Do human rights treaties make a difference?

• Author: Hathaway, Oona A.

International lawyers for the most part assume that, as Louis Henkin memorably put it, "almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time." (1) This assumption undergirds the work of many legal scholars and practitioners, who endeavor to explicate and form the law presumably because they believe that it has real impact. Indeed, the claim that international law matters was until recently so widely accepted among international lawyers that there have been relatively few efforts to examine its accuracy. (2) Yet this view long coexisted with a much more skeptical conception of international law among international relations scholars--a conception that holds that, in the immortal words of Thucydides, "[t]he strong do what they can and the weak suffer what they must," (3) with little regard for international law. (4)

The disinclination of international lawyers to confront the efficacy of international law is nowhere more evident--or more problematic--than in the field of human rights law. After all, the major engines of compliance that exist in other areas of international law are for the most part absent in the area of human fights. Unlike the public international law of money, there are no "competitive market forces" that press for compliance. (5) And, unlike in the case of trade agreements, the costs of retaliatory noncompliance are low to nonexistent, because a nation's actions against its own citizens do not directly threaten or harm other states. Human fights law thus stands out as an area of international law in which countries have little incentive to police noncompliance with treaties or norms. As Henkin remarked, "The forces that induce compliance with other law ... do not pertain equally to the law of human rights." (6)

Are human rights treaties complied with? Are they effective in changing states' behavior for the better? These are critical questions not only for our assessment of human fights treaties, but also for our understanding of the effects of international law more generally. If states act primarily in pursuit of their self-interest, as dominant theories of international relations generally assume, a finding that human fights law frequently alters state behavior would be deeply puzzling, for human fights treaties impinge on core areas of national sovereignty without promising obvious material or strategic benefits. Indeed, a finding that human fights treaties play an important constraining role would provide powerful evidence for the view, embraced by many scholars and practitioners of international law, that state action is critically shaped by the persuasive power of legitimate legal obligations. Examining the effects of human rights treaties thus offers a rare opportunity to put dominant views of international law to the test. (7)

This Article undertakes that test with a large-scale quantitative analysis of the relationship between human rights treaties and countries' human rights practices. The analysis relies on a database encompassing the experiences of 166 nations over a nearly forty-year period in five areas of human rights law: genocide, torture, fair and public trials, civil liberties, and political representation of women. This data set is the empirical window through which I examine two separate but intimately related questions. First, do countries comply with or adhere to the requirements of the human rights treaties they have joined? Second, do these human rights treaties appear to be effective in improving countries' human rights practices--that is, are countries more likely to comply with a treaty's requirements if they have joined the treaty than would otherwise be expected? (8)

A quantitative approach to these questions makes it possible to trace relationships between treaty ratification and country practices that would be difficult, if not impossible, to detect in qualitative case-by-case analyses. (9) In an analysis of individual cases, there is virtually no way to know whether better or worse human rights practices are due to treaty ratification or instead to any number of other changes in country conditions, such as a change in regime, involvement in civil war, or a change in economic context. Designed correctly, therefore, comprehensive statistical analysis can isolate more effectively the particular effects of treaty ratification on country practices. And such an analysis can achieve a breadth of coverage that would be infeasible in a qualitative case-by-case analysis.

To be sure, the quantitative approach is not without drawbacks. Although a quantitative analysis can have a scope that is impractical in a qualitative analysis, it necessarily brushes over the nuances of historical context that can only be garnered from a case-study approach. This is, of course, an argument not for abandoning quantitative analysis but instead for supplementing it with qualitative evidence. (10) A second obvious drawback of statistical inquiry is that the accuracy of the analysis necessarily depends on the accuracy of the data on which it rests. To address this problem, I draw on several different data sources and cross-check all my results against more than one source. Nonetheless, to the extent that the data on which my study rests are imperfect, there remains a risk that the conclusions I draw are similarly imperfect. The questions that this Article addresses are worth considering even if the answers fall short of certainty and even if much room remains for additional quantitative and qualitative research.

From the standpoint of leading perspectives on international law, the results of my research are counterintuitive. Although the ratings of human rights practices of countries that have ratified international human rights treaties are generally better than those of countries that have not, noncompliance with treaty obligations appears to be common. More paradoxically, when I take into account the influence of a range of other factors that affect countries' practices, I find that treaty ratification is not infrequently associated with worse human rights ratings than otherwise expected. I do, however, find evidence suggesting that ratification of human rights treaties by fully democratic nations is associated with better human rights practices. These findings are not fully consistent with either the classic interest-based or the norm-based views of international law. If treaties are simply window-dressing for the self-interested pursuit of national goals, then there should be no consistent relationship between ratification and state behavior, positive or negative. If, by contrast, they have a powerful normative hold, then ratification of human rights treaties should be associated with better practices--not only by fully democratic nations--and should never be associated with worse practices.

My findings do not necessarily tell us that treaties lead to worse human rights practices. Countries with worse practices may be more inclined to ratify treaties, or we may simply know more about violations committed by countries that sign human rights treaties, making countries that ratify look worse than they are. Yet given that I find not a single treaty for which ratification seems to be reliably associated with better human rights practices and several for which it appears to be associated with worse practices, it would be premature to dismiss the possibility that human rights treaties may sometimes lead to poorer human rights practices within the countries that ratify them.

This suggestion is not as outrageous as it might at first appear. The counterintuitive results may be explained at least in part, I argue, by a conception of international treaties that takes account of their dual nature as both instrumental and expressive instruments. Treaties are instrumental in that they create law that binds ratifying countries, with the goal of modifying nations' practices in particular ways. But treaties also declare or express to the international community the position of countries that have ratified. The position taken by countries in such instances can be sincere, but it need not be. When countries are rewarded for positions rather than effects--as they are when monitoring and enforcement of treaties are minimal and external pressure to conform to treaty norms is high--governments can take positions that they do not honor, and benefit from doing so. (11) In this respect, human fights treaties lie in contrast to Article VIII of the IMF's Articles of Agreement, for which compliance information is readily available and which Beth Simmons has found to have a significant positive influence on state behavior. (12)

This perspective helps explain why treaty ratification might sometimes be associated with worse human fights practices than otherwise expected. Countries that take the relatively costless step of treaty ratification may thereby offset pressure for costly changes in policies. Because monitoring and enforcement are usually minimal, the expression by a country of commitment to the treaty's goals need not be consistent with the country's actual course of action.

Although ratification of human rights treaties appears to have little favorable impact on individual countries' practices, this finding does not preclude the possibility that treaties have favorable effects on human rights across the board. And human fights treaties may have positive effects on ratifying countries over the long term, creating public commitments to which human rights activists can point as they push nations to make gradual, if grudging, improvements down the road. Indeed, these dynamics are not mutually exclusive. Treaty ratification may set in play both positive and negative forces, which together often lead to little or no net effect on state practices.

This Article proceeds in four stages. Part I discusses the existing...