Oona A. Hathaway is a Professor of International Law and of Political Science at Yale University. She has been a member of the Advisory Committee on International Law for the Legal Adviser at the United States Department of State since 2005. She spoke with SSRN about asking the hard questions in law, scholarship’s relevance in current events, and how international law is at play in our daily lives.
Q: You’ve done such a wide range of things throughout your career – from teaching as a professor to writing books and articles for big publications, and so much more. What has been the most fulfilling aspect of your career in international law so far?
A: One of the most fulfilling things is teaching and working with young people who are going to go out into the world and use the ideas that they learn in the classroom to make a difference. The other aspect of my work that I really love is being able to work on issues that are interesting for a scholarly audience but also important in terms of shaping law and policy as they’re practiced in the world.
Q: You’ve been consulted as an expert in international law and are one of the highly cited scholars in the field within recent years. How would you say some of these principles of international law are at play in our day-to-day lives: not just for lawyers and scholars, but for everyone?
A: International law matters in ways that people don’t generally appreciate in their lives. It matters in small ways: the fact that you can pick up your cell phone and make a phone call anywhere in the world is thanks, in part, to international law. The fact that you can mail a letter and put a postage stamp that you buy at the local post office and send it anywhere in the world, is a result of international law. And the fact that you can go down the corner and buy clothes for less than they used to cost 30 years ago is thanks to international law and international trade. It affects our lives in ways that we don’t necessarily always appreciate or notice but that make a real difference in ordinary people’s lives.
But international law also really matters for big questions like, “is war legal or not?” And “how should war be conducted?” These are important questions that affect our lives in a bigger way and have geopolitical consequences, not just consequences for day-to-day life.
Q: It’s such a broad field, and there are so many parts to it. How have you chosen the direction for your work and your research within this field?
A: The great thing about being an academic is you get to chase the ideas that are interesting to you. And so my scholarship has really changed over time. Early on, my work focused primarily on human rights law, and I was interested in thinking about how we make international human rights law more effective. After the 9/11 attacks that took place early on in my scholarly career, I got interested in this question of “how does law shape the way in which force is used?” My work really began to focus on these questions of national security in part because those are the questions that really mattered in the world.
Q: Your most downloaded paper on SSRN is “Do Human Rights Treaties Make a Difference?” In this analysis, written over 20 years ago, you tackle some big questions underlying how human rights treaties don’t directly correlate to better human rights practices. One of the solutions you suggest in this paper is to better enforce these treaties as a way of holding the involved states accountable. Looking at this concept two decades later, how do you believe human rights practices could be best enforced now, and has that changed in the time since you wrote the paper?
A: Hundreds of states have signed most of the major international human rights treaties. And yet when you look around the world, you still see lots of violations. That was true then [and] unfortunately, remains true today. What I was interested in asking was, “do those agreements make a difference?” The work that I did showed that merely ratifying agreements wasn’t enough, that we needed to follow up on the ratification of treaties to make those international legal agreements actually effective. I think we’ve seen progress in that direction since then. Among other things, there are international courts, where these international treaties are increasingly enforced.
But what matters more than the international courts is what domestic courts are doing. A lot of the work that I did following on that first article, was thinking not just “how do we enforce these international agreements through international courts?” but “how do [we] create mechanisms and tools inside states to provide for domestic accountability for these human rights obligations?” How can we provide greater transparency about state practices and have tools for enforcing these international obligations, not just in international courts, but in domestic courts. I think increasingly people have realized that this is the necessary path forward for international human rights law.
I see that piece as a bit of a rallying cry for doing better and doing more. I will say that when I first published it, many human rights activists weren’t so happy about it. There was some criticism of the work, in part because it sort of felt like it was calling into question the value of international law, but my intention wasn’t to call into question the value of international law: it was to say it’s not enough simply to ratify the treaties. We have to do more.
I think that has borne out over time [and] people have come to share that view. And I think a lot of the progress that we’ve made on human rights law has been made in trying to use treaties as the starting point, not the ending point, of an effort to try to improve human rights.
Q: Why do you think it’s important to ask those kinds of challenging questions when it comes to creating actionable plans for change, both domestic and international?
A: As academics, we have to be prepared to ask the hard questions and the unpopular questions. That’s a role that as academics we shouldn’t just take for granted. Part of our role is to try to say, not just “it’s not enough,” but “what else can we do? What else can we do to build on that first step, to improve practices?” There’s been a huge burgeoning of great research about what does work, what doesn’t work, which states are better at enforcing human rights obligations, how to bring international law into domestic law. That work has really been important to improving the lives of human beings affected by these practices and whose lives are better as a result.
Q: In another of your more recent papers, “A New Tool for Enforcing Human Rights: Erga Omnes Partes Standing,” you talk about the International Court of Justice’s ruling on the case of the Myanmar military’s action in Gambia and how that offers the promise of a revolution in the enforcement of international law, especially with respect to human rights. How would you explain the importance of a ruling like this to people unfamiliar with the specific cases or standings?
A: This is a recent piece that I wrote with two of my students. We were interested in this question because we saw that there was this shift in [the] International Court of Justice’s jurisprudence. Basically, what the International Court of Justice had done is allow states that were not directly affected by human rights violations to bring lawsuits against states that have violated human rights treaties both states have joined. In Gambia v. Myanmar, what that meant was that Gambia brought suit against Myanmar for its alleged genocide against the Rohingya minority, and it was allowed to do that even though Gambia was not affected at all by the actions that were the subject of the suit. All that mattered was that both states were parties to the Genocide Convention. That struck us as a really important innovation.
Part of the reason this article got so much attention is that after we had written it and posted it on SSRN, South Africa filed suit against Israel using the same legal basis. I posted the link to the article and said, “This is exactly the same legal basis that Gambia used to bring suit against Myanmar… and here’s the history of this form of standing in the International Court of Justice.” Of course, everybody was eager to try to understand why it was that South Africa had the legal right to bring a lawsuit against Israel when South Africa didn’t claim to be directly affected by anything that Israel was doing. And so this long legal article that explains the history of this form of standing suddenly was very useful to people who were trying to understand what was going on in this recent case.
I think this is something that scholarship can do; it can provide context for understanding what’s happening right now in the world. We didn’t know that this lawsuit was going to be filed by South Africa. But what we anticipated was that this [ruling] was, as we put it, “a human rights revolution,” and that people hadn’t really noticed. What people needed to understand was that this was not coming out of nowhere, that there was a long history to it, that there had been this development over time of these cases, and that there was a likelihood that that was going to cause a really significant shift in human rights enforcement. And lo and behold, it turned out we were right. People were interested to be able to understand that context. So that’s a great example of where scholarship can see where things are going, anticipate it, and then provide that history, background, and context so that people can really understand what’s happening.
Q: Are there any papers, projects or research that you’re working on now that you’re particularly excited about?
A: One piece that I recently posted on SSRN is a piece called “‘Mistakes’ in War,” that I wrote with Azmat Khan, who’s a New York Times reporter. She and I, in this piece, examine this phenomenon where when states use military force that kills significant numbers of civilians – they’ll say, “well, it was a mistake,” or “it was an error.” And what we tried to do here was to say, “When can states and individuals be held responsible for these mistakes?” Because often, when a state says that it was a mistake, it seems to be suggesting that it shouldn’t be held accountable. But we question that, and we dig really deep into civilian casualty reports, U.S. government and other government practices, and the history of “mistakes” in war. I think we do something pretty innovative in bringing the work that Azmat has done as a New York Times reporter – the evidence-gathering and reporting on the ground that she has done – and analyze that using legal tools to try and see where the law is, and then to make some arguments about how the law and state practices should develop in order to better protect civilians.
That work is important to me because I feel like it makes a difference in the world and hopefully leads into greater protections for civilians in conflict. I think it’s important too because we’re doing something innovative and trying to bring empirical evidence that has been collected by a journalist through rigorous on-the-ground reporting to give greater clarity to these legal concepts that might seem abstract and hard to understand. When you see these incidents and you see the actual people whose lives have been taken [or] sometimes really harmed through these actions, it makes it all the clearer to people why this should matter. It gives this greater impact to the scholarship, because you can see that this is not just abstract legal ideas that we’re talking about, but real, on-the-ground, meaningful change in the law that could better protect civilians in conflict at a time when, unfortunately, conflicts around the world are having more and more of an effect on civilians. I think that work is important, and it’s part of an ongoing series of projects that Azmat and I are doing, [which] I’m really excited about.
Q: Law stands out as one of our most prominent disciplines on SSRN, with many authors contributing their work in real time. How do you view SSRN in the broader context of legal scholarship?
A: One advantage of posting this work on SSRN is that it gets not just the U.S. audience, but an international audience. Being able to post it and have it available for free download for people anywhere in the world is really a great asset. These are things that matter not just to Americans, but obviously have a global audience, and so having the work in a place where it can be accessed from anywhere in the world and be downloaded for free is really important for accessibility of the work and having ideas [brought to] a global audience. Also, because the process of publication takes so long, it’s great to be able to have a place to publicize the work when it’s largely finished but still in the process of editing. One advantage is that the ideas can get out there while they’re really relevant. For instance, the piece that you mentioned, the erga omnes partes standing piece, was great to be able to have that be available to audiences when the South Africa v. Israel case came down, even though the paper wasn’t yet published. Having a place where the preprints can be available and people can read it and get an authoritative version of the article is valuable.
More About Oona Hathaway
Oona A. Hathaway is a Professor of International Law at Yale Law School and the Yale University MacMillan Center, as well as Professor of the Yale University Department of Political Science and Director of the Yale Law School Center for Global Legal Challenges. She has been a member of the Advisory Committee on International Law for the Legal Adviser at the United States Department of State since 2005. In 2014-15, she served as Special Counsel to the General Counsel at the U.S. Department of Defense, where she was awarded the Office of the Secretary of Defense Award for Excellence. She is also Executive Editor of and regular author at Just Security, and she often writes for The Washington Post, The New York Times, The Atlantic, and Foreign Affairs.
You can see more work by Oona A. Hathaway on her SSRN Author page here.