Instead of a treaty, Fidler proposes a Snowden Charter, “an accord among civil society, consumers, and technology companies to confront governments and confound mass surveillance through, among other things, continuing to expand encryption in our digital lives.”
Without getting into political questions about whether a Snowden Treaty (or Snowden Charter) would be a good or bad idea, Fidler’s arguments provide a valuable contrast to political science arguments about treaties. Fidler knows a lot about the Snowden controversies. He is also a law professor interested in how non-state approaches could solve international problems. In general, political scientists are more skeptical about civil society based approaches than Fidler seems to be. Here’s why.
Snowden, Greenwald and their allies are not that radical
Contrary to public perceptions, neither Edward Snowden or Glenn Greenwald are very radical, as I discuss in an article for the National Interest. Snowden is a libertarian – but one who supported President Obama’s initial presidential campaign, and who has said he’s content to let the existing democratic system decide how to deal with his revelations. Greenwald is a pugnacious American Civil Liberties Union style liberal, with a strong bias towards free speech. Both are plausibly within the mainstream of American politics, and it is unsurprising that they advocate a mainstream solution, such as a treaty. This is not to say, of course, that their views aren’t controversial – but the controversies surrounding their views and actions are similar to previous disputes that divided mainstream opinion (e.g. over the Pentagon Papers) in which people disagreed over the relationship between national secrecy laws and free public debate.
Treaties can have big consequences – even when states don’t want them to
Fidler’s skepticism about treaties isn’t simply rooted in his belief that Snowden and his allies aren’t radical enough. He argues that any treaties that states sign up to will have weak oversight and be full of holes and that states don’t respect treaties that don’t suit them anyway. This account of treaties seems rooted in skeptical arguments that both left leaning and right leaning legal academics have made about human rights treaties.
However, the political science literature on human rights treaties has a more complicated take (this gated overview article, by Emilie Hafner-Burton, provides a good overview). Hafner-Burton notes skepticism among many scholars that human rights treaties are effective. Many of the states that sign up to these treaties would probably respect them anyway. However, as she points out, more recent scholarship on treaties has moved away from a simple focus on treaties’ direct consequences for states, to a more complex set of arguments about how the influence of human rights regimes “depends on domestic politics.” This approach is especially associated with Beth Simmons’s landmark book on human rights treaties, which argues (in Hafner-Burton’s summation) that in:
highly democratic parliamentary or presidential systems especially, [treaties] can create a focal point for the legislative process and help set agendas for national lawmaking. Treaties can also provoke litigation in national courts and thereby create jurisprudence that favors protection of human rights. This dynamic can be seen especially in legal systems where treaties have direct effects. Treaties can also change domestic politics by sparking mass political mobilization …. In addition to influencing how individuals perceive and value human rights, they raise consciousness and create new identities and coalitions that will push for protecting such rights.
Thus, the key consequence of human rights treaties may not be to get states directly to comply with them. It may be to empower domestic actors, who use the treaty as a weapon to attack legislation, provoke litigation, or spark mass mobilization. This means that it matters less whether states are hypocritical in signing up to treaties that they never intend to adhere to. What counts is whether there are other domestic actors who can use the treaty as a tool to reshape domestic politics.
The classic example of this is the Cold War’s Helsinki Accords, where Western countries agreed to respect the territorial boundaries of the Warsaw Pact countries in Eastern Europe, in return for Warsaw Pact commitments to abide by a variety of human rights principles. The Warsaw Pact signatories never expected these human rights commitments to matter. However, they were used by Eastern European dissidents like Vaclav Havel to repeatedly embarrass their governments and to mobilize people against their governments. The Accords materially helped accelerate the collapse of the Warsaw Pact – an extraordinary consequence that none of the signatories (including the U.S.) expected.
However, treaties are hard to pull off
International relations scholars have done a lot of work examining how civil society actors push for new treaties (as well as other major changes in international norms). Typically, both norms and human rights treaties begin with a normative entrepreneur, an individual or organization that pushes for change. If this entrepreneur succeeds in attracting interest and support for his or her cause, it can create a cascade, in which others rapidly shift from opposing the norm or treaty, or not caring about it, to active support.
Often (as with the civil society led treaty on land mines) entrepreneurs have to be careful about the process of building a cascade, attracting the right actors at the right time to generate a snowball, while excluding others who might water down the norm or treaty until it is too late for them to change it. In general, international relations scholars think that treaties that states officially sign up to are stronger than norms that are based in civil society alone. This is true even when (as with land mines) big states such as the U.S. do not sign up; these states may still find their behavior constrained by what other states think.
This literature suggests that it is generally very hard for normative entrepreneurs to get their projects off the ground. There are many, many causes, but very few take off and change society. That said, the proposed Snowden Treaty starts in a better place than most such movements in that it already has well-known people and a nascent cross national civil society movement backing it. As Fidler rightly notes, states sometimes don’t pay much attention to existing privacy norms and treaties, but these treaties may still help. Timothy Edgar argues today that European hypocrisy over privacy may help drive both the EU and U.S. to agree to limit surveillance, thanks to the EU’s Safe Harbor ruling. Perhaps the best way of summing it up would be to say that the Snowden Treaty faces an uphill battle (especially in the U.S., where the Senate makes treaties very hard to pass) – but that its chances are arguably much better than most such proposals.
Political scientists would still likely argue that those odds are better than a strategy that relied on a mixture of civil society activism and encryption to defeat surveillance. States are extremely powerful – they have a monopoly on violence, which allows them them to tell civil society actors, businesses and consumers what they can or cannot do and to punish them if they do not comply. Political science’s fundamental insight (or, perhaps, bias) is that it’s effectively impossible to avoid politics, and that in a state dominated world, successful strategies of change will be more likely to focus on changing what states do than on trying generally to defeat or undermine them.