Wednesday, January 12, 2005

The Accountability Problem

I want to weave together a few separate strands from earlier postings, particularly the question of UN accountability, skepticism towards multilateralism, and the rule of law.

Julian is concerned about a double standard in which some commentators apply more lenient criteria to UN bad acts than to the U.S. I think we’re all in agreement that the UN needs to clean house in terms of financial mismanagement, accountability of peacekeepers, etc., but I also think that the U.S. should hold itself to the same levels of accountability that it is insisting on for the UN (as well as for other governments). And, as this discussion is about international law, I want to particularly focus on whether the U.S. is taking seriously its being accountable for some of its international commitments.

In On the Rule of Law, the book I highlighted in my previous post, Brian Tamanaha wrote:

While it might be correct that most laws are followed most of the time, the most powerful states, and less powerful states when it matters most to them, nonetheless disregard international law by their leave when they consider it necessary for perceived national interest or to preserve the regime in power. Realpolitik remains a predictable mainstay of international law.

I think that while many politically conservative critics of the UN rail against its lack of accountability, they also dislike multilateralism more generally because it increases the accountability of the U.S. concerning its international obligations. In other words, accountability is great from the UN but for the U.S. it is undesirable because it makes realpolitik more difficult. (This, by the way, is also why so many militarily weaker states are enthusiastic about international law on topics such as the use of force.)

Consider international courts and tribunals as an example of the tension between accountability and realpolitik. With the possible exception of the International Court of Justice, international tribunals until recently were largely constructed in a manner in which strong states could more easily call weaker states (or their citizens) to account for their actions than vice versa. The Nuremberg and Tokyo Tribunals were constructed by victorious allies. The Yugoslav and Rwandan Tribunals were managed by the international community (mainly the U.S. and E.U. states) and were focused on bad acts by the citizens from the countries that were tearing themselves apart, as opposed to the international troops dispatched into the warzones. On the economic side, the investor-state dispute provisions in bilateral investment treaties (BITs) were mainly used by companies from rich, developed, countries to protect their investments in poorer, developing nations.

But recently, new courts and tribunals have increasingly brought rich nations to account. NAFTA Chapter 11, for example, includes a dispute resolution procedure similar to most BITs, but now our co-signatories are Canada and Mexico. There is significant investment by Canadian and, to a lesser extent, Mexican companies into the U.S. Now the U.S. has found itself on the defensive on issues ranging from the regulation of gasoline additives to government procurement rules. All of a sudden, investor-state dispute resolution, a regime that the U.S. has pursued for 30 years, doesn’t seem like such a great idea in the eyes of many commentators.

Similarly, the International Criminal Court is built upon the same normative foundations as the Nuremberg, Rwanda, and Yugoslav tribunals. The ICC as an institution does have problems that should cause the U.S. concern, but the criticism I have seen most often is a fear of an independent prosecutor that could be politicized and hamper U.S. troops. The solution many such critics suggest is that the Security Council must ratify any indictment, thus leaving any potential indictment open to the veto of one of the permanent members of the Security Council, effectively immunizing them. More importantly, no solution short of this seems to satisfy such critics. It would be a triumph of realpolitik over accountability.

Here is my concern: some are using accountability as a sword to attack the UN because of its lack of accountability while at the same time shunning international institutions because they could call for U.S. accountability. Nobody says you have to be logically consistent, but the implications of such a stance are not good for the role of law in international affairs, let alone the rule of law.