The United States and Multilateral Treaties: A Policy Puzzle 9781626375987

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THE UNITED STATES AND MULTILATERAL TREATIES

THE UNITED STATES AND MULTILATERAL TREATIES A Policy Puzzle

Johannes Thimm

Published in the United States of America in 2016 by FirstForumPress A division of Lynne Rienner Publishers, Inc. 1800 30th Street, Boulder, Colorado 80301 www.firstforumpress.com and in the United Kingdom by FirstForumPress A division of Lynne Rienner Publishers, Inc. 3 Henrietta Street, Covent Garden, London WC2E 8LU © 2016 by Lynne Rienner Publishers, Inc. All rights reserved Library of Congress Cataloging-in-Publication Data A Cataloging-in-Publication record for this book is available from the Library of Congress. ISBN: 978-1-62637-552-9 British Cataloguing in Publication Data A Cataloguing in Publication record for this book is available from the British Library. This book was produced from digital files prepared by the author using the FirstForumComposer. Printed and bound in the United States of America The paper used in this publication meets the requirements of the American National Standard for Permanence of Paper for Printed Library Materials Z39.48-1992. 5 4 3 2 1

Contents

Acknowledgments

vii

1

The United States and Multilateral Treaties

2

It’s All About Domestic Politics

17

3

Between Nonparticipation and Hostility: The United States and the International Criminal Court

51

No Opposition in Sight: The Convention Against Torture

99

4 5 6 7

1

A Close Call Against Participation: The Landmine Treaty

143

Barely Ratified: The Chemical Weapons Convention

185

Solving the Policy Puzzle

239

List of Acronyms Bibliography Index

251 253 277

v

Acknowledgments

To say that this book has been in the making for a while now would be an understatement. All the more reason for me to be delighted that it is finally in your hands. As frequently occurs with such endeavors, the book would not have been possible without the support of a number of individuals and institutions. I would like to thank Thomas Risse of the Freie Universität Berlin (FUB) and Peter Rudolf of Stiftung Wissenschaft und Politik (SWP), who encouraged me to pursue this project from the beginning, supported me every step of the way, and made many useful comments on earlier drafts. The research for the book was made possible through funding from the Stiftung Wissenschaft und Politik, the Forum Ebenhausen, and the Fox International Fellowship at Yale University. I’ve presented the ideas contained in the book at various forums and have benefited greatly from discussions with a number of people: my colleagues in the SWP researchers’ forum and in the Americas division; the participants in the International Relations research seminar at FUB; the participants on panels at several annual conventions of the International Studies Association and in a colloquium organized by Jamie Mayerfeld at the University of Washington; and my fellow Fox International Fellows. I would also like to thank two anonymous reviewers, who provided useful advice and helped me to clarify my argument. I would like to express my gratitude to the experts and policymakers who agreed to be interviewed for this book – often at short notice – and who helped me fill in the gaps in the written documents. Many thanks to Summer Banks for expertly editing the manuscript and for helping me to navigate the intricacies of the English language and the absurdities of its written form; to Alejandra Wilcox for doing the typesetting; and to Lynne Rienner for her support in getting the book out there. Last but not least: I would like to thank my parents for their general support, for never questioning my choice of a career in political science, and for keeping questions about this project’s completion date to a minimum; and Kristina and our daughters for giving me the freedom to work on this book while constantly reminding me that there are more important things in life than academia.

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1 The United States and Multilateral Treaties

Shortly after President Barack Obama took office in 2009, his administration informed the US Senate of its priorities with regard to treaties. The newly elected president wanted the United States to join a number of multilateral treaties, including the Convention on the Elimination of All Forms of Discrimination Against Women, the Comprehensive Test Ban Treaty, and the United Nations Convention on the Law of the Sea. Before a treaty can be ratified, the Senate is required to give its “advice and consent.” Yet, in the years since Obama entered the White House, none of the above-mentioned treaties have even reached the Senate floor for consideration. The Senate did, however, consider the United Nations Convention on the Rights of Persons with Disabilities, a treaty designed to provide disabled people with equal opportunities. Since the United States is a global leader in that effort and the convention was closely modeled on the 1990 Americans with Disabilities Act, the international standards set by the treaty required practically no change in US policy. Nevertheless, when the Senate voted on the convention on 4 December 2012, the result of 61 votes in favor and 36 opposed did not meet the two-thirds threshold needed for ratification. This outcome did not come as a surprise to those that follow US foreign policy. More often than not, America remains outside of multilateral treaties, including some that enjoy almost universal membership otherwise. This has led to accusations of US unilateralism. Why is the United States so reluctant to join global multilateral treaties? And how does it determine which treaties to join? The answers to these questions are less straightforward than they might seem. The answer that seems obvious – national interest – provides an explanation that is more justification than underlying reason for certain policy preferences. Reasonable people disagree about America’s interests, but

1

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The United States and Multilateral Treaties: A Policy Puzzle

attributing the failure to ratify the Law of the Sea Convention, a treaty that every president from Ronald Reagan to Barack Obama has supported, to national interest probably raises more questions than it answers. We need better explanations for US treaty policy. In this book I examine the question of US treaty participation in a systematic manner. I open up the black box of American unilateralism with respect to global multilateral treaties by investigating the politics of treaty negotiation and ratification. Among the wide range of ways for nations to cooperate, multilateral treaties are a particularly important and accepted instrument. They can be used to establish new norms of behavior. They also form the legal basis for creating organizations to overcome problems of collective action or to help enforce agreed-upon rules. Because the United States is the most influential country in international politics, its participation is crucial to the success of any multilateral endeavor. In order to reveal the conditions for treaty support, my aim is to answer the following question: Why does the United States join some multilateral treaties while rejecting others? The question may appear simple enough, but as I show below, the answer touches on a wide range of issues that are hotly contested in the debate on US unilateralism. Formulating the question in this way makes the variance in US behavior the central puzzle of the study and requires the consideration of both treaty participation and rejection cases. Such an approach has many benefits and distinguishes this analysis from others that focus only on agreements Washington refuses to join. Answering why the United States participates in some agreements but not in others also sheds light on a challenge with important policy implications: under what conditions is American support for a treaty obtainable? My argument, in a nutshell, is that the causes of Washington’s reluctance to enter legally binding international agreements lie first and foremost in its domestic institutions. The unique features of the American political system – in particular, but not limited to, the powerful role of the US Senate with regard to treaty ratification – create an exceptionally high number of veto players in the treaty process. These conditions result in high barriers at the institutional level that explain why nonparticipation is the norm. Given these structural obstacles, the real puzzle is not why the United States does not support more treaties, but rather how it manages to join any binding international treaties at all. This book is a contribution to an ongoing debate. A number of scholars note the ambivalent relationship between the United States and 1 international institutions. In particular, the controversial policies of

The United States and Multilateral Treaties

3

George W. Bush’s presidency garnered a great deal of attention around the world. Scholars point to a number of reasons for the nature of US policies, including the powerful position of the United States in the international system and a particular culture of American exceptionalism. I argue that these explanations are less convincing than one that puts domestic politics at the center of the analysis. This becomes clear if one looks at US policies toward multilateral treaties in a more systematic way than that taken by the research conducted thus far. The existing literature on the relationship between the United States and international institutions looks at a broad range of issues. It covers everything from the US approach to specialized UN agencies to the unilateral use of force, making the comparison of US policies in different situations nearly impossible. There is a fundamental gap with regard to scale. On the one hand, a great number of case studies address US policy with regard to a specific institution. These case studies are insightful and detailed, but they mostly rely on highly contingent, ad hoc explanations of US behavior. While interesting empirically, these accounts provide little basis for generalizations. On the other hand, a number of survey studies and tours d’ horizon of US behavior with regard to international institutions have also been conducted. Because of the high level of aggregation, there are natural limitations to these 2 analyses. This book aims at the middle ground between the two ends of the spectrum, the single case studies and macro surveys. By comparing a small number of cases with varying outcomes in a systematic manner, I attempt to bridge the gap between the results of single case studies that have not been tested beyond their specific circumstances, and overgeneralizations that provide little insight into the reasons for individual policy outcomes. A central component of my work is integrating the diverse explanations that have been proposed into a coherent theoretical framework and then applying them to a clearly delimited universe of empirical situations. This enables me to systematically test prevalent explanations and specify the conditions for their validity, laying the groundwork for further cumulative theorizing. The first step in a meaningful comparison is to define the scope of the phenomenon under investigation. This is often a problem with works that investigate “multilateralism” in such different dimensions as US regional policy, its relationship with specific international organizations, or policies in a given issue area, such as trade. These are all different phenomena resting on different understandings of multilateralism. The same is true for different policies often referred to as “unilateralist,”

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The United States and Multilateral Treaties: A Policy Puzzle

such as the use of force without approval from allies, non-compliance with international humanitarian law, or opposition to international treaties. These policies do not necessarily have the same causes. Each of these types of unilateral behavior can occur individually without affecting the other two types. To illustrate, comparing the Bush and Obama administrations on the unilateral use of force might yield different results than comparing their compliance with international humanitarian law or their policy toward multilateral agreements would. Thus the different types of behavior cannot easily be compared with each other, and they have to be studied separately to allow for any kind of systematic inquiry. Referring to all three types of behavior as unilateralism obfuscates important differences. I chose to concentrate on US treaty behavior, which is well suited for systematic comparison due to the formalized nature of treaties and the standardized character of their negotiations. In this book I use a qualitative definition of the term “multilateral.” Under a broad numerical definition, “multilateral” refers to any type of coordinated action between three or more parties, as opposed to unilateral action or bilateral coordination. A qualitative or substantive definition is more demanding with respect to the nature of this coordination. According to John Ruggie (1992: 571), multilateralism refers to “institutional form which coordinates relations among three or 3 more states on the basis of ‘generalized’ principles of conduct.” In the strictest sense, this means that the same rules should apply to all participants. Ruggie’s other criteria of “diffuse reciprocity” and “indivisibility” also imply that true multilateralism is not exclusive, but open to all parties willing to participate. Such a restrictive qualitative understanding excludes certain regional arrangements like the North American Treaty Organization (NATO) or the European Union (EU), and forums like the Group of Eight (G8). It applies most accurately to global treaties. US Policy toward Multilateral Treaties in Context

American reluctance to enter binding international treaties is widely recognized in the literature on the subject. Yet systematic overviews of US treaty practice or quantitative assessments are rare. Since a number of organizations serve as depositary agencies, there is no single database that includes all treaties, making it difficult to compile quantitative data. The Minnesota-based Institute of Agricultural and Trade Policy (IATP) has combined a number of sources and compiled a list of 550 treaties that are relevant to the United States, of which it has ratified 160 treaties

The United States and Multilateral Treaties

5

4

– just under 30 percent. This figure is a useful first approximation, but by counting the formal treaty actions, we learn little about the scope and significance of each one. How do we assess the relative importance of a technical agreement on compatibility standards in the telecommunications sector compared to the WTO treaty, which requires states to give up substantial aspects of their sovereignty? And should additional protocols – which are technically separate treaty actions – be assigned the same weight as the treaty they complement? The IATP (2005: 26) has addressed these difficulties by selecting 43 treaties in five issue areas based on “a high public profile, timeliness and socioeconomic importance.” The following table provides an overview of American participation in those 43 treaties: Table 1.1 5

Significant Treaties

Significant Treaties the US has joined

Rule of Law

1

0

Labor Rights

8

2

Human Rights

15

6

Environment and Sustainable Development

11

3

Peace and Security

8

4

Issue Area

Data Source IATP (2005: 27-28)

The IATP report (24) also notes that the United States “tends to be more supportive of treaties that expand a country’s access to commercial resources and foster trade.” Defining which treaties are to be considered “important”, of course, fundamentally depends on the research interest. Focusing just on treaties with high levels of international support, Nico Krisch emphasizes the exceptional nature of the United States’ failure to participate. Krisch looks at treaties deposited with the UN SecretaryGeneral that more than half of the world’s states have ratified. This is true for 38 treaties, of which the United States has ratified 24. The US

6

The United States and Multilateral Treaties: A Policy Puzzle

ratio of ratification is 63 percent, compared to a 76 percent global average and 93 percent among the G8 countries. To further highlight the exceptional nature of US reluctance, observers frequently refer to treaties with near-universal membership, pointing out the company the United States keeps by refusing to join. A favorite example is the Convention on the Rights of the Child, which, besides the United States, only Somalia has not acceded to. Another frequent practice is to list prominent treaties that the United States has not ratified or has rejected. Among the agreements often 6 referred to are : • • • • • • • • • • • • • •

the Kyoto Protocol Against Climate Change the Ottawa Convention Against Anti-Personnel Mines the Rome Statute for the International Criminal Court (ICC) the Comprehensive Test Ban Treaty (CTBT) the Verification Protocol to the Bacteriological (Biological) and Toxin Weapons Convention (BWC) the Program of Action Against the Illicit Trade in Small Arms and Light Weapons (SALW) the Anti-Ballistic Missile (ABM) Treaty the Convention on the Rights of the Child (CRC) the International Covenant on Economic, Social and Cultural Rights (ICESCR) the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) the Convention on the Law of the Sea (UNCLOS) the Convention on Biodiversity the Vienna Convention on the Law of Treaties the UN Convention on the Rights of Persons with Disabilities (CRPD)

Besides the outright refusal to join agreements, many authors point to the long delays between signing a treaty and joining it by ratification (Krisch 2003: 47). In one extreme example, the Genocide Convention, the process took 40 years (Power 2000). The United Nations General Assembly adopted the convention and President Truman signed it in 1949, but the Senate did not ratify it until 1986. Congress did not pass implementing legislation until 1988, and the following year the treaty finally took effect for the United States. Also important in this context is the Washington’s extensive use of reservations, understandings, and declarations – often referred to as RUDs (Chayes 2008; Krisch 2003: 59; Roth 2000). The Senate has a

The United States and Multilateral Treaties

7

long history of using reservations to limit the effects of a treaty on US policies. Lewis Henkin (1995) observes that, in the context of human rights conventions, the reservations serve five main purposes: to ensure the supremacy of the US Constitution in cases of conflict; to prevent treaties from changing existing US law and practice; to deny the International Court of Justice jurisdiction over US action; to ensure compatibility with American federalism; and to declare treaties not “self-executing,” i.e., to require implementing legislation before a treaty 7 can take effect under US law and be applied by American courts. Ever since the ratification of the Genocide Convention, the US Senate has routinely included a condition declaring the treaty not to be selfexecuting in the resolution of ratification (Krisch 2003: 61). This practice vindicates the position of Senator Bricker, who unsuccessfully pushed for a constitutional amendment prohibiting self-executing treaties in the 1950s, the so-called Bricker amendment (see Henkin 1995: 348-349). Kenneth Roth highlights the fact that US practice with regard to human rights treaties effectively denies US citizens any human rights beyond the ones they already enjoy under US law (Roth 2000). Research Design

The existing literature and the brief empirical survey of US treaty practice confirm the United States’ reluctance to enter multilateral treaties. In light of this observation, the approach of most studies on the subject is somewhat paradoxical: expecting a more consistent US engagement in international institutions, many authors focus on explaining why the United States does not participate in certain institutions or treaties. This creates a certain bias towards examples of American nonparticipation in the more detailed case studies. From a normative standpoint, US reluctance to enter treaties may be puzzling. From a strictly empirical perspective, however, nonparticipation is the norm. More often than not, Washington refuses to commit to multilateral treaties, whether through outright rejection, failure to ratify a treaty, or the inclusion of reservations limiting the effect of a treaty on US policy. Viewed from this perspective, the treaties that the United States ratified are at least as interesting as the ones it rejected. Looking at the exception of treaty participation can tell us more about the rule of nonparticipation. If we take this into account, the interesting question turns into the following: Under what conditions is the United States willing to join binding multilateral treaties? This question is still compatible with a normative preference for multilateral policies, but is sounder methodologically.

8

The United States and Multilateral Treaties: A Policy Puzzle

To understand US policies toward multilateral treaties, it is necessary to include both cases of participation and nonparticipation. To put it in methodological terms, to avoid selection bias it is necessary to ensure variance of the dependent variable. This rationale is key to formulating my central research question in a way that makes the variance in US behavior the central puzzle. The question (why does the United States participate in some multilateral treaties, while rejecting others?) allows me to avoid normative and theoretical biases. I analyze the behavior of the US government both in the negotiating phase and – if the treaty is supported by the executive – throughout the process of ratification. This excludes the issue of compliance. In general, US compliance with legal obligations is comparatively high. In contrast to some other states that join treaties, even if they have no intention of complying, the United States only makes legal commitments it intends to keep (Chayes 2008: 48; Koh 2003: 1884). Methodology

My main research interest is empirical: my goal is to explain a particular aspect of American foreign policy, namely its participation or nonparticipation in multilateral treaties. To approach the research question I draw on International Relations theory, including the realist, liberal, and constructivist schools with a focus on foreign policy analysis (FPA), as well as more policy-oriented literature. I further elaborate the theoretical foundation and how I construct testable hypotheses in the next chapter. Generally speaking, I depart from prevalent explanations in the literature about US multilateralism. On the basis of a theoretical discussion, I reformulate these explanations as hypotheses that can be systematically tested across cases. This is not intended as a theory test in the strict sense. I do not try to evaluate theoretical assumptions on the basis of their general validity or accuracy, but investigate which theories are useful for explaining American policies. In order to test these hypotheses, I use comparative qualitative case studies. In particular, I analyze US policies with regard to four multilateral treaties: the Chemical Weapons Convention, the Landmine Treaty, the Torture Convention, and the Rome Statute establishing the International Criminal Court. My analysis is based on the method of structured, focused comparison, most prominently elaborated by Alexander George and Andrew Bennett (2005). The central feature of the method is to approach each individual case study with a set of standardized questions, which are derived from my theoretical assumptions. This ensures the comparability of the empirical results and

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facilitates claims about the possibility for generalization. A qualitative research design only allows for the analysis of a limited number of cases. To minimize the problem of selection bias, I select cases based on the dependent variable, purposefully trying to include the broadest range of outcomes possible. To further compensate for the small number of cases, I increase the number of observations by selecting treaties that display a certain degree of in-case variance. This is a necessary feature, because when a great number of potential explanatory variables are present, it is not possible to identify the relevant causal mechanisms based on the small number of cases alone. By including comparisons across time as well as across cases, the number of observations is greatly increased. A historical account relying on process tracing allows me to factor in in-case variance and to identify causal chains that led to the observed outcome (Collier 2011). A wide variety of written documents provide the material basis for the empirical analysis. I draw on existing accounts of US policy, including some detailed investigations and witness accounts from actors involved in the process. I also review the relevant news coverage, with special attention given to The New York Times and The Washington 8 Post. I place particular emphasis on primary sources, such as statements from government officials, legislative records, and other kinds of available documentation. With respect to the United States’ position in the negotiation of the Convention Against Torture, on which there is relatively little information in the public domain, I reviewed cable communications between the State Department and the US mission at the United Nations in Geneva, which I obtained through a Freedom of Information Act (FOIA) request. In addition, I conducted selected interviews with experts and persons involved in the process of negotiation and ratification of these agreements. The interviews are intended to supplement the analysis of the written documentation and to fill gaps in the literature. Case Selection

The case selection reflects four main considerations. The first criterion is to maximize variance on the dependent variable. Second, the number of independent variables should be limited to ensure comparability. Third, the cases chosen represent a hard test for the research interest of American participation in multilateral agreements. Finally, all four cases are of general relevance: They have received a high degree of public attention and scholarly interest; they are central to the relations of the

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The United States and Multilateral Treaties: A Policy Puzzle

United States with other countries; and the substantive issues they regulate continue to be important for policy. The four treaties chosen as case studies are: • • • •

The Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (CWC) Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (Landmine Treaty) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention or CAT) The Rome Statute establishing the International Criminal Court (ICC)

In accordance with my research design, the most important criterion for the case selection is variance on the dependent variable. The emphasis on variance – my main tool for avoiding selection bias – works on several levels. The most basic level is the binary distinction between participation and nonparticipation: I include one case of each outcome in the respective issue areas. Table 1.2 US Policy

US Party to the Treaty

US not Party to the Treaty

Arms Control and Disarmament

Chemical Weapons Convention

Landmine Treaty

Human Rights and Humanitarian Law

Convention Against Torture

International Criminal Court

Issue Area

The United States ratified the Chemical Weapons Convention in 1997. In the case of the Convention Against Torture, the Senate passed the resolution of ratification in 1990, but the instrument of ratification wasn’t deposited with the UN until 1994, after the United States had passed implementing legislation that made torture a criminal offense

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under domestic law. The Landmine Treaty and the International Criminal Court were rejected. Beyond the binary distinction between participation and nonparticipation, it is possible to distinguish between different degrees of support and resistance, which further increases variance. If the United States is party to a treaty, it is important to look at the specific conditions of that participation. As mentioned above, Washington regularly attaches conditions in the form of reservations, understandings, and declarations to the instruments of ratification. This occurred with both the Chemical Weapons Convention and the Torture Convention. Looking at the exact nature of the conditions allows for distinguishing between different degrees of support. In cases of nonparticipation, we can also distinguish between different degrees of opposition. In the case of the Landmine Treaty, the United States remained outside of the regime, but did not actively oppose it. In contrast, the US government has at times actively tried to undermine the ICC. These different types of behavior add to the puzzle and increase the range of variance on the dependent variable. Another way to increase variance is to take into account the evolution of US policy over time. Analyzing cross-temporal variance can complement cross-case variance. In all four cases, there was some degree of variance over time. The policy toward the Chemical Weapons Convention and the International Criminal Court reveal some important turning points, while the evolution in the policy of the Landmine Treaty and the Torture Convention was more subtle. Since the cross-case comparison will be complemented by process tracing, this temporal variance is also part of the analysis. The second criterion for my case selection is the aim of ensuring comparability by keeping certain context variables constant. This is necessary to be able to isolate potential causal factors from the complex empirical evidence. The present study is also limited to two issue areas. Going beyond a single issue area allows me to investigate whether similarities or differences prevail with regard to different policy areas. The focus on security and human rights is a deliberate one. Trade agreements and environmental agreements are often adopted as executive agreements, not as treaties. To what degree some of the findings can be generalized beyond the issue areas studied here, for example, to environmental or trade agreements, will be addressed in the conclusion. From a greater historical perspective, the treaties are also products of roughly the same era, although the period under consideration from the late 1970s to 2008 does encompass a certain degree of variance. On the international level, important historical events such as the end of the Cold War and the terrorist attacks of

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The United States and Multilateral Treaties: A Policy Puzzle

11 September 2001 took place during that time, allowing for discussion of whether or not they constituted turning points for the subject at hand. In contrast, there is considerable variance on the domestic level during the period under consideration. This study spans ten administrations and six presidents from both parties, as well as changing majorities in Congress and the corresponding combinations of unified and divided government. Excluded from my analysis are institutions that grant the United States a special status or obvious privileges over other participants. Such institutions are not uncommon: The United Nations Security Council grants the permanent members a veto power; the Nuclear NonProliferation Treaty distinguishes between the rights of nuclear powers and the rest; and financial institutions like the International Monetary Fund or the World Bank assign weighted voting rights. The cases of this study, in contrast, are treaties in which all participants have the same rights and obligations. They are also open to all interested states. Their institutional design therefore complies with the highest standard of multilateralism. This restriction serves two purposes at once. First, it ensures comparability. It would be problematic to compare US participation in treaties where it enjoys privileges with those where it does not. Second, limiting the sample to treaties treating all participants equally ensures that all cases are tough tests for the research question, detailing under which conditions the United States is willing to join multilateral agreements. The literature suggests that the United States often uses multilateral institutions to exert influence over others, while at the same time seeking to exempt its own policies from any restrictions. The selection of treaties that do not grant privileges excludes such cases. The requirement that the cases represent a tough test for the central research question is the third major criterion for case selection. Recognizing this and being mindful of the circumstances under which the United States is willing to commit to treaties, I have adopted definitions that set the standard for US participation in multilateral treaties at a high level. The four agreements selected also constitute hard cases in terms of the issue areas concerned. Two of these cases are usually classified as arms control and disarmament treaties, and two are treaties concerning human rights and humanitarian law. Arms control and disarmament are considered part of national security policy. As such, they fall into the realm of “high politics” where states are reluctant to make concessions or cede any of their control to international mechanisms. Human rights is generally considered a “softer” issue that is not as integral to national security, in other words “low politics.”

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However, as the literature review and the empirical overview have shown, the United States has historically had a conflicted attitude toward international human rights treaties. All four treaties have received a great deal of public attention. They are considered relevant not only in a historical sense, but also because of their implications for the present and the future. This means that studying them is not uncharted territory. But even though previous studies exist, especially on the ICC and the Ottawa Convention, they have not been systematically compared. It is important to point out that I focus on multilateral treaties. In contrast to the terms “institution” or “regime,” which can refer to both formal and informal rules and standards of behavior, the term “treaty” applies only to formalized agreements that are binding under 9 international law. Furthermore, in the American domestic context the term “treaty” has specific implications for the process of ratification. The US system recognizes three types of agreements: executive 10 agreements, executive-congressional agreements, and treaties. While all three are binding under international law, treaties have the most demanding ratification process, based on Article II of the US 11 Constitution. All four cases in this study are treaties in both the international sense and the US sense of the word. Therefore, unless specified otherwise, I use the generic term “agreement” and “treaty” interchangeably. Nevertheless, it is important to keep the distinction between the different approval processes in mind. The unique American constitutional process of ratifying treaties is crucial to my argument, and it should be kept in mind that some aspects of my explanations apply only to agreements that are explicitly treated as “Article II” treaties in the US. Outline of the Book

The next chapter outlines the theoretical framework, in which potential explanations for US behavior from each theoretical paradigm are addressed. In some cases, certain explanations can be dismissed a priori, either because a quick survey reveals that the empirical evidence is not compatible with the theoretical expectations or because the theory fails to consider the variance in US policies. Explanations that withstand this initial scrutiny are transformed into hypotheses that are tested in the subsequent case studies. The four case studies are analyzed in four chapters that constitute the core of the book. Each of these chapters is structured roughly in the same manner. After providing some background and context, I describe

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The United States and Multilateral Treaties: A Policy Puzzle

each treaty and analyze how it restricts US autonomy. Next I use process tracing to investigate how the decision on each agreement was made. The theoretical premises laid out in the theory chapter inform the research questions I employ to interrogate the empirical data. However, I also take into account factors which are not predicted by theoretical assumptions. I present the results of my process analysis in the form of a thick description of events, highlighting factors that made a difference in the outcome. Each case ends with a summary of the findings. With each case study, I introduce additional aspects to the analysis. I start with the more clear-cut cases: the International Criminal Court that met strong resistance among policy makers, and the Torture Convention that enjoyed widespread support. I then move on to the two cases in which the decisions are less clear-cut, adding layers to the explanations that provide a more complete picture, which is applicable to a broader range of situations. In the final chapter, I examine the empirical results of the case studies in comparison. I also attempt to answer the question of to what degree the findings are applicable to agreements beyond these examined here and discuss their policy implications.

Notes 1

Leaving aside the definitional intricacies of the more specialized literature, I use the terms institution and regime interchangeably to refer to “sets of rules meant to govern international behavior.” (Simmons and Martin 2002: 192-194, definition: 194). The degree of formalization of institutions can range from informal understandings and expectations about behavior to formal organizations with resources, staff, and a secretariat. The term encompasses but is not limited to multilateral treaties, which I define below. 2 Typical topics of overviews include the United States and international law (Byers 2000; Byers and Nolte 2003; Krisch 2003, 2005; Slaughter 2003), the United States and the United Nations (Luck 1999, 2002, 2003), or American exceptionalism and human rights (Forsythe 1988, 1995; Ignatieff 2005). There are a few notable contributions that also take a more systematic approach: regarding US unilateralism see Skidmore (2011); regarding the opportunity cost of treaty ratification see Kelley and Pevehouse (2015); on human rights see Kaufman (1990) and Moravcsik (2005); on arms control see Krepon and Caldwell (1991) and Krepon et al. (1997); on “moral” regimes initiated by civil society see Busby (2010); on European reactions to US treaty policies see Fehl (2012) and Mowle (2004). 3 The noun “multilateralism” generally encompasses both multilateral practice and a normative predisposition toward multilateral policies. In the adjective form, the two meanings can be distinguished by using “multilateral” to refer to practice and “multilateralist” to describe a policy preference. I use

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multilateralist to refer to a favorable attitude toward participation in multilateral treaties and to a preference for multilateral principles in the substance of the treaty (see Fehl and Thimm 2008). 4 The IATP has included treaties deposited with the United Nations, its specialized agencies and the International Committee of the Red Cross, as of 2004. In particular the records consulted are the UN Treaty Collection; the Database of International Labor Standards (ILODEX); the World Intellectual Property Organization (WIPO); the UN Food and Agriculture Organization (FAO); the United Nations Department for Disarmament Affairs (DDA); the UN Office on Drugs and Crime (ODC); the International Committee of the Red Cross (ICRC); it also included the Anti-Ballistic Missile (ABM) Treaty, a bilateral treaty deposited with the US government. It has reviewed a total of 854 treaties and concluded that 550 of those are still active and relevant to the United States. 5 The International Criminal Court, which also contains elements of the Rule of Law and Human Rights, is categorized as Peace and Security. 6 Borroughs, Deller, and Makhijani (2003); Chayes (2008); Ikenberry (2003); Institute for Agriculture and Trade Policy (2005); Krisch (2003); Malone (2003); Skidmore (2005). 7 Under the so-called supremacy clause in Article VI, Paragraph 2, of the US Constitution, treaties “shall be the supreme Law of the Land.” Unlike in some countries, US jurisprudence does not consider treaties superior to the constitution. The exact status of treaties in relation to US law remains controversial. Litigation has established certain principles with regard to resolving conflicts between domestic law and treaty law, such as the “Later-inTime” principle. But the exact relationship between treaties and federal and state law remains contested, and is subject to litigation on a case-by-case basis (see Franck et al. 2008: 343-611). 8 Systematic searches on the relevant subjects in both newspapers were conducted using Lexis-Nexis. 9 See Article 2 of the 1969 Vienna Convention on the Law of Treaties, available at http://legal.un.org. 10 Executive agreements are approved by the president in his capacity as chief diplomat, executive-congressional agreements are approved under the same procedure as domestic legislation (simple majority in both houses and approval by the president), and treaties under the treaty clause of the US Constitution are ratified by the president and two thirds of the Senate (Hathaway 2008). 11 There are no clear rules defining how an agreement is classified (for some guidelines see Garcia 2015: 9). The general assumption is that the most important international agreements should be ratified under the treaty process. However, the executive has increasingly relied on executive agreements to avoid the obstacle of the requirement of Senate advice and consent. There are some trends: Bilateral agreements are adopted more often as executive agreements than multilateral agreements are. Arms control and human rights agreements are usually ratified under the treaty clause. But in some issue areas, such as trade and environmental regulation, the criteria for the adoption of one process or the other are not transparent (see Hathaway 2008).

2 It’s All About Domestic Politics

The United States is an outlier among western democracies in its reluctance to enter multilateral treaties. The survey in the introduction showed that the United States has not ratified a significant number of important treaties that enjoy nearly universal support among other democratic countries. Yet the United States does ratify some treaties. A good explanation of American behavior toward multilateral agreements should be able to account for both observations: the general reluctance to enter binding treaties, as well as the fact that there is nonetheless some variance in the United States’ willingness to participate in treaties. The empirical puzzle of this study is twofold: Why does the United States join some multilateral treaties while rejecting others? And why is the US so reluctant to join global multilateral treaties? The prevalent explanations for American unilateralism or, more neutrally, American ambivalence towards multilateral agreements, can be roughly grouped into three categories: structural explanations, cultural explanations, and explanations based on domestic factors (see Patrick 2002: 7). Broad surveys of American behavior or grand strategy tend to be dominated by structural explanations based on the United States’ position as the only remaining superpower or by cultural explanations invoking the concept of American exceptionalism. Explanations focusing on domestic politics appear to be more prominent in single-case studies. These three perspectives correspond roughly with the major schools of International Relations theory, according to which factor carries the most explanatory weight in each approach. Realism focuses on the distribution of power in the international system; social constructivism analyzes cultural factors, such as identity and norms; and liberalism relies on domestic politics to explain state behavior.1 This study is not intended to test these theories. Instead, I combine the different theoretical perspectives to highlight certain factors that might be

17

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The United States and Multilateral Treaties: A Policy Puzzle

relevant for explaining the puzzle. With this goal in mind, I discuss each of the theoretical approaches in turn. Structural Explanations of US Policy

Over the past decade or so, it has become increasingly common to suggest a connection between US power and its unilateral behavior. Robert Kagan (2002) famously refers to multilateralism as a “strategy of weakness.” Robert Jervis (2003: 84) claims: The forceful and unilateral exercise of US power is not simply the byproduct of September 11, the Bush administration, or some shadowy neoconservative cabal – it is the logical outcome of the current unrivaled US position in the international system.”

And Max Boot (2002) concluded: “Any nation with so much power always will be tempted to go it alone. Power breeds unilateralism. It’s as simple as that.” Beyond such categorical statements, International Relations scholars continue to wrestle with the question of what consequences America’s current position of primacy has on its foreign policy decisions. The concept of power has long been central to the study of world politics. In the International Relations scholarship of the last decades, structural approaches focusing on the distribution of power in the international system and its influence on policy outcomes have been dominant. The attractiveness of the structural approach lies in its parsimony. If much of what happens in international politics can be plausibly explained by the distribution of capabilities among states, we do not need to consider the unique features of their cultures or domestic political institutions. A structural approach not only makes the analyst’s life easier, it can also be generalized to a greater extent across countries with different characteristics. Because of its parsimony and generalizability, a structural analysis is a useful starting point for examining potential answers to our puzzle. Does Unipolarity lead to Unilateralism?

There is considerable agreement about the nature of American primacy. A number of scholars have observed that, at the present moment, US primacy is so pronounced as to constitute unipolarity (Brooks and Wohlforth 2002; Ikenberry 2002; Ikenberry 2011; Jervis 2009; Krauthammer 1990; Kristol and Kagan 1996; Layne 1993; Reus-Smit 2004; Wohlforth 1999). In the introduction of a World Politics issue

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dedicated to unipolarity, its editors declare (Ikenberry et al. 2009: 1): “No other great power has enjoyed such advantages in material capabilities – military, economic, technological, and geographical. Other states rival the United States in one area or another, but the multifaceted character of American power places it in a category of its own.”2 The United States currently holds a degree of power that shapes the international system as a whole, a situation that is unprecedented in modern history. The historical norm has been several great powers competing in a multipolar world, with shifting alliances and periodical outbreaks of violent conflict. The rivalry between the United States and the Soviet Union during the Cold War represented another unique configuration of power: bipolarity. Today, the United States is the predominant power in a world that can be described as unipolar. Since this situation has been so rare, a theory of unipolarity is only beginning to emerge (Jervis 2009). Kenneth Waltz, who made the international distribution of power the centerpiece of his structural realism, does not claim that his theory of international politics could explain the behavior of individual states. Building on Waltz, other scholars have applied structural realism as a foreign policy theory (Rose 1998; Schweller and Priess 1997), but it is not easy to deduce lessons about the behavior of the dominant power in an international system characterized by unipolarity. Structural realism tells us more about the strategies of lesser states, for example, that they have to choose between bandwagoning and balancing in their relations with more powerful states. But it is short on predictions for the unipole, partly because strict adherents of Kenneth Waltz’ balance-of-power theory regard unipolarity itself as an elusive phenomenon. It will inevitably be replaced by multipolarity after a brief period, since weaker powers will eventually balance against a dominant power (Layne 1993). According to this view, such a transition will happen regardless of the behavior of the dominant state. All the dominant power can do is try to manage the transition and retreat gracefully (see Dembinski 2002: 8-13). Whether managing the transition implies unilateral or multilateral strategies, however, is not specified by Waltzians. With the primacy of the United States in its third decade after the end of the Cold War, more systematic thinking regarding the implications of a unipolar structure is emerging. One frequent illustration is the analogy of Gulliver and the Lilliputians. Like the small inhabitants of Lilliput, weak states use multilateral agreements and international law to tie down the Gulliver that is the dominant state (Ikenberry 2003: 534; Nye 2002: 158; Shepard 2000). The basic premise of the argument is that states are reluctant to become involved in

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The United States and Multilateral Treaties: A Policy Puzzle

multilateral institutions that place constraints on their freedom of action. Because powerful states have a greater range of policy options at their disposal, they are more constrained by multilateral institutions than weak states. Weak states, in turn, have an active interest in constraining more powerful states through multilateral mechanisms, because they cannot influence the powerful through bilateral means. According to this logic, the incentive to join any kind of multilateral effort is weakest for the United States as the only remaining superpower, because it has the most to lose from binding itself to common rules (Ignatieff 2005a: 12). However, avoiding constraints is not the only viable strategy for the dominant state. Washington has pursued a different course of action in the past. After the Second World War, the United States was in a position at the top of the international pecking order, not unlike today. But instead of avoiding potential constraints, it did just the opposite. By creating the United Nations system and the Bretton Woods institutions, it laid the foundation for today’s multilateral order. US leaders were convinced that the country had more to gain from drafting universal principles in order to avoid future war and conducting its foreign policy according to some of the same rules it demanded from others (Patrick 2009). Drawing on Hegemonic Stability Theory, a number of scholars have argued that, in the long run, it might serve the interests of the dominant state to voluntarily give up some of its freedom of action and bind itself to certain rules (Ikenberry 2002, 2011; Nye 2002).3 The reasoning is that such “benign hegemony” would provoke less resistance from others than dominance solely based on coercion, and would discourage other states from challenging the hegemon’s primacy.4 This will lower the costs of maintaining a position of primacy, helping the hegemon to remain dominant in the long term. Since there are viable alternatives to unilateral policies, the connection between unipolarity and unilateralism is, in Ikenberry’s (2011: 121) words, “not causally tight.” Power alone does not select for unilateral behavior. Instead, two competing hypotheses can be deduced from unipolarity. Dominant states choose to maximize their short-term benefits against the will of others or they can lead in the interest of longterm stability (Ikenberry et al. 2009). Some realists disagree. Robert Jervis (2009) argues that powerful states will give in to the temptation to use their power for short-term gain and break the rules sooner or later. But even Jervis fails to provide a clear causal mechanism for why this has to be the case. Instead, Jervis points to Thucydides’ “Melian Dialogue,” in which the Athenians conclude “that it is a general and necessary law of nature to rule whenever one can” (cited in Jervis 2009: 198). However, this argument is not purely structural. The supposed

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“general and necessary law” rests instead on a debatable claim about human nature integral to classical realism in the tradition of Thucydides and Morgenthau. According to Jervis’ logic, unipolarity provides the conditions for a selfish human nature to come to the fore. But without human nature as part of the puzzle, nothing inherent in a unipolar structure inevitably leads to unilateral behavior. The discussion so far leads me to conclude that unipolarity can be seen as a necessary but not sufficient condition for unilateral policies. According to the theory the structure of the international system itself is indeterminate with regard to unilateral and multilateral behavior. Structural realism offers insights about the behavior of states when their options are constrained by structural factors. However, the more powerful – and less constrained – a state is, the less its policies can be explained by structural factors. There is another difficulty with the structural argument in its pure form: It cannot explain the variance in US behavior in practice. Even though the United States is more reluctant to enter binding multilateral treaties than other Western democracies, it does participate in some agreements. Since the United States made the final decision whether or not to ratify each of the four agreements that are part of this study under conditions of unipolarity, structural factors alone cannot account for this variation. This does not mean that we have to throw out the idea that the United States tries to avoid constraints altogether. It does mean, however, that we have to modify the structural argument so that it can account for this variation. Shifting the Focus: How Do Treaties Affect the Unipole’s Power?

One possibility is to look more closely at the nature of the agreements in question. Shirley Scott (2004: 81-82) argues that US policy with regard to international law is best understood in terms of realpolitik: “Treaty negotiations can be viewed as an opportunity to improve a state’s relative power in a given issue area.” This view echoes arguments whereby dominant states instrumentalize international law to advance their hegemonic goals (Krisch 2003, 2005). It is precisely because institutions do affect the behavior of states, that the powerful are interested in shaping them. This basic argument is compatible with all stripes of realism. Classical realists would phrase it in the language of realpolitik and the struggle for power. Neorealists would speak in terms of relative gains (Grieco 1988). The basic idea is simple: The United States only participates in multilateral treaties that increase its relative power.

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The United States and Multilateral Treaties: A Policy Puzzle

If we want to argue that the United States selects agreements on the basis of how they affect its relative power, the independent variable changes from the relative capabilities of the United States to the distributional effects of the respective agreements (Koremenos et al. 2001). The difficulty lies in assessing the effects an agreement has on relative US power. Weighing relative power remains tricky, even as the concept of power has gradually shifted from one of material resources to one of influence or control. One basic definition is that power refers to the ability of actor A to cause actor B to do something that B would not have done otherwise (Baldwin 2002: 177). This implies that the flipside of power is autonomy, or the ability to act without interference. If A’s influence over B increases, then B’s autonomy declines. According to Baumann et al. (2001: 41), states “strive for both influence and autonomy and power is a precondition for both.” If this is the case, multilateral treaties that, following Ruggie’s (1992) definition, are based on generalized principles of conduct and diffuse reciprocity have paradoxical effects on power. An increase in influence over the behavior of other participants comes at a loss in autonomy. In order to assess an agreement’s effects on power, it is necessary to prioritize influence and autonomy. It is tempting to decide on an ad hoc basis if influence or autonomy is more important in a given issue area. In some cases, such an assessment may be plausible. If we compare the Genocide Convention with the Kyoto Protocol on Climate Change, for example, resorting to the de facto effect of autonomy makes sense: A restriction of US autonomy to commit genocide makes little difference in practice, but a cap on greenhouse gas emissions requires substantial changes in US industrial and energy policy, thus leading to real losses in autonomy. Other treaties can also be analyzed by weighing the losses of autonomy against the benefits of gaining influence over the behavior of other countries. This underlying rationale is in line with a classical realist understanding of national interest. It would look at the national interest primarily in terms of power, but also factor in issue-specific preferences. However, such an approach poses the risk of a circular argument. Who can say whether the benefits of combating global climate change are worth the losses in autonomy that come with signing on to the Kyoto treaty? It is easy to conclude that US failure to join a treaty must be due to the fact that the corresponding loss of autonomy would be too great. Conversely it follows that when the United States joins a treaty, it must be because it deemed the goal of the treaty, and the influence necessary to achieve it, more important than the corresponding loss of autonomy. Such ex-post rationalization of observed behavior does not constitute a

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convincing explanation. When the policy we want to explain (participation in an agreement) is used as an indicator for the willingness of the United States to give up autonomy in the respective issue area, we have a perfect tautology. Such arguments are not uncommon. Consider the following statement by Shirley Scott, who argues that US policies with regard to international law are best explained by realpolitik (Scott 2004: 83): This extension of Morgenthau’s thinking on the behaviour of states to encompass actions in relation to international law-making would lead one to expect that the United States would monitor closely the evolution of international law and institutions and participate only if and when it appeared to be in its policy interests to do so.

How would we falsify this statement? To avoid falling into the tautology trap, it would be necessary to assess the expected utility of accepting limits on autonomy in a given issue area independently of the US behavior observed. However, such an evaluation is always contested. As the following case studies show, there is generally no agreement among decision-makers about whether the benefits of a treaty outweigh the costs. Competing claims about the advantages and disadvantages are part of any political debate. Using such assessments as an ex-post explanation of US behavior is highly problematic. Focusing on Autonomy

A more promising approach is to use more formal criteria to evaluate the autonomy costs of an agreement. This requires prioritizing ex ante between influence and autonomy. Harknett and Yalcin (2012) argue that, from a strictly structural perspective, autonomy is a more fundamental motivation of state behavior than maximizing power and security. Even without subscribing to their sweeping claim, it is plausible to hypothesize that autonomy is the most crucial concern for states powerful enough to feel safe in terms of their security. Returning to the Gulliver analogy, powerful states are more affected by the constraints imposed by a treaty than by the benefits of increased regulation. The reasoning is that their military and economic power grants them considerable influence over the behavior of other states even in the absence of new treaties. In other words, their concern for autonomy costs outweighs their expected gains of increased influence.

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The United States and Multilateral Treaties: A Policy Puzzle

Focusing on the autonomy costs of treaties has the additional advantage of allowing us to assess whether the nature of multilateral agreements factor into US reluctance. A number of scholars have suggested that the unilateralist turn in US policies is not the result of a change of behavior on the side of the United States, but rather due to the changing nature of multilateral agreements, a phenomenon sometimes referred to as “new multilateralism” (Axworthy 1998; Bolton 2000a; Davenport 2002; Dolan and Hunt 1998; Ikenberry 2003). The literature on new multilateralism claims that non-state actors, such as nongovernmental organizations and transnational advocacy networks, have played a more active role in devising international treaties, pressuring states to negotiate agreements with stronger commitments. This has resulted in more far-reaching and ambitious treaties, which constrain the autonomy of member states more than they used to and provide fewer exceptions to powerful states (Davenport 2002). According to this logic, the alleged unilateralist turn in US foreign policy is not caused by a change in the American position, but by increasing expectations in the international community (Ikenberry 2003). The growing importance of non-state actors in international organizations has been quite well documented. The questions are whether or not this has resulted in international treaties becoming more constraining, and if these constraints have increased American reluctance to participate. Systematically comparing the autonomy costs of specific treaties can offer insight into these questions. In summary, powerful states are wary of the restrictions on their autonomy from multilateral treaties.5 They prefer informal, flexible arrangements to formalized, intrusive institutions. This would lead us to hypothesize that the more an agreement restricts American autonomy, the less likely the United States is to participate. This hypothesis is independent of the substantive issues of a treaty, concentrating on such formal aspects as specificity and flexibility. Operationalizing Autonomy Costs: The Concept of “Legalization”

To operationalize the autonomy costs of the respective treaties, I draw on the concept of “legalization” (Abbott et al. 2000). Simply put, legalization refers to the extent that a treaty contains binding and precise rules whose implementation is delegated to a neutral authority. I argue that the more legalized a treaty is, the more it restricts autonomy. The authors of the concept break down legalization into three dimensions: obligation, precision, and delegation. All three are not dichotomous, but reflect a spectrum ranging from no legalization at all to an ideal type of

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hard legalization that resembles domestic law. Even though a higher degree of legalization presumably leads to better compliance (Kahler 2000), it is important to note that the degree to which norms are implemented or complied with is not part of the definition. Obligation refers to the degree to which the rules of an agreement are binding. Institutions can range from expressively non-binding agreements, such as declarations of intent, to norms that have the status of international law. The “hardest” among those would be ius cogens – law that is universally recognized as binding without exception (Abbott et al. 2000: 404). I also consider whether agreements allow for exceptions, for example, through reservations or escape clauses, as part of the degree of obligation. Another aspect of obligation is whether an agreement envisions (but not necessarily implements!) sanctions for non-compliance. Precision indicates how vague or specific the provisions in a given treaty are. Is a norm a declaration of intentions, or does the document stipulate specific actions? Are the provisions formulated unambiguously, creating standards that minimize the need for interpretation? This point also includes expectations of reciprocity, meaning that all parties understand the provisions to mean the same. Third, delegation describes the transfer of “broad authority to a neutral entity for implementation of the agreed rules, including their interpretation, dispute settlement, and (possibly) further rule making.” (Abbott et al. 2000: 401). Does an agreement create new institutions? To what degree are the decisions of these institutions definite? Do the newly created institutions have the power to override the decisions of the member states, i.e. are they of a supranational character? The characteristics along these three dimensions vary independently of one another: A higher degree of obligation does not necessarily lead to more delegation. It is therefore necessary to examine each dimension in its own right. It is possible to compare agreements with respect to one particular dimension, or to combine the dimensions to arrive at an overall assessment of the degree of legalization. Consequently, according to the working hypothesis, we would expect that the more legalized an agreement is, the more the US will resist.6 I try to assess this hypothesis in two different ways. First, I look at the negotiating history and the ideal preferences of the United States during the negotiations. Did the United States want an agreement that is more legalized, or did it argue for a more informal institution? In which dimension in particular did the United States favor stronger legalization? An indication for the validity of this hypothesis would be if US negotiators consistently tried to “water down” an agreement by arguing

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The United States and Multilateral Treaties: A Policy Puzzle

for greater flexibility and less intrusive standards. Second, I compare the four treaties in this study with respect to their degree of legalization. If agreements that the United States ratified were substantially less legalized than the ones it rejected, it would also indicate the validity of the hypothesis. Cultural Factors

A number of scholars have suggested that US foreign policy toward multilateral treaties is influenced by cultural factors, in particular by what is often referred to as “American exceptionalism” (Foot et al. 2003a; Ignatieff 2005b; Malone and Khong 2003b).7 Some have argued that the reluctance to enter multilateral agreements stems from a culture of individualism and a widespread skepticism toward government, which is extended to institutions of international governance. Others claim that a belief in the inherent morality of American policies leads the United States to exempt itself from the same rules it encourages others to follow. Paul Kahn (2010) laments that the United States is now known for lawlessness; that Americans’ skepticism about international institutions runs deep; that Americans have long been unilateralists in the use of force; and that they agree to abide by international human rights conventions only to the extent that they coincide with that already required by domestic law. “The political and legal phenomena we confront here are elements of American exceptionalism,” Kahn asserts, and he continues American exceptionalism predates the U.S.’s new and likely shortlived status as a hyper-power. […] America is not a political project; it is a political-theological project. […] the Christian imagination provides the deep structure of American political belief.

Whatever the specific claim about the reasons for America’s idiosyncrasies, the common thread is that something in American culture makes the United States different from other countries – that makes it exceptional. From a theoretical perspective, statements about American culture are about non-material factors such as beliefs and values.8 More specifically, they refer to beliefs about American identity, which constitutes the country’s sense of self as a nation and its role in the world.9 These include founding myths, perceptions of history, and convictions about what makes the nation “hang together” and what distinguishes it from others. These ideas have evolved over time and are

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reflected in the national discourse. Because we are interested in those aspects of identity that influence political actions, some overlap with the concept of “political culture” exists. According to the classic definition from Almond and Verba (1963: 14-15), “The political culture of a nation is the particular distribution of orientations toward political objects among the members of that nation.” Two characteristics shared by the concepts of identity and political culture are worth stressing: First, like identity, political culture refers to collective beliefs. While these beliefs may be reflected in the views of individuals, in order to constitute aspects of American political culture or identity, they have to be widespread in society. Second, since they refer to deep convictions that have developed over time and been reinforced in public discourse, they are fairly stable. This does not mean that they cannot be subject to change, but that this change takes place slowly, over the course of generations rather than years. Exceptionalism in American Discourse

There is little disagreement that American exceptionalism exists and that it occupies a central part of that national mythology. As Deborah Madsen (1998: 1) puts it: “American exceptionalism permeates every period of American history and is the single most powerful agent in a series of arguments that have been fought down the centuries concerning the identity of America and Americans.” The term is often mistakenly attributed to Alexis de Tocqueville, who, in his work “Democracy in America”, recorded his impressions of how America differs from his native France and the old continent more broadly (Tocqueville 1954 [1835]).10 Instead, the term exceptionalism is actually a creation of the 20th century, initially referring to the difficulties that socialist movements encountered in the United States.11 Thus the invocation of John Winthrop’s famous phrase of “a citty [sic] upon a hill” (1996 [1630]) as the first testimony to American exceptionalism seems to be a case of retroactive mythmaking. According to recent research, Winthrop used the phrase in the context of a religious sermon, appealing to his fellow Puritans to live an exemplary life. To derive from this some claim about the exemplary political nature of what would later become the United States is a stretch, especially since his words were largely forgotten for the following centuries (Deneen 2012; McDougall 2012). Only after Presidents Kennedy and Reagan used the theme in their speeches did this interpretation of Winthrop’s words take its place in the American collective memory (see Kennedy 1961; Reagan 2005). Yet, irrespective of Winthrop’s

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The United States and Multilateral Treaties: A Policy Puzzle

intentions, variations of the idea that America has a special role to play have emerged throughout the nation’s history. Among them were the Jacksonian idea of manifest destiny and characterizations as mankind’s last best hope, a beacon on a hill, God’s own country, or the indispensable nation (see Mead 2001). There has been much criticism of the use of these characterizations to describe America’s actual policies, but the significance of exceptionalism in the national discourse remains unquestioned.12 Exceptionalism and International Institutions

In the context of US foreign policy, the most important aspect of American exceptionalism is the basic premise that “the United States differs qualitatively from other developed nations, because of its unique origins, national credo, historical evolution, and distinctive political and religious institutions.” (Koh 2005: 225).13 The qualitative difference in origin and history has definite normative overtones. As Stuart Patrick (2002: 7) explains, exceptionalism entails the “pervasive faith in the uniqueness, immutability, and superiority of the country’s founding liberal principles accompanied by a conviction that the United States has a special destiny among nations.” American exceptionalism thus contains two important aspects: a sense of uniqueness, and a belief in the moral superiority of the American experience that also leads to a moral outlook on foreign policy. Exceptionalism also seems to entail a skeptical attitude toward multilateralism. Edward Luck (2003: 27) describes exceptionalist nations in the following way: in the context of international organization, four related characteristics stand out: (1) a willingness to go it alone on a variety of issues, along with apparent immunity to the pressures and criticisms of others; (2) an assumption that its national values and practices are universally valid and its policy positions are moral and proper, not just expedient; (3) a strong tendency to look inwards, to domestic political considerations and processes, when determining how to act in international forums, in some cases coupled with a willingness to adopt national legislation that contradicts the rules and responsibilities imposed by international arrangements; and (4) a belief by national policy-makers and legislators that they have other options for pursuing their nation’s interests and that acting

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through multilateral institutions is only an option, not an obligation. Note that Luck does not limit his observations about exceptionalism and multilateralism to the United States, although his observations appear to be strongly informed by its example. Malone and Khong (2003b: 14) refer more specifically to American exceptionalism explaining that … US exceptionalism can be seen as a widely held conviction among Americans that the United States, by virtue of its unique attributes, has a special destiny among nations. The US belief in a national mission at the international level is an important impulse for its unilateral action.

Even more to the point, Michael Ignatieff (2005a: 3) applies the term to describe US behavior toward multilateral human rights agreements: First, the United States signs on to international human rights and humanitarian law conventions and treaties and then exempts itself from their provisions by explicit reservation, nonratification, or noncompliance. Second, the United States maintains double standards: judging itself and its friends by more permissive criteria than it does its enemies. Third, the United States denies jurisdiction to human rights law within its own domestic law, insisting on the self-contained authority of its own domestic rights tradition.

These three quotes illustrate two problems with the existing literature. First, even in the narrower context of US policies toward international institutions, “exceptionalism” means different things to different people. Second, and more importantly, the concept of exceptionalism has a different analytical status for each of them. Malone and Khong see exceptionalism as a “conviction” that is an “impulse” for unilateral action. They treat it as an explanation or independent variable. Ignatieff, in contrast, treats exceptionalism as the dependent variable. In the quote above he defines exceptionalism as an observable pattern of behavior or set of policies. This behavior is the point of departure for his analysis, in which he looks for reasons or independent variables that account for this behavior. Finally, in Luck’s observations of exceptionalist countries, exceptionalism is a little bit of both: patterns of behavior like “a willingness to go it alone,” as well as beliefs about the universality of America’s values and the morality of its actions. To avoid circular arguments it is important to distinguish between treating “exceptionalism” as a dependent variable and using it as an explanatory variable. As the above quote from Luck shows, there is a

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risk of conflating cause and effect: to note that the United States displays exceptional behavior and simultaneously attribute that behavior to a cultural tendency to behave exceptionally. Furthermore, if the concept is not applied rigorously, it easily becomes a typical example of what Valerie Hudson (1997: 2) has termed an “explanation of last resort.” Everything that is difficult to explain with existing theories is ascribed to American exceptionalism. Does Exceptionalism Cause Unilateralism?

In the context of this study, “American exceptionalism” is treated as an independent variable, a potential explanation for American policies toward multilateral treaties. As such, exceptionalism cannot refer to a pattern of behavior, but needs to encompass potential underlying causes or conditions for that behavior. If we treat exceptionalism strictly as a cultural and ideational explanation for certain policies toward multilateral agreements, its implications are far from clear. The features of America’s exceptionalist identity are too vague to lead to any concrete policy implications. Even taken at face value, the self-perception of uniqueness and moral superiority does not necessarily lead to the conclusion that the United States should remain outside multilateral agreements. In fact, I show below that most Americans do not draw this conclusion. Instead, any policy toward multilateral treaties can be legitimized in terms of American exceptionalism. As Luck (1999: 19) observes: “Throughout this [20th] century American policymakers and opinion shapers have tended to agree on the superiority of their country’s physical, social, and moral attributes, yet they have disagreed sharply on its implications for America’s role in the world and in international institutions.” Patrick concludes (2002: 7): “[E]xceptionalism pulls in two directions, encouraging both a desire to ‘go it with others’ and an urge to ‘go it alone.’” I would suggest that exceptionalism does not pull much at all. Instead, like the concept of “national interest,” American exceptionalism is an empty shell that can be filled with varying versions of political substance. The discourse on American exceptionalism has been so persistent precisely because it can accommodate such different concrete policies.14 In fact, proponents of both multilateralism and unilateralism draw on the United States’ unique political identity to make their case. Ikenberry demonstrates how a multilateral position can be justified with reference to American exceptionalism. Noting that there are “multiple political traditions in the United States that reflect divergent and often

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competing ideas about how the United States should relate to the rest of the world,” he argues that (Ikenberry 2003: 543) [..] behind these political-intellectual traditions are deeper aspects of the American political identity that inform the way the United States seeks to build order in the larger global system. The enlightenment origin of the American founding has given the United States a political identity of self-perceived universal significance and scope. The republican democratic tradition that enshrines the rule of law reflects an enduring American view that polities – domestic or international – are best organized around rules and principles of order. America’s tradition of civic nationalism also reinforces this notion that the rule of law is the source of legitimacy and political inclusion. This tradition provides a background support for a multilateral foreign policy.

Jeremy Rabkin (2005: 12) presents the opposite position: Most Americans still cling to the belief that the United States remains a special country, that it is, in some way, different from others and has a right to continue in its different ways. Americans have retained many ways that have disappeared elsewhere. [...] And to the annoyance of Europeans, America clings to the idea that it can remain its own nation. The United States refused to participate in a range of global initiatives on the environment and human rights during the 1990s and set itself firmly against an international criminal court. And the United States continued to insist on its own right to defend itself against terrorist aggression.

As Patrick (2009: xxiii) points out, multilateralists and unilateralists alike “tried to ground their claims in the language and symbols of American exceptionalism.” He continues: “Multilateralists, unilateralists, and isolationists alike agreed that the United States had a special destiny among nations, that its unique domestic values and institutions offered the most desirable model for economic and political life […].” This means that American exceptionalism by itself cannot be a cause for one of these types of foreign policy. Exceptionalism and Unilateralism in American Public Opinion

This conclusion is also supported by public opinion data: American exceptionalism as belief in the uniqueness and moral superiority of the United States is widespread among the general public. This

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exceptionalism, however, is not incompatible with support of international institutions, including multilateral treaties. Public opinion data confirms these findings. A majority of Americans regard their country as exceptional and exemplary (Smith and Jarkko 1998; Smith and Kim 2006; Smith 2006). In 1998, three fourths of the Americans surveyed said they are “proud” or “very proud” of their country’s global influence, more than any other nationality in the survey (Smith and Jarkko 1998: 5 and Appendix 2 (Table 5)). In 2010, a poll from Gallup tried to explicitly assess American exceptionalism among the public (Jones 2010). 80% of Americans agreed with the statement “because of the United States’ history and its Constitution, the US has a unique character that makes it the greatest country in the world.”American exceptionalism is indeed a widely held view or pervasive faith, perhaps even a national credo. This does not, however, translate into a rejection of multilateralism. Kull and Destler (1999) show that, contrary to the prevalent view in the media and on Capitol Hill, a majority of Americans consistently support multilateral engagement. Americans do see the United States as a leader in world politics. In 2010 two thirds of Americans polled believed the United States has “a special responsibility to be the leading nation in world affairs.” According to Kull and Destler (1999: 45-46), however, a majority of Americans prefer “a shared leadership role.” One finding of the 1995 “Worldviews” report (CCFR 1995: 18) was that “Americans are increasingly reluctant to shoulder the burdens of international leadership alone, but are willing to share responsibility through participation in multilateral organizations.” This interpretation is confirmed by subsequent surveys. The 1999 report includes a question asking whether the United States should act alone if it does not have the support of allies. 72% of the general public rejected this idea (CCFR 1999: 5). The 2002 “Worldviews” poll asked how the United States should go about solving the world’s problems. 71% of respondents said the “US should do its share in efforts to solve international problems together with other countries,” rather than solve international problems as a world leader in accordance with its superpower status, or withdraw from efforts to solve international problems.15 The majority of the American public is not opposed to international treaties, including recent efforts to initialize new institutions that were subject to great controversy. According to “Worldviews 2002,” the Kyoto Protocol was supported by 64% of respondents (21% opposed), the International Criminal Court by 71% (22% opposed), the Landmine treaty by 75% (19% opposed) and the Nuclear Test Ban Treaty by 81% (14% opposed). The 2006 survey additionally asked about the

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Biological Weapons Convention, which was supported by 89% and opposed by only 8% (CCFR 2002: 17). Subsequent polls confirmed support for US participation in the International Criminal Court. In a joint Chicago Council on Foreign Relations/PIPA poll in 2005, clear majorities favored US participation in the International Criminal Court. As I have argued above, exceptionalist beliefs do not automatically lead to a cultural bias against multilateral treaties. An exceptionalist selfimage is perfectly compatible with a preference for multilateral policies. The simultaneous presence of exceptionalist beliefs and unilateralist policies does not imply a causal relationship. Such a relationship is further called into question by the variance in US policies. If collective beliefs rooted in culture and identity are very stable and slow-changing, they cannot convincingly account for the variance in US policies toward international treaties. Even if American exceptionalism played a role in the general skepticism toward multilateral agreements, it could not explain the difference between treaty participation and rejection at the heart of this study. Due to the vague nature of American exceptionalism, some version of exceptionalist convictions could doubtlessly lead to the rejection of multilateral institutions. Yet this version does not qualify as a collective belief in the sense of national identity or political culture. It is limited to particular individuals and groups within the American polity. Under certain conditions, these groups may influence policy outcomes. But rather than generally attributing policy outcomes to some notion of American exceptionalism, it is necessary to explore precisely which conditions make exceptionalism a relevant factor. In the case studies I continue to explore whether specific instances of opposition to multilateral treaties can be attributed to exceptionalist beliefs. Domestic Factors

The shortcomings of the structural and cultural explanations discussed so far lead me to propose that domestic politics are central to explaining American policies toward multilateral treaties. The idea that foreign policy is best understood as the outcome of competing societal interests has a long tradition in the liberal paradigm of international politics.16 Liberal IR theory rejects the assumption that domestic and foreign policy function according to fundamentally different logic. There is widespread recognition that the characteristics of a state, its society, and the dispositions and worldviews of its decision-makers have some effect on its behavior (see Gourevitch 2002: 309). Even realists increasingly incorporate domestic factors into their explanations (see Legro and Moravcsik 1999). The difficulty lies in transforming the basic

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recognition that domestic politics matter into more specific hypotheses on how they matter, which can then be operationalized for empirical research. Once we open up the “black box” of the state, we are faced with a great deal of complexity. This is especially true for democracies, in which a number of actors interact in complicated ways to produce political outcomes. Some of these actors are individuals, such as heads of government, while others are collectives like political parties, interest groups, or government agencies. Not all of these actors have the same degree of influence in the political process. The challenge is to find out which of these actors really matter and under what circumstances. Which Actors Matter? Introducing Veto Players

In order to determine who the key players in treaty making are, I draw on the concept of “veto players” by George Tsebelis. Tsebelis originally designed his model to explain the likelihood of political change in a variety of political systems. His central claim is that the likelihood of policy change depends on the number and constellation of veto players. “Veto players are actors whose agreement is necessary to change the status quo.” (Tsebelis 2002: 37). By looking at policy in terms of legislative change, Tsebelis is able to use the political process of lawmaking to identify potential veto players. With some adaptations, the model can also be applied to the foreign policy decision-making process. Participation in treaties, this study’s dependent variable, entails a legal process similar to that of adopting domestic legislation.17 In this context, veto players are political actors who can prevent the United States from joining a treaty. Applying the veto players model to decision-making with respect to international agreements is based on a straight-forward assumption: If a policy – in this case joining a treaty – negatively affects a specific domestic constituency, materially or in the realization of its normative goals, that constituency will resist. It will use its political power within the institutional framework to prevent the United States from participating in the treaty. If this constituency has the power to prevent the United States from joining – in other words, if it is a veto player – the treaty will not be ratified. Tsebelis distinguishes between two types of veto players: institutional veto players and partisan veto players. Any political actor – whether individual or collective – whose approval is necessary to adopt laws qualifies as an institutional veto player. The institutional veto players are defined by the political rules for legislative change, most

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fundamentally, the constitution. In the American political system, the most prominent institutional veto players in domestic law-making are the president and Congress. The president is an example of an individual veto player, because he can single-handedly prevent legislative change. Congress represents a collective veto player, as its approval is required to pass laws. Partisan veto players constitute a second type of veto players. They are a result of the political struggle that takes place within the institutional structure: Partisan veto player refers to such actors who are “generated inside institutional veto players by the political game.” (Tsebelis 2002: 79). A partisan veto player is, for example, the majority party in a parliament. If the parliament is an institutional veto player whose approval is needed to pass a law, the “real” veto player in political terms may not be the whole collective, but the party controlling the majority of parliamentarians. Whether veto players actually prevent legislative change depends on their political preferences. Each veto player has a preference for an ideal outcome and a range of acceptable outcomes. Policy change (or a departure from the status quo) is only possible if the new policy lies within the range of outcomes acceptable to all veto players. Tsebelis calls the range of policies that can replace the status quo the “win-set” (2002: 20). In more colloquial terms, the win-set describes the possibilities for compromise. Greater ideological distance between veto players leads to less room for compromise and to greater policy stability. For example, if one veto player wants to increase taxes and the other wants to lower them, the win-set is zero and the status quo will be maintained. The Institutional Context of US Treaty Policy

In order to apply Tsebelis’ veto players model to US treaty policy, the process of treaty-making must be examined (on the following see Franck et al. 2008: 356-359; Garcia 2015). At the beginning of the treaty process is the decision of the executive to initiate or join negotiations regarding a new agreement. The president then appoints negotiators. If the chief negotiator has not previously been an ambassador or high-level official, the Senate may have to give advice and consent to the selection. Usually the Department of State takes the lead in treaty negotiations. (From 1961 to 1997 arms control negotiations were usually conducted under the leadership of the Arms Control and Disarmament Agency (ACDA), which was later integrated into the State Department). In negotiations about important multilateral treaties, the US delegation

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includes representatives from all departments concerned. On foreign and security policy, that means the Defense Department, the intelligence agencies, and the Joint Chiefs of Staff, in addition to the State Department. Because of the legal repercussions of formal treaties, officials of the Justice Department also frequently take part. The president then authorizes the head of the delegation to represent the United States at the negotiations and issues instructions regarding the goals. Throughout the negotiations, the delegation consults with the involved departments about any developments. All changes to the US position from prior instructions have to be approved by the relevant departments and cleared by the inter-agency process. Mid-level officials within the government bureaucracy make most decisions. Important decisions or cases of dispute between two or more agencies go up the chain of command to be resolved at a higher level. In this process, the national security advisor (official title: Assistant to the President for National Security Affairs) plays a central role because he or she coordinates the positions of the various departments, resolves interagency disputes, and controls the flow of information to the president.18 Only the most important decisions or conflicts that cannot be resolved at the lower levels are brought up in the National Security Council (NSC). Statutory members of the NSC are the president, the vice president, the secretary of state, and the secretary of defense. The other participants in NSC meetings are the director of the Central Intelligence Agency, the chairman of the Joint Chiefs of Staff, and the White House chief of staff. The president can also call on anyone else to participate.19 Below the NSC, there are three further levels of meetings for policy coordination: the Principles Committee (the same group of people as in the NSC, but without the president participating), the Deputies Committee (their respective deputies), and a number of working groups based on issue areas convened at the assistant secretaries’ level (Snow and Brown 2000). Congress is involved throughout the process. Depending on their interest, members of Congress have several ways of following ongoing negotiations. The Department of State periodically sends lists with agreements that have been cleared for negotiation to the relevant committees in both in the House and the Senate. The committees can also schedule hearings and request that members of the negotiating team testify about the developments, or ask the Department of State to provide further information. In some cases, members of Congress or their staff become members or observers in the US delegation.

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When the negotiations of a treaty are concluded, the delegation can signal governmental support of the outcome by signing it. The president can then transmit, together with detailed analysis by the State Department, the treaty text to the Senate for advice and consent. After an initial reading on the Senate floor, the majority leader, upon obtaining the unanimous consent of the Senate, refers the treaty to the Committee on Foreign Relations. The committee is supposed to make a recommendation to the full Senate about whether to provide advice and consent. For this purpose, it schedules hearings with administration officials and outside experts and, after debating the treaty text, writes a report. The committee can also recommend making Senate advice and consent subject to certain conditions.20 The committee chairman exercises great discretion in handling the committee proceedings. The majority party in the Senate also holds a majority on each committee and appoints the committee chairmen. Since the members of his or her party usually defer to the chairman, he or she has almost total control over the process through deciding the scheduling of hearings and which witnesses to invite. The chairman also initiates the vote required to bring a treaty out of the committee and back to the full Senate. Once a bill reaches the committee, the chairman can hold it there indefinitely by simply not taking action on it.21 If a vote is scheduled, the members of the committee decide with a simple majority about the release of a treaty from the committee, as well as their recommendation regarding adoption or rejection. Once a treaty is reported out of the Foreign Relations Committee, the Senate majority leader schedules it for consideration on the Senate floor. The senators can then offer amendments to the resolution of ratification, which are adopted by simple majority. After this the resolution of ratification, including the adopted amendments, is voted upon. According to Article II, Section 2 of the US Constitution, the president “shall have the power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur.” In addition to the two-thirds majority requirement, it is customary not to vote on treaties when many senators are not present. At any time during this process, the executive can withdraw the treaty from Senate consideration. If the Senate gives its advice and consent, the executive deposits the instrument of ratification with the depositary agency, and the treaty goes into effect. Technically, the negotiation and ratification phase of a treaty are separate processes that follow one another and involve different actors. Even though the president is supposed to consult with the Senate, negotiations are essentially in the hands of the executive. During the

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ratification process, the Senate gets an up-or-down vote about the result of the executive’s negotiation. In practice, however, these two phases cannot be separated (Putnam 1988: 436). If the president wants to join a treaty, he has to negotiate an outcome that is acceptable domestically. Since the executive is well aware of the need for congressional approval, the shadow of the Senate already looms over the negotiations. This is the reason why members of Congress or their staffers are sometimes included in US delegations. Identifying the Veto Players in Treaty Making

This overview of the process of negotiating and joining treaties shows how we can adapt Tsebelis’ model. The main difference between domestic law-making and negotiating treaties is the role of the president. On domestic policy, the president is supposed to execute the laws Congress passes, which makes him is a typical veto player: Because of his veto power, his support is needed to achieve legislative change.22 On foreign policy, his role is somewhat different: As the country’s chief diplomat and commander-in-chief of the armed forces, he shapes the direction of American foreign policy as opposed to just executing it (Snow and Brown 2000: 96-99). Foreign policy is the prerogative of the executive, making the president the ultimate decision-maker. Yet Congress has some instruments to influence foreign policy, resulting in “an invitation to struggle for the privilege of directing American foreign policy.” (Corwin 1957: 171). The congressional powers include the responsibility to approve funding, to confirm ambassadors and highlevel foreign policy officials, and to shape the institutional structure of the foreign policy bureaucracy by passing legislation. The Arms Control and Disarmament Agency (ACDA), the State Department’s Human Rights Bureau, and the Pentagon’s Office on Special Operations and Low Intensity Conflict are examples of institutional structures that were mandated by Congress in order to build its preferences into the foreign policy decision-making process (Hersman 2000: 44). Unlike some areas of foreign affairs left deliberately vague in the Constitution, the division of labor between the president and Congress in treaty-making is explicitly regulated. By reserving the approval of treaties for the Senate, the founding fathers formalized the veto player function of the legislative. The required majority of two thirds additionally increases the threshold for treaty ratification. Tsebelis points out that even though Congress is a collective institutional veto player, in practice the underlying veto power usually lies with the majority party. The two-thirds requirement for treaty ratification means

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that, in the context of treaty ratification, even the minority party usually holds enough seats to prevent the Senate from giving consent. Consequently, in order to pass the Senate, a treaty must have some measure of bipartisan support. Because of the dynamic of electoral politics, this represents a considerable obstacle, regardless of the substance of the treaty. Even on this formal level, the number of institutional veto players is exceptionally high in the United States in comparison with other Western democracies. In Canada, the legislature has no formal role in the ratification of treaties (Lantis 2005). Similarly, in the United Kingdom, the legislature does not have a formal role in treaty-making (Templeman 1991). In both of these countries, the legislature’s only input into the process is in its approval of implementing legislation. In France, according to Article 52 of the French Constitution, the president negotiates and ratifies treaties. In some cases, as specified in Article 53, the parliament is requested to approve treaties by a simple up-or-down vote, but it cannot make reservations or amendments (Luchaire 1991). In Germany, most treaties require consent from the Bundestag, the parliament’s lower chamber. In cases that affect issues of federalism, both chambers, Bundestag and Bundesrat (representing the federal states), have to approve, but in all cases a simple majority suffices (Frowein and Hahn 1991). Hence, the American requirement of a supermajority in a legislative body presents a unique obstacle to treaty ratification. The rules of the Senate, especially the committee process described above, introduce even more veto players than the constitutional process suggests. Short of a blocking minority, individual senators in important procedural positions, such as the chairmanship of the Foreign Relations Committee or majority leader, can hold up treaties, making them individual veto players. Political actors outside of the Senate can seek out congressional allies to prevent the ratification of treaties. Members of the executive bureaucracy can influence executive decision-making, as well as mobilize congressional opposition. And affected interest groups can seek out congressional allies. This brings us to the importance of individual senators’ preferences and how they are formed. What Motivates Senators?

Senators are primarily motivated by two factors: their political values and a desire to be re-elected. Treating re-election as the primary consideration has been popular because it allows for analyzing politicians’ behavior in rational choice terms. It rests on the simple

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premise that elected officials can only advance their political agenda while in office. James Lindsay (1994), however, warns of what he calls the “electoral fallacy”, stressing that politicians do not see re-election as an end in itself, but as a means to advance their political goals. Nevertheless, elected officials certainly take possible effects on the prospect of their re-election into consideration when they make political decisions. Senators have to be responsive to the constituents. Voters support candidates based on their political goals and their perceived ability to represent their home state’s interests in Washington. Interest groups matter because they can influence public opinion and are a source of campaign contributions. Yet evidence regarding a systematic impact of interest group lobbying on congressional voting is contradictory (Baumgartner and Leech 1998: 14-15). On foreign policy senators are often able to follow their own personal preferences. This is because electoral pressures are generally lower on foreign policy than on domestic issues. International developments that do not directly or notably affect voters play little role in congressional elections. Hence voters generally do not base their decision in elections on the foreign policy positions of the candidates, a phenomenon referred to as the low salience of international policy.23 Interest groups, the other important consideration in re-election besides the general voting population, are somewhat more important. There are some ethnic lobbies that are quite influential, and business interests like the American Chamber of Commerce pay close attention to how their interests are affected by foreign and trade policy. Still, a senator’s position on most multilateral treaties usually has little effect on his prospects for re-election, unless the treaty directly impacts some organized interests. The low salience of international issues and the limited electoral rewards of spending time on them also affect the membership of relevant committees. There are few incentives for serving on the Foreign Relations Committee besides a genuine interest in the issues concerned. The committee chairmen are thus self-selected on the basis of their own engagement, and therefore often hold strong personal views on foreign policy issues. Some members of Congress become foreign policy entrepreneurs when they are not satisfied with the way the executive addresses a certain issue (Baumgartner and Jones 1993). Such personal engagement is often the result of a formative experience (Carter and Scott 2004). Foreign policy entrepreneurs need the support of others. Because of low party discipline and the heterogeneity of political views, they have to form coalitions inside and outside of government in order to advance

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their cause. Therefore senators are often part of issue networks, establishing working relationships with interest groups as well as with members of the executive branch. This interaction is a two-way street (Hersman 2000: 34-52). Public discourse and media coverage also frame the perception of a given issue in the Senate. The fact that senators are not immune to outside influences means that the universe of potential veto players is not limited to the senators themselves. Societal actors and organized interests can become veto players if they are able to convince a certain number of members of the Senate to support their cause. Even members of the executive bureaucracy can become de facto veto players when they find allies in the Senate. The president does not fully control the executive bureaucracy, since the agencies are established and funded by Congress and the department heads have to be confirmed by the Senate (Czempiel 1979: 60). Tensions may arise between the presidential agenda and the institutional interests of the bureaucracy. As the bureaucratic politics approach tells us, departments have institutional interests, a specific organizational culture strongly resistant to change, and battles over turf with one another. All these factors may conflict with the executive bureaucracy’s role in supporting the president with advice and implementing his decisions. In this context, the cabinet secretaries occupy a special role that comes with a dual loyalty. On one hand, they are appointed by the president to implement his priorities within their respective departments. On the other hand, they represent the interests of the bureaucrats they preside over, exercising considerable independence (see Herring 1940: 111). If the members of a certain executive agency fundamentally disagree with one of the president’s policy goals, they can use their informal relations with Congress to attempt to convince members of Congress to support their cause. It is this mechanism of informal alliances and back channels that makes government agencies potential de facto veto players. Even though the president can overrule anyone else within the executive branch, he can often not afford to ignore their positions because of their de facto ability to torpedo his political agenda.24 The Role of Presidential Leadership

Some authors have suggested that presidential leadership can make a difference in whether or not treaties get ratified (Evans et al. 1993; Lantis 2005; Putnam 1988). Since the president initiates treaty negotiations and submits the treaty to the Senate it is plausible to assume that his actions matter for a treaty’s fate. One shortcoming of the veto

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players approach is that it somewhat neglects the role of agency. I therefore complement the analysis of veto players with an investigation of the role of the executive. Since the positions of veto players are not static but subject to change, presidential leadership can play a role in this process. The literature about presidential leadership has evolved considerably over time and allows for several alternative hypotheses. A number of scholars have noted that, contrary to popular belief, the formal powers of the president to influence decision-making in Congress are quite limited (Corwin 1957; Czempiel 1979). Consequently, scholars have concentrated not so much on the institutional powers, but on specific presidents’ use of their office’s influence in practice. A central theme has been the ability of the president to persuade (Herring 1940; Neustadt 1990). This basic approach has led to the extensive study of presidential effectiveness by looking at their personalities and leadership styles (Hermann 1980; Hermann et al. 2001). Others have investigated the importance of public opinion and reputation in determining a president’s ability to lead (Edwards III 1976; Edwards III and Wood 1999). More recently, even the persuasion and bargaining models have increasingly been questioned. Instead, some scholars argue that influence is limited and persuasion is all but impossible. Mouw and MacKuen (1992) argue that the president has some influence among the members of his own party, but that this influence is matched by the leader of the opposition party. Edwards (2009) suggests that what distinguishes successful from less successful presidents is their ability to recognize strategic opportunities and take advantage of them. In that sense, presidents exercise leadership by facilitating change rather than directing it. It might be that these more skeptical accounts employ too high a standard for what influence means. Mouw and MacKuen (1992: 581), for instance, base their findings on the assumption “that we observe influence only when Congress members deviate from their normal voting pattern.” This might be a test that is impossible to conduct with regards to international treaties that deal with novel issues. Yet it leads to the conclusion that expecting a president to persuade senators to vote against their fundamental convictions is not realistic. Despite the limits to the president’s power to persuade, there are a number of instruments he can use. Their institutional independence and low party discipline notwithstanding, senators from the president’s party value good relations with the White House. Successful presidents establish effective patronage systems with members of Congress (Herring 1940: 69). A good standing with the president translates into political capital that senators can use in a number of ways: to elicit

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White House support for their own political priorities, their re-election campaigns, or their aspirations for an office in the executive branch (Carter and Scott 2004: 43). One should not underestimate the president’s importance within the party organization and his resulting ability to twist arms for political purposes. There are many ways logrolling tactics can be employed to secure the necessary support. The president can reward senators for their support with favors or sidepayments, or create incentives through issue-linkage (Moravcsik 1993: 24). A tactic that both the executive and the legislative employ is linking treaties to other issues. Powerful senators can take a treaty hostage to extort concessions on unrelated issues that are dear to them. In other words, there are few limits to the political game, and the more political capital a president is willing to invest, the more likely it is that he can secure the necessary support. Much of what is commonly referred to as presidential leadership is about overcoming resistance to the president’s political priorities. Kelley and Pevehouse (2015) have pointed out that, because political capital and legislative time is limited, any political endeavor comes at a cost to others. In other words, the president has to ensure that veto players do not derail his agenda. Another important tool of the president is the weight he carries in the political discourse. Even though the extent of his power to persuade is contested, the president enjoys the permanent attention of the press more than any other individual. By communicating with the public, he can frame issues, set the terms of debate and influence perceptions (Snow and Brown 2000: 101-102). This is also true with respect to international treaties. How the president first presents a treaty has a significant impact on the subsequent debate. This includes not only whether the outcome of negotiations is portrayed in a positive or negative light, but also the importance the president attaches to a treaty.25 I hypothesize that presidential leadership increases the chances of a successful negotiation and ratification of a treaty. In the light of the recent reassessment of presidential leadership in the literature, this is not a foregone conclusion. It would be plausible to argue that presidential leadership does not matter. It is even possible to imagine that high profile engagement from a president with a treaty can be counterproductive: It may increase the perception of a treaty as a partisan endeavor and mobilize the opposition, which may want to deny the president the achievement of a successful treaty. Nevertheless, I propose that the benefits of active presidential leadership outweigh these potential negative effects. Even without meaningful opponents, political initiatives need to be shepherded through the pitfalls of the political

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process – otherwise they get held up or just drop off the agenda. As Pendleton Herring (1940: 38) puts it, “there is little ‘drive’ in the system.” Hence political entrepreneurs and issue leaders are crucial (Carter and Scott 2004). In the case of multilateral treaties only the president can fill that leadership role. I will examine this hypothesis throughout the case studies. In accordance with the rest of the study, I operationalize this hypothesis qualitatively. It does not seem practical to attempt to “measure” presidential leadership. However, the combination of process tracing and the comparative method allows me to evaluate whether or not the presidential leadership hypothesis is plausible. Can instances of progress in the negotiations or ratification of an agreement be attributed to specific initiatives of the executive? Did a change in executive engagement due to a change of leadership affect the prospects of an agreement? Did those treaties that received high-level executive attention fare better than those that did not? The variance within each case and across cases results in a high number of observations for investigating a connection between presidential leadership and a particular outcome. In assessing the degree of executive leadership, some caution is required. After all, many of the informal tactics described above take place behind closed doors. Nevertheless, there is a great wealth of empirical material about the cases. Indicators that can be used to evaluate presidential attention and engagement include speeches by the president and cabinet-level officials, the rank of those who testified at congressional hearings (the more the president cares, the higher the level of the officials testifying), and the accounts of people involved in the process. Summary of Theoretical Discussion

I began this chapter with a discussion about what insights structural arguments can provide. I argued that the structural position of the United States as a dominant power in a unipolar system does not have clear implications for its policies toward multilateral treaties. The structure of the international system may determine the behavior of lesser states, but it is indeterminate regarding the behavior of the unipole. Power may be a necessary condition for some of the more unilateral behavior the United States displays, it is not a sufficient condition that can explain American policies toward treaties by itself. A more promising avenue than looking at the power position of the United States per se, is to ask how treaties affect American power. The independent variable is not the relative power of the United States, but

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the nature of the agreement. Arguably, from a realist standpoint, the most important criterion is an agreement’s effect on US autonomy. I use the concept of “legalization” to operationalize the autonomy costs of an agreement in a way that is comparable across issue areas. The hypothesis that the more an agreement restricts US autonomy, or the more legalized an agreement is, the greater the degree of resistance against joining the treaty, is further explored in the case studies. Cultural explanations of American behavior, in particular American exceptionalism, also fall short. There is strong evidence that Americans view their country as exceptional, its history as unique, and its values as superior to those of other countries. This leads to a moral outlook on foreign policy, but not to clear positions on issues of multilateralism or unilateralism. Instead, exceptionalism can accommodate a variety of policies. Unilateralism and skepticism toward international institutions are not widespread enough to be considered a collective belief or an integral part of American political culture. Like America’s status as a superpower, American exceptionalism cannot account for the divergent policies toward multilateral agreements. America’s unilateral tendencies are not inherent in the American national character. Nevertheless, I further investigate to what degree exceptionalist beliefs motivated opposition to multilateral treaties in the case studies. The shortcomings of structural and cultural approaches in explaining the variance between instances of treaty participation and rejection leads me to turn to domestic explanations. I rely on the model of veto players to simplify the complexities of decision-making in the American democratic process. Based on an analysis of the institutional requirements of negotiating and ratifying treaties, I identify potential veto players. The requirement of a two-thirds majority in the Senate for treaty ratification is not the only obstacle. Key senators, like the leader of the opposition party and the chairmen of relevant committees, are pivotal. And because senators depend on their constituents’ support for reelection, societal actors outside the Senate have the ability to influence senators’ position. This analysis leads me to propose that the specific domestic coalitions of supporters and opponents of treaties are central to explaining the outcome. Actors that occupy veto points in the institutional structure are especially important. The president can invest political capital to try to overcome resistance. This approach provides a framework that can explain both the general reluctance of the United States to join multilateral treaties as well as the variance of US policies. To recap, here are the questions resulting from the theoretical discussion that I will try to answer in the empirical case studies:

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•

•

•

•

Did the United States try to preserve its autonomy? Did it prefer less formal agreements to more legalized ones? Did it try to water down agreements during the negotiation? Was the United States less likely to ratify highly legalized agreements than more informal ones? To what degree was the opposition to multilateral treaties based on exceptionalist beliefs? Were exceptionalist arguments an end in themselves or a pretext for more mundane interests? How did they resonate? Can we attribute US refusal to join a multilateral treaty to specific veto players? Which actors are true veto players in the sense that their position is decisive? Are there any (individual or collective) actors beyond the Senate who can single-handedly prevent a president from signing a treaty or defeat it by mobilizing the one-third of the senators necessary to block a treaty? And conversely, which actors are less important? Whose resistance to a treaty does not succeed in preventing the United States from joining? What role did presidential leadership play in overcoming resistance to international treaties? Did the political capital invested make a difference in the outcome? Which veto players are more likely to be swayed by presidential engagement? Were there unintended consequences and adverse effects of presidential leadership?

These questions guide the empirical analysis in the subsequent case studies. They are instrumental in serving to answer the central puzzle of this study: Why does the United States sometimes join multilateral treaties and sometimes reject them?

Notes 1

However, this pairing of theories and their central concepts is becoming less rigid. Realism increasingly takes into account domestic factors (Legro and Moravcsik 1999; Rose 1998). There is also a large set of literature that addresses the concept of power from a constructivist perspective (Guzzini 2005; Wendt 1992). Social constructivism, in particular, is less defined by its thematic focus than by its distinct ontological and epistemological perspective (Adler 1997; Adler 2002). 2 Others argue that unipolarity is limited to the military dimension of power (Nye 2010; Risse 2003). For a recent assessment of America’s military dominance see Thimm (2012).

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3 Many realists also argue that the United States should resist the unilateral temptation, unipolarity notwithstanding (Brooks and Wohlforth 2002). Some have explicitly criticized some of the unilateral aspects of recent policy (Fukuyama 2006; Mearsheimer and Walt 2003; Walt 2006). 4 Hegemonic Stability Theory concludes that a powerful state can facilitate cooperation by using its position of hegemony to provide public goods and overcome collective action problems (Gilpin 1981; Keohane 1984; Kindleberger 1973). 5 At this stage, I deliberately avoid the use of the term “sovereignty” to refer to freedom from restrictions. “Sovereignty” is not only a loaded term conceptually, encompassing much more than freedom from interference, it is also highly charged politically and ideologically in the American discourse (see Spiro 2000). 6 Barbara Koremenos et al. (2001), alternatively, propose the concept of rational treaty design, which overlaps to some extent with the concept of legalization. Although legalization is more useful to assess the impact of treaties on autonomy, I also selectively draw on Koremenos, especially with regard to the dimensions of treaty scope and distribution effects as potential obstacles to treaty support. 7 The term “American exceptionalism” was initially an analytical concept used to describe this aspect of the American identity. More recently the term has left the confines of academia and found its way into the political arena. It became a contentious issue during the campaign for the 2012 presidential election when the Republican Party and its presidential candidate Mitt Romney accused President Obama of not believing in American exceptionalism. The politicization of the term has led to a new wave of writing on exceptionalism. Nevertheless, the term remains highly contested both conceptually and politically. 8 There is no universally accepted definition of culture. Valerie Hudson (1997: 6-7) explains: “Some scholars emphasize culture as the organization of meaning; others view culture as primarily value preferences; and a third group of scholars conceptualize culture as templates of human strategy.” For our purpose it suffices to define culture as “any interpersonally shared system of meanings, perceptions, and values” (Jacquin et al. 1993: 376). 9 See Katzenstein’s (1996: 6) definition of identity as a “shorthand label for varying constructions of nation- and statehood.” 10 De Tocqueville did not use the term “exceptionalism,” and his only use of the word “exceptional” referred to an aspect of American culture entirely unrelated to today’s use of the term. 11 The term was reportedly coined at the end of the 1920s in the interaction of the American Communist Party with Joseph Stalin (McCoy 2012; McDougall 2012). 12 This assumption regarding the moral character of America is closely tied with the discussion about American idealism. Ruggie (1998) has observed that selfish national-interest justifications for American policy have never resonated well with the American public. Kissinger (1994: 371-72) mentions, as traditional themes in America’s foreign policy, “the uniqueness of America’s mission as the exemplar of liberty, the moral superiority of democratic foreign policy, the seamless relationship between personal and international morality, the importance of open diplomacy, and the replacement of the balance of power

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by international consensus as expressed in the League of Nations.” For a critique of this argument see Drezner (2008). 13 In the domestic context Seymour Martin Lipset has observed (1996: 26): “America continues to be qualitatively different. […] This country is an outlier. It is the most religious, optimistic, patriotic, rights-oriented, and individualistic.” With regard to foreign policy, Lepgold and McKeown (1995) define exceptionalism as the notion “that Americans deprecate power politics and oldfashioned diplomacy, mistrust powerful standing armies and entangling peacetime commitments, make moralistic judgments about other people’s domestic systems, and believe that liberal values transfer readily to foreign affairs.” 14 Another area in which exceptionalism has been drawn on to make conflicting arguments is the use of force. Some argue that American moral idealism and its faith in the importance of law lead to a more reluctant position on the use of force – unlike other countries, Americans supposedly do not regard war as a legitimate tool of foreign policy. Instead, the United States stands out in the sense that it does not lead wars of choice, but only when it is forced to (Lepgold and McKeown 1995). Others make the opposite argument: Its distinct historical experience of success in the most devastating wars of the 20th century led to an attitude that is less skeptical of resorting to military force than that of the Europeans, who lost much more than they gained from the two World Wars (see also Kagan 2002; Rubenfeld 2003). Kissinger does not take sides, simply observing: “America’s exceptionalism led it to isolationism alternating with occasional moral crusades.” (1994: 142). 15 The exact question was: “Which statement comes closest to your position?” Possible Answers: “As the sole remaining superpower, the US should continue to be the pre-eminent world leader in solving international problems.” (17 %) “The US should do its share in efforts to solve international problems together with other countries.” (71%) “The US should withdraw from most efforts to solve international problems.” (9%) (CCFR 2002: 27; Topline Data: 43). 16 I use the term liberal theory to refer to approaches that see foreign policy as determined by the interaction of domestic actors with diverging preferences (Moravcsik 1997). Such liberal approaches are distinct from the idealist variant of Wilsonian liberal idealism popular in the inter-war period (see Baylis and Smith 1997; Dunne 1997: 151-153), and from neoliberal institutionalism (Keohane 1984; Krasner 1982). Important contributions on foreign policy as the outcome of domestic political processes include Rosenau (1966); the bureaucratic politics approach (Allison 1969; Allison 1971); the research conducted in the 1970s and 1980s at the Frankfurt Peace Research Institute under the leadership of Ernst-Otto Czempiel (see Czempiel 1979; Krell 1978; Risse-Kappen 1988; Müller 1989); the analogy of the “two-level game” (Putnam 1988); a reformulation of the liberal paradigm (Moravcsik 1997); and liberal foreign policy theory (Carlsnaes 2002). 17 Joshua Busby (2010) has also applied the concept of veto players to participation in multilateral agreements in a number of countries. He refers to veto players with the potential to prevent treaty ratification as “gate keepers.” 18 The exact role of the national security advisor has varied greatly from administration to administration, depending to a large extent on the president’s leadership style and his personal relationship with his NSA and the cabinet

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secretaries (Daalder and Destler 2009; Kegley Jr and Wittkopf 1996; McCormick 1998) 19 Before their agencies were integrated into the State Department, the directors of the Arms Control and Disarmament Agency and the US Information Agency also participated. 20 Common forms of conditions are (Franck et al. 2008: 357): amendments (request to change the treaty text); reservations (changing US obligations without changing the treaty text); understandings (interpretive statements that clarify or elaborate provisions); declarations (statements expressing the Senate’s opinion on issues related to the treaty); provisos (points relating to US law or procedure not included in the instrument of ratification). 21 There are some exceptions in which the majority of committee turned against the chairman, but these instances are extremely rare. 22 In practice, many bills are drafted by White House bureaucracy. However, to comply with the constitutional process, the executive has to find congressional sponsors who formally introduce the bills in the House and the Senate. A presidential veto can be overridden by a two-thirds majority in both houses. 23 This is true except in cases where foreign and defense policy directly affects the voters in the district. Decisions involving not only military action, but also the future of defense contracts or military bases with implications for the local economy and jobs are usually of high salience. 24 For the sake of brevity, I will use the masculine form of the personal pronoun with respect to the president. The characterizations of the office also apply to any female who might be elected president in the future. 25 Krepon (1989: 15) draws attention to how the general image of a president affects his ability to “sell” certain treaties: “It is a cruel fact of American politics that presidents least philosophically inclined toward arms control agreements with the Soviets are most able to ratify them, while pro-arms control presidents have the most difficulty.”

3 Between Nonparticipation and Hostility: The United States and the International Criminal Court

The International Criminal Court has generated a great deal of interest, 1 among both legal scholars and political scientists. The long-term prospects of the International Criminal Court are still unclear. The arrest warrant for Sudan’s President Omar Al Bashir has been largely ignored by the international community, and the court recently experienced another setback when the prosecutor had to drop charges against Kenya’s President Kenyatta, after failing to obtain the evidence necessary to proceed (The Economist 2014). Yet, as a case study of US policies toward international treaties it offers unique insights. At no point was the United States close to ratifying the Rome Statute establishing the ICC. Nevertheless, the US policy toward the court showed considerable variance. Initially, the American delegation was very active in the negotiations and, along with other countries, expressed its desire for a strong court. However, when it became clear that Washington would be unable to convince other countries of its preferred institutional design, it gradually abandoned its support for the project. While remaining outside the regime, Washington first followed a policy that can be described as benevolent abstinence. Yet when the court started operating, non-participation turned into hostility. In addition to strict non-cooperation, the United States started a campaign to pressure supporting states into exempting Americans from the tribunal’s reach. Thus, short of actually joining the Rome Statute, the United States displayed a great range of different policies. In transatlantic relations, the ICC has been an ongoing source of disagreement. The ICC represents one of the few instances in which European countries did not defer to American leadership in the

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formation of a multilateral regime, but were willing to push ahead, not 2 only without the United States but even against its explicit position. The dispute also affected other countries since both the United States and the European Union pressured undecided states to support their respective positions. The United States tried to force smaller countries to grant it immunity from ICC prosecution by threatening to withhold military and economic aid. The European Union responded by making the EU membership of acceding countries in Central and Eastern Europe conditional on their willingness to sign on to the EU position on the ICC. Thus the transatlantic conflict over the ICC not only affected thirdparty countries, but also spilled over into other issue areas. What is the ICC?

The International Criminal Court is a permanent tribunal designed to prosecute individuals for the gravest crimes of an international character, regardless of whether the crimes were committed by private 3 persons, or individuals acting in an official capacity. In particular, it has jurisdiction over genocide, war crimes, and crimes against humanity (Art. 5). According to the Rome Statute, the ICC also has jurisdiction over crimes of aggression, but the exercise of this power was deferred until state parties agreed on a definition of the crime in 2008. The court consists of four separate organs: •

•

The Office of the Prosecutor: The prosecutor decides which situations warrant investigation or prosecution, and is charged with carrying out the prosecutions based on the information available. He or she is supported by two deputies, one responsible for investigations, and the other for prosecutions. The Judicial Divisions: The 18 judges of the court are each assigned to one of three divisions. The judges of the PreTrial Chamber, consisting of either a single judge or a panel of three judges from the Pre-Trial Division, review the prosecutor’s decisions on which situations to investigate or prosecute. Each case is heard by a three-person Trial Chamber, which rules on the guilt or innocence of the accused and, in the case of a guilty verdict, determines the penalty. The Appeals Chamber consists of five judges who hear appeals to decisions of the Pre-Trial or Trial Chambers.

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•

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The Presidency: The presidency, consisting of the president and two vice presidents, administers the judicial aspects of the court beyond the direct authority of the prosecutor. The president and the vice presidents are each also members of one of the three divisions and the respective chambers. The Registry: The registrar is responsible for administering the non-judicial aspects of the court. This includes personnel and logistical requirements for conducting trials, such as interaction with witnesses, maintenance of facilities, etc.

Applying the Concept of Legalization To The ICC

The degree of legalization of the ICC is unprecedented. The states participating in the Rome Conference decided to create a highly independent institution with far-reaching competences. The original plan to make any court action conditional on a mandate by the UN Security Council was rejected in Rome. While Security Council referral is still an option for bringing a situation to the court’s attention, the independent prosecutor can start investigations on his or her own initiative (proprio motu). The Security Council can also suspend the ICC from addressing a situation for one year on a renewable basis. Like any Security Council resolution, such a decision requires a simple majority and the approval or abstention of all five permanent members. Obligation

Like the other agreements of this study, the ICC is a legally binding treaty, the highest degree of obligation of any instrument under international law. Most of the substantive obligations of the Rome Statute are not new. Crimes triggering ICC action were already prohibited under existing international law: The definition of genocide in Article 6 of the Rome Statute is taken from the 1948 Genocide Convention; the definition of war crimes refers to the 1949 Geneva Conventions; and the definition of crimes against humanity is modeled on Art. 6 (c) of the Statute of the International Military Tribunal in Nuremberg. It has been expanded, however, to include forced disappearances and the crime of apartheid. Also included are torture and sexual violence, which were first included in the Statutes of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR).

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The definition of crimes against humanity in Art. 7 of the Rome Statute covers a number of activities “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” It specifically mentions: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. Even though the concept of crimes against humanity has evolved over time, the Rome Statute did not add anything without a precedent already recognized under international law. Like the Convention Against Torture, the ICC was intended as an instrument to enforce already existing norms. It also establishes individual criminal responsibility and does not exempt acts by persons acting in official capacity. The degree of obligation is further increased by a prohibition of reservations in Art. 120. Precision

The International Criminal Court strives for a high degree of legal precision. Like the Torture Convention, it is designed as a criminal statute. Unlike the Torture Convention, the Rome Statute does not require further elaboration through domestic implementing legislation.

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While the Torture Convention was intended to define the fundamentals that state parties should adhere to in passing their own national laws, the Rome Statute serves as the direct basis for criminal proceedings at the court. Therefore, in addition to the 128 Articles in the main body of the statute, there is an annex with detailed supplementary provisions, covering such areas as the rules of procedure and evidence, the elements of crime, the relationship between the court and the United Nations, its budget, and other legal and technical issues (United Nations 2002). The US delegation played a constructive role in specifying the rules and contributing to a greater degree of precision. The United States was strongly in favor of including a detailed list of criminal elements, a 4 suggestion that was met with considerable resistance from others. As a compromise, the participants in Rome agreed in Art. 9 to elaborate the elements of crime after the Rome Conference. Elements that were adopted by a two-thirds majority and consistent with the statute would serve to help interpret the definitions of crimes (Arsanjani 1999: 35). The suggestions made by the American delegation to achieve a higher degree of precision show no clear tendency to either expand or narrow the scope of the treaty. In some respects the proposed changes have offered additional protections to accused persons. At the US delegation’s insistence, the due process rights of the accused were extended. The threshold that triggers prosecution for offenses under the Rome statute was also raised. In order to constitute genocide, an act requires specific “intent” (Art. 6); crimes against humanity have to be “widespread or systematic” (Art. 7); and war crimes are only investigated if they are “large-scale” or “part of a plan or policy.” (Art. 8). On the other hand, the United States successfully argued for the inclusion of gender-related offenses and sexual crime in the definition of crimes against humanity, and ensured that the definition of crimes against humanity was not limited to inter-state conflict, but also referred 5 to internal conflicts. As in the Convention Against Torture, the US delegation supported the establishment of the criminal liability of superiors issuing orders, and command and control responsibility in Art. 28 (U.S. Senate Hearing 1998a: 12). Delegation

The degree of delegation of the ICC clearly exceeds that of the other regimes of this study. The ICC is one of only a few truly supranational organizations: The prosecutor and the judges are elected by the Assembly of States Parties – but once the officials have been elected, the states have no formal influence over their decisions.

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Based on the principle of complementarity, the ICC is a court of last resort. The United States delegation has worked to emphasize this principle, and to strengthen the deferral to national jurisdictions as a way to win additional protections against the prosecution of US citizens (U.S. Senate Hearing 1998a: 12). The default is for all states to try their own nationals if they are suspected to have committed crimes against humanity. Only if a state is unable or unwilling to prosecute someone should the ICC intervene. Inability to prosecute could occur in failed states or weak states with legal systems that are not up to the challenge. Unwillingness is likely to occur when the government concerned is complicit in committing the crimes and an independent judiciary does not exist. The crucial point is that the ultimate decision about whether or not a government is willing and able to prosecute lies with the court. Art. 17 of the Rome Statute explicitly states that cases are admissible to the ICC if a prosecution is improperly delayed, not independent or impartial, or is carried out to shield an individual from ICC prosecution. In other words, the ICC has the power to overrule the national legal systems of its member states. The one area in which the court is dependent on its member states is the enforcement of arrests and the extradition of persons sought by the court. The court does not have its own police force and has to rely on its member states or the forces of international organizations like the UN, NATO, or the African Union to hand over indicted persons. Any assistance to the court is to take place in accordance with the domestic rules of procedure of the concerned state. Art. 98 further recognizes that, in the extradition of third party nationals, the ICC has to defer to existing international law. States cannot extradite third-party nationals that enjoy diplomatic immunity or are covered by status-of-forces 6 agreements. Convicted offenders serve their terms in a country chosen by the court from a list of countries that have indicated their willingness 7 to assume that responsibility. International Tribunals: Fifty Years in the Making

The first efforts to establish a permanent criminal tribunal date back to 8 the late 1940s. The atrocities committed by the Axis powers during the Second World War led the Allied powers to set up the first international criminal tribunals in Nuremberg and Tokyo. In addition to prosecuting German and Japanese officials for initiating wars of aggression and for committing war crimes, the trials of Nuremberg and Tokyo brought about a major legal innovation: crimes against humanity, a category of offenses so grave that their perpetrators were considered hostes humani

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generis – enemy of all mankind. To prevent such crimes in the future, the United States, among other countries, proposed the establishment of a permanent tribunal during the founding of the United Nations at the 1945 conference in San Francisco (Leigh 2001: 124). The possibility of international tribunals was also envisioned in the Genocide Convention adopted in 1948, which mentions them in its Art. 6 as a means to prosecute individuals charged with the crime of genocide. In 1949 the UN General Assembly tasked the International Law Commission (ILC) with preparing a draft for such a criminal tribunal. By the time the ILC presented its draft in 1953, the emerging superpower confrontation overshadowed everything. Nobody took up the ILC’s proposal for a court, and no significant action on the matter followed for almost 40 years. Only after the Cold War ended did the idea of a permanent court find its way back on the UN agenda. In the early 1990s, the movement for the establishment of a tribunal picked up a new momentum due to several parallel developments. The initial spark was a motion from the UN delegation from the island state of Trinidad and Tobago in 1999 to establish an international court, originally with the aim to create an additional legal instrument in the struggle against the international drug trade. Once again, the General Assembly charged the International Law Commission with preparing a draft statute, which then created a working group for that purpose. In addition to the historical precedents of Nuremberg and Tokyo, contemporary war crimes tribunals also heavily influenced the ILC draft. Under the leadership of the United States, the UN Security Council created the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) in 1994. The ILC could draw on the experience with those tribunals in coming up with pragmatic solutions for the complex challenges of creating a permanent court. The ICTY and ICTR also showed that the establishment of ad hoc tribunals was difficult and timeconsuming, furthering the conviction that a permanent court was required for speedy and effective action with regard to crimes against humanity (Goldstone and Bass 2000). A New International Climate and the Moment of the NGOs

The initiative to create the International Criminal Court took place in the context of a particular atmosphere in international politics during the first decade after the end of the Cold War. On one hand, it was an expression of a renewed faith in international institutions after years of deadlock at the UN. The standoff between the United States and its

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NATO allies on one side, and the Soviet Union and the Warsaw Pact countries on the other, had paralyzed most cooperative efforts at the United Nations to establish new regimes and forms of governance. President George H. W. Bush’s invocation of a “New World Order” expressed the hope that a new constructive spirit could overcome the divisions of the past. The wide-ranging support for a UN mandate backing a multinational military response to the Iraqi invasion of Kuwait reinforced this optimism. On the other hand, the movement for a permanent tribunal represented an acknowledgement of the fact that the end of bipolarity did not mean the end of violent conflicts. The ensuing atrocities in the former Yugoslavia, the ethnic strife in Somalia, and the genocide in Rwanda prompted the international community to revisit the issue of crimes against humanity. After the tension about the possibility of nuclear war between the superpowers eased up, the horrors of civil war and ethnic violence received greater attention. The advent of a global electronic news media and the so-called “CNN effect” further contributed to demands by the public that the United Nations take action (Deitelhoff 2006: 170). The trend toward international tribunals followed in the wake of a reinvigorated debate about humanitarian intervention. While the concept of humanitarian intervention existed before the end of the Cold War (Tesón 1988), it quickly gained wider acceptance in international law discourse, as well as in state practice. The first step was that the Security Council expanded its definition of “threats to international peace” to include intra-state conflict, enabling it to authorize military action under Chapter VII of the UN Charter in order to prevent gross atrocities. Subsequently a broader debate about the limits of sovereignty, the legitimacy of humanitarian intervention, and the “responsibility to protect” emerged (ICISS 2001). While these related questions are far from resolved and remain deeply controversial, they are indications of a greater willingness in the international community to intervene in matters that were previously considered strictly internal affairs protected by the notion of sovereignty. Another new development in the 1990s was the increasing influence of NGOs in UN negotiations. Together with the Ottawa Convention Against Landmines, the ICC is considered one of the clearest examples of the so-called “new diplomacy” (Davenport 2002), in which NGOs play a strong role in the emergence of new international regimes (Kirsch and Holmes 1999: 4-5; Pearson 2006). In the course of the negotiations about an international court, a broad coalition in favor of a strong and effective court formed. In particular during the Rome conference, the

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NGO community had far-reaching access at the negotiating table. They coordinated with the so-called like-minded nations in favor of an independent court, provided expertise to smaller delegations, kept the press and the public informed almost in real time as events unfolded, and used the tactic of “naming and shaming” to pressure countries into adopting more far-reaching positions (Arsanjani 1999: 23; Deitelhoff 2006: 246-249). For example, the inclusion of gender-based crimes in the definition of the punishable offenses was partly due to NGO advocacy. However, they were not able to change the position of the United States. While they may have had an impact on the outcome of the negotiations, mainly by pressuring the like-minded states not to give in to US demands, and thus had an indirect impact on the US position in relation to other countries, they did not have much success in getting the United States to adjust its position to that of the majority of states. While the coalition supporting the ICC won the battle for public opinion in the United States, this success did not affect the positions of decision-makers. Public opinion polls between 2000 and 2005, the period the Bush administration’s campaign was in full throttle, show consistent majorities in favor of the ICC (CCFR 2002: 33; PIPA 2000: 9 46; PIPA and CCFR 2005). But because of the low salience of foreign policy issues in elections, politicians were able to ignore the public sentiment. The Clinton Administration’s Ambivalence

Bill Clinton was elected president following a campaign focused on the state of the economy and his priorities lay with domestic issues (Walt 2000). Nonetheless, the issue of crimes against humanity gradually became more important to the Democratic president. The failure of the international community to intervene and stop the genocide in Rwanda in 1994 had happened under Clinton’s watch and led him to make the prevention of genocide a key objective of his foreign policy during his second administration. In 1995 Clinton publicly expressed, for the first time, his support for creating a permanent tribunal (Clinton 1995). In the following years leading up to the Rome conference, he made positive references to the court six times (Scheffer 1999: 13). A State Department Sympathetic to the Court

Clinton followed the example of President Carter in appointing individuals sympathetic to the cause of human rights organizations (Forsythe 1997: 277). His first secretary of state, Warren Christopher,

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was a veteran of the Carter administration. As deputy secretary of state, he had supported assistant secretary Patricia Derian in her struggle to win recognition and influence for the newly created Bureau of Human Rights (Maynard 1989: 186). He had also presided over the Interagency Group on Human Rights and Foreign Aid. The so-called Christopher Group decided which countries should be denied loans and grants based on their human rights records. The undersecretary of state for human rights during Clinton’s first term, John Shattuck, had worked at the American Civil Liberties Union (ACLU) before joining the administration. So had Morton Halperin, who was nominated to become assistant secretary for democracy and peacekeeping at the Defense Department, but was denied confirmation by the Senate. He then became the head of the newly created National Security Council Office of Democracy, Human Rights, and Humanitarian Affairs. After Clinton’s re-election in 1996, Eric Schwartz, who had previously worked for Human Rights Watch, took over that office. These appointments suggest that Clinton sympathized with the human rights community from the outset, even though human rights issues were initially not at the center of his attention. In the second Clinton term, human rights, in particular the prevention of atrocities and crimes against humanity, became a priority of State Department policy (Koh 2002: 304-305). President Clinton picked Madeleine Albright, who had served as US representative to the United Nations during his first term, as his new secretary of state. Albright made it a personal priority to ensure that the United States would not allow mass killings like those in Bosnia and Rwanda to reoccur. Richard Holbrooke, who also had a distinguished record on human rights issues, became her successor as UN ambassador. To institutionalize this focus within the State Department bureaucracy, Albright created the post of ambassador at large for war crimes, a position outside of the Human Rights Bureau and endowed with the power to negotiate with foreign governments. She filled the newly created post with David Scheffer, who had been her legal adviser at the US mission to the United Nations. Both Albright and Scheffer traveled through Africa and the Balkans, and visited the graves of victims of genocide to call attention to the issue and demonstrate their commitment to fighting war crimes (Crossette 1996; Myers 1997b). According to Weschler (2000: 91), Scheffer had come away from these experiences deeply committed to the idea of the ICC. In mid-1998, about halfway through Clinton’s second term, Harold Honjun Koh became the successor to John Shattuck as assistant secretary of state for

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human rights. Koh also had an extensive résumé in the area of human rights. The State Department was hoping that a permanent criminal court would provide a useful tool in the implementation of a human rightsoriented foreign policy. Instead of using military intervention or economic sanctions to deal with murderous regimes, one could prosecute the perpetrators in a targeted manner, even creating a deterrent effect that might work preventively. Unlike economic and military sanctions, prosecution by the ICC would not indiscriminately affect the civilian population, and the costs would be much lower. A permanent court also had a number of advantages vis-à-vis ad hoc tribunals like the ICTY and ICTR. Establishing a standing tribunal was much more efficient and cost-effective than creating a new one for every conflict. The desired deterrent effect would be much stronger if the tribunal was visibly up and running. And, perhaps most importantly, China had indicated in the Security Council that it would not support further ad hoc tribunals (Scharf 1995). From the perspective of the State Department, a permanent court would be a useful tool in achieving its goals. The Pentagon’s Preoccupation with Prosecution

Since the International Criminal Court would have jurisdiction over war crimes, it was clear from the outset that the Defense Department would be centrally involved in negotiations about the court. The Pentagon was not only involved in the inter-agency process in Washington, but Defense Department officials were also part of the US delegation and participated in every stage of the negotiations, sometimes holding views that differed from the diplomats’. The Pentagon had two clear priorities: to preserve the greatest possible freedom for action in the conduct of military operations, and to protect the military from prosecution before an international tribunal. The Pentagon’s number one concern in this regard was the prospect of an independent prosecutor with the power to initiate investigations proprio motu. Prior to the Rome Conference, the Pentagon voiced this concern internally in an extensive memorandum (Conso 2005: 316). At the time advocates of the ICC argued that the fears of the Defense Department were overblown. In their view, the US military had nothing to fear, because the court would only investigate the most serious cases of atrocities on a large scale, and the US military adhered to international law as a matter of policy and consistently investigated violations (Clark 2002; Lietzau 2001: 121). In their view the ICC was intended to address atrocities on the scale of the genocide in Rwanda,

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not the occasional bomb that went astray and hit a civilian target during a military conflict. In addition, the United States had its own legal system to deal with any wrongdoing, and the US military had a policy of prosecuting violations of the rules of engagement. But Pentagon officials were not willing to take a chance. Their experience has shown that in the fog of war the line between right and wrong was never that clear-cut. Even though the US military adhered to the Geneva Conventions as a matter of policy and had a level of institutionalized checks on the legality of their operations unlike many other military forces in the world, the history of American warfare contained many examples of highly controversial military action. One obvious example was the bombing of Hiroshima and Nagasaki with nuclear warheads in the waning days of the Second World War, which instantly killed tens of thousands of civilians in each city. The US government has never acknowledged any wrongdoing, yet it is not unthinkable that, by today’s standards, a court would conclude that a 10 large-scale and indiscriminate nuclear attack constituted a war crime. Another example is the extended bombing campaign against Cambodia and Laos during the Vietnam War. The two countries were not official participants in the war, and the campaign was conducted in secret and without congressional authorization (see Barrett 2000-2001). While the jurisdiction of the ICC only covers crimes committed after it entered into force, similarly controversial military operations in the future could become subject to investigation. A lawsuit against a military operation conducted by Western governments shows that this concern was not purely hypothetical. In 1999, a group of Western academics pressed charges against NATO commanders for selecting civilian targets during its bombing campaign against Yugoslavia (Truehart 1999). The case caught the Western governments by surprise, as they had set up the court to deal with the crimes committed by the various ethnic groups in the dissolving Yugoslavia. But since the jurisdiction of the tribunal was defined on a territorial basis, any conduct within Yugoslavia fell under the ICTY’s responsibility. Though ICTY President Carla del Ponte dismissed the charges as unfounded, the case shows that the possibility of an international court sitting in judgment over the legality of US behavior 11 was real. The decision of the prosecutor to start a preliminary investigation of the US military’s conduct in Afghanistan, especially the treatment of prisoners, is another recent example of this possibility (Office of the Prosecutor 2014). As these examples show, the Pentagon’s concerns could not be easily dismissed. No matter how unlikely it seemed that any American

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would actually be convicted of wrongdoing, the Defense Department simply did not want any international institution scrutinizing their decisions. Even though the discussion in public was mostly about the threat the ICC could pose for the individual soldier, the actual concerns revolved around the decisions of military commanders and political 12 decision-makers. Most soldiers were not concerned, even after controversy about the ICC played out in public. As one retired Air Force Colonel put it (quoted in Holt and Dallas 2006: 31): “Folks in the military don’t question policy. It is not their job.” The Negotiations From New York to Rome: Creating a Permanent Tribunal

When the International Law Commission presented its draft of a statute to the General Assembly, the new court was modeled closely on the 13 existing ad hoc tribunals for the former Yugoslavia and Rwanda. Among the innovations of the ad hoc tribunals were rules and procedures of due process that combined the differing legal traditions in the world and found compromises between the civil and common law systems. The ad hoc tribunals also elaborated the definitions and specifications of the crimes based on more recent conventions and 14 evolving customary international law. However, the ad hoc tribunals had significant weaknesses. The Security Council had to begin from scratch each time a tribunal was established. More fundamentally, ad hoc tribunals were only established after atrocities had taken place, and thus had to prosecute the perpetrators retroactively. This was legally problematic since it conflicted with the basic principle of nullum crimen sine lege, and weakened the intended deterrent effect of criminal 15 prosecutions for future conflicts. A permanent court with the power to potentially investigate all cases of crimes against humanity created greater consistency in the application of law than tribunals that were only created after the fact, and did not cover every conflict or occurrence of atrocities. As originally conceived, the court was a permanent version of the 16 ad hoc tribunals without their restriction to specific conflicts. The Security Council would decide what situations and conflicts warranted an investigation, and refer those situations to the prosecutor of the ICC. The court would not be an independent institution, but an additional instrument in the toolbox of the UN Security Council. This dependency on the Security Council also meant that the permanent members of the

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Security Council would have had a great deal of control over the activities of the ICC, since they could have exercised their veto to prevent the ICC from getting involved in any particular conflict. Under the initial design, the United States as a permanent member of the Security Council had nothing to fear regarding ICC investigations of US personnel. The original concept of the court was also more limited in its jurisdiction. Automatic jurisdiction (allowing the prosecutor to investigate without referral by a state party or the Security Council) was only envisioned for the crime of genocide. Because the general assumption was that most states would not sign on to a court that could prosecute their nationals without their consent, the initial concept required agreement from both the state in whose territory the crime had occurred and the state that had custody over the accused (Wippman 2004: 155-156). Such a mandate would have been much more limited than that of the ICC eventually agreed upon in Rome. The initial draft of the International Law Commission was received favorably. The ILC working group presented first ideas on a draft statute in 1992, and their approach was endorsed by the General Assembly (on the following see Crawford 1995: 404-405). In 1993 the GA received the first draft for a statute, and in 1994 formally adopted another, more refined draft during its 46th session. The GA then established an ad hoc committee to explore the political issues connected to establishing the International Criminal Court. After two rounds of negotiations, the ad hoc committee recommended to the General Assembly the establishment of a Preparatory Committee (PrepCom) with the aim of preparing a diplomatic conference to negotiate the nature of the international criminal tribunal. The PrepCom began its work in 1996. It conducted six rounds of negotiations and in 1998 convened a conference in Rome with the purpose of resolving the major controversial issues surrounding the court. Over the course of these PrepCom sessions, a coalition of human rights organizations and a few individual states began to lobby for a more independent court with a stronger mandate. They feared that the dependence of the court on the Security Council would politicize the court and potentially create deadlocks that would block ICC action. The fear was that not only the permanent members themselves, but any country that was shielded from ICC action by a permanent member could commit atrocities with impunity (see Deitelhoff 2006: 202-213). Even though proponents of an independent court steadily gathered strength, most participants in the negotiations continued under the assumption that the court would operate more or less like the ad hoc

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tribunals. Throughout the working group’s proceedings from 1994 to 1996 and for most of the duration of the PrepCom sessions, the negotiations were based on the initial model. Only shortly before the Rome Conference did it become apparent that a majority of states favored a more independent court (Deitelhoff 2006: 211). When the conference in Rome began, the contested issues were still unresolved. The consolidated text that formed the basis for the negotiations contained multiple alternatives in order to resolve these questions. At the beginning of 1998, during the last PrepCom session before the Rome Conference, the United States delegation first began to express doubts about the direction negotiations were taking. Up until this point the delegation led by the State Department had been clear about its support for the idea of the International Criminal Court. But in the course of the sixth round of PrepCom talks from 16 March until 3 April 1998, Washington realized that it would have a hard time convincing the majority of states to make any court initiative dependent on a Security Council mandate. According to a report by The New York Times, there were rumors that the American delegation was willing to compromise on the issue of the court’s control by the SC (Crossette 1998). At the same time the US government attempted to win over other countries. In an unusual move, the Defense Department summoned the military attachés from more than 100 embassies on 31 March and 1 April to inform them about the potential dangers of such a court. If the court was not sufficiently restrained, the Pentagon argued, it might press charges against military personnel participating in peace missions. In addition to these meetings in Washington, the Pentagon dispatched a team of experts to major European capitals to lobby for a court that more closely corresponded to US priorities (Schmitt 1998; see also Conso 2005). The Rome Conference

From 15 June to 17 July 1998, the plenipotentiaries of all UN member states convened in Rome to resolve the remaining controversies about the design of the court. The United States was represented by the largest delegation, numbering more than 60 people. It was headed by David Scheffer – the ambassador at large for war crimes and close confidant of Secretary Albright – and included representatives of the Departments of State, Defense, and Justice, the Joint Chiefs of Staff, and the US mission to the United Nations. In addition, staffers of Senators Jesse Helms and Joseph Biden were present to observe the negotiations (U.S. Senate Hearing 1998a: 21). On a number of issues the United States managed to

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find a majority for its position. It succeeded in focusing the responsibility of the court on crimes against humanity, genocide, and war crimes. The original proposal had also included drug trafficking and terrorism as part of the court’s jurisdiction, but for terrorism there was no common definition among participants and the United States did not want to delegate responsibility for combating drug trafficking to the 17 court, but rather maintain its own initiatives. The American delegation also heavily influenced the discussion on the rules of procedure and evidence, and succeeded in making the judicial standards compatible 18 with the US Constitution, according to most experts. The key points of disagreement remained the relationship between the ICC and the UN Security Council, and the scope of the court’s jurisdiction. From the American point of view these two questions were interlinked, because they both had an impact on the court’s ability to prosecute US citizens. The first line of defense against prosecutions was to make the ICC’s ability to initiate proceedings dependent on Security Council approval, and thus subject to a US veto. The fallback position of the American delegation was to agree to a prosecutor independent of the Security Council, provided the court would limit its jurisdiction to cases in which the state of nationality of the accused had consented to the proceedings. One argument in favor of linking the ICC to the Security Council was that ICC involvement in situations the Security Council was dealing with would be counter-productive, based on the notion that the ICC's criminal investigations could hinder efforts by the Security Council to 19 end violent conflicts. However, during the last PrepCom meeting before the Rome conference, it became apparent that most countries were not prepared to perpetuate the double standard between permanent and non-permanent members of the Security Council by making ICC action conditional on SC approval. Instead, the like-minded states succeeded in establishing an independent prosecutor endowed with the right to begin investigations proprio motu (at his or her own initiative), based on the 20 information available. To address the concern about potential tensions between the Security Council and the ICC, the international community adopted a suggestion first introduced by Singapore. According to this compromise, ICC activity regarding a given situation could be suspended for a year on a renewable basis, provided a majority of the Security Council, including all five permanent members, agreed. This compromise became known as the reversed veto: Instead of one permanent member being able to block an ICC investigation, one veto was sufficient to block the suspension of ICC activity. The Security

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Council could also actively refer situations to the ICC, in which case the ICC would have automatic jurisdiction, regardless of the consent of the involved parties. The US delegation grudgingly accepted this compromise, but subsequently looked to limiting the jurisdiction of the court as a way to protect US nationals. It aimed to make the consent of the state of nationality of the accused a requirement for ICC involvement. Consent could be given either in the form of ratifying the treaty or on a case-bycase basis. The fact that the United States wanted to use the jurisdiction issue as a way to shield its citizens from the court signaled an important shift. It effectively meant that the United States had resigned itself to taking a position of remaining outside of the treaty. While an ICC dependent on the Security Council would have allowed the United States to join the court and protect its citizens from prosecution, a narrow jurisdiction could only protect Americans if the United States remained outside the court’s regime. Supporters of a strong court were arguing for much broader jurisdiction. They argued that requiring government consent to be able to prosecute individuals would let those who had been the main reason for establishing the court in the first place off the hook: government officials who were responsible for atrocities. Therefore, the like-minded states initially called for comprehensive universal jurisdiction. This position quickly gave way to the so-called Korean compromise, which envisioned the ability to launch investigations if one of four conditions was met: Either the state of nationality of the offender, the state of nationality of the victim, the state on whose territory the crime had occurred, or the state that had custody over the accused had to be a party to the Rome Statute or agree to the ICC’s involvement. During the tough negotiations that followed, the basis for ICC jurisdiction was narrowed down even further. According to the final compromise, the consent of either the state of nationality of the accused or the state in whose territory the crime had taken place was required for the prosecutor to initiate proceedings, unless a Security Council referral had been made. The territorial criterion as a basis for jurisdiction was built on the basic principle in international law that every state has exclusive jurisdiction over its territory. The reasoning was that the state that had jurisdiction under the legal status quo could delegate this jurisdiction to the ICC. That outcome did not fulfill the US requirement for absolute protection of US citizens from the ICC. Thus, up until the final vote, the US delegation pushed to change the language to the effect that both the state of nationality of the accused and the state exercising sovereignty over the concerned territory would have to give their consent. The US

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delegation resorted to the argument that a treaty that imposed obligations on countries that had not ratified it was contrary to 21 international law. Most international lawyers rejected this reasoning on the basis that the ICC did not impose obligations on non-state parties. Rather, if US citizens committed an offense in another state, that state would automatically have jurisdiction under the territorial principle in 22 the absence of any treaty. No rule existed that prohibited the state of jurisdiction to extradite the accused to another state, or to the ICC, especially when the ICC could be expected to follow a higher standard of due process (Leigh 2001: 127; Scharf 2000a, 2001). Over the final days of the Rome conference, the United States suggested several alternatives, all with the aim of accomplishing a water-tight guarantee that American citizens could not be prosecuted without the US government’s explicit consent. One idea was to achieve this goal through clauses in the appendix to the Rome Statute; another was to conclude an extradition treaty between the ICC and the United States similar to the status-of-forces agreements. But when the majority of countries signaled that they would not accept any of these suggestions, and a last-minute amendment to change the language failed, the US delegation joined six other countries in voting against the adoption of 23 the Rome Statute. A Split behind the Scenes

The circumstances surrounding the conclusion of the Rome conference, as well as the US voting decision, were somewhat chaotic. The standing instructions for the head of the American delegation, Ambassador Scheffer, were to vote against the treaty unless US demands were fully met. President Clinton was preoccupied with the repercussions of the Monica Lewinsky scandal (Biegi 2004) and throughout the conference Scheffer had difficulties reaching his superiors in Washington for updated instructions, and it remained unclear on which positions the US delegation could compromise in order to avoid having to vote against the treaty. Despite the chaos, the driving forces behind the opposition to the ICC within the administration are clear. The negative vote was mostly due to the Pentagon’s continuing insistence that its commanders and soldiers had to be shielded from potential prosecutions. Assurances from supporters that such a scenario was highly unlikely were not considered 24 sufficient. The State Department, having been a major force behind the ad hoc tribunals, favored supporting the ICC. Like the rest of the administration, the State Department preferred a court that the United

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States could have controlled through the Security Council; but unlike the Pentagon, it was willing to compromise in the face of a situation where its preferred outcome was out of reach. The State Department was willing to give the emerging institution the benefit of the doubt, and the desire for a court with US involvement trumped the concern about the potential prosecution of Americans. This split between the Pentagon and the State Department went through all levels of the hierarchy, from within the US delegation in Rome to the cabinet level. Ambassador Scheffer’s discomfort was with the prospect of having to vote against the treaty is a poorly kept secret. Up until the last day of the conference, he was looking for ways that would enable him to join the consensus and support the outcome of the Rome conference. This basic constellation did not change much over the following years. When Clinton had to make the decision about whether or not to sign on to the Rome Statute with the deadline approaching, he was once again faced with irreconcilable recommendations from the secretaries of defense and state. The reasons for the Pentagon opposition remained the same over the two years following the Rome conference, during which the US delegation continued to participate in the PrepCom meetings. The State Department had attempted without success to push through regulations at the international stage that would have alleviated the Pentagon’s worries. During the PrepCom meetings of April and June 2000 the United States asked for the inclusion of a passage in the relationship agreement between the ICC and the United Nations that would exempt the nationals of nonparty states from the ICC’s jurisdiction, unless the nonparty state consented to prosecution (Leigh 2001: 126). The American delegation also attempted to conclude an extradition treaty similar to the status-of-forces agreements (SOFAs) with the ICC, which would have required the ICC to extradite Americans to the United States. On 17 April 2000, Secretary of State Madeleine Albright threatened in a letter to more than 100 governments that the United States would actively resist the ICC if this condition was not met (Burroughs et al. 2003: 125). Signing the Rome Statute at the Last Minute

Despite the failure to pressure other countries into meeting US demands, the more human rights-oriented officials at the State Department worked 25 for a reversal of the US vote. They were waiting for an occasion that would enable them to convince Clinton to sign on to the ICC. That occasion presented itself when the end of Clinton’s presidency coincided

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with the 31 December 2000 deadline that would bar states that had not signed the Rome Statute from further participation in the negotiations. Supporters of the ICC saw the deadline as an event that would help justify a reversal in position. A number of officials in the State Department bureaucracy, among them Ambassador David Scheffer, Undersecretary of State for Human Rights Harold Koh, Morton Halperin, and Eric Schwartz, had carefully planned to make their pitch 26 to the President. They were convinced that signing the treaty would practically be an irreversible step that would put the United States on record as intending to accede to the ICC in the future. But Clinton was preoccupied with other issues, and did not turn to the ICC decision until he was at Camp David for the holidays. Clinton literally decided at the last minute: On Sunday, 31 December, he gave the instruction to deposit the US signature to Ambassador Scheffer, who was standing by at the US Mission in New York. According to Harold Koh, Clinton had no clear preference on how to act until the very end. He was faced with conflicting position papers and lists of people both in favor of and opposed to signing the treaty. Freed from political pressures at the end of his tenure, he decided to follow the suggestions of the people who were closer to him personally. Explaining his decision, Clinton (2000) wrote: We do so to reaffirm our strong support for international accountability and for bringing to Justice perpetrators of genocide, war crimes, and crimes against humanity. […] In signing, however, we are not abandoning our concerns about significant flaws in the Treaty. […] With signature, however, we will be in a position to influence the evolution of the Court. Without signature, we will not. […] Given these concerns, I will not, and do not recommend that my successor submit the Treaty to the Senate for advice and consent until our fundamental concerns are satisfied.

Just how firm the opposition of the Pentagon was became apparent when the outgoing secretary of defense restated his opposition on the record, even after President Clinton had come around to sign the treaty. In a letter to Senator Jesse Helms, who had urged him to oppose the signature, Cohen wrote (Cohen and Shelton 2001): “The fact that the treaty has now been signed does not change the DoD [Department of Defense] position toward the treaty, nor will it in any way affect our resolve to protect our service personnel as necessary and appropriate from any effort on the part of the Court to exercise jurisdiction over them.”

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A Highly Skeptical Senate Activities during the Clinton Administration: Watchful Skepticism

Under the chairmanship of Senator Helms, the Foreign Relations Committee had been critical of the ICC from the very beginning. In early 1994, in the context of the ILC draft for a statute, Congress had still expressed its support for the ICC. Then Republicans took control of the Senate at the end of 1994. When reports just before the Rome conference indicated that the United States would agree to a court regardless of the degree of US control, Senate Republicans, in particular those on the Foreign Relations Committee, began to scrutinize the treaty closely. Members of the staffs of Senators Jesse Helms and Joseph Biden participated in the US delegation as observers and Helms himself made an appearance in Rome to announce that no treaty establishing a court with the power to prosecute Americans would be ratified by the Senate (Deitelhoff 2006: 261). Chairman Helms’ skepticism of international institutions was well known. His Republican colleague Rod Grams, chairman of the Subcommittee on International Operations, shared his views on opposing the court. On 23 July, shortly after the Rome Conference, Senator Grams held hearings before the subcommittee to question administration representatives on their views of the court. In his opening statement he strongly condemned the outcome reached in Rome (U.S. Senate Hearing 1998a: 3): Supporters of this treaty are banking on the fact that the United States will allow this court to flourish and gain legitimacy over time. We must not allow that to happen. Even if it is weak at its inception, the Court’s scope and its power can and will grow. This court will be an international institution without checks or balances, accountable to no state or institution for its actions, and there will be no way to appeal its decisions except through the Court itself. […] The only fail-safe way to ensure these results is to make sure that this treaty never is ratified by the 60 nations necessary for it to go into force. Should this court come into existence, we must have a firm policy of total non-cooperation, no funding, no acceptance of its jurisdiction, no acknowledgement of its rulings, and absolutely no referral of cases by the Security Council.

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[…] I hope that now the administration will actively oppose this court to make sure that it shares the same fate as the League of Nations and collapses without US support for this court truly I believe is the monster and it is the monster that we need to slay.

In addition to Helm and Grams, John Ashcroft joined the opposition. 27 Their main criticisms of the court were the following: • •

• •

• •

The ICC’s power “to override the United States legal system and to pass judgment over [its] foreign policy actions.” Universal jurisdiction and the ability of the court to prosecute American soldiers and decision-makers. According to Grams this would make US military intervention to prevent atrocities less likely. The court’s independence from the Security Council would create instability in the international system. The independent prosecutor could raise frivolous charges. Opponents criticize that the prosecutor and the judges are elected by a majority of state parties, regardless of whether or not the latter are democracies. According to the critics, this does not guarantee sufficient qualifications for personnel serving on the court, nor fair decisions in the cases heard. The crime of aggression could potentially be used against US military action without UN Security Council approval (Helms: 6) The treaty is incompatible with the US Constitution and does not guarantee the protections of the Bill of Rights.

One particular complaint was that the treaty does not allow for 28 reservations. Senator Helms, in his statement, proceeded to outline a number of steps to “actively resist” the court. They were: •

Renegotiation of the Status of Forces Agreements with countries that joined the court. In the absence of immunity agreements, the United States would withdraw troops, discontinue its participation in UN peacekeeping missions, and renounce the security guarantees given under the NATO treaty.

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No financial or other support for the court, including: No extradition of anyone to the court by the United States No US vote in favor of Security Council referrals.

The skeptical attitude was not limited to the Republicans. The Democrats present at the hearing also voiced concerns. Diane Feinstein, the ranking minority member of the subcommittee, expressed her desire to create a court to end the impunity for gross human rights abuses, but was also unwilling to support the court in its present form. In general the Democrats trusted the administration to handle US policy toward the court, but no one advocated signing the Rome Statute or moving toward ratification. Joseph Biden commended Ambassador Scheffer on reaching the right decision in not signing the Rome Statute (U.S. Senate Hearing 1998a: 22). Around the time of the hearing, senators expressed tentative plans to pass a law that would prohibit the president from any cooperation with the court. By assuring the Senate that the president had no intention to sign the Rome Statute in its present form, the White House was able to convince Helms not to introduce the legislation. Introducing the American Servicemembers’ Protection Act

After the Clinton administration had signed the Rome Statute at the last minute, the plans for a bill ruling out any cooperation with court were revived under the name American Servicemembers’ Protection Act (ASPA). In accordance with the measures of resistance Helms had proposed earlier, the ASPA had four core elements: • • • •

A prohibition of any cooperation with the ICC, whether financially, through extraditions of suspects, or support for Security Council referrals. A prohibition of participation in UN peacekeeping missions unless US personnel is exempt from ICC jurisdiction. A prohibition of any military aid to states unwilling to sign immunity agreements with the United States, with the exception of the most important military allies. The authorization of the president to use “all necessary means” to liberate American citizens from the captivity of the ICC.

Because of the last provision, its critics mockingly referred to the American Servicemembers’ Protection Act as the “Hague Invasion Act.”

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Over the years from 2000 to 2002, there were several initiatives to pass different versions of the ASPA in the House and the Senate, both as a stand-alone bill and as an amendment. On 14 June 2000, Jesse Helms and Rod Grams sponsored a version of the bill and held hearings before the Senate Foreign Relations Committee the same day (U.S. Senate Hearing 2000). Helms made another attempt when he introduced the bill as Senate Amendment 2336 to the Defense Appropriations Act.29 It passed the Senate on 7 December 2001, with 72 to 21 votes in favor, but was dropped in the conference committee. The vote shows that even before the Bush administration revoked the signature of the Rome Statue, almost three quarters of senators were willing to take drastic measures to oppose the ICC. The so-called Hyde amendment, prohibiting financial support for the ICC, was retained. The so-called Craig amendment to the Commerce, Justice, State and the Judiciary Appropriations Act also prohibited any cooperation with the ICC.30 President Bush signed both bills into law. With regard to the latter, Bush declared in a signing statement that he accepted the provisions insofar as they were “consistent with [his] constitutional authority in the area of foreign 31 affairs.” The version that we know today as the American Servicemembers’ Protection Act of 2002 is based on House Resolution 4775. It was introduced on 20 May 2002 and passed the house three days later with 397 votes in favor and 32 against. On 7 June, the ASPA passed the Senate with 92 to 7 votes. The conference committee version was adopted in the House on 23 July and in the Senate on 24 July. It was signed into law on 2 August 2002. In comparison to earlier versions, the ASPA adopted was slightly modified. It included the authority for the president to waive the prohibitions on military aid and participation in peacekeeping missions if this was required for the “national interest”. In addition, the final version contained an amendment by Senator Chris Dodd that explicitly authorized US cooperation with the ICC for prosecuting the worst 32 criminals, such as Saddam Hussein or Osama bin Laden. The presidential waivers notwithstanding, the ASPA blocked countries that had refused to sign bilateral immunity agreements from receiving funding or cooperation under the Foreign Military Funds (FMF) and International Military Education and Training (IMET) programs. The Nethercut amendment, adopted a few months later, also prohibited aid 33 through the Economic Support Funds (ESF).

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Bush Backs Out

When President George W. Bush assumed office in early 2001, the administration quickly went to work implementing a policy of unambiguous opposition to the International Criminal Court. Within less than a year, the administration had decided to reverse the US signature of the Rome Statute and take a number of steps designed to ensure that the court could not assert jurisdiction over Americans. Bush had campaigned for the presidency opposing the ICC. In the Bush team the ICC had no high-level advocates. Both the new Secretary of Defense Donald Rumsfeld and Secretary of State Colin Powell were opponents. Rumsfeld continued his predecessor’s legacy as an advocate of the Pentagon’s institutional concerns against the ICC. In the new administration, however, the State Department joined the anti-ICC camp. Secretary Powell’s military background as a four-star general and former chairman of the Joint Chiefs of Staff made him sympathetic to the military’s concerns. Thus there was no question of whether the Bush administration would support or oppose the ICC. The only question was what form the opposition would take. The Policy Review

The driving force behind the administration’s policy on the ICC was John Bolton, the newly appointed undersecretary of state for arms control and security policy. Bolton had a long history of opposing international institutions in general and the ICC in particular. In his time outside the government, he published a number of articles, warning of the dangers of international law and institutions to American national interests (Bolton 2000a; Bolton 2000b). In addition, he had published, given speeches, and testified in Congress about the need to unambiguously oppose the ICC (Bolton 1999; U.S. Senate Hearing 1998a). Bolton was put in charge of overseeing a formal review of US policy toward the International Criminal Court. Undersecretary Bolton argued that it was not sufficient to remain outside the Rome Statute. He advocated taking active steps to prevent the ICC from becoming active and exerting jurisdiction over American 34 citizens. In order to do so it was necessary to suspend President Clinton’s signature to the Rome Statute, since in becoming a signatory the United States had committed to not engaging in actions contrary to the treaty. Bolton advocated formally withdrawing the signature, and according to his version of events, Secretary of State Colin Powell 35 agreed. Some of the lawyers in the State Department were opposed to

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this reversal, since such a move was unprecedented. The legal experts emphasized continuity and were worried that such a move would undermine America’s reputation as a reliable partner abroad, conforming to the expectations of the officials of the Clinton administration that a signature would be practically irreversible once given. In an administration unusually willing to break with prior practice, Bolton’s determination to fight the court succeeded. Initially the suspension of the signature was planned for September 2001, but was delayed by the terrorist attacks of 9/11, which absorbed all government 36 resources. When the 60th country ratified the Rome Statute in April 2002, it was clear that the statute would go into effect on 1 July of that 37 year. With the beginning of the court’s operation quickly approaching, the administration followed through with the suspension of the signature. On 6 May 2002, Bolton informed UN Secretary General Kofi Annan in a letter that the United States no longer intended to become party to the Rome Statute (Bolton 2002). This is to inform you, in connection with the Rome Statute of the International Criminal Court adopted on July 17, 1998, that the United States does not intend to become party to the treaty. Accordingly, the United States has no legal obligations arising from its signature on December 31, 2000. The United States requests that its intention not to become a party, as expressed in this letter, be reflected in the depositary’s [sic] status lists relating to this treaty.

Bolton later described this event as his “happiest moment at [the Department of] State.” (Bolton 2007: 85). The letter marked the beginning of a fierce campaign of opposition to the ICC. Angry Reactions to the Start of the ICC

The American campaign against the ICC did not stop at withdrawing the signature from the Rome Statute. When the date of the entry into force was set for 1 July 2002, the US government also began to take active measures to ensure that the court would under no circumstances exercise jurisdiction over American citizens. The American efforts to protect US nationals had two components: bilateral immunity agreements that would prohibit the extradition of American citizens to the ICC with as many countries as possible, and an effort to enact Security Council resolutions protecting UN peacekeepers from ICC prosecution. Despite

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assurances to the contrary, the new strategy effectively undermined the development of the court (Johansen 2006). The Campaign for Immunity Agreements

Immediately after the suspension of the signature, the administration embarked on a worldwide campaign to conclude immunity agreements with as many countries as possible. Under the leadership of John Bolton, the United States pressed both members and non-members of the ICC to conclude bilateral immunity agreements ensuring that American citizens would not be handed over to the ICC without US consent. As a legal basis for these agreements, the administration used Art. 98 Section 2 of the Rome Statute. Under this article the Rome Statute recognized the validity of extradition treaties between states, such as the Status of Forces Agreements (SOFAs) that the United States routinely negotiated with any country where American troops were stationed. SOFAs set up a regime of concurrent jurisdiction between the US military justice system and the host country, in which the host country would generally agree to defer jurisdiction to US military courts for offenses committed 38 by American troops during official business. In order to prevent countries from handing over Americans to the ICC, the United States now sought to conclude agreements that covered all American citizens, not only those on official business. The Bush administration tried to cast the net of immunity agreements as wide as possible. It targeted all countries, regardless of whether they were state parties to the Rome Statute and whether or not American troops were stationed there. Whether such immunity agreements are in accordance with the Rome Statute is indeed highly contentious (Elsea 2006: 26-28; Morris 2001; Scharf 2001; Scheffer 2002). The US position is that Art. 98 not only covers previously existing extradition treaties, but also permits the creation of additional ones. The language of the article is ambiguous, but the Clinton administration also interpreted the article to permit the 39 renegotiation of existing SOFAs and the conclusion of new ones. European countries argue that the intent of the article was only to cover existing SOFAs. According to their view, the systematic creation of new immunity agreements promoting impunity was contrary to the spirit of the Rome Statute. There was some controversy within the State Department about the aggressive push for immunity agreements. Especially A. Elizabeth Jones, the assistant secretary of state for European and Eurasian affairs, wanted to end the policy (Bolton 2007: 86-87). With the support of the other regional bureaus, she appealed to Secretary Powell for a change in

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the practice. According to Bolton, Jones had also refused to actively pursue the agreements with European countries in the time period before the European Union had agreed on a common position and also sought waivers for the European countries in question. Around April 2003, Undersecretary of State Marc Grossman convened a meeting. Jones was asked to make her case for ending the campaign, while John Bolton and Lincoln Bloomfield, assistant secretary of state for political-military affairs, defended the policy. In the end, Grossman sided with Bolton and the practice continued. Subsequently, the United States used a great deal of diplomatic and economic pressure to prevent countries from becoming state parties to the ICC and to encourage immunity agreements. Washington threatened to withdraw any troops stationed in member states without Article 98 agreements, and canceled economic and military aid to those countries. Especially smaller countries that were dependent on US aid were thus forced to give in to US demands and conclude immunity agreements. To this date, more than 100 countries have concluded Article 98 agreements. The number of countries that did not ratify the ICC as a 40 result of US pressure is difficult to determine. The Struggle over Peacekeeping Missions

Around the same time the United States began its campaign for Article 98 agreements, the American delegation to the United Nations also began to press for immunity for its peacekeeping forces. The Pentagon saw this as a necessary step to protect US personnel, since, despite all efforts, the system of Article 98 agreements was not complete by the time the Rome Statute entered into force. In May 2002, on the occasion of the renewal of the mandate of the UN Transitional Administration in East Timor (UNTAET), the United States threatened to block all mandates of peacekeeping operations in the event that American personnel would not be exempted from the ICC’s reach. While it did not veto the mission in East Timor, it renewed the threat only a month later with regard to the UN Mission in BosniaHerzegovina (UNMIBH), determined to follow through this time. On 19 June, the US mission introduced two different proposals designed to address their concerns. The first proposal would have introduced a provision in the Security Council resolution authorizing the UNMIBH to grant military personnel participating in that mission immunity from international tribunals. The second proposal was a separate resolution protecting all personnel of peacekeeping missions from arrest, detention, and prosecution. When the other members of the Security Council

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rejected these two proposals and a revised proposal granting immunity only to states not party to the Rome Statute, the United States used its veto to prevent the renewal of the mandate for UNMIBH on 30 June (Negroponte 2002). To allow for more time for negotiations, the United States agreed to extend the mission's mandate by three days. When there was no agreement by that date, another extension until 15 July was 41 granted. After intense negotiations, a compromise was finally reached. Instead of granting broad immunity, the resolution agreed upon stated that, under Art. 16 of the Rome Statute, the Security Council would defer any investigation or prosecution of peacekeeping troops for the duration of twelve months. The United States had sought to include language prompting automatic renewal of the provision at the end of the twelve months. This request was denied, and instead the resolution only included a statement that the Security Council intended to renew the resolution upon expiration for as long as necessary. This compromise became Resolution 1422 and was passed on 14 July 2002, with the 42 European countries abstaining. The following year the United States introduced the resolution without any changes. Although more than 70 countries spoke out against the renewal at a public Security Council meeting, the resolution was renewed without much debate. France, Germany, and Syria abstained in 43 the vote. Signs of a Softening Position

In the course of the second term of George W. Bush’s presidency, the administration softened its policies toward the ICC. The shift away from ideological hardline positions toward a more pragmatic approach was not limited to ICC-related issues, but it reflected a broader trend. The war in Iraq and the lack of multilateral consultation in the conduct of the war on terrorism had not only strained American resources, but had also led to deteriorating relations with many US allies. The limits of US military power became visible precisely at the time when Washington had trouble gaining support from other countries due to its reckless behavior. Notable changes on a number of issues followed, from the administration’s approach toward adversarial regimes, like those of Iran and North Korea, to transatlantic relations and multilateral organizations. The more moderate Robert Gates replaced the polarizing Donald Rumsfeld as secretary of defense, and Condoleezza Rice, who had moved from the post of national security advisor to become the new

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secretary of state, undertook the task of improving relations with important US allies. The State Department, which had been marginalized during Colin Powell’s tenure as secretary of state, regained a stronger role in designing US foreign policy. Within the department, the more moderate voices reasserted their influence. While John Bolton tried to continue his crusade against the ICC, his influence on the administration’s decisions was waning. At the beginning of Bush’s second term, he was nominated as representative to the United Nations, where he did everything he could to keep US policy on the course of zero cooperation with the ICC that he had always championed. At the World Summit of the United Nations’ 60th anniversary, he ensured that all references to the ICC and the goal of ending impunity for atrocities were deleted from the final communiqué. But on crucial questions of how to behave vis-à-vis the ICC, his position of total opposition lost out. When his recess appointment as UN ambassador expired after he failed to gain Senate confirmation, Bolton left the administration. Although the Bush administration never officially revoked the policy of rejecting the ICC and continued to pursue bilateral immunity agreements with countries around the world, it toned down its rhetoric considerably. Perhaps the clearest sign of this change was a speech from State Department Legal Adviser John Bellinger at a conference celebrating the 10-year anniversary of the Rome Statute at DePaul University (Bellinger III 2008), in which he said: [E]ven if we disagree over the means chosen by the Rome Statute – and I believe that this is a disagreement that is likely to continue under future US administrations unless US concerns are addressed – nevertheless we do not disagree over the Statute’s end goals, and we are prepared to work with those who support the Court in appropriate circumstances.

More specifically, the administration gave up its uncompromising opposition in three areas: it stopped boycotting UN peacekeeping operations absent a resolution of blanket immunity; stopped blocking the referral of situations to the ICC by the Security Council; and stopped denying aid to any country unwilling to enter a bilateral immunity agreement with the United States.

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The Immunity Resolution Expires

In 2003, the Security Council had, without much controversy, renewed the Security Council Resolution granting immunity to UN peacekeepers from nonparty states for another year. The following year the resolution was once again up for renewal, and the US delegation reintroduced the same language. The stakes were high, since a second renewal would have cast doubt on the temporary nature of the suspension of ICC jurisdiction over peacekeeping forces and would have given ammunition to those who claimed the exemption of peacekeepers should be made permanent. This time around, however, the mood in the Security Council was notably different from that the previous year. A few weeks before the 44 vote, the story of the Abu Ghraib prison scandal appeared on the news. The graphic images of Iraqi prisoners who had been mistreated by US soldiers created an uproar of indignation around the world, and placed the Bush administration on the defensive. Since global public opinion of US foreign policy was at a low point as a consequence of the scandal, the administration did not think it was in the position to repeat its tactic of threatening to veto the extension of peacekeeping mandates to force a 45 renewal of the immunity resolution. When the majority of states opposed a further renewal, the United States had little option but to accept defeat. The United States reacted by withdrawing the remaining personnel from UN peacekeeping missions in countries where they were not protected by bilateral immunity agreements. This did not affect the missions to a great extent, since the number of US military and civilian 46 personnel was rather small by that point. The command of the UN Mission in Kosovo had been transferred from NATO to the European Union, and the mission could continue its work largely unaffected. The Situation In Darfur is referred to the ICC

Even more remarkably, Washington eventually saw the need to compromise with respect to ICC action regarding the situation in Darfur. The region in the western Sudan was of increasing concern to the international community, as a conflict between the central government and a secessionist movement had spiraled into a humanitarian disaster accompanied by mass atrocities against the civilian population. In order to suppress a rebellion by the secessionists, the central government in Khartoum had induced militias to expel the people of Darfur. The socalled Janjaweed engaged in a systematic campaign of ethnic cleansing,

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driving people from their homes into neighboring Chad, and killing many in the process. It is estimated that more than one million people were displaced and 200,000 murdered. The situation was a clear example of precisely the type of crime against humanity that the ICC was designed to punish and possibly deter. Both the American public and the government felt that the need to act in Darfur was urgent. A number of campaigns from human rights organizations pressured the US government to act. Because the war in Iraq had partly been justified on humanitarian grounds as an intervention to liberate the Iraqi people from Saddam Hussein’s reign of terror, a failure to act in the Sudan left the Bush administration with a credibility problem. Secretary of State Colin Powell further increased the pressure to act by referring to the atrocities in Darfur as a case of genocide (Kessler and Lynch 2004). At the same time, most of America’s military capabilities were tied down with the occupation of Iraq, precluding the possibility of a large-scale military intervention and leaving the arduous task of peacekeeping and securing humanitarian relief mostly to the African Union. With the international community neither able nor willing to act decisively to stop the atrocities, engaging the International Criminal Court was the next best option. Sudan had not ratified the Rome Statute; since the government of Sudan was responsible for committing the atrocities, Sudan’s agreement to the ICC's ad hoc jurisdiction based on the territorial principle was unlikely. The only way to involve the ICC prosecutor would be a mandate from the Security 47 Council. This situation presented the American government with a dilemma. Its standing policy of total opposition required it to veto any Security Council referral. But doing so would have meant preventing the only meaningful action – however modest – that the international community was willing to take on Darfur. Such a move would have provoked both domestic and international outcry. When the US delegation managed to include a provision immunizing international peacekeeping forces from the ICC, the United States allowed the referral resolution to pass by abstaining from the vote. On 31 March 2005 the UN Security Council 48 voted 11 to 0 to refer the situation to the ICC. Even though John Bolton advocated vetoing the resolution, his position did not carry the 49 day. In the end the administration gave priority to the real concerns about the situation in Darfur over a largely symbolic position of principled opposition to the court. In the years since the referral, the United States has actively supported the ICC’s investigation of the Darfur situation. Without formally renouncing its policy of no support for the ICC, it has, in fact,

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pragmatically and effectively cooperated with the ICC’s investigation. The ICC’s work has even been praised by both administration officials and members of Congress. In 2005, Deputy Secretary of State Richard Zoellick lent support to the ICC’s efforts in Darfur on several occasions (AMICC 2008). In early 2008, State Department Legal Adviser John Bellinger said in a speech that “if the ICC were to make a request for appropriate assistance from the United States in connection with the Darfur matter, we would be prepared to consider it consistent with applicable US law.” (Bellinger III 2008). Senators who have referred positively to the ICC’s work in the context of the Darfur investigation include John McCain, Patrick Leahy, Benjamin Cardin, and former Senator Bob Dole (AMICC 2008). The United States Resumes Aid to Countries

In the last years of his presidency, President Bush also increasingly used his authority to waive certain provisions of the American Servicemembers’ Protection Act. Under the ASPA and related amendments, the president is prohibited from granting aid to countries that refuse to sign a bilateral immunity agreement with the United States under Art. 98 (2) of the Rome Statute. The most important US allies are exempt from this prohibition, and Congress included a provision in the law that allowed the president to waive the prohibition for national security reasons. By and large the administration followed the ASPA and the Nethercut amendment, and did not give aid to non-NATO countries that refused to sign immunity agreements with the United States. It is not clear exactly which types of aid were withheld from which countries. Most African countries that were heavily dependent on foreign aid could 50 simply not afford to resist US demands. Anecdotal evidence suggests that the two groups of countries affected the most were Latin American and Eastern European countries. Cuts in military aid to Columbia that had supported the war on drugs led the United States Southern Command to criticize the consequences of the ASPA in congressional hearings. Mexico was reportedly kept from receiving more than 3.6 million dollars in military aid to fight narcotics crime and terrorism, because it ratified the Rome Statue in October 2005 (AMICC 2008). In March 2006, Secretary of State Condoleezza Rice acknowledged that the cuts in military aid to countries the United States was cooperating with in fighting drug crime and terrorism were contrary to US interests (Rice 2006). Eastern European countries like Romania and Bulgaria were confronted with another dilemma: they were prevented from

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signing immunity agreements by the European Union, which denied membership to countries that had entered Article 98 agreements. At the same time, non-NATO states could not benefit from the waivers for NATO allies in the ASPA. After the United States accepted the referral of the Darfur situation, some of the restrictions on aid were lifted. At the end of September 2006, Congress passed the 2007 National Defense Authorization Act, ending the ban on International Military Education and Training (IMET) assistance to members countries of the ICC without Article 98 agreements.51 Especially the United States Southern Command had criticized the fact that it was prohibited from military training cooperation with Latin American countries. However, prohibitions regarding Foreign Military Funds (FMF) under the ASPA and Economic Support Funds under the Nethercut amendment remain in place (Elsea 2006: 17). The Nethercut Amendment remains in force to this day, but the administration increasingly uses its authority to waive restrictions on 52 economic aid. In November 2007 President Bush waived restrictions on economic support for 14 countries that had not signed Article 98 agreements (AMICC 2008). Reengagement under Obama

Under the presidency of Barack Obama, the United States started once again to refer to the ICC in positive terms. The 2010 National Security Strategy (White House 2010: 48) states: Although the United States is not at present a party to the Rome Statute of the International Criminal Court, and will always protect U.S. personnel, we are engaging with State Parties to the Rome Statute on issues of concern and are supporting the I.C.C.’s prosecution of those cases that advance U.S. interests and values, consistent with the requirements of U.S. law.

The Obama administration has not pursued further Article 98 agreements and its ambassador-at-large for war crimes issues, Stephen Rapp (2011), has stated that the United States “respects the right of every country to join the ICC.” The rhetorical shift was part of a broader effort from the Obama administration to win back international trust in American leadership (Rudolf 2010). President Obama has not revisited the question of signing the Rome Statute and has made no attempt at acceding to or ratifying the treaty.

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The United States has reengaged with the court, supported the court’s work on a case-by-case basis, and cooperated in many ways short of accession. Since Obama took office, the United States has participated as an observer in the Assembly of State Parties. Even before his presidency it participated in the review conference from 31 May to 12 June 2008 in Kampala, Uganda. The conference succeeded in defining the crime of aggression, which had been left undefined in the original Rome Statute. The United States did not have formal voting rights in Kampala, but nevertheless supported the outcome of the conference. From the US point of view, it was crucial to monitor how participating states would define the crime of aggression and the ICC’s jurisdiction over it. The ICC’s status as an international body that was independent of the Security Council and could judge the lawfulness of US military action was a main reason for Washington’s wariness. The compromise reached in Kampala ensured that, for all practical purposes, US nationals would be safe from prosecution for the crime of aggression. The definition is limited to “an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations” (Art. 8bis), a threshold high enough to ensure that cases without broad international consensus would not be taken up (Kreß and von Holtzendorff 2010). Jurisdiction for the ICC was established under two sets of conditions. If the UN Security Council referred a case to the ICC – which the United States could prevent through the use of its veto power – jurisdiction would be universal and not dependent on whether the involved states had joined the ICC (Art. 15ter). In cases that the ICC takes up without Security Council referral, its jurisdiction is limited to 53 investigating nationals of state parties to the ICC (Art 15bis). States parties can also opt out of accepting the court’s jurisdiction over the crime of aggression when joining. This compromise ensures that including the crime of aggression in the ICC’s mandate would not pose an obstacle to future participation from the United States. A potentially significant development in the ICC’s work took place recently. In a December 2014 report, the prosecutor of the ICC mentioned for the first time that it was looking into the use of “enhanced interrogation techniques” by US forces against detainees from May 2003 to June 2004 as potential instances of war crimes (Office of the Prosecutor 2014: 22, 2015: 30-31). In 2007 the prosecutor announced that it was conducting a preliminary examination into the situation in Afghanistan, which is a state party to the ICC, but did not mention the United States as a potential perpetrator. Should the prosecutor decide to

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open an investigation, it would be precisely the type of scenario that US opponents of the ICC had been worried about.

Case Findings Preservation of Autonomy?

The first working hypothesis of this study is that the more an agreement restricts American autonomy, the less likely the United States is to participate. The analysis of the decision-making process in this chapter provides some initial answers to the question of whether this was relevant in the ICC case. A full assessment has to take into account a comparison across the different cases. The negotiating history of the Rome Statute clearly shows that concern about the loss of autonomy was a factor in the American opposition to the International Criminal Court. When the United States initially supported the establishment of a permanent court, it envisioned a court that it could control. The idea of establishing a permanent version of the ad hoc tribunals for Yugoslavia and Rwanda that would only become active at the request of the Security Council would have guaranteed the United States a veto over any ICC action. From the perspective of the Permanent Five, such a court would have been a useful tool that would have increased their influence without restricting their autonomy. Their preferred court would have had the status of an inter-governmental organization, both dependent on their consent and unable to overrule them. In the language of legalization, it was the high degree of delegation that caused the greatest resistance among American negotiators. At the same time, a high degree of precision was welcomed by the United States. But the decision to delegate to an independent prosecutor the authority to initiate investigations proprio motu makes the ICC much more independent. In addition to his power to initiate investigations, the prosecutor also determines whether investigations by individual countries are carried out in good faith, and thus preclude the ICC from initiating proceedings under the principle of complementarity. The fact that, under the Rome Statute, the prosecutor has the last word on whether a state’s investigation is genuine or intended to shield suspects from the ICC makes the tribunal a truly supra-national institution. In the eyes of American decision-makers, this level of independence and authority goes too far.

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Washington was also concerned that an independent international institution would be less susceptible to American diplomatic pressure. The official expression of this worry was the criticism of an “unaccountable prosecutor.” Of course, since the prosecutor and the judges of the Pre-Trial Chamber are elected by the member states, they are not “unaccountable.” They are just not primarily accountable to the US government. In this context, two details are particularly telling. The first is the position the US delegation in Rome took on state referral. The preferred option of the American delegation in Rome was a prosecutor that could only become active upon Security Council referral, but US negotiators were willing to accept state referral of cases as a way to initiate court action. Yet they squarely opposed a prosecutor that could initiate investigations proprio motu. If, as the Americans claimed, their main concern was that the prosecutor could launch frivolous charges, why were they prepared to accept state referral? Would it not also have been possible for a state to refer cases based on frivolous claims? One plausible explanation is that states can be held in check through oldfashioned power politics. A state charging the United States with crimes would have to fear repercussions, while it is more difficult to pressure an independent prosecutor. A similar logic applies to the US opposition to the ICC’s jurisdiction based on the territorial principle. It is this principle that potentially makes Americans vulnerable to prosecution by the ICC without US consent. The State Department asserted that a court’s claim of jurisdiction over nationals of non-participants violated principles of 54 international law. However, the alternative to ICC jurisdiction is not American jurisdiction over such acts, but rather the territorial jurisdiction of the state where the alleged offense has taken place. Since the ICC follows higher standards of due process than most judicial systems, it would arguably be in the interest of anyone charged with a crime to be extradited to the ICC, rather than tried under the laws of the state in which crime was committed. As Richard Dicker of Human Rights Watch put it: “[I]f I were an American GI, I’d much prefer being held in a cell in The Hague to one in Baghdad.” (quoted in Weschler 2000: 107). One rationale for opposing such an extradition could be the hope that the United States could wield a greater influence over a single state than over an independent international tribunal, and could pressure it into handing over the suspect to the United States (see Everett 2000: 141). In practice, the relative independence of the ICC from American influence increased the degree of obligation for the United States and presented an obstacle to power politics.

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The court also affects US power and autonomy on a more general level. One worry among American decision-makers was that the court could question the means employed in military campaigns. One way the United States expressed this concern was with its repeated references to the unique security burdens the United States carried, which supposedly left it more exposed to charges of misconduct (see Lietzau 2001). The ICC’s jurisdiction over war crimes implies responsibility over interpreting the legal norms of international humanitarian law and jus in bello. Despite the high threshold for investigations under the Rome Statute, the American government did not want to add an international institution that would scrutinize the tactics of its military operations. Furthermore, there was unease about the notion that the ICC could challenge the position of the Security Council. The ICC’s future responsibility for the crime of aggression had at least the potential to lead to verdicts about the legitimacy of military action and the ICC’s interpretation of jus ad bellum competing with the UN Security Council’s authorizations of the use of military force. Again, a stronger ICC could potentially lead to a loss of American relative power, in the light of the privileged position the United States enjoys on the Security Council. To sum up, there is considerable empirical evidence that realist considerations about relative power played a role in the American position towards the ICC. At the end of the day, American concerns about a loss in autonomy took precedence over normative motivations to make the court an effective tool in the prosecution of the gravest crimes. But even though this explanation helps to understand why the United States did not join, it cannot account for the variance in its policies towards the ICC beyond the question of whether or not to join. While these variations do not change the basic fact that the United States never came close to joining, they do matter greatly for the work of the ICC. Without a change in position about US cooperation with the ICC, the court could not have taken up the investigation of the situation in Darfur. The shades of gray in US policy, however, cannot be understood through a realist prism. For this nuance we need to look at domestic factors. The Veto Players Hypothesis

With regard to the hypothesis that the more veto players oppose a treaty, the less likely the United States is to join it, the verdict could hardly be clearer. There were several crucial veto players who strongly objected to the treaty. The Pentagon deemed it unacceptable and the Republican

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majority in the Senate was openly hostile towards the ICC. At the same time, nobody in government supported joining the treaty in an unmodified form. The Senate Democrats joined the Republicans in their opposition. Even the State Department called for changes as a condition for supporting the ICC. The only clear supporters were civil society actors like NGOs and academics who had no formal role in the institutional process. In this political environment, American opposition to the treaty was over-determined. In the Senate the ICC had no vocal supporters. As we will see in the next chapters, the Chemical Weapons Convention, the Landmines Treaty, and the Torture Convention all had dedicated advocates in the Senate who not only spoke in favor of the agreements, but also became issue leaders, and tried to push the administration to adopt more favorable positions or move ahead more quickly with the conclusion. Not so in case of the ICC. Although there were some Democrats who were supportive of the general idea of a permanent tribunal, at the time not a single senator openly criticized the president’s decision not to sign the Rome Statute or called for a more favorable position on the ICC. In 2002 the overwhelming majority of congressional Democrats joined their Republican colleagues in voting for the American Servicemembers’ Protection Act. This is remarkable because the ASPA was not just symbolic. Its language was provocative and meant to intimidate countries that supported the court. Its adoption also deliberately subordinated other aspects of American foreign relations to the goal of undermining the court. Notwithstanding the fact that some senators on both sides of the aisle have spoken more favorably of the ICC in recent years, the negative overall position of Congress on the ICC is noteworthy. The major force behind the united opposition from the Senate was the Defense Department. It’s certain that ideology was also a big part of what motivated the senators leading the charge against the ICC. The rhetoric of the ICC as “a monster we need to slay” leaves no doubt regarding the deeply felt convictions among the likes of Senators Helms, Grams, and Ashcroft. The fact that Helms had reservations about all agreements in this study further confirms this. But the conservative fringe of the Republican Party would not have been able to mobilize such broad support for their views had it not been for the Pentagon’s objections to the ICC. The Pentagon worked closely with the Senate to ensure that their concerns did not go unheard. Although issue networks between members of Congress and the executive bureaucracy are not uncommon, the open alliance between Foreign Relations Committee Chairman Helms and Secretary of Defense (and former Senate Armed

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Services Committee member) William Cohen was different in quality from the usual back-channel contacts. Interestingly enough, there was very little grass-roots resistance to the ICC within the military. Instead, it was the civilian leadership, in particular Cohen and Undersecretary of Defense Walter Slocombe, who warned of the risks the court posed for American soldiers. Still, nobody in the Senate wanted to be accused of placing additional burdens on the armed forces, and members of both parties fell in line. This coalition of veto players put the State Department on the defensive. Especially considering that Secretary of State Madeleine Albright took a personal interest in countering the perpetration of crimes against humanity, an interest that led her to become a strong advocate of the NATO intervention against Serbia in 1999, garnering US support for the ICC appeared to be of a low priority. In the run-up to Rome, Albright supported the Pentagon’s diplomatic campaign to pressure US allies into giving in to the demands for immunity from the ICC. The State Department did favor voting for the ICC Statute at the Rome Conference, but there is not much evidence that it put up a fight in the inter-agency process. Yet, after the Rome Conference, Ambassador David Scheffer kept good relations with the court and continued to participate in the PrepCom meetings. The best evidence that the State Department was not satisfied with the United States remaining outside the regime was its initiative to convince Clinton to sign the Rome Statute before the 31 December 2000 deadline. The State Department provided the official justification for the last-minute change, arguing that the signature was necessary for Washington’s continued participation in the negotiations to elaborate how the court would function. Overall the State Department engaged in damage control, maintaining working relations with America’s allies. This also ensured that the early drafts of the American Servicemembers’ Protection Act remained in the drawer and were not adopted during Clinton’s tenure. When George W. Bush assumed the office of the president, the State Department’s position changed dramatically. The Pentagon’s opposition to the ICC remained unaltered. The State Department, however, became the focal point of the campaign against the ICC. This was the result of John Bolton’s appointment as assistant secretary of state in charge of the ICC portfolio. Bolton quickly made the ICC the centerpiece of his crusade against international organizations. This would not have been possible, however, without the support of Secretary of State Colin Powell. Even though the moderate Powell was at odds with the more conservative voices in the administration on a host of issues, the ICC was not one of them. When Bolton faced the resistance

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of career diplomats in the State Department, Powell backed him up. Even though some regional bureaus were not thrilled about pursuing immunity agreements, they could do little to change policy when faced with Bolton’s resistance. When the Bush administration’s policy toward the ICC softened during his second term, it was due to a change in the leadership of the State Department. The more pragmatic approach that ensued has to be seen in the context of Secretary Rice’s effort to improve transatlantic relations. Legal Adviser to the State Department John B. Bellinger III would also prove to be important. After assuming office, Bellinger was central to the public diplomacy initiative intended to repair America’s image abroad. In frequent speeches he challenged the view that the United States did not respect international law (Bellinger III 2007). He also issued many of the administration’s more positive statements on the ICC. The appointment of John Bolton as US Representative at the United Nations effectively removed him from the decision-making process in the State Department. In short, changes in the State Department's position contribute to explaining some important turning points in US policy toward the ICC. The veto players hypothesis can explain the overall outcome of nonparticipation as well as the variance in concrete US policies toward the ICC. The coalition between the Senate and the Pentagon was certainly strong enough to prevent the United States from joining the ICC. In spite of the president’s formal authority to overrule the Pentagon, its support in Congress makes it a de facto veto player, whose consent is required to adopt the ICC treaty. Additional veto players further influence specific actions. When the Department of State joined the ranks of the active opponents, there was no counter-weight, and the US position toward the ICC turned into unprecedented hostility. Analyzing domestic actors with a view to their veto power in the decision-making process offers a convincing explanation for US policies toward the ICC. The Presidential Leadership Hypothesis

Is there anything that the presidential leadership hypothesis can add to answering the puzzle? The case of the ICC neither confirms nor falsifies the hypothesis that the more leadership the president exercises, the more likely the United States is to join an agreement. President Clinton mostly did not become personally engaged. Apart from a few speeches there is no evidence of any hands-on involvement in the decision-making process. On the contrary, during the Rome Conference President Clinton

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and his national security council did little to resolve the disputes within the American delegation. State Department officials worked hard to find common ground between the like-minded states and American preferences. But the head of the delegation, Ambassador Scheffer, came to Rome with clearly defined goals. During the conference, he had trouble reaching his superiors to get updates on the possibility for compromise in order to join the consensus. He was left with standing instructions and had no choice but to vote against the treaty when he could not sell the US position to the other participants. This embarrassing outcome could have been prevented if Clinton had made the ICC a higher priority and shown more conviction in the face of the Pentagon’s resistance. But it would not have affected the low chances of getting the treaty past the Senate. Clearly the shadow of the Senate played a role in Clinton’s calculation of how much political capital he was going to invest in the ICC. It is doubtful that Clinton’s leadership could have convinced the Senate to support the treaty even in the best of circumstances. Chairman Helms was unambiguous about his determination to do everything in his power to defeat the treaty. The lesson of the gruesome battle over the ratification of the Chemical Weapons Convention the previous year was certainly not lost on Clinton. From his perspective it was unclear whether the ICC was worth any sustained effort with such low prospects for approval. Years later, President Obama came to a similar conclusion when he decided not to revisit the issue of US membership in the ICC. Perhaps Clinton’s biggest failure was allowing the Pentagon’s narrative to prevail unchallenged. By not becoming involved early on and advocating in favor of the ICC, Clinton left it entirely to the Defense Department to frame the American discourse on the treaty. The result was that the discussion in the United States revolved almost exclusively around the risks for American servicemembers and the consequences for military action (see Weschler 2000: 110). This was not the central concern of those states that decided to establish the ICC in Rome, as Philippe Kirsch (2001: 10), the chairman of the Rome Conference and the ICC’s first president, pointed out: “The United States was not and is not targeted by the establishment of the ICC. The targets are the future Pol Pots, Saddam Husseins, and Milosevics who terrorize civilians on a massive scale.” The ICC case indicates that presidential leadership is a necessary, but not a sufficient condition for joining a treaty. In the absence of strong presidential involvement, we cannot infer this with certainty. But the counter-factual of assuming strong presidential involvement does not automatically suggest a successful ratification in light of the strength

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and determination of the veto players. It might be possible for a president to overcome the resistance of one veto player at the level of a defense secretary or committee chairman. To overcome the resistance of both, however, is highly unlikely. The more modest formulation of the hypothesis, claiming that the more presidential leadership a treaty enjoys, the more likely the United States is to join, remains valid.

Notes 1

For the most comprehensive overview of the legal issues involved, see Cassese et al. (2002); see also Lee (1999). On the Rome conference, see Deitelhoff (2006); Kirsch (1999); Scheffer (1999); Weschler (2000). For an overview of issues related to the US position, see Sewall and Kaysen (2000); see also Elsea (2006); Mayerfeld (2003); Schabas (2004); Scheffer (2001; 2002); Wedgewood (1999); Meißner (2005). 2 For details on the positions of European countries see Fehl (2012). 3 The treaty laying out the responsibilities and design of the International Criminal Court is called the Rome Statute of the International Criminal Court, because the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court was held in Rome. It is available at http://www.icc-cpi.int/. 4 “The United States continues to believe that the inclusion of an annex which lays out criminal elements is a fundamental requirement for a successful criminal statute. [...] Our current list of crimes in the draft statute uses language frequently drawn directly from Hague or Geneva Conventions. [...] [T]hese conventional formulations are not crafted so as to address the needs of the criminal practitioner.” Statement of the United States Delegation to the Preparatory Committee on the Establishment of an International Criminal Court, 3 April 1998, quoted in U.S. Senate Hearing (1998a: 129-130). 5 “The United States is deeply concerned that at this late stage of the proceedings of the Preparatory Committee, certain fundamental tenets of International Humanitarian Law applicable to non-international armed conflict are still being questioned.” Statement of the United States Delegation to the Preparatory Committee on the Establishment of an International Criminal Court, 23 March 1998, quoted in U.S. Senate Hearing (1998a: 129) 6 Generally, the status of forces agreements define that violations of US military law will be tried by US military courts. For violations of the host country’s laws, but not US military law, the host country has exclusive jurisdiction. If an offense violates both US military law and the law of the host country, there is concurrent jurisdiction. For details and background concerning the status-of-forces agreements, see Everett (2000). 7 The court does have its own detention facility in The Hague to hold indicted persons for the duration of the trial. 8 For the history preceding the establishment of the ICC see Bassiouni (1998) and Sadat (2000). 9 “Worldviews 2002” also tested how resilient opinions on the ICC were to counter-arguments. Without additional information 71% supported the ICC,

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while 18% opposed it. Some of the respondents were also asked the following question: “A permanent International Criminal Court has been established by the UN to try individuals suspected of war crimes, genocide, and crimes against humanity. Some say the United States should not support the court because trumped up charges may be brought against Americans, for example, US soldiers who use force in the course of a peacekeeping operation. Others say that the US should support the court because the world needs a better way to prosecute war criminals, many of whom go unpunished today. Do you think the US should or should not support the permanent International Criminal Court?” In response to that question 65% of those asked supported the ICC, while 28% opposed it (CCFR 2002: 34). 10 During the negotiations in Rome many states specifically advocated for including the use of nuclear weapons as a war crime. The proposal was eventually dropped (Arsanjani 1999: 34). Still the bombings would have been problematic under the statute. As John Bolton explains in his written testimony to the Senate (U.S. Senate Hearing 1998a: 59-60): “[C]onsider some of the following provisions of the Statute of Rome. The definition of ‘‘war crimes’’ includes, for example: ‘intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; [and] intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated; [. . .]’ A fair reading of these provisions leaves one unable to answer with confidence the question whether the United States was guilty of war crimes for its aerial bombing campaigns over Germany and Japan in World War II. Indeed, if anything, a straightforward reading of the language probably indicates that the Court would find the US guilty. A fortiori, these provisions seem to imply that the US would have been guilty of a war crime for dropping atomic bombs on Hiroshima and Nagasaki.” (emphasis in original). 11 See Holt and Dallas (2006: 33) on how the ICTY case raised concerns within the US military about the ICC. Lietzau (2001: 127) argues from a military perspective that such a scenario is not unlikely. 12 See the testimony of John Bolton (U.S. Senate Hearing 1998a: 30): “Our main concern from the US perspective is not that the prosecutor will indict the occasional US soldier who violates our own values and laws and his or her military training and doctrine by allegedly committing a war crime. Our main concern should be for the President, the cabinet officers on the National Security Council, and other senior leaders responsible for our defense and foreign policy.” 13 For example, the definition of a crime against humanity in Art. 7 of the Rome Statute is similar to the definition in Art. 5 of the Statute of the ICTY and Art. 3 of the ICTR (Arsanjani 1999: 31). 14 For a more comprehensive treatment of the challenges related to a permanent international criminal tribunal, see Crawford (1995). 15 Although the basic offenses that the international tribunals prosecuted were part of customary international law and various conventions, making up the rules of procedure after the fact weakened the legitimacy of the tribunals. The principles of nullum crimen sine lege (no crime without a law) and nulla

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poena sine lege (no penalty without a law) are addressed in Articles 22 and 23 of the Rome Statute. 16 For a useful comparison between the 1994 draft from the International Law Commission and the Rome Statute itself, see Deitelhoff (2006: 177-180). 17 The Justice Department had a large budget for fighting drug crime. Giving up this mandate would likely have resulted in budget cuts (Scharf 1995). 18 This point is acknowledged by US officials like David Scheffer as well as many academics, including some skeptical of the ICC (see e.g. Wedgwood 2000). 19 There continues to be a bitter debate about the question of whether the punishment of perpetrators of crimes against humanity can be an obstacle to the peaceful resolutions of conflicts. The controversy is often referred to in terms of “justice vs. peace” (Scharf 2000b). 20 By 1998, the like-minded group consisted of more than 40 countries, including most European countries, but also small and middle powers from around the world, including Argentina, Australia, Canada, Chile, New Zealand, Singapore, South Africa, and South Korea (Deitelhoff 2006: 207) 21 See, for instance, the testimony of Ambassador Scheffer in the hearing before the Senate Subcommittee on International Operations (U.S. Senate Hearing 1998a: 13). Also see Scheffer (1999: 18). 22 Even the status-of-forces agreements do not change this. While the SOFA’s grant US military courts precedence in prosecuting military personnel for acts committed “in the performance of official duty,” the two jurisdictions are not mutually exclusive (Leigh 2001: 127). 23 The others were China, Libya, Iraq, Israel, Qatar and Yemen. 24 David Scheffer (2000: 97) put it this way: “The exposure of American troops is really serious business, and bland assurances about the unlikelihood of any given outcome simply don’t move the mail back where I come from.” Undersecretary of Defense Walter Slocombe, the Pentagon’s man in charge of dealing with the Court, has been quoted as saying that if there was a 2% chance that the ICC would investigate the conduct of American soldiers, it was his job to bring that chance down to 0%. Interview with Michael Posner, former Director of Human Rights First on 29 May 2008 in New York. However, see Everett (2000) for the provisions in American law, under which American servicemembers would be prosecuted by courts-martial or a federal court in the United States, taking precedence under the principle of complementarity. 25 The following account is based on an interview with Harold Koh, assistant secretary of state for democracy, human rights and labor 1998-2001, on 8 May 2008 in New Haven. 26 The supporters wanted to wait for the results of the presidential election to plan their strategy accordingly. They had already been coordinating with Al Gore’s team. When the election results were left up in the air for days, the ICC issue got pushed further and further back. 27 All these arguments are taken from comments from the mentioned senators mentioned, voiced during the hearing before the Subcommittee on International Organizations (U.S. Senate Hearing 1998a). 28 Ambassador Scheffer explained that the United States had argued against inclusion of this Article (U.S. Senate Hearing 1998a: 15). John Bolton pointed out that the substantial definitions of genocide in the ICC statute build on those in the Genocide Convention and that the Senate had attached significant

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reservations to the Genocide Convention. According to Bolton, the United States would have to reverse its position on those previous reservations to be able to ratify the ICC treaty (U.S. Senate Hearing 1998a: 59). 29 Department of Defense Appropriations Act for Fiscal Year 2002, Public Law 107-117. 30 Fiscal Year 2002 Commerce, Justice, State and the Judiciary Appropriations Act, Public Law 107-77 31 “Section 630 prohibits the use of appropriated funds for cooperation with, or assistance or other support to, the International Criminal Court (ICC) or its Preparatory Commission. While Section 630 clearly reflects that Congress agrees with my Administration that it is not in the interests of the United States to become a party to the ICC treaty, I must note that this provision must be applied consistent with my constitutional authority in the area of foreign affairs, which, among other things, will enable me to take actions to protect US nationals from the purported jurisdiction of the treaty.” (The White House 2001). 32 Chris Dodd’s father, Senator Thomas Dodd, had worked as a prosecutor at the Nuremberg trials under Justice Robert H. Jackson. 33 The Nethercut amendment was originally adopted as part of the Consolidated Appropriations Act, P.L. 108-447 in the 108th Congress. It was reauthorized by the 109th Congress as part of the FY 2006 Consolidated Appropriations Act (H.R. 3057/P.L. 109-102) and again in December 2007 as part of House Resolution 2764, the Comprehensive Consolidated Appropriations Act 2007 (AMICC 2008; Elsea 2006). 34 The following account is based on Bolton (2007: 85-87). 35 Interview with John R. Bolton, undersecretary of state for arms control and international security 2001-2005 and permanent representative to the United Nations 2005-2006) in Washington, DC on 21 May 2008. 36 Interviews with John Bolton and Harold Koh, see notes 25 and 35. 37 According to Art. 126, the Rome Statute enters into force on the first day of the month after 60 days after the 60th country has deposed its instrument of ratification. 38 In the absence of any agreement, the host country has exclusive jurisdiction under the territorial principle. The SOFAs give primary jurisdiction for offenses committed on official business to US military courts, for all other crimes to the judicial system of the host country. However, there is broad waiver authority for both sides (see Nash 2000). 39 Accounts differ regarding the degree to which the US delegation was responsible for drafting Art. 98. Ambassador Scheffer (2005) claims that the Clinton administration never intended to cover all Americans with the agreements, but only those on official duty. 40 For a list of countries that have ratified Article 98 agreements, see Kelley (2007). 41 See SC Resolutions S/Res/1420 (2002) and S/Res/1421 (2002). 42 Resolution S/Res/1422 (2002): “The Security Council [...] 1. Requests, consistent with the provisions of Article 16 of the Rome Statute, that the ICC, if a case arises involving current or former officials or personnel from a contributing State not a Party to the Rome Statute over acts or omissions relating to a United Nations established or authorized operation, shall for a twelve-month period starting 1 July 2002 not commence or proceed with

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investigation or prosecution of any such case, unless the Security Council decides otherwise; 2. Expresses the intention to renew the request in paragraph 1 under the same conditions each 1 July for further 12-month periods for as long as may be necessary.” 43 SC Resolution S/Res/1487 (2003). 44 The first reports on the prisoner abuse at the Abu Ghraib prison in the media were on the show 60 Minutes II on CBS (CBS News 2004), and in a story by Seymour Hersh (2004) in The New Yorker. While the CBS program was first to show the graphic photographs of the abuse, Seymour Hersh was the first to report that the soldiers in the pictures may have followed orders from military intelligence officials. 45 In an interview with the Los Angeles Times, Secretary of State Colin Powell explained that the Abu Ghraib scandal affected the question of the ICC (Powell 2004). 46 According to the American Nongovernmental Organizations Coalition for the International Criminal Court (AMICC), the United States withdrew seven personnel from the UN Mission in Ethiopia and Eritrea, and two from the UN Mission in Kosovo (AMICC 2008). 47 On 24 January 2005, The Washington Post published an op-ed by Jack Goldsmith, advocating that the United States permit the referral of the situation in Darfur to the ICC (Goldsmith 2005). Goldsmith had been assistant attorney general for the Justice Department’s Office of Legal Counsel from October 2003 to June 2004, and was generally critical of international institutions. 48 UN S/RES/1593 (2005). Besides the United States, Algeria, Brazil, and China all abstained (AMICC 2008). 49 Interview with John R. Bolton, see note 35. 50 It is reported that the United States threatened to withdraw all aid in the struggle against HIV from Botswana, one of the countries with the highest rate of HIV infections in the world. 51 National Defense Authorization Act for Fiscal Year 2007, Public Law 109-364. 52 The amendment was contained in the Fiscal Year 2006 Foreign Operations, Export Financing, and Related Programs Appropriations Act (P.L. 109-102), which was signed into law on 14 November 2005. According to AMICC (2008), the amendment jeopardized 326.6 million dollars in US economic assistance to 12 nations. 53 For these amendments to take effect, they have to be adopted by two thirds of state parties and ratified by at least 30 state parties after 1 January 2017 (Art. 15bis). 54 This ignores the long-standing principle under customary international law that there is universal jurisdiction for violations of jus cogens.

4 No Opposition in Sight: The Convention Against Torture

At the time the United States joined the Convention Against Torture, most Americans had never heard of Abu Ghraib, Baghram or Guantanamo Bay. The terms “enhanced interrogation techniques,” “black sights,” or “ghost planes” did not yet exist. The notion that the US Senate would one day publish a report detailing the systematic use of torture by US intelligence officials seemed inconceivable at the time. Equally beyond the imagination of most was the idea that some US politicians could endorse the use of torture in the name of national security. Considering what occurred in the context of the US “war on terror”, the history of the Convention Against Torture is remarkable and reminds us of the strength of the impact of the 9/11 terrorist attacks. However, recalling the US role in bringing about the Convention Against Torture is more than just an intriguing contrast to its recent policies. It is also crucial with respect to the question of US policies toward multilateral treaties, for it is one of those rare cases in which the United States joined a human rights treaty without much controversy. It thus holds important lessons for the conditions for US approval of multilateral treaties. The United States played a constructive role throughout the process of developing the Torture Convention. Even though its leadership and enthusiasm varied, it never took an obstructionist position and always 1 acted in good faith to bring negotiations to a successful conclusion. In the years leading up to the final negotiating phase, the United States remained in the background and allowed other states to play a larger role. The American delegation does not appear as a sponsor in any of the predecessor documents to the Torture Convention, but all of them were adopted with American support (Burgers and Danelius 1988: 14, 17).

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Over the course of negotiating the text of the Torture Convention itself, the United States actively participated in the deliberations as a permanent member of the working group that was charged by the Human Rights Commission with preparing a draft. In 1988 the convention was first submitted to the Senate for advice and consent, by 1990 the treaty was ratified. Congress passed the laws implementing some provisions in 1991, and in 1994 it passed further legislation, bringing domestic law into accordance with the convention. What is the Convention Against Torture?

The Convention Against Torture represents a comprehensive and 2 binding treaty prohibiting torture and other forms of cruel treatment. It does not create the crime of torture, since torture already constituted a criminal offense under customary international law, and its prohibition is not limited to states that are parties to the CAT. Rather, the convention attempts to reinforce this prohibition: by defining more clearly what behavior is prohibited; by reaffirming the commitment of the international community to prevent torture; and by increasing compliance. The Convention Against Torture not only states unequivocally that torture is not justified under any circumstances, but also creates an obligation for state parties to prevent torture and inhuman treatment on their territory and to make torture a criminal offense under domestic law (Art. 4). According to Article 1, the term “torture” refers to “… any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person” by or with knowledge of an official for the purpose of extracting information or exerting punishment. No state of emergency can be invoked as a justification of torture (Art. 1) and orders by superiors cannot be invoked as a defense. The principle of universal jurisdiction applies: more specifically, a state party can prosecute torture if it was committed on its territory, or if either the offender or the victim is a citizen of that state. The Convention Against Torture obliges states to take action against torture, even if it has not occurred on their territory, by either prosecuting persons suspected of committing torture or extraditing them to states willing to do so. The CAT also established the Committee against Torture whose main purpose is collecting information on and uncovering violations. In the event that it suspects that torture occurred, it can initiate investigations and it can issue reports about the practices of state parties.

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Applying the Concept of Legalization To The CAT

The Torture Convention was created as an acknowledgement that existing instruments were not effective. Drafting the Torture Convention served two purposes: first, to increase awareness that being free from torture or fear of torture was one of the most fundamental human rights by singling out the issue and making it the subject of its own convention; and second, to promote the effectiveness of the norm against torture by making it a key component of the international legal regime. Obligation

The convention is a multilateral treaty that establishes legally binding obligations for participating states. It not only obligates states to make their domestic legal systems conform to the requirements of the convention, but also demands that states make torture an offense under criminal law, an area in which states are generally very protective of their legal sovereignty. To put it plainly, violations of the convention may result in criminal charges in domestic courts. By the standards of international law, which often relies on relatively soft instruments, such as non-binding recommendations or declarations of intent, the degree of obligation of the Torture Convention is as high as it gets. In the United States, the Torture Convention was ratified under the treaty process according to Art. 2 of the US Constitution, which requires a two-thirds majority in the Senate. During the time of negotiations until 1984, administration officials considered some aspects of the CAT, e.g. Art. 3, to be self-executing (Cohen 1998: 519). Self-executing passages create direct binding obligations on the United States, even in the 3 absence of implementing legislation. However, in the resolution of ratification, the Senate declared Articles 1-16 of the convention to not be 4 self-executing. Beyond the pre-existing prohibition of torture, the CAT creates several additional obligations for states, some of which exceeded the previously existing provisions in the legal systems of the state parties. Such obligations include: • •

to make torture a criminal offense (Art. 4). to educate and inform law enforcement officials about the proper treatment of prisoners (Art. 10).

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• • •

to participate in ending the impunity of torture by either prosecuting offenders or extraditing them to countries where they will be prosecuted (Articles 5 and 6). to commit not to extradite or return (‘refouler’) persons to countries where they might be tortured. to implement measures to actively prevent officials from committing acts of torture

On the other hand, the Torture Convention allows the signatories to opt out of certain provisions of the convention, in particular the implementing mechanisms. Unlike some of the other treaties of this 5 study, the Torture Convention does not explicitly prohibit reservations. Furthermore, Art. 28 allows for the possibility to opt out of the provision in Article 20 that allows the Committee against Torture to investigate charges of torture. In order to do so, states have to make a declaration to this effect prior to acceding to the convention. Once a state has agreed to Art. 20 – either by not declaring an opt-out at the time of accession or by opting in at a later date – it is not allowed to exempt itself from the provision again at a later date. The procedures for the committee to receive complaints from states about the behavior of other states (Art. 21) and individuals (Art. 22) are optional, meaning that states can reverse their position on whether they are bound by them as they please. Precision

Formal treaties under international law aim for a high degree of precision. This is all the more true for the Torture Convention because it is intended as a basis for criminal prosecution. Even though the CAT itself is not criminal law, it is the model upon which states are supposed to formulate domestic legislation. The United States was a consistent advocate for greater precision in the treaty text. In some instances the call for greater precision had the effect of limiting the scope of the treaty. However, on the question of whether torture had to be actively condoned to constitute a criminal offense, the US delegation argued for a wider definition. It succeeded in establishing that merely knowing about the occurrence of torture and failing to take steps to prevent it is an offense under the CAT. Delegation

The most important feature in terms of delegation is how the Torture Convention defines its jurisdiction. In Art. 5, states are called upon to

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establish jurisdiction over the crime of torture in their territory. Paragraph 1 enables states to establish jurisdiction on the principles of the nationality of the offender, the nationality of the victim, or the territory where the offense took place. Paragraph 2 additionally allows states to establish jurisdiction over offenders who are present in their territory. These provisions are not exclusive, allowing for further grounds of jurisdiction based on existing international law. Art. 6 further calls on states to arrest persons that are believed to have committed acts of torture. The CAT is the first instance of a treaty explicitly codifying extraterritorial jurisdiction for violations of human rights norms. Torture had previously been outlawed as a matter of customary international law and the prohibition was part of jus cogens. While some saw this as sufficient to establish universal jurisdiction, this view had not been confirmed by state practice. By codifying the jurisdiction in the CAT, the norm is reaffirmed and put on more solid ground since, as a source of international law, treaties enjoy a higher status than customary international law (Franck et al. 2008: 118-119). Moreover, the Torture Convention not only allows states to prosecute offenders, but requires them to do so: State parties “shall” take measures to prosecute offenders or extradite them to countries where they can be prosecuted. Making human rights violations subject to extra-territorial jurisdiction in a treaty was new. The principle had previously been applied with regards to terrorism, airplane hijacking, and piracy. But in contrast to these crimes, which are usually carried out by non-state actors, torture is mostly carried out by government officials. Therefore it was not evident that all states had an interest in giving other governments the authority to prosecute their citizens. Expanding the principle of universal jurisdiction to the crime of torture was by no means a foregone conclusion, and a number of states resisted including this principle in the CAT. This concerned not only regimes suspected of engaging in torture, but also countries like the Netherlands, which had been one of the driving forces behind the Torture Convention (Baehr 1989). Under universal jurisdiction, authority is not delegated to a centralized or supra-national body. Instead, it assigns collective responsibility to state parties for ending the impunity of torturers. Nevertheless, states delegate (to each other) a privilege that was previously reserved to them. Establishing jurisdiction is an integral part of a state’s sovereignty, in particular in relation to the treatment of citizens by their own government. The voluntary surrender of this right represents a radical departure from traditional forms of state interaction,

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despite the precedent for this principle in the Nuremberg and Tokyo trials. One could therefore call universal jurisdiction a form of “decentralized” or “diffuse” delegation. As a US representative at the negotiations in Geneva pointed out, universal jurisdiction is more important for the effectiveness of the treaty than a strong implementation body. While the latter could only act against state parties, universal jurisdiction would be deterring to non-parties as well, since their officials could be prosecuted if present in the territory of a state party (U.S. Mission in Geneva 1981c). Another innovation can be found in Articles 13 and 14, which grant individuals who have been subject to torture the right to complain to competent authorities, have their cases examined, and demand compensation. Traditionally, international law only applied to nation states. By granting a private right of action, the treaty extends a privilege to individuals that was previously exclusively held by states. A more direct form of delegation is the creation of the Committee against Torture, whose competences are defined in the second part of the convention. The Committee against Torture is an independent body charged with supervising compliance with the Torture Convention. It consists of ten experts with experience in the field of human rights, elected every two years from a set of candidates nominated by the 6 member states. State parties are required to provide the funds necessary for the work of the committee. It can, at its own initiative, undertake investigations into the systematic occurrence of torture (Art. 20). Throughout the process of investigation, the committee has to maintain confidentiality and consult closely with the state party concerned. In order to make visits to a state, it needs that state’s consent. The committee is supposed to make confidential reports on its findings in the form of comments and suggestions, to which the concerned state party is invited to respond. At the end of this process, the committee can decide whether to publish its findings in its annual report. The Committee against Torture has no power to sanction governments. The whole process is based on the concept of “naming and shaming,” the assumption that countries want to avoid the reputation costs of being exposed as non-compliant. Beyond that, the committee has no powers; it is up to the member states to prosecute violators. It is worth emphasizing that every state can opt out of granting the Committee against Torture the right to investigate its behavior under Article 25. Article 21 further gives state parties the option of allowing the committee to hear complaints from state parties about the behavior of another. This optional provision is based on reciprocity. Only state parties that enable the committee to hear complaints about their policies

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are allowed to complain about the behavior of others. Another optional provision is the right of individuals to complain to the committee set out in Article 22. In this situation, the authority of the Committee to consider complaints is complementary. It is only allowed to do so if no other international bodies or domestic authorities are examining the matter, provided they do so in good faith. The inclusion of the principle of universal jurisdiction leads me to conclude that the Torture Convention is highly legalized by the standard of international legal human rights instruments, even though the authority of the Committee against Torture is limited due to its lack of sanctioning powers. The Emergence of the Prohibition of Torture

The norm against torture emerged together with a growing concern for human rights more generally. In the wake of the Enlightenment, European societies began to question the use of violence to extract information or confessions from prisoners. Following the American and French revolutions, torture was regarded as incompatible with human dignity and the provisions for torture were gradually abolished from European criminal law during the 18th and 19th centuries (Burgers and Danelius 1988: 10). States with democratic traditions began to include prohibitions against torture in their constitutions. Nevertheless, decades passed before international efforts to ban torture got underway. It took the atrocities of the Second World War and the Holocaust to set in motion a second wave of efforts to strengthen human rights. This coincided with the emerging concept of universal human rights, an important pillar in founding the United Nations, and led to an initiative to comprehensively codify human rights standards within the UN context. In 1946 the United Nations General Assembly adopted a resolution establishing the Human Rights Commission under the Economic and Social Council. The commission then drafted the Universal Declaration of Human Rights, which was adopted by the General Assembly in 1948. The effort to establish common human rights standards also led the international community to revisit the issue of torture. Article 5 of the Universal Declaration states “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” This language 7 would later reappear in the title and text of the Torture Convention. Shortly thereafter, the Geneva Conventions codified the rules governing armed conflict, known as jus in bello. Article 3, common to all four Geneva Conventions, requires that all prisoners be treated “humanely”

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and prohibits “outrages upon personal dignity, in particular, humiliating and degrading treatment.” In addition, Article 17 of the Third Geneva 8 Convention, which addresses the treatment of prisoners of war, states: No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.

The 1954 draft of the International Covenant on Civil and Political Rights reaffirmed the prohibition of torture in Article 7. It entered into force in 1976. On 9 December 1975, the General Assembly further 9 adopted a Declaration against Torture. A number of developments laid the groundwork for the decision to begin drafting a binding treaty to outlaw torture. In the first half of the 1970s, various bodies of the United Nations took up the issue, prompted by a worldwide campaign from Amnesty International to abolish torture around the world. The United Nations General Assembly passed a resolution on 2 November 1973 expressing its concern about the continued practice of torture. It rejected torture, as well as cruel, inhumane and degrading treatment or punishment, and urged all states to join the existing human rights instruments prohibiting torture. The immediate predecessor of the Torture Convention was drafted in the context of the Fifth UN Congress on the Prevention of Crime and the Treatment of Offenders in September 1975. At the end of the congress, the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was unanimously adopted and submitted to the General Assembly. After the declaration had been discussed in the Third Committee, the General Assembly adopted it on 9 December 1975 (Burgers and Danelius 1988: 15). The declaration formed a basis for the substantive provisions that were later included in the Torture Convention. Consisting of 12 articles, it created a coherent set of rules intended to specify the prohibition of torture existing under international law and make it more effective. In 1977, the General Assembly charged the Human Rights Commission with preparing a draft for a Convention Against Torture (Baehr 1989). One of the founding principles of the United States is the idea that each individual is endowed with certain inalienable rights. The prohibition of torture is among the basic rights enumerated in the Bill of Rights of 1789 that are protected from government infringement under

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any circumstances. This prohibition is contained in the Eighth Amendment to the US Constitution, which specifically prohibits “cruel and unusual punishment.” In combination with the Sixth Amendment (right to “a fair and public trial”) and the Fourteenth Amendment (right to “due process of law”), this provision has been construed to prohibit the use of evidence or confessions obtained from torture in criminal trials – a frequent motive for applying torture in criminal proceedings. In the 1970s, the US government started to become more assertive in combating torture abroad, holding foreign governments accountable for human rights abuses including torture (Forsythe 1988). Some of these early efforts included attempts from Congress to pass legislation that made American foreign aid conditional on adherence to human rights standards by the receiving governments. The State Department began collecting information and compiling reports about the human rights situation around the world. The government also imposed controls on exports of crime control equipment that could be used to torture people. These policies, however, were not implemented in a consistent manner. Many governments with bad human rights records were allies of the United States in the Cold War, and for strategic reasons the United States continued to support these governments with foreign and military aid and effectively turned a blind eye to their human rights abuses. American jurisprudence was also instrumental in strengthening the norm against torture in the international legal discourse. In a landmark decision in 1980, a US court convicted a foreign citizen for torture committed outside of the United States (see below). The ruling was based on the view that torture was subject to universal jurisdiction and advanced the binding character of human rights norms under customary international law, both within the United States and internationally. Global Changes Set the Stage for the Torture Convention

The issue of torture appeared on the international agenda as a consequence of a campaign launched in 1972 by the human rights organization Amnesty International. As an active non-governmental organization that frequently organizes letter-writing campaigns on behalf of political prisoners, Amnesty International decided to initiate a campaign with the goal of abolishing torture worldwide. The continued practice of torture by many governments around the world – despite its prohibition under the Universal Declaration of Human Rights and International Covenant for Civil and Political Rights – led the human rights community to single out the issue and raise its profile on the

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international human rights agenda. The International Commission of Jurists, a civil rights organization made up of 60 eminent legal scholars, lawyers, and judges working to advance international law and human rights, supported Amnesty’s efforts. The issue was eventually taken up by several states, and Sweden and the Netherlands placed it on the agenda of various UN bodies. Both Amnesty International and the International Commission of Jurists remained closely involved and continued to play a pivotal role in the negotiations about the Torture Convention at every stage. They regularly attended the meetings of the working groups, lobbied governments, and drafted language for treaty provisions. At the outset of the negotiations, two draft treaties were under consideration as a basis for the deliberations. Besides the Swedish draft, which eventually became the basis for the talks, the International Commission of Jurists submitted its own draft to the negotiations. The Cold War Context

When the issue of torture rose to prominence in the 1970s, American foreign policy was dominated by the Cold War. The rivalry with the Soviet bloc had conflicting implications for US human rights policy. Respect for human rights and the rule of law was not only an essential component of American identity, it was also recognized as asset in the competition for global public opinion between the two superpowers: a way for liberal democracies to distinguish themselves from the communist countries that used force to suppress dissent. In order to win the war of ideas, the United States wanted to show that Western capitalism and the Soviet system were not moral equivalents, but that democracy and a free market economy provided the only promising path for countries to achieve success and improve the happiness of their citizens. In that sense, respect for human rights was both an integral part of Western democratic identity and a tool in the propaganda war with the Soviet Union. Presumably, the issue worked to the advantage of the United States. In spite of these lofty ideals, there was a distinct gap between the rhetoric and reality of America’s foreign policy. A principled policy on human rights often gave way to more pressing strategic concerns. Throughout the 1970s, the US government supported a number of military and authoritarian regimes who routinely used torture to silence and intimidate the political opposition. Among them were countries in Latin America, such as Argentina, Uruguay, and Chile, but also Iran and Indonesia. Support for dictatorships that relied on human rights violations was defended with overriding strategic concerns: in all of

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these countries, the opposition had a socialist agenda, which, if allowed to prevail, could align the country to the Soviet Union and alter the Cold War balance against the United States. Publicly the United States condemned human rights violations by these countries, but it supported the right-wing dictatorships logistically, financially, and militarily. One of the most notorious examples was the Central Intelligence Agency’s role in the military coup in Chile on 11 September 1973, which toppled socialist President Salvador Allende, who was democratically elected, and replaced him with the authoritarian general Augusto Pinochet. US support of authoritarian regimes that brutally suppressed the freedom of the population undermined its claim to moral superiority. So did obvious double standards between relations with “friendly” right-wing dictatorships on one hand and hostile communist regimes on the other. The issue of how to resolve the tension between a consistent approach to human rights and larger strategic considerations was always controversial within the US foreign policy community. This led to notable differences in the way American administrations approached human rights policy. The implications of the Cold War environment for the American position with regard to the Torture Convention were not obvious. Congress Gets Involved in Human Rights

In the early 1970s Congress began to reassert its role in formulating foreign policy. As a result of the Watergate scandal, trust in the White House had eroded, and the Vietnam War had demonstrated how little Congress’ constitutional power to declare war mattered in practice. From war powers to intelligence oversight, the Capitol became much more activist in foreign policy. Reports about gross human rights violations in the conduct of the Vietnam War, the best known of which was the Mai-Lai massacre, fueled legislators’ criticisms of the executive and sparked a renewed interest in human rights issues. This increased concern for human rights was also a reaction to the realpolitik of the Nixon-Kissinger foreign policy, which many perceived as cynical and not sufficiently in tune with American values (Hartmann 2004). The emerging human rights movement and interested members of Congress started working together. Although their ability to influence the executive on concrete policies was limited, they tried to use legislative measures and the power of the purse to keep human rights on the agenda. In 1973 the Subcommittee on International Organizations and Movements under the chairmanship of Donald M. Fraser began holding a series of hearings on human rights related issues. That same

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year, Congress enacted legislation prohibiting foreign aid to countries that engaged in a “consistent pattern of gross violations of internationally recognized human rights” (cited in Forsythe 1988: 15). These restrictions applied to military and security assistance and, by 1977, also to financial aid and credits from international financial institutions. Also in 1977, Congress created the Bureau of Human Rights and Humanitarian Affairs in the Department of State. Throughout the administrations of the 1970s, Congress left its mark on the human rights policies of administrations. Even after President Jimmy Carter embraced the human rights agenda, Congress worked to ensure that this commitment did not remain merely rhetorical. Unsatisfied with administration’s assurances that it would consult the Office on Human Rights, it elevated the position of its director to assistant secretary level, and expanded the staff of the office (Hartmann 2004: 82-83). When the Reagan administration took over, the importance attached to human rights from the executive diminished. This gave new impetus to congressional activism on the subject. Congress rejected the nomination of Ernest Lefever as the director of the Office on Human Rights because he rejected making human rights a priority for US foreign policy. Nevertheless, Congress’ engagement depended very much on individual issue leaders. As the debates about country-specific legislation show, Congress was not free from the ideological struggles about human rights (Forsythe 1988). The Republican majority in the Senate was reluctant to criticize the Reagan administration and, without a human rights subcommittee in the Senate, there was no institutional focal point for consistent human rights advocacy (Forsythe 1987: 390). Yet the Democratic majority in the House and some of their Republican allies were not prepared to give in to Reagan’s lack of interest in promoting human rights. Congressmen, including Representatives Stephen Solarz and Tony Hall, and Senators Tom Harkin, Dave Durenburger, and Daniel Patrick Moynihan, joined forces with NGOs like America’s Watch and the Lawyers Committee for Human Rights to resist Reagan policies (Jacoby 1986: 1070). In 1984, the House Foreign Affairs Committee held a series of hearings on the phenomenon of torture. The result was the adoption of the “Joint Resolution regarding the implementation of the policy of the United States Government in opposition to the practice of torture by any 10 foreign government.” The resolution required the administration to take a number of measures to prevent torture from occurring, such as calling on the US government to formulate international standards and enforcement mechanisms, including supporting a convention against torture (Hoffman and Brackins 1985: 1358).

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The Judicial Branch Steps In

In the 1980 landmark case Filártiga v. Peña-Irala, a US court ruled against a former Paraguayan official who had committed acts of torture 11 in Paraguay. The Federal Appeals Court of the Second Circuit upheld the claim of a Paraguayan national who, under a US federal statute called the Alien Tort Claims Act (ATCA), had brought a civil law suit against a former Paraguayan government official for torturing his brother to death. A requirement for applying the ATCA was that the action in question was a violation of the law of nations or a US treaty. In deciding the case for the plaintiff, the court ruled that torture was in fact a crime under international law. The language used to deem torturers hostes humani generis further suggested that torture was considered a crime of universal jurisdiction under customary international law (Hoffman and Brackins 1985: 1360). Moreover, the court exercised jurisdiction in a case in which both parties were Paraguayan, effectively holding a foreign government official accountable for a crime against his own citizen. The ruling had implicit backing from the other branches of government. Prior to its ruling, the court had sought the executive’s input. Carter’s legal experts had supported the plaintiff’s cause with amicus briefs (see next section). Congress also supported the court’s view. The ruling influenced Washington’s negotiating position on the Torture Convention. When the US delegation in Geneva argued in a communication to the State Department in January 1981 that the United States should support universal jurisdiction, it made explicit reference to the Filártiga ruling (U.S. Mission in Geneva 1981b). After subsequent rulings in similar circumstances called the legal basis for the Filártiga ruling into question, Congress and the president passed the Torture Victim Protection Act to reaffirm the Filártiga ruling with regard to torture and extra-judicial killings, and to extend the right to sue for damages to US citizens (Hoffman and Brackins 1985: 1362). In principle, this created a basis for jurisprudence that could act against torturers everywhere (see Koh 2007). The Carter Administration

The election of Jimmy Carter as the 39th president gave new impetus to the international human rights movement. During his campaign Jimmy Carter announced that he would make human rights a cornerstone of his foreign policy. His electoral success was in part due to the desire of the American electorate to see a sense of morality installed in the White

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House, after what many perceived to be a cynical approach to foreign policy exemplified by the Vietnam War and the Watergate affair. Carter’s appeal for an idealist foreign policy promised a welcome change from his Republican predecessors Nixon and Ford. Human rights turned out to be a subject on which progressive and conservative Democrats could agree, because it accommodated both the idealist view of the left and the criticism of the Soviet Union of the right (Hartmann 2004). NGOs and Congress had put human rights on the agenda, but Carter brought them into the center of attention. Compared to the moral aspirations of the campaign, the Carter administration’s record was mixed (Maechling 1983: 119). The goal of having a foreign policy firmly based on human rights standards at times fell victim to the pressures of the Cold War reality. The tension between an idealistic outlook and immediate strategic concerns occupied his administration. Secretary of State Cyrus Vance and National Security Advisor Zbigniew Brzezinski personified competing interpretations of problems and diverging prescriptions on how to tackle them. Vance represented a more idealistic approach to foreign policy, emphasizing diplomacy and advocating human rights, while Brzezinski emphasized more realist and conservative views not all that different from those of the Nixon and Ford administrations. President Carter often failed to resolve the resulting disputes conclusively, contributing to a foreign policy of mixed signals that often appeared inconsistent (Snow and Brown 2000: 116). This tension influenced the treatment of human rights treaties. The administration recognized the benefits of acceding to human rights conventions to promote its view that human rights were no longer the internal affairs of individual states. White House Counsel Robert Lipshutz recommended in a memorandum to sign the International Covenant on Civil and Political Rights, as well as the International Covenant on Economic, Social and Cultural Rights that entered into force in 1976. He also advocated seeking Senate approval for the Genocide Convention and the Convention against All Forms of Racial Discrimination. Brzezinski supported the accession to those human rights treaties, recognizing the increasing international criticism of the American pattern of signing but not ratifying multilateral agreements. However, whether out of its own conviction or for fear of the Senate, the administration drafted reservations significantly limiting the scope of the conventions. In the end, the administration decided against pushing aggressively for the ratification of the torture convention during the 1979 session of Congress in order not to endanger the talks on SALT (Hartmann 2004: 54).

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Conflicts also rose within the State Department between representatives of the more conservative business-as-usual approach and those supporting the new focus on human rights. The traditional State Department bureaucracy had been skeptical of Congress’ attempt to institutionalize a human rights agenda by creating the Office of Human Rights and Humanitarian Affairs. The country desks and embassies were generally interested in smooth relations with their partner or host countries and wary that Assistant Secretary of Human Rights and Humanitarian Affairs Patricia Derian and her assistant Frank Sieverts would interfere with their business. Cyrus Vance and his deputy Warren Christopher did not always resolve these tensions (Forsythe 1997: 260; Hartmann 2004). Still, the Office on Human Rights was able to give some impulses and contribute to a more balanced view on human rights. Patricia Derian had worked for the American Civil Liberties Union (ACLU) before joining the administration, and this background gave her a critical view of government practices at home and abroad (Derian 1981). A point of contention was the task of creating country reports on the human rights situation for Congress. When Henry Kissinger was secretary of state, he had effectively ignored the mandate by Congress to collect these reports, but under Vance and Derian, the State Department began to take the task seriously. Vance directed the US embassies abroad to collect information on human rights violations by their host governments and to include them in their country reports. The greater attention to human rights was also reflected in appointments below the cabinet level. Some of the legal advisers, both in the State Department and in the Justice Department, had a record of expertise in civil and human rights. At the Justice Department, the Assistant Attorney General for the Civil Rights Division Drew S. Days III had previously been first Assistant Counsel at the Legal Defense and Educational Fund of the National Association for the Advancement of Colored People (NAACP) – the leading organization for the rights of African Americans and the oldest civil rights organization in the country. John E. Huerta became his deputy. At the State Department, Stephen Schwebel, who later went on to serve as a judge on the International Court of Justice, became deputy legal adviser. The Department’s counsel on public international law was Stefan Riesenfeld, a Holocaust survivor and professor at Berkeley. The appointment of lawyers with a background in human rights turned out to be instrumental in creating an atmosphere favorable to taking effective measures against torture. When, in 1980, the court responsible for the Filártiga case asked the executive for an opinion on the consequences of the court’s decision,

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these lawyers gave the court a green light for its landmark ruling (Koh 2007: 54). The new emphasis on human rights emerging during the Carter administration left its mark on the negotiating position of the US delegation at the CAT negotiations. The clear US position in favor of universal jurisdiction is strongly informed by the zeitgeist of the era. US negotiators consistently cited the need to have a convention that is enforceable and has “teeth.” On a number of occasions the delegation referred to the emerging legal opinion that torture is a crime against humanity, citing the Filártiga ruling. The Reagan Administration

When the Reagan administration assumed office, it was determined not to let human rights concerns interfere with the alliances it considered strategically important. During his campaign for the presidency, Reagan had strongly criticized the preoccupation of the Carter government with human rights. After assuming office Reagan took a number of steps to de-emphasize the significance of human rights on the foreign policy agenda. The new secretary of state, Alexander Haig, announced that, instead of human rights, terrorism would be the focus of the Reagan government. In a speech in spring 1981, he stated (cited in Jacoby 1986: 1069): “There are limits to what we can and should do to transform other cultures, customs, and institutions.” In contrast to Carter, Reagan nominated individuals who were critical of the human rights agenda. Reagan’s first pick for the position of assistant secretary for human rights and humanitarian affairs was Ernest Lefever. Lefever strongly opposed any conditioning of foreign or military aid on the human rights situations in other countries. Within its first few months in office, the Reagan administration urged Congress to resume military aid to Argentina, Uruguay, Chile, and Guatemala (Jacoby 1986: 1069). The official line of reasoning that human rights should not matter for American foreign policy did not survive for long. The criticism from Congress and the public was so strong that the Reagan administration had to change course. After extensive hearings, the Senate Foreign Relations Committee rejected the appointment of Ernest Lefever as assistant secretary of human rights and humanitarian affairs. Reagan instead appointed Elliot Abrams, who was initially supposed to become assistant secretary for international organizations. In connection with his nomination, Secretary of State Haig in October 1981 approved a memo about the importance of human rights as a basis of American foreign

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policy (Crossette 1981). Part of the memo read (The New York Times 1981): “Human rights” - meaning political rights and civil liberties - conveys what is ultimately at issue in our contest with the Soviet bloc. The fundamental distinction is our respective attitudes toward freedom. Our ability to resist the Soviets around the world depends in part on our ability to draw this distinction and to persuade others of it.

Instead of denouncing the importance of human rights altogether, the Reagan administration attempted to turn the human rights discourse into a Cold War weapon (Forsythe 1997: 263; Jacoby 1986: 1071). Rather than defining human rights as freedom from threats to personal security, such as torture and inhuman treatment, arbitrary arrest, or forced disappearances, the administration emphasized political liberties like freedom of speech (Maechling 1983). This shift was intended to channel criticism toward socialist countries. At the same time, some of the most brutal regimes that enjoyed good relations with the Reagan administration got a pass, including those of Guatemala, El Salvador, Zaire, Liberia, and South Korea. To justify its emphasis on political freedoms, the administration relied on an argument first presented by Jeane Kirkpatrick in a 1979 article titled “Dictatorships and Double 12 Standards.” Kirkpatrick openly advocated treating right-wing authoritarian regimes differently from their left-wing equivalents. According to the article, right-wing “authoritarianism” was qualitatively different from communist “totalitarianism,” because the former had the potential to make a transition to democracy over time, whereas the latter could not (Kirkpatrick 1979). This argument – often referred to as the Kirkpatrick doctrine – was taken up by the Reagan administration and used as a justification to lend support to friendly dictators (Maechling 1983). Assistant Secretary for Human Rights Eliott Abrams was one of the Reagan officials who subscribed to this view (Forsythe 1987: 385). In practice, the controversy revolved mainly around the question of which countries should receive military and economic aid from the United States. According to standing legislation, governments that engaged in a “consistent pattern of gross violations of human rights” were prohibited from receiving US aid. However, Congress had very limited means to enforce its laws, because it had to rely on the executive’s assessment of the human rights situation in a particular country. The Reagan administration’s strategy was to admit the human rights violations, but to deny that they represented a “consistent pattern.” In accordance with the Kirkpatrick argument, it would emphasize minor

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improvements in the human rights situation, which warranted the continuation of US support. The shift in human rights policies from Carter to Reagan received a great deal of attention and provoked an outcry in the human rights community (see e.g. Derian 1981). Some observers noted that the rhetoric of the Reagan campaign alone caused human rights abuses to rise in countries from El Salvador to South Korea, as many authoritarian governments took Reagan’s election as a green light to crack down on the opposition (Jacoby 1986: 1068). Over time, Congress and the public forced the Reagan administration to adopt a more even-handed approach and to criticize the egregious human rights abuses of allies. During Reagan’s second term, the less ideological Richard Schifter replaced Eliot Abrams in the Human Rights bureau, and the administration played a more constructive role in human rights (Jacoby 1986). The United States Supports a Strong Convention

When the UN General Assembly tasked the Commission on Human Rights to prepare a draft for a convention against torture at the end of 1977, it marked the beginning of substantive negotiations. The initial draft was presented by the Swedish delegation in January 1978. The reaction to that draft by the Carter administration, presented in early 1979, was positive. The United States was one of eight countries to provide written comments, indicating general support of the Swedish proposal. From 1979 until 1984, the working group held discussions trying to achieve consensus on a text. The week-long meetings took place each year in the week before the annual session of the Human Rights Commission. During the sessions, informal consultations about the draft convention would continue. As a member of the Human Rights Commission, the United States continuously and actively participated in the working group negotiating the CAT. It consulted closely with the changing chairmen of that working group, as well as with the Swedish and other delegations who showed an interest in seeing the treaty succeed. It also consulted with experts in the human rights community to better assess the benefits and problems of specific treaty language and provisions. The cables from the US delegation to the State Department reference the positions of the International Commission of Jurists and Amnesty International (AI) for 13 guidance as sources of expertise (e.g. U.S. Mission in Geneva 1981e). They also mention meetings of Ambassador Helman with Niall MacDermot, secretary general of the International Commission of

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Jurists, and AI representatives (U.S. Mission in Geneva 1980a). One cable states (U.S. Mission in Geneva 1982): This is an area where we are indisputably on the side of the angels as far as the NGOs are concerned. To those who follow the issue, such as Amnesty International and the International Commission of Jurists, it is clear that the US delegation has been the most active in working toward a meaningful convention, [We could cite this fact in countering charges that we tend to look the other way when governments we support are accused of torture.]

Overall, the internal communication between the delegation in Geneva and the Department of State indicates a genuine and sincere concern for a timely conclusion of an effective treaty. Commitment to a Meaningful Treaty

The interest of the US delegation in negotiating a strong treaty was also reflected in its positions on the substantive provisions. Yet, in some respects the United States sought to narrow the scope of the treaty. Since the CAT was meant to be the legal basis for sanctioning torturers – potentially through criminal proceedings – the US negotiators sought utmost precision on what constituted torture. The Definition of Torture

Initially the United States was in favor of limiting the convention to torture, because it felt that the term cruel, inhumane, and degrading treatment was not sufficiently precise to serve as a basis for criminal proceedings. It also favored language that established a high threshold for categorizing actions as torture. The language in the Swedish draft read as follows (Burgers and Danelius 1988: 41): [...] torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he has committed or is suspected of having committed, or intimidating him or other persons. […].

Torture was further defined as an “aggravated and deliberate form of cruel, inhuman, and degrading treatment.” Originally the United Kingdom pushed for a more restrictive definition, proposing the phrase

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“systematic and intentional infliction of extreme pain or suffering” (emphasis added). The United States partly adopted the British suggestion, proposing the wording “extremely severe pain” that was “deliberately and maliciously” inflicted in its own proposal. But later both the United States and the United Kingdom accepted the original Swedish formulation of the “intentional” infliction of “severe” pain or suffering (Burgers and Danelius 1988: 41). Similarly, Britain and the United States wanted to include a paragraph stating that “torture is an aggravated form of cruel, inhuman or degrading treatment or punishment” to give torture a more concrete legal meaning. Amnesty International, the International Commission of Jurists, and most other states objected to such a narrow definition. The United States compromised under the condition that Art. 16 mentioned cruel, inhuman, and degrading punishment or treatment not amounting to torture as a separate type of violation (U.S. Mission in Geneva 1981e). Pain and Suffering Arising from Lawful Sanctions

With regard to the issue of whether cruel treatment resulting from lawful punishment should be exempt from the torture definition, the US delegation was concerned that this would weaken the convention. The original Swedish draft excluded pain and suffering “arising only from, inherent in or incidental to, lawful sanctions to the extent consistent with the Standard Minimum Rules for the Treatment of Prisoners.” According to US delegate Stephen Bond, this phrase was intended to achieve broader membership. The legal code of some Muslim states contained penalties that could be considered cruel, such as amputation. The drafters wanted language that would not prevent such states from joining, as the intention of the convention was to strengthen the prohibition of torture, not to reform the penal laws of countries. Whether various forms of corporal punishment, such as amputation, are permitted under the convention, remains ambiguous (Burgers and Danelius 1988: 121). In the discussion, the United States pointed out that such a provision might undermine the convention by allowing governments to simply legalize cruel treatment by passing legislation to that effect. It therefore suggested the inclusion of “sanctions imposed under colour of law but in flagrant disregard of accepted international standards” as prohibited under the definition of torture (Burgers and Danelius 1988: 72). But since it was not clear what those international standards were, the reference did not make it into the final text. It is worth noting that the US delegation attempted to close this potential loophole, even though

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exempting cruel treatment arising from lawful sanctions could have protected certain controversial aspects of the US penal system like capital punishment from international criticism. Nonetheless, the United States initially gave priority to an effective treaty over protecting aspects of its own legal system. Acquiescence of Officials

The United States also worked to expand the circumstances under which a public official could be held accountable for torture. Whereas the original draft wanted to establish criminal liability for torture committed “by or at the instigation of” public officials, the United States sought to further hold public officials and persons acting in official capacity liable for torture committed with their “consent or acquiescence.” In other words, an official could be held accountable for knowing about the use of torture and not attempting to prevent it (Burgers and Danelius 1988: 45). Its proposed change was adopted and resulted in an expansion of the circumstances under which torturers could be held liable. The Status of Cruel, Inhuman, and Degrading Treatment (CIDT)

The compromise that was reached on the issue of whether to include CIDT within the scope of the convention provided for two separate degrees of enforcement. In Art. 16 the convention obliged states to prevent cruel treatment not amounting to torture. The systematic and proactive measures included in Articles 10-13 for that purpose – training of military and law enforcement officials, reviewing interrogation procedures, establishing complaint procedures, and investigating accusations of misconduct – would also apply to CIDT. However, criminal proceedings against violators would be limited to instances of torture. A question that remained open until late in the negotiations was if individuals could also claim compensation for CIDT under Art. 14. The United States favored limiting compensation to torture, and not including a reference to Art. 14 (the right to compensation) in Art. 16 (provisions about CIDT). However, internal communications indicate that the State Department was willing to compromise on the issue as part of a final deal (U.S. Mission in Geneva 1981e).

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Commitment to Effective Sanctions against Torturers

The American delegation wanted to make the treaty as effective as possible. To add any practical benefits to existing prohibitions against torture, the convention had to be enforceable. Measures to hold torturers accountable were thus a cornerstone of the agreement. In drafting a text, delegations looked to existing treaty language for guidance. For the definitions of torture, they turned to the formulations in existing human rights instruments, as well as the Declaration against Torture. For the provisions intended to give the convention teeth, delegations consulted existing treaties dealing with crimes of international character. From the start, the US delegation in particular operated on the assumption that the sanctions in the convention should be modeled on the conventions against aircraft hijacking, crimes against diplomats, and hostage 14 taking. Therefore the US delegation supported the inclusion of the 15 principle of extra-territorial jurisdiction from the very beginning. The Swedish draft that was accepted as a basis for negotiations contained two elements intended to make the convention effective. It proposed jurisdiction based on the principle of universality, and envisioned an international body for the supervision of the compliance of state parties. The draft suggested that the Human Rights Committee created under the Optional Protocol of the International Covenant on Civil and Political Rights could be responsible for supervising compliance with the treaty (Burgers and Danelius 1988: 35). In addition to the monitoring mechanisms of the covenant, the draft CAT also included the possibility for independent inquiries: If there was evidence that a state systematically practiced torture, the committee could initiate its own investigation into that state’s actions. When the United States submitted its first comments in response to the Swedish draft, it supported the principle of universal jurisdiction, one of the more controversial suggestions made by Sweden (Baehr 1989: 43; Burgers and Danelius 1988: 40, 58). Universal jurisdiction refers to the explicit right of member states to prosecute individuals for 16 offenses, even if they have taken place outside of that state’s territory. Opponents initially included not only authoritarian governments, but also a number of Western democracies. Australia, France, the Netherlands, and the United Kingdom were among the countries that objected to this point, but the United States attached particular importance to it. This position was consistent with the widespread view in the Carter administration that the fundamental human rights codified in the Universal Declaration had become binding under customary international law, and that states and their government officials should

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no longer be allowed to hide behind the cover of sovereignty when violating those rights. It is worth noting that the American delegation was aware that extra-territorial jurisdiction was not permitted under existing US law, and required changes to the legal status quo through implementing legislation (U.S. Mission in Geneva 1980b). Still, the US delegation did not stop at permitting states to exercise jurisdiction. In a serious attempt to end impunity, it wanted to adopt a provision requiring states to either prosecute alleged offenders or to extradite them to a country willing to prosecute them. At one point, the United States suggested including the following text in Art. 7 of the convention (U.S. Mission in Geneva 1981e): The state party in territory under whose jurisdiction a person alleged to have committed any offence referred to in Article 4 is found shall, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in any territory under its jurisdiction to submit the case to its competent authorities which shall take such measures as are required by national law to provide the basis for a decision whether or not the alleged offender shall be put on trial. […] (emphasis added).

The idea to demand that states “extradite or prosecute” was subject to intense discussion, and a number of countries attempted to weaken the provision. The United States, however, pointed to similar language in 17 existing treaties against international crimes. In the final agreement, the paragraph reads: The state party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in Article 4 is found shall in the cases contemplated in Article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.

The United States did not obtain the strong language it had requested, but the requirement to extradite or prosecute was preserved. The US government did not hold strong views on the nature of the implementing body. It did not object to a committee supervising implementation, but considered the issue of jurisdiction to be more important for an effective treaty. In its stated position the United States favored a minimum of implementing provisions, possibly limited to reporting requirements (U.S. Mission in Geneva 1981e). While Argentina and Brazil did not want any implementing measures, the Dutch delegation favored a more stringent approach under which there would be a mandatory complaint

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mechanism for states and the right for the committee to investigate states’ behavior. During the preparations for the 1983 working group, the US delegation internally considered trading mandatory implementing measures for agreement to universal jurisdiction from Argentina and Brazil. But the other members of the Western group placed great emphasis on the implementing measures and the United States did not want to isolate itself. The Soviet Union, however, opposed the implementing measures and wanted to make any authority by a Committee against Torture optional. Concluding the Negotiations

After the working group in 1979 and 1980 had reached a consensus on most of the substantive issues regarding the definition of torture and the obligations of states to prevent it from occurring, the years from 1980 to 1984 were dominated by questions of implementation. The United States lobbied tirelessly on behalf of universal jurisdiction, including a strict provision to “extradite or prosecute,” and eventually managed to convince most of its allies in Europe and the Western group to go along with its position. The Soviet Union had no particular objections to this aspect of the treaty. The most vocal opponent was Argentina, supported by Uruguay. Brazil tried to broker a compromise by suggesting making the exercise of universal jurisdiction dependent on the refusal of a request for extradition (Burgers and Danelius 1988: 78), a proposal that Argentina did not approve. The issue was only resolved in 1984, after the military dictatorship in Argentina ended and a democratic government was elected. The new government announced its support for universal jurisdiction, as well as the implementing system, and cleared the way for a consensus (Burgers and Danelius 1988). China continued to advocate that jurisdiction based on the nationality of the victim or the offender should take presence over jurisdiction based on the presence of the offender the territory of a state party, but over the course of the session of the human rights committee, it dropped its objections (Burgers and Danelius 1988: 95; U.S. Mission in Geneva 1984b). The United States also committed financially to the new institution. At its initiative, Article 18 was amended to hold that state parties were responsible to carry the costs of the meetings of the Committee against Torture. The new organization was to have a budget independent from the UN Secretariat (U.S. Mission in Geneva 1984a). Despite significant progress on most issues, no agreement could be reached on Articles 19 and 20 of the convention. The Soviet Union had

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originally opposed a mandatory implementation body in its entirety. In the working group session of 1984, it limited its opposition to specific points. One concern was about the committee’s ability to make countryspecific comments and suggestions in its annual reports and whether the reports should be transmitted to the UN General Assembly. Also controversial was the ability of states to report violations of the convention by other states to the Committee against Torture and the committee’s ability to initiate investigations based on such allegations. The Soviet Union, along with other states of the Warsaw Pact, voiced concern about the committee’s ability to interfere with the policies of state parties. The working group was not able to resolve these issues (Burgers and Danelius 1988: 97). Eventually the working group agreed to submit its report to the plenary of the Human Rights Commission without agreement on Articles 19 and 20. It had decided that the issues could not be resolved through compromise language, but had to be decided politically. The Human Rights Commission received the report from the working group on 28 February 1984. In its discussion on how to proceed, there were several positions. The Soviet Union wanted to continue the discussion on the working group level to resolve the remaining issues. The United States delegation rejected this as an attempt to buy time and pressed to pass the working group report on to the UN General Assembly (U.S. Mission to the UN in New York 1984a). On 6 March the Human Rights Commission adopted by consensus the resolution to transmit the working group report to the UN General Assembly. The secretarygeneral was requested to allow for comments from governments before 1 September 1984 (Burgers and Danelius 1988: 101). The General Assembly put the Convention Against Torture on the agenda of its 39th session and assigned it to its Third Committee, which is in charge of human rights issues. An intense lobbying effort by the countries in favor of the convention followed, in order to convince those that had not participated in the Human Rights Committee and the working group to support the treaty. The communications from the US Mission to the United Nations in New York show that the United States staged a major lobbying campaign on behalf of adopting the convention in the Third Committee of the UN General Assembly. The State Department instructed several of its embassies to send démarches to their host governments, emphasizing the importance the US government attached to timely ratification (U.S. Mission to the UN in New York 1984a). The key to reaching agreement was to find a compromise with regard to the objections from the Soviet bloc concerning the right of the

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Committee against Torture to receive and investigate reports of torture in Articles 19 and 20. As late as November 1984, the US delegation opposed any compromise (U.S. Mission to the UN in New York 1984b). On 21 November 1984 Richard Schifter, the US representative to the Human Rights Commission spoke in the Third Committee on behalf of the convention in its proposed form. But in the end, the Western states decided to meet the Soviet delegations halfway with regard to the language of Articles 19 and 20 in order to achieve a broad consensus. In addition they accepted a Belarusian proposal to insert an article that would establish the possibility to opt out of Article 20. With these adjustments the convention was adopted by the General Assembly on 10 December without a vote. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was open for signature (Burgers and Danelius 1988: 72). The Cold War Factor

There is some evidence that the Cold War rivalry and ideological differences between the West and the Soviet bloc played a role during negotiations. For example, in the context of Art. 3, which obliged state parties not to expel persons to states where they would be at risk of being tortured, the Soviet Union proposed to list specific situations as evidence that such a threat existed. Among the indicators it wanted to list were a state policy of “apartheid, racial discrimination or genocide, the suppression of national liberation movements, aggression or the occupation of foreign territory.” (Burgers and Danelius 1988: 51). The United States countered that such a list would have to include “religious persecution, denial of free speech, suppression of political dissent and the free flow of information, and armed intervention in the affairs of a sovereign State.” (Burgers and Danelius 1988: 56). Eventually the indicators were left out. Overall the negotiations were not dominated by the ideological confrontation. The US delegation actively tried to counter the impression that it was acting with a hidden Cold War agenda or promoting any kind of double standard. For example, there was an open question whether the CAT should be limited to circumstances not already covered by the Geneva Conventions and their additional 18 protocols. The American delegation was concerned that any argument deferring to the Geneva Protocol regarding the conduct of military personnel might be understood as an attempt to protect military rightwing authoritarians – Guatemala and Afghanistan were mentioned – from the reach of the CAT (U.S. Mission in Geneva 1983).

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There were important disagreements within the Western group as well. While the Dutch – a leading delegation – aimed for a strong implementing body they were initially uncomfortable with strong provisions for universal jurisdiction. Even though the Western group coordinated their positions prior to working group meetings, they did not always agree on substance. From a US perspective, the biggest problem was the obstructionist view of the governments of Argentina and Brazil. Even though the Reagan administration aimed for good relations with these countries, the US delegation in Geneva was notably exasperated by the attempts from the military dictatorships to block progress on the convention. It repeatedly asked the Department of State to make démarches to the Argentine government, to stress the importance the United States attached to the convention. A Surprising Continuity from Carter to Reagan

Against the background of the intense controversies surrounding US human rights policy at the time, it is notable that the advent of the Reagan administration had very little impact on the US position with respect to the Torture Convention. The empirical evidence clearly shows that the American approach to the negotiations was characterized by continuity across administrations. A comparison of the internal American communications from 1980 onwards with the account from Dutch delegate Herman Burgers and Swedish delegate Hans Danelius (1988) of the negotiations from 1978 to 1980 shows that the United States took a consistent position throughout. While it compromised on some issues to achieve consensus, it never reversed its position on a major issue. The position of the US delegation to the Human Rights Commission was hardly affected by the larger debates taking place in Washington. A cable from the US Mission in Geneva (1981a) in preparation for the 1981 session of the Human Rights Commission contained the following paragraph: As the Commission is expected to devote considerable attention to ways of strengthening United Nations human rights machinery and procedures, the session provides an opportunity to achieve significant advances in the multilateralization of efforts to implement universal human rights standards. Success in this institution-building effort would assure more even-handed and less-politicized treatment of human rights issues in the UN, facilitating the ability of the US to advance its interests without bilateral confrontation.

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The delegation specifically emphasized in its communication with Foggy Bottom that US behavior at the 1981 session of the UN Human Rights Commission would be interpreted as constituting the human rights policies of the new administration. Irrespective of any ideological debates about human rights, it argued in favor of an even-handed approach and support for effective UN human rights institutions. There were some personnel changes at the US Mission in Geneva as a consequence of the transition from Carter to Reagan. In the final years of the Carter administration, the US Mission in Geneva was headed by Ambassador Gerald B. Helman (December 1979-Oct 1981), a career foreign service official. Reagan replaced him with Geoffrey Swaebe, a political appointee with little foreign policy experience who received the post as a reward for his fund-raising contribution to the Reagan campaign (Thomas Jr. 1997). Michael Novak, the US delegate to the Human Rights Commission in the years 1981 and 1982, subscribed to Kirkpatrick’s doctrine of double standards and voted against attempts by other states to condemn the Argentine government for its role in the forced disappearances and murder of civilians (Maechling 1983: 122; Tonelson 1982: 56). However, the person primarily responsible for negotiating the Torture Convention, Stephen Bond, remained in his post throughout the transition from Carter to Reagan, even as the US Ambassador to the United Nations in Geneva changed. Bond, legal counsel to the US Mission, was in charge of the day-to-day negotiations in the working group. He later received a State Department award for the successful conclusion of the Torture Convention. Technically, Bond reported to the assistant secretary for international organizations and the Human Rights Bureau, but according to his own recollection he “essentially wrote his own instructions.” Prior to each of the working groups that took place in January of each year between 1979 and 1984, the US mission summarized the standing US position and requested notification of any changes in the US position. Bond perceived a strong and effective convention to be in the US interest, and his suggestions to his superiors in Washington on the specific positions the United States should take were rarely rejected. Neither the transition from Secretary of State Cyrus Vance to Alexander Haig after Reagan’s election, nor the replacement of Haig with George Shultz had any visible consequences for the US position on the CAT. During a congressional hearing in 1984, Assistant Secretary for Human Rights Eliott Abrams expressed his explicit support for adopting the convention (U.S. House of Representatives 1984b: 169). The change of the ambassador to the US Mission in Geneva also had no tangible impact. The first cable signed by the recently appointed

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Ambassador Swaebe – but presumably written by Stephen Bond – states: “The US Position has been and, we assume, remains one of strongly supporting the completion of a meaningful convention and the US Delegate should be as active as necessary to promote this objective.” (U.S. Mission in Geneva 1981e). For the period for which cables are available – January 1980 to the adoption of the convention by the Third Committee of the United Nations in New York in December 1984 – the communications show a great deal of continuity. This continuity is all the more remarkable because some of the provisions of the CAT that were being negotiated had direct implications for the most controversial issues of US foreign policy. For example, Art. 4, paragraph 1 of the CAT reads: “Each state party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.” In the same cable signed by Reagan-appointee Swaebe, the delegation communicated the following warning about the possible application of this article to its superiors at the State Department (U.S. Mission in Geneva 1981e): […] a possibly touchy point is the matter of the scope of the term ‘complicity.’ For example, to what extent might government officials, especially those connected with the international security forces, or heads of state of foreign states where torture appears to be state policy be considered as having engaged in an act which constitutes complicity (before or after the fact) and which could, if the convention provides for universal jurisdiction as the US desires, result in such officials being detained for extradition or prosecution. Not all such officials traveling to second states would necessarily be accorded full diplomatic immunity. Likewise, what would be the situation of former officials of deposed governments, such as the Shah or Somoza? If the US had been party to such a convention, would we have been obligated to “prosecute or extradite” such officials under the conditions of Article 6 of the convention (appropriate allegations of torture and the taking into custody of the alleged torturer).

In other words, the CAT directly contradicted President Reagan’s policy of supporting friendly dictators regardless of their human rights record. Nevertheless, the US delegation was not instructed to change its position and both Article 4 and Article 7 (universal jurisdiction) remained in the final text.

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Ratifying the Convention

Congress welcomed the conclusion of the Convention Against Torture 19 and America’s participation. Its support was bipartisan. In the spring of 1984, the Subcommittee of Human Rights of the House Foreign Affairs Committee held a series of hearings on the “phenomenon of torture” (Hoffman and Brackins 1985). They culminated in the adoption of a “Joint Resolution regarding the implementation of the policy of the United States Government in opposition to the practice of torture by any foreign government”, sponsored by Senators Pell (D – RI) and Percy (R – FL) which was signed into law by President Reagan on 4 October 20 1984. It confirms, inter alia, the support of the US government for the drafting of a convention against torture. At the time, the Democrats controlled the House of Representatives, while the Republicans controlled the Senate. Despite this wide consensus, ratification of the CAT was caught up in the inter-agency process for several years after its conclusion. On 26 June 1987, the convention entered into force, after 20 states had become party to it. Almost a year later, and more than three years after the conclusion of negotiations, President Reagan signed the convention on behalf of the United States and transferred it to the Senate for ratification. In a message accompanying the request for advice and consent, he characterized the convention as a “significant step in the development during this century of international measures against torture and other inhuman treatment or punishment.” (Reagan 1988). He further pointed out that the United States had actively and effectively participated in the negotiations, and explicitly mentioned the principle of universal jurisdiction favorably. Reagan’s Reservations

The Reagan administration wanted to make its participation in the CAT subject to some important restrictions. Together with the request for Senate approval, it passed along a package of reservations, understandings, and declarations (RUDs) that it considered necessary to be adopted together with ratification. They were drafted by the State Department and limited the reach of the convention. Among the conditions it wanted to attach to the adoption of its resolution were the following provisions (U.S. Senate 1990a): •

narrowing the instances of behavior qualifying as torture, including direct control of the victim, specific intent to harm the

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victim, and a higher threshold for the level of pain (“extremely severe pain”). limiting the definition of mental torture to

the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.

•

•

•

•

not to be bound by the settlement mechanism of the International Court of Justice under Article 30 paragraph 1 to settle disputes between state parties. However, the United States retained the option to apply the dispute settlement mechanism on a case-by-case basis. recognizing the federal nature of the US political system and limiting direct compliance with the CAT to the federal government. In addition it committed to taking “measures appropriate to the Federal system” to ensure that states are in accordance with the convention. qualifying the provision of non-refoulement under Article 3. The United States interprets the prohibition to extradite persons, if there are substantial grounds to believing that they might be tortured to mean, 'if it is more likely than not that [they] would be tortured.' stating that Articles 1-16 of the convention are not selfexecuting and require implementing legislation.

The most important limitation concerned the definition of cruel, inhuman, and degrading treatment or punishment. A reservation declared [t]hat the United States considers itself bound by the obligation under Article 16 to prevent 'cruel, inhuman or degrading treatment or punishment', only insofar as the term 'cruel, inhuman or degrading treatment or punishment' means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.

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With this reservation the United States ensured that the treaty would not establish a new standard for treatment or punishment that went beyond existing US law. The phrase meant that, in interpreting what constitutes cruel treatment, US authorities would rely solely on the US constitution and its interpretation by the judiciary. This limitation was more significant as a matter of principle than for practical purposes. At the time, the US legal and penal system was regarded as meeting the standards of treatment envisioned under the CAT. It was decidedly not the intention of the drafters of the treaty to address controversial aspects of the penal systems of member states. It was widely understood that the death penalty would not be illegal under the CAT. Nevertheless, the idea that the convention could not go beyond what was already established by national law went against the idea of international treaties. If all state parties added reservations to that effect, 21 the provision against CIDT would be rendered meaningless. The Senate did not hold hearings on the convention while Reagan was in office, but apparently some senators remained engaged with the subject. Shortly after the Bush administration took over, it started discussions with the Senate about the conditions the United States would attach to the convention. The Bush Administration

After George H.W. Bush was elected president, the convention was resubmitted to the Senate. Acting upon a request from some senators, the administration reduced the list of RUDs it asked the Senate to include in the resolution of approval. On 24 July 1989, Claiborne Pell, the Democratic chairman of the Senate Foreign Relations Committee, wrote a letter to the secretary of state, asking him to reconsider the list of conditions. He adopted some of the criticisms from human rights organizations claiming that too many conditions would undermine the convention and, in particular, that raising the threshold of torture could make its use more likely. In response, the State Department revised the conditions in consultation with the Justice and Defense Departments. It significantly reduced the list of conditions: some were deleted, some were changed from the stronger tool of “reservation” into the more benign format of “understanding”, and others were reformulated (U.S. Senate 1990a: 6970). In an important change of position, the administration now agreed to accept the competence of the Committee against Torture under Article 20 to undertake investigations into the behavior of states, dropping its original declaration to opt out of granting this authority

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under Art. 28. In accordance with Art. 21, it declared that it was prepared to accept the authority of the committee to hear complaints from states about US behavior on a reciprocal basis. The United States had also initially intended to specify in a reservation that it only considered extremely severe pain as suffering torture. That condition was dropped under the Bush administration. Two crucial conditions were retained in the package of reservations, understandings, and declarations. The first one referred to the definition of torture: The United States kept the understanding that held that specific intent to inflict pain or suffering was required for the crime of torture. It also maintained its narrower definition of what constitutes 22 mental torture. The second important condition was a reservation regarding the definition of CIDT: It was defined to mean the same as the prohibition of cruel and unusual punishment in the US Constitution as interpreted by US courts. One understanding was added to clarify the US view that capital punishment was not prohibited by international law, and that neither the death penalty nor prolonged detention leading up to application of the death penalty constituted cruel treatment. This had not been part of the original package of RUDs proposed by the Reagan administration, but was a response to a recent ruling by the European Court of Human Rights that concluded that the “death row” phenomenon, the extended imprisonment of persons sentenced to death, constituted inhuman or 23 degrading treatment. While it’s accurate that most RUDs limit the scope of the Torture Convention, some have the opposite effect. One understanding makes clear that acquiescence to instances of torture includes specific knowledge about torture, as well as willful blindness to acts of torture. In other words, if an official intentionally turns a blind eye to acts of torture by his or her subordinates, he or she can be held liable. In accordance with its position during the negotiations, the United States also sought to limit the exception for pain or suffering arising from lawful sanctions to such sanctions that are in accordance with international law and do not violate the purpose of the convention. In sum, the goal of greater precision was not just an excuse to carve out exceptions from the prohibition of torture, but genuine. The Senate Position during the Hearing

On 30 January 1990, the Senate Foreign Relations Committee held hearings on the treaty. At the time Democrats had a 55-45 seat majority in the Senate. Democratic Chairman Claiborne Pell presided over the

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hearings. Besides him, only the Republican Senators Larry Pressler and Frank H. Murkowski, as well as ranking minority member Jesse Helms were present. The atmosphere during the hearings was generally constructive. Abraham D. Sofaer, the State Department legal adviser and Mark Richard, the deputy assistant attorney general in the Justice Department Criminal Division testified on behalf of the administration. They emphasized that ratifying the treaty was a high priority for the Bush administration. In making the case for ratification, they compared the CAT to existing conventions on terrorism and emphasized its strong bipartisan credentials. Chairman Pell and Senator Frank H. Murkowski displayed a favorable attitude toward the treaty. Pell had taken the lead on the subject of torture, sponsoring the congressional joint resolution against torture that was passed in 1984, and relaying the criticism of the RUDs to the administration that resulted in the reduction of the number of conditions. Senator Murkowski questioned whether the high number of remaining conditions was necessary, repeatedly pointing out that no other state party had submitted as many reservations and showing concern that they could undermine the convention. Senator Jesse Helms and his Republican colleague Larry Pressler expressed concerns about the treaty. Helms asked several questions indicating his worry that the treaty would undermine US sovereignty. He compared the treaty to the Genocide Convention and proposed the inclusion of a sovereignty clause to protect the United States constitution (U.S. Senate 1990a: 2, 41). He also wondered how the treaty would affect the federal system. He expressed concern that a reference in one of the conditions implied that international law was superior to the US Constitution, a view he strongly disagreed with. He also questioned the prudence of signing on to a treaty that included a number of countries known to be human rights violators, especially given that the United States did not engage in torture. Senator Pressler’s concerns were similar in nature. He squarely declared (U.S. Senate 1990a: 3): “I do not support treaties that change American domestic law and legal procedures.” He also emphasized the need for implementing legislation and criticized that the treaty was not legally precise enough. Most of their arguments highlighted more general objections to international human rights regimes. Since most of their specific concerns – from federalism to dispute settlement by the International Court of Justice – were addressed by the package of RUDs, they were left with no major objections. However, Senator Helms expressed the

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desire for further consultations between his staff and the State Department. Nonetheless, on 19 July 1990, the Foreign Relations Committee 24 voted 10-0 to favorably report the convention out of the Committee. It was approved by the Senate plenary subject to the above-mentioned package of reservations, understandings, and declarations. The vote was taken “by division”: the votes were counted, but the exact results were not announced. However, the adoption of four executive amendments proposed by Claiborne Pell together with Jesse Helms before the adoption of the convention indicates that the Democrats managed to 25 enlist even the skeptics among the Republican Party. It seems safe to assume that the adoption had bipartisan support. It took another four years for the Senate to pass implementing legislation on 21 October 1994 – by then the Democrats held 56 seats. With the insertion of § 2340 into US Code, torture became a crime under domestic US law. Only then did the United States formally became party to the convention by submitting the instrument of ratification. Case Findings

The Torture Convention is a rare case of a human rights treaty that generated comparatively little debate about its constitutional implications in the United States and was ratified with relatively few conditions. With regard to the theoretical discussion about American exceptionalism, the Torture Convention is an example of the compatibility of the American self-image as a righteous nation with a policy of multilateral cooperation. Rather than claiming far-reaching exemptions as in other human rights treaties, the United States joined an international effort to strengthen human rights through international law. Even though the treaty encountered practically no domestic opposition and had solid bipartisan credentials, ten years went by after the successful conclusion of the international negotiations before the United States formally acceded to the CAT. This shows how cumbersome the process of treaty making is within the American political system. Nonetheless, the treaty successfully overcame all institutional obstacles without the executive having to invest much political capital. It is a rare case of a decidedly unspectacular and smooth ratification.

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Preservation of Autonomy?

There is little evidence that concerns about autonomy played an important role in the formulation of US policy. Apparently, the treaty was perceived primarily as a human rights treaty, and the discourse was framed almost exclusively in normative terms. This was the case despite the convention’s high degree of legalization. The formal restriction of autonomy through international law did not concern the US government, since nobody in the government perceived international legal restrictions on torture to require any changes in US policies. In evaluating the hypothesis that the more a treaty restricts American autonomy, the less likely the United States is to join, it is useful to distinguish between the formal and practical consequences. On a strictly formal level the treaty does significantly restrict the autonomy of member states. This becomes clear in the discussion about the degree of legalization. The United States not only accepted this high degree of legalization, but worked actively to further strengthen the effectiveness of the treaty. At various stages during the negotiations, the American delegation made suggestions that were intended to close loopholes in the treaty. For example, the American delegation suggested qualifying the exclusion of pain and suffering arising from lawful sanctions from the definition of torture in Article 1 with a supplementary clause stating that lawful sanctions could not violate accepted standards of international law. Another example was the US request to specify that the mere knowledge of torture and the failure to act to prevent it would suffice to make an official complicit in the crime of torture. Perhaps the most important contribution to strengthening the treaty from the United States was its advocacy for universal jurisdiction. This principle raised the degree of legalization of the CAT significantly by establishing what I have termed decentralized delegation. It also meant that, in principle, Americans could be prosecuted and convicted abroad for crimes committed in the United States. While this seemed like a purely hypothetical scenario at the time, it was precisely the type of legal principle that caused such uproar in the discussion about the International Criminal Court. At the same time, the United States effectively shielded itself from any foreseeable impact that the treaty could have on US policy in practical terms. In this regard, the reservations, understandings, and declarations are important. The first point was the explicit insistence that the Torture Convention would not affect capital punishment. This point was perfectly compatible with the intent of the treaty and was not only of concern to the United States. The more important point is the

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reservation with regard to cruel, inhuman, and degrading treatment or punishment. A reservation that was submitted with the instrument of ratification defined CID treatment to have the same meaning as cruel and unusual punishment under the US Constitution. Officially, this reservation served to clarify the definition of cruel, inhuman, and degrading treatment by tying it to the standard that had been developed through American case law. Its practical effect was to assure that the Torture Convention would prohibit nothing that was not already prohibited under American domestic law. It is a classic example of using RUDs to prevent treaties from changing existing US law and practice and ensuring that treaties do not expand the human rights of US citizens beyond the ones they already enjoy under US law. Nonetheless, the United States was keenly aware of the general and universal character of any codified rule. In other words, any qualification of the definition of torture or CID treatment to accommodate US practices could also be used by other states to immunize their own problematic behavior. Therefore it agreed to reduce the original package of RUDs, reacting to the argument advanced by human rights organizations that the exceptions requested by the United States would weaken the treaty. In this sense the United States carefully tried to balance its requirement for autonomy against adopting any measures that would undermine the purpose of the treaty. The American government was genuinely interested in an effective treaty, despite its sovereignty concerns. In spite of the Cold War context, strategic considerations only played a minor role. A few communications between the US Delegation in Geneva and the State Department reveal that a principled stance on torture was viewed as beneficial for the US image in the battle for world opinion. There is no evidence that the fact that many anti-communist US allies, especially in Latin America, systematically practiced torture influenced the US negotiating position. In fact, the American negotiator was perfectly aware that Argentina’s resistance to universal jurisdiction resulted from its history of practicing torture. However, this resistance was seen as an obstacle to an effective treaty. There was never any sign that the United States tried to aid its authoritarian allies by weakening the treaty. The empirical evidence casts doubt on the realist working hypothesis that the United States always prefers autonomy to legalization. While it is careful to protect its domestic policies from international interference, it does support highly legalized international treaties in the right circumstances.

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The Veto Players Hypothesis

The case of the Torture Convention confirms the importance of veto players in the negative. It is a rare example of a treaty that did not have any negative effects on domestic constituencies, and therefore did not provoke any opposition. With all potential domestic veto players on board, the CAT had the type of broad societal consensus that is needed to overcome the many institutional obstacles to treaty participation. Supporting a treaty to abolish torture resonated well with the core of the American identity. The right to be free from torture had been one of the founding principles of the American republic. It was an issue area in which the United States could rightly claim the moral high ground and was confident enough in its own virtue not to feel threatened by international institutions. Just as importantly, the decision-making process on the Torture Convention did not become derailed by the type of partisan politics that can endanger the fate of any agreement regardless of substance. By maintaining a relatively low profile, perhaps through fortunate timing, the CAT avoided the fate of being instrumentalized for electoral politics, taken hostage as a means to push an unrelated agenda, or falling victim to a battle about wider ideological issues. The beginning of the negotiations of the Torture Convention coincided with the tenure of Carter’s administration, who had vowed to make human rights the cornerstone of his foreign policy. The negotiations were supervised by the newly created State Department Bureau on Human Rights and Humanitarian Affairs, and the good relations between Carter’s appointees and human rights organizations set the stage for a constructive US role in the negotiations. Congress was also supportive of the American engagement in the struggle to abolish torture. During the 1970s a group of members of Congress had formed ties with human rights organizations and had become leaders of the cause of promoting human rights. The implementation of this goal in practice often led to bitter partisan and ideological struggles in Congress, especially when it came to assessing the human rights record of specific countries. But the negotiations on the Torture Convention were abstract and universal enough to not become caught up in these deeply ideological and politicized stand-offs. Even though liberals and conservatives fought passionately about how to evaluate the horrors of right-wing authoritarianism in Latin America in comparison with the communist totalitarianism of Eastern Europe, nobody opposed a global regime to criminalize torture.

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For this reason the negotiations on the CAT survived the first years of the Reagan administration. Even though several of Reagan’s appointees had vowed to reverse every policy that Carter had followed on human rights, the Torture Convention was not high on their list of priorities. In the meantime, the career diplomats in the State Department continued to hammer out the treaty text in Geneva. By the time the negotiations on the Torture Convention entered the decisive phase that required authorization from higher levels, the Reagan administration had abandoned its hostility toward promoting human rights, partly due to pressure from Congress and partly because it had discovered that it could use human rights in its favor against the Soviet Union. When Reagan signed the treaty and submitted it to the Senate for advice and consent in 1988, it found a champion in Claiborne Pell, the Democratic chairman of the Senate Foreign Relations Committee. Pell’s appreciation of the treaty is documented not only by his position in the Committee hearings and his vote, but also by the request he made to the Bush administration to drop some reservations that could weaken the treaty internationally. Jesse Helms, the ranking Republican, who created major obstacles to treaty ratification so often, did express some concerns. He made it known that he did not consider the treaty necessary, since countries that did not torture would not need a treaty, whereas those that did would not adhere to it. But since the treaty enjoyed the support of two Republican presidents – Reagan who had negotiated it, and Bush who had submitted it – even Helms was reluctant to vote against it. To be sure, Helms did insist on including a so-called “sovereignty clause” in the resolution of advice and consent, clarifying that nothing in the convention authorized or required legislation prohibited by the US Constitution. But in the case of the CAT, this sovereignty clause did not affect the substance of the treaty. Because the proponents of the CAT could live with this provision, it was largely spared the ideological criticism from the sovereigntists. One other point is worth mentioning: The Defense Department and the military, which were such important veto players with regard to the other three treaties in this study, did not play an important role with respect to the Torture Convention. The Pentagon was not concerned about the implications of the Torture Convention because the Geneva Conventions and the Uniform Code of Military Justice already governed the conduct of the military. Violations of the prohibition of torture by the military already carried heavy penalties, and the armed forces had sufficiently internalized the prohibition of torture so as not to be alarmed by an international treaty. To the contrary, a further international legalization of the prohibition could potentially benefit American

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service members should they be captured in combat. Thus the veto player potential of the Pentagon did not materialize in the case of the CAT. The Presidential Leadership Hypothesis

With regard to the hypothesis about presidential leadership, the Torture Convention represents a curious case. According to this hypothesis, we would expect sustained high-level attention by the executive to be a requirement for the successful adoption of any treaty. Yet the CAT made it through the process despite the absence of a decisive effort by any of the three presidents who were in office beginning with its negotiation and through its adoption by the Senate. Most significant progress took place on the working level, and the process was moved along by mid-level officials who did not change from administration to administration. During the negotiations, US policy toward the CAT was mostly determined by the delegation in Geneva. Of course, it had to be authorized by the State Department, but Washington hardly ever overruled the decisions made in Geneva, and there is no indication that any of the decisions ever made it to the top of the State Department bureaucracy. Under both President Carter and President Reagan, the negotiations were apparently very low on the agenda and slipped under the radar of the higher-ups. At the negotiating stage, the lack of high-level attention was apparently offset by the personal engagement of the American negotiator. Stephen Bond, a legal counsel at the US Mission in Geneva who was convinced of the value of the CAT for American foreign policy, worked deliberately and patiently to overcome obstacles to the successful conclusion of the agreement. Although the United States had not initiated the efforts to draft a convention, it quickly became an important leader and facilitator of the negotiations, and its role was arguably indispensable to their successful conclusion. The inter-agency review of the deal reached in Geneva in 1984 took until 1988, when President Reagan finally signed the treaty. Without a doubt this process could have been completed quicker if the CAT had been a higher priority. Getting the Senate’s advice and consent took several more years, but the executive did not send anyone beyond the assistant secretary level to testify at the Senate hearings on the convention. During the ratification process, Senator Pell assumed a leading role. Absent any major controversies, he was able to broker the

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deal needed to gain Republican support for the convention without any major support by the executive. The Torture Convention is a rare case, in which the consensus was so strong that decisive presidential leadership was not needed to overcome any resistance. This does not mean that the hurdles were not real. As with many other treaties, ratification took a long time, in this case almost ten years. Even after the Senate gave its advice and consent, it took an additional four years to pass implementing legislation and deposit the instrument of ratification, making US membership official. All this shows how tedious the Article 2 process of treaty ratification is.

Notes 1

I do not analyze the use of aggressive interrogation techniques in the battle against terrorism after 11 September 2001 (see e.g. Barry et al. 2004; Danner 2009; HRW 2005; Mayer 2006; Mayer 2007; Senate Select Committee on Intelligence 2014). Even though they constitute a serious violation of the Torture Convention, both in spirit and in letter, this is an issue of compliance (for an assessment of the Torture Convention’s effects on compliance, see Hathaway 2004). US participation in international treaties was not affected by these events. Even the most ardent supporters of aggressive interrogation did not call US participation in the Torture Convention into question. The Obama administration has returned to status-quo ante and vowed to respect American legal obligations. Whether or not American non-compliance with the CAT has damaged the norm against torture and undermined the relevance of US participation in the treaty is debatable. I would argue that these violations of the Torture Convention are an example of the counter-factual validity of norms (Kratochwil 1984). In spite of them, the norm against torture is alive and well. Whether or not high-level officials like Defense Secretary Rumsfeld, Vice President Cheney, and Attorney General Alberto Gonzales will eventually face criminal charges for their behavior, their attempt to re-define the boundaries of acceptable behavior has failed. 2 The text of the convention is available at http://www.ohchr.org/english/ law/cat.htm. 3 There is an ongoing controversy within the US legal community if treaties are self-executing or need additional domestic implementing legislation passed by both houses (Franck et al. 2008: 432; Henkin 1996). The central question is what status treaty law has in the hierarchy of US law, absent such implementing legislation. This is particularly relevant in litigation before US courts when there is a conflict between treaty law and domestic law. In the case Medellin v. Texas, 552 US 491 (2008), the Supreme Court held that the Vienna Convention on Consular Relations was not self-executing, creating a precedent to that effect. 4 This limitation is part of a package of reservations that the Senate has begun to routinely attach to human rights treaties. The reservation has two purposes: to immunize the US from international criticism and to keep US

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judges from applying international standards in their rulings (Henkin 1995: 346). 5 According to the Vienna Convention on the Law of the Treaties, reservations can be made as long as they do not undermine the purpose of the treaty. 6 Each state party has the right to nominate one of its nationals. In the election, equitable geographical distribution should be taken into account (Art. 17, Paragraphs 1 and 2). A quorum of two thirds of state parties has to participate in the elections, which are secret, and the persons with both the most votes and absolute majorities will be elected. For further details, see Articles 17 and 18 of the convention. 7 General Assembly Resolution 217 A (III) of 10 December 1948, text available at http://www.un.org/Overview/rights.html. 8 Geneva Convention relative to the Treatment of Prisoners of War (Third Geneva Convention) adopted on 12 August 1949, http://www.ohchr.org/EN/ ProfessionalInterest/Pages/TreatmentOfPrisonersOfWar.aspx 9 Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, reprinted in Burgers and Danelius (1988: 191-194) 10 Public Law 98-47, 98 Stat. 1721 (1984), signed into law 4 Oct. 1984 11 Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980). 12 According to Reagan’s first national security advisor, Richard Allen (2006), the article had initially brought Kirkpatrick to Reagan’s attention and then led him to consider her for a government position. 13 Most of the following account is based on an analysis of the cables exchanged between the US Mission to the United Nations in Geneva and the State Department obtained through a request under the Freedom of Information Act. Each cable is referred to by its document number, date, bureau of origin, and principal recipient. Additional background comes from a 29 August 2008 telephone interview with Stephen R. Bond who, as legal counsel to the US Mission in Geneva, was the person primarily responsible for representing the United States at the negotiations on the CAT. I also rely on the account of the negotiations by Burgers and Danelius (1988), the two heads of delegations of the Netherlands and Denmark, respectively. 14 Previously existing treaties that held their violations for “offenses against the law of nations” and codified universal jurisdiction were the Hague Convention for the Suppression of Unlawful Seizure of Aircraft (1970); the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (1971); Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents (1973); the International Convention against the Taking of Hostages (1979). The concept of “offenses against the law of nations” goes back even further. It was first established under customary international law with respect to piracy. During the Nuremberg trials that concept was extended to include violations of fundamental human rights under the term “crimes against humanity.” 15 Interview with Stephen R. Bond. 16 According to traditional jurisdiction based on the territorial principle, an offense can be prosecuted in the state in which it was committed. The Convention Against Torture additionally allows states to establish jurisdiction if either the offender or the victim is a national of that state or if the offender is

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present in that state. Since this covers a broad range of situations, potentially enabling states to prosecute foreign offenders for crimes committed against foreigners outside of their territory, the provision is commonly simply referred to as universal jurisdiction. 17 “The US strongly believes that there must be a clear obligation to extradite or prosecute alleged torturers, along the lines of the relevant provisions in such conventions as the Convention for the Suppression of Unlawful Seizure of Aircraft, the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, the Convention on the prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents and the Convention Against the Taking of Hostages.” (U.S. Mission in Geneva 1981d). 18 The Geneva Conventions of 1949 and the additional protocols of 1977 establish rules for armed conflict. Especially with regard to the detention of civilians by military personnel there is some overlap with the CAT. Technically, if civilians were party to an armed conflict, i.e. rebels or insurgents, the conduct would fall under the Geneva Conventions. When the military is used to intimidate the opposition as state policy, it would fall under the CAT. In practice such a distinction is often difficult. 19 The US delegation had been mindful of the shadow of the Senate, as this communication shows: “Action requested: It would be desirable for Department to reexamine our standing instructions on this matter [compensation for victims of CIDT]. While we would tend to agree that this point alone should not stand in the way of a final agreement, it might be worth consulting with Justice for its views and trying to ascertain whether such a potentially expensive provision might be a "sleeper" which could draw Senate opposition to ratification of a future convention." (U.S. Mission in Geneva 1983, emphasis added). 20 Public Law 98-447, cited in Hoffman and Brackins (1985). 21 It is this provision that was used to create a legal loophole for the use of coercive interrogation. In various legal memoranda, Justice Department lawyers like John Yoo and Jack Bybee argued that the CAT did not apply to the interrogation of aliens held abroad, since such situations did not fall under the US constitution (Thimm 2005). This reading of the reservation does not reflect its intent. The reservation was intended to limit the scope of behavior covered regarding the definition of CIDT, but not its applicability to aliens abroad (Sofaer 2005). 22 See Reservation II (1) (a) in U.S. Senate (1990a). 23 On 7 July 1989, the European Court of Human Rights ruled in the Soering case that a German national held in Great Britain could not be extradited to the US for a murder trial, because the possibility of a death sentence would violate the prohibition against "inhuman or degrading treatment or punishment" in the European Convention on Human Rights (Lillich 1991). 24 See Senate floor debate on the Convention Against Torture, cited in Franck et al. (2008: 377-380). 25 One of the amendments, inserted at the request of Senator Helms, was a so-called sovereignty clause. It established that nothing in the convention authorizes legislation prohibited by the US constitution (Congressional Record 1990a).

5 A Close Call Against Participation: The Landmine Treaty

The process leading to the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction – known as the Landmine Treaty or Ottawa Convention (after the place of its adoption) – is seen as unconventional in a number of ways. Because its establishment was primarily the result of the engagement of civil society actors (Anderson 2000; Brem and Rutherford 2001; Price 1998; Rutherford 2000; Short 1999), it is a prominent example of the so-called “new multilateralism” (Axworthy 1998; Davenport 2002; de Larrinaga and Sjolander 1998; Dolan and Hunt 1998). The story of how a small coalition of dedicated individuals and organizations managed to convince most of the world’s governments of the need to outlaw landmines has been competently recounted elsewhere (e.g., Cameron et al. 1998b) and garnered wide-spread recognition when the International Campaign to Ban Landmines was awarded the Nobel Peace Prize in 1997. In the context of this study, it is important that the Ottawa convention was not only concluded outside of the UN framework and the traditional forums for arms control, such as the Convention on Disarmament, but is one of the few treaties that was concluded largely without the involvement of the US government (Fehl 2012; Hathaway 2000; Malanczuk 2000; Mustoe 1999). The United States was the first country to take formal steps to slow the proliferation of landmines and President Clinton was the first head of state to publicly formulate the goal of a comprehensive ban, yet when the Canadian government convened a conference in Ottawa to achieve a comprehensive ban in May of 1996, the United States did not join the endeavor. It decided to participate fully only a month before the final round of negotiations in the Ottawa process and in the end the United States did not support the

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treaty, raising the question of how the United States turned from a leader on landmine regulation to a laggard (for an account of the US decisionmaking process even more detailed than that provided here, see Sigal 2006). The comparative approach of this study casts doubt on some of the conventional wisdom about the revolutionary nature of the Ottawa Convention. The speed at which the norm against anti-personnel mines was established was unprecedented – less than a decade from genesis to implementation – but the Chemical Weapons Convention, which is the subject of the next chapter, shows that the general idea of banning certain weapons on humanitarian grounds is much older. And even though the global reach and influence of the International Campaign to Ban Landmines in the Ottawa process is unmatched, the phenomenon of a coalition of NGOs initiating an international treaty is not exactly new: As the chapter on the Convention against Torture shows, human rights 1 organizations succeeded with a similar effort twenty years earlier. What Is the Landmine Treaty?

The Ottawa Convention is designed as a comprehensive ban on anti2 personnel mines (APMs). Over a specific time period, participants in the convention are required to destroy their existing stockpiles, and those that have placed mines are responsible for their removal. The drafters of the treaty concluded that a comprehensive ban of APMs was the most effective response to the humanitarian problem caused by mines. As straight-forward as the purpose of the treaty sounds, agreeing on its language was far from easy. One fundamental problem arose in the definition of anti-personnel mines. Since the mines used different technological mechanisms, the exact wording of the definition had important consequences for determining which systems of landmines would be banned under the convention. Two contentious issues in terms of the scope of the ban came up with regard to so-called smart mines – mines that would deactivate or self-destroy after a certain period – and 3 combined systems of anti-personnel and anti-vehicle mines. Pure antivehicle mines were not a primary concern to the majority of the campaigners against landmines. Even though anti-vehicle mines also pose a risk to civilians, the language in the Ottawa Convention permitted most anti-vehicle mines, the result of a compromise between the states 4 and the NGO activists involved. Article 1 of the Ottawa Convention outlaws the possession and use of anti-personnel mines. More precisely, state parties are prohibited

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from developing, manufacturing, acquiring, stockpiling, or transferring 5 APMs. States are further required to destroy existing stockpiles of landmines. The definition of anti-personnel mines reads: 1. “Anti-personnel mine” means a mine designed to be exploded by the presence, proximity or contact of a person and that will incapacitate, injure or kill one or more persons. Mines designed to be detonated by the presence, proximity or contact of a vehicle as opposed to a person, that are equipped with anti-handling devices, are not considered anti-personnel mines as a result of being so equipped. 2. “Mine” means a munition designed to be placed under, on or near the ground or other surface area and to be exploded by the presence, proximity or contact of a person or a vehicle. 3. “Anti-handling device” means a device intended to protect a mine and which is part of, linked to, attached to or placed under the mine and which activates when an attempt is made to tamper with or otherwise intentionally disturb the mine. […]

This definition outlaws anti-personnel mines but not anti-vehicle or antitank mines, even those equipped with certain types of so-called antihandling devices. Anti-handling devices, such as tripwires or motion sensors, are designed to set off the mine if someone tampers with it. Despite their potential danger to civilians, anti-handling devices are permitted, as long as they are part of or linked to the mine. Mechanisms that protect a mine from tampering but are not directly linked to it – like 6 unattached anti-personnel mines – are prohibited. State parties are required to destroy their stockpiles of mines within four years of entering the treaty (Art. 4). They have to demine territory under their control within ten years, but can apply for an extension of that deadline for up to ten more years. In the meantime they have to mark and fence in mined areas to protect civilians from the danger of scattered mines (Art. 5). Art. 6 calls upon states to support each other’s demining activities, sharing expertise and technology, and assisting with resources where possible. Each state able to do so shall further provide assistance to the victims of mines (Art. 6.3). The treaty establishes annual reporting requirements for states regarding mined areas, quantity and types of mines both in stock and in the ground, measures to protect the civilian population, and demining efforts.

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Applying the Concept of Legalization to the Landmine Treaty

Like the other agreements discussed in this study, the Ottawa Convention is a legally binding treaty under international law. The goal of eliminating anti-personnel mines is supported in several resolutions by the UN General Assembly, yet the treaty was not negotiated at the UN’s usual forum for arms control talks, the Conference of Disarmament, but in a stand-alone forum. However, the UN secretary general endorsed the Ottawa Process, and the unconventional negotiation format has no consequences for the binding nature of the treaty over its members. Obligation

The elimination of any anti-personnel mines constitutes a new obligation. Before the Ottawa process began, landmines were seen as a legitimate instrument of warfare. Preexisting restrictions on mine use under Protocol I to the Convention on Certain Conventional Weapons concentrated on the use of mines, requiring states to take certain measures like marking minefields to protect civilians. Similarly, customary international law prohibited means of warfare that caused excessive, indiscriminate harm to civilians, a principle that also applied to landmine use. But the production and the possession of APMs, as well as their use in accordance with these principles, were permitted. In contrast to the other three treaties in this study, the Ottawa Convention was not only designed to strengthen existing norms, but to go beyond the status quo and establish new norms. Therefore the Ottawa Convention places no obligations on nonparties. It cannot draw on customary international law to claim any authority over countries beyond those that have voluntarily entered into it. The convention’s rules regarding the abolition and destruction of landmines, the core of the convention, are mandatory. The requirement to provide other countries with assistance in their demining efforts is more flexible. “Each State Party in a position to do so shall provide assistance for mine clearance and related activities.” (Art. 6.3, emphasis added). The degree of obligation is enhanced by a provision that precludes the possibility of reservations (Art. 19). States have the right to withdraw from the treaty. The withdrawal becomes effective six months after notification of withdrawal. However, states cannot withdraw while they are engaged in armed conflict. If they do so, the withdrawal only becomes effective after the conflict has ended (Art. 20).

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Delegation

The Ottawa Convention contains no strict enforcement mechanism, but is based on voluntary compliance. The treaty does not create new institutions beyond the Assembly of State Parties, which is not a standing body and only convenes annually (Art. 11.2). Absent a meeting of the assembly, the UN secretary general facilitates the implementation of the convention. He or she receives reports from member states regarding their APM stockpiles, the extent of APM contamination on their territory, and their efforts to clear and destroy existing APMs (Art. 7). If there are concerns about the compliance of a member state, the treaty envisions a series of escalating steps to investigate the claims. Any state party can turn to the secretary general to make requests for clarification regarding the behavior of another state party. If the concern cannot be resolved, a state, together with the support of at least one third of the state parties, can also request that the Assembly of State Parties convene (Art. 8.5). With a quorum of a simple majority of state parties present, the assembly can decide, with a simple majority of those present, to establish a fact-finding mission (Art. 8.8). A group of nine members appointed by the secretary general, in consultation with the state that stands accused, investigates the claims for up to 14 days, and reports its findings to the secretary general and the Assembly of State Parties (Art. 8.10, 8.15). The Assembly of State Parties can, with a twothirds majority, suggest ways to address the situation, including “the initiation of appropriate procedures in conformity with international law.” (Art. 8.19). Disputes are to be solved through cooperation, if necessary facilitated by the Assembly of State Parties (Art. 10). Precision

The treaty displays a high degree of precision with regard to the prohibition of landmines. The definitions of the prohibited types of antipersonnel mines are very specific. At one point, the US administration considered joining the treaty after redefining the APMs in their mixed systems as sub-munitions, to exempt them from the treaty’s definition of prohibited mines. However, the idea was dropped because the treaty language was unambiguous, and US definitions would have contradicted the terms and negotiating history of the treaty. The prohibition of reservations further ensures that the definitions agreed upon in the treaty text remain valid and are protected from unilateral re-interpretation.

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How Landmines Lost Their Legitimacy

For most of the 20th century, landmines, including APMs, were considered a legitimate weapon of war – unlike chemical weapons, which had always been stigmatized as inhumane despite their occasional use in wars. Initially, landmines fell squarely under the category of conventional weapons. Their main purpose was defensive (Dahinden 2002: 66; Price 1998: 617). Militaries believed that their undesired 7 effects could be minimized through responsible use. The first attempts to regulate the use of anti-personnel mines date back to the 1970s, but the origin of a norm against any use of anti-personnel mines is more recent. It emerged from the experiences of a small number of organizations that deal with the humanitarian consequences of landmines. Drawing the attention of governments around the world to the landmine humanitarian crisis was perhaps the greatest achievement of the movement to ban landmines. Because of their low cost and abundant availability, anti-personnel mines had been widely used in many conflicts, including both traditional inter-state warfare and intra8 state conflicts. More than 70 countries are affected by landmines (Williams and Goose 1998: 21). They victimize more than twenty thousand civilians annually, in some cases long after the conflicts have 9 ended. Landmine victims who survive the explosion often become amputees. Some landmines are, by design, not intended to kill, but to severely injure or maim the victim. In developing countries without a social welfare system, or resources for healthcare and prostheses, the victims often suffer economic hardship and social stigmatization. A large percentage of the victims are children. Almost as catastrophic as the direct effects on the victims are the social consequences of the mining of territory. Large stretches of land contaminated with mines can no longer be used because of the resulting 10 danger. Especially in civil wars landmines were often used to deny access to territory, a tactic that is the modern equivalent of destroying the fertility of enemy soil with salt (Dahinden 2002: 68). Even when not intended as a weapon of terror, the warring factions do not keep records of the locations of scattered mines. The fact that nobody knows exactly where mines have been laid multiplies the problems of dangerous areas. The livelihoods of families who are dependent on agriculture is destroyed, and such basic tasks as collecting wood or water becomes extremely risky for people living in mine-affected areas. Before the movement against landmines got under way, governments, especially those in the West, were not only uninterested, but also hardly aware of the landmine problem (McGrath 2000: 16;

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Williams and Goose 1998: 21). The first attempts to restrict the use of landmines were made in the aftermath of the Vietnam War. The International Committee of the Red Cross (ICRC) approached governments to draw attention to the problems resulting from the indiscriminate nature and long-lasting danger of landmines. But interest in the issue was limited during the height of the Cold War. In the mid1970s, the Conference on Disarmament began work on the Convention on Certain Conventional Weapons (CCW), which was intended to regulate the use of conventional arms with the aim of preventing excessive harm to civilians. The UN General Assembly adopted the 11 CCW in 1980. But the treaty’s effect on mine use was weak. The restrictions were limited, and the convention contained no enforcement 12 mechanisms. Many states, the United States among them, did not 13 ratify the convention until much later. Perhaps its greatest weakness was that it only applied to international, and not internal, conflict. It took until the early 1990s to revisit these shortcomings. In the meantime the humanitarian crisis caused by mines got worse. Organizations working to bring relief to post-conflict societies were confronted with the largescale devastation caused by landmines. In the course of the 1980s, the problem gradually came to the attention of the Western media. Although mine-affected countries spanned the whole globe, they were mostly 14 developing countries. Some of the areas most affected were isolated further because their authoritarian governments did not have close ties with the West. It was no accident that humanitarian organizations in Cambodia were the first to call for a ban. The situation in Afghanistan raised the awareness in the West of the scale of the problem. During the 1980s, recognition of the humanitarian consequences of landmines gradually grew (McGrath 2000: 1-13). The International Campaign to Ban Landmines was born when several international organizations simultaneously concluded that banning landmines was the only effective way to make long-term progress. In 1992 they met in Washington and decided to join forces. Each of them was working on a different aspect of the landmine problem. Among the initial groups were Handicap International, Human Rights Watch, Medico International, Mines Advisory Group, Physicians 15 for Human Rights, and the Vietnam Veterans of America Foundation. Human Rights Watch and Physicians for Human Rights had just published a report about the landmine crisis in Cambodia (Asia Watch and Physicians for Human Rights 1991). The British Mine Advisory Group was one of the first organizations that worked to clear mines in states that did not have the capacity to deal with the problem by themselves. The France-based Handicap International and the German-

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based Medico International worked to assist mine victims. The Vietnam Veterans of America Foundation (VVAF) also provided assistance, such as artificial limbs, prosthetics, and crutches, to mine victims in Cambodia. The International Committee of the Red Cross had first called for outlawing landmines in 1969 (Sigal 2006: 29). In February of 1994, it endorsed a comprehensive ban on the production, export, and use of all anti-personnel landmines at the UN Conference on Disarmament in Geneva (Lewis 1994). The ICRC is not an NGO in a strict sense. Largely funded by governments, it holds a special status as an internationally respected guardian of the laws of war. Its funding limits its independence from states, but also enhances its credibility with government officials. The ICRC maintains the most comprehensive pool of information about the spread and effects of landmines across the globe. Its judgment about what political proposals would have a real effect in alleviating the global landmine crisis carried a lot of weight. At its peak, the International Campaign to Ban Landmines consisted of more than 1000 organizations from over 60 countries (Cameron et al. 1998a: 5). They organized as a loose network to coordinate their efforts, but the different campaigns in their respective countries, as well as from individual organizations, remained autonomous. Unlike the campaigns of other countries, the United States Campaign to Ban Landmines (USCBL) relied mainly on inside lobbying and did not develop a grassroots movement until late in the process (Sigal 2006: 151). The USCBL had been active since 1991 and hired a coordinator in 1992, but only in March of 1996 did the campaign set up a steering committee, which consisted of nine organizations. Western Governments Get on Board

A comprehensive ban of landmines only became a realistic goal after the Cold War had ended. During the Cold War a world without landmines was unthinkable. In the conflict between East and West, both sides relied heavily on landmines to protect borders and territory from enemy invasion. Mines were not only used along the Iron Curtain but, because of their low cost and ready availability, they were also weapons of choice in many civil wars. The countries most contaminated by mines were those where the superpowers had fought their proxy wars. (Cameron et al. 1998a: 2; McGrath 2000: 16). After 1989 incentives changed for Western countries. The end of the East-West conflict allowed for the demilitarization of the boarder that divided Europe. With the existential threat of nuclear annihilation

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waning, international attention turned to other problems. With several thousand victims annually, the landmine situation was arguably one of the most universal, persistent, and deadly humanitarian crises in the world. The end of the Cold War also gave the mid-size powers more room to maneuver and enabled them to open initiatives without US leadership (Sigal 2006: 162). The Ottawa process would not have gotten underway so quickly without the efforts of countries like Canada, which was the driving force behind a stand-alone forum, or Austria, which provided the treaty text that became the basis for negotiations. Cooperation between NATO countries and non-aligned states would also have been more difficult during the Cold War (Cameron et al. 1998a: 11) With the deployment of peacekeeping operations around the world, landmines also became an increasing danger for Western troops. In places like Somalia, Bosnia, or East Timor, mines left behind from previous conflicts caused casualties among peacekeepers. When the US military deployed troops to Bosnia, the risk of remaining landmines was a concern (see McCurry 1995). By February 1996, 229 members of the UN forces had become victims of mines in the former Yugoslavia (Sanson 1996). From a military and development policy perspective, mines were clearly a problem. This recognition led European states to sign on to the idea of eliminating anti-personnel mines from their arsenals. Following the example of the United States, which had passed an export moratorium in 1992, a number of countries both within and beyond Europe enacted moratoriums of their own. In 1993 France suspended the export of antipersonnel mines. In 1994 Spain, Slovakia, Switzerland, Argentina, the Czech Republic, Germany, Britain, and Israel followed (Sigal 2006: 41). Pressured by an active network of NGOs, and a press and public that were adopting a discourse characterizing landmines as indiscriminate killers, many European governments became more willing than the United States to eliminate landmines from their respective military 16 doctrines. Italy was the third biggest producer of anti-personnel mines worldwide, and the decision of the Italian Senate to mandate a moratorium on 2 August 1994 marked a significant step forward (Williams and Goose 1998: 27). Besides stopping exports, the Italian Senate also demanded a halt to the production of mines, the promotion of demining in affected countries, and the ratification of Protocol II. Canada turned out to be a crucial player in bringing about a global ban. Once the Canadian Foreign Minister Lloyd Axworthy got behind the issue, the international community was no longer dependent on

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American leadership for progress. The United States was overtaken by events and struggled to retain the initiative. Issue Leaders in Congress and the Administration

A few members of Congress started paying attention to the landmine issue even before the executive became involved. By far the most engaged was Democratic Senator Patrick Leahy of Vermont. During a trip to Honduras in 1985, Leahy met a boy who had lost a leg from a landmine blast. When Leahy asked who had laid the mine, the boy said that he didn’t know and then asked what difference it made (Sigal 2006: 14; Wareham 1998: 213). This encounter reportedly deeply impressed Leahy, and over the years he emerged as an issue leader on landmine policy. He put the subject on the agenda of Congress, and his consistent advocacy pushed the administration to pay increasing attention to it. Senator Leahy coordinated closely with the US Campaign to Ban Landmines. Not only did he help publicize the issue, he also assembled bipartisan majorities to pass legislation to put domestic restrictions on the production and export of anti-personnel mines. He found allies in Congress and repeatedly urged the administration to participate and take leadership in the multilateral efforts. In the early 1990s, Congress was not only ahead of the executive on landmine policy, but the topic was largely uncontroversial. Not until the mid-90s, when the Department of Defense began to resist efforts to encourage the United States to sign on to the Ottawa Convention, did Congress become more divided on landmine policy. Even though the president supported the goal of eventually eliminating anti-personnel mines early on, it was Congress that pushed the executive to undertake concrete steps to work toward that goal. Members of Congress would often threaten to pass legislation imposing further restrictions on US landmine policy to pressure the administration towards an agenda of eliminating APMs. Because of Senator Leahy and his allies, the Congress took a leading role within the domestic decision-making process on the landmine issue. Even though President George H. W. Bush signed the first export moratorium on American APMs into law, it was during the Clinton Administration that the issue really rose to prominence, both in the United States and on an international level. Clinton recognized the appeal of the landmine issue early on. In a 1994 speech to the United Nations, he was the first head of state to call for the eventual elimination of anti-personnel landmines. But during his first term the issue was not a priority. Neither Secretary of State Warren Christopher nor Defense

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Secretary William Perry was particularly interested. Perhaps the person most interested in the administration was Ambassador to the United Nations Madeleine Albright. She and a member of her staff, Karl F. “Rick” Inderfurth, visited Somalia, Cambodia, and later Angola. In the course of their trips they visited hospitals and spoke to landmine victims. Seeing landmine victims first hand had a similar effect on them as it had on Senator Leahy, and they concluded that something should be done about the landmine issue internationally (Sigal 2006: 21). Albright and Inderfurth tried to push the issue at the United Nations by introducing resolutions calling for an export moratorium in the General Assembly. But despite Albright’s position as a cabinet-rank official, which gave her a seat in the Principals Committee, the issue was not an administration priority. Low-level State Department and Pentagon officials handled most of the day-to-day policy within the administration. Until the conferences of Oslo and Ottawa, there were few occasions when the issue was discussed among department heads or in the National Security Council. Differences within the Military and the Bureaucracy

The controversy about the elimination of landmines is often characterized as a struggle between administration officials and the military. The conventional wisdom is that Clinton would have liked to sign on to the Ottawa Convention, but resistance in the military prevented him from doing so. While this view is not entirely false, the policy process shows that the institutional rivalries were more complex than that. The Joint Chiefs of Staff (JCS), who represent the uniformed military within the Defense Department, were reluctant to give up antipersonnel mines. This was partly due to the fact that landmines were an integral part of military strategy and doctrine, and partly due to a more general unwillingness to allow politicians from outside the armed forces to restrict the use of weapons that the military considered useful (Black 1997). Many also believed that American landmines were not the problem causing the humanitarian crisis. Although the military did not eagerly embrace a policy to destroy all landmine stockpiles, its resistance was not extreme. Within the armed services, only the army required anti-personnel mines. The other three services did not have much use for APMs. The majority of the Joint Chiefs of Staff rejected a landmine ban, but their chairman was willing to work with the Clinton administration (Sigal 2006: 118). In his position he could not actively advocate a ban, only support a decision by the president or the secretary

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of defense. Both Defense Secretary William Perry and his successor during Clinton’s second term, William Cohen, however, were not prepared to risk confrontation with the armed forces. At the same time, among the civilian members of the administration, not everyone was in favor of a landmine ban. The two bureaus primarily responsible for developing US landmine policy in the Departments of State and Defense advocated a more stringent approach to counter the landmines crisis. The State Department’s Bureau of Politico-Military Affairs was in charge of conducting the reviews of US landmine policy. On the Pentagon’s side, the Office of Special Operations and LowIntensity Conflict was responsible. Their officials were also sympathetic to a ban. However, the Arms Control and Disarmament Agency, used to the slow-moving pace of traditional arms control, preferred regulations on landmine use to an outright ban. The Senate had threatened to abolish the ACDA, and it did not want to appear too soft on any issue of arms control. The mid-level officials in the Departments of State and Defense who favored eliminating landmines could not impose their views on their own departments, and without the engagement of the secretaries of state and defense, they had little leverage to overcome resistance. To succeed in the inter-agency process, they needed decisive support from their secretaries or the engagement of the national security advisor. But neither Clinton’s first National Security Advisor Anthony Lake nor his successor Samuel Berger did much to resolve disputes between agencies. US Arms Industry is Largely Indifferent

American companies had exported landmines in the past and continued to do so until the 1990s, yet the sale of landmines was not a large source of revenue. Traditional landmines were relatively easy and cheap to produce. With more than 40 companies in 27 countries producing mines, profit margins for American businesses were low. During the 1980s, the supply from the Soviet Union, China, and Italy had largely replaced US production. In the 10 years prior to the moratorium, the Department of State had approved ten licenses for the commercial export of antipersonnel landmines valued at $980,000, and over the five years thereafter the Department of Defense approved the sale of 13,156 antipersonnel landmines valued at $841,145.17 By the time the campaign for a ban got under way, the US arms industry did not have much at stake in the international landmine business. By 1992 only one American company produced landmines for export, and the resistance from the

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arms lobby against measures controlling landmines was negligible (see Sigal 2006: 16-17; Wareham 1998: 215-16). Even American defense contractors potentially had something to gain from the regulation of landmines. The replacement of persistent APMs with “smart” mines led to a wave of procurement from the Pentagon. Before it became clear what form an international treaty would take, relative gains for American producers of “smart” mines were a distinct possibility. “Dumb” mines could be produced by anyone at a low cost, and the US arms industry would be more competitive if the global market for more sophisticated models increased. If both persistent and “smart” mines were banned, only those companies in the business of developing technical alternatives to anti-personnel mines were to gain. Still, the risk of being stigmatized by the ICBL outweighed the gains from the landmine trade. A number of companies, though not all, ruled out future involvement in APM production, because they feared negative publicity. With no stake in the production of the mines that the treaty prohibited, the American defense industry did not oppose participation in the Landmine Treaty. The Campaign Starts to Affect US Policy

The International Campaign to Ban Landmines formally came into being in October 1992, when six NGOs – the Vietnam Veterans of America Foundation, Medico International, Human Rights Watch, Physicians for Human Rights, Handicap International, and the Mines Advisory Group – jointly decided to call for global ban on anti-personnel mines. As the newly formed steering committee of the campaign, they appointed Jody Williams as its coordinator. Their first public move was to convene an international conference on a ban in May 1993 in London (Williams and Goose 1998: 28). In April 1993, the International Committee of the Red Cross called for a conference to review Protocol II of the Convention on Certain Conventional Weapons (CCW), which regulates the use of landmines, with a view to establishing more effective restrictions. It convinced the United States and France to introduce a resolution calling for a review conference of Protocol II at the General Assembly in 18 December. Elizabeth Dole, who had served as secretary of labor in the administration of George H. W. Bush, went on to serve as president of the American Red Cross (ARC). In that role she supported the ICRC’s calls for tighter control on landmine use. Senator Patrick Leahy came on board shortly thereafter, at a time when the idea to further restrict the use of landmines began to gain currency among Washington politicians.

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He first became engaged when he convinced the US Agency for International Development to set aside funds to pay for the mine victims’ prosthetics in the developing world. But this “Leahy War Victims Fund” was only the beginning of Leahy’s role in the movement against landmines. Through his engagement in assisting landmine victims, Leahy contacted Bobby Muller, whose organization, the Vietnam Veterans of America Foundation, had set up a prosthetics clinic in Cambodia. Two of Leahy’s staffers, Eric Newsom and Tim Rieser, began to work on the landmine issue and remained involved for years in various functions. Rieser in particular cooperated closely with ICBL representatives, in particular Bobby Muller of VVAF and Stephen Goose of Human Rights Watch (Sigal 2006: 14-15). Two characteristics made Leahy an ideal partner for NGOs. First, he had a deep personal interest in alleviating the crisis caused by landmines, and was willing to remain engaged in the long term and to spend political capital on the issue. Second, he was chairman of the Senate Appropriations Committee’s Subcommittee on State, Foreign Operations, and Related Programs, which approved the funding for the State Department and foreign aid. This gave him political leverage and forced others to take his priorities seriously. Leahy delegated the management of the landmine issue to Tim Rieser. The result was an issue network connecting the NGO community and the legislative branch. The NGOs contributed technical expertise and depended on Senator Leahy to throw his political weight behind their demands in the governmental decision-making process. Following a suggestion from Rieser and Newsom, Senator Leahy and the NGO advocates agreed to first seek a one-year moratorium on the American export of landmines. At the end of July 1992, Leahy introduced the Landmine Moratorium Act, which would temporarily halt the export and transfer of landmines by the United States and call for the ratification of the Convention on Certain Conventional Weapons. In addition, the bill contained language (quoted in Sigal 2006: 17) making it “the policy of the United States to seek verifiable international agreements prohibiting the sale, transfer or export, further limiting the use, and eventually, the termination of production, possession or deployment of antipersonnel landmines.” The NGOs accompanied the introduction of the bill with public statements and appeals to other senators to support it. Leahy managed to win the support of 35 cosponsors, including Republican Minority Leader Bob Dole, ARC Director Elizabeth Dole’s husband, and to convince Representative Lane Evans to introduce an identical bill in the House. To win the approval of

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the Senate Armed Services Committee, the reference to the eventual termination of possession and use was dropped. President Bush signed the bill into law on 23 October 1992.19 It is noteworthy that landmines were not a partisan issue. Before the moratorium expired, Leahy introduced another bill in June 1993 to extend the moratorium for another three years. This bill was passed by the Senate 100-0 on a roll call vote (Wareham 1998: 218). Among its 60 co-sponsors were 15 Republicans, once again including Minority Leader Bob Dole. Again, the language did not refer to a total ban, settling instead on the call to negotiate an international agreement that would “prohibit sale, transfer or export” of anti-personnel mines and “further limit” their use.20 An Ambivalent US Position

Despite the campaign’s early successes in establishing export moratoriums, US landmine policy remained ambivalent. Despite their support for export moratoriums, US officials were reluctant to accept the idea of banning anti-personnel landmines. On 17 November 1993, Senator Leahy went to the United Nations on invitation from Ambassador Albright and introduced a resolution asking UN member states to stop exporting “antipersonnel landmines that pose grave dangers to civilian populations” (quoted in Sigal 2006: 22). In a letter written on 7 December the Clinton administration followed up the resolution by asking major mine-producing countries to halt exports for three to five years (Lewis 1993). But when the General Assembly voted on 16 December 1993 with 162 to 0 votes in favor of holding a CCW review conference, the United States was one of three countries that abstained. It did not agree with language that stated that future talks should attempt to achieve a ban on production, possession, and proliferation of anti-personnel mines. The American government continued its policy of sending mixed signals on landmines for the following years. In the meantime, the campaigners intensified their calls for a complete ban, building on their success in achieving moratoriums on the export of anti-personnel mines in several countries. At a government expert meeting during February and March 1994, the ICRC advocated a complete ban of anti-personnel mines. It had examined alternatives for more limited regulation, but had concluded that they would not sufficiently address the grave consequences of landmines for the civilian population (Sigal 2006: 3335).

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Washington’s ambivalence on landmines was caused by disagreements within the government. Senator Leahy continued to push for a more stringent approach to controlling landmine use. After his success with the export moratorium, he moved to also halt the production of anti-personnel mines. As in his earlier attempts, he was successful in lining up bipartisan support for the bill, finding 53 cosponsors among his Senate colleagues. Again, Representative Lane Evans introduced identical legislation in the House. The Clinton administration did not support this new initiative. A moratorium on production would have been a further step toward a complete ban, strengthening the export moratorium and making it more difficult to reverse at a later time. At that point, the main concern of the administration was the restrictions that a permanent moratorium would place on the ability to transfer mines to US allies in Europe and South Korea. The administration asked Leahy to postpone legislation to allow sufficient time for conducting a policy review. According to a letter signed by Secretary of State Warren Christopher and Secretary of Defense William Perry, Leahy’s legislation would undermine their diplomatic efforts to build international support for a global regime against landmines. The letter assured Leahy that the administration would explore options for a comprehensive control regime to deal with the humanitarian landmine problem, including a complete ban. However, according to Deputy National Security Advisor Nancy Soderberg, the administration did not seriously consider a ban. Still, they managed to convince Leahy to defer his legislative proposal so as to give the administration time for the policy review (Sigal 2006: 43). In the following years, any public statement from administrations about landmine policy was only made after substantial bureaucratic infighting behind the scenes. Both the policy review and any public statement about US landmine policy were decided by both those who supported a ban and those who defended the status quo and did not want the United States to take any steps beyond the export moratorium. The ACDA, along with the Joint Chiefs of Staff, favored a slower place. One controversy revolved around which venue was appropriate for the negotiation of a landmine control regime. This question was not just symbolic, but reflected the whole approach that the United States would take toward the control regime. At the Conference of Disarmament (CD) in Geneva, the traditional forum for arms control, the Arms Control and Disarmament Agency would have been in charge. The ACDA’s preferred way forward was to amend the landmine protocol of the Convention on Certain Conventional Weapons. Since decisions in the

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CD are adopted by consensus, the likely outcome would have been a weak treaty regulating the use of landmines, but not a ban. The ICBL and those who favored a total ban argued against the Conference on Disarmament. In cooperation with Senator Leahy, Madeleine Albright and Rick Inderfuth worked the UN side of imposing tighter restrictions on landmines. They had the support of the Bureau for Politico-Military Affairs in the State Department. Eric Newsom had joined the Bureau in the meantime. As Senator Leahy’s staffer he had closely cooperated with the ICBL and continued to be sympathetic to their cause. He and his colleagues favored an independent forum for the negotiations of a landmine agreement. This would put the State Department in charge of the negotiations instead of the ACDA, and would allow a coalition of like-minded states to take the lead and move closer toward an outright ban. In other words, the choice of venue was a choice between the traditionally slow and timid approach to arms control and more radical change. The Bureau of Politico-Military Affairs finally succeeded in pushing for an independent forum, but the struggle over the nature of the regime continued. On 26 September 1994, President Clinton called for the eventual elimination of landmines in a speech at the United Nations. He told the General Assembly (1994a): And today I am proposing a first step toward the eventual elimination of a less-visible but still deadly threat: the world's 85 million antipersonnel land mines, one for every 50 people on the face of the Earth. I ask all nations to join with us and conclude an agreement to reduce the number and availability of those mines. Ridding the world of those often hidden weapons will help to save the lives of tens of thousands of men and women and innocent children in the years to come.

The statement accompanied a draft of a UN resolution that the US delegation was circulating. The resolution also called for the “eventual elimination” of landmines. This was seen as a sign of hope and a great success for the ICBL. The president had reportedly developed a personal interest in the landmine issue in reaction to the strong media coverage. Still, the statement and resolution were the result of a concerted push from advocates of a ban, and not necessarily a reflection of a consistent administration policy. Both the resolution and the speech were the result of an initiative from Deputy US Representative Rick Inderfurth and Eric Newsom of the Bureau of Politico-Military Affairs, who had managed to win the approval of Deputy National Security Advisor Sandy Berger despite the

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objections of the Joint Chiefs of Staff. In addition, Senator Leahy exerted pressure to get the statement into the president’s speech. He was not satisfied with the progress in US landmine policy since his agreement to defer his proposed moratorium on the production of landmines. Using the legislation as leverage, he insisted that the White House include the passage in the speech (Sigal 2006: 48-50). The CCW Review Process

The international efforts to end the landmine crisis were also part of the agenda of the review conference of the Convention on Certain Conventional Weapons, scheduled for 1995. Over the course of 1994 and into early 1995, four meetings of governmental experts took place in Geneva to prepare a conference to review the CCW landmine protocol. The review conference itself took place in September 1995 in Vienna. Senator Leahy and the ICBL saw the review conference as an opportunity to advance the goal of an APM ban (Williams and Goose 1998: 26). The United States had not yet ratified the original CCW from 1980. In order to fully participate in the review conference and have voting rights, the United States had to be a state party to the CCW and Protocol II. President Clinton submitted Protocols I and II of the CCW to the Senate for ratification on 12 May 1994 (Clinton 1994b). On 24 March 1995, the Senate gave advice and consent to the treaty (Mustoe 1999: 548). On 11 April 1995, Senator Leahy and Congressman Evans wrote a letter to State Secretary Christopher, Defense Secretary Perry and ACDA Director Holum, urging them to support a total ban on APMs at the review conference. Short of an outright ban, they called for a number of limitations on landmine use, including requirements to restrict mines – including self-neutralizing ones – to “marked and guarded minefields,” to self-destruct in no more than 48 hours, and selfdeactivate in no more than 60 days (Sigal 2006: 79). Meanwhile Senator Leahy pushed for a domestic ban. He introduced legislation in Congress to place a one-year moratorium on the use and deployment of landmines, except along international borders. The moratorium was to go into effect three years after the law was passed. Again, Leahy managed to assemble bipartisan support for the bill. On 21 September 1995, the moratorium was offered as an amendment to the 1996 Foreign Operations Bill and adopted without much controversy the 21 same day. Even though the Democrats had lost the majority in both houses during the mid-term elections in 1994, and Patrick Leahy was no longer the chairman of the subcommittee on foreign operations, the bill

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passed the Senate with a broad bipartisan majority. After it also passed the House, President Clinton signed it into law on 12 February 1996.22

Modest Progress at the Review Conference

Despite the President’s call for the “eventual elimination” of APMs and Congress’ support for tighter restrictions, the mid-level bureaucrats in charge of the preparations worked to further control the use of antipersonnel mines, but did not support a ban on production – a practice consistent with the traditional arms control approach. The United States also argued for a universal moratorium on the export of anti-personnel mines. The overwhelming majority of states wanted to defend their right to use landmines, and even the European countries did not initially support an export moratorium. Little progress was made during the run-up to the review conference. Most of the US proposals for restrictions, ranging from a minimum amount of metal to allow for easier detection to a prohibition on persistent mines, were opposed by China, Russia, and India (Wren 1995). Chinese negotiators criticized the American proposals to ban mines that do not self-neutralize as imposing a double standard based on its technological superiority. Because states could not reconcile their differing positions, they suspended the meeting without an agreement. To overcome the disagreements and to conclude negotiations, two follow-up meetings were held in January and the end of April 1996 (Williams and Goose 1998: 32). When the revised Protocol II was agreed upon on 3 May 1996, it imposed few new restrictions on landmine use. Perhaps the most important change was an amendment that extended the coverage to internal conflicts in addition to interstate war. Another new feature was a provision requiring the states to remove the mines that they had laid. (Mustoe 1999: 549-550). There were some new technical requirements. The United States succeeded in incorporating standards for the amount of metal that mines must contain and the time frame and reliability of self-neutralizing mines. Selfneutralizing mines – the only mines allowed to be delivered remotely and deployed outside of marked minefields – had to self-neutralize within 120 days with a failure rate no higher than 0.1 percent. But the overall results were modest. The revised protocol banned neither dumb nor smart mines entirely and thus had little impact on proliferation (Sigal 2006: 86). As the ICRC pointed out during the negotiation, allowing the continued use of persistent mines in marked

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minefields meant that “dumb” mines would continue to be produced and sold. Moreover, the compromise contained a provision that allowed for exceptions to the requirement to fence minefields in “situations where direct enemy military action makes it impossible to comply.” (Sigal 2006: 71). The Motivations behind the US Position on the Landmine Protocol

The United States had been the driving force behind the restrictions, taking, in particular, the technical approach to combating the humanitarian crisis through the promotion of self-neutralizing mines. Within the context of the Conference on Disarmament, the US delegation was one of the more progressive forces. But the US bureaucracy also ensured that the CCW review conference would remain the main forum for landmine policy, and that the negotiation result coincided closely with the interests of its armed forces. The military representatives set the tone in the US delegation. Formally, Robert Bell and Nancy Wittkowsky of the National Security Council supervised the delegation (for the following account see Sigal 2006: 61-64). But most decisions were left to the head of the American delegation, Michael Matheson, the principal deputy legal adviser in the State Department and his deputy Robert Sherman of the ACDA. Matheson did not have strong preferences regarding landmine policy and wanted to avoid inter-agency dispute. Consequently, hardly any NSC meetings were held on the US position at the review conference. In Washington, the Office of the Legal Adviser at the State Department coordinated its positions with the military lawyers at the Defense Department. Over at the Pentagon, the division in charge was the Office of Special Operations and Low Intensity Conflict, run by H. Allen Holmes. Holmes also had no incentive to argue with the armed forces, and so the Office of the Judge Advocate General drove the process. Within the Judge Advocate’s office, W. Hays Parks, a special assistant to the Judge Advocate General took control. He disliked international organizations and was deeply skeptical of civilian and NGO efforts to regulate the military’s choice of tactics. Since nobody felt strongly about pursuing a more rigorous restriction of landmines, let alone a ban, Parks was free to follow his preference to block meaningful steps toward eliminating APMs. Again, because of the disinterest and lack of involvement and leadership at the higher levels of the bureaucracy, the personal convictions of a few individuals had a disproportionate impact on the political outcome.

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The result was a protocol that reflected practices that the US military had already adopted (United States 1999: 3). Since the landmines along the de-militarized zone in Korea were all in clearly marked minefields, they did not present a problem under the revised landmine protocol. The army had already replaced most landmines in its arsenal with self-neutralizing types to allow for more mobility on the battlefield. The provision in the protocol that required remotely delivered mines to be self-destructing had become part of US strategy 23 years earlier. In the end the text of the agreement was less important to the cause of a mine ban than the effect the negotiations had on the participants. As a result of the extensive lobbying of the ICBL, the number of countries supporting a ban on landmines grew from 14 to about 40 over the course 24 of the talks. When these countries began to work together and start their own initiatives toward a ban, the US government found itself on the sidelines. At the end of the meeting, the Canadian delegation offered to host a conference for those states willing to go beyond the CCW and discuss an agreement banning mines. The Ottawa process was born and began to overtake Washington’s evolving policy. A Small Window for a Changed US Position

In early 1996 there was a brief moment when it appeared likely that the United States would come around to supporting a comprehensive ban on APMs. In February, President Clinton signed Senator Leahy’s one-year moratorium on landmine use into law. Rick Inderfurth and Madeleine Albright, who had recently returned from a trip to Angola where they had once again witnessed the consequences of the landmine crisis firsthand, wrote a letter to National Security Advisor Anthony Lake, Defense Secretary Perry, and Joint Chiefs of Staff Chairman General Shalikashvili calling for the United States to support a ban (Bonner 1996; Sigal 2006: 80-81). This prompted Lake to initiate an interagency review of landmine policy in mid-March. Lake had also recently been to Angola, and President Clinton himself was sympathetic to a ban (Sigal 2006: 126). But Clinton and many members of his administration, including civilians in the Pentagon, believed that the armed services were squarely opposed to abandoning mines. The American Campaign to Ban Landmines largely shared this impression. But the chairman of the Joint Chiefs of Staff, General Shalikashvili was open to the idea of banning APMs (Bonner 1996). In his role as the principal military advisor to the president, Shalikashvili had begun probing the mood in the military even before the official review began

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(Sigal 2006: 127). The chairman communicates the views of the joint chiefs – one each for the army, the navy, the air force and the marine corps—as well as the combatant commanders—to the president. Although he is the most senior ranking member of the Armed Forces, he does not exercise any military command over any combatant forces, and cannot overrule the other chiefs of staff. The command authority lies with the secretary of defense and ultimately with the president as commander-in-chief. The Military’s Mixed Experiences with Mines

The opposition in the military to a landmine ban was not as unanimous 25 as many – both supporters and opponents of a ban – believed. In JCS Chairman Shalikashvili, Clinton had the uniformed military’s highest representative as an ally in facilitating the implementation of a new landmine policy. After the bill mandating a one-year moratorium starting in 1999 was adopted in 1996, Shalikashvili began testing the waters inside the armed forces for a different landmine policy. Opinions on the utility of and the need for anti-personnel mines varied widely. APMs were something many in the military took for granted but did not care passionately about (Priest 1997). While generally skeptical of attempts to outlaw any weapons that were part of army doctrine, most branches of the armed services did not rely on landmines, and the 26 humanitarian arguments for banning landmines were not lost on them. Even the assumption that landmines were needed to defend Seoul against a sudden invasion from North Korea was disputed. There were several reasons for the ambivalence about landmines of many within the military. First, many senior military officials had firsthand experience with the devastating and indiscriminate effects of landmines. Those who had served in Vietnam had witnessed members of their units become victims of landmines. According to a report by Human Rights Watch and Physicians on Human Rights, based on the military’s own internal assessments, APMs had not worked to the advantage of American troops in either Korea or Vietnam (HRW and VVAF 1997). In both wars, enemy forces did not have a significant independent supply of mines. Instead hostile forces managed to recover American mines and turn them against US soldiers. In Vietnam, 90 percent of the American landmine casualties were due to mines of American origin. Around 33 percent of US casualties and 28 percent of fatalities were mine-related. More than 60,000 Americans would become victims of landmines in Vietnam. In a public press briefing,

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General Joseph Ralston, the vice-chairman of the Joint Chiefs put it like this (Christopher et al. 1997): The historical record is mixed concerning antipersonnel land mines. We know that they cause casualties, some enemy and some friendly. We know that they inhibit movement enemy and friendly and the significance in battle is variable. You will talk to combat-seasoned veterans who will tell you that antipersonnel land mines saved their life. You will also talk to veterans who will tell you that their best friend was killed by an antipersonnel land mine, one of ours. So you have conflicting stories.

Second, there were few recent in-depth analyses of the benefits of landmines in combat. Landmines had always been assumed to offer advantages to the American forces, but these claims had hardly been thoroughly tested. When it became clear how little evidence for the merits of landmine deployment existed, Tim Conolly of the Pentagon’s Office of Special Operations and Low-Intensity Conflict charged the Institute for Defense Analysis (IDA) with conducting a study (Sigal 2006: 106). Using the Pentagon’s computer-based Combat Simulation Model, IDA’s researchers conducted a series of computer-simulated battles to assess the impact of landmine use on combat outcome. The study concluded (Biddle et al. 1994): The basic conclusion of the briefing is that issues of military utility in high intensity conflict need not preclude further consideration of any form of landmine arms control. A rather demanding set of assumptions and preconditions is required for the military utility of landmines in such conflicts to be so high as to make arms control unworthy of further consideration. And in particular, for the utility of antipersonnel mines to be so high as to preclude further consideration requires an especially demanding set of assumptions about the nature of future warfare. It is far from obvious that the required assumptions can be sustained [emphasis in original].

The complicated and indirect phrasing of the conclusion showed the authors’ awareness of the politically sensitive nature of the study. The basic point is simple. Only under a very limited set of circumstances do anti-personnel mines provide substantial added military value. The report pointed out that a military need for landmines presupposed that the United States would be on the defensive in heavy, mechanized, land combat. If American forces were engaged in offensive operations – even tactical offensive maneuvers within a defensive theater – landmines

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would impede their success. In scenarios other than heavy, mechanized, land combat, such as peacekeeping or counter-insurgency, landmines could not be deployed. This finding matched the experiences in the 1991 Gulf War, in which anti-personnel mines had been used, albeit to a limited extent. The US forces used far fewer mines than they had anticipated, mostly because they would have restricted the mobility of the army. Despite the cautious use of mines, they caused at least 6% of US casualties, while there were no confirmed Iraqi losses due to employment of US mines (Sigal 2006: 115-116). APMs were also the main source of casualties in the peacekeeping operations in the former Yugoslavia, where by June 1997 more than 200 peacekeepers had been injured and 20 had died from mines (Priest 1997). Third, even the need for American mines to secure the demilitarized zone in Korea was debatable. For years, officials charged with developing US policy on anti-personnel mines operated under the assumption that all mines along the demilitarized-zone border belonged to the US army. In fact, they had been turned over to South Korean troops in 1992 as a result of a new defensive strategy for the American divisions deployed along the DMZ. Technically, the mines deployed along the borders were Korean property and did not keep the United States from joining a treaty banning anti-personnel mines (Sigal 2006: 111). The problem was that a comprehensive ban would also prohibit the transfer of mines. The United States still possessed stockpiles of APMs on the Korean peninsula, which it was gradually turning over to the Koreans, as it replaced them with smart mines. In that sense, a ban would have imposed limitations on the cooperation between American and Korean forces. Since the minefields were placed along the defensive line under Korean control, the strategic importance of the American landmine stockpile had been decreased. In addition the strategy for the defense of South Korea evolved along with army doctrine. As elsewhere, the strategy implemented for a conflict in Korea in the early 1990s emphasized mobility and the troops’ ability to maneuver quickly in order to carry out counter attacks. In the case of a North Korean invasion, laying out mines would have taken a lot of time and would have drawn troops and resources away from direct combat. Instead, the mines in the American arsenal were intended for use in a counteroffensive. But the mixed experiences with deploying mines in a highly volatile battle environment called this American strategy into question. To sum up, the military’s need for anti-personnel mines was highly contentious. Even on the Korean Peninsula – the textbook case for landmine deployment – the reality was more complicated. The most

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widespread view was that landmines were not needed to repel an attack by North Korea, but could lower American losses. Even this assessment was questioned on the grounds that it was not clear how many “friendly” casualties the use of mines would cause. However, more than other places, the situation along the DMZ did present a real challenge for the abandonment of mines. Disagreements within the Armed Forces

The contested nature of the advantages of the employment of landmines was reflected in the constellation of supporters and opponents of antipersonnel mines. The Army and the Marine Corps were the only military branches that actually relied on landmines. Within these two branches opinion was divided regarding the question of whether antipersonnel mines could be abandoned due to humanitarian concerns (Sigal 2006: 124). The Air Force and Navy could be called on to deliver landmines from the air, but they had no genuine interest in their use. Similarly, most regional commands found anti-personnel mines dispensable. With the exception of the Korean command, all the commanders-in-chief (CINCs) of the regional commands did not regard landmines as an essential part of their strategy (Wareham 1998: 224). When Joint Chiefs of Staff Chairman Shalikashvili convened a meeting to get input from the CINCs in early March 1996, most commands sent low-level representatives, indicating that the subject was not high on their list of priorities. In phone conversations between General Shalikashvili and the CINCs a month later, all of the commanders, except the one in charge of Korea, agreed they could do without landmines (Sigal 2006: 114, 128, 133). Within the army, the greatest resistance to the idea of abandoning APMs came from the combat engineers, whose role it was to lay and clear mines. The incorporation of anti-personnel mines in army doctrine ensured their representation and relevance in commands around the world. Thus they had an institutional interest in the continued use of mine deployment, not unlike the US Army Chemical Corps’ stake in the maintenance of a chemical weapons program. The two major holdouts on agreement to abandon anti-personnel weapons were the army’s combat engineers and the regional command in charge of Korea. A Missed Opportunity

When Chairman Shalikashvili was assessing the position of the other chiefs as well as the Combatant Commanders on a landmine ban, he was

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laying the groundwork for a presidential decision to order a ban. The limited support for landmines within the armed forces and the position of the JCS chairman in early 1996 indicate that a decision from President Clinton in favor of a ban at that time would have encountered little resistance from the military. According to Leon Sigal, the civilian officials working on the new landmine policy failed to understand this dynamic. Instead of deciding to abolish APMs, President Clinton settled for a compromise that was supposed to please the military. Instead of exercising strong leadership, the Clinton administration shied away from a conflict with the military that probably would have never erupted (Sigal 2006: 130). Both Defense Secretary William Perry and the officials in charge of landmine policy at the National Security Council assumed that there would be strong resistance from the armed forces. As a consequence, they gave the military more time to come up with alternatives. On 13 April 1996, National Security Advisor Lake recommended a policy to the president that General Shalikashvili, the Departments of Defense and State, the ACDA, and Ambassador Albright had agreed to (Sigal 2006: 134). The suggestion was to agree to a complete ban by 2010, but to reserve the right to make exceptions in the event of armed aggression against the United States and for special operations forces. The president was torn between his desire to come up with a policy that would please Senator Leahy and the representatives of the Campaign to Ban Landmines, and the position of the Joint Chiefs of Staff. At the same time a battle for public opinion raged. In an attempt to influence the president’s decision, the Vietnam Veterans of America Foundation published an open letter, signed by 15 retired military officials in support of a ban. Among the signatories were General Norman Schwarzkopf, the commander of Operation Desert Storm; General James Hollingworth, a former commander of the US forces in Korea; and General David Jones, a former JCS chairman (Wareham 1998: 224). But the failure of the president to order the abandonment of landmines emboldened the Joint Chiefs. Their position of rejecting any definite date for the enactment of a ban hardened. To Senator Leahy’s disappointment, the president gave in to the demands of the JCS. The upcoming presidential elections may have been a factor in this decision. As a result, the new policy not only avoided an immediate ban, but also remained non-committal regarding a future date for a ban.

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Clinton Loses the Initiative as Canada Takes the Lead

On 16 May 1996, Clinton pledged to “seek a world-wide agreement as soon as possible to end the use of all anti-personnel land mines.” (Clinton 1996). To that end, the United States would take several steps. It would introduce a resolution at the UN General Assembly, urging all member states to support a universal ban. The United States would immediately stop using “dumb” mines except on the Korean peninsula and destroy all “dumb” mines in its arsenal by 1999. Clinton made clear that the United States reserved the right to use self-neutralizing mines until a global ban was reached, but that he would be willing to give up “smart” mines as part of a comprehensive ban. In addition, Clinton gave the Pentagon the task of developing military alternatives to the use of anti-personnel mines that would not endanger civilians, and of increasing efforts to clear mines. The resolution urging all states to negotiate a legally binding comprehensive ban was introduced at the UNGA in November 1996. It was adopted 185-0 with ten abstentions (United States 1999: 2). At the beginning of 1996, Canada, which had previously been reluctant to impose limits on landmine use, began to change its position. Prompted by the Canadian landmine campaign, called Mines Action Canada (MAC), it announced a moratorium on the production, export, and use of mines on 17 January 1996, just before the first meeting on the CCW after the failed Vienna conference. After Lloyd Axworthy became Canada’s Foreign Minister on 25 January, contact between the government and the Canadian campaign intensified, and a representative of MAC was appointed to be a member of the Canadian government delegation at the CCW talks (Warmington and Tuttle 1998). Between January and May 1996, the Canadian Foreign Ministry also held meetings with NGOs and states that supported a ban at each of the sessions of the CCW review conference. At the end of the January session, Austria volunteered to produce a draft for a comprehensive landmine ban (Sigal 2006: 97-98). The conference (“Toward a Global Ban on Anti-Personnel Landmines”) was held in Ottawa from 3-5 October 1996 and attracted the participation of 50 governments. Before the meeting the participants had to endorse a declaration committing to take unilateral steps toward a ban. An additional 24 countries sent delegations to observe. For the first time, NGOs were invited to participate fully in the conference. Participating states recognized the need for a global ban on landmines in a final declaration, and agreed to an agenda for action to work toward the goal presented by Foreign Minister Axworthy, the chairman of the conference. To everyone’s surprise, Axworthy also invited everyone

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back to a follow-up conference a little more than a year later to sign a treaty intended to be negotiated in the intervening period. During 1997 three more conferences to work on the draft were convened. These consultations took place in Vienna in February, in Bonn in April, and in Brussels in June. In September the states reconvened in Oslo to finalize negotiations and adopt a text. Maintaining a Distance to the Ottawa Process

On 17 January 1997, a few days before President Clinton gave the inaugural address for his second term, the White House announced that it would not join the Ottawa process, but rather pursue a ban at the Conference on Disarmament in Geneva. Robert Bell, the Senior Director for Defense Policy on Arms Control at the NSC explained the decision by pointing out that the states most responsible for the proliferation of APMs, namely Russia and China, would not participate in Ottawa, and the CD was therefore the more promising forum for achieving a global ban. Not excluding the possibility of future US participation in the Ottawa process, Bell welcomed the Canadian initiative and described US efforts at the CD as complimentary to the Ottawa Process. Bell’s press briefing was a rare instance of a government official discussing on the record the position of the military leadership on a landmine ban. In response to a question about the disadvantages of the United States joining the Ottawa process, Bell explained (Bell and McCurry 1997): […] it is the view of the Joint Chiefs of Staff and the CINCs, the commanders in chief, that these mines, the self-destructing ones that we have, do have military benefits in terms of our maneuver warfare doctrine. That said, General Shali [Shalikashvili] made very clear the JCS is prepared to give up that military benefit for a greater good -- the greater good being ending this humanitarian crisis around the world caused by this mine epidemic.

When the level of support that the Ottawa Process had attracted became apparent, the United States reluctantly agreed to come on board. On 18 August, only weeks before the conference, the administration decided to attend the Oslo conference as a full participant. The decision had been made three days before, in a meeting between the president, the secretaries of state and defense, and the national security advisor. Albright had won the argument about whether to participate, but the president promised to the military that the most important US demands were not negotiable (Wareham 1998: 230-231). The administration was

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hoping to negotiate changes to the Austrian draft that would allow it to become party to the agreement without substantially altering its policy. The military’s main concerns were an exception for anti-personnel mines on the Korean peninsula and language permitting the continued use of mixed munitions (Doubleday 1997).

Negotiating at Oslo

When the US delegation arrived in Oslo, their initial package contained a number of demands. American negotiators raised several conditions for their willingness to support the treaty: • • • • • •

A geographical exception for the mines placed along the de-militarized zone on the Korean peninsula A definition of anti-personnel mines that would not cover the mixed systems of anti-personnel mines in combination with anti-tank mines A 9-year transition period to implement the policies as required, after the treaty went into effect The option of withdrawing from the treaty, if supreme security interests were at stake A provision that the treaty would only go into effect if at least 60 states had ratified it, including all five permanent members of the UN Security Council A removal of the clause that ruled out making reservations to the treaty

Over the course of the conference, it became increasingly clear that the majority of states would not give in to the American demands. The US delegation attempted to make its dependence on mixed munitions compatible with the prohibition on APMs by redefining the antipersonnel mines in its mixed systems not as APMs, but as submunitions 27 (Williams and Goose 1998: 44). This was rejected by other delegations. President Clinton wanted to avoid an agreement with wide support but no American participation, and this prospect prompted him to get involved personally. During the final days of the conference, Eric Newsom, the head of the US delegation in Oslo was in frequent contact with the president. Clinton, in turn, coordinated closely with Secretary

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of State Madeleine Albright, NSA Sandy Berger, and JCS Chairman Shalikashvili (Sanger 1997). Demands that had initially been introduced as American “red lines”, without a chance for compromise, became negotiable. Of the original demands listed above, the United States only insisted on two. It wanted to be able to continue to use its mixed munitions and wanted more time for Korea. The United States agreed to settle for a nine-year transition period, during which it would be allowed to continue securing the border between North and South Korea with anti-personnel mines. This suggestion had been made by Canadian Prime Minister Chrétien to get around the impasse on the Korea exception. Since the treaty sought to remove and destroy all anti-personnel landmines within ten years of accession, a transition period of an additional nine years would have given the United States a total of 19 years to come up with a solution for Korea. A Deal without Washington

The request for the exemption for mixed munitions became the deal breaker. At the beginning of what was supposed to be the last session on 16 September President Clinton managed to convince Prime Minister Chrétien to halt negotiations for 24 hours in order to lobby his counterparts in foreign capitals. But his last-minute phone calls failed to win over foreign governments. Both the Canadian and the South African delegations hinted that a compromise on the transition period might be possible. But under continued pressure from the ICBL, most governments were not willing to accommodate the US position on mixed munitions and the request for a provision that allowed for withdrawing from the treaty within six months (Bonner 1996, 1997). On 17 September, wanting to avoid losing a vote on its requested changes, the United States withdrew its demands and resigned itself to the position that it would not vote for the treaty. On the day more than 100 nations agreed on a treaty text in Oslo, President Clinton and Defense Secretary Cohen gave a press conference at the White House. Clinton (1997) explained: “Our nation has unique responsibilities for preserving security and defending peace and freedom around the globe.” He argued that signing the treaty would undermine the security of American troops, given the failure to achieve a nine-yeartransition period and to retain the right to use mixed munitions. He said he wished he could have signed the treaty, but that he could not cross that line. It was an open secret that some members of his administration had advocated for US participation, but in the end the concerns from

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some in the military had prevailed. Clinton and Vice President Gore personally admitted to members of the ICBL that politically, they could not afford to rule against the Joint Chiefs of Staff (Weiner 1997). To deflect some of the criticism, the president announced that he had directed the Pentagon to develop alternatives to anti-personnel mines by 2003. The mines in Korea were to be replaced by 2006. He also announced that he would increase funding for humanitarian demining by 25 percent and revive negotiations at the Conference on Disarmament to negotiate an export ban. Again, the shadow of Senate ratification loomed over the President’s decision. The tough battle to get Senate approval for the Chemical Weapons Convention had culminated only weeks before, and it was clear that Clinton would not have gotten any treaty past the Senate that did not have the full support of the JCS. While Patrick Leahy strongly criticized the administration’s action, saying that President Clinton should have overruled the military, Jesse Helms congratulated President Clinton on making the right decision (Myers 1997a). Helms’ position was not representative of overall sentiment in the Senate. Congress as a whole was not opposed to the Ottawa Convention. On 12 June, Leahy introduced legislation in the Senate to eliminate 28 landmines. The bill mandated that, beginning in 2000, the United States would not deploy anti-personnel mines. The president could be granted an exception for Korea, but had to certify to Congress annually that the APMs were needed for national security reasons. 59 senators supported the legislation, including Republicans close to the military like John McCain, Alfonse D’Amato, and Chuck Hagel. All of the senators who had served in Vietnam supported the legislation. In July 1997, a letter written by 164 representatives called for full US participation in the Ottawa process (The New York Times 1997a; The New York Times 1997b). The signing conference took place in Ottawa from 2-4 December 1997. It was a purely ceremonial conference, as the treaty had been completed at the Oslo conference. In addition to the governmental representatives, 400 delegates from international and non-governmental organizations attended the ceremony. 122 countries signed the treaty in Ottawa. The United States was not among the 157 countries that participated. Clinton’s Promise to Sign

After Clinton made the decision not to join the Ottawa Convention, Senator Leahy continued to pressure the administration to take steps to

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overcome its reliance on anti-personnel mines. In 1996 he engineered a majority for a one-year moratorium on the use of anti-personnel mines that would go into effect in 1999. Pressured by the Pentagon and Defense Secretary Cohen, the administration was now looking for a way to circumvent Leahy’s moratorium (Myers 1998b). The House of Representatives had already repealed the legislation, and in the Senate it faced strong opposition from Jesse Helms. In exchange for agreeing to let the president use a waiver based on national security concerns, Leahy got the administration to promise that the United States would join the Ottawa Convention by 2006. In a letter from Sandy Berger to Leahy on 15 May, the administration made the pledge (Myers 1998a). In contrast to earlier declarations to abolish anti-personnel mines by 2006, the pledge to sign the Ottawa Convention meant that the United States would also have to abandon mixed munitions. Nevertheless, it was mostly a symbolic gesture. Signing a treaty signals the intention to join, but does not guarantee that it will be ratified. It has no legally binding force on future administrations, only a political one. On 13 May 1999, Chairman Jesse Helms reported favorably on the amended landmine protocol to the CCW that had been negotiated by the 1995 review conference and the follow-up meetings out of the Senate Foreign Relations Committee, clearing the way for ratification. Subject to a minor reservation, some understandings and conditions (United States 1999), the United States ratified the amended Protocol II to the CCW on 24 May 1999 (Clinton 1999; ICBL 2004). Coming Full Circle With Bush and Obama Bush Renounces the Ottawa Convention

Senator Leahy remained adamant with regard to the landmine issue after President Clinton left office. At his initiative, Congress mandated a study on alternatives to landmines. In March 2001, the National Research Council presented the results. It came to the conclusion that it was possible to come up with alternatives by 2006 – the deadline that Clinton had set during his term – but that increased funding and renewed efforts were necessary to achieve that goal. The most promising alternatives to the indiscriminate landmines were so-called “man-in-theloop” systems. They consisted of explosive devices that, unlike conventional mines, are not triggered by the proximity of a person. Instead, a soldier would observe a minefield and manually trigger the mines after ensuring that the person triggering it was an enemy soldier.

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Such a change would decrease the likelihood that innocent civilians or friendly soldiers would be harmed (Glanz 2001). The Bush administration commissioned a review of US landmine policy. In 2002 the Pentagon announced that it would not be able to meet the deadline to develop technological alternatives to landmines by 2006 (ICBL 2004). On 27 February 2004, the administration announced the result of the two-and-a-half-year review in a Landmine Policy White Paper (U.S. Department of State 2004). In its introduction, the white paper states that the new policy constituted a “significant departure” from previous approaches. It further explains that the administration would “continue US leadership in humanitarian mine action – those activities that contribute most directly toward eliminating the landmine problem.” First, the white paper pointed out the risk of anti-vehicle mines. The Ottawa Convention, it observed, only outlawed anti-personnel mines. Anti-vehicle mines with anti-handling devices remained legal, as long as those anti-handling devices were attached to the anti-vehicle mine. By pointing out the danger of anti-vehicle mines for civilian vehicles, the white paper thus attempted to change the framing of the issue. Instead of distinguishing between anti-personnel and anti-vehicle mines, it distinguished between persistent and self-neutralizing mines. While it reaffirmed the renunciation of “pure” anti-personnel, just as the Clinton administration had, the white paper maintained the value of “smart” anti-tank mines, including mixed systems. The concrete steps were: • • • •

To use only self-neutralizing mines in accordance with the guidelines of the revised Protocol II of the Convention on Certain Conventional Weapons. To halt the use of non-detectable mines (with less than eight grams of metal) within a year. To increase funding for humanitarian demining by 50% to 70 million dollars annually To seek an agreement that prohibits the sale and export of persistent (“dumb”) landmines, and to amend the CCW to ban non-detectable landmines, whether anti-personnel or anti-vehicular.

When President Clinton had ordered the Pentagon to conduct research on technological alternatives to landmines seven years earlier, the most promising designs were those with a so-called “man-in-theloop” feature. While the new Bush policy did not exclude such systems it made no commitment to replace the anti-vehicle mines.

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The main difference between Bush’s policy and that of his predecessor was the decision to abandon the Ottawa Convention altogether, and with it the intention to give up anti-personnel landmines in the near future. The white paper was not very different from Clinton’s policies, but did not adopt Clinton’s rhetorical commitment to eventually accept the Ottawa rules. The new policy had offered the dual advantage of allowing for mixed munitions and sidestepping a geographical exception for Korea. In practice, the main problem with an approach that relied on the technological solution of self-neutralization was that it was not easily transferable to other countries. Even though the policy paper contained the intention of negotiating a ban on all persistent mines, the likelihood of getting other countries to sign on was limited. Less technologically advanced countries would then be required to replace inexpensive mines – potentially of their own production – with expensive ones they had to import. Critics also pointed out that the self-neutralization of mines was not reliable. Representatives of the ICBL repeatedly cited military commanders who had chosen not to deploy “smart” mines, because they deemed the risk to their own soldiers too high (see e.g. HRW and VVAF 1997). This had been the initial reason for the supporters of Ottawa to call for a comprehensive ban. On a symbolic level, the new policy also sent a distinct message. It effectively ignored the results that more than 120 countries had agreed to in Ottawa. While Clinton had not wanted the United States to be the odd country out, Bush had no qualms about it. Neither the image of the United States internationally, nor the pressure from NGO advocates domestically were of concern to him. In this sense, the decision not to sign the Ottawa treaty in the foreseeable future mirrored the one made regarding the International Criminal Court two years earlier. Obama Returns to the Status Quo Ante

After Barack Obama became president in 2009, his administration announced a review of US landmine policy. The outcome was not presented until Obama’s second term. On 23 September 2014, the White House issued a fact sheet outlining its position (The White House 2014). The United States would align its policy outside of the Korean Peninsula with the provisions of the Ottawa Convention. Specifically, outside of the Korean Peninsula it would neither use AMPs nor assist anyone in activities prohibited by the Landmine Treaty. It would also destroy its stockpiles of APMs apart from those required for defending South Korea. With this announcement, US policy reverted back to the

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approach set forth by the Clinton administration. Obama did not commit to specific deadlines for outphasing the use of mines on the Korean Peninsula and has not taken any steps toward acceding to the Ottawa Convention. Case Findings Preservation of Autonomy?

On the most basic level, US behavior with regard to the Landmine Treaty does not contradict the claim of US aversion to ceding autonomy. The realist prediction is that states are motivated by a desire to maximize their relative power, which, for powerful states, usually means preserving their autonomy. While US behavior toward the Ottawa Convention does not contradict this claim, the explanation does not contribute greatly to an understanding of US policies beyond its officially declared motivations. The United States wanted to preserve its freedom to use antipersonnel landmines from international restrictions, more specifically, its ability to use landmines along the border separating North and South Korea and to use mixed munitions. This can be interpreted as a desire to be able to choose the appropriate means in a military confrontation autonomously. Nonetheless, it is difficult to turn this into an argument about relative power. By any standard, the United States is less dependent on landmines than other countries. It has a far greater range of military alternatives at its disposal. The question of whether mines offer any military advantage at all is highly controversial. This is not only shown by the analysis of the discussions within the military, but also by the decision of American commanders to not to use landmines in recent conflicts, out of concern that they could do more harm than good. One could even argue that because of their many forward deployments, American troops are more vulnerable to landmines than those from other countries. It is difficult to assess the overall impact of landmines on the distribution of capabilities. But the claim that the United States maximizes its relative power by holding on to landmines is at least questionable. Moreover, the concept of legalization is of limited use with regard to the landmine case. Because the Landmine Treaty deals with a single very specific issue, there is no point in assessing the impact on US autonomy beyond the substance of the treaty. The one exception is in the

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dimension of obligation. If the general degree of obligation of the convention had been lower, allowing for reservations, it might have been easier to accommodate American preferences: Washington could have added conditions exempting the two aspects of landmine use it wanted to preserve and still joined the treaty. But both precision and delegation were largely irrelevant. The Ottawa Convention is almost exclusively based on voluntary compliance, so its degree of delegation is decidedly low. And, as in the other cases, precision was not an obstacle to US support but an asset. In sum, the autonomy hypothesis is not falsified by US behavior, but the behavior also does not provide much leverage for the argument. The Veto Players Hypothesis

One striking observation refers to the broad support the Landmine Treaty had inside and outside of government. Public opinion was strongly in favor of the treaty. The International Campaign to Ban Landmines, which had convinced so many governments around the world to support the treaty, had just as much traction in the United States as elsewhere. And Senator Patrick Leahy tirelessly advocated treaty membership, while a bipartisan coalition of senators was also supportive of efforts to address the global landmine problem. America’s failure to sign on to Ottawa is due in large part to the bias in the domestic system in favor of treaty opponents. It was the powerful position of the defense department in executive decision-making, in combination with the prospect of a tough ratification battle, which prevented the United States from joining the treaty. However, there is an important qualification. In light of the considerable obstacles to treaty ratification, the opposition within the Senate and the Pentagon made ratification of the treaty difficult. Nevertheless, I conclude that the US failure to vote for and sign the Ottawa Convention was largely due to the lack of presidential leadership. In the case of the Landmine Treaty, this distinction is important in practice. If the United States had committed to the Ottawa convention by signing the treaty, it would have been a clear signal to the American military that the days of anti-personnel mines were numbered and that it would have to get serious about developing alternatives. In contrast, Clinton made the announcement that the Ottawa Convention was to be joined at a later stage, dependent on the development of alternatives to landmines. Under this policy, the military could prevent American participation simply by dragging their feet.

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I argue that Clinton could have signed the Landmine Treaty based on a close analysis of the various positions inside the military. Legally, the president as commander-in-chief can always overrule the Defense Department, but the political costs of doing so are potentially high. This, however, is only true if the Pentagon’s civilian leadership and the military have strong preferences and are unified. I conclude that, with respect to a landmine ban, this was not the case. The armed forces were critical of a ban on anti-personnel landmines. But the preferences of the military regarding landmines were not strong. Military experts did not agree on whether or not antipersonnel mines offered any tactical advantages in battle. Assessments based on computer simulations were ambiguous, concluding that APMs only offered a tactical advantage under very specific assumptions that did not adequately reflect the reality of combat. Commanders were also divided about the need for anti-personnel mines. This ambivalence was reflected in the fact that US forces had not deployed APMs in most recent military operations. Only the army, in particular the US Army Engineer Corps, opposed giving up landmines for institutional reasons. The other services were largely indifferent. The chairman of the Joint Chiefs of Staff was sympathetic to Clinton’s preference for abandoning landmines and would have been willing to help Clinton overcome the resistance within the ranks. The military as a whole, represented by the Joint Chiefs of Staff, ultimately argued against a total ban for two reasons. The first was that some in the military feared that ruling out a weapons system through an international agreement based on humanitarian concerns would set a bad precedent. The second reason was a conservative military institutional culture and doctrine, which is characterized by a reluctance to change. It would be unrealistic to expect the military to voluntarily give up a weapons system. If the military is asked whether it would rather abandon a weapons system or keep it, the default reaction is to keep it. If the military had been ordered to abandon landmines, it probably would not have caused a substantial uproar. When the JCS chairman first started to “feel the temperature” on the possibility of abandoning anti-personnel mines, the reaction was tepid. A political firestorm feels different, and when the military decides to create one, it usually does not go unnoticed. The broad bipartisan majority for legislation restricting landmine use also supports this interpretation. Among those supporting a ban in the early stages was Republican Majority Leader Bob Dole. In 1997, 59 senators, including several defense hard-liners, expressed their support for a moratorium on landmine use. While the effort included an

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exception for Korea, the support would probably not have been so broad if the military had lobbied for mines behind the scenes. Still, the result confirms the strong institutional weight of the Pentagon as a veto player. If half-hearted opposition is enough to get Clinton to abandon his goal to ban landmines, one can imagine what the impact would be when the Pentagon throws its full weight behind an issue. If the military is unified in its opposition to a policy, it is practically impossible to overcome its resistance. The biggest domestic obstacle in treaty-making lies in getting a treaty through the Senate. Compared to assembling a super-majority of senators in favor of ratification, signing a convention is the easy part. In the absence of a signature, it is impossible to know what the likelihood of ratification would have been. While the treaty had a strong advocate in Senator Leahy, Jesse Helms, predictably, had already made his opposition known. Based on the systemic bias for the status quo, ratification would certainly have been an uphill battle. The Presidential Leadership Hypothesis

One aspect of presidential leadership is the domestic political game. A different aspect is how the president handles international negotiations. In accordance with the logic of two-level games, the administration could have strengthened its position domestically if it had negotiated an agreement that was more accommodating to American demands. The Clinton administration failed to grasp the momentum that was developing on an international level. The United States continued to insist on the Conference on Disarmament as the appropriate forum until the near-universal support of the Ottawa process could no longer be denied. By not engaging in the Ottawa process early on, Clinton failed to influence the international negotiations. Observers have pointed out that European countries had managed to negotiate a definition of antipersonnel mines that left the systems of anti-vehicle mines that they relied on unaffected: The final treaty allows for anti-vehicle mines with anti-handling devices, as long as the latter are attached. In contrast, American mixed munitions are prohibited under this definition. From a humanitarian viewpoint there is no good reason for this distinction, because even attached anti-handling devices can be triggered accidentally by civilians. Instead, the adopted definition was a concession to broaden the support for the treaty. It is possible that the United States could have negotiated a similar exception for its systems had it joined the negotiations at an earlier stage. There were reports that there was some sympathy for the special situation of the Korean

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peninsula among the participants of the Ottawa process. Instead, the United States first ignored the Ottawa process, and then entered the treaty with non-negotiable positions, only to try to achieve consensus when it was too late. There was a tendency in the Clinton administration to only devote high-level attention to international negotiations at the 11th hour. To be fair, attention is a scarce resource in politics, and Clinton was probably the first president faced with the phenomenon of a new multilateralism that did not wait for the United States to take the lead. Nevertheless, the lack of a proactive approach is striking.

Notes 1

An even older example is the role that the International Committee of the Red Cross played in establishing the rules of war. 2 In colloquial use, the term landmine is used to refer to anti-personnel mines (hence the Ottawa Convention is often referred to as the “Landmine Treaty”). Technically, the broader term “landmine” also includes anti-vehicle mines that are not covered by the Ottawa Convention (Justen 2006: 7-8; McGrath 2000: 17-19). Unless otherwise specified, I use the term landmines to refer to anti-personnel mines. 3 In contrast to persistent or “dumb” mines, the term “smart” mines refers to self-neutralizing types. They have a limited life span, after which they cannot be triggered anymore. The term self-neutralizing encompasses self-destruction (a mine equipped with a timer set to blow it up after a certain time span), and self-deactivation (a mine containing a battery, which after running out prevents the mine from being triggered). Some mines, including the “smart mines” in the US arsenal, contain both self-destructing and self-deactivating mechanisms. 4 Anti-vehicle mines are also persistent and indiscriminate. They endanger civilian vehicles including convoys delivering humanitarian aid. Still, most in the campaign against landmines favored concentrating on anti-personnel mines for pragmatic reasons. It was more difficult to justify their military utility and, because they caused disproportionate harm to civilians, it was possible to invoke the precedent of existing conventions to call for their prohibition (McGrath 2000: 16-17). 5 Article 3 specifies two exceptions. The retention of a small number of mines for the development and training of demining techniques is permitted. In addition, mines may be transferred for the purpose of destruction. 6 The United States relies on mixed systems, in which anti-personnel mines are scattered along with anti-vehicle mines to prevent enemy forces from disarming or moving the anti-vehicle mines. The United States has tried to argue that the APMs in mixed munitions are anti-handling devices, an interpretation not compatible with this definition. 7 This approach was taken in the Convention on Certain Conventional Weapons, which established guidelines for permitted use of mines. According to the CCW, as amended in 1996, mines have to contain enough metal to be

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detectable for mine-clearance. Mines that do not self-destruct or self-deactivate after a certain amount of time can only be laid out in clearly marked and fenced mine fields. Only self-deactivating or -destructing mines can be delivered by air or through artillery. 8 Notably, the first mines used were anti-tank mines. Anti-personnel mines were introduced to prevent the enemy from clearing the mines or even recovering and reusing the mines against the troops who had initially deployed them. For more on the history of the development and use of landmines, see (McGrath 2000: 1-13). 9 A widely cited figure is 26,000 mine victims annually (see e.g. Cameron et al. 1998a: 2). 10 Technological progress and the use of plastics made mines more durable. The first generations would deteriorate relatively quickly to the point where they would no longer explode. 11 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, available at www.unog.ch. 12 In 1996 Protocol II was added to the CCW. It imposed “Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices.” Far from prohibiting all use of APMs, it sought to prevent indiscriminate deployment. It contained a provision outlawing the use of remotely delivered mines, unless their location was recorded or they had a self-deactivating mechanism, and called for the clearing of mines once a conflict was over. 13 The US Senate ratified the CCW in 1995, shortly before a review conference was due to take place. 14 The most mine-affected countries were El Salvador, Nicaragua, Sudan, Eritrea, Somalia, Angola, Mozambique, Cambodia, Laos, and Vietnam. 15 Even before the cooperation between these organizations, which has often been described as the hour of birth for the international movement to ban landmines, a representative from the Women’s Commission for Refugee Women and Children called for a ban on APMs in testimony before Congress (Williams and Goose 1998: 21). 16 An important exception, which to this day has not signed the Ottawa Convention, is Finland. 17 National Defense Authorization Act for Fiscal Year 1993, Public Law Public Law 102-484: Sect. 1365. 18 The United States had signed, but not ratified, the CCW. According to Sigal (2006: 13), the person in the US government responsible for the decision to introduce the resolution was Michael Matheson of the Office of the Legal Adviser in the State Department. 19 National Defense Authorization Act for Fiscal Year 1993, Public Law Public Law 102-484: Section 1365. 20 National Defense Authorization Act for Fiscal Year 1994, Public Law Public Law 103-160: Section 1094. 21 Amendment 2757 to House Resolution 1868. It was adopted by a voice vote – exact votes in favor were not counted or recorded – indicating a broad majority (see Congressional Record 1995a; Congressional Record 1995b). 22 Foreign Operations, Export Financing & Related Programs Appropriations Act 1996, Public Law 104-107

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23 Bill Clinton submitted the amended landmine protocol to the Senate on 7 January 1997. The Senate gave its advice and consent on 24 May 1999 (Clinton 1999). 24 Sigal (2006: 87) puts the number at 34; Williams and Goose (1998: 33) cite 41. 25 The following section relies heavily on the account from Sigal (2006), who conducted a series of in-depth interviews with individuals involved in the process. When he used written sources, I went back to the original material to arrive at my own conclusions. 26 There was a concern in the armed forces that the NGO effort to ban APMs could set a precedent that would lead to a prohibition of other weapons systems. See e.g. the testimony of retired general Carl E. Mundy before the Senate Foreign Relations Committee (U.S. Senate 1998b). 27 These mixed munitions were usually delivered by air. A container of multiple anti-tank mines and some anti-personnel mines, intended to protect the anti-tank mines from tampering, would open in mid-air and release the two types of submunitions. 28 “The Landmine Elimination Act of 1997,” S. 896, 105th Congress, First Session, 12 June 1997. It was referred to the Senate Armed Services Committee.

6 Barely Ratified: The Chemical Weapons Convention

The Chemical Weapons Convention (CWC) is widely regarded as one of the most ambitious and the most comprehensive arms control treaties to date. It contains strong verification measures, which were unique at the time negotiations were concluded in 1992. It is not widely known that the innovative regime of inspections in the CWC was originally intended as a ploy to keep the treaty from ever coming into existence. When officials working at the Defense Department during the Reagan administration suggested mandatory on-site inspections “anytime, anywhere,” they were convinced the Soviet Union would reject the idea. The initiative was designed to derail the negotiations rather than lead to a strong and effective treaty. However, eventually the principle was not only accepted by the Soviet negotiators, but became an integral part of the treaty. Finding ways to ensure that countries would not circumvent the prohibition on chemical weapons (CW) was challenging, but it increased confidence in the treaty among the participants. Verification mechanisms have since become standard in arms control negotiations. Initiated during the era of bipolarity, the CWC has outlived the Cold War and enjoys a broad membership, including that of the United States. The curious origin of the principle of on-site inspections is not the only interesting aspect of America’s participation in the Chemical Weapons Convention. There are several characteristics that make the CWC an interesting case in the context of this book. First, it is a rare example of a truly universal arms control treaty based on the principle of reciprocity that received almost unqualified American support. Second, it breaks somewhat with the familiar pattern of the executive taking leadership on a treaty and Congress being a laggard. At least during the negotiation phase, Congress was the leader on the CWC, pushing the executive toward effective chemical arms control. Third, there are some

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puzzling tensions within US policy on chemical weapons. While the United States was calling for a comprehensive ban on chemical weapons in the negotiations of the CWC, it was also in the process of developing a new generation of sophisticated chemical weapons. These puzzles and inherent tensions will be explored in this chapter alongside the central question of why the United States decided to join the CWC. What is the Chemical Weapons Convention?

The Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction is often referred to as the most complex arms control treaty in existence 1 (Krepon 1992). The reason for its length, complexity, and level of detail is two-fold. First, many chemical agents that can be used to produce chemical weapons also have legitimate civilian purposes, making it difficult to define what constitutes a chemical weapon and to differentiate between civilian and military production. Second, the creation of a verification regime to ensure that states disbanded their chemical arsenals was unprecedented and entailed many practical problems. The CWC prohibits the acquisition of chemical weapons and requires the destruction of existing ones over a period of ten years. Chemical weapons are defined by their purpose. The CWC thus outlaws “toxic chemicals and their precursors, except where intended for 2 purposes not prohibited under this Convention.” (Art. II, Section 1a). Toxic substances intended for civilian use are permitted, but subject to a monitoring regime. Even though the decisive criterion is whether a substance is intended for peaceful or military purposes, the treaty lists substances that are banned or whose production is subject to verification of their legitimate purpose. These chemicals are listed according to three so-called schedules that depend on the toxicity and the extent of their legitimate uses. Schedule 1 lists highly toxic substances most likely developed specifically for military purposes that have very little or no legitimate purpose. They can only be produced in small quantities for research on medical, pharmaceutical, and defensive uses. The production and research facilities for these substances are subject to routine inspections. Schedule 2 chemicals have some civilian utility, but can also be precursors to produce chemical weapons. Schedule 3 chemicals are widely applied by the chemical industry for civilian purposes, but can be used as precursors or for military purposes due to their toxicity.

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In addition to limiting the quantities of chemicals that can be produced, the CWC requires reporting on activities involving chemical substances listed in the schedules. Member states have to declare all production, export, and import exceeding a threshold that is specified for each group of substances. The threshold ranges from 100g for Schedule 1 chemicals to 30 metric tons for Schedule 3 chemicals (for details see Smithson 1991). The CWC creates the Organization for the Prohibition of Chemical Weapons (OPCW) as the main implementing body (Art. 8). It consists of the Conference of States Parties, made up of all member states; the Executive Council made up of 41 members serving two-year terms and rotating on the basis of regional representation; and the Technical Secretariat, which is in charge of data monitoring and conducts the inspections. In addition, each member state is required to create a national authority that serves as the main liaison between the OPCW and the chemical producers in that state. The treaty establishes two kinds of inspections: routine inspections and challenge inspections. Routine inspections take place on a regular basis in facilities that have been declared to produce chemicals listed in the schedules. They are intended to monitor these facilities and ensure that they comply with the reporting requirements, and do not exceed the limits on the production of restricted chemical agents. Challenge inspections take place when a state party suspects another of violating the convention by secretly producing substances intended for use in chemical weapons. The challenging state has to present credible information about violations to the OPCW. The Executive Council then decides whether or not to conduct a challenge inspection. In principle, the burden of proof is on the challenged party. It has to prove that there are no grounds to believe that it has violated the treaty. To avoid abuse of the challenge inspections process, it can be stopped if three fourths of the 41 members in the executive council oppose it. Such challenge inspections are conducted under the principle of “managed access.” Applying the Concept of Legalization to the CWC

According to the criteria of the concept of “legalization,” the Chemical Weapons Convention is a highly legalized agreement. This is a consequence of the general concern with compliance during the treaty’s negotiation. Member states were only willing to give up their chemical arsenals if they could be assured that other states did the same and no one violated the treaty. As the negotiating history shows, the United States in particular demanded that the treaty be effectively verifiable.

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Early on, the motto “trust, but verify” became a guideline for the negotiations. The result was a regime of mandatory inspections without the chance to opt out, implying a number of binding obligations. The intrusive nature of inspections, in turn, required specific agreements between the states on how far the inspectors were allowed go. In the dimensions of obligation and precision the CWC comes close to the ideal type of “hard legalization.” Only in terms of delegation does the treaty remain slightly below the highest possible standard. Obligation

The Chemical Weapons Convention is a legally binding treaty. In the United States it was approved under the treaty process according to Article II of the US Constitution. The US government has passed domestic implementing legislation making the treaty binding under domestic law. Art. XXII prohibits states from making reservations to seek exceptions from certain treaty provisions. The CWC thus reaches the highest degree of legal obligation possible for international instruments under US law. The treaty prescribes a detailed regime of rules and commitments. To ensure compliance with the ban on chemical weapons, the CWC treaty lists specific obligations for every step of the process, from destroying existing chemical weapons to preventing new ones from being produced. They include reporting requirements, destruction duties, creating a “national authority,” allowing access to sensitive sites, and funding and supporting the OPCW. Since recounting the provisions of the 180-page treaty document in detail is beyond the scope of this book, a rough summary of the commitments within must suffice as a demonstration of the degree of obligation. •

•

Reporting Requirements: The reporting requirements represent the greatest burden. Each state has to make a declaration about existing chemical weapons stockpiles, production facilities, and destruction sites. It has to make initial reports about major chemical production facilities, both under government authority and in the private sector. Any facility dealing with substances listed in one of the three schedules – provided they exceed the given thresholds – further has to make annual reports on their production, sale, and acquisition of these chemicals. Destruction of Chemical Weapons: Each state was required to destroy its chemical weapons over a period of 10 years

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from when the treaty went into effect. In principle, each state is responsible for the destruction of all of its chemical weapons, whether they are located on its own territory or elsewhere, and has to cover the resulting costs. Since the destruction of chemical weapons is technologically complex, expensive, and potentially dangerous, this commitment is a significant burden. Creation of the National Authority: Each member state is required to create and staff an institution to coordinate the activities of the nation’s government and private industry with the OPCW. The institution needs to inform the chemical industry of the requirements, compile the reports of individual companies and producers into national reports, and ensure compliance from the private sector. It also has to negotiate the exact terms of challenge inspections under the “managed access” provisions, accompany international inspectors, and facilitate the inspections process. Access for Inspectors: The task of granting international inspectors access to sensitive facilities represents a significant obligation in itself. In a sector vulnerable to industrial espionage, the protection of intellectual property and industry secrets is a high priority. Support of the OPCW: The OPCW has an annual budget of approximately 50 million dollars. The cost is distributed according to the same scale that is used to determine UN membership dues (adjusted for the different membership in the CWC). This means that the United States is responsible for providing about 22 percent of the OPCW’s budget.

These commitments are not mere formalities, but affect the member states significantly. Since the United States had a significant stockpile of chemical arms and is home to one of the world’s largest and most sophisticated chemical industries, the American chemical sector is responsible for a significant share of the reporting requirements and is a focus of routine inspections.

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Precision

The sheer extent of the treaty document is an initial indicator of the specificity of the provisions. With the treaty and its annexes comprising over 160 pages, the state parties have literally gone to great lengths to lay out the details of the rules as precisely as possible. These encompass every aspect of the behavior regulated. The schedules list every chemical agent that is subject to restrictions or prohibitions. Schedule 1 lists 12 individual substances or categories of substances; Schedule 2 lists 14 categories; and Schedule 3, a further 17 agents (Annex on Chemicals). For each schedule there are detailed rules about what quantities may be produced in governmental and commercial facilities; what quantities need to be declared; and above which threshold of a particular substance a facility is subject to inspections. Furthermore, there are detailed regulations about quantities that may not be exceeded or which trigger additional monitoring requirements. The rules for both routine and challenge inspections are also specified in great detail. For example, the approach of “managed access” specifies both detailed timelines and the exact perimeter that inspectors can access at each stage. If the director general mandates a challenge inspection, the inspectors are supposed to arrive at the challenged state within 12 hours after the notification from the concerned state. Within a further 36 hours, the host state must bring the inspectors to the perimeter of the suspect site. The perimeter will be negotiated between the host state and the inspectors, but must be 10 meters outside any building of structure. Once there is agreement on the exact perimeter, the inspectors can take air and soil samples within 50 meters of that perimeter. Access must be granted within a maximum of 104 hours after inspectors have entered the state, and the inspection must not last more than 84 hours (Annex on Implementation and Verification, Part X). Every aspect of the ban on chemical weapons and its verification is spelled out, both substantively and procedurally. Delegation

By establishing the OPCW, the convention creates a centralized organization in charge of monitoring the compliance of states with their obligations under the treaty. This task encompasses two important aspects of delegation at once: dispute resolution and rule implementation (Abbott et al. 2000).

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The dispute resolution authority allows the OPCW to receive complaints about non-compliance. If one member state accuses another of being in violation of the treaty, it is the OPCW’s job to investigate the charge and to decide whether the complaints have any merit. The Technical Secretariat, which reports to the Conference of State Parties, has significant normative authority in judging whether or not states are complying with their obligations. The second aspect is the verification of compliance. The Technical Secretariat and its inspectors have their own equipment to carry out inspections. They are quite self-sufficient (in contrast, for example, to UN peacekeeping missions that rely on states to provide funding, equipment, and personnel on a case-by case basis). Since not only facilities under government authority but also private enterprises are subject to monitoring and even inspections, the participating governments have delegated central aspects of their regulating authority to an international body. This is why implementing legislation is required. There are no provisions that allow member states to opt out of any aspect of the regime or to deny the inspectors access – as mentioned above, reservations are explicitly prohibited. The OPCW cannot change rules or make new ones. Any amendments to the treaty or its annexes are subject to approval by all member states. The OPCW does not have enforcement capabilities in the strict sense. If denied access to a site, it cannot gain access by force the way that domestic law enforcement agencies could. But if a challenged party cannot provide sufficient evidence of compliance, the Conference of the State Parties may recommend further action against that party. To that end, the Conference can refer the matter to the United Nations Security Council. The CWC is not a supranational institution (Mahley 1994). Like most international institutions, it ultimately depends on the will of its member states to play by the rules, or to impose sanctions. Although the OPCW is granted a significant degree of authority, it remains dependent on the cooperation of its member states. However, as Abbott et al. (2000) note, virtually no international institution matches the standard of domestic sovereignty in terms of its 3 enforcement. The treaty provides states with several incentives to join. States that remain outside the treaty regime face restrictions in terms of the substances they are allowed to import from treaty states. According to Article X, state parties that are threatened by chemical attack can request assistance for defending against the attack.

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Early Attempts at Chemical Arms Control

Efforts to ban the use of poisonous substances for military purposes go back to the 19th century, but the CWC’s most important predecessor was the 1925 Geneva Protocol, which prohibited the use of poisonous gases as an instrument of war, following the horrific experiences with 4 chemical warfare during the First World War I. Since the protocol did not ban the possession, production, or transfer of chemical substances, in practice it amounted to a renunciation of the first-use of chemical weapons rather than a comprehensive ban (Bernauer 1993: 2). Nonetheless, it was an important step in establishing a norm against using chemical weapons. Efforts in the 1930s to broaden the scope of the protocol to include a ban on the possession of chemical weapons failed. The movement to establish a comprehensive regime to reduce the threat of nonconventional weapons of mass destruction – including nuclear, bacteriological, and chemical weapons – only gained momentum at the end of the 1960s. After the Nuclear Nonproliferation Treaty was concluded in 1968, the focus moved to bacteriological and chemical weapons. In 1972 the Bacteriological (Biological) and Toxin Weapons Convention was concluded. In Paragraph 11, it contained a commitment to work towards a chemical weapons convention, indicating the willingness of many states to work towards a comprehensive ban. The United States had signed the Geneva Protocol shortly after its conclusion in 1925, but did not ratify it until 1975. Over the years there were a number of international attempts to outlaw and abolish chemical arms. Nevertheless, the US military developed lethal chemical agents throughout most of the 20th century and built up large stockpiles of chemical weapons during the Cold War. As a reaction to the widespread use of mustard gas on both sides in the First World War, the US government established the Chemical Warfare Service (CWS) to conduct research on both offensive and defensive chemical capabilities (Brophy 1956). It was the CWS – together with the chemical industry – that persuaded Congress to not pursue ratification of the Geneva Protocol at the time of signing (for details see McElroy 1991). In 1946 the Chemical Corps, a branch within the US Army, succeeded the CWS. Its establishment institutionalized research on chemical warfare during peacetime. In the 1960s John F. Kennedy’s National Security Advisor McGeorge Bundy directed the Defense Department to conduct a review of its chemical arms policy, but no substantial changes resulted from the review.

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The United States has never used chemical weapons intended to kill enemies in combat, such as mustard gas or nerve agents. The military use of chemical agents was limited to defoliants during the Vietnam War. While supposedly intended to impede the ability of NorthVietnamese forces to hide in the dense vegetation of the jungle, the use of herbicides on a large scale had catastrophic effects on the health of the populations exposed to them and provoked both domestic and international criticism. This lead the UN General Assembly to pass Resolution A/2603 (XXIV) on 16 December 1969, which explicitly included herbicides in the definition of chemical weapons (Bernauer 1993). In that same year, Congress enacted a unilateral moratorium on the production of chemical weapons, which remained in effect until 1986 (Lehman 1992: 5). Under pressure from the Congress and the public, President Nixon unilaterally renounced the use of bacteriological weapons and toxins in November 1969, and submitted the 1925 Geneva Protocol to the Senate for ratification. He included reservations for retaliatory use of chemical weapons in direct response to a chemical attack, as well as the use of riot-control agents and herbicides. After direct American involvement in Vietnam had come to an end, Nixon’s successor Gerald Ford dropped these reservations at the urging of Senate Foreign Relations Committee Chairman William Fulbright. The Senate and Defense Department agreed to exclude riot-control agents from the definition of banned chemical weapons, but assured everyone that they would not be used except for defensive purposes in exceptional circumstances as a matter of national policy. With this compromise, the Geneva Protocol could be ratified. The reservation retaining the right to retaliate in kind if attacked with chemical weapons remained in place (McElroy 1991: 154). By the time the United States ratified the 1925 Geneva Protocol in 1975, efforts to negotiate a chemical weapons convention were under way. Since the Geneva Protocol had effectively eroded into a renunciation of first-use and had failed to prevent some instances of CW use, some governments were calling for a more comprehensive and effective ban in the form of a binding multilateral treaty. The first drafts 5 of a CWC emerged in 1972. In 1977 the United States and the Soviet Union established a private working group to negotiate bilaterally, reporting to the Conference of the Committee on Disarmament (CCD), while most other states watched from the sidelines (Robinson 1993; U.S. Senate 1994). These talks collapsed in 1980, but by then the other member states of the Committee on Disarmament, the CCD’s successor organization, had taken up the idea. They decided to establish a special subsidiary body called the “Ad Hoc Working Group on Chemical

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Weapons” to work on issues related to the negotiation of a 6 comprehensive convention banning chemical weapons. The Early Reagan Years

The renewed efforts of the Conference on Disarmament to negotiate a chemical weapons convention coincided with a reinvigorated superpower rivalry. From 1972 on, the Helsinki process had improved the relations between the United States and the Soviet Union. The period of détente that culminated in the signing of the Helsinki Final Act lasted throughout most of the Carter administration. But after the Soviet invasion of Afghanistan, relations deteriorated markedly. The election of Ronald Reagan marked the end of the thaw and sparked a renewed arms race. Reagan and his team regarded the détente policy carried out by their predecessors in the 1970s as a failure (Perle 2006). Reagen did not trust Soviet intentions and was convinced that the Soviet regime was inherently aggressive. In his view, the only guarantee against Soviet aggression into Western Europe was maintaining a credible military deterrent. Reagan felt that, by the beginning of the 1980s, the military capabilities of the Soviet Union and the Warsaw pact had surpassed those of NATO. One of his first priorities in office was, therefore, a significant increase in military spending (Gordon 1981). He appointed Caspar Weinberger as secretary of defense, who soon became the main advocate of modernizing and expanding America’s military. At the request of Weinberger, the Reagan administration expanded the defense budget by 32 billion dollars over his first two years in office (Weinberger 1990: 275-278). Reagan’s Distrust of the Soviet Union

When the Reagan administration assumed office, the Chemical Weapons Convention was not high on its list of priorities. Chemical weapons did not receive as much attention as nuclear weapons, yet the defense establishment regarded them as part of the overall strategy to match Soviet military capabilities. Negotiations at the Conference on Disarmament in Geneva had been going on, in one form or another, for almost a decade without producing tangible results or creating the hope that an agreement would come about in the foreseeable future. Ambassador Louis Fields, the head of the US delegation to the CD, took part in these negotiations, but without instructions toward clear objectives he remained largely passive and left the initiative to other states.

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In Washington, the agencies involved with arms control had differing views on the Chemical Weapons Convention. Defense Secretary Weinberger was opposed to most arms control agreements, since he did not trust the Soviet Union to comply with them. He believed that the Soviet Union had no inhibitions regarding cheating on international commitments and discarding them the moment they had a military advantage. Instead he relied on matching Soviet capabilities to deter a Soviet aggression. Many in the civilian leadership of the Pentagon shared this view. National Security Advisor William Clark and CIA Director William Casey also agreed with Weinberger (Tucker 1993: 141). George Shultz, who became secretary of state after the brief tenure of Alexander Haig, was more open to the idea of arms control treaties. During his negotiations with the Soviets as secretary of the treasury under President Nixon, he had come to believe that the Soviets could be convinced to stick to a deal, when given the right incentives (Shultz 1993: 117-119). Therefore he thought that the United States had more to gain than to lose from engaging the Soviets in serious negotiations. As head of the State Department, he was also aware of the opposition of many US allies in Europe to an escalating arms race. Still, Shultz’ views were far from dovish. As a member of the Committee on the Present Danger that had been founded in opposition to Carter’s détente policy, he believed in a balance-of-power approach to confronting the Soviet 7 Union. But in the context of the conservative Reagan administration, he was one of the more moderate voices. He advocated that any measure – from stationing intermediate range nuclear arms in Europe to expanding the chemical arsenal – should be accompanied by serious negotiations about arms control. After the widespread use of chemical weapons in the Iran-Iraq War, he came to favor negotiating a chemical arms ban (Shultz 1993: 238). Not many outside the State Department shared Shultz’ views. Even the leadership of the Arms Control and Disarmament Agency was skeptical of arms control. Eugene Rostow, Reagan’s first ACDA director, and his successor Kenneth Adelman were both opposed 8 to many arms control agreements. Adelmann, while attempting in general to mediate between Shultz and Weinberger, was usually closer to the latter in his positions (Adelman 1989: 31, 203). The Defense Community’s Position on Chemical Weapons

The Defense Department worried about the state of the US chemical arsenal. As a consequence of the 1969 moratorium, the United States had not produced chemical weapons for over a decade. Throughout this

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period, the Soviet Union had continued to build up its stockpile, which 9 then surpassed that of the United States. Some in the defense community watched this development with growing alarm. Two of the few specialists on chemical warfare in the United States, Amoretta Hoeber and Joseph Douglass (1978), had warned in an article in International Security that “…chemical weapons offer[ed] very significant advantages to the Soviets in any kind of war, nuclear or 10 conventional.” A few months before Reagan assumed office in 1980, the Defense Science Board, a group of civilian researchers advising the Pentagon on scientific and technical matters, issued a report. It argued that the chemical arsenal was not up-to-date and would not serve as a sufficient deterrent to the Soviets, so it recommended modernizing it (Tucker 2007: 245). Both the incumbent President Carter and Republican candidate Reagan had avoided the unpopular issue during the election year, and no decision was made before the election (Lyons 1981: 39). Once elected, Reagan quickly adopted the argument for modernization, which was consistent with his general strategic outlook. Within the military, the Chemical Corps pushed to resurrect the CW program. The 1969 moratorium on CW production had resulted in a significant loss of the Corps’ prestige and resources. It had a strong institutional interest in a continued funding of the CW program and consistently opposed any constraints on chemical arms production. in charge of the day-to-day management of the chemical arsenal, the corps also had concerns about safety issues. Many of the older CW were in poor condition and their continued storage was dangerous. Especially risky were the M55 rockets: their stabilizer could deteriorate, causing 11 the propellant in the munitions to self-ignite. The Chemical Corps had been experimenting with a new generation of chemical weapons, so-called binary munitions. Its first attempts to develop binary weapons dated back to the 1950s and by 1963 a prototype had been completed. Even during the moratorium it had not entirely stopped its research on binary systems. Binary munitions consist of two relatively harmless chemical precursors that are initially kept separate. Upon detonation, they are allowed to mix and react to form a toxic chemical. For its proponents, one major advantage of this principle was that chemical munitions could be stored and transported much more safely, with less risk of an accidental release. The new technology was supposed to address some of the concerns of populations living in the vicinity of storage facilities. Its proponents hoped that this more “sophisticated” design would avoid some of the stigma generally associated with chemical weapons.

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In the debate on chemical weapons, the Chemical Corps had an influential voice. Independent experts were scarce and few persons outside the Chemical Corps had the necessary know-how to question the unit’s assessments. Other government agencies relied on its expertise 12 (Lyons 1981: 40). When former members of the Chemical Corps changed to other government positions, they usually brought their mindset and their fascination with chemical technology with them. Faced with an aging unitary stockpile and powerful institutional interests within the US military, the hawkish Reagan administration ended the moratorium and requested funding for the binary CW program within its first year. This decision preceded any deliberation on how to proceed at the Conference on Disarmament, where negotiations on the CWC had stalled. However, in order to receive the funding necessary to resume CW production, the administration needed congressional approval. A Congress Critical of CW

Congress had been consistently critical of chemical weapons, ever since their production was first halted at the end of the 1960s. The 97th Congress, elected the same year as President Reagan, was no different. The Democrats held the majority in the House of Representatives. The Republicans controlled the Senate with 53 to 46 seats (one senator was independent), but not all Republicans supported the administration’s position on chemical weapons. Throughout the Cold War positions on arms control and how to deal with the Soviet Union were not determined 13 by party affiliation. The so-called „Scoop Jackson Democrats”, named after Senator Henry M. “Scoop” Jackson from Washington, were liberal 14 on domestic issues, but hawkish on foreign policy. Conversely, a number of Republicans supported arms control measures. Two of the more conservative Republicans in the Senate, Thad Cochran and Nancy Kassebaum, had joined 10 other senators from both parties in writing a letter to John Tower on 12 March 1982 to express their belief that the production of binary weapons was not necessary for national security and that the Soviet threat could be addressed through defensive measures. Members of the Armed Services Committees in both chambers were more supportive of binary weapons than Congress as a whole, irrespective of party affiliation (Hornblower 1982). For two years in a row, the administration failed to convince Congress to fund the binary weapons program. In February 1982, the White House requested over 30 million dollars to produce the M687 projectile containing the nerve agent Sarin. In the vote on the fiscal year

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1983 defense authorization bill, the measure barely passed the Senate (49-45), but was defeated in the House. In the conference committee the House version prevailed. In the vote on authorizing the production of the M687 for fiscal year 1984, 17 Republicans voted against the measure, while 14 Democrats voted for it (Dewar 1983). With two senators absent, it passed only because Vice President George H. W. Bush cast the tie-breaking vote in favor and the conference committee kept the item (Pincus and Dewar 1983). In deciding about the defense appropriations bill, the House once more rejected funding for chemical weapons, with conservative Republican Ed Bethune joining the Democrats in opposition (Tucker 2007: 245-246). Once again, the Senate approved funding for binary munitions with the vote of Vice President Bush, but it was defeated in the conference committee. The CWC Negotiations and the Question of Binaries Become Linked

In 1984 the Reagan administration adopted a new argument in favor of chemical weapons. At a meeting of the Conference on Security and Cooperation in Europe (CSCE) in Stockholm, Secretary of State George Shultz announced a “two-track” policy (Tucker 2007). The reasoning was that the Soviet Union would never agree to destroy their chemical weapons as long as it had an advantage. The binary program was thus needed as an incentive for the Soviets to negotiate in good faith about chemical disarmament. President Reagan reiterated this point during a press conference on 4 April 1984, and a number of administration officials like ACDA Director Kenneth Adelman and Deputy Director of Multilateral Affairs Richard Milton, who was in charge of overseeing the negotiations at the Committee/Conference on Disarmament, echoed this message during congressional hearings (U.S. House of Representatives 1985: 75-77). The logic on CW was similar to the approach NATO used with 15 intermediate range nuclear forces. In the 1979 double-track decision, NATO had decided to counter the deployment of Soviet SS20 rockets aimed at the West by stationing Pershing II and Tomahawk ground launched cruise missiles in several European NATO states. As an alternative to the deployment, NATO offered the Warsaw Pact a socalled “zero option” that would allow both sides to disarm their respective intermediate range nuclear missiles (Risse-Kappen 1987, 1988). In an approach similar to that taken with nuclear missiles, Washington wanted to force the Soviet Union to disarm their chemical weapons by matching their capabilities and thus eliminating the military advantage of having chemical weapons.

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But the official reasoning that binary systems were needed to achieve progress in the arms control negotiations was only part of the story. While the administration claimed publicly that the modernization of the US chemical arsenal was needed to get the Soviets to give up their chemical weapons, internally the rationale was the other way around: To convince Congress to approve the production of new chemical weapons, it was necessary to make a visible attempt at progress toward negotiating a chemical weapons convention. Voting “for chemical weapons” was unpopular, and even those in favor of binary systems could only do it under the political cover of advancing a CW ban. In fact, the push for progress on the CWC was the result of a deal struck between the White 16 House and Congress in November 1983. In exchange for the Senate Democrats providing the votes necessary to achieve a majority for binary production, the White House promised to have the existing unitary weapons stockpile destroyed and to start seriously negotiating a Chemical Weapons Convention. Controversy within the Administration

To comply with the demands from Congress, the State Department and ACDA tried to achieve progress at the Conference on Disarmament. In 1983, the ACDA took the initiative and presented some key elements for a potential chemical weapons treaty in Geneva, including new ideas about the nature of the verification regime. Instead of simply letting Ambassador Fields, the head of the US delegation to the CD present these suggestions, the ACDA asked Vice President Bush to travel to Geneva and present the US proposal. The Vice President had taken a personal interest in the effort to ban chemical weapons. When, in 1983, the State Department was looking for someone with a higher profile to present new elements of the treaty to the conference, Robert Mikulak from the ACDA suggested Bush, 17 who immediately agreed. The idea of proposing a draft text for the Chemical Weapons Convention was born in the State Department. Richard Burt, assistant secretary of state for European and Canadian Affairs had suggested that the United States could announce its intention to present a draft treaty at the Stockholm meeting of the Conference on Security and Cooperation in Europe (CSCE) in January 1984. The step was intended to demonstrate to Congress and Washington’s allies in Europe that the administration was serious about negotiating a chemical weapons convention. Secretary of State George Shultz liked the idea and made

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the announcement, with the approval of National Security Advisor John 18 Poindexter. The suggestion of a draft treaty was controversial within the administration. The Pentagon was strongly opposed and tried to get President Reagan to overrule the State Department. Especially the more hawkish defense officials saw CWC negotiations as a means to satisfy Congress, but did not support any steps that actually brought the United States closer to a treaty. Richard Perle, assistant secretary of defense for international security policy, expressed a typical mindset in Reagan’s Pentagon when he explained to a reporter (Hiatt 1985): The sense that we and the Russians could compose our differences, reduce them to treaty constraints, enter into agreements, treaties, reflecting a set of constraints and then rely on compliance to produce a safer world – I don’t agree with any of that.

In two NSC meetings, Weinberger tried to change the president’s mind about the idea of proposing a draft treaty. But on the question of proposing a draft treaty, Adelman sided with the State Department, because he saw it as the only way to get Congress to fund the binary program (Adelman 1989: 258, 2003: 34). Again, Adelman managed to recruit Vice President Bush to present the draft treaty at the CD. The vice president’s enthusiasm helped tilt the hesitating president toward approving the introduction of a draft treaty. On the question of verification, Adelman joined Weinberger in calling for tough inspections and enlisted CIA Director William Casey to support those expressing concern about the treaty’s verifiability. After failing to kill the treaty idea, Richard Perle argued for the inclusion of a provision for mandatory challenge inspections “anytime, anywhere” and convinced Weinberger as well as the Joint Chiefs of Staff (Hiatt 1985). It seemed clear at the time that the Soviets would not accept such a proposal. In fact, the US government, especially the intelligence community, was not prepared give foreign inspectors access to their own sites. Perle’s proposal was meant to prevent further progress on the CWC, and Adelman went along with it, although he recognized it for the political maneuver that it was (Adelman 1989: 258). The State Department had concerns about appearing insincere, but was overruled. As Michael Krepon (1992: 81) put it: “By demanding extreme challenge inspections rights, the Reagan administration could capture the moral high ground, domestic critics could be placed on the defensive, and the CW negotiations could be stalled – all positive outcomes in the view of the convention’s opponents.”

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Even though the proposal of mandatory anytime, anywhere inspections had been made largely for domestic reasons and to score propaganda points against the Soviet Union, with the intention to stall – not advance – negotiations, it became a blueprint for the Chemical Weapons Treaty. When George H. W. Bush presented the draft treaty to the CD, it became the basis for further discussions (Mahley 1994). While this “rolling text” constantly evolved as the delegations negotiated, the challenge inspections remained in the draft. The unprecedented intrusiveness of the CWC’s verification regime was an unintended consequence of a cynical political maneuver. The Short-Lived Renaissance of Chemical Weapons

In 1985 the Reagan administration finally secured funding for the binary program in the fiscal year 1986 defense budget. Previously, the White House had stepped up its campaign to win over Congress. A number of Pentagon officials – including the manager of the binary program Robert Orton, US Under Secretary of the Army James Ambrose, his deputy Amoretta Hoeber and Chemical Corps Chief Major General Gerald Watson testified before the Armed Services Committees of both houses of Congress. Two expert panels – the Presidential Chemical Warfare Commission and a group of retired generals and admirals under General Frederick J. Kroesen – endorsed the program. The former argued that 19 the deployment of binaries would be conducive to CWC negotiations. The Kroesen report emphasized that the existing stockpiles were 20 inadequate for use as a deterrent (Tucker 2007: 263). With this campaign the administration managed to swing enough votes in both chambers to win approval for binary funding. In the vote on the fiscal year 1986 defense authorization bill, the Senate approved the administration’s request of 163.5 million dollars in full. In the debate about an amendment introduced by Senator Pryor to remove the funding for binaries, supporters of the binary program referred extensively to the conclusions of the Chemical Warfare Commission and the Kroesen report (Congressional Record 1986). The amendment was defeated by a vote of 50 to 46 and the production of both M687 artillery shells and the Bigeye bomb was approved. In the house the lobbying campaign had also won over the necessary votes and the request passed by a vote of 229 to 196 (Roberts 1985; Shapiro 1985). According to Republican John Porter, one of the leading opponents of the binary program, the White House campaign had been particularly successful among the 30 freshmen Republicans. 28 of the 30 who had not previously voted on the issue ended up voting in favor of binary weapons. The retirement of

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leading CW critic Representative Bethune, who with his conservative and pro-defense credentials had given cover to other critical House 21 members, was also a factor. On 25 July, the Conference Committee approved 124.5 million dollars for the modernization of chemical weapons in the authorization bill (Weisskopf 1985b). In December 1985, the conferees of the House Appropriations Committee agreed to the Senate’s request for 21.7 million dollars in the appropriations bill to begin production of binary weapons (Fuerbringer 1985). After three consecutive years of refusing to end the CW moratorium, Congress finally approved the production of binary systems. In December 1987, the United States began the production of binary weapons (Tucker 2007: 264). Reagan’s Second Term

The second half of the 1980s brought a marked improvement in USSoviet relations. The dynamic began to change after Mikhail Gorbachev became the general secretary of the Communist Party of the Soviet Union in March 1985. Although the Reagan administration initially remained skeptical of the new Soviet leader, the next years brought a notable improvement in the atmosphere between the superpowers. Between 1985 and 1988 four direct summit meetings took place between the heads of state, in which significant progress on a range of 22 arms control issues was made. Meanwhile, developments in the Middle East provided the international community with a new sense of urgency to conclude the CWC. For the first time in almost two decades chemical weapons were 23 employed in warfare, as part of the Iran-Iraq war. Iraqi leader Saddam Hussein had first used CW against Iranian forces in March 1984. Iran reacted by launching its own CW program, after the international community failed to support Iran and only halfheartedly condemned Iraq. Saddam Hussein’s use of nerve agents against the Kurds in the Northern town of Halabja – an incident well documented by NGOs and the media – provided a terrifying example of the effects of chemical weapons (Tucker 2007: 256, 282). The ongoing use of CW showed the ineffectiveness of the Geneva Protocol and served as a reminder to the international community that chemical warfare was not a phenomenon of the past. In the 1986 elections the Democrats defended their majority in the House and took back control of the Senate. They picked up enough Senate seats to bring their total to 55. Under unified Democratic control, the 100th Congress resisted efforts by the executive perceived to

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undermine arms control, such as the administration’s attempts to reinterpret the Anti-Ballistic-Missile (ABM) treaty or pursue the Strategic Defense Initiative (The New York Times 1987). Reagan Warms to the Soviets

During President Reagan’s second term his approach to the Soviet Union gradually softened. The atmosphere during the Geneva summit in 1985 was still characterized by wariness on both sides, but over the course of the next summits Reagan warmed considerably to General Secretary Gorbachev. Gorbachev’s personal style was very different from that of his predecessors, and he and Reagan got along well (Adelman 2003). Reagan became increasingly convinced that the changes in the Soviet approach were not only rhetorical. Not everyone in the administration shared this view. The defense hawks regarded the Soviets’ cooperative behavior suspiciously. 24 Secretary Weinberger in particular distrusted Gorbachev. In November 1985, Weinberger wrote to President Reagan advising against concluding new arms control agreements with the Soviets, because they had not fully complied with the provisions of SALT II (Pincus 1985). Many of the hawks agreed, including Richard Perle and his deputy Douglas Feith (Bowman 1987; Hiatt 1985). Nevertheless, Reagan’s second administration was marked by a decidedly different approach toward arms control. Although Reagan was not interested in the tedious details of arms control negotiations, he became invested in achieving results. When Frank Carlucci became National Security Advisor in January 1987, following the Iran-Contra scandal, he became a pivotal player in the White House decision-making 25 process. Since Reagan did not like adjudicating disagreements between his cabinet members, Shultz, Weinberger, and Carlucci tried to achieve consensus whenever they could. In cases of conflict between Weinberger and Shultz, Reagan usually went with Carlucci’s recommendation (Carlucci 2002: 33). The looming fiscal crisis in the United States encouraged tendencies toward détente and weakened arms control opponents within the administration. By the end of 1987, the gulf between Reagan’s policy and the hawks had become so wide that Caspar Weinberger resigned as Secretary of Defense, taking Richard Perle with him. Carlucci was named Weinberger’s successor, and his deputy Colin Powell became National Security Advisor. Despite his close relationship with Weinberger and the same general outlook, Carlucci was more pragmatic and willing to support Reagan’s change from confrontation to negotiation with the Soviet Union (Carlucci 2002:

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28). Reagan nominated Richard Perle’s deputy Frank Gaffney, Jr. to succeed Perle as assistant secretary of defense for international security policy. But after seven months as acting assistant secretary, the Democratic Senate blocked his appointment because of his hard-line views. Progress in Geneva

The November 1985 summit in Geneva gave new impetus to the negotiations. At the summit Reagan and Gorbachev talked about cooperating against proliferation of chemical weapons and accelerating the negotiation of a chemical weapons convention (Bowman 1987). Over the course of the following CD sessions in 1986, the Soviets agreed to a number of Western demands (McCartney 1986). They accepted on-site inspections at chemical sites, albeit demanding some rights to refuse inspections under certain circumstances. They also agreed to the West’s approach of outlawing specific chemical agents rather than relying on very general definitions. The US government was the first to disclose information about its chemical stockpiles and storage locations to the CD on 10 July 1986 (ACDA 1992). In an important concession Gorbachev announced on 10 April 1987 that the Soviet 26 Union would cease production of chemical weapons. At the same time, confidence-building measures continued. From 3-4 October of the same year, international experts visited Shikhany in Russia to see the range of Soviet chemical munitions and were shown a demonstration of the destruction of a chemical bomb. On 19 November 1987 a Soviet delegation visited a chemical facility in Utah. These developments led the CD chairman to declare on 28 August 1987 that the draft treaty contained the most important elements needed for concluding a successful convention (Krell 1988). At this stage, the fast pace of changes in the Soviet position caught the United States off guard. In an unexpected move, Soviet Foreign Minister Eduard Shevardnadze announced on 6 August 1987 that the Soviet Union was ready to accept mandatory challenge inspections without the right of refusal (Tucker 2007). The announcement exposed the proposal presented by Vice President Bush in 1984 for the political maneuver it had been. Not prepared to open its military facilities to international inspectors, the United States was left to look for ways to backtrack from its own proposal. Yet the confidence building measures and information exchange continued. In a speech at the Conference on Disarmament on 28 July 1988, Reagan’s last year in office, Ambassador Friedersdorf, head of the

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American delegation, disclosed the locations of all American chemical weapons facilities and presented plans for dismantling them and destroying the chemical stockpile. From 21-23 February a trial inspection of an industrial facility was conducted at a DuPont chemical plant in New Jersey (Tucker 2007: 292). Still, the question of challenge inspections held up the negotiations in Geneva. It was left to George H. W. Bush to find a solution to this problem when he assumed office in 1989. George H. W. Bush’s Presidency and the Conclusion of Negotiations

The Presidency of George H. W. Bush gave a new impetus to the negotiations. In some ways, Bush was better positioned than his predecessor to conclude the treaty. He proved apt at dealing with the waning Soviet Union and seized the opportunities created by the end of bipolar confrontation. The hardline ideologues that had opposed arms control treaties in the Reagan administration were less influential in Bush’s cabinet. Instead, his top advisers and cabinet officials approached negotiations pragmatically. Bush also cared enough about the CWC to make its conclusion a priority of his term. The International Context

When Bush assumed office in early 1989, it was obvious that change in the Soviet Union was fundamental and that the improvement in USSoviet relations was more than a temporary episode. Bush’s own perception of these changes is expressed in an unclassified National Security Directive called “United States Relations with the Soviet Union” that Bush (1989a: 4) issued on 22 September 1989: The character of the changes taking place in the Soviet Union leads to the possibility that a new era may now be upon us. We may be able to move beyond containment to a U.S. policy that actively promotes the integration of the Soviet Union into the existing international system. The U.S.S.R. has indicated an interest in rapprochement with the international order and criticized major tenets of its own postwar political-military policy. At the same time, the United States will seek verifiable arms control agreements with the Soviet Union and its allies. Arms control is not an end in itself and cannot take the place of robust military forces. The

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Unites States Government will ensure that our arms control proposals are consistent with our overall defense strategy.

The fall of the Berlin Wall two months later confirmed the beginning of a new era. With the dissolution of the Soviet Union, the Cold War effectively ended. These changes affected the negotiations in Geneva. Up to this point, the delegations negotiating at the CD had been divided into three groups: the Western group including Australia and Japan and led by the United States, the Eastern Group consisting of all Warsaw Pact members under Soviet leadership, and a group of 21 non-aligned countries from around the world. The disintegration of the Warsaw Pact allowed the newly emerging states in Eastern Europe and Central Asia greater flexibility in determining their positions. Some of the young emerging democracies were receptive to arguments from the Western Group, breaking up the bipolar constellation. Other countries contributed to an atmosphere conducive to negotiating. At a conference in Paris on 11 January 1989, 149 states reaffirmed their support for the norms of the Geneva Protocol at a Conference in Paris and called on the Conference on Disarmament to conclude a convention as soon as possible (Müller 1993). On 5 September 1991, Argentina, Brazil, Chile, and Uruguay concluded the Mendoza Agreement, renouncing the use of chemical and biological weapons, which led to a growing recognition that the time was ripe for a concerted effort to conclude a treaty. The United States continued to show willingness to compromise. The 1991 Iraq war and the fear that Saddam Hussein might once again resort to chemical weapons convinced smaller countries of the feasibility of joining the convention (Müller 1993: 329). It demonstrated that, even as the risk of super-power confrontation declined, an arms control treaty would be anything but futile. It also changed the costbenefit equation of chemical weapons for developing countries. Saddam Hussein’s chemical program had added to his reputation as an international pariah, but had not deterred the US-led coalition from invading Iraq. The widely held notion of chemical weapons as the “poor man’s atomic bomb” gave way to the realization that the deterrent effect and military utility of chemical weapons had been overrated, creating new incentives for states to join in the effort to outlaw them.

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A Moderate Administration and a Democratic Congress

Most of Bush’s top foreign policy officials were veterans from previous Republican administrations. Secretary of State James A. Baker III had served as President Reagan’s chief of staff. Not a member of Reagan’s “California mafia,” he was one of the more moderate voices in the Reagan administration. After failing to win Senate approval for the appointment of John Tower, Bush nominated Richard Cheney as secretary of defense. For most of the 1980s, Cheney had been a member of the House of Representatives, rising to the position of Republican whip in the 1988 elections (Mann 2004: 169). His record also included extensive experience in the executive branch. He had served in the Defense Department during the Ford administration, and even though he was not part of the Reagan bureaucracy, he had participated in a clandestine program designed to respond to a nuclear attack by the Soviet Union. Although Cheney’s hard line views were not as pronounced at the time as they are today, he continued the tradition of a hawkish Pentagon. He was supported by Paul Wolfowitz, who took over as undersecretary for policy, the number two policy-making post in the Defense Department. With many officials remaining on board and the same basic constellation between a moderate State Department and a hawkish Defense Department, there was considerable continuity between the Reagan and the Bush administrations. Besides the changes in the Soviet Union, there were three reasons why the Bush administration showed more leadership on the Chemical Weapons Convention than the Reagan administration had. The first reason was Bush himself. The CWC, in particular, had been his project from early on and, even though he had been a loyal member of the Reagan cabinet, he never shared the hawkish ideological outlook of most of Reagan’s team. The second reason was that Brent Scowcroft, his national security advisor, was decidedly more moderate than those who had occupied the post under Reagan. Bush, Scowcroft, and Secretary of State James Baker worked closely together in formulating the policy of the turbulent transition period at the end of the Cold War. Despite the continuity, the balance shifted slightly in favor of arms control. As President Bush (1989b) declared in a National Security Directive titled “Chemical Weapons Arms Control Initiatives” from 26 September 1989: I have determined that the United States must take new initiatives in the area of CW nonproliferation and arms control to accelerate agreement in, and implementation of, a global ban on the production, storage, and use of chemical weapons and agents. These initiatives will

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build on the progress already made in negotiations on the chemical weapons convention in the Conference on Disarmament, supplemented by our bilateral discussions and prospective CW Memorandum of Understanding with the Soviets.

The third reason was Congress. After both houses had switched to Democratic control, Congress became even more critical of any plans to modernize the chemical weapons arsenal. It therefore closely followed the technical issues surrounding the development and production of the M687 and the Bigeye Bomb. Neither the Pentagon nor the administration as a whole were ready to abandon their plans to build binary weapons. The main difficulty in the years leading up to the conclusion of the CWC was how to reconcile US plans for binary systems with negotiating a universal ban. The more the Soviets were willing to make concessions, the more difficult it was to sustain the argument that binary weapons were needed to incentivize the Soviets to negotiate. Giving Up the Security Stockpile

The administration continued to push for a treaty in Geneva, while at the same time pursuing a parallel track of bilateral chemical arms reduction talks with the Soviet Union. The bilateral and the multilateral track were closely linked, and multilateral progress continued to depend on compromises between the two superpowers. The main controversies within the administration focused on two issues. The first was the question of how much access inspectors should have. The issue had been on the table since Gorbachev had agreed to the principle of mandatory challenge inspections in 1987. The second question was whether, and under what conditions, the United States would be allowed to maintain a security stockpile of chemical arms after the treaty would go into effect. This question had direct consequences for the binary weapons program. The official US position at the outset of the Bush administration was that the United States would retain a limited stockpile of chemical weapons as a deterrent until all countries capable of producing chemical weapons had joined the treaty. This security stockpile was to consist of the binary systems that had been approved by Congress. But progress on the production of binary weapons was slow, and the Pentagon was worried that the United States would not manage to complete the modernization before joining the CWC.

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On 23 September 1989, Secretary of State James Baker and his Soviet counterpart Eduard Shevardnadze signed a memorandum of understanding – known as the Wyoming MoU – agreeing on institutionalized data exchanges about their respective chemical weapons programs. The agreement laid out two phases, the first phase involving the sharing of more general information and mutual visits of chemical facilities, and the second phase with more detailed information exchanges and actual inspections to verify the declarations (Federation of American Scientists 1989). Two days later, on 25 September, President Bush announced a major initiative in a speech before the United Nations (Bush 1989c). Under what came later to be known as the “two-percent solution”, he announced that if the Chemical Weapons Convention came into force and the Soviet Union became a party, the United States was willing to reduce its stockpiles to two percent of its current levels. It would keep the remaining two percent as a deterrent until all states capable of producing chemical weapons had joined the convention and then destroy it within two years. Until the completion of the convention, the United States would work with the Soviet Union to conclude a bilateral agreement to reduce their respective arsenals to equal levels of 5000 tons each – twenty percent of the US stockpile at the time (Lehman 1992: 3). While the Bush administration sold the two-percent solution as a major step forward, it did not change existing policy much. Congress had already made the destruction of the existing unitary weapons a condition for its approval of binary weapons. The suggestion for both sides to cut their stockpiles to 5000 tons amounted in practice to deeper cuts for the Soviet Union, whose initial arsenal was much larger (Dowd 1989). The proposal had been designed to accommodate existing plans for the binary program. Three weeks after the speech at the United Nations, administration officials told The New York Times that President Bush had retained the option of producing new chemical weapons even after the treaty would go into effect. The Pentagon wanted to ensure that it could complete the production of the Bigeye bomb, even if it was not finished before the conclusion of a treaty. The State Department was critical of this position because it contradicted provisions in the treaty that the US delegation had already approved at the CD (Gordon 1989). Congress also opposed the move. In an editorial in The Washington Post, House Foreign Affairs Committee Chairman Dante Fascell (1989) sharply criticized the policy, noting that it would legitimize further proliferation.

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In spite of this controversy, Bush’s suggestions were picked up in US-Soviet negotiations. In December 1989, Bush met with Gorbachev and agreed that the CWC could enter into force even before all states capable of producing chemical weapons had signed it. On 11 February 1990, James Baker and Eduard Shevardnadze issued a joint statement. It contained the following three points (The Washington Post 1990): • • •

The United States and the Soviet Union would work towards resolving the outstanding issues and quickly conclude a chemical weapons convention. At the same time, both sides would conclude a bilateral agreement committing to substantially reducing their chemical weapons stockpiles to equal levels. They further agreed that, after concluding the CWC, they would further reduce their stockpiles to a small fraction of their holdings at the time.

Just like Bush’s proposal at the United Nations, the statement did not preclude the parties from retaining a security stockpile or even producing new CWs. But the Soviet Union was only prepared to agree to the asymmetric cuts under the condition that the United States gave up the production of binary weapons. Like the Soviets, other member states at the CD, including America’s European allies, were critical of the proposal, which would have set a double standard by allowing the superpowers to retain chemical weapons while preventing others from acquiring them. Even worse, it encouraged proliferation by providing an incentive for others to acquire chemical arms before joining the treaty – the opposite of the desired effect. The State Department and the ACDA faced accusations of hypocrisy in Geneva and relayed their concerns back to the administration (Congressional Record 1990b). In the end, technical problems sealed the fate of the binary program. The development of the Bigeye bomb was plagued with problems since testing began in 1978. The scientists at the Chemical Corps had not been able to come up with a design that allowed the bomb to both be delivered safely and be militarily effective. The extreme temperatures associated with flying at high altitudes also caused problems. Several reports by the General Accounting Office alerted the legislative branch to the difficulties, adding fuel to the criticism from an already skeptical Congress. In particular Congressman Fascell and Senator Pryor used the failures in testing to argue against the binary program (Weisskopf 1985a; Wilson 1986). Even more embarrassingly, in 1989, a year and a half after the start of production, the Chemical Corps ran out of the

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precursor chemicals for the Sarin needed to fill the M687 binary shells (Tucker 2007: 290). The supply of a chemical known as dichlor, the chemical basis for the difluor that was one of the components in the Sarin projectile, was exhausted.27 A factory intended to produce dichlor had not yet been completed. Attempts to buy an agent necessary for dichlor production on the private market failed when the only two American companies able to supply the chemical – Occidental and the Bayer-owned Mobay – refused to sell. Whether out of conviction or fear of negative publicity, the refusal of these firms to contribute to CW production led to a delay in proceeding with a binary weapons program. Even though the Chemical Corps was not ready to concede and even asked the administration to force the companies to supply the dichlor as a matter of national security, it eventually lost the fight. Both the United States and the Soviet Union were eager to conclude a bilateral destruction agreement before the Washington summit in June of 1990. During intense negotiations in Moscow leading up to the summit, State Secretary Baker finally agreed on 8 May 1990 to give up the binary program in exchange for the asymmetric cuts (Tucker 2007: 295). The Bilateral Destruction Agreement between the United States and the Soviet Union was signed on 1 June 1990, during a summit between the two leaders in Washington. It prohibited any production of new chemical weapons and included reductions of the existing stockpiles to 5000 tons. The cuts were subject to a verification regime including onsite inspections (Bernauer 1993: 3; Lehman 1992: 3). The Bilateral Destruction Agreement thus exceeded the degree of verification agreed upon in the INF treaty by establishing intrusive on-site inspections, an important principle for the CWC. It also ended the American binary program for good. Support from the Chemical Industry

It is hard to overstate the importance of the US chemical industry’s 28 support for the conclusion of the convention. After the military’s interest in chemical weapons had waned, the chemical industry became the main institutional stakeholder in the outcome of the negotiations. Because of the issue of dual-use chemicals, the civilian chemical industry would be affected most by the regulations of oversight and verification. The ratification of the 1925 Geneva Protocol had been prevented at the time by an alliance of the Chemical Warfare Service and the chemical industry. However, in contrast to the 1920s, chemical weapons production was not an important source of revenue anymore. The

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chemical industry expected to improve its image by dissociating itself from the production of chemical weapons. Some companies had been implicated in export scandals for providing the regimes of Iraq and Iran with chemicals, which were then used for the production of chemical weapons. As a result, the international climate for trade with chemicals had deteriorated, and companies faced restrictions on international trade with a whole range of dual use chemicals (Bernauer 1993: 64; Carpenter 1993: 117). These experiences caused them to refuse to supply precursor chemicals for binary production to the government. Even given the industry’s focus on civilian production, support for the CWC could not be taken for granted. Any industry is wary of supervision and regulation, and the CWC placed significant burdens on chemical manufacturers. Under the convention, manufacturers of chemicals had to provide detailed documentation and records of their activities. The companies were required to establish new structures and procedures to make oversight possible. Additional costs resulted from the inspections, which required resources in personnel and potentially slowed down or interrupted the production process. The most important concern for the chemical industry, however, was the protection of industry secrets. Even in retrospect the industry’s endorsement of the convention is remarkable (Carpenter 2000). Some far-sighted industry representatives had come to the conclusion that they could benefit from constructively engaging in the negotiations and having a say in the design of the treaty. Especially the Chemical Manufacturers Association (CMA), the largest business association, spent considerable resources to advance the goal of concluding a convention. Industry representatives cooperated closely with negotiators and government officials in hammering out the details of the convention. Industry cooperation with the Arms Control and 29 Disarmament Agency dated back to 1978. Over the years, CMA provided information to the ACDA, the Departments of State, Defense, and Commerce, and the National Security Council, and collaborated with the Stockholm International Peace Research Institute (SIPRI), the Pugwash Group, the Federation of American Scientists, and other chemical trade associations from around the world (Carpenter 1993, 1994: 29). In October 1987, the Board of Directors of the CMA, which represented about 90 percent of the producers of chemicals in the United States, announced its support for the CWC, including on-site inspections (Bernauer 1993: 64). Once on board, industry support proved to be an invaluable asset. The know-how of experts from private industry helped develop practical solutions for numerous technical problems in connection with the

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inspections. Some companies also hosted trial inspections designed to further refine the detection of forbidden activities while protecting confidential information. Not only did the industry refrain from lobbying against the convention, but also actively supported the idea. When the treaty was submitted to the Senate for ratification, the chemical industry advocated ratifying the treaty. The Endgame in Geneva

With the impasse between the superpowers removed, attention shifted to the multilateral arena (see Bernauer 1993; Müller 1993; Smithson 1991, 1992b; von Wagner 2000). In May 1991, as negotiations for the Bilateral Destruction Agreement were being concluded, President Bush launched an initiative, urging the negotiating parties to conclude negotiations by the end of 1992 (Smithson 1992a: 11). To achieve this, Bush was prepared to make another major concession. On 13 May 1991, he announced that under a chemical weapons convention the United States would be willing to destroy all its chemical weapons and not use chemical warfare under any circumstances. With this declaration, the United States gave up the right to retaliate in kind if attacked by chemical weapons (Lehman 1992: 6). This change of position opened the way for a truly universal ban on chemical weapons. Two major challenges remained. One was to convince the developing countries in the non-aligned group of the treaty’s merits. They had to shed the idea of chemical weapons as the “poor man’s atomic bomb” and be reassured that the convention would not hinder their access to chemical agents for civilian uses. These concerns were eventually addressed in Articles 10 and 11 of the final treaty. In Art. 10, the parties to the convention commit to supporting one another against chemical attacks. Art. 11 emphasizes the fact that the final treaty shall not hamper economic and technological development. The other difficulty concerned the exact nature of the challenge inspections. This issue had been pending ever since Shevardnadze had agreed to “anytime, anywhere” inspections in 1987. After the conclusion of the Bilateral Destruction Agreement, the controversy regarding challenge inspections shifted from a stand-off between the United States and the Soviet Union to a conflict within the Western group, as other Western countries showed little sympathy for US attempts to water down its own proposal. The envisioned inspections regime was based on classifying chemical facilities according to the three “schedules.” Schedule 1 covered the most dangerous chemicals that had known uses for chemical weapons. Schedule 2 chemicals included key precursors, and Schedule 3

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were the so-called dual-use agents that had civilian as well as military uses. Facilities producing chemicals under any of those schedules would have to record and declare their activity, and would be subject to routine inspections to verify the accuracy of the declarations. In addition, there was the possibility of challenge inspections of sites suspected of secretly producing chemical weapons. Great Britain had begun to look for a way to reconcile concerns regarding confidential information and inspections requirements by developing a concept of “managed access” (Smithson 1991: 24). Inspectors would be allowed investigate a site and look for evidence through various technical means, while some equipment could be shielded from their view. On 15 July 1991, the United States, with the support of the United Kingdom, Australia, and Japan, presented a proposal that significantly weakened the original conception of “managed access” (Lehman 1992: 9; Smithson 1991: 23; Tucker 2007: 401). Under the new proposal, states were not required to grant inspectors access to the site, but could instead defer to “aerial inspection,” “inspection from an elevated platform,” or the use of sensors. In addition, the proposal effectively gave the host state the final word on the perimeter subject to inspection, in the event of a dispute between the inspectors and the host state. There was also the risk that forbidden materials would be removed from the site while the inspectors were waiting for access, since such negotiations could take up to a week. Another controversial issue was the role of the executive council in deciding whether a challenge inspection was valid and would proceed (Müller 1993: 331). The French delegation opposed the weakened proposal. After intense negotiations, a compromise was reached that allowed for a more stringent approach (Smithson 1992b: 10). At this point, President Bush was focused on winning re-election. Eager to conclude a treaty, he gave wide leeway to the ACDA in the negotiations (Smithson 1992a: 40). US negotiators worked closely together with the head of the German delegation, Adolf von Wagner, who had assumed the chairmanship of the CD on 21 January 1992. On 19 March, Australian Foreign Minister Gareth Evans presented a “model convention,” which formed all the provisions of the “rolling text” into a single consistent document. Even if the proposed solutions in the Australian draft were met with a mixed response, the German delegation 30 used the momentum to present its own chairman’s draft. It still entailed some unresolved questions, such as the composition of the Executive Council supervising the Technical Secretariat. The German chairman introduced some innovative negotiating procedures in order to incentivize compromise. First, he broke up the committee into several

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subgroups and conducted an extensive shuttle diplomacy between those groups. Second, he introduced a model according to which a delegation that rejected a certain aspect of the treaty text had to suggest an alternative able to generate consensus (Müller 1993; von Wagner 2000). This approach succeeded in generating a compromise document, which was then translated into a final text. On 7 August, negotiations on the substance of the convention were ended, even though some delegations still raised concerns. On 3 September, the CD passed the treaty text on to the UN General Assembly. After a further diplomatic offensive, the GA adopted by consensus a resolution that recommended signing and ratification to all UN member states (Müller 1993: 333). On 13 January 1993, 130 states signed the convention. As one of the last acts of his presidency (having lost his run for reelection), George H. W. Bush added the signature on behalf of the United States, ensuring that the United States was an original signatory. He left it to his successor to secure the Senate’s approval. The Clinton Administration and the Battle for Ratification

After the Conference on Disarmament had come to an agreement, the focus shifted to the domestic process of ratification. The Soviet Union, which had presented the greatest concern to arms control skeptics, no longer existed. While there was some concern that Russia would not meet the goals for the destruction of its chemical weapons, this was more a question of capability than willingness, and the United States and Russia cooperated to find ways of destroying their stockpiles. Of greater concern were the smaller countries, particularly in the Middle East. Some of the Arab states were demanding a comprehensive solution for weapons of mass destruction and conditioned their participation in the chemical weapons regime on Israel’s willingness to give up its nuclear weapons. Two Years of Unified Government: A Missed Opportunity

When Clinton took office in early 1993, securing Senate ratification for the CWC seemed like a formality. His administration was unified in supporting the treaty. The successful conclusion of the war against Iraq had convinced most in the military that chemical weapons were no longer needed. With the exception of the issue of riot-control agents, Secretary of Defense Les Aspin and the Joint Chiefs of Staff were on 31 board. Not only could the president rely on a Democratic majority in both houses, with his party holding 57 of the 100 seats in the Senate, but

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support of the CWC also extended well beyond the Democratic Party. The treaty had solid bipartisan credentials, having been negotiated by two Republican presidents, one of them an outspoken hardliner on defense issues. The Pentagon, the chemical industry, and the general public were also in favor. There were few signs of any significant opposition (Smithson 1996: 162). After Bush signed the treaty, it took the Clinton administration almost a year to submit it to the Senate, asking for advice and consent on 23 November 1993. In addition to the slow process of filling the large number of foreign policy positions in government, the crises in Bosnia 32 and Somalia required most of the attention devoted to foreign policy. Furthermore, in a rush to complete the treaty, the Bush administration had left some issues unresolved, and the interagency process proved time-consuming (Hersman 2000: 86). The first hearings conducted on the Chemical Weapons Convention generated little attention (Morrison 1994). Only Senate Foreign Relations Committee Chairman Claiborne Pell was present for the first testimony of Stephen Ledogar, head of the ACDA and chief US negotiator. A few weeks later, Secretary of State Warren M. Christopher testified in an appearance that lasted only half an hour, and spent as much time addressing North Korea’s nuclear policy as the CWC (U.S. Senate 1994). Further officials testifying in favor of the treaty included CIA Director James Woolsey and Joint Chiefs of Staff Chairman General John Shalikashvili (Smithson 1995: 173). The low profile of the CWC ratification process was deliberate in part. Apparently the Clinton administration believed that the less controversy the treaty generated, the better. As one administration official described it: “The strategy is to sneak this through, and that may be the right strategy, but it's a calculated risk. The danger is that because it is an extremely far-reaching treaty . . . it's possible that somebody wakes up and says, ‘Oh my God, what are we signing onto?’” (quoted in Morrison 1994: 1131). At the same time, the lack of interest on the administration’s side was somewhat genuine, as Clinton had stressed during his election campaign that his priorities lay with domestic issues. No one felt responsible for guiding the treaty through the complicated ratification process (Smithson 1995: 174). One of the early critics of the CWC was Frank Gaffney Jr. After his brief stint as acting assistant secretary of defense for policy following Richard Perle’s resignation and his subsequent rejection by the Senate, Gaffney had left government and founded the Center for Security Policy, a conservative foreign policy think tank. This one-man operation soon published an op-ed in The Washington Post, kicking off a

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campaign against the CWC. In the article Gaffney warned of the dangers of joining the CWC, but even he believed, at the time, the treaty would be ratified quickly (Gaffney Jr. 1992). Reflecting the general mood in the Senate, a Senate source said: “I doubt if Frank has much of a [Senate] constituency. Frank opposes all arms control treaties. We had planned to get rid of [our chemical arms] anyway, and now we can do it along with other nations.” (Morrison 1994: 1132) Even without much opposition, the optimistic expectation of having the treaty ratified before the Senate’s summer recess in July 1994 could not be met. One unresolved interagency controversy concerned the position regarding so-called riot control agents (RCAs). These are nonlethal chemicals like tear gas and other irritants used to break up crowds in the domestic realm. The military wanted to retain the option to use RCAs in combat, for example to rescue captured pilots or in situations when enemies used civilians as human shields, leading the Pentagon to argue with the National Security Council and State Department over the use of RCAs on the battlefield. When the Senate hearings began, the issue was still not resolved. In June 1994 JCS Chairman John Shalikashvili gave in to a more restrictive interpretation of the CWC. While this settled the issue within the administration, some among the JCS and in the military remained uneasy about the agreement. The Senate Armed Services Committee and its chairman Sam Nunn adopted the concerns of the military. Foreign Relations Committee Chairman Pell reacted by postponing the vote to the next congressional session to allow for sufficient deliberation of these concerns. One Senate staffer viewed “[t]he administration’s mishandling of the RCA issue [as] the primary reason that the CWC did not get ratified while the Democrats controlled the Senate.” (quoted in Hersman 2000: 88). Still, in the fall of 1994, prospects for getting Senate approval were the best they would be for some time to come: “But for 30 minutes of phone calls between the right people, this thing would have been ratified,” was how one State Department official characterized the situation (Smithson 1995: 177). In the run-up to the congressional elections, neither the administration nor the senators cared enough for a concerted last-minute effort to push the treaty through the Senate (Smithson 1995: 174; Smithson 1996: 162). Michael Moodie, who helped negotiate the convention as assistant director for multilateral affairs at the ACDA looks back: “They didn't invest enough capital in getting it done.” (Lippman 1995)

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After the Midterm Election: The Opposition Gains Strength

After Republicans took control of the Senate in the 1994 midterm elections, Clinton could no longer take support for the CWC for granted. In the Senate, Republicans picked up nine seats and, with an additional 33 seat through a party switch, now held a majority of 53 seats. Many of those new legislators – including some senators – had less experience and interest in foreign policy than the members of Congress socialized during the Cold War (Krepon et al. 1997; Walt 2000; Wilzewski 1998). While Senate Democrats continued to support the CWC, the Republican senators fell into two camps. A pragmatic internationalist wing led by Senator Richard Lugar continued to regard the CWC as an important step toward chemical disarmament. It included important voices on foreign policy like such as John McCain and – until her retirement – Nancy Kassebaum. But under the leadership of Jesse Helms and his colleague on the Foreign Relations Committee John Kyl, a group of skeptical senators emerged. The chairmen of all three committees responsible for national security issues were among the skeptics: Jesse Helms on the Foreign Relations Committee, Strom Thurmond on the Armed Services Committee and Richard Shelby on the Intelligence Committee (Parachini 1997: 64). Helms not only had a strained relationship with the Clinton administration, but also clashed with more internationalist Republicans. He had competed against Richard Lugar for the chairmanship of the Foreign Relations Committee and only won after Republican majority leader Bob Dole backed Helms’ claim based on seniority (Kirschten 1995). Many of the Republican senators initially did not take sides in the CWC debate, so Dole’s backing of Helms mattered. When Bob Dole resigned from the Senate to focus on his presidential campaign, Trent Lott took over as majority leader on 12 June 1996. Lott did not take a position on the treaty until days before the vote in 1997, but did little to prevent Helms from hijacking the treaty to advance his broader foreign policy agenda. Under these circumstances Clinton faced an uphill battle to secure the Senate’s consent on the CWC. With only 46 Democratic senators, the White House needed at least 21 Republican senators to reach the 67 votes needed for ratification, an impossible task without at least tacit agreement from the Republican leadership.

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The Opposition’s Rationale

Jesse Helms proved early on that he would not hesitate to use his procedural power as committee chairman to gain leverage on issues and 34 to make his mark on Clinton’s foreign policy. Whereas criticism of the CWC was presented in substantive terms, there was another rationale for holding up its ratification. Key Republicans used the process as a bargaining chip to gain influence on unrelated foreign policy issues, a practice known as “log-rolling.” In addition, the treaty fell victim to partisan heckling and electoral politics, as unfortunate timing meant that the first ratification attempt coincided with a presidential election campaign. Issue Linkages

Helms used his control over treaty ratification to overcome Congress’ limited role in foreign policy. The power of the purse allows Congress to weigh in during the process of authorizing mandates and appropriating funds for government agencies, but it is a blunt instrument. Helms wanted to significantly cut the State Department budget and reorganize the US foreign policy apparatus. His goal was to integrate the ACDA, the Agency for International Development (USAID), and the US Information Agency into the State Department (Kirschten 1995). The three agencies were widely seen as a relict from the Cold War that had 35 outlasted their purpose. More importantly, the agencies used their autonomy to pursue policies Helms disliked. The administration resisted his efforts to place the agencies directly under the control of the Secretary of State. Helms tried to force compliance by holding up a number of ambassadorial appointments and two treaties, the second Strategic Arms Limitations Talks Agreement (SALT II) and the CWC. The fate of the CWC became dependent on these wider issues. Electoral Politics

The first attempt to hold a vote on the treaty fell squarely into the hot phase of the electoral campaign for the 1996 presidential elections. Bob Dole, who had been the Republican majority leader before becoming the party’s presidential candidate, held out on positioning himself on the CWC for as long as he could. Eventually he came out against the treaty, mainly on the grounds that not all chemical weapons states were members (Hersman 2000: 93). Dole, who was behind in opinion polls, did not want to allow Clinton to have a major foreign policy success so

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close to the election. He used the issue to distinguish the Republican Party from the Democrats, resurrecting the old accusation that the Democrats were weak on national security and willing to enter into irresponsible arms control agreements. Dole’s criticism shifted the mood among Republican senators against the treaty, since they did not want to vote against their presidential candidate (Smithson 1997). Substantive Concerns

The substantive concerns of CWC opponents are difficult to dissect. On the one hand, they evolved considerably over time, with new arguments springing up as the discussion progressed. On the other hand, the criticisms ranged from concerns over specific provisions to a general hostility toward arms control treaties. They often contained an ideological component. Opponents not only constantly came up with new arguments against ratification, but also sometimes misrepresented 36 the positions of other actors to support their argument. In sum, there were three main concerns about the treaty: Issues of Universality, Verifiability, and Enforceability Opponents of the treaty argued that the CWC was not adequate to deal with the threat of chemical weapons. Jon Kyl (1997: 173) noted that by 1997, “nine of the 14 countries suspected of possessing chemical weapons [had] not even signed this treaty.” Making the membership of all states with CW capability a condition for US ratification would have postponed it indefinitely. Skeptics further argued that the treaty was not sufficiently verifiable, since even an elaborate inspections regime could not fully exclude the possibility of secret production of prohibited substances. In making this claim, they relied on testimony of the CIA directors James Woolsey and George Tennet, who testified that they did not have “high confidence” in the ability of the intelligence community to detect violations of the CWC (but did also say that the treaty provided an additional tool to detect CW production and that the United States was better off with the convention than without it) (Goss 1997: 197). Another criticism was the alleged lack of effective sanctions for violators (Kyl 1997: 173-175). Some also argued that relying on such a treaty would weaken preparations for defense against a chemical attack (Gaffney Jr. 1992; Schlesinger et al. 1997). Burdens on the Chemical Industry Ironically, some of the same people who saw the inspections regime as ineffective in preventing non-compliance also viewed it as too intrusive

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with respect to the US chemical industry. Although the Chemical Manufacturer’s Association (CMA) had been deeply involved in the drafting of the treaty and hardly anyone in the chemical industry spoke out against the treaty, concerns were raised regarding the strain placed on the industry. One point of criticism was the costs of the reporting requirements under the treaty and the burden of the inspections (Kyl 1997: 175). Another concern was the danger that industry secrets might be exposed in the inspections process (Schlesinger 1997: 189). Constitutional Concerns Another concern was that the inspections in the treaty might violate the fourth and fifth constitutional amendment against unreasonable searches and seizures of private property (Koplow 1993). The critics pointed to intrusive inspections and the removal of samples for testing as incompatible with the constitution. Although senators only brought up this argument late in the debate, it generated a strong controversy (Kyl 1997: 175). The constitutional argument tapped into a larger debate about the conformity of international treaties with the US Constitution. It sought to mobilize sovereigntist sentiments by implying a tension between the CWC and the Bill of Rights. The First Attempt at Ratification

Before the Senate could vote on the CWC, the Foreign Relations Committee, headed by Jesse Helms, had to report the treaty out of the committee. The Senate majority leader Trent Lott needed to agree to schedule a vote. And, because it was election season, the Republican presidential candidate Bob Dole had considerable influence over the voting behavior of his party. All three were critics of the CWC. When the supporters of the treaty began to move the treaty toward a vote in the second half of 1995, the ratification process was soon caught up in Jesse Helms’ agenda of State Department reform. Helms attempted to attach a State Department reorganization bill to the Foreign Operations authorization bill (Hersman 2000: 89). After Senate Democrats filibustered this maneuver in coordination with the White House, Helms retaliated by blocking action on the CWC and SALT II treaty, as well as a number of ambassadorial appointments. The standoff lasted for several months. In December 1995, after long and cumbersome negotiations, Democratic Senator John Kerry finally reached an agreement with Jesse Helms, which allowed for the CWC’s release from the committee by 30 April 1996. It was part of a larger deal on the controversial issues whereby the Democrats accepted

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cutting the State Department budget for the next five years by 1.7 billion dollars in return for going forward with the CWC and the SALT II treaties (Dewar 1995; Congressional Record 1995c). Even under the compromise, Helms only agreed to report the treaty out of the committee with 20 conditions attached, including some that would have made ratification dependent on universal membership, thereby effectively postponing it indefinitely. Richard Lugar, however, managed to assemble a bipartisan majority on the committee that voted against 37 Helms’ draft and for a more favorable resolution. The next obstacle was the new majority leader Trent Lott. Lott was in no hurry to schedule a vote on the Senate floor. Only by threatening to block any activity in the Senate, did the Democrats pressure Lott into agreeing to hold a vote before the election recess. On 28 June 1996, the Senate voted unanimously for a vote before 14 September of the same year (Smithson 1997: 9p). Beyond the committee, however, the opposition to the treaty had grown. The arguments circulated in the fax campaign by Gaffney’s Center for Security Policy had caught on. Former Defense Secretary Weinberger, together with former Defense Secretary Dick Cheney, UNAmbassador Jeanne Kirkpatrick, and former Attorney General Edwin Meese wrote a letter to the senators, advising against ratifying the treaty that had been negotiated during their tenures (Smithson 1997: 11). When Republican presidential candidate Bob Dole decided to oppose ratification, it was clear that the administration would not get the 67 votes necessary for ratification. In the process of trying to overcome or bypass the veto points, the treaty supporters lost sight of convincing the remaining senators of the merits of the treaty. Facing defeat, the Clinton administration asked the Senate to withdraw the treaty without a vote. The Second Attempt at Ratification

In the 1996 election Clinton won re-election and the Republicans retained control of the Senate. The president replaced Warren Christopher with Madeleine Albright as Secretary of State, who had been the head of the US delegation to the United Nations in the previous term. Albright made an effort to get off to a good start with Jesse Helms. The fact that new Secretary of Defense William Cohen had been a Republican senator before his appointment also helped. With a new congressional term, the tedious process of guiding the treaty through the Senate had to begin anew. The election season was over, facilitating a discussion of the CWC on its own merits. Jesse Helms,

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with Lott’s backing, kept pursuing his agenda of State Department reform and felt emboldened by the unsuccessful ratification attempt. A looming deadline gave new urgency to the ratification effort. In the fall of 1995, Hungary had become the 65th state to ratify the CWC, triggering the convention’s entry into force on 29 April 1997. Failure to ratify by that date would have precluded the United States from being an original party to the convention. It would not have been represented in the Organization for the Prohibition of Chemical Weapons, the CWC’s executive committee, and its chemical industry would have been subject to trade restrictions under the agreement. To avoid repeating the humiliating defeat of the previous fall, the White House launched a full-fledged campaign for ratification. With the treaty back in the Foreign Relations Committee, Chairman Helms announced that he would only release it if the Clinton administration was willing to negotiate on a number of issues. In addition to State Department reform he demanded changes at the United Nations and an assurance that modifications to the Conventional Forces in Europe (CFE) and Anti-Ballistic-Missile (ABM) treaties would not be made without Senate approval. The White House concluded that it had a better chance of securing ratification of the CWC by compromising with Helms and Lott and was prepared to make a number of concessions. Madeleine Albright had already indicated during her confirmation hearings that she was willing to talk about State Department reform and, in the following months, worked hard to successfully establish a constructive relationship with Helms (Hersman 2000: 95; Lippman 2000; Parachini 1997: 66). Moreover, the Clinton administration assigned new National Security Advisor Samuel “Sandy” Berger to negotiate with Lott about the substantive concerns that Republican senators had about the treaty. Lott indicated from the start that his agreement to schedule a vote on the CWC would come at a high price. He turned down Sandy Berger’s request to put the bipartisan Senate Arms Control Observer Group in charge of drafting a resolution of ratification that addressed criticism of the treaty. Instead, in January 1997 Lott set up a task force consisting of nine Republican senators to talk about their concerns. Most of its members were treaty opponents, with Helms and Jon Kyl included, and Richard Lugar deliberately left out. Lott made clear that he was not prepared to bypass Helms, leaving him free to hold the treaty hostage to his demands, both related and unrelated to the treaty’s content (Smithson 1997: 14-15). Negotiations began on 29 January 1997 with the aim to agree on a text for the resolution of ratification that would satisfy Lott and Helms,

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and allow the treaty to be released from the committee for a vote in the full Senate. Since Article 22 of the CWC prohibited reservations, the negotiations focused on a number of “conditions” which the Senate would insert in any ratification resolution. Helms had introduced a list of 30 conditions on specific aspects of the convention, including some that would, in effect, have killed the treaty. Among these “killer conditions” was the demand not to ratify the CWC until Russia and all states believed to have chemical weapons had joined. Other conditions concerned issues on which the administration was prepared to make concessions. Sandy Berger appointed Robert Bell to head the administration’s team in the negotiations. On the Senate side the meetings were mostly attended by staffers, since the negotiations involved many technical issues and a great amount of detail. The staffers of Republican senators included some of the staunchest CWC opponents 38 (Smithson 1997). Several senators were crucial in facilitating progress in the talks. Richard Lugar, with the support of John McCain, worked tirelessly to convince his Republican colleagues of the merits of the CWC. Although Lugar was shut out of the meetings of the task force, Robert Bell regularly briefed him (Hersman 2000: 96). Being the most informed senator on the CWC, Lugar used a series of 17 so-called “Dear colleague” letters on various aspects of the treaty to counter the arguments of CWC critics (Smithson 1997: 16). The Democratic senators engaged in a “good cop, bad cop” game. While Joseph Biden negotiated with Jesse Helms and achieved deals on some of the conditions, Tom Daschle threatened to block Senate action on Republican priorities in order to force Jesse Helms to release the treaty from the committee. On 8 March, Helms still proclaimed publicly that he would not release the treaty unless his demands were met, both on the specific conditions of the treaty and the broader foreign policy agenda (Lippman 1997). He also refused to support the unanimous consent necessary for the floor debate to proceed. While the task force continued to hammer out the details of the resolution of ratification, the battle for public opinion raged in the media and congressional hearings. Both sides enlisted former military and 39 government officials to back up their views on the treaty. The administration and groups in favor of the CWC had learned from the first failed attempt and recognized the need to create a favorable climate 40 for ratification on the Senate floor. On 4 April, the White House staged a public event to generate support for the CWC. With the help of the Chemical Manufacturers Association, they managed to enlist a number of high-ranking military officials, among them Colin Powell, in

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his first appearance since retiring from the Joint Chiefs of Staff (Smithson 2008). On 8 April, State Secretary Albright and Defense Secretary Cohen jointly testified before the Foreign Relations Committee in favor of ratification. At this stage, the intensive lobbying by the chemical industry on behalf of the convention came to play an important role. With considerable financial resources at its disposal, the industry worked hard to counter the claim that it opposed the treaty. The Chemical Manufacturer’s Association testified in various hearings in favor of ratification (Congress Daily 1997; U.S. Senate 1997). In response, treaty opponents began to question if the CMA represented smaller companies in the business of producing chemicals. They overstated the degree to which small companies were affected by the treaty’s documentation and verification requirements, and even misrepresented the positions of certain associations, such as the National Federation of Independent Business (NFIB), representing over 600,000 small businesses (Robbins 1997). By 10 April, a deal had been reached on how to proceed on the resolution of ratification. It would include 28 conditions negotiated between the Senate task force and the administration. The “killer conditions” would be considered as separate amendments. Furthermore, Jon Kyl sponsored a bill to selectively and unilaterally incorporate some provisions of chemical disarmament into domestic law as an alternative to CWC ratification. It was intended as political cover, allowing senators to vote against the CWC and still claim a constructive role on the issue of chemical disarmament. In exchange for Lott’s agreement to schedule a debate and vote on the CWC, the Senate would first consider Lott’s alternative before debating the convention itself. The administration also conceded to make modifications it had planned for the Conventional Armed Forces in Europe agreement and the Anti-Ballistic Missile Treaty dependent on Senate advice and consent. Despite being a part of these negotiations, Helms tried to prevent the CWC from being voted on. He released the treaty only when the White House agreed to the State Department reorganization bill on 17 April. Officially both sides declared that the two deals were unrelated. But most observers saw it as a direct result of horse-trading (Hersman 2000: 98; Smithson 1997: 25). One of the last issues to be resolved was the treaty opponents’ objection to Articles 10 and 11. On 23 April, Jesse Helms (1997) explained in an op-ed that treaty ratification could hinge on the administration’s willingness to modify those two articles. Article 10 commits member states to assist each other with measures to protect

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themselves against chemical attack. This includes the exchange of knowledge about defensive measures, as well as the possibility of military assistance. Article 11 declares the intention of state parties to exchange technical and scientific knowledge about the peaceful and civilian use of chemicals. These provisions had been essential to getting some of the developing countries, which feared that they would be disadvantaged by an agreement that placed restrictions on the trade of dual-use chemicals, to sign on in Geneva. Helms claimed that these measures would in fact increase the risk of chemical proliferation. On 24 April, the day the vote was scheduled, Clinton sent a letter in response to Lott’s concerns with regard to Articles 10 and 11 of the convention. Clinton made a final concession by assuring Lott that he would not hesitate to withdraw from the CWC if it turned out to damage US security interests (Leklem 1997). With these modifications Bob Dole, who in the meantime had retired from the Senate but was still influential among Republicans despite his failed presidential bid, endorsed the treaty. Lott also came around at the last minute. As agreed upon, the final version of the resolution of ratification included 28 conditions. A number of the conditions referred to minor details. At least three of the conditions, however, did limit some of the treaty’s provisions significantly (Smithson 2002: 254). One condition allowed the president to reject challenge inspections if they posed a threat to US security interest, undermining the strict verification regime and setting a problematic precedent. A further condition prohibited the international inspectors from taking samples out of the country for analysis. A third condition raised the threshold for the types of activities that had to be declared under the convention. The so-called “killer conditions” had 41 been taken out of the package and were voted on separately. Trent Lott voted for the killer amendments along with Jesse Helms, Select Intelligence Committee Chairman Richard Shelby, and Armed Services Committee Chairman Strom Thurmond. After each of the five killer amendments was defeated, Lott voted for the final package of CWC ratification with the list of conditions. In the end, a slim majority of 27 Republicans voted in favor of the treaty, leading to a final result of 74 votes in favor and 26 against. On the next day, 25 April, Clinton deposited the instrument of ratification, and on 29 April the CWC entered into force. Implementing legislation was passed on 21 October 42 1998.

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The Conditions

The final package of conditions can be divided into three general categories.43 The first category was meant to preserve the primacy of the US constitutional and political system over the provisions agreed to in the international treaty. Condition 1 states that the US Senate does not recognize the prohibition of reservations to the treaty under Article 22 of the CWC. The Senate explicitly preserves its right to grant advice and consent subject to reservations. This general point is further elaborated and put into context in Condition 17. Along the same lines, Condition 2 and 20 specify that any US funding for the OPCW be subject to congressional approval. In addition, Condition 12 emphasizes that the US Constitution takes precedence over any provision of the treaty. The second category reserves for the United States the right to restrict unilaterally or with others the sharing of information and technology with countries that it considers a threat. A number of the 28 conditions adopted reserved the right for the United States to unilaterally take additional measures to control the export of chemical know-how and technology. This undermined some of the assurances given to developing countries with regards to sharing knowledge about peaceful and defensive uses for chemical agents. At one stage a rumor had surfaced that the CWC would require the United States to share their defense secrets with regards to chemical weapons (Smithson 2008). Although there was no basis for this claim in the treaty text, Condition 5 in the resolution of ratification ruled out the sharing of intelligence with the OPCW unless authorized by the president. Similarly, in a hearing before the Foreign Relations Committee, Richard Perle and Douglas Feith had raised the concern that Art. 11 (unhampered trade with chemicals for civilian uses) would encourage proliferation. According to their reading, the article required the United States to export chemicals to any state that could not be proven to have violated the CWC (U.S. Senate 1997: 100-101, 112-113). Condition 7 addresses that concern by stating that existing export controls, in particular the provisions by the Australia group, were in accordance with the treaty and could remain in place. Condition 15 places further restrictions on Art. 10 (the sharing of defensive capabilities). The third category concerns details of the convention to which the United States took exception. Condition 18 prohibits the international inspectors from removing any test samples from the territory of the United States for analysis. This condition is in direct contradiction to the treaty text. In Condition 26, the United States reserves the right to use

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riot control agents for peacekeeping operations and conflicts to which the United States is not a party. Case Findings Preservation of Autonomy?

By adopting the highly legalized CWC the United States proved ready to accept a treaty that imposed significant restrictions on its autonomy. The case of the CWC casts doubt on the hypothesis that an agreement’s degree of legalization alone explains America’s reaction to it. On the contrary, it seems to show that whether the United States chooses to participate in or remain outside multilateral regimes is not determined by the effects on America’s autonomy. This finding is not only supported by the policy outcome, but also by the process of policy formulation. As the negotiating history shows, the American approach to arms control was largely based on the principle of “trust, but verify.” As a result of Washington’s efforts, the CWC establishes an inspection and monitoring regime that is unprecedented in its intrusiveness. Whatever the initial motivation for suggesting the idea of “anytime, anywhere” inspections, the United States never reversed its position on this basic premise and accepted the provision of on-site inspections in the final text. As a result, the CWC fulfills a high standard of legalization in every sense of the concept. Not only is it binding under international law, but also requires member states to pass implementing legislation, incorporating the provisions of the CWC into their domestic legal systems, thereby further increasing the legal commitment. Reservations are explicitly prohibited, and the treaty does not provide for any kind of optout. Furthermore, the treaty establishes clear and meaningful sanctions in case of non-compliance. States that fail to comply or choose to remain outside of the regime face restrictions on their trade of dual-use chemicals. Since most sensitive chemicals also have a great range of civilian uses, such restrictions can be a serious impediment to industrial development. All these characteristics ensure a high degree of obligation. In terms of precision, the CWC can compete with national legislation, approaching an ideal type of hard legalization. It specifies prohibited chemical agents and regulates in great detail every aspect of compliance and verification: permitted production quantities, reporting requirements, as well as the precise procedure regarding routine and

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challenge inspections. It lays out the procedure for amending the treaty to accommodate scientific progress and to include new chemicals. In its emphasis on inspections, the CWC also displays a high degree of delegation. The Organization for the Prohibition of Chemical Weapons is an independent agency with its own staff and equipment. It serves to settle disputes and verify the compliance of member states. The right to determine the consequences for violations remains on an inter-governmental level. That means that the OPCW is not supranational in a strict sense. Yet, by the standards of international institutions, the OPCW constitutes a strong organization. In sum, the OPCW is as legalized as international treaties get. During the ratification process, some senators voiced concerns about the CWC’s effect on US autonomy. Specific concerns included whether the treaty text was compatible with the US Constitution’s prohibition of illegal searches and seizures of private property, and alleged obligations to share defense secrets or provide certain chemical technology to other states. Despite the treaty’s prohibition of reservations, the Senate included a package of “conditions” restricting the access of inspectors in its resolution of ratification. The discussions about those reservations reveal a general concern for autonomy, even if it is debatable whether the demands by treaty opponents in the Senate revealed a genuine concern for autonomy or were a pretext for an unrelated agenda. US negotiators were not pushed into a highly legalized treaty, but actively pursued it. And the objections from some Senators concerned relatively marginal issues. The treaty’s main effect on member states’ autonomy, its prohibition of chemical weapons, was uncontroversial. To conclude that the treaty did not affect America’s autonomy, because Washington had already decided unilaterally to destroy its chemical arsenal, would be to confuse cause and effect. After all, the US government decided to destroy its chemical stockpile specifically in order to create the conditions for a global ban on chemical weapons. The Veto Players Hypothesis

In assessing the importance of veto players, it is essential to distinguish between the negotiation and the ratification phases. The logic of veto players in the negotiation phase may seem somewhat counterintuitive. This is because US policy on chemical weapons was the object of elaborate political maneuvering, and what the political actors said in public often diverged from their hidden agendas.

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In some respects, the progress made on the CWC during the Reagan administration was an unintended consequence of the decision to develop a new generation of chemical weapons. Reagan officials framed the modernization of the chemical arsenal as a necessary step in the negotiation of a chemical weapons ban. According to this logic, the United States had to match Soviet capabilities and eliminate the military advantage they provided, in order to get the Soviet Union to give up its chemical arsenal. Internally, however, the logic was the reverse. In order to receive the domestic support needed to resume the development of chemical weapons, the administration had make an effort to negotiate a chemical arms control agreement. Therefore, in the early years, Congress was a veto player on the development of a new generation of chemical weapons and the driving force behind negotiating a chemical weapons convention. A coalition of members of both parties in Congress firmly opposed chemical weapons because of the stigma associated with them. Congress refused to fund binary systems until 1985, when a concerted effort of the executive, in combination with very particular circumstances, led to a narrow approval of the funding. The fact that the armed services committees of both chambers were supportive of the administration’s request for binaries, regardless of party leadership, indicates the importance of issue networks in executive-congressional relations. With respect to the international negotiations, the main veto player was the Defense Department. When the Soviet Union started to make concessions in the second half of the 1980s, the Pentagon was overtaken by the events. The acceptance of the “anytime, anywhere” inspections called into question the argument that Moscow could not be trusted to comply with any treaty. President Reagan chose to ignore the warnings from the Pentagon hard-liners, eventually prompting Weinberger, Perle, and several other defense hawks to resign. In an ironic twist the provision for inspections “anytime, anywhere,” initially suggested to derail the negotiating process, eventually contributed to the success of the treaty. When President George H. W. Bush was faced with the decision of whether to end the binary program in exchange for asymmetric cuts to the Soviet chemical stockpiles, the technical difficulties of the binary program mattered. Even though the Defense Department and especially the Chemical Corps fought to continue the development of new CW, their negotiating position was weakened by the fact that American companies refused to provide them with the necessary chemical precursors. This made it easier for Bush to ignore the Pentagon’s objection. The hard-liners were overruled rather than convinced, as

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becomes obvious with their reemergence in the second half of the 1990s to testify against the CWC before Congress, despite having served for the presidents who negotiated it. With the unilateral renouncement of chemical weapons, Bush had also turned the military into a proponent of the CWC. Canceling the binary program ended the Chemical Corps’ institutional investment in the issue, and so the 1991 announcement to destroy all CW did not create significant resistance. With Washington abandoning its chemical weapons, it was in the military’s interest that other states follow suit. The long battle for CWC ratification shows the power that a few well-placed senators can wield to block progress with regard to treaty ratification. Even though they were short of the one-third of senators required to defeat a treaty in a vote on the Senate floor, they used all kinds of procedural measures to bring the treaty process to halt. Each step in Senate procedure became a potential obstacle. First the chairman locked the treaty up in the committee. When it was finally released, the majority leader refused to schedule a vote. Opposition to the CWC was both ideological and opportunistic. Even Jesse Helms did not have strong objections in the beginning, but when Clinton failed to push for ratification within the first years of his tenure, some of the old opponents of arms control resurfaced. There was an endless array of hard-liners from the Reagan administration who channeled their disappointment about Reagan’s more moderate second term into bashing the treaty during congressional testimony. Helms and his allies eagerly soaked up their arguments and used them to blackmail the Clinton administration on unrelated issues like State Department reform. Still, Helms could not have blocked ratification had it not been for presidential candidate Bob Dole, who turned the ratification of the CWC into an election issue. The CWC case is an example of the disproportionate power of veto players and the high obstacles to ratification. Considering the treaty had bi-partisan credentials, a favorable public opinion, industry support, the blessing of the Defense Department, and also attempted to ban a class of weapons that the United States had already purged from its arsenal, it is remarkable how difficult it was to secure ratification. The Presidential Leadership Hypothesis

Both stages of the process leading to US participation in the CWC, the negotiation phase and the ratification phase, show very clear evidence of the importance of presidential leadership. The decisive nature of the president’s engagement holds true for each president involved.

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The first phase of executive leadership, notably, was not intended to advance the CWC, but rather to overcome resistance to the development of a new generation of binary chemical weapons. Beginning in 1982, Reagan attempted to persuade Congress to support the binary program. Each year, the Reagan administration introduced authorization and appropriation requests in the defense bills, only to be defeated in either the House or the Senate. In 1985 the administration was finally successful in overcoming the 16-year old moratorium on chemical weapons production. Changes in the membership in Congress contributed to the outcome, but the lobbying effort from the administration played a decisive role: A number of high-level officials testified in Congress, and two expert panels were enlisted to sell the administration’s position. The changed approach toward the Soviet Union following the rise of Mikhail Gorbachev showcases an even more striking example of presidential leadership. The pace at which relations between the two countries improved would hardly have been possible without the good personal relationship between the two heads of state. Reagan, who had previously relied on his advisers for many of the substantive decisions, trusted his own instincts with regard to Soviet intentions. He ignored the warnings of his Secretary of Defense Weinberger, who was deeply skeptical of any change in the relationship with the Soviet Union. Much of the détente during Reagan’s second term was due to the progress made in direct talks between the leaders at a series of bilateral summits. The resulting progress made with respect to arms control was continued by Reagan’s successor George H. W. Bush. In addition, Bush had a particular distaste for chemical weapons and made the conclusion of a convention a priority. Again, Bush and his Secretary of State James Baker concluded a number of agreements on CW reduction in quick succession, often over the resistance of members of their administration. Bush also threw his weight behind the talks at the Conference on Disarmament in Geneva, since he was eager to conclude the negotiations before the end of his term. Finally, the ratification process of the CWC shows the importance of presidential leadership. The first two years after Clinton’s election were a missed opportunity to achieve ratification. And Clinton failed to achieve ratification in 1996. In 1997, only months before the CWC entered into force, the administration at last launched a serious effort to get the job done. It held some high-profile public events in support of the treaty and dispatched high-level officials like Sandy Berger and Madeleine Albright to the hill. The contrast between the unsuccessful

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first attempt and the one that finally succeeded confirm the significance of presidential leadership for treaty ratification.

Notes 1

Available at www.opcw.org/chemical-weapons-convention/ Amy Smithson (1993: 2) lists four basic types of chemical weapons: “blister agents that destroy exposed skin tissue (e.g., mustard gas and lewisite); blood agents that, when inhaled, block oxygen circulation within the body (e.g., hydrogen cyanide and cyanogen chloride); choking agents that inflame the bronchial tubes and lungs, possibly causing asphyxiation (e.g., phosgene and chlorine); and nerve agents that cause the nervous system to overload, resulting in respiratory failure and death (e.g., tabun, sarin, soman, and VX).” 3 The European Union, which arguably has the most supranational competences of any international body, can make decisions that are binding for member states, but still has to rely on the institutions of the member states to enforce them. 4 “Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare,” adopted on 17 June 1925. 5 The Soviet Union submitted a draft in 1972; the neutral and non-aligned countries in 1973; Japan in 1974; and the United Kingdom in 1976 (Robinson 1993). 6 The negotiating body in Geneva changed its name and composition several times. From 1969 to 1979 it was called Conference of the Committee on Disarmament, from 1979 to 1984 Committee on Disarmament, and after 1984 Conference on Disarmament. From 1980 on, a special subsidiary body was set up to deal with the issue of chemical weapons. It was called “Ad Hoc Working Group on Chemical Weapons” and renamed “Ad Hoc Committee on Chemical Weapons” in 1984 (Bernauer 1993: 25, 50). 7 Other Reagan officials that had been members of the Committee on the Present Danger included Reagan’s first National Security Advisor Richard V. Allen; Secretaries of State Alexander Haig and George Shultz; UN-Ambassador Jeane Kirkpatrick; ACDA Directors Eugene Rostow and Kenneth Adelman (Allen 2002: 27). 8 Eugene V. Rostow served as ACDA Director from 30 June 1981 to 12 January 1983. Kenneth L. Adelman served from 22 April 1983 to 12 December 1987. 9 The Soviets admitted to having 40,000 tons of nerve gas in their possession, while the United States stockpiles contained around 32,000 tons (Smithson 1995). Some American estimates put Soviet stockpiles at 250,000 to 700,000 tons (Krell 1988: 10). 10 Both were ardent proponents of US CW development. Hoeber later became deputy under secretary of the US Army. During a 1994 hearing she referred to herself as the “mother of the chemical corps.” (U.S. Senate 1994). 11 Amy Smithson, who is generally supportive of chemical disarmament, characterized concerns about the M55 shells as genuine (Smithson 2008). 2

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Matthew Meselson, director of the Harvard Sussex Program on Chemical and Biological Weapons, believes that most of the chemical artillery shells were still in good condition and would fulfill the military’s requirements, and that the costs of maintaining them were much lower than the cost of producing new artillery shells. Even according to the Defense Department’s assessments, the artillery shells remained safe and usable (Interview with Matthew Meselson in Cambridge, MA, on 21 February 2008; Atkinson 1983; Hilts 1982). Jonathan Tucker asserts that the Chemical Corps deliberately neglected maintenance of old shells to increase the pressure for the procurement of new ones (2007: 241). 12 One body that relied heavily on reserve officers from the Chemical Corps was the Chemical Weapons/Biological Weapons Intelligence Committee, an interagency intelligence panel that made recommendations regarding US weapons capabilities based on estimates of the size of Soviet stockpiles (Tucker 2007: 183). Another was the Presidential Chemical Warfare Commission, whose 1985 report helped to convince Congress to approve funding for binary weapons (Congressional Record 1986). 13 This helps to explain the myth of a “foreign policy consensus” during the Cold War. There was hardly a consensus on foreign policy, but ideological outlook and party affiliation were not neatly aligned, so the ideological battles were separate from party politics. 14 Many of the more hawkish members of the Reagan administration were recruited from among Scoop Jackson’s aides or people associated with him. They included Richard Perle, Eugene Rostow, Jean Kirkpatrick, Elliott Abrams, and Paul Wolfowitz (Podhoretz 1984). Some later became known as “Neoconservatives” in the late 1990s. Senator Jackson himself was rumored to be under consideration as Reagan’s secretary of defense, a rumor for which Richard Allen claims responsibility (Allen 2002: 29). 15 Interview with Jonathan B. Tucker, Senior Fellow at the James Martin Center for Nonproliferation Studies, Monterey Institute for International Studies, and US delegate to the CWC PrepCom in The Hague 1993-1995. Interview in Berlin, Germany, on 8 May 2007. 16 According to the deal, some Democratic Senators would vote in favor of binary weapons, while the Democrats in the House could continue to vote against them, reassuring the Democratic constituency of their position in favor of arms control. Interview with Donald Mahley (Director of Defense Policy and Arms Control on the National Security Council Staff 1984-1990; Associate Assistant Director 1990-1992; Deputy Assistant Director and Acting Assistant Director 1993-1999) on 20 May 2008, in Washington, DC. 17 Reports state that Bush had only reluctantly voted in favor of binary production to break the Senate tie. His mother, Dorothy Bush, strongly opposed chemical weapons (Tucker 2007: 248-249, 265; Williams 1983). Still, there were doubts within the agency about whether Bush would agree to go to Geneva. But when Mikulak communicated the request to Bush’s office, Bush called back within one hour and said he would go. Interview with Robert P. Mikulak, (permanent representative to the OPCW; previously director of the Office of Chemical and Biological Weapons Threat Reduction, Bureau of International Security and Nonproliferation at the State Department and chief of the ACDA’s Chemical and Biological Policy Division) on 20 May 2008, in Washington, DC. 18 Interviews with Donald Mahley and Robert Mikulak.

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19 “The Commission believes that modernization would likely increase the chances of achieving a multilateral, verifiable ban on chemical weapons. The Commission notes that in the 16 years since the unilateral renunciation by the United States of production of chemical munitions, the Soviet Union has not progressed toward acceptance of such a ban; on the contrary, it has continued its intensive program of production and research and development for chemical munitions.” (Quoted in Congressional Record 1986). 20 The latter was the result of an 890,000 dollar contract that the Pentagon had given to the Institute for Defense Analysis. The institute had hired a group of retired admirals and generals with experience in the field of chemical weapons. Their conclusions, advocating the resumption of the chemical weapons program, were then used to convince Congress, a practice bordering on a violation of the Defense Department Appropriations Act, which prohibits the use of Pentagon funds to influence Congress (Pincus 1986). 21 According to Congressman Porter, two external events may have also influenced the vote. A recent accident at a chemical factory in Bhopal, India, which had killed thousands, helped the argument that binary weapons were safer to store. The House was also in an angry mood because Hezbollah had hijacked an American plane and killed a US Navy diver just days before (Roberts 1985; Tucker 2007: 265). 22 Reagan and Gorbachev met in November 1985 (Geneva), October 1986 (Reykjavik), December 1987 (Washington, DC), and May/June 1988 (Moscow). 23 The last instance had been Egypt’s use of chemical weapons in Yemen in the 1960s. There had been allegations that the Soviets had used chemical weapons in Afghanistan, but they were never substantiated. 24 In his autobiography Weinberger (2002: 27-29) describes his role and his views of Gorbachev: “So, I was a lot less ready to move to a new era of détente or anything of that kind. The President was anxious to try to get a better relationship, and the Soviets wanted two or three things. They wanted to decouple us from Europe. They wanted us to give up the Stealth technology, and they wanted us not to deploy any missiles in Europe in response to theirs. […] Gorbachev to this day is a committed Communist and still believes that what is necessary is to strengthen communism. […] And I didn’t, frankly, ever trust Gorbachev or believe that he was fully committed.” 25 Unlike under previous administrations, at the beginning of Reagan’s first term, the National Security Advisor did not report directly to the president, but to his counselor Edwin Meese (Allen 2002). Under Frank Carlucci, the practice of having the National Security Advisor report directly to the president was restored. 26 The Soviet Union continued, however, to secretly test binary weapons (Tucker 2007). 27 The technical term for dichlor is methylphosphonic dichloride, whereas difluor refers to methylphosphonyl difluoride (see Tucker 2007: 129; 133). 28 Interview with Amy E. Smithson, senior fellow at the James Martin Center for Nonproliferation Studies, Monterey Institute for International Studies, on 19 May 2008, in Washington, DC. 29 Will Carpenter, who was appointed by Monsanto to be the CMA’s representative to the US government in chemical warfare disarmament negotiations, and the ACDA’s Robert Mikulak had an especially good working relationship (Interview with Julian Perry Robinson, director, and Daniel Feakes

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and Caitríona McLeish, researchers at the Harvard Sussex Program on Chemical and Biological Weapons on 11 May 2007, in Brighton, UK; Interview with Robert Mikulak). 30 Interview with Adolf Ritter von Wagner, chairman of the Ad Hoc Committee on Chemical Weapons of the Conference on Disarmament 19921993 in Berlin, Germany, on 13 August 2007. 31 Les Aspin had previously been a Democratic congressman and chairman of the House Armed Services Committee. He had not held a strong position in favor or against binary weapons (see Tucker 2007: 268). 32 For a discussion of the emerging doctrine of military intervention in the early Clinton administration, see Rudolf (2000). 33 Richard Shelby of Alabama switched from the Democratic to the Republican Party on 9 November 1994. On 3 March 1995, Ben Nighthorse Campbell of Colorado also became a Republican. Ron Wyden’s election after the resignation of Republican Robert Packwood from Oregon returned one seat to the Democrats. 34 According to Michael Krepon (Krepon et al. 1997: 5), congressional hearings were increasingly politicized during the 1990s. The schedule and the witnesses heard were skewed to favor the majority party’s position: “For members of Congress new to majority status, controlling the time for committee deliberation has become a surrogate for winning a substantive debate.” 35 Experts sympathetic to the arms control agenda also acknowledge that institutional reform of the ACDA was necessary (see Krepon et al. 1992). During Bill Clinton’s first term, Secretary of State Warren Christopher had reform plans, but gave in to resistance from the agencies concerned (Lindsay 1997). 36 For example, they used early skeptical statements from certain industry representatives and the CIA director to discredit the CWC, even though these representatives later declared unequivocally that they supported treaty ratification (Robbins 1997). 37 When the responsible committee reports a bill to the Senate floor, they attach a resolution with recommendations concerning the adoption of the bill. Helms’ bill was rejected by 13 to 5 and the more benign resolution was passed with 12 to 6 votes. In addition to the Democrats, Republican Senators Chuck Hagel, Gordon Smith, Craig Thomas, and Bill Frist voted with Richard Lugar against Chairman Helms (Hersman 2000: 91). 38 Some Senate staffers were more radical than the Senators they worked for. According Amy Smithson, they operated in a “facts-free zone” and simply made up arguments, for example, claiming that the CWC would affect small businesses like dry-cleaners. (Interview with Amy Smithson). The significant role of the staffers in the CWC negotiations is consistent with the finding that in the recent past congressional staffers have been most ardently opposed to multilateral agreements and often surpass the unilateralist members of Congress they work for (CCFR and PIPA 2004). 39 The administration recruited General Norman Schwartzkopf, former CIA director John Deutch, former Secretary of State James Baker, and former National Security Advisor Brent Scowcroft. Among the opponents were former Secretaries of Defense Weinberger, Schlesinger, and Rumsfeld (Smithson 1997: 19).

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40 An entire series of op-eds in The Washington Post by former and current administration officials is exemplary for the opinion battles raging in most major newspapers in early 1997. See Scowcroft (1997); Schlesinger (1997); Adelman (1997). 41 The “killer conditions” took the form of amendments to the package. They were: (1) Not to ratify the treaty unless China, Iran, Iraq, Libya, North Korea, Syria, and all state sponsors of terrorism had ratified. (2) Not to ratify unless Russia had ratified. (3) Not to ratify unless the CIA would declare with “high confidence” that it could detect violations of the convention. (4) To reject inspectors from countries that were state sponsors of terrorism or violators of US nonproliferation and export-import law. (5) To eliminate Articles X and XI from the CWC (which mandated the free trade of civilian chemical know-how and technology among state parties) in favor of continued unilateral export controls. Then Senator Joseph Biden introduced motions to strike out each of these amendments, which were all adopted with a simple majority. 42 Public Law 105-277 (105th Congress). 43 “U.S. Senate’s Conditions to Ratification of the CWC,” Senate Resolution 75. 105th Congress, First Session, 24 April 1997.

7 Solving the Policy Puzzle

In the final chapter, I compare the findings of the individual case studies. Combining the results of each case study in a comparison across issue areas leads to additional insights with respect to the hypotheses proposed in chapter 2. Cross-case comparison helps with pattern recognition. The hypothesis that the autonomy costs associated with a particular agreement influence US policy, in particular, can only be assessed by referencing the individual case findings and looking for patterns. Integrating the results of the individual case studies also provides some clues about whether or not the findings can be generalized beyond the issues covered in this book. I end by providing some thoughts about the policy implications of these conclusions. Assessing Autonomy Concerns

The first hypothesis proposed in chapter 2 stated that the more an agreement restricts US autonomy, the less likely the United States is to become party. In an attempt to assess the extent to which an agreement restricts US autonomy, regardless of the issue area, I have used the degree of formal legalization to operationalize the impact of treaties on American autonomy. The more legalized, or binding, an agreement is, the more the participant’s autonomy is restricted. In the following table, I have evaluated the four treaties along the three dimensions of the concept of legalization: obligation, precision, and delegation.

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Table 7.1 ICC

Torture Conv.

Landmine Treaty

very high

highvery high

high

very high

Precision

very high

very high

very high

very high

Delegation

very high

high

high

very high

very high

high

high

very high

No

Yes

No

Yes

Obligation

Overall Degree of Legalization US is party

CWC

All four agreements show a high or very high degree of overall legalization. They are treaties that are binding under international law and establish clear obligations for participating states. In comparison to declarations of intent or resolutions establishing general goals, all four treaties are highly formalized, and define clearly specified mandatory rules. Beyond this basic assessment, several observations stand out. The main variance between the agreements along the dimension of obligation concerns two issues: the existence of sanctions and the possibility for exceptions. Again, in comparison to a broad range of international agreements, all four treaties in this study are characterized by a high degree of obligation, with slight differences. The CWC includes stronger sanctions than the Landmine Treaty. States unwilling to participate in the CWC or who violate the terms of the agreement face trade restrictions: they will be denied certain chemicals, including a wide range of dual-use chemicals with important civilian purposes. In contrast, the Landmine Treaty is based on voluntary compliance. There is no obligation to join the treaty and there are no sanctions specified for non-compliance, apart from the Assembly of State Parties’ right “to initiate appropriate procedures in conformity with international law.” The Torture Convention and the ICC specify sanctions comparable to each other, namely criminal prosecution of individuals who violate basic jus-cogens norms: the prohibition of torture in the case of the CAT, or

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genocide, war crimes, and crimes against humanity in the case of the ICC. Nationals of state parties and of non-parties are bound equally by the rules and can be prosecuted under certain circumstances. The CAT also obligates states to incorporate the norms of the convention into their domestic criminal law. However, it does not formally rule out reservations by state parties in the treaty text. With respect to the degree of delegation, the ICC clearly stands out. The court is the only institution in the sample that can be characterized as supranational rather than intergovernmental. Once elected, the ICC’s judges and prosecutor operate fairly independently from member states. However, they are bound by the principle of complementarity, which clarifies that the ICC must defer to national prosecutions, if they are carried out in good faith. In addition, the ICC does not have a police force and has to rely on the cooperation of member states for investigations and the arrest of suspects. The CWC also establishes a high degree of delegation with the establishment of the Organization for the Prohibition of Chemical Weapons. The OPCW is a standing organization with a permanent staff that monitors compliance by overseeing reporting requirements and carrying out inspections, but decisions on sanctions are left to the member states. In contrast, the Committee against Torture mainly just receives reports by state parties. Its independent investigative capacities are limited and it does not have the power to impose sanctions. Lastly, the Landmine Treaty only establishes an assembly of state parties that meets periodically. The assembly is not an international organization, but strictly an intergovernmental forum. In terms of delegation, the Landmine Treaty is the least legalized. Comparing the Torture Convention and the ICC with regard to their rules about extraterritorial jurisdiction is particularly interesting: I have argued that universal jurisdiction can be seen as a form of decentralized delegation, because states potentially delegate a core feature of their judicial sovereignty. By agreeing to this principle, a state allows other states to prosecute its own citizens. In addition, states can prosecute individuals for crimes that took place outside their territory. The Torture Convention establishes near universal jurisdiction as a general principle. Applying this principle to prosecute individuals for torture does not require the consent of the state of nationality. The procedure is based on the understanding that torture is a violation of jus cogens and that perpetrators are hostes humani generis - enemies of all mankind. The ICC requires the consent of the state of nationality of the accused or the state on whose territory the crime was committed. Compared with the principles established by the CAT, the ICC’s jurisdiction is more

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restricted. Nonetheless, it was the jurisdiction of the ICC that provoked an outcry in the United States. Its critics claimed that the treaty could not bind the citizens of states that have not acceded to it. This, however, is exactly what the Torture Convention does. With its “extradite or prosecute” provision, the CAT goes even further, requiring states to make an active effort to end impunity. Still, in the case of the Torture Convention (as with regard to the conventions on terrorism and piracy), the United States strongly advocated this principle. The third dimension of legalization, precision, follows a different logic from obligation and delegation. Whereas higher obligation and delegation are clearly associated with a stronger treaty that further restricts the autonomy of its member states, the concept of precision can expand or limit the scope of a treaty depending on the circumstances. With regard to precision, there is little variance between the four agreements. As a consequence of the legal character of the treaties, they all aim for a high degree of precision within their respective issue areas, clearly defining prohibitions and obligations, and leaving as little room for interpretation as possible. The United States consistently advocated a high degree of precision. In some cases this led to an expansion of the issues covered under the treaty, in others it narrowed the agreement’s scope. One feature of a treaty’s design that makes US ratification less likely is a prohibition of reservations in the treaty text. The Senate’s ratification of the CWC demonstrates that such a provision will not always preclude US ratification. But the use of conditions in that case and the criticism of this particular provision in the debates about the Landmine Treaty and the Rome Statute point to the importance of this factor. Despite these indications of autonomy concerns, the hypothesis that the more legalized an agreement is, the less likely the United States is to participate cannot be sustained. The argument is contradicted by both the pattern of US participation and its support for more legalization in negotiating the agreements. The jurisdiction of the CAT, which the United States joined, is more expansive than that of the ICC, which it rejected. Not only did the United States join the CWC, despite its costly sanctions for non-participation and non-compliance and its highly intrusive verification mechanism, but it made verifiability, and thus stronger legalization, a condition for its participation. In contrast, the Landmine Treaty, which relied mostly on voluntary compliance, was rejected. The degree of legalization is a poor indicator of US participation. This holds true for a comprehensive assessment of legalization and with respect to the individual dimensions of

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legalization. None of the dimensions of obligation, precision, or delegation serves as a reliable indicator of the US position. One conclusion from this assessment is that, in the decision-making process, restrictions on autonomy are not independent of the issues involved. The decision on whether to join a treaty is not made by examining how intrusive it is in abstract terms, but at its substantive effects. The freedom to keep the option of using anti-personnel mines was regarded as more important than the freedom to keep chemical weapons. Similarly, the possibility of extraterritorial prosecution of torture raised fewer concerns than potential prosecution of war crimes. A treaty’s effect on US power is part of the overall calculation. But the concept of power alone does not capture the many trade-offs involved in treaty-making. This finding leaves us with two options. We can either accept the observed outcomes as obvious expressions of national interest in classic realist fashion. Or we can open up the black box of the decision-making process and examine how a particular outcome emerged. The Interplay between Veto Players and Presidential Leadership

Analyzing the domestic political process leads to more useful explanations of US policies. As the case studies have shown, the number of veto players and the extent of presidential leadership are both important factors that affect the chances of participation in multilateral agreements. In combination, the four cases provide some interesting insights into the relationship between veto players and presidential leadership. The ICC and the Torture Convention are at the opposite ends of the spectrum with respect to veto players. In the ICC case, both Pentagon and Senate opposition to joining the treaty was so strong that no effort from the president could have forced ratification. The Torture Convention, on the other hand, represents a rare case of a treaty without opposition. The consensus in favor of the treaty was so broad that presidential involvement was hardly needed to achieve ratification. During the negotiation phase, a dedicated negotiator in the US delegation compensated for the lack of high-level attention. In the runup to ratification, the Senate Foreign Relations Committee chairman took it upon himself to shepherd the treaty through the processes and to assemble a bipartisan majority. A prerequisite for this level of consensus is that a treaty does not negatively affect any constituency, and nobody perceives the need to mobilize any of the veto players. It is in those cases that are less clear-cut when presidential leadership really makes a difference. As the CWC experience shows,

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even a treaty that initially has no opponents usually requires executive leadership. George H. W. Bush’s decision to end the binary chemical weapons program, in order to reach an agreement with the Soviet Union, enabled the successful conclusion of the CWC negotiations. Initially there were no domestic opponents to ratification. Since Senate consent was considered a formality, failure to achieve it soon after the conclusion of negotiations was mainly due to the lack of executive leadership. The Clinton administration failed to mobilize the resources necessary to push the treaty through the Senate, so the first attempt at ratification failed. The second attempt after Clinton’s reelection was more successful due to a concerted leadership effort. Even though ideological opposition in the right wing of the Republican Party had hardened, the administration won over the necessary votes through a combination of concessions, side payments, and arm-twisting. The story of the Landmine Treaty highlights the complex interplay between presidential leadership and the role of veto players. As a comparison of the Landmine Treaty situation in 1997 and that of the CWC shows, one major difference is the Defense Department's position: The Pentagon supported the CWC (after being forced to give up chemical weapons anyway), but rejected the Landmine Treaty. This in itself is a plausible explanation for the divergent US policies on the two treaties. But to some degree, the Pentagon’s position was itself the result of presidential leadership. The situation Clinton faced in 1996 with regard to landmines is more comparable to the decision George H. W. Bush faced in 1990 with regard to chemical weapons. Both weapon systems were of questionable tactical and strategic value, yet some within the military wanted to hold on to them, if largely for nostalgic reasons. In both cases, Congress supported abandoning the weapons systems. Bush considered both the possibility of a deal with the Soviet Union and the conclusion of the CWC important enough to ignore the criticism within the military, and decided as commander-in-chief to give up the binary program. Clinton, in contrast, was too insecure in his relationship with the armed forces to order the military to find an alternative to landmines. It is impossible to say with certainty what the military’s reaction to such an instruction would have been. It is possible that Pentagon officials would have contacted their allies in Congress to mount a campaign against Clinton’s decision (they certainly would have had Helms on their side). In that case, Clinton could have voted for the Ottawa Convention, but would have been stranded with an unratifiable treaty. Yet the analysis of the position in the military indicates that such a revolt would most likely not have taken place. The military as a whole did not feel strongly enough about landmines to start a major political

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battle about the issue. In other words, the president can use his influence at different stages of the process to shape the constellation of veto players. To summarize, there are two clear-cut cases. In the case of the ICC, the veto players were too strong, while the Torture Convention had no opponents. In these cases the constellation of veto players trumps the impact of presidential leadership, which would have made no difference in the cases of the ICC or the Torture Convention. Presidential leadership mattered most for the two treaties that were not predetermined by the configuration of veto players. With respect to the CWC, presidential leadership was necessary to overcome some resistance both from the Pentagon and then a minority of senators, and was decisive in achieving US ratification. In the case of the Landmine Treaty, my analysis shows that more presidential leadership could have made a difference. This account also explains why there are so few cases of treaty participation. The studies show that it is much easier to block a treaty than to secure its ratification. This is true for actors outside and inside the government, particularly the senators themselves. This point is made clear by comparing Senator Leahy’s support for the Landmine Treaty with Senator Helms’ opposition to the Chemical Weapons Convention. Both were very passionate about their respective causes. Leahy represented a majority, if not a supermajority with regard to landmines. He worked closely with the Campaign to Ban Landmines, and he had excellent back channels into the administration since some of his former staffers were in the State Department. Leahy had many successes in his policies to alleviate the global landmine problem, including the provision funding for landmine clearing and victim assistance, and the adoption of domestic laws restricting and prohibiting the export of American anti-personnel mines. Pushing the administration to rule out the use of APMs and join the Ottawa Convention, however, was beyond his powers. In contrast, Helms was only backed by a small number of people. Besides him, few people with any veto power opposed the Chemical Weapons Convention. Still he managed to postpone ratification for years. The reason for this divergence is simple. While Leahy had to build a coalition of 67 supporters and overcome additional procedural hurdles, Helms could wield his power as committee chairman to keep the treaty locked up. In the case of the CWC, these tactics were eventually overcome, but Helms could hold up more treaties than the administration could mount campaigns for. After the executive finally achieved a modest success with the CWC, the Senate rejected the Comprehensive Test Ban Treaty the following year.

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The United States and Multilateral Treaties: A Policy Puzzle

Not all actors involved in the decision-making process have the same political weight. Actors inside the government have more influence than actors outside the government. The Defense Department has a greater constituency and more clout than the State Department and is more difficult to overrule for the president. The effectiveness of private interest groups also varies a great deal. But because they all operate within the same institutional system, the observation that blocking treaties is easier than advancing them holds true for all actors. Presidential leadership can overcome some opposition. But if there is determined opposition from actual veto players – those whose consent is institutionally required – presidential leadership is not enough to get a treaty ratified. Some Thoughts About Generalizing the Findings

In trying to generalize the findings of this study to other cases and policy areas, several points are worth noting. One central conclusion is that specific policy outcomes occur in a particular context of domestic political institutions, which strongly influences each outcome. As we look to treaties beyond our case studies, it is important to note that the institutional framework does not change but the political actors actively supporting or opposing an agreement vary according to policy area. That means that some of the insights of this study are limited to certain policy areas. For example, the crucial role of the Defense Department as a potential veto player is limited to treaties that have implications for security policy. While the president can overrule the Defense Department, in practice its voice cannot be ignored in such cases. We can apply this lesson to other security-related agreements, for example, those dealing with arms control or humanitarian law. When treaties do not concern security policy, the Defense Department matters less, but other executive agencies may play a comparable role. On trade or environmental agreements, for instance, the position of the Department of Agriculture may be crucial. Correspondingly, depending on the objectives of each treaty, different sectors of the business community or civil society may be affected. At the same time, the institutional mechanisms remain unchanged. Any constituency that feels negatively affected by a treaty can campaign for opposition in Congress, and if they manage to enlist the support of 34 senators, they can kill a treaty. Alternatively, they can convince the Foreign Relations Committee chairman to bury it in the committee or convince the majority leader to refuse to schedule a vote.

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Objections to the substance of a treaty or resistance from a key constituency are not the only factors that can motivate senators to oppose treaties. Some senators are suspicious of multilateral treaties per se. Even though it can be hard to discern where substance ends and ideology begins, the case studies show that some of the arguments opponents make – such as criticizing a treaty for being simultaneously unenforceable and too intrusive – are less than convincing. The principled hostility some senators display against any treaty, regardless of its content, also suggests that ideology plays a role. Statements from senators like Jesse Helms and John Kyl, as well as from a small circle of vocal figures in government and academia like John Bolton, Jeremy Rabkin, or John Yoo, indicate that US sovereignty is a central concern for some, no matter how selectively and inconsistently the term is applied. In particular, the opposition against UNCLOS and some human rights treaties like CEDAW or CRPD seems to be driven at least in part by objections against multilateral regimes in general. The continuing presence of these “sovereigntists” (Spiro 2000) makes the reoccurrence of the Torture Convention scenario – a ratification sailing through Congress without opposition – very unlikely in the near future. However, it is important to distinguish the ideological predisposition of a small minority of senators and scholars from broader claims about an “exceptionalist” US culture and identity. Finally, as the analysis has shown, factors completely unrelated to both a particular treaty and treaties in general may be at play. A treaty that is important to a president may be held up as leverage to achieve some other goal through issue linkage. The Senate may block ratification for reasons of partisan or electoral politics, for example, to deny a president a foreign policy accomplishment. With increased polarization in Congress and more frequent use of procedural tactics that induce partisan gridlock in the decision-making process, the ratification of treaties is unlikely to become easier any time soon. In short, there can be any number of reasons for opposing a treaty, including substantive concerns, economic interests, ideological objections, issue linkage, and partisan politics. The bottom line is that each ratification of an agreement under the US Constitution’s treaty clause requires enormous political capital. The requirement of sustained presidential leadership for the successful conclusion of almost any treaty means that, in practice, the number of treaties ratified under any administration is limited to a very small number. Treaty ratification competes with other political priorities, not least with the president’s domestic agenda, which usually ranks much higher in the minds of voters. Kelley and Pevehouse (2015) have

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The United States and Multilateral Treaties: A Policy Puzzle

referred to this phenomenon as the “opportunity cost” of pursuing treaty ratification. The result is an enormous backlog of treaties. The United States’ inability to keep up with the evolution of international regimes threatens to undermine its role as a leader on foreign policy and its ability to deal with the challenges of globalization. Policy Implications

The limited ability of the US government to use multilateral treaties as a signal of its commitment to collective international endeavors is not only provoking criticism abroad, but also hinders some of its own policy priorities. For example, in the run-up to the 2015 climate summit in Paris, US diplomats spent a good deal of energy on convincing other countries that Obama is serious about reducing greenhouse gas emissions, even though ratifying a multilateral climate treaty to succeed the Kyoto Protocol is not in the cards due to resistance from Congress. It is a tough sell. The rest of the world may be able to live with the fact that the United States has not ratified the Vienna Convention on the Law of Treaties as long as it abides by its rules as a matter of customary international law. But as one of the world’s largest emitters of greenhouse gases, it is not easy for the United States to get other countries to commit to reducing their emissions without a treaty to codify its own commitment. The consequence of this lack of commitment was that everybody had to accept an outcome that is less binding than it could have been. In the case of the Law of the Sea Treaty, some in the US government argue that the inability to ratify and join UNCLOS now weakens US positions on a number of issues. This book contributes to a better understanding of US reluctance to join binding international treaties. For potential partners in America’s multilateral endeavors, understanding the dynamics of US unilateral behavior is important. Awareness of the immense importance of domestic constraints in American treaty-making not only greatly reduces disappointment, but paying close attention to domestic veto players can also yield important insights into how to overcome or accommodate them. A sound understanding of the American decision-making process regarding multilateral treaties can turn everyone, from European diplomats to American presidents, into more effective negotiators. While this study is not meant as a manual for successful participation in treaties, it does have important policy implications that multilateralists both inside and outside of the United States should take to heart. It also gives those, especially in the United States, who would like to overcome the general reluctance to treaty participation some hints on

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where to start. Dispelling some myths about the reasons for this pattern of behavior is the first step. Once we accept that US power does not determine its policies toward international treaties, it follows that America does not have to forgo its primacy to become more favorably disposed toward multilateral agreements as a tool to deal with global governance challenges. After the Second World War, multilateral regimes were a central pillar of US foreign policy, and there is nothing inherent in the international system or America’s role in it that precludes Washington from moving in that direction once again. Similarly, American culture and identity are compatible with operating within the framework of global regimes. It is simply a myth that the majority of Americans is opposed to multilateral treaties. Instead, the reluctance we observe is the result of America’s unique political institutions. It is these institutions we should focus on. To be sure, reforming institutions is not easy, but it is less far-fetched than calling on the United States to give up its power or somehow transform its culture. My hope is that this book will contribute to the debate in the United States on what reforms are necessary to increase the chances of treaty ratification. Some solutions are already well known. The White House already increasingly relies on executive agreements to circumvent the cumbersome ratification process under the US Constitution’s Article II. However, for important issue areas like human rights, arms control, and the environment, this is currently not an option. Oona Hathaway’s proposal of reliance on executive-congressional agreements as a legitimate and practical path to treaty participation is currently the best way to address the issue in a comprehensive manner. As Hathaway explains, ratifying treaties with simple majorities in both the House and the Senate would satisfy the requirement of congressional involvement, and allow for the combination of ratification with the adoption of domestic implementing legislation. Short of such a comprehensive approach, which would certainly create some backlash in the Senate, one could also contemplate ways to curb the ability of individuals in the Senate to act as veto players, first and foremost the chairman of the Foreign Relations Committee. Ultimately, it is reassuring that the president still has enough clout to get treaties with broad support ratified if he is willing to spend the political capital to do so. One thing is clear: either the United States finds a way to reform the treaty process, or it robs itself of an important global governance tool. In a situation where some fear that the rise of the rest of the world may someday limit the ability of the United States to set standards and shape global norms, using treaties to lock in those norms is certainly worth considering.

Acronyms

ABM ACLU AI APM ARC Art. ATCA CCW CEDAW CIA CIDT CINC CRPD CSCE CTBT CW CWC CWS DDA DMZ ESF FAO FMF FOIA FPA GA HRW IATP ICBL ICC ICRC

Anti-Ballistic Missile Treaty American Civil Liberties Union Amnesty International Anti-Personnel Mine American Red Cross Article Alient Tort Claims Act Convention on Conventional Weapons Convention on the Elimination of All Forms of Discrimination against Women Central Intelligence Agency Cruel, inhuman and degrading treatment Commander-in-Chief Convention on the Rights of Persons with Disabilities Conference on Security and Cooperation in Europe Comprehensive Test Ban Treaty Chemical Weapons Chemical Weapons Convention Chemical Warfare Service Department for Disarmament Affairs Demilitarized Zone Economic Support Funds Food and Agriculture Organization Foreign Military Funds Freedom of Information Act Foreign Policy Analysis General Assembly Human Rights Watch Institute for Agriculture and Trade Policy International Campaign to Ban Landmines International Criminal Court International Committee of the Red Cross

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The United States and Multilateral Treaties: A Policy Puzzle

IDA IGO ILC ILODEX IMET IMF IR JCS MAC NAACP NAFTA NATO NGO NPT NSC ODC OLC OPCW PrepCom QUANGO RCA RUDs SALW SC SOFA UN UNCLOS UNMIBH UNTAET US U.S.CBL U.S.S.R. VVAF WIPO WTO

Institute for Defense Analysis Intergovernmental Organization International Law Commission Database of International Labor Standards International Military Education and Training International Monetary Fund (the discipline of) International Relations Joint Chiefs of Staff Mines Action Canada National Association for the Advancement of Colored People North American Free Trade Agreement North Atlantic Treaty Organization Non-Governmental Organization Nuclear Non-Proliferation Treaty National Security Council Office on Drugs and Crime Office of the Legal Council Organization for the Prohibition of Chemical Weapons Preparatory Committee Quasi Non-Governmental Organization Riot-Control Agent Reservations, Declarations, and Understandings Program of Action Against the Illicit Trade in Small Arms and Light Weapons Security Council Status of Forces Agreement United Nations United Nations Convention on the Law of the Sea United Nations Mission in BosniaHerzegovina United Nations Transitional Administration in East Timor United States United States Campaign to Ban Landmines Union of Soviet Socialist Republics Vietnam Veterans of America Foundation World Intellectual Property Organization World Trade Organization

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Index ABM. see Anti-Ballistic Missile Treaty (ABM) ABU Ghraib prison, 81 accountability, 70

smart vs. dumb, 155

stockpiles and contamination, 147–48 US ambivalence on, 157–164 anti-vehicle mines, 144, 175 APMs. see anti-personnel mines (APMs) Argentina, 108, 114, 121–22, 125, 135, 151, 206 arms control for chemical weapons, 185–86, 192–95, 197, 202–3, 212–220 for landmines, 143, 158–59, 161, 165 scope of, 12, 38 Arms Control and Disarmament Agency (ACDA), 35, 38, 158–59 arms industry, US, 154–55 ASPA. see American Servicemembers Protection Act (ASPA) Assembly of State Parties, 147 atomic bomb, 62 autonomy, US preservation in CAT, 134–35 preservation in CWC, 228–29 preservation in ICC, 86–88 preservation in Landmine Treaty, 177–78 treaties' effects on, 22–25, 239– 243 Baker, James, 207, 209–11, 232 beliefs collective, 27 exceptionalist, 33 Bell, Robert, 170 Bellinger, John, 80, 83, 91 benign hegemony, 20 Biden, Joseph, 71 Bigeye bomb, 208–11 biological weapons, 192 Bolton, John, on ICC formation, 75– 78, 80, 90–91, 94 Boot, Max, 18

ACDA. see Arms Control and Disarmament Agency (ACDA) Adelman, Kenneth, 198, 200 Afghanistan, 62 AI. see Amnesty International (AI) Al Bashir, Omar, 51 Albright, Madeline on genocide, 60 on ICC formation, 60, 69, 90 on landmines, 153, 157, 159, 163, 170, 223–25 Almond, Gabriel, 27 American Chamber of Commerce, 40 American exceptionalism in discourse, 27–28, 45 and international institutions, 28– 30 origins of term, 26 in public opinion, 31–33 and unilateralism, 30 American foreign policy, research design for, 8 American opinion on American exceptionalism, 31– 33 on multilateralism, 32–33 American Red Cross (ARC) on landmine use, 149 American Servicemembers Protection Act (ASPA), 73–74, 83–84 Amnesty International (AI), on human rights and torture, 107–8 Anti-Ballistic Missile Treaty (ABM), 6 anti-handling devices, 145 anti-personnel mines (APMs) civilian victims of, 148–49 defined as to treaties, 145 group banning efforts for, 149–150 self-neutralizing, 175

277

278

Index

Bosnia, 58, 60, 151, 216 Brazil, 121–22, 125, 206 Bretton Woods institutions, 20 Bricker, John, 7 Bricker amendment, 7 Brzezinski, Zbigniew, 112 Burt, Richard, 199 Bush, George H. W. on chemical weapons, 205, 215 Bush, George W. on ASPA, 83–84 on ICC formation, 75, 79–82 on Landmine Treaty, 174–76 and New World Order, 58 BWC. see Verification Protocol to the Bacteriological (Biological) and Toxin Weapons Convention Canada on Landmine Treaty, 169–170 veto players in, 39 Carlucci, Frank, 203 Carter, Jimmy on chemical weapons, 196 human rights impetus under, 59– 60, 111–14 and Reagan, 125–26, 136–38, 196 on torture, 125, 136–37 case selection, 8–13 CAT. see Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) CCW. see Convention on Certain Conventional Weapons (CCW) CEDAW. see Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Central Intelligence Agency (CIA), 109 chain of command, 36 Chemical Corps, 196–97 chemical industry, 211–12 Chemical Manufacturers Association (CMA), 212–13, 225 Chemical Warfare Service (CWS), 192 chemical weapons (CW) binary, 196–99, 201–2

destruction of, 188–89 Ronald Reagan on, 198, 201–2 schedules of, 186–87, 190 stockpiles of, 196–97, 209 Cheney, Richard, 207, 222 Chile, 108–9, 114, 206 China, 61, 122, 154, 161, 170 Christopher, Warren on chemical weapons, 216, 222 on human rights, 59–60 on ICC formation, 59–60 on landmines, 158 Christopher Group, 60 CIDT. see Cruel, Inhuman, and Degrading Treatment (CIDT) civil wars, predominance of, 58 Clinton, Bill on ICC formation, 59–60, 68–70, 91–92 on landmines, 152, 163, 169–173, 175, 179–181 CMA. see Chemical Manufacturers Association (CMA) Cohen, William, 70, 154, 172, 174, 222, 225 Cold War chemical weapons during, 192 and genocide, 124 influence on CAT, 124 influence on ICC, 57–58 landmines and, 150–51 strategic concerns in, 108–9 Commanders-in-Chief (CINCs), 167 Committee against Torture, 104–5 Committee on Foreign Relations, role in treaties, 37 compliance in CAT formation, 104, 120 with chemical weapons, 187–191, 219, 221, 228–29, 241 discrepancies in, 4, 8, 25, 29 with landmine treaty, 147, 178, 240, 242 sanctions and, 25 Comprehensive Test Ban Treaty (CTBT) not ratified by US, 6 Obama on, 1 Convention Against Torture and Other Cruel, Inhuman or

The United States and Multilateral Treaties: A Policy Puzzle 279

Degrading Treatment or Punishment (CAT) case findings in, 133–39 as case selection, 10–11, 10t defined, 100 enforcement strategies for, 120– 22 legalization in, 101–5, 240t position continuity in, 125–27 ratification of, 128 Reagan's reservations about, 128– 130 US support for, 99–100, 116–18 Convention on Biodiversity, 6 Convention on Certain Conventional Weapons (CCW), 149, 160 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) not ratified by US, 6 Obama on, 1 Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on their Destruction (CWC) as case selection, 10t, 11, 185–86 characteristics of, 186–87 and chemical industry, 211–12 legalization in, 187–192, 240t verification mechanisms of, 185– 88 Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and on their Destruction (Landmine Treaty) case findings in, 177–181 as case selection, 10t, 11 characteristics of, 144–45 legalization in, 146–47, 240t not ratified by US, 6, 143–44 opposing arguments in, 219–221 US ambivalence on, 157–164, 171–72 Convention on the Rights of the Child (CRC), 6 crimes against humanity defined as to treaties, 53–54

in ICC formation, 52–60, 63, 66, 241 origin of term, 56–57 criminal activity, triggering ICC action, 53–54 Cruel, Inhuman, and Degrading Treatment (CIDT), 119 CTBT. see Comprehensive Test Ban Treaty (CTBT) cultural factors in treaty negotiation, 26–27 CWC. see Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on their Destruction (CWC) CWS. see Chemical Warfare Service (CWS) Darfur, 81–83 de Tocqueville, Alexis, 27 defense contractors, US, 155 defoliant herbicides, 193 delegation compared in four treaties, 240t, 241–42 defined as to treaties, 25 degree of, in CAT, 102–5 degree of, in ICC, 55–56 degree of in CWC, 190-1 degree of, in Landmine Treaty, 147 democracy, 27, 108, 115 Department of Defense (DOD) focus on ICC prosecution, 61–70 role in treaty-making, 35, 246 Department of State (State Department) on chemical weapons, 195, 200, 207, 209–10, 219–221 on CIDT, 119 on human rights, 113 on ICC formation, 59–61, 68–69, 75, 77, 80, 87–92 on landmines, 154, 159 role in treaty-making, 35 on torture, 116, 123, 130, 132, 136, 138 Destler, I.M., 32 dispute resolution, 191

280

Index

DOD. see Department of Defense (DOD) Dole, Bob on chemical weapons, 219–221, 231 on ICC formation, 83 on landmines, 156–57 Dole, Elizabeth, 155 domestic institutions, 2 domestic politics (U.S.) and treaty policy, 17, 33–34 due process, 55, 63, 68, 87, 107 Edwards III, George C., 42 environmental and sustainable development treaties, 5t exceptionalism. see American exceptionalism. extradition, and the ICC, 56 Federal Appeals Court, Filártiga ruling of, 111 Feinstein, Diane, 73 Filártiga ruling of Federal Appeals Court, 111 foreign aid and terrorism, 83 foreign policy analysis (FPA), 8 Foreign Relations Committee on chemical weapons, 217–18, 243, 246 on ICC formation, 71 role in treaty-making, 37, 40 on torture, 131, 133 as veto player, 39 FPA. see foreign policy analysis (FPA) France, veto players in, 39 GA. see UN General Assembly (GA) Gates, Robert, 79–80 Geneva Convention, on human rights and torture, 105–6 Geneva Protocol (1925), 192–93, 211 genocide and Cold War, 124 defined as to treaties, 53–54 in ICC formation, 52–66, 70, 82, 94 Genocide Convention effect on autonomy, 22 establishment of tribunals in, 57 Germany, veto players in, 39

Gorbachev, Michail, and Reagan, 202–4 Grams, Rod, 71 Grossman, Marc, 78 Gulf War, 166 Gulliver's Travels, as analogy of primacy, 19–20, 23 Haig, Alexander, 114–15 Halperin, Morton, 60 Harknett, Richard J., 23 Hegemonic Stability Theory, 20 Helms, Jesse on CAT formation, 132–33, 137 on chemical weapons, 218–226, 231 on ICC formation, 70–74, 89, 92 on Landmine Treaty, 173–74 Henkin, Lewis, 7 Herring, Pendleton, 44 Hiroshima, 62 House Foreign Affairs Committee, 110 Hudson, Valerie, 29–30 human rights and Amnesty International, 107–8 Bill Clinton and, 59–60 in CAT formation, 103–5 conceptual development of, 105– 6 rhetoric vs. reality of, 108–9 under successive administrations, 109–12 treaties regarding, 5t in US Constitution, 106–7 Human Rights Bureau, 38 Human Rights Commission, 116 Hussein, Saddam, and chemical weapons, 206–7 IATP. see Institute of Agriculture and Trade Policy (IATP) ICBL. see International Campaign to Ban Landmines (ICBL) ICC. see Rome Statute for the International Criminal Court (ICC) ICESCR. see International Covenant on Economic, Social, and Cultural Rights (ICESCR) ICRC. see International Committee of the Red Cross (ARC)

The United States and Multilateral Treaties: A Policy Puzzle 281

Ignatieff, Michael, 29 Ikenberry, G. John on American exceptionalism, 30– 31 on unilateralism, 20 ILC. see International Law Commission (ILC) IMF. see International Monetary Fund (IMF) inspections, on-site for chemical weapons, 185–89, 201–2, 204, 208, 214 for claims of torture, 104–5, 113, 120 for claims to ICC, 82–83, 86 for landmine stockpiles, 147 Institute of Agriculture and Trade Policy (IATP), treaty list of, 4–5 International Campaign to Ban Landmines (ICBL), 143, 159– 161, 163 International Committee of the Red Cross (ICRC), on landmine use, 149 International Covenant on Economic, Social, and Cultural Rights (ICESCR), 6 International Criminal Court. see Rome Statute for the International Criminal Court (ICC) international institutions examples of, 57–58 and exceptionalism, 3, 7, 28–32 limited power of, 136, 191 skepticism toward, 45, 71, 75 International Law Commission (ILC), and the ICC, 57–58 International Monetary Fund (IMF), 12 International Relations theory discussion summary of, 18, 44– 46 liberal, 33 research design for, 8 three schools of, 17 Iraq War, 58, 79, 81–82, 166, 206–7, 212, 215–16 JCS. see Joint Chiefs of Staff (JCS) Jervis, Robert, 18, 20–21 Joint Chiefs of Staff (JCS)

on landmines, 153–54, 163, 180 role in treaty-making, 35 Jones, Elizabeth, 77–78 Kagan, Robert, 18 Kahn, Paul, 26 Kelley, Judith G., 43 Kenyatta, Jomo, 51 Kerry, John, 221–22 Khong, Yuen Foong, 29 Kirkpatrick, Jeane, 115 Kissinger, Henry, on human rights, 113 Koh, Harold Honjun, 60–61, 70 Korean peninsula, 166–67 Kosovo, 81 Kroesen, Frederick, 201 Kull, Steven, 32 Kyl, John, 221–22 Kyoto Protocol Against Climate Change effect on autonomy, 23 not ratified by US, 6 labor rights, treaties regarding, 5t Landmine Treaty. see Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and on their Destruction (Landmine Treaty) landmines. see anti-personnel mines (APMs) Latin America, 108–9 Leahy, Patrick, on landmines, 152–163, 168, 173–74, 178, 245 legalization compared in four treaties, 239–243 degree of, in CAT, 101–5 degree of, in CWC, 187–192 degree of, in ICC, 53–56 degree of, in Landmine Treaty, 146–48 three dimensions of, 24 liberalism, in International Relations theory, 17 Lindsay, James, 40 lobbying, role in treaty-making, 40 Lott, Trent, 222–24 Luck, Edward, 28–30 Lugar, Richard, 218, 222–24 MAC. see Mines Action Canada (MAC)

282

Index

MacKuen, Michael, 42 Madsen, Deborah, 27 Malone, David M., 29 manifest destiny, 27–28 Melian Diologue, 20 Mendoza Agreement, 206 Mines Action Canada (MAC), 169 Mouw, Calvin, 42 multilateralism. see also treaties, multilateral. defined, 2–4 public opinion on, 32–33 Murkowski, Frank, 132

Nagasaki, 62 National Defense Authorization Act, 84 national interest, 1–2, 22, 30, 243 National Security Advisor, role in treaty-making, 36 National Security Council (NSC), role in treaty-making, 36 NATO. see North Atlantic Treaty Organization (NATO) NGOs. see Non-governmental organizations (NGOs) Nixon, Richard, 193, 195 non-governmental organizations (NGOs) on chemical weapons, 202 efforts to ban landmines, 144, 149–151, 155, 169, 176 increasing influence of, 57–59, 156 reputation of, 117 nonparticipation, 2, 7–11, 72–73, 91 North Atlantic Treaty Organization (NATO) in Cold War, 151, 194, 198 in the ICC, 56, 58, 62, 81, 90 zero option strategy of, 198 NSC. see National Security Council (NSC) nuclear missiles, 198 Nuclear Nonproliferation Treaty, role of, 12 Obama, Barack on ICC formation, 84–86 on landmines, 176–77 treaties introduced by, 1 obligation

compared in four treaties, 240– 41, 240t defined as to treaties, 25 degree of, in CAT, 101–2 degree of, in ICC, 53–54 degree of, in Landmine Treaty, 146 Office on Special Operations and Low-Intensity Conflict, 38 Organization for the Prohibition of Chemical Weapons (OPCW), 187–191, 229 Ottawa Convention. see Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and on their Destruction (Landmine Treaty) Ottawa Process, 170–74, 180–81 Paraguay, 111 Patrick, Stuart, 28, 30–31 peace and security, treaties regarding, 5t peacekeeping forces immunity from prosecution, 78– 81 landmines and, 151 Pell, Claiborne on CAT formation, 128, 132–33, 137–39 on chemical weapons, 216–17 Pentagon. see Department of Defense (DOD) Perle, Richard, 200 Perry, William, on landmines, 158 Pevehouse, Jon, 43 policy implications, 248–49 Powell, Colin, on ICC formation, 75, 82, 90 power, characteristics of, 22 POWs. see Prisoners of War (POWs) precision compared in four treaties, 240t, 242–43 defined as to treaties, 25 degree of, in CAT, 102 degree of, in ICC, 54–55 degree of, in Landmine Treaty, 147

The United States and Multilateral Treaties: A Policy Puzzle 283

Preparatory Committee for ICC (PrepCom), 64–66 president, the role in treaty-making, 35, 41 as veto player, 34–35, 38 presidential leadership hypothesis in CAT, 138–39, 243– 45 hypothesis in CWC, 231–33, 243–45 hypothesis in ICC, 91–93, 243– 45 hypothesis in Landmine Treaty, 180–81, 243–45 Pressler, Larry, 132 prisoners of war (POWs), 106 Program of Action Against the Illicit Trade in Small Arms and Light Weapons (SALW), 6 public opinion on American exceptionalism, 31– 33 on multilateralism, 32–33 Rabkin, Jeremy, 31 Reagan, Ronald on American exceptionalism, 27 on CAT formation, 137–38 on chemical weapons, 195–98, 201–2, 204–7, 230–32 distrust of Soviet Union, 194–95, 200, 203–4 Gorbachev and, 202–4 on human rights, 110, 114–16, 125–27, 144–166 realism in International Relations theory, 17 types of, 21 Red Cross. see American Red Cross (ARC) research design and methodology, 7–9 reservations, understandings, and declarations (RUDs), 6–7, 128–131 Rice, Condoleeza, 79–80, 83–84 Rome Statute for the International Criminal Court (ICC) angry reactions to, 76–77 Bush and Obama on, 79–82, 84–86 as case selection, 10t

compared to Torture Convention, 54–55 criminal activity subject to, 53–54 legalization in, 53–56, 61, 240t not ratified by US, 6, 51–52, 75 organs of, 52–53 veto players in, 88–91 Roth, Kenneth, 7 RUDs. see reservations, understandings, and declarations (RUDs) Ruggie, John, 4, 22 rule of law as American ideal, 31, 108 treaties regarding, 5t Rumsfeld, Donald, on ICC formation, 75, 79 Russia, 161, 170, 200, 204, 215, 224 Rwandan civil war, 58, 60

SALW. see Program of Action Against the Illicit Trade in Small Arms and Light Weapons (SALW) sanctions, 118–19 Scheffer, David Albright and, 60 on ICC formation, 65, 68, 70, 73, 90, 92 Schultz, George, 195, 198–200 Scott, Shirley, 21, 23 senators motivations of, 39–40 role in treaty-making, 40–45, 245–47 Shalikashvili, John, 163–68 Shattuck, John, 60 social constructivism, in International Relations Theory, 17 Somalia child rights and, 6 civil war in, 58 sovereignty aspects of, 103, 121, 241 Helms on, 137 of international institutions, 191 limits of, 58 loss of, 5, 67, 132 protection of, 101, 247 Soviet Union on CAT formation, 122–23

284

Index

in Cold War, 108–9 opening of, 202–6 special interest groups, role in treaty-making, 40 State Department. see Department of State (State Department) Status of Forces Agreement (SOFAs), 77 structural factors in US treaty policy, 17–21 Sudan, 82 terrorism and CAT formation, 103, 242 and foreign aid, 83 in ICC formation, 66 war on, 79, 114, 132 torture and Amnesty International, 107–8 defined as to treaties, 99–100, 105–6, 117–18 treaties, multilateral. see also specific treaties list of treaties, 4–5 not ratified by US, 6 US Constitution on, 13, 37, 101, 247–48 US support or rejection of, 1–2, 240t treaty-making analysis of process, 247–48 key players in, 33–35 process of, 35–38, 41 "win-set" in, 35 treaty/treaties, defined, 13 tribunals, international ad hoc tribunals, 63–65 establishment of, 56, 63–65 Tsebelis, George, 33–35, 38 UN. see United Nations (UN) UN General Assembly (GA) and CAT formation, 105–6 and ICC formation, 63–64 UN Mission in Boznia-Herzegovina (UNMIBH), 78–79 UN peacekeepers immunity from prosecution, 78–81 landmines and, 151 UN Security Council on ad hoc tribunals, 63–65 on ICC formation, 53, 65–67

on threats to international peace, 58 veto power in, 12UN UN Transitional Administration in East Timor (UNTAET), 78 UNCLOS. see United Nations Convention on the Law of the Sea unilateralism accusation of, 1–4 explanations for, 17–19 in public opinion, 31–33 unipolarity, 17–21 United Kingdom, veto players in, 39 United Nations Convention on the Law of the Sea (UNCLOS) not ratified by US, 6 Obama on, 1–2 United Nations Convention on the Rights of Persons with Disabilities, 1, 6 United Nations (UN) creation of, 20 and criminal tribunals, 57–58 United States (US) accused of unilateralism, 1–2 Europe's nondeference to, 51–52 international relations of, 3, 81 primacy of power in, 18–19 status privileges of, 12 Universal Declaration of Human Rights, 105–6 universal jurisdiction in CAT formation, 100–104, 111, 114, 122, 134, 241 in ICC formation, 72 UNMIBH. see UN Mission in BozniaHerzegovina (UNMIBH) UNTAET. see UN Transitional Administration in East Timor Uruguay, 108, 114, 122, 206

US Congress on chemical weapons, 198, 216– 19, 229–231 and human rights legislation, 109–12 role in treaty-making, 36–38 as veto player, 34–35 US Constitution on chemical weapons, 221 on human rights and torture, 106– 7

The United States and Multilateral Treaties: A Policy Puzzle 285

on torture, 129, 133, 135 on treaty ratification, 13, 37, 101, 247 US foreign policy status privileges of, 12, 18–19 under successive administrations, 109–12 US Mission in Geneva, 126 US Senate on CAT reservations, 131–33 on chemical weapons, 218–226 on ICC formation, 71–73 US treaty policy. see also specific treaties analysis of process, 247–48 cultural factors in, 26–27 explanations for, 17 generalization regarding, 246 institutional context of, 35–38 in International Relations theory, 12 issue areas in, 10, 12 research design and methodology for, 7–9 signing delays in, 6 variance in, 5–6, 8 viewed in context, 4–7, 5t Vance, Cyrus, 112–13, 126 Verba, Sidney, 27 verification mechanisms. see also inspections, on-site. for chemical weapons 185–88, 191 Verification Protocol to the Bacteriological (Biological) and Toxin Weapons Convention (BWC), 6 veto players hypothesis in CAT, 136–38, 243– 45 hypothesis in CWC, 231, 243–45 hypothesis in ICC, 88–89, 243– 45 hypothesis in Landmine Treaty, 178–180, 243–45 identification of, 38 role in other governments, 39 role in treaty-making, 2, 33–35 Vienna Convention on the Law of Treaties, 6

Vietnam War, 62, 109, 164 Waltz, Kenneth, 19 war crimes of Axis powers, 56–57 defined as to treaties, 53–54 war on terror, 79, 114, 132 Weinberger, Caspar, 194–95, 200– 204, 222, 232 Winthrop, John, 27 World Bank, 12 World Politics journal, on US power, 18–19 Yalcin, Hasan, 23 Yugoslavia, 60, 62

About the Book

Why is the US so reluctant to join global multilateral treaties, even when those treaties are in line with its own policies? And how does it decide which treaties to ratify? Finding that the answers to these questions is less straightforward than may be apparent at first glance, Johannes Thimm explores the role of domestic politics in US unilateralism—and concludes that the real puzzle is not why the US supports so few international treaties, but rather how it manages to join any at all. Johannes Thimm is a researcher in the Americas Division of the German Institute for International and Security Affairs (SWP).

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