State Participation in International Treaty Regimes

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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 system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the publisher. Srini Sitaraman has asserted his right under the Copyright, Designs and Patents Act, 1988, to be identified as the author of this work. Published by Ashgate Publishing Limited Wey Court East Union Road Farnham Surrey, GU9 7PT England

Ashgate Publishing Company Suite 420 101 Cherry Street Burlington VT 05401-4405 USA

www.ashgate.com 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  ISBN 978 0 7546 7372 9 (hbk) ISBN 978 0 7546 9173 0 (ebk.V)

2009004056

Contents List of Tables  List of Abbreviations   Preface   1

2

Conceptualizing State Participation and Resistance with Multilateral Treaty Regimes  

1

Analytical Case Studies   Domestic Politics and Treaty Participation   Realist International Relations Theory and Interstate Cooperation   Multilateralism as a Loose System of Global Governance   Foreign Policy Behavior of the Democracies   Integrating Domestic and International Politics  

5 6 14 19 21 23

Probing the Organizational Structure of Treaty Regimes and its Influence on Participation and Resistance  

29

Evolution of Multilateral Treaties   Participation in Treaties   Why States Join Treaties   Consent with Treaties and State Participation   Participation in Treaties and Levels of Consent   Resistance to Participation in Treaties   Domestic Political Structure as a Source of Participation and Resistance   Identifying Domestic Social Norms   Cross-National Analysis of Treaty Ratification   Global Environmental Treaties   3

ix xi xv

29 33 36 38 39 42 44 47 48 50

State Participation in Multilateral Environmental and Security Regimes  

53

Multilateral Treaties   Data on Domestic Polities   Multilateral Environmental Treaty Regimes   Choice of MEAs for Treaty Participation Analysis  

54 55 58 62

vi

4

5

State Participation in International Treaty Regimes

State Participation in Multilateral Environmental Treaties   Assessing Participation in Multilateral Environmental Treaties   Controlling the Spread of WMD through Multilateral Treaties   Nuclear Non-Proliferation Regime   Other Types of Arms Control Agreements   WMD Capable States and Arms Control Regimes   Participation in Multilateral Arms Control Agreements  

63 69 71 73 76 87 90

State Participation in Multilateral Human Rights Regimes  

97

United Nations Human Rights Treaty System   State Participation in Human Rights Conventions   Civil and Political Liberties and Economic and Social Rights   Optional Protocol to the ICCPR   Women’s Rights   Torture Convention   Death Penalty   Anti-Discrimination Convention   Rights of the Child   Genocide Convention   War Crimes and Crimes Against Humanity   Protection of Refugees   Statelessness   Conventions to Abolish Slavery, Servitude, and Trafficking   Rights of Migrant Workers   Participation in Human Rights Conventions—A Summary   Monitoring Treaty Implementation  

99 101 105 106 108 110 112 114 117 118 119 122 123 125 128 130 136

The Case of the United States  

143

Origins of Rights Discourse in America   Bill of Rights and the Rights Discourse   Development of Rights Under the United States Constitution   United States and International Law   United States versus International Treaties   Federalism, State Rights, and Multilateral Treaties   American Civil Rights as Human Rights: The Kennedy–Johnson Era   Nixon, Kissinger, Realpolitik, and American Foreign Policy   Rhetoric and Reality of Human Rights and US Foreign Policy   Dictatorships, Double Standards, and Human Rights   United States and the Genocide Convention   Reasons for Opposition—Genocide Convention   Assessing Opposition to the Genocide Convention  

145 147 149 152 158 165 174 178 181 183 185 187 193

Contents

United States and CEDAW   Reasons for US Opposition to CEDAW   Proposed US Reservations, Understandings, and Declarations for CEDAW   United States Participation in CEDAW—An Assessment   Rome Statute of the International Criminal Court   United States and the International Criminal Court   United States Participation in International Human Rights Regimes   6

The Case of China  

vii

195 197 201 202 204 206 209 213

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  

Bibliography   Index  

265 277 315

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List of Tables 3.1 3.2 3.3

Number of environmental treaties State participation in environmental treaties List of 21 major arms control and disarmament treaties

4.1 4.2

State participation in human rights treaties, 1945–2008 RUDs, and objections attached to the core human rights conventions Overdue implementation reports to the core human rights treaty bodies

135

5.1

Human rights conventions entered into by the United States

176

6.1 6.2

Human rights conventions entered into by China Number of death sentences imposed and actual executions carried out between 1990–2005 in the People’s Republic of China

236

4.3

60 64 77 102

139

248

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List of Abbreviations ABA ABM AI ANC APM BWC CAT CBM CCP CCW CD CECC CEDAW CEIP CIESIN CESCR CITES CPL CPRD CPRW CRC CTBT CTBTO CWC EC ECJ ECOSOC EMU ENTRI EU FAS FMCT FMLA GATT HDI

American Bar Association Anti-Ballistic Missile Treaty Amnesty International African National Congress Anti-Personnel Mines Conventions Biological Weapons Convention Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment Confidence Building Measures Chinese Communist Party Convention on Certain Conventional Weapons Conference on Disarmament Congressional-Executive Commission on China Convention on the Elimination of All Forms of Discrimination Against Women Carnegie Endowment for International Peace Center for International Earth Science Information Network Committee on Economic, Social, and Cultural Rights Convention on International Trade in Endangered Species Chinese Criminal Law Convention on the Rights of Persons with Disabilities Convention on the Political Rights of Women Convention on Rights of the Child Comprehensive Test Ban Treaty Comprehensive Test Ban Treaty Organization Chemical Weapons Convention European Commission European Court of Justice United Nations Economic and Social Council European Monetary Union Environmental Treaties and Resource Indicators European Union Federation of American Scientists Fissile Material Cut off Treaty Family Medical Leave Act General Agreements on Tariffs and Trade Human Development Index

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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

OP-CRC-SC PRC PRW SALT START UDHR UNCHE UNCHR UNCLOS UNDP UNECE UNEP UNFCC UNGA UNHCR UNHCHR UNPR UNTS WHO WMD WTO WWF

Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography People’s Republic of China Political Rights of Women Strategic Arms Limitations Talk Strategic Arms Reduction Treaty Universal Declaration for Human Rights United Nations Conference on Human Environment United Nations Commission for Human Rights United Nations Convention on the Law of Sea (UNCLOS) United Nations Development Programme United Nations Economic Commission for Europe United Nations Environment Programme United Nations Framework Convention on Climate Change United Nations General Assembly United Nations High Commissioner for Refugees United Nations Office of the High Commissioner for Human Rights Universal Periodic Review United Nations Treaty Series World Health Organization Weapons of Mass Destruction World Trade Organization World Wildlife Fund

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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 nondemocracies, 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

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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.

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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 nonimplementation 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.



State Participation in International Treaty Regimes

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 treatybased 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 noncompliant? 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 nondemocracies 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

Conceptualizing State Participation and Resistance



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



State Participation in International Treaty Regimes

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

Conceptualizing State Participation and Resistance



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).



State Participation in International Treaty Regimes

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).

Conceptualizing State Participation and Resistance



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.

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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 nondemocracies 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

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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,

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State Participation in International Treaty Regimes

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

Conceptualizing State Participation and Resistance

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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.

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State Participation in International Treaty Regimes

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 noncooperative 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

Conceptualizing State Participation and Resistance

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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.

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State Participation in International Treaty Regimes

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 decisionmaking procedures around which actor expectations converge in an given issuearea” (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

Conceptualizing State Participation and Resistance

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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

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State Participation in International Treaty Regimes

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, nongovernmental 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.

Conceptualizing State Participation and Resistance

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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.

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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

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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.

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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.

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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).

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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.

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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

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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

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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

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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 treatybased 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

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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.

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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

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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).

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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

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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

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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 nongovernmental 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.

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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

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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

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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).

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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

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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

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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).

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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

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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?

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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

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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 selfreliance. 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

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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, nondemocracies, 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.

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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.

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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 nondemocracy 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

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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.

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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 nonlife 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.

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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.

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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 nondemocracy) 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-àvis 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.

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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.

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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/).

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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 nondemocracies 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

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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.

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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.

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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.

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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 cleanup 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.

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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 133year 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 twothirds 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.

62

State Participation in International Treaty Regimes

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,

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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

Year

State participation in environmental treaties

Multilateral Environmental Treaties

1

1971

Ramsar Convention (Under ICUN)

2

1972

3

1973

World Cultural and Natural Heritage Treaty Convention on Endangered Species

4

1982

Convention on Law of Sea (UNCLOS)

5

1985

6

1987

7

1990

8

1992

9

1997

10

1999

Beijing Amendment to Montreal Protocol

11

1989

Basel Convention on Hazardous Waste

12

1992

UN Framework Convention on Climate Change

Vienna Convention for the Protection of the Ozone Layer Montreal Protocol on Substances that Deplete the Ozone Layer London Amendment to Montreal Protocol Copenhagen Amendment to Montreal Protocol Montreal Amendment to Montreal Protocol

Treaty Objectives Wetlands conservation and waterfowl habitat Protects sites, buildings, and natural heritage of value Regulates trade in endangered species Marine pollution, territorial rights, deep sea mining Protect ozone layer depletion (Framework Treaty) Protect ozone layer depletion (strictly binding) Expanded list of CFCs

Total % Ratified

State Parties NonDems % Dems % NotNonRatify Ratify

Partially Free% NonRatify

82

4

25

10

96

0

4

3

90

1

11

7

81

10

36

27

100

0

0

0

100

0

0

0

98

1

2

0

Tightened controls and included HCFCs

97

1

9

3

License control and ban methyl bromide

86

7

24

10

74

15

40

20

89

1

15

7

100

0

0

0

Expanded list of controlled chemicals and amended monitoring Control of transboundary movements of hazardous wastes Regulate emissions of greenhouse gases (Framework Treaty)

Table 3.2 continued

Year

State participation in environmental treaties

Multilateral Environmental Treaties

13

1992

Convention on Biological Diversity

14

1994

15

1994

16

1995

17

1997

Kyoto Protocol Climate Change Treaty

18

1998

Rotterdam Convention on the Movement of Hazardous Materials

19

2000

Cartagena Biosafety Protocol Treaty

20

2001

Stockholm Convention on Persistent Organic Pollutants

United Nations Convention to Combat Desertification Part XI of the UNCLOS Convention Conservation and Management of Straddling and Highly Migratory Fish Stocks (UNCLOS)

Treaty Objectives

Total % Ratified

State Parties NonDems % Dems % NotNonRatify Ratify

Partially Free% NonRatify

Preserve the biological diversity among all species

99

1

0

0

Prevent desertification and deforestation

100

0

0

0

Relates to seabed mining

69

13

49

40

Conservation of straddling and migratory fish stocks

37

42

95

67

95

3

7

3

63

28

36

33

77

17

22

30

89

17

15

27

Regulate emissions of greenhouse gases (binding treaty) Places important control on sale and movement of toxic chemicals Seeks to prevent risks posed by GMOs to the environment and global food supply Severely restricts or bans production of 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.

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State Participation in International Treaty Regimes

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

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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 humanmade 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

68

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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

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69

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.

70

State Participation in International Treaty Regimes

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 regimetype 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

State Participation in Multilateral Environmental and Security Regimes

71

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,

72

State Participation in International Treaty Regimes

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.

State Participation in Multilateral Environmental and Security Regimes

73

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 NonProliferation 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.

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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 nonnuclear 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 nonnuclear 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

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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.

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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.

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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 Arms Control and Disarmament Treaties

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

Geneva Protocol The Antarctic Treaty Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water (Partial Test Ban) Activities of States in the Exploration and Use of Outer Space (Outer Space Treaty) Prohibition of Nuclear Weapons in Latin America and the Caribbean (Treaty of Tlatelolco) Nuclear Non-proliferation Treaty (NPT) Emplacement of Mass Destruction on the Seabed and the Ocean Floor and in the Subsoil (Seabed Test) Biological Weapons Convention (BWC) Hostile Use of Environmental Modification Techniques (ENMOD) Activities of States on the Moon and Other Celestial Bodies (Celestial Bodies) South Pacific Nuclear Free Zone Treaty (Treaty of Rarotonga) Conventional Armed Forces in Europe (CFE) Treaty on Open Skies (Open Skies) Chemical Weapons Convention (CWC) Southeast Asia Nuclear Weapon Free Zone (Bangkok Treaty) Comprehensive Test Ban Treaty (CTBT) African Nuclear Weapon Free Zone Treaty (Pelindaba Treaty) Anti-personnel Mines Convention (APM) Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms Inter-American Convention on Transparency in Conventional Weapons Acquisitions Nuclear Weapon Free Zone in Central Asia (Treaty of Semipalatinsk)

Date of Adoption/ Signature 1925 1959 1963 1967 1967 1968 1971 1972 1977 1979 1985 1990 1992 1993 1995 1996 1996 1997 1997 1999 2006

Source: United Nations Treaty Series and United Nations Disarmament Agency (UNDA).

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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

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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”).

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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

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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

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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

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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 antipersonnel 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

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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

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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

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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 nonnuclear 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.

State Participation in Multilateral Environmental and Security Regimes

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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.

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State Participation in International Treaty Regimes

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

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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

90

State Participation in International Treaty Regimes

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 antiballistic missile shield to counter the missile proliferation threat from so-called

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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.

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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

2

Argentina

2

Angola

2

Benin

2

3

Australia

3

Armenia

3

4

Austria

4

Azerbaijan

5 6 7 8 9 10 11

Belgium Bolivia Botswana Brazil Bulgaria Canada Chile

5 6 7 8 9 10 11

12 Comoros

12

13 14 15 16 17 18

13 14 15 16 17 18

Bahrain Belarus Bhutan Burkina Faso Burundi Cambodia Cameroon Central African Rep Chad China Congo Cuba Djibouti Egypt Equatorial Guinea Eritrea Fiji Gabon

Costa Rica Croatia Cyprus Czech Rep Denmark Dominican Rep

19 Finland

19

20 France 21 Germany 22 Ghana

20 21 22

23 Greece

23 Gambia

24 25 26 27 28

24 25 26 27 28

Guatemala Hungary Iceland India Indonesia

29 Ireland

29

30 Israel 31 Italy

30 31

32 Jamaica

32

Guinea Iran Jordan Kazakhstan Kenya Korea, Dem People’s Rep Kuwait Kyrgyzstan Lao People’s Dem Rep

Colombia Congo, Dem 4 Rep 5 Ecuador 6 El Salvador 7 Estonia 8 Georgia 9 Guinea-Bissau 10 Guyana 11 Haiti

3

Afghanistan Bosnia and Herzegovina Ethiopia

4

Iraq

5 6 -

Ivory Coast Somalia

12 Honduras

-

13 14 15 16 17 18

-

Liberia Madagascar Malawi Malaysia Mali Mozambique

19 Namibia

-

20 Nepal 21 Niger 22 Nigeria Russian 23 Federation 24 Sierra Leone 25 Sri Lanka 26 Timor-Leste 27 Togo 28 Ukraine

-

29 Venezuela

-

30 Zambia -

-

-

-

-

State Participation in Multilateral Environmental and Security Regimes

Appendix I continued Democracies 33 Japan 34 35 36 37 38 39 40 41 42 43 44

Korea, Rep (South Korea) Latvia Lebanon Lesotho Lithuania Macedonia, FYR Mauritius Mexico Moldova, Rep Mongolia Montenegro

Non-democracies 33

New Zealand Nicaragua Norway Panama Papua New 50 Guinea 51 Paraguay 52 Peru 53 54 55 56 57 58 59 60 61 62 63 64

Philippines Poland Portugal Romania Senegal Serbia Slovakia Slovenia Solomon Islands South Africa Spain Sweden

Libyan Arab Jamahiriya

Partially-free

No polity data

-

34 Mauritania

-

-

35 36 37 38

-

-

39 Qatar

-

-

40 41 42 43 44

-

-

-

-

-

-

50 Turkmenistan

-

-

51 Uganda United Arab 52 Emirates 53 Vietnam 54 Yemen 55 Zimbabwe -

-

-

-

-

-

-

-

-

-

-

-

-

45 The Netherlands 45 46 47 48 49

List of 162 United Nations member states by domestic regime-type

46 47 48 49

Morocco Myanmar Oman Pakistan Rwanda Saudi Arabia Singapore Sudan Swaziland Syrian Arab Rep Tajikistan Tanzania Thailand Tunisia

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State Participation in International Treaty Regimes

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Appendix I continued Democracies 65 Switzerland Trinidad and 66 Tobago 67 Turkey United 68 Kingdom 69 United States 70 Uruguay 71 Uzbekistan

List of 162 United Nations member states by domestic regime-type

Non-democracies

Partially-free

No polity data

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

Source: Calculated from POLITY IV Dataset.

State Participation in Multilateral Environmental and Security Regimes

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.

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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, wellbeing, 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

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State Participation in International Treaty Regimes

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

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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 nonWestern 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.

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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 (OPCRC-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.

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101

(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 nonexistent, 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

Year

Human Rights Treaties

1 2 3 4 5 6 7

1948 1951 1967 1954 1961 1953 1926

8

1949

9

1953

Convention on the Prevention and Punishment of the Crime of Genocide Convention Relating to the Status of Refugees Protocol on the Status of the Refugees Convention Relating to the Status of Stateless Persons Convention on the Reduction of Statelessness Convention on the Political Rights of Women 1926 Slavery Convention**** Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others Slavery Convention, Signed at Geneva on September 25 1926 and 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 Convention on the Nationality of Married Women Convention on Consent to Marriage, Minimum Age for Marriages and Registration of Marriages International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights

10 1953 11 1956 12 1957 13 1962 14 1966 15 1966

Dems % Non-Ratify*

Non-Dems/ Non-Ratify%

73** 75 78 33 18 63 41

8 13 11 44 66 11 NA

27 33 33 78 87 45 NA

Partially Free/ Non-Ratify% 33****** 20 27 87 97 43 NA

41

54

55

47

51

35

53

53

31

52

80

83

64

20

42

43

38

42

73

63

28

58

78

77

82 84

6 4

24 16

7 10

Total % Ratified***

Table 4.1 continued Year 16 1966 17 1966 18 1968 19 1973 20 1979 21 1984 22 1985 23 1989 24 1989 25 1990 26 1998 27 2002

State participation in human rights treaties, 1945–2008 Human Rights Treaties

International Convention on the Elimination of All Forms of Racial Discrimination First Optional Protocol to the International Covenant on Civil and Political Rights Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity International Convention on the Suppression and Punishment of the Crime of Apartheid Convention on the Elimination of All Forms of Discrimination Against Women Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment International Convention Against Apartheid in Sports***** Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty Convention on the Rights of the Child International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families Rome Statute International Criminal Court Agreement on the Privileges and Immunities of the International Criminal Court

Total % Ratified***

Dems % Non-Ratify*

Non-Dems/ Non-Ratify%

Partially Free/ Non-Ratify%

90

0

9

7

59

18

65

27

27

63

71

80

56

58

31

17

96

1

5

0

76

11

33

10

31

NA

NA

NA

38

54

95

57

99

1

0

0

19

79

78

100

55

23

71

37

28

49

91

77

Table 4.1 continued Year

State participation in human rights treaties, 1945–2008 Human Rights Treaties

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 29 2000 Sale of Children, Child Prostitution and Child Pornography Optional Protocol to the Convention on the Rights of the Child on the 30 2000 Involvement of Children in Armed Conflict Optional Protocol to the Convention Against Torture and Other Cruel, 31 2002 Inhuman or Degrading Treatment or Punishment 28 1999

Total % Ratified***

Dems % Non-Ratify*

Non-Dems/ Non-Ratify%

Partially Free/ Non-Ratify%

46

25

82

53

66

23

31

30

63

21

38

40

18

68

96

77

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).

State Participation in Multilateral Human Rights Regimes

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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

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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. Ninetythree percent of the democracies have ratified in comparison to 84 percent of nondemocracies. 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.

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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,

108

State Participation in International Treaty Regimes

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.

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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.

110

State Participation in International Treaty Regimes

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

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111

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 nondemocratic 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).

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State Participation in International Treaty Regimes

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).

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113

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”

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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

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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

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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.

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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 nondiscrimination, 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

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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

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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

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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.

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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

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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 counterproductive 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).

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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 nondemocracies, 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

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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

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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

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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.

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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.

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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 nondemocracies, 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.

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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 nondiscrimination, 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

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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 SubSaharan 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.

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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

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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

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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.

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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,

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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 No. of States Attaching RUDs

No. of RUDs per each Treaty

Normative or Substantive RUDs*

ICERD

43

101

34

Procedural or Process Related RUDs** 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

Core Treaty

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.

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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 noninterference. 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

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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.

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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

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State Parties 1993*

Overdue Reports 1993**

State Parties 1996

Overdue Reports 1996

State Parties 1998

Overdue Reports 1998

State Parties 2008

Overdue Reports 2005***

Overdue implementation reports to the core human rights treaty bodies

Treaty Bodies

Table 4.3

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ICESCR ICCPR ICERD CEDAW CAT CRC TOTAL

119 115 132 118 71 126 681

65 83 342 127 38 59 714

134 114 147 153 98 187 833

115 116 401 189 67 71 959

137 140 150 161 104 191 883

134 138 421 206 100 135 1134

158 161 173 185 145 193 1015

248 224 436 323 179 198 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

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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

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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-

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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

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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

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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 Godgiven 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

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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.

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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

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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.

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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.

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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

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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

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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.

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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.

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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).

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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).

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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

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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.

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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.

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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, selfexecuting 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 twothirds 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 twothirds 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

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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.

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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.

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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

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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

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State Participation in International Treaty Regimes 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 nonself-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

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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.

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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,

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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

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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

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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.

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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 treatypower 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).

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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 treatymaking 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 antiinternationalist 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).

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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).

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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

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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

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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 AfricanAmerican 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

1 2 3 4 5 6 7 8 9 10

Year 1948 1951 1967 1954 1961 1953 1926 1949 1953 1953

11 1956 12 13 14 15 16 17 18 19

1957 1962 1966 1966 1966 1966 1968 1973

Human rights conventions entered into by the United States Human Rights Treaties Convention on the Prevention and Punishment of the Crime of Genocide Convention Relating to the Status of Refugees Protocol Relating to the Status of Refugees Convention Relating to the Status of Stateless Persons Convention on the Reduction of Statelessness Convention on the Political Rights of Women Slavery Convention Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others Slavery Convention, Signed at Geneva on September 25 1926 and 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 Convention on the Nationality of Married Women Convention on Consent to Marriage, Minimum Age for Marriages International Covenant on Civil and Political Rights (ICCPR) International Covenant on Economic, Social and Cultural Rights (ICESCR) International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR-OP1) Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity International Convention on the Suppression and Punishment of the Crime of Apartheid

Signature Dec-11-48               Mar-7-56 Dec-16-53

Ratification Nov-25-88   Nov-1-68     Apr-8-76 Mar-21-29     Mar-7-56

 

Dec-6-67

  Dec-10-62 Oct-5-77 Oct-5-77 Sept-28-66      

    Jun-8-92   Oct-21-94      

Table 5.1 continued

Human rights conventions entered into by the United States

Year Human Rights Treaties 20 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) 21 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) 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) 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 Child Pornography Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed 30 2000 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).

Signature Jul-17-80 Apr-18-88  

Ratification   Oct-21-94  

 

 

Feb-16-95

 

 

 

Dec-31-00    

     

Jul-5-00

Dec-23-02

Jul-5-00

Dec-23-02

 

 

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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.

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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 proUS 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.

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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).

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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).

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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 proAfrica 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

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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

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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

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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.

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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/).

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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,

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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).

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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:

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State Participation in International Treaty Regimes 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.).

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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.

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State Participation in International Treaty Regimes 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

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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

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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

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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

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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.

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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

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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,

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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

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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.

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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.).

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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

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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 samesex 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).

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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 socioeconomic 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/).

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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,

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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 twothirds 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

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“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 SecretaryGeneral, 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).

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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

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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 selfincrimination, 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.

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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

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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.

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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.

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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 postMao 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

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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.

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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 nonconfrontational and face-saving manner is widely practiced even today. Emphasis is placed on resolution of conflicts in a non-adversarial manner through informal

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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

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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.

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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

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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.

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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).

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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

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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

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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.

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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

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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 YatSen 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).

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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.

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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 politicallegal 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.

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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 lawmaking 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

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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 counterrevolutionaries 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

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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).

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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).

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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 noninterference 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

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objectives (Svensson 2002, 221). Party elders rejected the universality of human rights norms. This rejectionist policy was in many ways similar to other postcolonial nations, which also gravitated towards socialism, communism, and statecentered 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

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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 SubCommission 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

1 2 3 4 5 6 7 8 9 10

Year 1948 1951 1967 1954 1961 1953 1926 1949 1953 1953

11 1956 12 13 14 15 16 17 18 19

1957 1962 1966 1966 1966 1966 1968 1973

Human rights conventions entered into by China Human Rights Treaties Convention on the Prevention and Punishment of the Crime of Genocide Convention Relating to the Status of Refugees Protocol Relating to the Status of Refugees Convention Relating to the Status of Stateless Persons Convention on the Reduction of Statelessness Convention on the Political Rights of Women Slavery Convention Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others Slavery Convention, Signed at Geneva on September 25 1926 and 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 Convention on the Nationality of Married Women Convention on Consent to Marriage, Minimum Age for Marriages International Covenant on Civil and Political Rights (ICCPR) International Covenant on Economic, Social and Cultural Rights (ICESCR) International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR-OP1) Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity International Convention on the Suppression and Punishment of the Crime of Apartheid

Signature Jul-20-49              

Ratification Apr-18-83 Sep-24-82 Sep-24-82   Apr-22-37    

    Oct-5-98 Oct-27-97      

    Mar-27-01 Dec-29-81     Apr-18-83

Table 6.1 continued

Human rights conventions entered into by China

Year Human Rights Treaties 20 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) 21 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) 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) 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 Child Pornography Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed 30 2000 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).

Signature Jul-17-80 Dec-12-86  

Ratification Nov-4-80 Oct-4-88  

 

 

Aug-29-90

Mar-2-92

 

 

   

     

Jul-5-00

Dec-23-02

Sep-6-00

Dec-3-02

 

 

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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,

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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.

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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

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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

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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.

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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

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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 VicePremier 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.

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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 singlehandedly 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 coopted 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.

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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, reeducation 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).

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(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).

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Table 6.2

Year 1990

State Participation in International Treaty Regimes

Number of death sentences imposed and actual executions carried out between 1990–2005 in the People’s Republic of China Number of Death Sentences Imposed 960

Number of Actual Executions Carried Out 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.

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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,

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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.

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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.

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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

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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 Reeducation 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).

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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 nongovernmental 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).

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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

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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).

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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.

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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

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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.

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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

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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

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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

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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.

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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

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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

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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.

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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 nondemocratic 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

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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 nondemocracies. 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.

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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

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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. Nondemocratic 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

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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 nonproliferation—is India subject to a different set of rules compared to other

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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. AfroAsian 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.

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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

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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 selfflagellation 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.

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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.

278

State Participation in International Treaty Regimes

Amnesty International (1996b) People’s Republic of China—Torture and IllTreatment: 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.

280

State Participation in International Treaty Regimes

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.

282

State Participation in International Treaty Regimes

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.

284

State Participation in International Treaty Regimes

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 University Press, pp. 26–55. 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.

286

State Participation in International Treaty Regimes

Evans, Peter B. Harold K. Jacobson, and Robert D. Putnam (eds) (1993) DoubleEdged 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: Cambridge University Press.

288

State Participation in International Treaty Regimes

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.

290

State Participation in International Treaty Regimes

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/.)

292

State Participation in International Treaty Regimes

ICBL (International Campaign to Ban Landmines) (2003) Landmine Monitor Report 2003:Toward a Mine-Free World. (Available online at: http://www. icbl.org/lm/2003/.) ICBL (International Campaign to Ban Landmines) (2006) Landmine Monitor Report 2006:Toward a Mine-Free World. (Available online at: http://www. icbl.org/lm/2006/.) ICBL (International Campaign to Ban Landmines) (2007) Landmine Monitor Report 2007:Toward a Mine-Free World. (Available online at: http://www. 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.

294

State Participation in International Treaty Regimes

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.

296

State Participation in International Treaty Regimes

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.

298

State Participation in International Treaty Regimes

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/.)

300

State Participation in International Treaty Regimes

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: Cambridge University Press. 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 TwoLevel 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.

302

State Participation in International Treaty Regimes

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 University Press, pp. 131–57. 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. Cambridge University Press. 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.

304

State Participation in International Treaty Regimes

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 CurtissWright 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

306

State Participation in International Treaty Regimes

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 CourtOverview. (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 SecretaryGeneral—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. UNHCHR (United Nations High Commissioner for Human Rights) (1948) Universal Declaration on Human Rights. (Available online at: http://www. un.org/Overview/rights.html.)

308

State Participation in International Treaty Regimes

UNHCHR (United Nations High Commissioner for Human Rights) (1950) 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. UNHCHR (United Nations High Commissioner for Human Rights) (1953) Protocol Amending the Slavery Convention Signed at Geneva on September 25 1926. Approved by General Assembly resolution 794 (VIII) of October 23. UNHCHR (United Nations High Commissioner for Human Rights) (1954) 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. UNHCHR (United Nations High Commissioner for Human Rights) (1965) 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. UNHCHR (United Nations High Commissioner for Human Rights) (1966) 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. UNHCHR (United Nations High Commissioner for Human Rights) (1966) International Covenant on Civil and Political Rights. Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) December 16. UNHCHR (United Nations High Commissioner for Human Rights) (1966) 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. UNHCHR (United Nations High Commissioner for Human Rights) (1979) Convention on the Elimination of All Forms of Discrimination Against Women New York. December 18. UNHCHR (United Nations High Commissioner for Human Rights) (1984) 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. UNHCHR (United Nations High Commissioner for Human Rights) (1989) Convention on the Rights of the Child. Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of November 20. UNHCHR (United Nations High Commissioner for Human Rights) (1990) 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

UNHCHR (United Nations High Commissioner for Human Rights) (2002) 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. UNHCHR (United Nations Office of the High Commissioner for Human Rights) (1997) Fact Sheet no. 10, Rev. 1. The Rights of the Child, March. UNHCHR (United Nations Office of the High Commissioner for Human Rights) (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. UNHCHR (United Nations Office of the High Commissioner for Human Rights) (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.

310

State Participation in International Treaty Regimes

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.

312

State Participation in International Treaty Regimes

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: Cambridge University Press.

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: Cambridge University Press. 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.

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Index 9/11 terrorist attacks, United States 43 Abbreviations xi–xiii Adams, John 210 African National Congress (ANC) 116 African nations and treaty regimes 273 Alford, Bill 219 Alien Land Laws, United States 170 Allende, Salvador 179 amendments to United States Constitution 149 American Bar Association (ABA) 170–1, 185, 187, 193, 204 American Civil Rights human rights 174–8 Kennedy–Johnson era 174–8 American Civil War 165 American Declaration of Independence, 1776 145–6, 148–9 “American Service Members Protection Act” (ASPA) 207–8 American Society of International Law (ASIL) 186 Amnesty International (AI) China 235, 247–8, 250–7, 279 executions 113 human rights 133, 235 non-governmental organizations 35, 235 norm promotion 31 treaty implementation 140 Analects of Confucius 216 Anan, Kofi 139, 207 anarchy-bridging constructions and international institutions 16–19 Annual Report on Human Rights 235 Antarctic treaty 73 anti-Apartheid conventions 115–17 Anti-Ballistic Missile (ABM) Treaty 5, 22, 90 anti-discrimination convention 114–17

Anti-Personnel Mines (APM) Treaty 83, 85–6, 91, 143 apartheid in South Africa 35 arbitrary detention China 252–4 arms control agreements 76–87 Biological Weapons Convention 80–1 Chemical and Biological Weapons 79–80 Chemical Weapons Convention 81–3 Comprehensive Test Ban Treaty 78–9 Landmine Ban Convention 83–5 participation 90–1 state resistance 85–7 treaty participation 269 weapons of mass destruction 87–90 arms control and treaty participation 269 arrest in China 252–4 Asian nations, treaty regimes 273 Assembly of States Parties (ASP) 121, 206 Axworthy, Lloyd 206 Balmforth, Kathryn O. 197 Banco Nacional de Cuba v. Sabbatino case 155–6 Baruch Plan 73 Beijing Olympic games 41 Beijing Women’s Conference, 1995 213–14 Biden, Joseph 196 Bill of Rights, United States 144, 147–9, 152, 165 Biological Weapons Convention (BWC) 77–8, 80–1, 85 Bolton, John R. 207 book summary 5–6 Borek, Jamison S. 197 “bourgeois law” 233 Bretton Woods institutions 143 Bricker Amendment to US Constitution 144–5, 170–2, 172–4, 175 Bricker, John 171–2, 175

316

State Participation in International Treaty Regimes

Brown v. Board of Education case 175 Buchheim, Hans 44 Bunche, Ralph 175 Bush, George W. 11–12, 22, 182, 196, 207–8 Byrd, Robert 182 Cambodia and Red Khmer 45 capital punishment in United States 47 carbon dioxide (CO2) emissions 51 CARE international 31 Carnegie Endowment for International Peace (CEIP) 88 Carter, Jimmy 178, 181–3, 183–4, 196 Catholic Church and China 159 chemical and biological weapons (CBW) 79–80 Chemical and Biological Weapons Convention (CWC and BWC) 32, 49 Chemical Weapons Convention (CWC) 77–8, 81–3, 85–6 Chen Yun Group 244 China see People’s Republic of China Chinese Communist Party (CCP) 6 authority 245, 272 criticism 261 death penalty 213 dominance 240 ideology 235–8, 245 individual rights 230–1 international law 232–4 Jiang Zemin 244–5 nationalism 241–2 party leaders 242 political liberty 252 reforms 243 rise 227 socialist government 228 Tiananmen square protests 243 Chinese Criminal Law (CPL) 247 chlorofluorocarbons (CFCs) 63, 66 civil liberties 105–6 Claude, Inis L. 31 Clinton, Bill 8, 34, 161, 206 Cold War 183, 209, 269 Commission on Human Rights (CHR) 138 Committee on Economic, Social and Cultural Rights (CESCR) 137

compliance human rights 34–5 treaties 2–3 Comprehensive Test Ban Treaty (CTBT) arms control agreements 77–8, 78–80 enforcement 34 France 91 Israel 38 multilateral arms control agreements 90–1 state resistance 85–6 United States 5, 8, 143 weapons of mass destruction 32, 49, 87–9 Comprehensive Test Ban Treaty Organization (CTBTO) 32, 79, 85 Conference on Disarmament (CD) 82 Confucian moral code (li) 218 Confucian political philosophy 262 Confucian social order 232 Confucianism in China 214, 216–19, 232, 238 consent participation 30, 38–9, 39–42 ratification 40 signature 40 treaties 38–9, 267 Constitution of United States amendments 149 Bill of Rights 147–8 Bricker Amendment 170–2, 172–4, 175 development 144–5 federalism 166 Genocide Convention 187 international law 152–3 international treaties 158–9, 163–4 treaty-power infringement 168 constructivism theory 27–8 Convention Against Torture (CAT) China 235, 272 Human Rights Committee 100 monitoring implementation 137, 140 Ronald Reagan 184 state participation 105, 130–1 Torture Convention 110–12 Convention on Biological Diversity 66, 73 Convention on Certain Conventional Weapons (CCW) 83–4, 86

Index Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) abortion issues 199–200 discrimination 98 history 55 Human Rights Committee 100 International Court of Justice 135 Jimmy Carter 182, 196 monitoring implementation 137 optional protocol 105 ratification 144–5 reservations, understandings and declarations 134–5, 201–2 state participation 101, 130–1 United States 12, 195–204, 275 women’s rights 109 Convention on the Nationality of Married Women 109 Convention on Rights of the Child (CRC) death penalty 113 Human Rights Committee 100 monitoring implementation 137 optional protocols 105, 118 ratification 144 state participation 101, 130–1 universal acceptance 117 Convention on Rights of Persons with Disabilities (CPRD) 101, 137 Convention for the Protection of All Persons from Enforced Disappearance (CPPED) 101 Convention Against Torture (CAT), China 255, 258 Convention on Trade in Endangered Species (CITES) 62, 66, 68–9, 70 costs of multilateral treaties 3 Covenant on Human Rights, United Nations 172 crimes against humanity 119–21 criminal law in China 251 cross-national analysis of treaty ratification 48–9 Cultural Revolution in China 230, 232, 234, 242, 261 Dalai Lama 259 death penalty

317

China 246–50 human rights 112–14 democracies anti-discrimination convention 115 domestic politics 7–10, 11–12 foreign policy 21–3 global regimes proclivity 269 human rights treaties 130 interest group politics 24 multilateral environmental treaties 69 participation in treaty regimes 268–9 POLITY datasets 56–8 proclivity 9 ratification of treaties 63–6 refugee legislation 123 treaty regimes 11–12 Democracy Wall Movement 238 Democratic Party, US 8 Democratic Republic of Congo 52 Deng Xiaoping “Four Cardinal Principles” 243 human rights 239–40, 241–2 market economy 215 political order 243–4 power 245 punishments in courts 252 reforms 213, 235–8 Tiananmen Square protests 244 Denmark and European Union 11 developmental authoritarianism in China 214 Dictatorships and Double Standards 183 dissent suppression in China 252–4 Division on the Advancement of Women (DAW) 109 domestic politics democracies 7–8 international politics 23–8 international relations 13, 23–4 multilateral treaties 6–14 resistance 44–6 state participation/resistance 265 treaty participation 6–14, 44–6 domestic polities and state behavior 55–8, 269 domestic regime type (UN classification) 92–4 domestic social norms 47–8 domestic structure of states 3–4

318

State Participation in International Treaty Regimes

Dupont Chemicals 63 dynasties China 219–20, 222–5 Qing 215, 220, 222–5 economic reform in China 234–9 economic rights 105–6 Eisenhower, President 72–3, 174, 175 environment treaty participation 269 environment multilateral treaty regimes 58–62, 63–9, 69–71 Environmental Modification Techniques (ENMOD) 78, 86 Environmental Treaties and Resource Indicators (ENTRI) 61 Ervin, Sam 186, 187, 188 Euro currency 12, 14 Europe and international law 222–3 European Constitution 8 European Court of Justice (ECJ) 31 European Monetary Union (EMU) 11, 15 European states and treaty regimes 273–4 European Union (EU) constitution 8 democracies 90 Denmark 11 legal integration 166 Lisbon Treaty 8 multilateral treaties 14 Switzerland 11 tuna fish 31–2 Eurozone 14 excluded countries from state participation list 95 Exploitation of the Prostitution of Others Treaty 128 extraction of confessions in China 254–8 fa (legalism) 218, 228 Falun Gong movement 46, 260 Federation of American Scientists (FAS) 88, 91 Ferguson, Senator Homer 172 fishing trawlers 31 FISSBAN see Fissile Material Cutoff Treaty Fissile Material Cut-off Treaty (FMCT) 32, 78

Foreign Assistance Act, 1974 180 foreign policy democracies 21–3 United States 181–3 foreign policy of United States 274–5 Foster v. Neilson case 163–5 “Four Cardinal Principles” of Deng Xiaoping 243 Franklin, Benjamin 210 Fraser, Donald 180 Freedom House data on polities 55 G8 countries 17 GDP (gross domestic product) 131 General Agreements on Tariffs and Trade (GATT) 1, 27, 35 United States 143 see also World Trade Organization Geneva Protocol 71–2, 77 Genocide Convention opposition 187–93, 193–5 ratification 42, 118–19, 160 Ronald Reagan 183 United States 41, 143–5, 160, 170–1, 179, 185–7 George, Walter 172 global environmental treaties 50–1 global governance and multilateralism 19–21 global regimes proclivity and democracies 269 global warming 52 “go it alone” power dynamics 16 gonkai xuanpan dahu (sentencing rallies) 246 Gorbachev, Mikhail 244 Grams, Rod 206, 208 Gray, Horace 154 Greenpeace International 31, 61–2 Grey, Edward 22 Guangzhou system 223–4 “Hague Invasion Act” 208 Hamilton, Alexander 147 hard law 33 Harkin, Tom 180 harmony in China 216–17, 218 Hatch, Orrin 193

Index Helms, Jesse 185–6, 187, 193, 196, 199, 206 Holman, Frank 170–1 Hu Jintao 213, 242, 245 Hughes, Charles Evans 186 hukou (household registration system) 213 Human Development Index (HDI) 131 human rights American civil rights 174–8 China 239–40, 243–5, 260–3 compliance 34–5 conventions and state participation 101–5 deontological values 52 India 272–3 Islamic states 12–13 multilateral treaties 50–1 non-governmental organizations (NGOs) 35 regimes 12, 97–142 South America 25–6 treaties and United States 174–5 treaty participation 269 United Nations organizations 141 United States 181–3, 183–5, 235 Human Rights in China (HRIC) 235, 251, 253 Human Rights Commission 115, 239 Human Rights Convention in China 234–9 Human Rights Council (HRC) 99–100, 138–9, 213 human rights regimes anti-discrimination convention 114–17 China 214–15, 271 civil/political liberties 105–6 conventions participation 130–6 crimes against humanity 119–22 death penalty 112–14 enforcement 270 Genocide Convention 118–19 introduction 97–9 migrant workers 128–30 monitoring implementation 136–42 optional protocol to ICCPR 106–8 refugees 122–3 rights of the child 117–18 slavery and servitude 125–8 state participation 101–5

319

statelessness 123–5 torture convention 110–12 trafficking 125–8 United Nations 99–101 war crimes 119–22 women’s rights 108–10 Human Rights Watch (HRW) 35, 133, 235, 252 Hundred Flowers Campaign 229 hydrochlorofluorocarbons (HCFCs) 63, 66 hydrogen cyanide 80 Iceland and International Whaling Commission 8 Imperial Law Codification Commission (China) 226 imperialism in China 216–19, 219–22, 222–5 India China comparison 272 human rights 272–3 nuclear non-proliferation (NPT) regime 43, 272–3 nuclear tests 49 individual rights in China 217–19, 230–2 Inter American Court of Human Rights (IACHR) 31 Intercontinental Ballistic Missiles (ICBMs) 6 International Atomic Energy Agency (IAEA) 32, 72, 74, 85, 89 International Bill of Human Rights 99 International Campaign to Ban Landmines (ICBL) 83–5 International Convention Against Apartheid in Sport 116 International Convention on Civil and Political Rights (ICCPR) China 41, 258 civil/political liberties 105–6 classification 98 death penalty 113 economic, social and cultural rights 105–6 Human Rights Committee 100 Iran 10 Jimmy Carter 182 monitoring implementation 138

320

State Participation in International Treaty Regimes

objectives 271 optional protocol 106–8 participation 130–1 state participation 32 torture 112 United States 175 western emphasis 234 International Convention on Economic, Social and Cultural Rights (ICESCR) China 258, 262 civil and political liberties 105–6 general conventions 98 human rights conventions 130 United States 144 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) anti-discrimination convention 98, 114–15 Human Rights Committee 100 monitoring implementation 137 reservations, understandings and declarations 135 state participation 101, 130 United States 174–5 International Convention on the Rights of Migrant Workers (ICRMW) human rights 128–30 Human Rights Committee 100 monitoring implementation 137 state participation 105, 129 International Court of Justice (ICJ) 39, 120, 135, 188, 191–3, 194 International Covenant on Educational, Social and Cultural Rights (IESCR) general conventions 98 Jimmy Carter 182 United States 175 International Criminal Court (ICC) Assembly of States Parties 121–2 Rome Statute 131, 161, 204–6, 207 United States 36, 145, 206–9 International Criminal Tribunal for Rwanda (ICTR) 119, 121, 205 International Criminal Tribunal for former Yugoslavia (ICTY) 119, 121, 205

international human rights and United States (US) 209–11 international institutions and anarchybridging constructions 16–19 international law China 222–5, 232–4 Europe 222–3 Soviet model 232 state consent 30 United States 152–8 International Military Tribunal (IMT) 119 International Monetary Fund (IMF) 57 International Monitoring System (IMS) 79 international politics and domestic politics 23–8 International Red Cross (ICRC) 35, 83–4 international relations (IR) domestic politics 23–4 interstate cooperation 14–19 liberal theories 15–16 multilateral institutions 18–19 neoliberalism 15–16 neorealism 13 social factors 25 state behavior 25–8 states motivation 266 International Union for Conservation of Nature (IUCN) 62 International Whaling Commission (IWC) 8 interstate cooperation and international relations 14–19 intrinsic rights 148 IR see international relations Iran ICCPR 10 Nuclear Non-Proliferation Treaty 42–3 nuclear tests 49 Shia Islam 46 weapons of mass destruction 49 Iraq and Kuwait 23 Islamic Law (Sharia) 41, 134, 136 Islamic states and human rights 12–13 Japan International Whaling Commission 8 World Trade Organization 27 Jay, John 161 Jiang Zemin 240, 242, 244–5, 260

Index Keck, Margaret 25–6 Kennedy, John F. 178 Kennedy, Robert F. 178 Kennedy–Johnson era American civil rights 174–8 human rights 174–8 Kim Il-Sung 45 Kim Jong-il 45 Kirkpatrick, Jeanne 183–4 Kissinger, Henry 22, 178–80, 182, 184 Knowland, William 172 Krasner, Stephen 33 Kung, Prince 225 kung-chien-fa concept 229 Kuwait and Iraq 23 Kyoto Protocol on Climate Change, 1997 China 11 concept 17 environmental treaties 61 establishment 35 ratification 66 UNFCC 63 United States 5, 11, 22, 143 Landmine Ban Convention, Ottawa 5, 83–5 laogai (reforms through Labor) 253 laojiao (re-education through Labor) 253–4 legal agreements and participation in treaties 33–6 legal positivism in China 222 Legalism in China 214–15 legalism (fa) in China 218 Lenin 45 li (Confucian moral code) 218, 228 Li Peng 242 liberal theories and international relations 15–16 liberté, égalitié and fraternité 97 Lin Hsin 233 Lisbon Treaty 8 Liu Huaqui 240 Lola} (fishing vessel) case 153–4 Long-Range Transboundary Air Pollution Treaty (LRTAP) 61, 66 luan (chaos) in China 214–15, 242, 244 Luo Gan 247

321

Ma Chun 233 McCarthy, Joseph 170–1 macro-assessment of state resistance/ participation in treaty regimes 265–75 Madison, James 147 Maiost socialist order in China 214 Manchu period (China) 222–5 mandate from heaven (tianming) 219 Mandela, Nelson 116 Mao Shulong 249 Mao Tse-Tung 214, 218, 220, 227–34, 235–8 Marshall, Justice John 163–4 Marxist ideology 227 migrant workers’ rights 128–30 Migratory Bird Treaty Act, 1918 168 Missile Technology Control Regime (MTCR) 17, 32, 49, 78, 90 Missouri v. Holland case 168–9, 170 Montreal Ozone Protocol, 1987 17, 33–4, 62, 66, 69 most favored nation (MFN) 224, 272 Multilateral Environmental Treaties (MEAs) choice 62–3 description 58–62 state participation 63–9 multilateral institutions 16–17 multilateral treaties arms control 76–87, 87–90, 90–1 compliance 2 costs 3 democracies and foreign policy 21–3 description 54–5 domestic politics 6–14 domestic/international politics 23–8 environment 58–62, 62–3, 63–9, 69–71 evolution 29–32 global governance 19–21 human rights 50–1 international relations 14–19 introduction 1–5 nuclear non-proliferation 73–6 People’s Republic of China 5–6 resistance to join 2–3 state participation 54–5

322

State Participation in International Treaty Regimes

summary 265–6, 268, 271 United States 5–6, 165–74 weapons of mass destruction 49, 71–3, 87–90 Multilateral Treaty Index, UN 5 multilateralism and global governance 19–21 National Lawyers Guild (NLG) 170 nationalism in China 262 Nature Conservancy 62 “neo-Confucianism” (China) 230 “neo-legalism” (China) 230 neoliberalism 15–16, 18–19, 20, 27, 266–7 neorealism 13, 15, 20 Nie Shubin 255 Nixon, Richard 80, 181–2, 194 Nixon–Ford Administration, 1969–1977 178–80 non-democracies anti-discrimination convention 115 foreign policies 22 government criticism 46 internal politics 7 multilateral environmental treaties 69 non compliance to treaties 7, 9–10, 12–13 participation in treaty regimes 268–9 policies 44 POLITY datasets 56 ratification of treaties 63–6 non-governmental organizations (NGOs) human rights 35, 99, 133, 235 lobbying 61–2 rights of the child 117 torture 140 treaty negotiations 160 United Nations’ reports 240 non-nuclear weapon states (NNWS) 74 normativism theory 27–8 North Atlantic Treaty Organization (NATO) 57 North Korea Nuclear Non-Proliferation Treaty 42–3 South Korea 170 weapons of mass destruction 49 Norway, International Whaling Commission 8

nuclear non-proliferation (NPT) regime arms control 73–6 India 272–3 Nuclear Non-Proliferation Treaty (NPT) Argentina 89 arms control 77–8 Brazil 89 breaches 34 concept 17 discrimination 74 framework 49 France 91 India 88, 91 Israel 38, 88, 91 membership 74–6 resistance 85 terms 91 United Kingdom 91 United Nations Security Council 37 weapons of mass destruction 32 nuclear tests 49 nuclear weapons states (NWS) 74 Nuremburg Trials 119 obedezco pero no cumplo (obey, but do not comply) 9 Olympic Games 35, 41 Organization for Economic Cooperation and Development (OECD) 47, 57, 90, 132 Organization for the Prohibition of Chemical Weapons (OPCW) 80, 82, 85 organizational structure of treaty regimes 29–51 consent 38–9, 39–42 domestic politics 44–6 domestic social norms 47–8 environmental treaties 50–1 evolution 29–32 participation 33–6 reasons for joining 36–8 resistance to participation 42–3 treaty ratification 48–9 Ottawa Landmine Ban Treaty 5, 83–5 Outer Space treaty 73 ozone layer 62–3 ozone regime see Montreal Protocol

Index pacta sunt servanda (treaties must be observed) maxim 30, 38, 40, 54 Pakistan Nuclear Non-Proliferation Treaty 43 nuclear tests 49 Pan Yujun 255 Panama Canal treaties 183 Paquete Habana (fishing vessel) case 153–4 Partial Test Ban Treaty (PTBT) 73 People’s Daily ( Chinese newspaper) 247, 250, 260 People’s Republic of China (PRC) arrest and arbitrary detention 252–4 case study 5–6 Catholic Church 259 commercialism 45–6 Confucianism 214, 216–19 Convention Against Torture... 235 Convention on Torture 255, 258 courts 242 criminal law 251 Cultural Revolution 230 cultural sensitivity to foreign criticism 240–2 death penalty 246–50 dissent suppression 252–4 domestic political factors 271 dynasties 219–20, 222–5, 225–7 economic reform 234–9 extraction of confessions 254–8 harmony 216–17, 218 history 213–15 human rights 214–15, 239–40, 243–5, 260–3 Human Rights Convention 234–9 human rights regimes 271 ICCPR 41, 258 ICESR 258, 262 imperialism 22–5, 216–19, 219–22 India comparison 272 individual rights 217–19, 230–2 international law 222–5, 232–4 International treaty regimes 213–63 legal issues 222, 225–7, 228 legalised Confucianism 219–22 Legalism 214, 216–17 Manchu period 222–5

323

most favored nation (MFN) status 272 nationalism 262 nationalist era 225–7 non-democratic political structure 271 political order 243–5 reforms 246–52 religion 46 religious activities 258–60 repression 258–60 republican era 225–7 rule by man over rule by law 227–30 rule of law 239–40 saving face 240–2 social stability 246–52 Taiwan 260 torture 140–11, 254–8 torture convention 272 United Nations 239 World Trade Organization 272 Pepper, Claude 188 Percy, Charles H. 193–4 Perlman, Philip 188 Persistent Organic Pollutants Convention, Stockholm 66 Pol Pot 45, 119 political liberties 105–6 political order in China 243–5 Political Rights of Women (PRW) 98, 108 politics see domestic politics; international politics Polity IIID dataset 53 POLITY IV dataset anti-discrimination data 115 domestic regime type 4, 53, 55–7 Ramsar Treaty 67 ratification data 48 refugee legislation 123 time series data 101 Prior Informed Consent (PIC), Convention (hazardous chemicals) 61 private rights 148 procedural rights 148 proclivity in democracies 9 protectionist policies and World Trade Organization 34 prostitution 128 Proxmire, William 186, 194 public policy and religion 47

324

State Participation in International Treaty Regimes

Puritan settlers 210 “pursuit of happiness” 149 Putnam, Robert 22 puyi (child emperor) 225

rule by man over rule by law 227–30 rule of law in China 239–40 Rusk, Dean 186 Rwanda and genocide 51

Qing dynasty 215, 220, 222–5, 225–7

Salisbury, Lord 22 Sarin (nerve agent) 80 Saudi Arabia and Sunni Islam 46 Schelling, Thomas 80 Schultz, Kenneth 22–3 self execution of international treaties 162–5 Senate (United States) 159–62, 165 servitude 125–8 Sharia (Islamic Law) 41, 134, 136 She Xianglin 255 Shen Chun-ju 229 Shia Islam,, Iran 46 shourong qiansong (Custody and Repatriation) 253 shourong shencha (Custody and Investigation) 253 signature consent 40 Sikkink, Kathryn 25–6 Slaughter, Anne-Marie 6–7 slavery 125–8, 150, 171 Slavery Conventions 125–7, 131 United Nations 192 United States 175 social factors and international relations 25 social rights 105–6 social stability in China 246–52 “socialist international law” 233 soft laws 33 Solzenitsyn, Alexander 182 South Africa and apartheid 35 South America and human rights 25–6 South Korea North Korea 170 Western social values 45 Soviet Communism 171 Soviet model of international law 232 Stalin 45 state behavior domestic polities 269 treaty regimes 267–9 state participation in treaty regimes (summary) 265–75

Ramsar Convention on Wetland Protection... 62, 66–8, 70 ratification of treaties 40, 48–9 re-education through Labor (RTL) 253–4 Reagan, Ronald 11, 22, 183–4, 185, 194–5, 196, 235 realism 266–7 Realpolitik 178–80, 184, 225 reasons for joining treaties 36–8 Red Khmer and Cambodia 45 Reduction of Statelessness Treaty 124 reforms in China 246–52 Refugee Convention, 1951 122 Regional Environmental Treaties (REAs) 60 Reid v. Covert case 166 religion People’s Republic of China 46 public policy 47 religious activities in China 258–60 repression in China 258–60 Reservations, Understandings and Declarations (RUDs) 134–6, 161–2, 167, 189, 200 resistance domestic politics 44–6 multilateral treaties 2–3 participation in treaties 42–3 right thing to do concept 17, 29, 41 rights children 117–18 United States 145–6, 147–9, 149–52, 165–74 Rio Declaration on Environment and Development (1992) 54 Rodgers, William 179, 188–92 Rome Statute, International Criminal Court 204–6, 207–9 Roosevelt, Eleanor 172, 175 Roosevelt, Franklin D. 143 RTL see re-education through Labor

Index state resistance to treaty regimes (summary) 265–75 statelessness 123–5 Status of Forces Agreement (SOFA) 36 Status of Stateless Persons Treaty 124 Strategic Arms Limitation Talks (SALT) 183 Strategic Arms Reduction Talks (START) 34 Sun Yatsen, Dr 226–7 Sunni Islam and Saudi Arabia 46 Supreme Court, United States 151, 155–6, 158, 166, 169, 170, 175 Switzerland and Neutrality 11 Taiwan and China 260 Taliban 45 Thurmond, Strom 194 Tiananmen Square 213, 235, 239, 243–6, 261 Tibet separatist movement 246, 259, 260 torture China 254–8 convention 110–12 totalitarianism 44 trafficking (people) 125–8 treaties, consent 267 treaty participation arms control 269 environment 269 human rights 269 treaty regimes African nations 273 Asian nations 273 democracies 268 European states 273–4 non-democracies 268 state behavior 267–9 Truman, Harry S. 41 UK see United Kingdom UN see United Nations United High Commission for Refugees (UNHCR) 195, 197 United Kingdom (UK) European Monetary Union 11 migratory birds 168 United Nations Charter 192

325

United Nations Commission for Human Rights (UNCHR) and China 254–8 United Nations Conference on Human Environment, 1972(UNCHE) 59–61 United Nations Convention on Law of the Sea (UNCLOS) 53, 54, 59, 66, 69–70 United Nations Convention to Combat Desertification (UNCCD) 66 United Nations Development Programme (UNDP) 131 United Nations Disarmament Commission (UNDC) 76, 84 United Nations Economic Commission for Europe (UNECE) 66 United Nations Economic and Social Council (ECOSOC) 115, 124, 126 United Nations Environment Programme (UNEP) 31, 61 United Nations Framework Convention on Climate Change (UNFCC) 61, 63, 66, 71 United Nations High Commission for Refugees (UNHCR) 122, 125, 128 United Nations Human Development Index (HDI) 270 United Nations Office of the High Commissioner for Human Rights (UNHCHR) 100, 117, 129, 136–8 United Nations Security Council 34, 37, 39, 42–3, 57 United Nations Treaty Series (UNTS) 53, 54 United Nations (UN) birth 31 China 239 domestic regime type 92–4 drafting treaties 36 expansion of powers 190 human rights 35, 50 Human Rights Commission 239 Human Rights Covenant 172 human rights organizations 141 human rights treaty system 97–8, 99–101 Multilateral Treaty Index 5 rights of the child 117

326

State Participation in International Treaty Regimes

Slavery Conventions 192 Switzerland 11 treaty classification 48, 53 United States (US) 9/11 terrorist attacks 43 Alien Land Laws 170 amendments to constitution 149 Bill of Rights 144, 147–9, 152, 165 biological weapons program 80 capital punishment 47 case study 5–6 CEDAW 195–7, 197–204, 275 civil war 150 Cold War 183, 209 Comprehensive Test Ban Treaty 8 Constitution 144, 147–8, 152–3, 158–9, 163–4, 166, 168 Convention on Political Rights of Women 175 Declaration of Independence, 1776 145–6, 148–9 Democratic Party 8 domestic political factors 271 exceptionalism 210 federalism 165–74 foreign policy 178–80, 181–3, 274–5 General Agreements on Tariffs and Trade 143 Genocide Convention 41, 143, 179, 185–7, 275 human rights 174–5, 181–3, 183–5, 235 ICCPR 175 ICERD 174–5 IESCR 175 International Criminal Court 36, 206–9 international human rights 209–11 international institutions 143 international law and treaties 152–8, 158–65 international treaty regimes 143–211 Kyoto Protocol 5, 11, 22 multilateral treaties 165–74 participation in treaties 269, 274 Puritan settlers 210 rights 145–52, 165–74 Rome Statute 208–9 self execution of international treaties 162–5

Senate 159–62, 165 slavery 127, 150 Slavery Conventions 175 Supreme Court 151, 155–6, 158, 166, 169, 170, 175 treaty ratification 5, 143–4 tuna fish 31–2 Weapons of mass destruction 72 Women’s Right Convention 12 women’s rights 275 World Bank 143 World Trade Organization 143, 166 Yugoslavia 119 United States v. Curtiss–Wright Export Corporation case 166 United States v. McCullagh 168 United States v. Shauver 168 Universal Declaration for Human Rights (UDHR) 32, 55, 97–9, 112–13, 143, 175, 178 US see United States Vance, Cyrus 181 Vattel’s International Law 225 VEREX review panel 81 Vienna Convention Law of Treaties 30, 39, 54, 207 Protection of Ozone Layer, 1985 62 VX (nerve agent) 80 Wang Shujim 255 war crimes 119–1212 Warren, Earl 175 Washington, George 162 Wassenaar Arrangement 78 weapons of mass destruction (WMD) 15, 32, 49, 71–3, 87–90, 91 Wei Jingsheng 238 Weinberger, Caspar 209 Weingast, Barry 22–3 weltanshauung (worldview) 222 Wendt, Alexander 26–7 Western legal systems 229 Western social values and South Korea 45 What Do We Want: Democracy or a New Dictatorship 238 Wheaton’s International Law 225 White Paper on Human Rights 238

Index White Slave Traffic Treaties 128 Wilson, President Woodrow 161 Wo-Shuang 233 women’s rights 108–10 United States 275 World Bank, United States 143 World Cultural and Natural Heritage Treaty, 1972 70 World Family Policy Center 197 World Health Organization (WHO) 31 World Trade Organization (WTO) China 272 cooperation 55 dispute settlement directives 39 establishment 35 Japan 27 multilateral treaties 1, 14

327

non-members 270–1 People’s Republic of China 5 protectionist policies 34 United States (US) 143, 166 World Wildlife Fund (WWF) 31 Xiao Yang 247 Xinjiang separatist movement 246, 259, 260 yanda (anti-crime) campaigns 246 Yeltsin, Boris 34 Young, Andrew 182 Zangger Committee 78 Zhao Zhiyang 245 Zhou Enlai 238