Human rights compliance (Final) Flashcards
Treaty ratification and human rights practices
What we want to see: As states ratify more and more human rights treaties, their practices will also improve. However, what we have seen is that the level of HR treaties ratified has gone up, but we haven’t seen much improvement. Is greater commitment to HR really good for compliance, or are they unrelated?
Is greater commitment good news about compliance? Fariss 2014
He argues that the graph is not reflecting that as we move through time, the standard of accountability changes. Seems that there was a stagnation when it comes to HR practices. What’s actually going on: improvement in HR practices that we are not seeing.
Is greater commitment good news about compliance? Fariss 2014: His explanations
A level 7 of compliance in 1985 is very different from a 7 in 2005 (7 in 2005 implies a much better level of compliance). Reasons:
1. Expectations: It was much easier to be in compliance back in the 50s than it is now. These measurements don’t take this into account.
2. Accounting for discovering human rights violations. The capacity for information, access, and classification has improved. Many violations that have happened in the past but were never reported, will likely be reported now.
Is greater commitment good news about compliance? Fariss 2014: His findings
He finds that actually, there has been a significant increase in human rights practices when he corrects the formula. Problem of measuring HR compliance through time, when the standards keep changing, and the ability to measure and discover violations.
Human rights treaties often appear to have no effect on human rights practices –> Why?
Monitoring and enforcement are low: Expressive benefits of ratification without costs of violation. Easy to commit, ratify, and ignore the treaty. If the punishment as more severe, we would probably find that ratifying a HR treaty would have a greater impact.
Institutional resistance to change practices: Major changes in human rights practices typically require major shocks (regime change). Hard to see improvements in Hr within the same regime. Leader may intend to comply but they just don’t have the capacity to do so (Managerial school).
Human rights enforcement (NGOS/Western states) has little to do with ratification status: What drives this monitoring and enforcement/punishment, is not legal violation, but the state not meeting the standard, which are two different things. NGOs care about the actual human rights practices, not whether you made a legal commitment. If you states engage in the same equally bad practices, it doesn’t matter if one ratified or the other.
Human rights treaties sometimes have a negative effect on practices –> Ratification relieves pressure
NGOs are going to pressure governments not so much for them to improve their HR practices, but rather to ratify and commit to improving HR practices. Idea: I’m going to ratify it so that they stop bothering me and start bothering someone else. Thanks to ratifying the treaty, I got rid of them, and now I can make my HR practices even worse because they aren’t watching.
Three main drivers of human rights compliance (International)
Enforcement: Can come from what there are going to do internationally or domestically.
1. Retaliation: If you don’t comply you will be punished (e.g. with sanctions). Punishing someone for engaging in HR practice that does not meet a certain standard that the other state considers must be met. This happens independently of the commitments made by the state.
2. Reputation (naming & shaming, UN HR Council): If you made a HR commitment and then you violate it, you are sending a signal to others that you do not take your commitments seriously. It is based on a state’s reputation whether they will be able to collect the material benefit for being part of the intl community in the future. Naming & shaming: identifying a state for violating human rights, and shaming them for the violation. If you have horrible HR practices, but you never made the commitment to act otherwise, your reputation is no affected (different from retaliation).
3. Adjudication (IHRL, courts, committees).
Naming & Shaming often appears to have a positive effect on HR practices (Political Rights)
Immediate costs (domestic and international) + future costs (reputation). Only has this effect for political rights. This is because the repetitional costs of not doing so will have a negative repercussion internationally. And also immediate costs related to the question of prestige or status (also important domestically).
Naming & Shaming sometimes appears to have no effect on HR practices (Political Rights / Political Terror)
Cheap talk: In the real world, reputation is divided into different sections. E.g. bad reputation in HR but impeccable reputation when it comes to trade agreements. A state may be able to divide its reputation.
Lack of capacity: The HR abuses for which one is being accused of might be a result of lack of capacity and not willingness.
Naming & Shaming sometimes has a negative effect on practices (Political Terror)
Emboldens opposition Means that you are enchanting the threat that the govt is facing, and thus making the HR abuses attractive Greater need to repress.
Encourages violent groups (want publicity) –> spiral of violence: Do this because those responses become more public (provokes govt), and that will then be used to undermine the legitimacy of govt. This may lead to a spiral of violence.
Strategic adaptation: switching to the most cost-effective form of abuse. The reason we see a negative effect on political terror is because we see a positive effect on political rights. Political terror you can hide more easily, whereas political right are harder to hide, which makes this tradeoff attractive to govts (giving rights but then taking ones away that are easier to hide).
Courts as international law makers - Scenario 1: The court (re) interprets a treaty. by applying precedent interpretations of the same treaty
This is very unproblematic
Courts as international law makers - Scenario 2: the court (re)interprets a treaty by applying precedent interpretations of other treaties
Constitute part of this transnational jurisprudence that a court can borrow.
Courts as international law makers - Scenario 3: the court (re)interprets domestic law by applying precedent interpretations of a treaty.
Domestic court. Borrow from this not really existing transnational jurisprudence as if it were a source of law, and use that to make a decision about how to interpret the US constitution. Transnational jurisprudence works as if it were a source of law because courts always borrow from it to make decisions, but it’s not actually recognized as a formal source of law (like the constitution is).
Beth Simmons’ Mobilizing for human rights - Why do States comply with human rights treaties?
Sincere ratifiers (true positives). Treaties change the domestic political of the ratifiers: Treaty empowers “human rights stakeholders.” Strategic calculation about benefits of ratifying a treaty I don’t like. Usually states make a mistake in their cost benefit analysis (Don’t see how the domestic political will be reformed by HR treaty ratification).
Beth Simmons’ Mobilizing for human rights - Why do States comply with human rights treaties?: Three mechanisms
- Agenda setting: As ratification of treaty is considered, it becomes party of domestic agenda in the general public and media. Brings to surface aspects of Hrs that maybe weren’t previously considered by that population.
- Litigation (courts): “cause lawyering” / “alternative lawyering”
- Politlca mobilization: Treatyraises expectations about human rights practices (perceived rights gap). Makes them question the legitimacy of current practices. Gap between my entitlements and the ones I think I should be enjoying widens as a result of the public debate / awareness raising. Treaty pre-commits the government to be receptive to rights demands, mobilizes non-stakeholders too (rule of law, political opportunism). They underestimate the costs of violating because they only looked at the enforcement mechanisms of the treaty, not the potential domestic consequences (how many false positives end up complying).
Influences on Human Rights Mobilization in Stable Autocracies, Stable Democracies, and Partially Democratic or Transitional Regimes
Value of success for mobilizing for HRs is greater in stable autocracy and smaller in stable democracies. In stable democracies, there isn’t that much to gain by mobilizing of for HRs. Likelihood of succeeding when mobilizing is lower in stable autocracies than in stable democracies.
Influences on Human Rights Mobilization in Stable Autocracies, Stable Democracies, and Partially Democratic or Transitional Regimes: Two important things to consider
- The prize (what do you get if you win)
- The chances (how likely is it that you can win)
After ratification, both values increase: Value of success increase a little for stable democracy, much more for autocratic govt. Likeliness to succeed also moves up after ratification in both, but only a little for a stable autocracy and much more for stable democracy. When you combine the likelihood of success and value of success you get the expected value of mobilizing for human rights, which is relatively low for both stable autocracies and stable democracies.
For stable democracies, there isn’t much chance of success - So why mobilize?
In partially democratic transitional regimes, the combination of the two values together gets a higher expected value of mobilizing for ratification. This is where false positives will be in trouble (if they are a govt in transition, they will probably end up complying with a treaty that they didn’t plan on).
Radical decoupling
Making formal concessions after ratification, but in practice continuing with the same bad practices (maybe even worse).
The paradox of empty promises (Hefner-Burton &Tsutsui 2005): Does the ratification of HR treaties improve HR practices?
Yes (indirectly) and No (directly). No evidence for the direct effect of ratifying treaty and improvement of HRs. The effect they do find is indirect: By ratifying HR treaties, the intl community as a whole experiences a global (Systemic) legitimation of HR norms. This effect will be felt by all states in the intl community, not just ratifiers. NGOs will wield those legitimizing norms to put pressures on noncompliant states from outside and within to bring about improvements in HRs. But not all states will experience it equally: For NGO pressure to be effective, that society must be entangled with intl civil society (embeddedness). The more isolated a state is from intl civil society, the less effective global litigation of HR norms will be.
Acculturation
The process by which States adopt the beliefs and behavioural patterns of the surrounding culture. About identifying with a reference group ( a group of model states I look up to and want to be a part of) which takes these norms seriously and adopts the pattern of behaviour associated with that norm.
Compliance through acculturation
Behavioural change (compliance) is induced through cognitive / social pressures to conform –> Presupposes the State’s identification with a reference group (social psychology).
Compliance through acculturation: (Internal) cognitive costs and benefits (dissonance, mimicry)
If you see yourself as a member of the reference group, it’s very discomforting from an identity point of view to behave differently from them (cognitive dissonance). It will be hard for you to believe that you are really part of the group if you behave differently.
Compliance through acculturation: (External) social rewards and punishment s(back-patting, shaming, shunning)
The more I deviate from the pattern of behaviour that defines them, the more likely I will be excluded from the group. So I will conform, even if I don’t really like the behaviours (the HRs they respect), because my reference group does. This can be real or imagined.
Three mechanisms of social influence on states and their results
Coercion: Result in compliance (avoid punishment)
Persuasion: Result is acceptance (because they see value in HRs)
Acculturation: Result is conformity (could be because of trying to be part of a group, could be because they value HRs).
Compliance through acculturation: Compliance with human rights varies with
- The place of human rights in the State’s surrounding (International) culture
- The importance of human rights practices for the reference group: Is the reference group defined by complying with HRs? Can I be a member of them group and ignore HR practices, or do I have to follow them?
- The size of the reference group (Social benefits and costs of nonconformity): Bigger the size of the group, more resources they have to punish/reward me for (not) conforming to the group standard. These are social rewards/punishments, not material.
- The intensity of the State’s identification with the reference group.
