International Justice

CJ354 Endicott College

“Why Do Countries Commit to Human Rights Treaties?”

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.

 http://www.jstor.org/stable/27638567

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3 responses to ““Why Do Countries Commit to Human Rights Treaties?”

  1. Alex Davis October 29, 2012 at 11:01 pm

    Hathaway’s argument is intriguing, but it is deeply rooted in a realist conception of the international structure. Much of what she argues is true, but I don’t think states only sign human rights treatises out of self interest, although there are certainly instances when they do.

    Constructivists would argue that ideas transcend, and that acknowledgment of basic human rights is flooding the international arena. States are transformed by domestic cultures, and domestic cultures, assisted by the speed and low cost of communication and transportation (of ideas and people) are constantly being challenged to better themselves. This could account for why a nation such as the UK, a nation who had more to lose than to gain in purely utilitarian analysis of signing the rome statute, would sign. There seems to be a teleological progression of human rights that is shaped by communication of new ideas, and new norms.

    Similarly, neoliberal institutionalism could also account for why states would sign human rights statutes seemingly against balance of power, and realist international thought. Cascading norms enforced and validated by international institutions (such as the United Nations, the ICC, NATO) spread. In this system free trade, and respect for human rights, as well as the incentives of joining this institutions can be thought of as a powerful motivator for signing human rights treaties.

    In the end, realist conceptions of the international structure can be used as an explanation for not joining institutions which support basic liberty, and justice, but I believe that often the costs to self interest are exaggerated, and eventually nations, hopefully, we see the use of a transnational community that is safer, and more respectful of human rights, both in terms of economics, balance of power, and, more importantly, a just human ethic.

  2. mahletyared October 29, 2012 at 11:07 pm

    I’m really glad that this takes a slightly different look at the US’s decision to not ratify the Rome Statute because in class we only discussed the argument that the US Administration is “picking and choosing” parts of the ICC to involve themselves in without looking at the complexities of the US’s specific role. The US does have a very unique role, in that it does have the influence on the U.N. Security Council and their referrals, so there is really no way that the US can be completely removed from the workings of the ICC. However, Hathaway does make the valid point that if a stable democracy does to ratify the Rome Statute, they are subject to domestic turmoil in the human rights sector.
    The United States would be undeniably accused of human rights violations, some worthy of investigation and some fabricated, especially stemming from the spite of countries where the US had to have military interference. Signing the treaty seems to have several disadvantages for a state with such strong domestic jurisdiction already and even though the US has not ratified the Rome Statute, I feel that if the US were to commit a serious human rights violation, it would not go without investigation. Furthermore, several countries with administrations guilty of committing human rights violations to demonstrate their cooperation with the global human rights world and perhaps rectify their reputation through this gesture — neither of which the United States needs to display to the world.

  3. gkitamura October 30, 2012 at 12:02 pm

    I think it is quite interesting to look at the incentives that smaller, less-stable, and newer countries might have for signing onto the Rome Statute. Countries that have just reset their political orders don’t have much in the way of historical precedent to prove that they are worthy of being taken seriously. In this sense, Hathaway is showing just how beneficial it can be for those countries fall in the “middle” and how those with more developed political systems/ those with vast human rights abuses would be less drawn towards ratifying the treaty. The less developed countries have much to gain while the domestic political backlash that a country like the United States would experience would at the very least make it an unpopular move for sometime. Personally, I have found it difficult to take myself out of the mindset of thinking about these topics as an American rather than as someone looking at the entire political order. While I think that Alex brings up a good point about the realist stance, I think that his point on the permeability of ideas on an international scale may be overestimating how greatly these ideas can affect policy; these things take a very long time and have a greater affect in times of crisis. Yes, the hope is there that truly universal international justice will become a reality, but I don’t think the US will be ready to except that for sometime. Realists see things as they are, not as they will them to be and in the case of international justice the benefits for the US seem to be outweighed by the domestic political reality. I think the best we can hope for, on the part of the US, is the continuation of the current administrations attitude of a cautious lack of opposition to the Rome Statute and what it represents. I think it would be interesting to see a realist argument in favor of the US joining the Rome Statute without the statute losing its autonomous identity. Do you think an argument can be made that it is in immediate and long term interest that the United States ratify the treaty that doesn’t appeal to morality, social norms, or liberal ideals?

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