Civil law versus common law traditions:
Why Commit?
Explaining State Acceptance of International
Human Rights Obligations
By
Beth Simmons
Department of Political Science
University of California
Berkeley CA 94708
bsimmons@socrates.berkeley.edu
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.
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.
Attitudes toward human rights reflect human rights treaties the social and cultural values that underlie a particular society.[8] The desire for “universal” human rights may be more aspirational than descriptively accurate. If this is true, then local social values ought potentially to play a significant role in explaining the variance in international human rights treaty commitments. There is little point in denying that different cultures approach the contents of the international human rights regime with varying degrees of enthusiasm. Scholars have carefully delineated the varying points of overlap and disagreement between Muslim societies, for example, and the rules contained in various human rights accords. While acknowledging the divergences within Islam, most have argued that Islamic societies have a fairly distinctive set of values that flow from the Shari’a and that inform these societies’ conception of – and limits on – individual rights.[9] Of course, this is not to suggest that Islam has a monolithic attitude, nor that its major strands view the entire panoply of international human rights as non-starters. An examination of Islamic law for example, reveals a strong acceptance of the principle of racial non-discrimination, but a firm resistance to western notions of women’s rights (Arzt 1990:218-221). We should hardly expect those agreements that are anathema to Muslim sensibilities and religious commitments to be embraced in countries that are largely Muslim.
Another cultural factor that is likely to influence human rights commitments flows less from the social system and more from the nature of the legal system itself. Legal systems are not equally prone to “absorb” international law into the domestic legal system, even if the underlying social values are similarly sympathetic to the rights in question. In many civil law 'monist' countries, international obligations, once ratified, automatically become part of the legal system of that country (Harland 2000:190). Common law countries are likely to include individual human rights in their constitutions, and often cite this as a reason for not making treaties such as the ICCPR a part of their domestic legal system (Harland 2000:194) (Bradley and Goldsmith 1999). Some scholars imply that treaty-making is felt to be an inappropriate way to develop a corpus of individual rights: in the common law tradition, “social change is thought to be introduced appropriately through the adaptation of precedent to new circumstances, not by means of legislation… Although there is no dispute that legislation is the source of law which has authority over all other sources, the fabric of the common law is its precedent.”(Glendon, Osakwe, and Gordon 1982:234). Merryman made a similar point in his now classic text: “The common law of England, an unsystematic accretion of statutes, judicial decisions, and customary practices, is thought of as the major source of law. It has deep historic dimensions and is not the product of a conscious revolutionary attempt to make or to restate the applicable law at a moment in history”(Merryman 1969:26).[10] For these reasons, governments presiding over civil law systems may be more likely than those governing common law systems to sign on to international human rights “legislation.”[11]
3. Transitory political conditions
So far we have surveyed fairly deep and stable reasons for states to differ in their “taste” for international human rights commitments. We should also consider conditions that might represent a political window of opportunity for such commitment making.
Andrew Moravscik has made one of the most interesting efforts to date to explain the origins of human rights commitments in terms of transitory political conditions. His thesis is that international human rights agreements represent an effort to “lock in” recent democratic gains in the domestic political system. Examining the genesis of the European human rights system, he notes that countries that had recently emerged from authoritarianism were most likely to support higher levels of commitment to the developing European regime (Moravcsik 2000). While Moravscik carefully limits his empirical claim to Europe, other scholars have noted a similar dynamic. Lori Damrosch, for example, writes that lock-in arguments were made by Soviet jurists for the primacy of international law during the Soviet period of glasnsost and perestroika (Damrosch 1991:2324). Eyal Benvenisti also points to the crucial role that treaties play in Israeli domestic politics, especially in the ability of a pro-treaty coalition to "lock-in" particular policies from which future governments will find it extremely difficult to deviate. Indeed he argues that "A treaty is the ultimate guarantee for the durability of the deal struck between different domestic groups at the time of its ratification" (Benvenisti 2000:109). These approaches emphasize that there may be a moment in time when external commitments serve important domestic political purposes. In the human rights context, that moment may coincide with a recent democratic transition.
The nature of the regime itself need not be at stake for conditions to shift in favor of international treaty commitment. The political composition of the government in power at the time should also exert an influence. One might expect for example a military government’s attitude toward human rights to differ from a civilian government’s. Military governments have been associated with the use of martial law, and are assumed to place a higher value on order than on the free play of individual rights. There may also be important differences among civilian governments: left-leaning governments for example, are likely to have a different set of priorities that include a far greater attention to individual rights.
In short, there are conditions on both the supply side and the demand side that could influence governments’ decisions to commit to international human rights treaties. In the following section, an effort is made to assemble evidence to assess these arguments.
Data and Methods
The focus here is on the International Covenant for Civil and Political Rights, with additional evidence from the five other core human rights treaties that have been negotiated under the auspices of the United Nations and are open to all states. The dependent variable is the degree of a country’s commitment to these treaties. One of the innovations of this study is that the dependent variable captures the depth and strength of the commitment. Ratification alone does not fully capture such a commitment. What is needed is an approach that captures the extent to which the government in question has exposed itself to more fully articulated levels of accountability. Signature is a minimal form of commitment, often meaning little more than the desire to participate in further elaborations of the regime. Ratification potentially raises the commitment level for a treaty that has entered into force; similarly it more fully engages domestic political processes staking to a great degree a government’s credibility on performance.
In the treaties under consideration, parties can also make a series of optional commitments that in effect raise their stakes in performance or the range of obligations themselves (with the exception of the ICESCR). Two optional protocols provide further evidence of a government’s commitment to the ICCPR. By endorsing the first Optional Protocol, governments agree to recognize the authority of the Human Rights Committee, an 18-member body of experts, to consider communications submitted by individuals (Ghandhi 1986). By endorsing the second, they make an additional pledge to eliminate use of the death penalty within their jurisdiction. By declaring themselves to be bound by Article 41, governments agree to allow the Human Rights Committee to hear complaints from state parties to the convention.
I use a maximum six-point scale to capture a country’s degree of commitment to the ICCPR (See Appendix I). Figure 1 illustrates how states’ commitments to the ICCPR have changed over time. There has been a drastic reduction in the number of non-participants over the two decades, as well as a drastic increase in the proportion of parties that accept at least one optional commitment under the treaty (category 3). The proportion of signatories that accept every possible commitment save one has nearly tripled between 1980 and 2000. And whereas Sweden alone accepted every possible commitment in 1990, nine states did so in 2000 (Austria, Belgium, Denmark, Finland, Italy, Netherlands, Norway, Sweden, and Ecuador).[12] In short, there has been a noticeable movement toward more demanding forms of ICCPR participation over time, with Europe and especially the Nordic countries leading the way. Furthermore, it is interesting to note that the category of signature without ratification (category 1) was practically an empty set of countries by the year 2000.[13]
Figure 2 illustrates the proportion of countries within each category of the commitment scale for the year 2000 by region. East Asia and the Pacific has the largest proportion of completely non-committed countries of the regions examined here. The Middle East and Northern Africa region has by far the largest proportion of countries that have done no more than made the basic commitments without optional bells and whistles. Europe by a substantial margin has the largest proportion of countries that are fully or nearly so committed to every optional feature of the ICCPR. The Asia and Pacific region has the most diverse set of policies (largely driven by the presence of New Zealand, Australia, and the Philippines in this region). The Middle East and Northern Africa had the least diverse commitment scores, clustering quite tightly around ratification without any optional obligations. Western Europe has by far the highest commitment level, followed by Eastern Europe. East Asia and the Pacific have the lowest (despite the inclusion of Australia and New Zealand).[14]
How can we sort out the influences on governments’ decision to make increasingly serious commitments to the ICCPR? In order to test hypotheses suggested by the discussion above, I use time-series cross-sectional data, with the country year as the unit of analysis. This allows an examination of factors that vary primarily across countries (unchanging cultural conditions) as well as those that change primarily over time (global normative change, for example). It also allows us to include factors that vary both over time and by country. Because the dependent variable is categorical and can be rank-ordered (from the least to the most committed), I use an ordered probit specification that models the probability that a country will move from one category to the next. Since the goal of my analysis is to be as general as possible, tests are performed on as many countries for which I was able to collect the necessary data.
The first set of explanations for ICCPR commitment discussed above flow from the “supply side.” One plausible hypothesis is that eager external actors manipulate governments’ incentives by applying tangible pressures to induce commitment. In order to test this idea, I have gathered data on two potential sources of outside material influence: overseas development assistance, and participation in a loan program sponsored by the International Monetary Fund. The former is standardized as a proportion of a country’s economy (gross domestic product) to take into account just how aid-dependent a particular country is at any given point in time.[15] The second indicator is a dummy variable, coded 1 if the country took out a loan from the IMF that year, and otherwise coded as a 0. If aid is being used to manipulate needy governments to take on human rights obligations, we should expect to see a positive association between these indicators and the commitment scale.
Supply side pressures need not be nearly as crass as the aid-for-human-rights-obligation mechanism implied in the above arrangement. Normative pressures can build as more and more states make more serious commitments, and perhaps especially as states within one’s own region begin to do so.[16] Now, it is impossible to observe such normative pressure directly. The best we can do is to infer it from the extent and the depth of such commitments by other states in the system. I take this normative pressure into account by including a measure of the average score on the commitment scale yearly for each country’s own region. And on the hypothesis that normative pressures are global rather than regional, I calculate a yearly global mean commitment score as well. These measures are meant to tap into the intensity of the moral or social pressure a government might experience to “up the ante” by exposing themselves to increasingly strenuous legal commitments.
Finally, I supplement these measures with a rough indicator of non-state external pressure. The most frequently cited source of such pressure is that emanating from increasingly strong, confident, and pervasive networks of human rights NGOs that keep an unofficial eye on government policies and practices. How to measure the extent of these networks is highly problematic, however, both conceptually and empirically. Ideally, we should like to examine both the transnational and domestic NGOs that, working in cooperation, persuade governments to alter their approach to human rights. But what indicators best capture the “strength” and “influence” of these networks? Sheer numbers of human rights NGOs? Membership? Budgets? Location of offices? As a practical matter, quantitative analysis of this kind is highly constrained by the kind of data that are generally available. Case studies have been far more successful than we are likely to be here at understanding the role of NGOs in influencing governments’ policies in this area. Yet it seems essential to acknowledge the importance of such actors on the supply side,[17] even if that means for now using indicators that capture only a superficial part of the story. I use data reflecting the number of groups world-wide associate with Amnesty International as a rough first cut. The short-coming of such a measure are obvious. Amnesty is the tip of the NGO iceberg, and this measure surely misses out to some degree on the complexity of the networks that are likely to influence human rights. Furthermore, these data do not provide a clear geographical match with the locus of human rights decision making: how do we know that these offices were poised to influence the specific governments whose policies we are tying to explain? We do not know, for example, exactly where Amnesty spent its money and its effort in any given year.
There is something to say in defense of this crude measure. Amnesty is one of the most respected and well-known human rights NGOs on earth.[18] Though there are assumptions involved here, its growth is likely to both reflect the main thrust of pressure from non-state transnational actors and to indicate a general pattern of world awareness that broadly parallels less observable trends. Moreover, since it is normative pressure we are after, Amnesty is one of the best-connected of the human rights NGOs with intergovernmental organizations[19] and governments[20] who tend to take their reports seriously in fashioning (on rare occasion) their own mild sanctions. If we conceive normative pressure as operating through a form of public exposure and embarrassment, then there is probably no single organization more indicative of this pressure than Amnesty. For these reasons, I have decided to include this measure of normative pressure, though it is important to be aware of its limitations in drawing conclusions.
Now we turn to our expectations regarding the demand side. The first hypothesis discussed under this rubric was that countries who already protect rights are more likely to commit at a high level. This of course reverses the causation we might ideally like to examine (viz.: law influences behavior) and recognizes the possibility of selection effects by which good governments select into rights-oriented regimes. In order to test this proposition, I used the three year lagged value of Freedom House’s measure of civil and political rights (combined). This captures the state of practice in areas quite similar to those expressed in the ICCPR in the years leading up to ratification and successively higher levels of commitment. Because the scale goes from 1 (extensive rights) to 14 (virtually no rights), a negative relationship indicates a “good” state is more likely to commit.
In order to test the proposition that governments who are most active and influential in rule creation should also be the most willing to jump on board, I distinguish “acceders” from original signatories who then went on to ratify. While accession has the same value in the commitment scale as does ratification by a signatory, participation provides the opportunity to fashion the rules to fit one’s own preferences. Those who commit through accession have not been given the “endogenous” opportunity to write rules to fit their preferences. I then weight the input of the negotiation participants by the log of GDP to capture the idea that those countries who had the most significant influence over rule formation (the biggest countries) are most likely to commit to the rules unreservedly. The hypothesis is that large (assumed to be powerful) participants are more likely than less power participants (and certainly than non-participants) to commit at high levels.
The cultural variables are captured by two sorts of indicators. Perhaps the single factor that provides the most insight into the relevant characteristics of a country’s social values is the primary religious orientation. As we have seen in the discussion above, religion informs social and legal values and is inseparable from a people’s attitude toward many of the rights enumerated in the ICCPR. I have collected data on the primary religion of each country and have coded them as predominantly Protestant, Catholic, Muslim, Hindu, Jewish, Buddhist, and other. Three of these are tested as dummy variables to control for the social values that would lead a country to demand (or to reject) the ICCPR.
I also include a measure of the legal heritage of each country. These systems are coded as British, French, Scandinavian, or Socialist, according to the legal cultural influences that have predominately influenced their modern development. Rather than rely on my own judgments here, I have used the most widely respected dataset I can find on legal heritage,[21] and use a series of dummy variables to capture the differences between the common law (British) systems and the civil law (French) systems discussed above. The hypothesis is that governments presiding over common law systems should be less likely than governments in other legal systems to commit to international human rights agreements at very high levels.
The data for testing the transitory political conditions that are likely to be linked to ICCPR commitment are the bread and butter of comparative politics. But exactly how they ought to be deployed in this case is a matter of careful judgment. The most interesting argument to be tested is Moravscik’s claim that self-binding is of most use to newly established democracies in order to lock in their recent gains. Just how Moravscik conceptualizes a “new democracy” is not altogether clear. In his paper he places his seventeen countries into three categories based on how long they have been “continuously under democratic rule.” (Moravcsik 2000:231). Established democracies are those that “have been continuously under democratic rule since before 1920 and remained so thereafter…”[22] “New democracies” are “those that were firmly established during the negotiations and remained so thereafter, but only since a point between 1920 and 1950…”[23] Semi-democracies and dictatorships includes regimes “that were not fully democratic by 1950.”[24] Moravscik is not clear about the criteria that a “fully democratic” country must meet, but he does note that evidence of their instability can be found in subsequent reversions to dictatorship. This raises the intriguing but methodological troubling question of whether we should look at subsequent changes in democracy to judge the quality at any given moment in time. Moravscik’s method at least partially infers instability from a future that might or might not have been apparent to negotiators at the time. On the other hand, it might not be too far fetched to suggest that politicians are very sensitive to the conditions that give rise to democratic instability (weak and ever-changing coalitions, polarized opposition forces). Future instability might be an indicator of negotiators’ rational anticipations. On the other, we risk mingling cause and effect: autocratic rulers often oppose the extension of political and civil rights precisely on the grounds that they could unleash political instability. If they are sometimes right, then there is a risk that Moravscik’s coding method confuses cause and effect. Even more difficult is how to separate unstable non-democracies (today’s equivalent of Greece and Turkey in 1950) from imperfectly democratizing regimes that desperately seek a way to lock in their (as of yet) imperfect gains.
How do we appropriately test the democratic lock-in argument with respect to countries’ commitment position on the ICCPR? I have made a good faith effort to capture Moravscik’s mechanisms by using three different indicators. First, I have coded countries into those who have been continuously democratic since World War I. To qualify, countries could at no point after 1917 score below an 8 on the Polity democracy scale.[25] Similarly, I used this criterion to code countries who have been continuously democratic since World War II (1945). Since many countries in my dataset did not exist in 1945, I also included in this category countries that at no time during their postwar independence scored below an 8 on the polity scale. That leaves a large category of “transition” countries, whose scores bounced over and below this cutoff at least once in the post war period. Whenever these countries enter the highly democratic range, we should expect them, according to Moravscik’s logic, to have a greater probability of increasing their commitment to the ICCPR.
While I believe this coding reflects reasonably well the logic of Moravscik’s argument, it is best to place one’s eggs in a broader “basket” of indicators. Moravscik’s argument rests on the underlying uncertainty that today’s democratic gains will endure. We can capture that uncertainty by calculating for each and every country a standard deviation on their post war set of polity democracy scores, and as above, interact this score with a dummy for democracy (e.g., with cutoff at 8 on the polity score). When volatile countries pop into the democratic range (the interaction term) we should expect commitments to the ICCPR to increase.[26]
We can also drop the idea of volatility and focus on the concept of democratic gain. Another way to implement what I take to be Moravscik’s argument is simply to calculate the first difference between the current level of democracy and that prevailing three or five years ago. Even if general volatility is low, any rational democrat would be expected to lock in recent improvements, even if they do not meet the criteria of “full democracy” in an objective sense. More is better than less, and there is no obvious reason why “lock-in” should not occur in the face of a drastic democratic improvement. The bigger these gains, the more domestic democrats ought to want to take them to the bank.
Finally, we should consider traditional arguments about coalitional preferences that may be claimed by “republican liberalism”, but are far-removed from the lock-in argument that features centrally in Moravscik’s research. Government are highly likely to make human rights decisions based on their political and ideological commitments and preferences. A military government should be less likely to want to lock in human rights agreements under any set of conditions. Similarly, a long and exceptionally stable set of left leaning governments in the Nordic countries (Sweden, Norway, Finland) are responsible for these countries’ high levels of commitments. I control for these “inherent” preferences by including data on the political orientation of the government in power and whether the chief executive is a military leader. Data on these political conditions have been collected and coded by the World Bank.
Findings
The results of these analyses are reported in table 1. The explanatory variables tested are listed on the left, and four different models are presented to display various results for the differing measures for the democratic lock-in arguments (models 1-3). Model 4 assesses only those states who are legally bound by the ICCPR, and asks, additionally, whether large powerful participants are more likely to take on the optional obligations of these treaties, compared to those countries who have bound themselves through accession alone (without actively participating in the negotiation process). Within each cell, I have reported the ordered probit coefficient and in parentheses the corresponding robust standard errors. Coefficients indicated by asterisks pass traditional standards of statistical significance. Because we are analyzing a large number of observations, standards errors tend to be tight, increasing our confidence in the statistical findings. On the other hand, these models capture only a small part of the variance across countries and time, as indicated by the fairly low pseudo R-squared scores.
The results are quite striking. On the supply side of the argument, there is suggestive evidence of external pressures for accepting and enhancing international rights obligations. All of the models tested here returned strong, statistically significant associations between foreign aid dependence and higher levels of obligation (with the sole exception of Model 2 for the use of IMF credits, which is nonetheless in the positive direction). Furthermore the evidence unmistakably associates a particular country’s level of commitment with the average level of commitment in the region and the rest of the world. Every model confirms this statistical result; the question remains of course how to interpret it. It is highly consistent with an argument that would point to external socialization, as several case study accounts of human rights behavior have emphasized. We still do not know the mechanism that might account for such socialization. Whether it represents the acceptance of the surrounding community’s assessment of the normative correctness of the goals of the ICCPR, or whether it reflects a desire to maintain a formal posture for reputational reasons, cannot be plumbed with these data. It does seem clear however, that one condition for taking on higher levels of obligation is that other governments have agreed to do so. Since human rights protection is not a self-enforcing contract based on reciprocity between states, it does seem plausible that normative forces are at work.
One supply side factor failed to offer much leverage in explaining ICCPR commitment levels. None of the tests run found that the intensity of NGO growth (as measured here by the world-wide spread of Amnesty-affiliated groups) was associated with higher commitment levels. The direction of association was consistently positive, which is what we would expect, but in no case are the results statistically significant. One possibility is that these networks have no effect on the decision to make a legal commitment (which does, however, leave open the possibility that they nonetheless have a positive influence on actual human rights behavior, which in practice is the focus of their negative publicity campaigns). Another possibility is that we simply do not have good enough data to test this proposition properly. At this point, all we can say is that the external pressure to make and enhance a country’s commitment to the ICCPR appears much more likely the product of peer and possibly financial pressure.
Several factors on the demand side almost certainly have an influence on a country’s willingness to commit in a meaningful way to the ICCPR. Unexpectedly however, pact practices with respect to human rights is not robustly or convincingly one of them. We hypothesized that countries whose practices were already most closely in line with the obligations contained within the ICCPR would be more likely to commit, and at higher levels. There is no support here for thinking so. In fact in models 1 and 2 the opposite relationship appears to hold. Using the Freedom House data on both civil and political rights combined, and lagging this measure three years (thus testing the proposition that practices three years prior are likely to influence commitment to the ICCPR), we find a statistically significant negative relationship.[27] (Note that higher scores on the Freedom House scale indicate worse rights practices.) This relationship dissolves for two versions of the model, including that for the truncated sample. These results do not raise our confidence however, in the claims of those who argue that treaties simply represent commitments to do what governments were planning to do anyway. If anything, there are grounds here to check into allegations that signing onto these treaties bears a symbolic or expressive value that is not clearly linked with well-established patterns of prior practice. This will be a crucial finding when we look into the causal role of law in securing compliance.
A factor that does apparently exerts an enormous influence over the degree of commitment a country is willing to make to the ICCPR is whether and how that country participated in the process of regime formation. Received wisdom is that the lawmaking process has an effect on bringing countries on board, and here we have convincing evidence that this is so. The evidence is contained in the final variable in model 4. Recall here that we are analyzing only those countries who have actually committed to the convention, both signatories who participated and acceders who later accepted the obligations without benefit of participation. I have weighted the participants in the negotiations according to their GDP, in order to test the hypothesis that influence over the negotiations (the product of participating and being “big”) affects one’s willingness to commit to optional obligations. The evidence is unambiguous: those who likely had the most influence over the law-drafting process are far more ready to take on optional obligations under the ICCPR. Those who approach a ready-made regime, and those who may have participated at the margins, are far more likely to commit at only the most minimal levels.
Most of the cultural variables performed as expected. Islam has a negative impact on the willingness to buy into the ICCPR legal rights framework, which is consistent with prevailing impressions as well as careful comparative legal research. Predominantly Christian countries, both Protestant and Catholic, were more likely to commit that either the Islam countries or the non-Christian non-Islam nations (which constitute the omitted category against which the coefficient on the included religion dummy variables are to be compared). This is not at all surprising, except for the dramatic reversal of the influence of Protestant and Catholic religions when examining only the countries who have ratified or acceded to the agreement. Unexpectedly, the coefficients reverse dramatically and contribute negatively to accepting higher levels of obligation (again, compared to the omitted non-Muslim, non-Christian category). Islam continues to have a strong negative effect on commitment.
As I have hypothesized, legal culture has a clear impact on the willingness to sign onto the ICCPR. Countries whose legal systems have been largely influenced by the British common law model are significantly less likely than other countries to commit to the ICCPR. On the other hand, countries influenced by the French civil law tradition were significantly more likely to commit. The data in models 1-3 certainly support the broad generalization that legal culture, and specifically the distinction between civil and common law traditions have an important impact on a country’s attitude toward ratifying human rights accords. If we exclude those countries that do not commit at all to the ICCPR, the common law coefficient reverses but remains smaller than the much larger positive coefficient for civil law countries.
Consider next the transitory domestic political conditions that influence the demand for international human rights obligations. Evidence of the political preferences of the government in power is ample. Governments characterized by the World Bank as “left” are far more likely to accept the obligations of the ICCPR at higher levels than other governments. In every version of the model, this relationship was statistically confirmed in very strong terms. And governments headed by military chief executives were far less likely to commit, though this relationship dissolves in the truncated sample. There is little doubt that the political orientation of the leadership at the time powerfully influences the decision of whether and how strongly to commit. Note that these are influences that flow from a government’s preferences; in contrast to the lock-in argument discussed below, we would expect these orientations to have a strong impact independent of any lock-in motives. These kinds of influences are for example likely at work in the ultra stable but left-leaning governments of Scandinavia, all of whom have accepted every possible commitment under the ICCPR.
Finally consider the evidence for democratic lock-in. It is weak at best. The most disconfirming findings appear in model 1. This theory led us to expect a u-shaped relationship between how entrenched the democracy and the degree of commitment. The final three cells of model 1 instead indicate that the old-fashioned view – that stable democracy is linearly associated with the desire for a binding international human rights regime – is likely correct. The evidence is statistically quite strong that those countries who have been stable democracies since World War I are the most highly committed supporters of the ICCPR regime. The coefficient for each of these groups is clearly and positively related to how long a country has been a stable democracy. But the positive coefficient for the old timers is more than twice the size for that of the more unstable democracies to whom Moravscik attributes lock-in motives. Were the logic of lock-in pervasive, we should have seen a reversal in the size, though not the direction, of the coefficients of the three democratic variables in model 1. (Note that all are positive because the omitted category here is non-democracies; it is clearly true that democracies of all kinds are more likely than dictatorships to commit to the ICCPR.) The coefficients in model 4 (for the truncated sample) close the gap between the long-term democracies and the democratic countries who have undergone transition, and surprisingly the category of countries democratic continuously since World War 2 (or their post-war independence) loses its significance, but this still does not support the lock-in thesis.
There is some evidence that lock-in may occur in model 2. Here I have interacted each country’s democratic volatility for the period as a whole with a dummy variable indicating whether or not the country is highly democratic (bounces above 7 on the Polity scale) in any given year. We therefore have here a measure of the effects of volatility (equivalent to Moravscik’s “uncertainty”) modified by the degree of democracy. As can be seen in the last three cells, there is some evidence that volatile democracies have a decidedly different approach to international human rights commitments than do volatile non-democracies. The ordered probit coefficient for the effects of volatility on commitment for non-democratic governments is negative (-.178) and highly statistically significant. However, the effect of volatility for countries I am considering “highly democratic” is actually positive (the net impact of .118 and .222, or a coefficient of .340). This is what we might expect if unstable governments seize the democratic moment to ratify or further obligate themselves to ICCPR. What this does not show, however, is that transition democracies are more likely than mature democracies to commit at higher levels. All of the evidence produced here points decidedly to the contrary.
The findings in model 3 provide no further support for the lock-in thesis. Here, the conditions for lock-in are operationalized as a recent democratic improvement. The more a country has recently improved the quality of its domestic democracy, the more motive there should be to lock in the gains. The measure here is simply improvement in the country’s democracy score over the past five years.[28] This is a nice way to get at the u-shape relationship that Moravscik hypothesizes, since both stable democracies and unchanging democracies will score low on this measure. The results are disappointing for the hypothesis. The positive direction is encouraging, but we can have little confidence that the impact of democratic improvement is not zero.
V. Beyond the ICCPR
This research has focused rather narrowly on commitment to the ICCPR, but readers may wonder whether these findings apply more broadly to other universal human rights agreements. Just to see whether or not our results for the ICCPR have anything to say about other universal human rights agreements, I have altered Model 1 above to account for commitment to the International Covenant on Economic, Social, and Cultural Rights (ICESCR); the International Convention on Elimination of Discrimination Against Women (CEDAW), the Convention on the Elimination of Racial Discrimination (CERD), the Convention on the Rights of the Child (CRC), and the Convention Against Torture (CAT). These treaties all have large numbers of parties and are all of similar structure. Each established a body of substantive obligations for those states becoming parties to the treaty, and their administrative provisions are quite similar. Do the findings for the ICCPR apply to other treaty agreements as well?
Factors on the supply side are remarkably consistent with our earlier findings. With the exception of the CAT, there was, as we found previously, a positive association between the provision of overseas development assistance and commitment. The use of IMF credits, on the other hand, produced highly inconsistent results. We find very weak support for the positive influence of the growth of transnational NGO networks, which were statistically significant in the case of CEDAW and CAT, but not for the remaining conventions. The most outstanding relationship continues to be the normative or possibly reputational influence of the choices of other countries within the region and (more ambiguously) the rest of the world. In every instance, the degree of commitment to these five other UN-sponsored human rights treaties is strongly predicted by the commitment of other governments in the region. The same is true albeit more weakly, with respect to global commitment norms, with one clear exception: a country’s commitment to the CERD is negatively correlated with acceptance in the rest of the world, once we have controlled for the influence of the region. We might wish to conclude that the acceptance of legal obligations in the case of racial discrimination is influenced by regional norms, despite the trends at the global level.
As we found previously, there is no strong evidence that legal commitments in any of these five additional areas is closely related to previous rights practices. I should not that our indicator (Freedom House ratings on civil and political rights) here is not as well tailored to these treaties as it was to the ICCPR. Still, consistent with our earlier finding, there is no clear indication that commitment is systematically biased by previous rights practices. The cultural conditions associated with acceptance of higher obligations closely parallel our earlier findings. The Islamic countries are much less likely to commit to any of these treaties, with the possible exceptions of racial discrimination and the rights of the child. The coefficient for the CEDAW is resoundingly and unmistakably negative. These patterns reflect the content of Islamic law: Islam provides no basis for racial discrimination, but has a radically differing conception of women’s right from those prevailing in the West (Arzt 1990:218).
A common law British legal heritage continued to be a drag on high levels of legal commitment to these treaties; in three cases, the results are also strongly statistically significant (ICESCR, CERD, and CAT). The results are less consistent for the civil law countries, although in three out of five cases the results are in the expected positive direction. In the case of the CERD, however, there was practically no difference between common and civil law legal systems. Both had a strong negative effect compared to the excluded categories (Scandinavian, German, and Socialist legal heritage).
Finally, we consider the transitory political conditions associated with human rights treaty commitment. Left governments consistently choose higher levels of commitment to these treaties than do center and right-wing governments. Along with the impact of regional and global norms, this is the strongest and most convincing relationship to be found in this research. In every instance, left wing governments made deeper commitments to these treaties than other governments were prepared to make. It is surprising, though, that we do not find a strong negative effect of military control of the chief executive. Only the ICESCR had the expected strongly negative influence from military leadership. Military governments were in fact strongly associated with higher commitment to racial and sex non-discrimination than were other governments. Military executives were even associated with a positive coefficient (though not statistically significant) in the case of banning torture.
How well does the democratic lock-in argument fare in this broader set of treaties? If the lock-in thesis is correct, we should expect the coefficients for countries in democratic transition to be larger than the coefficients for the long-term stable democracies. In two cases, they indeed are. The most convincing case is that of the CEDAW: countries who had been democratic since the two world wars were probably less likely than were countries in democratic transition to commit to international agreements regarding women’s rights. The more stable democracies were not systematically associated with higher commitment (in fact, the coefficient for both is negative though statistically insignificant), while the transitioning democracies were noticeably more apt to “lock-in” women’s rights through international accords. There may be also be partial support for the thesis in the case of the prohibition against torture. Here, the longest term stable democracies were certainly highly committed, but the size of the positive coefficient is just slightly smaller than the positive coefficient for the transition democracies. The difference is small, but is in favor of the lock-in idea. The difference is more convincing for the post WW2 stable democracies: they were much less willing than the transitioning democracies to commit to the torture convention, as indicated by a lack of any statistical relationship for that group.
The ICESCR and the CERD clearly support the traditional notion that a long-term democracies are more likely to commit to international human rights accords than any other regime type. Their positive coefficients were much larger than for the newer and less stable democracies. In the case of the CRC, the coefficient sizes also support the received wisdom, though we cannot be confident of this given the fairly large standards errors.
Conclusions:
[to be supplied]
Appendix 1: The Commitment Scale:
ICCPR (International Covenant on Civil and Political Rights. United Nations General Assembly
Resolution 2200A [XX1]. 16 December 1966.)
0 = no action taken
1 = signature
2 = ratification or accession
with additional points added for:
• signature on Optional Protocol I : “A State Party to the Covenant that becomes a party to the present Protocol recognizes the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant. No communication shall be received by the Committee if it concerns a State Party to the Covenant which is not a party to the present Protocol….”
• ratification of Optional Protocol I
• ratification of Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty (Adopted and proclaimed by General Assembly resolution 44/128 of 15 December 1989.)
• Article 41 declaration: “A State Party to the present Covenant may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the present Covenant. Communications under this article may be received and considered only if submitted by a State Party which has made a declaration recognizing in regard to itself the competence of the Committee. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration…”
ICESCR:
0 = no action taken
1 = signature
2 = ratification or accession
CEDAW:
0 = no action taken
1 = signature
2 = ratification or accession
with additional points added for:
• signed optional protocol: “A state party to the present protocol recognizes the competence of the Committee on the Elimination of Discrimination Against Women to receive and consider communications submitted in accordance with Article 2 [which follows].” (General Assembly Resolution A/Res/54/4, October 15, 1999.)
• ratified optional protocol
CERD:
0 = no action taken
1 = signature
2 = ratification or accession
with additional point added for:
• Declaration to be bound by Article 14: “A State Party may at any time declare that it recognizes the competence of the Committee to receive and consider communications from individuals or groups of individuals within its jurisdiction claiming to be victims of a violation by that State Party of any of the rights set forth in this Convention. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration.
CRC:
0 = no action taken
1 = signature
2 = ratification or accession
with additional points added for:
• Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict
• Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography
CAT:
0 = no action taken
1 = signature
2 = ratification or accession
with additional point added for:
• Article 22 declaration: “A State Party to this Convention may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention.”
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Table 2: Explaining Commitment to the ICESCR, DAW, CERD, CRC, AND CAT:
Results of Ordered Probit Analysis
| |Explanatory Variables: |Model 1 |Model 1 |Model 1 |Model 1 |Model 1 |
| | |ICESCR |DAW |CERD |CRC |CAT |
|Supply side |Overseas Development |45.9* |10.2 |99.5*** |46.0*** |-.426 |
|factors: |Assist./GDP |(27.3) |(8.12) |(37.3) |(11.4) |(4.48) |
| |Use of IMF Credits |.429*** |.047 |-.003 |.355 |-.486*** |
| | |(.121) |(.142) |(.105) |(.232) |(.144) |
| |Average commitment in |1.24*** |1.72*** |1.36*** |1.58*** |1.23*** |
| |region |(.118) |(.126) |(.118) |(.225) |(.077) |
| |Average commitment |.397** |.564*** |-.554** |1.31*** |.897*** |
| |globally |(.165) |(.153) |(.202) |(.244) |(.103) |
| |Amnesty International |.045 |.089* |.060 |.102 |.120** |
| |growth |(.051) |(.050) |(.044) |(.090) |(.055) |
|Demand side |Previous rights |.001 |.008 |.008 |-.009 |.009 |
|factors: |practices |(.008) |(.008) |(.044) |(.015) |(.009) |
| |Islam |-.504*** |-.892*** |-.079 |-.206 |-.267** |
| | |(.098) |(.107) |(.081) |(.157) |(.108) |
| |Protestant |1.02*** |.242 |-.188 |.197 |.392** |
| | |(.175) |(.186) |(.158) |(.284) |(.196) |
| |Catholic |.345*** |-.120 |.534*** |.174 |.198* |
| | |(.101) |(.102) |(.082) |(.161) |(.119) |
| |British legal heritage |-.698*** |-.103 |-.899*** |-.332 |-.462*** |
| | |(.148) |(.156) |(.138) |(.256) |(.162) |
| |French legal heritage |.256* |.140 |-.886*** |-.067 |.168 |
| | |(.134) |(.151) |(.142) |(.246) |(.142) |
| |Left government |.396*** |.539*** |.236*** |.231* |.279*** |
| | |(.080) |(.079) |(.071) |(.133) |(.089) |
| |Military executive |-.208** |.166* |.147** |.206 |.123 |
| | |(.083) |(.086) |(.073) |(.136) |(.094) |
| |Dem. since WW1 |7.21*** |-.029 |9.04*** |.209 |.563*** |
| | |(.118) |(.179) |(.114) |(.203) |(.157) |
| |Dem. since WW2 |.845*** |-.074 |.706*** |.159 |.076 |
| | |(.134) |(.127) |(.095) |(.243) |(.138) |
| |Dem. Trans. |.060 |.207** |.201** |.126 |.647*** |
| | |(.119) |(.101) |(.093) |(.167) |(.095) |
| |No of obs. |1721 |1721 |1721 |1721 |1721 |
| |Prob > chi2 |0.00 |0.00 |0.00 |0.00 |0.00 |
| |Log likelihood |-1031.13 |-1052.20 |-1333.88 |-330.25 |-990.34 |
| |Pseudo R2 |.251 |.389 |.164 |.759 |.327 |
*= significant at .10 ** = significant at .05 *** = significant at .01
Table 1: Explaining Commitment to the ICCPR:
Results of Ordered Probit Analysis
| |Explanatory Variables: |Model 1 |Model 2 |Model 3 |Model 4 |
| | | | | |(excluding |
| | | | | |non-signatories) |
|Supply side |Overseas Development |8.67*** |5.54** |13.1*** |7.15* |
|factors: |Assist./GDP |(2.56) |(2.45) |(2.10) |(4.06) |
| |Use of IMF Credits |.408*** |.082 |.228** |.924*** |
| | |(.128) |(.151) |(.109) |(.259) |
| |Average commitment in |.477*** |.351*** |.564*** |.289*** |
| |region |(.062) |(.068) |(.057) |(.072) |
| |Average commitment |.317*** |.414*** |.185*** |.339*** |
| |globally |(.071) |(.079) |(.069) |(.095) |
| |Amnesty International |.017 |.029 |.038 |.041 |
| |growth |(.041) |(.043) |(.040) |(.051) |
|Demand side |Previous rights |.015** |.014** |.000 |.000 |
|factors: |practices |(.007) |(.007) |(.006) |(.008) |
| |Islam |-.157* |-.349*** |-.402*** |-.847*** |
| | |(.105) |(.098) |(.077) |(.114) |
| |Protestant |.822*** |.402*** |.247** |-.826*** |
| | |(.143) |(.131) |(.111) |(.197) |
| |Catholic |.299*** |.460*** |.107 |-.552*** |
| | |(.086) |(.087) |(.056) |(.101) |
| |British legal heritage |-.660*** |-.570*** |-.439*** |.497*** |
| | |(.133) |(.125) |(.106) |(.162) |
| |French legal heritage |.351*** |.265*** |.431*** |.639*** |
| | |(.103) |(.103) |(.097) |(.117) |
| |Left government |.526*** |.551*** |.466*** |.392*** |
| | |(..064) |(.067) |(.061) |(.082) |
| |Military executive |-.156** |-.236*** |-.277*** |.127 |
| | |(.069) |(.075) |(.065) |(.095) |
| |-- |Dem. since WW1 |1.2*** |High dem. |.222** |
| | | |(.114) | |(.104) |
| |No of obs. |1727 |1487 |1873 |968 |
| |Prob > chi2 |0.00 |0.00 |0.00 |0.00 |
| |Log likelihood |-2143.61 |-1988.95 |-2383.90 |-1108.5 |
| |Pseudo R2 |.176 |.145 |.135 |.203 |
*= significant at .10 ** = significant at .05 *** = significant at .01
-----------------------
[1] Some researchers believe that human rights agreements have no important constraining effect on state practices. Weisburd cites evidence that in 1997 the department of Stte determined that nearly 40% of the countries which had signed the ICCPR engaged in torture Weisburd, A. M. 1999. Implications of international relations theory for the international law of human rights. Columbia Journal of Transnational Law 38 (1):45-112., while 46% of the parties to the Convention Against Torture are alleged by the State Department to engage in this forbidden activity Ibid. When cases are taken to the Human Rights Committee (the review body for the ICCPR) only about 30% of the replies of states found to be in violation of their obligations are considered by the Human Rights Committee to be “satisfactory.” Ibid.. “At least half of the state parties to the six core human rights conventions are in default in their reporting obligations.” Ibid. Where improvements do take place, international law had, at best a secondary role. Ibid.
[2] For parallel arguments for international regimes see (Keohane 1984).
[3] For a discussion of instrumental and normative lenses for understanding international law and institutions, see Keohane, R. O. 1997. International Relations and International Law: Two Optics. Harvard International Law Journal 38 (2):487-502.. Keohane makes the point that these two “optics” are not mutually exclusive, and that it would be progress to attempt to integrate them.
[4] The US is hardly alone in this regard. Several common law systems as well as socialist legal systems have not made the International Covenant on Civil and Political Rights (for example) a part of their domestic legal system Harland, Christopher. 2000. The status of the International Covenant on Civil and Political Rights (ICCPR) in the domestic law of state parties: An initial global survey through UN Human Rights Committee documents. Human Rights Quarterly 22 (1):187-260.. For a comparison of the US and the USSR in this respect, see also Damrosch, L. F. 1991. International Human Rights Law in Soviet and American Courts. Yale Law Journal 100 (8):2315-2334.
[5] Forsythe provides the example of US policy with respect to Guatemala in the 1970s. He quotes a US government official as saying, "We used Amnesty and International Commission of Jurists information when we pushed for, and got, a U.S. abstaining vote on IFI loans to Guatemala in 1979." Forsythe, David P. 1989. Human Rights and World Politics. Lincoln: University of Nebraska Press..
[6] Though not specifically relating to the pressure to get a legal commitment, Weisburd looked at five cases of human rights abuse followed by improvements and concluded that international pressure is more likely to be from within the region, rather than from the general international community. Weisburd, A. M. 1999. Implications of international relations theory for the international law of human rights. Columbia Journal of Transnational Law 38 (1):45-112. [Look into the conditioning of membership in regional organizations on acceptance of HR commitments.]
[7] Some are skeptical that democracies are always the most respectful of human rights and hence that they will find commitment “easy”; the vote does not for example guarantee due process or mistreatment of detainees Medina, Cecilia. Toward Effectiveness in the Protection of Human Rights in the Americas. Transnational Law and Contemporary Problems.. Jose Alvarez has argued that there is precious little evidence to suggest that there is anything special about liberal democracies approach to their international legal commitments. He cites a range of counter examples that tend to suggest that liberal democracies are no more likely that non-democracies to give international law direct effect in their domestic legal systems, to commit themselves to supranational processes of adjudication with other liberal states, to engage in transjudicial dialog with other liberal democracies, or to comply with their international legal obligations any better than nondemocracies. Alvarez, Jose E. 2001. Do Liberal States Behave Better? A Critique of Slaughter's Liberal Theory. European Journal of International Law 12 (2):183-246.
[8] Yet the role for culture in defining human rights remains a central controversy. Western legal scholars tend to champion universalist notions; see for example recent contributions by Burns Weston and Richard Falk (Falk ; Weston ).(Booth and Trood ), while non-western scholars often view such notions as politically, culturally, or ideologically chauvinistic (Mutua 2000).
[9] “Muslims, despite the cultural diversity, really share standards of this civilization and have in common a world view related to it. Scholars who exclusively stress the diversity of Islam often ignore that Muslims, be they in the Middle East, South Asia, or sub-Saraha Africa, share a virtually consistent common world view. Without taking this world view into consideration, one may fail to understand properly the obstacles of establishing the universal concept of human rights in the non-western societies described as Islamic”Tibi, B. 1994. Islamic Law Sharia, Human Rights, Universal Morality and International Relations. Human Rights Quarterly 16 (2):277-299..
[10] see also (Zweigert and Kötz 1987:70)
[11] It is of course necessary to acknowledge differences among civil law countries, but the tradition is shared among civil law countries to varying degrees Merryman, John Henry. 1969. The Civil Law Tradition: an Introduction to the Legal Systems of Western Europe and Latin America. Stanford: Stanford University Press. Many “mixed” systems (e.g., the Philippines, South Africa) and sui generis traditions (Nordic legal systems) exist. Glendon, Mary Ann, Christopher Osakwe, and Michael W. Gordon. 1982. Comparative legal traditions in a nutshell, Nutshell series. St. Paul, Minn.: West Pub. Co. Bogdan notes that while civil and common law distinctions make sense, one should be careful about lumping all legal systems “of a more exotic character” together Bogdan, Michael. 1994. Comparative law. 1st ed ed. Deventer, Netherlands: Kluwer Law and Taxation Publishers. Several scholars note that there has been some convergence between these two systems.
[12] [check Ecuador – this seems odd]
[13] According to my data, only Antigua and Barbuda, Aruba, and the Czech Republic had signed but not ratified the ICCPR by 2000 [check this]. This category is therefore omitted from figure 2.
[14] As measured by standard deviations on the commitment score within each region for 2000. Standard deviations and averages for each region for the year 2000 were as follows:
|Summary stats, |E & S Africa|West Africa |E Asia & |Central Asia |Eastern Europe|Western Europe|Middle East |Americas |
|2000 | | |Pacific | | | | | |
|Average |2.12 |2.57 |1.16 |1.75 |3.25 |4.78 |1.61 |2.76 |
|Stnd dev. |1.34 |1.44 |1.71 |1.56 |1.30 |1.38 |1.06 |1.62 |
[15] [need to clarify ODA – bilateral? Multilateral? What?]
[16] This is a strong and striking finding of earlier research in the international monetary area Simmons, Beth A. 2000. The legalization of international monetary affairs. International Organization 54 (3):573-602., although the reasons for the expected pattern in human rights is more likely to be normative and less likely to be instrumental.
[17] On the expansion of human rights NGOs Wiesberg, Laurie S, and Harry M Scoble. 1981. Recent Trends in the Expanding Universe of NGOs dedicated to the Protection of Human Rights. In Global Human Rights: Public Policies, Comparative Measures, and NGO Strategies, edited by V. P. Nanda, J. R. Scarritt and G. W. Shepard. Boulder: Westview Press..
[18] Of course Amnesty does not hesitate to burnish its reputation for unbiased human rights reporting by prominently displaying its presumably non-political accolades on its website: (accessed June 20, 2001; containing a brief history of AI.)
[19] As of 2000, Amnesty International had consultative status with the Economic and Social Council, UNESCO, the ILO, and the Council of Europe Organizations, Union of International. 2001. Yearbook of International Organization: 2000/2001. Vol. 1A., to my knowledge more than any other transnational human rights NGO [check this].
[20] According to secondary sources, governments read Amnesty reports and are sometimes influenced by their findings Jacobson, Harold K. 1979. Networks of Interdependence: International Organizations and the Global Political System. New York: Alfred A. Knopf. see also Peters, Edward. 1985. Torture. Philadelphia: University of Pennsylvania Press.. On the role of NGOs in providing amicus curiae briefs see Shelton, Dinah. 1994. The Participation of Non-governmental Organizations in International Judicial Proceedings. American Journal of International Law 88 (4):611-642.
[21] Source: Global Development Network Growth Database, William Easterly and Hairong Yu, World Bank.
[22] Belgium, Denmark, Luxembourg, Netherlands, Norway, Sweden, and the UK (Netherlands is erroneously listed twice; p. 231)
[23] Austria, France, Italy, Iceland, Ireland, and West Germany Moravcsik, A. 2000. The origins of human rights regimes: Democratic delegation in postwar Europe. International Organization 54 (2):217-252,U4,U5..
[24] Greece, Turkey, Spain and Portugal Ibid.
[25] The Polity dtaset is a broadly used source in political science that measures the nature of the domestic political regime. One of the most frequently used indicators is the score on democracy, that ranges from a low of 0 (completely non-democratic) to a high of 10 (most democratic).
[26] Note that this measure picks up the forward- and backward-looking evidence on instability that characterizes Moravscik’s coding decision.
[27] WARNING: this result does not appear to be robust. In subsequent analyses, past behavior whether the past year or three years, seems to have no significant impact on current willingness[_¾¿ÀÁòóô .ÕÖãøñëñëáëÔáÎá랸³¬³¨ëñë¡ëáë”áëáëáë‡áëáëáëzáëáëáë to commit.
[28] Results were substantially the same when a three year improvement window was used.
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