Formation of Human Rights Treaties, A Response to Alex Geisinger

by Andrew Guzman

Alex Geisinger’s thoughtful comments return to some of the themes I touched on in my earlier response to Roger Alford. Alex is more forceful, however, challenging whether the theory I advance is able to account for the role of reputation in treaty formation.

I think the place to begin here is some terminology. The use of the term reputation invites confusion, and there may be some of that confusion going on here. In the book (and here) I use the term to refer to a reputation for compliance with international commitments. That is, the project takes as its focus the ability of states to make credible promises. Just as private parties find contracting valuable, states find it valuable to exchange promises. So the main thrust of the book is directed at the question of when those promises are credible.

Roger and Alex both pull at a different notion of reputation – one for cooperation more generally, or perhaps for participation in international human rights treaties. It is clear that there is no legal obligation to join a human rights treaty, but there may be political pressure or some other incentive at work. Alex seems to be on board with the notion that states join such treaties in order to advance their own interests, stating that states seek “material benefits somewhere down the line.” I agree. One reason I find human rights treaties so puzzling is that it is devilishly hard to figure out just what it is signatories think they are getting. Alex suggests some possibilities – to obtain aid, to signal a willingness to cooperation, to signal that membership in a group is valuable, to signal a low discount rate. We can certainly identify instances in which membership comes with some clear benefit of aid or other support, but there are many examples where that is not true. The problem with signaling stories was already discussed in my response to Roger: the signal must be costly and if you subsequently violate the agreement, the net impact on whatever it is you are trying to signal will be negative.

Alex mentions one additional possibility – the internalization of a norm. This is a departure from rational choice assumptions, and for that reason is not discussed in detail in the book. In some instances some sort of norm internalization (or, in economist-speak, a changing of preferences) seems a plausible explanation for some countries. It is hard to imagine anyone signing the CEDAW 50 years ago, for example. The norm internalization story, however, does not help us to understand why states sign treaties that they are almost certain to violate. If the relevant norm were internalized, would it not manifest itself in domestic policy too? It seems to me that not only is it hard to understand human rights treaties in a rational choice model, it is hard to explain them using any methodology.

Turning back to Alex’ question – can a rational choice theory account for treaty formation. I am confident that the answer is “yes” in the sense that thinking of treaty formation in rational choice terms makes sense to me. Indeed, that is how Roger, Alex, and I have been discussing it here. A slightly different question is whether I have addressed treaty formation in the book. To that question I would answer “sort of.” As the last paragraph in my response to Roger indicates, the book does explore some of the relevant issues, but not all of them. There is much more to be said on this issue, and it strikes me as important for our understanding of international law and international relations. And if someone has a good explanation for why states sign human rights treaties, I invite them let me know and we can co-author the paper on it!

http://opiniojuris.org/2008/02/11/formation-of-human-rights-treaties-a-response-to-alex-geisinger/

One Response

  1. Excellent discussion. I’m not sure why the same explanation for why some states sign human rights treaties must hold true for other states. The notion of “norm internalization” makes sense for certain states, particularly those that lead the development of human rights treaties. On the other hand, reputation and reciprocity make better sense for states that have not necessarily internalized the norms, but want to be seen as part of a modern world that to a large extent is defined by the leading states.

    “Leading”, in this case, is not necessarily synonymous with military dominance. Militarily dominant states may be motivated to opt out or undermine human rights treaties, given their preference for sovereignty over normative limitations and reciprocity.

    I would not go so far as to say that the rationale for signing a human rights treaty is as various as the treaty’s signatories — but the interests of different states in signing human rights treaties may fall into different categories of even the most parsimonious theory.

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