Excursion: A Brief Glance at the Political Reality of Human Rights Treatises

ER 11, Gov E-1040 Spring 2012

Compare:

“It is difficult to restrain myself from doing something to stop this attempt to exterminate a race, but I realize I am here as an Ambassador and must abide by the principles of non-interference with the internal affairs of another country.”

Henry Morgenthau, US ambassador to Turkey, to the US secretary of state, August 11, 1915

Two struggles for human rights movement

• First, create new language to articulate concerns of individuals in light of state power

• Second, for this language to make a difference

Looks good on the first front…

• human rights language has replaced other languages of social change: modernization theory; dependency theory; Marxism

• human rights revolution: activists no longer confined to vigils – sit at able

Some of the Bigger Ones

• Amnesty International• Human Rights Watch• International Commission of Jurists • International Federation of Human Rights • International Committee of the Red Cross• Human Rights First • Lawyers Without Borders• Doctors Without Borders • Physicians for Human Rights

A Complicated World

• NGO’s• INGO’s – International NGO• IGO’s – Intergovernmental Organizations• QUANGOs – quasi-NGO’s • DONGOs – donor-organized NGO’s• AGO’s – anti governmental • GRINGO’s – government-regulated • BINGO – business and industry NGO’s• DODONGO’s – donor-dominated

Alas… not so good on the second…

CIRI Human Rights Data Project

(Cingranelli/Richards)

Diffusion of human rights norms• networks among domestic/

transnational actors

• put norm-violating states on international agenda; remind liberal states of their identity as preservers of human rights (“naming/ shaming”)

• empower and legitimate claims of domestic opposition against norm-violating governments

And: Spiral effect…

How treaties influence domestic politics

• Change the national policy agenda

• Enhance possibility of litigation

• Mobilize groups (influence values; increase chance of success)

Change the national policy agenda

• Japan: women’s equal employment

• Signed CEDAW, 1980 -- reforms were driven by desire to make a deadline

• Litigation and amendment in the 1990s improvements

0

2

4

6

8

10

12

14

16

number of Supreme Court

cases

1986 1988 1990 1992 1994 1996 1998 2000 2002 2004

Year

Torture litigation in Israel

Cases Filed Cases Decided

1991:Israel ratifies

CAT

1999:Landmark

torture ruling

Helsinki Principles: I. Sovereign equality, respect for rights inherent in sovereignty II. Refraining from the threat or use of force III. Inviolability of frontiersIV. Territorial integrity of States V. Peaceful settlement of disputes VI. Non-intervention in internal affairs VII. Respect for human rights and fundamental freedoms, e.g.

freedom of thought, conscience, religion or belief VIII. Equal rights and self-determination of peoples IX. Co-operation among States X. Fulfillment in good faith of obligations under international law

1975 Helsinki Final Act of the Conference on Security and Cooperation in Europe

• John Lewis Gaddis, in "The Cold War: A New History" (2005): “Leonid Brezhnev had looked forward (….) to the publicity he would gain... when the Soviet public learned of the final settlement of the postwar boundaries for which they had sacrificed so much... [Instead, the Helsinki Accords] gradually became a manifesto of the dissident and liberal movement... [T]he people who lived under these systems — at least the more courageous — could claim official permission to say what they thought."

Human rights norms contributing to transformation of domestic practice

• Dissidents responded by creating social movements to challenge repressive state practices

• Polish and Czechoslovak government responded by denying they were violators

• tacitly granted more pol. space to groups identified with Helsinki norms

Berlin Wall

November 9, 1989

Statistical Skepticism

• Large-scale analyses of causes of oppressions not done before 90s

• Many governments sign on to norms, few implement them -- especially those governments most likely to abuse citizens

• Suggest human rights laws/ organizations have only limited effects -- efforts at “naming and shaming” do not appear to work much better

Convention Against Torture Ratifications and the Torture Scale

0

0.5

1

1.5

2

2.5

3

Year

Tortu

re S

cale

0

0.1

0.2

0.3

0.4

0.5

0.6

0.7

% C

ount

ries

Ratif

ied

CAT

torture % Ratified CAT

Hafner-Burton/Tsutsui:

• “No matter how we measure repression or personal integrity rights, repressive states that allow murder, torture, kidnapping, and other cruel, inhuman, or degrading treatment or punishment of people just as commonly belong to the CCPR and the CAT outlawing these behaviors as governments that protect human rights reasonably well” (p 410f).

• Ratifying treaty can relieve pressure for change imposed by international actors, who may rely more heavily on positions than effects

• reduction in pressure may lead country that ratifies to improve its practice less than it otherwise might

Endogeneity of treaty negotiations

• Governments prone to make agreements that comport with activities they are willing to engage in anyway

• makes it hard to assess precisely what “influenced” government

Why divergence between quantitative and qualitative

approaches? • Different approaches make people notice different facets of

reality

• both needed: quantitative studies need to be supplemented by country narratives to be sure they are on the right track and have explanatory power

• qualitative studies need to be supplemented by quantitative studies to get a better sense of what factors “really” were causally efficacious

Good News from Beth Simmons, Mobilizing for Human Rights (2009)

• Human rights treaty commitments make difference in countries that are undergoing democratic reforms anyway

• If so, then especially many Latin-American countries and Eastern-European countries will really have been helped substantially in this way

Good News from Beth Simmons, Mobilizing for Human Rights

(2009) • Concluding the book: “Change has been gradual but encouragingly cumulative. As MLK jr. said: ‘The arc of history is long, but it bends towards justice.’ International human rights treaties have helped to nudge the human race in the right direction.” (p 380)

• Picture that emerges here is that respect for human rights is driven largely by large-scale social and political processes (democracy, peace) – these are historical macro-phenomena not easily affected by policy-makers

But:

• This leaves warning from Hafner-Burton and Tsutsui – that human rights treaties work only where there is some domestic resonance already

• But that also means they do not work to change the behavior of the worst offenders

Case Study in the Mechanics of Human Rights Regimes: Democratic Delegation in Postwar Europe

• European Human Rights Regime

Why would any government, democratic or dictatorial,

favor establishing an independent international authority, the sole purpose

of which is to constrain domestic sovereignty?

Council of Europe: Founding Members/Later Members

Confusing: same flag for EU

Human Rights• European Convention on Human

Rights (1950)

• Regionally binding treaty

• Additional protocols signed by everybody eliminating the death penalty

• European Court of Human Rights: allows for individual complaints – can now appeal directly to court

Regional Human Rights Treaties

• European

• Inter-American

• African

• South-East Asian

European Court of Human rights • Members have incorporated

Convention into their own national legal orders

• impact of case law is enormous

• National judges, elected officials, and administrators under pressure to make Convention rights effective within national system

Major provider of international public law

• Convention on Cybercrime • Convention on the Prevention of Terrorism• Conventions against Corruption and Organized Crime• Convention on Action against Trafficking in Human

Beings • Convention on Human Rights and Biomedicine

• for the sake of restricting future governmental discretion and for the sake of reducing domestic political uncertainty

• For which governments would this be of interest? -- primarily for governments that worry about future of respect for human rights/democracy

• supported by the finding that new democracies all supported binding human rights commitments: Austria, France, Italy, Iceland, Ireland, Germany (plus Belgium)

• Opposing enforcement: Greece, Turkey, Portugal, Spain, Denmark, Sweden, Netherlands, Norway, UK, Luxembourg

Why?

• countries where democracy was not firmly established found it advantageous to “lock themselves in”

• established democracies were worried about preserving political idiosyncracies

Same phenomenon re. ICCPR

• in early 50s, most stable modern democracies (e.g., US and UK) allied with authoritarian states like the Soviet Union, China, South Africa, and Iran, in opposition to the inclusion of compulsory, enforceable commitments

• Alliance in favor included recently established democracies in continental Europe, Latin America, and Asia.