Final Exam Flashcards
What are state reports?
Reports made only if that state has ratified a treaty
Treaty bodies issue recommendations about what they want to know more about specifically
States will have to report back on these recommendations, this is the dialogue
Even if there are states who don’t do everything or have reservations, at least theyre a part of the dialogue and review process
Concluding observations: soft law, how well a state is doing and what rights states are violating
States send a delegate to participate in this
After viewing a state report, states send what?
concluding observations - soft law
after individual communication what does state send out?
views - soft law
who makes up treaty bodies?
Independent experts
Reservations
attached to a specific article of a treaty, an example would be Australia signing up for obligation that they won’t hold minors and adults in the same prison complex, but indicating this will not happen immediately, they will need time due to lack of resources or what have you.
Declaration
- precursor to a treaty, not legally binding, for example; Universal Declaration of Human Rights
- Australia goes to ratify a treaty but adds statement that says they are a federal system and some of these obligations they can’t do at a national level
Optional protocol - substantive
if optional protocol adds a new right protection, if its substantive and has content
Example: ICCPR ratify optional protocol to make death penalty illegal
Optional protocol - procedural
Example: individual complaint mechanism, creating new accountability procedure
Universal periodic review
every member of YN has this even if they don’t ratify a treaty
- goes to Human Rights Council
Signing
- not bound to treaty legally
- refrain in good faith from acts that would defeat the purpose of the treaty
Ratifying
- legal act of expressing they will be bound to a treaty
Derrogation
states can deviate from a treaty under emergency circumstances
General comments
- written by treaty body
- can be procedural or substantive
- treaty body initiates this process to inform what the treaty means, this helps state parties understand their obligations
General comments - procedural
here’s how to write a review, no substance
General comments - substantive
CEDAW may not mention domestic violence but it includes it
~ interpreting substance
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Individual communications - admissibility requirements
- state has to have ratified the treaty
- state has to have ratified individual communications
- exhausted all domestic resources
- has to have occurred after the state ratified the treaty, or is ongoing
- no other international court can be/ or have previously reviewed it
- directly affected
- complaint must be compatible with the rights in the treaty concerned and must be well founded
Why states ratify
False negatives
states that we expect to ratify that don’t such as the United States
Why states ratify
False positives
states that we don’t expect to ratify who do
Why states ratify
False positives - why?
- cost-benefit analysis
- immediate benefits
- good publicity, dodge criticism
- benefits to ratification: requirement for some international orgs, access to trade and foreign aid
- positive signal to foreign investors, could want a country who is ethical and follows the law and takes it seriously
- may think they can get away with ratification without compliance
- short term horizon, the state doesn’t consider domestic mobilization
- uncertainty over consequence - may not believe there are any
Why states ratify
False negatives - why?
- legislative veto players
- federalism: by ratifying a treaty, under federalism the fed. gov has new authority they didn’t under federal powers
- ratification may be harder in that state, what are the powers?
- ratification may not be worth it for politicians, especially if there’s little political gain and a lot of tension around the issue. Don’t want to pick a fight w/ states may pay high political price
- common law vs civil law: judges interpretations
- common law: judges might interpret/ set precedents others won’t agree with, uncertainty around judges interpretation
Why do states comply?
- executive: agenda setting influences
- courts: leverage of litigation
- group demands: - rights and mobilization
Independent and Dependent variables
Independent variable example: regime type
Dependent variable: ratification or not
- Independent var. explains dep var.
Another example:
Independent variable: did states enact legislation after ratification?
Dependent variable: have states complied with ratification?
Positivist:
can quantify concepts and subject them to rigorous study. Have variables. Wider perspective, generalize, operationalize, indicators
Non-positivist (interpretivist)
learn more from the deep dive, need to go into communities, how do we count the uncountable? - qualitative data
Critical theorists
asks questions like who’s defining these variables? How do they know what corruption looks like? Is there a power dynamic at play?
Simmons vs Sally
Simmons: positivist - wrote about ratification and compliance, thinks they can get to a fundamental truth thru quantitive and qualitative
Sally Engle Merry: interpretive and critical theorist: issues with expert inertia, indicators, counts, composites, does not agree that you can get to a fundamental “truth” using numerical data
Indicator: measure/statistic
Composites
multifauceted, suceptible to human construction, theories
- how you define a problem often has implicit meaning on the theory underlying your statistics and solutions
Data inertia
previous data is the proxy for later data
- previous data informs new data
Expert inertia
experts are in the same areas a lot of the time
- certain people are in the room, experts convene, certain people get in the room, it matters, especially often Global North PhD holders
Indicator: measure/statistic
Counts
- problem is how do you decide who’s counting, what’s being counted, etc
Indicator: measure/statistic
Ratios
Three main UN human rights mechanisms
- Human rights treaty bodies
- Human rights council - not attached to any other body
- OHCHR - geneva headquarters - coordinates and supports the work of the UN HR mechanisms
Human rights council
- does universal periodic review
- makes recommendations on HR
- delegate for states represent their own interests
Treaty body functions
State reporting procedure
- performed by all treaty bodies, only by states who have ratified the treaty
- treaty bodies issue recommendations about what they specifically want to know more about in regards to a states human rights
- states will report back on these recommendations, this is a dialogue
- soft law: how well a state is doing and what rights states are violating
- states send delegate to participate in this, can have political influence
Why does state reporting matter?
- helps us to develop what laws and conventions mean, they shape what we think the treaty means
- wants to engage a state in dialogue to resocialize it
- negotiate what international human rights law means
Treaties: bilateral vs multilateral
bilateral: 2 states ratify
multilateral: 2+ states ratify
How do states avoid their obligation to a treaty?
Reservations, Declarations, Derogations
Views
treaty bodies adopt decisions on individual complaints called views or opinions
- not legally binding and cannot be enforced
- the decision or “view” includes measures to be taken by the state if a violation is found
- principle of good faith regarding treaty obligations require states cooperate with committee and inform it on action taken to implement its views
- some committees may initiate inquiries upon receipt of reliable, well founded indication of serious systematic violations however the state must consent to an inquiry
Individual communications
- states must have ratified that treaty as well as either ratifying the optional protocol or by a declaration to recognize the competence of the relevant committee to enable committee to receive and consider individual communications
Beth Simmons
Bottom up - domestic change
- bottom up - don’t look internationally look domestically
- Simmons believes scholars are looking in the wrong place for evidence that international treaties work, clearly internationally there aren’t teeth, what about domestically?
Beth Simmons
Where do we look for domestic change?
- Executive Powers:
how treaties can get issues on the political agenda that wouldn’t previously have been there - Courts: how ratification for a treaty might create opportunities to use that treaty in litigation
- Group demands/ mobilization: lead to groups mobilizing around certain issues
Beth Simmons
Domestic Change - Executive Powers
- agenda setting, can’t get anything done if the government isn’t thinking about it
- when a treaty is ratified does it enact domestic legislation?
Beth Simmons
Domestic Change - Courts
- individuals and groups can invoke treaty commitments in domestic courts to hold governments accountable to their treaty obligations
- need faith of legitimacy in court
- need cause lawyers - willing to fight, and grounds to fight on
- independent judicial system: evidence that treaties have stronger effects in countries w judicial systems that are independent
Beth Simmons
Domestic Change - Group Demands
- treaties provide a lens for seeing phenomena as human rights problems, might have viewed it as a norm before treaty ratification
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why would states ratify treaties/ optional protocols
- want to belong on the world stage
- states with new beginnings, or economic beginnings will want to show other states they’re serious about the law
- underestimate how much commitment it is / the longterm
individual communications
what is the process for deciding them?
individual communication -> admissible vs inadmissible -> consideration of merits -> violation vs no violation -> states must offer effective remedy
Beth Simmons
why do states commit to international human rights treaties?
dependent variable: treaty ratification
- Logic of consequences
- Logic of appropriateness
- Theory of rationally expressive ratification
Beth Simmons
Logic of consequences
- cost benefit analysis: what do I risk? what do I gain?
- ratification is considered low cost, high reward
- might be ratifying for short term rewards - very low expectation and a lot of rewards
Beth Simmons
Logic of Appropriateness
- norm compliance “world culture”
- what matters is how states socialize with each other
Beth Simmons
Theory of rationally expressive ratification
- gov who preferences closest to the contents of a treaty are more likely to ratify
- nature of society: democratic or authoritarian?
- each treaty is different, contents are different, some countries are closer aligned to certain treaties than others
- different values and preferences of the people who command that state, who is in power?
Beth Simmons
Government preferences and practices
- Regime type:
- well established democracies will ratify quickly
- new democracies will want to advance on the international stage and look democratic as well - culture/religion
- western countries more likely to ratify other non-western because there’s less of a gap for policy adjustments - government party/parties ideological persuasion
- when a gov’s coalition leans right or left
Quantifying human rights data
main objective for social science is researching hypothesis based off of theory
- empirical evidence
-advocacy - promoting accountability
- evidence based policy making
issues with data collection
- fear of victims
- quality of evidence: fact vs assumption
- caliber of evidence: info across regions
- tradeoff between microlevel info gathering and commensurability: comparison based off a common measure
Events based data
- incident based reporting
advantage:
can catch attention and determining the scope of a problem
disadvantage is under reporting or fabrication
Standards based data
example: democracy
- define concept: what is democracy? what are the elements that create democracy?
- operationalize it, what is the criteria to have a grade? what do we need to give democracy a 10/10? a 1/10? a 5/10?
- determine the data that are needed to construct those measures and describe the data that you will use to construct your measures: collect data: state reporting? new data collection method?
advantage: easier to obtain documents for scoring vs collecting data for events, there is less confidence and less terrain covered in events based data
disadvantage: reliability and validity issue and biases
2 issues concerning measurements
Validity
Validity - concept
- what are we actually measuring?
- degree to which the concept is measuring the thing you’re trying to measure
- does data correspond with concept?
2 issues concerning measurements
Reliability
- is the data reliable?
- who collected the data? could it be biased?
- will we reach the same conclusion based off of the same data?
- extent to which repeated application of the same criteria yield the same result
Survey based data
- survey a society, experts, etc
- no biases can be in questions and need to be clearly defined, what do I want to know at the end of this?
what number of signatories does a treaty require to be able
treaties can only be put into effect for ratification if they have a certain number of signatories which is indicated in the treaty
