Turning to real European politics, the crisis continues but looks set to come to no good outcome. FIFA shows no interest in scheduling a rematch, despite Thierry Henry’s statement that a rematch would be the fairest option. Those involved seem determined to do a reductio ad absurdum on Richard Posner’s arguments about responsibility. French footballers (and – judging from Trappatoni’s discreet circumlocutions – perhaps Irish footballers too) clearly feel that it is their obligation to push the rules as far as they can go and further – and if the referee doesn’t spot the odd match-and-qualifying-round-determining handball here or there; well, the culprit has no obligation to seek anything but his own advantage, and anyway, it all balances out in the end, doesn’t it? Incompetent regulators shrug their shoulders and refuse to take any responsibility for the mess. And Irish and French politicians deplore the outcome – but declare themselves powerless to do anything about it. Whether this spells out a possible case for world government to prevent such atrocities occurring in the future, I leave to the theorists. However, I don’t think anyone can deny that the end result is manifestly contrary to even the most minimal principles of justice, fairness and efficiency, completely exploding Posner’s arguments in the eyes of all fairminded individuals.

More from Scott, here.

US plans to levy fees on European Union tourists and business travellers visiting the US have come under fire in Brussels and could prompt the EU to enact its own visa-like system for US travellers, according to diplomats. … In the past, most Europeans visiting the US for less than 90 days have not had to make pre-departure arrangements. The same applies to US visitors to the EU under visa-reciprocity guidelines. “If this tax is indeed introduced, the Commission will have to re-evaluate once again whether it is tantamount to a visa,” said a spokesman for Jacques Barrot, the commissioner for justice and home affairs, on Tuesday.

If the EU carries through on this threat, American tourists to Europe who have to pay visa fees, wait in queues at overworked consulates etc, should know who is responsible – the Walt Disney Corporation of America.

JAY RASULO STOOD IN FRONT OF TWO MASSIVE SCREENS, each projecting his balding visage, and did what he loves to do: sell a big idea. The dapper, diminutive chairman of Walt Disney Parks and Resorts implored 500 tourist industry executives to ask the federal government for an expensive favor. … Executives from tourism giants such as Marriott, American Express and Hertz buzzed with excitement—and skepticism. Getting taxpayers to underwrite overseas commercials had been the travel industry’s Holy Grail for decades. But the idea had never gotten very far in the councils of government. … A big lobbying push was needed for a big Ask—the term lobbyists use to describe what they are pleading for from Congress.

It’s an interesting story. When it became clear that the travel industry was unlikely to get US taxpayers to pay for a $200 million travel promotion campaign, lobbyists started looking for alternative ways of raising money – and the most obvious was to top up the industry’s own efforts with the Mickey Tax. Hence the bill, and hence the possible retaliatory measures from Europe. All thanks to Jay Rasulo and his balding visage.

what’s most troubling about “SuperFreakonomics” isn’t the authors’ many blunders; it’s the whole spirit of the enterprise. Though climate change is a grave problem, Levitt and Dubner treat it mainly as an opportunity to show how clever they are. Leaving aside the question of whether geoengineering, as it is known in scientific circles, is even possible—have you ever tried sending an eighteen-mile-long hose into the stratosphere?—their analysis is terrifyingly cavalier. A world whose atmosphere is loaded with carbon dioxide, on the one hand, and sulfur dioxide, on the other, would be a fundamentally different place from the earth as we know it. Among the many likely consequences of shooting SO2 above the clouds would be new regional weather patterns (after major volcanic eruptions, Asia and Africa have a nasty tendency to experience drought), ozone depletion, and increased acid rain.

Kolbert’s closing words are, however, a little unfair.

To be skeptical of climate models and credulous about things like carbon-eating trees and cloudmaking machinery and hoses that shoot sulfur into the sky is to replace a faith in science with a belief in science fiction. This is the turn that “SuperFreakonomics” takes, even as its authors repeatedly extoll their hard-headedness. All of which goes to show that, while some forms of horseshit are no longer a problem, others will always be with us.

Not unfair to Levitt and Dubner, mind you, but to science fiction. After all, two science fiction authors, Frederik Pohl and Cyril Kornbluth, had their number down way back in 1953 with The Space Merchants (Pohl, amazingly, is still alive and active).

The Conservationists were fair game, those wild eyed zealots who pretended modern civilization was in some way “plundering” our planet. Preposterous stuff. Science is always a step ahead of the failure of natural resources. After all, when real meat got scarce, we had soyaburgers ready. When oil ran low, technology developed the pedicab.

These immigration prisons constitute the new face of imprisonment in America: the speculative public-private prison, publicly owned by local governments, privately operated by corporations, publicly financed by tax-exempt bonds, and located in depressed communities. Because they rely on project revenue instead of tax revenue, these prisons do not need voter approval. Instead they are marketed by prison consultants to municipal and county governments as economic-development tools promising job creation and new revenue without new taxes. The possibility of riots usually goes unmentioned. … Initially, most speculative prisons were privately owned, a case of the federal government outsourcing its responsibilities. But prison outsourcing is rarely that simple anymore. The private-prison industry increasingly works with local governments to establish and operate speculative prisons. Prison-town officials have a mantra: “If you build a prison the prisoners will come.”

Most of the time, these public-private prisons are speculative ventures only for bondholders and local governments, because agreements signed with federal agencies do not guarantee prisoners. For the privates, risks are low and the rewards large. Usually paid a set fee by local governments to operate prisons, management companies have no capital investment and lose little, other than hefty monthly fees, if inmate flows from the federal government decline or stop.

… Prisons are owned by local governments, but local oversight of finances is rare, and the condition of prisoners is often ignored. Inmates such as those in Pecos are technically in the custody of the federal government, but they are in fact in the custody of corporations with little or no federal supervision. So labyrinthine are the contracting and financing arrangements that there are no clear pathways to determine responsibility and accountability. Yet every contract provides an obvious and unimpeded flow of money to the private industry and consultants.

The piece isn’t perfect – it can’t quite decide whether it is a story about the problems of the prison system or about the problems of the US approach to immigration. The two are of course closely connected, but each is very complicated in its own right, and trying to explain both at once makes for a top-heavy account. I would also have liked to have seen more aggregate data to support the specific arguments that the author is making (I suspect though that one of the problems with keeping this metastasizing system under control is that there isn’t any source of good general data out there). But it is an eye-opening piece of investigative journalism, looking at a story that doesn’t get nearly as much attention as it deserves. Recommended.

There’s a quasi-serious point buried in there, which is that the Internets, and the possibilities it offers to non-regular TV watchers like me to retrieve the information that we are interested in and no more can lead to deficits in certain kinds of common cultural knowledge. Not the kinds of civic knowledge that Cass Sunstein etc care about – but celebrity gossip, junky pop culture etc.¹ Targeted advertising – to the extent that it actually works – is obviously no solution. But spam, designed as it is to cater to the lowest and broadest of tastes actually provides me with significant information that I probably wouldn’t pick up otherwise. Not that it makes spam trawling worthwhile or anything, but at least it gives me some benefit.

¹ Not that I am above these things at all; just that I don’t usually have the time, energy and attention to dig it out. It has to be a Jon Stewart-worthy scandal, preferably involving Republican senators, highly specialized providers of intimate services, and greased porcupines or the like, to make it through my filters.

From reading a more recent post that he has written, Eric seems to be misinterpreting my criticisms of his account as a criticism of rational choice approaches tout court, which they are not. I have no problem either with rational choice or with power based accounts of politics, both of which I have used extensively in my own work. I’ll respond in greater detail to the rest of Eric’s most recent reply at the end of this post, but first of all want to underline what I do think is wrong with his account. It is not that it is rational choice – but that it is a form of rational choice that is too vague and general to tell us very much about international politics or international law.

The fundamental question that I think Eric’s book leaves begging is straightforward – what constitutes state interests? Eric has a lot of fun poking holes in global legalists’ accounts of the importance of sub-state actors and claims that states are best considered as unitary actors. However he himself never comes up with a satisfactory alternative account of what states’ interests are. The two positive statements that I can find (perhaps there are more, or a more developed account in Eric’s work elsewhere):

Begin with a theory that states act rationally in their national interest, which may be understood as a combination of security, wealth and similar goods (p. 44)

and

In order to define a state’s interest for the purpose of analyzing international behavior, then, one must rely on a theory, even if a very-rough-and-ready theory, about how the interests of citizens are translated by the political process into government policy. One might assume, for example, that democratic governments roughly express the preferences of the public at large, while authoritarian governments express the preferences of an elite. Whatever the case, it seems sensible to assume that trade law reflects state interests in advancing the prosperity of exporters and import-competers, human rights law reflects people’s altruism, the law of the sea reflects merchant and other commercial interests, and so forth. In general, states seek to maximize wealth and security of their people (or elites), and this general policy manifests itself in particular trade, human rights, security, and other foreign policies. (p. 78)

This account of state interests permits nearly everything. It poses no constraints either on the fashion in which states seek to achieve their interests, or on those interests themselves. First, consider Eric’s claim that states ‘act rationally in their national interest.’ This sounds nearly as straightforward as, say, the claim that firms act rationally to maximize their corporate profit (rational actor models of state behaviour are indeed, more often than not, tarted up economic models of firm behaviour – the main difference is the descriptive text surrounding the algebra). And indeed it is nearly as straightforward as the claim that firms act rationally to maximize their corporate profit. The problem is that this claim is not straightforward at all. To quote Daniel Davies

if you allow strategic and reputational issues to be given weight in managerial decisions, then it is very hard indeed to think of something that can’t be justified as being in the best interests of maximising shareholder value over the long term. Paying above-market wages? Efficiency wage argument, maximises shareholder value. Donating to charity? Part of the marketing budget, don’tcha know. Voluntarily refusing to sell violent video games to children? Forestalls the danger of much more punitive government regulation down the line. Etc etc.

As Daniel notes more pungently in an earlier post on state behaviour, this springs from one of the basic dilemmas of game theoretic accounts of politics – that in decently interesting models that take account of iterated relationships, there are too many damn equilibria that can be achieved:

The Folk Theorem in game theory states that any outcome of a repeated game can be sustained as an equilibrium if the minimax condition for both players is satisfied. In plain language, it can be summarised as stating that “if we take strategic considerations into account, there is a game-theoretic rationale for practically anything”. This formulation leads on to my contribution, the Davies-Folk Theorem, which states that “if we take strategic considerations into account,there is a game-theoretic rationale for practically fucking anything” (it’s a fairly simple corollary; proof available from author on request).

Rational pursuit of self-interest in indefinitely iterated relationships can cover a multitude of virtues, including, I suspect, most of the kinds of international cooperation that global legalists would like to see happening. Respect for human rights (perfectly rational if you suspect you will get punished for abusing em) – check. Obeying international rulings that substantially inconvenience you (quite rational, as long as you believe that you will benefit over the long run from being perceived as a good international citizen) – check. And so on – I don’t believe it is necessary to bore the reader with repeated demonstrations of the obvious. Once you allow that reputation and similar forces can help explain rational behaviour, you admit that nearly everything can be described as being rational.

One way to at least mitigate this problem a bit is to suggest that states only care about one thing. If they care only about security, as hardcore realists sometimes suggest, then it could be that many forms of cooperation are implausible (because they may help the other state more than they help you, and the other state can turn this into military advantage which may hurt you over the long run. However, Eric seems to disallow this. In his argument, sometimes state interests revolve around security. Sometimes they turn on economic prosperity. Sometimes they turn on altruism towards others. This means that it is very hard to see what (apart from an utterly unrealistic cosmopolitanism) might be excluded from state interests. And, by extension, it means that it is hard to see what could be excluded from a theory of international law that is based on state interests.

This leads to a degree of argumentative slippage that I find somewhat dissatisfying. As I read it, the book veers between two quite different argumentative goals, neither of which ends up being well served in the end. Sometimes, Eric seems to be interested in arguing that international law, as a discipline, should be remade along more rigorous lines, hewing more closely to the empirical results of political science and rational choice theory. While these two goals strike me as not entirely coherent (there is an accumulating body of empirical work out there suggesting that rational choice doesn’t explain everything at all in international politics), it seems to me to be a perfectly respectable, and indeed laudable project. Rational choice and power relations explain a lot as long as you are careful in defining your theoretical priors (viz., not coming up with circular definitions of power etc). I have no doubt that international law scholars could learn a lot from both this evidence and these theories. I understand that some international law scholars are upset at this style of argument, feeling that it has negative normative consequences (if international law is good, we should not be undermining it). I don’t find this particular style of criticism compelling at all – if Eric is right on the substance, he is right, and if he is wrong, he is wrong. He has no duty as a scholar to shut up and not criticize arrangements that others find normatively attractive.

Yet it is also quite clear that Eric would like to do more than to remake the discipline of international law on better empirical and theoretical foundations without any regard for its innate content. He persistently argues that international law has a modest role in international relations. Throughout the book, he is at pains to argue against accounts (including accounts with a fair degree of empirical evidence to support them) which suggest that international law can have generalizable and substantial consequences for the behaviour of powerful states. Some scholars (by no means an overwhelming majority as best as I can tell) would agree with him. But they do so on far narrower accounts of state preferences and state strategic incentives than Eric is willing to argue on, and are consequently more vulnerable to reasoned criticism if others can show that preferences are not as these scholars have claimed, or that states face different strategic problems than those that they have identified.

Eric (and this is really where I think that the book has a serious flaw), argues in contrast for a vague and broad notion of what preferences are, and a nearly completely unspecified account of how states seek to act upon them (again – perhaps he speaks to this more in work elsewhere that I am unaware of). The result is that nearly any result can be assimilated to his theory. If your basic claim is that powerful states do what powerful states want to do (without telling us much about what states want to do in the first place), then it is very easy to assimilate any result to ‘prove’ the correctness of your theory. States invariably end up doing something – therefore you can argue that they have done what they wanted to do in the first place (this is the revealed preferences problem – in spades). By shoving everything that is potentially interesting about international behaviour into the black box of state preferences, the theory neatly avoids pretty well any possible falsification, and also (which is worse, in my book) avoids saying anything that is very useful. What is really interesting about international relations are the processes through which preferences can be changed (which Eric seems largely uninterested in discussing), and the processes of strategic construction through which the options available to actors may change over time. For example: the European ‘preference’ for institutions that are partially binding and involve some independent systems of accountability, would, if it were realized among, say, the body of rich democratic states, result in a very different kind of international law governing these states than the kind we have today. Eric may find this to be an implausible outcome – but his theory seems to me too vague and general to provide much in the way of an argument as to why it is implausible.

So – what I would have liked in an ideal world would have been two separate books. The first would have been a general account of why international legal scholars need to pay attention to debates over empirical evidence and rational choice theory (even more ideally, it would canvas other theories too – but that may be asking a bit much). The second – and quite different one – would have taken a particular stance within these theoretical and empirical debates, with a much tighter and more clearly specified framework (a formal model or two would be nice), and use of evidence to test this theory and expose both its strengths and its weaknesses. The current book reads to me as a somewhat unhappy amalgam of the two, with the result that it neither provides a good general foundation to reformulate the study of international law, nor yet good evidence and theory to convince us that international law is tightly constrained in the ways that Eric believes that it is. Indeed, the two goals are mutually undercutting. I share with Eric the belief that the study of international law would be a lot better if it took proper account of the body of empirical work that is out there as well as the powerful role of self-interest in explaining behaviour. I am also skeptical of some at least of the arguments of international law scholars about its delicious awesomeness. But I do not think that a general account of the former, if properly done, really provides a specific critique of the latter – for that you need a very different, and much more tightly specified, set of arguments.

Now, onto his most recent post. Eric complains that:

Henry reads too much into the papers. The papers do not show that the Commission caused any countries to improve their human rights practices.

But as the quotes Eric provides show, I never made the claim that Eric appears to be imputing to me. I merely argued that the Commission influenced sanctions, and appeared to be far more responsive to actual human rights concerns than Eric has acknowledged in the past (for example, he briefly complains in the book that “the UN Commission on Human Rights … was dominated by human-rights abusing states and was heavily criticized for focusing on Israel and ignoring the rest of the world. The Human Rights Council has, so far, no better a record.”). Jim and Erik’s articles suggest that the UNCHR - which would appear on its face to present about as unpromising a venue for actual normative respect for human rights as one could imagine – actually showed growing respect for real human rights issues, and appeared to have material consequences for states with poor human rights records. These are findings that have substantial consequences for Eric’s earlier claims. The question of compliance is a far muddier one, and one that I specifically avoided pronouncing upon (my broad understanding is that as best as we can tell, given measurement issues etc, international human rights laws do have substantial consequences for compliance, contra Eric, but that these consequences work through more complicated mechanisms than those that many human rights lawyers would identify).¹ More generally, Eric seems to provide two possible explanations of the anomaly that this presents for his particular arguments. First – that the UNCHR was a failure:

Still, the UNCHR was ultimately a failure. That is why states disbanded it and replaced it with the Council. It may well be the case that it targeted abusers more than non-abusers, as Lebovic and Voeten document, and perhaps even put more pressure on abusers than non-abusers. But this was not good enough. Imagine a criminal justice system that is more likely to punish actual criminals than non-criminals, but still punishes some (relative) innocents and lets most criminals get away. Such a system will enjoy little support; even if the sanctions actually sting, they would still not necessarily improve behavior (because the states that improve their human rights records at great cost to themselves must contend with the possibility that they will continue to be criticized).

Second – that the UNCHR was too much of a success.

An even more alarming possibility is that the Commission was disbanded not because it failed but because it succeeded too well. Tired of being criticized by their peers, members of the Council have instituted a number of review mechanisms (universal periodic review that prohibits fact-finding and group judgments, “thematic” review that emphasizes general problems rather than particular governments) that ensure that particular states will rarely be explicitly criticized by the Council as a body, which is what has happened. These activities clog the agenda, leaving no time to discuss Sudan, Egypt, or North Korea. The free rider problem and continuing significant disagreement about which rights are human rights and what can justify violating them have doomed the enterprise.

These possible explanations obviously cannot both be true at the same time. Arguing in the alternative may perhaps be an accepted approach in the legal academy (I am not, obviously, a legal scholar), but it doesn’t seem to me to be a good way of dismissing the merits of empirical claims (it can, of course, be useful, at the earlier stage of hypothesis formulation).

Update: Eric points out correctly via email that I mischaracterized Erik and Jim’s article in one important respect. I say that they argue that the UNCHR seems to have had “material consequences for states with poor human rights records.” Erik and Jim find no evidence that a country’s human rights record directly affects its aid receipts – instead, they argue that there is a relationship between UNCHR resolutions and multilateral aid receipts. This is not of course the same thing – and to suggest that it was reflects sloppy wording on my part.

Eric also replies here – since the debate seems to be running out of steam (he titles his post ‘part n’), I will keep my own reply short. Briefly, he suggests that the major problem that others have found with his (and Jack Goldsmith’s work) is not that it is falsifiable, but that it is false. Fair enough, up to a point – but my reading of his work is that he himself clearly doesn’t consider the more cogent of these criticisms to be valid tests of the falsifiability of his argument. For example, he considers the enforcement of rulings within the European Union to “have limited relevance to international law” because Europe “has been undergoing a process of unification for several decades” (p.49). Furthermore – as I have noted already – the relationship between his particular claims (about the stark limits of international law) and his underlying theory (about states as rational actors with any one of a number of possible preferences in a given context) is somewhat obscure. The place where he perhaps comes closest to making a strong claim that rational choice precludes the kinds of cooperation foreseen by international law is in his early discussion of collective action theory – but here he makes much stronger claims about the consequences of collective action theory than do the theorists of collective action with whom I am familiar.²

¹ I do note that Eric’s claim that “even significant sanctions, far worse than the refusal to extend loans or aid, rarely cause states to change their behavior” seems to run in the face, say, of Emilie Hafner Burton’s work on the human rights consequences of preferential trade arrangements.

² For example, Eric claims that “A state can be bound by a treaty only if it consents to it; thus a treaty that will solve a global collective action problem requires the consent of all states, or all states that contribute to that problem” (p. 29). This may simply be careless wording on Eric’s part, but the bit after “thus” is not supported by collective action theory as I understand it. There is nothing in collective action theory that precludes an actor which really cares about a given collective action problem from individually making up for free riders by contributing more to cover the share that they ‘should’ have covered. Russell Hardin discusses this extensively in Collective Action; in international relations, it is the basis of theories of hegemonic provision of public goods. Collective underprovision of public goods is surely a problem for international action, but one cannot say that it is an insuperable one on the basis of collective action theory alone.

In his second post Eric expresses strong skepticism about my suggestion that reports like the Goldstone report can be effective in improving human rights.

Let us suppose that the Goldstone report was reasonable and fair (I have not read it, so I have no opinion on this issue). It is worth recalling that it was commissioned by the Human Rights Council, and would not have taken place but for the decision of that institution. The Human Rights Council is dominated by illiberal states that cannot agree to condemn North Korea or Iran or Sudan, but can agree to condemn Israel. When not condemning Israel, it does two things: it tries to advance a conception of human rights that most western states reject; and it issues bland and uninformative periodic reviews of the human rights practices of states. … (In the case of the Goldstone report, some European countries abstained rather than voting no because they objected to the Council’s failure to mention Hamas in its resolution adopting the report.) Henry’s view is that if reports like the Goldstone report are regularly issued, and the state that is the subject of the report takes a “reputational hit,” that can only be a good thing, because at least some states will be more likely to respect human rights and comply with the laws of war. But can it be seriously entertained that the minority bloc (and it is a bloc) will put up with this state of affairs? Why should they, exactly? If they value human rights and the laws of war, they can comply with them. If they don’t, they would certainly not put themselves in the position of being the only group of states that will be condemned for violations, giving a free pass to a larger group of states that, as it turns out, act much worse. International law needs institutions if it’s to get beyond its primitive state, but institutions don’t avoid the problem of power politics; they embody them.

There may be a part of Eric’s argument that I am not getting here (the claim in the penultimate sentence is a little too compacted for me to be entirely sure what he is saying, and I would be grateful to have it unpacked), but two things are worth pointing out. First – that the Goldstone report, despite the initial HRC mandate, did prominently condemn both Hamas and Israel (Goldstone made it a condition of his involvement that he be allowed to investigate Hamas’s activities as well as Israel). Second, and more importantly that there is good evidence that the HRC’s predecessor, the even more widely excoriated UN Commission on Human Rights did have a measurable, and arguably positive, effect in punishing notorious human rights violators, despite its many flaws.

Here, I am relying on two important articles by Jim Lebovic and Erik Voeten. First, in a piece (paywalled) for International Studies Quarterly they provide evidence that UNHCR motions become increasingly difficult over time to explain using the pure ‘power politics’ approach that Eric prefers.

In what we believe is the first systematic study of post-Cold War UNCHR voting practices, we therefore seek answers to the basic questions, ‘‘Who got condemned and by whom?’’ We find that commission targeting and punishment were driven to a considerable degree by the actual human rights records of potential targets and that reputation effects matter in the condemnation by the UNCHR of country human rights practices. States that ratified important human rights treaties were held to a higher standard, and states that were not actively involved in the production of global public goods were held to a lower standard when the commission administered punishment. This evidence notwithstanding, realist factors, such as capabilities and partisanship, were also important motivations for sanctioning states in the UNCHR, though less so overall with the end of the Cold War.

They conclude:

In the voting analysis, the realist partisanship, capabilities, and membership hypotheses acquire support in the Cold War period and, to a somewhat lesser extent, in the post-Cold War period. … At the same time, the analyses of targeting, levels of punishment, and public resolution voting speak to the strong – and strengthening – effects of reputation and social conformity on the commission’s behavior. The post-Cold War evidence demonstrates compellingly that the commission went after the worst offenders and that this effect dominated all others in the model. Indeed, given a possible selection effect … the voting analysis probably exaggerates the degree to which partisanship, membership, and power helped rights violators to escape public condemnation. (HF – my italics)

… the findings point to both the strengths and weaknesses of the realist argument that IOs, such as the UNCHR, are forums within which states play out their rivalries and political insecurities. Even a casual glance at the descriptive evidence is sufficient to conclude that, throughout much of the early history of the commission, members were less in the business of punishing human rights abuses and more in the business of helping friends, undercutting adversaries, and deflecting criticism of their own (sometimes abysmal) rights records. … our Cold War-era … analyses demonstrate that U. S. political allies were subject to relatively harsh penalties from the commission, that governments supported and opposed others based on their ideologies and alignment, and that UNCHR membership had its privileges. Unquestionably, too, hypocrisy continued to thrive on the commission. … How else to explain that the rights records of governments throughout the Middle East have gone largely ignored and, when charged, the repressive governments of Saudi Arabia and China have always been let off the hook?

But this evidence must be evaluated in context. … while skeptics rightfully deride the willingness of the commission to target various serious offenders, they must concede that the commission was forcing an increasing number of repressive regimes to defend their records in private and in public. This is no small achievement. No less importantly, the indications are that participation or reputation within the international community was a critical determinant of commission behavior. Other things being equal, the probability of being scrutinized by the UNCHR was lower, in the post-Cold War era, for states that contributed personnel to UN peacekeeping operations and, for the entire period, for states that absorbed thecosts of maintaining a regular presence within the UNGA (by simply casting votes, including abstentions). Because countries that contribute toward collective goods within the community seem to receive more favorable treatment than countries that shirk their responsibilities, it appears that ‘‘good citizenship’’ or at least a ‘‘good reputation’’ matters within the international community.

… our results provide considerable empirical support for the existence of mechanisms – drawn from liberal institutionalist and constructivist theory – that could push commission targets toward domestic reforms. If it can be surmised from our evidence that governments are held accountable for their behavior and not just the ‘‘spin’’ put on that behavior, and that governments can acquire (or lose) legitimacy through their association (disassociation) with IOs, then there is reason to suppose that governments can change their behavior in response to nonmaterial rewards and punishments. It just might be, then, that governments can be induced to treat their citizens by a more humane standard.

Second, Jim and Erik have a more recent piece (paywalled) in the Journal of Peace Research that goes beyond ‘surmises’ about broad legitimation effects, and asks whether or not UNHCR condemnatory motions have measurable consequences for the states involved. They find no evidence that such motions affect bilateral aid between states. However, they find clear evidence that condemnatory motions are associated with lower levels of multilateral aid.

The statistical analysis provides strong evidence that UNCHR resolutions that condemn a country for poor human rights performance are correlated with large reductions in World Bank and multilateral loan commitments, but have no impact on bilateral aid allocations. Instead, bilateral aid responds mildly to short-term changes in levels of civil rights. … they shed light on whether public shaming votes in international organizations
actually ‘matter’. This issue was addressed heretofore with the circumstantial evidence that countries would not exert energy in shaming, and defending against it, if such actions carried no weight. A more convincing case is built around the practical consequences of these sanctioning votes, as they affect donor allocation patterns. We account for this finding, in theoretical terms, by arguing that public votes communicate information about actual norms violations and political preferences within the international community. This information can be useful to other IOs, such as the World Bank, that make consequential decisions under constraints imposed by the preferences of their political principals.

Second, the findings contribute to the large literature on material consequences that governments experience for failing to live up to human rights standards. This literature has focused mostly on bilateral aid or trade relationships and has reduced the role of IOs, at least by implication, to persuading or socializing donors to design their aid policies around the human rights practices of potential recipients. We argue that governments often do not have the incentives to punish norm violators bilaterally, even if these governments would prefer, in the abstract, to punish rights abuses. This gives governments incentives to delegate the enforcement of human rights norms to multilateral institutions, such as the World Bank – this is an important point, because prior research suggests that states might soften their abusive practices with the right foreign incentives, for example, preferential trade agreements.

If I understand Eric’s arguments about the CHR at all well, this provides troubling evidence against them. I would be startled if Eric were to argue that the HRC is a ‘better’ example than its predecessor of the kinds of problems that he identifies. Every piece of evidence we have would suggest that the UNCHR was, if anything, worse afflicted by the pathologies that he is interested in. Yet the only serious study that I am aware of (perhaps Eric knows of others) provides strong statistical evidence that the UNCHR was not all about the power politics as Erik would claim, and that UNCHR resolutions were increasingly well explained over time by normative factors (whether or not states genuinely were human rights abusers), and reputational ones (whether or not states were good international citizens). A follow-up study furthermore shows that these condemnations had significant material consequences for the states targeted. I would be very interested to see his response to these pieces (especially since I know that he has some familiarity with, and respect for, Erik Voeten’s single-authored work, and is more generally much more interested than most international law professors in building on the findings of political scientists). Finally, if (and this is certainly not explicitly stated by Eric), his normative case against the HRC extends backwards to its predecessor too, it is, at the very least, substantially overstated. The UNCHR did a considerably better job in targeting actual human rights violators than its critics suggested. If, alternatively, the HRC represents a substantial step backwards from the UNCHR, I would be very interested to see the evidence and supporting arguments stating why this is so.

One possible response Eric could make would be to argue that this is still well explained by states’ interests (albeit perhaps with a different understanding of those interests than in his original work). But this would still be vulnerable to the second, and more serious criticism that I want to make of his book – that it doesn’t really have a theory of what states’ interests are, and that without such a theory its explanatory power is highly limited. I hasten to add that this is a general problem for accounts of international politics based around state behaviour – no-one has come up with a generally convincing account of what states’ interests are. However, it is a particular problem for a book that, like Eric’s, wants to make a strong argument about the inherent limits of international law. More on that in my next post.

As a novel it is a dismal affair: gracelessly written, ploddingly plotted, and long. Oh God so long. And as a political tract it advances a conception of politics both grossly condescending and depressingly elitist. Democracy, Nader seems to say, could be ours: if only the oligarchs would get behind it. The basic plot goes like this. Moved by pity to travel to New Orleans in the wake of Katrina to oversee relief efforts, Warren Buffett encounters one desperately poor and grateful recipient of his charity who announces, “Only the super-rich can save us.” This gets Buffett thinking, and he proceeds to convene a top secret meeting in a Maui resort. There he gathers an eclectic group of the super-rich: Paul Newman, George Soros, Bill Gates Sr., Ted Turner, Barry Diller, Peter Lewis (owner of Progressive Insurance), and, somewhat randomly, Yoko Ono, among others, to create a “people’s revolt of the rich.”

This is apparently not a satire. But it does raise the question of whether there are any genuinely good, genuinely political novels out there. Since we’re coming up on the weekend, I’ll throw this out as an open thread (I have a few nominations myself, but don’t want to bias the sample). Have at it.

Information technology has grown so entwined with our lives that it is easy to overlook the marvels flowering forth from it. … But if Viktor Mayer-Schonberger is right, these technologies may grow to entangle and choke us. They create a kind of external memory, recording our actions and interactions in digital video footage and thousands upon thousands of digital photographs. … Mayer-Schonberger argues that these developments challenge how we organise society and how we understand ourselves. … At its heart, his case against digital memory is humanist. He worries that it will not only change the way we organise society, but it will damage our identities. Identity and memory interact in complicated ways. Our ability to forget may be as important to our social relationships as our ability to remember. To forgive may be to forget; when we forgive someone for serious transgressions we in effect forget how angry we once were at them. … Delete argues that digital memory has the capacity both to trap us in the past and to damage our trust in our own memories.

I probably should have linked to it before, but didn’t, because I wanted to combine the link with a short review of Tyler Cowen’s recent book “Create Your Own Economy: The Path to Prosperity in a Disordered World” (Powells, Amazon) As I mention in the review, Tyler’s book presents a very interesting contrast to Viktor’s. What Tyler sees as evidence of individual empowerment, Viktor sees as as a serious threat to personal identity. Viktor fears that technologies will undermine our sense of self, and our ability to remake ourselves in order to respond to a changing social environment. Tyler sees new technologies as valuable precisely because they allow us to remake ourselves and our identities, creating our own ‘economies’ (here, I think he is harking back to the Greek origins of the term) or internally ordered environments by picking and choosing “small cultural bits” and assembling them according to our own personal hierarchies.

To make this claim stick, Tyler draws a comparison between our behaviour, and the strategies that autistic people use to manage their environment. Autistic people often find themselves overwhelmed by information, and hence create their own structured environments to deal with them. Similarly, when we are faced with the enormous variety of information and cultural material available through the web, we are inclined to build our own environments, using tools like Google Reader, Facebook, Twitter etc to manage the material that we are exposed to, selecting the sources that are likely to be most interesting, and reassembling them in ways that are useful to us. Tyler’s claim here is twofold – that we are all becoming more ‘like’ autistic people, and that many people on the autism spectrum are likely to do relatively well in this kind of environment. They can pick and choose the ways in which they interact with people, shape their social environments more easily etc than would have previously been possible. I am not on the autism spectrum myself, nor do I have any friends who I know to be on this spectrum, but I don’t think that people who are differently situated will find this book offensive. To the contrary: it is a paean to neurodiversity, and to the ways in which new forms of interaction allow a much more diverse set of perceptions of the world than was ever possible in the past. To take one example: it has a very nice chapter on taste formation, arguing that Bourdieuvian accounts fail to account for neurodiversity as a key source of different tastes. People with unusual neurological make-ups, for example, may be more inclined than others to appreciate modern atonal composers.

I haven’t read everything that Tyler has written, but this is the best book of his that I have read. If you like his blogging at all, you will probably like this book a lot. It is a rapid-fire progression of insights, fascinating-but-unproven hypotheses, claims, counter-claims, cultural criticism (his discussion of Sherlock Holmes is particularly good) and normative pronouncements. This is possibly a purely subjective claim – perhaps Tyler is perfectly positioned for me in terms of the assumptions that he shares with me and those that he doesn’t – but I don’t know anyone else writing today who I find to be as original in useful ways. I am repeatedly surprised in happy and informative ways by what he has to say, even (and perhaps especially) when I don’t agree with them. I feel smarter when I am reading Tyler than I do when I am reading other contemporary writers, because the internal dialogue that I am conducting with him as I read is a richer and more interesting one for me than it is with those others.

This is not, of course, to say that I like everything about the book. In many ways the book reads for me less like an academic text with a single coherent argument than like a thematically specialized information rich environment from which I can pick and choose what seems interesting. It is not an incoherent book – it has a small number of key themes that interweave together, moving back and forth between the background and the foreground – but it does not add up to a coherent whole that is easily summarized. Sometimes autism and neurodiversity are looked at in their own right, sometimes as ways to think about how we are all managing the cultural environment that we are navigating. I found this a little frustrating until I decided that it was best to treat the book as a series of closely related essays rather than a book with a single argument. I wonder whether in a few years people will be writing this kind of book as a set of essays, released over a period of time, rather than as a single volume. The form of the 50-80,000 word non-fiction book owes a lot to the underlying economics of publishing and these are changing.

Still, this form of presentation has disadvantages as well as advantages. In particular, I felt that there was an underlying argument that never quite was developed as explicitly as it should have been, and that would have been stronger if its mechanisms had been brought out and developed systematically. It goes something like this. What Tyler is trying to do, I think, is to write a book in the tradition of the classical economists, but dealing with modern culture and technology. At one point, he suggests that Adam Smith’s story about the pin factory can be interpreted as a “parable of autism and the rising returns to autistic cognitive strengths”

If you can perform a repetitive task with the proper skill, you can earn a decent income because you are no longer expected to be a jack-of-all-trades or to master a wide variety of skills. It increases the chance that you can have a “dysfunction” and still do well in life and in your career. … Today it’s often enough to be very good at one specific professional task. In other words, the division of labor provides disproportionate benefits to people with specialized cognitive talents and that includes many people along the autism spectrum. It’s yet another way in which modernity supports diversity.

This is a very nice and interesting insight – that one of the reasons why market societies do well is because they are able to accommodate and use the talents of a much more varied set of individuals with particular cognitive strengths and disadvantages than more traditional societies which expect single individuals to successfully occupy a variety of social roles. But it also suggests to me that what Tyler is doing is to use autism as a parable of the benefits of a society where individuals focus their attentions and energies on their own goals and in particular on their own internal orderings.

The problem with this, as I see it, is that Tyler would like to do two things, just as Smith did. First, he would like to argue that it is to our own personal benefit when we can ‘create our own economies’ – that we build happier and richer individual lives when we do this. Secondly, he would like to argue that it is to our general collective benefit too – that a society where we organize and communicate in cosmopolitan ways, coordinating to create new forms of collective diversity, is likely to be culturally richer and better than one where we do not. But it is not at all clear to me that there are not important trade-offs between these two desiderata. Smith, building on the Physiocrats, famously identified the mechanism that bade self-love and social be the same. Tyler doesn’t do this, unless his arguments about the benefits of new technologies are somehow generalizable. And it is a much more difficult task to identify these mechanisms in cultural life (where collective organized interaction may be important for cultural success) than in the market.

The question that I think isn’t really answered in any general way in the book is the following one, and I think it is key: Under what exact conditions does our construction of purely internal mental orderings create value for other members of society?

One can point (as Tyler does) to the ways that new technologies make it easier not only to create internal orderings, but to share them. When I use Google Reader to read blogs, I am able not only to construct my own order of blogs, but also to see other people’s orderings, to easily find items that they have thought interesting and so on. Still, I suspect that there are important trade-offs here (others’ reporting of their internal orderings via Google Reader is an externality, and economists argue that positive externalities will likely be systematically undersupplied). And, maybe the problem is worse than simple underprovision. New technologies which encourage the kinds of exchange that Tyler (and I) would like to see can be undermined or subverted. I have referred before to the collapse of the Trackback mechanism which really linked blogs into a conversation back in the day; now major blog search engines are collapsing under the weight of spam, or moving away from providing lists of links (e.g. Technorati) and hence making it much harder to see which new people are trying to argue with you and to bring them into the conversation. One way of interpreting this is to say that there will be incentives for actors to disrupt technological tools which try to allow people either to create collective orderings or to share their orderings with others whenever these orderings are linked to material outcomes (people’s buying decisions, decisions on where to browse and hence which ads they view etc).

Perhaps I am wrong – but the only way to really start figuring this out is to try to construct a more general – and systematic – theoretical framework that would specifically address the relationship between the specific technologies that underpin the equilibrium that Tyler identifies and broader mechanisms of social choice and knowledge aggregation. If I am right, then some of the benefits that Tyler identifies may possibly be less an ineluctable result of new forms of social organization than a happy but fragile contingency, a specific but temporary intersection of society and technology at a particular moment in time. The point is that unless there is some general mechanism connecting the individual and collective benefits of self-ordering, we don’t have any general warrant for arguing that they will stay connected. Figuring out whether there is such a mechanism or not would require a different kind of book than the book that Tyler has written, and I’d very much like him to write it.

I thought the FT leader on the Goldstone report got it about right. The report on Israel’s assault on Gaza is a serious bit of work and it’s fairly desperate to try to discredit it by calling its author a “self-hating Jew”. The bigger problem lies with the UN Human Rights Council … And lying behind that, is a still bigger problem with the very idea of impartial international law. … I asked whether international law really deserved the same status as domestic law? After all, the very basis of justice in a nation-state is equality before the law – anybody who commits a murder should be arrested and prosecuted, no matter how powerful they are. But this basic principle does not apply in the international arena. Almost all the people hauled before the ICC have been African leaders; and the UN special tribunal on the former Yugoslavia (where Goldstone was chief prosecutor) only got to prosecute the likes of Milosevic because Serbia was defeated in a war. … The trouble is that … the system of international law that we currently have is as much about power in the international system, as about human rights or the law.

I just did a bloggingheads with Eric Posner which was all about this topic (the nature of international law, not the Goldstone report) – Eric has a new book which, it would be fair to say, is not particularly favorable towards international law. Me, I find the debates among legal academics about international law weird and confusing (perhaps because I am a political scientist, who thinks in very different terms). It seems to me that the concept of international law bundles several, quite incongruous things together, which have very different sources and degrees of legitimacy.

First are things like UN Security Council approval for the use of force. This is international law – but I don’t think that one can plausibly argue that it has much inherent legitimacy (see Erik Voeten on this). The justifications for respecting this kind of law are pragmatic. First, UN Security Council approval raises the bar for the use of force significantly, making it somewhat less likely that force will be employed (while states sometimes ignore this requirement, it does cost them). If you think (as I do) that force really should be a last resort, then this is probably a good thing. Second, uses of force that are unlikely to get UN Security Council approval are more likely to fail than uses of force that do, precisely because the latter have the backing or tacit assent of several of the great powers, while the former do not. Thus, there is some real pragmatic justification for abiding by the Security Council most of the time, but I don’t see much of a case that, say, getting the approval of China is likely to be a source of deep normative legitimacy.

Second, is international law regarding, for example, the conduct of wars. This, it seems to me, has considerably stronger normative justification. It stems less from pure power politics than from a shared set of concerns that states have in e.g. minimizing the role of civilian casualties. There is likely a very plausible case to be made that these norms ought to be much tougher and more restrictive than they are – even if they are not a product of power politics they are limited by these politics. Nonetheless, even if they are weaker than they should be, they are still a lot better than nothing. And here, the Goldstone report was exactly right – the ‘but he did it first’ excuse is not, and cannot be a justification for committing war crimes. Nor does the ‘self-hating Jew’ claim, or other ways of attacking the messenger (for a broad sampling of such attacks on various parties, see our indefatigable friend David Bernstein at the Volokh Conspiracy) really stick – if you are unnecessarily killing or seriously injuring hundreds or thousands of civilians, you are unnecessarily killing or seriously injuring hundreds or thousands of civilians, and there is no very good way of getting around this awkward fact. Both Gideon and Eric would point to the undoubted fact that the leading politicians of great powers (or their important clients) are highly unlikely to find themselves in the dock for war crimes. But direct punitive sanctioning is not the only effect of law. It can influence the perceived legitimacy of a particular state, its actions and its leadership. It is quite clear that Israel has taken a substantial reputational hit from the Goldstone report, even if it will never be condemned by the UN Security Council, and that Israel’s leaders are worried and upset about this.

Third are efforts being pushed e.g. by the European Court of Justice to make international law less focused on raw power politics and more on accountability. Here, I think that Eric’s book is wrong. He interprets the European Court of Justice’s holding that “the human rights commitments of European countries take precedence over Security Council resolutions” as evidence that “as Europe becomes a powerful nation, its commitment to international law will weaken.” (p.116). The suggestion here is that Europe is becoming more like the US as it is becoming more integrated and powerful. But this interpretation isn’t really born out by the case that Eric refers to, in which the ECJ held that UN terrorist watchlists were illegal under European law because they had no provisions for effective review. In the words of the ECJ’s advocate-general (whose findings were upheld by the ECJ itself):

had there been a genuine and effective mechanism of judicial control by an independent tribunal at the level of the United Nations, then this might have released the Community from the obligation to provide for judicial control of implementing measures that apply within the Community legal order. However, no such mechanism currently exists.

Why this is significant is that it is an argument (with some teeth – because the ECJ’s decisions are binding on EU member states) that international law should be subject at least to minimal standards of accountability. This is obviously inconvenient for the permanent members of the UN Security Council. But it is about as far from the US position to which Eric equates it (that powerful states have no need to comply with international law) as it could possibly be. Instead, it is a specific claim that powerful states should not be allowed to ignore basic principles of equity in the instruments that they craft.

Fourth are various forms of law (customary international law, conventions on diplomatic representation etc) which aim to minimize friction in relations between states and are not especially germane to any of these broader arguments.

There may also be other forms of international law that I am leaving out; if so, I suspect that strengthens my claim that international law bundles together a bunch of institutions of very different kinds that ought to be analyzed separately, rather than weakening it. Anyway, my position, right or wrong, implies two conclusions. First, that normative arguments for – or against – international law tout court are at best going to be weak, and at worst completely incoherent. The concept of international law is too all-encompassing to be a useful category of analysis. And the arguments being conducted among legal academics seem to me to be less about whether or not international law should count than about which kinds of international law should count. If they were more explicit in discussing the differences between different forms of international law than they are (in my limited reading of the literature), their points of agreement and disagreement would be much clearer. For example, the ECJ ruling discussed above is much better understood as a claim that international law needs to adhere to minimal standards of accountability if it is to be binding than (as Eric interprets it) as an attack on international law as such. A better vocabulary would make that plain.

Second, and more concretely, international law does not have to be an expression of, or fundamentally subordinated to great power politics (a position that Posner shares, as he notes, with lefty radicals like Koskeniemmi, and indeed China Mieville). Partly this is because its effects don’t only run through direct sanctioning, but through other indirect channels such as reputation. Partly also, it is because international law plausibly not only reflects states’ interests but helps shape them too. There is some very interesting political science literature beginning to percolate through about the consequences of international law, international organizations etc for state behaviour and self-conception – without going into too much detail, it is apparent that these rules can and do shape states’ conception of their interests in some very important ways. And if international law can reshape states’ interests (at least to some degree, some of the time) without the direct threat of sanction, then it can be causally important in ways that aren’t really captured by Eric’s or Gideon’s arguments. NB however, that this not constitute a general claim that international law is good and that we should have more of it; instead it is a simple observation that international law works (for good or ill) through more and different means than we usually acknowledge. More on this at some undefined point in the future, I hope …

Overall, the promotion of interesting stories in preference to accurate ones is always in the immediate economic self-interest of the promoter. It’s interesting stories, not accurate ones, that pump up ratings for Beck and Limbaugh. But it’s also interesting stories that bring readers to The Huffington Post and to Maureen Dowd’s column, and it’s interesting stories that sell copies of Freakonomics and Super Freakonomics. In this respect, Levitt and Dubner are exactly like Beck and Limbaugh.

We might call this the Pundit’s Dilemma — a game, like the Prisoner’s Dilemma, in which the player’s best move always seems to be to take the low road, and in which the aggregate welfare of the community always seems fated to fall. And this isn’t just a game for pundits. Scientists face similar choices every day, in deciding whether to over-sell their results, or for that matter to manufacture results for optimal appeal.

In the end, scientists usually over-interpret only a little, and rarely cheat, because the penalties for being caught are extreme. As a result, in an iterated version of the game, it’s generally better to play it fairly straight. Pundits (and regular journalists) also play an iterated version of this game — but empirical observation suggests that the penalties for many forms of bad behavior are too small and uncertain to have much effect. Certainly, the reputational effects of mere sensationalism and exaggeration seem to be negligible.

(to avoid falling into my own version of this dilemma, I should acknowledge straight up that while I’m disappointed with the Freakonomics phenomenon ex-post, I was quite optimistic ex-ante )