The Promise and Limits of the International Law of Torture
Oona A. Hathaway
Yale University - Law School
TORTURE: A COLLECTION, Sanford Levinson, ed., New York: Oxford University Press, 2004
In this chapter, which was published in the Oxford University book "Torture: A Collection," I explore the place of international law in efforts to bring an end to the practice of torture. The debate over whether international law "works" has until now been highly polarized. On the one hand, skeptics of international law claim that international law is mere window dressing. States don't give up the right to engage in torture unless they have no intention of using it anyway. And once they join treaties like the Convention Against Torture, states will act no differently than if they had not done so.
On the other side of the debate are those who reject this dismissive view of international law. They argue that states do not simply join treaties that are in their material interests. Rather, states will join a treaty if they are committed to the ideas and goals it embodies, even if doing so may be costly. And once states join, believers in international law argue, they will abide by their international legal commitments "most of the time."
I, by contrast, argue that international law has a real effect, but not one that either friends or foes of international law would expect. Both advocates and skeptics of international law are missing important parts of the picture. Both fail to consider the role of internal enforcement of international treaties on countries' willingness to join and abide by them. Moreover, they ignore almost completely the indirect effects of treaties on countries' decisions to accept international legal limits on their behavior and then to violate or abide by them. Recognizing these dynamics creates a broader perspective on the role that international law plays in shaping how states actually behave and hence provides a more accurate picture of both the potential and the limits of international law.
Number of Pages in PDF File: 14
Keywords: international law, torture
JEL Classification: K33
Date posted: June 19, 2008
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