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Before reading the text think the title of it over and share your point of view concerning the problem mentioned.




 

We find that a beneficial effect of ratification of human rights treaties is typically conditional on the extent of democracy and the strength of civil society groups as measured by participation in nongovernmental organizations (NGOs) with international linkages. In the absence of democracy and a strong civil society, treaty ratification has no effect and is possibly even associated with more human rights violations.

A (neo)realist international relations perspective regards countries as unitary actors with given preferences maximizing their own utility without regard to the welfare of other actors. Things happen if powerful countries want them to happen (Krasner 1993). In principle, this perspective should bode well for human rights. The United States, as arguably the most powerful country in the world, has a relatively good domestic human rights record despite emerging problems in the wake of 9/11, together with some commitment to pursue human rights improvements in its foreign policy. For example, its Foreign Assistance Act promises that no financial assistance will be given to states engaging "in a consistent pattern of gross violations of internationally recognized human rights" (U.S. Code Title 21, § 2151n). The same is true to a larger or smaller extent for practically all developed countries and for the European Community (European Commission 2001). However, powerful countries are rarely consistent in their application of human rights standards to their foreign policy, and they are rarely willing to grant human rights questions priority (Krasner 1993; Donnelly 1998; Goldsmith and Posner 2005). Powerful countries rarely employ sanctions - political, economic, military, or otherwise - to coerce other countries into improving their human rights record. Indeed, for the most part, countries take relatively little interest in the extent of human rights violations in other countries, unless one of their own citizens is affected. This is because contrary to, say, the extent of trade openness, a country and its citizens are hardly affected if the human rights of citizens from other countries are violated in other countries. Human rights violating countries often avoid subjecting foreign citizens, particularly from powerful Western countries, to the same extent of human rights violation as their own domestic citizens, exactly in order to keep the foreign country disinterested. A further consequence is that the international human rights regimes are comparatively weak compared to, say, the regimes of finance or trade. No competitive market forces drive countries toward compliance, nor are there strong monitoring and enforcement mechanisms. Monitoring, compliance, and enforcement provisions are nonexistent, voluntary, or weak or deficient (Bayefsky 2001). Without powerful countries taking a strong interest in the effectiveness of international human rights regimes, there is little cost for parties with a poor human rights record to ratify the treaty as a symbolic gesture of good will, instead maintaining its poor record in actual reality (Goldsmith and Posner 2005). A (neo)realist perspective would therefore not expect that international human rights regimes make much difference in reality.

Hathaway (2002a, 2002-20) has provided an interesting new theory on the dual role of human rights treaties that would even suggest that treaty ratification can be associated with worse performance. She is no representative of (neo)realism, but her theory is most relevant if the fundamental assumptions of realism hold true, particularly the lack of interest by powerful countries in combination with the comparatively weak monitoring and enforcement mechanisms. Noting that treaty ratification plays an "expressive role" as well, communicating to the outside world that the country is committed to human rights, she argues that treaty ratification can deflect internal or external pressure for real change. In combination with the poor monitoring and enforcement mechanisms of international human rights treaties, countries with poor performance can not only get away with continued human rights violations but may at times even step up violations in the belief that the nominal gesture of treaty ratification will shield them somewhat from pressure. In this view, human rights treaty ratification can even lead to worse human rights records. Compared to (neo)realism, an institutionalist perspective stresses more the beneficial effects of international regimes, helping countries to reap the mutual, often long-term benefits of cooperation. Regimes in this perspective offer a way out of the prisoner's dilemma in order to achieve the Pareto optimum, which is unavailable if countries always seize their short-term selfish own interest. It is unclear, however, whether an institutionalist perspective would lead one to expect much more of international human rights regimes than a neorealist perspective. This is because, as mentioned already, it is somewhat questionable whether there are substantial mutual benefits from greater respect for human rights across countries (Krasner 1993). Given that a country's citizens often reside in many foreign countries, a country with high human rights standards might be concerned about the fate of its own citizens abroad and therefore benefit from an effective international human rights regime. The same is true for people from the same ethnic or religious group residing in foreign countries (Goldsmith and Posner 2005). However, countries with low standards are not likely to share such benefits. Given they do not respect the human rights of their citizens living in their own country, why would they benefit from knowing that the human rights of their citizens are respected abroad? As Moravcsik (2000, 217) has put it, "Unlike international institutions governing trade, monetary, environmental or security policy, international human rights institutions are not designed primarily to regulate policy externalities arising from societal interactions across borders, but to hold governments accountable for purely internal activities." Furthermore, even if international human rights treaties could be interpreted as cooperation mechanisms to overcome the prisoner's dilemma to the mutual benefit of all parties, it is questionable whether deep cooperation is likely to be achieved. Economists have argued that enforcement mechanisms such as sanctions to deter noncompliance have to be self-enforcing in the sense that recourse to an external enforcement agency is not feasible and has to be renegotiation-proof. A sanction will only be credible if the threatening group of countries is better off actually executing the sanction than refraining from execution and renegotiating a new agreement with the free-riding country. Treaties that are not renegotiation-proof cannot deter free riding because potential free riders will anticipate that they could strike another deal after free riding and could therefore get away without being punished. Applying game theory to analyze the consequences of the requirements of self-enforceability and renegotiation-proofness on multilateral cooperation, economists have come to pessimistic conclusions: a self-enforcing and renegotiation-proof international treaty will either consist of only a small subset of countries or, if many countries are parties to the treaty, then the gains from cooperation relative to the noncooperative equilibrium are very small. In other words, cooperation is either narrow (instead of wide) or shallow (instead of deep).

International relations theorists Downs, Rocke, and Barsoom (1996) provide very similar arguments. An institutionalist perspective would therefore not generate optimistic expectations regarding the effects of international human rights regimes. From a regime theory perspective, which can be understood as a refinement of institutionalism, international treaties create binding obligations on the ratifying parties, which countries aspire to honor. Parties to international treaties generally aspire to comply in the spirit ofpacta sunt servanda (agreements are to be kept and honored), where "compliance is the normal organizational presumption" (Chayes and Chayes 1993). Otherwise, states would not engage in the often painstakingly long negotiations to hammer out all the details of such treaties. The regime's norms are particularly likely to change regime parties' behavior if they are widely regarded as the result of a fair and legitimate process and if they concur with widely shared substantive notions of justice since this bolsters peer pressure to comply with the norms - see Franck (1995), who suggests that international human rights treaties generally fare well on this account. However, treaty norms are often understood to represent long-term desirable goals. Not surprisingly, then, norms are set above a level that many participating countries can or want to comply with immediately or within the foreseeable future. Furthermore, Mitchell (1996) and Chayes and Chayes (1993) point out that full compliance is neither a necessary nor a sufficient condition for the effectiveness of an international regime. Instead, what matters is that overall compliance is at an acceptable level. These high standards often perform the function of setting targets to which parties are supposed to move toward over time, and compliance problems are not so much the consequence of deliberate noncompliance but are due to a lack of compliance capacity (Chayes and Chayes 1993, 1995). As Levy, Keohane, and Haas (1993) observe, high regime standards serve many functions, such as generating political concern in low-standard countries and setting normative goals for them, communicating the intensity of preferences among regime members, and legitimating technical aid or outright transfer payments to improve the capacity to comply with the norms that might otherwise be denounced as bribes or blackmail. In this "managerial model" of international regimes, the fact that sanctions against human rights offenders are rarely used is not a problem since it is not sanctions but assistance for tackling insufficient compliance capacity that matters. Noncompliance is not an enforcement but a management problem. Regime theory would lead to expectations concerning the effect of international human rights treaties that are optimistic, but only rather cautiously so. This is because such treaties do not fit as well into the theory as international treaties in other areas. As Chayes and Chayes themselves point out, international human rights treaties are "an extreme case of time lag between undertaking and performance." Furthermore, contrary to the general presumption that noncompliance is not intentional, it is admitted that with respect to international human rights treaties, countries sometimes become state parties without any intention of compliance, perhaps "to appease a domestic or international constituency". In such cases, pressure exerted by NGOs can be important, which provides a link to the theory of transnational human rights advocacy networks discussed below. Last, international human rights treaties do not offer much in terms of assistance for tackling insufficient compliance capacity. One possible reason could be that state parties might not consider noncompliance with human rights treaty norms as caused by insufficient compliance capacity. After all, one could argue that no capacity problems hinder any state from refraining to engage in human rights violations. However, such a view does not take into account that human rights violations are often undertaken by lower tier governmental officials (police, military, and other security forces) whose behavior is not necessarily fully under the control of the central government. Educating and training these officials in human rights issues and changing their incentive structures as well as investigating and prosecuting continued rights violations might well be constrained by limited capacity. Contrary to the theories looked at so far, which almost exclusively only deal with states as unitary actors and state-to-state behavior in the international arena, the next three theories place much emphasis on the interaction between states and domestic groups. The transnational legal process model addresses the process through which state actors internalize norms codified in international treaties (Koh 1996, 1998). Such internalization is regarded as the final phase of a three-step process of interaction, interpretation, and internalization. Some transnational actors such as diplomats, NGOs, and individual "transnational norm entrepreneurs" who form a kind of "epistemic human rights community" initiate an interaction (or series of interactions), which might lead to the negotiation of an international human rights treaty. The final treaty text to be concluded represents the common interpretation of norms, agreed on by state parties after a series of interactions at various drafting stages. Regular follow-on meetings provide opportunities for further interactions and interpretations, which gradually leads noncomplying state parties to be persuaded of the validity of the norms and therefore to accept and internalize them. The broader the group of actors involved at the various stages of interactions, the more likely internalization is to follow. This calls for the inclusion of intergovernmental organizations, NGOs, private individuals, and perhaps even business groups. Of course, as Koh (1998) admits, the process does not always work well and sometimes fails spectacularly in certain countries, but norm violation by a few does not prevent norm obedience by most states. A change in preferences is of course in conflict with (neo)realist theories built around the assumption of a given set of preferences, but constructivist approaches allow for preference change, noting that "the international system can change what states want" and can change "state action, not by constraining states with a given set of preferences from acting, but by changing their preferences" (Finnemore 1996). Related is Goodman and Jinks's view on how actors become socialized and acculturated into following treaty norms. From their perspective, it is not so much persuasion - a form of rational acceptance - that matters but that regular interactions lead to cognitive and social pressures for state actors to conform with treaty norms. Such often implicit pressures exist in the form of social-psychological benefits of conformity such as the "cognitive comfort" of satisfying social expectations and of being accepted and valued as an insider group member and in the form of the related costs of nonconformity such as dissonance and shunning. The result is conformity with treaty norms rather than their acceptance and internalization. The transnational legal process model and related theories might be able to explain norm internalization or norm conformance if states do not incur great costs in complying with treaty norms. What if, however, there are strong incentives to maintain human rights violations? Will those who undertake human rights violations to maintain their grip on power be persuaded by the validity of human rights norms or be socially acculturated into human rights protection? This seems highly unlikely. The remaining two theories therefore address the issue of how domestic groups, perhaps in interaction with transnational actors, can use international human rights treaties to pressure state actors into compliance.

The liberal international relations perspective abandons the realist concept of states as unitary actors, arguing instead that states are made up of a large number of actors with different interests, which is why domestic politics matters (Moravcsik 1997). International human rights regimes can be effective if domestic groups, be they nongovernmental organizations, protest movements, political parties, or any other group, can use the regime to pressure their domestic government into better respect for human rights (Helfer and Slaughter 1997). Obviously, there is more leeway for such pressure when the domestic political regime allows opposition and the exertion of peaceful political pressure on the government. Bringing lawsuits against human rights offenders to domestic courts can also be important (Hathaway 2002). In consequence, a liberal perspective would lead us to expect that international human rights regimes are particularly effective in political democracies and where the rule of law prevails. Such countries will find it more difficult to exploit the "expressive role" of international human rights treaties without undertaking any actual change. Of course, in as much as the theory argues with recourse to rule of law rather than political democracy, there is the danger of tautology since human rights are partly about access to legal process and the right to lawful treatment. The theory of transnational human rights advocacy networks predicts that international human rights regimes can improve actual performance where such networks are strong (Risse, Ropp, and Sikkink 1999; Schmitz and Sikkink 2002; Hafner-Burton and Tsutsui 2005). Networks consist of international human rights NGOs such as Amnesty International or Human Rights Watch, together with domestic NGOs and other civil society groups, parties, or the media committed to human rights. Improvement in human rights is regarded as a process going through a "spiral model" that takes five steps - namely, from unconstrained repression to rule-consistent behavior via a period of denial, tactical concessions, and prescriptive status. Movement through the stages is not inevitable and can take a very short or very long period of time, depending on the country in question and the pressure it is under at each stage. In the beginning, domestic political opposition is too weak to constrain human rights violations, and the country manages to escape the attention of transnational advocacy networks. However, after some time and often triggered by events of particularly gross human rights violations, the network starts putting the regime under pressure via disseminating information, shaming the offending regime, and mobilizing international public opinion against it, as well as persuading strong states to target the country with open criticism as well as diplomatic, aid, trade, and other policy measures. The offending government reacts with denial, denouncing the universality of the human rights invoked and rejecting criticism as interference with its sovereignty. At this critical stage, it is important that the pressure on the offending country is maintained and international human rights regimes help in justifying the universal applicability of human rights. Few governments are willing to accept a positioning of their country as a rogue state. Under sustained pressure, they engage in tactical concessions in the hope of diffusing the criticism, often in the form of releasing some political prisoners, lifting some of the worst restrictions of civil liberties, and withdrawing some of the worst violations of human rights. A further possible concession could be the ratification of human rights treaties. The regime often underestimates that these concessions help mobilizing and strengthening domestic groups, which, under the protection and with the help of transnational networks, push for further improvements in human rights. The domestic groups ally with the transnational networks to exert pressure on the government "from below" and "from above." Pressure by powerful countries can be helpful if applied consistently and with a long-term commitment. Having undertaken tactical concessions, governments can no longer deny the validity of human rights in principle. They slowly lose control over the process they have initiated. Their leaders' rhetorical embrace of human rights is used by domestic and foreign groups against them in their call for the actual realization of human rights. A process of "controlled liberalization" takes place, during which the old regime is often split between a reformist and reactionary faction. Crushing the domestic opposition is often no longer an option unless the country is powerful enough to weather the adverse consequences for the government (e.g., the Tiananmen Square massacre in China). The reformist faction therefore often gains the upper hand, with the consequence that further reforms become more likely. If the mounting pressure is sufficiently strong, then human rights improvements stop being ad hoc and at the total discretion of the regime and start becoming institutionalized via legal or even constitutional changes. At this stage, human rights acquire prescriptive status, and governments stop dismissing human rights complaints as interference in internal affairs. In the final phase, governmental behavior becomes consistent with the human rights norms either because the government has sufficiently reformed or has stepped down and is being succeeded by a former opposition group, which is committed to human rights-consistent behavior. Human rights violations can still happen at this stage, but they are no longer officially pursued by governmental officials, and its perpetrators are likely to become the subject of state prosecution. What are the implications of this theory for the likely effect of human rights treaty ratification on human rights performance?

Risse, Ropp, and Sikkink (1999) explicitly regard ratification as a manifestation of the phase of prescriptive status. If this is the case, then a positive association between ratification and improvements in human rights is likely, not least because the process of rights improvement is already well under way. It also means that ratification is more a manifestation of human rights improvement rather than a cause of it. However, as already mentioned, ratification can also form part of the tactical concessions. If so, then ratification can be more causally instrumental in bringing about human rights improvement if the increased attention, monitoring, and reporting, together with the formal acceptance of the validity of human rights by the government, allow the transnational networks in alliance with domestic groups to step up the pressure on human rights-violating countries. Risse (2002) concludes from qualitative studies of human rights change in eleven countries that in all cases, ratification of international human rights treaties preceded respect for human rights. Neither (neo)realist nor institutionalist perspectives would lead one to expect much of international human rights treaties. Indeed, such treaties might even lead to a worsening of human rights performance. Regime theory leads to more optimistic conclusions, but only rather cautiously so, as explained above. The transnational legal process model provides an optimistic outlook, as do the remaining two theories. However, in the liberal theory, the effect of treaty ratification is likely to be contingent on the extent to which the domestic political regime is democratic, whereas in the theory of transnational human rights advocacy networks, the effect is contingent on the existence of a vibrant human rights civil society with strong international links.

 

1. to bode – предвещать, сулить

2. to coerce – принуждать, заставлять

3. compliance – согласие, соответствие

4. to deflect – отклоняться

5. to deter – удерживать

6. subset – подмножество

7. painstakingly – старательно, усердно, тщательно

8. to concur – совпадать, соглашаться

9. to bolster – подпирать, поддерживать

10. to appease – успокаивать, облегчать

11. constituency – избиратели

12. to shun – избегать, беречься, остерегаться

13. to incur – подвергаться

14. leeway – отставание, потеря времени

15. to trigger – вызывать, быть причиной

16. disseminating – распространённый

17. to crush – уничтожать, давить

18. adverse – вредный, неблагоприятный, враждебный

19. perpetrator – нарушитель, преступник

20. contingent – случайный, условный, непредвиденный

 







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