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Why Commit?

Explaining State Acceptance of International

Human Rights Obligations

By

Beth Simmons

Department of Political Science

University of California

Berkeley CA 94708

Note: this is a very rough first draft and is not for quotation or attribution at this point. Suggestions and comments re very much appreciated.

Draft date: 18 March 2002

Why Commit?

Explaining State Acceptance of International Human Rights Obligations

"I promise you this: everyone who lives on a dollar a day in Zimbabwe will be able to afford a PalmPilot in five years. Will I be able to get a fair trial in Zimbabwe in five years? If I can get a fair trial in Zimbabwe in five years, I can assure you - even if nobody there has a PalmPilot - Zimbabwe will do just fine. If I cannot get a fair trial in Zimbabwe in five years, they can give everyone there a PalmPilot and all the bandwidth they can consume and it will not make a dime's worth of difference."

--Thomas L. Friedman, Foreign Affairs Columnist for the New York Times, UCLA, January 17, 2001.

I. Introduction

Why do governments commit their states to international human rights agreements? Such a move on its face is puzzling, since these agreements involve obligations to refrain from certain forms of behavior while offering no clear reciprocal benefits for governments. Indeed, the acceptance of optional obligations in many human rights treaties acknowledge the right of the international community to critically examine and judge the human rights policies of the governments that ratify these protocols. Why should governments want to invite external scrutiny of their internal human rights policies?

Yet it is clear that a number of governments have done so. As this paper will show, states have broadly though hardly universally accepted international legal limits on the way they treat their own citizens. The purpose of this paper is to try to analyze who commits: what conditions or set of circumstances lead governments to be willing to expose themselves to international legal obligations and potentially accountability?

Few of our theories of international relations seem readily able to explain patterns of state commitment to human rights accords. Realists, with one important exception (Krasner 1999) have ignored the issue, typically assuming that legal commitments are hardly relevant to the ways in which governments actually behave. Rational functional accounts seem to miss the mark: their focus on reciprocity and institutions as focal points (Keohane 1984) underscore more of a contractual model to treaty commitments than is appropriate for the case of human rights. Normative accounts seem ready-made to explain such commitments, but most have focused on the spread of norms themselves (sometimes using treaty acceptance as an indicator of such normative change) rather than on the choice of making a legal commitment (Keck and Sikkink 1998; Risse, Ropp, and Sikkink 1999). Liberal theories point to the domestic importance of international human rights regimes for polities that have recently undergone a transition to liberal democracy (Moravcsik 2000).

This paper suggests that there are clear cultural preferences, domestic legal traditions, and transitory political conditions that are associated with higher degrees of international human rights treaty commitment-making. But the most consistent finding is that states take normative cues from the choices that other states make, especially those located within their own region. Moreover, governments that participate in treaty negotiations are much more likely to accept optional obligations than those who merely accede.

Why are these important findings? While it is tempting to want to jump straight to the question of treaty compliance and effectiveness, it is crucial to understand why governments make treaty commitments in the first place. The reason is simple. While we may ultimately be interested in on-the-ground human rights behavior, any test of the proposition that legal commitments influence behavior is subject to the charge of endogeneity. The endogeneity charge might suggest that governments who sign human rights treaties would never abrogate their citizens’ rights anyway (hence a positive correlation between human rights behavior and treaty commitment cannot be understood as causal)(Downs, Rocke, and Barsoom 1996). Or it might take a more cynical tack: governments who want relief from external criticism join the international human rights regime to assuage their critics with the hope of actually lessening effective oversight (hence a negative correlation between human rights behavior and treaty commitment may be explainable, but spurious) (Hathaway 2002). We will not be in a position to draw causal inferences from our work on compliance unless we understand the selection bias that causes states to “select in” to the treaty regime in the first place.

Although the question of compliance and effectiveness will have to wait for another paper, the question of why governments make legal commitments is of more than methodological importance. To be sure, legal obligation is only one factor among many that is likely to influence state practice.[1] As Richard Falk has written, “…the protection of human rights…is an outcome of struggle between opposed social forces and cannot be understood primarily as an exercise in law-creation or rational persuasion.” (Falk 1992:32) On the other hand, case studies have indicated the importance of international legal instruments in influencing the context in which governments make choices and fashion their practices. Risse, Ropp, and Sikkink place international law and institutions near the center of their account of normative behavior: "...international law and international organizations are...the primary vehicle for stating community norms and for collective legitimation." (Risse, Ropp, and Sikkink 1999:8). Just why governments buy into these norms – what Oscar Schachter has termed "...the words, texts, votes, and excuses" that make up the "paper practice" of human rights (Schachter 1991) – is an essential first step to unraveling the relationship between law and behavior.

The paper proceeds as follows. The next section reviews the literature on human rights treaties and proposes a set of hypotheses that flow from this literature. The third section discusses the data I have collected and methods I use to examine these hypotheses. The fourth section presents the findings with respect to the International Covenant on Civil and Political Rights, while the fifth section looks at the other five core United Nations human rights treaties. A final section concludes.

II.  Explaining International Human Rights Accords: the Literature

Surprisingly, there is relatively little literature that addresses the general question of why governments make international legal commitments. The richest source of speculation surrounds the reasons for international law itself. The international legal system, we are told, provides states certainty in their international affairs; predictability in their foreign transactions; a set of rules on which to focus their expectations of other’s activities (Henkin 1979).[2]

These kinds of arguments do not ring true in the area of international human rights law. Contractual notions that depend on expectations of future gains when both parties “perform” according to their agreements do not plausibly motivate the codification of rules on how a government should treat its own citizens. Enforcement via reciprocity is a stretch. And few foreign governments gain significantly from the certainty achieved through foreign pledges pledges of internal state-citizen relations.

The set of international legal rules surrounding human rights practices have an undeniably normative genesis.[3] Political scientists as well as legal scholars have pinpointed principled, normative concerns (biased though they may be toward western values) as the underlying explanation for the existence and development of the international human rights regime. Jack Donnelly, for example, considers the development of international human rights during post War years to represent an important shift in what it means to be a civilized nation. He argues that “human rights have become a (small) part of the post-war calculus of political legitimacy.” [Donnelly, 1998 #550:20]. Martha Finnemore and Kathryn Sikkink have sketched out a theory of the spread of norms internationally that is highly informative for understanding the development of the current legal human rights regime (Finnemore and Sikkink 1998). They point to the role of “norm entrepreneurs” who frame and publicize issues so as to make them more likely to be on governments’ agendas. A significant number of scholars have researched the crucial role that NGOs have played in influencing the drafting process and institutional arrangements to oversee the developing human rights regime (Chinkin 2000:133-135; Tolley 1989).

I am not concerned here with the creation of the rules, but rather with the decisions that individual governments make to become bound by them. After all, it is one thing to agree that rules governing this area should exist; it is quite another thing to agree to be legally bound to them. The behavior of the United States with respect to many of the major accords belies the disjuncture between an abstract commitment to an international regime, and a willingness to become meaningfully bound by particular treaty requirements.[4]

Many fewer scholars have taken up the question of the conditions under which governments make meaningful international legal commitments in general, or in the human rights area in particular. We can consider arguments that influence the external salience of these norms (supply side arguments) on the one hand, and autonomous preferences (demand side arguments) on the other.

Supply side arguments: various forms of external pressure

Realists would of course begin here. There are few advantages to a government for accepting a legal constraint on its internal behavior. The decision to bind oneself in such a way must be the result of some kind of implicit or explicit linkage politics that raises the costs (or denies a benefit) to those remaining outside of the regime. For this reason, scholars usually assume, and some have produced empirical evidence, that smaller states usually embrace legal commitments more readily than do the more powerful (Cassese 1992).

What form might such external pressure take? One possibility is that the country is highly dependent on the good will of the international community for its material well-being. Next we have to imagine that external actors are willing (or at least willing to threaten) to manipulate trade, investment, or development assistance in order to “encourage” a government to make a treaty commitment. Why such a threat might be credible is open to speculation. Trade and investment sanctions seem a far-fetched way to get a signature on a treaty, especially since so many domestic economic agents are likely to be hurt. Marginally more plausible is the threat to restrict access to official sources of overseas development assistance. Yet instances of such threats are rare, and they have tended to be reserved for cases of flagrant human rights abuses rather than to secure a treaty commitment.[5]

External pressures of the kind that might be used to secure treaty ratification or accession are more likely to be diplomatic or even “normative.” These are the external intangible pressures governments might experience to sign on as a treaty regime gains in normative legitimacy. These kinds of pressures are likely to be persuasive rather than explicitly threatening in nature. They may emanate from either state or non-state actors, and they may be of global or regional provenance.[6] In some cases, the “pressure” might be so mild as to qualify as “leadership.” Lori Damrosch, for example, has made the case that US leadership – in the form of ratifying and applying international human rights agreements domestically – would have gone a great distance toward providing a model that other states, specifically the former Soviet Union, would have been likely to emulate (Damrosch 1991:2329-2334). These kinds of external influences are exceedingly difficult to document, but are likely to be more pervasive than the manipulation of material incentives.

Demand side arguments: various degrees of receptivity

Demand side arguments explain the autonomous reasons as to why a government might be ready and willing to make a legal treaty commitment. In the absence of various forms of external pressure and persuasion, how likely is a particular government to so commit? Demand side arguments concentrate on internal volitional reasons for commitment. As should be intuitively obvious, there is no reason to believe that governments have the same autonomous preferences for the menu of international human rights commitments the world community is currently offering. I explore reasons having to do with current practices, deeper cultural values, transitory political conditions, and material structures.

1. The commitment reflects current practice

The clearest reason for committing is that it is easy; that is, the commitment doesn’t require much that the government wasn’t willing to do anyway. A treaty may be legally binding, but not very practically binding: domestic rules and practices already meet or exceed what is required by the treaty arrangement. Governments that already protect rights should be willing to accept treaty arrangements with a similar purpose. We would not in this case infer much causal importance to the treaty obligation (Downs, Rocke, and Barsoom 1996; Keohane 1984). Nonetheless, current practices, if they already reflect many of the values contained in the treaty arrangement, should be likely to facilitate a quick and strong commitment. Perhaps this is why there is a strong presumption that the more democratic a country is, the more likely it is to embrace the international human rights regime.[7]

Furthermore, governments who are most active and influential in rule creation should also be the most willing to jump on board. After all, treaties are negotiated with the each countries’ own national issues and preferences firmly in mind. Although we can certainly think of instances in which a state that was heavily involved in the negotiations later spurned the adopted text (one thinks of the Law of the Seas fiasco in the 1980s), for the most part influential participants should find it easy to commit to the texts they were instrumental in drafting. Bit players and those who later accede to a treaty’s requirements may find less of a match between their preferences and the treaty in question.

2. Cultural context

One of the most obvious possibilities for explaining differential embracing of international human rights regimes is cultural diversity. Here I consider two kinds of cultural diversity: diversity related to a society’s most deeply held values, and those relating to the nature of the legal system itself.