International human rights treaties have a problem. Pretend you are a state, and I am a state. If we make an arms control treaty and you cheat, I can re-arm, and thereby nullify the advantages you have gained. This threat reduces the advantages of cheating, and therefore the incentives to do it. Similarly, if we make a trade treaty and you cheat by imposing tariffs on imports from me, I can retaliate by imposing tariffs on imports from you. Again, you will have gained nothing. In other words, both arms control treaties and trade treaties can be enforced by the signatories, simply by detecting and retaliating against cheating.

But human rights treaties do not work that way. If you are a state and I am a state, and we sign an international convention promising, for example, to respect free speech, what am I supposed to do if you break your pledge? Impose restrictions on free speech at home in retaliation? Clearly not. By their very nature, because they are about internal behavior, not external conduct, human rights treaties pose an exceptionally difficult enforcement problem. That is one reason why, until relatively recently, few treaties focused on human rights.

There are certainly exceptions: Britain’s long-running campaign against the slave trade is a case in point, though even that comparison is vitiated by the fact that Britain was quite willing to use unilateral force to back up its diplomacy. But until the post-1945 era, and especially until the end of the Cold War, these unenforceable treaties were rare. That was because states regarded treaties as mutually binding, enforced commitments between states, and they were only willing to restrict their own sovereignty if others did so after negotiation and in a verifiable way.

But over the last forty years, the number of human rights treaties has exploded. Indeed, the very concept of human rights has changed. Now, as supporters such as Harold Koh at Yale Law School are proud to claim, issues like arms control are conceptualized as human rights problems. Koh views this as an advance, because it gave campaigners a way to make the issue appealing to everyone, which made it possible to move faster than arms control negotiations normally do. In reality, it is a retreat: fast treaties are not necessarily better ones, and by sweeping up arms control into the paradigm of human rights treaties, the unenforceable model of the latter has contaminated the old, enforceable model that used to be applied to the former.

From binding commitments, treaties have become unenforceable aspirations. That has made them very much easier to sign, which helps explain why there are so many human rights treaties in the world today: the cost of a signature is minimal, and the public relations benefits are considerable. But this says nothing about what this model of treaty-making has done for human rights. As Prof. Oona Hathaway at Yale Law School has summarized the problem:

[It] appears that treaty ratification is not infrequently associated with worse practices than otherwise expected. These findings can be explained in part . . . by the dual nature of treaties as both instrumental and expressive instruments. Treaties not only create binding law, but also declare or express the position of countries that ratify them. Because human rights treaties tend to be weakly monitored and enforced, countries that ratify may enjoy the benefits of this expression — including, perhaps, reduced pressure for improvements in practices-without bearing significant costs.

The problem is even worse, of course, when less-well defined ‘international norms’ stand in for treaties. For self-declared transnationalists like Koh – whose views and career are particularly relevant because he has been nominated as the State Department’s Legal Adviser – this vagueness is cause for celebration, not concern, because it means that norms supposedly having the same validity as international law can come from almost anywhere. This is fundamentally why Koh opposed the U.S. boycott of the 2001 Durban Conference: that carnival of anti-Semitism was, as he put it, part of the “emerging global agenda on race discrimination,” and it therefore had a basic validity that even its disgraceful excesses did not destroy. As Koh put it in his 1998 Frankel Lecture, later published in the Houston Law Review:

[L]aw-declaring fora thus include treaty regimes; domestic, regional, and international courts; ad hoc tribunals; domestic and regional legislatures; executive entities; commission of international publicists; and nongovernmental organizations.

But this remarkably broad claim about the origins of international law does not meet the main point: How are human rights treaties, or the even broader category of international norms, to be enforced? Koh’s answer on this point comes in two forms: his writings as a legal scholar, and his practice while Assistant Secretary of State for Democracy, Human Rights, and Labor, the position he held from 1998 to 2001.

Koh addressed the point explicitly as a scholar in January 1998, in the Addison C. Harris Lecture at the University of Indiana School of Law, later published in the Fall 1999 number of the Indiana Law Journal. According to Koh, the simple answer – Hathaway’s answer – that international human rights law is often not enforced is wrong. On the contrary, it is “enforced through a complex, little-understood legal process that I call transnational legal process.” Koh acknowledges that there are other avenues:

[If] the United States is attempting to encourage China to follow norms of international human rights law . . . [it should] act at all five levels: the level of power and coercion, to apply external and political sanctions; at the level of self-interest, to develop carrots that can be offered to China in terms of trade benefits or other kinds of economic incentives; at the level of liberal theory . . . ; at the level of communitarian values, to seek to encourage China to ratify the International Covenants on Civil and Political Rights . . .

But for Koh, the most important part of the process is the final, transnational level:

and finally, from a legal process perspective, to seek to engage the Chinese people . . . in a variety of international interactions that will cause them to internalize norms of international human rights law. . . . [W]e seek to encourage a change in the nature of the Chinese political identity to reconstitute China as a nation that abides by core norms of international human rights law.

Koh’s defenders often claim that he does not want to effect fundamental political change in the United States. The fact is that the process he identifies here for China is precisely the same process he sets out for the U.S. And that process is the process of transnationalism. So how, according to Koh, is international human rights law enforced?

Not, he acknowledges, by states: “the few mechanisms created had virtually no enforcement . . . . The overall picture . . . is one of impotence, ineffectiveness . . . .” Enforcement is the province not of states, but of “transnational norm entrepreneurs, government norm sponsors, transnational issue networks, interpretive communities and law-declaring fora, bureaucratic compliance procedures, and issue linkages . . . .” In short, for Koh, transnational civil society 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. On the other hand, from his point of view, Koh’s approach offers wonderful possibilities for changing the U.S., precisely because it is an open and liberal society. That, of course, is the point Koh contests: for him, it is the U.S., which he refers to as one of the world’s “skeptical” states, that is in need of change.

Ted R. Bromund is the Senior Research Fellow at the Margaret Thatcher Center for Freedom and a frequent contributor to Commentary.