When we were discussing why countries would voluntarily ratify or commit to treaties like the Rome Statute in class on Thursday, this article I read, titled “Why Do Countries Commit to Human Rights Treaties” by Oona A. Hathaway, a professor in Yale Law School, came to my mind. I would like to briefly summarize what she says in the article and talk about its implications for our topic. I saw that many people have commented on the U.S.’s position with the ICC, and I hope this post can offer a different perspective.
Hathaway argues that “states take into account the likely costs and benefits of complying with a treaty (as determined primarily by legal enforcement and collateral consequences) when they decide whether to commit to a treaty” (590). Here, domestic legal enforcement refers to “the degree to which those outside the government can enforce the state’s legal commitments,” while collateral consequences are “reactions of domestic or transnational actors to the state’s decision to commit to the treaty” (593, 595).
Based on her statistical analysis, Hathaway concludes that among those states that have robust domestic legal enforcement (such as stable democracies), the states with higher human rights violations are less likely to ratify the relevant treaties (608). Once those states commit to the treaty, the domestic population may force the state to change its behavior in regards to human rights. Surprisingly, those states that do not have such strong domestic legal enforcement of treaties are not less likely to sign the treaties because of the weak domestic force to change its behavior (608). Those states with poor human rights records and weak domestic enforcement may gain diplomatic leverage, economic aid, or other collateral benefits from signing the treaty, with little cost of changing their behavior (595).
Among collateral consequences, some proved to be more powerful than others. Number of human rights NGOs actually yielded mixed results for different treaties, which may diverges from norm-based theories of states’ commitment (598). Although human rights NGOs may push the state to sign the treaty, such powerful influence of NGOs might be the reason that some states don’t sign the treaty, as the domestic legal enforcement cost (609). Hathaway also finds that newer states are more likely to commit to human rights treaties, all other things being equal, possibly because they “have no existing track record to help or hurt them in their efforts to attract foreign capital, trade, aid, and political support” and therefore may “take actions that signal an intention to become good international citizens” (597). They may also have more to gain from investment, trade aid, and political support (597). Lastly, the regional ratification rate also matters, as those states surrounded by other states that committed to the treaty are more likely to sign, as there may be collateral benefits to be gained from by demonstrating their “commitment to these shared norms and thereby smooth relations with other countries within the region” (597).
What does this mean to the topics of our class? We have seen many cases where even those states that are state parties to the ICC do not cooperate with the ICC, and this may be explained by what Hathaway describes as weak domestic legal enforcement (I understand it may be a huge understatement of the complicated political situations and calculations in those countries). It is at least evidenced by the fact that they do not have influential human rights NGOs to affect its state behavior. I think it may also explain the U.S.’s such strong opposition against the Rome Statute. It can be argued that U.S., because of its unique role in the world, may have poor “human rights records” by committing certain crimes that the Rome Statute addresses. It might be under enormous pressure from both domestic legal enforcements and face collateral cost if it commits to the Rome Statute. It may be the U.S.’s best interest to entirely deny the legitimacy of the ICC to avoid the cost from collateral consequence of not ratifying the treaty (and signaling that it is a state that does not hold up international justice) and avoid the legal enforcement cost from ratifying it. And even if U.S. is becoming increasingly supportive of the ICC, we could arguably predict that it will never ratify the Rome Statute because of the enormous legal enforcement cost from both domestic and international level (that would make it change its behavior in the world).
I am sorry that this is so long…There are some differences between the human rights treaties that Hathaway examines and the Rome Statute, but I thought it would be interesting to draw the parallel. I also may have interpreted “legal enforcement” more loosely to include general forces that lead states to comply with the treaty. Also, here is the link to the article if anyone is interested.