José Alvarez, Herbert and Rose Rubin Professor of International Law, delivered a lecture, “The U.N.’s Soft Legal Power,” at the ICD Academy for Cultural Diplomacy’s International Conference on Cultural Diplomacy and the U.N. on February 22.

José AlvarezSpeaking at the United Nations headquarters, Alvarez noted that the U.N. is sometimes portrayed as ineffectual in practical terms—all talk, but no action. But this view, he argued, ignored the U.N.’s soft power, a subtler force: “International law is not like other types of law. It is based on sovereign consent. It works mostly through the use of carrots, not sticks.” While the U.N. and its international law-based authority do not have the same persuasive powers as individual states, Alvarez asserted that, “whatever one calls the international legal system, its system of organizations and courts works more often than not. As Louis Henkin famously pointed out, most states comply with most rules of international law most of the time.”

Alvarez also cited Joseph Nye’s conceptualization of “soft power” wielded by an organization such as the U.N., which encounters less resistance because it attracts rather than coerces those who disagree with it to its side, making its power seem more legitimate. Even a military powerhouse like the U.S., Alvarez said, needs the help of international organizations. He pointed out that neither the Bush nor the Obama administrations argued that international law was irrelevant to their respective counterterrorism policies; rather, they each attempted, with varying success and plausibility, to bring their respective policies within legal constraints. And the uniformity of the international law concepts taught to lawyers around the world extends the reach of that field.

The Security Council’s powers to react to threats to international peace have expanded since its founding, Alvarez asserted, and accountability for international crimes has increased, particularly through Security Council referrals of cases to the International Criminal Court (ICC). Whether or not it can manage to overtly enforce the law in every instance, he said, the possibility of such actions from the council has affected the behavior of some states accordingly. And its war crimes tribunals in the former Yugoslavia and Rwanda, Alvarez added, had arrested and tried more than 150 defendants: “Many countries are now re-examining the immunities that they have formerly granted to their retired generals and high government officials.... The ground underneath the world’s greatest murderers has shifted.”

This judicial activity has an even broader impact, Alvarez continued, in that “hundreds of national laws around the world have now been changed to enable national prosecutions for genocide, crimes against humanity, and war crimes. States that do this are preventing the embarrassing prospect that the ICC may prosecute their own nationals.... Even in the United States, there is today considerable greater attention paid to alleged war crimes and greater pressure to prosecute our own soldiers who are accused of such crimes.” And as a result, he added, international crimes such as those perpetrated in wartime are far more commonly taught now not just in law schools but also in military academies, broadening awareness.

“Today,” said Alvarez, “no government, no international organization can ignore the legitimacy of human rights or the scrutiny of their activities that has come with them.... Countries like Egypt, the United States, and China—none of whom has agreed to being scrutinized before a human rights court—still have to respond to the ‘mobilization of shame’ produced by their periodic human rights reports before U.N. bodies, in the court of public opinion led by NGOs, and in even in unexpected venues like the World Bank—which now incorporates human rights norms in their guidelines for infrastructure loans.... Even when it comes to the high politics of the most militarily powerful state on the planet, the soft power of human rights matters.”

Alvarez also served as a commentator at the Institute for International Law and Justice’s February 7 Investment Law Forum, “E.U. Investment Policy Post-Lisbon: What a Future E.U. Investment Agreement Might Look Like and Other Contemporary Issues,” organized by Robert Howse, Lloyd C. Nelson Professor of International Law. Guest speaker Colin Brown, chair of the legal advisory committee of the European Commission’s Directorate General for Trade, spoke about the challenges of current investment policy, including preexisting member-state treaties and the conflicts with E.U. policy that result from those agreements.

Posted on February 28, 2012