The story of Japan, international legal norms, and migrants, is really two interwoven stories, both with implications for the politics of inter-national law. The first story is about a state adopting interinter-national laws to be seen as a legitimate state. Even this story has two phases for Japan. Earlier in its history Japan adopted international laws, and mod-elled its own domestic law after the legal structure of powerful states, to become a legitimate power. The government used the institution of international law to appear like the European powers, and to be able to play the game of power politics in the role of the powerful, not the role of the victim. But after the 1970s Japan the more powerful state also needed international law to be seen as a legitimate state. And now the symbol of legitimacy was not power per se, but whether it adopted international laws to govern its domestic human rights policies. Japan ratified a variety of international conventions because without having done so it appeared aberrant, unlike the legitimate club of states to which it aspired. These ratifications in turn had a profound impact on domestic laws addressing foreigners in Japan. In short, in both time periods, the international community offered up a model of legitimate statehood that involved adopting international standards, and Japan took it on.
But the second story has been the focus of this chapter. What have the implications of international laws been for migrants in Japan? In many ways they have been highly significant. As Lawrence Repeta argues, with the adoption of the human rights covenants (and I would argue other international instruments), human rights activists have ‘gained a tool of coherent legal structure sanctioned by the UN and many nations viewed by Japan as the most advanced’.67In the context of concern over internationalisation and reputation, the usefulness of this tool should not be downplayed and it is difficult to account for improvement in poli-cies towards foreigners without the contextual background of Japan’s international identity and the international standards.
It matters in particular that these international standards are laws. David Martin68 argues that between 1945 and the 1970s UN
67 Lawrence Repeta, ‘The International Covenant on Civil and Political Rights and Human Rights Law in Japan’, Law in Japan 20 (1987), 3.
68 David A. Martin, ‘Effects of International Law on Migration Policy and Practice: The Uses of Hypocrisy’, International Migration Review 23: 3 (1989).
pronouncements on human rights were routine and were not widely expected to have any real impact on government practice. Nonetheless, these legal norms can now be invoked in NGO claims against govern-ments, sometimes lending support to those claims.69 Before the devel-opment of international human rights instruments, opponents of gov-ernment practice might have been able to argue that a particular policy was a ‘bad idea’, but they now have more powerful weapons: govern-ment practice is not only bad, but ‘violates international law’.70 These laws ‘transform the NGO from a busybody unjustifiably poking its nose into someone else’s business into a steward of agreed international prin-ciples, simply asking questions or pressing points it has a right to care about’.71 Similarly, Ellen Lutz and Kathryn Sikkink argue that law has an important expressive function. It formally restates social values and communicates norms. In the case of Latin America they point out that le-galisation increased the number of pathways available to those seeking to raise human rights by increasing the number of venues in which hu-man rights issues could be raised.72The Japanese case is similar in that international law has opened a new avenue for those in Japan seeking to overcome discrimination.
International law has been critical even though law in Japan is thought to have weak sanctions and despite the fact that social norms are thought to be more important for social change. Legal norms are thought to affirm social consensus and to be effective when social control breaks down.73 But law in Japan provides a route for foreigners to seek remedies that are otherwise largely unavailable. There is no social consensus favour-ing migrant rights, nor are there many social norms in their favour.
Law may not be the first-choice remedy in Japan, but it is often the most effective for foreigners. As John Haley74 points out, despite weak sanctions, law establishes a legitimate norm of principle. Once there are
69 It should be noted that reference to international norms does not necessarily lend legitimacy to NGO claims. If the government in question views international norms as irrelevant or, as in the case of Malaysia, as tools of Western hegemony, reference to these norms may be detrimental.
70 Martin, ‘Effects of International Law’, 554. I would argue that the same logic can be used when norms that are not codified in law are involved, although the impact may certainly be greater if there is a legal basis for the argument.
71 Martin, ‘Effects of International Law’, 554.
72 Ellen L. Lutz and Kathryn Sikkink, ‘International Human Rights Law and Practice in Latin America’, International Organization 54: 3 (2000), 657–8.
73 Katzenstein, Cultural Norms and National Security, pp. 43–4.
74 John Owen Haley, Authority Without Power (New York: Oxford University Press, 1991), p. 186.
public expressions of law violations they must be addressed. That said, without the sort of continued change in social norms discussed in the be-ginning of this chapter, brought about in part by many everyday people in Japan seeing their country as ‘abnormal’ with regard to foreigners, the impact on foreigners will be limited.
7 The International Criminal Court
David Wippman
1In July 1998, after years of preparatory work and five weeks of intensive negotiations, 120 states voted in Rome to approve a treaty intended to es-tablish the first permanent International Criminal Court (ICC). Less than three years later, with a speed that surprised even the treaty’s propo-nents, the treaty surpassed the sixty ratifications needed to bring it into force. The United States, joined by only six other states, voted against the treaty, and continues to search for ways to limit the new court’s reach, even though almost all of the United States’ closest allies have ratified the treaty or are moving towards ratification.
This outcome was not pre-ordained. The United States, under Pres-ident Clinton, was predisposed to support efforts at creating an inter-national criminal court. Such a court was consistent with the Clinton Administration’s overall attitude towards human rights and account-ability for human rights abuses, and with US support for the Yugoslavia and Rwanda war crimes tribunals. In 1994, the International Law Com-mission (ILC) produced a draft statute for the International Court, the culmination of years of work undertaken at the request of the United Nations General Assembly. This draft statute, which included a ‘gate-keeper’ role for the United Nations Security Council, helped trigger an official commitment from the Clinton Administration to support in principle the ICC project.
The ILC draft attracted numerous comments and criticisms from states and non-governmental organisations (NGOs) alike. These
1 The author would like to thank Jeffrey Dunoff, Steven Ratner, Jane Stromseth, Robert Summers, the participants in Alan Sykes’ and Jack Goldsmith’s international law collo-quium at the University of Chicago Law School, and the participants in Andrew Guzman’s International Law Workshop at Berkeley’s Boalt Hall School of Law for helpful comments on an earlier draft of this chapter.
comments and criticisms were reflected in the draft consolidated text that formed the basis for the 1998 Rome negotiations, but which left open all of the important and contested issues. As the negotiations in Rome began, the United States had reason to believe that its views would attract enough votes to produce a treaty the United States could sup-port, if not ratify. But when the Rome negotiations ended, the United States felt compelled to vote against the treaty, joined only by China, Iraq, Israel, Libya, Qatar, and Yemen.2
It may be possible to explain this outcome largely in terms of tradi-tional accounts of state pursuit of material interests, along the lines of conventional realist analyses of international law and politics. But such an explanation would be unsatisfactory in several important respects.
For realists, international law and legal institutions such as the ICC are created by powerful states to further their political purposes. In this case, the largest and most powerful states – the United States, China, India, and to some extent Russia – all opposed the treaty adopted in Rome.
More importantly, the entire enterprise of creating the ICC does not fit comfortably within the realist framework. States wishing to maximise their freedom of action internally and internationally in general have an interest in insulating their conduct from any authoritative external review and assessment. Even if such assessments cannot be enforced in the conventional sense, a decision by a respected international tribunal that a state’s action (undertaken by nationals acting in accordance with official policy) is illegal, or worse, criminal, threatens to undermine in-ternational and domestic support for the action at issue. From this stand-point, it is not surprising that the Nuremberg, Yugoslavia, and Rwanda tribunals were all imposed on particular states by other states whose own actions would not be subject to scrutiny. But the Rome treaty poten-tially subjects nationals from all states to scrutiny and possible criminal prosecution. An interest-based analysis can account for this outcome, but only in part.
Similarly, a neoliberal institutionalist analysis, which sees states as rational actors in pursuit of efficient means to realise individual and collective interests, captures only part of what transpired at Rome.
To some extent, the Rome treaty was motivated by a desire to solve
2 The final vote in Rome was unrecorded. As a result, there is some uncertainty as to precisely which states joined the United States and Israel in voting against the treaty. The states mentioned in the text are the ones most often named in news reports of the outcome.
collective action problems and to reduce the transaction costs inherent in establishing ad hoc tribunals. But the Rome treaty was driven even more fundamentally by a desire on the part of many participants in the negotiations to develop and stabilise norms of legitimate behaviour by states and non-state actors. As suggested by Christian Reus-Smit in chapter 2, rationalist analysis works best in areas where states can plau-sibly be seen to have clear, pre-existing material interests; it does not work well in explaining the creation of institutions such as the ICC that are driven in significant part by normative as well as material impulses.
A more complete understanding of what transpired in Rome requires consideration of the ‘reasons for action’ of the various actors involved, including both states and NGOs. In particular, it requires consideration of how actors’ interests and identities interacted to produce positions on particular contested issues. Further, it requires consideration of the context of the negotiations, which drove actors to frame their positions in ways compatible with the overall enterprise of creating a quintessen-tially legal institution.
This chapter attempts to explain the outcome in Rome by exam-ining the arguments made by the United States and other countries on the key contested issues, and the role of law and politics in the formulation and resolution of those arguments. If politics is under-stood broadly, to encompass, as suggested by Reus-Smit, purposive and identity-constitutive forms of reason and action as well as those based on material interests, then the outcome in Rome was determined by politics.
This was necessarily so, since international law (whether considered as a body of rules or a process of decision-making) does not provide clear answers to the key contested issues. Whether to confine the court’s ini-tial jurisdiction to genocide, war crimes, and crimes against humanity (the eventual majority position) or to include such other crimes as drug trafficking, aircraft hijacking, and terrorism, whether to require Security Council authorisation for the initiation of investigations and prosecu-tions or to confer that power in addition on an independent prosecutor and on the individual state parties, whether to adopt a broad jurisdic-tional scheme or a narrow one – are all questions of institujurisdic-tional design that are not susceptible to resolution through simple application of pre-existing legal principles.
But it is incomplete, both theoretically and descriptively, to say that law did not control the contested issues at Rome. Many issues were not contested precisely because they were viewed by the Rome delegates as largely if not wholly controlled by pre-existing law. Moreover, even
the contested issues were not negotiated in a vacuum. The parties to the Rome negotiations understood that they were creating a legal institu-tion – a criminal court with a defined jurisdicinstitu-tion over specified crimes and with formal procedures for the initiation and conduct of investiga-tions, the indictment and trial of alleged offenders, and the sentencing and incarceration of those convicted. This effort took place against – and could only make sense within – the larger context of existing in-ternational law and institutions. Because inin-ternational law has its own
‘language of justification’, much of the negotiations in Rome took the form of legal arguments. These arguments were deployed in support of the interests of the particular actors making the arguments, but the process of invoking and pursuing legal argumentation in turn helped shape the range of possibilities viewed as permissible and the content of the final agreement in particular and distinctive ways. Moreover, these legal arguments were also shaped by competing general conceptions of what legal institutions and rules should look like and what role in-ternational law and institutions should play in inin-ternational affairs. In turn, those competing general conceptions were shaped by the actors’
conceptions of their interests and their identities.
In this sense, law and politics were inseparable at Rome; each shaped the other. The forms of argumentation, though, were distinct. Legal ar-guments took the form of claims about what international law requires or should require as a legal system. They enabled actors to press posi-tions through nominally disinterested invocation of accepted principles agreed to in other contexts and in advance of the Rome negotiations. By contrast, political arguments took the form of claims about what would or would not advance the interests of particular actors. They did not appeal to previously agreed-upon principles. Both kinds of arguments were often made simultaneously. For example, arguments on whether the court should exercise jurisdiction over nationals of states that did not ratify the treaty creating the court sometimes relied on explicit ap-peals to political interests (for example, powerful states, particularly the United States, will not support or accept a court with jurisdiction over non-party nationals) and sometimes on equally explicit appeals to what international law does or does not permit (for example, treaties cannot bind non-party states).
The two kinds of argument were seen as different in nature, with vary-ing applicability dependvary-ing on the issue and the determinacy of existvary-ing law with respect to that issue. From the standpoint of the participants, legal arguments on some issues held the potential, at least in theory, to
be dispositive. The US contention that the Rome treaty could not bind non-party states was one such argument. Delegates to the Rome confer-ence did not dispute the existconfer-ence or validity of the legal rule relied on by the United States; rather, they denied the accuracy of the US premise that the court’s exercise of jurisdiction over non-party nationals would amount to binding non-party states to treaty obligations they had not ac-cepted. Implicitly, it was generally accepted that if the US premise were valid, the legal rule governing non-party states would control even if contrary in this instance to the preferences of most states. By contrast, arguments about the proper relationship between the court and the UN Security Council were understood to be predominantly political, with no argument inherently dispositive and everything at least potentially open to bargaining.
On some issues, legal arguments joined political arguments as possi-bly persuasive but not controlling. For example, many delegates urged that the definition of crimes to be included within the court’s jurisdic-tion track existing internajurisdic-tional law as closely as possible, for reasons of clarity, consistency, and efficiency, values important to most legal systems. In addition, many participants in the negotiations favoured or opposed proposed articles on the basis of their perceived fit with particular conceptions of the role of international law and international legal institutions in promoting a particular vision of international or-der. Thus, an expansive jurisdiction for the court has been supported as necessary to an effective criminal court and attacked as a form of judi-cial overreaching; similarly, the United States has variously been urged to support the proposed court as a means to bolster international law generally or to oppose it as an intrusion on sovereign decision-making inappropriate for a still primitive international legal order.
In an effort to assess the role of and relationship between law and politics in the ICC negotiations, this chapter examines the major issues dividing the United States from the large majority of states that voted to adopt the ICC statute. In particular, the chapter examines the arguments made with respect to the role of the Security Council in referring cases to the court, the scope of the court’s jurisdiction, and the function of complementarity, as well as the identity and interests of those making the arguments. The chapter also examines the systemic arguments made for and against US support for the ICC.
This review of the Rome negotiations supports the view articulated by Reus-Smit that politics is driven by normative as well as material concerns, and that law is both a product of – and constitutive of – this
multifaceted politics. In the context of the ICC, the arguments of both supporters and critics of the proposed new court evinced a combination of normative, material, and identity-based concerns. Ultimately, those concerns reflected fundamentally divergent conceptions of the role of international law and legal institutions in international relations, with court supporters generally seeing international law as a means to con-strain national politics and advance a human rights-oriented conception of international society, and critics expressing scepticism about both the efficacy and desirability of using international law in that way.