explaining costly international institutions: persuasion and

Explaining Costly InternationalInstitutions: Persuasion and Enforceable

Human Rights Norms

DARREN HAWKINS

Brigham Young University

Why do states create enforceable international human rights norms thatempower third parties to prevent and sanction domestic human rightsabuses? Recent theories suggest that international institutions areshaped not only by power and interests but also by the content of ar-guments during intensive communication and argumentation processes.Moving beyond the simple notion that ‘‘communication matters,’’ I ar-gue that states are likely to be persuaded by arguments that draw onwidespread taken-for-granted norms, in particular, prohibitions onbodily harm, the importance of precedent in decision making, and thelink between cooperation and progress. This model extends previoustheories by specifying mechanisms and scope conditions for interna-tional change through persuasion. I illustrate the argument by exam-ining the convention against torture, a costly international institutionthat allows domestic courts to prosecute crimes that occur in the ter-ritory of other states (universal jurisdiction). Because of its enforcementmechanisms, the torture convention poses a difficult case for theoriesexplaining international institutions. If persuasion models can explaineven costly institutions, they should be more widely considered as ex-planations for all kinds of international institutions.

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

Author’s note: I wish to thank Brigham Young University and the David M. Kennedy Center for International

Studies for funding this research. Scott Cooper, Joshua Cooper, Valerie Hudson, Wade Jacoby, Jutta Joachim,George Kent, Maria Eugenia Villarreal, and a series of anonymous reviewers offered valuable comments on earlierversions of this article. This research has also benefitted from presentation at the Tuesday Group faculty seminar inthe political science department at BYU. A battery of research assistants, including Jenny Champoux, Ryan Chavez,Jetta Hatch, Camille Jackson, Maren Mangum, and Jeremy Smith, provided essential help.

1 ‘‘Wide net in Argentine torture case,’’ New York Times, September 11, 2000; ‘‘Dictators in the dock: New

attempts to bring despots to justice,’’ The American Prospect, August 14, 2000; ‘‘NATO troops seize a top Serb facingwar crimes charge,’’ New York Times, April 4, 2000.

r 2004 International Studies Association.Published by Blackwell Publishing, 350 Main Street, Malden, MA 02148, USA, and 9600 Garsington Road, Oxford OX4 2DQ, UK.

International Studies Quarterly (2004) 48, 779–804

The movement from principled declarations to enforceable principles poses aserious analytical puzzle for international relations scholars. States have no com-pelling reason to open their human rights practices to scrutiny from others or tocare about the ways in which other states treat their citizens. Even if democraticstates become more secure by spreading democracy and human rights to othersFacontestable proposition, of courseFthey still have little reason to allow others toinvestigate and enforce human rights violations committed by their own citizens. Inother issue areas, the self-interest in preventing and punishing norm violators ismore evident. On trade issues, for example, other states are harmed when a ren-egade state violates free trade agreements, and enforcement offers a natural formof collective protection. Even so, states did not create a strong free trade enforce-ment mechanism until the establishment of the World Trade Organization in the1990s. Why, then, have states moved toward enforcement in human rights issues?Why would states want to empower others to take action against them, or to expendresources punishing other states for domestic abuses?

To answer these questions, I develop a political process model drawn from recenttheories emphasizing communication and persuasion. In this model, it is the contentof arguments rather than state power or exogenous state interests that has thegreatest influence on what type of agreement is reached and whether states supportit. In particular, arguments that fit with widespread taken-for-granted understand-ings in the international arena are more likely to result in strong state action. Threeof the most dominant understandings concern the value of protection from bodilyharm, the role of precedent in decision making, and the importance of interna-tional cooperation to resolve widespread social problems.

This process model challenges explanations of international institutions that fo-cus more exclusively on power, domestic politics, or the cost–benefit calculations ofunitary states. In the realist tradition, some analysts expect powerful states to beresponsible for enforcement of international norms, when it occurs at all (Krasner,1993). Others, adopting a liberal approach, suggest that domestic politics drives thecreation of newly enforceable norms. In one prominent example, Moravcsik (2000)argues that state interests are shaped by domestic institutions, and that unstabledemocratic governments are the most likely proponents of international humanrights enforcement. Still other scholars have argued that new international insti-tutions emerge when unitary states believe that their benefits outweigh their costsand they facilitate mutually desirable cooperation (Martin and Simmons, 1998).

In contrast, I draw on recent constructivist theories to suggest that state interestsare sometimes uncertain and can be formed over time through processes of com-munication and persuasion. I go beyond the proposition that ‘‘communicationmatters’’ to identify which types of persuasive arguments are the most likely toinform state interests and the resulting international agreements. This article re-sponds to calls for theoretical development within the constructivist approach thatspecifies the mechanisms and scope conditions of international change (Checkel,1998; Ruggie, 1998). I am not suggesting that all international agreements followthe model articulated below. Rather, I develop a causal mechanism that relies onpersuasion and show how it provides a superior explanation for the incorporationof an enforcement mechanism in a key global human rights treaty.

The virtue of the model is that it develops existing constructivist-style propo-sitions that are either too vague or too narrow into more specific, testable andfalsifiable arguments and illustrates their plausibility in a difficult case. Internationalinstitutions with enforcement authority constitute difficult cases for any theory be-cause they require states to pay substantial sovereignty costs, contracting costs, andagency costs, as elaborated below. It is relatively easier to explain the existence ofinternational institutions that impose relatively few costs on states. If persuasion canbe shown to influence states on enforcement issues, then persuasion models shouldbe applicable to a range of international institutions.

Explaining Costly International Institutions780

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

International Enforcement

I define international enforcement as a formal agreement among states that del-egates authority to third parties to take adversarial, compulsory action against statesor state agents that are violating international rules, or are suspected of such vi-olations.2 The authorized enforcers could be other states, intergovernmental or-ganizations (IGOs), or nonstate organizations either at the international or domesticlevels. By adversarial, compulsory action, I refer to activities that are unwanted bythe accused state or state agent, and that have a legally binding character. Toconstitute enforcement, authorized agents do not need to utilize force or even haveforce at their disposalFalthough they may. Rather, they must be officially empow-ered by states to interpret and apply the rule of law, and control resources that canbe used to prevent abuses or to punish offenders. Such resources include weaponsand money, certainly, but also judges, courts, prisons, and institutional privilegessuch as membership and decision-making authority within international organiza-tions. Enforcement authority has become a more prominent feature of interna-tional institutions since the end of the Cold War and is related to the legalization ofthose institutions (Abbott, Keohane, Moravcsik, Slaughter, and Snidal, 2000).Prominent examples of enforcement IGOs include the World Trade Organization,the European Court of Justice, and the International Criminal Court.

Enforcement authority is theoretically interesting because it is costly. Delegatingenforcement authority to others requires that states pay sovereignty costs, con-tracting costs, and agency costs. Sovereignty costs include possible reputationalcosts for state violators, an increased probability that violations will be reciprocated,a restricted range of policy options, and the decreased authority of domestic actorsto make independent, unilateral policy choices (Abbott and Snidal, 2000:436–441).Contracting costs exist for all international agreements but are especially high whenthe stakes are higher, as with enforcement provisions. States care more about theoutcome and so are likely to adopt harder bargaining positions, to require moretime to learn about the proposed agreement and its implications, and to subjectinternational negotiations to closer domestic political and bureaucratic scrutiny(Abbott and Snidal, 2000:434–436). Agency costs refer to the costs of supervisingand monitoring the agent to whom states have delegated enforcement authority.States do not simply grant enforcement IGOs limitless autonomy, but rather ex-pend important resources overseeing those agents and checking them if they be-come too unruly. Further, delegation to IGOs often involves both collective actionproblems and long delegation chains, thereby increasing agency costs (Nielson andTierney, 2003:247–251).

One enforcement mechanism that has recently garnered a lot of attention isuniversal jurisdiction, defined as the principle that a state’s jurisdiction is based onthe nature of the crime rather than other factors such as where the crime occurred

2 This definition draws on Abbott et al. (2000:415–418). See also Donnelly (1986:603–605) and Arend(1999:29–35).

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or the nationality of the alleged perpetrator or victim (Ratner and Abrams,2001:160–162). This principle allows Nigeria, for example, to prosecute a crimecommitted in Germany by an American against an Indonesian. Historically, statesapplied the principle to universally repudiated crimes that occurred outside anystate’s formal territorial jurisdiction, such as piracy (Boulesbaa, 1999:204–205).More recently, states have endorsed universal jurisdiction for the crimes of hijack-ing, hostage taking, and crimes against diplomats (Lippman, 1994:316). It is im-portant to note that international treaties grant extraterritorial jurisdiction only tostates ratifying the treaties. As a result, jurisdiction over such crimes is not truly‘‘universal’’ in the sense of applying to all states. While the term ‘‘universal’’ maynot be precisely accurate, it is conventionally and widely used to refer to broadextraterritorial jurisdictional grants based on the nature of the crime (Ratner andAbrams, 2001), and I apply it this way in this study.

In 1984, states first applied the principle of universal jurisdiction to human rightsabuses when they adopted the Convention Against Torture and Other Cruel, In-human or Degrading Treatment or Punishment (Boulesbaa, 1999:204–205; Rod-ley, 1999:48–50, 129–130). Article 5 of the convention allows states to establishjurisdiction over crimes involving torture not only when the crime occurs within itsterritory, but also when the alleged offender is a national of that state, when thevictim is a national of that state, or when the alleged offender is present in itsterritory and the state decides not to extradite the accused. Article 7 requires states toadopt such jurisdiction rather than simply permitting them to do so.

Although the torture convention did not invent universal jurisdictionFa pointthat will become important laterFit applied the principle in an important new way(Randall, 1988:819; Rodley, 1999:120–132). Previously, universal jurisdiction cov-ered crimes that had some transnational character or crimes that were not spon-sored by the state, or both (Randall, 1988). The Geneva Conventions, for example,adopted universal jurisdiction for war crimesFbut these crimes were generallycommitted by one state’s armed forces against foreign nationals and thus had aclear transnational character. In approving the torture convention, states explicitlyopened their own officials to prosecution by other states. In essence, prosecutingauthority is handed to third-party states for crimes that are both state-sanctionedand targeted against a state’s own citizens! Equally surprising, the torture treaty wasadopted by the United Nations (UN) General Assembly by unanimous agreementand has been widely ratified. As of December 2002, 132 states of all ideologies andregime types had ratified the convention, out of a possible total of 193.3

It is important to note that this process of norm creation is distinct from the issueof norm compliance (Finnemore and Sikkink, 1998; Martin and Simmons, 1998).Norm creation occurs when states accept, in principle, a new rule or set of rulesintended to govern their behavior. Norm compliance occurs when states alter theirbehavior to conform more closely to the rule. Norm creation is most easily seenwhen states approve a new formalized treaty and can be dated from the point atwhich the treaty is opened for signature and ratification. The establishment ofuniversal jurisdiction does not mean that states will actually utilize that mechanism.In fact, the absence of enforcement is undoubtedly much more common thanenforcement.

Yet none of this suggests that the torture treaty is unimportant. Although thetreaty (at one level) consists of mere words, they are words that states have resistedsaying for a few hundred years now. Ever vigilant for their sovereignty, stateshave fiercely opposed formalized statements that would create the possibility ofjurisdiction over the domestic affairs of another. Yet the torture convention spe-

3 Office of the United Nations High Commissioner for Human Rights, ‘‘Status of ratifications of the principalinternational human rights treaties,’’ December 9, 2002. Current version available at http://193.194.138.190/pdf/report.pdf.


cifically creates that possibility. At another level, the convention represents morethan just words, for the words are reflective of deeper shared understandingsamong states. States are not merely mouthing words without meaning; rather, agood many of them actually believe that torture is such a heinous crime that itshould be subjected to universal jurisdiction. This shared belief constitutes a changefrom previous beliefs about torture and is worthy of explanation. Finally, stateshave actually exercised universal jurisdiction in some important cases that are likelyto pave the way for an ever-broader use of the power. What was once a simplemoral vision has now actually occurred, in part because the anti-torture conventionmade it possible.

The case of Augusto Pinochet, of course, highlights the practical importance ofuniversal jurisdiction in general and of the torture treaty in particular (Wilson,1999; O’Shaughnessy, 2000:157–170). In Spain, prosecutors brought chargesagainst Pinochet under domestic Spanish laws that recognize the principle of uni-versal jurisdiction for crimes such as genocide and torture. In Great Britain, thecourts focused on the torture treaty, in large part because it explicitly grants uni-versal jurisdiction, and Chile, Spain, and Great Britain are all party to it. In fact, thePinochet government itself acceded to the treaty on September 29, 1988, therebyestablishing a date from which Chilean officials, including Pinochet, could be heldliable for torture in extraterritorial courts. Although the Pinochet case is the mostwell-known use of universal jurisdiction, it is scarcely the only one. A recent studyshows that 109 states have domestic legislation authorizing universal jurisdiction,that 14 states have initiated cases using that authority, and that high-level courts in12 of those states have upheld the authority (Hawkins, 2003). Almost all these caseshave occurred since 1994. It is important not to overstate the extent of enforcementactually occurring, but the use of universal jurisdiction in human rights cases seemslikely to grow further as victims and activists continue to seek justice. Why did statesopen this potential Pandora’s box in the first place?

How and Why Persuasion Matters

Each year, states, IGOs, NGOs, businesses and individuals make a large number ofproposals for new international norms. Not all of these ideas become norms (prin-ciples establishing behavioral ‘‘oughts’’ that are widely accepted by states) or areinstitutionalized in formal organizations or treaties. What determines whether anidea gains widespread acceptance as a norm and is embodied in institutions? Howdoes this process work? Without denying that multiple causal paths may exist, Idevelop a communicative interaction model that relies on persuasion.

All international institutions result from communicative processes. States com-municate their interests and bargaining positions and inform each other of thetrade-offs they wish to make. If communication only included such straightforwardinformation provision, there would be little reason to study it as an independentexplanatory factor. Yet communication also involves arguing, shaming, persuasion,learning and similar methods of social influence (Risse, 2000; Checkel, 2001;Johnston, 2001; Schimmelfennig, 2001). Argumentative rationality (Risse, 2000)refers to a communicative process in which actors collectively deliberate over theirassumptions about the world, the values they share, how those assumptions andvalues should apply to their behavior, and whether particular behaviors actuallyconform with abstract standards.

This conception encompasses both ‘‘rhetorical action,’’ in which actors strategi-cally use arguments to promote their interests (Schimmelfennig, 2001), as well as‘‘complex social learning,’’ in which actors lack well-defined interests and are thusopen to new ideas and views (Checkel, 2001). In the logic of rhetorical action, self-interested actors are shamed into adopting new positions when others demonstratethe gap between professed values and actual behavior. In the logic of social

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learning, actors become convinced through arguments and debate that a differentposition is logically or normatively superior. While these two causal mechanismsvary in theory, it is difficult to separate them in practice. In the first case, individualschange their position because of demonstrated inconsistencies and a desire fornormative approval; in the second, they change position because they have iden-tified a new logic that seems superior. In any given communication, actors are likelyto utilize and respond to both tactics.

Further, these two communicative processes share important analytical featuresthat justify joining them in the same category of argumentative rationality, which Ifreely interchange with the term persuasion. Both rhetorical action and learningassume self-interested actors; both emphasize the importance of collective identitiesor understandings; and both assume that state interests and values and the strat-egies that flow from them are malleable and open to change through communi-cative interaction. For rhetorical action to operate, states must be motivated by acombination of strategic individualistic goals and a strong sense of collective identityand values. The same may be said of social learning, or ‘‘true reasoning,’’ in whichactors pursue individual goals while seeking reasoned consensus (Risse, 2000:9).Persuasion models differ from many existing theories not in denying individualstate rationality but rather in the extent to which they emphasize state collectivegoals and identities and the malleability of state goals and strategies through socialinteraction.

Drafting a new treatyFthe most common basis for international institutionsFisfundamentally a communicative process in which state delegates argue and delib-erate the pros and cons of variations in wording. The drafting process provides asetting in which persuasion can take place. Following Habermas, Risse identifiestwo key preconditions that must exist for argumentative rationality to prevail: acommon lifeworld, and relative equality among the participants. Although nostudies exist on this issue, it is at least plausible to believe that these conditionsdescribe the experts who represent their states at many international negotiatingforums. Despite large cultural differences among countries, the international ex-perts assigned to hammer out agreements on a particular issue often share im-portant similarities that approximate the idea of a common lifeworld. Thosesimilarities include shared educational and professional backgrounds, shared com-mitments to the ideal of international cooperation, and shared acceptance of theprocedural rules. Further, states interact in an atmosphere of relative equalitythanks to procedural rules that are blind to state power, such as the principle of onestate, one vote. Informally, of course, some state opinions count more than others ininfluencing the debate. Yet compared with domestic legislative bodies controlled byparties and elected officials, international negotiating forums are quite nonhierar-chical and lack sharp differences in levels of authority among the participants.

While Risse’s (2000) insights into argumentative rationality provide a potentiallyrich framework for understanding international relations, they lack much explan-atory content. Risse suggests that arguments determine international outcomes,and that ‘‘better arguments’’ prevail over less good arguments. However, he sayslittle about what constitutes a better argument. Realists who argue that interestsdetermine behavior must specify those interests and construct analytical modelsthat show how they play out. In the same vein, constructivists who argue thatcommunication determines outcomes must clarify which types of arguments arelikely to prevail and what types of outcomes are likely.

Ideas and arguments are persuasive when they fit well or resonate with wide-spread preexisting understandings, a condition that applies to both rhetorical ac-tion and learning (Kratochwil, 1989:28–39; Goldstein and Keohane, 1993:23–24;Cortell and Davis, 1996, 2000; Legro, 1997; Schimmelfennig, 2001; Joachim,2003). Persuasion is a fundamentally social and cognitive process that takes placewithin broader sets of understandings that facilitate communication and social


action. In rhetorical action, persuadees become convinced that their positions areinconsistent with some collective identity or deeply held norm. In social learning,actors with uncertain interests facing a complex reality routinely choose betweencompeting arguments about the best course of action. In the absence of some clearexternal criteria by which to judge those arguments, actors are persuaded by ar-guments that fit well with their preexisting understandings.

In the international arena, such preexisting shared understandings are surpris-ingly widespread and well developedFa point made by neoliberal institutionalist,legal, sociological, and constructivist traditions alike (Keohane, 1989:1–7; Franck,1990:195–207; Meyer, Boli, Thomas, and Ramirez, 1997; Wendt, 1999). As a result,the content of the argument matters: When that content is congruent with pre-existing international understandings, states are more likely to be persuaded by thearguments.

The difficulty is that, with a few prominent exceptions (Ruggie, 1983; Wendt,1999), international relations scholars have failed to describe the nature of (i.e.,operationalize) these taken-for-granted beliefs in the international arena. As a re-sult, scholars slip into circular arguments in which arguments are persuasive be-cause they are congruent with preexisting understandings, and the evidence forcongruence is that actors were persuaded by the arguments. Clearly, the nature ofthe preexisting understandings must be specified prior to undertaking the analysis.While this discussion often invokes the shared understandings of ‘‘states,’’ I use thisterminology as shorthand to describe the individuals who represent those states intheir international interactions.

Drawing on insights from literature on the sociology of organizations and trans-national networks, I identify three widespread, taken-for-granted beliefs relevant toa wide variety of issues: the value of preventing bodily harm; the importance ofprecedent in making decisions and resolving disputes; and the belief that inter-national cooperation is essential in resolving social problems. While these are notthe only three implicit, taken-for-granted understandings shared by states, they arebroad enough and common enough to provide an initial operationalization of thebackground beliefs that shape international communication. It is precisely becausethey are taken for granted that they are not widely discussed or analyzed, yet theycan be observed by scholars who look for underlying assumptions in state com-munications (Finnemore and Sikkink, 1998:904–905).

First, states agree broadly on the need to protect vulnerable individuals frombodily harm (Keck and Sikkink, 1998:27–28). In other words, states take it forgrantedFwhen they are communicating openly with each other at leastFthatindividual physical suffering is bad and should be prevented. This is not to say thatstates actually believe that all individual suffering is bad. Rather, they have reacheda common understanding that enlightened and civilized states do not intentionallyinflict harm on individual citizens, and that states should in fact work toward theeasing of individual pain. If states really do believe otherwise, they also understandthat they must keep these beliefs to themselves, as such beliefs would not be ac-cepted openly by others. Evidence for the widespread nature of the principleagainst human suffering may be found throughout the UN Charter and in thepreamble of many resolutions from any UN body. More specific evidence can befound from cases where states have actually tried to justify the infliction of bodilyharm, as Chile did soon after the inception of authoritarian rule. The overwhelm-ing nature of the reaction against Chile’s arguments suggests that Chile violated astrong taken-for-granted understanding (Hawkins, 2002:55–67).

It is worth noting that the broad mandate against individual suffering can ac-commodate a variety of more specific norms, from proposals to ban land mines toefforts to end domestic violence. Keck and Sikkink (1998:204–206) theorize thatthe prohibition of bodily harm is particularly well ingrained among states becausethe issue crosses cultural and ideological boundaries and therefore enjoys

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transnational resonance. Others have noted that issues focusing on bodily harmhave strong emotional appeal, are capable of mobilizing large groups, and involvevery high stakes of pain, suffering, and death (Jennings, 1999).

Second, states generally agree that international decisions should draw on pre-cedents. Sociologists and cognitive theorists have long recognized that organiza-tions routinely make decisions by relying on precedent-oriented mechanisms likestandard operating procedures and imitation (March and Simon, 1958). More re-cently, sociological approaches to international relations have suggested that statesthemselves can be conceptualized as organizations that value precedent and im-itation, in part to establish their legitimacy with each other and in part to makedecisions under conditions of complexity (Meyer et al., 1997; Ron, 1997). Re-searchers in this school have repeatedly shown that states adopt forms and practicessimply because the precedent exists and seems appropriate, even when they haveno functional need to do so (Finnemore, 1996).

Shared state beliefs in the value of precedents are reinforced by the formalnature of the IGOs within which international negotiation takes place. IGOs rou-tinely use precedent to make a large variety of procedural decisions, from theplacing of agenda items to voting rules. By simply participating in the process, statenegotiators have already accepted precedents as a way to make decisions and re-solve disputes. Such acceptance is implicit and taken for granted. Additionally,many individual representatives from states involved in the drafting process arelegal specialists well acquainted with the importance of precedents in formalizeddiscussions. As a result, they are more likely to acquiesce to arguments that citestrong precedent. Evidence of the widespread, taken-for-granted nature of theprecedent norm may be found in virtually every resolution passed by a UN body, asthey routinely cite a wide array of previous resolutions, declarations, and so forth,as precedent to justify the current proposal. States may argue about which pre-cedent is more appropriate, but few if any states challenge the assumption thatprecedent is itself an appropriate factor in good decision making.

Third, states widely agree that international action constitutes an important andappropriate method of resolving domestic social problems. This is not to say that allstates endorse all kinds of international action, or that all domestic actors withinstates endorse cooperative actions. Rather, it simply asserts that for most identifiablesocial problems, an understanding exists that international cooperation in someform or another would help resolve them. The entire UN Charter, for example, isfounded on the explicit assumption that international cooperation will ameliorateproblems of war, poverty, human rights abuse, injustice, and a host of other ills.Each new IGO created to meet a social problem is endowed with its own ration-alized myth, and is created within the background understanding that such or-ganizations constitute an appropriate way to address these problems (Meyer andRowan, 1991). States are not so naı̈ve as to believe that these organizations willresolve the problems, but they do generally agree that cooperation is necessary forprogress.

The best evidence for the widespread nature of this assumption may be found inthe extent to which those who are skeptical of international institutions neverthelesscommonly appeal to the importance of international cooperation. During the run-up to the U.S. invasion of Iraq, the second Bush administration consistently accusedother great powers of failing to cooperate on the issue. Likewise, U.S. conservativestypically argue that the UN is inefficient, that it is biased, and that the United Statescarries an unfair share of the burden. In the same vein, the United States does notobject to peacekeeping per se, but rather the way in which it is carried out and theU.S. role in it. Even in conservative Republican administrations, those most re-sponsible for forming foreign policy rarely argue that poverty, for example, is thesole concern of each individual country and should never be subject to internationalcooperation. None of these arguments challenges the assumption that international


cooperation is positive; in fact, they reinforce that assumption by complaining aboutthe ways in which cooperation is achieved or by complaining about others’ lack ofcooperation.

Once a large number of states have endorsed a particular formula for cooper-ation, arguments in favor of international action become even more compelling. Asa consensus on certain issues begins to emerge, states are loathe to break thatconsensus and to come under condemnation as the ones holding up an agreement.State representatives who put up obstacles can easily be tarred as opposing thesocial good that is the object of the cooperative exercise. To stand alone against ahuman rights initiative, for example, is to suggest to others that you either opposehuman rights in principle, or else do so in practice and fear being found out. Statesdo not wish to make either statement, even by implication. As a result, they begin toabandon opposition positions and to endorse an emerging consensus while ex-pressing general, unspecified, reservations. Such states realize, of course, that theyneed not sign or ratify a convention once it has been adopted, making arguments infavor of international institutions even more compelling.

In summary, I argue that states are likely to be persuaded by arguments that areconsistent with widespread, taken-for-granted understandings in the internationalarena; in particular, the need to prevent bodily harm, the importance of followingprecedents, and the link between international cooperation and progress. Alter-native explanations for the emergence of enforceable international norms empha-size the static and exogenous nature of state interests and the cost–benefitcalculations of governments. Many scholars argue that states create new interna-tional regimes when the benefits of those regimes outweigh the costs for each of theparticipants. Others have focused on powerful democracies as the most likelysource of enforceable human rights norms while still others emphasize the role ofunstable democracies. In the following section, I illustrate the role of persuasion byexamining the convention against torture. A subsequent section explores thealternative hypotheses.

UN Convention against Torture

Both NGOs and states acted as key norm entrepreneurs in initiating the globalconvention against torture. Amnesty International placed the issue on the inter-national agenda when it launched its campaign against torture in 1972 (Burgersand Danelius, 1988:13–18; Baehr, 1989:37; Burgers, 1989; Lippman, 1994:294–300; Korey, 1998:170–180; Clark, 2001:43–60). Sweden and the Netherlands soontook up the issue and played the leading role in drafting and passing a nonbindingUN General Assembly resolution against torture in 1975. Sweden and a few NGOsthen acted simultaneously to propose a global treaty against torture and to push theidea of universal jurisdiction. In the fall of 1977, Sweden successfully introduced aGeneral Assembly resolution calling for the creation of such a treaty. At virtually thesame time, the International Association of Penal Law (IAPL), a transnational pro-fessional organization, produced a draft torture treaty that incorporated universaljurisdiction (Burgers and Danelius, 1988:26; Rodley, 1999:48). Together with theInternational Commission of Jurists, the IAPL submitted this draft treaty to the UNCommission on Human Rights (hereafter, Commission)Fthe official treaty-draft-ing bodyFfor consideration. Within a few weeks of the IAPL meeting, whichSweden’s attorney general attended, Sweden submitted a draft treaty that includeduniversal jurisdiction to the Commission (United Nations. Economic and SocialCouncil. Commission on Human Rights, 1978a; Baehr, 1989:39; Rodley, 1999:48).In early 1978, the Commission decided to adopt the Swedish draft as its workingtext.

Although the draft convention contained a number of important and innovativefeatures, the articles on universal jurisdiction attracted a large share of the

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controversy and yet survived the drafting process nearly intact to become a cor-nerstone of the treaty. Draft Article 8 required all states party to the treaty toestablish jurisdiction over torture in any one of four cases: (1) the crime occurred inthat state; (2) the alleged offender was a national of that state; (3) the victim was anational of that state; or (4) the alleged offender was present in that state and wasnot extradited (United Nations. Economic and Social Council. Commission onHuman Rights, 1978a:3). The provision survived the drafting process to becomeArticle 5 in the convention against torture. The only substantive change to thearticle during the drafting process occurred by substituting ‘‘any territory under [astate’s] jurisdiction’’ for the more limited notion of a state’s territory. Although suchjurisdictional grants can sometimes be permissive in international law, draft Articles11 and 14 required either state prosecution or extradition to a state willing to pros-ecute. Article 7(1) in the final treaty reflects this same requirement.

Initial State Positions

Upon receiving the Swedish proposal, the United Nations requested state respons-es prior to the initiation of formal negotiations. Some 21 states responded to thisrequest (a fairly typical response rate) by defining their initial positions on theproposal. Their positions have been recorded in one of two ways: (1) a writtenresponse to a formal UN inquiry on the draft treaty, preserved as official UNdocuments, or (2) oral comments on the draft treaty, recorded by participants in theprocess. Written records of oral comments may be found in the official reports ofthe working group assigned to draft the convention, in the published memoirs andanalyses of the participants, and in official government documents not submitted tothe UN, I have relied on all of these sources in compiling the data.

In order to capture any changes in government positions during the process ofnegotiations, I first list the initial positions that governments adopted within a yearof Sweden’s January 1978 proposal. Dropping microstates from the analysis, data isavailable on the initial positions of 18 states, as summarized in Table 1.4 States areclassified as opposing universal jurisdiction if they specifically opposed those ar-ticles, suggested amendments that would have weakened those articles, or ex-pressed skepticism about the desirability of the treaty generally.

This coding scheme, of course, does not account for differences in the strength ofa state’s opposition nor does it capture the extent to which a state may have adopteda bargaining position that it was willing to discard. This information is unobtainablefrom the historical record; it is impossible to know how strongly any particular statefelt about its objections or how willing it was to discard them. Some may object, forexample, that the Dutch opposition was rather soft, citing as evidence the fact thatthe Netherlands later became a strong proponent of the treaty. Yet such an ap-proach would assume that governments do not change their views. Further, itwould impute motives to actors at one moment in time by using evidence from alater time period. In the Dutch example, Peter Baehr, chairman of the DutchAdvisory Committee on Human Rights and Foreign Policy in the late 1980s, haswritten that ‘‘the Netherlands was originally strongly opposed’’ to the idea of uni-versal jurisdiction (Baehr, 1989:40). All other evidence corroborates this analysis. Inall these cases, where the evidence of initial positions is quite clear, it would beinappropriate to change the coding of initial positions to reflect later changes.

A few quotes from the primary documents may help illustrate state positions andconcerns. Great Britain, for example, argued that ‘‘in contrast with offences of amore obviously international character, such as hijacking and attacks on interna-

4 The Holy See and Barbados were dropped from the analysis in view of the multiple difficulties in comparingthem with the remaining states. Portugal’s comments on the treaty were internally contradictory and unclear, andthus Portugal was also dropped from the analysis.


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

Communicative Interaction

How and why did a fairly radical proposal that initially received strong oppositionfrom a wide variety of states come to be adopted by consensus within 5 years? Whydid the opposition, which included some of the world’s most powerful states andsome that had the most to fear from enforceable human rights conventions, fallapart within 5 years? To answer these questions, I turn to an analysis of the natureand content of communication among states.

Treaty opponentsFinitially the more numerous groupFoffered three kinds ofobjections.5 The first was that some provisions in the treaty, including universaljurisdiction, violated sovereignty (UN Working Group, 1982:7). Opponents arguedthat, while universal jurisdiction traditionally has existed for some crimes, such aspiracy, those crimes are fundamentally international in nature while torture is not.

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

Support Universal Jurisdiction Oppose Universal Jurisdiction

Austria ArgentinaDenmark AustraliaFederal Republic of Germany FranceNorway German Democratic RepublicSomalia Great BritainSwitzerlandUnited States

MoroccoNetherlandsItalySoviet UnionSpainUruguay

Sources: United Nations. Economic and Social Council. Commission on Human Rights (1978b), Baehr (1989),Burgers (1989), Burgers and Danelius (1988).

5 Much of the evidence in this section is drawn from the annual reports of the working group on a draft

convention against torture of the UN Commission on Human Rights (United Nations. Economic and Social Council.Commission on Human Rights (1974–1984)). To avoid repeated lengthy and confusing citations, I use the notation‘‘UN Working Group’’ and the year of the report, with page numbers when appropriate. The working group wascomposed of a subset of the states sitting on the Commission on Human Rights. Also see the detailed narrativesummary in Burgers and Danelius (1988).

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As a result, opponents suggested that the torture convention should stick withestablished monitoring mechanisms such as periodic reports submitted by states tointernational bodies.

The second type of objection was that the treaty provisions would not really helpend torture. For some, existing international conventions already outlawed torture,and simply drafting more conventions would not really help. Others argued thataccused torturers would never visit a state that might prosecute them, and that thebarriers to gathering evidence from other countries would be insurmountable(Baehr, 1989:40). As a result, the entire convention, in this view, was an exercisein futility.

The third type of objection was that the treaty could actually hurt innocentvictims. The most frequently cited potential victim was the individual unjustly ac-cused of torture. Many argued that states might be politically motivated to accuse aforeign national of torture unjustly (UN Working Group, 1982:6–7; 1983:5–6).Treaty opponents also suggested that standards of judicial processes, such asguarantees of due process rights, or standards of adequate evidence, might belowered significantly when trying alleged torturers who were not citizens of theprosecuting state.

Proponents of a strong treaty, in turn, used three types of arguments to answerthese critiques. The first focused on prevention of state-inflicted bodily harm as thefundamental goal of the convention. In many ways, this argument gave treatyproponents the upper hand in the discursive give-and-take of negotiating sessions.No state could take a position favoring torture simply because such a discursiveposition would be so strongly rejected that it was unthinkable. As a result, manystates were forced to begin from a position that they did not in fact endorse. Anynumber of states practice torture, and many even justify it to some audiences. Yet inthe careful atmosphere of international diplomacy in which states try to impresseach other with seemingly high levels of enlightenment, such justifications wouldhave been scorned.

Nor could states argue that sovereignty allowed them to do as they wished, and ifthey wished to commit torture, then it was their sovereign right. At the end ofWorld War II, Hermann Goering had argued that the Holocaust was the sovereignright of Germany and strictly Germany’s business (Lauren, 1998:210). Even 40years later, few states wished to associate themselves with the arguments of NaziGermany in an international forum. Further, for a delegate to argue that sovereignstates can torture people if they wish would be tantamount to admitting that thedelegate’s state tortures people and wishes to continue to do so. Such an argumentwas simply indefensible within the confines of a formal international discussion.

As a result, strong norms of reasonable discourse prevented states from opposingthe torture convention on substantive grounds (i.e., favoring torture) or ongrounds that sovereignty trumps the right of an individual not to be tortured. Inthis respect, silence in the documentary record is eloquent. Throughout the draft-ing histories, no state ever attempted to justify torture or to claim that sovereignty isa higher value than the right to bodily integrity. Quite the opposite, even statesopposing the torture convention argued that torture was a horrible scourge andshould be eradicated from the earth. Even if some believed that, used correctly,torture could save lives by producing information about potential terrorist attacks,no one dared voice that argument. Consequently, opponents framed their argu-ments in terms of the rights of the accused, as noted above. Their reliance onhuman rights standards to contest the treaty simply illustrates the weak rhetoricalposition of convention opponents, and the importance of taken-for-granted un-derstandings against bodily harm.

These same taken-for-granted understandings even made it difficult for states toadopt a position whereby they favored a torture treaty but opposed universal ju-risdiction. Treaty proponents sought to shame universal jurisdiction opponents


with the catch phrase, ‘‘No safe haven for torturers.’’6 They argued that to createlocations where torturers could flee to escape prosecution would be, in essence, tosanction torture. They emphasized over and over again that torture was a partic-ularly horrible violation that deserved particularly strong measures. Although it isimpossible to observe directly the impact of such arguments, process-tracing ev-idence suggests that proponents made these arguments, that diplomats understoodthem, that states changed their positions, and that the alterations in state discourseincorporated language formulated by treaty proponents. Year after year, propo-nents repeated their arguments during negotiations; each subsequent year, morestates would return with statements that incorporated the language and positionsadopted by proponents.

A particularly large change occurred in 1982. In the first 2 years (1980–1981),negotiators placed the universal jurisdiction clause in brackets, signaling a conten-tious passage. A variety of states suggested deleting the passage because they wereopposed to the principle or because it could not be realistically implemented (UNWorking Group, 1981:56–57). Several others sought conditions on its use. Swedenand other proponents, however, argued that ‘‘universal jurisdiction was desirable inorder not to provide torturers with any places of refuge’’ (Burgers and Danelius,1988:58). The following year, negotiators removed the passage from brackets andwidely endorsed the Swedish discourse. In a marked change of tone, the diplomaticsummary of the negotiating session records that, ‘‘Several speakers considered thata system of universal or quasi-universal jurisdiction . . . was indispensable in a con-vention against torture in order to ensure that there would be no ‘safe havens’ fortorturers’’ (UN Working Group, 1982:6). Many delegations explicitly reversed po-sition while others scaled back their objections. Nigel Rodley, chief legal adviser toAmnesty International and a key lobbyist for the treaty, recalls that the Australiandelegate gave a speech against universal jurisdiction where Rodley expressed ob-vious displeasure.7 In private conversation later, the delegate expressed a desire tochange his government’s position and wondered if he could invoke Amnesty’sreaction to his speech in discussions with his government. A short time later, Aus-tralia changed its position.

Second, proponents of a strong treaty invoked precedent, in careful, calculatedways. Rather than citing common law traditions outlawing piracy, they turned tospecific provisions (‘‘black-letter law’’) of recent international conventions on ter-rorism and other types of crimes. Proponents argued that universal jurisdiction hadbeen enshrined in four prominent treaties in the previous 10–15 years; namely,treaties on hostage-taking, hijacking, crimes against diplomats, and crimes endan-gering the safety of civil aviation (UN Working Group, 1982:6). Further, propo-nents argued that these treaties dealt with crimes that were no less horrifying or lessimportant than torture.8 If hijacking an airplane can be considered such a loath-some crime that the perpetrator should be denied refuge in every state in theworld, then why not torture? Given these precedents, it became difficult for treatyopponents to argue convincingly that torture was a less serious crime than hijack-ing, or that torturers should be granted de facto safe haven by failing to writeuniversal jurisdiction into the convention. In an attempt to bridge the divide be-tween opponents and proponents, Brazil proposed a system in which states wouldhave jurisdictional preference if the crime occurred in their territory (UN WorkingGroup, 1983:6–7). Proponents beat back this attempt to weaken universal juris-diction by pointing out that this proposal differed from the precedent set by uni-

6 Interviews with Hans Danelius, a former Swedish foreign ministry official instrumental in drafting and ne-gotiating the treaty, January 31, 2003, and Nigel Rodley, former legal advisor to Amnesty International, who washeavily involved in lobbying for the treaty, January 27, 2003.

7 Interview, January 27, 2003.8 Danelius interview, January 31, 2003.

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versal jurisdiction clauses in other treaties. In the end, even although states dis-cussed a variety of different ways to approach the principle of universal jurisdiction,they settled on language that was as close as possible to the four treaties routinelyinvoked as appropriate precedent.

Where proponents of strong enforcement could not invoke precedent, however,they lost to opponents. The original Swedish draft contained a path-breaking en-forcement mechanism allowing an international committee to independently in-vestigate alleged instances of torture. Led by the Soviet Union, states eventuallywatered down this provision into a very weak call for cooperation between thecommittee and torturing states, and Article 28 of the final convention evenallows states to opt out of this toothless measure (Burgers, 1989:51–52). Further,Costa Rica proposed an optional protocol with the similar intent of granting aninternational body independent investigatory power (Voorhis, 1981). Strong op-position led Costa Rica to postpone its proposal until drafting of the initial con-vention was completed. Since then, states have continued to discuss the CostaRican proposal, finally adopting it in December 2002, although it only had two rat-ifications and 20 signatures as of November 2003.9 One fundamental problem was thatboth these proposals lacked precedents and thus could not be adequately defended.

The third argument that won support for universal jurisdiction focused on thewidespread belief that international action is beneficial and can resolve socialproblems. In the case of the torture treaty, proponents argued that it was better todo something than to do nothing (UN Working Group, 1982:7). MennoKamminga, a key Amnesty lobbyist, said that foreign ministry officials tended tobe more open to this type of argument than justice department officials, reflectingdifferent bureaucratic missions.10 According to him, foreign ministry officials tend-ed to hold principled commitments to international cooperation while justice of-ficials fretted about the practicality of translating universal jurisdiction into law andpractice. The international institutional settingFthe UN Human Rights Commis-sion and its working group, with a General Assembly mandate to draft a torturetreatyFobviously favored pro-cooperation arguments. Even repressive statesskeptical of international action on behalf of human rights did not feel free toplay a simple obstructionist role by opposing any and all agreements. Since theycould not argue that torture is an unimportant crime or that torturers should begranted safe haven in other states, they had to fall back on weaker arguments.These consisted of fears that universal jurisdiction would not work or that it wouldbe used against innocent foreign nationals for political reasons.

Proponent states conceded that the convention would not stamp out torture, butconsistently argued that it was a step in the right direction and that its provisionscould be realistically implemented. For example, when Argentina argued againstuniversal jurisdiction by suggesting that no one would ever actually implement it,the United States responded that most states practicing torture would never pros-ecute their own officials either (Burgers and Danelius, 1988:78–79). As a result,proponents deftly associated opposition to universal jurisdiction with a do-nothingattitude:

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

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

10 Interview, January 29, 2003.


ment in their States if, for legal or other reasons, extradition to that State wouldnot be possible (UN Working Group, 1982:7).

Opposing states had no reply for this logic. Once states favoring the conventiondrafted clauses that protected the rights of the accused, opposing states had noother arguments remaining. Specifically charged to do something to outlaw torture,delegates could not simply do nothing. As a result, they slowly acquiesced to theprinciple of universal jurisdiction.

As some states switched positions to support universal jurisdiction, arguments infavor of action became even more persuasive. Generally, states worked to avoidpositions in which they would stand alone against other states, especially those withsimilar identities. Kamminga recalled that one of Amnesty’s major arguments was,‘‘How can you be in the same camp as Uruguay and Argentina on this?’’11 Whensome states began to switch to favor universal jurisdiction, a variety of other statesquickly followed. Further, informal voting rules required treaty provisions to beadopted by consensus (Burgers, 1989:46), thereby putting pressure on states to jointhe growing majority. Hans Danelius, who worked in the Swedish foreign affairsministry, participated in all stages of the negotiations, and wrote the first draft of theconvention, put it this way: ‘‘Once there was a clear majority in favor of universaljurisdiction . . . no government would wish to give the impression of preventing orobstructing the successful termination of the work on a stronger protection of sucha fundamental human right as the right not to be exposed to torture. This couldindeed give rise to unpleasant internal or external criticism.’’12

Because states could always refuse to sign the treaty later, they were reluctant todraw attention to themselves as obstructionists in the interim. Once most Westernstates accepted universal jurisdiction, for example, Australia declared in 1982 that ittoo accepted the principle (with reservations) ‘‘with a view to facilitating progresstowards agreement on a final text’’ (Burgers and Danelius, 1988:79; Burgers,1989:48–49). Once Argentina became democratic and switched its position in 1984,Uruguay avoided isolation by saying it would no longer oppose universal jurisdic-tion (Baehr, 1989:45; Burgers, 1989:49). Brazil, which had long argued that uni-versal jurisdiction should depend on denying an extradition request, then began toclaim that it had only been trying to bridge the gap between proponents andopponents, and said it would drop its proposal (UN Working Group, 1984:6). Itsoon became evident that only China and East Germany wanted to qualify and toweaken universal jurisdiction. At that point, China declared its acceptance of theprinciple and East Germany reserved the right to determine its final position later,thereby allowing the treaty to move forward and ultimately be adopted (UNWorking Group, 1984:6–7).

The preceding evidence demonstrates that, in the aggregate communicativeprocess, proponents utilized three types of arguments, that preexisting under-standings gave these arguments important persuasive power, that opponents foundno enduringly useful counter-arguments, that opponents gradually changed theirpositions to favor universal jurisdiction, and that when proponents used otherkinds of arguments they were not so successful. All of this evidence lends credibilityto my hypotheses. It is impossible, of course, to directly observe the ways in whichargumentation might change the ways that people think about an issue. At themultilateral level, I have provided the best possible evidence by examining thediplomatic record and participants’ memoirs and by interviewing those partici-pants, both lobbyists and diplomats. I now extend the evidence and causal chain byexamining the changeFand lack of changeFin two particular countries.

11 Interview, January 29, 2003.12 Interview, January 31, 2003.

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Particular Cases: The Netherlands and the United States

Evidence about the motives and causes for change in particular states is difficult tocome by. The torture treaty did not enjoy a high enough profile to attract muchlegislative debate, and even less public reaction. For example, an extensive searchon Lexis-Nexis for any European or North American news source from 1979 to1984 reporting on the torture treaty turned up a total of two articles. One in theChristian Science Monitor mentioned briefly the fact that a treaty was being nego-tiated while another in The Economist offered perceptive but brief information onnegotiations. Individual governments apparently made decisions about the treaty ata cabinet level, where any helpful records testifying of government motive arerecorded in dozens of different languages and hidden away for a couple of moredecades.

Nevertheless, I have gathered as much evidence as possible on two states: theUnited States and the Netherlands. These two states vary on key independentvariables (power, domestic politics, domestic ideology) and also varied on the de-pendent variable (support for universal jurisdiction), thus offering a nice oppor-tunity to probe the plausibility of various arguments (King, Keohane, and Verba,1994). As one of the world’s most powerful states with a consistent history of re-jecting most treaties that breach U.S. sovereignty, one might expect the UnitedStates to have opposed universal jurisdiction. Instead, the United States was one ofthe strongest proponents of universal jurisdiction from the start, and even signedand ratified the torture treaty under the leadership of conservative presidents. Inthe Netherlands, on the other hand, one might expect that its self-identity as aglobal proponent of human rights would have led it to support universal jurisdic-tion. In fact, the Netherlands at first opposed this provision, but within a few yearshad changed its mind and became one of the most important supporters for astrong treaty. In both cases I have accessed legislative records that include exec-utive-branch reports on their reasons for supporting the torture treaty and a his-tory of the governments’ positions on that treaty. I have also interviewedinternational human rights activists and government officials involved in thedecision-making process.

The NetherlandsParticipants and analysts agree that when the Netherlands switched its position tofavor unqualified universal jurisdiction in 1982, it marked the key turning point inthe battle for this provision.13 Prior to 1982, principled Dutch opposition allowedauthoritarian regimes and others to clothe their naked arguments against universaljurisdiction in legitimate robes. The negotiating record demonstrates that afterthe Netherlands changed its position, universal jurisdiction ceased to be a keypoint of contention. Opposition remained, but it was isolated and marginalized(Burgers and Danelius, 1988:72–73; 78–80). What triggered the change in theDutch position?

Careful process-tracing illustrates both the importance and limits of communi-cation.14 Amnesty International first convinced some members of the Dutch par-liament, both in opposition and in government, to present a motion on March 17,1980 favoring universal jurisdiction in the draft treaty. The government responded

13 This section draws on primary documents, interviews, and the published analyses of key Dutch participants.The official position of the Dutch government on the treaty, including a recounting of the history of the treaty andthe Dutch position, is found in The Netherlands, Tweede Kamer der Staten-Generaal (1985–86). I interviewed, by

correspondence, J. Herman Burgers, the key human rights officer within the Dutch Foreign Affairs ministry at thetime and later chairman of the UN working group to draft the convention. Peter Baehr, chairman of the DutchAdvisory Committee on Human Rights and Foreign Policy in the late 1980s, provided additional useful information.Also see Baehr (1989), Burgers (1989), and Burgers and Danelius (1988).

14 I rely in this paragraph on the source material cited in the previous footnote.


in a letter on April 2, 1980, arguing that universal jurisdiction would not prove aneffective tool for preventing torture and that successful prosecutions of foreigntorture cases would be impractical. Amnesty responded by writing the Dutch gov-ernment on April 17 and by lobbying members of parliament, arguing in both casesthat torture was a crime of sufficient magnitude to merit universal jurisdiction, thatthere should be ‘‘no safe haven for torturers,’’ and that adequate precedent existedin the anti-terrorist treaties. In large part because of their own principled beliefsabout international criminal law and appropriate methods of combating torture,Dutch government officials continued to express doubts. Dutch parliamentarians,on the other hand, overwhelmingly approved the motion on May 6, 1980, opposedonly by a small farmers’ party of the time. As Herman Burgers, the key Dutchforeign ministry official, recalled it, ‘‘The adoption of the motion settled the issue,for this was not a matter on which the government would want to have a conflictwith parliament.’’15

In this case, it seems clear that ‘‘pure’’ communicative interaction was insufficientto change the government’s position and that it had to be combined with politicalpressure. Yet it would go too far to say that persuasion was irrelevant. Amnesty andother norm entrepreneurs used information and framing to make their case toparliamentarians. Clearly, the Dutch government was not persuaded in the sensethat government officials altered their views. Indeed, nearly 20 years later Burgersdemonstrated that he had not changed his mind when he strongly reiterated hisongoing doubts about universal jurisdiction.16 Yet persuasion does not require thatothers become convinced that someone else is right. Rather, it requires that com-munication occurring within a political process will result in an outcome that can beexplained by the extent to which the various arguments match up with prevailingunderstandings. In the Netherlands specifically, just as in the broader internationalsystem generally, arguments pointing to the importance of bodily harm and pre-cedent trumped other sorts of arguments.

Back at the UN negotiating table, the norm of political cooperation played animportant role in completing the change in the Dutch position. Reacting to itsparliamentary vote, in 1981 the Dutch delegation introduced a motion that wouldsupport yet weaken the universal jurisdiction provision by making it contingent ona complaint by an interested party. Finding few allies for this proposal, Burgersdropped it in 1982, the same year he was elected the chair of the negotiating body.As he recalls it: ‘‘When I entered the working group in 1982 and was elected itschairman, it was already clear to me that the only chance for a successful conclusionof its work depended on acceptance of the universal jurisdiction idea by the greatestpossible majority.’’17 As a result, he set aside his personal skepticism to help ensurethe treaty would be widely endorsed. In other words, the norm of political coop-eration prevailed over other kinds of concerns. Two years later, the negotiatorsapproved the treaty with universal jurisdiction intact.

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

15 Burgers interview, March 18, 2003.16 Burgers interview.17 Burgers interview.

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istration continued these efforts and the Senate subsequently ratified the conven-tion on October 27, 1990, with wide approval from both conservatives and liberals.Although the Senate attached a variety of reservations, declarations and under-standings, none affected universal jurisdiction.

A cost–benefit model would suggest that the United States accepted the torturetreaty because officials discounted the chances that universal jurisdiction would beturned against U.S. citizens. Some evidence exists to support this contention. Theconvention’s definition of torture, for example, excludes sanctions imposed by do-mestic law, thereby leaving out punishments that are legal in the UnitedStatesFsuch as the death penaltyFthat might be considered torture by others.Additionally, in the document accompanying submission of the treaty for ratifica-tion, the Reagan administration dismissed concerns that other states would useuniversal jurisdiction to prosecute U.S. citizens by noting that the convention insistson fair treatment for the rights of the accused, and that the ‘‘U.S. Governmentwould strongly resist such an action’’ (Reagan, 1988:9–11).

At the same time, other evidence points in the opposite direction. The treatyclearly opens all states to risk, and provides no special assurances to powerful statesor key decision makers. The definition of torture in the convention is broad enoughto apply to a variety of activities, and, rather than being narrowly and specificallydrawn, could be interpreted in different ways by courts in different countries(Lippman, 1994:313–314). In the convention, torture refers to ‘‘any act by whichsevere pain or suffering, whether physical or mental, is intentionally inflicted . . . ’’(Article 1). Further, state officials are guilty of torture under the treaty not only forthe physical act of applying pain, but also for encouraging torture, or merely con-senting or acquiescing to it (Article 1; Lippman, 1994:313–314; Boulesbaa,1999:23–25). This provision clearly conflicts with state interests of decreasing theliability of their officials.

Further, the United States has scarcely been reassured by nice legal languageguaranteeing rights of the accused and assertions of its intent to resist prosecutionin other enforceable international human rights agreements. Despite multiple legaland power-oriented safeguards built into the proposed International CriminalCourt, for example, the United States still refuses to give its assent.

A more compelling explanation of U.S. behavior recognizes that while the UnitedStates has interests in protecting its citizens against human rights prosecutions,those interests are open to interpretation, and thus to persuasion. The evidencesuggests that all three types of arguments (preventing bodily harm, precedent, andinternational cooperation) helped persuade conservative Reagan and Bush admin-istration officials and U.S. senators to negotiate, sign, and ratify the treaty and tosupport universal jurisdiction. The idea that torture is a particularly reprehensibleform of human rights abuse turns up repeatedly in official government documentsand the Senate hearing on the treaty. Secretary of State George Shultz, for example,boasted of the U.S. role in ensuring ‘‘that the Convention focus on torture ratherthan on other relatively less abhorrent practices’’ (United States, 1988). At variouspoints in the written record, U.S. officials essentially adopt the rallying cry of pro-ponents ‘‘No safe haven for torturers,’’ using more legalistic, official language. Be-cause the definition of torture was focused on severe individual harm rather than onfuzzier issues like ‘‘degrading practices,’’ U.S. officials were much more supportive ofthe treaty.18

U.S. officials also repeatedly insisted on the importance of existing precedents. Inthe document transmitting the treaty to the Senate, the Reagan administrationstressed the fact that the system of universal jurisdiction conformed closely to theprecedent set by other treaties and that it closed loopholes that would otherwise be

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


available to torturers (Reagan, 1988:9–11). In the only Senate hearing on the treaty,Bush administration officials strongly defended universal jurisdiction by citing theprecedent of other treaties, by noting that the United States was already a party tothose treaties, and by arguing that torture was equal to hostage-taking and hijack-ing with respect to the nature of the criminal activity (U.S. Congress. Senate.Committee on Foreign Relations, 1990a). Staunch conservative senators with strongpreferences for defending sovereignty, such as Sen. Jesse Helms, did not even raisethe issue of U.S. citizens being tried abroad (U.S. Congress. Senate. Committee onForeign Relations, 1990b).

Even the importance of international cooperation turns up regularly in the his-torical record. In Ronald Reagan’s official transmittal letter to the Senate (UnitedStates, 1988), his first argument in favor of the treaty was that it ‘‘marks a significantstep in the development during this century of international measures against tor-ture and other inhuman treatment or punishment.’’ Reagan then went on to praisethe establishment of ‘‘a regime for international cooperation in the criminal pros-ecution of torturers’’ based on universal jurisdiction. When Helms and others at-tempted to attach a reservation asserting the general supremacy of the U.S.Constitution over this treaty, Bush officials beat back the attempt by arguing that itwould undermine all sorts of international cooperative efforts and anger Europeanallies (U.S. Congress. Senate. Committee on Foreign Relations, 1990b:35–45).

I am not arguing that the United States had no political motives related to thetorture treaty. Although the Cold War was drawing to a close, the United States wasstill waging a public image battle with the Soviet Union in the late 1980s. Thetorture treaty offered another vehicle (however small and publicly obscure) bywhich the United States could demonstrate its virtue compared with Communistdegeneracy.19 On the other side of the coin, the United States was motivated toprotect its citizens from being prosecuted for torture, and the Justice Departmentreportedly opposed universal jurisdiction because of concerns about FBI agentsbeing so prosecuted.20 I am arguing that these contradictory motives were insuf-ficient to guide the United States to a clear position on the treaty and that thereforethe government was open to persuasion.

In conclusion, it is impossible to understand acceptance of the treaty (normcreation) as a simple calculation that the costs would be negligible because the treatywas written in narrow ways that would create little trouble for states. That stateshave an interest in protecting their citizens from harm in other countries seemsundeniable. At the same time, the extent to which states emphasize that interest,and the degree of threat they perceive to that interest, are subject to persuasion.Strong arguments centered on bodily harm, precedent, and the need for interna-tional action persuaded states to downplay concerns about misuse of the treaty, andopened their officials to the risk of foreign prosecution.

Alternative Explanations

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

19 Even this motive was undercut by the fact that the Soviet Union ratified the treaty in March 1987 before theReagan administration even sent it to the Senate.

20 Rodley interview, January 27, 2003.

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positions divide along the typical bipolarity of the Cold War. While it is true that thebulk of support came from Western democracies, a number of Western states alsoinitially opposed universal jurisdiction. Both Great Britain and France, for exam-ple, joined the Soviet Union and East Germany in opposition to the treaty. ManyWestern democracies switched positions to support universal jurisdiction onlyshortly before Soviet-bloc states did.

In an important article, Moravcsik has argued that new or unstable democraciesare most likely to support enforcement mechanisms for human rights norms be-cause they fear domestic threats from autocrats. Authoritarian regimes and estab-lished democracies, on the other hand, are likely to oppose enforcement becausethey have no need for such institutions and are unwilling to pay the sovereigntycosts. Some evidence supports this theory: authoritarian regimes initially lined upagainst the treaty and Argentina dramatically changed its position to support thetreaty when a new democratic government came to power in 1984 (Burgers,1989:49). Unfortunately, changes in position by the Netherlands, France, Australia,the Soviet Union and its allies, and Uruguay cannot be explained in this way. Nordoes the theory help explain initial state positions among either established or newdemocracies. Treaty proponents did not include any new democracies among theirranks, including, notably, Spain, and established democracies split fairly evenlybetween proponents and opponents.

Finally, a model focusing on the costs and benefits of the treaty cannot adequatelyaccount for the changing state preferences on the question of universal jurisdictionbecause neither the costs nor the benefits of the universal jurisdiction clausein the treaty changed during the drafting process. A variety of states attempted toweaken universal jurisdiction during the drafting process, but consistently failed.Thus, the potential cost of universal jurisdiction remained constant. Nor is thereany evidence that states dropped their opposition to universal jurisdiction becausethey became convinced that no one would actually utilize it. On the contrary,drafting debates were peppered with comments that universal jurisdiction consti-tuted a realistic enforcement mechanism. Indeed, the prolonged opposition ofauthoritarian states suggests that they feared that universal jurisdiction might infact be exercised at some point. Even during the last 2 years of drafting sessions,China, Uruguay, and Brazil expressed strong doubts about universal jurisdiction(Burgers and Danelius, 1988:85, 94–95). It is equally difficult to argue that thebenefits of the treaty increased over time. The treaty never generated muchinternational attention and thus offered states few opportunities to score publicrelations points.

None of this denies that states actually calculate costs and benefits. States mayindeed have calculated the costs and benefits of universal jurisdiction somewhatdifferently at the end of the negotiating process than at the beginning. Yet thischange in calculation was not rooted in any substantive changes in the nature ofuniversal jurisdiction. In other words, the treaty remained the same with respect touniversal jurisdiction, and yet states came to view it differently. If states altered theircost–benefit calculations, it was because of persuasion.

The main difficulty with these alternative theories revolves around their staticrather than dynamic approach. Most of the explanatory variables identified bythese approaches change little over time, yet states changed their positions quickly.In 1979, more than half of the states engaged in the debate opposed the proposal;by 1982, most states accepted it, and by 1984, all did (Burgers, 1989:48–49). One ofthe most striking features of the negotiating process is that states moved fromopposition to support, but not the other way around. No state, once it expressedsupport for universal jurisdiction, ever withdrew its support, yet multiple stateswithdrew their strong objections to universal jurisdiction. Variables that focus onstate power, domestic institutions, or cost–benefit calculations have little hope ofcapturing such a dynamic process. To do so, such approaches would have to focus


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

Generalizing the Argument

The key theoretical question in this study concerns the origins of states’ interestsrelative to international institutions. Most of the world’s states have expressed aninterest in creating enforcement mechanisms for some international human rights.States have no natural or self-evident interest in helping the citizens of other states,or in allowing others to intervene in their own domestic affairs. Where, then, doesthis enforcement interest come from?

I have argued that state interests may stem from a dynamic political process thatinvolves communicative interaction and the causal mechanism of persuasion, de-fined broadly. In particular, the content of arguments can influence states to enactenforcement mechanisms for some kinds of human rights abuses. Argumentslodged in the taken-for-granted beliefs of precedent, international cooperation, andprevention of bodily harm are likely to prevail over all other types of arguments,and states are likely to eventually adopt them as their official positions. In this way,the convention against torture became subject to enforcement, and it seems likelythat more treaties will evolve in this way in the future.

International enforcement mechanisms in all issue areas, not just human rights,constitute a difficult case for persuasion models because they are costly institutionalforms. States adopting international enforcement must pay sovereignty costs, con-tracting costs and agency costs. I have shown that persuasion played an importantrole in the adoption of one important international institution with enforcementpowers. If persuasion models can help explain even costly institutions, then per-suasion should be more carefully considered as a causal mechanism by scholarsseeking to explain less costly international institutions, including those with lowerlevels of delegation and obligation.

To demonstrate the utility of a persuasion model is not to say that state power andinterests are irrelevant variables. Many international human rights institutionsclearly seem to reflect such forces. The United States used its position as a GreatPower to shape the ICC Statute and has cited national interests in opposing it.Great Powers on the Security Council have delayed and stalled rather than respondforcefully to numerous human rights tragedies and have ensured that war crimestribunals would not harm their interests (Rudolph, 2001). The relative paucity ofstrong international human rights institutions provides evidence for the contentionthat states pursue their national interests, narrowly defined. The focus of inter-national tribunals on militarily defeated governments (e.g., Nazi Germany, Serb-nationalist Yugoslavia, and Hutu Rwanda) demonstrates that power matters inshaping human rights institutions.

Yet the proper question is not simply whether interests and power matter, butrather how and under what conditions persuasion can influence statesFespeciallygiven the reality of existing state interests and power. The argument developedhere would predict that international institutions are strongest where proponentscan invoke bodily harm, precedent, and the link between cooperation andprogressFeven if interests and power point in the opposite direction.

While detailed process-tracing would be needed to test the empirical validity ofthe argument, easily observable broad patterns and prominent details in interna-tional human rights institutions offer some initial support for the importance ofpersuasion. As of August 2003, states had created some 52 international humanrights treaties and protocols (excluding regional agreements), with an additional 54

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declarations or statements of principle.21 Of these, only nine may be classified ascreating some kind of enforcement authority, as defined above. A persuasion modelpredicts that these enforcement institutions will focus on bodily harm, rely onstrong precedent, and make tight links between cooperation and progress.

Initial evidence lends additional plausibility to this argument. All nine treatieswith enforcement authority deal with war crimes, crimes against humanity, torture,and genocide. None of the treaties or declarations dealing with discrimination,freedom of association, administration of justice (outside of torture issues), em-ployment, social welfare, information, or cultureFto name several categoriesFau-thorize enforcement. Realist perspectives emphasizing power might expect issuesclose to U.S. democratic values, such as free speech and free association, to exhibitthe most enforcement mechanisms. Such issues are in fact among the most un-derdeveloped in international human rights law. Liberal perspectives emphasizingdomestic politics might expect issues close to powerful domestic groups, such aslabor and employment rights, to exhibit strong enforcement mechanisms. Yet therights of employees and laborers enjoy little to no enforcement authority.

Some international conventions and declarations deal with bodily harm, but lackenforcement authority. In these, the importance of precedent seems crucial becausemost of them preceded later treaties that granted such authority. The 1948 treatyoutlawing genocide, for example, authorized enforcement by an internationalcourt, should one be set up for that purpose. The treaty was drafted at a very earlystage of international human rights law and the court was never established. Yet the1998 Rome Statute of the International Criminal Court (ICC) included genocide asa punishable crime in language that drew carefully on the existing genocide con-vention. Likewise, states considered a wide variety of crimes for inclusion in theICC statute before settling on three sets of crimes with strong existing precedent:war crimes, genocide, and crimes against humanity.

Finally, initial probes of the political process leading to adoption of these en-forcement mechanisms illustrates the importance of cooperation as a norm (Morrisand Scharf, 1995, 1998; Lee, 1999). In particular, proponents have used the co-operation norm to persuade powerful opponents to either support the institution orat least not to oppose it. When that has failed, proponents have used the coop-eration norm to convince each other to adopt the institution over the objection ofpowerful states. Russia was wary of the Yugoslav tribunal, France of the Rwandantribunal, the United States opposed the ICC, and China has disliked them all. Thewar crimes tribunals were set up by the Security Council, where powerful statescould have vetoed their creation but nevertheless allowed them to proceed. Al-though the United States could not veto the creation of the ICC, it used its con-siderable political might to try to derail or weaken it. In all these cases, proponentshave consistently argued for the importance of international action to address do-mestic human rights problems. In almost every case, opponents have acquiesced tothese arguments by noting their ongoing qualms while simultaneously arguing thatthey do not want to stand in the way of international cooperation. For example,China and Brazil argued that the Yugoslav Tribunal violated sovereignty and shouldhave been approved by all states, yet they recognized that ‘‘sometimes exceptionallygrave circumstances may demand exceptional action on the part of the UnitedNations and of Member States’’ and that ‘‘the urgency of restoring and maintainingworld peace’’ required joint action (Morris and Scharf, 1995, Vol. 2:199–201). Sim-ilarly, in adopting the ICC, a wide variety of states argued that a flawed treaty wasbetter than no treatyFalthough the United States was a notable exception to thispattern (Lee, 1999:569–573). None of this proves that persuasion was important,but it suggests that persuasion should be investigated seriously as a possibility.

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


The causal factors developed above are not unique to human rights treaties andcould be tested in other contexts. The central taken-for-granted international beliefsidentified above are broad enough to apply to a variety of issue areas. With respectto criminal issues, for example, a theoretical focus on interests or power might leadanalysts to expect stronger treaties on drug trafficking than on hijacking. Drugtrafficking is far more frequent than airline hijackings, affects more domestic in-terests, has larger overall consequences for states and has disproportionate negativeeffects on powerful states. Yet states have done little to set up international en-forcement on drug trafficking issues while they have implemented universal juris-diction for hijackings. This pattern may reflect the relative prominence of innocentvictims suffering bodily harm, a central image in hijacking cases but less importantin drug trafficking cases where those suffering harm are not usually associated withinnocence. It may also reflect the importance of precedent. The oldest universaljurisdiction norms stem from 19th century British crusades against piracy, a crimethat has an obvious modern counterpart in hijacking (Randall, 1988).

Even in security issues, a hard issue area for persuasion models, a variety of casessuggest that background international understandings could be an important fac-tor. Many of the most prominent security treaties focus on bodily harm issues,especially on weapons and practices that cause indiscriminant harm. These includeland mines, chemical weapons, submarine attacks on merchant ships, the bombingof non-military targets, and the treatment of the wounded and prisoners of war(Price, 1995, 1998; Legro, 1997). With respect to precedent, Richard Price hasshown how proponents of a land mine ban strategically used moral suasion andsocial pressure to ‘‘graft’’ these new norms onto preexisting norms. The 1949Geneva Conventions and their follow-up protocols also provide a constructive ex-ample in the importance of precedent (van Elst, 2000:823–25). They are the onlysecurity-related norms that utilize enforcement mechanismsFin this case, univer-sal jurisdictionFand they also have a very long history, with the first norms es-tablished in the mid-1800s.

Other issue areas exhibit similar patterns. The women’s movement has claimedthe most institutional success in recent years when they have ‘‘framed’’ the issue asone of bodily harm (Joachim, 2003). Violence against women has received the mostattention among women’s issues and has even been incorporated into a legallybinding (although not enforceable) treaty in the Americas (Hawkins and Humes,2002). Despite the deep contentiousness surrounding abortion and reproductiongenerally, women’s groups have made the most progress on reproductive rightswhen they have linked them to women’s health. If women’s rights follow humanrights patterns, these initial steps will set precedents for more costly internationalinstitutions in the future.

In short, this article cautions against an over-reliance on interests and power asdefault explanations for international institutions. At the least, scholars shouldconsider persuasion as a causal mechanism in their analyses. Approaches focusingon social interaction have been criticized for failing to specify the mechanisms bywhich that interaction translates into state interests and international outcomes,and the conditions in which the processes occur (Legro, 1997; Checkel, 1998).Some previous theoretical formulations have tended to suggest that when an issueis correctly framed, or when persuasive arguments are made, action will result.These arguments are unfalsifiable because they do not specify what constitutes a‘‘correct frame’’ or a ‘‘persuasive argument.’’ Other formulations are falsifiable butmore narrowly drawn and not clearly generalizable. In an important article,Schimmelfennig (2001:48) has argued that European states successfully used rhe-torical action to expand the European Union because they were able to draw on the‘‘community’s standard of legitimacy’’ in the form of a ‘‘pan-European communityof liberal-democratic states.’’ As with many studies of the EU, the argument isinsightful but of unclear generalizability.

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

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