The cost of commitment. (human rights treaties) (Symposium on Treaties, Enforcement, and U.S. Sovereignty)

Publication: Stanford Law Review

Publication Date: 01-MAY-03

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INTRODUCTION



I. EXISTING WORK ON THE COST OF COMMITTING TO HUMAN RIGHTS TREATIES A. The Sovereignty View: The Cost of Commitment Is Uniform B. A Normative View: The Cost of Commitment Is Less Important than Norms C. The Rationalist View: The Cost of Commitment Depends on the Cost of Compliance II. THE COST OF COMMITMENT III. THE EVIDENCE: A PRELIMINARY ASSESSMENT A. Aggregate Evidence B. Commitment Patterns of Democratic and Nondemocratic Nations 1. Nondemocratic nations 2. Democratic nations CONCLUSION APPENDIX A: LIST OF TREATIES APPENDIX B: DATA SOURCES AND DESCRIPTIONS TABLES TABLE 1: COMPARATIVE COMMITMENT TABLE 2: CONVENTION AGAINST TORTURE TABLE 3: GENOCIDE CONVENTION TABLE 4: INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS TABLE 5: CONVENTION ON THE POLITICAL RIGHTS OF WOMEN

INTRODUCTION

Over the last half-century, the number of treaties that address issues of human rights has grown from a handful to hundreds. The majority of nations now belongs to a panoply of international agreements--some regional, some universal--that address human rights issues ranging from labor standards to the treatment of prisoners to gender equality. The last decade in particular has witnessed a concerted push from the United Nations to bring nations into the human rights fold through ratification of the six core United Nations human rights treaties. (1) Yet despite the proliferation of treaties and the growing attention to countries' decisions to join them, (2) little attention has been paid to what influences countries' decisions to join these treaties.

Perhaps this inattention is due to the perception that the explanation for countries' decisions to ratify is obvious. Ratification of treaties is entirely voluntary; hence, one might argue, only those countries that share the goals of the treaties will ratify. In this view, it is obvious that those that abhor torture will ratify the Convention Against Torture, those that favor women's political equality will ratify the Convention on the Political Rights of Women, and those that are committed to civil and political rights will ratify the International Covenant on Civil and Political Rights, while those that do not will not.

But this simple explanation, while it of course tells part of the story of treaty membership, undoubtedly does not tell it all. It does not tell us why, for example, Afghanistan, Colombia, Mexico, and other countries known to have regularly engaged in state-sponsored torture ratified the Convention Against Torture in 1987, while Belgium, Iceland, and the United States--which have markedly better practices--did not join the treaty until the latter half of the 1990s. It does not tell us why the human rights ratings (3) of countries that join treaties are not all that much better, on the whole, than those that have not. (4) And it certainly cannot help us explain why countries with the worst human rights ratings often ratify human rights treaties at rates approaching or matching that of countries with the best ratings. (5)

In the area of human rights, which is the focus of this Article, treaty membership is all the more difficult to explain because the very existence of human rights treaties poses a puzzle. In some areas of law, it may seem quite obvious why countries create and then join treaties. Arms control agreements, trade agreements, and mutual nonaggression agreements, for example, offer member states obvious reciprocal benefits in exchange for their respective pledges to act or to refrain from acting in particular ways. (6) But human rights treaties do not, at least on their face, promise such benefits. Assent to a human rights treaty invites intrusion of the international community into the domestic arena and in particular into the relationship between the state and its citizens--a sphere of influence usually jealously guarded. In return, member nations receive only promises from other nations to refrain from harming their own citizens. From a strictly rationalist point of view, which sees state behavior as largely motivated by an assessment of costs and benefits, (7) this is not something that states should care much about. After all, how does the use of torture by the government of Zimbabwe against its own citizens affect the national interests of Denmark? Hence, from the rationalist perspective--a perspective that is currently dominant in the field of political science--human rights treaty membership appears especially difficult to explain.

In this Article, I focus on only a small part of this broader puzzle. Putting to one side, for the moment, the many ways in which countries benefit from joining human rights treaties, I seek insight into how the cost of committing to human rights treaties influences countries' decisions to join. I begin by proposing a way of conceiving of the cost of consenting to be bound by a treaty that takes into account the internal enforcement process. I then investigate whether countries appear to be influenced by this cost of membership when they decide whether or not to join particular treaties.

In presenting this argument, I do not purport to provide a complete explanation for countries' decisions to join human rights treaties. This Article is but a small part of a more expansive project in which I investigate the broader puzzle that I have described. (8) Here, my goal is more modest. I seek simply to examine whether a conception of the cost of commitment that acknowledges the role of domestic institutions helps us better understand countries' decisions to join human rights treaties.

To begin to answer this question, I examine empirical evidence drawn from a database that covers 166 nations over a time span of forty years. I use this data to shed some light on the decisions of nations to join human rights treaties. Do countries with better human rights practices ratify more readily than those with worse human rights practices? Is the propensity of nations to ratify treaties affected by the enforcement mechanisms used in the treaties? Do democratic nations ratify more readily than nondemocratic nations? Is there a difference in the willingness of democratic and nondemocratic nations to commit to a treaty when their practices are out of step with the treaty's requirements? These are a few of the questions that I ask in this Article. The empirical evidence, while far from conclusive, provides some preliminary answers that I hope will serve as a roadmap to future, more detailed investigation.

Part I of this Article reviews the existing theories of state behavior and the answers they suggest to the question of whether and how the cost of committing to a human rights treaty affects countries' decisions to join. I sketch out three broad views of the cost of commitment that can be gleaned from the existing literature, which I term the sovereignty view, the normative view, and the rationalist view. These three approaches, though different in their foundations and reasoning, suggest two possible relationships between the cost of commitment and treaty ratification. They predict that either there will be little or no predictable relationship between the cost of commitment and a country's ratification decisions or that the further a country's ratings diverge from the standard of behavior required in a human rights treaty, the less likely it will be to join.

In Part II, I put forward my own theory of the cost of commitment. I argue that for treaties with minimal enforcement provisions--which include most human rights treaties--understanding the cost of commitment requires taking into account not only the cost that would be entailed in bringing the country's practices into compliance with the treaty but also the likelihood that those costs will be realized.

In Part III, I put the theories to the test. I compare the predictions of the existing accounts of state behavior and of my own account against the empirical evidence. I find that states often fail to behave as proponents of existing accounts would expect and that the evidence is instead more consistent with the predictions that arise out of my own account. I conclude by reviewing the insights into countries' decisions to join human rights treaties provided by the empirical evidence and by outlining future avenues of research suggested by the findings.

I. EXISTING WORK ON THE COST OF COMMITTING TO HUMAN RIGHTS TREATIES

With a few important exceptions, political scientists and legal scholars have largely ignored the questions of when and why countries join international treaties. Legal scholars in particular have tended to take it as a given that international treaties exist and that countries choose to join them. (9) They have focused their attention instead on whether and when countries comply with those treaties and on whether the sovereignty costs of treaties outweigh their benefits. (10) In doing so, they have almost entirely ignored the questions of why treaties come into being and what motivates nations to join them. (11)

Until recently, political scientists largely ignored international law and hence made little effort to explain its existence. Yet they have long been interested in the broader question of international cooperation, of which international treaties are a formalized subset, if one that is often left unacknowledged. In recent years, as political scientists have turned more attention to international law, there have even been some direct efforts to explain the existence of particular treaties. Among these is Andrew Moravcsik's examination of the origins of the European Convention for the Protection of Human Rights and Fundamental Freedoms. (12)

If only a few scholars have addressed the questions of when and why countries join human rights treaties, even fewer have considered the narrower issue that is the focus of this Article: What is the cost to a country of committing to a treaty and how does that affect its decision to join? Below, I sketch out three broad views of the cost of commitment that can be gleaned from the existing literature: the sovereignty view, the normative view, and the rationalist view. Perhaps the most prominent view in this context is one that sees human rights treaties as imposing substantial sovereignty costs on all ratifiers. In the most often articulated version of this view, which I will call the sovereignty view, human rights treaties impose a cost that is either uniform or randomly distributed across all nations because they require ratifying nations to surrender power to inspect the relationship between the state and its citizens. A second view, which I term the normative view, suggests that countries join human rights treaties not because a cost-benefit analysis leads them to do so but because of genuine commitment to the ideas such treaties embody. Assuming that countries' practices are somewhat indicative of their normative commitments, scholars espousing the normative view would also expect countries with poor practices to be less likely to ratify human rights treaties. Finally, under the rationalist view, the cost of commitment varies according to the degree to which countries' ratings diverge from the treaty's requirements. In this view, all things being equal, the further their practices diverge from the requirements of the treaty, the less likely countries will be to join.

A. The Sovereignty View: The Cost of Commitment Is Uniform

Under the sovereignty view, human fights treaties are seen as costly to all those who join. (13) The model cuts across analytic approaches to state behavior and has been adopted by rationalist and normative scholars alike. (14) The existence of sovereign states relies, in this model, on two basic principles: exclusive territorial authority and the noninterference of external actors in domestic life. (15) Human rights law, which seeks to place limits on how states can treat their citizens and legitimates the interference of other states or international organizations in domestic affairs, is revolutionary in this view, because it conflicts with national sovereignty, i.e., "the political independence of a state." (16) This direct tension between sovereignty and human fights means, as Hedley Bull argues, that the exchange of recognition of sovereign jurisdictions between states "implies a conspiracy of silence entered into by governments about the rights and duties of their respective citizens." (17) That shared belief has, in turn, led to arguments that sovereignty must be made "conditional upon the protection of at least basic human rights." (18) Thus sovereignty and human rights stand in a zero-sum posture--strengthening one necessarily weakens the other.

Those adopting the sovereignty model generally see the costs of membership in a human rights treaty as uniform across states. Andrew Moravcsik, who aptly labels the surrender of national discretion required by human rights treaties "sovereignty costs," works from the assumption that "the inconvenience governments face is constant (or randomly distributed)." (19) All states are jealous of their sovereignty; hence, membership in human rights treaties is costly to all nations. In this view, variation in treaty membership comes not from variation in the cost of commitment across nations, but from variation in the benefits of treaty membership. Political scientists that offer different explanations for the existence of human rights treaties make similar assumptions regarding the costs of membership. Kenneth Waltz, for example, argues that states join human rights treaties because they are induced into doing so by more powerful nations--those that receive the largest inducements will be those most likely to join. (20) Under the classical realist view, human rights treaties offer little or no tangible benefits, and hence states will join as a form of cheap talk (if membership in the treaty is costless or nearly so) or not at all. (21) In the "republican liberal" view of Andrew Moravcsik, countries' "willingness to tolerate sovereignty costs increases insofar as the costs are outweighed by the benefits of reducing domestic political uncertainty." (22) For these scholars, as well as many others whose work varies dramatically in their analytical approach to state behavior, the costs of human rights treaties are constant, or randomly distributed. (23) In this view, then, examining the cost of committing to treaties should provide no additional insight into cross-national variation in treaty membership.

B. A Normative View: The Cost of Commitment Is Less Important than Norms

Legal scholars have until now largely ignored the question of why states ratify international treaties. Treaty ratification is instead usually taken as the starting point. To the extent that legal scholars do address it, they generally note simply that states do not consider themselves bound by treaties unless they commit thereto. Once they do ratify, however, they act, as Thomas Franck puts it, "in professed compliance with, and reliance on, the notion that when a state signs and ratifies an accord with one or more other states, then it has an obligation, superior to its sovereign will." (24) They then appear to infer from this that states only join treaties when it is in their interest to do so. (25)

Abram and Antonia Chayes make the connection between states' expectation that treaty commitments will be binding and their decisions to make them--a relationship implied by other legal scholars but rarely made explicit. In their managerial model of state behavior, the norm of "pacta sunt servanda"--treaties are to be obeyed--is so universally accepted that nations, which can choose to join or not, do not join agreements with which they do not intend to comply. (26) As the Chayeses put it, although nations "may know they can violate their treaty obligations if circumstances or their calculations go radically awry, they do not negotiate agreements with the idea that they can break them whenever the commitment becomes 'inconvenient.'" (27) Instead, nations enter into agreements "based on considered and well-developed conceptions of national interest that have themselves been informed and shaped to some extent by the preparatory and negotiating process." (28) Hence, in this view, states only join treaties that they believe serve their interests--interests that are in turn defined through an interplay of domestic players and international actors. (29)

Neither the Chayeses nor other legal scholars are explicit about how "divergent interests" are accommodated in the treatymaking process or about what motivates domestic and state actors--ideas, material incentives, or something else. (30) Political scientists offer two possible views of the question, one more normative and one more rationalist in nature. In a normative approach to state behavior, states join treaties that they believe to be "in their interests." (31) Their interests, in turn, are determined predominantly by their normative commitments. A normative approach to state behavior thus suggests that countries may ratify human rights treaties if they are committed to the ideas and goals that the treaties embody, even if doing so apparently goes against the state's material interests.

Martha Finnemore, who offers a normative view of state behavior often labeled "constructivist," (32) argues that "principled concerns, morality, and individual action" are as important, if not more important, to understanding the motivation of domestic actors and hence of states. (33) States do not come to the table with fully formed and immutable preferences, Finnemore argues. Instead, "It]he international system can change what states want." Thus, international institutions change state action, "not by constraining states with a given set of preferences from acting, but by changing their preferences." (34) A necessary concomitant of this argument is that material interests are not the sole source of state preferences. Indeed, in this view, what a state perceives to be in its material interest is itself constructed through the process of interaction. As Finnemore puts it, "[m]aterial facts do not speak for themselves, and attempts to make them do so have limited utility." (35)

Harold Koh and Kathryn Sikkink offer a related vision of state behavior. Koh argues that state behavior can be explained as a result of "transnational legal process." In this view, the process of norm internalization proceeds through three phases: Transnational actors provoke an interaction with one another, which forces an interpretation or enunciation of the norm applicable to the situation. This generates a legal rule that can then guide future interactions. Over time, repeated interactions of this form can lead to internalization of the enunciated norms through reconstitution of the interests and identities of the participants. (36) Under this model, ratification of a treaty may come about as the result of an interaction between international actors. The ratification may not, at the time it occurs, reflect the normative position of the ratifying state....

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