The Puzzle of Human Rights Treaties

by Andrew Guzman

I confess that I am a little surprised by the focus on methodological issues that has emerged in the discussion of my book. My intention was to adopt non-controversial rational choice assumptions widely used across both law and the social sciences. This approach to modeling behavior is dominant, for example, in both economics and political science. Equally relevant, there is an enormous literature debating the merits and demerits of the approach and the debates on the subject are, by now, well-worn and familiar. I fear that we are simply rediscovering what others, (international relations scholars in particular) have known for a long time. I do not mean by this that questioning the methods I or anyone else uses is out of bounds. But if I have indeed carried out a rational choice analysis of international law without doing violence to that methodology, I hope we can get beyond the question of whether rational choice is useful (it seems everyone agrees that it is) and whether it is the only thing that is useful (nobody thinks so).

Alex’ most recent post addresses the question of how reputation interacts with treaty ratification. As I said in my earlier post, the issue of ratification is an interesting and important one, but not one I focus on in my book. The most natural way to think of the decision to ratify is to imagine a trade in which each country makes a promise in exchange for the promise of its treaty-partner. With human rights treaties, however, this is sometimes not a persuasive explanation. Jeff Dunoff reminded us below that at least some human rights treaties feature a form of compensation in exchange for joining, but I doubt we can explain all treaties in this way. I suggested another explanation in an earlier post – perhaps for many states the cost of joining is very small, meaning the even modest benefits are enough to cause states to join. There was also a discussion of how reputation might influence the ratification of treaties. A country whose reputation understates its willingness to comply with international law (or perhaps with human rights treaties) might, under certain conditions, enjoy a reputational boost by signing a treaty and then complying with it.

All of these explanations, and more, are available to explain participation in human rights treaties. I remain, however, of the view that we lack a good explanation for these treaties generally. It may be possible to explaining them one at a time, but developing “just so” reasons for ratification does not amount to a theory. So where does that leave us? I think it leaves us with a puzzle about why states join human rights treaties. Alex asks if this fact signals a weakness in rational choice theory. That is hard to say. It may be that the solution to the puzzle simply needs to be identified, and that it will be found within a rational choice model. A persuasive critique of a rational choice approach on this basis requires, at a minimum, an explanation of how this puzzle is explained through some alternative methodology.

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