Anti-Climacus

NOT EXACTLY SURPRISING: Julian Ku at Opinio Juris notes that the Obama Administration has decided to not attempt to ratify the Rome Treaty, which established the ICC.

This should not be too surprising: the interests of the United States and the executive branch never change much. Clinton didn't put much effort into ratifying the treaty (indeed, he only signed at the last possible moment before Bush came into office); Bush withdrew the U.S.'s signature. What's more, the rationale was the same in both cases: the ICC is unable to offer sufficient protection to U.S. policymakers or soldiers. It remains hypothetically possible that if other states felt the U.S. had broken international law, the figures responsible could be brought to trial and the U.S. might have obligations to allow the trial to go ahead. No president would be willing to give away so much power.*

What's interesting to me is something that reflects, more generally, on the project of building international legal institutions. Ideally, as one is building legal institutions, they are serving all the intended functions of institutions, reducing information asymmetries, facilitating cooperation, etc. However, each new institution provides a new forum where something can go wrong. The benefits of the ICC may all be real and important. But the institution carries a large additional cost it's hard to overlook.


*I thought this was obvious, but attended a conference on private international regulatory law, in which very smart people who understood all the institutional incentives of, say, private forest standard-setting regimes, couldn't quite see the institutional incentives in the executive branch. Perhaps they were just less cynical than I.