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text amended from proposal accepted March 25, 2007
Should States Ratify Human Rights Conventions?
Research Group at Centre for Advanced Study, Oslo, 2009-2010
With additional financial support for two Postdocs
from the Research Council of Norway and the Norwegian Centre for Human Rights at the University of Oslo,
The proliferation of global and regional human rights conventions in recent decades raises intriguing and important 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 in response to social changes.
This 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:
and, in light of these findings,
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:
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 the rules and norms of human rights conventions are congruent with government preferences (Downs, Rocke, Barsoom), it is not obvious that states will find international regulation more attractive than regulation at the domestic level.
States may in fact have several reasons to take on such obligations, so many that 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 2006, Franck 1990, 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). For many governments, the decision to take on human rights obligations will probably be based on some combination of these and perhaps other reasons. And the emphasis is likely to vary depending on – inter alia – the state’s own human rights record and the level of domestic conflict. This assumption is supported by quantitative analyses of ratification and compliance patterns (Hathaway; Hafner-Burton 2005; Landman 2005; Simmons).
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 2005, Schelling 1978). 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.
At least two strands of theory may help us understand these patterns. One deals with policy diffusion, defined as a process through which prior adoption of a particular policy or practice by one or some actors increases the probability that others will decide to adopt similar policies or practices. The key mechanisms at work are adaptation and learning, including socialization (Elkins and Simmons 2005; Checkel 2007). The other strand of theory deals with cooperation, defined as deliberate coordination of behaviour. The study of international regimes seems particularly relevant in this context. However, the human rights area seems to differ in important respects from well researched issue-areas such as disarmament and protection of the environment (Ulfstein 2007). Most importantly, human rights conventions aim at the protection of basic human dignity and rule of law standards, and may differ from international management of a more technical character. Hence, the nature of the benefits that could be achieved through collaboration (the ‘club goods’), and the opportunities and need for coercive enforcement both seems more obscure. Moreover, human rights issues have traditionally been regarded as domestic affairs that pose few coordination dilemmas at the international level (Goodman and Jinks 2004; Krasner 1993; Young 1993, 1999). Why, then, do we see so much formal coordination through international human rights conventions?
To answer this question we need research relying on different approaches – ranging from in-depth analysis of preparatory materials (travaux préparatoires) of the drafting of the conventions and of national ratification debates, to quantitative analysis of patterns of convergence.
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