Do treaties work? Do countries that have signed on to the Convention against Torture, for instance, actually obey its provisions?
Oona Hathaway, associate professor of law, has approached this question with a dual method. "What I'm trying to do," she explains, "is not just use theory, but also to test that theory against what we actually find in the real world."
Her work up until now has focused on human rights treaties and agreements. In articles such as "Do Human Rights Treaties Make a Difference?" and "Testing Conventional Wisdom," she developed a database that tracked the human rights practices of over 160 countries for a period of more than thirty years. Using this empirical perspective on human rights practices, she found that the practices of countries that have ratified human rights treaties are generally better than those of countries that have not. But, more surprisingly, she also found that ratification of such treaties was sometimes associated with worse human rights behavior than expected--meaning that human rights treaties have benefits, but also complicated counter-effects.
In May, Hathaway was one of fifteen scholars chosen for this year's class of Carnegie Scholars, which will provide support for her to further develop and broaden her study of international law. She plans to research two other fields in addition to human rights--environmental law and trade--and to write up her findings in scholarly journals and in a book, which will be aimed at a more general readership.
Hathaway's study of international law is often painstaking, because she needs high-quality data to fuel her investigation, and this data is hard to come by. In her research in the human rights field, for example, she worked primarily with descriptive reports, such as the U.S. State Department's reports on human rights practices, and then converted these accounts into integers she could use in her formulas. She says, "A lot of the data that's out there is narrative accounts of what's happened, which you can't plug into an equation. So I had to figure out a way of assessing that information and putting it in a scale of, in that case, 1 to 5."
As she's begun the environmental law segment of her project, she's found the going equally difficult. "When I left human rights I breathed a sigh of relief and thought that I was actually going to be entering an area where the data was going to be easier to find," Hathaway says. "In fact the same problems I had encountered in human rights are true in the environmental field." However, she has benefited from the help of Daniel Esty, Clinical Professor of Environmental Law and Policy, and the Yale Center for Environmental Law and Policy, which has been quantifying environmental conditions for years.
Hathaway also needs to find large quantities of data to make her analysis effective. "The most useful data is data that covers lots of countries over several years," says Hathaway. "Because the more countries you have, the more basis for comparison you have; the more years you have, the more you can test what's happening over time, and how putting in place a treaty at one point has actually had an effect on behavior."
After studying the environment, Hathaway will move on to an empirical study of trade, which she anticipates will be a data-rich field. She expects that expanding her research over these three fields will yield insights about international law. "The goal in looking at a series of different areas is to see what's common across these areas and what's different.... For instance, trade agreements bring obvious benefits to states, to their economic and political well-being... You don't see the same obvious benefits in the human rights and environmental field." Hathaway's studies should also limn some of the underlying similarities in how all international agreements function. For instance, she says, "I think the democracies tend to act very differently with regard to international law than non-democracies. And I'm trying to trace out why exactly that is." Perhaps, Hathaway suggests, it is because "there are institutions within the democracy to police the government's actions, whereas if you're in an autocratic nation that doesn't have a free media, political opposition, or independent court system, it's much easier for the government to agree to international limits and then not actually abide by them."
Hathaway points out that developments in international law are occurring daily. For instance, the revelation of prisoner abuse in prisons run by the U.S. in Iraq may become a part of a future data set and help shape the theories she is developing. Says Hathaway about those abuses, "It's not that democracies never commit violations; they do. But when those violations occur, there are ways of bringing them to light and trying to correct them."
Hathaway's goal is to take her research beyond "Do treaties work?" to ask "How do they work best?" She elaborates, "This is of course a pretty important question to try and answer today as we see so many things going wrong in the world and wonder how we can make them right. And international law provides a really important tool for doing that. So the question is, how can international law play that role? And how can we make it play that role more effectively than it currently does?"