What reasons do governments have to agree to be bound by international Human Rights treaties?




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Andreas Follesdal


Some topics for a joint conference of Centre for the Study of Mind in Nature and the Norwegian Centre for Human Rights, 2008

A rough summary of ideas mentioned at meeting April 30, 2007 – draft!!


[Aim: a public workshop/conference on a topic within a) the research of CSMN b) the research strategy of NCHR; leading to publications.


What reasons do governments have to agree to be bound by international Human Rights treaties? 1

How should we understand human rights norms – both as legal and non-legal norms? 2

When – if at all - do state governments comply with human rights obligations against their other interests? 2

How are human rights claims used, and best conveyed? 3

Why do individuals and organisations contribute to human rights violations – and what to do about it? 3

References 3



What reasons do governments have to agree to be bound by international Human Rights treaties?


And what reasons do they have to continue to be so bound – even when contrary to their other interests, within limits?

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, og Barsoom 1996), 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 1994); compensation for domestic deconstitutionalization (Peters 2006); avoidance of international ‘shaming’ (Chayes ogChayes 1995) and humanitarian intervention (Forsythe 2000); reputation benefits accruing to members in good standing within the (regional) reference group (Simmons To appear), normative commitments to ‘fairness,’ ‘legitimacy’ or other ideas that constitute or modify the ‘national interest’ (Donnelly 2006, Franck 1990, Finnemore ogSikkink 1998, 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, Dobbin, and Garrett 2006). Finally, states may be ‘socialized’ and ‘taught’ that respect for fundamental rights is essential and ‘appropriate’ if they are to be members in good standing of broader regional or international communities – raising research issues central to fields that include political science, law and cognitive anthropology (Risse, Ropp, og 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 2002; Landman 2005).


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. (Elkins ogSimmons 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 ogSimmons 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, Zimmermann, og Marauhn 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 ogJinks 2004; Krasner 1993; Young 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.

How should we understand human rights norms – both as legal and non-legal norms?


One of the central philosophical topics - and one which also seems to create confusion among philosophers and other scholars alike - concerns the appropriate relationship between international, legally binding human rights norms and 'moral' or philosophical human rights. One source of confusion is that they both serve as critical standards for, or constraints on, domestic legislation, albeit in different ways. For this reason they sometimes seem to be conflated.  Some recent attempts at addressing or using that relationship merit attention. The workshop could compare some of the interesting and somewhat different approaches of Habermas 2003, Beitz 2001, Sen 2004, Pogge 2002 and Koskenniemi 1999 with regard to how they delineate and link the two - and seeks to assess these alternatives.

What are the benefits and risks when ‘abstract’ ‘moral’ human rights norms are ‘transformed’ into legal texts’: do they suffer from, and benefit from, the same effects as ‘legalisation’ in general? Cui bono? Cui malo? Does this change the kind of reason and normative force of the norms? . In what ways do the conventions and decisions affect the national legal systems (Alston 2000)? What is the extent of the leeway that international human rights bodies grant states in their implementation of the legal obligations flowing from the treaties, such as the ‘margin of appreciation’ of the European Court of Justice (Aasen 2006)?

When – if at all - do state governments comply with human rights obligations against their other interests?


This workshop could 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’ – i.e. whether the treaties solve the problems they address (Young 1992). To understand the impact of the conventions, we must consider their legal and political effects, and the causes of these effects and of any discrepancies.

A) What are the legal effects of the international supervisory organs and courts of the various conventions that seek to uphold human rights standards, on states’ legal sovereign freedom? We must consider both the cumulative effects of obligations and decisions, and the effects in individual cases. B) What are the political effects on states’ policies, options, expectations, perceived interests, or conception of sovereign statehood (Hathaway, Keohane, Semb 2001, 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’ compliance or not - and of wilful non-compliance (Keohane, Underdal 1998, Zürn 2005)?

Candidate causes include hierarchical, horizontal or ‘communal’ mechanisms that generate compliance or non-compliance; (networks of) international and/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 of political parties and governments. Human rights conventions may also 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.

How are human rights claims used, and best conveyed?


The appeals to abstract human rights by the weak, and the disregard of human rights for the benefit of particular gains by the strong seem to reflect the insight of Thucydides’: “the standard of justice depends on the power to compel and that in fact the strong do what they have the power to do and the weak accept what they have to accept.” However, sometimes the strong do accept the appeals to human rights – by would be victims or by third parties. How can such appeals be effective, and be made more effective? Must human rights be ‘grounded’ in the particular history and culture of each group, not (only?) for reasons of justifiability, but to be intelligible, and to motivate compliance? (Walzer 2000and elsewhere)

Why do individuals and organisations contribute to human rights violations – and what to do about it?


Some of the central issues of moral psychology and philosophy of the 21st century have concerned the explanation of why ‘normal’ individuals – especially within organisations - find themselves prepared to – and even willingly participate in – horrendous acts of torture and abuse (Arendt 1969, Milgram 1974, Ugelvik Larsen, Hagtvet, og Myklebust 1985, Goldhagen 1996, Vetlesen 2005, ..). Suggested causes range from individuals psychological distortions, over collective psychosis, many hands/coordination problems … What are the enabling conditions for such violations of fundamental moral norms – and how can institutions prevent them?

References



Aasen, Henriette Sinding. 2006. "Ytringsfrihet i islam". Nordisk Tidsskrift for Menneskerettigheter 24, 2: 131-47.

Alston, Philip. 2000 Promoting human rights through Bills of Rights: Comparative Perspectives. Oxford: Oxford University Press.

Arendt, Hannah. 1969 Eichmann in Jerusalem.

Beitz, Charles R. 2001. Human rights as a common concern. American Political Science Review 95, no. 2: 269-82.

Chayes, Abram, og Antonia Handler Chayes. 1995 The New Sovereignty: Compliance with international regulatory agreements. Cambridge, Mass.: Harvard University Press.

Checkel, Jeffrey. 2001. "Why comply? Social learning and European Identity Change". International Organization 55, 3: 553-88.

Checkel, Jeffrey T., ed. 2007 International institutions and socialization in Europe. Cambridge: Cambridge University Press.

Donnelly, Jack. 2006."The virtues of legalization ." The legalization of human rights. Multidisciplinary perspectives on human rights and human rights law. eds Red. Saladin Meckled-Garcia og Basak Cali. London: Routledge.

Downs, George, D. Rocke, and P Barsoom. 1996. "Is the Good News about Compliance Good News about Cooperation? ". International Organization 50: 379-406.

Elkins, Zachary, and Beth Simmons. 2005. "On waves, clusters, and diffusion: a conceptual framework". The Annals of the American Academy of Political and Social Science 598, 1: 33-51.

Finnemore, Martha, and Kathryn Sikkink. 1998. "International norms dynamics and polical change". International Organization 52: 887-917.

Forsythe, David P. 2000 Human rights in international relations. Cambridge: Cambridge University Press.

Franck, Thomas M. 1990 The power of legitimacy among nations. New York: Oxford University Press.

Goldhagen, Daniel. 1996 Hitler's willing executioners. New York: Vintage.

Goodman, Ryan, and Derek Jinks. 2004. "How to influence states: socialization and international human rights law". Duke Law Journal 54: 621-704. (http://www.law.duke.edu/shell/cite.pl?54+Duke+L.+J.+621).

Habermas, Jürgen. 2003 Truth and Justification. ed., transl Barbara Fulmer. Cambridge, MA: MIT Press.

Hathaway, Oona. 2002. "Do human rights treaties make a difference?". Yale Law Journal 111: 1935-.

Koskenniemi, Martti. 1999."The effect of rights on political culture." The EU and human rights. ed Red. Philip Alston, 99-116. Oxford : Oxford University Press.

Krasner, Stephen D. 1993."Sovereignty, regimes, and human rights." Regime theory and international relations. ed. Red. Volker Rittberger.

Landman, Todd. 2005 Protecting human rights: a comparative study. Washington DC: Georgetown University Press.

Milgram, Stanley M. 1974 Obedience to authority: an experimental view. New York: Harper & Row.

Moravcsik, Andrew. 1994."Lessons from the European Human Rights regime." Advancing Democracy and Human Rights in the Americas: What Role for the OAS?, 35-58. Inter-American Dialogue. Washington.

Peters, Anne. 2006. "Compensatory Constitutionalism: The Function and Potential of Fundamental International Norms and Structures". Leiden Journal of International Law 19: 579-610.

Pogge, Thomas W. 2002 World Poverty and Human Rights. Cambridge: Polity.

Risse, Thomas, Steven C. Ropp, og Kathryn Sikkink, eds. 1999 The Power of Human Rights: International norms and domestic change. Cambridge: Cambridge University Press.

Schelling, Thomas C. 1978 Micromotives and macrobehavior. New York: W. W. Norton.

Semb, Anne Julie. 2001. "How norms affect policy: the case of Sami policy in Norway". International Journal of Minority and Group Rights 8, 273: 177-222.

Sen, Amartya K. 2004. "Elements of a Theory of Human Rights". Philosophy and Public Affairs 32: 315-56. (http://www.blackwell-synergy.com/doi/pdf/10.1111/j.1088-4963.2004.00017.x ).

Simmons, Beth A. To appear International Human Rights: Law, Politics and Accountability.

Simmons, Beth A., Frank Dobbin, and Geoffrey Garrett. 2006. Symposium on the Diffusion of Liberalism. International Organization, no. Fall.

Ugelvik Larsen, Stein, Bernt Hagtvet, og Jan Petter Myklebust. 1985 Who were the fascists? Oslo: Scandinavian University Press .

Ulfstein, Geir, A. Zimmermann, og T. Marauhn. 2007 Making Treaties Work: Human Rights, Environment and Arms Control . Cambridge: Cambridge University Press.

Underdal, Arild. 1998. "Explaining compliance and defection: three models". European Journal of International Relations 4, 1: 5-30. (DOI: 10.1177/1354066198004001001).

Vetlesen, Arne Johan. 2005 Evil and human agency: understanding collective evildoing. Cambridge: Cambridge University Press.

Walzer, Michael. 2000. " Philosophy, history and the recovery of tradition". The Chronicle of Higher Education.

Young, Oran R. 1992."The effectiveness of international institutions: Hard cases and critical variables." Governance without Government: Order and Change in World Politics. eds. Red. James N. Rosenau og Ernst-Otto Czempiel, 160-194. Cambridge: Cambridge University Press.

———, ed. 1999 The effectiveness of international environmental regimes: causal connections and behavioral mechanisms. Cambridge, MA: MIT Press.

Zürn, Michael. 2005."Global goverannce and legitimacy problems." Global governance and public accountability. eds Red. David Held og Mathias Koenig-Archibugi, 136-63. Oxford : Blackwell Publishing.

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