International Law Again

Eric Posner has “two”:http://volokh.com/2009/10/27/reply-to-henry-farrell-part-ii/ “responses”:http://volokh.com/2009/10/26/bloggingheads-cont%E2%80%99d/ to my earlier post on international law. I’ll be writing two responses to the responses – the first (on Eric’s second rebutting post) beneath the fold

In his second post Eric expresses strong skepticism about my suggestion that reports like the Goldstone report can be effective in improving human rights.

bq. Let us suppose that the Goldstone report was reasonable and fair (I have not read it, so I have no opinion on this issue). It is worth recalling that it was commissioned by the Human Rights Council, and would not have taken place but for the decision of that institution. The Human Rights Council is dominated by illiberal states that cannot agree to condemn North Korea or Iran or Sudan, but can agree to condemn Israel. When not condemning Israel, it does two things: it tries to advance a conception of human rights that most western states reject; and it issues bland and uninformative periodic reviews of the human rights practices of states. … (In the case of the Goldstone report, some European countries abstained rather than voting no because they objected to the Council’s failure to mention Hamas in its resolution adopting the report.) Henry’s view is that if reports like the Goldstone report are regularly issued, and the state that is the subject of the report takes a “reputational hit,” that can only be a good thing, because at least some states will be more likely to respect human rights and comply with the laws of war. But can it be seriously entertained that the minority bloc (and it is a bloc) will put up with this state of affairs? Why should they, exactly? If they value human rights and the laws of war, they can comply with them. If they don’t, they would certainly not put themselves in the position of being the only group of states that will be condemned for violations, giving a free pass to a larger group of states that, as it turns out, act much worse. International law needs institutions if it’s to get beyond its primitive state, but institutions don’t avoid the problem of power politics; they embody them.

There may be a part of Eric’s argument that I am not getting here (the claim in the penultimate sentence is a little too compacted for me to be entirely sure what he is saying, and I would be grateful to have it unpacked), but two things are worth pointing out. First – that the Goldstone report, despite the initial HRC mandate, _did_ prominently condemn both Hamas and Israel (Goldstone made it a condition of his involvement that he be allowed to investigate Hamas’s activities as well as Israel). Second, and more importantly that there is good evidence that the HRC’s predecessor, the even more widely excoriated UN Commission on Human Rights did have a measurable, and arguably positive, effect in punishing notorious human rights violators, despite its many flaws.

Here, I am relying on two important articles by Jim Lebovic and Erik Voeten. First, in a “piece”:http://www3.interscience.wiley.com/journal/118569745/abstract (paywalled) for _International Studies Quarterly_ they provide evidence that UNHCR motions become increasingly difficult over time to explain using the pure ‘power politics’ approach that Eric prefers.

bq. In what we believe is the first systematic study of post-Cold War UNCHR voting practices, we therefore seek answers to the basic questions, ‘‘Who got condemned and by whom?’’ We find that commission targeting and punishment were driven to a considerable degree by the actual human rights records of potential targets and that reputation effects matter in the condemnation by the UNCHR of country human rights practices. States that ratified important human rights treaties were held to a higher standard, and states that were not actively involved in the production of global public goods were held to a lower standard when the commission administered punishment. This evidence notwithstanding, realist factors, such as capabilities and partisanship, were also important motivations for sanctioning states in the UNCHR, though less so overall with the end of the Cold War.

They conclude:

bq. In the voting analysis, the realist partisanship, capabilities, and membership hypotheses acquire support in the Cold War period and, to a somewhat lesser extent, in the post-Cold War period. … At the same time, the analyses of targeting, levels of punishment, and public resolution voting speak to the strong – and strengthening – effects of reputation and social conformity on the commission’s behavior. _The post-Cold War evidence demonstrates compellingly that the commission went after the worst offenders and that this effect dominated all others in the model. Indeed, given a possible selection effect … the voting analysis probably exaggerates the degree to which partisanship, membership, and power helped rights violators to escape public condemnation._ (HF – my italics)

bq. … the findings point to both the strengths and weaknesses of the realist argument that IOs, such as the UNCHR, are forums within which states play out their rivalries and political insecurities. Even a casual glance at the descriptive evidence is sufficient to conclude that, throughout much of the early history of the commission, members were less in the business of punishing human rights abuses and more in the business of helping friends, undercutting adversaries, and deflecting criticism of their own (sometimes abysmal) rights records. … our Cold War-era … analyses demonstrate that U. S. political allies were subject to relatively harsh penalties from the commission, that governments supported and opposed others based on their ideologies and alignment, and that UNCHR membership had its privileges. Unquestionably, too, hypocrisy continued to thrive on the commission. … How else to explain that the rights records of governments throughout the Middle East have gone largely ignored and, when charged, the repressive governments of Saudi Arabia and China have always been let off the hook?

bq. But this evidence must be evaluated in context. … while skeptics rightfully deride the willingness of the commission to target various serious offenders, they must concede that the commission was forcing an increasing number of repressive regimes to defend their records in private and in public. This is no small achievement. No less importantly, the indications are that participation or reputation within the international community was a critical determinant of commission behavior. Other things being equal, the probability of being scrutinized by the UNCHR was lower, in the post-Cold War era, for states that contributed personnel to UN peacekeeping operations and, for the entire period, for states that absorbed thecosts of maintaining a regular presence within the UNGA (by simply casting votes, including abstentions). Because countries that contribute toward collective goods within the community seem to receive more favorable treatment than countries that shirk their responsibilities, it appears that ‘‘good citizenship’’ or at least a ‘‘good reputation’’ matters within the international community.

bq. … our results provide considerable empirical support for the existence of mechanisms – drawn from liberal institutionalist and constructivist theory – that could push commission targets toward domestic reforms. If it can be surmised from our evidence that governments are held accountable for their behavior and not just the ‘‘spin’’ put on that behavior, and that governments can acquire (or lose) legitimacy through their association (disassociation) with IOs, then there is reason to suppose that governments can change their behavior in response to nonmaterial rewards and punishments. It just might be, then, that governments can be induced to treat their citizens by a more humane standard.

Second, Jim and Erik have a “more recent piece”:http://jpr.sagepub.com/cgi/content/abstract/46/1/79 (paywalled) in the _Journal of Peace Research_ that goes beyond ‘surmises’ about broad legitimation effects, and asks whether or not UNHCR condemnatory motions have measurable consequences for the states involved. They find no evidence that such motions affect bilateral aid between states. However, they find clear evidence that condemnatory motions are associated with lower levels of multilateral aid.

bq. The statistical analysis provides strong evidence that UNCHR resolutions that condemn a country for poor human rights performance are correlated with large reductions in World Bank and multilateral loan commitments, but have no impact on bilateral aid allocations. Instead, bilateral aid responds mildly to short-term changes in levels of civil rights. … they shed light on whether public shaming votes in international organizations
actually ‘matter’. This issue was addressed heretofore with the circumstantial evidence that countries would not exert energy in shaming, and defending against it, if such actions carried no weight. A more convincing case is built around the practical consequences of these sanctioning votes, as they affect donor allocation patterns. We account for this finding, in theoretical terms, by arguing that public votes communicate information about actual norms violations and political preferences within the international community. This information can be useful to other IOs, such as the World Bank, that make consequential decisions under constraints imposed by the preferences of their political principals.

bq. Second, the findings contribute to the large literature on material consequences that governments experience for failing to live up to human rights standards. This literature has focused mostly on bilateral aid or trade relationships and has reduced the role of IOs, at least by implication, to persuading or socializing donors to design their aid policies around the human rights practices of potential recipients. We argue that governments often do not have the incentives to punish norm violators bilaterally, even if these governments would prefer, in the abstract, to punish rights abuses. This gives governments incentives to delegate the enforcement of human rights norms to multilateral institutions, such as the World Bank – this is an important point, because prior research suggests that states might soften their abusive practices with the right foreign incentives, for example, preferential trade agreements.

If I understand Eric’s arguments about the CHR at all well, this provides troubling evidence against them. I would be startled if Eric were to argue that the HRC is a ‘better’ example than its predecessor of the kinds of problems that he identifies. Every piece of evidence we have would suggest that the UNCHR was, if anything, worse afflicted by the pathologies that he is interested in. Yet the only serious study that I am aware of (perhaps Eric knows of others) provides strong statistical evidence that the UNCHR was _not_ all about the power politics as Erik would claim, and that UNCHR resolutions were increasingly well explained over time by normative factors (whether or not states genuinely were human rights abusers), and reputational ones (whether or not states were good international citizens). A follow-up study furthermore shows that these condemnations had significant material consequences for the states targeted. I would be very interested to see his response to these pieces (especially since I know that he has some familiarity with, and respect for, Erik Voeten’s single-authored work, and is more generally much more interested than most international law professors in building on the findings of political scientists). Finally, if (and this is certainly not explicitly stated by Eric), his normative case against the HRC extends backwards to its predecessor too, it is, at the very least, substantially overstated. The UNCHR did a considerably better job in targeting actual human rights violators than its critics suggested. If, alternatively, the HRC represents a substantial step backwards from the UNCHR, I would be very interested to see the evidence and supporting arguments stating why this is so.

One possible response Eric could make would be to argue that this is still well explained by states’ interests (albeit perhaps with a different understanding of those interests than in his original work). But this would still be vulnerable to the second, and more serious criticism that I want to make of his book – that it doesn’t really have a theory of what states’ interests are, and that without such a theory its explanatory power is highly limited. I hasten to add that this is a general problem for accounts of international politics based around state behaviour – _no-one_ has come up with a generally convincing account of what states’ interests are. However, it is a particular problem for a book that, like Eric’s, wants to make a strong argument about the inherent limits of international law. More on that in my next post.