24 May Lawmaking Under Pressure Symposium: Making International Treaty Sausage–Appreciating Mantilla’s Lawmaking Under Pressure
[Neta C. Crawford is a Professor and Chair of the Department of Political Science at Boston University.]
How does international law get made? In particular, how was it that diplomats were able to craft international rules governing internal conflicts when sovereign states have little or no inherent interest in being constrained by those laws? Or at least great powers don’t want to be told what to do. In Lawmaking Under Pressure, Givovanni Matilla argues that international humanitarian law (IHL) is the result of a social pressure in a context where the most powerful actors are essentially bullied and cajoled (named and shamed) by their concern for reputation into doing what a coalition of weaker powers want them to do.
Matilla’s Lawmaking Under Pressure: International Humanitarian Law and Internal Armed Conflict (Cornell University Press 2020) is, at once, an advance in theory and a methodological throwback.
The theoretical advance is his use of social psychology to understand how individuals and states are vulnerable to social pressure when they are numerically overwhelmed in a majority rule setting (what I think he means by his other key variable, “forum isolation”). He argues that “sovereign states might never have agreed to introduce and adopt humanitarian rules for international conflicts without the operation of social opprobrium (9).” Norm entrepreneurs put the ideas on the table, but once negotiations began, “it was the shame that came from diplomatic isolation cast upon skeptics — with its perceived consequences for their international standing and social reputation — that pushed” states to accept proposal that they didn’t like (9). He defines forum isolation as “the act of standing in (near-)absolute minority during diplomatic negotiations; to find oneself literally in a proverbial diplomatic corner (23).” Mantilla also shows, however, that these powerful states used their power — by crafting language that weakened the bite of the text — to subtly undermine the rules they never wanted in the first place.
The throwback is his careful historical analysis, reminding me at times of the kind of work one finds in scholars such as E.H. Carr and, more recently, Stephen Neff. The historical analysis is careful in two senses. Mantilla situates the politics and arguments of the negotiations in their larger international historical context — showing how that normative and political context set the opportunities and agenda for negotiation and the country delegations and the ICRC — and he also takes us deep into the history of the negotiation of IHL in 1949 and 1974 through 1977.
Mantilla’s historical chapters use a mix of secondary and primary sources. The primary sources — including memoranda, notes, and correspondence give the book the feeling of immediacy and new evidence. Most of the analysis is focused on the diplomatic positions of states, he has also integrated the story at the level of international diplomacy with the work of international organizations and so the history also includes attention to the ICRC and the International Commission of Jurists. The books also includes some description of the work of extremely effective individuals, such as Sean MacBride, the Irishman who played a key role in the ICJ. Indeed, there is just enough description of individual actors — including fascinating tidbits about Henry Dunant — to enliven the text.
Mantilla supports his contention that diplomats representing powerful states feared “forum isolation,” for example, with quotes from correspondence that say just that. For example, a member of the UK delegation at the 1949 negotiations says, “The whole delegation is, I think, now convinced that if we maintain our attitude we shall probably find ourselves in a minority of one (85).” He also quotes another diplomat at that time showing how they could make sure the British could both salvage the reputation and get what they needed by pushing a formulation that was vague in its details. During the 1970s, British the British were still worried about isolation: “If we refuse to budge on the point of principle we shall be in a fairly small minority and efforts will be made to blame us for any failure of the Conference (148).”
There are many more examples that one could draw from the book. But I want to return to the analytical contributions that Mantilla is making with his theory of the negotiation of this corner of IHL.
I wish I knew more about how other state’s diplomats viewed the great powers in the IHL negotiations. How did other states understand how they could push the US, the UK, and France to move closer to their views? To what extent were other delegations and the ICRC and ICJ conscious of the power of the threat of forum isolation and hypocrisy against the great powers? Which delegations were aware of Britain, France, and the United States textual jiu jitsu (or perhaps more accurately their textual judo and Aikido). At a couple of points, Mantilla suggests that the Soviets and other members of the Eastern bloc were using this strategy, but this and other country’s tactics could have been more fully explored.
The argument that international negotiations are historically specific documents should not be a surprise. Mantilla knows this. Nor is it show-stopping news that great powers seek to control the outcomes of negotiations so as to preserve their great power status and autonomy. Whatis very interesting here is how in a world of sovereign states where the rules allow majority rule, and where there are significant reputational costs of not adhering to dominant norms the powerful can be cornered by social pressure and forum isolation. These are powerful insights.
It is also not surprising that the powerful resist fully adhering to rules they believe will constrain their interest. He is right to emphasize how “formal adoption [of a treaty] does not mean embrace (172).” We knew that, but he shows us in some detail how states work very hard sometimes not to be isolated and how they wiggle out of being too tightly bound by the rules they write. Mantilla helps us understand just how it is that powerful states attention to treaty text — specifically the use of textual ambiguity — to preserve their autonomy while also preserving their reputation.
Mantilla has, I think, helped us understand the particular case of IHL codifying attention internal conflicts. He also suggests that his framework would be useful for understanding other IHL treaties, specifically applying to the broader negotiation of the Geneva Conventions and Additional Protocols. I think he is probably right. We will need to see the details. But perhaps we can be more ambitious for him.
Mantilla’s approach may apply much more broadly. It could also help explain the negotiating history and contents of, for example, Convention on Certain Conventional Weapons. Or stepping away from the realm of war, I think for example of how the US and China — the world’s two largest emitters — have behaved in the climate change negotiations from Rio to Kyoto to Paris. Both the U.S. and China have at times gotten to claim leadership while at the same time, attention to the text has allowed it to preserve its power. We see this, for example in the way the U.S. participated in Kyoto, but found a way to not be bound in several important respects — including in keeping most military emissions out of the accounting of greenhouse gas emissions.
Further, I one can imagine using this framework to understand intra-state negotiations. What if we saw domestic politics of coalition formation through Mantilla’s lens of social pressure and forum isolation. Or could his framework help us understand the rush, for example to find a way to virtue signal that black lives matter while making sure that not much changes in terms of police reform?
In sum, this is a brilliant book which was as interesting as it was insightful. Mantilla’s book marries masterful archival work with an appreciation of the larger historical context and an elegant theoretical lens.