Accountability (Slight Return)

Julian’s reply is informative but I think he is overstating my point and actually misses the core of my argument. In the end, I think we mean different things when we use the term “accountability.”

He writes that I “concede there are all sorts of problems with international institutions, but then suggests that the United States doesn’t really have all that much credibility when it criticizes those institutions due to the United States’ various sins — Chris describes it as a ‘lack of accountability.'”

Julian is only half-right here; I do agree that there are all sorts of problems with international institutions, as there are all sorts of problems with the US and other national governments. I do not think that the US lacks credibility in criticizing the problems in the UN; the main issue as I see it is that the US is enthusiastic about international regimes of accountability (investor-state dispute resolution; war crimes tribunals) when they have little or no chance of applying to the US itself and we seem to lose our zeal for these institutions when they begin to question US attitudes.

This is the central issue–whether the US acts as international law is something that other countries need to worry about but not the US itself.

But, Julian replies, the US is subject to accountability, primarily to “its own voters, its own media elite, foreign countries, etc.” This, I think, highlights what may be the key difference between Julian’s argument and mine. If we take international law seriously, then it is something that gives rise, in its various forms, to obligations between the U.S. and foriegn countries, foriegn nationals, international organizations, etc. Simply hoping that domestic voters and domestic “media elite” (whatever that is) will hold the U.S. accountable is not enough. The rights-holders (foreign countries or nationals) should have a means to actually hold us accountable for the legal obligations that we have undertaken. After all, we demand that from other countries who sign various treaties with us such as Bilateral Investment Treaties. Hoping that voters and the media will do the job is not the rule of law; that is simply hoping that political pressure will suffice.

But what about foreign countries, as Julian says, can’t they hold us accountable? And I ask, what do you mean by accountable? Simply making a speech before the UN General Assembly? I think accountability under the rule of law goes farther than that. It means if you have undertaken a legal obligation that provides a remedy to the rights-holder, then you respect that regime when you are the defendant as well as when you are the plaintiff.

Perhaps, at the heart of this, Julian and I aren’t defining accountability the same way. While I have great faith in the American political process to provide political accountability of US leaders to American voters, I think international law is about providing legal accountability of the US to those foreign states and nationals with whom we have decided to create a legal obligation. Different issues needing different methods of accountability.

And, at the end of the day, the US and its nationals have been zealous in prosecuting their rights via these fora. I simply say we sould not be surprised and offended when we may be called in to defend our own actions. After all, nobody forced us to sign these treaties.