1. Motivations: Why do governments take on international human rights obligations?

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Andreas Follesdal

January 31, 2007

Should States Ratify Human Rights Conventions?

Proposed Research Group at Centre for Advanced Study, Oslo, 2009-2010

1. Proposal

(References to group members are italicized)

The proliferation of global and regional human rights conventions in recent decades raises intriguing questions about their impact and legitimacy. The conventions restrict states’ legislative, executive and judicial powers, earlier seen as sovereign prerogatives. The conventions also establish supervisory organs or courts, and are ‘living instruments’ in that these organs change the interpretation of the conventions over time.

The proposed multi-disciplinary research group brings together legal scholars, social scientists, and normative theorists. It will address three central puzzles in the field of human rights conventions:

  • the motivations of states when they enter into the conventions,

  • the effects of these conventions on states,

and, in light of these findings,

  • whether such conventions are normatively legitimate.

To understand and assess the impact of human rights conventions is of the highest practical political importance, and also of great theoretical interest. Sound conclusions require multidisciplinary contributions from law, empirical political science and normative political theory. The causal analysis of states’ choices must draw on legal and political perspectives, the effects on states are both of a legal and political nature, and the normative arguments must draw on a firm empirical and legal understanding of the situation and its causes.

Research on how human rights norms affect the objectives, perceptions and choices of various actors also sheds light on more general issues of global governance:

  • the roles of ‘principled ideas’ - such as human rights ideals - and law when forms of international governance and domestic forces interact, and

  • how sovereignty is reconceived in response to, and as part of, processes of ‘legalization’ and globalisation.

1. Motivations: Why do governments take on international human rights obligations?

Why would states choose to restrict their autonomy by signing on to human rights conventions? Even when human rights conventions are congruent with government preferences (Downs, Rocke, Barsoom), ratification restricts its legal competence over its own citizens. Quantitative analyses of ratification and compliance show patterns of acceptance of the international commitments (Hathaway, Hafner-Burton, Landman, Simmons). Sources for finding why these commitments are accepted also include preparatory materials (travaux préparatoires) of the drafting of the conventions and of national ratification debates.

States may well have several reasons to take on such obligations, so their decision may be over-determined. Expected benefits may include locking in policy change and reforms (Moravcsik); compensation for domestic deconstitutionalization (Peters); avoidance of international ‘shaming’ (Chayes and Chayes) and humanitarian intervention (Forsythe); reputation benefits accruing to members in good standing within the (regional) reference group (Simmons), normative commitments to ‘fairness,’ ‘legitimacy’ or other ideas that constitute or modify the ‘national interest’ (Donnelly, Franck, Finnemore and Sikkink, Checkel 2001). Yet another explanation may be ‘policy diffusion’ among countries that face similar problems or that emulate responses, e.g. in the form of ‘juridification’. (Simmons 2006) Finally, states may be ‘socialized’ and ‘taught’ that respect for fundamental rights is essential if they are to be members in good standing of broader regional or international communities (Risse, Ropp and Sikkink 1999, Checkel 2007).

Support for human rights conventions may wax and wane, in fits and starts. One reason is that willingness to take on certain obligations will often be contingent on what important others do. Where positions are linked through webs of contingencies, processes of policy diffusion or multilateral treaty negotiation and ratification are likely to be characterized by thresholds and tipping points. (Zachary and Simmons, Schelling). Moreover, negotiation processes tend to generate their own stakes, and often serve as important arenas for learning. This all suggests that motivations should be analyzed in dynamic terms, and that progress towards convergence on stronger commitments will typically be non-linear in form.

Regime theory might shed light on this question. However, in the case of human rights the need for collective action, the nature of the benefits achieved (the ‘club goods’), and the opportunities and need for coercive enforcement is obscure, compared with other well researched issue areas such as disarmament and protection of the environment. (Ulfstein). Or at best the situation is significantly different for human rights; they are typically regarded as domestic affairs that pose few international coordination dilemmas (Goodman and Jinks, Krasner, Young).

2. Effects: How do human rights conventions affect states?

This part of the project will compare states’ expectations when they ratify human rights conventions with the actual effects of ratification on state sovereignty. Our focus is on issues related to interpretation, implementation and compliance, rather than ‘effectiveness’ - whether the treaties solve the problems they address (Young). Central questions include:

A) What are the legal effects on states’ sovereign freedom of the conventions decisions by their international supervisory organs and courts, both the cumulative effects of obligations and decisions, and effects in individual cases, e.g. in light of the leeway – the ‘margin of appreciation’ that the European Court of Human Rights grants states?

B) What are the political effects on states’ policies, options, expectations, perceived interests, or conception of sovereign statehood (Hathaway, Keohane, Semb, Simmons, Young)? Do human rights conventions, individually or systemically, pose greater challenges to the ‘core’ of perceived national interests and sovereignty than other conventions?

C) What are the drivers of such norm compliance and other change – be it ‘recalcitrant’ or not - and of wilful non-compliance (Hellum and Derman, Keohane, Underdal, Zürn): domestic or international; hierarchical, horizontal or ‘communal’ mechanisms that generate compliance or non-compliance; (networks of) international or domestic judges, international NGOs, domestic publics, ‘human rights entrepreneurs’ who (ab)use the conventions to mobilize groups, legal actors on behalf of corporations or individuals, political parties and politics, governments; rational calculations or ideational diffusion…? To which extent do human rights conventions serve as a reference point for the politization of international institutions and affairs through non-state actors, thus additionally undermining the tradition ideas of sovereignty?

D) What are the causes of discrepancies between expectations and impact: Ineffectiveness, ‘dynamic’ treaty interpretation, ‘agency drift’ of judges, ‘forum shopping’ by strategic domestic agents who choose among different treaties with partly overlapping mandates….?

E) Are there decisive domestic agents that remain committed to human rights conventions even in the face of such discrepancies? And if so why?

3. Assessment: Are such constraints on sovereign democracies legitimate?

Judicial review of the legislature by domestic courts has been the focus of constitutional debate for centuries. Human rights treaty obligations with international judicial review add new and peculiar puzzles for normative political theory, since domestic legal and political accountability mechanisms might be offset by international organs. Also, various cultural traditions and socio-political contexts might give rise to different understandings of the same human rights obligations.

A) Which forms of influence or control over democratically accountable legislatures and executives, by which international actors, are defensible in these issue areas, that are often thought to impinge more severely on domestic political controversy than those of other treaties? (Buchanan and Keohane 2006, Pogge)

B) In particular, with what right might parliamentary legislative decisions, court rulings or government policies be set aside on grounds of human rights violations in general (Bellamy, Follesdal, Waldron) – and on grounds of particular, controversial convention texts in particular?

C) And why should international, unaccountable courts have that authority, especially when their members belong to a wide range of legal and constitutional traditions of varying normative legitimacy?

Answers to these normative questions crucially depend both on the substantive constraints, and on process: How the human rights bodies – and courts in particular – are organized and work, and how they influence domestic legislatures and policy makers. For instance, do conventions shape the domestic polity by overriding democratic politics e.g. through (the shadow of) external sanctions; by forcing a repeat of domestic deliberation; or by affecting the bargaining positions and frames of domestic actors, including their ability to forcefully articulate claims within democratic procedures (Koskennemi, Underdal)?

The normative assessment also depends on how to best conceive of international human rights obligations (Beitz, Follesdal, Pogge, Sen). One conception to be explored is that human rights regimes serve to alleviate complex assurance problems among citizens and governments in multi-level domestic and international games, ‘contingent compliers’ who prefer to comply if assured that the practices are normatively legitimate and generally complied with (Levi, Rawls).

Cases: The European Convention on Human Rights (ECHR), the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)

Empirically, the research will have three focal points that vary with regard to generality of obligations, the extent of legal hierarchy – monitoring or adjudicatory - , global and regional application, and the extent of commonality of values and ideas among the signatories. The team will also draw on comparisons with other conventions and their supervisory organs as necessary.

A) The European Convention on Human Rights (ECHR) is a regional mechanism in the form of a Court, which poses the gravest threats to state sovereignty as traditionally conceived. This vulnerability is limited because, although it has a general application in terms of addressees, the Convention is largely limited to civil and political rights, and because its signatories – at least until the Post-Cold War enlargement of the mid-1990s - may be the closest we have seen to a confederation of like-minded, liberal republics in Kant’s sense.

B) The International Covenant on Civil and Political Rights (ICCPR) is one of the two most prominent global human rights conventions with a general application. Similarly to the ECHR, it is limited to civil and political rights. Its supervisory organ, the Human Rights Committee, can only make decisions in the form of recommendations. But like many other supervisory organs, it examines state reports, issues general recommendations, and under its optional protocol receives individual complaints. It has a high-ranking reputation as a competent legal body and has developed an extensive jurisprudence, and is currently as close as we get to a World Court on human rights.

C) The Convention on all forms of Discrimination against Women (CEDAW) appears to require pervasive and often contested changes in a wide range of institutions, also in Western democracies, in order to combat discrimination of women as one half of mankind, in political and public life, customs and practices, including sensitive areas of property, education, health and employment (Hellum, Hellum et al 2007). It is ratified by many but not all states, not all of which would count as decent liberal republics. Situated at the interface of universal rights and legal pluralism, it also has the most number of reservations by signatories among human rights conventions – and interestingly, several objections by other states to some of these reservations. Its supervisory organ, the Committee on the Elimination of Discrimination against Women, has a mandate comparable to that of the Human Rights Committee (Simmons 2004).

Broader implications

The research group will seek answers to the questions presented above, but will also identify promising tasks for further empirical, legal and normative work, including comparative studies of travaux préparatoires, and tests of the best competing explanations of ratifications and their impact.

To understand and assess how human rights conventions provide avenues for international regulation while restricting governmental freedom, and how they shape various actors’ objectives and perceived scope of interdependent action, is of great practical and theoretical interest.

This research will also, we hope, shed light on more general issues of effective and sustainable modes of global governance and regime design, such as the appropriate forms of influence and the requisite role and legitimacy of legal instruments in international dispute resolution, and compliance monitoring and coercive enforcement by courts and supervisory organs in a ‘partially globalized world’ (Ulfstein, Aasen). The findings will, we hope, contribute to reconceptualise ‘legitimacy’, ‘democracy’, ‘rule of law’ and ‘sovereignty’ in multi-level governance settings beyond the state. The research will also provide input for a broader understanding of the opportunities for global governance and credible compliance; the interpenetration of international and domestic legal and political authorities; the relation between normative political theory and empirical political science; and how such structuring concepts as ‘state interests’ and ‘sovereignty’ should be unbundled, reconceived and re-aggregated in a new world order.
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