The cost of commitment.

• Author: Hathaway, Oona A.
• Position: Human rights treaties - Symposium on Treaties, Enforcement, and U.S. Sovereignty

INTRODUCTION I. EXISTING WORK ON THE COST OF COMMITTING TO HUMAN RIGHTS TREATIES A. The Sovereignty View: The Cost of Commitment Is Uniform B. A Normative View: The Cost of Commitment Is Less Important than Norms C. The Rationalist View: The Cost of Commitment Depends on the Cost of Compliance II. THE COST OF COMMITMENT III. THE EVIDENCE: A PRELIMINARY ASSESSMENT A. Aggregate Evidence B. Commitment Patterns of Democratic and Nondemocratic Nations 1. Nondemocratic nations 2. Democratic nations CONCLUSION APPENDIX A: LIST OF TREATIES APPENDIX B: DATA SOURCES AND DESCRIPTIONS TABLES TABLE 1: COMPARATIVE COMMITMENT TABLE 2: CONVENTION AGAINST TORTURE TABLE 3: GENOCIDE CONVENTION TABLE 4: INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS TABLE 5: CONVENTION ON THE POLITICAL RIGHTS OF WOMEN INTRODUCTION

Over the last half-century, the number of treaties that address issues of human rights has grown from a handful to hundreds. The majority of nations now belongs to a panoply of international agreements--some regional, some universal--that address human rights issues ranging from labor standards to the treatment of prisoners to gender equality. The last decade in particular has witnessed a concerted push from the United Nations to bring nations into the human rights fold through ratification of the six core United Nations human rights treaties. (1) Yet despite the proliferation of treaties and the growing attention to countries' decisions to join them, (2) little attention has been paid to what influences countries' decisions to join these treaties.

Perhaps this inattention is due to the perception that the explanation for countries' decisions to ratify is obvious. Ratification of treaties is entirely voluntary; hence, one might argue, only those countries that share the goals of the treaties will ratify. In this view, it is obvious that those that abhor torture will ratify the Convention Against Torture, those that favor women's political equality will ratify the Convention on the Political Rights of Women, and those that are committed to civil and political rights will ratify the International Covenant on Civil and Political Rights, while those that do not will not.

But this simple explanation, while it of course tells part of the story of treaty membership, undoubtedly does not tell it all. It does not tell us why, for example, Afghanistan, Colombia, Mexico, and other countries known to have regularly engaged in state-sponsored torture ratified the Convention Against Torture in 1987, while Belgium, Iceland, and the United States--which have markedly better practices--did not join the treaty until the latter half of the 1990s. It does not tell us why the human rights ratings (3) of countries that join treaties are not all that much better, on the whole, than those that have not. (4) And it certainly cannot help us explain why countries with the worst human rights ratings often ratify human rights treaties at rates approaching or matching that of countries with the best ratings. (5)

In the area of human rights, which is the focus of this Article, treaty membership is all the more difficult to explain because the very existence of human rights treaties poses a puzzle. In some areas of law, it may seem quite obvious why countries create and then join treaties. Arms control agreements, trade agreements, and mutual nonaggression agreements, for example, offer member states obvious reciprocal benefits in exchange for their respective pledges to act or to refrain from acting in particular ways. (6) But human rights treaties do not, at least on their face, promise such benefits. Assent to a human rights treaty invites intrusion of the international community into the domestic arena and in particular into the relationship between the state and its citizens--a sphere of influence usually jealously guarded. In return, member nations receive only promises from other nations to refrain from harming their own citizens. From a strictly rationalist point of view, which sees state behavior as largely motivated by an assessment of costs and benefits, (7) this is not something that states should care much about. After all, how does the use of torture by the government of Zimbabwe against its own citizens affect the national interests of Denmark? Hence, from the rationalist perspective--a perspective that is currently dominant in the field of political science--human rights treaty membership appears especially difficult to explain.

In this Article, I focus on only a small part of this broader puzzle. Putting to one side, for the moment, the many ways in which countries benefit from joining human rights treaties, I seek insight into how the cost of committing to human rights treaties influences countries' decisions to join. I begin by proposing a way of conceiving of the cost of consenting to be bound by a treaty that takes into account the internal enforcement process. I then investigate whether countries appear to be influenced by this cost of membership when they decide whether or not to join particular treaties.

In presenting this argument, I do not purport to provide a complete explanation for countries' decisions to join human rights treaties. This Article is but a small part of a more expansive project in which I investigate the broader puzzle that I have described. (8) Here, my goal is more modest. I seek simply to examine whether a conception of the cost of commitment that acknowledges the role of domestic institutions helps us better understand countries' decisions to join human rights treaties.

To begin to answer this question, I examine empirical evidence drawn from a database that covers 166 nations over a time span of forty years. I use this data to shed some light on the decisions of nations to join human rights treaties. Do countries with better human rights practices ratify more readily than those with worse human rights practices? Is the propensity of nations to ratify treaties affected by the enforcement mechanisms used in the treaties? Do democratic nations ratify more readily than nondemocratic nations? Is there a difference in the willingness of democratic and nondemocratic nations to commit to a treaty when their practices are out of step with the treaty's requirements? These are a few of the questions that I ask in this Article. The empirical evidence, while far from conclusive, provides some preliminary answers that I hope will serve as a roadmap to future, more detailed investigation.

Part I of this Article reviews the existing theories of state behavior and the answers they suggest to the question of whether and how the cost of committing to a human rights treaty affects countries' decisions to join. I sketch out three broad views of the cost of commitment that can be gleaned from the existing literature, which I term the sovereignty view, the normative view, and the rationalist view. These three approaches, though different in their foundations and reasoning, suggest two possible relationships between the cost of commitment and treaty ratification. They predict that either there will be little or no predictable relationship between the cost of commitment and a country's ratification decisions or that the further a country's ratings diverge from the standard of behavior required in a human rights treaty, the less likely it will be to join.

In Part II, I put forward my own theory of the cost of commitment. I argue that for treaties with minimal enforcement provisions--which include most human rights treaties--understanding the cost of commitment requires taking into account not only the cost that would be entailed in bringing the country's practices into compliance with the treaty but also the likelihood that those costs will be realized.

In Part III, I put the theories to the test. I compare the predictions of the existing accounts of state behavior and of my own account against the empirical evidence. I find that states often fail to behave as proponents of existing accounts would expect and that the evidence is instead more consistent with the predictions that arise out of my own account. I conclude by reviewing the insights into countries' decisions to join human rights treaties provided by the empirical evidence and by outlining future avenues of research suggested by the findings.

1. EXISTING WORK ON THE COST OF COMMITTING TO HUMAN RIGHTS TREATIES

   With a few important exceptions, political scientists and legal scholars have largely ignored the questions of when and why countries join international treaties. Legal scholars in particular have tended to take it as a given that international treaties exist and that countries choose to join them. (9) They have focused their attention instead on whether and when countries comply with those treaties and on whether the sovereignty costs of treaties outweigh their benefits. (10) In doing so, they have almost entirely ignored the questions of why treaties come into being and what motivates nations to join them. (11)

   Until recently, political scientists largely ignored international law and hence made little effort to explain its existence. Yet they have long been interested in the broader question of international cooperation, of which international treaties are a formalized subset, if one that is often left unacknowledged. In recent years, as political scientists have turned more attention to international law, there have even been some direct efforts to explain the existence of particular treaties. Among these is Andrew Moravcsik's examination of the origins of the European Convention for the Protection of Human Rights and Fundamental Freedoms. (12)

   If only a few scholars have addressed the questions of when and why countries join human rights treaties, even fewer have considered the narrower issue that is the focus of this Article: What is the cost to a country of committing to a treaty and how does that affect its decision to join? Below, I...