In Part One of this article, I summarized the views of Yale Law Dean Harold Koh, who has been nominated as the State Department’s Legal Adviser, on the problem of enforcing human rights treaties -– and the vaguer “international norms” that Koh believes are also part of international law. According to Koh’s colleague, Prof. Oona Hathaway, “treaty ratification is not infrequently associated with worse practices than otherwise expected . . . . [b]ecause human rights treaties tend to be weakly monitored and enforced . . . .”

But according to Koh, enforcement is not done primarily by states. It is done by transnational civil society, which is responsible not only for creating international human rights law, but for enforcing it. Given that premise, it is no wonder that, as Hathaway points out, the number of treaties that are signed do not correlate with improved human rights. Under Koh’s theory, the places that need the enforcing efforts of transnational civil society the most –- that is, the world’s dictatorships –- are the ones that have the least of it.

But all that is a matter of theory. What did Koh do in practice, when he was Assistant Secretary of State for Democracy, Human Rights, and Labor, the position he held from 1998 to 2001? Well, one approach to enforcing international human rights law, as Koh recognized, was to use “power and coercion,” i.e. to apply sanctions on the basis of conditionality until behavior improves. After having endorsed this in his work, Koh was uncomfortable with it in practice. In May 2000, he urged Congress not to link improved human rights in China with trading privileges in the U.S., telling the Washington Post on May 2 that, “We profoundly believe that conditionality will not advance the cause of religious freedom in China and will not improve the circumstances of any of the religious adherents about whom we are all deeply concerned.” Nor did he support the Durban boycott.

So if conditionality is problematic, and boycotts are out of the question, what remains? The answer, of course, is engagement. As Koh put it in 2000 in introducing a State Department report on religious freedom, the U.S. should “apply a policy of principled purposeful engagement.” This is the word that runs throughout most of Koh’s work, and it is, of course, the basis on which he urged the U.S. to participate in Durban. Koh is sensitive to the criticism that “engagement” may be seen as nothing more than talking: on the contrary, he emphasized in 1999 during Congressional testimony on human rights in China, it is frank talking. But the fact remains that it is simply talking, backed up neither by the “power and coercion” that he supposedly sanctioned, nor by the transnational civil society that he praises.

And in practice, Koh has been relentlessly credulous about the effectiveness of engagement. That is understandable, given that in practice he has little interest in any other approach -– and that engagement is also his strategy for promoting legal and political change in the U.S. On November 2, 2000, for example, Koh published a glowing op-ed in the Washington Post celebrating the opening of North Korea by the engagement diplomacy of Madeleine Albright. Nine years after this “breakthrough,” North Korea remains as closed, as oppressive, and as nasty as it was when he wrote in praise of Albright’s “global policy of principled, purposeful engagement . . . [by] using diplomatic dialogue with authoritarian governments to press for greater freedom for oppressed peoples.” In 2008, Freedom House reported that the North Korean “regime subjects thousands of political prisoners to brutal conditions, and collective or familial punishment for suspected dissent by an individual is also a common practice.”

In late 1998, Koh argued that his purpose in meeting with Slobodan Milosevic was to persuade the Yugoslavian dictator to embrace, as the Washington Post reported on December 24, a “wholesale package of reforms” that would resolve the Kosovo crisis. In the end, Milosevic was persuaded not by engagement, but by NATO’s air war. At the end of 1998, Koh was even attacked by Human Rights Watch, Amnesty International, and Human Rights in China for restarting an official dialogue on human rights just after China cracked down on the fledgling opposition China Democracy Party: According to a report in the South China Morning Post, the NGOs “believe[d] recent conduct by the Chinese Government makes a dialogue inappropriate and unlikely to be productive.” Koh did not agree, but the NGOs were right: ten years later, Freedom House continues to rank China as “Not Free” and to report on its “continued restrictions on the media and repression of those seen as challenging the regime.”

More broadly, Koh’s tenure from 1998 to 2001 was replete with celebratory statements about his successes at, or sorrowful reports of his failure in, international institutions such as the U.N. Human Rights Commission. For him, this was where the action of enforcing human rights was at. As he put it on April 18, 2000, in an official response to the Commission’s refusal to condemn China, “The Commission is the appropriate venue for members of the United Nations to discuss violations of human rights standards.” Few observers agreed with him: by 2005, U.N. Secretary General Kofi Annan admitted that “the commission’s declining credibility has cast a shadow on the reputation of the United Nations system.” The Commission’s credibility had declined because -– like its successor, the U.N. Human Rights Council -– it focused almost entirely on the supposed evils of Israel, and was led by such human rights luminaries as Sudan, Zimbabwe, China, Russia, and Saudi Arabia.

But that did not matter to Koh. On May 8, 2001, in an op-ed in the Washington Post, he reacted with alarm to the fact that the U.S. had been voted off the U.N. Human Rights Commission. According to him, the Commission was, indeed, “filled with posturing and high-minded speeches by countries such as China and Cuba.” But it “has also showed an unrivaled capacity to spotlight abuses . . . . . Whether we like it or not, the commission will help develop the world’s multilateral agenda on human rights . . . . If we withdraw from that agenda . . . we will increasingly find ourselves its target.”

Of course, by being voted off the Commission, the U.S. had already been identified as a target. But for Koh, the explanation of that was simple: “Our belief in our global exceptionalism has too often led us to vote alone at the commission, falsely assuming that such isolationism has no costs.” Normally, “isolationism” is a pejorative term used to describe a policy of reducing official U.S. contacts with or involvement in the broader world. But according to Koh, even when the U.S. participates in an international institution, it is practicing “isolationism,” motivated by a belief in its own exceptionalism, if it votes against any measure favored by the majority. That sums up the problem with the “engagement” argument: it sounds like “let’s talk,” but in practice, it means “don’t rock the boat.”

The fact that others were busy rocking it in the real world, not the conference chamber, did not concern Koh. His condemnation of the U.S. continued: “far less law-abiding countries have ratified international treaties on economic, social and cultural rights . . . our Senate refuses even to hold hearings on the wisdom of joining these instruments.” This is a startlingly naïve claim. It does not appear to have occurred to Koh that the fact that many “far less-law abiding” countries have signed a treaty might be a valid reason for the U.S. to refuse to sign on: if the other signatories are not law-abiding, the treaty is worthless, because the signatories will not obey it.

Koh’s position comes down to a call for participation by the U.S., and enforcement through its courts, but a free ride for the law-breakers who, in his eyes, gave the treaty credibility by signing it in the first place: enforcement for me, but not for thee. The fact that these “far less law-abiding countries” were not likely to follow through on their commitments –- or, indeed, would use them as cover –- was not a central problem for Koh: for him, the real problem was that the U.S. had not signed on as well. The issue at stake was not enforcing treaties that had already been freely signed by the world’s states: it was on the need for the U.S. to hurry up and sign too. The one-way nature of these commitments, or the Senate’s reasoned worries about the treaties in question, were irrelevant.

All of this flows logically from Koh’s vision of enforcement: What matter most is transnational civil society, and it matters because –- as he claims –- it has the power to create legally-binding norms of behavior that can and must reach into societies, with or without the approval of the government and legislature of the day, and be applied by courts. This is not a vision that, for all Koh’s writings and experience, treats the problem of enforcement with seriousness, because it places the greatest emphasis on the places -– like the United States –- that need it the least, while passing off the infinitely harder challenges of places like North Korea, Zimbabwe, China, Iran, Cuba, and Venezuela to the vagaries of the U.N., an institution in which the world’s less than democratic states have a majority. Nor is it a vision that does any favors to the concept of the treaty, which it diminishes by turning into a vehicle for unenforceable aspirations, or to the “advice and consent” role of the Senate, which it regards as an obstacle to the creation of yet more such aspirations.

The problem is not that the world has too few treaties. The problem is that the world has too many treaties, and especially too many human rights treaties. Their very profusion is a sign that they are not being enforced, and that activity in signing them is viewed as a substitute for achieving their aims. The move away from treaties and towards norms, a move that Koh has championed, only exacerbates this problem.

Instead of promoting human rights around the world, Koh’s vision is part of a broader campaign that has given cover to the world’s worst states, enhanced the credibility of the international institutions -– like the Durban Conference –- that they dominate, encouraged American diplomats such as former Secretary of State Albright to cheapen their position and their country by conducting credulous meetings with dictators, and focused much of his energy on devising transnational processes that are aimed, first and foremost, at the United States in general, and at evading the “advice and consent” role of the Senate in particular. This is already an influential vision. Before allowing it to grow further in strength, the Senate should consider carefully what it means for human liberty, for the diplomacy and courts of the United States, and for the future of its own Constitutional role.