Rwanda - -
41 Mexico 41 Saudi Arabia - -
42 Moldova, Rep 42 Singapore - -
43 Mongolia 43 Sudan - -
44 Montenegro 44 Swaziland - -
Syrian Arab
45 The Netherlands 45 - -
Rep
46 New Zealand 46 Tajikistan - -
47 Nicaragua 47 Tanzania - -
48 Norway 48 Thailand - -
49 Panama 49 Tunisia - -
Papua New
50 50 Turkmenistan - -
Guinea
51 Paraguay 51 Uganda - -
United Arab
52 Peru 52 - -
Emirates
53 Philippines 53 Vietnam - -
54 Poland 54 Yemen - -
55 Portugal 55 Zimbabwe - -
56 Romania - - -
57 Senegal - - -
58 Serbia - - -
59 Slovakia - - -
60 Slovenia - - -
Solomon
61 - - -
Islands
62 South Africa - - -
63 Spain - - -
64 Sweden - - -
Appendix I continued List of 162 United Nations member states by

domestic regime-type

65 Switzerland - - -
Trinidad and
66 - - -
Tobago
67 Turkey - - -
United
68 - - -
Kingdom
69 United States - - -
70 Uruguay - - -
71 Uzbekistan - - -
Source: Calculated from POLITY IV Dataset.
Appendix II List of countries not included in treaty participation analysis
Number Country*
1 Andorra (July 28 1993)**
2 Antigua and Barbuda (November 11 1981)
3 Bahamas (September 18 1973)
4 Barbados (December 9 1966)
5 Belize (September 25 1981)
6 Brunei Darussalam (September 21 1984)
7 Cape Verde (September 16 1975)
8 Dominica (December 18 1978)
9 Grenada (September 17 1974)
10 Kiribati (September 14 1999)
11 Liechtenstein (September 18 1990)
12 Luxembourg (October 24 1945)
13 Maldives (September 21 1965)
14 Malta (December 1 1964)
15 Marshall Islands (September 17 1991)
16 Micronesia, Federated States of… (September 17 1991)
17 Monaco (May 28 1993)
18 Nauru (September 14 1999)
19 Palau (December 15 1994)
20 Saint Kitts and Nevis (September 23 1983)
21 Saint Lucia (September 18 1979)
22 Saint Vincent and the Grenadines (September 16 1980)
23 Samoa (December 15 1976)
24 San Marino (March 2 1992)
25 Sao Tome and Principe (September 16 1975)
26 Seychelles (September 21 1976)
27 Suriname (December 4 1975)
28 Tonga (September 14 1999)
29 Tuvalu (September 5 2000)
30 Vanuatu (September 15 1981)
Notes: * Continuous Time-Series Domestic Regime-Type Data was not available from
POLITY IV dataset. ** Dates within parenthesis refer to the date on which these states
officially became UN Member States.
Source: Calculated from POLITY IV Dataset.
Chapter 4
State Participation in Multilateral
Human Rights Regimes
The United Nations Human rights system was established to create “a comprehensive
system for the protection of human rights” and restore the dignity of human life
(Claude and Weston 1989, 7). Development of human rights regimes was primarily
motivated because of demands for respect, power, wealth, enlightenment, well-
being, affection, and moral rectitude (Claude and Weston 1989, 5). Treaties were
devised to address issues such as non-discrimination, political and civil liberties,
wider political participation, education, access to health, welfare, and protection
from ill-treatment, abuse, and imprisonment for having political, religious, or
moral beliefs that are contrary to the interest of the ruling class. Human rights
norms reflect principles enshrined in the French revolutionary slogan of liberté
(liberty), égalité (equality), and fraternité (fraternity).
Three historical factors influenced the development of international human
rights law: (1) horrors and devastation visited on large groups of people because
of the Second World War; (2) establishment of the United Nations; and (3)
the decolonization process that increased demands for self-determination and
nationhood. Universal Declaration for Human Rights (UDHR) stands out as
the central document because it serves as a foundation for the development and
expansion of global human rights. The international human rights agenda has
largely evolved due to the efforts of the United Nations and its various sister
organizations. The United Nations Treaty system has become the primary vehicle
through which human rights norms are promulgated and disseminated.
Human rights conventions represent a set of principles and values that national
governments, non-governmental organizations, international institutions, trade
unions, religious groups, and political parties use to determine the standards for
appropriate behavior. A human right represents either an individual or a group
demand that is characterized by a “wide continuum of value claims that range from
justifiable to aspirational” (Claude and Weston 1989, 17). Such value claims are
encoded in the language of international law and formalized through ratification of
international conventions on human rights. Through ratification, a state indicates
that it accepts the values and norms inscribed in a treaty and that it is willing to
legally bind itself to complying with such norms. Human rights instruments wielded
by the United Nations fall into four broad categories: (1) general conventions; (2)
conventions that are specifically oriented towards a particular human rights issue;
(3) conventions that aim to provide protection to certain groups or marginalized
people; and (4) conventions that prohibit different forms of discrimination (Claude
and Weston 1989, 8–9). These four types of conventions can be classified as: (1)
declaratory; (2) promotional; (3) implementation; and (4) enforcement regime
(Donnelly 2003, 128). United Nations human rights regimes are either declaratory
or promotional, sometimes both; invariably they lack implementation and
enforcement capacity that can be found only in Europe, which is governed by the
Council of Europe and the European Court of Human Rights.
The International Covenant on Civil and Political Rights (ICCPR); the First
Optional Protocol on Civil and Political Rights (ICCR-OP1); and the International
Covenant on Economic, Social, and Cultural Rights (ICESCR) are classified as
general conventions that have universal application. These three conventions along
with the Second Optional Protocol on Civil and Political Rights (ICCPR-OP2),
which aims to abolish the death penalty, and the Universal Declaration on Human
Rights (UDHR), are commonly referred to as the International Bill of Human
Rights. The International Bill of Human Rights has emerged as a set of “historic
documents articulating a common definition of human dignity and values” that
represent the fundamental “yardstick by which to measure the degree of respect
for, and compliance with, international human rights standards everywhere on
earth” (UNHCHR 1996). Topical conventions are specifically oriented towards
addressing human rights issues, such as genocide, war crimes, torture and cruelty,
slavery, traffic in persons, and labor servitude. The Convention Relating to the
Status of Refugees, the Convention on Stateless Persons, the Convention on the
Suppression and Punishment of the Crime of Apartheid, the Convention on the
Prohibition on the Use of Children in Armed Conflict, and the Convention on
the Nationality of Married Women are some treaties that aim to protect specific
groups of people from harassment, abuse, and sustained harm. Treaties, such as the
International Convention on the Elimination of All Forms of Racial Discrimination
(ICERD), the Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW), and the Political Rights of Women (PRW) seek to
promote norms that prohibit and redress different types of racial and gender-based
discrimination.
Human rights treaties are intrinsically normative. Article 1 of the Universal
Declaration of Human Rights (UDHR) opens with the proclamation that all
“human beings are born free and equal in dignity and rights.” Article 2 of the
UDHR forbids distinctions based on “race, color, sex, language, religion, political,
or other opinion, national or social origin, property, birth or other status.” Article 3
proclaims that the right to life, liberty, and security are fundamental to the
enjoyment of all other rights. Other articles of the UDHR highlight the importance
of civil, political, and economic liberties, and the right to lead a life free from
servitude, torture, cruelty, and degrading punishment as the centerpiece of human
rights. The UDHR puts forward the idea that the right to liberty and equality is
universal and unalienable and all citizens irrespective of their national origin must
be treated with equal concern and respect.
The universality of the declaration of human rights has come under intense
scrutiny because many commentators argue that the UDHR promotes the cultural
State Participation in Multilateral Human Rights Regimes 99
and religious values of the West at the expense of other values such as Asian,
Hindu, and Islamic (Meijer 2001; Patman 2000, 3). There is general agreement
among human rights scholars that international human rights instruments are
overwhelmingly derived from the Western liberal thought (Donnelly 2003). Hence,
non-Western nations have routinely questioned whether the International Bill of
Human Rights and other treaty instruments genuinely represent the values of non-
Western cultures. Cultural relativists claim that universal human rights are subject
to varied cultural and social interpretations; hence, the application of the UDHR
has to be tailored to suit local institutional settings that accommodate the dominant
political and cultural ideas. Cultural relativism, however, is not without problems;
it has in many instances become a threat to the effective functioning of international
human rights because states have chosen to disregard international laws, refused
to participate in treaties, and ignored treaty obligations. Subsequent to ratification
states enter a series of reservations to human rights conventions, which exempts
them from complying with specific normative and procedural components of a
treaty that substantially waters down the legal impact of a convention. States also
delay or fail to submit the initial or periodic reports documenting progress they
have made in improving their domestic human rights record and steps they have
pursued to improve their human rights record, which is expected of all state parties
to the seven core human rights conventions and for certain optional protocols of
the core conventions.
United Nations Human Rights Treaty System
The international human rights treaty system has evolved through a gradual
process of negotiation and bargaining among United Nations member states.
This process is also supplemented by NGOs, which have played a critical role
in bringing many human rights issues to the forefront of global attention. The
United Nations human rights system is based on a 2-track approach to monitoring
participation and compliance with charter and treaty-based organs. Charter bodies,
such as the Human Rights Council (henceforth the Council or HRC) established
in 2006 replacing the Commission on Human Rights that was originally created
in 1946 and the Sub-Commission on the Promotion and Protection of Human
Rights, are political organs that have substantial mandates to promote awareness
of human rights, improve implementation of norms at the state level, and enhance
state participation. The HRC is an intergovernmental body with 47 members that
is responsible for the strengthening and the promotion of human rights around the
world. Besides the HRC, Special Procedures, which is a mechanism to address
The Sub-commission on the Promotion and Protection of Human Rights has

been absorbed by the newly established Human Rights Council as an 18 person Advisory
Committee. This Advisory Committee will work as a think tank advising and charting new
directions for the council.
human rights situations in specific countries and specially identified thematic

issues, and Universal Periodic Review (UPR) mandated by the General Assembly
that seeks to review human rights situation in all the 192 United Nations member
states according to a set calendar, are the main charter-based bodies of the United
Nations.
Presently there are seven human rights treaty bodies that manage participation,
implementation, and compliance with the seven core treaties and their six optional
protocols. The Human Rights Committee is charged with examining implementation
of the ICCPR and the Optional Protocol for the ICCPR, which authorizes the
receipt of individual complaints; the Committee on Economic, Social and Cultural
Rights (CESCR); the Committee on the Elimination of Racial Discrimination
(CERD); the Committee on the Elimination of Discrimination Against Women
(CEDAW); the Committee Against Torture (CAT) and the Optional Protocol to the
Convention on Torture, which is monitored by the Subcommittee on Prevention
of Torture (OP-CAT); the Committee on the Rights of the Child (CRC) monitors
implementation of the Child Rights Convention and its two Optional Protocols
that Prohibit Children in Armed Conflict (OP-CRC-AC) and Sale of Children (OP-
CRC-SC); the Committee on Migrant Workers (CRMW); and the Committee on
the Rights of Persons with Disabilities (CRPD).
Treaty bodies are primarily administered by the United Nations Office of the
High Commissioner for Human Rights (UNHCHR) located in Geneva. Besides
the seven core treaties and their six optional protocols, the UNHCHR is also
responsible for overseeing more than 100 different human rights instruments
encompassing 18 issue areas that confront diverse matters such as engendering
civil and political liberties, economic rights, genocide, torture and cruelty, political
rights of women, rights of the child, refugees, statelessness, rights of the migrant
workers, political and civil liberties, slavery, death penalty, racial discrimination,
and apartheid. There are at least five treaties on average for each of the 18 human
rights topics; administration of justice has received the most significant attention
because there are 24 international legal instruments that seek to govern various
aspects associated with the administration of justice, detention, and imprisonment.
Norms on prevention and elimination of discrimination on the basis of race,
religion, belief, gender, ethnicity, and nationality are promulgated through at least
20 international conventions.
Assessing the participation and resistance of 192 member countries in more than
100 multilateral conventions would be beyond the scope of this book. Therefore, the
focus will be on a set of 31 human rights treaties that include the seven core treaties
and their six optional protocols, 16 other treaties that have universal relevance,
salience, and widespread applicability are also included in the treaty participation
analysis (see Table 4.1). The Convention on the Rights of Persons with Disabilities
CESCR is not authorized is receive individual complaints. Presently, a draft optional

protocol is under consideration to examine whether it would be feasible to accept individual
complaints for the ICESCR.
(ICRPD), its optional protocol, and the Convention for the Protection of All
Persons from Enforced Disappearance (ICPPED) were adopted only in 2006. These
three conventions are not included for analysis in this chapter because they were
introduced only in 2006 and they have not entered into force; hence, participation
in these conventions is minimal. The Disabilities convention (ICRPD) has seven
state parties, the optional protocol to the ICRPD has three state parties, and only
one country has ratified the Enforced Disappearance convention. Thirty-one treaties
under consideration in this chapter embody the norms encompassed in the UDHR
and represent complex human rights challenges confronted by United Nations
member states. Ratification and non-ratification of these 31 human rights treaties
by 71 democracies, 55 non-democracies, and 30 partially free states are analyzed
to determine if there are any causal linkages between domestic regime-type and
participation in multilateral treaties. As mentioned in the previous chapter, the United
Nations recognizes 192 member states; continuous time series data on regime change
and regime stability is available only for 162 countries from the POLITY IV dataset.
Treaty ratification analyzes provide some interesting insights on state participation
vis-à-vis the human rights regimes.
State Participation in Human Rights Conventions
Prior to the Second World War, international human rights regimes were non-
existent, with the exception of laws relating to armed conflict, and most of the
agreements among states where based on customary international law that was
thought to apply only to the community of civilized nations. The end of the
Second World War and the establishment of the United Nations have engendered a
rapid growth in treaty-based international law covering a wide gamut of complex
policy issues and decolonization has also increased the number of state parties
entering international legal arrangements. The number of United Nations member
states increased from 45 in 1945 to 192 in 2008 and the number of human rights
instruments increased from eight in 1950 to 132 by 2006; from 1986 to 2002
alone 47 new human rights instruments were adopted by the United Nations.
As the United Nations human rights treaty regimes have expanded, participation
has increased “enormously in terms of ratifications, acceptance of individual
communications, procedures, the number of reports produced and considered,
and individual cases considered” (Bayefsky 2001, xiii). The convention on the
Rights of the Child (CRC), and the Convention on the Elimination of All Forms
of Discrimination Against Women (CEDAW) have been ratified by 99 and 96
percent of the United Nations member states and 90 percent of the United Nations
members have become parties to the Convention on the Elimination of Racial
Discrimination (ICERD).
Based on the author’s calculations, data drawn from the United Nations Office of
High Commissioner for Human Rights (UNHCHR) and the United Nations Treaty Index.
Table 4.1 State participation in human rights treaties, 1945–2008
Partially
Total % Dems % Non-Dems/
Year Human Rights Treaties Free/
Ratified*** Non-Ratify* Non-Ratify%
Non-Ratify%
1 1948 Convention on the Prevention and Punishment of the Crime of Genocide 73** 8 27 33******
2 1951 Convention Relating to the Status of Refugees 75 13 33 20
3 1967 Protocol on the Status of the Refugees 78 11 33 27
4 1954 Convention Relating to the Status of Stateless Persons 33 44 78 87
5 1961 Convention on the Reduction of Statelessness 18 66 87 97
6 1953 Convention on the Political Rights of Women 63 11 45 43
7 1926 1926 Slavery Convention**** 41 NA NA NA
Convention for the Suppression of the Traffic in Persons and of the
8 1949 41 54 55 47
Exploitation of the Prostitution of Others
Slavery Convention, Signed at Geneva on September 25 1926 and
9 1953 51 35 53 53
Amended by the Protocol
Protocol Amending the Slavery Convention Signed at Geneva on
10 1953 31 52 80 83
September 25 1926
Supplementary Convention on the Abolition of Slavery, the Slave Trade,
11 1956 64 20 42 43
and Institutions and Practices Similar to Slavery
12 1957 Convention on the Nationality of Married Women 38 42 73 63
Convention on Consent to Marriage, Minimum Age for Marriages and
13 1962 28 58 78 77
Registration of Marriages
14 1966 International Covenant on Civil and Political Rights 82 6 24 7
15 1966 International Covenant on Economic, Social and Cultural Rights 84 4 16 10
Table 4.1 continued State participation in human rights treaties, 1945–2008
Partially
Non-Ratify%
International Convention on the Elimination of All Forms of Racial
16 1966 90 0 9 7
Discrimination
First Optional Protocol to the International Covenant on Civil and
17 1966 59 18 65 27
Political Rights
Convention on the Non-Applicability of Statutory Limitations to War
18 1968 27 63 71 80
Crimes and Crimes Against Humanity
International Convention on the Suppression and Punishment of the
19 1973 56 58 31 17
Crime of Apartheid
Convention on the Elimination of All Forms of Discrimination Against
20 1979 96 1 5 0
Women
Convention Against Torture and Other Cruel, Inhuman or Degrading
21 1984 76 11 33 10
Treatment or Punishment
22 1985 International Convention Against Apartheid in Sports***** 31 NA NA NA
Second Optional Protocol to the International Covenant on Civil and
23 1989 38 54 95 57
Political Rights, Aiming at the Abolition of the Death Penalty
24 1989 Convention on the Rights of the Child 99 1 0 0
International Convention on the Protection of the Rights of All Migrant
25 1990 19 79 78 100
Workers and Members of their Families
26 1998 Rome Statute International Criminal Court 55 23 71 37
Agreement on the Privileges and Immunities of the International
27 2002 28 49 91 77
Criminal Court
Table 4.1 continued State participation in human rights treaties, 1945–2008
Partially
Non-Ratify%
Optional Protocol to the Convention on the Elimination of All Forms of
28 1999 46 25 82 53
Discrimination Against Women
Optional Protocol to the Convention on the Rights of the Child on the
29 2000 66 23 31 30
Sale of Children, Child Prostitution and Child Pornography
Optional Protocol to the Convention on the Rights of the Child on the
30 2000 63 21 38 40
Involvement of Children in Armed Conflict
Optional Protocol to the Convention Against Torture and Other Cruel,
31 2002 18 68 96 77
Inhuman or Degrading Treatment or Punishment
Notes: * Non-Ratification data refers to percent of states that have not ratified in each category.
** Refers to percent of total number of state parties ratifying a human rights treaty (Democracies, Non-Democracies, and Partially-Free States).
*** Total number of state parties equals 192.
**** 1926 Slavery Convention refers to the League of Nations Convention, hence participation analysis was not conducted due to data incompatibility.
***** Full ratfication data not available for the International Convention against Apartheid in Sports (Treaty Suspended).
****** Percentages do not add up to 100 because of rounding and the number of countries in each category vary.
Source: Human Rights Treaty ratification data collected from various sources, but primarily from UN High Commissioner for Human Rights and United
Nations Treaty Database (UNTS).
Two other core human rights treaties, the Civil and Political Rights treaty (ICCPR)
and the Convention on Economic, Social and Cultural Rights (ICESCR), have
been ratified by 85 and 83 percent of the states respectively. Beyond these five
treaties, state participation in human rights conventions start to rapidly decline.
The Convention Against Torture (CAT) has been ratified only by 76 percent of the
states and the International Convention on the Protection of Rights of All Migrant
Workers and Members of their Families (ICRMW), which entered into force in
2003, has only 37 state parties. Four optional protocols, two associated with the
ICCPR, the second optional protocol to the ICCPR that aims to abolish the death
penalty, first optional protocol for the CEDAW and CAT respectively, have very
low participation rates. An optional protocol to the CAT has only 35 state parties,
and the second optional protocol of the ICCPR aiming to abolish the death penalty
has a participation rate of 38 percent among all United Nations member states.
The Convention on Rights of the Child (CRC), which was adopted in 1989 and
came into force the following year, enjoys near universal ratification with 190 out
of the 192 United Nations member states ratifying this convention. Two optional
protocols to the rights of the child that seek to ban the sale and enslavement of
children and prohibit their involvement in armed conflict has been accepted by 60
percent of the state parties (see Table 4.1).
Civil and Political Liberties and Economic and Social Rights
The cornerstone of the United Nations human rights treaty system is the ICCPR
and ICESCR conventions that relate to civil and political liberties and economic,
social, and cultural rights, which is a detailed and careful elaboration of the UDHR.
While the ICCPR came to symbolize individual rights, civil liberties, political
rights and empowerment of the individual or the citizen vis-à-vis the state, the
ICESCR came to represent broad-based views on the economy and culture, such
as the right to work, right to form unions, right to rest and leisure, and the right
to a living wage. These two treaties came to symbolize not only the Cold War
conflict, but also exemplified the North–South divisions between the developed
and developing nations. Supporters and detractors of these two pivotal treaties
diverged into opposite camps. Communist and pro-Soviet states that privileged
economic, social, and cultural rights argued that the right to free speech is of no
use to the starving, illiterate, and homeless.
The Western bloc argued that economic, social, and cultural rights are not
rights as such because such rights cannot be guaranteed by the state without
aggressive state intervention into the economy, which ironically will adversely
affect civil and political liberties (Steiner and Alston 2008, 263). While negative
rights, which generally refer to civil and political rights, “requires the forbearance
of others,” and violating negative rights involve causing harm or injury to others,
whereas positive rights require the active support of others or it is an instance of
“failing to provide assistance” (Donnelly 2007, 26). Successful implementation
of the ICESCR entails active intervention by the state to ensure the provisions of
economic and social rights, whereas ICCPR requires restraining the instruments of
the state so that civil and political liberties are not trampled on.
When the ICCPR entered into force in 1968, Costa Rica was the first country
to ratify the convention, in the following year, six more countries joined, but until
the end of the Cold War in 1989 only 87 countries had become state parties, that is,
only slightly more than half of the 159 United Nations member states had ratified
the ICCPR. In the two decades since the end of the Cold War, participation in
the ICCPR nearly doubled from 87 to 163 states. Almost all of the democracies
have joined the ICCPR with the exception of Comoros and the Solomon Islands,
which became democratic only in 2004, but the ICCPR was extended to the
Solomon Islands by virtue of territorial application when the United Kingdom
ratified ICCPR on May 20 1976. In contrast, 12 non-democracies and two partially
free states—Malaysia and Guinea-Bissau—are yet to participate in the ICCPR.
Bhutan, China, Cuba, Fiji, Laos, Myanmar, Oman, Pakistan, Qatar, Saudi Arabia,
Singapore, and United Arab Emirates are some of the significant non-democratic
non-participants.
State participation in ICESCR exhibits patterns similar to the civil and political
rights treaty. ICESCR also entered into force in 1968 as a companion to the ICCPR
and Costa Rica was the first state to ratify. From 1968 to 1988 ICESCR was ratified
by 90 countries and subsequently in the 20-year period after that 69 more countries
joined the ICESCR bringing the overall ratification to 159 states as of December
2008, which means 33 states have not ratified. All democracies have entered the
ICESCR with the exception of Botswana, Comoros, Papua New Guinea, South
Africa, and the United States. Botswana, South Africa, and the United States are
the three main democratic outliers, but unlike Botswana, Comoros, and Papua
New Guinea both South Africa and the United States have signed the ICESCR, but
they are yet to ratify the convention. Nine non-democracies and three partially free
states—Haiti, Malaysia, and Mozambique—are yet to participate in the ICESCR.
Bhutan, Cuba, Fiji, Myanmar, Oman, Qatar, Saudi Arabia, Singapore, and United
Arab Emirates are some of the major non-democratic non-participants. Ninety-
three percent of the democracies have ratified in comparison to 84 percent of non-
democracies.
Optional Protocol to the ICCPR
The United Nations General Assembly adopted the Optional Protocol to the
International Covenant on Civil and Political Rights in 1966 along with the ICCPR.
The primary objective of the optional protocol was to receive “communications
from individuals claiming to be victims of violations of any of the rights set forth
The United Nations had only 159 member states until 1989, in the last 19 years, that
is, from 1989 to 2008 it added 32 new members, bringing the total to 192 states.
in the Covenant” (ICCPR 1966, Preamble Opt Prot). The individual complaints
committee is authorized to receive any complaints regarding violations of human
rights identified in ICCPR only from states party to the optional protocol. Such
complaints will be accepted by the ICCPR Committee if the communication is not
anonymous and it is presented in a written format, if the compliant is admissible
and compatible with the provisions of the ICCPR, if all domestic remedies have
been exhausted, and if the complaint is not being considered by any other domestic
or international body (ICCPR 1966, Articles 1, 2, 3, and 4 Opt Prot). All these
qualifying steps have been put in place so as not to invade the sovereignty of the
member states.
The ICCPR Committee will bring the alleged violations to the notice of the state
party, and the state in question has six months to submit “written explanations or
statements clarifying the matter and the remedy, if any” (ICCPR 1966, Article 5,
Opt Prot). Subsequently, closed door meetings will be held with the state party
concerning individual complaints and the views of the ICCPR committee will
be forwarded to the state authorities. The purpose of this complaints procedure
is to provide an opportunity for the state parties to pursue steps to comply with
their treaty obligations, engender relief efforts for violations of human rights,
and encourage program changes in legal policies of the states to prevent the
reoccurrence of such violations (United Nations 2006, para. 9). However, as
expected, the states are extremely reluctant to approve this optional protocol
because it directly intervenes with the activities of municipal law and threatens
state sovereignty and intrastate relations by bringing individuals within a country
under the jurisdiction of a quasi-international human rights tribunal (Steiner and
Alston 2008, 890).
Presently, the optional protocol has been ratified by 59 percent of the 192
United Nations member states and by 70 percent of the states that are party to the
ICCPR. Out of the 59 percent of states that have joined this protocol 82 percent are
democracies, 72 percent are partially free, and 35 percent are non-democracies.
Among democracies, significantly Brazil, India, Israel, Japan, Switzerland, the
United Kingdom, and the United States, have not joined the protocol. The majority
of non-democracies that have not ratified this protocol as anticipated are from
Africa and the Middle East, along with countries such as China, Cuba, Myanmar,
North Korea, Pakistan, and Zimbabwe. Again in this case, democracies have
demonstrated a higher propensity to participate in transnational adjudication
mechanisms regarding civil and political liberties, and individual liberties relative
to non-democracies. Non-ratification by non-democracies is unmistakably
correlated with the structure of the domestic polity, which presents a major hurdle
to participation in a committee that receives individual complaints regarding
violation of human rights. However, the non-participation of 41 percent of the
United Nations member states has not stopped this committee from pursuing its
mandate. The ICCPR Committee has received nearly 1,500 complaints from 80
countries from 1977 to 2006, of which 35 percent of the cases were accepted, 30
percent were deemed inadmissible, 15 percent were discontinued or withdrawn,
and 19 percent are still pending review (United Nations 2006, 74). Thousands
of other individual petitions were dismissed because the committee determined
that such cases were outside the jurisdiction of ICCPR and its optional protocol.
Another challenge encountered by this committee is its “inability to undertake
independent fact-finding when contradictory evidence is offered by a complainant
and a state party” (Steiner and Alston 2008, 894). The individual petitions
committee is a necessary mechanism because it provides citizens in countries
with limited judicial capacity the opportunity to pursue grievances, but the ICCPR
committee’s power is highly circumscribed; it is not able to do much more than
direct the state parties to determine the remedies for any violations.
Women’s Rights
The women’s rights movement challenges the subordination of women and aims
for emancipation from institutionalized discrimination of women. This issue is
deeply interwoven with a complex set of normative, socio-economic, political,
and cultural dynamics of a society. Universal demand for equal treatment, coequal
legal status, and non-discriminatory access to cultural, political, educational, and
economic advancement lies at the core of the global women’s rights campaign.
The United Nations was slow in recognizing and prioritizing women’s rights as
a central component of its human rights system; it failed to provide sufficient
attention to the problems affecting half of the world’s population (Steiner and
Alston, 2008, 175). The first attempt at addressing the discrimination of women
was made through the Convention on the Political Rights of Women adopted in
1953. This convention is characterized by a laconic document with three articles
devoted to normative issues and eight articles devoted to procedural matters.
The normative component of this convention proclaimed that women are
entitled to vote or participate in elections, they are eligible to compete for elected
office, and hold public office and exercise all functions associated with such office
on equal terms with men without any discrimination. To date only 63 percent of the
states have become parties to this convention, but 89 percent of the democracies
have joined this convention in contrast to 55 percent of non-democracies (see
Table 4.1). Interestingly, advanced democracies such as Switzerland and Portugal,
and other democracies such as Uruguay and South Africa have not ratified this
convention. Some opposition was generated due to the procedural components in
the treaty. States objected to the introduction of reservations that nullified the legal
import of this treaty between two state parties. In other words, the Convention on
Political Rights of Women might be in effect for state party A and state party B,
but not in effect for state party C and state party A. In addition, Article 9 of the
convention that automatically referred any disputes to the International Court of
Justice (ICJ) was singularly unappetizing that many state parties choose not to
participate.
The Convention on the Nationality of Married Women was adopted in 1957.

This convention aimed to protect the nationality of women from being automatically
affected as a result of marriage, assumption or renunciation of citizenship by their
husbands, and sought the introduction of laws and procedures for such married
women to obtain their husbands nationality if they so desired. The Convention on
the Nationality of Married Women has been ratified by 38 percent of the states,
with only 15 non-democracies becoming state parties, and many of the advanced
democracies, such as Belgium, France, Spain, Switzerland, and the United States
have also opted out. The Convention on Consent to Marriage, Minimum Age
for Marriages, which entered into force in 1964, although aimed at both men
and women, but tailored more specifically to the needs of women, attempted to
establish a minimum age for marriage, it required the full consent of both parties
to solemnize a marriage, and obligated the registration of marriages by competent
authorities of the state to complete the legal act of marriage. However, this treaty
did not mandate a minimum age for marriage, which was left to the determination
of the states, and it allowed for the violation of the minimum age requirement
under exception circumstances. Furthermore, this convention also allowed
marriages to proceed even when one party was not present at the ceremony, again
with the provision that this was permitted only under exceptional circumstances.
Participation in this convention is very limited, only 28 percent of the states have
become parties of which 22 percent are non-democracies and only 42 percent are
democracies. Again many of the advanced democracies, such as Belgium, Canada,
France, Ireland, Italy, Japan, Portugal, Switzerland, and the United States, have
not joined this convention.
In the first 25 years of the United Nations, three treaties concerning women’s
rights were entered into force. Nevertheless, none of these treaties elicited significant
participation from the member states and no significant policies were pursued to
propel the women’s rights movement forward until the adoption of the Convention
on the Elimination of All Forms of Discrimination against Women (CEDAW) in
1979. Today CEDAW and its optional protocol, which entered into force in 2000
enables the Division on Advancement of Women (DAW) to receive individual
and group complaints about rights violations. CEDAW and its optional protocols
are the two major legal mechanisms available to address women’s rights at the
international level. Presently, 185 states have ratified CEDAW with the exception
of Islamic Republic of Iran, Somalia, Sudan, Qatar, the United States, and the
small South Pacific island states of Nauru, Palau, and Tonga. CEDAW is one of
the most comprehensive treaties outlining ambitious normative goals that are quite
far-reaching in terms of breadth and complexity. The first 16 articles, including the
preamble, identify a complex array of rights that incorporates the several articles
from the Convention on the Political Rights of Women, which is restated in Article
7 of CEDAW, and Article 8 calls for equal rights in international representation.
The 185 state parties include the Cook Islands—a protectorate of New Zealand—
which is not recognized as a state by the United Nations.
Furthermore, Article 9 of CEDAW incorporates the Convention on the Nationality

of Married Women. Despite near universal ratification, the rights inscribed in
CEDAW have not been fully realized in any United Nations member state and the
obstacles to implementation are particularly severe in non-democratic states with
theological orientations and in economically underdeveloped countries. Diverse
implementation challenges and normative obstacles confront the participating
states, but the United Nations expects that the normative aspirations will eventually
permeate into the national consciousness of the participating states.
Torture Convention
Prohibition against torture “occupies a vital place in the human rights lexicon,”
which is strongly felt and universally accepted (Steiner and Alston 2008, 224).
The United Nations Convention on Torture (CAT) holds a pre-eminent position
among the body of human rights texts. “If anything is a human right, it is the right
not to be tortured” (Steiner and Alston 2008, 224). The United Nations Convention
on Torture, adopted in 1984, contains 16 articles relating to the prohibition of
torture or to cruel, inhuman, and degrading treatment of human beings for the
purpose of retribution, discrimination, extraction of information, suppression of
dissent, intimidation and terror, and punishment for criminal conduct. Specifically,
CAT prohibits the inflicting of severe physical or mental pain intentionally “at
the instigation of or with the consent or acquiescence of a public official or
other person acting in an official capacity” (Article 1, Torture Convention). This
treaty also strongly urges the state parties to implement “effective legislative,
administrative, judicial or other measures to prevent acts of torture in any territory
under its jurisdiction” and warns states that they are not authorized to suspend
this convention even under “exceptional circumstances,” such as “war or a threat
of war, internal political instability or any other public emergency” (Article 2,
Torture Convention). Importantly, this treaty behooves state parties to make torture
a punishable offence under the municipal law of all state parties and the prosecute
violators to the full extent of the law, irrespective of the power or status of the
official/s (Article 4, Torture Convention).
As of April 2008, the torture convention has been ratified by 76 percent of
the states, with 89 percent of democracies and 67 percent of non-democracies.
Among democracies, the only significant standout is India, which signed the
convention in 1997, but has not yet ratified and India’s archrival Pakistan affixed
its signature only in April 2008. A few Caribbean island nations, such as Jamaica,
Trinidad and Tobago, and newer democracies, such as Comoros, Montenegro, and
the Solomon Islands have not entered the Torture Convention. Non-democracies,
such as the Central African Republic, Eritrea, Fiji, Gambia, Iran, Laos, Myanmar,
North Korea, Oman, Pakistan, Singapore, Sudan, Tanzania, United Arab Emirates,
Vietnam, and Zimbabwe are yet to become state parties. In spite of the broad
universal consensus against torture, the systematic application of torture remains
widespread and rampant particularly among non-democracies in the developing

world. Even economically advanced democracies are not averse to the practice of
torture that has increased subsequent to the fears of terror attacks post-9/11. The
United States has encountered enormous international and domestic opprobrium
for using interrogation techniques that are akin to torture or similar to torture
against terrorism suspects both within and outside its geographical boundaries.
Revelations that the United States might have transported potential terrorist
detainees to foreign locations, a practice known as extraordinary rendition, where
torture is permitted has raised serious questions about American compliance with
the articles of the torture convention and reignited debates on the prohibition of
torture, and the legal implications of such violations. The potential violation of
the Torture Convention by the United States has renewed global attention on penal
matters, such as torture and illegal detention, and refocused international attention
on instances of systematic practice of torture as a tool of coercion, punishment,
suppression of dissent, intimidation, and terror that are widespread among non-
democratic regimes, particularly in the impoverished parts of the world.
Numerous states have not ratified the torture convention and those that have
ratified have not complied because torture serves as an effective instrumental tool
to quell opposition and suppress dissent, which allows undemocratic regimes to
further their political objectives and consolidate their power (Steiner and Alston
2008, 225). In some cultures torture is deployed as a form of punishment for a
broad array of crimes as it is sanctioned by religion, which sanctifies torture and
provides the necessary cover for ruling governments to claim that they are simply
following the laws of the land while simultaneously strengthening the repressive
powers of the state. The use of torture to silence dissent and political opposition is
a practice that is widely prevalent among non-democratic states.
The Committee Against Torture (CAT), established as a part of the convention,
monitors implementation through periodic reports submitted by the state parties.
Participating states are expected to submit an initial report, and subsequently
file reports every four years detailing the steps taken to comply with the Torture
Convention. The Committee Against Torture reviews the progress made by the
state parties in implementing the treaty and makes recommendations to further
improve compliance and enhance implementation. The Optional Protocol to the
Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or
Punishment (OP-CAT) adopted in December 2002 at the 57th session of the United
Nations General Assembly establishes “a system of regular visits undertaken by
independent international and national bodies to places where people are deprived
of their liberty, in order to prevent torture and other cruel, inhuman or degrading
treatment or punishment” (OP-CAT, Article 1). The Subcommittee on Prevention
of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of
the Committee Against Torture was created to carry out regular on-site country
See Human Rights Watch (HRW) on Torture and Abuse of United States Detainees
(available online at http://www.hrw.org/doc/?t=usai_torture).
visits to enhance compliance and examine any individual complaints. However,

so far only 18 percent of the states have ratified the optional protocol. Only
4 percent of the non-democracies, that is, Armenia and Cambodia, and 32 percent
of the democracies have become parties to the OP-CAT, which fundamentally
limits the ability and the range of the subcommittee to regulate torture at the
domestic level.
Although the prohibitionary norms against torture, unusual punishment, and
cruel treatment is found in the Torture Convention and its optional protocol, Article
5 of the UDHR, Article 7 of ICCPR, the European Convention for the Protection
of Human Rights and Fundamental Freedoms, and the four Geneva Conventions,
the practice of torture continues unabated in many parts of the world; this practice
is especially widespread in non-democratic and underdeveloped countries. The
continued inability of the human rights regimes to enhance participation and
compliance with specific conventions points not only to the anarchic structure of
the international system, but it also highlights the value of torture as a political
tool for several state parties and non-state actors. To governments, importantly to
authoritarian, undemocratic, and autocratic governments, torture is an effective
instrument to blunt political opposition and maintain their stranglehold on power,
as demonstrated by the case of South Africa during the apartheid period and how
the regimes in China, Egypt, Myanmar, North Korea, Sudan, and Zimbabwe have
sustained themselves.
Death Penalty
Punishment by death for various grave crimes has been and still is an integral fact
of human existence. Unlike many other human rights issues, the matter of the death
penalty seems to have hit an impasse in moving towards universal prohibition.
Capital punishment is such a divisive issue that it has the most vociferous
detractors and supporters. Generally, three arguments are offered in support of
the death penalty: (1) it serves as the highest form of sanction; (2) it is a deterrent
against future crimes; and (3) it is retribution for high crimes (Caldwell 1952,
45–6). One of the strongest arguments favoring the death penalty is retribution or
punishment for highly or reprehensible crimes. The notion of retribution is deeply
enmeshed in the religious or cultural values of many societies, including the United
States, where it is common for the citizens to expect an eye for an eye for heinous
crimes. In some states the death penalty is retained as a deterrent, and in others it
is employed as a threat to elicit guilty pleas. Arguments against the death penalty
also take three popular positions: (1) the probability of the innocent being falsely
executed is high; (2) it is not a deterrent against future criminal activities; and (3)
it is morally wrong and it violates fundamental human rights to willfully execute
someone and deprive them of their life even if they have committed abominable
crimes (Turow 2003).
The international movement to abolish penalty began in the eighteenth century

and many nations began abolishing capital punishment in the nineteenth century.
It was not until the end of the Second World War that prohibition of death penalty
reached the status of a universal norm with the declaration of universal human
rights, which affirmed the right to life and protection from cruel and unusual
punishment—a right espoused in the Eight Amendment of the United States
Constitution. Subsequently, the international political and civil rights convention
articulated the norm of abolishment by proclaiming that everyone “has the inherent
right to life,” that this “right shall be protected by law,” and no one should be
“arbitrarily deprived” of their life (ICCPR 1966, Article 6). Application of the death
penalty is permitted under international law only for the most heinous crimes, such
as the crime of genocide or crimes against humanity. The International Criminal
Court (ICC) and the various Ad-hoc International Tribunals do not impose the
punishment of death for crimes against humanity. Article 6 of the ICCPR permits
death row inmates to seek a pardon or commutation of their sentences and Article
6 also bars the imposition of capital punishment on persons under the age of 18
and on pregnant women.
Article 6 of ICCPR and Article 3 of UDHR were articulated into a separate
and stand alone convention as the Second Optional Protocol to the International
Covenant on Civil and Political Rights (ICCPR-OP2), aiming at the abolition of
the death penalty, which was adopted by the United Nations General Assembly in
1989. Significantly this convention does not permit any reservations, which the
ICCPR allows, and reservations if any are restricted to the “most serious crime of a
military nature committed during wartime” that can be attached only at the time of
ratification or accession (Article 2). This convention also requires state parties to file
periodic reports to the human rights committee and receive individual complaints
under the provisions of ICCPR (Articles 4, 5, and 6). Besides the optional protocol
prohibiting the death penalty, regional treaties such as the American Convention
on Human Rights to Abolish the Death Penalty, which has eight state parties, and
the European Convention on Human Rights (Protocol nos. 6 and 13), which has 46
and 39 state parties respectively, also prohibit capital punishment. Broadly there
is a well-established universal norm prohibiting death penalty except for the most
egregious crimes.
In the year 2006, close to 1,600 people were executed and 91 percent of
those executions occurred in China, Iran, Iraq, Pakistan, Sudan and the United
States. The highest number of executions took place in China where over 1,010
individuals were believed to be executed, followed by Iran 177, Pakistan 82,
Iraq 65, Sudan 65, and in the United States 53 people were executed in 12 states
(Amnesty International 2007). Ten countries since 1990 are estimated to have
executed 58 captives under the age of 18, which is a clear violation of the UDHR,
ICCPR, and the CRC. Amnesty International (AI) estimates that “two-thirds of the
countries in the world have now abolished the death penalty in law or practice”
(Amnesty International 2007). Presently 11 countries retain the death penalty, but
only for exceptional war crimes, 32 states are “considered abolitionist in practice”
because they “have not carried out any executions for the past 10 years or more”
and 64 countries retain death penalty laws, but rarely impose such punishments
(Amnesty International 2007). Although two-thirds of the states do not practice
death penalty, only 34 percent of the United Nations member states have ratified
the optional protocol banning the practice of the death penalty.
Most strikingly, only 5 percent or merely three non-democracies have ratified
this convention, whereas in contrast 60 percent of the democracies have joined.
This striking disparity in the ratification provides one of the strongest indications
of the domestic polity effect, that is, significantly larger proportions of democracies
accept the international norm of banning the death penalty. Nonetheless, there are
limits to this line of argument when one notes that 29 democracies have not become
parties, including countries such as Argentina, Brazil, Chile, India, Israel, Japan,
Poland, South Korea, and importantly the United States. The death penalty, however,
is more common and routine without regard for due process in non-democratic
societies in which the ruling regimes rely on the death penalty to terrorize the
population, suppress dissent, and maintain its control over the population. Capital
punishment cases are litigated heavily in the United States and Indian courts, it
is very difficult to get juries to sanction the death penalty and subsequently such
sanctions encounter strong legal challenges that reach all the way to the Supreme
Court. But the fact that 29 democracies retain the death penalty and even apply it
periodically suggests that there are other motivations for retaining the death penalty
besides its instrumental use for maintaining political control and staying in power,
which would be a common explanation for the actions of non-democracies.
Anti-Discrimination Convention
The elimination of all forms of racial discrimination found initial expression in the
universal declaration of human rights, which stated that everyone is “equal before
the law and are entitled without any discrimination to equal protection of the law”
and every individual is “protected against any incitement to such discrimination”
(Article 7 UDHR). Eventually the norm of anti-discrimination found full
articulation in the International Convention on the Elimination of All Forms of
Racial Discrimination (ICERD), which was adopted in December 1965 as one of
the seven core treaties of the United Nations Human Rights System because the
negotiating states perceived that racial barriers are repugnant and policies based
on apartheid and other institutionalized or class-based segregation or separation
is unacceptable. Adoption of ICERD was based on the growing acceptance
that the “doctrine of superiority based on racial differentiation is scientifically
false, morally condemnable, socially unjust and dangerous, and that there is no
justification for racial discrimination, in theory or in practice, anywhere” (ICERD
1965, Preamble).
According to the anti-discrimination convention, “discrimination between
human beings on the grounds of race, color or ethnic origin is an obstacle to friendly
and peaceful relations” and it is “capable of disturbing peace and security” among
peoples within and across nations (ICERD 1965, Preamble). Article 1 of ICERD
defines discrimination as “any distinction, exclusion, restriction or preference
based on race, colour, descent, or national or ethnic origin which has the purpose
or effect of nullifying or impairing the recognition, enjoyment or exercise, on an
equal footing, of human rights and fundamental freedoms in the political, economic,
social, cultural or any other field of public life.” Article 2 of ICERD supplicates the
participating states to “condemn racial discrimination and undertake to pursue by
all appropriate means” and method policies for “eliminating racial discrimination
in all its forms.”
Presently 90 percent of the United Nations member states have ratified this
convention, including 100 percent of all democracies. Only five non-democracies
Angola, Bhutan, Djibouti, North Korea, and Singapore, two partially free states—
Guinea-Bissau and Malaysia—and 12 other smaller states—Brunei Darussalam,
Dominica, Grenada, Kiribati, Marshall Islands, Micronesia, Nauru, Palau, Samoa,
Sao Tome and Principe, Singapore, Tuvalu, and Vanuatu—for which there is no
data on domestic polity available from the POLITY IV dataset are yet to ratify
ICERD. The Committee on the Elimination of Racial Discrimination composed of
18 independent experts selected for their high moral standing and impartiality is
authorized to review periodic reports from state parties and monitor implementation
of the treaty. This committee also monitors racial equality and non-discrimination
through early warning procedures, and investigation of interstate (state to state
complaints) and accepts petitions from individuals claiming racial discrimination
and human rights violations. Promoting racial equality and the elimination of all
forms of discrimination is regarded as a work in progress that is interminable.
Anti-Apartheid Conventions
The institution of apartheid was specifically associated with the white minority
regime in South Africa. apartheid was a divisive and highly controversial matter
that splintered the United Nations along Cold War lines and exaggerated the
differences among developed and developing nations, that is, along North–South
axis. Efforts within the United Nations to develop an effective anti-apartheid
regime encountered numerous hurdles and it was marred by serious disagreements
among Western democracies, Arab states, and the consortium of African nations.
However, subsequent to the Sharpeville massacre in 1960, international efforts
to mobilize support intensified and culminated in the abolishment of apartheid in
1992 and transformation of South Africa into a democratic state in 1994 (Donnelly
2007, 90–4). One of the key pieces of legislation introduced in the United Nations
that might have assisted the movement to abolish apartheid was the International
Convention on the Suppression and Punishment of the Crime of Apartheid, which
was approved in November 1973. The anti-apartheid convention, which was
previously considered and approved by the Human Rights Commission and the
United Nations Economic and Social Council (ECOSOC), was introduced to the
floor of the United Nations General Assembly by the African nations of Guinea,
Nigeria, and the former Soviet Union and the treaty entered into force in 1976
(Stultz 1991, 16).
The International Convention Against Apartheid in Sports was adopted in 1985,
which barred states from maintaining contact with countries practicing apartheid
and urged national sports bodies, teams, and individual sportsmen to suspend all
sporting contacts with South Africa. Both anti-apartheid conventions failed to
receive widespread support. The coalition of liberal democracies boycotted the
anti-apartheid treaties because they perceived them to be the outcome of politically
motivated efforts on the part of Soviet bloc countries and Arab nations to humiliate
the West and allow them to score political points against the West in the United
Nations. Importantly, the United States was particularly concerned that these
treaties were the outcome of intense lobbying and political machinations of the
Arab states that were seeking to equate elements of the Israel–Palestine conflict
with the otherwise abhorrent institution of apartheid. The anti-apartheid treaties
also got entangled in the larger Cold War conflict between the United States and
the former Soviet Union. It was also derailed over the potential concerns about
payment of slave reparations and that this treaty would be politically wielded
by the former colonies against the ex-colonial powers for financial or political
gains. While the Soviet bloc countries, the pro-Soviet states, and other Afro-Asian
states pushed for the anti-apartheid treaty aggressively in the United Nations,
the coalition of liberal Western democracies opposed this convention. As an end
result, only 107 states became parties to the anti-apartheid convention of which
28 percent were democracies and 70 percent were non-democracies. None of the
advanced democracies such as Belgium, Canada, France, Greece, Iceland, Ireland,
Italy, Japan, Portugal, Spain, Sweden, Switzerland, the United Kingdom, and
the United States joined the anti-apartheid convention; neither did they become
parties to the Convention Against Apartheid in Sports, which has been ratified by
only 31 percent of the United Nations member states. Analysis of the ratification
data clearly suggests that the Cold War and North–South schism enabled the
South African apartheid regime to survive in power for more than three decades
by splitting the international coalition and weakening its ability to apply pressure
and sanctions.
Only after the end of the Cold War and the collapse of the Soviet Union,
did the white minority government release Nelson Mandela, the leader of the
African National Congress (ANC) who was at the forefront of the anti-apartheid
struggle, in 1990 after 27 years in prison. Apartheid was abolished two years after
the release of Mandela, and national elections were held in 1994 that Mandela
won resoundingly heralding a democratic South Africa. After the South African
Numerous Arab and Muslim nations attached reservations and declarations stating
that their ratification or accession to the anti-Apartheid Convention no way suggests
recognition of Israel. Subsequently, Israel raised objections to the Secretary General over
the overt “political character” of the statements made by Arab states, especially Kuwait.
apartheid regime collapsed, operations of the United Nations Anti-Apartheid

Committee was discontinued and the remaining funds were transferred to other
developmental activities, and monitoring of state participation in the apartheid
conventions was also suspended (UNGA 1995). Participation in the apartheid
conventions was limited and states were highly delinquent in submitting reports
to the Apartheid Committee; this situation was described as a huge “fiasco” by a
senior United Nations diplomat (Alston 1997, section C, para. B). The failure of
the anti-Apartheid Convention was in a large part due to the lack of participation
by the Western democracies over serious differences regarding the issue of slave
reparations, efforts made by Arab states to equate apartheid and racism with the
Israel–Palestinian conflict, and the grand strategic objectives of the Cold War.
Rights of the Child
The Convention on the Rights of the Child (CRC) is the only United Nations human
rights treaty with near universal acceptance. Ninety-nine percent of the states have
become parties to this convention, with the exception of the democratic United
States and government-less Somali state that has been in the midst of a civil war
for the last two decades. The CRC convention was unanimously adopted by the
United Nations General Assembly in 1989 and it entered into force the following
year after ten years of tough negotiations within the Human Rights Commission
Working Group involving state parties and non-governmental organizations
(UNHCHR 2007, 22). Two additional protocols to the CRC were adopted in the
year 2000, one concerning the rights of the child in the involvement of children
in armed conflict (CRC-AC) and the other dealing with the rights of the child on
the sale of children, child prostitution and child pornography (CRC-SC). Together
these three conventions articulate powerful norms in favor of universal protection
of the rights of the child.
Adoption of the CRC was made possible because of the activities of a few state
parties, United Nations, and NGOs, these actors were motivated by various reports
of “grave injustices suffered by children,” such as “high infant mortality, deficient
health care, limited opportunities for basic education” and “alarming accounts of
children being abused and exploited,” “children in prison,” and children suffering
as refugees and victims of armed conflict” (UNHCHR 1997). A child, according
to the CRC “means every human being below the age of eighteen years” (CRC
1989, Article 1). The CRC protects a wide array of child rights that includes non-
discrimination, best interests of the child, right to life, survival, development, civil
rights and freedoms, family environment and alternative care, basic health and
welfare, education, leisure and cultural activities, administration of justice, and
protecting children in situations of emergency, armed conflict, and exploitation
(Lansdown 2005). This convention also includes a monitoring mechanism—the
child rights committee or the CRC committee—which is a ten member committee
that is elected by the state parties to examine progress in implementation through
the submission of periodic reports. Reporting and monitoring process is aimed at

strengthening the national capacity of the states to implement the convention and
achieve the normative objectives of the convention; it is not intended to replace
the domestic legal system of the participating states (Lansdown 2000, 114).
Participation in the child rights convention is near universal with 190 of the 192
United Nations member states joining it, with the exception of the United States
and Somalia, but the United States has ratified both optional protocols to the CRC;
even non-state entities such as Holy See (the Vatican) and protectorate of New
Zealand—the Cook Islands—have entered the convention.
The optional protocols on the rights of the child involving armed conflict and
sale, slavery, and exploitation of children that entered into force in 2002 has 66
and 63 percent ratification with democracies having a slight edge in participation.
Seventy-nine percent of the democracies have ratified the optional protocol on
armed conflict compared to 62 percent of the non-democracies. Similarly 77
percent of the democracies and 69 percent of the non-democracies have ratified the
CRC optional protocol on the sale and exploitation of children. Fifty-six percent of
the United Nations member states have ratified both the CRC optional protocols,
17 percent have ratified at least one CRC protocol, and 28 percent of the states,
which includes countries such as Cameroon, Central African Republic, Congo,
Djibouti, Ethiopia, Gambia, Guinea, Haiti, Liberia, Malaysia, Myanmar, Nigeria,
North Korea, Pakistan, Russian Federation, Saudi Arabia, Singapore, Somalia,
Zambia, and Zimbabwe, have not ratified either of the CRC optional protocols.
Newer democracies such as Ghana, Hungary, Indonesia, Mauritius, Papua New
Guinea, the Solomon Islands, Trinidad and Tobago, and Uzbekistan have not
ratified both the optional protocols, but overall only 11 percent of the democracies
have not ratified both the CRC optional protocols on the rights of the child. This
plainly indicates that democracies have superior participation records in the CRC
optional protocols relative to the non-democracies.
Genocide Convention
Sixty years after the Genocide Convention came into force only 73 percent of the
states have ratified this pivotal human rights document, which means 52 of the
192 states have not yet become party to this convention including an established
democracy such as Japan, other older democracies such as Botswana and
Mauritius, and newer democracies such as Indonesia and Dominican Republic.
Forty percent of the non-ratifying countries are from Sub-Saharan Africa; the
remaining non-ratifiers are from the Middle East, Central Asia, South-East Asia,
and several small island states. Interestingly, war torn, conflict prone, and unstable
states governed by authoritarian regimes in Chad, Congo, Equatorial Guinea,
Eritrea, Niger, Nigeria, and Somalia, Tajikistan, Turkmenistan, and Zambia have
chosen not to join the Genocide Convention; even partially free states such as
Kenya, Madagascar, and Malawi have not become parties to this convention. With
the exception of Japan and some of the newer democracies, such as Dominican
Republic and the Solomon Islands, all of the advanced democracies have joined
the Genocide Convention.
Ratification of the Genocide Convention is not an end in itself. If the
prohibitionary norms against genocide inscribed in Article 2 of the convention
are not internalized, then the normative and legal import of ratification is lost.
Cambodia ratified the convention in October 1950, but the horrific regime of Pol
Pot went on to exterminate 21 percent of the Cambodian population from 1975
to 1979. Rwanda became a party to the convention in 1975, but 19 years later the
Rwandan Hutu majority launched a genocidal campaign against the Tutsi minority
population, which exterminated nearly one million people and displaced equal
or greater numbers from their homes. The impact of this genocidal campaign is
still being felt in Eastern Congo and all along the western borders of Rwanda.
Indonesia, which is still not a party to the convention, launched an ethnic cleansing
campaign in East Timor, which caused the displacement of over 200,000 Timorese
and thousands died during the armed military assault, to prevent the region from
seceding. The former Federal Republic of Yugoslavia signed the Genocide
Convention in 1948 and ratified in 1950, but this did not prevent the Serbian
leaders of the disintegrating former Yugoslavia from engaging in crimes against
humanity, which included ethnic cleansing, forcible removal and displacement
of people, and fomenting ethnic violence against Bosnians, Croatians, Albanian
Kosovars, and Macedonians and plunging the entire region into chaos. Only after
the United States and NATO military intervention in 1995 and in 1999 did the
Serbian atrocities in Bosnia and Kosovo cease. Ad-hoc International Criminal
Tribunals are trying perpetrators of the ethnic cleansing campaigns in the Former
Yugoslavia (ICTY) and in Rwanda (ICTR).
War Crimes and Crimes Against Humanity
Addressing massive human rights tragedies remains one of the fundamental

challenges of the anarchic international system, where state sovereignty trumps
other forms of international governance. The United Nations human rights system
is limited in its enforcement capacity because of the organizing structure of the
international state system; therefore, it has always been challenging to bring justice
to the victims of war crimes, crimes against humanity, genocide, ethnic cleansing,
ethnic violence, forced relocation and displacement, and other crimes of aggression.
The International Military Tribunal (IMT), also known as the Nuremberg Trials
(1945–1949), was established to prosecute Nazi war criminals after the end of the
Second World War, remains a momentous event in the development of transnational
justice mechanisms to prosecute war criminals and close the immunity gap that has
allowed war criminals to escape prosecution for high crimes.
Immediately following the successful conclusion of the Nuremberg Trials, the
United Nations adopted the Convention on Genocide in 1948, which presently
has 140 state parties or a 73 percent participation rate. The Convention on the
Non-Applicability of Statutory Limitations to War Crimes and Crimes against
Humanity, which was adopted in 1968 and entered into force in 1970, has one
of the lowest participation rates because it discarded the clause of statutory
limitations, a common tool in the administration of justice domestically in many
states. According to Article 1, no statutory limitations shall apply to the prosecution
of individuals and state authorities for war crimes and crimes against humanity as
defined by the Nuremberg Military Tribunal. This clause provides wide latitude
not only in the interpretation of war crimes and crimes against humanity, but it
also leaves the time period for bringing the perpetrators of such crimes to justice
completely open. Domestic statutory limitations restrict criminal proceedings
and the imposition of penalties beyond a certain time period and also prohibit
retroactive application of the law, whereas the Non-Applicability of Statutory
Limitations convention attempted to repeal such clauses (Miller 1971, 476).
A common concern among member states was that this convention could be used
in other contexts to stir up trouble and complicate domestic judicial proceedings for
the participating state parties. States are wary of acceding to an international law that
could potentially have wide applicability beyond the issue of war crimes. Second,
Articles 5 and 7 of this convention generated substantial dissension among states
because these two articles made it “impossible for a number of States to become
parties to the Convention and are therefore of a discriminatory character which is
contradictory to the object and aims of this Convention.” Afghanistan, Albania,
Belarus, Bulgaria, Cuba, the Czech Republic, Guinea, Hungary, Laos, Mongolia,
Poland, Romania, Russian Federation, Slovakia, Ukraine, and Vietnam objected to
Articles 5 and 7 and inserted reservations because it limited state participation by
employing restrictive clauses, while other states simply ignored the convention.
Another feature of this convention, which subjected states to the compulsory
jurisdiction of the International Court of Justice (ICJ), also had the consequence
of decreasing state participation. This convention also became embroiled in the
Cold War politics when West European states and the United States recognized
that this treaty was deliberately aimed at West Germany by East European states
and other Soviet allies. Opposition to this convention was evident even at the time
of the United Nations General Assembly proceedings when among the 126 United
Nations members, 56 states voted for adoption, seven against, and 36 abstained
(Miller 1971, 477). Hence, it is not surprising that this convention has been ratified
only by 37 percent of democracies and 29 percent of non-democracies; in total
only 27 percent of the United Nations member nations have joined this treaty.
None of the advanced democracies in Europe, North America, Australasia and
other parts of the world became parties to this convention.
In 1973, the United Nations General Assembly passed a resolution supporting
the declaration on the Principles of International Co-operation in the Detection,
Arrest, Extradition and Punishment of Persons Guilty of War Crimes and
Declaration attached to the text of the Convention by the Republic of Guinea.

Crimes Against Humanity. This declaration contains nine principles calling for
cooperation among states to prosecute or assist in the prosecution of war criminals
domestically or internationally. These principles expressed in this document were
incorporated into the two Ad-hoc International Criminal Tribunals dealing with war
crimes and crimes against humanity in Rwanda (ICTR) and the former Yugoslavia
(ICTY). Eventually these principles, among others, found full expression in the
binding Rome Statute for International Criminal Court (ICC or the court), which
established a permanent international criminal court for the prosecution of war
crimes, genocide, and crimes against humanity. The culmination of 45 years of
post-war efforts to create an international norm in favor of the prosecution of
war crimes and crimes and against humanity led to the establishment of the ICC
in 1998 and it came into legal force in April 2002 when the 60th instrument of
ratification was deposited.
The ICC is an independent international organization separate from the United
Nations with a permanent seat in The Hague, Netherlands. This court has the
powers to prosecute: (1) the crime of genocide; (2) crimes against humanity; (3) war
crimes; and (4) the crime of aggression. Currently, 108 states have joined the ICC
and agreed as per the provisions of the court to assist in the criminal prosecution
of war criminals. Out of the 108 states, 70 percent of the non-democracies and
37 percent of the partially free countries are yet to join the ICC; in contrast only
22 percent of the democracies have not ratified the ICC convention. Overall, 44
percent of the United Nations member states have not joined the criminal court.
Among democracies significantly, Chile, the Czech Republic, India, Israel, Turkey,
and the United States have not entered the ICC besides other smaller and newer
democracies such as Guatemala, Micronesia, and the Solomon Islands. Other major
non-democratic non-participants are China, Cuba, Indonesia, Malaysia, North
Korea, Russian Federation, Rwanda, Singapore, Sudan, Ukraine, and Zimbabwe.
Seventeen nations from Sub-Saharan Africa, 15 from the Middle East and North
Africa, including Israel and Turkey, 11 from South East Asia, six from Central
Asia, and none of the seven nations from South Asia have joined the ICC.
Agreement on the Privileges and Immunities of the International Criminal Court
was adopted by the Assembly of States Parties (ASP) of the ICC on September
2002, and it entered into legal force in July 2004 (Insight, September 2004). This
agreement among the state parties expounds on Article 48 of the Rome Statute,
which defines and identifies the diplomatic immunities and privileges accorded to
the officers of the court, defense counsel, victims, witnesses, to the international
court itself and to its premises and assets (Amnesty International 2004). Essentially,
this agreement provides diplomatic immunity for the effective and independent
functioning of the ICC and its staff, which enables the court to traverse national
borders without being harassed or prevented from carrying out its international
legal obligations. The privileges and immunities agreement has been ratified only
by 28 percent of the states, of which only 9 percent are non-democracies and
20 percent are partially free states, whereas 56 percent of the democracies have
ratified this agreement. Privileges and immunities are indispensable to the effective
functioning of the ICC. Reluctance among states to ratify this agreement suggests
that they are unwilling to provide diplomatic immunity to this international court
because they are concerned about the sovereignty implications of the courts
operation that transcends national boundaries. However, by joining the ICC, but
not ratifying the agreement on immunities and privileges seems rather counter-
productive to the effective operation of the court.
Protection of Refugees
The development of international refugee law began with the League of Nations,
the failed predecessor to the United Nations, but it did not achieve fruition until
July 1951 with the adoption of the Convention Relating to the Status of Refugees
by the United Nations. The 1951 Refugee Convention was specifically designed
to address the pressing refugee situation produced as a consequence of the Second
World War. Since the 1951 Refugee Convention only applied to events before
1951 or specifically to continental Europeans displaced by the Second World War,
a Protocol Relating to the Status of Refugees was negotiated and adopted by the
United Nations General Assembly in 1966 and entered into force in 1967. This
Protocol expands the scope of the Refugee Convention to address transboundary
displacement and refugees that became widespread and acute in many parts of the
world, including the developing world. Importantly, the Refugee Protocol removes
the language in the 1951 convention that refers to the “events occurring before 1
January 1951” and applies the Refugee Protocol to “all state parties without any
geographic limitation” (Refugee Protocol, Article 1).
Both the Refugee Convention and the Protocol retain the definition of a refugee
maintained in Article 1 (A2) of the convention, according to which a refugee is
defined as someone who “owing to well-founded fear of being persecuted for
reasons of race, religion, nationality, membership of a particular social group or
political opinion, is outside the country of his nationality and is unable, or owing to
such fear, is unwilling to avail himself of the protection of that country; or who, not
having a nationality and being outside the country of his former habitual residence
as a result of such events, is unable or, owing to such fear, is unwilling to return
to it.” Both the convention and the protocol also prohibits refoulement—expelling
or returning—a refugee to their country of origin if they are likely to encounter
persecution (Refugee Convention, Article 33). In addition, both the convention
and protocol call upon the state parties to accord refugees the same treatment that
it provides its nationals with regards to religious practice and religious education
of children (Refugee Convention, Article 4). Both the Refugee Convention and the
Protocol are administered by the United Nations High Commissioner for Refugees
(UNHCR), which was established in 1950 as an independent agency to coordinate
international relief efforts to safeguard and redress refugee issues throughout the
world. UNHCR staff are involved in protecting the rights and welfare of 33 million
people in 110 countries (UNHCR, Basic Facts).
Presently the Refugee Convention and the Protocol has 143 state parties, not
including the Holy See, which means 46 states have not ratified either the convention
or the protocol, and six states have joined the convention or the protocol, but not
both. Madagascar, Monaco, and Saint Kitts and Nevis have ratified only the 1951
Refugee Convention, while Cape Verde, the United States, and Venezuela have
ratified only the 1966 Refugee Protocol. Out of the 46 non-ratifiers, 19 are non-
democracies, 15 are partially free, seven are democracies, and no data on domestic
polity is available through the POLITY IV dataset for 15 countries. The usual
set of non-ratifiers—Bangladesh, Brunei, Cuba, Eritrea, Kuwait, Laos, Malaysia,
Myanmar, North Korea, Pakistan, Saudi Arabia, Singapore, Sri Lanka, Syrian Arab
Republic, and United Arab Emirates—have again preferred not to participate in
the promotion of the treaty that aims to provide shelter and protection to refugees
during times of war, domestic unrest, natural calamities or other such tragic events.
Among democracies India is the key non-participant, besides newer democracies
such as Comoros, Indonesia, Lebanon, Mauritius, Mongolia, and Uzbekistan.
Analysis of the ratification patterns based on domestic polity reveals that 90 percent
of the democracies have joined the Refugee Convention or Protocol compared
to 65 percent of non-democracies. This is another instance where democracies
have demonstrated a greater penchant for participation in international treaty
arrangements, but the participation of the democracies is not universal.
Statelessness
Statelessness is a situation in which a person “is not considered as a national by

any state under the operation of its law” (Statelessness Convention, Article 1). In
other words, statelessness refers to a condition in which no single state recognizes
an individual or a group of individuals as nationals under their domestic law.
Stateless people are distinct from refugees, although it is likely that the concerns
of both groups occasionally merge (UNHCR 2008). International attention on the
phenomenon of statelessness emerged during and after the Second World War
when the newly created United Nations Human Rights Commission expressed
concern over the “legal status of persons who do not enjoy the protection of any
government” (Weiss 1961, 255). Millions of stateless people were created because
of the military conflicts in East, Central Europe, and in the former Soviet Union,
but since then the scope of the conventions and the activities of the UNHCR
have expanded to post-colonial areas in the developing world. According to the
United Nations Refugee agency, statelessness affects 15 million people both in the
developed and developing world (UNHCR 2008).
Deprivation of nationality affects individuals and groups and creates a host of
transboundary problems, such as the inability to travel, seek educational, health or
other welfare services, it causes splintering of families, and makes stateless people
vulnerable to discrimination, harassment, and trafficking. The Universal Declaration
on Human Rights affirms that “everyone has the right to nationality” and such
rights “shall not be arbitrarily deprived” (UDHR, Article 15). Statelessness could
arise because of any number of reasons, such as transfer of territory or sovereignty,
arbitrary deprivation of nationality, administrative oversights, misunderstandings,
and conflicts with law, or because of procedural problems, such as excessive fees,
unrealistic deadlines, lack of appeal or review procedures and failure to file proper
paperwork, failure to register the birth of children, birth to stateless parents, and
change in nationality through marriage (UNHCR 2006, 8–9).
After spending innumerable years in the drafting stage, done through various
agencies of the United Nations, the Convention Relating to the Status of Stateless
Persons was adopted in 1954 by a Conference of Plenipotentiaries convened by
the United Nations Economic and Social Council (also known as ECOSOC). The
42-article convention offered a range of protections to stateless persons, including
national treatment—the same treatment under municipal law that is accorded to
nationals—non-discrimination, freedom of religion and religious education, and
a range of measures dealing with juridical rights, employment, welfare, freedom
of movement, and public education. The broad purpose of this convention is to
accord the same set of rights to stateless persons that are conferred to citizens of a
country, especially to provide national treatment and eventual naturalization and
assimilation of stateless persons. Subsequently, the Convention on the Reduction
of Statelessness was adopted in 1961 with the objective of reducing statelessness
through international agreement. Specifically, the 21-article Reduction of
Statelessness Convention sought to develop a set of international norms and
conditions under which statelessness could be eradicated. The first 15 articles of
this convention identify a variety of situations that could generate confusion or
conflicts with municipal law. For instance, Articles 1 and 4 affirms that state parties
must grant nationality to individuals born in their territory or when individuals
born in a territory seek nationality rights when maturity is attained at 18 years. In
addition, Article 9 of this convention prohibits “deprivation of nationality on racial,
ethnical, religious or political grounds,” which is regarded as the cornerstone of
this treaty to redress the past history of “discriminatory deprivation of nationality,
even mass-denationalisation,” which occurred due to racist or fascist policies
(Weiss 1961, 1084).
Conventions on the Status of Stateless Persons (1954) and Reduction of
Statelessness (1961) have some of the poorest ratification records of all human
rights treaties; only 33 and 18 percent of the 192 United Nations member states
have respectively ratified these two conventions. Out of the 33 percent of the states
that have ratified the Convention on the Status of Stateless persons, 40 countries
are democracies, 12 are non-democracies, four are partially free, and seven are
other states for which polity data is not available. Examination of the ratification
record indicate that only 22 percent of non-democracies and 13 percent of partially
free have ratified this convention compared to 56 percent of democracies. This is
another instance where democracies have beaten non-democracies and partially
free nations by a wide margin. Participation in the Reduction of Statelessness
Treaty is extraordinarily unsatisfactory; only 34 states out of the possible 192 have
become parties, that is, this convention has a 18 percent ratification rate (see Table
4.1). Among the 34 participants, 14 are democracies, seven non-democracies, one
partially free state, and 12 other states for which polity data is not available. Even
in this instance of low participation, twice the number of democracies entered this
convention compared to non-democracies.
Opposition to both these treaties have been widespread even before adoption
since both these conventions touch on a wide variety of state policies—issuance
of travel or identity papers, passports, granting of citizenship or nationality, and
territoriality—that are considered to be sovereign domains beyond the purview of
any international authority. The nature of the modern state is such that they attempt
to limit, control, and manage the ingress and egress of people over their territorial
space, whereas the conventions on statelessness attempt to constrain the ability of
the states in these areas.
When the Legal Committee of the United Nations General Assembly began
deliberating draft proposals many state delegations objected to them on the
grounds that only states were “competent to regulate questions of nationality” and
by pursuing these proposals the United Nations was encroaching “on the domestic
jurisdiction of States” (Weiss 1961, 1077). Even the ratifying and the signatory
states appended a wide variety of reservations to seek exemptions from specific
articles of the conventions and interpret treaty clauses according to municipal law.
The United Nations Refugee agency undertook a detailed survey in 2003 to assess
the state of statelessness, but only 74 states or less than 40 percent out of the
possible 192 United Nations member states responded to the survey questionnaire
with the overwhelming majority of the states emanating from Europe (UNHCR
2004). This non-participation is not simply a function of resistance to the treaty
provisions, but it also reflects larger concerns among state parties that such rights
might be manipulated by refugees, asylum seekers, economic migrants, and
other displaced persons to gain entry into economically developed countries.
Concerns over immigration from the poorer parts of the world might inundate the
economically developed states and overwhelm their welfare system has suppressed
participation in the statelessness conventions.
Conventions to Abolish Slavery, Servitude, and Trafficking
The original Slavery Convention, signed at Geneva on September 25 1926 and the
Slavery Convention Amended by the Protocol, Protocol Amending the Slavery
Convention Signed at Geneva on September 25 1926, Supplementary Convention
on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar
to Slavery, and the Convention for the Suppression of the Traffic in Persons and of
the Exploitation of the Prostitution of Others are the five major international treaty
instruments that were developed to address various forms of slavery, slave like
practices, and trafficking, bondage, and forced servitude. According to the 1926
Slavery Convention negotiated under the auspices of the League of Nations, slavery
is defined as a “condition of a person over whom any or all of the powers attaching
to the right of ownership are exercised,” which includes “capture, acquisition or
disposal of a person with intent to reduce” a person to slavery and all other acts
that intend to sell or exchange human beings as slaves (UNHCHR n.d., Article 1).
The various slavery conventions behoove all state parties to prevent and suppress
the slave trade and abolish all forms of slavery, slave-like practices, and other
forms of servitude (UNHCHR n.d., Article 2).
After establishment of the United Nations Economic and Social Council
(ECOSOC), which was responsible for issues relating to slavery, proposed that
the 1926 Slavery Convention be incorporated within United Nations human rights
treaty system (Zoglin 1986, 311). By the time the United Nations was founded
virtually all forms of slavery were abolished with some exceptions, such as Saudi
Arabia, which ended slavery only in 1962, and the Sultanate of Oman, which
officially abolished slavery only in the early 1970s (Ray 1989, 406). Other forms
of slavery or slave-like practices, debt bondage, child labor, and human trafficking
still persist under innumerable guises in different parts of the world. Therefore,
the United Nations decided to bring the 1926 Slavery Convention within its
mandate to address the complete range of slavery and slavery-like practices that
the 1926 League of Nations had not considered and encouraged state parties
to go beyond the passive commitment to abolition (Zoglin 1986, 311). As a
consequence a protocol amending the 1926 Slavery Convention was approved
in the floor of the General Assembly in 1953, which effectively incorporated
the 1926 convention into the United Nations. Subsequently, the Conference of
Plenipotentiaries convened by the United Nations Economic and Social Council
(ECOSOC) adopted the Supplementary Convention on the Abolition of Slavery,
the Slave Trade, and Institutions and Practices Similar to Slavery in 1956 to fill the
holes in the 1926 Slavery Convention. This 15 clause supplementary convention
on slavery expanded the definition of slavery to include debt bondage, serfdom,
forcible marriage, transfer of women as property, sale of children, and child labor
(Article 1, Supplementary Convention 1956). The 1956 Supplementary Convention
also banned mutilation, branding, and marking to identify and indicate the servile
status of the slaves (Article 5). Enslavement and inducement to enslave others
were regarded as punishable offences (Article 6).
Participation in the four slavery and trafficking conventions is rather sparse.
Forty-one percent of the 192 United Nations member states have ratified the original
1926 Slavery Convention signed in Geneva. From 1927 to 1937 when the possibility
of the Second World War became imminent, 43 states ratified the convention
and from 1955 when the convention was absorbed into the United Nations, 35
states joined with Paraguay being the latest entrant in 2007. As anticipated, the 35
countries that ratified after 1955 are post-colonial states that did not exist prior to
Extensive participation analysis was not conducted on the 1926 League of Nations
Slavery Convention because this convention belonged to the pre-Second World War
period.
1945 and 65 percent of the 43 countries that ratified before 1937 were European
nations, which includes Australia, New Zealand, and the United States. The Protocol
amending the 1926 Slavery Convention has been ratified by only 30 percent of the
United Nations members, of which 55 percent are democracies and 80 percent are
non-democracies; 73 percent of non-democracies and 52 percent of democracies
have not ratified the protocol amending the Slavery Convention.
The Amended 1926 Slavery Convention of 1953 has been ratified by 51
percent or half of the 192 United Nations members; out of this 51 percent that
have become parties to the convention, 65 percent are democracies, 47 percent
are non-democracies, and 47 percent are partially free states. The Supplementary
Convention on the Abolition of Slavery adopted in 1956, which updates and
extends the 1926 Slavery Convention, has been ratified by 64 percent of the state
parties, of which 80 percent are democracies, 58 percent are non-democracies,
57 percent are partially free, and 44 percent are other states for which there is
no polity data (see Table 4.1). Besides the newer democracies such as Comoros,
Lebanon, Lithuania, Moldova, Papua New Guinea, and Uzbekistan, the significant
non-ratifiers among democracies are Botswana, Costa Rica, Indonesia, Japan,
Nicaragua, Panama, Republic of Korea, and South Africa.
A variety of factors have influenced state participation in these conventions,
most prominent among them are the timing of these conventions, confusion
regarding the aims of these conventions caused due to duplication and proliferation
of instruments, and the eventual abolishment of slavery and eradication from
practice, which reduced the urgency and the need among many states to ratify
these conventions. For instance, South Africa, which is still not a party to the
Supplementary Convention on Slavery, is a party to the original 1926 Slavery
Convention, Protocol Amending the 1926 Slavery Convention, and to the Amended
Protocol of the 1926 Slavery Convention. Obviously, South Africa does not feel
the necessity to ratify the supplementary convention because it had ratified the
original convention and its amended protocols. Some countries, such as the United
States and several European countries are parties to all four—1926, 1953, 1953,
and 1956—conventions. Technically, however, the two protocols introduced in
1953 amending the 1926 League of Nations Slavery Convention are identical. The
amended protocols effectively incorporated the 1926 Slavery Convention under
the United Nations treaty system through a referendum of the United Nations
member states, whereas the 1956 Slavery Convention extends the definition and
incorporated new anti-slavery norms into the treaty. After the establishment of
the United Nations in 1945, participation in the Slavery Convention Amended by
Protocol in 1953 and the Supplementary Convention in 1956 are pertinent in terms
of universal acceptance of jus cogens anti-slavery norms. Hence, the fact that
only 51 and 64 percent of the states have become parties to the 1953 convention
amending the original 1926 convention and its expansion and extension in 1956
is surprising. Again in this instance, analysis of the ratification patterns evidently
suggests that democratic political structure might be positively correlated with
increased state participation in the slavery conventions.
The United Nations consolidated a series of treaties on White Slave Traffic that
were introduced from 1904 to 1945 into the Convention for the Suppression of the
Traffic in Persons and of the Exploitation of the Prostitution of Others in 1949.
The Convention on White Slave Traffic reflected not only racial tensions and racial
panic among many countries, but it also euphemistically dealt with the problem of
women being trafficked and enslaved for the purposes of prostitution and sexual
slavery. Although the problem of trafficking affected a wide variety of individuals
irrespective of racial characteristics, the Convention on White Slave Traffic was an
euphemism for prostitution and other types of sexual servitude. Significantly, this
trafficking convention made those who procure and solicit prostitutes, encourage
and traffic for the purposes of prostitution a crime punishable under municipal law,
and it also aimed to rehabilitate persons engaged in prostitution. Presently, only
42 percent of the 192 United Nations member states have become parties to this
convention; 48 percent of the ratifying states are democracies, 47 percent are non-
democracies, and 43 percent are partially free, which shows that more than half of
the United Nations member states have not become parties to this convention.
In this instance, domestic polity does not seem to have a significant effect
on state participation. Reservations attached to the text of the Suppression of the
Traffic in Persons and of the Exploitation of the Prostitution of Others point to
one of the primary reasons why states are unenthusiastic about becoming parties.
Albania attached reservation stating that the “offences covered by this Convention
do not find favourable ground for development” in Albania and that the “social
conditions which give rise to such offences have been eliminated.” Similarly, both
the Russian Federation and Ukraine inserted reservations stating that the “social
conditions which give rise to the offences covered by the Convention have been
eliminated.” Nevertheless, Albania, the Russian Federation, and Ukraine ratified
the convention “in view of the international importance of suppressing these
offences” (Declarations and Reservations Attached at the Ratification or Accession
of the White Slave Traffic Treaty, 1949).
Rights of Migrant Workers
The International Convention on the Protection of the Rights of all Migrant

Workers and Members of their Families (ICRMW) was adopted by the United
Nations General Assembly in December 1990. This convention along with the
refugee, statelessness, and slavery conventions was crafted with the ultimate
objective of protecting the rights of migrant workers and their families who have
become highly visible and common in the later half of the twentieth century. The
migrant workers convention builds on the universal declaration of human rights
and distills some of the key provisions outlined in the six core human rights treaties
promoted by the UNHCR. Migrants relocate from their primary residence not only
in search of better economic opportunities, but also because of war, internal strife,
discrimination, and other egregious human rights abuses, such as ethnic cleansing.
The phenomenon of workers migrating to different geographic locations in search

of employment is hardly new, but the movement of people in the globalized
world has significantly accelerated thereby generating a new set of human rights
concerns produced by ethnic and racial tensions. These concerns primarily
center on discrimination, violence, ideal work environment, non-exploitation,
parity in wages, access to education, social services and welfare, health care,
arbitrary expulsion, forceful removal, and unfair punishment in the alien country.
Migrants can also experience social, cultural, and linguistic problems furthering
their isolation in the new lands. Another concern behind this convention is also
preventing illegal and clandestine migration, which encourages human trafficking
and exacerbates problems for the migrants and for the migrant receiving countries
that are experiencing such migration (UNHCHR 2006).
The Migrant Workers Convention extends the fundamental provisions of
human rights to all migrants irrespective of their national origin, ethnic markers,
class position, marital status, and legal standing (UNHCHR 2006). A migrant
worker is defined as someone “who is to be engaged, is engaged or has been
engaged in a remunerated activity in a State of which he or she is not a national”
(Article 1). The term migrant worker refers to frontier workers, seasonal workers,
seafarers, workers on offshore installations, itinerant workers, others employed
for a specific project, and self-employed workers (Article 2). This extensive and
detailed convention comprises 93 articles, which are divided into nine sections
with the first part focused on scope and definitions, and the middle five sections
containing 64 articles concerning fundamental normative provisions, and the
last three sections are devoted to procedural matters regarding application of the
treaty. The normative sections of the Migrant Workers Convention focus on non-
discrimination, human rights of all migrant workers, other rights irrespective of
legal status, special provisions applicable to particular categories of migrants, and
the promotion of sound, equitable, humane and lawful conditions for migration of
workers and their families.
State participation in this convention is one of the lowest among the 31 treaties
under consideration in this chapter. Statelessness Convention, Optional Protocol
on Torture, and the Migrant Workers Convention have 18 percent ratification; this
means that only a little over 30 states out of the 192 United Nations member nations
have joined all three conventions. Although the Migrant Workers Convention was
adopted in 1990, it entered into force only in 2003, when the 20th instrument of
ratification was submitted by Burkina Faso. So, in the 13-year period only 20 states
have become parties to this convention. After the 20th instrument of ratification
was submitted, 17 other states became parties bringing the overall ratification total
to 34 states in 17 years. Only 20 percent of the democracies, 22 percent of the
non-democracies, and 23 percent of partially free states have joined this treaty.
More than 80 percent of the United Nations member countries are yet to enter this
core human rights convention of the United Nations. None of the European Union
democracies, other advanced democracies, such as Australia, Canada, Japan,
New Zealand, and the United States, and advanced regional democracies such as
Brazil, India, Israel, South Africa, and South Korea have not signed or ratified the
ICRMW convention. Interestingly none of the migrant receiving countries have
ratified this convention, but the states from where the migrants originate from—
such as Algeria, Egypt, Libya, Morocco, and Turkey in the Middle East; Argentina,
Belize, Bolivia, Chile, Colombia, Ecuador, El Salvador, Guatemala, Honduras,
Mexico, Nicaragua, Peru, and Uruguay in South America; Burkina Faso, Cape
Verde, Ghana, Guinea, Lesotho, Mail, Mauritania, Senegal, and Uganda in Sub-
Saharan Africa; and few other East, Central, and South Asian states—have ratified
this convention.
The general concern among many of the migrant receiving states is that this
convention would limit the sovereign rights of the states to limit and decide who
can enter their territory, “how long they can remain,” and a larger concern is that
the ICRMW would provide a blanket right for family reunification to all migrant
workers who are present in a regular and special situation (MacDonald and
Cholewinski 2007, 51). Additional concerns center on the interpretation of the treaty,
which many states believe would make them ineffective in controlling the inflow
of the migrants and the length of their stay. Furthermore, considerable political
obstacles that manifest themselves in the form of anti-migrant sentiment have led
to non-acceptance of this treaty in almost all of the advanced democracies. Many
states consider this treaty to be superfluous and it offers no added value because
domestic laws in the European Union already accord significant protections to the
migrant workers and their families (MacDonald and Cholewinski 2007, 61).
Participation in Human Rights Conventions—A Summary
When the overall ratification rates of the democracies and non-democracies

are compared, the data shows that the ratification record of the democracies is
comparatively superior, except in the case of the migrant workers treaty in which
the non-democracies have a single percent lead. Advanced democracies have
demonstrated highly participatory instincts with the sole exception of the United
States, which is the least participatory country. Participation of the democracies
in the six core human rights treaties—ICCPR, ICESCR, ICERD, CEDAW, CAT,
and CRC—is near perfect with the exception of CAT, which has been ratified
only by 89 percent of the democracies. Only ten democracies—Botswana,
Comoros, Dominican Republic, India, Jamaica, Montenegro, Papua New Guinea,
the Solomon Islands, Trinidad and Tobago, and the United States—have not
become parties to all of the six core treaties. Among advanced democracies, the
United States has not yet ratified CEDAW and the CRC and India has not ratified
the torture convention (CAT). Interestingly, the United States is only advanced
democracy that has not joined the CEDAW and CRC both of which have been
ratified by 99 percent of the democracies. Although the ICRMW—the migrant
workers treaty—is the seventh core human rights convention, it has one of the
poorest ratification records.
Overall, 130 states or 68 percent have become parties to all of the six core
treaties, 22 states have ratified five of the six core treaties, 16 states have ratified
four out of six, 11 states have ratified three or two of the core treaties, and two
states—Nauru and Palau—have ratified only one core treaty. If the six optional
protocols—two for ICCPR, one for CEDAW, one for CAT, and two for CRC—
are included in the meta core treaty ratification analysis, the participation record
rapidly reclines for all countries. Only three countries—Argentina, Mexico, and
Uruguay—have ratified the seven core treaties plus the six optional protocols. In
other words, these three countries have a 100 percent ratification rate and have
become parties to 13 core treaties and optional protocols that are central to the
global human rights agenda. Out of the 31 human rights conventions analyzed
in this chapter only three—ICERD, CEDAW, and CRC—have been ratified
by more than 90 percent of the state parties with CRC approaching 99 percent
ratification, the rest of the conventions have varied rates of participation. Mexico
has an exceptional 100 percent participation record, having ratified all the 31
treaties including the 1926 Slavery Convention and the International Convention
against Apartheid in Sports, which is a record for any country. Bosnia, Croatia,
Romania, and Serbia have ratified 27 human rights treaties. All four countries have
not ratified the Migrant Workers Convention; Croatia and Serbia have not ratified
the Reduction in Statelessness Convention and Bosnia is yet to ratify the Rome
Statute treaty dealing with the immunities and privileges of the ICC. Thirty-one
percent of the United Nations member states have ratified 20 or more human rights
conventions.
The analysis of participation in human rights conventions reveals five broad
patterns. First, there is sufficient indication that democratic polity is positively
correlated with participation in international human rights accords relative to
non-democracies. Second, the ratification rates of the advanced democracies
are significantly higher compared with the exception of a few standouts, such
as the United States. Third, another discernable trend is that newer democracies,
countries that have transitioned to democracy during the last two decades, after
the end of the Cold War and in the new millennium, have demonstrated a greater
propensity to join human rights conventions compared to other democracies
and non-democracies. Last, the rate of accession to human rights conventions is
influenced by language, jurisdiction, expectations, and enforcement capacity of the
treaty monitoring bodies. Another factor that seems to be highly correlated with
participation in international conventions is a state’s economic ability or status.
The United Nations Development Programme’s (UNDP) Human Development
Index (HDI), which ranks a country on the basis of: (1) life expectancy at birth;
(2) adult literacy rate; (3) primary, secondary, and tertiary school enrollment; and
(4) GDP per capita, are highly correlated with a state’s ability and willingness to
participate in international conventions and fully comply with them.
As anticipated, 70 countries that score high on the HDI rankings have
demonstrated a greater inclination to join human rights convention, with the
exception of the oil-rich Middle East and North African nations, such as Brunei
Darussalam, Kuwait, Libya, and Saudi Arabia, Gulf states such as Bahrain, Oman,
Qatar, and United Arab Emirates, Asian economies of Hong Kong and Singapore,
and the partially free Malaysia and the Russian Federation. This succinct analysis
noticeably indicates that high economic achievement is not always correlated with
the desire to adopt universal human rights norms. Similarly, a country’s domestic
polity is not always a good predictor as to whether a state will enter or resist
joining human rights regimes. In instances where the country is economically
weak, such as India and Guatemala, and in the case of smaller democracies, such as
Mauritius, Paraguay, Senegal, and the Solomon Islands, democracy does seem to
be an ideal indicator of state participation in multilateral human rights agreements.
Both India and Guatemala although democratic, and India in particular, having
made significant strides in economic development have a rather weak record on
human rights. India suffers from a corrupt police force that is highly ineffective,
inefficient, and often resorts to excessive force and extrajudicial methods, know
as “encounters” to eliminate criminals and organized gang members. Amnesty
International annual reports point out that torture, illegal detention, and corruption
in the police and judicial system are routine and endemic. In the Indian case it is
not entirely a situation of unwillingness or lack of capacity (financial or human
resources); it is more an instance of systemic governance failure reflected in the
politicization of law enforcement and administration of justice.
A combination of democracy and high economic achievement seems to be a
very good predictor of a state’s entry into human rights regimes as exemplified by
the OECD countries. Economic development also seems to be a good predictor of
post-ratification treaty implementation and norm compliance. Almost all the OECD
countries, anomalies such as the United States notwithstanding, have become
parties to human rights conventions in high numbers. Another factor limiting state
participation is the size and capacity of a country. States with a population of
two million or less generating a gross national product per capita of 2,000 dollars
or less have shown little eagerness to join human rights conventions because of
concerns about onerous compliance and reporting requirements that would require
extensive legal, financial, and administrative requirements (World Conference
on Human Rights 1993, para. 86–7). Participation in human rights conventions
involves a degree of resource commitment for smaller states; therefore, they are
unwilling to enter binding international commitments.
It is not completely evident as to why many non-democracies also join the
different human rights regimes and assume onerous reporting burdens, especially
when many of these ratifying states fail at implementation, do not have the
institutional capacity to comply with the treaty norms, and do not or cannot
share the universality of human rights norms. To the extent that non-democracies
also enter these human rights conventions, although not to the same extent as
democracies, suggests that other factors are at work that are not sufficiently captured
by the variables of domestic polity and economic achievement. Specifically, the
increased participation of non-democracies seems to point to an inherent weakness
in the treaty monitoring institutions that seem to be highly focused on ratification
as the singular goal, instead of focusing on treaty implementation and norm

compliance (Bayefsky 1996). For instance, the African nations of Burkina Faso
and Uganda have ratified 20 out of the 29 conventions.10 Rwanda and the Central
African Republic have become parties to 18 and 14 conventions respectively;
these states are neither democratic nor are they economically advanced and they
have experienced catastrophic human rights tragedies and systematic violations.
The human rights records of innumerable non-democratic states are rather dismal
because of continued civil strife, ethnic conflict, weak institutional capacity,
governance failure, and lack of economic development. According to Amnesty
International’s annual report, Angola, Burundi, Central African Republic, Chad,
Democratic Republic of Congo, Guinea, Liberia, Niger, Nigeria, Sierra Leone,
Sudan, and Uganda are sites for the most “egregious human rights violations in
Africa” (Amnesty International 2002).
The litany of complaints includes illegal arrests, detention, kidnapping, torture,
rape, and extrajudicial murders inflicted both by the ruling governments and by
armed opposition groups. These states are also plagued by systemic economic
and social development problems that place them at the very bottom of the
human development index. A variation of this situation prevails in the Middle
East, North Africa, and parts of Asia, where states have grossly violated every
conceivable human rights convention. Gross and systemic human rights violations
such as “judicial and extrajudicial executions, widespread use of torture and unfair
trails, intimidation of human rights defenders and restrictions on the freedom of
expression and association” occur regularly in the Middle East and North Africa
with impunity (Amnesty International 2002).
Human rights woes suffered by denizens of these states put in jeopardy the
importance and value attached to the act of treaty ratification. Although many of
these non-democratic nations engage in the formal act of ratifying human rights
convention, they are unable or unwilling to practice the norms enshrined in these
conventions. The analysis in this chapter also points out that democratic rule and
the ability to effectively implement human rights treaties are intimately related.
The criticism leveled by NGOs, such as Amnesty International and Human Rights
Watch, against democracies, particularly advanced democracies, is comparatively
less harsh; notably, the evidence of systematic human rights violations in democratic
countries is limited or it is highly issue-specific.11 This reasoning suggests that the
answer to understanding the implementation crisis that is encountered by human
10 The total of 29 treaties does not take into account the International Convention
Against Apartheid in Sports and the 1926 Slavery Convention drafted by the League of
Nations; if these two treaties were added it would bring the total number to 31 human rights
conventions.
11 However, the Human Rights record of India, Israel, the United States, especially
after the 9/11 terrorist attacks, and that of the United Kingdom has come under intense
scrutiny because of the actions of these states in regional conflict and against the global
war on terror.
rights regimes vis-à-vis non-democracies may not end with ratification, but may
in fact begin with ratification because successful implementation and compliance
depends upon state capacity, that is, domestic institutional structure of the states
and on their economic and governance ability, which ostensibly non-democracies,
especially non-democracies with poor economies, are deficient.
Reservations, Understandings, and Declarations
States routinely attach reservations, understandings, declarations, interpretations,

objections, and denunciations (RUDs) at the time of ratification or accession
or subsequently if the treaty permits such exemptions. According to the Vienna
Convention on the Law of Treaties, RUDs are allowed and they should be
appended to the text of the treaty and communicated to all state parties, but other
states might object to such reservations and it will alter the treaty relationship
between the reserving and objecting state party (Goodman 2002, 534). RUDs are
principally intended as a tool to increase state participation while accommodating
the diverse needs of the 192 United Nations member nations. In many instances,
RUDs are permitted to enable the participating states to clarify a piece of domestic
legislation or attach an interpretation delineating the impact of a treaty norm on
municipal law. Reservations and other statements are considered advisable because
without RUDs many states would be unwilling to participate. It is better to have a
state become party to a treaty by making adjustments to its legal obligations rather
than have these states function outside the purview of the United Nations human
rights system. The goal is to entangle states in the “ever-expanding network of
international supervision and accountability” and gradually ensnare them into
norm acceptance (Bayefsky 1996). It is better to have the state within the confines
rather than having states operate outside the scope of the international human
rights regimes.
In practice, however, reservations have become a problem because states
routinely utilize such reservations as opt-out mechanisms from specific treaty
obligations, while appearing to be compliant with the broad general norm of a
convention. Algeria, which is party to the Women’s rights convention (CEDAW),
has attached a string of reservations objecting to the provisions of the Articles 2,
9, 16, and 29 of CEDAW. Similarly, Bangladesh, Egypt, and Iraq are some other
countries that have filed reservations against Articles 2 and 16 because it conflicts
with the Islamic Law (Sharia). Articles 2 and 16 of CEDAW are the two most
important provisions of the CEDAW. Article 2 calls upon state parties to condemn
all forms of discrimination against women and pursue appropriate measures to
eliminate discrimination and it outlines a series of steps that require states to make
constitutional amendments and other legal adjustments to prohibit discrimination
against women. Article 16 of CEDAW encourages state parties to eliminate
all forms of discrimination against women in regards to marriage and family
relations and ensure equality between men and women. Other states have objected
to various other articles of the CEDAW; China has refused to accept Article 29,
which encourages state parties that are not able to settle disagreements regarding
the interpretation of CEDAW through bilateral negotiation to submit themselves
for arbitration through the International Court of Justice. The convention on the
elimination of racial discrimination (ICERD), provides for “any dispute between
two or more States Parties with respect to the interpretation or application of this
Convention,” could be “referred to the International Court of Justice for decision,”
“at the request of any of the parties to the dispute” (Article 2, ICERD). Automatic
ICJ arbitration, particularly the power of one state party to bring the dispute to ICJ
without the consent of the other state party is routinely objected by states in every
instance. Forty-three states have attached 101 RUDs to the ICERD, 36 percent of
these reservations refer to normative portions of the treaty and 64 percent raise
concern with procedural components (Bayefsky 2001, 702). The six core human
rights treaties receive significant number of RUDs much of which are primarily
focused on exempting themselves from the normative components of the human
rights treaties (see Table 4.2).
Ostensibly, the purpose of CEDAW is to eliminate all forms of discrimination
against women and the purpose of the ICERD is to eliminate all forms of
racial discrimination, but when states disagree as to what can be construed as
“discrimination” or if a state such as Bangladesh claims that equality between man
and woman as interpreted by CEDAW is unattainable because men and women
have different sets of rights, then the universality criterion of human rights is at
risk. Article 2 of CEDAW calls upon all state parties to “condemn discrimination
against women in all its forms,” and “agree to pursue by all appropriate means and
Table 4.2 RUDs, and objections attached to the core human rights
conventions
Procedural
No. of States No. of RUDs Normative or
or Process
Core Treaty Attaching per each Substantive
Related
RUDs Treaty RUDs*
RUDs**
ICERD 43 101 34 64
ICCPR 52 181 159 22
CESCR 39 83 68 15
CEDAW 49 132 100 32
CAT 28 45 17 28
CRC 61 204 203 1
Notes: * Normative RUDs refers to substantial reservations attached by state parties to the
core treaty norms. ** Procedural RUDs refers to reservations attached to specific procedural
aspects, such as ICJ jurisdiction.
Source: Data Gathered from Anne F. Bayefsky (2001), The UN Human Rights Treaty
System: Universality at the Crossroads. New York: Transnational Publishers.
without delay a policy of eliminating discrimination against women.” Egypt has

attached reservations to Article 2 of CEDAW stating that it is willing to comply
with the provisions of this article “provided that such compliance does not run
counter to the Islamic Sharia” (see Text of CEDAW 1979). Also states that do not
want to confirm with specific provisions of a treaty have used RUDs to nullify
problematic treaty obligations. Although reservations bring states that would not
otherwise participate under the legal ambit of a treaty, it also effectively reduces
the effectiveness of human rights conventions.
Besides cultural relativism, the construct of “state sovereignty” represents
another challenge to the effectiveness of human rights conventions. State
sovereignty provides a state with the right to treat its citizens and its property
however it may wish, that is, each state is the paramount authority within
its boundaries. Sovereignty rests on the idea of mutual recognition and non-
interference. Human rights conventions seek to constrain state action by devising a
set of shared norms and rules, and administer them through international institutions
to bring a sense of universality to the treatment of human beings everywhere, that
is, seek normative convergence. States have always sought to exempt themselves
from such external influences in order to maintain their political, ideological, or
economic independence. Since the end of the Second World War, the meaning
of sovereignty changed because of the abhorrent actions of the Nazi regime.
The establishment of the United Nations signified that states could no longer
claim unrestricted sovereignty and pursue actions that are unaccountable to the
international community. Human rights regimes encourage states to participate
in global arrangements and follow certain universal conventions. Participation in
these treaties and the assumption of specific international legal obligations are
entirely voluntary and the implementation of norms is entirely the responsibility
of the states. Nevertheless, there is an inherent tension between the normative
aspirations of the human rights regimes and the political constraints confronting
their implementation (Falk 1981).
Monitoring Treaty Implementation
Successful implementation of human rights conventions depends on a proper fit

between human rights norms and domestic governance structure; furthermore,
effective enforcement and monitoring also influence implementation and
participation outcomes. Treaty implementation is pursued through a system of
reporting to monitoring bodies of select international human rights treaties. When
a state becomes party to a convention it assumes the obligation of periodically
submitting a report to a treaty monitoring body to demonstrate that it has indeed
pursued specific implementation policies to fulfill its treaty obligations (UNHCHR
2005). These treaty monitoring bodies do not have the power to enforce treaty
law on the participating states; they could only recommended changes, suggest
necessary modifications in municipal law, and motivate states to implement
treaty provisions. Implementation and enforcement is entirely dependent on the

domestic actors as the sovereignty constraints dictate. The primary purpose of the
treaty monitoring bodies is to engage in a series of non-confrontational iterated
normative dialogues with state parties and gradually nudge them towards effective
implementation.
Presently there are seven treaty monitoring bodies that examine the
implementation of the seven core treaties and their optional protocols, including
the Migrant Workers Convention (ICRMW), but the Committee on the Rights of
Persons with Disabilities (CRPD) is not yet in operation. Two primary tasks of
these treaty monitoring bodies are consideration of reports submitted by states
parties and consideration of individual complaints or communications. State
parties to these treaties and their optional protocols are expected to file progress
reports to the monitoring committee as required by the articles of each convention.
Treaty monitoring bodies are composed of experts who monitor implementation
by state parties. Each committee consists of independent experts of recognized
competence in the field of human rights. CAT, CRC, and CRMW have ten
members each, CERD, HRC, and CESCR are made up of 18 members, and the
CEDAW committee has the highest number with 23 independent experts. These
independent experts are drawn from all member states, and they are nominated
and subsequently elected for a fixed, renewable term of four years by the states
and these elections are conducted every two years for half the members of these
committees (UNHCHR 2005).
State parties submit two types of reports—a core document or an initial
report a few years after ratification and regular periodic reports documenting
progress made towards implementation. The core document contains detailed
and specific information on the constitution, legal system, and provides other
relevant information including demographic information. Periodic reports carry
forward items identified in the core document and expands on the state of human
rights within each participating member state and outlines the implementation
process. Initial reports are due within one to two years after the ratified treaty
comes into legal effect for the state party and periodic reports are due every four to
five years, with the exception of ICERD for which periodic reports are due every
two years. Monitoring committees examine the submitted reports to determine
whether a state is taking necessary and proper steps to become compliant with the
treaty provisions. These monitoring bodies are not judicial or even quasi-judicial
bodies; they are simply a committee of experts appointed by state parties tasked
with reviewing treaty implementation (Alston and Crawford 2000, 1–2). Treaty
monitoring bodies do not have enforcement powers, sanctioning capacity, possess
the authority to rebuke sovereign state parties, challenge the veracity of the reports
submitted by state parties or engage in adversarial legal inquiry. Independent
expert committee hearings are non-confrontational and the committees do not and
cannot condemn or pass legal judgment on the rights record of the state parties.
Treaty bodies can only make recommendations, offer consultations, and expect
states to follow them in good faith.
An independent report commissioned by the United Nations points out that

the “principle of holding states accountable for noncompliance with their treaty
obligations by means of objective and constructive dialogue, on the basis of
comprehensive information and inputs from all parties, has been vindicated in
practice and has the potential to be an important and effective means by which to
promote respect for human rights” (Commission on Human Rights 1997, para. 9).
The same report, however, identifies numerous challenges with the human rights
treaty monitoring institutions and calls for comprehensive reforms. Increasing
demands being placed on the treaty monitoring committees due to the proliferation
of reporting obligations and expansion of state participation; lack of budgetary
support and manpower capacity has reduced the ability of the monitoring bodies to
efficiently assess country reports. Participating states, which have the responsibility
for producing these reports, tend to embellish facts or fail to acknowledge certain
systematic problems. Sixty-eight states have not submitted the core document that
is required of all state parties upon entering the core human rights conventions. Not
surprisingly, 23 non-democracies have not submitted the core document compared
to 12 democracies and 12 partially free countries. Among advanced democracies,
India, Israel, and Italy are the most notable countries that have not submitted the
core documents as of January 2005 (UNHCHR 2005). Many newer democracies
such as Comoros, Ghana, Mongolia, Montenegro, and the Solomon Islands have
also not submitted the core document. Other states that have not yet submitted their
core documents include a combination of small states with weak economies and
non-democracies such as Egypt, Kazakhstan, Kuwait, Laos, Myanmar, Pakistan,
Rwanda, Saudi Arabia, Tanzania, and Vietnam.
Another serious challenge encountered by the monitoring bodies is the “large
number of significantly overdue reports” (CHR 1997, para. 9). The Human Rights
Committee deplored the fact that more than “two-thirds of all state parties” to the
political and civil rights covenants administered by the committee had not yet
submitted their reports (Alston 1997, 10). Not only has the number of overdue
reports increased, but also the waiting time between the submission and examination
of country reports has increased to three years (CHR 1997, para. 9). As the number
of state parties to the six core conventions increased from 618 in 1993 to 1,015 in
2005, the number of overdue periodic reports has more than doubled from 714 to
1,608 (see Table 4.3). ICERD, the anti-discrimination convention, has the highest
number of overdue reports with 436 and CEDAW comes in second with 323,
and the CESCR, the economic and social committee, has witnessed a doubling
of overdue reports from 134 in 1998 to 248 in 2005. Each of the 192 United
Nations member states have an average of nine overdue reports, 41 percent of the
states have more than 10 overdue reports, 11 countries have more than 20 overdue
reports, and Sierra Leone and Central African Republic (CAR) each have 26 and
23 overdue reports.
The human rights committee (HRC), which examines state reports for the
ICCPR, pointed out that the situation of chronic delays in the submission of periodic
reports gravely affected the ability of the HRC to monitor the implementation of
Table 4.3 Overdue implementation reports to the core human rights

treaty bodies
Reports 1996
Reports 1998
State Parties
State Parties
State Parties
State Parties
Overdue
Overdue
Overdue
Overdue
2005***
Reports
Reports
1993**
Bodies
Treaty
1993*
1996
1998
2008
ICESCR 119 65 134 115 137 134 158 248
ICCPR 115 83 114 116 140 138 161 224
ICERD 132 342 147 401 150 421 173 436
CEDAW 118 127 153 189 161 206 185 323
CAT 71 38 98 67 104 100 145 179
CRC 126 59 187 71 191 135 193 198
TOTAL 681 714 833 959 883 1134 1015 1608
Notes: * State Parties refers to the number of states that have ratified the convention.
** Overdue Reports refers to the number of reports that are overdue to each Treaty Body.
*** The number of overdue reports can exceed the total number of state parties because
some state parties have two or more reports overdue.
Source: United Nations, Status of Preparation of Publications, Studies and Documents
for the World Conference, World Conference on Human Rights, A/CONF.157/PC/62/
Add.11/Rev.1, April 22 1993; United Nations, Effective Functioning of Bodies Established
Pursuant to United Nations Human Rights Instruments, Commission on Human Rights,
E/CN.4/1997/74, March 27 1997; United Nations, Report by the Secretariat, Concept Paper
on the High Commissioner’s Proposal for a Unified Standing Treaty Body, HRI/MC/2006/2,
March 22 2006.
the political and civil rights convention and its optional protocols. Non-submission
of country reports and the inability of the monitoring bodies to encourage states
to file reports in a timely and sustained manner has seriously jeopardized the rapid
advances made in the development of human rights instruments and reduced the
effectiveness of the United Nations human rights regime.
Former United Nations Secretary-General, Kofi Anan, acknowledged the
persistent problem of overdue reports, and the heavy resource burdens imposed
by the treaty reporting process on state parties has raised questions about the
effectiveness of the United Nations human rights monitoring bodies (UNGA
2005, para. 147). According to one estimate, if the current schedule for reviewing
state reports is maintained, “it would take the treaty bodies an average of eight
years” just to review the backlogged overdue reports (Bayefsky 1996, 3). Treaty
monitoring committees generally convene only twice a year for sessions that run
for a maximum of three weeks or less, which is highly inadequate to consider
the volume of state reports and the time devoted to each state party is rather
perfunctory. Furthermore, questions have been raised regarding the independence
of the “independent experts” who are elected to these committees based on

nationality and regional representation quotas. Many of these independent experts
hail from nations that are egregious violators of human rights. Analysis of the
voting records conducted by Amnesty International of the Asian member states
of the 60th and 61st Commission of Human Rights indicated that Bahrain and
China have voted in favor of pro-human rights agenda only 10 percent of the time
or less; only Japan and South Korea have a 70 percent pro-human rights voting
record. Similarly, among the African regional group, Egypt, Guinea, Sudan, and
Zimbabwe have joined the pro-human rights agenda less than 15 percent of the
time during the 60th and 61st commission meetings.
A brief comparative study of the Amnesty International reports and the periodic
state reports submitted by individual countries to the treaty monitoring bodies clearly
suggest that there are considerable reporting gaps and interpretive differences in
the submitted reports. In a report submitted by China to the Committee on Torture,
which includes Hong Kong, China claims significant developments in the revision
of domestic criminal law in order to limit the extraction of confessions through the
use of torture or other means of physical coercion (CAT 1999). According to the
Chinese government, any state functionary who extracts “confessions by torture
shall be sentenced to a fixed-term imprisonment of not more than three years
of criminal detention” (CAT 1999, 8). This report further states that China has
prosecuted 409 cases in 1996 and 412 cases in 1997 in which torture was employed
to extract confessions from prisoners (CAT 1999, 8). A review of China’s report
by the Committee on Torture in its 24th session (May 1–9 2000) expressed grave
concern over the “continuing allegations of serious incidents of torture, especially
involving Tibetans and other national minorities” (CAT 2000).
In its annual human rights report, Amnesty International, a non-governmental
human rights organization, points out that the Chinese government has engaged
in systematic repression, denial of due process, crackdown on peaceful
demonstrations, repression of political dissidents, and widespread use of torture
and ill-treatment of prisoners (Amnesty International 2000). According to the
Amnesty report, the police utilized various methods of torture to intimidate people,
which “included kicking, beating, electric shocks, hanging by the arms, shackling
in painful positions, and sleep and food depravation” (Amnesty International
2000). The Committee on Torture also expressed concern over the lack of “detailed
information and statistics regarding torture and other forms of cruel, inhuman or
degrading treatment or punishment” (Amnesty International 2000). But, the report
submitted by China did not provide any specific details on any events of torture or,
identify the circumstances that warranted treatment of prisoners in a cruel manner.
One of the positive outcomes of China’s participation in the Torture Convention
was the submission of a report detailing amendments and reforms of municipal
criminal law. China is engaging with the select human rights conventions, instead
of remaining outside the bounds of the United Nations treaty monitoring system.
Nevertheless, the Chinese government is highly reluctant to provide specific
information about the treatment of prisoners, especially political prisoners. This
reluctance is largely borne out of the concern that such public acknowledgement
would not only lead to the erosion of the ruling Chinese Communist Party’s
legitimacy, but also provide political fodder to regime opponents.
China’s report indicates that the lack of independent verification and
unannounced on-site inspections has limited the capacity of the United Nations
treaty monitoring committees to autonomously assess whether China is fully
complying with the provisions of the Torture Convention. United Nations treaty
monitoring bodies are especially sensitive about grading a state’s implementation
of the human rights conventions as strong, weak, and adequate because it has the
potential to evoke strong reaction from state parties (Farer 1989). As a result the
United Nations treaty monitoring bodies have resorted to bland pronouncements
that obfuscate the seriousness of human rights violations in different parts of
the world. Hence, any criticisms from the United Nations treaty monitoring
agencies directed against the member states are likely to be muted because of
the high regard placed on state sovereignty and sensitivity of the states to such
public criticisms. That is why the reporting committee deliberates in closed
door sessions to which only the state parties are admitted. The task of assessing
whether a country is fully implementing the provisions of a treaty becomes
distinctively challenging when dealing with a non-democratic country. The
lack of political openness, free press, Internet, and media censorship, which are
common characteristics of authoritarian societies, makes unbiased estimation
of human rights conditions in the different parts of the world rather difficult.
Non-democracies are acceding to the core United Nations human rights treaties
rapidly since the end of the Cold War, but it is difficult to fully assess if these
participants are fully implementing provisions of the conventions without
independent verification and confirmation.
Various measures have been suggested for reforming the United Nations
human rights bodies. These include consolidation of state reports into a
single document for all treaty bodies, complete elimination of the reporting
system and replacing it with a detailed questionnaire, examination of treaty
implementation even when the reports are overdue and the state parties are
absent, doubling, tripling or even making the independent expert committees
a semi-permanent feature, publishing state reports and recommendations in
the form of a compendium to raise awareness and shame the noncompliant
states into submission (Alston 1997; Alston and Crawford 2000). All of these
reform measures are imperfect because United Nations treaty bodies have very
limited judicial or enforcement powers; these bodies are structurally limited in
their ability to do much more than what they are already doing. Recalcitrant
and uncooperative states will indeed resist participation in the United Nations
human rights conventions and seek to limit the influence of treaty bodies. As
long as the costs of non-cooperation are limited or non-existent, states are
unlikely to respond to the requests by the treaty bodies or demonstrate eagerness
in ratifying conventions. Human rights regimes are inconvenient because they
introduce normative change and seek to alter the judicial, political, and socio-
economic balance within member states; authoritarian states in particular prefer

to maintain the domestic status quo because it allows them to maintain their hold
on power and pursue instrumentalist political goals to ensure political survival
instead of subscribing to international human rights norms.
Chapter 5
The Case of the United States
From the beginning of the early twentieth century the United States has played
an exceptional leadership role in establishing multilateral organizations and
promoting international law. Although the League of Nations failed due to various
reasons, it was entirely an American idea aggressively promoted by President
Woodrow Wilson. Later the United States was instrumental in establishing the
United Nations, drafting the Genocide Convention, the Universal Declaration of
Human Rights, and responsible for creating a variety of international institutions
for the regulation and management of global trade and finance, actively promoting
multilateral human rights treaties, pushing Europe towards a centralized system of
governance, and engendering the creation of various regional trade and political
organizations. Undeniably the United States has been at the forefront of the
creation of international organizational architecture in multiple issue areas.
President Franklin D. Roosevelt pursued a triangular diplomatic strategy with
the United Kingdom and Soviet Russia while the Second World War was at its
most intense stage, which was crucial for the establishment of the United Nations.
Subsequently, adoption of the Universal Declaration of Human Rights (UDHR)
in 1948 was made possible because of the fervent drafting efforts of First Lady
Eleanor Roosevelt. Without the impetus and resources provided by the United
States, the United Nations would not have been chartered and found a location
to build its world headquarters. Besides establishing the United Nations, the
United States provided critical leadership for the creation of the Bretton Woods
institutions—the World Bank and the International Monetary Fund—and the
General Agreement on Tariffs and Trade (GATT), which eventually transformed
itself into the World Trade Organization (WTO) in 1994.
One of the enduring paradoxes of United States participation in international
treaty regimes and acceptance of international law is that it has acted as an
enforcer of norms and rules by sanctioning and rewarding states that cooperate
with international treaties, while exempting itself from formal participation
in the very same treaties that it helped to establish. Why has the United States
chosen to exempt itself from multilateral treaty regimes that it helped to create?
Why does the United States choose to promote multilateralism for the rest of the
world, while opting out from such entanglements? The United States is yet to
ratify the Comprehensive Test Ban Treaty (CTBT) and the Anti-Personnel Mines
Treaty (APM); it has since withdrawn from the Permanent International Criminal
Court (ICC). It has demonstrated the greatest resistance to the ratification of the
Kyoto Protocol on Global Climate Change. As a leading advocate of international
human rights, the United States has only ratified a limited number of human
rights conventions. The United States along with Somalia, which has not had a
functional government in over two decades, are the only two countries that are yet
to ratify the Child Rights Convention (CRC). Although the United States has been
at the forefront of the global movement to advance women’s rights throughout
the world, it is yet to ratify the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW) and the International Convention on
Economic, Social, and Cultural Rights (ICESCR). It played an instrumental role
in the negotiation, drafting, and adoption of the Genocide Convention in 1948,
but more than 40 years elapsed before the treaty was ratified by the US Senate.
Among advanced industrial democracies, the United States is the only country in
which capital punishment, including the juvenile death penalty, is still practiced
both at the federal and state level. It is one of the top five countries behind China,
Iran, Pakistan, and Saudi Arabia that lead the world in the number of executions
every year.
The United States is an established, advanced industrial modern democracy
with unique historical factors shaping its social and political development and
it embodies many of the ideal democratic values that are viewed as a model
for emulation for emerging democracies and the rest of the world in general.
However, the behavior of the United States towards the multilateral treaty regimes
reveals a fundamental paradox. Despite being an active promoter of democracy,
globalization, free markets, and regime-based governance, the United States has
sought to exempt itself from joining numerous multilateral treaty regimes. Why has
the United States chosen to exempt itself from the very same regimes that it helped
to create, install, and enforce? Why does the United States consider its actions and
policies to be immune from moral judgment and international opprobrium, and
believe that its actions are not constrained by the same set of international rules
and norms, which it is instrumental in fostering?
Eagerness to join some regimes and not others and the desire to constrain the
influence of multilateral regimes, while promoting their value and importance for
the rest of the world can be partially explained by analyzing the internal social
norms of the United States and institutional dynamics. American attitudes towards
multilateral regimes reflect deeper normative concerns about global institutions
and the ambivalence generated by its pre-eminent position within the international
system. The following sections of this chapter look at international law through
the prism of domestic political institutions and social norms, which effectively
contextualizes United States power, its insecurity, and anti-internationalist or
isolationist posture. To facilitate in-depth analysis, this chapter will be divided into
five sections. The first section will detail the origins of rights discourse by focusing
on the development of the Constitution and the Bill of Rights and demonstrate
how the concept of rights is fundamental to the founding of the United States.
The second section will examine how the dynamic relationship among federalism,
state rights, and treaty powers of the executive branch influences United States
attitudes towards international law and multilateral treaties. The third section will
discuss the treaty-making powers of the United States Senate and how the Bricker
The Case of the United States 145
Amendment constitutional fight altered perceptions and politics surrounding treaty

ratification and generated entrenched opposition to United States ratification of
human rights conventions. The fourth section will describe United States human
rights policy during the Kennedy–Johnson, Nixon–Kissinger, Carter–Vance, and
Reagan–Kirkpatrick era. The fifth section will analyze United States opposition
to the Genocide Convention, Women’s Rights Convention (CEDAW), and the
International Criminal Court.
Origins of Rights Discourse in America
We hold these Truths to be self-evident, that all Men are created equal, that they
are endowed by their Creator with certain unalienable Rights, that among these
are Life, Liberty, and the Pursuit of Happiness … That to secure these Rights,
Governments are instituted among Men, deriving their just Powers from the
Consent of the Governed, that whenever any Form of Government becomes
destructive to these Ends, it is the Right of the People to alter or to abolish it, and
institute a new Government.
The American Declaration of Independence (1776) begins with these stirring

words, which have formed the bedrock of rights discourse in the United States.
This declaration contains two important normative and institutional understandings
that characterize the modern United States, that all people are born equal and they
possess unalienable rights, which are antecedent to the formation of the state, that
is, natural rights are present in the state of nature, and that those rights are God-
given and innate in each human being and it cannot be taken away by the secular
authorities of the state. The Declaration of Independence does not confer rights
upon the people, it only points out that individuals are endowed “with the moral
autonomy, liberty, and other rights” by their creator and that the job of the state is
to merely ensure that such rights are not trampled on (Henkin 1990, 158). Second,
The declaration “That all Men are created equal, that they are endowed by their
Creator with certain unalienable Rights,” has generated some controversy because the
Declaration of Independence drafted by Thomas Jefferson contains language which
suggests that all men, that is, human beings are equal, but in reality that clause did not apply
to slaves, free-men of color, and women. In 1787 the system of slavery was widespread and
common in the United States and slaves in servitude were considered to be property and not
free people. The Supreme Court decision in the case of Dred Scott v. Sanford (1857) held
that slaves were indeed property and that they did not possess the rights granted under the
Constitution to free people. This ruling by the Supreme Court in many ways precipitated
the American Civil War. Similarly, women were held in subordinate status and were not
granted suffrage rights until 1920, when the 19th Amendment to the Bill of Rights of the US
Constitution declared that gender based discrimination based is illegal. After the end of the
Civil War, slavery was abolished through the 13th Amendment and the 14th Amendment
assured equality through the “equal protection” clause. Racial equality was not fully realized
the Declaration defines the institutional dimension that suggests that a government
should be established to protect these rights, which should be based on consent
of the governed, that is, the citizens, and that whenever the government does not
work for the people, it should be replaced by another one. The state does not
confer rights to its citizens; it merely arbitrates rights disputes as outlined in the
founding documents. If the state fails to impartially administer and protect such
rights, then citizens should be able to replace such a government with force if
necessary. To reiterate, according to the Declaration of Independence, rights are
inalienable and democratic governance is necessary to protect the ability of the
government to secure guaranteed rights.
The Declaration of Independence is a document of rights, which the United
States colonies claimed for themselves by reference to a higher authority which
were denied to them by the absolute tyranny of the British King, who usurped
such rights and caused repeated injuries to the people of the colonies. Rights
enshrined in the Declaration represent the general aspiration of United States
citizens to pursue their professions, trade, and beliefs as they aspire with minimal
or little interference from the state. The Declaration of Independence articulated
a minimalist conception of the state based on consent of the people, who have
the ultimate authority to grant approval and terminate governments when they
fail in its basic purpose. This minimalist conception of rights as unalienable,
fundamental, and inherent to the human being was further reinforced by: the
Articles of Confederation (1777); Northwest Ordinance (1787); Constitution of
the United States (1787); and the Bill of Rights (first ten amendments appended
to the Constitution in 1791). These documents form the four pillars of the United
States constitutional system that guarantees certain fundamental civil and political
liberties and establishes the institutional design for enforcement of such rights
(Cox 1998, 41).
until the passage of the Civil Rights Act in 1964 and the Voting Rights Act in 1965, which
forcibly integrated American schools and workplaces.
The Second Amendment to the Bill of Rights, which refers to the right to bear arms,
highlights the need for a well armed militia to protect against the tyranny of the state, but
the interpretation of this amendment is historically dependent and subjective.
The Declaration of Independence is essentially a document of rights or claims by the
colonies against the British Monarchy. The American Colonies sought for themselves the
right to pass laws, tax, naturalize immigrants, conduct trade, conclude trading arrangements
with other states, buy property, organize a militia, and practice their religion in peace
without interference from the British Crown. However, none of these claims were extended
to the African slaves and no efforts were pursued to abolish slavery until it precipitated the
Civil War.
The Northwest Ordinance deeply influenced President Abraham Lincoln’s
Emancipation Proclamation that was issued in 1862, which abolished the institution of
slavery and servitude in the Union of the United States of America, and precipitated the
Civil War between the Northern and Southern states.
Bill of Rights and the Rights Discourse
Unlike the national constitutions of other comparable democracies, the United

States Constitution is a pithy document consisting of seven articles that delineates
the organization and function of the different branches of the government. It
outlines the rules for electing members to the House of Representatives, the
Senate, and the Presidency, describes the institutional structure and functions of the
legislative and executive branches and their interactions, identifies the objectives
of governmental relations between federal and state governments, and concludes
by defining the role and function of the judiciary, particularly the Supreme Court,
the nation’s highest court. The seven articles of the United States Constitution
contain little in the form of explicit or formal language of rights and neither does
the Declaration of Independence directly confer any formal rights; the discussion
of rights arrives subsequently in the Bill of Rights, which contain the first ten
amendments to the United States Constitution adopted in 1791. The remaining
17 amendments to the United States Constitution were ratified and adopted from
1795 to 1992. The Bill of Rights came into effect because of the activities of the
anti-federalists, who were concerned about the concentration of power in a single
(federal) branch of government. Anti-federalists were particularly concerned
that such, concentration of power within the federal government would lead
to excesses, tyranny, and dominance, which would result in undemocratic rule
(Henkin 1990, 114).
The Bill of Rights is a quid pro quo document, which the “prominent opponents
of the Constitution exacted for their eventual support” and ratification of the
United States Constitution (Lillich 1990, 58). Some of the drafters of the United
States Constitution, mainly James Madison and Alexander Hamilton, were against
the incorporation of the Bill of Rights into the Constitution. Eventually, the Bill
of Rights was appended to the Constitution principally because James Madison
yielded to public pressure and supported the inclusion of the Bill of Rights (Storing
1985). Both Hamilton and Madison believed that rights are inherent in the different
articles of the Constitution; hence, a separate Bill of Rights was thought to be
unnecessary and superfluous (Hamilton 1988b). Hamilton, in particular, believed
that the constitutional delineation of the different functions of the government,
separation of powers, and checks and balances of governmental powers were
sufficient to protect the rights of citizens.
The enumeration of specific rights was considered to be unnecessary by
Hamilton, Madison, and other opponents of the Bill of Rights because they
believed that enumeration of specific rights would relegate other rights that are
not mentioned in the document to a lesser status or present an obstruction against
unenumerated rights (Rakove 1992, 101). Madison was principally concerned that
the Bill of Rights might become a parchment or a paper barrier to the heretofore
unenumerated rights. Most importantly, the Ninth and Tenth Amendments to
the Bill of Rights was Madison’s clever device to ensure that state and federal
governments do not proscribe unenumerated rights, that is, rights not outlined
in the Bill of Rights. According to the Ninth Amendment, “the enumeration in

the Constitution, of certain rights, shall not be construed to deny or disparage
others retained by the people” (Bill of Rights 1791). Rights enjoyed cannot be
delimited to those described in the first eight amendments of the Bill of Rights.
The Tenth Amendment states that the “powers not delegated to the United States
by the Constitution, nor prohibited by it to the States, are reserved to the States
respectively, or to the people” (Bill of Rights 1791). Powers not delegated to the
federal government are reserved for states and to the people, unless it is specifically
prohibited by an act of law.
The United States Constitution including the Bill of Rights guarantees three
basic types of rights: intrinsic; private; and procedural rights. Intrinsic rights allow
for freedom of expression, the right to assembly, the right to bear arms, right to
petition the state, and the right to choose a government (Tarcov 1985, 101–2). In
the private sphere, the United States Constitution also protects “free exercise of
religion, protection of non-political aspects of freedom of expression, the right to
be secure in ones’ persons, house, papers, effects from unreasonable search and
seizure, right to own private property, and right to make private contacts uninhibited
by the state” (Tarcov 1985, 102). Last, the Constitution guarantees procedural
rights, such as due process enshrined in the Fourteenth Amendment that affords
every individual the right to representation, the right to a speedy trial by a jury
of peers, immunity from self-incrimination (Fifth Amendment), and protection
from double jeopardy (Fifth Amendment), which guards individuals from being
prosecuted twice for the same crime in two different courts (Constitution of the
United States 1787). The Constitution does not guarantee employment for all,
there are no fundamental rights to education, but all public schools are accessible
to every child irrespective of ability, wealth, or their racial or ethnic background
and there are no rights to accumulation of wealth, property, and no provisions
for guaranteeing basic necessities of life. Such guarantees are included in several
human rights covenants, but not in the United States constitutional documents.
The Declaration of Independence only secures the “pursuit of happiness,” not
happiness itself; it guarantees that everyone will have access and opportunities for
Legal scholars argue that Ninth and the Tenth Amendment have no basis in United
States jurisprudence and the courts rarely rely on the Ninth and Tenth Amendment to decide
cases. Nevertheless, cases have been presented before Supreme Court of the United States
and other federal courts claiming violation of Tenth Amendment, rights such as the Missouri
v. Holland case, which examined whether the federal government had the powers to amend
state laws through treaty powers.
A person can be tried twice for a crime once under state law and once under federal
law. The double jeopardy clause implies that a person cannot be tried for the same crime
twice under the same law.
Access to education, however, was not always equal opportunity in practice;
African-Americans, Native Americans, and other racial minorities were systematically
discriminated against and not incorporated into the mainstream life until the passage of
Civil Rights Legislation in 1964.
the “pursuit of happiness,” but to the extent people succeed or fail depends entirely
on their individual abilities. The United States conception of rights is a limited
conception of rights; it is not a broad and expansive document such as the Universal
Declaration of Human Rights. Founding documents facilitate the establishment of
institutions that would enable individuals to pursue economic, social, and cultural
rights, but it does not guarantee them. It assumes that each individual based on their
abilities will realize varying levels of success. Rights, such as the right to work and
the right to an increase in pay and promotion fall within the private domain and
federal laws do not secure them because the heavy hand of government is supposed
to be constrained. In the United States system the fundamental task of the state is to
ensure that social and institutional barriers do not deprive access to opportunities;
the focus is upon access and not on opportunities themselves.
The organic laws of the United States ensures the dignity of the individual,
that is, it recognizes the inherent dignity of the human being (Meyer and Parent
1992). As the former Supreme Court Justice William Brennan (1956–1990) put it,
the United States Constitution is a “sublime oration on the dignity of man” (Cox
1998, 1–2). Other constitutional scholars have also pointed out that “from the
beginning … the language of America has been the language of rights” (Kurland
and Lerner 1987, 424). Nevertheless, rights that emerged from the elimination
of slavery (Thirteenth Amendment), equal protection under law, due process of
law, and privileges and immunities of the citizens (Fourteenth Amendment), the
elimination of discrimination on the basis of race, color, or “previous condition
of servitude” in granting suffrage rights (Fifteenth Amendment), and the granting
of rights to political participation and the right to vote for women (Nineteenth
Amendment) occurred only several decades after the conclusion of the American
Civil War in 1865.
Development of Rights Under the United States Constitution
In the United States, the language of rights has gradually expanded as a function of
legal activism, institutional dynamics, and historical circumstances, and changing
social norms. Critical amendments to the US Constitution were introduced only after
The United States opposition to the International Covenant on Economic, Social and
Cultural Rights (ICESCR) stems from ICESCRs expansive definition of rights such as, right
to work, right to living wages, right to social insurance, right to promotion opportunities
in the workplace, and the right to form labor unions, which are not guaranteed under the
United States Constitution. These rights fall with the realm of the private sphere, where the
state is expected to play a minimal role or no role at all.
This is an important aspect of constitutional construction, which enabled the
development of capitalistic economic practices and encouraged the development of a
culture in which the people are discouraged from depending on the state for economic
welfare and governmental interference in private business is not appreciated.
the end of a bitter Civil War between the Union Army and the Confederate South
that caused the death of an estimated 620,000 to 700,000 Americans (Davis 1988).
The Civil War was the outcome of radical differences in political ideology that split
the southern and northern regions; the issue of state rights was at the center of this
conflict. Articles of Confederation and the Constitution granted significant powers
to the states in the federation—even though the Constitution aspired for a “more
perfect union”—largely to ensure that the newly created American confederation
does not splinter into multiple independent states and principally into the South and
North. During the 1800s, state rights were unfettered by federal regulation; each
state government in the federal union of states possessed the rights to introduce
legislation that did not necessarily cohere with federal laws. States had the rights
to establish new religions, infringe on personal freedoms, hold people in servitude,
deny them due process of law and access to fair and speedy trial (Goldstein 1988, 3).
Criminal law still comes under the jurisdiction of the states within the United
States and the 50 states in this confederation have jealously guarded their legal
and policy prerogatives, importantly they have protected their latitude to impose
capital punishment for a wide range of crimes. Fifteen states within the United
States have abolished or issued a moratorium on the death penalty, whereas 35
states still retain the death penalty for a range of crimes and 21 states still retain the
penalty of death for juvenile offenders who were 16 or 17 at the time of the crime
(Amnesty International 2007; 2008).
Slavery was the most divisive issue of nineteenth-century America. Southern
states were strongly opposed to abolishing slavery and any federal laws that
would potentially limit the practice of slavery and slave ownership. Confederate
states equated protecting the institution of slavery with protecting state rights; the
ensuing bloody civil war ended the practice of slavery and enabled the introduction
of a series of constitutional amendments enhancing individual rights. One of the
critical post-Civil War constitutional amendments was the Fourteenth Amendment
to the US Constitution, which took a broad view of life, liberty, and justice within
a free society. It contains three clauses that are fundamental and central to United
States jurisprudence: (1) the privileges and immunities clause; (2) the due process
clause; and (3) the equal protection clause (Goldstein 1988, 4). The women’s
rights movement benefited immensely because of the opportunity to employ
the Fourteenth Amendment to litigate for overall emancipation, opportunities
to participate in the political process and gain equal access to employment,
education, and marital rights (Goldstein 1988, 4). Although the Constitution has
been amended on only 17 occasions after the formal inclusion of the Bill of Rights
(which contains the first ten amendments) as the core constitutional document
in 1791, the United States Constitution is generally described as a living and
breathing document.
The vocabulary of rights in the Constitution has evolved and expanded as a
function of congressional action, presidential politics, and social activism, but
ultimately the evolution and expansion of constitutionality of rights is mostly
dependent on the interpretation of the high courts. The United States Supreme
Court, in particular, is the final arbiter and interpreter of the Constitution. The
process through which the Supreme Court interprets and clarifies federal and
state laws is often referred to as the constitutionalization of rights (Henkin
1990). The Supreme Court has emerged as the principal arbiter of fundamental
laws of the United States; it initiates and responds to socio-economic changes
and legal activism (Goldstein 1988, xi). Examination of the constitutionality of
fundamental laws by the Supreme Court is generally referred to as the doctrine
of judicial review.10 Congress and the President are charged with making federal
laws, while the state governments can determine state laws, and local governments
can determine city laws and ordinance, but the principal task of interpretation
and verification of the constitutionality of laws has fallen on the United States
Supreme Court. It is inconclusive as to whether the framers of the Constitution
originally intended for the Supreme Court to be the only interpreters and arbiters
of the constitutionality of laws (Eidelberg 1968, 202–3). Gerry Elbridge argued
that the central “function of the judiciary is not to judge the ‘policy,’ which is
to say, the wisdom of laws, but their constitutionality” (Eidelberg 1968, 205).11
The Court can strike down laws, but it does not have the authority to revise or
propose new laws; revision of laws is left to Congress and the executive branch,
that is, to the elected representatives and to other branches of local and state
governments. The Supreme Court’s emergence as the final interpreter and arbiter
of the constitutionality of laws is also a function of institutional design of the
American republic, which is based on the separation of powers among different
branches of government and institutional checks and balances that aims to prevent
concentration of executive power in a single institution.12 The task of evaluating
the constitutionality of laws and regulations fell upon the Supreme Court because
it is the highest court and it is generally considered to be an impartial judge staffed
by the most qualified individuals.13 Much of the controversy that swirls around
10 Many legal commentators suggest that the doctrine of judicial review began
with Chief Justice John Marshall (1755 to 1835) of the US Supreme Court with Marbury
v. Madison (1801) decision. In passing this ruling, the Marshall Court argued that the
Constitution was the “the fundamental and paramount law of the nation.” It deemed any act
of the legislature, which conflicts with the Constitution to be null and void. This decision
affirmed the supremacy of the Supreme Court as the ultimate authority in the interpretation
of the Constitution.
11 Elbridge Gerry was one of the original signatories of the Declaration of
Independence and a member of the Constitutional Convention in Philadelphia in 1787, who
went on to become the Vice-President of the United States in 1812.
12 The Supreme Court’s status as the ultimate legal authority is not without
controversy. Although the court’s decisions are respected, the political struggle to nominate
justices to the Supreme Court show that justices do indeed bring their values, beliefs, and
ideas with them, which colors their eventual interpretation of law.
13 Much controversy prevails among scholars of constitutional law as to whether the
court has evolved from an institution that interprets the law to an institution that states what
the law actually is supposed to be. Critics charge that the law is what the Supreme Court
every major Supreme Court decision demonstrates that the Constitution is an

eighteenth-century document articulated by leaders of an agrarian republic in the
midst of colonial conflict with less than four million people, which is expected to
address the complex social needs of an advanced industrial democracy that also
happens to be the world’s reigning military and economic superpower (Kelly and
Harbison 1963, 2). Considering that only 17 amendments have been added to the
Constitution, besides the Bill of Rights, it seems to have stood the test of time
and maintained its relevancy for two centuries.14 American discourse of rights has
evolved through judicial interpretation of the Constitution over two hundred years.
An expansive range of individual rights are protected by federal and state laws,
and whenever laws of specific states within the federal union are found to be in
contravention it has been litigated before the Supreme Court and amendments
have been introduced by the United States Congress, but widespread state to state
variations in the conception of rights persist.
United States and International Law
According to Article 6 (Section 2) of the United States Constitution, all laws

of the United States should be “in pursuance” of the Constitution, which is the
supreme law that establishes all rights, legal obligations, and the authority of the
government. Importantly, Article 6 (Section 2) states that all treaties “made, or
which shall be made, under the authority of the United States, shall be supreme
law of the land,” and the “judges in every state shall be bound thereby, anything
in the Constitution or laws of any State to the contrary notwithstanding.” Article 6
(Section 2) indicates in no uncertain terms that the Constitution is the supreme law
of the land and that it is sacrosanct and that treaties and international agreements
made under the authority of the United States are equivalent to the supreme
law of the land and that all federal and state judges are expected to respect laws
that emerge from international treaties that the United States enters, even if it
contradicts anything in the Constitution or the laws of the individual states.
Justices think it is, while others suggest that the court is not an impartial body but a political
entity that responds to the prevailing political mood and public pressures as a function
of the ideological leanings of the nine justices. Some others indicate that the Supreme
Court was never intended to be a non-political and impartial judicial body; the task of the
court is not to determine the will and intent of the founders, but make judgments as per
the prevailing political conditions and normative orientations of the general population.
Despite disagreements over the role of the Supreme Court, it has emerged as pre-eminent
institution of rights discourse in the United States.
14 Out of the 17 Amendments, two dealt with the alcohol—the 18th Amendment
banned the production, consumption, importation, and sale of alcohol and the 21st
Amendment repealed the 18th Amendment.
Article 2 (Section 2) (2) of the United States Constitution gives the power of
making treaties exclusively to the President of the United States (or to the executive
branch more broadly) with advice and consent from two-thirds of the Senate.
Specifically, the President “shall have the power, by and with the advice and consent
of the Senate, to make treaties, provided two thirds of the Senators present concur.”
Article 2 (Section 2) (2) of the Constitution is explicit and straightforward that the
President as the head of the executive branch negotiates and signs the treaty, often in
consultation with members of the Senate and then forwards the treaty for ratification
to the full Senate, which requires the support of two-thirds of the Senators present.
However, Article 6 (Section 2) of the United States Constitution has caused much
consternation and debate among constitutional experts and international lawyers.15
This is because Article 6 (Section 2) simultaneously upholds the supremacy of
the United States Constitution and then goes on to proclaim that any international
agreement entered into by the executive branch is equivalent to domestic law and in
cases where domestic and international law contradicts, international law precedes
municipal (domestic or local) law, the Constitution notwithstanding (Henkin
1983–1984, 1555). Framers of the United States Constitution envisioned “a strong
treaty power in the federal government” reinforced by the Supreme Court (Healy
1998, 1729). So what exactly is the status of international law within the United
States? Does international law override municipal law, does it enjoy equal status,
or does it follow municipal law? How are the courts expected to interpret Article 6
(2) of the United States Constitution? This issue was not addressed authoritatively
until the Paquete Habana (1900) case came before the United States Supreme
Court right at the beginning of the new century.16
Paquete Habana and Lola, two fishing vessels, plying under the Spanish flag
were owned and operated by individuals residing in Cuba. The United States Navy
interdicted Paquete Habana 11 miles off the coast of Cuba on April 25 1898 and
15 There are two other important steps in determining the legality of the treaty and
its implications for domestic law. A treaty does not become a part of the domestic law of
the United States, that is, it is not considered to be automatically self-executing, unless the
Congress enacts corresponding domestic legislation bringing domestic law in conformity
with international law. Subsequently, the United States must deposit the official instrument
of ratification with the international organization or indicate that it is authorized to receive
such instruments of ratification. But, the issue of the self-executing nature of international
treaties, especially multilateral human rights treaties, and whether congressional legislation
to activate international law is needed in every instance has been rather inconclusive.
16 Chief Justice John Marshall in the case Murray v. The Schooner Charming Betsy, 6
US (2 Cranch) 64 (1804) held that “an act of congress ought never to be construed to violate
the law of nations if any other possible construction remains.” This position also known as
the harmonization principle implies that congressional Acts are to be in conformity with
international law and agreements entered by the United States. Although Murray v. The
Schooner Charming Betsy considered the issue of rights of the federal government vis-à-vis
international commerce and infringement upon neutral rights, the Charming Betsy Rule has
been applied to other cases involving international law.
seized them under maritime prize law that allowed capture of foreign vessels and
towed the ships to Key West, Florida were they were eventually auctioned off.
The owners of these two fishing vessels, based in Cuba, sought relief in the US
courts under customary international law for the release of these two ships, its
crew and cargo back to the rightful owners. The District Court of Appeal for the
Southern District of Florida, which first heard the cases, held that these fishing
vessels were not exempt from seizure because they were not protected by any
specific treaty or ordinance (Paquete Habana, United States Supreme Court, 175
US 677, 1900). The United States Navy contended that it had the legal right to
interdict these ships because they could be used against American interests in the
Spanish–American war. However, the United States Supreme Court reversed the
decision of the District Court of Southern Florida by citing extensive precedents in
international customary law and established practice that did not molest peaceful
vessels plying within the territorial waters of another sovereign state. The Supreme
Court contended that although no specific ordinance or treaty protected the Paquete
Habana, as per customary international law, the United States Navy did not have
the legal authority to seize these fishing vessels (Paquete Habana, United States
Supreme Court, 175 US 677, 1900).
The United States Navy was asked to return all property to the rightful owners
including damages and compensation. Writing the majority decision, Justice
Horace Gray (1881–1902) opined, “international law is our law, and must be
ascertained and administered by the courts of justice of appropriate jurisdiction
as often as questions of right depending upon it are duly presented for their
determination” (Paquete Habana, United States Supreme Court, 175 US 677,
1900). Justice Gray pointed out that in making a decision on a case like the Paquete
Habana, “where there is no treaty and no controlling executive or legislative act
or judicial decision, resort must be had to the customs and usages of civilized
nations” (Paquete Habana, United States Supreme Court, 175 US 677, 1900). He
further indicated that in instances where there are no authoritative laws to decide a
case, the “works of jurists and commentators,” historical precedents, international
jurisprudence, and decisions of other judicial tribunals could serve as the basis
for decisions regarding a case that concerns international law (Paquete Habana,
United States Supreme Court, 175 US 677, 1900).
Legal scholars rank the Paquete Habana as a landmark case in international law
because of the specificity of the language used in the rulings—“international law is
part of our law”—that strongly resonates with Article 6 (Section 2) of the Constitution.
This case is also significant because the courts relied on customary international law
to make its rulings. Legal historians dispute when and how international law became
a part of US law. One theory holds that international law became a part of US law
when the United States proclaimed its independence in 1776 (Henkin 1983–1984,
1555). Another theory holds that international law became a part of US law when
English common law became an integral part of the United States legal system
(Masters 1932). A third view holds that international law became a part of US law
as a function of colonial inheritance (Henkin 1983–1984, 1556).
Although the timing and process by which international law became integrated
into US law remains a point of contention, it is generally agreed that the United States
fell under the ambit of international law ipso facto when it joined the community
of civilized nations (Henkin 1983–1984, 1556). The issue of how international
law came to be an integral part of US law has implications for how international
law is applied and interpreted in state and federal courts and how international law
is generally received within the United States legal community. Legal scholars
are divided as to whether international treaty and customary laws that govern
international relations, is applicable to matters relating to the federal union of the
United States and its states; this view is also echoed by policymakers and leaders
in the Congress, Senate, and the Executive branch and by several Supreme Court
judges. General opinion suggests that international law conceptualized as federal
common law can only be applied to matters over which the federal government
has exclusive jurisdiction.17
The United States Supreme Court in the case of Banco Nacional de Cuba
v. Sabbatino determined the applicability of international law in US courts by
relying on the act of state doctrine (Henkin 1996, 137). An American commodity
broker, Farr, Whitlock, and Company, contracted to purchase in wholesale a
quantity of sugar from CAV, a corporation domiciled in Cuba, but entirely owned
by American shareholders, for the sale of sugar to a third party in the Middle
East. While this private transaction was transpiring, the US government reduced
the sugar export quota allotted to Cuba; in retaliation the Cuban government
nationalized all industries and corporations, including foreign corporations in Cuba,
and expropriated their assets (Simmonds 1965). Subsequent to the nationalization,
the Cuban government demanded proceeds from the sale of the sugar made to
the third party by the American commodity broker. When Farr, Whitlock, and
Company refused such payment, the Cuban representative in the United States—
Banco Nacional de Cuba—sued in the United States District Court of New York to
recover the proceeds from the sugar sales by claiming misappropriation of funds.
The commodity broker denied payments on the grounds that the US courts did not
have any jurisdiction over a private transaction conducted outside the territorial
boundaries of the United States by private citizens. The United States District
Court of New York and subsequently the United States Court of Appeals found in
favor of Farr, Whitlock, and Company (Simmonds 1965).
Lower courts held that even though it did not have jurisdiction over a foreign
state over matters that occurred within its territorial boundaries, they determined
that the Cuban government had no claims over the sugar sales because such claims
overtly interfered with private commerce and violated customary international
law (Henkin 1996, 137). Cuban government appealed to the United States
Supreme Court, which reversed the rulings of the two lower courts by arguing
that the “act of state doctrine” applied even in instances in which international law
17 This matter was addressed by the Supreme Court in Erie Railroad Company v.
Tompkins, 304 US 64 (1938); Supreme Court 817, 82, L. Ed. 1188 (1938).
was violated by the Cuban government (Banco Nacional de Cuba v. Sabbatino,

United States Supreme Court, 376 US 398, 1964). By a margin of eight to one,
the United States Supreme Court concluded that the “act of the state doctrine”
precludes the courts of one country from inquiring into the validity of public
acts that another recognized sovereign state engages within its own territory
(Falk 1964, 935). Writing the majority opinion, Justice John Marshall Harlan
II (1955–1971) argued that even if the offending country (in this case Cuba)
violates international law by forcibly appropriating the assets of a multinational
corporation with majority United States shareholders, redress cannot be made in
US courts because they do not have the authority to examine the judicial validity
of acts of another state “done within its own territory” (Banco Nacional de Cuba
v. Sabbatino, 376 US 398, 1964).
Both in the case of Paquete Habana and Banco Nacional de Cuba v. Sabbatino,
the Supreme Court not only validated the importance of international law, but
it also reinforced by Article 3 (Section 1) and (Section 2) of the United States
Constitution. Article 3 (Section 1) of the United States Constitution states that the
“judicial Power of the United States, shall be vested in one supreme Court, and in
such inferior Courts as the Congress may from time to time ordain and establish.”
Section 2 of Article 3 of the Constitution states that the “judicial power shall extend
to all cases, in law and equity, arising under this constitution, the laws of the
United States, and treaties made, or which shall be made, under their authority.”
Furthermore, the Constitution confers authority upon the federal courts for “all
cases affecting ambassadors, other public ministers and consuls; to all cases of
admiralty and maritime jurisdiction; to controversies to which the United States
shall be a party; to controversies between two or more states; between a state and
citizens of another state; between citizens of different states; between citizens of
the same state claiming lands under grants of different states, and between a state,
or the citizens thereof, and foreign states, citizens, or subjects” (Article 3, Section 2,
United States Constitution). In short, according to Article 3 (Section 2) of the
Constitution, international law is a part of the “laws of the United States,” which
is governed by the supremacy clause of Article 4 (Section 2) of the Constitution.
Article 3 (Section 2) has been interpreted to mean that only the Supreme Court
has the authority to determine the constitutionality of an international agreement
entered upon by the United States and that such interpretations are binding upon
other lower federal and state courts (Henkin 1983–1984, 1560).
International law is part of US law; this argument is asserted by the Supreme
Court and it is recognized and accepted within the framework of the United
States legal system. The law of nations also known as customary international
law is accepted as an integral part of the US legal system, but it has not always
been explicitly or formally incorporated into US federal law except under certain
circumstances (Henkin 1983–1984, 1569). Whenever conflicts or disputes arise
over interpretation, application, and constitutionality of international law, the
judicial power to arbitrate and decide is with the federal courts, particularly with
the Supreme Court.18 Although international law has widespread acceptance

within the US federal legal system, this acceptance is highly dependent on the
prevailing political circumstances. Certain issues such as the death penalty,
abortion or women’s rights, same-sex marriage, and church–state relations have
provoked contentious national political debates and strong opposition from the
states in the federal union, especially when the federal government seeks to
alter laws in all the 50 states to bring them in compliance with federal statutes.19
American courts are also reluctant to intervene in international legal matters
expressly when it has direct foreign relations implications. The courts provide
wide latitude to the executive branch in its decisions to appropriately address its
international legal obligations.20 Importantly, the President of the United States
by virtue of his executive power could denounce international agreements and
terminate them summarily (Foreign Relations of the US Senate 2001, 192–207).
The executive branch could also engage in a range of actions that directly
contradicts customary international law and the courts do not have the authority
to ensure compliance with international laws.21 If the US Congress enacts
corresponding domestic legislation in which specific aspects of international
treaties are incorporated into US federal laws, and if the executive action violates
18 Many experts of international law are of the opinion that international law is
indeed a part of US law. This opinion, however, is not always widely prevalent even
among Supreme Court Justices. In the case of Lawrence v. Texas, US 02-102 (2003), the
US Supreme Court struck down a Texas statute barring certain same-sex relations that
take place within the walls of private dwellings by drawing heavily from the European
Court of Human Rights and the rulings of the Canadian High Court. This decision has
produced widespread debate within the United States and even among the justices in the
United States Supreme Court, particularly over Justice Sandra Day O’Connor’s reliance
upon international law to strike down the Texas Sodomy statute. Justice Anthony Scalia
has expressed serious reservations over the constitutionality of relying on the European
Human Rights Commission statutes to decide on this case. In his dissent in the Lawrence
v. Texas case, Justice Scalia argued that only the United States Constitution should be
final arbiter in all domestic matters.
19 In the mid-1960s federal law enforcement authorities had to rely on physical force
to make several states such as Alabama and Arkansas comply with federal civil rights laws
and forcibly integrate public schools.
20 The argument that international law has universal jurisdiction and the actions of
the executive branch is ultimately bound by customary and treaty law has been criticized
by legal scholars because they argue that such characterization contains an overburdened
conception of international law and that it over-determines the influence of international
law upon the US legal system (Deflem 1998; Paust 1996).
21 As a case in point, after taking office President George W. Bush, 43rd President
of the United States, curtailed US funding for many United Nations Population programs
even though the United States had pledged such support under the previous administration.
President Bush decided to stop funding for such programs because his administration
believed that it interfered with his “right-to-life” religious values and because of the belief
that such programs encourages the act of abortion.
such laws, then parties injured by such violation or willful negligence have the
theoretical right to seek redress in national courts, but whether the courts will
hear such cases depends entirely on the merits of each individual case.
United States versus International Treaties
The supremacy clause of the United States Constitution (Article 6, Section 2)

decrees that all treaties “made, or which shall be made, under the authority of
the United States, shall be supreme law of the land; and the Judges in every state
shall be bound thereby, any Thing in the Constitution or Laws of any State to
the Contrary notwithstanding.” Framers of the United States Constitution were
committed to the notion of “law of nations” or customary international law, but
they did not clarify the nature of relationship between international and municipal
law; this task was assigned to the Supreme Court and other federal courts, they were
particularly tasked to settle conflicts arising from contradictions in international
treaty obligations and municipal law. With regards to treaties the Constitution is
clear, the supremacy of the treaties is outlined in the Article 6 (Section 2), but it
does not clearly delineate the place of international treaties within the hierarchy of
US laws and does not inform the responsibilities regarding treaty obligations and
the implications for noncompliance or terminating international treaties (Henkin
1996, 173). It is generally agreed that executive prerogative prevails with regards
to the implementation and compliance with international treaty instruments.
In framing the Constitution, one of the key changes made by the founders
was that they removed treaty-making powers from the individual states as defined
in the Articles of Confederation and transferred such powers to the executive
branch (the President), but with advice and consent from the Senate (Article
2, Section 2, United States Constitution 1791). This institutional strategy was
adopted to significantly strengthen the federal structure of the US government,
establish a strong executive body, and ensure that there is coherence to the treaties
signed by the executive branch and that the United States is able to fully meet its
international treaty obligations without interference from the different states in the
federal union (Henkin 1996, 175). Treaties once signed and ratified by the United
States become a part of customary international law, then according to customary
practice they are to be accorded the same treatment and privileges that is conferred
to the law of nations. If customary international law is a part of the US law and
if treaties once signed and ratified become a part of customary international law,
then treaties become part of municipal law, principally they become a component
of US federal statute. Does international treaty law automatically become a part
of municipal law immediately after the treaty enters into force? If it indeed does,
then it would automatically generate conflict between federal laws and the laws of
the individual states in the federal union produced by United States participation
in international treaties.
The Constitution does not inform whether the federal government has the
authority to change state laws as a function of its international treaty obligations. In
addition, the Constitution does not identify whether the treaties are self-executing,
that is, do they automatically become US law or does it require the Congress
to pass corresponding domestic legislation bringing US laws in conformity
with its international legal obligations. Three pivotal issues—state rights, self-
executing nature of the treaties, and role of the Senate in treaty-making—have
produced considerable conflict between the executive branch and the Congress
and complicates American acceptance of international treaties, especially in the
area of human rights. State rights, self-execution of treaties, and role of the Senate
in treaty-making are highly interdependent and their resolution depends on the
compromises that the President and the Senate are willing to make in order to
ensure participation in international conventions.
Treaty-Making Process and the Role of the Senate
A treaty can be made by the President only with the advice and consent of two-
thirds of the Senate. Institutionally and in practice, the system of treaty-making
is divided into four stages (CRS 1993). First, the executive branch, such as the
State Department or the Commerce Department or other relevant federal agencies
is tasked with engaging in treaty negotiations. Second, after negotiations are
successfully completed (assuming the United States does not withdraw from
negotiations), the President decides whether to sign or not to sign the treaty; and if
the United States signs the treaty, then it has to decide whether and when to send
the treaty for ratification to the Senate to seek its consent. Third, the appropriate
Senate Committee, invariably the Senate Foreign Relations Committee, will hold
public hearings to determine if such treaties enhance the welfare and serve the
interest of the United States; if the majority of the Senate Committee approves
ratification, the treaty will be put forward for a vote before the full Senate. If two-
thirds of the Senators present vote in favor of a treaty, then the treaty has been
effectively ratified. Fourth, a treaty does not legally bind the United States, until
the President validates the signature of the Congress and deposits the instrument
of ratification with the United Nations or with other designated states authorized
to accept instruments of deposit. These four stages are presumably self-evident
and comprehensible, but the treaty-making process encounters challenges starting
with the onset of negotiations.
States parties can begin negotiations within the auspices of an international
organization to develop solutions for a collective problem. The United States has
to decide whether to send a delegation to participate in treaty negotiations. If the
United States does not participate in the negotiations and if the treaty articles
are agreed upon by other states without US input, when the treaty is opened for
signature the United States will be confronted with international pressure to join
an international treaty that may not appeal to its domestic audience. Depending
upon the importance attached to a treaty, the United States invariably sends a
delegation to represent its views and attempts to structure the treaty language in
such a fashion that is not inimical to US interests and least likely to encounter
domestic opposition.22 Treaty negotiations could run counter to the presidential
directives because international negotiations often reflect the collision of multiple
interest groups and state parties. As a result, the United States may not be able
to influence the language or the institutional structure of a proposed treaty to its
liking. Even if the language of the treaty is considered acceptable to the executive
branch, it might be unacceptable to the Senate effectively reducing all likelihood
of US participation.
Since treaty negotiations extend over many years, even decades in some
cases, it can straddle two different administrations. In such instance, the outcome
of negotiations will be such that even though a treaty is negotiated and strongly
reflects US interests and concerns; the executive branch might not even bother to
sign the treaty, let alone present the treaty for ratification.23 The negotiation process
is fraught with numerous challenges; NGOs with varying motivations will attempt
to influence the language of the treaty by seeking to include their policies and ideas
into the treaty text. Occasionally, elected Senators might be involved in the formal
negotiation process or be present in a routine advisory capacity.24 The decision to
sign or not to sign is entirely the prerogative of the executive branch. As pointed
out earlier, depending on a President’s commitment towards a said treaty he might
just sign the treaty, but never present the treaty to the Senate for ratification during
his term.25 The Genocide Convention, which the United States signed in 1948, was
not ratified until 40 years later in 1988 because it never left the different Senate
Committees, despite numerous public hearings on the convention. Many treaties
22 The United States actively participated in framing and drafting the Rome Statute
on International Criminal Court (ICC), but eventually withdrew its signature because it felt
that there were too many legal loopholes and the language of the treaty text was imperfect.
23 The Kyoto Protocol on Global Climate Change was opened for signature in 1997.
This treaty came into effect largely because of the institutional, financial, and scientific
advisory role of the United States, which reflected the pro-environment position of President
Bill Clinton of the Democratic Party. President Clinton did not hesitate to sign the treaty,
but the widespread domestic opposition to the treaty encountered strong resistance from the
US Congress. As a consequence, President Clinton never bothered to bring the treaty before
the Senate for a ratification vote. When Republican President George W. Bush assumed
office in 2001, his views did not reflect the stance of the previous administration; hence he
formally withdrew American participation from the Kyoto Protocol. President Bush in a
White House Press Conference declared that Kyoto Protocol was “deeply flawed.”
24 Despite the constitutional prohibition that an elected US official cannot hold two
offices at the same time, this practice of formal Senate involvement in negotiation has
occurred in many instances. Generally, however, the Senate is rarely involved during the
formal treaty negotiation process.
25 President Clinton signed many treaties in different issue areas, but only presented
a few to the Senate for ratification only the Comprehensive Test Ban Treaty (CTBT) was
presented to the full Senate for ratification, but it was rejected by the Senate.
are proclaimed to be dead on arrival; the first United States Secretary of State for
Foreign Affairs John Jay (1784–1790) because of his frequent encounters with the
Senate apparently concluded that not a single important treaty would ever pass the
Senate during his term (Henkin 1996, 178).
President Woodrow Wilson never managed to get the Senate to ratify the
Treaty of Versailles (1919). The Senate can refuse to ratify a treaty for any number
of reasons; during election years the Senate is normally unwilling to enter into
international treaties that might be potentially viewed as being unfavorable
to domestic constituencies. If the party opposed to the President controlled
the Senate, it would invariably not ratify a treaty out of the concern that such
ratification might confer political advantages to the President’s party. The Senate
might have genuine bipartisan concerns about the implications of US participation
and it will seek to fully explore the present and future consequences of such
participation in all international treaties that the United States plans to enter. The
Genocide Convention generated strong and vociferous opposition from the US
Senate mainly because it was portrayed as presenting a serious and direct threat to
the United States Constitution and several other legal concerns were also raised.
Similar constitutional concerns were expressed when President Bill Clinton signed
the Rome Statute on the Permanent International Criminal Court (ICC).
Both the executive branch and the Senate routinely attach conditions to
treaties to clarify language in an international convention and reserve the right
to ignore certain aspects of a convention, such as compulsory jurisdiction of the
International Court of Justice (ICJ).26 Known as conditional consent, this process
is often referred to as attachment of reservations, understandings, declarations and
objections (RUDs) that are affixed by states to the treaty text they ratify (Bradley
and Goldsmith 2000). As far as the United States is concerned, the Senate, lobbying
groups, and the appropriate federal agency could draft a set of reservations
and objections to be appended to the treaty text before the eventual attachment
to the instrument of ratification. Such reservations are described as conditional
consent, which assumes three types: (1) the right not to consent to specific terms
or language of a convention; (2) append reservations implying that aspects of the
treaty do not have any domestic force without accompanying domestic legislation
and implementation, which is also referred to as the non self-execution clause;
and (3) the United States could also condition its participation by stating that the
26 If the executive branch strongly desires ratification of a particular treaty, it will in
consultation with the appropriate federal agency develop a set of reservations that might
pass muster in the Senate. During the hearings, the Senate might modify, alter, amend
such reservations, and even attach additional reservations, if needed. The executive branch
can accept the treaty along with the reservations proposed by the Senate or reject such
reservations because it might be unacceptable to the other state parties to the convention.
Sometimes the Senate will attach killer RUDs to deliberately elicit rejection. Invariably,
the Executive Branch and the Senate will agree on compromise language on reservations to
seek the approval of the full Senate.
proposed convention violates the federal structure of the United States and state
rights (Bradley and Goldsmith 2000, 405).
The declining “advice role” of the Senate in the treaty-making process has
prompted the US Senate to reassert its advice and consent duties during the
ratification stage by inserting several RUDs (Bradley and Goldsmith 2000, 405).
Another view holds that the institutional design of the United States requires the
Senate to play an active and formal advisory role in which the President consults
with the Senate during negotiations and seeks informal approval before signing
the treaty (CRS 1993). General George Washington was the last President to seek
the formal advice of the entire Senate about various Indian treaties that he wanted
to sign and sought the Senate’s advice regarding the Jay treaty (Henkin 1996, 179).
There have been exchanges of messages between the President and the Senate
over treaty negotiations, but over the past two centuries the Senate’s advice and
consent role has been reduced to a formal yes or no vote. Although some Presidents
have maintained informal links with senators in leadership positions, the Senate’s
formal advisory role has become non-existent or highly limited.
The reduction in the Senate’s advisory role is also largely due to the practical
difficulties encountered in including the Senate because treaty negotiations
involve a multistage negotiation process that is spread over many years; besides,
the composition of the Senate changes with every election and the attention of the
Senators might shift to other issues. Given the increase in the volume of treaties
and executive agreements that the executive branch negotiates or enters, as a
practical matter it has become difficult to actively involve the Senate in the formal
negotiation process. Consequently, opportunities to consult with the Senate has
declined and reduced the chances for the Senate being formally involved in the
treaty-making process. The increasing institutional power of the executive branch
has enabled some Presidents to rely the on power of their office and limit formal
Senate involvement because of concern over leaks during the negotiation process,
especially when negotiating arms control or specialized trade treaties.
Self-Execution of International Treaties
Article 6 (Section 2) of the United States Constitution also known as the Supremacy
Clause, holds that all treaties made under the authority of the United States,
“shall be supreme law of the land.” In addition, Article 6 (Section 2) requires
that judges in every state shall be bound by the international treaties irrespective
of conflicts between treaty obligations and domestic law. The question that the
Supremacy Clause poses is: does treaty obligations automatically become US law,
that is, are treaties self-executing or, is corresponding implementing legislation
necessary to bring US law in conformity with a treaty? United States international
legal jurisprudence has developed three answers to this question: “yes,” “no,”
and “it depends.” In other words, there are three schools of thought on whether
international treaty obligations automatically become US law or if corresponding
domestic laws are necessary to align municipal law with international treaties that
the United States has entered.
The first view is based on a literal interpretation of treaty law, which simply
states that the United States Constitution holds that treaties made under the authority
of the United States is the supreme law of the land, conflicts with domestic law
notwithstanding. This legal opinion centers on the automaticity clause, according
to which once a treaty is ratified it automatically becomes a part of federal law and
such laws are binding upon the United States. Treaties according to this argument
are self-executing; no corresponding legislation is necessary to make treaties
operational domestically. The second position holds that treaties made under the
authority of the United States do not have a binding legal impact on US law, unless
and otherwise Congress enacts domestic legislation and issues legal directives
effectively transforming international law into municipal law; in short, treaties are
not self-executing. This position has also been referred to as the dualist position
that recognizes the independence and separateness of US law from international
law. This dualist position holds that international law and municipal law are
distinct entities; the international law of states governs relations among sovereign
states, whereas varieties of municipal law govern relations among individuals,
organizations, and the government within the United States.
Discrepancies among different types of law that might potentially arise
as a result of treaty obligations could only be resolved through congressional
legislation and only through the federal courts, only the United States Supreme
Court could review the constitutionality of policies and laws. This interpretation
refers to two principles in the Constitution: separation of powers and federalism.
The executive branch of the United States cannot enter into international treaties
that affect the doctrine of separation of powers, compromise the federal structure
or violate state rights, unless and otherwise Congress enacts appropriate legislation
in pursuance of such treaties, and the constitutionality of such treaties is upheld
by the US courts. The executive branch cannot amend domestic laws by using
its treaty-making powers. Chief Justice John Marshall in Foster v. Neilson best
articulated the third view on the question of whether treaties are self-executing
or non-executing (Foster v. Neilson, 27 US 253, 1829; Hamilton 1788a). A treaty,
Justice Marshall argued, “is in its nature” considered to be a “contract between
two nations, not a legislative act” (Foster v. Neilson, 27 US 253, 1829). Justice
Marshall pointed out that a treaty “does not generally effect, of itself, the object to
be accomplished; especially, so far as its operation is intraterritorial; but is carried
into execution by the sovereign powers of the respective parties to the instrument”
(Foster v. Neilson, 27 US 253, 1829). Justice Marshall further added in deciding
Foster v. Neilson,
In the United States, a different principle is established. Our constitution declares

a treaty to be the law of the land. It is, consequently, to be regarded in the courts
of justice as equivalent to an act of the legislature, whenever it operates of itself,
without the aid of any legislative provision. But when the terms of stipulation
import a contract—when either of the parties engages to perform a particular act,

the treaty addresses itself to the political, not the judicial department; and the
legislature must execute the contract, before it can become a rule for the Court
(Foster v. Neilson, 27, US 253, 1829).
In this argument, Justice Marshall identified two types of treaties: “treaties that
operate by itself,” that is, self-executing treaties do not require an act of Congress
for the United States to fulfill its obligations arising from the treaty and treaties
that require corresponding legislation to domestically bring it into effect (Henkin
1996, 199). However, treaties that require the United States to perform a particular
or specific act such as enact a law that makes “crimes against humanity,” “torture
or ill-treatment,” or “genocide” punishable in the American Courts when there
are no comparable domestic laws, then such treaties are considered to be non-
self-executing. This is because treaties that require the United States to carry out
a particular act, that is, carry out specific obligations under a treaty when there
are no explicitly identified municipal laws, in such instances treaties require the
attention of the legislative bodies and not the judicial department. If there are no
pre-existing laws prohibiting and punishing the act of genocide, or torture and
ill-treatment, and if the existing statutes are not clearly stated, then Congress is
generally expected to enact legislation and issue directives for implementation,
which must be agreed upon by the executive branch to bring municipal and
international law in conformity with each other. If a treaty requires appropriation
of funds, the President without the consent of the Congress cannot appropriate
money for expenses generated because of international obligations (Henkin 1996,
199). Only the US Congress has the constitutional authority to appropriate or
allocate funds to meet the external obligations of the US government. Similarly
international treaties cannot introduce criminal laws or criminalize certain acts;
only the US Congress is authorized to enact penal laws (Henkin 1996; 199).
Justice Marshall’s interpretation is regarded as one of the authoritative
interpretations of the treaty-making powers of the US government. His reading of
Article 6 (Section 2) suggests that treaties made under the authority of the United
States cannot be automatically assumed to become US law. Although Justice
Marshall clearly recognized the Supremacy Clause of the United States Constitution,
his interpretation suggests that a treaty is not equivalent to a legislative act; hence,
treaties cannot automatically become part of the United States legal code unless
corresponding legislation is enacted by the US Congress to incorporate treaties
ratified by the executive branch into municipal law. Moreover, Justice Marshall also
regarded treaties as a contract among two or more states to be executed only by the
sovereign power of the respective parties. Treaties do not readily provide room for
private cause of action; they may not have any direct bearing on individual citizens
of the United States or impact their relationship with the governmental entities.
Individual petitioners cannot readily refer to international conventions entered by
the United States and petition the domestic courts claiming violations, unless there
are corresponding domestic laws that bring municipal laws in compliance with
international treaties.27 Foster v. Neilson case does not resolve the issue of whether
treaties are automatically executing or do they need to be executed or acted upon,
but Justice Marshall’s decision suggests that the domestic legal implications of
international conventions could only be determined on a case-by-case basis.
Federalism, State Rights, and Multilateral Treaties
Another major challenge to United States participation in international treaties is

in its federal political structure that attaches tremendous importance to the issue of
state rights. The treaty-making power of the executive branch has always been an
issue of contention among federal and state governments throughout the history of
the United States. The American Civil War was precipitated by the intrusive role
of the federal government in state politics and complex expectations surrounding
the federal union and the status of the institution of slavery. State governments are
deeply concerned about the power of the federal government to alter or rewrite
laws of the different states effectively reducing sovereignty in critical domains.
There is apprehension among states that the federal government would wield its
treaty power to rewrite local laws within each state by virtue of its treaty power.
As a result the contentious issue of federalism and state rights has repeatedly
appeared during international treaty negotiations and posed a significant hurdle
to US participation.
Whenever entry into international treaties is likely to encounter resistance
from one or all the 50 states, the Congress will attach reservations to the treaty
text to water down the impact of the international convention, as quid pro
quo for Senate consent. However, which policy areas and laws fall under the
jurisdiction of state or the federal government is often a matter of debate within
the United States. National security matters, and consular and diplomatic issues
are clearly the business of the federal government, whereas criminal justice is
undoubtedly the concern of state governments excepting when it comes under
federal jurisdiction. Other policy areas come under the category of mutually
shared responsibility over which both federal and state governments compete
or jurisdiction is determined based on the merits of the individual case. The
complicating factor surrounding treaty-power and the ability of the federal
government to introduce social change through international treaties is in the
Tenth Amendment of the Bill of Rights, which simply indicates that the “powers
27 This issue, however, has become complicated when the United States Supreme
Court explicitly cited international covenants and legal precedents from other comparable
states in the cases of Lawrence v. Texas (2003) and Roper v. Simmons (2005), but rejected
the application of international law in the case of Medellin v. Texas (2008) by arguing that
international law does not automatically become US law; hence, the United States is not
bound even in instances where the executive branch has expressly consented to international
treaties and charters or assented to engage in acts consistent with the law of nations.
not delegated to the United States by the Constitution, nor prohibited by it

to the states, are reserved to the states respectively, or to the people” (Bill of
Rights 1791). Unenumerated rights are protected by the Tenth Amendment; this
constitutional barrier along with the doctrine of separation of powers and state
rights has typically presented a considerable institutional barrier to United States
participation in international conventions.
Constitution, Federalism, and Treaty Power
There are three distinct interpretations of treaty power as defined by the United
States Constitution. The first interpretation holds that treaties should be made
only in those areas that are traditionally understood to be areas of international
concern (Bradley 1998, 392). It is unclear, however, as to what subject matters are
considered to be areas of international concern and what legal and policy matters
fall under the jurisdiction of domestic concern; these domains are not always
easily identifiable and separable. That has generated a dualist interpretation of
laws in which international and municipal laws are said to operate in independent
and mutually exclusive domains. General consensus holds that in the area of
foreign affairs constitutional provisions are more relaxed and flexible relative to
the domestic policy arena where the provisions are more exacting and precise
(United States v. Curtiss-Wright Export Corporation, 299 US 304, 1936).
Conflict over federal power emerges as a function of US treaty obligations;
could the federal government claim power over states in areas over which it
has no jurisdiction? According to the American Law Institute’s Restatement of
Foreign Relations Law, the United States can make an international agreement if
the “matter is of international concern,” and if the “agreement does not contravene
any of the limitations of the Constitution” (Restatement of the Law 1965). Such
compartmentalization has increasingly become difficult and the boundaries
separating domestic and international law has increasingly become fuzzy (Breyer
2003). Given the harmonization of commercial and trade law and the rapid increase
in the number of multilateral treaties in a variety of issue domains many countries
are expected to bring their municipal law in compliance with international law.
This legal integration is particularly demanding in the case of the European Union
because member states are required to harmonize a variety of trade, environment,
and immigration laws and regulations. Legal synchronization is also necessary
under WTO accession requirements that require the participant states to bring
their trade and intellectual property laws to universal standards; as a consequence,
boundaries separating domestic and international law are difficult to sustain.
Nonetheless, many American legal scholars and lawmakers persist in maintaining
a dualist understanding that separates international and domestic legal domains
(Tesón 1982).
In the case of Reid v. Covert (351 US 487, 1957), the United States Supreme
Court lent credence to the second interpretation that holds that treaties and
agreements made with a foreign power cannot “confer power on the Congress,
or any other branch of government, which is free from the restraints of the
Constitution” (Reimels 2001). This interpretation points out that the federal
government cannot arrogate power to itself that is not granted by the Constitution
by making treaties with other nations. Importantly, from this perspective, the
federal branch of the government cannot commandeer law and policy by virtue of
its treaty power. This view challenges the interpretation that treaties ratified by the
United States automatically become US law and that the federal government has
the power to alter or modify inconsistent provisions in domestic legal system as a
function of its treaty power.
The third interpretation, which is based on a literal reading of the Article 6
(Section 2) of the Constitution, suggests that treaties entered under the authority
of the United States becomes the supreme law of the land and that it overrides
inconsistent or incompatible legal provisions. Interestingly, all three interpretations
possess validity and federal case law could be used to support all three positions.
The Supreme Court has held that all three interpretations more or less valid
depending on the time and context of the treaty. In practice, however, international
treaties singed by the executive branch do not routinely become US federal law
and state governments need not automatically comply with them without federal
directives. Without ratification that requires two-thirds majority of the Senate and
accompanying legislation to bring federal law in compliance with international
treaty obligations, which requires concurrence of both chambers of the Congress,
international law will remain outside the bounds of the domestic legal system.
Even after enabling legislation is passed, the constitutionality of such laws
could be challenged in the courts. Resistance to participation in international
treaties, especially human rights conventions, could manifest itself even before a
treaty is transmitted to the US Senate for approval. Anticipating such challenges,
the executive branch may never submit a treaty for approval because of the concern
over the possibility that the Senate might reject a treaty and publicly embarrass
the President. In cases when the United States does ratify a treaty, a compromise
is worked out between the Senate and the President in the form of reservations,
understandings, and declarations (RUDs). The purpose of such reservations are
not only intended to clarify specific provisions of a treaty, but also enable the
United States to ratify the treaty and be viewed as a participatory country, while
assuaging the Congress of any concerns arising from US participation.
Sources and Origins of Federalism Challenge and Treaty Power
Federalism is described as a system of government “in which sovereignty is

shared so that on some matters the national government is supreme and on others
the states, regions, or provincial governments are supreme” (Wilson and DiIulio
1995, A49). United States federalism involves overlapping spheres of influence
over the same policy areas. When federal and state law conflict, federal statutes
can override the laws of the state governments, especially on issues that are clearly
within the jurisdiction of the federal authorities. In instances, when federal law
seeks to establish its control over the state governments in new policy domains,
the states can challenge the constitutionality of such laws in the federal courts.
Federal and the state governments are simultaneously sovereign relative to each
other, but only the federal government is sovereign vis-à-vis other countries in the
international system. Federalism and its attendant legal and policy implications
were of pivotal importance, even before the establishment of an independent United
States of America. Treaty powers of the federal government and the implications
for state rights came to prominence in the early twentieth century as the United
States entered a series of bilateral and multilateral treaties.
Missouri v. Holland case encapsulates the complexity of treaty-making power of
the executive branch and its implication for federalism and state rights. The United
Kingdom and the United States agreed upon a treaty to protect migratory birds
that generally traverse between the United States and Canada. The purpose of this
treaty was to protect the role of birds as natural predators to certain insects because
the elimination of such insects aided in the functioning of agricultural activities
and allowed for an effective balance of nature. Subsequently, the Congress relying
on the necessary and proper clause of the United States Constitution enacted a
federal statute on the Migratory Bird Treaty Act in 1918, which made it unlawful
to hunt, capture, kill, or trade in migratory birds. Ray P. Holland, the US game
warden in the State of Missouri, was authorized as a federal officer to execute
the treaty, when Mr. Holland attempted to arrest citizens who were in violation
of the Migratory Bird Treaty Act of 1918, the State of Missouri challenged the
arrests on the grounds that this federal law was unconstitutional because it directly
impinged upon states rights. The State of Missouri argued that since the birds
were physically present within the territory of Missouri and given that only state
authorities hold policing rights in their territory, and since Missouri did not have
any law that prohibited hunting of migratory birds, the Migratory Bird Treaty
Act of 1918 encroached upon state rights in violation of the Tenth Amendment
of the United States Constitution. In a brief filed with the Supreme Court of the
United States, the State of Missouri also pointed out that in previous instances two
other district courts had already upheld cases vis-à-vis the migratory bird hunting
law that were in violation of the Tenth Amendment and the treaty violated the
pecuniary interests of the state (Missouri v. Holland, 252 US 416, 1920). This case
was argued before the United States Supreme Court in early March 1920 and the
decision was delivered mid-April 1920.
The Supreme Court did not concern itself with the specific aspects of the treaty,
instead the court examined whether the migratory bird treaty and the accompanying
federal statute are void because it interfered “with the rights reserved to the
States” (Missouri v. Holland, 252 US 416, 1920). Specifically, the Supreme Court
studied if the statute resulting from treaty-power infringes upon the United States
Constitution in light of earlier acts of Congress that attempted to regulate the killing
of migratory birds without the assistance of an international treaty. In the case of
United States v. Shauver (160 E.D. Ark. 1914) and United States v. McCullagh
(221 Fed. 288, D. Kan. 1915) both of which challenge the constitutionality of the
federal law prohibiting the hunting of migratory birds, the district federal courts
held that migratory birds were the property of the state in which they temporarily
reside. Therefore, states held pecuniary and property rights over the migratory
birds that the Congress cannot displace through federal statutes. In the case of
Missouri v. Holland, the issue was could the federal government enact federal
legislation in pursuance of international treaties that domestic federal statutes
could not achieve independent of international treaties.
In a majority (7–2) decision rendered by Justice Oliver Wendell Holmes (1902–
1932), the Supreme Court argued that the Migratory Bird treaty and the analogous
federal statute were not in contravention of the constitutional provisions. The
Supreme Court contended that the “wild birds are not in the possession of anyone”
and since “possession is the beginning of ownership” the State of Missouri cannot
claim possession of the birds because the birds were only “transitorily within the
state” (Missouri v. Holland, 252 US 416, 1920). Because the treaty dealt with an
issue of “national interest” and since only “national action in concert with that
of another power” can protect the species of migratory birds whose presence is
considered to be valuable to all parties involved, treaties made under the authority
of the United States are “binding within the territorial limits of the States” and
“throughout the dominion of the United States” (Missouri v. Holland, 252 US
416, 1920).
The Supreme Court did not aim to reinterpret the treaty power of the executive
branch or seek to enter into matters that are rightfully reserved to the states under
the Tenth Amendment. It simply stated that the issue of migratory birds straddled
more than one state within the territory of the United States and the territory of
another nation and no state in the United States has possession over the birds. The
court added that since two or more countries were involved in the management of
migratory birds, the matter falls under jurisdiction of national interests and hence,
by default comes under jurisdiction of the federal government. The Supreme Court
found that the migratory bird treaty did not violate the Tenth Amendment because
to the extent that the people have delegated their rights to the federal government
to join international treaties, it could enter treaties pursuant to the constitutionally
guaranteed treaty power. The federal government, however, cannot pass the very
same laws using its commerce power because it would be in violation of the
federal structure of governmental powers (Bradley 1998, 425). According to the
Supreme Court, enacting corresponding legislation in pursuance of international
treaties belongs to the legitimate jurisdiction of the federal branch. One of the
problematic elements of the Missouri v. Holland case was that the Supreme Court
argued that although a “great body of private relations fall within the control of
the State, but a treaty may override its power” (Missouri v. Holland, 252 US 416,
1920). Nevertheless, there was a broad recognition among the federal judiciary
and the executive branch that the ability to negotiate treaties did not give the
federal government broad and unlimited power to wield it outside the bounds of
its constitutional authority.
Bricker Amendment and Treaty Power of the Executive Branch
At the close of the Second World War, although the vast majority of Americans
supported the establishment of the United Nations, many conservative groups,
particular key members of the Congress were wary that the United Nations and
its associated treaties might potentially pose a threat to American sovereignty. In
addition, there were widespread concerns that the executive branch, particularly
the Truman administration would rely on the United Nations Charter and its treaty-
power to enact civil rights legislation overturning state rights. Missouri v. Holland
had already indicated that the treaty power would work in favor of the executive
branch to legislate through federal statutes. The United States Supreme Court and
the California Supreme Court found that the Alien Land Laws that prohibited
some aliens who were ineligible for US citizenship from owning land to be
unconstitutional, which only added to the increasing apprehension among several
groups and activists that American sovereignty and constitutional supremacy were
being gradually eroded.28 The problematic aspect of this decision was that both in
Oyama and Fuji cases, although the courts found that the Alien Land Laws were
unconstitutional as per the provisions of the equal protection clause of the 14th
Amendment, the courts also relied on the United Nations Charter to construct their
legal opinions.
The Oyama and Fuji decisions by the Supreme Court alarmed the National
Lawyers Guild (NLG) and the American Bar Association (ABA); these two
powerful legal lobbying organizations began galvanizing public opinion against
the misuse of treaty power and the legal overreach by the executive branch. The
ABA started to circulate petitions for protection of state rights and expressed
considerable concerns regarding the erosion of American values, personal
freedoms, and individual liberty. Principally, the ABA was concerned that the
United Nations was spreading a sanitized brand of global socialism under the guise
of being an international organization (Tananbaum 1988, 1–15). The speeches of
ABA President Frank Holman reflected what many Americans and numerous
congressional members privately believed that international laws are gradually
eroding the legal sovereignty of the United States. This anti-internationalist
position reached fever pitch especially at a time when the House Committee on
Un-American Activities chaired by Senator Joseph McCarthy (Republican from
Wisconsin) was holding public sessions to ferret out communist sympathizers and
spies. American nativism and anti-internationalist forces became resurgent with
North Korea’s invasion of South Korea (Korey 1997, 276). When the Genocide
Convention was signed in 1948 by the United States, the ABA opposed ratification
and strongly urged the US Senate from giving its consent to this treaty.
The ABA was troubled about the language in the Genocide Convention,
which they believed could be subject to misapplication and potentially impinge
28 See Oyama v. California, 332 US 633 (1948) and Fuji v. California, 38 Cal.2d
718, 242 P.2d 617 (1952).
upon national sovereignty and even allow international agencies to engage in a

political witch-hunt against American leaders and military personnel. The ABA
also expressed serious concerns over the possibility that international laws could
provide venues for private cause of action that could further accelerate the erosion of
state powers in several policy domains. There were larger anxieties about the legal
implication that could emerge from the ratification of the Genocide Convention
for issues regarding slavery, reparations for slavery, and the then prevailing civil
rights situation in the United States. These concerns manifested in the form of
Senator John Bricker, a Republican Senator from Ohio, who introduced a bill
in the Congress in 1951 seeking a constitutional amendment to limit the treaty-
making powers of the executive branch.
The saga of Bricker’s constitutional amendment, which sought to restrict the
treaty powers of the President, posed a major political challenge to the Eisenhower
administration. From 1951 to 1956, 12 different versions of the Bricker amendment
were introduced in the United States Senate. Although the Bricker amendment
and, subsequently the George substitute, introduced by Senator Walter George,
a member of the Democratic Party from the State of Georgia, were defeated
in 1954, the voting was extremely close to afford comfort to the Eisenhower
administration. Issues generated by the Bricker amendment lingered until the
exit of Senator Bricker from the Senate in 1959 and it still manifests itself in
different forms to generate opposition to international treaties, particularly human
rights treaties, which have been further enhanced by the general unease with the
growing internationalization of laws. Senator Bricker and many conservative and
isolationist members of the United States Congress were highly suspicious of the
growing powers of the executive branch to enter into international agreements
without formal congressional approval or consultation.
Senator Bricker and Frank Holman of the ABA were exceedingly alarmed over
the declining role of the US Senate in influencing foreign policy decisions and its
ability to curb the growing powers of the executive branch. Senators who supported
the Bricker proposal believed that the President’s ability to negotiate treaties was
a “Trojan Horse” or a back door mechanism to gradually alter the domestic laws
of the United States and shift the balance of power towards the federal branch of
the government (Tananbaum 1988, 33). Senator Bricker and his colleagues were
mostly concerned that the entire constitutional structure of the US government,
including the delicate balance of power that prevailed between the executive and
the congressional branch of the federal government, would be permanently altered
because of growing American participation in international treaties, especially
human rights conventions. A combination of isolationist foreign policy, mounting
threat of Soviet Communism, shadow of Senator McCarthy’s anti-communist
hearings and growing internationalization of law and policy spurred the anti-
internationalist and neo-nativist Bricker movement. Senator Bricker emerged as
the unlikely hero in his patriotic fight to protect the Constitution and became a de
facto spokesperson for the “old guard” (Davies 1993).
Even before the battle over the constitutional amendment aiming to limit the
treaty-making powers of the executive branch erupted, Senator Bricker became
popular for his opposition to the Covenant on Human Rights proposed by the
United Nations that was drafted with extensive assistance from the former First
Lady of the United States, Eleanor Roosevelt (wife of President Franklin Delano
Roosevelt). Senator Bricker introduced the Senate Resolution 177 opposing the
United Nations Human Rights Covenant because it would jeopardize the rights
of the American people protected by the United States Constitution (Tananbaum
1988, 24). Bricker’s resolution argued that any measure devised at the international
level that seeks to influence the relationship between nationals of a country and its
government was a fundamental violation of individual liberties and freedom, and
it contradicted the basic principle of state sovereignty and violated the principles
of constitutional democracy. Several US lawmakers were acutely worried over the
capacity of the executive branch to enter into international agreements without
formal congressional consent. The Conservative old guard were concerned by
what they saw as the mounting power and authority of the United Nations and
they wanted to stop the formation of a “world or regional government by treaty”
(Tananbaum 1988, 31). The old guard feared that such treaty-based international
regimes would produce unnecessary entanglements and legal complications and
weaken the coherency and effectiveness of the United States political and legal
system.
Text of the Bricker Amendment
There was no one Bricker amendment; many versions of the Bricker amendment
were introduced in the US Senate. Bricker himself introduced two versions before
the end of the Truman administration: Senate Resolution 102 (September 14
1951) and a modified version of Resolution 102, which was introduced as Senate
Resolution 130 (February 7 1952). After General Eisenhower assumed the office
of President in 1953, Senator Bricker re-introduced his constitutional amendment
as Senate Resolution 1 (January 7 1953), as one of the first business for the 83rd
Congress (1953–1955). Besides the substitute amendment introduced by Senator
Walter George in January 1954, known as the George Substitute, Republican Party
Senators William Knowland and Homer Ferguson introduced another alternate to
the Bricker amendment in February 1954. The Emergence of numerous versions
of the Bricker amendment clearly pointed that the Senate was determined about
limiting the treaty-making powers of the President (Tananbaum 1988, 221–7). All
versions of the Bricker constitutional amendments, including the substitutes, had
four recurring themes that are listed below:
Section 1 No provision of a treaty can deny, abridge, or prohibit any right

enumerated in the Constitution and any provision of a treaty that is in conflict
with the Constitution will not automatically be in effect domestically (Constitution
Clause).
Section 2 No treaty shall authorize a foreign power or an international

organization to supervise, control, or adjudicate any rights of an American citizen
within the United States, or any other matter that is essentially within the domestic
jurisdiction of the United States (International Court of Justice Clause).
Section 3 No treaty shall be valid or become effective as the internal law of

the United States, unless Congress passes the corresponding domestic legislation
internalizing portions of a treaty (Corresponding Legislation Clause).
Section 4 Congress shall have the power to regulate all executive and other
agreements with any foreign power or international organization. All treaties
and agreements shall be subject to the limitations imposed on such treaties and
agreements (Self-Execution Clause).
Different draft versions of the Bricker amendment sought to introduce these

four basic constitutional provisions (identified above) limiting the power of the
executive branch to negotiate and sign international agreements without formal
congressional assent and sought to limit the influence of international laws on
the US legal system. Importantly, the Bricker movement was also an attempt
to reassert the supremacy of the United States Constitution over international
treaties and agreements and formally reverse the reading of the United States
Constitution, which states that all treaties made under the authority of the United
States are the supreme law of the land. Brickerites aimed to restrict the jurisdiction
of international law made through treaties to secure and assert local jurisdiction,
especially state level jurisdiction as opposed to federal control over law-making;
so this fight was as much about federalism as about international law and the
sacrosanct status of the United States Constitution. Importantly, Brickerites
intended to constrain the influence of international human rights conventions
and curtail the increasing encroachment of international law into areas that were
considered to be the sovereign domain of municipal law. The third clause in the
Bricker Amendment that came to be known as the “which clause” was one of the
most controversial and hotly debated and it directly spoke of the concerns raised in
the Missouri v. Holland case. In Missouri v. Holland, the Supreme Court ruled that
the federal government could enact legislation pursuant to an international treaty
that it could not otherwise do. Without the cover of an international treaty the
federal government may encounter legal challenges in its attempt to regulate certain
policy areas because it would violate the federalism clause of the Constitution.
The federal government could require states to do something in pursuance of an
international treaty because treaties come under federal jurisdiction, which it could
not otherwise do. By requiring states to adopt a particular policy or implement
a specific law, in pursuance of a treaty, the federal government is not violating
federalism because it is only fulfilling its treaty obligations.
The infamous “which clause” in many ways proved to be the death knell of
the Bricker amendment because if the “which clause” became constitutionally
operable, then it could have effectively shut down the treaty-making power of
the President. Since the Constitution does not dictate a priori the policy and legal
jurisdictions for federal and the state governments, excepting for those explicitly
enumerated rights. The “which clause” ensured that, potentially, any treaty entered
into by the United States with the exception of those with clear national security
concerns could be challenged in the US Senate on the grounds that it violates the
United States Constitution. The central concern was that the federal government
would rely on the treaty clause to circumvent the restrictions on its power to
override state laws (Healy 1998, 1733). Section 3 of the Bricker amendment
also guaranteed that no treaty entered into by the executive branch would be
automatically self-executing; treaties have to be enacted through corresponding
congressional legislation without which they would be invalid. Section 4 of the
Bricker amendment was included to ensure that there would be strict congressional
oversight of the executive branch’s treaty-making process and consent, making it
extraordinarily difficult for the United States to become signatories to international
agreements without the formal approval and advice of the Senate.
Parliamentary tactics of the Eisenhower administration, assisted by some clever
backroom maneuvering, led to the defeat of the Bricker amendment and the weaker
George substitute. But, the roll call vote on the George substitute was very close;
it failed to achieve the necessary two-thirds majority by one vote. Democratic
Senator Harley Kilgore from the state of West Virginia cast the last and decisive
“No” vote on the Bricker amendment and George substitute. Senator Kilgore was
apparently awakened from a drunken stupor by President Eisenhower’s aides
and asked to appear on the Senate floor and vote against the George substitute
(Davies 1993, 181–2; Tananbaum 1988, 179–80). Eisenhower’s political tactics
notwithstanding, there was widespread support in both houses of the US Congress
to curb the treaty powers of the executive branch. However, some of the support
for the Bricker amendment dissipated because President Eisenhower started to
actively consult with the Congress on foreign policy matters. Additionally, as a
quid pro quo for the support in defeating the Bricker amendment, the Eisenhower
administration agreed not to present any human rights treaties to the Senate
for ratification and consented to the inclusion of reservations, understandings,
declarations and objections (RUDs) that reflected the proposals outlined in the
Bricker amendment (Henkin 1996, 349).
American Civil Rights as Human Rights: The Kennedy–Johnson Era
Twelve major human rights treaties were adopted from 1950 to 1970 by the
United Nations, of which the United States ratified only one treaty in 1956—the
Protocol Amending the Slavery Convention Signed at Geneva on 25 September
1926. Up until 1967 the United States did not ratify any of the major human rights
conventions, including the Convention on the Prevention and Punishment of the
Crime of Genocide (Genocide Convention, 1948), International Convention on the
Elimination of All Forms of Racial Discrimination (ICERD, 1966), International

Covenant on Civil and Political Rights (ICCPR, 1966), International Covenant
on Economic, Social, and Cultural Rights (ICESCR, 1966), and the Convention
on Political Rights of Women (CPRW, 1953). In 1967, the United States ratified
the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and
Institutions and Practices Similar to Slavery adopted in 1956. American reluctance
to enter human rights conventions was primarily due to the dampening effect of the
Bricker amendment. President Eisenhower’s battle with the US Senate to defeat
the Bricker amendment conclusively deprived the Eisenhower administration and
subsequent American presidents the political energy to participate in human rights
conventions and present them for ratification to the Senate. The constitutional
struggle to abridge the treaty powers of the President was foreshadowed by a
larger domestic political struggle, which proved to be a critical turning point in
United States history.
In 1954, the Supreme Court passed a historical decision in the case of Brown v.
Board of Education, which struck down the “separate but equal” clause based on
the Plessy v. Ferguson (163 US 537, 1896) decision concerning racial equality in
public education. Writing the majority decision in the Brown v. Board of Education
case, Chief Justice Earl Warren (1953–1969), wrote, “… in the field of public
education the doctrine of ‘separate but equal’ has no place.” Justice Warren went
on to argue that “separate educational facilities are inherently unequal,” because
it deprived African-American children “equal protection of the laws guaranteed
by the 14th Amendment” of the United States Constitution (Ziegler 1958,
78–9). Brown v. Board of Education is considered to be a landmark case in the
development of the United States civil rights movement because it culminated in
the passing of the Civil Rights Act of 1964 and Voting Rights Act of 1965 during
the administration of President Lyndon B. Johnson, which conclusively ended
institutionalized racism and made race discrimination a crime under federal law.
Senator Bricker among others were concerned about the possibility of the
executive branch using its treaty power to amend federal laws that would encroach
upon state rights; importantly, it would intrude upon rights of the states to treat its
minority citizens as it pleased (Shestack and Cohen 1973–1974, 688). Southern
states such as Arkansas, Alabama, Georgia, and Mississippi were allowed to
practice institutionalized racial discrimination by relying on Jim Crow laws,
which prohibited blacks and whites from mingling in public, sharing a taxi cab,
and attending integrated schools. In addition, blacks and whites had “separate
bibles for taking oaths,” separate entrances to public buildings, separate stairways,
“separate drinking fountains, and separate toilets” (Weisbrot 1991, 5). The edifice
of Jim Crow laws which were based on theories of racial superiority proved to be
an international embarrassment for the United States, especially when the former
First Lady of United States, Eleanor Roosevelt, was involved in drafting the
Universal Declaration of Human Rights (UDHR) and Ralph Bunche, an African-
American man, was playing a pivotal diplomatic role in the negotiations of the
United Nations Charter on behalf of the United States government.
Table 5.1 Human rights conventions entered into by the United States
Year Human Rights Treaties Signature Ratification

1 1948 Convention on the Prevention and Punishment of the Crime of Genocide Dec-11-48 Nov-25-88
2 1951 Convention Relating to the Status of Refugees
3 1967 Protocol Relating to the Status of Refugees Nov-1-68
4 1954 Convention Relating to the Status of Stateless Persons
5 1961 Convention on the Reduction of Statelessness
6 1953 Convention on the Political Rights of Women Apr-8-76
7 1926 Slavery Convention Mar-21-29
8 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others
9 1953 Slavery Convention, Signed at Geneva on September 25 1926 and Amended by the Protocol Mar-7-56
10 1953 Protocol Amending the Slavery Convention Signed at Geneva on September 25 1926 Dec-16-53 Mar-7-56
Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar
11 1956 Dec-6-67
to Slavery
12 1957 Convention on the Nationality of Married Women
13 1962 Convention on Consent to Marriage, Minimum Age for Marriages Dec-10-62
14 1966 International Covenant on Civil and Political Rights (ICCPR) Oct-5-77 Jun-8-92
15 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR) Oct-5-77
16 1966 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) Sept-28-66 Oct-21-94
17 1966 First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR-OP1)
18 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity
19 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid
Table 5.1 continued Human rights conventions entered into by the United States

20 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) Jul-17-80
21 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) Apr-18-88 Oct-21-94
22 1985 International Convention Against Apartheid in Sports
Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition
23 1989
of the Death Penalty
24 1989 Convention on the Rights of the Child (CRC) Feb-16-95
International Convention on the Protection of the Rights of All Migrant Workers and Members of their
25 1990
Families
26 1998 Rome Statute International Criminal Court (ICC) Dec-31-00
27 2002 Agreement on the Privileges and Immunities of the International Criminal Court
28 1999 Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women
Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and
29 2000 Jul-5-00 Dec-23-02
Child Pornography
Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed
30 2000 Jul-5-00 Dec-23-02
Conflict
Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
31 2002
Punishment
Source: UN Treaty Series and UN High Commissioner for Human Rights (all data accurate as of December 2008).
According to Article 2 of the UDHR, all people are “entitled to all the rights and
freedoms … without distinction of any kind, such as race, color, sex, language,
religion, political or other opinion, national or social origin, property, birth or
other status.” The fear that the federal government will force southern states
to alter its laws by relying on its treaty powers led many conservative senators
to use their institutional prerogatives in the Senate to block United States
participation in human rights treaties. The civil rights movement, growing
involvement in the Vietnam war, expanding Cold War hostilities, Cuban Missile
Crisis, assassinations of President John F. Kennedy (1963), civil rights leader
Martin Luther King (1968), and Democratic Presidential candidate Robert F.
Kennedy (1968), and the Watergate political scandal were so overwhelming
that United States participation in human rights conventions received very little
political priority.
The end of institutionalized racial discrimination in the United States did not
occur as a result of legislation through international treaty-making as Senator
Bricker had feared, but change occurred because of an indigenous civil rights
movement, which probably was influenced by the noble ideas enshrined in human
rights covenants adopted by the United Nations member states. The introduction
of civil rights legislation and the formal end to institutionalized racism and
discrimination in United States did not automatically end the self-imposed
isolation from international human rights regimes. United States resistance to
international human rights, mainly, subordination of human rights to foreign policy
considerations increased during the Nixon–Ford administration (1969–1977).
Human rights returned to the center stage of American foreign policy during the
administration of President Jimmy Carter (1977–1981). President Carter explicitly
linked United States foreign policy with the commitment to improve human rights
around the world and increased United States engagement with human rights
regimes (see Table 5.1).
Nixon, Kissinger, Realpolitik, and American Foreign Policy
The Nixon–Ford administration was characterized by the strategy of realpolitik

advanced by the Secretary of State, Henry Kissinger. Secretary Kissinger believed
that state power and realism, and not idealism and moralism should drive United
States foreign policy (Vogelgesang 1980, 78–88). During his confirmation hearings
before the Senate in 1973, Secretary Kissinger told the House Committee that it is
dangerous for the United States to “make the domestic policy of other countries of
the world a direct objective of American foreign policy.”29 Kissinger argued that
29 International Protection of Human Rights, The Work of International

Organizations and the Role of US Foreign Policy, hearings before the Subcommittee on
International Organizations and Movements of the Committee on Foreign Affairs, House of
Representatives, 93rd Congress, 1st Session (Washington, DC 1973), p. 507.
protection and administration of human rights belonged to a very sensitive area of

a country’s domestic jurisdiction and that the United States should not interfere
with such matters. Secretary of State, Kissinger struck a distinctively different
tone compared to the previous Secretary of State, William Rodgers (1969–1973),
who actively supported US ratification of the genocide treaty. United States foreign
policy during the 1970s was dominated by the rising concern over the spread of
Communism; having surrendered South Vietnam to the communist forces, the
United States was heavily concerned about containing the former Soviet Union.
As a consequence, human rights and engagement with international regimes were
relatively marginal concerns for US foreign policymakers.
Among numerous criticisms leveled against Kissinger’s doctrine of Realpolitik,
one stands out in particular, Kissinger’s refusal to publicly acknowledge or
condemn human rights atrocities in countries that were friendly to the United
States such as Brazil, Chile, Nicaragua, and Paraguay, besides Iran, South Africa
and South Korea (Shestack and Cohen 1973–1974). The most troubling aspect
of Kissinger’s foreign policy was the transfer and sale of weapons to pro-US
countries; these weapons were eventually used to perpetuate egregious human
rights violations in the name of eliminating Communism. Kissinger’s realpolitik
was responsible for the expansion of the Indochina conflict, the overthrow of
the Salvador Allende government and the installation of the Pinochet regime in
Chile, the Greek sponsored coup in Cyprus, Pakistan’s massacre in Bangladesh
(previously known as East Pakistan prior to 1971),30 and support for Indonesia’s
attack on East Timor in 1975 (Hitchens 2001). Kissinger also forbade President
Ford from meeting with the exiled Russian author Alexander Solzhenitzyn out of
the trepidation that it would disturb the delicate détente with the Soviet Union;
a decision that Kissinger later regretted (Buckley 1980, 783). A report produced
by Congressman Otis Pike (New York, Democrat, 1961–1979) entitled the Pike
Commission Report, characterizes Kissinger’s foreign policy as “depraved
realpolitik,” which engendered a “callous indifference to human life and human
rights” (Hitchens 2001; Vogelgesang 1980, 131).
During the Nixon–Ford years, the United States played an insignificant role
in promoting human rights norms and ignored participation in international
human rights conventions. With the exception of President Nixon’s positive
recommendation that the US Senate consider ratification of the Genocide
Convention, the United States did not ratify a single United Nations human rights
treaty. The Nixon–Ford administration did not seek to advance human rights
norms neither did it condemn human rights violations abroad (Cohen 1979, 217).
The United States was not interested in pursuing human rights issues with pro-
US and anti-communist states through quiet diplomacy and the exercise of soft
power, a tool that it had reliably used in the past (Buckley 1980, 782, 784). In
30 President Nixon and Henry Kissinger’s unwillingness to condemn Pakistan’s

brutal putdown of Bangladesh’s independence movement ultimately culminated in the third
India–Pakistan war.
mid-1970s, there was only one full-time employee in the State Department who
was responsible for monitoring human rights conditions and representing United
States position on human rights in the United Nations (Cohen 1979, 218). Despite
growing criticism from the US Congress, Secretary Kissinger explicitly barred the
State Department from linking US foreign policy to human rights issues because of
apprehension over offending friendly regimes in Africa, Asia, and Latin America
(Cohen 1979, 221). Nonetheless, every branch of the United States government
did not welcome Kissinger’s coddling of friendly regimes with abhorrent human
rights practices. Secretary of State Kissinger’s lack of concern for human rights
irked many members of the US Congress; as a result Congressmen Donald Fraser
(Democrat, Minnesota) and Tom Harkin (Democrat, Iowa) led a revolt against
Kissinger’s foreign policy.
Representative Fraser of Iowa was instrumental in holding a series of 15
congressional hearings from 1973 to 1974 challenging Kissinger’s exclusion of
human rights considerations from United States foreign policy (Vogelgesang 1980,
124–5). These hearings presented a completely different conception of human
rights in comparison to Kissinger’s realpolitik. Congressional representatives
Fraser and Harkin argued that the inclusion of human rights in US foreign policy
was “both morally imperative and practically necessary” (Vogelgesang 1980, 127).
Mainly these hearings were held to demonstrate United States concern for human
rights and commitment to a foreign policy that incorporated moral and ethical
considerations, besides realpolitik. Consequently the US Congress added a new
amendment to the Foreign Assistance Act in 1974 requesting US aid recipients to
submit annual human rights reports along with a justification for why their security
situation warranted US assistance, especially military assistance (Cohen 1979,
219; Vogelgesang 1980, 129). Because of significant congressional pressure, the
US State Department instituted organizational changes internally and instructed
its ambassadors to explain new prohibitions against human rights violations
(Cohen 1979, 219). Secretary Kissinger’s characterization of the US Congress
“as an irrelevant irritant to his own foreign policy,” seemed to have considerably
displeased congressional members (Vogelgesang 1980, 129).
Secretary Kissinger was apparently annoyed with the United States system of
checks and balances, which interfered with the coherent practice of foreign policy
(Kissinger 1977). Human rights was not an explicit component of US foreign
policy during the Nixon–Ford administration, but the US government was forced
to respond to some serious criticisms from Congress, which made its presence felt
through amendments to the Foreign Assistance Act and the International Security
Assistance and Arms Export Control Act of 1976. Section 301 of the Foreign
Assistance Act not only explicitly linked US aid with the human rights conditions
in aid recipient states, but it also reasserted a certain measure of congressional
control over US foreign policy. In passing the Foreign Assistance Act of 1976,
the Congress overrode a presidential veto to demonstrate that national interests
cannot be explicitly delinked from human rights concerns (US Department of
State 1976).
Rhetoric and Reality of Human Rights and US Foreign Policy
President Carter is credited with making human rights an integral part of US

foreign policy. Carter’s election signified a desire among US citizens to distance
themselves from the uncertainty and chaos that pervaded US foreign and domestic
policy since President Kennedy’s assassination in 1963. The civil rights struggle,
distress over US involvement in the Vietnam conflict, the unpleasant Watergate
scandal that culminated in President Nixon’s resignation, and uneasiness with
Kissinger’s realpolitik propelled Jimmy Carter into office (Starr 1981–1982, 134).
President Jimmy Carter made his preference for human rights very clear in his
inaugural presidential address on January 20 1977 in which he said that the United
States “commitment to human rights must be absolute” and that the “powerful
must not persecute the weak, and human dignity must be enhanced” (Carter
1977). He added that since the United States is “free we can never be indifferent
to the fate of freedom elsewhere” and that the American “moral sense dictates a
clear cut preference” for societies that share “an abiding respect for individual
human rights” (Carter 1977). Later in his address to the United Nations General
Assembly, Carter went on to add that all the “signatories of the United Nations
Charter pledged themselves to observe and respect basic human rights” and “no
member of the United Nations can claim that mistreatment of its citizens is solely
its own business” (Carter 1977).
President Carter not only linked human rights inextricably with US foreign
policy, but he also made it clear that just because countries possess sovereignty
over its citizens, it did not necessarily mean that the United States will sit by
idly and watch while human rights are violated in different parts of the world.
Similarly, Carter’s Secretary of State, Cyrus Vance, in stark contrast to Kissinger’s
realism, made human rights an inseparable component of US foreign policy.
Secretary Vance, in an address to the University of Georgia Law School, reiterated
that the protection of human rights poses a “challenge for all countries, not just
for a few” (Vance 1979, 310). More importantly, Vance clearly laid out the Carter
administration’s definition of human rights as concern for: (1) “right to be free
from governmental violation of the integrity of the person;” (2) “right to the
fulfillment of such vital needs as food, shelter, health care, and education;” and (3)
the “right to enjoy civil and political liberties.” In addition to articulating a vision
of human rights, Vance also laid out a doctrine for pursuing US human rights
policy, which he argued must be guided by realistic goals, nature and strength
of the case, and effective action (Vance 1979, 311). Secretary Vance argued that
human rights policy must “maintain a sense of perspective,” and not be guided
by self-righteousness and strident rhetoric because America’s “own record is not
unblemished” (Vance 1979, 311). In this speech, Secretary Vance also outlined
the Carter administration’s policies such as quiet diplomacy and withholding aid,
including positive inducements to change the behavior of states that violate human
rights with additional emphasis on acting in “concert with other countries through
international bodies” (Vance 1979, 311).
The Carter administration distanced itself from the policies of Nixon–Ford

administration in four critical ways. First, it declared its willingness to pursue a
multilateral approach to address human rights issues. Second, President Carter
argued that promotion of human rights would not necessarily interfere with other
foreign policy objectives (Cohen 1979, 222). Third, the Carter administration
demonstrated a keen interest in pursuing human rights issues irrespective of their
impact on bilateral relations with the United States. Fourth, Carter argued that
human rights norms are rooted in fundamental US values and in the unique historical
mission of the United States (Kommers and Loescher 1979, 308). President Carter
pointedly argued that although America’s enormous wealth and military power
reinforces its superpower status, its policies are not exclusively directed towards
self-aggrandizement, but also “designed to serve the mankind” (Kommers and
Loescher 1979, 308). Drawing from the speeches of Abraham Lincoln and civil
rights leader Dr. Martin Luther King, Carter gave US foreign policy an overt moral
flavor that it had lacked and he attempted to alter the perception that US foreign
policy is exclusively driven by strategic and short-term imperatives (Buckley
1980, 788).
On the international front President Carter signed four international
human rights treaties: International Covenant on Civil and Political Rights
(ICCPR), International Covenant on Economic, Social and Cultural Rights
(ICESCR), the American Convention on Human Rights (ACHR) in 1977 and
the Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW) in 1980 (see Table 5.1). President Carter vowed to seek
congressional approval for all these treaties, but with the exception of ICCPR,
which was eventually ratified by the US Senate on June 8 1992 when George
H.W. Bush was the President, other treaties are still languishing in the various
Senate committees. The Carter administration repealed the Byrd Amendment
of 1971 that strongly reflected the Cold War policies of President Richard
Nixon and Secretary Henry Kissinger, which allowed the United States to join
the rest of the world in adopting United Nations sanctions against the white
minority government in Rhodesia (Clough 1982). The Byrd Amendment,
named after Senator Robert Byrd, a Democrat from West Virginia, allowed the
United States to import chrome and other rare minerals from Rhodesia (now
Zimbabwe) in direct contravention of United Nations sanctions of 1966 and
1968 that were supported by the United States (Masters 2000). President Carter
appointed Andrew Young, a prominent civil rights leader, as the United States
Ambassador to the United Nations highlighting his pro-human rights and pro-
Africa position, which was received positively by the developing nations. In
contrast to the Nixon–Ford administration’s refusal to meet with the exiled
Soviet writer and activist Alexander Solzhenitsyn, Soviet dissident and writer
Vladimir Bukovsky was invited to the White House for a private audience with
President Carter (Buckley 1980, 783, 788; Gwertzman 1977, 1). Furthermore,
during the Carter administration, military aid to countries that were violating
human rights was sharply reduced and spending on human rights and refugee
assistance increased to nearly half a billion dollars (Vance 1979, 313). To further
strengthen its policies and receive broad support across the different branches
of the government, the Carter administration began to actively consult with
the US Congress on its foreign and human rights policies. Efforts were also
undertaken to expand the size and capacity of the human rights bureaucracy
within the US State Department. Compared to previous administrations, the
Carter period witnessed the single largest expansion in human rights agencies
within the executive branch (Cohen 1979, 226).
President Jimmy Carter was successful in making human rights an unambiguous
component of US foreign policy. Above all, the Carter administration was
responsible for institutionalizing human rights issues by building institutions within
the executive branch to implement policies. The Carter administration’s foreign
policy has been variously described as “globalist,” “liberal internationalism,” and
“multilateralist” because President Carter refused to view the world primarily
through the United States logic of the Cold War, which was chiefly concerned with
containing Soviet expansionism and stopping the spread of communist ideology to
the developing world (Morris 1996, 262).
Dictatorships, Double Standards, and Human Rights
Even though President Carter is credited for rearticulating US foreign policy

towards human rights, his administration struggled to implement its policies
consistently; this was not only because of the complex realties of international
politics, but also because the different federal agencies worked at cross-purposes
(Starr 1981–1982, 139). The Carter administration’s shift to pro-human rights
foreign policy was viewed as idealistic, weak, and ineffectual. President Carter’s
status as a Washington outsider produced considerable policy disagreements among
the various federal agencies that were tasked to implement the new foreign policy
(Morris 1996, 242; Starr 1981, 139). While the Panama Canal treaties and Strategic
Arms Limitation Treaty (SALT) negotiations with the Soviet Union consumed the
early years of the Carter presidency, the later years were dominated by the Iranian
Revolution, the capture of the American Embassy and the hostage situation in
Tehran, the Sandinista revolutionary movement in Nicaragua, and the Soviet
invasion of Afghanistan. More than 60 percent of US citizens perceived President
Carter as not being “tough enough” in a Gallup poll conducted in February 1980
(Morris 1996, 274). The election of the tall and the telegenic Republican Governor
from California, Ronald Reagan, to office in 1981 was seen as the perfect antidote
to the perceived weakness of the Carter administration and its unrealistic moralism
and commitment to human rights.
Ambassador Jeanne Kirkpatrick in an article titled Dictatorships and Double
Standards attacked the Carter administration’s foreign policy for its overall
failure and for allowing radical governments to take power in Iran and Nicaragua
(Kirkpatrick 1982, 5–29). Ambassador Kirkpatrick lambasted the Carter
administration for failing to understand and incorporate US geopolitical interests

into its foreign policy, and for its inability to distinguish between friendly allies
with weak human rights record and totalitarian regimes with appalling human rights
practices. Carter’s policy was characterized by Kirkpatrick as utopian, unrealistic,
and antagonistic to US national interests (Shestack 1989, 27). Kirkpatrick argued
that distinctions must be drawn between communist and totalitarian regimes and
friendly authoritarian regimes, which could be eventually persuaded and assisted in
their transitions towards democracy (Schifter 1989, 5). President Reagan concurred
with Kirkpatrick that US foreign policy must be simultaneously moral, strategic,
and politically realistic (Shestack 1989, 28). The Reagan administration adopted a
forgiving attitude towards pro-capitalist and anti-communist authoritarian regimes
in Argentina, Chile, South Africa, and South Korea and ignored their poor human
rights record, while increasing rhetorical attacks on pro-communist and other
totalitarian regimes.
The central difference between Kirkpatrick and Kissinger models of human
rights was that Kirkpatrick acknowledged the centrality of moral values and
human rights to US foreign policy, but deployed it as a criticism only against
anti-US, anti-capitalistic, pro-Soviet communist and totalitarian regimes,
whereas Kissinger simply expunged any references to human rights and
pursued a pure realpolitik approach to foreign policy. The policy positions
of Kissinger and Carter on human rights represented political extremes; in
contrast Kirkpatrick presented a position that occupied the middle ground,
but qualified its articulation through restrictive application and equated only
political rights and civil liberties (negative rights) with human rights at the
expense of other rights such as economic, cultural, and social (positive rights).
The Kirkpatrick–Reagan vision focused only on political freedoms and civil
liberties and deliberately ignored other forms of human rights, especially
economic or welfare rights; they argued that US foreign policy goals of
democracy and free markets were fundamentally about spreading human
rights. The Kirkpatrick construction allowed the United States to rationalize
its support for repressive pro-US regimes such as Chile and South Africa
that grossly violated human rights and enabled it to focus all its energy in
containing Soviet totalitarianism (Shestack 1989, 32).
The Kirkpatrick model allowed the Reagan administration to reincorporate
human rights into US foreign policy as a security concept, instead of focusing
on it exclusively as a moral objective. The Reagan administration also quickly
shifted away from Carter’s multilateralism to an unilateralist foreign policy;
however, towards the end of his second term President Reagan signed the
Convention Against Torture (CAT) on April 18 1988 and he was successful
in persuading the US Senate to ratify the Genocide Convention the very same
year. Because the United States human rights policy was essentially focused on
promoting civil and political liberties, the Reagan administration demonstrated
a greater eagerness to ratify the International Covenant on Civil and Political
Rights (ICCPR, 1966), but not the International Covenant on Economic, Social,
and Cultural Rights (ICESCR, 1966). President Carter singed both ICCPR and
ICESCR, but only the ICCPR was ratified by the United States in 1992 because
of the urging of President George H.W. Bush (see Table 5.1).
United States and the Genocide Convention
The Convention on the Prevention and Punishment of the Crime of Genocide

was adopted by the United Nations General Assembly on December 11 1948.
President Harry S. Truman (33rd President of the United States) signed and
transmitted the Genocide Convention to the Senate for ratification on June 16
1949. However, the convention encountered significant opposition in the US
Senate until its eventual approval on November 25 1988, two years after President
Ronald Reagan (40th President of the United States) announced that he would
seek the Senate’s approval.31 Finally, President Reagan signed the implementing
legislation making genocide a federal crime under US criminal law on November
5 1988 (Roberts 1988, 28). Four decades after signing the Genocide Convention,
the United States government officially ratified and passed corresponding
domestic legislation making genocide not only a crime under international law,
but also US federal law.
Why did four decades elapse before the Senate ratification of the Genocide
Convention; a convention that the United States had negotiated and shepherded
through the United Nations immediately after the Second World War for approval
and it was one of the first country to sign the convention. The answer to this
puzzle lies in understanding the complex interaction among presidential and
congressional branches of government, which allowed a few powerful senators to
use parliamentary procedures to block a ratification vote in the US Senate and the
lobbying efforts of highly influential groups such as the ABA. The long battle to
ratify the Genocide Convention points to a larger ideological struggle within the
United States between conservatives and liberals over the value and importance of
international human rights instruments and the impact of such legal instruments
on domestic laws. According to Senator Jesse Helms (1973–2003), a powerful
conservative Republican from North Carolina, “making genocide, as such, a crime
against the United States or of a particular State can be done without the assistance
of a treaty” (Hearings before the Senate Committee on Foreign Relations 1977b,
105). Senator Helms further added that the “legislative power of the Congress
and State legislatures is sufficient to protect Americans from these acts through
our various criminal codes” (ibid.). “If genocide is a concern to the people of
United States,” Senator Helms suggested then the “wise course of action would
31 President Richard Nixon submitted a request for ratification of the Genocide
Convention in 1970 to the US Senate, but the Senate did not purse any serious efforts to
bring the convention for a ratification vote with the exception of holding public hearings.
be to enact domestic legislation,” and not ratify an international treaty that could
produce serious legal complications (ibid.). Furthermore, Senator Helms was
of the view that historically genocide has “not been considered to be within the
domain of international law since they constitute criminal acts already regulated
by the domestic law of all civilized nations” (ibid.).
Quoting Chief Justice Charles Evans Hughes, President of the American
Society of International Law (ASIL), Senator Helms argued that the treaty power
is vested in the office of the president “to only deal with foreign nations with regard
to matters of international concern” (ibid.). Many others, besides Senator Jesse
Helms—as demonstrated by the Bricker amendment fight—felt that legislating
through international treaties is unwise, unconstitutional, and an improvident
use of the treaty power. Treaties were viewed as devices for governing bilateral
or multilateral relations, they were not to be wielded as tools for interfering in
activities that are essentially considered to be within the sovereign domain of each
nation state.
Senator William Proxmire, a Democrat from Wisconsin, emerged as a strong
proponent of the Genocide Convention along with senator Charles Percy, a
Republican from Illinois. Senator Proxmire took the opportunity every time he
got up on the Senate floor to urge ratification of the convention; it is estimated
that he made over 3,000 speeches expressing his support for the ratification of
the Genocide Convention (Roberts 1998, 28). For his efforts, the implementing
legislation, which became US law under Title 18, Part I, Chapter 50A, Section
1091, United States Criminal Code, was named the Proxmire Act.32 Senator
Proxmire felt that the United States had a moral obligation to support the Genocide
Convention; other supporters of the convention such as Secretary of State, Dean
Rusk, suggested that ratification would assert the “moral leadership of the United
States,” and sustain the United States “struggle to build a free world” (Hearings
before a Subcommittee on Foreign Relations 1950, 19). Secretary Rusk pointedly
argued that the Truman administration looks upon the “genocide convention as
a major element in the attempt to mobilize the moral and spiritual resources of
mankind” (Hearings before a Subcommittee on Foreign Relations 1950, 21). Mainly
Secretary Rusk indicated that ratification would affirm the primary US objective
of making human rights a fundamental component of the international legal
system. This argument, however, did not inspire congressional members instead
they were alarmed. Senator Sam Ervin (Republican, North Carolina) announced
that the argument that ratification of the Genocide Convention would enhance US
prestige and improve its international image was insufficient justification and that
he was unpersuaded by such claims (Hearings before the Committee on Foreign
Relations 1971a, 2).
Blocking the vote in the various congressional committees and preventing the
treaty from reaching the floor of the Senate for full approval was not only a clever
32 See, Title 18, Crimes and Criminal Procedure, United States Code, Cornell Legal
Information Institute (available online at: http://www4.law.cornell.edu/uscode/).
ploy to receive quid pro quo concessions in other policy areas, but it was also an
attempt at denying the sitting president a potential political windfall and prevent
legislative victories for the executive branch that could emanate from Senate
ratification of the Genocide Convention. Opposition to the convention clearly
suggested that a strong contingent of anti-internationalist forces both within
and outside the government where deeply skeptical of human rights treaties and
expressed deeper normative concerns about the growing internationalization of
human rights norms, which many feared would lead to the eventual derogation of
the United States Constitution and sovereignty. The United States Constitution and
state sovereignty are highly valued because they allows the states in the federal
union to jealously guard their rights vis-à-vis the federal government, especially
in policy areas such as criminal prosecution and the right to gun ownership that is
protected by the Second Amendment to the Constitution.
Reasons for Opposition—Genocide Convention
Opposition to the Genocide Convention primarily came in the form of Senator

Sam Ervin and subsequently Senator Jesse Helms, who inherited senator Ervin’s
political mantle and Senate seat in North Carolina. The ABA also opposed
ratification of the Genocide Convention, but the ABA completely reversed its
position in 1976 and supported ratification after vigorously and successfully
opposing the convention (LeBlanc 1984, 369). Senator Ervin’s opposition did
not emerge from a simple-minded, unthinking, and blind ideology, rather his
opposition pointed to a carefully constructed position that cohered with the
larger isolationist stance of several lawmakers. Conservative senators remained
unconvinced by the normative argument that the genocide treaty must be ratified
because it is the “right thing to do” or the “moral thing to do” and that it would
increase the United States prestige in the international arena. Detractors of the
convention were unconvinced by the “right thing to do” argument because they
believed that the United States need not demonstrate its commitment to human
rights by joining international treaties, its foreign policy actions and domestic
political behavior were sufficient to demonstrate to the world that it was indeed
already in compliance with international human rights norms and that the United
States is a beacon for civil and political liberties. Opposition to the genocide treaty
emanated primarily over concerns regarding the domestic legal consequences,
state sovereignty implications, and constitutional constraints that such ratification
would pose.
Apprehension that the treaty could be used to persecute Americans, including
political leaders and government officials for military action overseas and for
perpetuating institutionalized discrimination against African-Americans was
another barrier to ratification. According to Article 4 of the Genocide Convention,
any persons committing genocide as enumerated in Article 3 are liable for
prosecution, irrespective of whether they are “constitutionally responsible rulers,
public officials or private individuals” (Genocide Convention 1948, Articles 3 and 4).
During a question and answer session in Senate hearings, the Solicitor General
of the United States, Mr Philip Perlman, was asked by Senator Claude Pepper
(Democrat, Florida) whether Article 2 of the convention can be applied to the act
of lynching of African-Americans and intragroup civil strife, even if no agency or
individual of the government intentionally abetted or incited such acts (Hearings
before a Subcommittee on Foreign Relations 1950, 47–9).
Genocide is generally characterized as “acts committed with intent to destroy, in
whole or part, a national, ethnical, racial or religious group” (Genocide Convention,
Article 2). Specifically Article 2 of the convention defines genocide as:
1. Killing members of a group;

2. Causing serious bodily or mental harm to members of the group;
3. Deliberately inflicting on the group conditions of life calculated to bring
about its physical destruction in whole or in part;
4. Imposing measures intended to prevent births within a group; and
5. Forcibly transferring children of the group to another group.
According to Article 3, the following acts—(a) genocide; (b) conspiracy to

commit genocide; (c) direct and public incitement to commit genocide; (d) attempt
to commit genocide; and (e) complicity in genocide—are to be punished as per
the articles of the convention. There was concern among congressional leaders as
to whether Article 3 (Section 3) of the convention—direct and public incitement
to commit genocide—would violate constitutional rights (ibid.). Lawmakers
were also worried that Article 3 (Section 3) would contravene free speech rights
guaranteed by the first amendment to the United States Constitution. Opposition
to the convention can be separated into the following categories: (1) constitutional
concerns; (2) federalism and state rights challenges; (3) expansion of United
Nations powers; (4) specific definitions and language found in the convention
text; and (5) compulsory jurisdiction of the International Court of Justice (ICJ) in
prosecuting violations arising from the violations of the genocide treaty. President
Nixon’s, First Secretary of State, William Rodgers, delivered a point by point
rebuttal of the concerns raised by Senator Sam Ervin and other senators. Several of
the concerns advanced by Senator Ervin over the US ratification of genocide treaty
and Secretary Rodgers’s rebuttal are discussed in the following section; these
concerns persisted throughout the 40-year period until the eventual ratification of
the convention.
Constitutional Concerns
Provisions of the Genocide Convention would immediately supersede all state

laws and practices inconsistent with them, and nullify all provisions of all acts of
Congress and prior treaties inconsistent with them (Hearings before the Senate
Committee on Foreign Relations 1977, 94).
Secretary Rodgers conceded that to the extent that domestic laws of the United
States are inconsistent with the provisions of the Genocide Convention they must
be amended to remove such inconsistencies, but Rodgers also pointed out that
US laws did not explicitly deal with the act of genocide and that the crime of
genocide belonged to an entirely new category of mass crimes that had not been
defined at the international level or incorporated into the domestic criminal laws of
almost all states; hence, it would be wise to consider ratification and incorporation
of the key clauses of the Genocide Convention into the US criminal code. In
addition, Rodgers attempted to persuade congressional members by suggesting
that by passing corresponding implementing legislation (executing the treaty) to
make the provisions of the convention unambiguous under US law and effectively
incorporating the crime of genocide into US legal code and reducing the need for
international prosecution if the crime were to occur within US jurisdiction.
Federalism and State Rights
The duty and power to prosecute and punish criminal homicides, assaults, and
batteries, and kidnappings covered by the Convention would be transferred from
the states which have always had such duty and power in respect to these crimes
to the federal government (Hearings before the Senate Committee on Foreign
Relations 1977, 93).
Secretary Rodgers argued that the act of genocide must be directed against
individuals or particular members of a group, and that the specific intent to destroy
a group in part or in whole must be fully evident for a court to determine the
applicability of law. This means that an ethnic or racial group must be affected in
whole or in a substantial part, which then is not equivalent to a typical homicide
case. He added that homicides will always fall under the jurisdiction of state laws
and that the US government and the international community have no interest
in treating every homicide as a genocide. Rodgers argued that genocide was an
extraordinary occurrence not a regular and routine occurrence such as homicide,
but he suggested that the United States could attach an understanding to clarify
any prevailing and future misperceptions that could emerge in interpreting the
implications for the federalism clause. However, the phrase “intent to destroy, in
whole or in part” (Article 2) has caused enormous consternation since the genocide
treaty was adopted. Specifically, serious disagreements within the United States
legal community arose over the interpretation over the distinct clauses of Article
2 of the convention, “intent to destroy” and “in whole or in part” (LeBlanc 1984,
370). This particular clause continued to rankle US lawmakers that it held up the
ratification of the convention on several occasions. Eventually, the United States
attached an understanding (RUD) at the time of ratification (November 25 1988),
which read:
That the term “intent to destroy, in whole or in part, a national, ethnical, racial,
or religious group as such” appearing in article II means the specific intent to
destroy, in whole or in substantial part, a national, ethnical, racial or religious
group as such by the acts specified in article II.
Expansion of United Nations Powers
The Convention could authorize any party to call on the United Nations to take
such actions against the United States under the Charter of the United Nations
it considers appropriate for the prevention and suppression of acts of genocide
(Hearings before the Senate Committee on Foreign Relations 1977, 92).
Secretary Rodgers assured the US Congress that nothing in the text of the convention
broadens or expands the power of the United Nations. It merely confirms that
United Nations member states could urge or seek action as per the rules outlined in
the United Nations Charter and the Genocide Convention to intervene to prevent,
suppress acts of genocide and not stand idly by while mass atrocities occur. He also
clarified that any action on the part of the United Nations required the approval
of the five veto wielding Security Council members. Rodgers was also sought to
emphasize that the Genocide Convention did not in any way empower the United
Nations to assume governance of matters considered to be within the legitimate
jurisdiction of sovereign member states and that it was not a surreptitious attempt
to arrogate powers belonging to sovereign states (ibid.).
Definition and Language of the Convention
The Convention definition of genocide is inconsistent with the real meaning

of the term, so a public official or a private individual would be subject to
prosecution and punishment for genocide if he intentionally destroys a single
member of one of the specified persons (ibid.).
The Convention would impose on the United States the duty to prevent and
to prosecute and punish officials and individuals who cause “mental harm to
members” of the groups mentioned in the Convention. What mental harm and
what psychological acts or omissions are made punishable (ibid.).
The Convention imposes the duty to punish anyone who deliberately inflicts “on
the group conditions of life calculated to bring about its destruction in whole or
in part.” Does this mean that a county official who refuses to give a member of
a group the amount of welfare benefits deemed desirable can be punished for
genocide? Does it mean that the Court of International Justice shall have the
power to judge the adequacy of welfare benefits awarded by Congress and State
Legislature? (ibid.).
The Convention makes any official or individual punishable for “direct and
public incitement to commit genocide.” Does this mean that if a member of
Congress justifies the action of Jews killing Arabs in the Middle East that he can
be prosecuted for genocide? What about free speech? (ibid.).
To overcome the ambiguity in the language of the convention, Secretary Rodgers

recommended that the US Senate attach specific reservations or understandings
to clarify and redefine the legal scope and implications of each concern identified
above. He also indicated that the accompanying implementing legislation
should rely on language carefully constructed that limits US liabilities under the
convention and restricts the ability of international organizations and courts to
produce a broad interpretation of the convention (ibid.). A series of understandings
were proposed for inclusion at the time of ratification to clarify US interpretation
of the Genocide Convention.
That the term “intent to destroy, in whole or in part, a national, ethnical, racial,
or religious group as such” appearing in Article 2 means the specific intent to
destroy, in whole or in substantial part, a national ethnical, racial or religious
group as such by the facts specified in Article 2.
That the term “mental harm” in Article 2(b) means permanent impairment of
mental faculties through drugs, torture or similar techniques.
That the pledge to grant extradition in accordance with a state’s laws and treaties
in force found in Article 7 extends only to acts which are criminal under the laws
of both the requesting and the requested state and nothing in Article 6 affects the
right of any state to bring to trial before its own tribunals any of its nationals for
acts committed outside a state.
That acts in the course of armed conflicts committed without the specific intent
required by Article 2 are not sufficient to constitute genocide as defined by this
Convention.
Jurisdiction of the International Court of Justice
Under the Treaty, the International Court of Justice could require the United
States to go to war to prevent one nation from killing the nationals of another
nation.
The International Court of Justice could allow the United States [sic. UN] to
investigate or take action concerning the acts of public officials and individuals
in the United States.
The Convention could lead to the creation of an International Court of Trails of

US citizens for genocide without the constitutional safeguards and legal rights
accorded persons charged with a domestic crime.
The Convention could make US soldiers subject to trial for killing and wounding
members of the military forces of our warring enemy.
The International Court of Justice would be empowered to decree that the

President had interpreted and applied the provisions of the Convention
incorrectly.
Individuals and government officials would be subject to trial and punishment for
offenses which have always been regarded as matters falling within the domestic
jurisdiction of the various nations (Hearings before the Senate Committee on
Foreign Relations 1977, 94).
In this regard, Rodgers argued that protection of human rights is indeed a legitimate
international concern collectively expressed in the United Nations Charter, in the
UDHR, in the United Nations Slavery Conventions, and in several other United
Nations treaties. Rodgers contended that nothing in this convention would require
the United States to transfer jurisdiction to the ICJ, if such a case were to emerge
in the future then such prosecutions would be carried out in US courts according
to US rules and regulations in the instance that an act of genocide were to occur
within the territory controlled or held by the United States. To reinforce this point,
the United States attached a reservation to the Genocide Convention reasserting
the supremacy of the United States Constitution.
That nothing in the Convention requires or authorizes legislation or other action

by the United States of America prohibited by the Constitution of the United
States as interpreted by the United States (Genocide Convention 1986).
Regarding the ICJ, Secretary Rodgers contended that the convention could not
automatically transfer jurisdiction from member states to an international court.
Such a transfer is only possible if the participating states submit to the jurisdiction
of the court voluntarily and only if the member states formally accept such ICJ
jurisdiction during ratification. Rodgers further added that reservations should be
attached stating that the United States would not submit to ICJ jurisdiction unless
and otherwise it desires to do so after evaluating the merits of each case. The
executive branch aimed to disabuse popular misconceptions that ICJ jurisdiction
is neither automatic nor compulsory and that the ICJ operates on the principle of
non-compulsory jurisdiction. A case can proceed to the ICJ only if both states agree
to present a case to the ICJ voluntarily and accept its rulings as binding, but even
then the ICJ has no mechanism for enforcing its decisions; it leaves enforcement
to the member states. States routinely exempt themselves from ICJ jurisdiction or
choose to accept ICJ jurisdiction only very selectively. The United States attached
two reservations regarding the jurisdiction of ICJ and establishment of special
International Tribunals.
US Reservation attached to the Genocide Convention regarding jurisdiction of

the International Criminal Court of Justice
That with reference to Article 9 of the Convention, before any dispute to which the
United States is a party may be submitted to the jurisdiction of the International
Court of Justice under this article, the specific consent of the United States is
required in each case (Genocide Convention, 1986).
US Understanding attached to the Genocide Convention regarding the

establishment of special International Penal Tribunals
That with regard to the reference to an international penal tribunal in Article 6

of the Convention, the United States declares that it reserves the right to effect
its participation in any such tribunal only by a treaty entered into specifically for
that purpose with the advice and consent of the Senate (Genocide Convention,
1986).
Assessing Opposition to the Genocide Convention
Public hearings on the Genocide Convention were held in the United States Senate
in 1950, 1970, 1971, 1977, and 1984; ratification was recommended by the Senate
committees in 1970, 1971, 1973, 1976, and the merits of ratification were debated
in Senate floor in 1972, 1973, 1974, and the treaty was finally ratified in 1988. In
1974, despite the recommendation of the Senate Foreign Relations Committee,
it encountered a filibuster; therefore, the full Senate could not vote on the treaty
(Sciolino 1984, 8A). Despite a switch in the ABA’s position favoring the ratification
of the Genocide Convention, the conservative coalition remained adamant in its
opposing ratification (Korey 1997, 279–80). Penning an op-ed piece in the New
York Times, Senator Orrin Hatch, a Republican from Utah, argued for the rejection
of the Genocide Convention on the grounds that the treaty “could so easily play
into the hands of those hostile nations that wish to make trouble for America and
its allies” (Hatch 1985, 27A). Senator Hatch argued that ratifying the treaty could
cause trouble because it would obligate the arrest of Israeli defense officials during
their official visit to the United States. When the ratification issue re-emerged in
the Senate in 1984, Senator Jesse Helms openly feuded with Senator Charles H.
Percy (Republican, Illinois) in blocking a vote in the Senate Foreign Relations
Committee (Tolchin 1984, 6A).
Despite several hearings and debates, a series of US State Department studies,
American Bar Association endorsement, and testimony by law professors and
international jurists, opposition to the Genocide Convention was extraordinarily

strong. Familiar concerns over the supremacy of the United States Constitution,
the impact on federalism and state rights, the expansion of United Nations powers,
the definition and language of the treaty, especially the clause “intent to destroy, in
whole or in part, national, ethnical, racial or religious group,” and ICJ jurisdiction
continued to persist in every Senate Hearing; while supporters of the treaty, such
as Senators Proxmire and Percy, attempted to rebut and assuage anxieties over
derogation of the constitutional powers and state sovereignty. Treaty opponents
were successful in blocking passage of the treaty to the Senate floor for a ratification
vote, attaching a series of reservations along with the instrument of ratification,
and demanded a separate implementing legislation.
Generally, as per the rules of customary international law and treaty
convention, a separate implementing legislation is not necessary because if there
is an international law prohibiting the act of genocide, there is no need for a
comparable domestic law. A person or persons who are charged with the crime of
genocide can be tried and punished as per the rules of the Genocide Convention,
that is, international law. By enacting domestic legislation, the United States has
ensured that genocide is a crime under US law; if American military personal or
leaders are accused of genocide, then such an offense is first punishable under
US law. Individuals charged with the crime of genocide would be first tried in
US courts or military tribunals rather than in international courts or in the courts
of other nations. At least as far as the issue of genocide, crimes against humanity,
and torture are concerned, the United States introduced corresponding domestic
legislation to not only protect international organizations from trying US military
personnel and leaders, but also to ensure them the protection that the US legal
system affords, and not expose them to foreign procedures and laws. Besides,
charges brought under US law have to withstand the scrutiny of the domestic
legal system. Under US law individuals charged with capital crimes such as mass
murder could potentially face the death penalty; this option is not available under
international law.
While the implementing legislation on the Genocide Convention was being
debated in the Senate in October 1988, Senator Strom Thurmond (Republican,
South Carolina) lobbied hard for the inclusion of a death penalty amendment,
which would make perpetrators of genocide eligible for capital punishment under
US law (Korey 1997, 289). The inclusion of this amendment would have made
the passage of implementing legislation impossible because of the significant
opposition to the death penalty among some lawmakers. Senator Thurmond
eventually relented and dropped the capital punishment amendment in return
for Senate confirmation of conservative judges, which was being blocked by
democrats (Korey 1997, 289). It is difficult to present the ratification struggle
as a purely conservative and liberal issue simply because Republican Presidents
Nixon and Reagan supported the ratification of the Genocide Convention, while
congressional leaders from both parties blocked ratification. A combination of
institutional, political, and normative factors prevented the quick ratification of
the genocide treaty. Eventually ratification became possible because of a critical

realignment within the Republican Party, the attachment of reservations, and the
attempt to gain international political advantages through ratification. Senator
Bob Dole a Republican from Kansas, who went on to become the Republican
Presidential candidate in 1996, was the new Senate Majority leader and he was
willing to support the sitting Republican President Ronald Reagan’s desire for
the passage of the treaty and reinforce his international human rights credentials
(Korey 1997, 289).
United States and CEDAW
The Convention on the Elimination of All Forms of Discrimination Against Women

(CEDAW) was adopted and opened for signature on December 18 1979. CEDAW,
also known as the Women’s Rights Convention, is a comprehensive treaty that
addresses different issues related to women’s status in the society and elevates
the status of women’s rights to human rights. The preamble of CEDAW states
that “discrimination against women violates the principles of equality of rights
and respect for human dignity” and that such discrimination presents an “obstacle
to the participation of women, on equal terms with men, in the political, social,
economic and cultural life of their countries” (UNHCHR 1979). According to
CEDAW, discrimination against women will “hamper the growth of the prosperity
of society and the family” and restrict “full development of the potentialities of
women in the service of their countries and of humanity” (UNHCHR 1979). The
Women’s Rights Convention contains 30 articles, of which the first 16 articles
directly relate to issues of discrimination against women; the remaining articles
focus on procedural matters concerning treaty implementation and compliance.
Article 1 of CEDAW defines discrimination against women as “exclusion or
restriction made on the basis of sex which has the effect or purpose of impairing
or nullifying the recognition, enjoyment or exercise by women, irrespective of
marital status, on the basis of equality between men and women,” and denies
fundamental freedoms and human rights “in the political, economic, social,
cultural, civil, or any other field” (UNHCHR 1979, Article 1). Women’s Rights
Convention invites state parties to eliminate all forms of discrimination against
women and take steps to improve equality between men and women in all spheres
of life. CEDAW implores state parties to take steps to reduce institutionalized
discrimination against women in providing employment, access to health care,
family planning, education, social security, participation in the public life of the
nation, and improve access to career and business opportunities for women. State
parties are expected to submit periodic reports describing various steps they have
taken to implement the convention.
Articles 17 through 30 of CEDAW focus on outlining the independent
experts committee to monitor implementation of the convention and evaluate the
progression of women’s rights, and make recommendation and suggestions to
improve the status of women among participant states. Presently, there are 184
state parties to CEDAW; Iran, Nauru, Palau, Qatar, Somalia, Sudan, and Tonga
have not ratified. Among democracies, the United States is a significant standout
for its refusal to ratify the CEDAW convention. On July 17 1980, President Jimmy
Carter signed CEDAW, but he did not forward the treaty for ratification to the
Senate. President Clinton decided to send the treaty to the Senate for ratification
in 1993. However, since then the Women’s Rights Convention has languished in
the Senate Foreign Relations Committee despite receiving a favorable vote in
1994. Republican Presidents Ronald Reagan and George H.W. Bush did not feel
any urgent need to ratify CEDAW. President Reagan was personally opposed to
several aspects of the convention. Opposition to CEDAW has largely come from
conservative members of the US Senate and had manifested itself through the form
of Senator Jesse Helms. Senator Helms blocked Senate hearings on CEDAW and
prevented CEDAW from reaching the floor of the Senate for a full vote.33 Upon
the urging of President Bill Clinton, when Senate Democrats were in the majority,
the Senate Foreign Relations Committee approved ratification with a vote of 13–5
in favor of ratification, but the treaty was held from going to the full Senate for
a formal vote. In 1995, when the Republicans took control of both houses of the
104th Congress, Senator Jesse Helms became Chairman of the Senate Foreign
Relations Committee (1995–2001) and he did everything in his powers to prevent
a vote on CEDAW.
In November 1999, eight woman senators sponsored a resolution that urged
the US Senate to ratify the CEDAW convention by March 8 2000, which is the
International Women’s Day.34 Senate Resolution 237 encouraged the United States
to demonstrate leadership by ratifying CEDAW and reinforce international human
rights norms. Nevertheless, another set of hearings on CEDAW was not held until
June 2002, when democrats regained control of the US Senate. The Senate Foreign
Relations Committee, under the chairmanship of Senator Joseph Biden (Democrat,
Delaware) voted 12–7 in favor of ratification. CEDAW was again held up from
being sent to the full Senate for a ratification vote despite popular support from the
administration. George W. Bush suggested that ratification was “generally desirable
and should be approved,” but it requested the Senate to delay a full Senate vote on
CEDAW until the United States Justice Department completed a full review of the
treaty text and examined the full legal implications of US ratification (Dao 2002,
3A: US Senate Hearings on CEDAW, 107th Cong., 2nd Sess., 2002, 2–3, 8). The
Bush administration resorted to this tactic primarily because of fierce pressure
33 Senator Jesse Helms (Republican, North Carolina) retired from the Senate in
2003. He spent 30 years in the Senate and passed away on October 18 2008. He was a
vocal opponent of US ratification of Human Rights treaties and he played a prominent
role in opposing ratification of the Genocide Convention and several other human rights
conventions.
34 US Senate Resolution 237, 106th Congress, Sponsored by Senator Barbara Boxer
(Democrat, California), November 19 1999.
and lobbying from a small number of organized groups, such as American Life
League, Catholic Family and Human Rights Institute, and Family Action Council
International that are opposed to CEDAW ratification.
Reasons for US Opposition to CEDAW
CEDAW was lying dormant for 14 years until President Clinton decided to send
the treaty to the US Senate for consideration in 1994. The Equal Protection
Clause of the Fourteenth Amendment protects American women from a variety
of discrimination and provides a range of rights that are not available in other
countries; hence, ratification would only strengthen women’s rights in the United
States. Besides traditional concerns, such as the derogation of the United States
Constitution, loss of sovereignty, violation of federalism and state rights, the
conservative coalition believes that the ultimate goal of CEDAW is to encourage
abortion, same-sex marriage, and modify preordained gender roles of men and
women. More importantly, there is anxiety that ratification of CEDAW will alter
social relationships among men and women and alter traditional family relations in
the US society through international law, especially through human rights treaties,
as Senator Bricker had feared.
CEDAW is Against Motherhood or Why CEDAW Hates Mothers
Several members of the US Senate and some private non-governmental actors

are acutely concerned about the language in the convention, which asks states
parties “to modify the social and cultural patterns of conduct of men and women”
that are “based on the idea of the inferiority or the superiority of either of the
sexes or on stereotyped roles for men and women” (UNHCNR 1979, Article 5).
Although this concern seems overwrought, the language in Article 5 has come to
be interpreted by opponents of CEDAW, as being against traditional family values
and motherhood because it seeks to change the definition of women’s gender role,
which stereotypically understood, is to raise a family and be a mother. Testifying
before the Senate Committee on Foreign Relations in June 2002, the former
director of the World Family Policy Center at Brigham Young University, Kathryn
O. Balmforth accused the CEDAW Committee of behaving “as if motherhood were
an arbitrary designation, rather than fact of life” (US Senate Hearings on CEDAW,
107th Cong., 2nd Sess., 2002, 42). Balmforth criticized the CEDAW Committee,
which is charged with the task of treaty implementation in different countries, for
its “unrelenting hostility to traditional family arrangements,” and for mounting an
effort to “eradicate the very idea that being a mother and a homemaker is a role
that might be valued and freely chosen by some women” (US Senate Hearings on
CEDAW, 107th Cong., 2nd Sess., 2002, 42). Also Balmforth accused CEDAW
of seeking to intrude into “private, consensual, and even sacred aspects of family
relations” and seeking to promote such controversial issues “such as abortion and
lesbianism” (US Senate Hearings on CEDAW, 107th Cong., 2002, 41). According
to Balmforth, CEDAW’s ultimate goal is to promote an attitude in many countries
that view “full employment in paid work as a woman’s only acceptable role, and
day care as the best environment for even the youngest children” (US Senate
Hearings on CEDAW, 107th Cong., 2nd Sess., 2002, 43). According to Article 2 of
the CEDAW, state parties are urged to “condemn discrimination against women in
all its forms, agree to pursue by all appropriate means and without delay a policy of
eliminating discrimination against women.” Article 2 has encountered significant
criticism from its detractors because it required “Governments to eliminate
all discrimination, not just by Government, but by any person, organization,
or enterprise,” and for its unprecedented intrusiveness and its incitement of
governments to regulate private social relations and its subversive attempts to
attack religion incrementally (US Senate Hearings on CEDAW, 107th Cong., 2nd
Sess., 2002, 40–3). Opponents characterized CEDAW as overreaching, broad, and
sweeping in its scope and objectives.
Article 3 of CEDAW recommends that state parties undertake appropriate
measures, “including legislation, to ensure the full development and advancement
of women, for the purpose of guaranteeing them the exercise and enjoyment of
human rights and fundamental freedoms on a basis of equality with men.” The
United States has proposed attaching an amendment clarifying its position on
Articles 2, 3, and 5 because of the concern that CEDAW might erode sovereignty,
regulate private conduct among US citizens, override constitutionally guaranteed
rights, and attempt to erode traditional understanding of women, family, and
motherhood. The proposed reservation reads as follows:
The Constitution and laws of the United States establish extensive protections
against discrimination, reaching all forms of governmental activity as well as
significant areas of non-governmental activity. However, individual privacy and
freedom from governmental interference in private conduct are also recognized
as among the fundamental values of our free and democratic society. The United
States understands that by its terms the convention requires broad regulation
of private conduct, in particular under Articles 2, 3 and 5. The United States
does not accept any obligation under the convention to enact legislation or
to take any other action with respect to private conduct except as mandated
by the constitution and laws of the United States (Hearings before the Senate
Committee on Foreign Relations 1994, 9).
According to Jamison S. Borek, the former Deputy Legal Advisor to the US

Department of State, this reservation has been attached to allay worries that
CEDAW convention “could be interpreted to prohibit conduct which lies beyond
the scope of governmental regulation under existing U.S. law” (Hearings before the
Senate Committee on Foreign Relations 1994, 4). The United States government
acknowledged that the broad reach of general obligations under CEDAW and the
breadth of language, such as “discrimination against women” listed in Article 1,
elimination of all forms of discrimination “by any person, organization or enterprise”,

and the call to “modify or abolish existing laws, regulations, customs and practices
which constitute discrimination against women” in Article 2 of CEDAW was
indeed one of the reasons that conservative Senate leaders are opposing ratification
(Hearings before the Senate Committee on Foreign Relations 1994, 9). Deputy
Legal Advisor Borek argued that the Senate should attach RUDs drafted by the
executive branch to clarify American position and then proceed to proliferation.
CEDAW Engenders an Abortion Regime
Articles 12 and 16 of CEDAW have provoked ferocious opposition, particularly

among certain conservative groups because of the perception that CEDAW fosters
an abortion regime or favors a women’s right to choose. Article 16(1)(e) of
CEDAW, among other things, requires state parties to take “appropriate measures
to eliminate discrimination against women in all matters relating to marriage and
family relations” to ensure “equality of men and women.” Expressly, Article 16
asks the state parties to create an environment in which women can decide “freely
and responsibly on the number and spacing of their children and to have access to
the information, education and means to enable them to exercise these rights,” and
Article 12 calls on state parties to eliminate discrimination in the access to health
care “including those related to family planning.” Articles 12 and 16 primarily
aim to provide equal rights to women in the access of health care, choice in the
determination of marital arrangements, control over the spacing of children and
control over procreation itself; this clause has caused particular consternation
among CEDAW opponents, especially among pro-life groups.
A ranking Republican member of the Senate Foreign Relations Committee,
Senator Jesse Helms, in a letter to the compliance committee of the CEDAW
accused it of fostering a “radical abortion agenda” “negotiated by radical feminists”
(Dao 2002, 3A; Simpson 2002). Other opponents of CEDAW believe that the
treaty advances a “radical agenda of abortion, autonomy, sexual promiscuity and
redefinition of the family” (Crouse 2002, A15). American conservatives view
CEDAW as a tool of extreme groups to utilize international legal mechanisms
to alter the dynamics of social and family structure by introducing values that
might potentially redefine the gendered roles of men and women. Although the
US State Department assured that CEDAW will not “destroy traditional family
values,” “undermine separation of church and state or require churches and
religious institutions to change their practices and beliefs, by admitting women
to the clergy,” and that nothing in the convention mandates “abortion on demand”
(Hearings before the Senate Committee on Foreign Relations 1994, 13, 59). The
Deputy Legal Advisor from the State Department emphasized during the 1994
Senate Hearings that CEDAW was “abortion neutral” and “whether or not abortion
should be considered” as an “appropriate service” was entirely left to the discretion
of the state parties (Hearings before the Senate Committee on Foreign Relations
1994, 13–4). Nevertheless, none of these assurances have mollified the anxieties
of the opponents of CEDAW, who continue to insist that CEDAW will eventually
modify private social relationships, decriminalize prostitution, alter traditional
gender roles of men and women, legalize gay marriage, promote abortion, and
redefine the concept of family (US Senate Hearings on CEDAW, 107th Cong., 2nd
Sess., 2002, 45–47; Washington Times 2002, A20).
Other Concerns over CEDAW
Several other concerns were raised about CEDAW that fall within the category
of constitutional concerns, federalism and states rights concerns, the authority of
the United Natons and state sovereignty concerns, and the fear that CEDAW will
generate frivolous lawsuits and attempt to introduce new labor laws on maternity
leave. Some of these concerns are identified here:
CEDAW will confer too much power to the international community, and
CEDAW provisions will supersede US federal and state laws and override the
United States system of federalism and separation of powers (Working Group on
Ratification of CEDAW, 2001, 38).
Ratifying CEDAW will encourage individuals to pursue personal injury lawsuits

by relying on CEDAW because discrimination is defined very broadly by
CEDAW. In other words, CEDAW will give private cause for action, which
will generate an avalanche of unwise and frivolous lawsuits and overwhelm the
American judicial system (Working Group on Ratification of CEDAW, 2001,
38; Hearings before the Senate Committee on Foreign Relations 1994, 66, 69).
CEDAW will force the United States to place American women into “military
units and positions which may require engagement in direct combat” (Hearings
before the Senate Committee on Foreign Relations 1994, 10).
CEDAW will force private actors to equality in wages, access to employment,

and access to healthcare between men and women in situations not mandated
by federal law and the Constitution (Hearings before the Senate Committee on
Foreign Relations 1994, 59).
To assuage these concerns the United States government proposed a set of

reservations, understandings, and declarations (RUDs) to clarify their position
vis-à-vis CEDAW and to expedite Senate approval of the treaty.
Proposed US Reservations, Understandings, and Declarations for CEDAW
Reservations
Private Conduct The Constitution and laws of the United States establish
extensive protections against discrimination reaching all forms of governmental
activity as well as significant areas of non-governmental activity. However
individual privacy and freedom from governmental interference in private conduct
are also recognized as among the fundamental values of our free and democratic
society. The United States understands that by its terms the Convention requires
broad regulation of private conduct, in particular under Articles 2, 3, and 5. The
United States does not accept any obligation under the Convention to enact
legislation or to take any other action with respect to private conduct except as
mandated by the Constitution of and law of the United States (Hearings before the
Senate Committee on Foreign Relations 1994, 28).
Combat Assignments Under current US law and practice, women are permitted
to volunteer for military service without restriction and women in fact serve in all
US armed services, including in combat positions. However, the United States
does not accept an obligation under the Convention to assign women to all military
units and positions which may require engagement in direct combat (Hearings
before the Senate Committee on Foreign Relations 1994, 29).
Comparable Worth US law provides strong protections against gender

discrimination in the area of remuneration, including the right to equal pay for
equal work in jobs that are substantially similar. However, the United States does
not accept any obligation under this Convention to enact legislation establishing the
doctrine of comparable worth as that term is understood in US practice (ibid.).
Paid Maternity Leave Current US law contains substantial provisions for

maternity leave in many employment situations but does not require paid maternity
leave. Therefore the United States does not accept an obligation under Article
11(2)(b) to introduce maternity leave with pay or with comparable social benefits
without loss of former employment, seniority, or social allowances (ibid.).
Understandings
Federal State Implementations The United States understands that this

Convention shall be implemented by the Federal Government to the extent that it
exercises jurisdiction over the matters covered therein and otherwise by the state
and local governments. To the extent that state and local governments exercise
jurisdiction over such matters, the Federal Government shall as necessary take
appropriate measures to ensure the fulfillment of this Convention (ibid.).
Freedom of Speech, Expression and Association The Constitution and laws of

the United States contain extensive protections of individual freedom of speech,
expression and association, Accordingly the Untied States does not accept any
obligation under this Convention, in particular under Articles 5, 7, 8, and 13, to restrict
those rights, through the adoption of legislation or any other measures, to the extent
that they are protected by the Constitution and laws of the United States (ibid.).
Free Health Care Services The United States understands that Article 12 permits
States Parties to determine which health care services are appropriate in connection
with family planning, pregnancy, confinement and the post-natal period, as well
as when the provision of free services is necessary and does not mandate the
provision of particular services on a cost free basis (ibid.).
Declarations
CEDAW is Non Self-Executing The United States declares that, for purposes of
its domestic law, the provisions of the Convention are non-self executing (ibid.).
Dispute Settlement and ICJ Jurisdiction With reference to Article 29(2), the
United States declares that it does not consider itself bound by the provisions
of Article 29(1). The specific consent of the United States to the jurisdiction of
the International Court of Justice concerning disputes over the interpretation or
application of this Convention is required on a case by case basis (Hearings before
the Senate Committee on Foreign Relations 1994, 30, 51–52).
United States Participation in CEDAW—An Assessment
Opponents of CEDAW are afraid that the Women’s Rights Convention is

sweeping and it invades the domain of the private sphere of family life, which lies
outside the bounds of any government let alone any international organization.
Reservations regarding private conduct are meant to clarify that the United States,
and in particular the federal government, will not intervene in the private conduct
as defined, understood, and interpreted by the United States Constitution or enact
legislation seeking to regulate the private (or the family) domain. Private conduct
or domain, at least according to the US interpretation is understood to be those that
characterize traditional roles of men and women that may have implications for the
structure of family life as it is commonly understood. The concern is that somehow
CEDAW will alter the hierarchical arrangement of family in which man is the
head of the family and marriage is understood to occur between a man and woman,
which CEDAW describes as stereotypical gender roles. The intention of CEDAW
is to suggest that traditional hierarchical gender roles in certain cultures that tend to
oppress women and privilege men should be altered to bring more equality within
the structure of the family, but there is no suggestion that CEDAW’s objective
is to alter the concept of the traditional understanding of the family or promote

same-sex marriages or other unconventional associations. Although one could
argue that CEDAW could be interpreted in such a manner in the long run, there is
no evidence to suggest that is indeed the original intent of the CEDAW framers.
However, critics have pounced upon the language of CEDAW and presumed that
it is seeking to introduce such changes into the United States social fabric such
that it would increase the number of single-parent family homes, promote same-
sex marriages, bestow adoption privileges on same-sex couples, and encourage
the entry of women into positions of religious authority. These social changes are
already occurring in the United States with or without CEDAW; the concern is
that norm entrepreneurs and NGOs would seize on specific clauses to accelerate
the process of change by relying on CEDAW as a legal crowbar. Undoubtedly the
first 16 articles of CEDAW do indeed seek to introduce substantial change in law,
government, and in customs and practices, but such changes are obviously not
targeted at the United States.
The issue of whether or not CEDAW encourages abortion is of great
importance, and it continues to pose significant ratification hurdles in the US
Senate. The American Bar Association and the Women’s Law Group have pointed
out that nothing in the convention, especially Article 12, indicates that CEDAW
encourages abortion; the official position of the Clinton administration was that
CEDAW is “abortion-neutral” (Hearings before the Senate Committee on Foreign
Relations 1994, 13). According to the view of Professor Harold Honju Koh, a
noted international law expert and former US State Department Official in-charge
of producing the annual human rights report, CEDAW is abortion neutral and the
convention allows signatory states to determine its own set of policies (US Senate
Hearings on CEDAW, 107th Cong., 2nd Sess., 2002, 25, 34).
Reservations concerning combat assignments for women in the armed forces
point out that women “are permitted to volunteer for military service without
restriction,” and that women indeed “serve in all U.S. armed services,” including
combat units (Hearings before the Senate Committee on Foreign Relations 1994).
United States, however, prefers to retain the right to include or exclude women
from combat units, which require “routine engagement in direct combat on the
ground” (Hearings before the Senate Committee on Foreign Relations 1994, 9).
This reservation is meant to point out that US government and armed forces
are to be the ultimate judges of the rules governing involvement of women in
combat within their own timetable and without the pressure of external actors
and international organizations. The principal objective of this reservation is not
only meant to reinforce the sovereignty of US armed forces in deciding military
assignments, but also to highlight the importance of state sovereignty over matters
that are thought to abide within the sovereign domain of individual states. Although
women are officially barred from engaging in direct military combat, recent reports
from Iraq indicate that women in US military have engaged in armed combat and
participated in other hazardous activities voluntarily or involuntarily and that the
distinction “between combat and non-combat roles have blurred” (Parsons 2008).
All of the proposed reservations to CEDAW reveal not only some of the
traditional concerns with regards to federalism, state rights, supremacy of the
United States Constitution, self-execution of treaties, and the role of the ICJ in
intra-state dispute settlements, but also demonstrates concerns over issues such
as paid maternity leave and universal health care, which are highly contentious
issues. In fact, the American Bar Association and the US government supports the
attachment of an understanding explaining the US position regarding universal
health care for prenatal and post-natal care (Hearings before the Senate Committee
on Foreign Relations 1994, 12). The understandings proposed for attachment to
facilitate the Senate ratification of CEDAW indicates that the US government
is unwilling to institute changes to its health care system as per the provisions
of CEDAW because it considers the issue of free health care to be a completely
separate matter that is outside the bounds of this convention. Although a wide
variety of prenatal and post-natal care facilities are federally mandated and state
laws also have extensive protections, the United States does not want to take
steps that are triggered by its participation in CEDAW. On the issue of maternity
leave, the federal government passed the Family Medical Leave Act (FMLA).
President Clinton signed the FMLA in February 1993, which authorizes individual
employers to grant up to twelve weeks of unpaid leave for the birth and care of the
newborn child or for the placement of children in foster care.35 Any introduction
of legislation supporting extended paid maternity leave is likely to encounter
significant opposition from business groups. Resistance to CEDAW and the
proposed US reservations suggest larger concerns over the role of international
organizations and their interventionist objectives vis-à-vis the United States socio-
economic and political institution rather a general disagreement with the objectives
and purposes of the convention. Although there is widespread support for treaties
such as CEDAW from human rights and religious groups, ratification concerns
manifested in the form of powerful conservative senators have proved to be a
significant roadblock to formal US participation in human rights conventions.
Rome Statute of the International Criminal Court
In the summer of 1998 over 150 countries and more than 200 NGOs met in
Rome, Italy and after five weeks of intense negotiations agreed to the creation of
an International Criminal Court (ICC) to be located in The Hague, Netherlands.
During the final roll-call vote, 120 countries voted in favor of ICC, seven countries
voting against the Rome Treaty, which included China, Iran, Iraq, Israel, Libya,
Sudan, and the United States, and 21 states formally abstained from voting
(Coalition for the International Criminal Court; Elsea 2002, 2). The Rome Statute
of the International Criminal Court entered into force on April 11 2002 when ten
35 See the US Department of Labor, Employment Standards Administration, Wage

and Hour Division (available online at: http://www.dol.gov/esa/whd/fmla/).
countries (Bosnia and Herzegovina, Bulgaria, Cambodia, Democratic Republic of

the Congo, Ireland, Jordan, Mongolia, Niger, Romania, and Slovakia) submitted
their instruments of ratification on the same day crossing the critical threshold of
the required 60 ratifications needed to establish the ICC. The purpose behind the
ICC was to establish a permanent international court for prosecuting a wide array
of crimes that are commonly described as crimes against humanity and crimes of
aggression. The ICC was born out of the experiences of the Nuremberg and Tokyo
war crime tribunals, which were created on an ad hoc basis to prosecute Nazi
and Japanese war criminals. More recently the International Criminal Tribunal for
Former Yugoslavia (ICTY) established in May 1993 and the International Criminal
Tribunal for Rwanda (ICTR) established in November 1994 were created on an
ad hoc basis to prosecute persons responsible for genocide, ethnic cleansing, and
other violations of international humanitarian law.
Experiences of these ad hoc tribunals demonstrated a need for a permanent
forum to prosecute crimes against humanity because the ad hoc tribunals
were inefficient and expensive and time-consuming because they required the
organization of administrative, investigative, and judicial structure on each
occasion; besides, these ad hoc bodies also encountered several logistical problems
during the conduct of the trial. Supporters of the ICC have argued that a permanent
international court would put an end to the “tribunal fatigue”—the process of
creating multiple ad hoc tribunals—and limit logistical challenges and smoothen
the process of managing international crimes (United Nations 1998–1999). The
creation of a permanent court was favored because it would overcome the need
for ad hoc solutions by institutionalizing a formal process of bringing charges
of crimes against humanity (Wedgewood 2000, 119). Even the highest courts
in several participant states were not suited to pursue charges of crimes against
humanity because they lacked the capacity, skills, and the judicial infrastructure.
Domestic courts were also more vulnerable to the charge of bias and unfairness,
whereas the ICC offered an impartial venue for conducting high profile hearings.
The expectation was that the ICC would serve as a deterrent against future war
crimes, limit the impunity of persons in positions of responsibility, assume control
of criminal justice when national justice systems were not able and unwilling to
function, end future conflicts, and achieve universal peace and justice (United
Nations 1998–1999).
Crimes defined in articles five through eight of the Rome Statute are not
“international” in the sense that they always transcend borders that require
international cooperation in the apprehension and prosecution of perpetrators—
which does often occur—but these crimes are understood to be “international”
in the sense that the heinous nature of these crimes elevates them to a matter
of international concern (Schabas 2004, 26). The ICC has jurisdiction to pursue
cases concerning: (a) the crime of genocide; (b) crimes against humanity; (c) war
crimes; and (d) the crime of aggression (Rome Statute, Article 5 (Sec. 1), 1998).
Subsequent articles (Articles 6, 7, and 8) identify and describe the extensive array
of crimes, such as ethnic cleansing, genocide, mass executions, murder, torture,
mutilation, forceful relocation, rape, sexual slavery, enforced prostitution, forced

pregnancy, enforced sterilization, and willful killing or causing bodily harm, that
fall within the prosecutorial jurisdiction of the international criminal court.
Elements of international crimes covered in detail in Articles 6, 7, and 8 of the
Rome Statute, could be modified or amended by the participant states, the ICC
Judges acting as an absolute majority, and the ICC Prosecutor as long as two-
thirds of the Assembly of State Parties approve (Rome Statute, Article 9, 1998).
The Assembly of State Parties consists of states that have ratified the convention
and function as independent overseers of the court and its activities including
inspection, evaluation and investigation of the court, elect judges, prosecutors, and
other officials, and establish the budget. Non-ratifying states, which are not state
parties to the Rome Statute, are barred from having any formal involvement in the
activities of the court, but they are allowed to observe if they are signatories.
United States and the International Criminal Court
President Bill Clinton affixed his signature on the Rome Statute in December
2000, despite significant doubts and serious internal disagreements within the
administration regarding the viability of American participation in the ICC.
Several portions of the ICC convention were rejected by the Senate Republicans
and the incoming Bush administration (Myers 2001, 1A). Senator Jesse Helms
was extremely displeased with President Clinton’s signing of the ICC on the
very last possible day, December 31 2000, of his administration and on the very
last day possible that a country could affix its signature as per Article 125 of the
Rome Statute. Senator Helms, who was set to become the Chairman of the Senate
Foreign Relations Committee on January 3 2001, referred to President Clinton’s
last minute signature on the ICC “as outrageous as it is inexplicable,” and he
vowed that the actions of a “lame-duck president to tie the hands of his successor,”
will not succeed (Myers 2001, 1A).
As early as the end of the First World War when the European allies where
eager to pursue war crimes trials, the United States was inhospitable to the idea
of a permanent international court because of the belief that it would promote
“ex post facto justice” (Schabas 2004, 3). Although the views within the United
States shifted in favor of internationalism after the Second World War and
support for international courts increased, the idea of an international court with
universal jurisdiction has produced great legal and political consternation. During
the first hearings on the ICC in July 1998, Senator Rod Grams, Chairman of the
Subcommittee on International Operations, remarked that the “United States must
aggressively oppose the court each step of the way, because [the] treaty establishing
the international criminal court is not just bad … but also dangerous” (US Senate
Hearings on ICC, 105th Cong., 2nd Sess., 1998, 1). Backers “of this treaty are
banking on the fact that the United States will allow this court to flourish and gain
legitimacy over time,” although the ICC is “weak at its inception,” unchecked its
“scope and its power can and will grow” Senator Grams remarked and he urged
that this must not be allowed to happen (US Senate Hearings on ICC, 105th Cong.,
2nd Sess., 1998, 6). Another member of the Committee on Foreign Relations
and a long-standing opponent of multilateralism and international organizations,
Senator Helms described the Rome Statute establishing the ICC as “irreparably
flawed” (US Senate Hearings on ICC, 105th Cong., 2nd Sess., 1998, 6). Citing
Lloyd Axworthy, former Canadian Foreign Minister, Senator Helms argued that
the United States position towards the ICC should not be one of “benign neglect”
instead it should be “aggressively opposed” (US Senate Hearings on ICC, 105th
Cong., 2nd Sess., 1998, 6).
President George W. Bush, who assumed office, on January 20 2001, displayed
similar hostility towards the ICC and multilateralism. However, the United States is
stuck in an odd position of being unable to reach any accommodation or resolution
regarding the ICC; it has reached a “lonely legal edge” with neither the ability to
completely disengage or fully control the ICC to suit its national security objectives
(Broomhall 2001, 141; Wedgewood 2000). Unable to reconcile the US position
vis-à-vis the ICC, President George W. Bush attempted to officially withdraw
President Clinton’s signature from the Rome Statute to express displeasure and
absolve American obligations under the treaty. Such action is indeed permitted as
per Article 127 of the Rome Statute, but according to the Vienna Convention on
the Law of Treaties, a state is obligated “not to defeat the object and purpose of a
treaty prior to its entry into force” (Article 18, Vienna Convention on the Law of
Treaties 1969). If a state had already signed a treaty, it shall not withdraw from
the treaty until it has “made its intention clear not to become a party to the treaty”
(Article 18, Vienna Convention on the Law of Treaties 1969). This is exactly what
the United States did on May 6 2002, in a letter to United Nations Secretary-
General, Kofi Annan, Under Secretary of State for Arms Control and International
Security John R. Bolton said that “the United States does not intend to become a
party to the treaty … has no legal obligations arising from its signature” and the
US intention is not to “become a party” and this be “reflected in the depositary’s
status lists relating” to the Rome treaty.36
A few days after the United States informed the United Nations of its intention
not to become a party to the ICC, the US House of Representatives passed a
measure that was attached to the House Appropriations Bill, which authorized the
US President to resort to force to rescue Americans who are held against their will
and barred all forms of financial or other assistance to the ICC (Clymer 2002).
This act known as the “American Service Members’ Protection Act of 2001,”
which prohibits cooperation with the ICC, restricts participation in certain United
Nations peacekeeping operations, prohibits the “direct or indirect transfer of certain
classified national security information” and proscribes the US military from
providing any assistance to the ICC (American Servicemembers’ Protection Act
36 A copy of this letter is available online at the US Department State (available
online at: http://www.state.gov/r/pa/prs/ps/2002/9968.htm).
of 2001, H.R. 1794, May 10 2001). A modified version of the bill introduced in
the United States House of Representatives states that any action taken by the ICC
“against any member” of the US military will be regarded as an “act of aggression
against the United States” and any action taken against US nationals will be treated
as a “an offense against the law of nations” (American Servicemember and Citizen
Protection Act of 2002, H.R. 4169, April 11 2002). An earlier version of this bill was
passed in the US Senate in December 2001 and President George W. Bush signed
the American Servicemember Protection Act (ASPA) into law in August 2003; the
ASPA is also dubbed as the “Hague Invasion Act” because ASPA authorizes the US
President to use force if necessary to liberate individuals in the custody of the ICC.
Among many objections that the United States has towards the ICC; primarily,
it is concerned that US military personal, including high ranking officers, and
other high officials will be charged and tried for crimes against humanity for
“legitimate uses of force” while participating in international peacekeeping or in
other military operations undertaken in pursuit of United States national interests
(Elsea 2002, 3). Senate Republican leaders and the Department of Defense have
demanded iron clad guarantees that no US solider, or any American for that matter,
will be ever tried by the International Criminal Court (Crossette 2000, 6A). During
a Senate Foreign Relations Committee hearing, Senator Rod Grams suggested
that the “greatest force for peace on this earth is not an international court; it is the
United States military” and that the “very nations that have created a court which
inhibits our ability to project force have repeatedly called on the U.S. to be the
global enforcer” (US Senate Hearings on ICC, 106th Cong., 2nd Sess., 2000, 3).
Senator Grams further added that any treaty that hinders the ability of the United
States military “is not only bad for America, but it is also bad for the international
community” (US Senate Hearings on ICC, 106th Cong., 2nd Sess., 2000, 3).
The United States government wanted to include a special clause into the
text of the Rome Statute in exchange for participation because of its unique
security role in world affairs (Wedgewood 2000, 119). Specifically, the United
States wanted definite exemptions from potential ICC prosecution extended to
US military personnel while serving abroad to enable formal participation in the
criminal court. The primary concern centered on protecting the US military from
the possibility of facing frivolous lawsuits while stationed abroad or conducting
peacekeeping missions and recognition of the special role of the United States in
international affairs, but when this special exemption clause was not supported by
other parties to the ICC, the United States decided to withdraw from ICC (Elsea
2002, 3; Sengupta 2002, 4A).
Several other objections, besides the unwarranted prosecution of US military
personnel, have been raised both by Congress and other agencies of the US
government, including the office of the President. The ICC’s universal jurisdiction
over nationals of non-party states identified in Article 12 of the Rome Statute
continues to be a major concern, this particular clause was strenuously objected
to by the US delegation during the negotiations of the Rome Statute (US Senate
Hearings on ICC, 106th Cong., 2nd Sess., 2000, 15). Even though universal
jurisdiction clause was aimed at “rogue-regimes” so that such regimes will not
be able to isolate themselves from the court’s jurisdiction through non-ratification
and subvert the intent of the court (Elsea 2006, 6).
Another concern is that the ICC Prosecutor operating independently without
any political checks and balances will become uncontrollable, which would
allow the ICC Prosecutor to become some sort of global Kenneth Starr,37 and
enable the prosecutor to initiate cases without restraint and engage in politicized
prosecution (Grossman 2003, 4; US Senate Hearings on ICC, 106th Cong., 2nd
Sess., 2000, 13). Former Defense Secretary Casper Weinberger raised questions
about the judicial structure of the court, its ability to offer a fair trail to the accused,
and protect the set of basic rights guaranteed by the United States Constitution.
Particularly, US concerns focused on whether the ICC will be able to address the
due process concerns that are protected by the 14th Amendment (Elsea 2006, 6).
Secretary Weinberger expressed serious doubts over the ability of the international
criminal court to “offer defendants the right of trial by jury, protection against self-
incrimination, the right to confront and cross-examine prosecution witnesses” (US
Senate Hearings on ICC, 106th Cong., 2nd Sess., 2000, 5).
The United States preferred to exempt itself from the ICC and sought preferential
treatment because of its unique role in international affairs in maintaining global
peace and security. The United States is willing to function along with the ICC as
a parallel police force, but it clearly demonstrated its extreme reluctance to submit
itself to the jurisdiction of the ICC, which in many ways it was instrumental in
proposing and negotiating.
United States Participation in International Human Rights Regimes
The United States engagement with the United Nations multilateral human rights
treaties can be summarized as Cold War reluctance and post-Cold War enthusiasm,
tempered by instrumentalism, pragmatism, and principled opposition. The
puzzling aspect of US behavior is the tendency to disengage from the very same
treaties that it helped create, install, and enforce? Why does the United States
consider its actions and policies to be immune from international moral judgment,
and not constrained by the same rules and norms, which it was instrumental in
fostering? The United States has faced sustained criticism for its inconsistent and
selective application of international human rights norms. Overall, it seems that
US human rights policy is always subordinated to the aims of national security
interests and other foreign policy objectives. Morascvik (2001, 345–76) believes
37 The reference here is to Kenneth Starr, the Special Prosecutor, who pursued
President Bill Clinton’s extra-marital affairs in an unrestrained and politically partisan
manner, and almost succeeded in bringing down President Clinton’s administration. Special
Prosecutor Starr’s vigorous pursuit of President Clinton’s inappropriate behavior was
regarded by many as prosecutorial overzealousness bordering on misconduct.
that the United States engages in actions, such as withdrawing from international
treaties and subordinating human rights norms to foreign policy objectives,
because, simply put, “it can do so and get away with it.” This is a variation of
the realist argument, which claims that the US could engage in unilateralist or
isolationist behavior because of its superpower status. Although the United States
has shown a strong proclivity to engage in actions that subordinate human rights
to national security interests, there is also a strong moral character to American
foreign policy that encourages promotion of human rights norms and democracy
through humanitarian intervention and humanitarian assistance.
The strong moral dimension or values orientation, which has generally been
characterized as US exceptionalism, can be traced back to the puritan settlers in
Massachusetts Bay. Puritans believed that Providence brought them to the new
world and gave them the responsibility to establish a nation and society that
would serve as a model to the rest of the world. Belief that the United States is
a “redeemer nation,” a “city upon a hill,” and a “beacon of freedom” was born
from the experience of early settlers, and later reinforced during the formation of
the United States as a nation. Americans are said to be exceptional and blessed;
therefore, they must maintain a high level of moral and spiritual commitment to
sustain the special providence and maintain the exceptional destiny (Madsen 1998,
12). This notion of exceptional destiny is the centerpiece of American identity that
is repeated throughout US history at crucial junctures and reinforced through deep
religiosity, individual rights, and the enormous faith in free markets, and the right
to hold private property and prosper from it.
The vocabulary of exceptionalism can also be found in the vision of the
United States nation as articulated by the founders, particularly in the language
of Benjamin Franklin and John Adams. Franklin reveals in his autobiography
that America is truly set apart from Europe because it is blessed providence and
principles of rationality, which can be combined to build an effective democratic
government that is unhampered by historical complexities, class system, and
hereditary rule (Madsen 1998, 16). New immigrants to the United States, since the
original Puritan settlers are repeatedly told that to succeed in the US they require
the qualities of hard work, thrift, common sense, moral integrity, and altruism,
unlike Europe where success can be achieved primarily based on social class.
The United States may be unique and exceptional not because it has “better
values” necessarily—but because its foreign policy has been able to match its
international rights discourse with a set of domestic policies that have elevated
civil and political liberties, and human rights broadly, to the status of national
constitutional law. Even when the United States disengages from international
human rights treaties on the basis of principled opposition, it follows a set of
domestic policies and pursues a foreign policy that is broadly consistent with
international norms. Formal disengagement from international treaties is
not necessarily an excuse to pursue antithetical domestic policies, but it is to
demonstrate the inherent weakness in such multilateral agreements and an attempt
to show the world the absurdity of formal compliance in which several states
violate the terms of the treaties even after ratification, whereas it adheres to such
universal norms irrespective of whether it formally participates in a treaty regime
(see Table 5.1).
United States opposition to human rights convention can be separated into the
following categories: (1) constitutional concerns; (2) federalism and state rights;
(3) expansion of presidential powers; (4) definition and language of the treaty; (5)
expansion of United Nations powers; and (6) state sovereignty and the jurisdiction
of International Courts. Are these concerns legitimate or illegitimate? These
would be hard to argue one way or another. There is strong evidence to suggest
that the above concerns are legitimate, but they have to be couched within the
larger context of pragmatic realism that US foreign policy is built upon and these
concerns have manifested themselves as opposition in the US Senate.
Chapter 6
The Case of China
Of all China’s problems, the one that trumps everything is the need for stability.
We have to jump on anything that might bring instability; we can’t give ground on
this point, can’t bend at all … all this boils to one thing: China can’t take chaos.
We can’t allow chaos, and we have to keep saying so, bluntly and openly. We’d be
wrong not to.
Vice-Premier Deng Xiaoping, during the 1989 Tiananmen Crisis
Any crime which the law regards as serious should certainly receive serious
penalties, and any crime which is punishable by the death penalty according to law,
should certainly receive the death penalty. This will ensure the healthy progress of
strike hard.
President Hu Jintao, remarks made while he was the Secretary of the Standing
Committee of the Central Political Bureau Chinese Communist Party (CCP), May 4 1996
The People’s Republic of China has witnessed a spectacular economic and

international resurgence since 1978 after Deng Xiaoping introduced a series of
sweeping reforms. Today China is experiencing blistering economic growth;
its trade surplus is continuously expanding, its manufacturing capacity is
interminably widening, and its global economic reach has catapulted China from
a Third World state to near First World status. Nevertheless, daunting challenges
confound China in undertaking environmental clean-up, enforcing banking
regulations, guaranteeing intellectual property rights, and especially, in the area of
human rights. The People’s Republic has to grapple with widespread corruption,
white-collar crime, and growing economic inequality, which is placing enormous
pressure on its weak institutional foundations and eroding the ability of the central
government to effectively manage the transition from a communist dictatorship
to a neo-authoritarian capitalist state. Of all the challenges confronting China
today, its inability to address its persistent human rights problems has prevented
it from attaining international prestige and respect among its peers. China’s
human rights violations and the inadequacies of its judicial system have received
widespread international opprobrium. China has not only attempted to introduce
legal reforms, such as abolishing the hukou (household registration system), but it
has also countered international criticism by joining various human rights treaties,
attained membership in the newly formed United Nations Human Rights Council
(HRC), hosted global rights conferences such as the Beijing Women’s Conference
Liang et al. 2001, 423.

held in 1995, and mounted a carefully coordinated strategy of countering its critics
through international policy networks. Nevertheless, persistent and systematic
human rights abuses continue, and criticisms of China’s human rights policies
have not abated.
This chapter sets out to examine why China is wary of making international
human rights law an effective component of its domestic legal system and why it has
failed to pursue sincere efforts to reform its criminal law, improve its human rights
record, and fully comply with international treaty norms. Specifically, this chapter
investigates why China is antagonistic towards human rights regimes, while it has
been welcoming of other forms of legal reform, institutional development, and
foreign cooperation. To answer this question, this chapter generates an explanation
relying on three interrelated historical and contemporary factors: (1) Confucian
influence and imperial institutionalist heritage; (2) Maoist socialist order; and (3)
developmental authoritarianism.
Confucianism and Legalism, which evolved as competing legal paradigms
in ancient China, influenced the development of legal thinking and institutional
structure over three millennia. Legal discourse during the eighteenth and nineteenth
centuries became infused with mistrust of foreign laws and Western governments
because of China’s poor experience with European laws and coerced entry into
various unequal treaties. Subsequently, anti-colonialism, distrust of international
law, and historical legalism merged with nationalism and socialist thought,
resulting in renewed emphasis on the primacy of state and national sovereignty,
which in turn furthered the animus towards international law and organizations.
This antipathy towards formal law in general, and international law specifically,
was further reinforced by Maoism, which was based on rule by diktat, nonchalant
dismissal of international law, use of law as an instrument of social control, and
mass mobilization to suppress individualism to propagate the narrow ideological
objectives of the Communist Party.
The pre-Mao imperial political system, Maoist socialist order, and the post-
Mao political organization are structured on a legal philosophy that does not
recognize the concept of individual civil and political liberties. Both the imperial
political order and the Maoist socialist order did not contain political mechanisms
that could potentially capacitate the individual against the state. Unlike Western
political systems, which have evolved to construct a legal infrastructure as a
free-standing institution to mediate relations not only among individuals, but
also between the state and the citizen, the Chinese state has always been beyond
the admonition of its citizens or other states. As a result, Qin, Han, Tang, Ming,
and Qing emperors never tolerated criticism, dissent, or legal challenges to their
supremacy and neither have Chairman Mao and the Chinese Communist Party
(CCP) countenanced dissent and political challenges lightly.
Authoritarian political structure and the new developmentalist ideology have
presented new hurdles to China’s compliance with global human rights standards.
Leaders in Beijing are deeply wary of the heavy emphasis on individual rights
because they fear that it will lead to luan (chaos), that is, widespread social
The Case of China 215
upheaval, which will destroy the collectivist culture of Chinese society, destabilize
economic reforms, and erode the unitary framework erected by the Chinese
Communist Party. New political orthodoxy in China puts primary emphasis on
Deng Xiaoping’s slogan “to-get-rich-is-glorious,” and not on enabling individual
liberties and promoting more political openness because of the overwhelming
concern that civil and political liberties will engender organized political opposition
against the party. Economic rights have been significantly expanded, but the party
state continues to repress political rights and individual freedoms, and it has used
the judiciary and police to suppress dissent. China’s fourth generation leaders
have increasingly resorted to emphasizing economic development with Chinese
characteristics and redirected the authoritarian edifice of the state to enable and
encourage economic gains at the expense of political development. Party leaders
are more interested in strengthening the protective shell of authoritarianism and
reinforcing state power, while simultaneously transforming the Chinese society to
become a highly competitive player in the global economic system.
The discussion that follows in this chapter is divided into five main sections
with appropriate subsections. The first section focuses on how Confucian
philosophy influenced the development of Chinese legal doctrine, and how the
political experience of Imperial China affected its attitude towards international
law and Western legal traditions. The next section focuses on the ultimately
unsuccessful attempts during the interregnum between the fall of the Qing
dynasty and the birth of the People’s Republic of China to reform the Chinese
legal system based on principles derived from Western legal codes. The third
section examines how Maoist thought influenced attitudes towards international
human rights law and how it led to the underdevelopment of the domestic legal
system. The fourth section is divided into multiple subsections, which describe
how the transition engineered by Deng Xiaoping propelled China towards
the market economy accompanied by an incomplete reform of the political
and legal system. This section also discusses how international economic and
political pressure compelled the People’s Republic of China to make subtle, but
important, changes to its domestic legal system through the incorporation of
international human rights norms. Although China has ratified some of the major
human rights treaties, it has engaged only in procedural cooperation with the
treaty bodies and it has failed to introduce corresponding refinements in the area
of domestic human rights law. The last main section concludes by examining
China’s human rights policies in the post-Tiananmen era and discusses how
economic reforms and the excessive importance placed on social order and
political stability combined with institutional bottlenecks have hindered full
compliance with human rights conventions.
Notions of Law and Order in Imperial China: Confucianism and Legalism
China’s conception of public etiquette, law, order, punishment, and rights has been
shaped by the doctrine of legalism and competing legal doctrines derived from the
writings of Confucius and Mencius (Lee 1969, 134). Confucianism is primarily
concerned with the moral code of conduct and empathy or humanism (li) or (lizhi)
documented in the classic text the Analects of Confucius, which identifies the rules
of “propriety, ethics, and moral rules of conduct” (Leys 1997). Importantly, the code
of li represents social norms that are internalized through routine social practices
such as greeting strangers on the street (Fingarette 1972, 8–9). The legal structure
(fa) or (fazhi) operates to punish transgressors of li or disturbers of social harmony.
In the traditional Chinese legal system, the code of li is enforced by society and the
state (or the ruler) enforces fa, but various Chinese emperors, beginning with the
Qin Emperor in 221 BC, have tended to emphasize fa, the system of punishments
and fines, over li, the socially enforced system of moral code, to varying degrees
(Weatherley 1999, 3). Confucius urged more emphasis on li (moral code) and less
insistence on fa (positive law) because reliance on a system of severe punishments
involved the use of coercion and force, which Confucius argued would only breed
resentment and anger towards the ruler (Fingarette 1972, 8).
Confucian thought did not consider legalism to be an ideal method for attaining
social order because it required only external compliance and not true reformation
of the individual character or the spirit of the social system (Peerenboom
1990, 12). Under the Confucian scheme, the ruler was expected to lead by
example, demonstrate his virtue, and assist in the cultivation of superior moral
values among his subjects (Peerenboom 2002, 32). The Confucian model of social
organization was based on harmony and on a hierarchical system of ethics, which
assigned predetermined social roles to every individual in the society; it certainly
privileged members of the society according to family and social status (Weatherley
1999, 5). Importantly, the Confucian social order was based on the fulfillment of
certain social and familial roles according to each individual’s position within
the family and society. It was believed that if individuals fulfilled their social
obligations or performed their social roles properly, harmony would naturally
prevail obviating the need for a formal legal system and a system of punishment.
The idea of harmony is central to Chinese societal organization. Harmony is
essential for family life, kinship, and the relationship between ruler and his subjects
(Wu 1967, 227). Individuals are expected to place collective interests, that is, the
interests of family and society ahead of personal desires. Preoccupation with one’s
personal interests is considered to be selfish, immoral, and detrimental to the
overall welfare of the society. If someone is entangled in a conflict, it is generally
imprudent to pursue the conflict to its bitter end, even if the law favors one party
over the other because it would only worsen the enmity and lead to a breakdown
of social relations (Wu 1967, 227). The notion of resolving conflicts in a non-
confrontational and face-saving manner is widely practiced even today. Emphasis
is placed on resolution of conflicts in a non-adversarial manner through informal
mediation schemes; hence, legal wrangling and lawsuits are highly discouraged.
Confucian practice of reciprocity and compromise is meant to encourage social
harmony. Pursuit of private interests is thought to produce social disharmony,
which underscores the need for fa—the system of punishment imposed by the
state (Weatherley 1999, 5). The Confucian system emphasized the importance of
subordinating individual interests to the collective goals of a society.
Individual Rights in the Chinese Legal Tradition
The notion of individual rights as espoused by Western thinkers is fundamentally

irreconcilable with Confucian social order because it is based on different
assumptions about freedom and rights. In the Confucian or in the Chinese legal
order, “individual rights” or “individual sovereignty” as understood in Western
societies is a foreign concept. Notions such as “political freedom” and “freedom of
expression” as described in liberal political thought are not clearly identifiable in the
Confucian analects (Svensson 2002). To Confucius, “to be free from everything—
free from other men, free from law, free from thought, free from sense … is to be
nothing” (Hsieh 1968, 310). The idea of unlimited freedom is considered to be
unrealistic, almost nihilistic, and it is not sanctioned by Confucian ethics. Freedom
in the Confucian ethical scheme is characterized by the freedom to do good (ren)
or the freedom to choose what is good (Hsieh 1968, 310). However, this freedom
is governed by ren—the need to do the right deed—and by the constraints of
family, society, and government. An individual is never viewed in isolation from
family or society; they are always regarded as a part of the larger social collective.
Every person in a society has assigned social roles and the efficient functioning
of a society depends on every person fulfilling their assigned duties within the
immediate social collective.
Emphasis is placed on performance of duties in a harmonious way. According
to Confucian ethics, performing one’s duties is more important than claiming one’s
rights (Hsieh 1968, 314). The Confucian hierarchical system assigned defined
roles based on the wulan or five paired relationships: (1) emperor/minister; (2)
father/son; (3) elder brother/younger brother; (4) husband/wife; and (5) friend/
friend (Weatherley 1999, 5). These paired relationships signified the hierarchical
consonants through which the emperor’s position in the society trumped the
ministers, or that the son must defer to the father and the younger brother must
obey the elder brother. Hierarchical order was so carefully calibrated that there
are no proper Chinese language characters signifying the term “brother”—
characters are only available for younger or older brother (Grasso et al. 2004, 12).
It was expected that by fulfilling the social duties assigned to each relationship,
an individual contributed towards the overall development of the family and
society. Confucianism saw family and social rules to be a self-regulating system
based on moral rules of propriety. Furthermore, Confucian social order stressed
the importance of selflessness, the art of compromise without losing face, and
adjustment for social harmony. A person’s social worth or status was determined
by his or her contribution to family and society. Chinese political order has always
been based on the assessment of hierarchy and social status (Schwartz 1987,
1–10). Confucius regarded individuals as roots and the society as leaves; hence,
duty to regulate oneself, that is, self-introspection, was primary, followed by duty
to family, clan, village, society, and government (Hsieh 1968, 314). A central
element of Confucianism involved education for the purposes of internalization
of the prevailing social norms, acceptance of social hierarchy, and obedience to
the ruler.
The idea of individualism articulated by Confucian social ethic is radically
different from the political philosophies of Locke, Hume, and Rousseau,
which overtly emphasized the importance of individual rights. Particularly,
characterization of individuals as roots or as foundations for the development of
a functioning society reflects China’s hierarchical and authoritarian value system
(Mei 1967, 327). Chinese society has always been hierarchical and social roles
depended upon individuals knowing their place (Lubman 1999, 120). Even during
Mao’s time Chinese society was hierarchically organized with the CCP Chairman
and Party Secretary assuming the top position and all social roles were politicized
and mobilized to serve the larger ideological objectives of the Communist Party.
Over a period of three millennia, Confucian elites and later the Communist
Party leaders were highly successful in developing specialized rituals, rules, and
techniques of legitimating myths that supported the rulers and enabled them to
control China’s vast peasant communities.
In contrast to the Western legal order, which emphasizes protection of
individual rights and seeks to empower individuals against the tyranny of the state,
the Confucian system placed value on collective interests and saw the ruler as a
benevolent protector who defends collective interests and punishes individuals
who deviate from established social norms. The need for law and sanctions
arises only when social deviance and disharmony prevails or when individuals
deviate from established social norms, whereas modern Western legal systems
operate horizontally, that is, proceeding from autonomous individuals, to society,
and then to the state (Bodde 1981). Chinese political philosophy did not factor
in the possibility of an errant emperor and an aberrant state producing chaos
or disharmony; only individuals acting on selfish impulses and deviating from
established norms could produce luan or chaos in society. Therefore, the Chinese
legal and political order has been devised to protect the state from the citizens
and not the other way around. Individual impulses had to be suppressed either by
Confucian moral code (li) or by the deterrent power of legalism (fa) because of
the presumed disruptive effect on such impulses. Nonetheless, this hierarchical
political order lacked a very fundamental tool—a mechanism to remove the
ruler from power and a system to protect citizens from the tyranny of the state.
Pious legitimation of the ruler and his elevation to the position of divinity (son of
heaven), and governance of the state, which is mandated by heaven itself, meant
that the Chinese emperor was beyond human reproach.
Confucianism became the dominant philosophy because various rulers

favored it and, principally, it evolved as the primary legal orthodoxy because
of the codification or transformation of the Confucian ethic into formal legal
code (fa) beginning with the Han period (206 BC–AD 220). Subsequently Tang
(AD 618–907), Ming (AD 1368–1644) and Qing (AD 1644–1911) dynasties
were continually involved in the process of “Legalization of Confucianism,” or
“Confucianization of Law” (Wu 1967, 343). This process is also described as
“Yin-Yang Confucianism,” in which Confucian moral code became polarized into
morality and law; while morality was governed by individual actions, law or penal
code became the domain of the state (Wu 1967, 344). Any violations of Confucian
morality became automatically punishable by law.
Expansion of Han, Tang, Ming, and Qing empires was made possible not through
the private practice of Confucian ethics, but through the means of a penal system
and coercive use of state power, which reserved harsh punishment for violators
of legalized Confucian ethics. Legalists asserted the importance of having a well
defined formal penal code containing a list of punishable offenses and appropriate
rewards for proper behavior to reduce ambiguity in assessing sanctions. The utility
of a formal penal code enabled the impartial application of state control—fazhi or
rule by law—to suppress the natural instincts of human beings to pursue narrow
self-interested gains. Draconian punishments were not only seen as an attempt to
rectify disharmony in the social order, but were also designed to serve as a deterrent
to others in the society. The presence of a formal legal code enabled smoother
transition and continuity of governance from one ruler to another irrespective of
the individual talents of each ruler (Peerenboom 2002, 32).
Legalization of Confucian morality actually led to the complete subordination
of the individual to the collective—the state—which became an omnipotent entity
that rejected “private standards of right and wrong,” and decried that there was “no
authority above the state,” and no law superior to the “positive laws of the state”
(Wu 1967, 342). As Bill Alford (1997, 10) points out, law in China always aimed
“to buttress rather than supersede” the state. Positive law was a tool of the state
and it did not have an existence as an independent and impartial arbiter of relations
between the sovereign and his subjects (Bodde and Morris, 1973; Zhiping 1988,
87). The emperor, after all, ruled with the mandate from heaven (tianming), which
concentrated extraordinary amounts of power in the police, judiciary, and other
institutions of the state. Transcription of Confucian thought into formal penal
codes enabled the development of a totalitarian and militaristic culture, produced
a merit-based bureaucracy, and resulted in a unified ideology, which has survived
into modern China (T’ung-tsu 1961).
Legal Codes of Imperial China: Legalized Confucianism
Historians concur that China’s imperial era began in 221 BC after the end of the
Warring States period (403–220 BC). The first emperor, Qin Shi Huangdi, is
generally credited with territorial consolidation, and developing a unified Chinese

state by standardizing and rationalizing bureaucracy, language, and legal systems.
The imperial era ended with the slow demise of the Qing dynasty in AD 1911.
One of the single most remarkable aspects of the imperial period is that the
continuity of legal codes and maintenance of the basic structure of the government
and bureaucracy from one dynasty to another were preserved, notwithstanding
conflicts, modifications, revisions, and additions by different emperors (Creel
1980, 26–55; Peerenboom 2002, 36). During the Qin emperor’s reign, legalism
became embellished with the ethical teachings of Confucius and achieved the status
of official orthodoxy. This process is referred to as “Legalization of Confucian
Thought,” “Confucianization of Law,” or “Imperial Confucianism” (Hucker
1959, 50). Confucian legal codes became highly prominent and the subsequent
dynasties carried forward these legalist foundations, Confucian ethical patina, and
totalitarian framework for governance established by the first emperor.
The sui generis aspect of China is embodied in the uninterrupted continuity
of Confucianism and imperial institutionalism. There is evidence to suggest that
techniques for trying law cases were developed during the Chou dynasty (BC
1122–256) (Cohen 1980, 9). The modern Chinese language (standard Mandarin)
still retains the scripts developed during the Chou dynasty to represent legalisms
such as litigation, accusation, and interrogation. Although positive law (fa) became
a common tool of social control and governance employed by various Chinese
emperors, they retained a critical Confucian trait—the principle of “legalized
inequality” (Bodde 1980, 137). This is one of the most recognizable attributes
of the legal continuity that was preserved for much of the imperial era and into
Mao’s chairmanship (1948–1976), albeit in the latter case in a different format
as a principle of “legalized differentiation.” During the Mao era, the principle
of “legalized differentiation” manifested itself in the form of class status. This
technique was singularly important in determining sanctions both during the
imperial and revolutionary era. Issues such as property disputes, marital discords
and divorce, inheritance and kinship relations were generally addressed within the
parameters of civil adjudication and informal mediation.
Criminal law fell exclusively within the formal realm of the imperial state.
During the peak of Qing rule (AD 1644–1911), civil codes demonstrated high
sophistication and the courts routinely handled civil cases on a variety of issues
that dealt with property, trade, and social relationships (Bernhardt and Huang
1994, 9). Qing laws were almost entirely borrowed from the Ming code of 1585.
The Tang dynasty (AD 618–907) passed on the structure of its police and judicial
system and legal statutes to the Five Dynasties (AD 907–960) and subsequently to
the Song dynasty (AD 960–1279) (Chen 1980, 170–172; McKnight 1987, 112).
Civil Law codes were relatively well developed during the Qing reign, but it is
unclear whether unambiguous and formal demarcation between civil and criminal cases
existed during the previous dynasties. It can be deduced that most civil cases were settled
through private mediations or by following the code of ethical conduct.
Imperial China relied on four types of legal documents: (i) statutes; (ii) edicts; (iii)
precedents; and (iv) on refined or clarified instructions (McKnight 1987, 113–7).
The importance placed on each of these legal documents varied from one dynasty
to another. For instance, clarified interpretations or private commentaries were
more common during the Qing period, but the tradition of placing considerable
importance on legal statutes (lü) was continued by all the imperial dynasties (Chen
1980, 170).
The penal codes of imperial China imposed sanctions based on the hierarchy of
the familial relations and social status of the perpetrator and the victim of a crime.
Social groups, such as the Mandarins or state officials, were highly privileged
and enjoyed special protections from prosecution compared to a commoner
(Creel 1980, 26). If a commoner committed a criminal act he was more severely
punished than an individual enjoying high social status. Specially, if a commoner
were to commit an offense against a high status person, the punishment could
range from execution to permanent exile. Similarly within a family, if the head
perpetrated an offense against a junior member he was punished less severely,
but if the roles were reversed and a son committed the same offense against his
father, the punishments were rather excruciating. Punishable crimes included
rebellion, disloyalty, desertion, parricide, massacre, sacrilege, impiety, discord,
insubordination, and incest (Chesneaux 1976, 34–7). As the list indicates, there
were three general categories of offenses: (1) crimes against the empire; (2) crimes
against the society; and (3) crimes against the family. The Han dynasty (206 BC–
AD 220) legal code contained more than 400 offenses that could be punished by
the death penalty (Finer 1997, 757). By the early 1800s, Qing rulers had developed
penal codes which dealt with general laws, military laws, criminal laws, civil
laws, and fiscal laws, covering 600 pages of an English translation by Sir George
Staunton in 1810 (Staunton 1966).
Charged offenders were subject to corporal sanctions such as caning with the
light or heavy end of a bamboo stick ranging from 10 to 100 strokes. The number
of strokes from the cane varied with the type and severity of the crime, and social
status of the offender. A combination of caning and exile was often used to make
atonement for the crimes. Permanent exile, in particular, was considered to be a
very serious form of punishment because it prevented a person from being buried
in their ancestral land; such denial is said to force the spirit to wander forever
without a final resting place (Chesneaux 1976, 35). In the case of heinous crimes,
the accused were often immediately executed; in other instances, the prisoner
was publicly executed either by strangulation or decapitation after a formal legal
review and pronouncement of a guilty verdict by the emperor (Chesneaux 1976,
35). The Chinese Emperor wielded final authority in ratifying death sentences and
granting clemency, but petitions were only entertained if the status of the offender
exceeded the status of their victim (Bodde 1980, 157). Simultaneously, another
distinguishable Confucian humanitarian influence was the inclusion of special
legal provisions for dealing with women, children, disabled, and the elderly
(Bodde 1980, 136–8).
On special occasions, China’s imperial rulers granted an assortment of

amnesties and engaged in “acts of grace” during which the emperor pardoned the
criminals and commuted their sentences and extended special benefits to reabsorb
criminals back into the society (McKnight 1981). Acts of forgiveness were an
attempt by the imperial rulers to periodically rely on their celestial powers to
cleanse the depraved and immoral individuals and provide them with a second
chance. The granting of amnesties also enabled the portrayal of the emperor
as merciful, just, and noble, and demonstrated the redemptive power of the
Confucian morality and humanitarianism. Imperial China’s rulers also relied on a
series of moral exhortations (li) to build virtue and loyalty among subjects. These
exhortations asked citizens to perform their filial and fraternal duties with due
diligence, encouraged generosity, promoted social harmony, instructed elders to
teach children rules of propriety and customs, required all individuals to abstain
from personal aggrandizement, and pay taxes without official urging (Fairbank et
al. 1965, 85).
Traditional legal positivism has had a long history; the concept of law played
a central role in the governance structure of imperial China. Unlike in Western
systems, the law in imperial China had broader connotations and it is intimately
associated with social practice, customs, and formal legality. The character
for positive law (fa) is formed using three elements: (1) a model or an ideal
representation; (2) stroke representing the flow of water, which captures the idea
of fairness and balance; and (3) a stroke representing linearity, which emphasizes
the notion of justice and veracity of the ruler (Mei 1932, 864). The law attained an
overt positive dimension as the administrative complexity of the various imperial
empires increased with time and population growth, and li—the moral code—
became a mere complement (Mei 1932, 866).
Imperial China, Western Powers, and International Law:

The Manchu Period
China’s understanding of international law is deeply influenced by its historical

experience with Western powers and by its Confucian roots. During the imperial
era, Chinese weltanschauung (worldview) was not adjusted to the idea of treating
maritime Western powers as sovereign equals, and according them the same
respect and treatment that visiting diplomatic envoys enjoyed in other European
capitals. Imperial China’s binary categorization of foreign states into tributaries
and barbarians made it difficult for the Qing imperial court to accommodate the
demands of customary European diplomatic practices, which required treating
visiting emissaries as coequals. The principle of coequality in international
diplomacy, which formed the basis of interaction among European powers, was
simply an alien concept to the imperial Chinese administrators.
European nations regarded modern international law, which resulted from
their common experience, as a mechanism to regulate relations among sovereign
nations. A state’s association with international law to a large extent depends upon
its relationship or sense of identity with the community of nations within which
it functions (Hsiung 1972, 13). But imperial China’s historical experience was
completely different; it had become accustomed and comfortable in its role as the
Middle Kingdom in which the Chinese emperor was at the center of the universe
and all power and wealth was thought to flow from the emperor. According to
imperial China’s hierarchical worldview, all other regions of the world were
fundamentally subordinate and they could never be regarded as a commensurate
power. This assumption and Qing China’s frustration with the European nations
for failing to recognize the emperor’s exalted position blinded the Manchu rulers
from recognizing that they were not dealing with “outer barbarians” who could be
easily eliminated.
Modern international law, as many legal scholars have pointed out, emerged
out of wars and diplomatic interactions among continental European powers and
the United Kingdom. The law that governed relations among sovereign states
was based both on customs and treaties negotiated to define specific aspects of
inter-state relations that were unique to the European nation state experience.
International law grew out of the customary interaction of European states, which
was predicated on the need for order, predictability, stability, and recognized
standards for official conduct of business among sovereign entities (Lissitzyn
1965, 68–71). Since modern international law emerged out of the practices of
European states, it retained its distinctive European cultural and diplomatic ethic.
When the international state system began expanding and when the colonial
empires of European powers began to grow, they increasingly came into contact
with East Asian kingdoms and empires that were based on a completely different
political order. Ascendant European powers attempted to spread their version of
state practices to East Asia, which amplified contradictions between European and
Asian powers.
Qing officials’ understanding of international law, particularly treaty-based
international law, developed under circumstances of coercion and from a position
of inherent weakness and vulnerability (Stearns 1999, 251–61). This Western
incursion into Chinese territories was the result of intra-European competition
for new lands and trading partners, which led them to discover new maritime
routes to previously unknown lands. Imperial China was highly reluctant to
engage with Western maritime powers and did not demonstrate any curiosity
or urgency in learning about their technology, governance, and legal systems
(Terrill 2003, 134). Much of Imperial China’s dealings with Western powers
were characterized by violence and war, in which the Chinese felt that they
had been forced into unequal bargains (Scott 1975, 17). Therefore, post-Manchu
governments were highly distrustful of international law and viewed it as a tool of
Western imperialism and conquest (Fairbank 1953). Initially the Western powers
were limited to small trading posts along the South China Sea coast. Foreigners
were confined to trading posts in places such as Fuzhou and Guangzhou; they
were forbidden from traveling to interior regions or intermingling with the
locals, and trading was conducted primarily through established Chinese trade
guilds called cohong (Grasso et al. 2004, 12).
The Guangzhou system was aimed at restricting political, cultural, and religious
influences of the Westerners. Qing governors hoped to deal with the Europeans as
they had dealt with the northern barbarians, by isolating the European powers,
specifically the British, and restricting their encroachment to the coastal regions
(Hsin-Pao 1964). This variation in the tribute system broke down when the British
traders achieved a near monopoly through the opium trade. A growing appetite
for opium, which enriched the British Empire and attracted more traders to China,
heralded the decline of the Qing dynasty. All treaties that China concluded from
1840 to 1890 are commonly referred to as unequal treaties. Prior to its dealings
with Western powers, Chinese emperors always dealt with client states that
bowed to the emperor and paid tithe and other gifts. China considered herself to
be unequalled and unrivalled in power and wealth, and the divine mandate from
heaven provided Chinese emperors with the right to rule over their subjects as
they deemed fit (Morse 1910). Before AD 1500, China’s contact with the external
world was limited; formal relations were restricted to its tributary states. When
contacts with Western governments increased, China was so imbued with the
superior–inferior relationship that the Manchu administrators expected Western
governments to accord the Chinese emperor the same deference and respect
shown by its tributaries (Cohen and Chiu 1974, 7). Many Western emissaries were
particularly opposed to performing the ritual act of kowtow before the Chinese
emperor. Western emissaries regarded the act of kowtow to be inappropriate
for receiving foreign dignitaries, and they also found Qing administrators’
unwillingness to allow permanent diplomatic missions in the capital city to be
rather puzzling and frustrating.
The unequal treaties conferred most favored nation (MFN) status on the
Western powers, fixed tariffs, and the ability to move commodities in and out of
China without the formal permission of the Chinese trade guilds or provincial
governors. Moreover, these treaties also gave Western powers extra-territorial
jurisdiction, that is, the power to try European citizens under Western civil and
criminal code and not under the prevailing Chinese penal system (Scott 1975, 18–
21). European states were able to carve out mini-fiefdoms along the South China
Sea coast. Negotiation of the MFN clause singularly weakened the bargaining
position of the Qing because the extension of MFN meant that imperial China
could not negotiate separate treaty agreements with other European states (Grasso
et al. 2004, 40). If a particular trade benefit was granted to one European country,
it had to be extended to all others. However, the Manchu mandarins did not view
granting MFN status to be a political blunder. Extension of most favored nation
status was conceptualized as a traditional dynastic policy of treating all “outer
The unequal treaties derived its name from the unequal concessions granted to the
Western powers by China because they were coerced through the use of military force.
barbarians” uniformly and keeping them content, fighting among themselves, and
out of central China.
Despite the deep distrust of Western legal principles, Manchu officials realized
the strategic advantages of learning and utilizing international law for the purposes
of negotiation. Two authoritative texts on Western international law—Wheaton’s
International Law and Vattel’s International Law—were translated into Chinese
(Hsiung 1972, 140). The translation process was apparently fraught with confusion
and misinterpretation of Chinese characters because Qing administrators could
not comprehend concepts such as sovereignty and territorial jurisdiction, since
such notions did not exist under Confucian legal order (Hsiung 1972, 139).
To overcome these technical difficulties the Manchu emperor established a
centralized foreign office in 1861 to translate Western legal materials and train
Chinese officials in international law (Cohen and Chiu 1974, 7). China attempted
to apply international law in its disputes with Japan in 1874, but it was not as adept
as Japan in manipulating international law (Cohen and Chiu 1974, 9). China’s
major international legal dispute began when some local Chinese killed Japanese
merchant sailors. Japan criticized China for its inability to protect foreigners in
Chinese territory and sought extraterritorial protection for its nationals, but Qing
dynasty’s Prince Kung failed to understand the nuances of extraterritoriality and
extradition laws. This proved to be particularly costly in the long run. Imperial
Chinese administrators failed to utilize international law to its fullest extent because
it appeared to emphasize issues that seemed trivial. Ceremonial matters such as
the formal presentation of diplomatic accreditation and audience with the emperor
without kowtow slighted Manchu officials, whereas they seemed relatively less
concerned about tariff restrictions, consular jurisdiction, and most favored nation
privileges (Hsiung 1972, 139). This and other experiences reinforced the general
feeling among Manchu officials that international law would never be applied
even handedly vis-à-vis China because of its weak bargaining position. Manchu
officials did not fully comprehend how international law is deeply intertwined
with European realpolitik, which emphasized the value of territorial rights,
sovereignty, and national interests. The inability of Manchu officials to grapple
with the nuances of international law, the complexities of European politics, and
the Chinese officials’ clumsy efforts to accommodate international law within the
bounds of Confucian order led them to conclude unequal treaties that tipped the
balance in favor of the Western powers (Tung 1940).
Legal Reforms: The Republican and the Nationalist Eras
The Qing dynasty’s reign formally ended in 1911 with the Imperial Edict, which
resulted in the abdication of the throne by the child emperor Puyi. Before the
collapse of the Qing dynasty, a Law Commission was established to codify and
modernize Chinese law and bring it into conformity with Western jurisprudence
(Lee 1969, 134). The idea of legal reform was mooted by Qing ministers to end
the practice of extraterritoriality, which disallowed Westerners from being tried in

Chinese tribunals (Li 1978, 20). Reformation of the Chinese legal system began as a
component of the formal renegotiation of China’s commercial treaties with foreign
nations (Cheng 1924, 283). Principally, reformation of the Chinese legal system
was targeted to end the practice of extraterritoriality and special considerations for
treating Western dignitaries. Extraterritoriality was dictated by the Western powers
as a primary component of the unequal treaties because Chinese laws were thought
to be primitive, unsophisticated, barbarous, and unsuitable for Western denizens
of China. Specifically: (1) the concept of collective or joint responsibility, which
imposed punishments on relatives, neighbors or superiors at work for the actions
of a criminal; (2) magistrates were allowed to impose punishments at will through
the publication of new edicts; (3) the liberal use of capital punishment even for
minor offenses; (4) reliance on judicial torture to obtain forced confessions both
from the accused and witnesses; and (5) widespread corruption that delayed
administration of justice and deterred foreign powers from subjecting its citizens
to the Chinese judicial system (Keeton 1937, 197; Lee 1969, 136). The principle
of extraterritoriality, which allowed the practice of Western laws within Chinese
territory, was thought to highlight the backwardness of China. The Imperial Law
Codification Commission was established in 1904 with drafting assistance from
American, European, and Japanese legal experts to refashion and modernize
Chinese law by reforming and systematizing the judicial structure and its austere
penal code (Keeton 1969). Reform efforts principally focused on abolishing
the antiquated Qing laws on topics such as sale of persons and simultaneously
reducing the number of offences that could be punishable by the death penalty,
discontinuing the practice of relying on harsh corporal punishment, and limiting
dependence on judicial torture to extract confessions (Cheng 1924, 286).
After the inauguration of the new Chinese Republic in 1912, Dr Sun Yat-
Sen sought to place China among the group of legitimate and “civilized nations”
of the world (Cohen and Chiu 1974, 13). Reorganization and overhaul of the
Chinese judicial system was planned even before investiture of the new Chinese
Republic. A series of legal orders—Provisional Regulations of the High Courts
and the Subordinate Courts (1907), Law of the Organization of the Judiciary
(1909), and the Provisional Criminal Code (1909)—were promulgated (Keeton
1937, 197; Lee 1969, 198). The objectives of these resolutions were to create a
tiered system of courts—Supreme Court, High Court, District Court, and Local
Court—with a built-in appeals system, train Chinese judicial officers in Western
juridical principles, establish a professional bar, increase the output of lawyers and
legal scholars, and develop a tradition of judicial impartiality and independence
(Keeton 1938, 210–1). The Imperial Law Codification Commission issued a new
criminal code in 1912 and undertook further revisions in 1914 and in 1921. In
addition, the Republican government began Constitutional reforms in earnest and
a new Constitution was announced in October 1923 and it was revised again in
1925 (Keeton 1937, 197; Lee 1969, 201).
Sun Yat-Sen’s goal was to create a unitary republic with a Parliament. But
progress in amending Chinese law to bring it in conformity with Western law
was unsuccessful because the influence of the Republican central government
did not extend beyond the coastal provinces, and the unremitting civil war and
political disruptions did not allow for any sustained implementation of legal
reforms (Lee 1969, 137). Besides, many of the provinces were unwilling to break
away sharply from their imperial legal past and traditionalists resented uprooting
China’s historical traditions and replacing it with an alien legal system. Traditional
Chinese law, which was based on Confucian thought, ancient customs, harsh penal
measures, and modern versions of Chinese law introduced by the new Republic—
derived from German, Japanese, Swiss, English, and French civil and criminal
codes—seemed incompatible.
The provincial governors and judicial officers were unfamiliar with the new
codes and found them to be unsuitable for effective domestic governance or
suppressing political unrest and widespread crime. Even in the major urban centers,
transition to modern courts seemed difficult. When Kuomintang nationalists
took control of China in 1928, legal reforms suffered further setbacks as China
increasingly leaned towards the dictatorial Soviet model of law and government.
Overall, legal reforms attempted during the Republican and Nationalist periods
failed to have any meaningful impact on Chinese political or legal systems because
of chronic civil rebellions, political uncertainty, Japanese aggression, the Second
World War, and the meteoric rise of the Chinese Communist Party (CCP). Neither
the Kuomintang nor the Republicans were able to pursue Sun Yat-Sen’s ambitious
goal of modernizing China by drawing inspiration from Western legal thought.
The opportunity for legal reforms during the interregnum between the fall of the
Qing dynasty and the birth of the People’s Republic of China was not effectively
used. With the ascendancy of Mao Tse-Tung and the Communist Party, Chinese
legal reforms underwent another radical reorganization. This time revolutionary
China sought all its inspiration from the Stalinist totalitarian model within an
imperial overlay.
People’s Republic of China: Rule by Man Over Rule by Law
Marxist ideology and the aspirations to build a bottom-up totalitarian state

led China’s communist leaders to de-emphasize law, lawyers, and rights as
conceptualized by the Kuomintang politicians. None of the top leaders of the CCP
had any formal training or practical experience in law and there was no impetus
to develop strong legal institutions or produce lawyers (Li 1978, 20–1). Mao
and senior Communist Party leaders were acutely sensitive to the criticism that
traditional Chinese law was backward; but they did not want the new revolutionary
state to adopt Western legal methods because of their disdain for its capitalist
foundations. Mao’s imprint on the post-1949 approach to law was unmistakable; it
retained a distinctive socialist anti-elitist character with mass appeal.
As one of its first acts, the Chinese Communist Party abolished the set of laws
introduced by the Kuomintang government, and started creating a new system of
people-oriented socialist laws (Peerenboom 2002, 44). Yet, during the immediate
post-revolutionary period, the CCP operated in a legal institutional vacuum
(Ginsburgs and Stahnke 1964, 2). Justice was carried out on an ad hoc basis in
the form of mass trials, special tribunals, and large-scale political campaigns
against class enemies, capitalists, landowners, and petty criminals. Party cadres
determined the prevailing mood among the higher echelons of the party in passing
judgments; in situations where laws were unclear or nonexistent, the cadres simply
imposed their own brand of justice (Peerenboom 2002, 47). From 1949 to 1953 the
Chinese legal system reflected Mao’s mass line approach, which sought to obtain
and incorporate ideas and views of the masses or the proletariat into policymaking
and legal work (Lubman 1967, 1284).
Formal and elaborate legal institutions were eschewed in favor of the informal
and direct campaign method that had catapulted Mao to power, who held a strong
anti-bureaucratic bias and preferred localized means of preserving social order
based on mediation, education, criticism, and flexibility in conducting political-
legal matters (Leng 1977, 357). The CCP leaders wanted to sustain their objective
of building a people-oriented socialist government that sustained contact with
its mass rural base (Tao 1974, 713). Chairman Mao believed that an overarching
legal structure and detailed penal codes were unnecessary and that the Party could
mobilize and marshal individuals to pursue the collectivist goals of the newly
created Chinese state. Put another way, one could argue that Mao seemed to have
more faith in socialist li or socialist morality, instead of fa or state backed positive
law. The similarity between Confucian and socialist morality is particularly
striking because both systems relied heavily on “persuasion and education rather
than on force, and upon the use of social pressure rather than governmental
power” (Li 1970, 74). As in the Confucian social order, class status and privilege
were important in determining sanctions in the Maoist social order, but now the
economic hierarchy was reversed.
The class backgrounds of peasants and rural workers were highly privileged
over other economic groups, especially landowners, capitalists, and petty
bourgeois. Overt class-based character and the mass-line campaign approach was
an idiosyncratic feature of the communist legal structure. Law was viewed as a
social tool to make the masses “conform to the communist-party-dictated policies”
(Chiu 1966, 247). The study and practice of law was not considered to be a “major
social achievement and a symbol of rectitude,” instead it was considered to be a
regrettable necessity (Cohen and Chiu 1974, 17). Chinese legal theory developed
during the Mao era viewed “law as tool of the ruling class placed in the service of
politics and rejected sharp differentiation among judicial, legal, and administrative
processes” (Lubman 1999, 88). Law was principally regarded as an instrument of
state power to regulate the behavior of individuals who had not submitted to other
means of social control.
In the Western legal systems, laws are defined by a set of authoritative rules
legislated by the state through the political process. Such rules and regulations
are understood and relied upon by legal professionals in the conduct of social,
political, and economic affairs, for deploying judgments against individuals who
commit crimes, for settling disputes in the society, and for settling any disputes
between the state and the individual. In the Western context, the application of
law is divorced from day to day political vicissitudes and the judiciary functions
independently without direct interference from political leaders. There is a distinct
demarcation among the different branches of the government—framers of law
(legislators), enforcers of law (police), and interpreters of law (the judiciary). The
judicial branch is charged with the application and interpretation of law based on
jurisprudence and on the merits of each case presented to the court. During the
Mao era there was no separation between Party and State, and there was little
institutional autonomy among framers, enforcers, and interpreters of law (Dickson
2003; Zheng 2004). Formal separation and independence among the different
agencies of the government was thought to be unnecessary. Shen Chün-ju, the
former President of the Supreme People’s Court, suggested that law and judicial
work “must serve political ends,” and it “must be brought to bear on current
political tasks” (Chiu 1966, 247). Law and politics during Mao’s rule became
inseparable from one another philosophically, institutionally, and operationally.
As Victor Li (1970, 9) puts it, China’s communist leaders failed to understand the
importance, nature, and utility of law in developing a robust society.
From 1953 to 1957, there was a brief flurry of experimentation in the
development of constitutional and juridical models. But, this development came to
an abrupt end with the launch of the Anti-Rightist Campaign to counter the growing
criticisms from the Hundred Flowers Campaign. Legal reforms and institutional
development suffered a serious setback with the launching of the Anti-Rightist
Campaign and it worsened with the inauguration of the Cultural Revolution. At
the start of the Cultural Revolution, Mao promoted the notion of kung-chien-fa—a
complete smash of public security, procuratorate, and judicial organs (Leng 1977,
356). Mao also called on the nation to “depend on the rule of man, not the rule of
law” (Leng 1977, 356). Legal institutions such as the Ministry of Justice and the
Procuratorate were abolished, and the courts functioned sparingly. The Chinese
Communist Party increasingly relied on revolutionary committees and the military
to conduct mass trials, public judgment meetings, and struggle sessions (Leng
1977, 360; Tao 1974; 714–15). The establishment of “joint-work groups” and
the running of local study groups allowed the Party to control all aspects of law-
making and law enforcement operations. Party cadres relied on their personal
discretion to sentence individuals to reform by labor (Tao 1974, 749).
In the West, it is generally understood that a legal system should be devised in
such a manner that its primary task is to determine validity of individual claims
(or rights) against other individuals and those between the state and the individual.
Such a conception of law in China, especially during the peak of Mao’s rule, was
considered to be “rightist heresy” or “bourgeois law,” which was inconsistent with
the principles and goals of the socialist system (Chiu 1966, 247; Hsiung 1972b,
13–14). Red Guards attacked the bourgeois system of “equal justice”, the idea
of providing defense counsel or rights of formal legal representation to every
individual, and they succeeded in launching vitriolic broadsides against counter-
revolutionaries for opposing the supremacy of the Communist Party over all matters
of state policy. The Cultural Revolution was a period of unrestrained radicalism
that destroyed the formal legal bureaucracy, legal publications were suspended,
and legal scholars and jurists were either forced underground or banished to labor
camps for re-education (Peerenboom 2002, 44–5).
Four basic characteristics defined the Maoist legal structure. First, class
background determined the guilt of individuals before the law. Second, law was
treated as a tool of social engineering and mass mobilization. Third, formal legal
institutional structure was thought to be wasteful, bureaucratic, and alienating.
Fourth, legal work was thought to be ideologically inseparable from the political
process. Mao’s word overrode the written Constitution and other legal documents.
His position within the communist empire and his word was similar to imperial
Chinese emperors, wherein rulers were considered to be above the law and
their word represented the will of the state. Despite various political upheavals,
leadership changes, and ideological revolutions, one of the most remarkable
features of Chinese civilization is its administrative continuity. An overarching and
unimpeachable political authority always enforced public order (Schwartz 1987,
1–10). Chairman Mao governed by relying on a mixture of “neo-legalism” and
“neo-Confucianism” (Terrill 2003, 134). Much like the earlier imperial dynasties,
the Maoist legal apparatus functioned primarily as a penal tool of regulation. But,
more importantly, under Mao’s chairmanship, legal order assumed an extrajudicial
disposition and a doctrinal character. Communist China under Mao reverted back
to its imperial heritage in which the emperor ruled by fiat.
The Concept of Individual Rights in Revolutionary China
Socialist and Maoist thought mixed with historical Confucianism constitute

significant influences in the design of domestic law in China. Communist China
placed enormous emphasis on the idea of collective interests and stressed the role
of collectivism in addressing the welfare needs of its citizens. The communist
regime believed that individual rights and interests needed to be subordinated to
the wishes of the party state (Peerenboom 1993, 33). The CCP took it upon itself
to promote proper modes of behavior not through the establishment of a legal
system, but through relying on mass propaganda. Chinese nationals were expected
to learn socialist morality and internalize values and norms propagated by the
CCP and faithfully follow them (Li 1970, 73). When internalization failed, social
pressure was exercised and when social pressure failed, enforcement was handled
at the community level (Li 1970, 73). Unfortunately the boundaries separating
learning, internalization, exertion of social pressure, and communal enforcement
often collapsed onto each other. Formal separation of these socio-legal processes
existed only in discourse. Excessive importance placed on collective interests
reflected the influence of Confucian thought on the development of the Chinese
legal system. Notions of law and order contained in Communism were analogous
to Confucianism because both privileged collective welfare over individual rights,
and favored the state over the individual (Weatherley 1999, 102). More importantly,
it was believed that collective welfare could only emerge if individual rights and
freedoms are subordinated to the objectives of the party state.
Every version of the Constitution of the People’s Republic contained a clause
that points out that the exercise of rights by citizens of China “may not infringe
upon the interests of the state, of society, and of the collective” (Dethier 2006,
377; Weatherley 1999, 103). This clause also stipulates that the PRC government
may at any time suspend the practice of individual rights, if such rights are
perceived to be detrimental to the interests of the state and realization of collective
welfare (Haocheng 1995, 93–115). The exercise of individual rights is permitted
only as long as it does not threaten collective interests as identified by the party
state. According to Confucianism, the exercise of rights must be governed by
its essential goodness of purpose determined by personal morality. Under the
communist system, boundaries of right and wrong were loosely demarcated and
the parameters of “right” and “wrong” were continually modified without any
advance warning. The element of choice offered by Confucian ethnocracy was
completely amputated in the communist social order.
Various Chinese constitutions give absolute authority to the CCP because
the party state alone was thought to have the right to determine and define both
collective and individual interests (Peerenboom 1993, 33; Randle et al. 1986,
144). Emphasis was laid on “class struggle” and rights were accorded only to the
proletariat and other class allies; class opponents such as feudal landlords and
bureaucratic capitalists were to be attacked and denied any rights because their
actions were considered to be in opposition to collective welfare (Weatherley
1999, 111). Similar to the Confucian system, which emphasized collective interests
over personal objectives, the communitarian objectives of the Communist Party
viewed collective goals to be of paramount importance. To have too much liberty
or rights was considered to be harmful to the individual and society because it had
the potential to produce social disharmony. Nevertheless, the idea of collective
interests promoted by Mao was much more rigid, narrow, and doctrinaire compared
to the Confucian social order.
Under Mao, the Party dominated every aspect of social and political life
and it retained the power to grant and withdraw rights as it pleased. During
China’s Constitution has been reorganized four times—1975, 1978, 1982, and
1999—after it was first introduced in 1954. The 1982 Constitution was amended in 1988
and 1993.
Presently the CCP commands the government, but it has ceded significant control
over various policymaking areas to non-party actors (see Tanner 1994, 381–403).
the Anti-Rightist Campaign and the Cultural Revolution, party elders exercised
extraordinary and arbitrary power over ordinary Chinese through the coercive
mechanisms of the state. The Communist Party systematically identified and
punished those thought to be pursuing individual interests over the interests of
the collective through re-education camps, hard labor, and intense sessions of
self-criticism. The concept of “individual rights” was fundamentally incompatible
with Mao’s China. Unlike liberalism, which propounds that “individual rights” are
fundamental and inalienable and that they are grounded in the innate moral worth
of the individual, Chinese intellectuals refute the idea of natural rights and innate
rights of the individual (Chunde and Yunhu 1982, 66–76). Chinese discourse
on individual rights does not concur with the idea that rights are individualistic,
innate, and natural (Weatherly 1999, 118). In the Confucian ethical scheme, an
individual’s worth is determined by his or her social role and contribution to the
society, whereas according to Maoist orthodoxy, rights can be only conferred
or granted by the state (Chunde 1982; 32–6). Confucian social order, however,
allowed more freedoms, mainly in the area of personal attire, accumulation of
wealth and property, art and music, and in other areas of social life as long as the
supremacy of the emperor was not challenged and taxes were regularly paid. During
Mao’s rule, every form of individuality and economic choice was subordinated to
the prevailing state ideology. Every right, every action, and every thought flowed
from the state; from 1949 to 1979 the Chinese state developed into a domineering
institution enveloping all aspects of social, economic, and political life.
Communist China and International Law
Imperial China’s complicated relationship with international law and the People’s
Republic of China’s doctrinal assessment of law as an instrument of suppression
by the dominant classes led the People’s Republic to assume an antagonistic
position towards international law and international organizations. Nevertheless,
Communist China’s leaders were savvy enough to realize that they could not
afford to completely dismiss international law or isolate themselves as the Qing
mandarins once did. Mao eagerly sought the People’s Republic of China’s
formal international legal recognition by other nations (Hsiung 1972, 54). CCP
leadership grasped the utility and importance of depending on international law
to address numerous outstanding territorial and border issues with its neighboring
states. The official CCP position towards international law was an amalgam of
Marxism–Leninism–Maoism accompanied by resurgent nationalism, and a strong
articulation of state sovereignty, which reflected the prevailing political mood
within China (Tzou 1990, 7). The Chinese view of international law concurred
with the Soviet model, which characterized international law as a special branch
of law that expresses “the agreed will of a number of states,” which should seek to
promote foreign policy and national objectives of the state (Chiu 1966, 248).
At the level of day to day diplomatic action, China recognized the existence
of international law and it relied on international law to conduct routine external
relations, such as the exchange of foreign counsel, diplomatic missions, bilateral
treaties, and consular activities. References to international law were included in
translated legal texts; the People’s Republic condemned the actions of other states
employing international law; it relied on international law to resolve territorial
disputes with its neighbors and other states; and offered courses in international law
in institutes of higher learning (Chiu 1966, 247). But the Chinese government was
especially wary of customary international law and expressed strong reservations
regarding the universality, generality, and applicability of international law to
all situations; hence, international relations were almost exclusively conducted
through treaty-based law (Christol 1968, 463). International law was perceived
as an instrument to settle differences among nation states and provide a protocol
for conducting mutual business. Doctrinally speaking, however, international
law presented a special challenge because China’s Soviet-trained foreign policy
analysts and legal scholars had trouble accepting the fact that international law
was universal and that the same set of laws governed relations among socialist
and capitalist countries (Chiu 1966, 252; Hsiung 1972a, 19). Chinese academics
such as Lin Hsin, Ho Wu-Shuang, and Ma Chun suggested that international law
should be separated into “bourgeois law” applicable only to capitalist countries
and “socialist international law” applicable only to relations governing socialist
states (Hsiung 1972a, 17). China’s legal thinkers argued that international law as
practiced by the Western powers was bourgeois in character and that it was a tool
of the capitalist, which had no place among socialist nations that followed the
science of proletarian international law aimed at ameliorating the welfare of the
struggling masses (Christol 1968, 463).
Revolutionary China’s new leaders harbored deep skepticism about international
law because of the historical experience with unequal treaties, colonialism,
and apprehension that international law was being deployed as an imperialist
tool to influence China’s socialist character. The expansion and deepening of
international law was characterized as a cynical attempt by Western powers to
expand their class interests, acquire new territory, and oppress emerging nations
(Shaw 1997, 32). Chinese scholars argued that relations among states should be
determined on the basis of absolute sovereignty, true equality, and complete non-
interference in internal affairs (Shaw 1997, 33). In various international forums
China’s diplomats proclaimed the importance of respecting the sanctity of national
sovereignty and free will of all states to determine their political, legal, and
economic systems without external interference. Human rights regimes promoted
by Western nations, especially by the United States, and its excessive emphasis
on civil and political rights and individual liberty were perceived as a deliberate
policy of targeted hostility towards China. During the peak of Chairman Mao’s
rule, human rights vocabulary completely disappeared from public discourse
in China (Leng and Chiu 1985). The Communist Party dismissed international
human rights “as a bourgeois slogan,” which lacked any relevance to socialist
objectives (Svensson 2002, 221). Party elders rejected the universality of human
rights norms. This rejectionist policy was in many ways similar to other post-
colonial nations, which also gravitated towards socialism, communism, and state-
centered developmentalism accompanied by strident nationalism, anti-colonial
rhetoric, and denunciation of capitalism.
In Mao’s China, party and state meshed together as the central institution
representing the collective interests and common will of the people; CCP
ideologues believed that economic, political, and social development could be
sustained only by the state, which was indistinguishable from the Communist
Party. Individuals who privileged personal gains over collective welfare were
chastised as counter-revolutionaries seeking to subvert communitarian objectives
of the state. Subversion of communitarian goals was a punishable offense and the
state declared that it had the right to “discipline” anyone seeking to challenge its
pre-eminence. Collectivist ideals drawn from Marxist and Maoist teachings were
easily reflected in China’s rejectionist and isolationist international posture and
resonated through its anti-Western and anti-colonial pronouncements. The People’s
Republic of China became an ardent advocate for communist and socialist regimes
in the developing world.
International human rights law, which seeks to regulate relations among
individuals within the territorial jurisdiction of a state, and relations between
individuals and the state, has been particularly problematic for China. Notably,
the disproportionate emphasis of Western powers on the International Covenant
on Civil and Political Rights (ICCPR) was viewed as a political ploy to gradually
dismantle the communal ideals of the Chinese state. The Chinese government
also adopted a dualist position towards international law, in which municipal
(domestic) law and international law are said to operate in mutually independent
domains without any formal influence on each other. Endorsement of the dualist
position on international law enabled Chinese diplomats to argue that international
human rights did not have any locus standi or bearing on its internal laws of China
because they functioned in two separate spheres of influence.
Economic Reform and China’s Participation in Human Rights Conventions
Key events that occurred in the middle of 1970s elicited increasing international
scrutiny of China’s human rights policies. The death of Mao Tse-Tung in 1976, the
subsequent arrest of the “gang of four,” and the return of Deng Xiaoping to power
signified a critical turning point in modern Chinese history (Terrill 2000). Mao’s
death and the capture of the “gang of four” increased the flow of information
emerging from China, which chronicled the excesses and gross human rights
abuses committed during the Cultural Revolution (Svensson 2002, 235). The
rehabilitation of political prisoners who suffered during the Cultural Revolution
generated renewed enthusiasm in restructuring the Chinese legal system that
culminated in the adoption of a new Constitution in 1978, which significantly
modified the radical tone of the 1975 Constitution. A new criminal code was also
promulgated in 1979 (Svensson 2002, 236). Deng Xiaoping initiated a process of
economic modernization, which encouraged the private accumulation of wealth
and individual property ownership and the government began to divest its holdings
in certain industrial sectors.
During the early part of the 1970s, human rights emerged as a major global
policy issue accompanied by democratization and economic liberalization. The
United Nations made human rights a dominant theme with the creation of the Sub-
Commission of Human Rights. The United States under the Reagan administration
(1980–1988) began a campaign to promote freedom, democracy, and human
rights in an effort to influence communist regimes in Eastern Europe and in the
developing world. Previously, the Carter administration (1976–1980) had made
human rights a central component of American foreign policy. In 1979, the United
States Department of State began publishing its Annual Report on Human Rights
and China featured prominently in many of these reports as a country with a poor
human rights record. China’s human rights practices also attracted the attention
of non-governmental human rights organizations (NGOs) such as Amnesty
International (AI), Human Rights Watch (HRW), and Human Rights In China
(HRIC) (Wan 2001, 3). Meanwhile, Beijing also demonstrated a renewed interest
in breaking out of its self-imposed isolation. It began by establishing diplomatic
ties with the United States and many other countries, while joining different human
rights bodies in the United Nations.
In the early 1980s, China started to participate in major human rights
conventions, such as the Torture Convention that China ratified in 1988, less than
a year before the Tiananmen Square massacre. During the decade of the 1980s,
China signed and/or ratified seven different human rights treaties (see Table 6.1).
This change in behavior towards the human rights regimes seemed to coincide
with reformist economic policies introduced by Deng Xiaoping. In addition,
these efforts were aimed at placating international criticism, while simultaneously
deepening China’s economic reform for which the country required international
assistance. Reorganization of the economy, deregulation of state ownership, and
the steady inflow of foreign direct investment produced a series of interactions that
caused unintended consequences for the Chinese legal system and impacted the
human rights discourse in China. Economic liberalization had an inevitable impact
on the political structure because of the introduction of the free market economic
model, however restrained, led to greater emphasis on individual freedoms in
economic decision-making rather than on collective welfare and selflessness,
which were the long-standing ideological underpinnings of the Communist Party
(Kent 1993; Saich 1989).
Economic liberalization, nevertheless, did not automatically translate into
greater political openness or an increase in civil liberties for Chinese citizens.
According to Article 51 of the 1978 and amended 1982 Constitutions, the Party still
retained the ultimate authority to grant and rescind “rights” as it deemed appropriate
(Weatherley 1993, 118). Both Mao and Deng were equally fearful of any organized
Table 6.1 Human rights conventions entered into by China

1 1948 Convention on the Prevention and Punishment of the Crime of Genocide Jul-20-49 Apr-18-83
2 1951 Convention Relating to the Status of Refugees Sep-24-82
3 1967 Protocol Relating to the Status of Refugees Sep-24-82
4 1954 Convention Relating to the Status of Stateless Persons
5 1961 Convention on the Reduction of Statelessness
6 1953 Convention on the Political Rights of Women
7 1926 Slavery Convention Apr-22-37
8 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others
9 1953 Slavery Convention, Signed at Geneva on September 25 1926 and Amended by the Protocol
10 1953 Protocol Amending the Slavery Convention Signed at Geneva on September 25 1926
Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar
11 1956
to Slavery
12 1957 Convention on the Nationality of Married Women
13 1962 Convention on Consent to Marriage, Minimum Age for Marriages
14 1966 International Covenant on Civil and Political Rights (ICCPR) Oct-5-98
15 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR) Oct-27-97 Mar-27-01
16 1966 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) Dec-29-81
17 1966 First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR-OP1)
18 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity
19 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid Apr-18-83
Table 6.1 continued Human rights conventions entered into by China

20 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) Jul-17-80 Nov-4-80
21 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) Dec-12-86 Oct-4-88
22 1985 International Convention Against Apartheid in Sports
Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition
23 1989
of the Death Penalty
24 1989 Convention on the Rights of the Child (CRC) Aug-29-90 Mar-2-92
International Convention on the Protection of the Rights of All Migrant Workers and Members of their
25 1990
Families
26 1998 Rome Statute International Criminal Court (ICC)
27 2002 Agreement on the Privileges and Immunities of the International Criminal Court
28 1999 Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women
Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and
29 2000 Jul-5-00 Dec-23-02
Child Pornography
Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed
30 2000 Sep-6-00 Dec-3-02
Conflict
Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
31 2002
Punishment
Source: UN Treaty Series and UN High Commissioner for Human Rights (all data accurate as of December 2008).
dissent, newspaper articles critical of CCP rule, and activities that contradicted or
questioned the usefulness of public policies (Kent 1999, 31). Formal expressions
of dissent particularly in public spaces were viewed with the same apprehension
and alarm that the Democracy Wall movement (1978–1980) generated. The period
from 1978 to 1982 was an intellectually vibrant period because the Democracy
Wall movement spawned a serious debate on China’s political future. The Deng
government was intolerant of criticisms and in many ways encouraged the
democracy movement to spread only because it allowed Vice-Premier Deng to
use the protests to oust Mao loyalists and old guard conservatives, consolidate
his own power within the Communist Party, and promote his vision for China’s
modernization. Deng referred to his reform policies as the “four modernizations,”
which involved the modernization of agriculture, industry, science and technology,
and the military (Kent 1999, 33–6; Svensson 2002, 236). When Wei Jingsheng, a
Beijing electrician, wrote an article titled What Do We Want: Democracy or a New
Dictatorship in which he criticized Deng Xiaoping pointedly, the Democracy Wall
movement crossed a critical threshold (Seymour 1980). Democracy activism was
permitted as long as it suited Deng’s attempt to consolidate his political power, but
when the movement turned against Deng, it became a threat to his policies and
political survival (Goldman 1999). Vice-Premier Deng and the Communist Party
did not hesitate to crush the Democracy Wall movement and reassert his political
authority.
Viewed through the Confucian moral prism, the democracy activists had crossed
the moral barrier that divided good from bad, which opened them to sanctions from
the state. Deng believed in four basic principles: (1) economic development and
political stability should be the primary goal of the nation; (2) only the party has
the ability and capacity to lead China to success; (3) the authority and legitimacy
of the party are supreme; and (4) Western-style democracy is unsuitable and
unworkable in the Chinese political context (Wan 2001, 23). Deng’s principles
formed the basis of China’s new reform policies, which placed paramount
importance on economic welfare and subsistence rights over civil and political
liberties. Achievement of economic welfare was considered to be the necessary
first step towards the realization of political or individual rights. According to the
White Paper on Human Rights published by the PRC government, “safeguarding
and promotion of the people’s rights to subsistence and development” is the
principal human rights concern (The People’s Republic of China 2000). Economic
welfare took precedence over all other rights, especially civil and political liberties.
Democracy was conceptualized as socialist democracy that emphasized the
collective aspirations of the people and the nation and individual liberties, political
freedom, and democracy were portrayed as bourgeois rights that are inconsistent
with the aspirations of the Chinese people (Feng 1995, 135).
The Democracy Wall movement, unlike other democracy movements, such as
the short-lived and spontaneous effort to commemorate and mourn the death of
Zhou Enlai in 1975, was one of the few efforts that continued for a relatively long
period of time largely because it suited the political goals of the party. However,
other freedom and democracy movements that emerged after 1983, including the
massive Tiananmen Square gathering in 1989, were ruthlessly put down because
all these mass movements constituted direct challenges to the supremacy of the
Communist Party of China and to the elite leaders who control the levers of power.
Today, however, Chinese citizens enjoy unparalleled personal freedoms both in
economic and social arenas, but civil and political liberties and judicial rights still
remain seriously circumscribed.
Human Rights and Rule of Law: International Pressure Linkages
After Deng’s assumption of power in 1978, China’s record on human rights was
subordinated to Cold War politics (Cohen 1987; Shirk 1977–1978). China’s
support in the United Nations was crucial to counter-balance the Soviet Union and
its satellite states. Besides, China was engaging in active human rights diplomacy
by playing off the United States and the Soviet Union against each other. China
entered a series of human rights treaties in the 1980s, and it also participated in the
United Nations multilateral human rights monitoring efforts by joining the United
Nations Human Rights Commission (see Table 6.1). In 1984, China nominated a
representative to serve on the panel of experts of the Sub-Commission of Human
Rights on the Prevention of Racial Discrimination and Protection of Minorities
(Cohen 1987, 537). China also supported the United Nations resolution for sending
a special human rights monitoring group to Afghanistan. Despite protests from
the former Soviet Union, it also endorsed the move to investigate human rights
violations in Chile (Kent 1999, 43). China also shifted its strategy from absenting
to abstaining when human rights issues came up for a vote in the United Nations
General Assembly.
Since China’s entry into the United Nations Human Rights Commission in
the early 1980s, Chinese diplomats have diligently attended almost every session
of the Human Rights Commission and the Sub-Commission (Kent 1995, 8).
During these meetings, China’s human rights concerns largely centered on issues
such as the right to self-determination, elimination of racial discrimination, and
discrimination against women (Kent 1995, 7). The primary task of Chinese
diplomats attending these sessions was to represent the official Chinese position
on human rights, which was often at odds with the broader human rights discourse
because it focused intently on the issue of individual rights and on guaranteeing
physical integrity of the human being. Although China seemed to recognize the
international legitimacy of United Nations human rights organizations, it expressed
considerable reservation over what it characterized as the politicization of human
It needs to be noted here that the United Nations Commission on Human Rights is
composed of national governments and it is a political body, whereas, the Sub-Commission
is composed of independent experts who are elected on a regional basis to represent the
different regions of the world.
rights, expressed concerns about erosion of state sovereignty, and chided Western
powers for their excessive focus on civil and political rights and their attempts to
push these rights upon developing nations (Kent 1995, 9).
Chinese diplomats have registered strong objections over the interference of
international human rights organizations into the internal matters of sovereign
states and consistently objected to the United Nations’ policy of incorporating
NGO reports into formal United Nations reports produced by the Human Rights
Commission. Deep concerns have been expressed regarding how human rights
NGOs operating through a network of informants inside China were able to gather
information about human rights practices, embarrassing the Chinese government
in international forums. Chinese diplomats are particularly distressed that the
United Nations had accepted the veracity and authenticity of these reports in effect
chastising China’s human rights policies in formal United Nations publications and
in other public forums by relying on data gathered through unofficial sources.
Both at the domestic and international levels, China’s human rights policies
have reflected Deng’s philosophy of maintaining the dominance of the Communist
Party. Punishing dissidents and criminals without any regard for their human rights
is considered to be within the prerogative of the Chinese state. At the domestic
level, a citizen-led democracy reform movement was allowed to flower for a few
years as this policy suited the purposes of the ruling elite. In fact, the domestic
human rights and democracy movement was manipulated to discredit Mao
loyalists and isolate them from centers of power. At the international level, as long
as attention was primarily focused on the former Soviet Union during the Cold
War, criticism of China’s human rights policies did not attract much international
attention. Human rights practices during the post-Mao era have received much
more international scrutiny as the government began the process of engaging with
select multilateral human rights treaties (see Table 6.1), which was accompanied
by an ambitious task of overhauling the Chinese legal system. It is difficult to
identify explicitly the correlative impact of China’s entry into international human
rights treaties and trace the corresponding impact on the domestic legal system.
However, undoubtedly the Communist Party leadership has taken significant steps
to modify the domestic legal system since 1978 without derogating the autonomy
or the supremacy of the party or the state.
Saving Face and Cultural Sensitivity to Foreign Criticism
China invariably reacts very harshly with counter-criticism if its human rights
practices are attacked in international forums (Xinhua Net 2003). Addressing
an international conference on human rights in 1993, the former Vice-Foreign
Minister, Liu Huaqiu rejected foreign criticism by arguing that to “wantonly accuse
another country of abuse of human rights and impose the human rights criteria
of one’s own … is tantamount to an infringement upon the sovereignty” of the
Chinese nation (CECC 2003, 6). Minister Huaqiu, further added that interference
in internal matters “could result in political instability and unrest” in China—a

concern repeatedly asserted by all Chinese officials. Former Chinese President
Jiang Zemin issued numerous public statements expressing his strong resentment
of foreign interference in internal matters in the name of human rights (Gilley
1998, 209). Although all of the post-Mao leaders have unquestionably increased
their engagement with human rights regimes, they have consistently held that
China’s domestic politics is beyond the purview of other states or international
organizations. The imposition of draconian legal sanctions is entirely regarded
as a domestic matter, and individuals held in prisons are given no rights because
the government contends that prisoners abrogate such rights when they engage in
criminal acts; rights are only accorded to law-abiding citizens. Human rights in
the Chinese context refer to collective interests aimed at improving the communal
welfare. Since the strike-hard anti-crime campaigns target drug peddlers, looters,
prostitutes, pimps, corrupt bureaucrats, and counter-revolutionaries, the state, after
all, is protecting the rights and interests of the collective. Officials in the Bureau
of Public Security contend that China has a serious crime problem, especially in
major cities, such as Beijing, Shanghai, and other major cities clustered along the
South China Coast. Public Security officials believe that it is necessary to rely on
deterrent counter strikes and demonstrate that the state is able to maintain law,
order, and stability (Kwang 2003). Although this logic seems to be consistent with
Chinese views on law and rights, it is distinctly different from generally accepted
interpretation of universal human rights promoted by the United Nations.
This stark difference in the interpretation of international human rights norms
has produced the so-called universalist versus cultural relativist debate (DeBary
1998; Donnelly 2003; Lee 1995). The Chinese position on human rights falls
under the relativist category. According to this argument, each country’s human
rights norms are determined by its unique historical and cultural experiences,
and by the constraints placed on its institutional structure. The relativist position
allows the Chinese government to explicitly rebuff the existence of any “universal
human rights or legal norms” that are applicable to all countries in a homogeneous
manner. Chinese authorities dismiss the idea of universal human rights “as an
imperialist manifestation of a hypocritical West” (Friedman 2003, 129). It is the
contention of the Chinese government that its domestic activities are beyond the
purview and influence of external authorities, and that the People’s Republic of
China is within its sovereign right to define “rights” and “wrongs” according
to internally generated rules, and then impose sanctions that it considers to be
appropriate and justified within the domestic context. Rejection of international
human rights norms is primarily driven by a combination of powerful historical
and contemporary forces; namely, historical humiliations suffered by the Qing
dynasty during the period of unequal treaties, and civil wars during the post-Qing
era instigated by Western colonists, coupled with anti-internationalist Marxist
ideology and resurgent nationalism energized by the Communist Party.
During the rule of Deng Xiaoping and Jiang Zemin, human rights conditions
in China improved moderately compared to earlier periods; millions of political
prisoners from the Cultural Revolution were rehabilitated, the formal class system
that privileged the Communist Party members was gradually dismantled, and
Chinese citizens began to enjoy broad economic and personal freedoms (Nathan
1994, 631). In the post-Mao era, however, efforts to create a functioning and
independent legal system has not fully succeeded because of the concern among
CCP officials that the law might be used by “autonomous entities” to protect
the interests of vested groups opposed to the Party (Fewsmith 1999, 70). As a
consequence, China’s criminal laws have been purposefully designed to be vague,
internally inconsistent, and contradictory (Alford 1999). Courts and the legal
system in China are regarded as tools to reaffirm the authority of the state; they
are not regarded as institutions to protect citizens from the tyranny of the state
or mediate relations among citizens (Tanner 1999). There is a great reluctance
to introduce true reform in the criminal legal system because of the fear that it
will effectively cede control over critical sectors of the government, which might
conceivably lead to chaos (luan) and displace the Communist Party as the central
political force and organizing authority, impairing the economic reform process.
Fear of chaos (luan) or turmoil is prominent among the CCP leadership. During
discussions among party leaders—Li Peng, Deng Xiaoping, Yang Shangkun, Li
Xiannian, Peng Zhen, and Bo Yibo—to determine a course of action to deal with
the June 4 Beijing Democracy Movement in 1989, Deng repeatedly invoked the
words “chaos and turmoil,” and forcibly argued that stability should be achieved
at any cost.
Deng’s concerns of “chaos and turmoil” were also subsequently expressed by
Jiang Zemin and Hu Jintao, illustrating that the issue of political instability is
of such sustained importance to the party leadership that they are willing to do
anything to quell any challenges perceived or real to the paramount position of the
Communist Party. Former Premier Li Peng and President Jiang Zemin justified
the imposition of martial law as the Tiananmen protests grew in size and strength
because they were concerned that instability would be transmitted to other areas
(Calhoun 1994, 1). They echoed Deng’s belief that resolutions condemning
China or the imposition of international sanctions are “no big deal for us” (Liang
et al. 2001, 423). The Chinese Politburo has always vociferously asserted that
China should either ignore the threat of international sanctions or fight back, but
never allow other countries to interfere in its internal political matters. China’s
fourth generation leaders, led by President Hu Jintao, have continued the policy
of maintaining the supremacy of the Communist Party while managing citizen
demands, suppressing dissent, and controlling political activity, but this policy has
not had a meaningful impact on China’s human rights practices as the following
sections will demonstrate.
Political Order and Human Rights in Post-Revolutionary China
The June 4 Tiananmen Square protests were a product of limited political and
partial economic reforms initiated by Deng. These reforms provided some political
space for open intellectual debate on the issue of democracy and freedom within
China in the 1980s, as long as the discussions did not explicitly criticize the Party,
its policies, or its leaders. Simultaneously, the economic reforms, which were
implemented in an uneven fashion, led to widespread corruption, accentuated the
differences between rich and poor, and increased resentment and discontentment
among large groups of people. Popular frustrations manifested themselves in the
form of small student protests beginning in April 1989, which increased in size
with every passing day, before the movement was decisively crushed by the first
week of June 1989. When the reform process threatened to overturn the legitimacy
and power of the Communist Party, Vice-Premier Deng did not hesitate to
extinguish the democracy movement. Overthrow of the Communist Party was not
the goal of the June 4 democracy protesters; the objective of the various student
groups was aimed at pushing the government to extend the benefits of economic
reform to all sections of the population and seek greater citizen input in the public
policymaking process (Calhoun 1994, 1). Ideological contradictions within the
higher echelons of the Communist Party over the direction and limits of reform,
and the unwillingness to fully reform all sectors of the economic and political
system generated social forces that choked the reform process, which eventually
culminated in the June 4 Democracy protests.
In the post-Mao reform period, Vice-Premier Deng promoted his “Four Cardinal
Principles.” These principles called for the continuation of the socialist road and
re-emphasized the importance of maintaining the dictatorship of the proletariat
over the bourgeois, continuing the doctrinal commitment to Marxism–Leninism–
Maoism, and upholding faith in the paramount leadership of the Communist Party.
The “Four Cardinal Principles” are considered to be the cornerstone of China’s
post-Mao reform policy, but they seemed fundamentally contradictory. Neither
Deng nor his followers ever really fully explicated or sought to resolve these
contradictions. Deng’s slogan “to get rich is glorious” seemed inconsistent with
some of the principles that he had outlined earlier (Goldman and MacFarquhar
1999, 8). Economic ideas such as reducing the share of the public sector in industrial
activities, dismantling collective agricultural communes, and supporting private
accumulation of property, ran counter to the objective of maintaining the socialist
path, continuing the dictatorship of the masses over the elite, and sustaining the
commitment to Maoism. Once the reform process was underway, the value and
importance of Maoism markedly declined, except among hard-core loyalists. Petty
bourgeois, entrepreneurs, and landlords, who were completely wiped out during
the Mao era, rapidly reappeared (Naughton 1999, 30–44).
The slogan of proletarian dictatorship over the bourgeois quickly disappeared
from official policy discourse because every proletarian wanted to become a
capitalist. The idea of a free market economy in which forces of supply and demand
determined commodity prices seemed inconsistent with the principle of following
the socialist road as promulgated by Deng. Development with “socialist or
Chinese characteristics” did not translate very effectively into practice, except that
it hampered the pace of economic reforms, and inspired the Tiananmen democracy
protests. Hard line Communist Party elites hampered the economic reform process
because of their strong motivation to maintain control and dominance over all
areas of social, economic, and political life. Internal political debate within the
party during Deng’s rule centered on controlling the pace of economic reform and
the degree to which the party needed to exercise control over the reform process.
Two factions sought control of the reform movement during Deng’s rule—the
Deng loyalists and the Chen Yun Group. The Deng faction favored broad-based
and expansive economic reforms, while the Chen Yun Group called for a more
conservative pace of reform, tighter management and control of the reform process
by the party, and continued commitment to socialist thought (Fewsmith 2001).
Socialist ideals did not translate into any meaningful policy solutions, but it did
influence the pace and scope of the reforms.
After the 1989 Tiananmen Square massacre, Deng’s power significantly
weakened. Several members of the Politburo and the Standing Committee, the two
leading political organs, believed that reforms needed to be curtailed and that the
state should maintain greater control over the reform process. Chinese leadership
strongly believed in the luan scenario, especially after witnessing the rapid
disintegration of the Soviet Union in the wake of radical political and economic
reforms launched by Mikhail Gorbachev. The disintegration of the Soviet Union
convinced party elders that if the reforms were not properly managed, China would
also collapse and splinter; hence, disproportionate importance was placed on
maintaining political stability while relaxing economic controls. Deng Xiaoping
favored strong punishments for the June 4 demonstrators. Above all, the Vice-
Premier believed that punishments should specifically target leadership elements
within the June 4 movement and that post-Tiananmen laws should be structured in
a very careful manner, especially laws governing “assembly, association, marches,
demonstrations, journalism, and publishing” (Liang et al. 2001, 424). He believed
that such strong measures were necessary to make both external and internal actors
understand that the Chinese government was “tightening controls for the sake of
stability,” and for the “sake of reform and opening and modern construction”
(Liang et al. 2001, 424).
Deng personally selected the former Mayor of Shanghai, Jiang Zemin, to the
Chairmanship of the Chinese Communist Party to continue the reform process and
More recently, the Communist Party formally agreed to open its doors to
businessmen and entrepreneurs who were barred from becoming CCP members because
of their bourgeois status. This development has been formally enshrined in the outgoing
President Jiang Zemin’s philosophy of “Three Represents” introduced at the 16th National
People’s Congress in 2002.
ensure stability during the political transition. Jiang Zemin replaced Zhao Zhiyang
as the Party Secretary-General in 1989 during the aftermath of the Tiananmen
Square incident. Zhao Zhiyang was purged from power and arrested for trying
to introduce political reforms and for sympathizing with student leaders of the
democracy movement (Halpern 1991, 48). Jiang Zemin was selected because of
his ability to manage a market economy as he had done as the Mayor of Shanghai,
for his mastery over elite politics, and for his ability to maintain political stability
and social order. In the Chinese context, stability and social order meant that the
CCP was not going to permit any political activity that challenged the party or its
leadership. The capability to maintain stability and order was one of the paramount
concerns of the Chinese leadership in the wake of the Tiananmen Square riots.
Under Jiang Zemin’s rule, China continued to pursue economic reform and
liberalization, while the Communist Party began to tighten its control over critical
sectors of the state, such as media and political institutions. Jiang Zemin single-
handedly launched the effort to identify and prosecute the Tiananmen student
leaders and subsequently began the bloody and brutal crackdown on the Falun
Gong spiritual movement.
Similar to the Mao regime, the post-Mao leaders of China did not tolerate any
form of organized political dissent or criticisms of its policies. The Communist
Party continues to suppress all direct opposition to its supremacy, but it has co-
opted vital sectors of the society and improved its strategic alliance with the
entrepreneurial class (Promfret 2002, 14A). Since Deng assumed power, the
Party has transformed itself from a revolutionary party to a ruling party, while
the Chinese state has transitioned from a totalitarian communist state into an
authoritarian developmentalist state, in which the primary objective is to enable
and sustain high rates of economic growth, but also maintain tight political control.
During this economic transition, the CCP shed its socialist ideology and allegiance
to Maoism.
All of China’s post-Mao leaders have made references to socialist ideology
and incorporated socialist principles in their formal political discourse and public
rhetoric, but in practice, socialist ideology has had minimal influence on policy
matters, especially on economic policy. During Jiang Zemin’s rule, socialist
ideals started to disappear from formal political announcements and the economic
reforms that began in 1978 produced unparalleled economic freedoms for the
Chinese citizens and engendered one of the greatest economic revivals, catapulting
China into a major economic power (Shambaugh 2000). Jiang Zemin’s (2001)
formal theory of “Three Represents” places more emphasis on the “advancement
of productive forces.” Under Premier Hu Jintao, China has transformed itself into
a technocratic state and has shed its overt ideological commitments; it is fully
focused on economic growth, while the Communist Party tightly manages the
degree of political openness.
Reforms and Social Stability—Strike Hard Campaigns

and the Death Penalty
After the Tiananmen protests were subdued, the coercive apparatus of the state
became overt and strong; to maintain stability, prevent chaos, and continue with
economic reforms, the Chinese government introduced a series of law enforcement
tools, and defined a wide range of political and social activities as a national
security threat. The party state relied on a variety of repressive measures such as
detention without charge or trial, supervised residence, shelter and investigation,
post-arrest detention, denial of access to lawyers, torture and physical duress
to extract confessions, presumption of guilt on arrest, witness intimidation, re-
education through labor, and the imposition of the death penalty to suppress
political dissent and control crime.
These coercive instruments are deployed against a broad range of activities such
as public protests; printing pamphlets; organizing labor groups; participating in
demonstrations and rallies; seeking membership in unregistered religious groups;
and leading, aiding, supporting, and participating in separatist movements (largely
applied to the autonomous regions of Tibet and Xinjiang). Activities aimed at
disturbing peace and stability, publishing and distributing seditious or subversive
materials, maintaining contact with hostile foreign elements, spying, and revealing
state secrets are identified as crimes to curtail a range of civil and political liberties
that might potentially jeopardize the stability of the state. Those thought to engage
in these activities are branded as “counter-revolutionaries,” or “enemies of the
state” for “endangering national security,” and they are detained indefinitely and
banished to labor camps. In addition to these crimes, harsh penalties are also
imposed for general social crimes, such as corruption, robbery, rape, drug abuse
and trafficking, prostitution, and other petty crimes.
Interestingly enough, the clamp down on the fledgling democracy movement
in the early 1980s coincided with the start of anti-crime (yanda) campaigns
launched in the mid-1980s, and it was periodically redeployed in 1990, 1996,
and 2001 (Trevaskes 2003, 359). Strike hard campaigns and public sentencing
rallies (gonkai xuanpan dahui) became a popular legal tool and political tactic to
combat the unprecedented increase in crime and corruption produced by economic
reform. The yanda crime control campaign relied on “mass arrests, swift and harsh
sentencing, mass rallies, and extensive propaganda work” (Svensson 2001, 3).
One of the signature features of the strike hard campaign was the widespread and
indiscriminate use of the death penalty. It is estimated that during these strike hard
campaigns, imposition of death penalty led to the deaths of “tens of thousands of
people,” and the list of offenses punishable by death increased to 68 categories
These different law enforcement tools are identified in various Amnesty International
(AI) Reports that are published annually. AI also publishes various other reports that detail
specific instances of human rights violations such as torture, detention, and execution
(available online at: http://www.amnesty.org).
(Svensson 2001, 10). Although Articles 61, 48, 236, and 239 of the Chinese
Criminal Law (CPL) specifically limit the application of capital punishment to
what is termed as “especially aggravated cases,” or “serious circumstances,” there
is widespread evidence to indicate that the punishment of death is liberally applied
to violent and non-violent economic crimes (Albrecht 1998; 2002).
The People’s Republic of China is one of the few countries in the world with a
high death penalty/imprisonment ratio; more prisoners are executed compared to
the size of the total incarcerated population. China has consistently topped the list
of countries with the highest number of executions, but estimating death penalty
imposition and actual execution rates is a wild guessing game because official
statistics are state secrets (CECC 2006, 58). Estimates of average per annum
execution figures range from a high of 15,000 to a low of 10,000 per year.10 An
internal report prepared by the office of the Secretary of the Central Politics and Law
Committee, Luo Gan, who is one of the nine members of the Chinese Politburo,
estimates that 60,000 people were executed between 1998 and 2001 (Nathan and
Gilley 2003, 217–8). According to Chief Justice Xiao Yang, the President of the
Supreme People’s Court, a total of 767,951 criminals were convicted by all of
China’s courts in 2004, of which “19.04 percent were sentenced to more than
five years imprisonment, life imprisonment, and death penalty” (People’s Daily
2005). In other words, 146,218 individuals received a sentence of five years to
life or the death penalty. It is not exactly clear as to what percent of the 146,218
received a death sentence. But, even a conservative estimate of 10 percent means
that at least 14,621 individuals might have been sentenced to death. This number is
considerably higher compared to one of the most commonly used numbers made
available by Amnesty International (AI), which is based on estimates generated
through eyewitness accounts, other observations of publicized death sentences,
gathering of news reports from provincial dailies, and from informants within the
Chinese criminal justice system.
Amnesty International estimates are rather conservative and flawed at best, but
they are the most comprehensive and best data available so far. For instance “group
executions” are counted as a “single execution,” which vastly underestimates
The issue of estimating death penalty sentences remains difficult because of the tight
control over the judiciary system exercised by the party. The estimate of tens of thousands
of people is based on Amnesty International reports and other private sources (Tanner 1999;
Tanner 2000; Boxer 1999).
10 The number of 10,000 to 15,000 is reported by various media organizations. In
2004, AI quoted a delegate named Chen Zhonglin attending the National People’s Congress
from Chongqing municipality in March last year, who apparently said that “nearly 10,000”
people were executed every year in China. Subsequently, this number was reported by most
Hong Kong and Western press sources. A BBC news service report date October 12 2006 by
its China correspondent puts the number between 8,000 and 10,000 and describes the death
penalty imposition as an industrial operation (Guangze 2007, 41).
Table 6.2 Number of death sentences imposed and actual executions

carried out between 1990–2005 in the People’s Republic of
China
Number of Death Sentences Number of Actual Executions

Year
Imposed Carried Out
1990 960 750
1991 1,650 1,050
1992 1,891 1,079
1993 2,564 1,419
1994 2,496 1,791
1995 3,110 2,190
1996 6,000 3,500
1997 2,495 1,644
1998 1,657 1,067
1999 1,720 1,077
2000 1,511 1,000
2001 4,015 2,468
2002 2,960 1,781
2003 1,921 1,060
2004 1,639 726
2005 6,000 3,400
Total 42,589 26,002
Source: Data collected from Amnesty International Annual Reports, China (1990–2005).
the total number of executions.11 Even these conservative estimates reveal the
staggering number of executions that take place every year in China. If one were to
base calculations on bold estimates that put execution rates from 10,000 to 15,000
per annum, then over a 16-year period from 1990 to 2005 one can extrapolate that
anywhere between 160,000 to 240,000 individuals were executed. According to
some AI estimates, from 1997 to 2001 at least 15,000 executions were carried
out (Amnesty International 2004). Calculations based on estimates gathered from
the Annual AI Human Rights Reports put the average number of death sentences
imposed at 2,662 and the average execution rate at 1,625 per year (see Table
6.2). By this count, 42,589 death sentences were imposed and 26,002 executions
11 Amnesty International (AI) believes that its numbers are far from accurate and
that execution figures are a rough estimate and do not reflect the seriousness of the death
penalty problem.
were carried out from 1990 to 2005. This number is significantly lower and
demonstrates the challenge of accurately assessing the number of death penalty
cases. Irrespective of the difficulty of gathering accurate data, the enormity of
the death penalty problem is revealed even by the conservative estimates that
put the average number of executions at about 1,625 per annum. Table 6.2 also
suggests that the spikes in the chart for the years 1996, 2001, and 2005 are strongly
associated with the launch of the strike hard anti-crime campaigns, which points
to a direct correlation between the launch of anti-crime campaigns and the liberal
imposition of capital punishment.
The death penalty is mostly deployed as a coercive device; in particular, it
serves as a deterrent to demonstrate the effectiveness of state power in controlling
growing crime and corruption, which ironically developed as a result of new
spaces created by unfettered economic growth and expanding inequality (Ye
2006). It is employed as a propaganda device to intimidate citizens and carry out
education campaigns to establish the preponderant power of the state (Svensson
2001, 5). Undoubtedly, imposition of the death penalty is also driven by populism
and strong public attitudes towards crime, even petty crimes and other utilitarian
considerations (Svensson 2001, 2). Local media frequently report that residents
often demand a tough response to crime. According to Mao Shulong, a Professor
of Public Administration in Beijing’s People University, “when the Chinese see
a thief, they want him beaten to death” (CECC 2003b; Yardley 2005). There is
widespread coverage of death penalty sentences in the local media to demonstrate
that the state is punishing wrongdoers and simultaneously asserting control over
society.
Death sentences are carried out very swiftly; often executions are conducted in
a stadium or in other public places (Becker 2002, 6). Two most popular methods of
execution are death by shooting and death by lethal injection. In the case of death
by shooting, prisoners are forced to kneel down and shot in the back of the head or
neck. When body parts of the prisoners are harvested appropriate adjustments are
made to prevent injury to vital organs (Amnesty International 2004). If a prisoner’s
eyes are being harvested, then the point of execution is either the neck or the heart.
Although harvesting of organs is not specifically forbidden under Chinese law, it
is not subject to any regulations and does not conform to international standards
laid out by the World Health Organization (CECC 2006, 59). During the last
several years, in order to increase efficiency and reduce the cost of executions, and
also make them more humane, prison authorities have shifted to lethal injection
as the primary form of execution, which includes the use of mobile execution
vans (Amnesty International 2003; McDonald, 2003). In a windowless van, the
prisoner is strapped down and injected with a lethal drug and the execution can be
monitored and recorded through a television set located next to the driver’s seat.
One of the most problematic aspects of Chinese death penalty practice is
the arbitrary, indiscriminate and gruesome manner in which the death penalty is
exercised. Families receive notice only a few days before the execution, which
gives them very little time to arrange for a defense or plead with the authorities,
because condemned prisoners are executed immediately on conviction (Chao

2003; People’s Daily 2005). Oftentimes bodies of the executed prisoners are not
returned to the families and executions are performed in main thoroughfares or
in public grounds, ostensibly to achieve the necessary deterrent effect. Following
sentencing, prisoners are routinely paraded through the streets on their way to the
execution grounds. Placards detailing information regarding their crimes, including
personal information such as names and place of birth of the shackled prisoners,
are placed around their necks (Amnesty International 2000; Amnesty International
2004; Scobell 1990). TV crews and photographers are invited to take pictures
and widely publicize the sentencing rallies. Sentencing and execution rallies
serve multiple objectives; they demonstrate the effectiveness of the provincial
governments in striking hard at crime, humiliating and shaming the condemned,
and serves as a warning to the local communities.
The liberal application of the death penalty without proper judicial safeguards
principally results due to the lack of transparency, consistency, and independence
of the Chinese judicial and penal system. It is not entirely clear as to which crimes
warrant the imposition of the death penalty and whether persons charged receive
proper legal representation and right to appeal. According to Article 49 of the
Criminal Procedure Law, the death penalty is not applicable to crimes committed
by perpetrators under the age of 18 and women who are pregnant at the time of
trial.12 Otherwise, there are no sentencing guidelines or uniform national standards
governing the scope of death penalty imposition. As Professor Liu Zuoxiang of
the Chinese Academy of Social Sciences points out, “due to varied standards,
people who commit similar crimes are put to death in some provinces, but kept
alive in others” (People’s Daily 2004). Hence, capital punishment is imposed on
a wide number of crimes, such as purse snatching in Guangzhou, embezzlement,
corruption, various drug related offenses, and high crimes such as rape and murder
(Sheridan 2006). Whether a crime warrants the sanction of death entirely depends
on the discretion of the provincial courts.
According to official statistics released by the Supreme People’s Court, all of
the Chinese courts were able to secure convictions in 99.1 percent of the criminal
cases from 1998 to 2002 (AI, Death Penalty in China 2000; Amnesty International
2004). Chinese criminal laws do not contain provisions for presumption of guilt or
innocence. The guiding legal principles suggest that “all facts” must be taken into
consideration while arriving at a decision (Hecht 1996, 61). Since convictions are
secured in nearly all cases that come up for trial, there is a natural tendency towards
presumption of guilt that automatically predisposes the prisoner to condemnation;
all the presiding judge has to do is to impose a sentence reinforcing the procuracy’s
findings (Hecht 1996, 53). Public trials are held only when the court is convinced
of the guilt of the accused; if the guilt of the accused cannot be established then
12 Various reports, however, indicate that the rule of not executing prisoners under
the age of 18 has been regularly violated either due to oversight or because of deliberate
policy.
the trial is adjourned for further investigations or the trial is closed to the public
(Lubman 1999, 164). Even if the trials are public, the family and the counsel of
the accused are denied entry to such public trials and in many instances not even
notified (Yardley, China Tries Rights Lawyer 2006; Kahn, Chinese Crackdown on
Rights Lawyers 2006c; Yardley, China Detains Lawyers 2006). The whole trial
process is strongly slanted in favor of the prosecution and it is designed to reaffirm
the guilty verdict imposed by the police. Courts rarely act as independent arbiters
of facts and laws; instead they merely function as handmaidens of the police and
procuratorate in affirming the predetermined guilty verdict.
In the Chinese legal system an adjudication committee that operates
independently of the trial court determines the verdict in criminal cases, which
makes the adjudication committee highly vulnerable to political pressure (AI,
No One is Safe 1999, 12). The adjudication committee does not rely on trial
proceedings or on the verdict of a jury of peers, but it arrives at decisions entirely
on the basis of case files without hearing from the defendant or from the defense
lawyers. As a consequence, final indictments reflect the original case as presented
by government prosecutors with very little input from defense lawyers or from
the defendant. Defense lawyers are not provided access to case files; they are not
allowed to confront prosecution witnesses during court proceedings and they are
barred from challenging the verdict of the adjudication committee.13 There is also
growing evidence that defense lawyers are not allowed to function effectively;
they are threatened and dissuaded from defending their clients or they are
discouraged from defending the accused and pursuing the case earnestly. Defense
witnesses are persuaded from testifying against the prosecution and defendants
are allowed to consult an attorney only seven days before the start of a trial, which
effectively prevents a successful defense because of insufficient time to make case
preparations (US State Department, China—Human Rights Report 1999, 6).
Three major provisions in the Chinese Criminal Law—Article 306 of the
Criminal Law, Article 38 of the Criminal Procedure Law, and Article 45 of
Lawyers Law—permit state criminal prosecutors to arrest lawyers representing
individual clients on grounds of “perjury,” “fabricating evidence,” providing
“false testimony” and “forcing or inciting a witness to change testimony” (HRIC,
Setback for the Rule of Law 2006). These provisions are used to target Chinese
lawyers and transform them into defendants instead of legal representatives
and limit their capacity to function effectively and independently. According
to authoritative estimates, more than 100 lawyers have been prosecuted under
Articles 306 and 307 since 1997 for the crime of falsification of evidence (CECC
2003a, 20). Lawyers who pursue criminal cases or other cases that are deemed
to be “sensitive” are specially targeted for harassment and prosecution. Also the
13 Because of the enormous inconsistencies in the application of the death penalty
by the local courts, the Supreme People’s Court has decided to strip the local courts of the
power to impose the death penalty. From January 1 2007 all death penalty decisions are to
be reviewed by the Supreme People’s Court.
fee for retaining a lawyer is highly prohibitive. On average, hiring legal services
could cost anywhere between 300 to 650 dollars, whereas the average income of
workers in China is less than two dollars a day in the rural areas (Hung 2002).
Lawyer intimidation and denial of legal counsel are clear violations of Lawyers
Law, the revised Criminal Procedure Law of 1996, and China’s 1982 Constitution,
which states that courts shall operate without interference from any political or
administrative organization. Yet, political interference seems to be routine despite
significant developments in the legal profession, law-making, and judicial reform
(AI, No One is Safe 1999, 13).
Arrest, Arbitrary Detention, and Suppression of Dissent
Political opposition, dissidence, and open religious expression generate a

repressive response from the Chinese state in the name of maintaining social
stability. Every year many individuals are either arrested or indefinitely detained
for counter-revolutionary activities, which are primarily political crimes (US State
Department, China—Human Rights Report 1999, 12). These crimes could range
anywhere from writing subversive poetry to unfurling a banner with a political
message in a public square. Chinese nationals are also arrested for forming labor
unions, complaining about corruption, filing too many petitions, and attempting
to form political parties or post articles related to human rights and democracy on
Internet bulletin boards. Overseas Chinese scholars and journalists are harassed
and detained or even arrested when they visit China to collect research materials
on sensitive political topics (Kahn 2004; Chinoy 2001; HRW, China: Second
Foreign Scholar Detained 2001). Censorship, although not absolute, is widespread
and severely limits freedom of expression, press freedoms, and rights of religious
expression, all of which are guaranteed by the Convention on Civil and Political
Rights signed by China in 1998. The crackdown on civil and political liberties is
largely driven by the Communist Party’s growing concern that increasing social
instability caused by widening income inequalities and rural unrest will potentially
threaten the legitimacy of the party and derail China’s peaceful emergence
as a superpower (CECC 2006, 4). The Communist Party’s apprehension over
the possibility of large-scale social turmoil became decidedly urgent after the
Tiananmen democracy protests.
Immediately following the widespread protests, China’s Supreme People’s
Court issued a memorandum that was circulated to all the local courts. This
memorandum instructed the local courts to strictly follow the line established by
Deng Xiaoping and promptly hand out “severe punishments” to those who are
responsible for causing “social turmoil” or disturbing social stability (AI, No One
is Safe 1999, 13). Over the last two and a half decades, the paramount concern has
been on managing the economic transition of China without allowing any overt
challenges to the supremacy and legitimacy of the Communist Party. According to
official statistics released by the Ministry of Public Security, the number of mass
public incidents witnessed a 50 percent jump from 43,500 in 2003 to 87,000 in

2005 (Xinhua Net, China Strives to Handle Mass Incidents 2006). Today China
encounters three kinds of challenges that could produce social turmoil: (1) ethnic
separatism in Xinjiang and Tibet; (2) expanding demands from Chinese citizens
seeking freedom of religious expression and civil liberties; and (3) social unrest
caused by growing income inequalities both within urban areas and between urban
and rural districts.
In an effort to confront these challenges, the Chinese state relies heavily on Re-
education through Labor (laojiao), Reform through Labor (laogai), and Custody
and Repatriation (shourong qiansong). With the exception of Reform through
Labor, which is a form of criminal punishment, Re-education through Labor is a
form of administrative sanction that circumvents the formal criminal legal process.
Custody and Repatriation is a type of warehousing technique used to round up
urban homeless, vagabonds, and undocumented migrant workers, and hold them
in administrative detention until they can pay for their release or they are returned
home (CECC Annual Report 2002, 29). One of the unfortunate outcomes of this
detention scheme is that detainees have no rights to legal aid and access to justice is
exceedingly limited. It is estimated that more than two million people are detained
every year under Custody and Repatriation. Re-education through Labor (RTL)
has become a widely used tool of social control especially after the suspension of
the dreaded practice of Custody and Investigation (shourong shencha, also known
as Shelter and Investigation) because of sustained international pressure (HRIC,
Re-education Through Labor 2001).
Shelter and Investigation allowed police to hold individuals in custody for
three months for suspicion of being involved in a crime (AI, No One is Safe
1999, 8). Although Article 14 of the 1979 Criminal Law forbids such detentions
for more than ten days without charge, the police, nevertheless, depend
excessively on this procedure because Shelter and Investigation can be utilized
without any judicial review or other legal interference (AI, No One is Safe 1999,
10). Shelter and Investigation was abolished during the 1996 revision of Chinese
Criminal Law, but Re-education through Labor has filled the vacuum. RTL is
largely directed against two segments of the population: (a) petty criminals, such
as drug addicts, sex workers, brothel visitors, and other offenders who commit
larceny, fraud, and assault; and (b) political troublemakers accused of counter
revolutionary activities, endangering public security or disturbing public order.
Generally, the majority of the second group consists of Falun Gong practitioners,
and Tibetan and Uighur nationalists. According to the 1979 Criminal Procedure
Law, the crime of counter-revolution is defined as an act that seeks to topple “the
political power of the dictatorship of the proletariat and the socialist system”
(AI, No One is Safe 1999, 6). In 1994 more than 2,800 people were detained for
counter-revolutionary offences and in 1995, according to the Ministry of Justice,
2,768 people were imprisoned for counter-revolutionary activities (AI, Annual
Country-China 1996, 119).
Tibetan and Uighur nationalists, pro-democracy activists, leaders of underground

churches, and editors of independent press are the primary targets of detention
under RTL. All types of political dissent, open criticisms of the Communist Party,
and autonomous religious activity have been long equated with separatism, stirring
up political unrest, and terrorism (Becquelin 2004). Political dissenters are held
incommunicado under charges such as “subversion,” “incitement to subversion,”
“inciting splittism,” and “disturbing public order” (CECC 2003a, 15). The crime
of “endangering public security” is sufficiently vague so that it provides wide
latitude for interpretation such that any words, actions, or associations both formal
and informal, can be construed as being “disruptive of public order or critical of
official policies.”14 Leaders of unregistered religious associations and other non-
governmental organizations who “have contacts with or receive financial support
from any organization, within or outside the country” can also be detained under
RTL because they come under the jurisdiction of China’s state security law, which
makes it a crime for Chinese nationals to have associations with foreigners who
endanger national security (AI, No One is Safe 1999, 7). Under RTL detainees
can be held indefinitely without charge or trial, tortured and forced to give false
confessions, and sent to forced labor camps (laogai) for reformation (Tang 2001).
Such detentions are not subject to judicial review, and the accused do not have
access to legal assistance and do not have the rights to self-representation (AI,
PRC-Continuing Abuses 2003). Official statistics indicate that 200,000 people
were being held in various RTL camps in 1996 and that number has since increased
to 310,000 by 2001 (AI, PRC-Continuing Abuses 2003).
Torture, Ill-Treatment, and Coercive Extraction of Confessions
The People’s Republic of China was one of the first states to ratify the International
Convention on the Prevention of Torture and other Cruel, Inhuman, and Degrading
Punishments in 1988 (see Table 6.1) after it was opened for signature. Though,
since the end of the Tiananmen movement, instances of torture and reliance on
physical force to extract confessions have become more widespread. The use of
torture and coercion has coincided with the recurrent implementation of the strike
hard anti-crime campaign. According to the United Nations Special Rapporteur
on Torture, use of physical pain or torture (kuxing) to extract confessions or
coerce statements from detainees is so widespread that authorities are not able
to clearly distinguish between what is considered to be torture and what is not
(UNCHR, Special Rapporteur on Torture 2005; UNCHR, Working Group on
14 Although the crime of counter-revolution was rechristened as “crimes endangering

state security,” individuals arrested for the crime “counter-revolution” as per the 1979
Criminal Law Procedure are still under imprisonment. Many of the individuals were arrested
in a nationwide sweep following the Tiananmen Square incident (see US Department of
State, China—Human Rights Practices 1999, 12).
Arbitrary Detention 2004). Under Article 1 of the Convention Against Torture

(CAT), “any act by which severe pain or suffering, whether physical or mental,
is intentionally inflicted on a person” for such purposes as obtaining information,
seeking confession, and intimidating or coercing a third person “with the consent
or acquiescence of a public official” is prohibited (Convention on Torture
1984). But, instances of torture and ill-treatment of prisoners and arbitrariness
in the administration of justice is rampant. Belatedly, Wang Zehnchuan, Deputy
Procurator General of China, admitted that at least “30 wrong verdicts were handed
down each year because torture had been used” (BBC, China Official Admits to
Torture 2006). The Deputy Procurator General also acknowledged that the use of
torture to extract confessions was so pervasive that it undermined the effectiveness
of the judicial system (Kahn 2006, A14).
The case of She Xianglin exemplifies the serious troubles confronting the
Chinese legal system. Mr Xianglin, a 39-year-old man was charged with the murder
of his wife, despite the fact that his wife’s body was never recovered, and was
sentenced to a 15-year prison term. While serving his prison term Mr Xianglin’s
murdered wife suddenly reappeared after an 11-year absence, which forced the
central prison in the northern Hubei province to quietly release Mr Xianglin, who
in turn sued the state for 4.37 million yuan for his wrongful conviction (BBC,
China Wrong Killer, 2005). Xianglin’s wrongful arrest and conviction was based
on a false confession extracted through torture (Liu Li 2005). This case took an
even murkier turn when Pan Yujun, the investigating police officer charged with
arresting and wrongfully convicting Xianglin was found hanging by the neck at
a graveyard in Hubei province a few months after Xianglin’s release; two other
police officials involved in the case have since been promoted and moved to a
different district (China Daily, Cop in Unjust Case 2005). Several months after
his release and restoration of his full citizenship rights, Xianglin is still being
shadowed by local police officials and prevented from speaking to reporters
(Martinsen 2005).
In another case of gross miscarriage of justice, Nie Shubin, a 21-year-old man,
who also hails from Hubei province, was executed for rape and murder of a young
woman in 1995. Ten years after Nie Shubin’s execution, another man, Wang
Shujin, was arrested for an unrelated crime and confessed to the police about the
1995 rape and murder. Since then the Hubei police department has come under
heavy scrutiny for overzealous prosecution and wrongfully executing Nie Shubin
(China Daily, Media’s Frequent Exposure 2005). State parties to the Convention on
Torture (CAT) are expected to prevent the occurrence of such events and implement
appropriate legal measures to punish perpetrators of torture in the administration
of justice. In May 2000 the Committee on Torture—a United Nations body, which
examines compliance with the Torture Convention—recommended that China
completely restructure its criminal law to fully comply with the convention (AI,
Judges and Torture 2003, 4). Article 136 of the 1979 Criminal Procedure Law
prohibits torture to “coerce a statement or extract confession” and Article 189
prohibits the use of “corporal punishment and abuse” of prisoners (AI, People’s
Republic of China—Torture and Ill-Treatment 1996, 4). Correspondingly, Article

247 of the revised Criminal Procedure Law also forbids “extortion of confession
under torture by a judicial officer,” and “extraction of testimony by the use of
force by a judicial officer.” Article 248 abjures “physical abuse of inmates as well
as instigation of detainee-on-detainee violence by policeman or other officer of an
institution of confinement like a prison, a detention or custody house” (UNCHR,
Special Rapporteur on Torture 2005, 8). Revised Criminal Law also includes
several other provisions that seek to criminalize intentional negligence, injury or
death while in custody, verbal abuse and insults, and physical intimidation.
Police personnel who violate these provisions can be punished with a
minimum of 15 days to six months of “criminal detention” or up to three years
of imprisonment; plus, heavier punishment is reserved for severe cases of torture
that cause disability to the prisoners (AI, People’s Republic of China—Torture
and Ill-Treatment 1996, 5). Punishments are rarely imposed on prison officials
for using torture; usually they are threatened with lighter punishment of “criminal
detention,” which also is seldom enforced. Lack of insufficient sanctions and
enormous pressure on the judicial bodies to crack down on crime has enabled
prison officials to rely on torture with impunity. Moreover, the scope of Article
189 of the Criminal Law that seeks to punish official misconduct, is so narrowly
defined that it is applicable only to “judicial personnel,” thereby exempting prison
guards and policemen, and the law is only applicable under special circumstances,
such as extreme cases of torture, abuse, and other forms of ill treatment. It is
inapplicable in cases where handcuffs and leg irons are routinely attached to
prisoners because prison regulations allow such usage.
China’s criminal law contains built-in vagueness, various loopholes, and
serious structural weakness that allow prison guards to use handcuffs and leg irons
in such a way that it inflicts severe pain on prisoners. Common forms of torture
include regular beatings with fists or with a variety of instruments, use of electric
batons or cattle prods that cause severe electric shock, use of handcuffs and leg
shackles to suspend prisoners in painful positions, incarceration in tiny and filthy
cells, forcing prisoners to work under extremely inhospitable conditions, food and
sleep deprivation, and denial of medical care (AI, People’s Republic of China—
Torture and Ill-Treatment 1996, 31–32). According to the United Nations Special
Rapporteur on Human Rights, reliance on various methods of torture include
regular beatings, use of electric shock batons, cigarette burns, hooding, drowning in
raw sewage, forcing prisoners into uncomfortable positions such as “tiger bench,”
“exhausting an eagle” “reversing an airplane,” sleep deprivation, starvation, and
hard labor are routine and common throughout the Chinese detention system
(UNCHR, Special Rapporteur on Torture 2005, 16). Another practice that allows
the prison guards to circumvent the implications of the Criminal Procedure Law is
through the use of “cell bosses” or “prison trustees” to commit acts of torture and
pain to extract confessions or inflict punishment on other prisoners and detainees
(AI, People’s Republic of China—Torture and Ill-Treatment 1996, 3).
Cell bosses or prison trustees are prisoners favored by the prison authorities
to supervise and terrorize other prisoners at their behest. They are employed to
do the dirty work, which allow prison authorities to deny responsibility for “acts
of torture,” and absolve themselves of any formal wrongdoing. Using cell bosses
permits prison wardens to stay within the bounds of law, while enabling them to
use coercion to extract confessions. This problem is compounded by the fact that
procurators charged with the task of supervising law enforcement activities do
not act or are otherwise powerless to act, because procurators are also expected to
work closely with the police to investigate and prosecute criminals (AI, People’s
Republic of China—Torture and Ill-Treatment 1996, 3).
The three principal organs of the Chinese criminal justice system—the
police (arrest and detention), the procuratorate (investigation), and the judiciary
(law and sanctions)—are expected to operate independently of each other, but
this independence rarely manifests itself in practice. It is highly unusual for the
judiciary to question the investigative abilities of the procuratorate or challenge the
guilty verdict prescribed by the police. Unfettered police powers are the primary
explanatory variable for the miscarriage of justice and violation of human rights
within China’s criminal justice system. Failure to implement legal protections
guaranteed by the various laws make prisoners exceedingly vulnerable to police
brutality and torture. Prisoners are routinely held incommunicado for months
before they are granted trial or formally charged. Although access to legal counsel
is allowed under Article 96 of the revised Criminal Procedure Law, it does not
provide immediate or easy access to lawyers, doctors, or the family after detention
(UNCHR, Special Rapporteur on Torture 2005, 9).
While a prisoner is in custody they have to apply for permission to seek access
to legal counsel, and such legal counsel is only available when the case moves
from the procuratorate to the judicial branch for trial. If the case is concerned
with “endangering state security,” “preservation of state secrets,” or “political
sensitive cases,” the law is not clear on access to legal representation; lawyers are
intimidated and bullied from representing such clients, and their roles in formal
criminal trials have been seriously circumscribed (CECC, Annual Report 2002, 28).
Since prisoners are held captive by prison guards for months they become highly
susceptible to torture and other coercive techniques. Inadequate legal protection
and insufficiency of laws to criminally prosecute torturers allow security forces
to use torture with impunity (AI, No One is Safe 1999, 41). Besides, the structure
of an authoritarian country—which disallows any form of public scrutiny of its
human rights practices or free discussion of the inadequacies of the legal system
in the domestic press—shields the government and its policing agency from
sustained public scrutiny. Police, procuratorate, and the judicial organs are not
subject to any independent oversight; hence they are tremendously vulnerable to
political influences and local protectionism, and become easily corruptible. Lack
of sufficient procedural safeguards, routine official cover-up of incidents of torture,
and the misuse of the penal system to suppress political dissent has emboldened
security forces to act with impunity.
Torture has become routine and institutionalized in the Chinese penal system,
which prevents the PRC government from complying with the provisions of the
Torture Convention, despite various attempts to reform its criminal law. Some
government officials have begun to openly acknowledge that the torture problem
is “highly widespread,” “deeply entrenched,” and that this problem has been
exacerbated by the ineptness and corruption of the local governments (UNCHR,
Special Rapporteur on Torture 2005, 14). Legal scholars have specifically pointed
to the excessive concentration of investigative and detention powers in the hands of
public security organs as one of the critical institutional weaknesses of the Chinese
legal system (CECC-Roundtable 2002, 16; Biddulp 2005, 212–238). Dearth
counterbalancing institutional safeguards to check the tendentious and overzealous
behavior of the policing agencies has rendered the amended criminal laws largely
moot. Additionally, local protectionism and clan politics have prevented the ability
of the Beijing government to monitor the compliance of provincial authorities
with the criminal laws and international human rights conventions. The People’s
Republic of China has also refused to recognize the competence of the Committee
Against Torture (CAT) to directly receive individual complaints from Chinese
citizens under Article 22 of the Torture Convention on the grounds that it violates
national sovereignty. The Chinese government has also exempted itself from the
obligations under Article 20 and 30 of the Torture Convention, which behooves the
state party in question to cooperate with the convention to investigate allegations
of systematic torture (CAT 1984).
Repression and Control of Religious Activities
China signed the International Convention on Civil and Political Rights (ICCPR)
on October 1998 and ratified the International Convention on Economic, Social
and Cultural Rights (ICESCR) in March 2001 (see Table 6.1). The signing of the
Civil and Political Rights treaty and the ratification of the Economic and Social
Rights convention is a significant step forward. Nevertheless, various reports show
that genuine change in human rights practices is yet to emerge; importantly in
the areas of religious freedoms and civil liberties little improvement has occurred
despite some positive developments in other areas of the criminal justice system.
According to the provisions of Article 18 of the ICCPR, “everyone shall have the
right to freedom of thought, conscience and religion,” which includes the freedom
to “adopt a religion or belief” either individually or in a group and practice a
“religion or belief in worship, observance, practice and teaching” (ICCPR 1966).
Article 18 of ICCPR also requires participating states not to interfere or use
coercion to impair the freedom of individuals in either choosing or practicing their
religion.
Similarly provisions of ICESCR also indicate that state parties are expected to
respect basic social and cultural rights of its citizens and not discriminate on the
basis of religion. Since reforms began there has been a steady increase in the number
of adherents to Buddhism, Taoism, Islam, Catholicism, and Protestantism—the

five major religions officially acknowledged by the 2004 Regulation on Religious
Affairs.15 Nevertheless, according to regulations passed in 1994, the PRC
government claims that religious activities are to be regulated and monitored by
state authorities to ensure that such activities do not “undermine national unity
and social stability” (AI, Religious Repression in China 1996, 4). To facilitate
monitoring, all places such as, “temples, monasteries, mosques, churches, or other
fixed locations where religious activities are conducted” must be registered with
the Religious Affairs Bureau (AI, Religious Repression in China 1996, 4). Any
religious activity that is conducted without the explicit sanction of the Religious
Affairs Bureau is considered to be illegal, and involved individuals or religious
groups are subject to sanctions. Religious activities of Tibetan Buddhists, Uighur
Muslims, and Chinese Catholics are strictly controlled and monitored. The PRC
government is chiefly concerned with the allegiance of local populations with
religious figures such as the Dalai Lama and the Pope. Followers of the Dalai
Lama and the Pope are referred to as “splittists” due to their allegiance to foreign
religious leaders intent on splitting China. Tibetan Buddhists and Catholics are
attacked for failing to demonstrate patriotism in all religious activities.16 Separatist
movements in Tibet and Xinjiang are closely woven with religiosity and public
security agencies have not been able to discriminate between peaceful expressions
of religiosity, regional separatism, and terrorism. After the 9/11 terrorist attacks,
the crackdown on Xinjiang Muslims has been exceptionally severe. In an effort to
stanch religious extremism in Xinjiang, authorities have began to closely supervise
private activities such as religious ceremonies, weddings, funerals, circumcisions,
and house moving rituals. Overt expressions of religious loyalty such as wearing
a veil or other religious attire are forbidden. Uighur language instruction has
been banned at Xinjiang University and Uighur language books were burnt in a
public ceremony (CECC, Annual Report 2002, 4; CECC Roundtable on Religious
Freedom in China, 2002). The Chinese government has also openly tangled with
the Vatican Church by establishing its own bishops in contravention of the Catholic
Church. It also cracked down on groups and individuals expressing loyalty to the
exiled Tibetan Buddhist leader, the Dalai Lama. Organized religion is viewed
as a threat to national security because religion is closely associated with ethnic
identity that may involve legitimate separatist claims, which contrasts sharply
15 Exact numbers are not available because the PRC government does not maintain
such records, and the people of China are also reluctant to provide any information to the
government that would identify them with a particular group or community because of the
fear of prosecution or intimidation.
16 The term “splittists” is a unique Chinese construction, which literally means to
“split” or separate the country. This term is particularly reserved for the Tibetans and Uighur
Muslims because of their continuing efforts among the residents of these two autonomous
regions to seek independence from China.
with the idea of a unitary Chinese state that encompasses all autonomous regions,
including the renegade island of Taiwan.
Chinese delegates to the United Nations Commission on Human Rights have
consistently argued that “no one, no association and no religion can be allowed
to violate national law, infringe upon the interests of the people, foment splits
among nationalists, and sabotage national unity” (AI, Religious Repression
in China 1996, 2). Former Chinese President Jiang Zemin wrote an article in
1996 in the People’s Daily in which he stressed the need to “unite and educate
religious personalities in a planned way,” and assist religious groups that promote
patriotism and national solidarity. Although Article 36 of the Chinese Constitution
guarantees protection of rights of believers as well as non-believers, it points out
that “freedom of religious belief” is not equivalent to “freedom for religion.” Put
differently, Article 36 can be interpreted to mean that everyone is free to have
religious beliefs of their choice, but they are not allowed to organize and practice
their religion without official sanction from the state. Internal documents of the
Communist Party smuggled out of China and published in various media outlets
have revealed that a sustained campaign to disbar unauthorized religious groups
is underway (Pan 2001, A01). In this regard, the Falun Gong spiritual movement,
singularly, has borne the wrath of the government because of the intense concern
that well organized groups pose a potential political threat to the party, destabilize
economic reforms, and produce social disorder.
Conclusion
China’s human rights troubles are variegated, deep-seated, complex, and intimately
intertwined with its economic and political transformation. Broadly, there is the
issue of the Chinese legal system, especially its criminal law, which is plagued
with problems of corruption and local protectionism. Judiciary lacks transparency
and independence, and the policing agencies often rely on physical coercion to
extract confessions; arbitrary detentions are common, and capital punishments
are used rather indiscriminately. The nascent legal profession lacks autonomy,
independence, and a proper professional status; Chinese lawyers are subject to
various political interferences, especially criminal lawyers (Alford 1995, 22–38).
Suppression of political and cultural freedoms of Uighurs in Xinjiang, Buddhists in
Tibet, Christians in Southern China, and Falun Gong practitioners still continues.
Rapid and radical economic transformation is causing immense problems in
administering justice and providing compensation to rural peasants and urban
dwellers displaced by monumental public work projects and illegal land seizures,
which sparked sporadic and serious episodes of violence in various parts of the
country that been viciously put down by the public security agencies. According
to official Chinese government sources, it is estimated that last year alone there
were more than 80,000 incidents involving public protests often accompanied by
violence (Thornton 2006). These cases of mass public incidents invariably result
from spontaneous outpouring of displeasure at governmental misuse of power,

land seizures without compensation, and expression of anger at poor distribution
of social services.
At a more structural level, there is a systemic problem of silencing all forms
of dissent critical of public policies and the Communist Party. All varieties of
media discussions and public criticisms of government policies, the CCP and its
leaders, as well as academic or intellectual discourse on the Tiananmen massacre
and Cultural Revolution are prohibited, and a general ban on discussing topics
such as democracy and human rights persist. Recently, a series of media sanctions
preventing any discussion of “sudden events” or cases of public protests that
might be damaging to the credibility of the party state was announced (Kahn
2006a; 2006b). Unmitigated persistence of human rights issues and the failure
of the PRC government to address them in a meaningful, transparent, and
coherent manner is puzzling, troublesome, and contains serious implications for
China’s global leadership and its continued economic dominance. This leads to
the central question posed at the beginning of this chapter: why, despite reforms,
modernization, scorching economic development, participation in international
legal regimes, and China’s emergence as a major international actor have not
produced a meaningful impact on China’s human rights policies and practices?
Put another way, why is the PRC is continuing to resist or unable to make changes
in the human rights arena?
In this chapter, I have argued that China’s inability to implement genuine and
full reforms in human rights and internalize international human rights norms
can be explained by a combination of three determinative factors: (1) Confucian
influence and imperial institutionalist heritage; (2) Maoist socialist order; and
(3) authoritarian developmentalism, which have interacted in multiple ways at
different critical junctures and inhibited the Chinese state. Confucian and socialist–
collectivist values are embedded in the public and private sphere and the continuity
of the imperial institutional heritage continues to influence the organization and
functioning of China’s political–legal structure. These values have circumscribed
the ability of the different governments—Republican–Nationalist, Communist,
and post-Communist—to break away from the institutional and cultural weight
of historical, social, cultural, and political practices. Importantly, the institutional
factors have manifested themselves in the form of extraordinary sensitivity and even
resistance to the underlying values and principles of foreign legal institutions.
Post-1949 revolutionary China considered human rights promoted by the
Western nations, especially the excessive focus on civil and political rights and
individual liberty, to be antagonistic to the Maoist conception of the state. Mao’s
China was based on the edifice of state ownership of production, equality in the
distribution of resources and wages, access to social welfare, and a guarantee of
the right to work. Collectivist ideals are reflected in China’s international posture,
particularly in the form of anti-Western and anti-colonial pronouncements. The
People’s Republic of China became an advocate for communist and socialist
regimes in the developing world. Notably, the disproportionate emphasis of the
Western powers on civil and political liberties was interpreted as an intentional

political ploy to erode the collectivist ideals of the Chinese state. The reluctant
signature of the United States on the Economic, Social, and Cultural Rights
Convention and its continued refusal to ratify the Women’s Rights Convention
have only bolstered China’s argument that international human rights regimes are
slanted heavily in favor of civil and political liberties and reflect Western cultural
proclivities. Since the introduction of reforms in 1978, the PRC government has
placed extraordinary emphasis on economic growth at the expense of political
development.
All of the post-Mao governments have allowed Chinese citizens to enjoy
unprecedented economic freedoms and extraordinary latitude in social relations.
Both Mao’s regime and the post-Mao governments are undifferentiated and
unyielding when it comes to their overall human rights policy, although the
relative scales of human suffering have been drastically reduced since the end of
the Mao regime. During the revolutionary era both economic development and
human rights suffered, whereas the post-Mao governments have made enormous
gains in the economic sector, but retained the authoritarian governmental structure
and placed considerable restrictions on civil and political liberties and legal
rights. New authoritarianism is now directed towards sustaining the blistering
economic growth and maintaining social stability as inequality expands and rights
consciousness of the Chinese citizens expands.
China’s international accession has also been accompanied by a surge of
reactive nationalism—periodically expressed in the form of anti-Japanese and
anti-American outbursts—which has emboldened China’s leaders to dismiss
international criticism of its human rights policies. The party state has found success
through intensifying Chinese national pride to deflect international criticisms of
its human rights violations. China’s behavior towards the human rights regimes
is largely influenced by the shifts in the political philosophy of the ruling party
as it progressing rapidly towards concluding a massive transformation towards a
market-based economic system. Historical experience and homegrown intellectual
discourse on law and politics have influenced China’s combative posture towards
the international human rights organizations. Although China has ratified nine
major human rights conventions, it has engaged only in procedural cooperation.
Overall, in this chapter, I have presented an argument that emphasizes the sui
generis character of China’s imperial heritage, its authoritarian political edifice,
and Confucian political philosophy. The distinctiveness of Confucianism and its
myriad influences on the evolution of the Chinese society and its legal system, three
millennia of autonomous political development, and colonial experience cannot
be easily ignored while understanding China’s attitude towards international law
and human rights regimes. Human rights discourse and rule of law movement
derived from Western political thought and its distinctive European and American
political experience when juxtaposed against three millennia of Chinese political
development is likely to be indubitably discordant. Besides the inimitable influence
of Chinese legal thought and the uniqueness of local institutions, this article
has emphasized the marriage of authoritarianism and the new developmentalist

ideology, which emerged after 1978, as a crucial factor in understanding why China
has failed to fully embrace international human rights and introduce judicious
legal reforms. Today Beijing is more interested in consolidating its economic
gains, reasserting its power, and fulfilling its national strategic objectives such
as finding suppliers for its growing energy needs, politically isolating Japan, and
incorporating Taiwan into the mainland. Given these broad strategic goals, Chinese
leaders are less interested in creating a system that will generate or tolerate more
political dissent.
Chapter 7
State Resistance and Participation in Treaty
Regimes: A Macro-Assessment
The participation of 192 United Nations member states in 20 multilateral

environmental treaties, five major arms control agreements, and 31 human rights
conventions have been analyzed. Fifty-six multilateral treaties representing some
of the core issue areas that test the limits of state capacity, normative orientation of
the states, and willingness. Overall patterns of participation suggest that domestic
polity is a key predictor in understanding why some states enter international
treaty agreements and others do not. Additionally, an in-depth examination of a
democratic and non-democratic country—the United States and China—reveals
that domestic political processes and institutional arrangements impact the
dynamics of resistance and participation.
The basic research proposition outlined in the previous six chapters is based on
the simple premise that state participation and resistance towards multilateral treaty
regimes could be explained as a function of domestic political structure. Formal
participation in multilateral treaties is determined by ratification, which is the first
step towards eventual implementation and compliance, and norm internalization.
If states do not formally participate in multilateral treaties, international
cooperation cannot progress. Treaties operate on the basis of consent—signature
and ratification—provided in two distinct steps by the participating states.
More than 100 multilateral environmental agreements are in operation to address
complex problems such as the reduction of ozone emissions, the management
and transportation of hazardous wastes, limiting carbon emissions, protecting
endangered species, saving marine life and coral reefs, preventing desertification,
and improving air and water quality. In the human rights arena, a similar broad
range of multilateral regimes have evolved to address issues related to the
elimination of all forms of discrimination, prevention of genocide, crimes against
humanity, protection of economic, social, and political freedoms, prohibition of
torture, and abolition of slavery and apartheid. In the area of international security
an array of regimes have been developed to prohibit and limit the production,
testing, and export of nuclear, chemical, and biological weapons, including certain
conventional weapons such as landmines and blinding lasers.
Multilateral treaties have not only proliferated in different issue areas, but
they have also thickened and deeply penetrated national policy areas, which were
formerly thought to be the sovereign domain of nation states. Growth in the number
of treaties points to the increasing interdependence and complexity of policy issues
that require collective action solutions. Increase in the number, size, and capacity
of the regimes also suggests that the development of an alternative governance

structure, that is, governance without government, has important implications for
international relations theory. The success of these anarchy mitigating regimes to
a large extent still depends on the capacity and willingness of the states to join
them. State participation in treaty regimes is dependent on convergence of norms;
in instances where there is a high level of norm convergence between states and
multilateral regimes, the chances of formal participation is higher.
Most studies generally trace the impact of these treaty-based regimes on state
behavior and primarily focus their attention on regime strength and regime design
to understand why certain treaty-based regimes do not have the desired impact on
the state behavior or why treaty regimes have not been able to elicit the necessary
compliance from states (Krasner 1983; Young 1997; 1999). As Chayes and Chayes
(1995) puts it, the primary focus has been on the search for treaties with “teeth,”
that is, treaties with built-in enforcement mechanisms that would compel states
to participate and subsequently comply with treaty norms. Enforcement model
of treaty compliance focuses heavily on regime strength and on its sanctioning
abilities. This approach is top-down or systemic in its orientation and mainly
focused on examining the impact of the international system or regimes on state
behavior. International relations scholars, however, have renewed their attention
to study the impact of domestic factors on the international system—second image
reversed—by reversing the causal flow (domestic to international) and started
examining how and in what ways domestic (internal) factors influence a state’s
decision to enter or resist joining international institutions (Drake and McCubbins
1998; Drezner 2002; Evans et al. 1993; Gaubatz 1996; Gourevitch 1978; Russett
1993; Schultz and Weingast 1996; Simmons 1994). The second image reversed
approach relies on a variety of theoretical tools to explain the domestic motivations
for international engagement (Ikenberry 1996; Rogowski 1989).
According to realist international relations theory, states share similar
motivations regarding their external actions because of the anarchic international
structure, which is defined by a lack of an authoritative world government, and
states share certain common interests and strategic goals, such as survival and
security maximization (Keohane 1986; Mearsheimer 1994–1995; Waltz 1959;
1979). It can be deduced from the structural realist assumption that states should
demonstrate analogous patterns of behavior towards international treaty regimes
since all states operate in a singular anarchic international system, dissimilarities
in domestic polity notwithstanding. The expectation among realists is that states
would automatically resist international treaty participation as security maximizing
unitary rational actors should, but this expectation has not been conclusively
demonstrated.
Neoliberalism, a branch of realism that aims to demonstrate that cooperation
is indeed possible, even under anarchic circumstances by creating international
regimes, is a theoretical advancement over realism, but both realism and
neoliberalism have not been able to fully grapple with the complex dynamics
between interests of the individual states and the principles and norms enshrined
State Resistance and Participation in Treaty Regimes: A Macro-Assessment 267
in multilateral treaties (Gärtner 2006). Delegations tasked with representing

national interests in international treaty negotiations have the challenging task
of aggregating the diverse interests of multiple constituencies within a country,
which does not completely capture the diversity of perspectives. Persistent
tensions prevail in derailing the aspirations and ability of the states to engage with
international treaty instruments. Fundamentally, critical answers to understanding
the dynamics of state participation are at the domestic level as the previous six
chapters have demonstrated.
State behavior towards treaty regimes has revealed a wide gamut of actions.
Some states resist joining international treaty regimes or defy international treaty
norms, while others have demonstrated eagerness to join some regimes, but not
others, and many others have exhibited the desire to manage or constrain the
influence of certain treaty regimes. Responses towards external normative pressures
emanating from treaty-based regimes are often characterized by state behavior that
ranges from full participation to complete defiance, or incomplete and limited
procedural engagement. So, this brings us back to the essential question that this
book has attempted to grapple with: why do some states participate in international
treaty regimes and why some don’t? Is this variation in behavior an outcome of
dissimilitude in the level of political pressure directed towards the different states
by multilateral treaty regimes or is this because of variations in the domestic
political structure and internal social norms of the participating or resisting states?
If the argument is based on the assumption that all international treaty regimes
exert uniform pressure irrespective of their power, size, capacity, and normative
orientations of the states, then one should expect nearly homogeneous response—
resistance or participation—from the states. If we assume that international treaty
regimes are discriminating on the basis of power, size, capacity, and normative
predilections of the states in the exertion of external pressure, then naturally it
can be deduced that state response to regime pressure is likely to show significant
variation. Theoretically, international treaty regimes are considered to be
normatively and politically neutral, in reality that is not the case. The design of the
treaty regime, the language of the treaty, its regulatory power and capacity, and its
normative orientation is likely to collide or cohere with the political and normative
predisposition of the states and influence their decision to participate or resist.
Consent is only given to treaties that presumably offer the consenting states
some tangible and intangible benefits, or if the states subscribe to the normative
values enshrined in a said treaty, but if a state detects domestic costs (political,
economic, social, or cultural) associated with joining a treaty, it is more likely
to resist participation. When a state joins a treaty, it would be fair to assume that
a particular state’s interest is being served and some domestic factors might be
motivating the decision to enter a multilateral agreement. Or it could be that
participation in a treaty regime does not place any additional burdens on the state
or that such participation is unlikely to generate substantial domestic opposition in
the case of democracies or that the treaty is less likely to present thorny political
problems for non-democratic polities.
Variation in state behavior towards international treaty regimes could also be

produced as a function of power, capacity, temporality, and normative orientation
of the regime and/or the state. Why one state refuses to join one regime, but seeks
to join another can be explained as a function of external (international) or internal
(domestic) pressure or a combination of both. Although factors, such as degree of
pressure exerted by a treaty, ambiguity in the treaty language, and a treaty’s lack of
teeth (enforcement) do affect participation and compliance, in this book an attempt
has been made to show that internal (domestic) factors, particularly the structure
of domestic polity, is a principal factor in determining why a state joins a particular
treaty regime and why it resists entering another. The ultimate repository of state
action abides within the domestic political structure and internal social norms.
A state irrespective of its size, power, and capacity can choose to defy or resist
external pressure if it is willing to bear the costs of non-participation, which can
vary significantly from regime to regime because it is dependent on whether a
treaty regime is weak or strong. If a state is unwilling or unable to pay the political
costs of non-cooperation, then it could also engage in a range of behaviors that
involves partial/procedural participation or a state could also embark on a set of
autarkic actions to withdraw itself from international engagement as demonstrated
by the cases of Iran, Myanmar, and North Korea in several issues areas.
All multilateral treaty regimes are structurally consonant; they require
participating states to make certain adjustments and alter their laws and behavior,
which the states would not otherwise engage in without external pressure.
However, responsiveness of the states to treaty regimes varies both within and
across regimes. Mainly the key findings in the previous chapters indicate that
ratification varies as a function of domestic political structure and social norms.
Although all democracies are not always participatory, they at least seem far more
adept at responding to external influences and are willing to consider implementing
universal norms enshrined in treaties compared to non-democracies. There is a
greater convergence of norms between democracies and treaty regimes in contrast
to non-democracies; this is largely possible because of the political and institutional
openness that allow norms and laws to enter through multiple avenues to influence
and change state behavior.
Whenever norm convergence (international versus domestic) is minimal,
participation in multilateral regimes is substantially limited. Norm variation
between non-democracies and treaty regimes seem to be particularly pronounced.
If such norm variations persist, it is more likely that non-democratic institutions
are likely to be less responsive and more unwilling to alter their behavior as
function of their involvement in multilateral regimes. This is largely because
non-democracies lack the institutional structure to absorb international norms
and disseminate such norms locally. Moreover in non-democracies, the state acts
as a consequential barrier to norm absorption because the institutions of a non-
democratic state prevent norm absorption and norm internalization. Alteration in
the structure of the domestic political system from non-democracy to democracy
will not automatically lead to increased global cooperation, but analysis in the
previous chapters point out that there are significant positive linkages between a
country’s political system and participation in multilateral regimes and this factor
is repeatedly demonstrated by active participation of democracies across the three
different issue areas: environment; control of weapons of mass destruction; and
human rights.
Democracies have demonstrated a greater proclivity to join global regimes
compared to non-democracies. This finding resonates with the broader theoretical
claim made by domestic political theorists of international relations, who have
identified a positive correlation between domestic political structure—namely
democracy—and participatory international engagement. This analysis also
indicates that advanced democracies—countries that have practiced democracy for
at least three decades continuously—are more favorably disposed towards treaty
participation. The United States, however, stands out as a singular exception to this
trend. Newer democracies, especially countries that became free and independent
after the end of the Cold War, have also shown a greater inclination to join global
governance regimes compared to other democracies. Non-democratic countries
seem relatively less inclined to participate in treaty regimes. Even after formal
assent to the treaty regimes, non-democracies have failed to fully implement treaty
provisions either because of poor governance or because of unwillingness.
Domestic polity explanation is by no means complete and it does not capture
the extraordinary amount of variance in state behavior towards treaty regimes.
Results generated in the previous chapters suggest that generally states enter a
greater number of international regimes than widely predicted and democracies
are especially more participatory and the evidence here is rather strong, which is
indicative of the fact that domestic political factors could indeed have a significant
causal influence on a state’s external behavior. What is notable is that newer
democracies and newly independent countries have demonstrated great eagerness
to join treaty regimes. Another interesting factor that stands out is that a small
subset of democracies and a slightly larger subset of non-democracies are outliers
for their non-participation and defiance of treaty regimes.
If one were to look closely at the data it shows significant variations in
state participation in treaty regimes both across and within issue areas—human
rights, environment, and arms control—both among democracies and non-
democracies. Some treaty regimes seem to attract more participation, while
others enjoy little or no support; this may be due to differences in the structure
of the regimes in each area, breadth and legal scope of the treaty regime, and
enforcement capacity. Ratification of certain arms control and environmental
treaty regimes is high because of significant convergence in international
norms. Treaties after all reflect the normative values that are codified in a legal
framework. The growth in the number of treaties indicates that international
legal structure is simultaneously thickening and deepening, and it points to
the growing importance of multilateral treaty regimes that have tremendously
influenced state policies in different issues areas.
A thick layer of treaty regimes and international organizations has emerged to

mediate relations among states. Instead of relying on traditional bilateral diplomacy,
and customary international law, states have increasingly turned to treaty-based
regimes to mutually govern their policies and generate policy consensus in critical
areas, such as climate change and nuclear non-proliferation. Normative change is
being effected through treaty regimes; these changes would not otherwise occur
independent of external actors. Attempts at altering state behavior are also being
pursued through intra- and inter-regime issue linkages. Regime linkages between
trade and environment, trade and property rights, trade and human rights, and trade
and security are also increasing; such issue linkages are gradually transforming
these multilateral treaty regimes into a networked system of governance without
government.
Human rights regimes are normative or hortatory by definition; they lack the
enforcement capacity and any meaningful sanctioning mechanisms, human rights
regimes are principally name and shame regimes that operate by identifying
sustained and systemic human rights abuses and shaming the countries into
participation and compliance. This mechanism does not always work and its
ability to penetrate domestic political structures is limited. Noncompliant and
non-participant states could simply ignore international missives and continue
to pursue domestic policies in contradiction of the international normative
standards. What these multilateral treaty regimes do is establish global normative
standards about expectations of behavior in specific issue areas and attempt to
generate policy and behavioral convergence. Norm implementation is entirely
within the discretion of individual states, which is to be expected since state
parties want to reassert their sovereignty or maintain the sovereignty in certain
issue domains.
Participatory states have indeed implemented measures to bring their domestic
laws in compliance with international norms, but state capacity has always posed
considerable challenges to participate and implement. Several states, especially
economically underdeveloped states with weak governance capacity have entered
human rights conventions and failed to meet treaty expectations. Many of them
do not have functional governments, or they are engaged in sustained domestic
conflict or civil war, the governments are raked by corruption, poor infrastructure,
weak economy, and lack trained civil servants; these factors present a formidable
participation barrier. Several states that score poorly on the United Nations Human
Development Index (HDI) are unlikely to participate; undoubtedly states that
score high on the HDI index are not only democratic, but they also enter a greater
number of treaty regimes and they are more compliant with treaty norms.
Non-participation in treaty regimes results from resistance to change or
unwillingness to alter existing state practices. States that are not members of
WTO are permitted to retain high tariff walls to protect domestic industries in
contravention to WTO rules. Tariffs protect domestic industries from international
competition, provide steady wages, and preserve existing political alliances
between the protected industry and ruling elites. Entry into WTO would require
states to remove trade barriers and expose domestic industries to international

competition thereby upsetting traditional business–politics alliances. Human
rights regimes want to effect change by altering human rights practices in states
by bringing them into compliance with global norms. The International Covenant
on Civil and Political Rights (ICCPR) aims to generate a global consensus
towards political and civil liberties, promotion of free speech, outlawing of the
death penalty, treating prisoners humanely, prohibiting discrimination against
women, preventing exploitation and abuse of children, and prohibiting genocide
and torture. States are resistant to join such treaties and change their behavior
because disagreements with the norms enshrined in these multilateral treaties are
unacceptable due to religious, social, and moral considerations or, simply because
states are unwilling to initiate the politically difficult process of amending existing
social and legal practices. States see some value in persisting with certain practices
because it allows them to preserve the status quo and assert their sovereignty. Non-
democratic states are unwilling to introduce human rights considerations in the
administration of justice because of the concern that it might potentially lead to
political openness and freedoms, which might destabilize the prevailing political
system.
As the in-depth case studies of the United States and People’s Republic of
China demonstrate, domestic political factors are enormously powerful in serving
as an indicator of a state’s external behavior. China’s authoritarianism and its
overt and powerful commitment to economic growth and developmentalism at the
expense of political development is a major hurdle to its successful participation
in multilateral treaty regimes, markedly in human rights regimes. The Chinese
government relies on force, coercion, and intimidation to suppress dissent and
deploys its hegemonic institutions to dominate the civil society; ostensibly
the government is acting in the interests of the civil society, but it is also more
interested in self-preservation and less interested in sharing power or introducing
such changes within the society that might potentially erode the authoritarian
edifice of the state, which occupies the commanding heights in all arenas.
Multilateral treaty regimes seek to introduce changes not only at the societal
level, but also at the governmental level by requiring participating states to
empower its citizens by granting them a set of basic rights and entitlements that
could strengthen the civil society vis-à-vis the state. The purpose of the human
rights regimes is to introduce universal norms and encourage noncompliant
states to accept universal norms. Evidently the People’s Republic of China is
unwilling to yield to change in specific issue areas because this will definitely
have consequences for its non-democratic political structure. The primary concern
is that the authoritarian state, which is facing multiple socio-economic challenges,
would lose control over the process of economic liberalization and openness
that it seeks to carefully manage. China’s limited and unsettled participation in
human rights regimes indicates that it is not entirely a question of state capacity
or necessarily the fact that the Chinese share an alternative conception of human
rights, which is factually accurate, but it is an instance in which the state is
unwilling to participate, it does not want its citizens to be empowered, it does not
want to introduce certain human rights norms into the society that it views would
be detrimental to the power and authority of the state. Bounded participation and
noncompliance prominently demonstrates unwillingness and institutional stasis
and inertia that resists change and challenge to entrenched political authority.
Even after ratifying the Torture Convention, incidents of torture and unlawful
imprisonment continue unabatedly. All forms of domestic political expression,
free speech, and religious freedoms that might potentially challenge the hegemony
of the Communist Party are suppressed. China has cooperated only with those
regimes that do not directly challenge or attempt to reconfigure the domestic
political arrangements and directly imperil the prevailing status quo, such as in
the case of multilateral environmental treaties. The Chinese Communist Party
has shown great resolve in preserving the existing internal political order, while
liberalizing only those policies that do not in any way pose a threat to the ruling
regime.
The Indian case offers an interesting alternative compared to the case of China
and other developing countries. India and China are often compared with each other
because of their size, economic and political ambitions, and parallel development
trajectories. Democratic political organization is the only variable that distinctively
separates India from China. Democracy confers certain advantages upon India that
are not available to China and other authoritarian states. China’s human rights
practices are closely scrutinized; especially China’s inchoate legal system, which
lacks independence, transparency, and relies heavily on draconian punishments
and authoritarian social control, and has been the subject of much international
criticism and opprobrium. Although highly evolved with an independent judiciary
and nominally efficient policing system, the Indian legal system suffers many of the
same maladies confronting China, such as delays in hearing cases, police brutality,
coerced confessions, witness intimidation, corruption, political interference,
poorly trained lawyers and judges, and limited access to the justice system for the
economically marginalized, which affects human rights conditions in India just as
severely as it does in China. However, India’s human rights practices are seldom
criticized by other United Nations member states, excepting under rare occasions
of egregious mass violence. Put another way, improvement in the human rights
situation has never been linked to India’s entry into the world trading system,
whereas China’s human rights situation was directly linked to the granting of
MFN status and entry into the WTO was delayed as a result.
In the area of nuclear non-proliferation, India has openly defied the
international norms on non-proliferation by testing nuclear weapons in 1974 and
1998. Although India’s actions were condemned and sanctions were imposed,
these sanctions were subsequently rescinded and India concluded a bilateral
nuclear agreement with the United States that circumvents non-proliferation
treaty norms and will allow India to pursue its civilian nuclear program without
formal entry into NPT. Why on both counts—human rights and nuclear non-
proliferation—is India subject to a different set of rules compared to other
emerging nations? India’s selective noncompliance and defiance encounters

relatively meek international disfavor because of India’s democratic advantage.
This is largely because India’s functional democratic system provides it with
a certain degree of international legitimacy and political cache that allows
India to engage in selective defiance and noncompliance in certain multilateral
regime areas.
Numerous African and Asian states and several smaller countries do not
participate effectively in the international treaty regimes; their participation is
often characterized by incohesiveness, contumacy, and poor compliance. Afro-
Asian states are laggard in participation and compliance with international treaty
regimes because they suffer from weak institutional and financial capacity,
fragmentation of governance, and reflexive authoritarianism. Another common
trait shared by most of the non-democratic developing states from the African
and Asian continents are that they are intolerant of criticism or democratic input;
they view any political mobilization and pluralism to be so dangerous to their
regime survival that they violently suppress it. Hence, countries such as Egypt,
Indonesia, Iran, Myanmar, Nigeria, North Korea, Pakistan, Saudi Arabia, Syria,
and Zimbabwe routinely censor foreign television news, block Internet search
engines, and restrict access to print media to impede the flow of such news that
may be deemed unflattering to the government from both entering and exiting
the country. Many of these states share certain common features: such as (1) a
high concentration of political and economic power among few individuals; (2)
secrecy in decision-making and insulation from popular pressures or other public
opinion; (3) reflexive reliance on intimidation, force, coercion, and state terror
to suppress any dissent or perceived threat to the ruling regime; (4) restrictions
on civil, religious, and social liberties; and (5) they lack an independent, fair,
and functional judicial system that can operate free from political interference
and corruption. These factors in combination with weak institutional capacity
and limited financial ability make treaty implementation and regulation difficult,
which constitutes a fundamental challenge for Afro-Asian or developing countries
in general.
European states have the highest accession rates to international treaties in
almost all of the treaty issue areas. For instance, the Netherlands and Norway have
ratified nearly all of the major human rights treaties. European states have also
demonstrated superior post-accession compliance through effective incorporation
of international laws into the domestic legal code, which is accompanied by
proper implementation. Importantly, the European countries have exceeded
By European states, the reference here is to West European countries and to the
members of the European Union (EU). Although large politically relevant states such as
France, Germany, and the United Kingdom have shown occasional exceptional behavior
towards treaty regimes, the overall compliance and implementation rates of the European
states, including the new entrants to the European Union, are rather exemplary.
Based on the author’s calculations.
participation and compliance expectations by going beyond the established treaty

norms in issue areas such as human rights and arms control. What factors motivate
European states to enter almost every treaty regime and become acquiescent
and exceed expectations in compliance and implementation? A combination of
domestic institutional factors, such as a sophisticated democratic institutional
structure, increased faith in transnational governance mechanisms as exemplified
by the evolution of the European Union, highly evolved domestic sociocultural
norms, robust regulatory capacity, financial ability, the desire to devise, shape, and
direct the global normative agenda has propelled European Union member states
to participate extensively and fully with international treaty regimes. European
states have established an enviable record of participation and internationalism
in the post-Second World War era, which suggests that they also want to function
as agenda setters and act as a counterweight to American exceptionalism and
exemptionalism (Ignatieff 2005). Although similarly enabled, Europe and the
United States serve as contrasting examples for understanding variations in their
responses to the treaty regimes. While the United States wants to effect change
by operating outside the bounds of the international treaty system, the European
countries are attempting to achieve the same objective by working within the
bounds of the international treaty system.
Contrastingly, limited United States participation in multilateral treaties
is not entirely an outcome of values displacement between US governmental
authorities and treaty regimes or a naked display of power politics as many have
asserted. Complex institutional politics surrounding ratification and exceptionalist
tendencies pose a major barrier to American entry into multilateral treaties. The
Constitution of the United States articulates a vocabulary of exceptionalism.
Modern interpretations of American exceptionalism continue to emphasize that
the United States is different and superior because of its democratic organization
and constitutional commitment to individual rights and civil liberties (Donnelly
1998, 87). Belief that the United States is unique and destined to be a new,
exceptional, and different society, and serve as a model for the world is historically
established and embedded in US foreign policy actions. This exceptionalism has
pushed the United States to spread the values of democracy, freedom, and human
rights through military intervention, despite vigorous protests by the international
community (Donnelly 1998, 87; Wessner 1999, 255). Exceptionalism has often
produced an interventionist foreign policy because the promotion of democracy
and human rights became intertwined with United States national interests. The
threat of fascism and anti-democratic European regimes necessitated the use of the
United States military to save the old world from subjugation (Madsen 1998, 154).
In the post-Second World War era, the spread of Communism and authoritarianism
fundamentally threatened democracy and human rights and necessitated American
intervention.
To the rest of the world, the actions of the United States seem unilateralist,
brazen, arrogant, disingenuous, and self-serving. This is largely because of the
inherent paradox in American foreign policy. The United States sees itself as a
judge rather than a participant in the multilateral human rights regimes (Wessner
1999, 256). In addition, the United States considers its domestic human rights
policy to be beyond reproach, judgment, and international scrutiny, despite its
troubling history of slavery, racial discrimination, and the genocidal war against
Native Americans. These contradictory features have resulted in a particularistic
interpretation of universal human rights that emphasizes economic freedoms,
political openness, and civil liberties. There is also a strong element of self-
flagellation and self-criticism within American domestic politics. US human
rights policy also appears contradictory because it suffers from the vicissitudes
of democratic politics. Each US president brings with them a peculiar brand of
morality, a specific self-understanding of the United States role in the international
theater, and each administration responds differently to domestic political pressure,
specifically pressure from the United States Congress.
In area of women’s rights, the US exceeds the standards set by CEDAW.
Participation in the CEDAW regime is unlikely to alter any of the current gender
discrimination policies, but only enhance US prestige and international standing.
Opposition to CEDAW is largely based on the belief that CEDAW is somehow
anti-motherhood; it aims to alter the traditional conception of man–woman
relationships; CEDAW seeks to surreptitiously promote gay rights agenda;
encourages single parent families; and attempts to defy religious scriptures and
erode the power of religion from the public sphere and that some CEDAW and
other human rights conventions advocate an extreme liberal agenda, which is an
attempt at legislating through international conventions. Institutional dynamics
of democracies, as in the case of the United States, where the Senate and the
President share treaty powers, limits the ability of the executive branch to ratify
international agreements expeditiously. Ratification of the Genocide Convention
was held up for 40 years because of the political dynamics of the United States
Senate. Division of treaty powers has constrained the ability of the American
Presidents to enter treaty regimes in large numbers. Although the overall human
rights record of the United States is far superior compared to non-democracies,
the treaty ratification record when compared to other democracies, particularly
advanced democracies, is rather tenuous.
Bibliography
Abbott, Kenneth W. and Duncan Snidal (2000) “Hard Law and Soft Law in
International Governance.” International Organization 54 (Summer): 421–
456.
Adler, Emanuel and Michael Barnett (eds) (1998) Security Communities. New
York: Cambridge University Press.
Albrecht, Hans-Jörg (2000) “The Death Penalty in China from a European
Perspective.” In: EU-China Human Rights Dialogue. Proceedings of the
Second EU-China Legal Expert Seminar held in Beijing on October 19–20
1998 (eds) M. Nowak and Max Planck Institute for Foreign and International
Criminal Law, vol. 4. Verlag Österreich, Wien, pp. 95–118.
Alford, Bill (1999) “A Second Great Wall? China’s Post-Cultural Revolution
Project of Legal Construction.” Cultural Dynamics, July, 11(2): 193–213.
Alford, William P. (1995) “Tasselled Loafers for Barefoot Lawyers: Transformation
and Tension in the World of Chinese Legal Workers.” The China Quarterly,
March, (141): 22–38.
Alford, William P. (1997) To Steal a Book Is an Elegant Offense: Intellectual
Property Law in Chinese Civilization. Stanford, CA: Stanford University
Press.
ALI (American Law Institute) (1965) Restatement of the Law, Foreign Relations
Law of the United States no. 117.
Allison, Graham T. (1999) Essence of Decision: Explaining the Cuban Missile
Crisis, 1st edn. Cambridge, MA: MIT Press.
Alston, Philip (1997) Effective Functioning of Bodies Established Pursuant to
United Nations Human Rights Instruments—Final Report on Enhancing the
Long-Term Effectiveness of the United Nations Human Rights Treaty System,
March 27, UN High Commission for Human Rights.
Alston, Philip and James Crawford (2000) The UN Human Rights Treaty System:
A System in Crisis? In the Future of UN Human Rights Treaty Monitoring.
Cambridge University Press.
Alvarez, Jose (2002) “The New Treaty Makers”. Boston College International
and Comparative Law Review, no. 25.
American Bar Association (ABA), CEDAW—Fear v. Fact (Available online at:
http://www.abanet.org/irr/fear_fact.html.)
American Law Institute (1965) Restatement of the Law, Foreign Relations Law of
the United States §117.
Amnesty International (1996a) Annual Country Reports-China. London: Amnesty
International Press.
Amnesty International (1996b) People’s Republic of China—Torture and Ill-

Treatment: Comments on China’s Second Periodic Report to the UN Committee
Against Torture. London: Amnesty International Press, April.
Amnesty International (1996c) People’s Republic of China: Religious Repression
in China. London: July.
Amnesty International Special Report (1999) China—No One is Safe: Political
Repression and Abuse of Power in the 1990s (London, UK: Amnesty
International Press).
Amnesty International (AI) (2000a) “China including Hong Kong and Macao.”
Annual Report. (Available online at: http://www.amnesty.org/.)
Amnesty International (AI) (2000b) “People’s Republic of China—the Death
Penalty in China 2000,” September. (Available online at: http://news.amnesty.
org/library/pdf/ASA170322002ENGLISH/$File/ASA1703202.pdf.)
Amnesty International (AI) (2002) Annual Report, London, UK. (Available online
at: http://www.amnesty.org/.)
Amnesty International (AI) (2003a) “Chinese use Mobile Death Vans to Execute
Prisoners.” Amnesty Wire, May. (Available online at http://web.amnesty.org/.)
Amnesty International (2003b) People’s Republic of China, Continuing Abuses Under
a New Leadership—Summary of Human Rights Concerns, September 30.
Amnesty International (2003) Judges and Torture. London, UK: Amnesty
International Press, January.
Amnesty International (AI) (2004) “People’s Republic of China: Executed
‘According to Law’?—The Death Penalty in China,” March 22. (Available
online at: http://web.amnesty.org/library/index/engasa170032004.)
Amnesty International (2005) “People’s Republic of China The Olympics
Countdown—Three Years of Human Rights Reform?” August. (Available
online at: http://asiapacific.amnesty.org/library/Index/ENGASA170212005?o
pen&of=ENG-2AS.)
Amnesty International (AI) (2007) “Facts and Figures on the Death Penalty,”
January. (Available online at: http://www.amnesty.org.)
Amnesty International (2008) “Recent Death Penalty Trends November.”
(Available online at: http://www.amnestyusa.org/death-penalty/.)
Amnesty International (2005) A Fact Sheet on CEDAW: “Treaty for the Rights of
Women.” (Available online at: http://www.amnestyusa.org/women/pdf/cedaw.
pdf.)
Amnesty International (2008) “Executions by State in the US.” (Available online
at: http://www.amnestyusa.org/death-penalty/.)
Anthony, Ian (2002) “Multilateral Export Controls,” Chapter 14, Stockholm
International Peace Research Institute (SIPRI). (Available online at: http://
www.sipri.org/contents/expcon/expconpub.html.)
Anthony, Ian and Jean Pascal Zanders (1999) “Multilateral Weapon and Technology
Export Controls”, Appendix. 15A, Stockholm International Peace Research
Institute (SIPRI). (Available online at: http://www.sipri.org/contents/expcon/
expconpub.html.)
Bibliography 279
Arendt, Hannah (1964) The Origins of Totalitarianism. New York: Meridian

Books.
Axelrod, Robert (1985) The Evolution of Cooperation. New York: Basic Books.
Axelrod, Robert and Robert O. Keohane (1993) “Achieving Cooperation Under
Anarchy: Strategies and Institutions.” In: Neorealism and Neoliberalism,
The Contemporary Debate (ed.) David A. Baldwin, New York: Columbia
University Press, pp. 85–115.
Baldwin, David A. (eds) (1993) Neorealism and Neoliberalism: The Contemporary
Debate. New York, NY: Columbia University Press.
Barnett, Michael (1990) “High Politics is Low Politics: The Domestic and
Systemic Sources of Israeli Security Policy, 1967–1977,” World Politics, July
42(4): 529–562.
Bayefsky, Anne F. (1996) First Report of the International Law Association’s
Committee on International Human Rights Law and Practice, submitted to the
Helsinki Conference, August 11–17 1996.
Bayefsky, Anne F. (2001) The UN Human Rights Treaty System: Universality at
the Crossroads. Ardsley, NY: Transnational Publishers.
BBC Online News (2003) “Iran Steps Up Net Censorship,” May 12. (Available
online at: http://news.bbc.co.uk/2/hi/technology/3019695.stm), accessed June
12 2008.
BBC Online News (2005) “China ‘wrong killer’ Seeks Amends,” May 12.
(Available online at http://news.bbc.co.uk/2/hi/asia-pacific/4539365.stm.)
BBC Online News (2006) “China Official Admits to Torture,” November 20.
(Available online at: http://news.bbc.co.uk/2/hi/asia-pacific/6164408.stm.)
Becker, Jasper (2002) “One Chinese Lawyer’s Crusade.” Christian Science
Monitor, July 3, p. 6.
Becquelin, Nicolas (2004) “Criminalizing Ethnicity: Political Repression in
Xinjiang,” Human Rights in China, No.1.
Bernhardt, Karthryn and Philip C.C. Huang (1994) Civil Law in Qing and
Republican China. Stanford, CA: Stanford University Press.
Sarah Biddulp (2005) “Mapping Legal Change in the Context of Reforms to
Chinese Police Powers,” in Asian Socialism and Legal Change: The Dynamics
of Vietnamese and Chinese Reforms, (eds) John Gillespie and Pip Nicholson,
Canberra: The Australian National University Press, 2005, pp. 212–238.
Bill of Rights (1791) (Available online at: http://www.archives.gov/exhibits/
charters/bill_of_rights_transcript.html.)
Blanchfield, Luisa (2008) The Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW): Congressional Issues, October 28,
CRS Report for Congress, Order Code RL33652.
Bodde, Derk (1980) “Age, Youth, and Infirmity in the Law of Ch’ing China.”
In: Essays on China’s Legal Tradition (ed) Jerome A. Cohen, Randle R.
Edwards, and Fu-mei Chang Chen, Princeton, NJ: Princeton University
Press, pp. 137–169.
Bodde, Derk 1981) Essays on Chinese Civilization. Princeton, NJ: Princeton

University Press.
Bodde, Derk and Clarence Morris (1973) Law in Imperial China. Philadelphia:
University of Pennsylvania Press.
Boxer, John T (1999) “China’s Death Penalty: Undermining Legal Reform and
Threatening National Economic Interest,” Suffolk Transnational Law Review,
22(2):593–618.
Bradely, Curtis A. (1998) “Treaty-Power and American Federalism,” Michigan
Law Review, November, 97: 390–461.
Bradley, Curtis A. and Jack L. Goldsmith (2000) “Treaties, Human Rights, and
Conditional Consent.” University of Pennsylvania Law Review, December,
149(2): 399–468.
Bradley, F.H. (1927) Ethical Studies, 2nd edn., Oxford, UK: Oxford University
Press; cited in Hsieh-Yu-Wei “The Status of the Individual in Chinese Ethics.”
In: The Chinese Mind: Essentials of Chinese Philosophy and Culture (ed.)
(1967) Charles A. Moore. Honolulu: University of Hawaii Press, pp: 307–
322.
Bravin, Jess (2002) “US to Pull Out of World Court on War Crimes.” Wall Street
Journal, May 5, p. 4A.
Breyer, Stephen (2003) “The Supreme Court and the New International Law.” The
American Society of International Law, 97th Annual Meeting, Washington,
DC, April 4.
Broomhall, Bruce (2001) “Toward US Acceptance of the International Criminal
Court.” Law and Contemporary Problems, Winter, 64(1): 141–51.
Buchheim, Hans (1968) Totalitarian Rule: Its Nature and Characteristics,
translated by Ruth Hein with annotations by Kurt P. Tauber. Middletown, CN:
Wesleyan University Press.
Buck, Susan J. (1998) The Global Commons: An Introduction. Washington, DC:
Island Press.
Buckley, William F. Jr. (1980) “Human Rights and Foreign Policy: A Proposal.”
Foreign Affairs, Spring, pp. 775–796.
Caldwell, Lynton Keith (1984) International Environmental Policy: Emergence
and Dimensions. Durham, NC: Duke University Press.
Caldwell, Robert G. (1952) “Why Is the Death Penalty Retained?” Annals of the
American Academy of Political and Social Science, Vol. 284, November, pp.
45–53.
Calhoun, Craig (1994) Neither Gods nor Emperors: Students and the Struggle for
Democracy in China. Berkeley, CA: University of California Press.
Carter, Jimmy (1977) Jimmy’s Address to the United Nations General Assembly,
March 17.
Carter, Jimmy (1979) “Commencement Address at the University of Notre Dame,
May 22, 1977.” Human Rights and American Foreign Policy, Donald P.
Kommers and Gilburt D. Loescher. Indiana: University of Notre Dame Press,
p. 333.
Bibliography 281
CAT (Committee Against Torture) (1999) China, Third Periodic Reports of

the States Parties due in 1997, CAT/C/39/Add.2, January 5. UN High
Commissioner for Human Rights.
CAT (Committee Against Torture) (2000) Conclusions and Recommendations of
the Committee Against Torture: China, May 9, UN High Commissioner for
Human Rights.
CCW Convention (1980) Convention on Prohibitions or Restrictions on the Use
of Certain Conventional Weapons Which May Be Deemed to Be Excessively
Injurious or to Have Indiscriminate Effects. (Available online at: http://www.
unog.ch/.)
CECC (Congressional-Executive Commission on China) (2003a) Annual Report,
108th Congress, 1st Session, October 2.
CECC (Congressional-Executive Commission on China) (2003b) After the
Detention and Death of Sun Zhigang: Prisons and Detention in China, 108th
Congress, 1st Session, October 27.
CECC (Congressional-Executive Commission on China) (2006) Annual Report,
109th Congress, 2nd Session, September 20.
Chandler, David P. (2000) A History of Cambodia. Boulder, CO: Westview Press.
Chanlett-Avery, Emma and Sharon Squassoni (2006) North Korea’s Nuclear Test:
Motivations, Implications, and U.S. Options. CRS Report for the Congress,
Order Code RL33709, October 24.
Chao, Julie (2003) “Death Penalty Debate Builds in China,” Atlanta-Journal
Constitution, July 13, p. 7A.
Chayes Abram and Antonia H. Chayes (1995) The New Sovereignty: Compliance
with International Regulatory Agreements. Cambridge, MA: Harvard
University Press.
Chehabi, H.E. and Juan J. Linz (1998) Sultanistic Regimes. Baltimore, MD: Johns
Hopkins University Press.
Chen, Fu-mei Chang (1980) “The Influence of Shen Chih-Ch’i’s Chi-Chu
Commentary Upon Ch’ing Judicial Decisions.” In: Essays on China’s Legal
Tradition (ed) Jerome A. Cohen, Randle R. Edwards, and Fu-mei Chang Chen,
Princeton: Princeton University Press, pp. 170–221.
Cheng, F.T. (1924) “Law Codification in China.” Journal of Comparative
Legislation and International Law, 6(4): 283–292 (need full page numbers)
Chesneaux, Jean, Marianne Bastid, and Marie-Claire Bergère. (1976) China from
the Opium Wars to the 1911 Revolution. Anne Destenay, translated. New York:
Pantheon.
Chevrier, Marie Isabelle (1996) “Chemical and Biological Weapons.” In: Arms
Control: Toward the 21st Century (eds) (1996) Jeffrey A. Larsen and Gregory
J. Rattray. Boulder, CO: Lynne Rienner Publishers, pp. 143–161.
Chevrier, Marie Isabelle and Amy E. Smithson (1996) “Preventing the Spread of
Arms: Chemical and Biological Weapons.” In: Arms Control: Toward the 21st
Century (eds) Jeffrey A. Larsen and Gregory J. Rattray. Boulder, CO: Lynne
Rienner Publishers, pp. 119–141.
China Daily (2005) “Cop in Unjust Case Found Hanged in Graveyard,” May 27.
(Available online at http://www.chinadaily.com.cn/english/doc/2005-05/27/
content_446268.htm.)
Chinoy, Mike (2001) “Another scholar detained by China,” CNN Asia, March 29.
Chiu, Hungdah (1966) “Communist China’s Attitude Toward International Law.”
American Journal of International Law, April, 60(2): 245–267.
Cholewinski Ryszard, Richard Perruchoud, and Euan MacDonald (2007)
International Organization for Migration, International Migration Law,
Developing Paradigms and Key Challenges (eds). The Hague, the Netherlands:
Asser Press.
CHR (Commission on Human Rights) (1997) Effective Functioning of Bodies
Established Pursuant to United Nations Human Rights Instruments, E/
CN.4/1997/74, March 27.
Christol, Carl Q. (1968) “Communist China International Law: Strategy and
Tactics.” The Western Political Quarterly, September, 21(3): 456–467.
Chunde, Gu (1982) “A Brief Discussion of Natural Rights Theory.” Red Flag 7,
pp. 32–36.
Chunde, Gu and Dong Yunhu (1982) An In-Depth Discussion of Human Rights.
Beijing: People’s Public Security Publishing House, pp. 66–76.
Cirincione, Joseph (2000) Repairing the Regime: Preventing the Spread of
Weapons of Mass Destruction. New York: Routledge.
Cirincione, Joseph, Jon B. Wolfsthal, and Miriam Rajkumar (2002) Deadly
Arsenals: Tracking Weapons of Mass Destruction. Washington, DC: Carnegie
Endowment for International Peace.
Cirincione, Joseph, Jon B. Wolfsthal, and Miriam Rajkumar (2005) Deadly
Arsenals: Tracking Weapons of Mass Destruction, 2nd edn. Washington, DC:
Carnegie Endowment for International Peace.
Committee on Foreign Relations, United States Senate (2001) Treaties and Other
International Agreements: The Role of the United States Senate. Congressional
Research Service, Washington, DC, January.
Curlier, Maria and Steinar Andresen (2002) International Trade in Endangered
Species: The CITES Regime. In: Environmental Regime Effectiveness (eds)
Edward L. Miles et al. Cambridge, MA: the MIT Press, pp. 357–378.
CITES (Convention on International Trade in Endangered Species of Wild Fauna
and Flora) (2007) Fourteenth Meeting of the Conference of the Parties, The
Hague (the Netherlands), June 3–15.
CITES (Convention on International Trade in Endangered Species of Wild Fauna
and Flora. Discover CITIES. (Available online at: http://www.cites.org/eng/
disc/what.shtml.)
Clark, Ian (1997) Globalization and Fragmentation: International Relations in
the Twentieth Century. New York: Oxford University Press.
Clark, Ian (1999) Globalization and International Relations Theory. New York:
Oxford University Press.
Bibliography 283
Claude, Inis L. (1966) “Collective Legitimation as a Political Function of the

United Nations.” International Organization 20(3): 367–379.
Claude, Inis L. (1986) American Approaches to World Affairs. Lanham, MD:
University Press of America.
Claude, Richard Pierre and Burns H. Weston (1989) Human Rights in the
World Community: Issues and Action (eds). Philadelphia, PA: University of
Pennsylvania Press.
Clough, Michael (1982) Changing Realities in Southern Africa: Implications
for American Policy. Berkeley, CA: University of California Institute of
International Studies.
Clymer, Adam (2002) “House Panel Approves Measures to Oppose New Global
Court.” New York Times, May 11, p. 3A.
Coalition for the International Criminal Court (History of ICC) (Available online
at: http://www.iccnow.org/?mod=icchistory.)
Coate, Roger A. (1982) Global Issue Regimes. New York: Praeger.
Coate, Roger A. (1988) Unilateralism, Ideology, and U.S. Foreign Policy: The
United States In and Out of UNESCO. Boulder, CO: Lynne Rienner.
Cohen, Avner (1998) Israel and the Bomb. New York: Columbia University Press.
Cohen, Avner (2000) “The Bomb that Never Is.” Bulletin of the Atomic Scientists,
May–June, 56(3): 22–23.
Cohen, Jerome A. (1980) “Introduction.” In: Essays on China’s Legal Tradition
(ed.) Jerome A. Cohen, Randle Edwards, and Fu-mei Chang Chen. Princeton,
NJ: Princeton University Press pp. 3–25.
Cohen, Jerome A. and Hungdah Chiu (1974) People’s China and International
Law: A Documentary Study. Princeton, NJ: Princeton University Press.
Cohen, Roberta (1979) “Human Rights Decision-Making in the Executive Branch:
Some Proposals for a Coordinated Strategy.” In: Human Rights and American
Foreign Policy (eds) Donald P. Kommers and Gilburt D. Loescher. Notre
Dame. Indiana, IN: University of Notre Dame Press, pp. 216–246.
Cohen, Roberta (1987) “People’s Republic of China: The Human Rights
Exception.” Human Rights Quarterly, November, (9): 447–549.
Committee on Foreign Relations (2001) United States Senate, Treaties and Other
International Agreements: The Role of the United States Senate, January.
Washington, DC: Congressional Research Service.
Congressional-Executive Commission on China (CECC) (2002a), Annual Report
2002, 107th Congress, 2nd Sess., October 2.
Congressional-Executive Commission on China (CECC) (2002b), Roundtable on
Religious Freedom in China, 107th Congress, 2nd Sess., March 25.
Constitution of the United States (1787) Washington, DC: Government Printing
Office. (Available online at: http://www.gpo.gov.)
Cortell, Andrew P. and James W. Davis, Jr. (2000) Understanding the Domestic
Impact of International Norms: A Research Agenda, International Studies
Review. Spring, 2(1): 65–87.
Cox, Richard H. (1998) Four Pillars of Constitutionalism: The Organic Laws of

the United States. New York: Prometheus Books.
Crawford, James (2000) The UN Human Rights Treaty System: A System in
Crisis? In: The Future of UN Human Rights Treaty Monitoring. New York,
NY: Cambridge University Press.
Creel, Herrlee Glessner (1980) “Legal Institutions and Procedures During
the Chou Dynasty.” In: Essays on China’s Legal Tradition (eds) Jerome A.
Cohen, Randle R. Edwards, and Fu-mei Chang Chen, Princeton, NJ: Princeton
Crossette, Barbara (2000) “U.S. Envoy Tackles Objections to Tribunal on War
Crimes,” New York Times, December 12, p. 6A.
Crouse, Janice Shaw (2002) “Prevailing Perils of CEDAW,” Washington Times,
August 7, p. A15.
Curlier, Maaria and Andresen Steinar (2002) “International Trade in Endangered
Species: The CITES Regime.” In: Environmental Regime Effectiveness (eds)
Edward L. Miles et al. Cambridge, MA: The MIT Press, pp. 357–378.
CRS (Congressional Research Service) (1993) Treaties and Other International
Agreements: The Role of the United States Senate, 103rd Congress, 1st
Session.
Dao, James (2002) “Senate Panel Approves Treaty Banning Bias Against Women,”
New York Times, July 31, p. 3A.
Davies, Richard O. (1993) Defender of the Old Guard: John Bricker and American
Politics. Columbus, OH: Ohio University Press.
Davis, Burke (1988) The Civil War, Strange and Fascinating Facts. New York:
Random House.
Davis, Zachary (1993) “The Realist Nuclear Regime.” Security Studies, Spring/
Summer 2(3/4):79–90.
DeBary, William T. (1998) Asian Values and Human Rights: A Confucian
Communitarian Perspective. Cambridge, MA: Harvard University Press.
Deflem, Mathieu (1998) International Law as Law of the United States, by Jordan J.
Paust. European Journal of International Law 9(4): 765-767 (Book Review).
DeGarmo, Denise K. (2004) International Environmental Treaties and State
Behavior: Factors Influencing Cooperation. New York: Routledge.
DeSombre, Elizabeth R. (2004) The Evolution of International Environmental
Cooperation, Journal of International Law and International Relations, 1(1–
2): 75–88.
Dessler, David (1989) “What’s at Stake in the Agent-Structure Debate?”
International Organization, Summer, 43(3): 441–473.
Dethier, Jean-Jacques (2006) Governance, Decentralization and Reform in China,
India, and Russia. Kluwer Publishers.
Deudney, Daniel H. and Richard A. Matthew (eds) (1999) Contested Grounds:
Security and Conflict in the New Environmental Politics. Albany, NY: State
University of New York Press.
Bibliography 285
Dickson, Bruce J. (2003) Red Capitalists in China: The Party, Private

Entrepreneurs, and Prospects for Political Change. New York: Cambridge
University Press.
Diehl, Paul F. (2002–2003) “Reconceptualizing Treaty Consent,” No. 6. Gonzaga
Journal of International Law. (Available online at: http://www.gonzagajil.
org/.)
Dixon, William J. (1994) “Democracy and Peaceful Settlement of International
Conflict.” American Political Science Review, March, 88(1): 14–32.
Donnelly, Jack (1998) International Human Rights, 2nd edn. Boulder, CO:
Westview Press.
Donnelly, Jack (2000) Realism and International Relations. New York: Cambridge
University Press.
Donnelly, Jack (2003) Universal Human Rights in Theory and Practice, 2nd edn.
Ithaca, NY: Cornell University Press.
Donnelly, Jack (2007) International Human Rights, 3rd edn. Boulder, CO:
Westview Press.
Downs, George W., David Rocke, and Peter N. Barsoom (1998) “Managing the
Evolution of Multilateralism”, International Organization, 52: 397–419.
Doyle, Michael W. (1983) “Kant, Liberal Legacies, and Foreign Affairs.”
Philosophy and Public Affairs, Summer, 12(3): 205–35.
Doyle, Michael W. (1997) Ways of War and Peace. New York: W.W. Norton.
Drake, Paul W and Mathew D. McCubbins (1998) The Origins of Liberty: Political
and Economic Liberalization in the Modern World. Princeton, NJ: Princeton
University Press.
Drezner, Daniel W. (ed.) (2002) Locating the Proper Authorities: The Interaction
of Domestic and International Institutions. Ann Arbor, MI: University of
Michigan Press.
Drezner, Daniel W. (2007) All Politics Is Global: Explaining International
Regulatory Regimes. Princeton, NJ: Princeton University Press.
Edwards, R. Randle (1980) “Ch’ing Legal Jurisdiction Over Foreigners.” In:
Essays on China’s Legal Tradition (eds) Jerome A. Cohen, Randle R. Edwards,
and Fu-mei Chang Chen, Princeton, NJ: Princeton University Press, pp. 222–
269.
Eidelberg, Paul (1968) The Philosophy of the American Constitution: A
Reinterpretation of the Intentions of the Founding Fathers. New York: The
Free Press.
Eisenhower, Dwight D. (1953) “Atoms for Peace.” Speech Delivered to the 470th
Plenary Meeting of the United Nations General Assembly, Tuesday December
8. (Available online at: http://www.iaea.or.at/worldatom/About/atoms.html.)
Elsea, Jennifer (2002) International Criminal Court: Overview and Selected
Legal Issues, Report for the Congress, Congressional Research Service
(CRS), June 5.
Elsea, Jennifer K. (2006) U.S. Policy Regarding the International Criminal Court,
Report for the Congress, Congressional Research Service (CRS), August 29.
Evans, Peter B. Harold K. Jacobson, and Robert D. Putnam (eds) (1993) Double-
Edged Diplomacy: International Bargaining and Domestic Politics. Berkley,
CA: University of California Press.
Fairbank, John K. (1953) Trade and Diplomacy on the China Coast: The Opening
of the Treaty Ports, 1842–1854. Cambridge, MA: Harvard University Press.
Fairbank, John K. et al. (1965) “Political Loyalty and Social Harmony: The Sacred
Edict of the Kangxi Emperor (1670).” Republished in: East Asia: The Modern
Transformation. Boston, MA: Houghton Mifflin.
Falk, Richard A. (1964) The Complexity of Sabbatino. The American Journal of
International Law, October, 58(4): 935–951.
Falk, Richard (1981) Human Rights and State Sovereignty. New York: Holmes and
Meier Publishers.
Farer, Tom S. (1992) “The United Nations and the Human Rights: More than
a Whimper, Less Than A Roar.” In: Claude and Weston, Human Rights in
the World Community: Issues and Action. Philadelphia, PA: University of
Pennsylvania Press, pp. 227–240.
Fathi, Nazila (2002) “The World; Taboo Surfing: Click Here for Iran …” The New
York Times, August 4, Section 4, p. 5.
Fawcett, Louise and Yezid Sayigh (1999) The Third World Beyond the Cold War:
Continuity and Change. New York: Oxford University Press.
Fearon, James D. (1994) “Domestic Political Audiences and the Escalation of
International Disputes.” The American Political Science Review, September
88(3): 577–592.
Federation of American Scientists (FAS) “Nuclear Forces Guide: France.”
(Available online at: http://www.fas.org/nuke/guide/france/nuke/index.html)
(no date provided or available).
Federation of American Scientists (FAS) “Algeria Special Weapons.” (Available
online at: http://www.fas.org/nuke/guide/algeria/) (no date provided or
available).
Feng, Zhu (1995) “Human Rights and the Political Development of Contemporary
China, 1979–1994.” In: Human Rights and Chinese Values: Legal,
Philosophical, and Political Perspective (ed.) Michael C. Davis. Hong Kong:
Oxford University Press, p. 116–141.
Fewsmith, Joseph (1999) “Elite Politics.” In: The Paradox of China’s Post-Mao
Reforms (eds) Merle Goldman and Robert Macfarquhar. Cambridge, MA:
Harvard University Press, pp. 47–75.
Fewsmith, Joseph (2001) Elite Politics in Contemporary China. New York: M.E.
Sharpe.
Finer, S.E. (1997) The History of Government from the Earliest Times. Oxford,
New York: Oxford University Press.
Fingarette, Herbert (1972) Confucius: The Secular as Sacred. New York: Harper
Books.
Finnemore, Martha (1996) National Interests in International Society. Ithaca, NY:
Cornell University Press.
Bibliography 287
Finnemore, Martha and Kathryn Sikkink (1998) “International Norms Dynamics

and Political Change,” International Organization, special issue, 52(4): 887–
917.
Fischer, David (1997) History of the International Atomic Energy Agency: The
First Forty Years. Vienna, International Atomic Energy Agency.
Fisher, Roger (1981) Improving Compliance with International Law. Charlottesville,
VA: University of Virginia Press.
Foran, Virginia I. (1966) Missed Opportunities: The Role of Security Assurances
in Nuclear Non-Proliferation. Washington, DC: The Brookings Institution.
Foran, Virginia I. (ed.) (1992) Nuclear Non-Proliferation, 1945–1991. Alexandria,
VA: Chadwyck-Healey.
Franck, Thomas M. (1995) Fairness in International Law and Institutions. New
York: Oxford University Press.
Freedom House (2007) Freedom in the World 2007: The Annual Survey of Political
Rights and Civil Liberties. New York: Rowman and Littlefield Publishers.
Frieden, Jeffrey A. (1991) Debt, Development, and Democracy: Modern Political
Economy and Latin America, 1965–1985. Princeton, NJ: Princeton University
Press.
Friedman, Edward (2003) “Northeast Asia: China.” In: A Force Profonde: The
Power, Politics, and Promise of Human Rights (ed.) Edward A. Kolodziej.
Philadelphia: University of Pennsylvania Press, pp. 128–143.
Ganguly, Sumit (1999) India’s Pathway to Pokhran II: The Prospects and Sources
of New Delhi’s Nuclear Weapons Program, International Security, Spring,
23(4): 148–177.
Gärtner, Heinz (2006) Arms Export Control Institutions and Regimes between
Compliance and Non-Cooperation—Proliferation Security Initiative (PSI),
the Wassenaar Arrangement (WA) and Other Initiatives, Presented at the
International Studies Association Annual Convention.
Gaubatz, Kurt Taylor (1996) “Democratic States and Commitment in International
Relations.” International Organization 50, Winter, (1): 109–39.
Genocide Convention (1986) United States Reservations, Declarations, and
Understandings, International Convention on the Prevention and Punishment
of the Crime of Genocide (1986) Congressional Record, S1355-01. Daily edn.,
February 19. (Available online at: http://www1.umn.edu/humanrts/usdocs/
genres.html.)
Gilbert, Alan (1999) Must Global Politics Constrain Democracy: Great-Power
Realism, Democratic Peace, and Democratic Internationalism. Princeton, NJ:
Princeton University Press.
Gilley, Bruce (1998) Tiger on the Brink: Jiang Zemin and China’s New Elite.
Berkeley, CA: University of California Press.
Gilpin, Robert (1981) War and Change in World Politics. Cambridge; New York:
Ginsburgs, George and Arthur Stahnke (1964) “The Genesis of the People’s
Procuratorate in Communist China 1949–1951.” The China Quarterly,
October–December (20): 1–37.
Glossop, Ronald J. (1999) “Global Governance Requires Global Government.”
In: Toward Genuine Global Governance: Critical Reactions to Our Global
Neighborhood (eds) Errol E. Harris and James A. Yunker. Westport, CT:
Praeger, pp. 43–56.
Gary Goertz and Paul F. Diehl (1992) “Toward a Theory of International Norms:
Some Conceptual and Measurement Issues”, The Journal of Conflict Resolution,
Vol. 36, No. 4, December, pp: 634–664.
Goldman, Merle (1999) “The Twentieth Anniversary of the Democracy Wall
Movement.” Harvard Asia Quarterly Summer, 3 (3). (Available online at:
http://www.asiaquarterly.com/content/view/41/40/.)
Goldman, Merle and Roderick MacFarquhar (1999) “Dynamic Economy,
Declining Party-State.” In: The Paradox of China’s Post-Mao Reforms
(eds) Merle Goldman and Roderick Macfarquhar. Cambridge, MA: Harvard
University Press, pp.3–29.
Goldstein, Eric (1999) The Internet in the Mideast and North Africa: Free
Expression and Censorship. Human Rights Watch, Washington, DC.
Goldstein, Leslie Friedman (1988) The Constitutional Rights of Women: Cases in
Law and Social Change. Madison, WI: University of Wisconsin Press.
Goodman, Ryan (2002) “Human Rights Treaties, Invalid Reservations, and State
Consent”, American Journal of International Law, 96: 531–560.
Gourevitch, Peter (1978) “The Second Image Reversed: The International Sources
of Domestic Politics.” International Organization, Autumn, 32(4): 881–912.
Gourevitich, Peter (1986) Politics in Hard Times: Comparative Responses to
International Economic Crises. Ithaca, NY: Cornell University Press.
Gowa, Joanne S. (1983) Closing the Gold Window: Domestic Politics and the End
of Bretton Woods. Ithaca, NY: Cornell University Press.
Gowa, Joanne S. and Edward Mansfield (1993) “Power Politics and International
Trade.” American Political Science Review 87, June, pp. 408–420.
Grasso, June, Jay Corrin, and Michael Kort (2004) Modernization and Revolution
in China: From the Opium Wars to World Power, 3rd edn. New York: M.E.
Sharpe.
Greenville, J.A.S. (1974) The Major International Treaties 1914–1973: A History
and Guide with Texts. New York: Stein and Day Publishers.
Grossman, Marc (2003) Under Secretary for Political Affairs, Remarks to the
Center for Strategic and International Studies, American Foreign Policy and
The International Court, Center for Strategic and International Studies (CSIS),
Washington, DC, May 6.
Gruber, Llyod (2000) Ruling the World: Power Politics and the Rise of
Supranational Institutions. Princeton, NJ: Princeton University Press.
Bibliography 289
Guangze, Wang (2007) “The Mystery of China’s Death Penalty Figures”, Human
Rights in China (HRIC) 2: 39–43. (Available online at: http://hrichina.org/
public/PDFs/CRF.2.2007/CRF-2007-2_Mystery.pdf.)
Gurr, Ted Robert (1997) Polity II: Political Structures and Regime Change, 1800–
1986. Inter-University Consortium for Political and Social Research. Ann
Arbor, MI: University of Michigan.
Gwertzman, Bernard (1977) “Carter Meets with Soviet Dissident.” New York
Times, March 2, p. 1.
Halpern, Nina (1991) “Economic Reform, Social Mobilization, and Democratization
in Post-Mao China.” In: Reform and Reaction in Post-Mao China: The Road to
Tiananmen (ed.) Richard Baum. New York: Routledge, pp.38–59.
Hamilton, Alexander (1788a) Federalist no. 75, March 26. (Available online at:
(http://www.votesmart.org/reference/fedlist/fed75.htm.)
Hamilton, Alexander (1788b) “Certain General and Miscellaneous Objections to
the Constitution Considered and Answered”. Federalist no. 84, May. (Available
online at: http://www.votesmart.org/reference/fedlist/fed84.htm.)
Hansclever, Andreas, Peter Mayer, and Volker Rittberger (1997) Theories of
International Regimes. Cambridge, UK: Cambridge University Press.
Haocheng, Yu (1995) “On Human Rights and Their Guarantee by Law.” In: Human
Rights and Chinese Values: Legal, Philosophical, and Political Perspective
(ed.) Michael C. Davis. Hong Kong: Oxford University Press, pp. 93–115.
Hass, Peter (1983) “Words Can Hurt You; Or, Who Said What to Whom About
Regimes.” In: International Regimes (ed.) Stephen D. Krasner. Ithaca, NY:
Cornell University Press, pp. 23–60.
Hass, Peter (ed.) (1992) Knowledge, Power, and International Policy Coordination.
Columbia, SC: University of South Carolina Press.
Hatch, Orrin B. (1985) “Reject the Genocide Convention,” New York Times, April
23, p. 27A.
Hawkins, Darren (2002) “The Triumph of History: Explaining War Crimes
Enforcement.” Presented at the 98th Annual Meeting of the American Political
Science Association. Boston, MA. August 29–September 1.
Healy, Thomas (1998) “Is Missouri v. Holland Still good Law? Federalism and
The Treaty Power.” Columbia Law Review, November, 98(7): 1726–1756.
Hearings before a Subcommittee on Foreign Relations (1950) Genocide
Convention, United States Senate, 81st Congress, 2nd Session, January–
February. Washington, DC: US Government Printing Office.
Hearings before a Subcommittee on Foreign Relations (1971) Genocide
Convention, United States Senate, 92nd Congress, March. Washington, DC:
US Government Printing Office.
Hearings before the Committee on Foreign Relations (1971) United States Senate,
Genocide Convention, 95th Congress, 1st Session, May. Washington, DC: US
Government Printing Office.
Hearings before the Senate Committee on Foreign Relations (1977) Genocide

Convention, United States Senate, May, 95th Congress, 1st Session.
Washington, DC: US Government Printing Office.
Hearings before Senate Committee on Foreign Relations (1979) United States
Senate, Convention on the Elimination of All Forms of Discrimination Against
Women, Adopted by The UN General Assembly on December 18, 1979, and
signed on behalf of the United States of America on July 17, 1980, 107th
Congress, 2nd Session, June 13 2002.
Hearings before the Senate Committee on Foreign Relations (1994) United States
Senate, Committee on the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW), 103rd Congress, 2nd Session,
September 27.
Hearing before the Committee on Foreign Relations (2000) United States Senate,
The International Criminal Court: Protecting American Servicemen and
Officials from the threat of International Prosecution. 106th Cong., 2nd Sess.,
June 14.
Hearing before the Subcommittee on International Operations of the Committee on
Foreign Relations (1998) United States Senate, Is A UN International Criminal
Court in the U.S. National Interest? 105th Congress, 2nd Session, July 23.
Hecht, Jonathan (1996) Opening to Reform? An Analysis of China’s Revised
Criminal Procedure Law. New York: Lawyers Committee on Human Rights,
October 1996.
Held, David (1995) Democracy and the Global Order: From the Modern State to
Cosmopolitan Governance. Stanford, CA: Stanford University Press.
Held, David (1996) Models of Democracy. 2nd edn. Stanford, CA: Stanford
University Press.
Held, David and Daniele Archibugi (eds) (1995) Cosmopolitan Democracy: An
Agenda for a New World Order. Cambridge, MA: Polity Press.
Henkin, Louis (1979) How Nations Behave. New York: Columbia University
Press.
Henkin, Louis (1983–1984) “International Law as Law in the United States,”
Michigan Law Review, 82, pp. 1555–1569.
Henkin, Louis (1990) The Age of Rights. New York: Columbia University Press.
Henkin, Louis (1996) Foreign Affairs and the United States Constitution, 2nd edn.
New York: Oxford University Press.
Hersh, Seymour (1991) The Sampson’s Option Israel’s Nuclear Arsenal and
American Foreign Policy. New York: Random House.
Hewson, Martin and Timothy J. Sinclair (1999) Global Governance Theory.
Albany, NY: State University of New York Press.
Hindley, Brian and Martin Howe (1996) “Better off out? The Benefits or Costs of
EU Membership.” Institute for Economic Affairs, London, UK.
Hitchens, Christopher (2001) “The Case Against Henry Kissinger—Part I,”
Harper Magazine, February. (Available online at: http://www.harpers.org/
archive/2001/02/0070211.)
Bibliography 291
Hopf, Ted (1998) “The Promise of Constructivism in International Relations

Theory,” International Security, Vol. 23, No. 1, 171–200.
Hsieh, Yu Wei (1968) “Filial Piety and Chinese Society.” In: The Chinese Mind
(ed.) Charles A. Moore. Honolulu, HI: University of Hawaii Press, pp. 167–
87.
Hsin-Pao, Chang (1964) Commissioner Lin and the Opium War. Cambridge, MA:
Harvard University Press.
Hsiung, James C. (1972a) “China’s Recognition and Practice of International
Law.” In: China’s Practice of International Law: Some Case Studies (ed.) J.A.
Cohen. Cambridge, MA: Harvard University Press.
Hsiung, James C. (1972b) Law and Policy in China’s Foreign Relations: A Study
of Attitudes and Practice. New York: Columbia University Press.
Hucker, Charles O. (1959) “Confucianism and the Chinese Censorial System.” In:
Confucianism and Chinese Civilization (ed.) Arthur F. Wright. Stanford, CA:
Stanford University Press, pp. 50–76.
Human Rights in China (HRIC) (2001) “Reeducation Through Labor: A Summary
of Regulatory Issues and Concerns”, February 1 2001. (Available online at
http://hrichina.org/public/contents/article?revision%5fid=14287&item%5fid=
14286.)
Human Rights in China (HRIC) (2006) “Setback for the Rule of Law: Lawyers
Under Attack in China,” August 28. (Available online at: http://hrichina.org/
public/contents/article?revision%5fid=30434&item%5fid=30425.)
Human Rights Watch (HRW) (2005) “False Freedom: Online Censorship in the
Middle East and North Africa,” 17 (10)E. (Available online at: http://www.
hrw.org/reports/2005/mena1105/index.htm.)
Human Rights Watch (HRW), “China: Second Foreign Scholar Detained.”
(Available online at http://www.hrw.org/press/2001/03/china0331.htm.)
Hung, Veron M. (2002) “Protection of Human Rights in the Context of Punishment
of Minor Crimes in China,” Testimony before the Congressional-Executive
Commission on China, Washington DC, July 26. (Available through Carnegie
Endowment for International Peace at http://www.ceip.org/.)
Huntington, Samuel P. (1991) The Third Wave: Democratization in the Late
Twentieth Century. Norman: University of Oklahoma Press.
Huntington, Samuel P. (1993) The Clash of Civilizations: Remaking of the World
Order. New York: Touchstone Books.
Hurrell, Andrew and Benedict Kingsbury (eds) (1992) The International Politics
of the Environment: Actors, Interests, and Institutions. New York: Oxford
University Press.
ICBL (International Campaign to Ban Landmines) (1999) “The Landmines
Problem.” (Available online at: http://www.icbl.org/resources/problem.
html.)
ICBL (International Campaign to Ban Landmines) (2003) Landmine Monitor
Fact Sheet-Transparency Measures Reporting. Geneva, February 7. (Available
online at: http://www.icbl.org/.)

Report 2003:Toward a Mine-Free World. (Available online at: http://www.
icbl.org/lm/2003/.)
icbl.org/lm/2006/.)
icbl.org/lm/2007/.)
ICBL (International Campaign to Ban Landmines) (2004) Landmine Monitor Fact
Sheet-Status of Implementation of the 1997 Mine Ban Treaty. (Available online
at: http://www.icbl.org/lm/factsheets/.)
ICRC (International Committee for the Red Cross) (1998) Banning Anti-Personnel
Mines: the Ottawa Treaty Explained. (Available online at: http://www.icrc.
org/.)
Ignatieff, Michael (2005) American Exceptionalism and Human Rights. Princeton,
NJ: Princeton University Press.
Ikenberry, John G. (1996) “The Intertwining of Domestic and International
Politics.” Winter, Polity 29(2): 293–298.
Imbert, Claude (1989) “The End of French Exceptionalism.” Foreign Affairs, Fall,
68(4): 48–60.
INSIGHT (2004) Insight on the International Criminal Court (ICC), 2, September,
Coalition for the International Criminal Court (CICC).
Jacobsen, John Kurt (1996) “Are all Politics Domestic? Perspectives on the
Integration of Comparative Politics and International Theories.” Comparative
Politics, October, 29: 93–115.
Jaggers, Keith and Ted Robert Gurr (1995) “Tracking Democracy’s Third Wave with
the POLITY III Data.” Journal of Peace Research, November, 32(4): 469–482.
Jervis, Robert (1983) “Security Regimes.” In: Stephen Krasner (ed.) International
Regimes. Ithaca, NY: Cornell University Press, pp. 179–194.
Jervis, Robert (1993) Arms Control, Stability, and Causes of War. Political Science
Quarterly, 108(2): 239–253.
Jervis, Robert (1993) “International Primacy: Is the Game Worth the Candle?”
International Security, Spring, 17(4): 52–67.
Kahn, Joseph (2002) “China Has World’s Tightest Internet Censorship,” Study
Finds.” New York Times, December 4.
Kahn, Joseph (2004) “China Detains a Human Rights Advocate.” New York Times,
December 20.
Kahn, Joseph (2006a) “China May Fine News Media to Limit Coverage.” New
York Times, June 27.
Kahn, Joseph (2006b) “Beijing Official Says Curbs Apply to Foreign Journalists.”
New York Times, July 4.
Kahn, Joseph (2006c) “Chinese Crackdown on Rights Lawyers Signals Effort to
Deter Increasing Legal Challenges.” New York Times, August 19.
Bibliography 293
Kahn, Joseph (2006) “China: Judicial Official Calls for End to Torture.” New York
Times, p. A14, November 21.
Kalathil, Shanti and Taylor, Boas (2001) Internet, State Control and in Authoritarian
Regimes: China, Cuba and the Counter-Revolution. Washington, DC: Carnegie
Endowment for International Peace.
Kapstein, Ethan B. (1994) Governing the Global Economy: International Finance
and the State. Cambridge, MA: Harvard University Press.
Kapur, Devesh (2000) “Who Gets to Run the World?” Foreign Policy, November–
December, p. 44–50.
Kartchner, Kerry M. (1996) “The Objectives of Arms Control” (ed.) Jeffrey Larsen,
Arms Control Toward the 21st Century. Lynne Rienner, pp. 19–34.
Katzenstein, Peter J. (ed.) (1996) The Culture of National Security: Norms and
Identity in World Politics. New York, NY: Columbia University Press.
Kaye, David and Steven A. Solomon (2002) The Second Review Conference of the
1980 Convention on Certain Conventional Weapons. The American Journal of
International Law, October, 96(4): 922–936.
Keck, Margaret. E and Kathryn Sikkink (1998) Activities Beyond Borders: Advocacy
Networks in International Politics. Ithaca, NY: Cornell University Press.
Keeton, George W. (1937) “The Progress of Law Reform in China.” Journal of
Comparative Legislation and International Law, 19(4): 197–211.
Keeton, George W. (1938) “The Progress of Law Reform in China—II.” Journal
of Comparative Legislation and International Law, 20(4): 210–221.
Keeton, George W. (1969) Extraterritoriality in China, vols. 1 and 2. New York:
H. Fertig.
Kelly, Alfred H. and Winfred A. Harbison (1963) The American Constitution: Its
Origin and Development, 4th edn. New York: W.W. Norton and Company.
Kennan, George Frost (1954) Realities of American Foreign Policy. Princeton,
NJ: Princeton University Press.
Kent, Ann (1993) Between Freedom and Subsistence: China and Human Rights.
Hong Kong: Oxford University Press.
Kent, Ann (1995) “China and the International Human Rights Regimes: A Case
Study of Multilateral Monitoring, 1989–1994,” Human Rights Quarterly,
17(1): 1–47.
Kent, Ann (1999) China and the United Nations, and Human Rights. Philadelphia,
PA: University of Pennsylvania Press.
Keohane, Robert O. (1984) After Hegemony: Cooperation and Discord in the
World Political Economy. Princeton, NJ: Princeton University Press.
Keohane, Robert O. (ed.) (1986) Neorealism and its Critics. New York: Columbia
University Press.
Keohane, Robert. O. (1989) International Institutions and State Power: Essays in
International Relations Theory. Boulder, CO: Westview Press.
Keohane, Robert O. (1993) “Institutionalist Theory and Realist Challenge After
the Cold War.” In: Neorealism and Neoliberalism: The Contemporary Debate
(ed.) David A. Baldwin, New York: Columbia Unviersity Press, pp. 269–300.
Keohane, Robert O. (2001) “Governance in a Partially Globalized World:

Presidential Address, American Political Science Association, 2000.” American
Political Science Review, March, 95(1): 1–13.
Keohane, Robert O. (2002) Power and Governance in a Partially Globalized
World. New York: Routledge.
Keohane, Robert O. and Lisa L. Martin (1995) “The Promise of Institutionalist
Theory.” International Security, Summer, 20(1): 39–51.
Keohane, Robert O. and Helen V. Milner (2002) “Internationalization and Domestic
Politics: An Introduction.” In: Internationalization and Domestic Politics (eds)
Robert O. Keohane and Helen V. Milner. New York: Cambridge University
Press, pp. 3–24.
Keohane, Robert O. and Joseph S. Nye (1977) Power and Interdependence: World
Politics in Transition. Boston: Little Brown.
Keohane, Robert O. and Joseph S. Nye (2001) Power and Interdependence, 3rd
edn. New York: Longman.
Khazen, Jihad (1999) “Censorship and State Control of the Press in the Arab
World.” Harvard International Journal of Press, Politics 4 (3): 87–92.
Kimba, Daryl (1999) “CTBT In Crisis: How the US Senate Rejected CTBT
Ratification.” Disarmament Diplomacy, Issue 40, September–October.
(Available online at: http://www.acronym.org.uk/dd/dd40/40wrong.htm.)
Kindleberger, Charles P. (1973) The World in Depression: 1929–1939. London:
Allen Lane.
Kindopp, Jason and Carol Lee Hamrin (2003) God and Caesar in China: Policy
Implications of Church-State Tensions. Washington, DC: The Brookings
Institution.
Kirkpatrick, Jeanne (1982) “Dictatorships and Double-Standards.” In: Human
Rights and U.S. Human Rights Policy: Theoretical Approaches to Some
Perspectives on Latin America (ed.) Howard Wiarda. Washington, DC:
American Enterprise Institute,pp. 5–29. (Kirkpatrick’s article was originally
published in Commentary Magazine in 1979.)
Kissinger, Henry A.(1966) “Domestic Structure and Foreign Policy.” Daedalus,
Spring, 95(2): 503–529.
Kissinger, Henry A. (1974) American Foreign Policy. New York: W.W. Norton.
Kissinger, Henry A. (1977) American Foreign Policy, 3rd edn. New York: W.W.
Norton.
Kissinger, Henry A. (2001) Does America Need a Foreign Policy? Toward a
Diplomacy for the 21st Century. New York: Simon and Schuster.
Klotz, Audie (1995) Norms in International Relations: The Struggle Against
Apartheid. Ithaca, NY: Cornell University Press.
Knopf. Jeffrey W. (1993) “Beyond Two-Level Games: Domestic-International
Interaction in the Intermediate-Range Nuclear Forces Negotiations.”
International Organization, Autumn, 47(4): 599–628.
Bibliography 295
Kolodziej, Edward A. (1987) Making and Marketing Arms: The French Experience
and its Implications for the International System. Princeton, NJ: Princeton
University Press.
Kolodziej, Edward A. (1997) “Order, Welfare, Legitimacy: A Systemic Explanation
for the Soviet Collapse and the End of the Cold War.” International Politics,
June, 34 (2): 111–151.
Kommers, Donald P. and Gilburt D. Loescher (eds) (1979) Human Rights and
American Foreign Policy. Notre Dame, IN: University of Notre Dame Press.
Korey, William (1997) “The United States and the Genocide Convention: Leading
Advocate and Leading Obstacle.” Ethics and International Affairs, 11 (1):
271–290.
Krasner, Stephen D. (1983) “Structural Causes and Regime Consequences:
Regimes as Intervening Variables.” In: International Regimes (ed.) Stephen D.
Krasner. Ithaca, NY: Cornell University Press, pp. 1–22.
Krasner, Stephen D. (1985) Structural Conflict: The Third World Against Global
Liberalism. Berkeley, CA: University of California Press.
Krasner, Stephen D. (1999) Sovereignty: Organized Hypocrisy. Princeton, NJ:
Princeton University Press.
Krasner, Stephen D. (2001) Problematic Sovereignty: Contested Rules and
Political Possibilities. New York: Columbia University Press.
Kratochwil, Friedrich and John Ruggie (1986) “International Organization: A State
of the Art or an Art of the State?” International Organization, 40(4): 753–775.
Kurland, Philip B. and Ralph Lerner (eds) (1987) The Founder’s Constitution.
Chicago, IL: University of Chicago Press.
Kwang, Mary (2003) “Death Penalty Still Favored by Chinese.” The Straits Times,
February 22.
LaFranchi, Howard (2002) “Women’s Treaty Revives Old Debates.” Christian
Science Monitor, July 30, p. 1.
Lampton, David M. (ed.) (2001) The Making of Chinese Foreign and Security
Policy: In the Era of Reform. Stanford, CA: Stanford University Press.
Lansdown, Gerison (2005) The Evolving Capacities of the Child. The UNICEF
Innocenti Research Centre, Florence, Italy.
Larsen, Jeffrey A. and Gregory J. Rattray (eds) (1996) Arms Control Toward the
21st Century. Boulder, CO: Lynne Rienner Press.
Lauren, Gordon P. (1998) The Evolution of International Human Rights: Visions
Seen. Philadelphia, PA: University of Pennsylvania Press.
LeBlanc Lawrence J. (1984) “The Intent to Destroy Groups in the Genocide
Convention: The Proposed U.S. Understanding,” American Journal of
International Law, 78 (2), April, 369–385.
Lee, Eliza (1995) “Human Rights and Non-Western Values.” In: Human Rights
and Chinese Values: Legal, Philosophical, and Political Perspective (ed.)
Michael C. Davis. Hong Kong: Oxford University Press, pp. 72–90.
Lee, Luke T. (1969) China and International Agreements: A Study in Compliance.
Durham, NC: Rule of Law Press.
Leng, Shao-Chuan (1977) “The Role of Law in the People’s Republic of China
as Reflecting Mao Tse-Tung’s Influence.” Journal of Criminal Law and
Criminology, September, 68(3): 356–373.
Leng, Shao-chuan and Hungdah, Chiu (1985) Criminal Justice in Post-Mao:
Analysis and Documents. Albany, NY: State University of New York Press.
Leys, Simon (1997) The Analects of Confucius, translated by Simon Leys. New
York: W.W. Norton Books.
Li, Liu (2005) “Wrongly Jailed Man Freed After 11 years,” China Daily, April 14.
(Available online at: http://www.chinadaily.com.cn/english/doc/2005-04/14/
content_434020.htm.)
Li, Victor H. (1970) “The Role of Law in Communist China.” The China Quarterly,
October–December, (44): 66–111.
Li, Victor H. (1978) Law without Lawyers: A Comparative View of Law in China
and the United States. Boulder, CO: Westview Press.
Liang, Zhang, Perry Link, and Andrew J. Nathan (2001) The Tiananmen Papers.
New York: Basic Books.
Lillich, Richard. B. (1990) “The United States Constitution and International
Human Rights Law.” Harvard Human Rights Journal (3): 53–81.
Lipset, Seymour Martin (1996) American Exceptionalism: A Double-Edged
Sword. New York: W.W. Norton Company.
Lipson, Charles (1984) “International Cooperation in Economic and Security
Affairs.” World Politics, October, 37(1): 1–23.
Lissitzyn, Oliver J. (1965) International Law Today and Tomorrow. Dobbs Ferry,
NY: Oceana.
Litfin, Karen T. (1994) Ozone Discourses: Science and Politics in Global
Environmental Cooperation. New York: Columbia University Press.
Litfin, Karen T. (ed.) (1998) The Greening of Sovereignty in World Politics.
Cambridge, MA: MIT Press.
Lubman, Stanley (1967) “Mao and Mediation: Politics and Dispute Resolution in
Communist China.” California Law Review, 55(5): 1284–1359.
Lubman, Stanley B. (1999) Bird in a Cage: Legal Reform in China After Mao.
Stanford, CA: Stanford University Press.
Lumsdaine, David H. (1993) Moral Vision in International Politics: The Foreign
Aid Regime, 1949–1989. Princeton, NJ: Princeton University Press.
Lynn-Jones, Sean M, and Steven E. Miller (eds) (1995) Global Dangers: Changing
Dimensions of International Security. Cambridge, MA: MIT Press.
MacDonald, Euan and Ryszard Cholewinski (2007) The Migrant Workers
Convention in Europe, UNESCO.
Madsen, Deborah L. (1998) American Exceptionalism. Edinburgh, UK: Edinburgh
University Press.
Manley, Ron G. (2002) “Verification Under the Chemical Weapons Convention: A
Reflective Review.” Pure Applied Chemistry, 74(12): 2235–2240.
Maoz, Zeev (1996) Domestic Sources of Global Change. Ann Arbor, MI: University
of Michigan Press.
Bibliography 297
Marshall, Monty G, Keith Jaggers, and Ted Robert Gurr (2004) “Political Regime
Characteristics and Transitions, 1800–2000.” College Park, MD: POLITY IV
Project, University of Maryland. (Available online at: http://www.cidcm.umd.
edu/inscr/polity.)
Martin, Lisa L. and Beth Simmons (1998) “Theories and Empirical Studies of
International Institutions.” International Organization, 52(4): 729–757.
Martinsen, Joel (2005) “She Xianglin after Six Months on the Outside,” Danwei.
org, October 28. (Available online at: http://www.danwei.org/ip_and_law/she_
xianglin_after_six_months.php.)
Masters, P.E. (2000) “Carter and the Rhodesian Problem.” International Social
Science Review, 75 (4): 23–34.
Masters, Ruth D. (1932) International Law in National Courts: A Study of the
Enforcement of International Law in German, Swiss, French, and Belgian
Courts. New York: Columbia University Press.
McDonald, Hamish (2003) “Chinese Try Mobile Death Vans,” March
13, The Age. (Available online at: http://www.theage.com.au/
articles/2003/03/12/1047431092598.html.)
McEvoy-Levy, Siobhn (2001) American Exceptionalism and US Foreign Policy:
Public Diplomacy at the End of the Cold War. New York: Palgrave.
McFaul, Michael (2002) “The Fourth Wave of Democracy and Dictatorship:
Non-cooperative Transitions in the Post-Communist World.” World Politics,
January, 54 (2): 212–244.
McGrew, Anthony (1997) The Transformation of Democracy? Globalization and
Territorial Democracy. London, UK: Polity Press.
McKnight, Brian E. (1981) The Quality of Mercy: Amnesties and Traditional
Chinese Justice. Honolulu, HI: The University Press of Hawaii.
McKnight, Brian E. (1987) “From Statute to Precedent: An Introduction to Sung
Law and its Transformations.” In: Law and the State in Traditional East Asia.
Honolulu, HI: University of Hawaii Press.
Mearsheimer, John J. (1990) “Back to the Future: Instability in Europe After the
Cold War.” International Security, Summer, 15 (1): 5–56.
Mearsheimer, John J. (1994–1995) “The False Promise of International
Institutions,” International Security, Winter, 19(3): 5–49.
Mei, Ju-Ao (1932) “China and the Rule of Law.” Pacific Affairs, October, 5(10):
863–872.
Mei, Y.P. (1967) “Status of the Individual in Social Thought and Practice.” In: The
Chinese Mind: Essentials of Chinese Philosophy and Culture (ed.) Charles A.
Moore. Honolulu, HI: University of Hawaii Press, 1967, pp.323–339.
Meijer, Martha (2001) Dealing with Human Rights: Asian and Western Views on
the Value of Human Rights. Connecticut, CT: Kumarian Press.
Meyer, Michael J and W. A. Parent (eds) (1992) The Constitution of Rights: Human
Dignity and American Values. Ithaca, NY: Cornell University Press.
Miller, Robert H. (1971) “The Convention on the Non-Applicability of Statutory

Limitations to War Crimes and Crimes Against Humanity.” The American
Journal of International Law, July, 65(3): 476–501.
Milner, Helen V. (1988) Resisting Protectionism: Global Industries and the Politics
of International Trade. Princeton, NJ: Princeton University Press.
Milner, Helen V. (1997) Interests, Institutions and Information: Domestic Politics
and International Relations. Princeton, NJ: Princeton University Press.
Mistry, Dinshaw (1998) India and the Comprehensive Test Ban Treaty. Champaign,
IL: University of Illinois, ACDIS Research Report.
Mistry, Dinshaw (2003) Containing Missile Proliferation: Strategic Technology,
Security Regimes, and International Cooperation in Arms Control. Seattle,
WA: University of Washington Press.
Mitchell, Ronald (1993) “Compliance Theory: A Synthesis.” Review of European
Community and International Environmental Law, 2(4): 327–334.
Moravcsik, Andrew (1993) “Introduction: Integrating International and Domestic
Theories of International Bargaining.” In: Double-Edged Diplomacy:
International Bargaining and Domestic Politics (eds) Peter B. Evans, Harold
K. Jacboson, and Robert D. Putnam. Berkley, CA: University of California
Press, pp. 3–42.
Moravcsik, Andrew (1997) “Taking Preferences Seriously: A Liberal Theory of
International Politics.” International Organization, 51(4): 513–553.
Moravcsik, Andrew (2000) “The Origins of Human Rights Regimes: Democratic
Delegation in Postwar Europe.” International Organizations, Spring, 54(2):
217–252.
Moravcsik, Andrew (2001) “Why Is U.S. Human Rights Policy So Unilateralist?”
In: The Cost of Acting Alone: Multilateralism and US Foreign Policy (eds)
Shepard Forman and Patrick Stewart. Boulder, CO: Lynne Riener Publishers,
pp. 345–376.
Morgenthau, Hans J. (1963) “The Impotence of American Power.” Commentary
36(5): 384–386.
Morgenthau, Hans J. (1993) Politics Among Nations: Struggle for Power and
Peace. Brief edn. New York: McGraw Hill.
Morris, Kenneth E. (1996) Jimmy Carter—American Moralist. Athens, GA:
University of Georgia Press.
Morse, Hosea B. (1910) The International Relations of the Chinese Empire, vol. 1.
London: Longmans, Green and Company.
Myers, Steven Lee (2001) “U.S. Signs Treaty for World Court to try Atrocities.”
New York Times, January 1, p. 1A.
Nathan, Andrew J. (1994) “Human Rights in Chinese Foreign Policy.” The China
Quarterly, September, (130): 622–643.
Nathan, Andrew J. and Bruce Gilley (2003) China’s New Rulers: The Secret Files.
New York: New York Review of Books, 2nd revised edn.
Bibliography 299
National Academy of Sciences (NAS) (2002) Technical Issues Related to the

Comprehensive Nuclear Test Ban Treaty. Washington, DC: National Academy
Press.
National Intelligence Estimates (NIE) (2007) Iran: Nuclear Intentions and
Capabilities. November, Government of the United States.
Naughton, Barry (1999) “China’s Transition in Economic Perspective.” In:
The Paradox of China’s Post-Mao Reforms, Merle Goldman and Roderick
MacFarquar (eds), Cambridge, MA: Harvard University Press, p. 30–44.
Niou, Emerson M.S and Peter C. Ordeshook (1991) “Realism versus Neoliberalism:
A Formulation.” American Journal of Political Science, May, 35(2): 481–511.
Niou, Emerson M.S. Peter C. Ordeshook (1994) “Less Filling, Tastes Great: The
Realist-Neoliberal Debate.” World Politics, January, 46(2): 209–234.
Nojumi, Neamatollah (2002) The Rise of the Taliban in Afghanistan: Mass
Mobilization, Civil War, and the Future of the Region. New York: Palgrave.
NRDC Nuclear Notebook (2003) “North Korean Nuclear Weapons Program,
2003” Bulletin of Atomic Scientists, March–April, 59(2): 74–77.
NPT (Nuclear Non-Proliferation Treaty) (1968) Text of NPT1968. (Available
online at: http://disarmament.un.org.)
NTI (Nuclear Threat Initiative) (2009) “Country Profiles.” (Available online at:
http://www.nti.org/e_research/profiles/index.html.)
Nye, Joseph S. (2004) Soft Power: The Means to Success in World Politics. New
York: Public Affairs.
Nye, Joseph and John D. Donahue (2000) Governance in a Globalizing World.
Washington, DC: Brookings Institution.
OHCHR (Office of the High Commissioner of Human Rights) (2007) Annual
Report—Activities and Results. Geneva, United Nations.
OHCHR (Office of the United Nations High Commissioner for Human Rights)
(2005) Recent Reporting History: Submission of Reports by States Parties to
the Seven International Human Rights Treaty Bodies, January 27.
Oneal, John R. and Bruce M. Russett (1999) “The Kantian Peace: The Pacific
Benefits of Democracy, Interdependence, and International Organizations,
1885–1992.” World Politics, October, 52(1): 1–37.
OPBW (Organization for the Prohibition of Biological Weapons) VEREX.
(Available online at: http://www.opbw.org/verex/verex.html.)
OPCW (Organization for the Prohibition of Chemical Weapons) (2008) Mission
Statement. (Available online at: http://www.opcw.org/mission/.)
OPCW (Organization for the Prohibition of Chemical Weapons) Inspections—The
Instrument to Implement the CWC Verification Regime. (Available online at:
http://www.opcw.org/html/glance/inspections.html.)
OPCW (Organization for the Prohibition of Chemical Weapons) Chemical
Disarmament Basic Facts. (Available online at: http://www.opcw.org/basic_
facts/html/.)
OPCW (Organization for the Prohibition of Chemical Weapons) (1993) Treaty

Text of the Chemical Weapons Convention (CWC). (Available online at: http://
www.opcw.org/chemical-weapons-convention/.)
Ostrom, Elinor (1991) Governing the Commons: The Evolution of Institutions for
Collective Action. New York: Cambridge University Press.
Ozone Secretariat (2006) Handbook for the Montreal Protocol on Substances that
Deplete the Ozone Layer. United Nations Environment Programme (UNEP),
Nairobi, Kenya, 7th edn.
Pan, Philip P. (2002) “China Deepens Assault on Faith: Documents Confirm
Resolve to Expand Crackdown.” Washington Post, February 13, p. A 01.
Parsons, Claudia (2008) “Female Soldiers in Iraq are on the Frontlines in Iraq.”
Veterans Today, May 6. (Available online at: http://www.veteranstoday.com/
modules.php?name=News&file=article&sid=3015.)
Patman, Robert G. (ed.) (2000) Universal Human Rights? New York: St. Martin’s
Press.
Paul, T.V., Richard J. Harknett, and James J. Wirtz (eds) (1998) The Absolute
Weapon Revisited: Nuclear Arms and the Emerging International Order. Ann
Arbor, MI: The University of Michigan Press.
Paul, T.V. (2000) Power versus Prudence: Why Nations Forgo Nuclear Weapons.
Montreal, Canada: McGill-Queen’s University Press.
Paust, Jordan J. (ed.) (1996) International Law as the Law of the United States.
Durham, NC: Carolina Academic Press.
Peerenboom, Randall (1990) “Confucian Jurisprudence: Beyond Natural Law.”
Asian Culture Quarterly, (18): 12–39.
Peerenboom, Randall (1993) “What’s Wrong with Chinese Rights? Toward a
Theory of Rights with Chinese Characteristics.” Harvard Human Rights
Journal, Spring, (6): 29–58.
Peerenboom, Randall (2002) China’s Long March Toward Rule of Law. New York:
Pei, Minxin (1994) “The Puzzle of East Asian Exceptionalism.” Journal of
Democracy, 5(4): 90–103.
People’s Daily (2005) “China’s Chief Justice Pledges to Improve Death Penalty
Review Process,” March 9. (Available online at: http://english.people.com.
cn/200503/09/eng20050309_176152.html.)
People’s Republic of China (2000) Progress in China’s Human Rights Cause in
2000. (Available online at: http://www.china.org.cn/e-white/.)
Perkovich, George (2001) India’s Nuclear Bomb: The Impact on Global
Proliferation. Berkeley, CA: University of California Press.
Perkovich, George (2005) “Iran Is Not an Island: A Strategy to Mobilize the
Neighbors.” Policy Brief, Carnegie Endowment for International Peace
(CEIP), February.
Picciotto, Sol (1997) “Networks in International Economic Integration: Fragmented
States and the Dilemmas of Neo-Liberalism.” Northwestern Journal of
International Law and Business, 17(2/3): 1014–1056.
Bibliography 301
Pogatchnik, Shawn (2008) Ireland Rejects European Union Reform Treaty,

Associated Press, June 15. (Available online at: http://ap.google.com/article/
ALeqM5jcOuUAmav6-7wKlhwZljN3F1mqIQD919AKU00.)
Prakash, Aseem and Jeffrey A. Hart (eds) (1999) Globalization and Governance.
New York: Routledge.
Price, Richard and Nina Tannenwald (1996) “Norms and Deterrence: The Nuclear
and Chemical Weapons Taboos.” In: The Culture of National Security (ed.)
Peter J. Katazenstein. New York: Columbia University Press, pp. 114–152.
Promfret, John (2002) “Under Jiang, Party Changed to Remain in Power:
Communist Apparatus Still Rules China, Though Country has been
Transformed.” Washington Post, November 7, p. 14A.
Putnam, Robert D. (1988) “Diplomacy and Domestic Politics: The Logic of Two-
Level Games.” International Organization, Summer, 42(3): 427–460.
Qinglian, He (2004) Media Control in China, China Rights Forum, No. 1. (Available
online at: http://ir2008.org/PDF/initiatives/Internet/Media-Control_Chinese.pdf.)
Rakove, Jack N. (1992) “Parchment Barriers and the Politics of Rights.” In: A
Culture of Rights: The Bill of Rights in Philosophy, Politics, and Law—1791–
1991 (eds) Michael J. Lacey and Knud Haakonssen. New York: Cambridge
University Press, pp.98–143.
Ramsar Convention Secretariat (2006) Ramsar Convention Manual: A Guide to
the Convention on Wetlands, 4th edn. (Agreement signed Ramsar, Iran, 1971).
Gland, Switzerland.
Randle, Edwards R., Louis Henkin, and Andrew Nathan (1986) Human Rights in
Contemporary China. New York: Columbia University Press.
Rashid, Ahmed (2000) Taliban: Militant Islam, Oil, and Fundamentalism in
Central Asia. New Haven: Yale University Press.
Rauf, Tariq, Mary Beth Nikitin, and Jenni Rissanen (2000) Inventory of International
Nonproliferation Organizations and Regimes. Monterey, CA: Center for
Nonproliferation Studies, Monterey Institute of International Studies.
Ray, James Lee (1989) “The Abolition of Slavery and the End of International
War”, International Organization, Vol. 43, No. 3, Summer, pp. 405–439.
Redgwell, Catherine (1997) “The Law of Reservations in Respect of Multilateral
Conventions.” In: Human Rights as General Norms and a State’s Right to
Opt Out: Reservations and Objections to Human Rights Conventions (ed.)
J.P. Gardner. London, UK: British Institute for International and Comparative
Law.
Reimels, Elizabeth A. (2001) “Playing for Keeps: the United States Interpretation
of International Prohibitions Against the Juvenile Death Penalty—The U.S.
Wants to Play the International Human Rights Game, but only if it Makes the
Rules.” Emory Journal of International Law, (15): 303–348.
Remmer, Karen (1998) “Does Democracy Promote Interstate Cooperation?
Lessons from the Mercosur Region.” International Studies Quarterly, 42(1):
25–32.
Roberts, Steven V. (1988) “Reagan Signs Bill Ratifying U.N. Genocide Pact.”
New York Times, November 5, p. 28.
Robertson, Roland (1992) Globalization: Social Theory and Global Culture.
London: Sage.
Rodney, James (2000) “Carnegie Endowment for International Peace, ‘China’s
Proliferation Record’.” Washington, DC: Proliferation Brief, 3(21).
(Available online at: http://www.carnegieendowment.org/publications/index.
cfm?fa=view&id=367.)
Rogowski, Ronald (1989) Commerce and Coalitions: How Trade Affects Domestic
Political Alignments. Princeton, NJ: Princeton University Press.
Rosecrance, Richard (1986) The Rise of the Trading State: Commerce and
Conquest in the Modern World. New York: Basic Books.
Rosenau, James N. (1997) Along the Domestic-Foreign Frontier: Exploring
Governance in a Turbulent World. New York: Cambridge University Press.
Rosenau, James N. and Ernst-Otto Czempiel (eds) (1992) Governance Without
Government: Order and Change in World Politics. New York: Cambridge
University Press.
Rosenau, James N. and Mary Durfee (2000) Thinking Theory Thoroughly: Coherent
Approaches to an Incoherent World, 2nd edn. Boulder, CO: Westview Press.
Rosenberg, Justin N. (1994) The Empire of Civil Society: A Critique of the Realist
Theory of International Relations. New York: Verso.
Ross, Robert S. and Zhu Feng (2008) China’s Ascent: Power, Security, and the
Future of International Politics. Ithaca, NY: Cornell University Press.
Roy, Dennis (1994) “Singapore, China, and the ‘Soft Authoritarian’ Challenge.”
Asian Survey, March, 34(3): 231–242.
Ruggie, John Gerald (1986) “Continuity and Transformation in the World Polity.”
In: Neorealism and Its Critics (ed.) Robert Keohane. New York: Columbia
Ruggie, John Gerard (ed.) (1993) Multilateralism Matters: The Theory and Praxis
of an Institutional Form. New York: Columbia University Press.
Ruggie, John Gerard (1998) Constructing the World Polity: Essays on International
Institutionalization. New York, NY: Routledge.
Russett, Bruce (1993) Grasping for Democratic Peace: Principles for a Post-Cold
War World. Princeton, NJ: Princeton University Press.
Saich, Tony (1989) “Modernization and Participation in the People’s Republic of
China.” In: China—Modernization in the 1980s (ed.) Joseph Y.S. Cheng. Hong
Kong: Chinese University Press, pp. 39–68.
Saich, Tony (2001) Governance and Politics of China. New York: Plagrave
Publishers.
Schabas, William A. (2004) An Introduction to the International Criminal Court.
Schaper, Annette (2000) “Verifying Nuclear Arms Control and Disarmament.” In:
The Verification Yearbook 2000 (eds) Rick Jones and Trevor Findlay. London:
Albert Stallan Limited, pp. 57–69.
Bibliography 303
Schifter, Richard (1989) “Building Firm Foundations: the Institutionalization of

United States Human Rights Policy in the Reagan Years.” Harvard Human
Rights Journal, Spring, 2:3–24.
Schmitter, Philippe C. and Terry Lynn Karl (1991) “What Democracy is … And is
Not.” Journal of Democracy, Summer, 2(3): 75–89.
Schultz, Kenneth A. and Barry R. Weingast (1996) The Democratic Advantage:
The Institutional Sources of State Power in International Competition. Stanford,
CA: Hoover Institution, Stanford University.
Schwartz, Benjamin (1987) “The Primacy of Political Order in East Asian
Societies: Some Preliminary Generalizations.” In: Foundations and Limits
of State Power in China (ed.) Stuart R. Schram. London: London School of
Oriental and African Studies, pp. 1–10.
Sciolino, Elaine (1984) “World Accord on Genocide: An Issue Since Truman Era.”
New York Times, September 6, p. 8A.
Scott, Gary L. (1975) Chinese Treaties: The Post-Revolutionary Restoration of
International Law and Order. New York: Oceana Publications.
Sengupta, Somini (2002) “U.S. Fails in U.N. to Exempt Peacekeepers From New
Court.” New York Times, May 18, p. 4A.
Seymour, James D. (1980) The Fifth Modernization: China’s Human Rights
Movement, 1978–1979. New York: Human Rights Publishing Group.
Shalin, Carl T. Jr. (1998) Global Mine Clearance: An Achievable Goal? ICBL
Report, no. 143, August. (Available online at: http://www.icbl.org/resources/
forum143.html.)
Shambaugh, David (2000) “The Chinese State in the Post-Mao Era” In: The
Modern Chinese State. Cambridge, UK: Cambridge University Press, pp.
161–187.
Shapiro, Ian (1999) Democratic Justice. New Haven, CN: Yale University Press.
Sharma, L.K. (2002) “Checkmating Rogues.” Deccan Herald, November 21.
Shaw, Malcolm N. (2003) International Law. New York: Cambridge University
Press.
Sheridan, Michael (2006) “Chinese City Will Execute Purse Thieves,” The Sunday
Times, March 5 2006. (Available online at http://www.timesonline.co.uk/
article/0,,2089-2070005,00.html.)
Shestack, Jerome J. (1989) “An Unsteady Focus: The Vulnerabilities of the Reagan
Administration’s Human Rights Policy.” Harvard Human Rights Yearbook 2
(25): 39–45.
Shestack, Jerome J. and Roberta A. Cohen (1973–1974) “International Human
Rights: A Role for the United States.” Virginia Journal of International Law,
Summer, 14 (4): 673–701.
Shirk, Susan (1977–1978) “Human Rights: What About China?” Foreign Policy,
Winter, 29: 109–127.
Sikkink, Kathryn and Margaret Keck (1998) Activities Beyond Borders Advocacy
Networks in International Politics. Ithaca, NY: Cornell University Press.
Simai, Mihly (1994) The Future of Global Governance: Managing Risk and
Change in the International System. Washington, DC: US Institute of Peace
Press.
Simmonds, K.R. (1965) The Sabbatino Case and the Act of State Doctrine. The
International and Comparative Law Quarterly, April, 14(2): 452–492.
Simmons, Beth A. (1994) Who Adjusts: Domestic Sources of Foreign Economic
Policy During the Interwar Years. Princeton, NJ: Princeton University Press.
Simpson, Peggy (2002) Global Women’s Rights Treaty Gets Second Wind, July 1,
WEnews. (Available online at: http://www.awakenedwoman.com/cedaw.htm.)
Singh, Jaswant (1998) Against Nuclear Apartheid, Foreign Affairs, September–
October, 77(3): 41–52.
Sitaraman, Srini (2001) “Evolution of the Ozone Regime: Local, National, and
International Influences,” in Environmental Change and U.S. Foreign Policy
edited by Paul G. Harris. Washington DC, Georgetown University Press, pp:
111–133.
Slaughter, Anne-Marie (2004) A New World Order. New Jersey: Princeton
University Press.
Small, Melvin (1996) Democracy and Diplomacy: The Impact of Domestic
Politics on U.S. Foreign Policy, 1789–1994. Baltimore, MD: Johns Hopkins
University Press.
Snoddy, Raymond (2002) “The Great Firewall of China,” The London Times,
November 8.
Snyder, Jack (1991) Myths of Empire: Domestic Politics and International
Ambition. Cornell University Press.
Snyder, Richard (2001) Politics After Neoliberalism: Reregulation in Mexico.
New York: Cambridge University Press.
Solingen, Etel (1998) Regional Orders at Century’s Dawn: Global and Domestic
Influences on Grand Strategy. Princeton, NJ: Princeton University Press.
Starr, Fredrick (1981–1982) “Human Rights and United States Foreign Policy:
The Carter Years.” Tulane Law Review, December (56): 132–147.
Staunton, George Thomas (1966) Ta Tsing Leu Lee; Being The Fundamental Laws,
and a Selection from the Supplementary Statutes of the Penal Code of China.
(Taipei, Taiwan: Ch’eng-wen Publishing), London: T. Cadell and W. Davies.
Stearns, Paul N. (1999) World History in Brief: Major Patterns of Change and
Continuity, 3rd edn. New York: Addison Wesley, pp. 251–261.
Stein, Arthur. A. (1990) Why Nations Cooperate: Circumstance and Choice in
International Relations. Ithaca, NY: Cornell University Press.
Steiner, Henry J. and Philip Alston (2000) International Human Rights in Context:
Law, Politics, Morals, 2nd edn. New York: Oxford University Press.
Steiner, Henry J., Philip Alston, and Ryan Goodman (2008) International Human
Rights in Context, 3rd edn. New York: Oxford University Press.
Stolberg, Sheryl Gay (2003) “Group Says Iran Has 2 Undisclosed Nuclear
Laboratories.” New York Times, May 27.
Bibliography 305
Storing, Herbert J. (1985) “The Constitution and the Bill of Rights.” In: How
Does the Constitution Secure Rights? (eds) Robert A. Goldwin and William A.
Schmbra. Washington, DC: American Enterprise Institute, pp.15–35.
Stultz, Newell M. (1991) “Evolution of the United Nations Anti-Apartheid
Regime.” Human Rights Quarterly, February, 13(1): 1–23.
Suganami, Hidemi (1989) The Domestic Analogy and World Order Proposals.
Cambridge, UK: Cambridge University Press.
Supreme Court of the United States, The (1829) Foster versus Neilson, 27, US
(2nd Petition).
Supreme Court of the United States, The (1900) Paquete Habana, 175 US 677.
Supreme Court of the United States, The (1920) Missouri versus Holland, 252
US 416.
Supreme Court of the United States, The (1936) United States versus Curtiss-
Wright Export Corporation, 299 US 304, 319.
Supreme Court of the United States, The (1957) Reid versus Covert, 351 US 487.
Supreme Court of the United States, The (1964) Banco Nacional de Cuba versus
Sabbatino, 376 US 398.
Susskind, Lawrence, William Moomaw, and Kevin Gallagher (2002)
Transboundary Environmental Negotiation: New Approaches to Global
Cooperation. Hoboken, NJ: Jossey-Bass.
Svensson, Marina (2001) State Coercion, Deterrence, and the Death Penalty in
the PRC. Paper presented at the Annual Meeting of the Association for Asian
Studies, Chicago, Illinois, March 22–25.
Svensson, Marina (2002) Debating Human Rights in China: A Conceptual and
Political History. New York: Rowman and Littlefield.
Swarns, Rachel L. (2003) U.S. Cuts Off Financing for AIDS Program, Provoking
Furor. New York Times, August 27.
Talani, Leila Simona (2000) Betting For and Against EMU: Who Wins and
Who Loses in Italy and in the UK from the Process of European Monetary
Integration. Burlington, VT: Ashgate Publishers.
Tananbaum, Duanne (1988) The Bricker Amendment Controversy: A Test of
Eishenhower’s Political Leadership. Ithaca, NY: Cornell University Press.
Tang, Rose (2001) “Beijing Forced Detained Scholar to Confess, Husband Says,”
CNN.com, March 23. (Available online at: http://archives.cnn.com/2001/
WORLD/asiapcf/east/03/23/china.scholar.husband.01/index.html.)
Tanner, Harold M. (1999) Strike Hard: Anti-Crime Campaigns and Chinese
Criminal Justice, 1979–1985. Ithaca, NY: Cornell University Press.
Tanner, Murray Scott (1994) “The Erosion of Communist Party Control over
Lawmaking in China.” The China Quarterly, June, (138): 381–403.
Tanner, Murray Scot (1999) The Politics of Law-Making in Post-Mao China:
Institutions, Processes and Democratic Prospects. Oxford, UK: Oxford
University Press
Tanner, Murray Scot (2000) “State Coercion and the Balance of Awe: The 1983–
1986 ‘Stern Blows’ Anti-Crime Campaign.” The China Journal, July (44):
93–125.
Tao, Lung-Sheng (1974) “Politics and Law Enforcement in China: 1949–1970.”
The American Journal of Comparative Law, Autumn, 22(4): 713–756.
Tarcov, Nathan (1985) “American Constitutionalism and Individual Rights.” In:
How Does the Constitution Secure Rights? (eds) Robert Goldwin and William
Schambra. Washington, DC: American Enterprise Institute.
Terill, Ross (2000) Madame Mao: The White-Boned Demon. Stanford, CA:
Stanford University Press.
Terrill, Ross (2003) The New Chinese Empire. New York: Basic Books.
Tesón, Fernando (1982) “The Relations between International Law and Municipal
Law: The Monism/Dualism Controversy.” In: International Law and Municipal
(eds) Bothe M. Law and R. Vinuesa. Berlin, Germany.
Thornton, John L. (2006) “China’s Leadership Gap,” Foreign Affairs. November–
December 85 (6):133–140.
Tismaneanu, Vladimir (1997) “Romanian Exceptionalism? Democracy, Ethnocracy,
and Uncertain Pluralism in Post-Ceausescu Romania.” In: Politics, Power, and
the Struggle for Democracy in South-East Europe (eds) Karen Dawisha and
Bruce Parrott. Cambridge University Press, pp.403–450.
Tocqueville, Alexis de (1966) Democracy in America. Translated by George
Lawrence. (ed.) J.P. Mayer and Max Lerner. New York, NY: Harper and Row
Publishers.
Tolchin, Martin (1984) “Helms Blocks Committee Vote on Genocide Pact.” New
York Times, September 13, p. 6A.
Trevaskes, Susan (2003) “Public Sentencing Rallies in China: The Symbolizing of
Punishment and Justice in the Socialist State.” Crime, Law and Social Change,
June, 39(4): 359–382.
Tung, L. (1940) China and Some Phases of International Law. New York: Oxford
University Press.
T’ung-tsu, Ch’ü (1961) Law and Society in Traditional China. Paris, France:
Mouton and Company.
Turow, Scott (2003) Ultimate Punishment: A Lawyer’s Reflections on Dealing with
the Death Penalty, October 1, 1st edn. New York: Farrar, Straus and Giroux.
Tzou, Byron N. (1990) China and International Law: The Boundary Disputes.
New York: Praeger.
UNCLOS (1982–2002) Oceans: The Source of Life, The United Nations
Conventions on the Law of Sea, 20th Anniversary. (Available online at: http://
www.un.org/Depts/los/convention_agreements/convention_20years.htm.)
United Nations (1986) Vienna Convention on the Law of Treaties between States
and International Organizations or between International Organizations,
Vienna, March 21.
United Nations (1997) International Instruments of the United Nations. New
York: UN Press.
Bibliography 307
United Nations (1998–1999) Establishment of an International Criminal Court-

Overview. (Available online at: http://untreaty.un.org/cod/icc/general/overview.
htm.)
United Nations (2001) Executive Committee of the High Commissioner’s Program,
A/AC.96/951, September 13.
United Nations (2001) UN Treaty Section-Treaty Handbook. New York: UN Press.
(Available online at: http://untreaty.org/English/TreatyHandbook/.)
United Nations (2004a) Effective Implementation of International Instruments
on Human Rights, Including Reporting Obligations Under International
Instruments on Human Rights, 59th session, A/59/254, August 11.
United Nations (2004b) Statement by Working Group on Arbitrary Detention of
the United Nations Commission on Human Rights Following Visit to China,
October 4.
United Nations (2006) HRI International Human Rights Instruments, Concept
Paper on the High Commissioner’s Proposal for a Unified Standing Treaty
Body, HRI/MC/2006/2, Geneva, March 22.
United Nations (2007) International Covenant on Civil And Political Rights,
Selected Decisions of The Human Rights Committee Under the Optional
Protocol, vol. 8, 75th to 84th sessions (July 2002–July 2005). New York and
Geneva.
United Nations (2006), Report on the Committee Against Torture¸ General
Assembly, 61st Session, Supplement No. 44, U.N. Doc. A/61/44.
United Nations (2005) Report of the Committee Against Torture, 35th session
(November 14–25),
United Nations Association of the United States of America, “CEDAW Myths and
Realties.” (Available online at: http://www.unausa.org/Page.aspx?pid=935.)
UNDA (United Nations Disarmament Agency) Status of Treaties. (Available
online at: http://disarmament.un.org/TreatyStatus.nsf/.)
UNFCC (1994) The United Nations Framework Convention on Climate Change,
March 21 1994 (http://unfccc.int/2860.php.)
UNGA (United Nations General Assembly) (1995) United Nations Report of the
Committee on Information. Official Records of the Fiftieth Session A/50/21,
August 7.
UNGA (United Nations General Assembly) (2005) Report of the Secretary-
General—In: Larger Freedom: Towards Development, Security and Human
Rights for All, A/59/2005, March 21.
UNHCHR (United Nations High Commissioner for Human Rights) (1948)
Convention on the Prevention and Punishment of the Crime of Genocide.
Approved and proposed for signature and ratification or accession by General
Assembly resolution 260 A (III) December 9.
Universal Declaration on Human Rights. (Available online at: http://www.
un.org/Overview/rights.html.)

Convention Relating to the Status of Refugees. Adopted on July 28 1951 by
the United Nations Conference of Plenipotentiaries on the Status of Refugees
and Stateless Persons convened under General Assembly resolution 429 (V)
December 14.
Protocol Amending the Slavery Convention Signed at Geneva on September 25
1926. Approved by General Assembly resolution 794 (VIII) of October 23.
Convention on the Reduction of Statelessness. Adopted on August 30 1961 by
a Conference of Plenipotentiaries which met in 1959 and reconvened in 1961
in pursuance of General Assembly resolution 896 (IX) of December 4.
International Convention on the Elimination of All Forms of Racial
Discrimination. Adopted and opened for signature and ratification by General
Assembly resolution 2106 (XX) December 21.
Protocol Relating to the Status of Refugees. The Protocol was taken note of
with approval by the Economic and Social Council in resolution 1186 (XLI)
of November 18 1966 and was taken note of by the General Assembly in
resolution 2198 (XXI) December 16.
International Covenant on Civil and Political Rights. Adopted and opened for
signature, ratification and accession by General Assembly resolution 2200A
(XXI) December 16.
Optional Protocol to the International Covenant on Civil and Political Rights.
Adopted and Opened for signature, ratification and accession by General
Assembly resolution 2200A (XXI) December 16.
Convention on the Elimination of All Forms of Discrimination Against Women
New York. December 18.
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment. Adopted and opened for signature, ratification and accession
by General Assembly resolution 39/46 December 10.
Convention on the Rights of the Child. Adopted and opened for signature,
ratification and accession by General Assembly resolution 44/25 of
November 20.
International Convention on the Protection of the Rights of All Migrant Workers
and Members of Their Families. Adopted by General Assembly resolution
45/158 of December 18.
Bibliography 309

Optional Protocol to the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment. Adopted at the 57th session
of the General Assembly of the United Nations by resolution A/RES/57/199
on December 18.
United Nations Commission on Human Rights (UNCHR) (2005) Special
Rapporteur on Torture Highlights Challenges at End of Visit to China, Beijing,
December 2.
UNHCHR (United Nations High Commissioner for Human Rights) (2007–2008)
Protecting Refugees and the Role of UNHCR.
UNHCHR (United Nations High Commissioner for Human Rights) Slavery
Convention. Signed at Geneva on September 25 1926, Entry into force:
March 9 1927, in accordance with Article 12. The Convention was amended
by the Protocol done at the Headquarters of the United Nations, New York,
on December 7 1953; the amended convention entered into force on July 7
1955, the date on which the amendments, set forth in the annex to the Protocol
of December 7 1953, entered into force in accordance with Article III of the
Protocol.
UNHCR (United Nations High Commissioner for Refugees) (2006) The World’s
Stateless People: Questions and Answers.
UNHCR (United Nations High Commissioner for Refugees) (2007) States Parties
to the 1951 Convention Relating to the Status of Refugees and the 1967
Protocol. November 1.
UNHCR (United Nations High Commissioner for Refugees) (2007) States Parties
to the 1961 Convention on the Reduction of Statelessness. November 1.
UNHCR (United Nations High Commissioner for Refugees) (2008) Who is
Stateless and Where? (Available online at: http://www.unhcr.org/pages/49c36
46c15e.html.)
UNHCR (United Nations High Commissioner for Refugees) Basic Facts.
(Available online at: http://www.unhcr.org/basics.html.)
UNHCHR (United Nations Office of the High Commissioner for Human Rights)
(1996) Fact Sheet no. 2, Rev. 1. The International Bill of Human Rights,
June.
(1997) Fact Sheet no. 10, Rev. 1. The Rights of the Child, March.
(2005) Fact Sheet no. 30. The United Nations Human Rights Treaty System: An
Introduction to the Core Human Rights Treaties and the Treaty Bodies, June.
(2006) Fact Sheet no. 24, Rev. 1. The International Convention on Migrant
Workers and its Committee, May.
UNTC (United Nations Treaty Collection) (2001) Treaty Reference Guide
(UNTRG). New York: UN Press.
United States Congress (2001) American Servicemembers’ Protection Act of 2001,

H.R.1794, 107th, Congress, 1st, Session, May 10.
United States Congress (2002) American Servicemembers’ Protection Act of 2002,
H.R. 4169, 107th, Congress, 2nd, Session, April 11.
USDOE (United States Department of Energy) (2008) Japan-Country Analysis
Brief, Energy Information Agency, September, 1–14. (Available online at:
http://www.eia.doe.gov/cabs/Japan/pdf.pdf.)
USDOS (United States Department of State) (2002) Bureau of Democracy, Human
Rights, and Labor, Saudi Arabia: International Religious Freedom Report.
USDOS (United States Department of State) (1999) China—Country Reports
on Human Rights Practices, 1999 (Washington, DC: Bureau of Democracy,
Human Rights, and Labor), available online at http://www.state.gov.
USDOS (United States Department of State) Foreign Aid and Human Rights.
(Available online at: http://usinfo.state.gov/infousa/government/overview/54.
html.)
USIP (United States Institute for Peace) (2002) The Marsh Arabs of Iraq: Hussein’s
Lesser Known Victims. November 25. (Available online at: http://www.usip.
org/newsmedia/releases/2002/nb20021125.html.)
Vance, Cyrus R. (1979) Law Day Address on Human Rights Policy, University of
Georgia Law School. In: Human Rights and American Foreign Policy (eds)
Donald P. Kommers and Gil Loescher. Notre Dame, IN: University of Notre
Dame Press.
Verdier, Daniel (1994) Democracy and International Trade: Britain, France, and
the United States, 1860–1990. Princeton, NJ: Princeton University Press.
Victor, David G., Kal Raustiala, and Eugene B. Skolnikoff (1998) The
Implementation and Effectiveness of International Environmental
Commitments: Theory and Practice. Cambridge, MA, The MIT Press.
Viotti, Paul R. and Mark V. Kauppi (1993) International Relations Theory:
Realism, Pluralism, Globalism. New York: Macmillan.
Vogelgesang, Sandy (1980) American Dream Global Nightmare: The Dilemmas
of U.S. Foreign Policy. New York: W.W. Norton and Company.
Wallace, William (1991) “Foreign Policy and National Identity in the United
Kingdom.” International Affairs, January, 67(1): 65–80.
Waltz, Kenneth N. (1959) Man, the State, and War: A Theoretical Analysis. New
York, Columbia University Press.
Waltz, Kenneth N. (1967) Foreign Policy and Democratic Politics: The American
and British Experience. Boston, MA: Little, Brown.
Waltz, Kenneth N. (1979) Theory of International Politics. Reading, MA:
Addision-Wesley.
Waltz, Kenneth N. (1990) “Realist Thought and Neo-Realist Theory.” Journal of
International Affairs, 44(1): 21–37.
Waltz, Kenneth. N. (1993) “The Emerging Structure of International Politics.”
International Security, Fall, 18(2): 44–79.
Bibliography 311
Wan, Ming (2001) Human Rights in Chinese Foreign Relations: Defining and
Defending National Interests. Philadelphia, PA: University of Pennsylvania
Press.
Washington Times (2002) “Down with Motherhood?” June 13, p. A20.
Weatherley, Robert (1999) The Discourse of Human Rights in China: Historical
and Ideological Perspectives. London, UK: Macmillan Press.
Weber, Katja (1997) “Hierarchy amidst Anarchy: A Transaction Cost Approach
to International Security Cooperation.” International Studies Quarterly, June,
41(2): 321–340.
Wedgewood, Ruth (2000) “The Constitution and the ICC.” In: The United States
and the International Criminal Court (eds) Sarah Sewall and Carl Kaysen.
Lenham, MD: Rowman and Littlefield.
Weisbrot, Robert (1991) Freedom Bound: A History of America’s Civil Rights
Movement. New York: Penguin Books.
Weis, Paul (1961) “The Convention Relating to the Status of Stateless Persons,”
The International and Comparative Law Quarterly, Vol. 10, No. 2 (April), pp.
255–264.
Weiss, Edith Brown (1999) “Understanding Compliance with International
Environmental Agreements: The Baker’s Dozen Myths,” University of
Richmond Law Review, 32(5): 1555–1589.
Weiss, Edith Brown and Harold K. Jacobson (eds) (1998) Engaging Countries:
Strengthening Compliance with International Environmental Accords.
Cambridge, MA: MIT Press.
Wendt, Alexander (1987) “The Agent-Structure Problem in International Relations
Theory.” International Organization, Summer, (41): 336–367.
Wendt, Alexander (1992) “Anarchy is What States Make of it: The Social
Construction of Power Politics.” International Organizations, Spring, 46(2):
391–425.
Wendt, Alexander (1994) “Collective Identity Formation and the International
State.” The American Political Science Review, June, 88(2): 384–396.
Wendt, Alexander (1995) “Constructing International Politics.” International
Security, Summer, 20(1): 71–81.
Wendt, Alexander (1999) Social Theory of International Politics. Cambridge
University Press.
Wessner, Daniel W. (1999) “From Judge to Participant: The United States as
Champion of Human Rights.” In: Debating Human Rights: Critical Essays
from United States and Asia (ed.) Peter Van Ness. New York: Routlege
Publishers, pp. 255–277.
Wettestad, Jørgen (2002) “The Vienna Convention and Montreal Protocol on
Ozone-Layer Depletion.” In: Environmental Regime Effectiveness (eds)
Edward L. Miles et al. Cambridge, MA: The MIT Press, pp. 149–172.
Wilson, James Q and John Diiulio, Jr. (1995) American Government Institutions
and Policies. Lexington, DC: Heath and Company.
Wood, Paul (2002) “Saudis Test Limits of Freedom.” BBC Online, November 9.
World Conference on Human Rights (1993) Status of Preparation of Publications,

Studies and Documents for the World Conference. A/CONF.157/PC/62/
Add.11/Rev.1 (April 22).
Wu, John C.H. (1967) “Chinese Legal and Political Philosophy.” In: The Chinese
Mind: Essentials of Chinese Philosophy and Culture (ed.) Charles A. Moore.
Honolulu, HI: University of Hawaii Press, pp. 213–237.
Xinhua Net (2003) “FM spokesman: US Congress Committee Should Stop
Interfering in China’s Internal Affairs,” October 4. (Available online at: http://
news.xinhuanet.com/english/2003-10/04/content_1110713.htm.)
Xinhua Net (2006) “China Strives to Handle Mass Incidents,” China Daily,
December 9 2006. (Available online at http://www.chinadaily.com.cn/china/
2006 12/09/content_754796.htm.)
Yardley, Jim (2005) “Issue in China: Many in Jails Without Trial.” New York
Times, May 9.
Yardley, Jim (2006) “China Detains Lawyers for Peasants’ Advocate.” New York
Times, August 18.
Yardley, Jim (2006) “China Tries Rights Lawyer, Barring his Kin and Counsel.”
New York Times, December 14.
Ye, Sang (2006) China Candid: The People on the People’s Republic. Berkeley,
CA: University of California Press.
Young, Oran R. (1989) International Cooperation: Building Regimes for Natural
Resources and the Environment. Ithaca, NY: Cornell University Press.
Young, Oran R. (1994) International Governance: Protecting the Environment in
a Stateless Society. Ithaca, NY: Cornell University Press.
Young, Oran R. (ed.) (1997) Global Governance: Drawing Insights from the
Environmental Experience. Cambridge, MA: MIT Press.
Young, Oran R. (1998) Creating Regimes: Arctic Accords and International
Governance. Ithaca, NY: Cornell University Press.
Young, Oran R. (ed.) (1999) The Effectiveness of International Environmental
Regimes: Causal Connections and Behavioral Mechanisms. Cambridge, MA:
MIT Press.
Young, Oran R. (1999) Governance in World Affairs. Ithaca, NY: Cornell
University Press.
Young, Oran R. (2002) The Institutional Dimensions of Environmental Change:
Fit, Interplay, and Scale. Cambridge, MA: MIT Press.
Young, Oran R and Marc A. Levy (1999) The Effectiveness of International
Regimes. Cambridge, MA: MIT Press.
Zacher, Mark W. and Richard A. Matthew (1995) “Liberal International Theory:
Common Threads, Divergent Strands.” In: Controversies in International
Relations Theory: Realism and the Neoliberal Challenge (ed.) Charles Kegley
Jr. New York: St. Martin’s Press, pp. 107–150.
Zacher, Mark W. and Brent A. Sutton (1996) Governing Global Networks:
International Regimes for Transportation and Communications. New York:
Bibliography 313
Zemin, Jiang (2001) “The ‘Three Represents’ Theory,” China Xinhua Net, June
25. (Available online at: http://news.xinhuanet.com/english/20010625/422678.
htm.)
Zheng, Shiping (2004) Party versus State in Post-1949 China. New York:
Zhiping, Liang (1988) “Explicating ‘Law’: A Comparative Perspective of Chinese
and Western Legal Culture.” Journal of Chinese Law, (3): 55–94.
Ziegler, Benjamin M. (ed.) (1958) Desegregation and the Supreme Court. Boston,
MA: D.C. Heath and Company.
Zittrain, Jonathan and Benjamin Edelman (2002) “Empirical Analysis of Internet
Filtering in China.” Berkman Center for Internet and Society, Harvard
University. (Available online at: http://cyber.law.harvard.edu/filtering/china/);
“Documentation of Internet Filtering in Saudi Arabia” (http://cyber.law.
harvard.edu/filtering/saudiarabia/.)
Zoglin, Kathryn (1986) “United Nations Action Against Slavery: A Critical
Evaluation.” Human Rights Quarterly, May, 8(2): 306–339.
Index
9/11 terrorist attacks, United States 43 Anti-Personnel Mines (APM) Treaty 83,
85–6, 91, 143
Abbreviations xi–xiii apartheid in South Africa 35
Adams, John 210 arbitrary detention China 252–4
African National Congress (ANC) 116 arms control agreements 76–87
African nations and treaty regimes 273 Biological Weapons Convention 80–1
Alford, Bill 219 Chemical and Biological Weapons
Alien Land Laws, United States 170 79–80
Allende, Salvador 179 Chemical Weapons Convention 81–3
amendments to United States Constitution Comprehensive Test Ban Treaty 78–9
149 Landmine Ban Convention 83–5
American Bar Association (ABA) 170–1, participation 90–1
185, 187, 193, 204 state resistance 85–7
American Civil Rights treaty participation 269
human rights 174–8 weapons of mass destruction 87–90
Kennedy–Johnson era 174–8 arms control and treaty participation 269
American Civil War 165 arrest in China 252–4
American Declaration of Independence, Asian nations, treaty regimes 273
1776 145–6, 148–9 Assembly of States Parties (ASP) 121, 206
“American Service Members Protection Axworthy, Lloyd 206
Act” (ASPA) 207–8
American Society of International Law Balmforth, Kathryn O. 197
(ASIL) 186 Banco Nacional de Cuba v. Sabbatino case
Amnesty International (AI) 155–6
China 235, 247–8, 250–7, 279 Baruch Plan 73
executions 113 Beijing Olympic games 41
human rights 133, 235 Beijing Women’s Conference, 1995
non-governmental organizations 35, 213–14
235 Biden, Joseph 196
norm promotion 31 Bill of Rights, United States 144, 147–9,
treaty implementation 140 152, 165
Analects of Confucius 216 Biological Weapons Convention (BWC)
Anan, Kofi 139, 207 77–8, 80–1, 85
anarchy-bridging constructions and Bolton, John R. 207
international institutions 16–19 book summary 5–6
Annual Report on Human Rights 235 Borek, Jamison S. 197
Antarctic treaty 73 “bourgeois law” 233
anti-Apartheid conventions 115–17 Bretton Woods institutions 143
Anti-Ballistic Missile (ABM) Treaty 5, Bricker Amendment to US Constitution
22, 90 144–5, 170–2, 172–4, 175
anti-discrimination convention 114–17 Bricker, John 171–2, 175
Brown v. Board of Education case 175 compliance

Buchheim, Hans 44 human rights 34–5
Bunche, Ralph 175 treaties 2–3
Bush, George W. 11–12, 22, 182, 196, Comprehensive Test Ban Treaty (CTBT)
207–8 arms control agreements 77–8, 78–80
Byrd, Robert 182 enforcement 34
France 91
Cambodia and Red Khmer 45 Israel 38
capital punishment in United States 47 multilateral arms control agreements
carbon dioxide (CO2) emissions 51 90–1
CARE international 31 state resistance 85–6
Carnegie Endowment for International United States 5, 8, 143
Peace (CEIP) 88 weapons of mass destruction 32, 49,
Carter, Jimmy 178, 181–3, 183–4, 196 87–9
Catholic Church and China 159 Comprehensive Test Ban Treaty
chemical and biological weapons (CBW) Organization (CTBTO) 32, 79, 85
79–80 Conference on Disarmament (CD) 82
Chemical and Biological Weapons Confucian moral code (li) 218
Convention (CWC and BWC) 32, 49 Confucian political philosophy 262
Chemical Weapons Convention (CWC) Confucian social order 232
77–8, 81–3, 85–6 Confucianism in China 214, 216–19, 232,
Chen Yun Group 244 238
China see People’s Republic of China consent
Chinese Communist Party (CCP) 6 participation 30, 38–9, 39–42
authority 245, 272 ratification 40
criticism 261 signature 40
death penalty 213 treaties 38–9, 267
dominance 240 Constitution of United States
ideology 235–8, 245 amendments 149
individual rights 230–1 Bill of Rights 147–8
international law 232–4 Bricker Amendment 170–2, 172–4, 175
Jiang Zemin 244–5 development 144–5
nationalism 241–2 federalism 166
party leaders 242 Genocide Convention 187
political liberty 252 international law 152–3
reforms 243 international treaties 158–9, 163–4
rise 227 treaty-power infringement 168
socialist government 228 constructivism theory 27–8
Tiananmen square protests 243 Convention Against Torture (CAT)
Chinese Criminal Law (CPL) 247 China 235, 272
chlorofluorocarbons (CFCs) 63, 66 Human Rights Committee 100
civil liberties 105–6 monitoring implementation 137, 140
Claude, Inis L. 31 Ronald Reagan 184
Clinton, Bill 8, 34, 161, 206 state participation 105, 130–1
Cold War 183, 209, 269 Torture Convention 110–12
Commission on Human Rights (CHR) 138 Convention on Biological Diversity 66, 73
Committee on Economic, Social and Convention on Certain Conventional
Cultural Rights (CESCR) 137 Weapons (CCW) 83–4, 86
Index 317
Convention on the Elimination of All China 246–50

Forms of Discrimination Against human rights 112–14
Women (CEDAW) democracies
abortion issues 199–200 anti-discrimination convention 115
discrimination 98 domestic politics 7–10, 11–12
history 55 foreign policy 21–3
Human Rights Committee 100 global regimes proclivity 269
International Court of Justice 135 human rights treaties 130
Jimmy Carter 182, 196 interest group politics 24
monitoring implementation 137 multilateral environmental treaties 69
optional protocol 105 participation in treaty regimes 268–9
ratification 144–5 POLITY datasets 56–8
reservations, understandings and proclivity 9
declarations 134–5, 201–2 ratification of treaties 63–6
state participation 101, 130–1 refugee legislation 123
United States 12, 195–204, 275 treaty regimes 11–12
women’s rights 109 Democracy Wall Movement 238
Convention on the Nationality of Married Democratic Party, US 8
Women 109 Democratic Republic of Congo 52
Convention on Rights of the Child (CRC) Deng Xiaoping
death penalty 113 “Four Cardinal Principles” 243
Human Rights Committee 100 human rights 239–40, 241–2
monitoring implementation 137 market economy 215
optional protocols 105, 118 political order 243–4
ratification 144 power 245
state participation 101, 130–1 punishments in courts 252
universal acceptance 117 reforms 213, 235–8
Convention on Rights of Persons with Tiananmen Square protests 244
Disabilities (CPRD) 101, 137 Denmark and European Union 11
Convention for the Protection of developmental authoritarianism in China 214
All Persons from Enforced Dictatorships and Double Standards 183
Disappearance (CPPED) 101 dissent suppression in China 252–4
Convention Against Torture (CAT), China Division on the Advancement of Women
255, 258 (DAW) 109
Convention on Trade in Endangered domestic politics
Species (CITES) 62, 66, 68–9, 70 democracies 7–8
costs of multilateral treaties 3 international politics 23–8
Covenant on Human Rights, United international relations 13, 23–4
Nations 172 multilateral treaties 6–14
crimes against humanity 119–21 resistance 44–6
criminal law in China 251 state participation/resistance 265
cross-national analysis of treaty ratification treaty participation 6–14, 44–6
48–9 domestic polities and state behavior 55–8,
Cultural Revolution in China 230, 232, 269
234, 242, 261 domestic regime type (UN classification)
92–4
Dalai Lama 259 domestic social norms 47–8
death penalty domestic structure of states 3–4
Dupont Chemicals 63 Foreign Assistance Act, 1974 180

dynasties foreign policy
China 219–20, 222–5 democracies 21–3
Qing 215, 220, 222–5 United States 181–3
foreign policy of United States 274–5
economic reform in China 234–9 Foster v. Neilson case 163–5
economic rights 105–6 “Four Cardinal Principles” of Deng
Eisenhower, President 72–3, 174, 175 Xiaoping 243
environment Franklin, Benjamin 210
treaty participation 269 Fraser, Donald 180
environment multilateral treaty regimes Freedom House data on polities 55
58–62, 63–9, 69–71
Environmental Modification Techniques G8 countries 17
(ENMOD) 78, 86 GDP (gross domestic product) 131
Environmental Treaties and Resource General Agreements on Tariffs and Trade
Indicators (ENTRI) 61 (GATT) 1, 27, 35
Ervin, Sam 186, 187, 188 United States 143
Euro currency 12, 14 see also World Trade Organization
Europe and international law 222–3 Geneva Protocol 71–2, 77
European Constitution 8 Genocide Convention
European Court of Justice (ECJ) 31 opposition 187–93, 193–5
European Monetary Union (EMU) 11, 15 ratification 42, 118–19, 160
European states and treaty regimes 273–4 Ronald Reagan 183
European Union (EU) United States 41, 143–5, 160, 170–1,
constitution 8 179, 185–7
democracies 90 George, Walter 172
Denmark 11 global environmental treaties 50–1
legal integration 166 global governance and multilateralism
Lisbon Treaty 8 19–21
multilateral treaties 14 global regimes proclivity and democracies
Switzerland 11 269
tuna fish 31–2 global warming 52
Eurozone 14 “go it alone” power dynamics 16
excluded countries from state participation gonkai xuanpan dahu (sentencing rallies)
list 95 246
Exploitation of the Prostitution of Others Gorbachev, Mikhail 244
Treaty 128 Grams, Rod 206, 208
extraction of confessions in China 254–8 Gray, Horace 154
Greenpeace International 31, 61–2
fa (legalism) 218, 228 Grey, Edward 22
Falun Gong movement 46, 260 Guangzhou system 223–4
Federation of American Scientists (FAS)
88, 91 “Hague Invasion Act” 208
Ferguson, Senator Homer 172 Hamilton, Alexander 147
fishing trawlers 31 hard law 33
FISSBAN see Fissile Material Cutoff Treaty Harkin, Tom 180
Fissile Material Cut-off Treaty (FMCT) harmony in China 216–17, 218
32, 78 Hatch, Orrin 193
Index 319
Helms, Jesse 185–6, 187, 193, 196, 199, statelessness 123–5

206 torture convention 110–12
Holman, Frank 170–1 trafficking 125–8
Hu Jintao 213, 242, 245 United Nations 99–101
Hughes, Charles Evans 186 war crimes 119–22
hukou (household registration system) 213 women’s rights 108–10
Human Development Index (HDI) 131 Human Rights Watch (HRW) 35, 133, 235,
human rights 252
American civil rights 174–8 Hundred Flowers Campaign 229
China 239–40, 243–5, 260–3 hydrochlorofluorocarbons (HCFCs) 63, 66
compliance 34–5 hydrogen cyanide 80
conventions and state participation
101–5 Iceland and International Whaling
deontological values 52 Commission 8
India 272–3 Imperial Law Codification Commission
Islamic states 12–13 (China) 226
multilateral treaties 50–1 imperialism in China 216–19, 219–22,
non-governmental organizations 222–5
(NGOs) 35 India
regimes 12, 97–142 China comparison 272
South America 25–6 human rights 272–3
treaties and United States 174–5 nuclear non-proliferation (NPT) regime
treaty participation 269 43, 272–3
United Nations organizations 141 nuclear tests 49
United States 181–3, 183–5, 235 individual rights in China 217–19, 230–2
Human Rights in China (HRIC) 235, 251, Inter American Court of Human Rights
253 (IACHR) 31
Human Rights Commission 115, 239 Intercontinental Ballistic Missiles
Human Rights Convention in China 234–9 (ICBMs) 6
Human Rights Council (HRC) 99–100, International Atomic Energy Agency
138–9, 213 (IAEA) 32, 72, 74, 85, 89
human rights regimes International Bill of Human Rights 99
anti-discrimination convention 114–17 International Campaign to Ban Landmines
China 214–15, 271 (ICBL) 83–5
civil/political liberties 105–6 International Convention Against
conventions participation 130–6 Apartheid in Sport 116
crimes against humanity 119–22 International Convention on Civil and
death penalty 112–14 Political Rights (ICCPR)
enforcement 270 China 41, 258
Genocide Convention 118–19 civil/political liberties 105–6
introduction 97–9 classification 98
migrant workers 128–30 death penalty 113
monitoring implementation 136–42 economic, social and cultural rights
optional protocol to ICCPR 106–8 105–6
refugees 122–3 Human Rights Committee 100
rights of the child 117–18 Iran 10
slavery and servitude 125–8 Jimmy Carter 182
state participation 101–5 monitoring implementation 138
objectives 271 international human rights and United

optional protocol 106–8 States (US) 209–11
participation 130–1 international institutions and anarchy-
state participation 32 bridging constructions 16–19
torture 112 international law
United States 175 China 222–5, 232–4
western emphasis 234 Europe 222–3
International Convention on Economic, Soviet model 232
Social and Cultural Rights state consent 30
(ICESCR) United States 152–8
China 258, 262 International Military Tribunal (IMT) 119
civil and political liberties 105–6 International Monetary Fund (IMF) 57
general conventions 98 International Monitoring System (IMS) 79
human rights conventions 130 international politics and domestic politics
United States 144 23–8
International Convention on the International Red Cross (ICRC) 35, 83–4
Elimination of All Forms of Racial international relations (IR)
Discrimination (ICERD) domestic politics 23–4
anti-discrimination convention 98, interstate cooperation 14–19
114–15 liberal theories 15–16
Human Rights Committee 100 multilateral institutions 18–19
monitoring implementation 137 neoliberalism 15–16
reservations, understandings and neorealism 13
declarations 135 social factors 25
state participation 101, 130 state behavior 25–8
United States 174–5 states motivation 266
International Convention on the Rights of International Union for Conservation of
Migrant Workers (ICRMW) Nature (IUCN) 62
human rights 128–30 International Whaling Commission (IWC) 8
Human Rights Committee 100 interstate cooperation and international
monitoring implementation 137 relations 14–19
state participation 105, 129 intrinsic rights 148
International Court of Justice (ICJ) 39, IR see international relations
120, 135, 188, 191–3, 194 Iran
International Covenant on Educational, ICCPR 10
Social and Cultural Rights Nuclear Non-Proliferation Treaty 42–3
(IESCR) nuclear tests 49
general conventions 98 Shia Islam 46
Jimmy Carter 182 weapons of mass destruction 49
United States 175 Iraq and Kuwait 23
International Criminal Court (ICC) Islamic Law (Sharia) 41, 134, 136
Assembly of States Parties 121–2 Islamic states and human rights 12–13
Rome Statute 131, 161, 204–6, 207
United States 36, 145, 206–9 Japan
International Criminal Tribunal for International Whaling Commission 8
Rwanda (ICTR) 119, 121, 205 World Trade Organization 27
International Criminal Tribunal for former Jay, John 161
Yugoslavia (ICTY) 119, 121, 205 Jiang Zemin 240, 242, 244–5, 260
Index 321
Keck, Margaret 25–6 Ma Chun 233

Kennedy, John F. 178 McCarthy, Joseph 170–1
Kennedy, Robert F. 178 macro-assessment of state resistance/
Kennedy–Johnson era participation in treaty regimes
American civil rights 174–8 265–75
human rights 174–8 Madison, James 147
Kim Il-Sung 45 Maiost socialist order in China 214
Kim Jong-il 45 Manchu period (China) 222–5
Kirkpatrick, Jeanne 183–4 mandate from heaven (tianming) 219
Kissinger, Henry 22, 178–80, 182, 184 Mandela, Nelson 116
Knowland, William 172 Mao Shulong 249
Krasner, Stephen 33 Mao Tse-Tung 214, 218, 220, 227–34,
Kung, Prince 225 235–8
kung-chien-fa concept 229 Marshall, Justice John 163–4
Kuwait and Iraq 23 Marxist ideology 227
Kyoto Protocol on Climate Change, 1997 migrant workers’ rights 128–30
China 11 Migratory Bird Treaty Act, 1918 168
concept 17 Missile Technology Control Regime
environmental treaties 61 (MTCR) 17, 32, 49, 78, 90
establishment 35 Missouri v. Holland case 168–9, 170
ratification 66 Montreal Ozone Protocol, 1987 17, 33–4,
UNFCC 63 62, 66, 69
United States 5, 11, 22, 143 most favored nation (MFN) 224, 272
Multilateral Environmental Treaties
Landmine Ban Convention, Ottawa 5, 83–5 (MEAs)
laogai (reforms through Labor) 253 choice 62–3
laojiao (re-education through Labor) description 58–62
253–4 state participation 63–9
legal agreements and participation in multilateral institutions 16–17
treaties 33–6 multilateral treaties
legal positivism in China 222 arms control 76–87, 87–90, 90–1
Legalism in China 214–15 compliance 2
legalism (fa) in China 218 costs 3
Lenin 45 democracies and foreign policy 21–3
li (Confucian moral code) 218, 228 description 54–5
Li Peng 242 domestic politics 6–14
liberal theories and international relations domestic/international politics 23–8
15–16 environment 58–62, 62–3, 63–9, 69–71
liberté, égalitié and fraternité 97 evolution 29–32
Lin Hsin 233 global governance 19–21
Lisbon Treaty 8 human rights 50–1
Liu Huaqui 240 international relations 14–19
Lola} (fishing vessel) case 153–4 introduction 1–5
Long-Range Transboundary Air Pollution nuclear non-proliferation 73–6
Treaty (LRTAP) 61, 66 People’s Republic of China 5–6
luan (chaos) in China 214–15, 242, 244 resistance to join 2–3
Luo Gan 247 state participation 54–5
summary 265–6, 268, 271 nuclear non-proliferation (NPT) regime

United States 5–6, 165–74 arms control 73–6
weapons of mass destruction 49, 71–3, India 272–3
87–90 Nuclear Non-Proliferation Treaty (NPT)
Multilateral Treaty Index, UN 5 Argentina 89
multilateralism and global governance arms control 77–8
19–21 Brazil 89
breaches 34
National Lawyers Guild (NLG) 170 concept 17
nationalism in China 262 discrimination 74
Nature Conservancy 62 framework 49
“neo-Confucianism” (China) 230 France 91
“neo-legalism” (China) 230 India 88, 91
neoliberalism 15–16, 18–19, 20, 27, 266–7 Israel 38, 88, 91
neorealism 13, 15, 20 membership 74–6
Nie Shubin 255 resistance 85
Nixon, Richard 80, 181–2, 194 terms 91
Nixon–Ford Administration, 1969–1977 United Kingdom 91
178–80 United Nations Security Council 37
non-democracies weapons of mass destruction 32
anti-discrimination convention 115 nuclear tests 49
foreign policies 22 nuclear weapons states (NWS) 74
government criticism 46 Nuremburg Trials 119
internal politics 7
multilateral environmental treaties 69 obedezco pero no cumplo (obey, but do not
non compliance to treaties 7, 9–10, comply) 9
12–13 Olympic Games 35, 41
participation in treaty regimes 268–9 Organization for Economic Cooperation
policies 44 and Development (OECD) 47, 57,
POLITY datasets 56 90, 132
ratification of treaties 63–6 Organization for the Prohibition of
non-governmental organizations (NGOs) Chemical Weapons (OPCW) 80,
human rights 35, 99, 133, 235 82, 85
lobbying 61–2 organizational structure of treaty regimes
rights of the child 117 29–51
torture 140 consent 38–9, 39–42
treaty negotiations 160 domestic politics 44–6
United Nations’ reports 240 domestic social norms 47–8
non-nuclear weapon states (NNWS) 74 environmental treaties 50–1
normativism theory 27–8 evolution 29–32
North Atlantic Treaty Organization participation 33–6
(NATO) 57 reasons for joining 36–8
North Korea resistance to participation 42–3
Nuclear Non-Proliferation Treaty 42–3 treaty ratification 48–9
South Korea 170 Ottawa Landmine Ban Treaty 5, 83–5
weapons of mass destruction 49 Outer Space treaty 73
Norway, International Whaling ozone layer 62–3
Commission 8 ozone regime see Montreal Protocol
Index 323
pacta sunt servanda (treaties must be most favored nation (MFN) status 272
observed) maxim 30, 38, 40, 54 nationalism 262
Pakistan nationalist era 225–7
Nuclear Non-Proliferation Treaty 43 non-democratic political structure 271
nuclear tests 49 political order 243–5
Pan Yujun 255 reforms 246–52
Panama Canal treaties 183 religion 46
Paquete Habana (fishing vessel) case religious activities 258–60
153–4 repression 258–60
Partial Test Ban Treaty (PTBT) 73 republican era 225–7
People’s Daily ( Chinese newspaper) 247, rule by man over rule by law 227–30
250, 260 rule of law 239–40
People’s Republic of China (PRC) saving face 240–2
arrest and arbitrary detention 252–4 social stability 246–52
case study 5–6 Taiwan 260
Catholic Church 259 torture 140–11, 254–8
commercialism 45–6 torture convention 272
Confucianism 214, 216–19 United Nations 239
Convention Against Torture... 235 World Trade Organization 272
Convention on Torture 255, 258 Pepper, Claude 188
courts 242 Percy, Charles H. 193–4
criminal law 251 Perlman, Philip 188
Cultural Revolution 230 Persistent Organic Pollutants Convention,
cultural sensitivity to foreign criticism Stockholm 66
240–2 Pol Pot 45, 119
death penalty 246–50 political liberties 105–6
dissent suppression 252–4 political order in China 243–5
domestic political factors 271 Political Rights of Women (PRW) 98, 108
dynasties 219–20, 222–5, 225–7 politics see domestic politics; international
economic reform 234–9 politics
extraction of confessions 254–8 Polity IIID dataset 53
harmony 216–17, 218 POLITY IV dataset
history 213–15 anti-discrimination data 115
human rights 214–15, 239–40, 243–5, domestic regime type 4, 53, 55–7
260–3 Ramsar Treaty 67
Human Rights Convention 234–9 ratification data 48
human rights regimes 271 refugee legislation 123
ICCPR 41, 258 time series data 101
ICESR 258, 262 Prior Informed Consent (PIC), Convention
imperialism 22–5, 216–19, 219–22 (hazardous chemicals) 61
India comparison 272 private rights 148
individual rights 217–19, 230–2 procedural rights 148
international law 222–5, 232–4 proclivity in democracies 9
International treaty regimes 213–63 protectionist policies and World Trade
legal issues 222, 225–7, 228 Organization 34
legalised Confucianism 219–22 prostitution 128
Legalism 214, 216–17 Proxmire, William 186, 194
Manchu period 222–5 public policy and religion 47
Puritan settlers 210 rule by man over rule by law 227–30

“pursuit of happiness” 149 rule of law in China 239–40
Putnam, Robert 22 Rusk, Dean 186
puyi (child emperor) 225 Rwanda and genocide 51
Qing dynasty 215, 220, 222–5, 225–7 Salisbury, Lord 22

Sarin (nerve agent) 80
Ramsar Convention on Wetland Saudi Arabia and Sunni Islam 46
Protection... 62, 66–8, 70 Schelling, Thomas 80
ratification of treaties 40, 48–9 Schultz, Kenneth 22–3
re-education through Labor (RTL) 253–4 self execution of international treaties
Reagan, Ronald 11, 22, 183–4, 185, 194–5, 162–5
196, 235 Senate (United States) 159–62, 165
realism 266–7 servitude 125–8
Realpolitik 178–80, 184, 225 Sharia (Islamic Law) 41, 134, 136
reasons for joining treaties 36–8 She Xianglin 255
Red Khmer and Cambodia 45 Shen Chun-ju 229
Reduction of Statelessness Treaty 124 Shia Islam,, Iran 46
reforms in China 246–52 shourong qiansong (Custody and
Refugee Convention, 1951 122 Repatriation) 253
Regional Environmental Treaties (REAs) shourong shencha (Custody and
60 Investigation) 253
Reid v. Covert case 166 signature consent 40
religion Sikkink, Kathryn 25–6
People’s Republic of China 46 Slaughter, Anne-Marie 6–7
public policy 47 slavery 125–8, 150, 171
religious activities in China 258–60 Slavery Conventions 125–7, 131
repression in China 258–60 United Nations 192
Reservations, Understandings and United States 175
Declarations (RUDs) 134–6, social factors and international relations 25
161–2, 167, 189, 200 social rights 105–6
resistance social stability in China 246–52
domestic politics 44–6 “socialist international law” 233
multilateral treaties 2–3 soft laws 33
participation in treaties 42–3 Solzenitsyn, Alexander 182
right thing to do concept 17, 29, 41 South Africa and apartheid 35
rights South America and human rights 25–6
children 117–18 South Korea
United States 145–6, 147–9, 149–52, North Korea 170
165–74 Western social values 45
Rio Declaration on Environment and Soviet Communism 171
Development (1992) 54 Soviet model of international law 232
Rodgers, William 179, 188–92 Stalin 45
Rome Statute, International Criminal Court state behavior
204–6, 207–9 domestic polities 269
Roosevelt, Eleanor 172, 175 treaty regimes 267–9
Roosevelt, Franklin D. 143 state participation in treaty regimes
RTL see re-education through Labor (summary) 265–75
Index 325
state resistance to treaty regimes United Nations Commission for Human

(summary) 265–75 Rights (UNCHR) and China 254–8
statelessness 123–5 United Nations Conference on Human
Status of Forces Agreement (SOFA) 36 Environment, 1972(UNCHE)
Status of Stateless Persons Treaty 124 59–61
Strategic Arms Limitation Talks (SALT) United Nations Convention on Law of the
183 Sea (UNCLOS) 53, 54, 59, 66,
Strategic Arms Reduction Talks (START) 69–70
34 United Nations Convention to Combat
Sun Yatsen, Dr 226–7 Desertification (UNCCD) 66
Sunni Islam and Saudi Arabia 46 United Nations Development Programme
Supreme Court, United States 151, 155–6, (UNDP) 131
158, 166, 169, 170, 175 United Nations Disarmament Commission
Switzerland and Neutrality 11 (UNDC) 76, 84
United Nations Economic Commission for
Taiwan and China 260 Europe (UNECE) 66
Taliban 45 United Nations Economic and Social
Thurmond, Strom 194 Council (ECOSOC) 115, 124, 126
Tiananmen Square 213, 235, 239, 243–6, United Nations Environment Programme
261 (UNEP) 31, 61
Tibet separatist movement 246, 259, 260 United Nations Framework Convention on
torture Climate Change (UNFCC) 61, 63,
China 254–8 66, 71
convention 110–12 United Nations High Commission for
totalitarianism 44 Refugees (UNHCR) 122, 125, 128
trafficking (people) 125–8 United Nations Human Development Index
treaties, consent 267 (HDI) 270
treaty participation United Nations Office of the High
arms control 269 Commissioner for Human Rights
environment 269 (UNHCHR) 100, 117, 129, 136–8
human rights 269 United Nations Security Council 34, 37,
treaty regimes 39, 42–3, 57
African nations 273 United Nations Treaty Series (UNTS) 53,
Asian nations 273 54
democracies 268 United Nations (UN)
European states 273–4 birth 31
non-democracies 268 China 239
state behavior 267–9 domestic regime type 92–4
Truman, Harry S. 41 drafting treaties 36
expansion of powers 190
UK see United Kingdom human rights 35, 50
UN see United Nations Human Rights Commission 239
United High Commission for Refugees Human Rights Covenant 172
(UNHCR) 195, 197 human rights organizations 141
United Kingdom (UK) human rights treaty system 97–8,
European Monetary Union 11 99–101
migratory birds 168 Multilateral Treaty Index 5
United Nations Charter 192 rights of the child 117
Slavery Conventions 192 Senate 159–62, 165

Switzerland 11 slavery 127, 150
treaty classification 48, 53 Slavery Conventions 175
United States (US) Supreme Court 151, 155–6, 158, 166,
9/11 terrorist attacks 43 169, 170, 175
Alien Land Laws 170 treaty ratification 5, 143–4
amendments to constitution 149 tuna fish 31–2
Bill of Rights 144, 147–9, 152, 165 Weapons of mass destruction 72
biological weapons program 80 Women’s Right Convention 12
capital punishment 47 women’s rights 275
case study 5–6 World Bank 143
CEDAW 195–7, 197–204, 275 World Trade Organization 143, 166
civil war 150 Yugoslavia 119
Cold War 183, 209 United States v. Curtiss–Wright Export
Comprehensive Test Ban Treaty 8 Corporation case 166
Constitution 144, 147–8, 152–3, United States v. McCullagh 168
158–9, 163–4, 166, 168 United States v. Shauver 168
Convention on Political Rights of Universal Declaration for Human Rights
Women 175 (UDHR) 32, 55, 97–9, 112–13,
Declaration of Independence, 1776 143, 175, 178
145–6, 148–9 US see United States
Democratic Party 8
domestic political factors 271 Vance, Cyrus 181
exceptionalism 210 Vattel’s International Law 225
federalism 165–74 VEREX review panel 81
foreign policy 178–80, 181–3, 274–5 Vienna Convention
General Agreements on Tariffs and Law of Treaties 30, 39, 54, 207
Trade 143 Protection of Ozone Layer, 1985 62
Genocide Convention 41, 143, 179, VX (nerve agent) 80
185–7, 275
human rights 174–5, 181–3, 183–5, 235 Wang Shujim 255
ICCPR 175 war crimes 119–1212
ICERD 174–5 Warren, Earl 175
IESCR 175 Washington, George 162
International Criminal Court 36, 206–9 Wassenaar Arrangement 78
international human rights 209–11 weapons of mass destruction (WMD) 15,
international institutions 143 32, 49, 71–3, 87–90, 91
international law and treaties 152–8, Wei Jingsheng 238
158–65 Weinberger, Caspar 209
international treaty regimes 143–211 Weingast, Barry 22–3
Kyoto Protocol 5, 11, 22 weltanshauung (worldview) 222
multilateral treaties 165–74 Wendt, Alexander 26–7
participation in treaties 269, 274 Western legal systems 229
Puritan settlers 210 Western social values and South Korea 45
rights 145–52, 165–74 What Do We Want: Democracy or a New
Rome Statute 208–9 Dictatorship 238
self execution of international treaties Wheaton’s International Law 225
162–5 White Paper on Human Rights 238
Index 327
White Slave Traffic Treaties 128 non-members 270–1

Wilson, President Woodrow 161 People’s Republic of China 5
Wo-Shuang 233 protectionist policies 34
women’s rights 108–10 United States (US) 143, 166
United States 275 World Wildlife Fund (WWF) 31
World Bank, United States 143
World Cultural and Natural Heritage Xiao Yang 247
Treaty, 1972 70 Xinjiang separatist movement 246, 259,
World Family Policy Center 197 260
World Health Organization (WHO) 31
World Trade Organization (WTO) yanda (anti-crime) campaigns 246
China 272 Yeltsin, Boris 34
cooperation 55 Young, Andrew 182
dispute settlement directives 39
establishment 35 Zangger Committee 78
Japan 27 Zhao Zhiyang 245
multilateral treaties 1, 14 Zhou Enlai 238

Srini Sitaraman - State Participation in International Treaty Regimes

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STATE PARTICIPATION

IN INTERNATIONAL treaty REGIMES

British Library Cataloguing in Publication Data

Library of Congress Cataloging-in-Publication Data

ISBN 978 0 7546 7372 9 (hbk)

1 Conceptualizing State Participation and Resistance

Analytical Case Studies  5

2 Probing the Organizational Structure of Treaty Regimes

Evolution of Multilateral Treaties  29

3 State Participation in Multilateral Environmental

State Participation in Multilateral Environmental Treaties  63

4 State Participation in Multilateral Human Rights Regimes  97

United Nations Human Rights Treaty System  99

5 The Case of the United States  143

Origins of Rights Discourse in America  145

United States and CEDAW  195

6 The Case of China  213

Notions of Law and Order in Imperial China: Confucianism

7 State Resistance and Participation in Treaty Regimes:

3.1 Number of environmental treaties 60

4.1 State participation in human rights treaties, 1945–2008 102

6.1 Human rights conventions entered into by China 236

ABA American Bar Association

HRC Human Rights Council

OP-CRC-SC Optional Protocol to the Convention on the Rights of the Child

towards multilateral treaty regimes. The concluding seventh chapter attempts to

anonymous external reviewers helped me to sharpen my arguments and shift my

in enforcing agreements; they also increase the costs of non-participation and

Throughout, the following concepts are synonymously and interchangeably

Analytical Case Studies

Domestic Politics and Treaty Participation

Anne-Marie Slaughter (2004), argues that obstacles to treaty participation,

domestic political structures to comprehend why some states participate more in

Democracies are characterized by genuine and periodic political competition

The discourse of “exceptionalism” is commonly associated with the American

North Korea’s decision to pursue a clandestine nuclear program in violation of

The decision to test nuclear weapons received overwhelming domestic political

and legitimacy of democracies. Particularities of democratic heritage and economic

Realist International Relations Theory and Interstate Cooperation

International relations theory is dominated by various structural approaches that

sectors to supranational authorities. The establishment of European Monetary

Neoliberal International Relations Theory and International Cooperation

Liberal theories of international relations come in different varieties. They can

International Institutions as Anarchy-Bridging Constructions

Three different schools of thought or approaches dominate the study of international

12 The global governance perspective is comprised of multiple theoretical positions

Multilateralism as a Loose System of Global Governance

Global governance theories attempt to capture the growing movement towards

14 World Trade Organization is an example of such an institution. It started with 23

Foreign Policy Behavior of the Democracies

Integrating Domestic and International Politics

International Norms and State Behavior

International relations literature has witnessed a growing reliance upon social

How does one examine the varying response—participation and resistance—of

Evolution of Multilateral Treaties

Norms are regarded as standards for appropriate behavior or prescriptions for

environmental justice, resource conservation, and pollution control while most

The 1972 Stockholm Conference on the Environment led to the development of

dolphin-free. Global climate change has tremendous implications for international

Behind every international regime there is a treaty or as Chayes and Chayes

not uncommon. In addition states routinely attach reservations, objections or other

Formerly known as the United Nations Human Rights High Commission.

Why States Join Treaties

Consent with Treaties and State Participation

Analytical Case Studies 5

Evolution of Multilateral Treaties 29

State Participation in Multilateral Environmental Treaties 63

4 State Participation in Multilateral Human Rights Regimes 97

United Nations Human Rights Treaty System 99

5 The Case of the United States 143

Origins of Rights Discourse in America 145

United States and CEDAW 195

6 The Case of China 213

3.1 Number of environmental treaties 60

4.1 State participation in human rights treaties, 1945–2008 102

6.1 Human rights conventions entered into by China 236