Reputation, Human Rights, and Humanitarian Law, A Response to Roger Alford
Thanks, Roger, for these great comments. You have put your finger on the broad area of international law that presents perhaps the greatest puzzle for all our theories of international law and international relations – human rights and humanitarian law. Agreements in these areas are (usually) very difficult to characterize as quid-pro-quo exchanges in which each party accepts obligations in order to get the other party to do the same. It is hard to believe, for example, that repressive regimes join human rights treaties to ensure that Norway respects the rights of its citizens. So these treaties must be motivated by something else, and I think it is fair to say that the field is still searching for a satisfying explanation of what that something else is. The trick is to explain the participation of states with good human rights records (what do they stand to gain) and those with poor human rights records (why would they accept obligations they are almost certain to violate).
We can say a couple things, though. First, a state only achieves a reputational gain by joining an agreement if doing so represents a costly signal. If New Zealand would comply with the ICCPR whether or not it was a party, the fact of its joining provides no information and so cannot help its reputation. The same is true for the International Criminal Court. Switzerland is a party to the ICC. If it is implausible that Switzerland will ever run afoul of its ICC obligations, then Switzerland cannot achieve a reputational gain for joining. Notice that we are assuming a prior belief that Switzerland will not violate its obligations under the ICC. This means that there is no new information when Switzerland joins, and there is no reputational gain with respect to compliance because by assumption the legal obligation is not affecting behavior. This is an important point because it is sometimes argued that states join human rights treaties that they expect to violate because it gives them some sort of reputational gain and there is no enforcement (or no transparency with respect to their violations). The signaling model behind this argument, however, requires that it be costly to send the relevant signal. If the signal is costless, it serves no purpose.
So why, then, would Switzerland join the ICC? Good question. My guess is that it did so because it was very low cost (since violation is spectacularly unlikely) and because it sought to demonstrate some vague support for the idea of setting up the court. These are quite modest benefits, of course, and so the claim is really that the issue was very minor for Switzerland, but some small gain was enough to get it to join. This could be as little as wanting to do something to help an ally and thereby improving relations, for example. Where the costs and benefits of joining are small enough, of course, motivated states may be able to tip fence-sitters into a treaty at relatively low cost. It is conceivable to me that this is part of the explanation for some multilateral treaties that have large memberships consisting of many states that are not affected by the relevant obligations.
But your point about there being a reputational cost associated with a failure to enter into an agreement is, I think, exactly right. A refusal to join a treaty may signal a reluctance to live up to the content of the treaty. This can provide information to observing states. Though there obviously would be no treaty violation, a state that refuses to participate may signal that it is or will be in violation of a related rule of CIL, or simply that it is not willing to cooperate in a given area. This latter situation would not, strictly speaking, be a loss of a state’s reputation for compliance with international law, but it might nevertheless be a costly loss of reputation for cooperation. This certainly seems to be what has happened to the United States with respect to both the ICC and the Kyoto Protocol.
So as you suggest, Roger, there is a close connection between accepting an international legal obligation and complying with it. My book does discuss how joining a treaty can help a country to gain reputation, and how the presence of a treaty can serve to separate states into those that can comply relatively cheaply and those for which compliance will be more costly. It also addresses the need for signals to be costly. There is more to say, however, than what the book covers. To give just one thought off the top of my head: When presented with an agreement a state may lose the status quo as an option – it must either join or declare its refusal to join. If it joins it then faces consequences in the form of reputational losses if its defects. Throw in the fact that joining happens today and the potential violation is in the future (and may never occur), and you can see that the problem gets interesting very quickly. I want to lay claim to having recognized some of this in the book, but also agree that there are interesting question in the “issues for future research” category.