in the Genocide Convention, CEDAW, and the ICCPR’s Optional Protocol produces a significant positive effect on related human rights. Neumayer (2005) examines whether the impact of ratification is conditional upon regime type, and finds that in pure autocracies, ratification of the CAT and the ICCPR is associated with worse human rights practices, but that ratification has a “more and more beneficial effect” as democracy strengthens.2 Landman (2005) conceptualizes and models ratification as a function of the underlying processes of democratization, economic development, and global interdependence, which he finds influence human rights moderately but consistently across the various treaties that constitute the international human rights regime. It is difficult to separate out the influence of democratic institutions in his human rights analysis, although we do know that the relative weight of democratization is likely to be rather small because its effect on ratification is minor relative to that of other factors. As reported above, Powell and Staton’s (2009) study of the CAT makes a significant contribution by moving our attention to the domestic legal system. They find that as the effectiveness of the judiciary increases, the joint probability of ratifying the CAT in full and then violating the treaty decreases; however, they find only mixed evidence that the joint probability of not ratifying and torturing increases with an effective judiciary in place. Kelley (2007) also demonstrates that states with a stronger domestic commitment to the rule of law are less likely to violate their treaty commitment by signing a nonsurrender agreement.
Finally, if we broaden the scope of compliance to include the asylum literature, Salehyan and Rosenblum (2008) make a significant contribution, demonstrating that public and media attention to immigration and asylum issues increases the impact of humanitarian concerns in U.S. asylum outcomes. However, their findings in regard to congressional influence on human rights concerns in asylum outcomes are less encouraging, as the effect is contingent upon partisan politics and whether congressional hearings are framed in terms of immigration enforcement, which reduces the humanitarian dimension of the outcomes, or in terms of refugee and asylum issues, which increases the importance of the humanitarian dimension. Overall, the literature clearly demonstrates that domestic institutions and politics influence a state’s compliance with its treaty obligations, and that the influence of democratic institutions extends beyond the traditional electoral components to the judiciary and the rule of law.
Measuring norms is probably the most difficult task that empiricists face in testing normative approaches, and thus most empirical studies of compliance have examined surrogate indicators. Powell and Staton (2008) test regional and global norms, as indicated by past rates of torture, in their CAT models; however, they find little evidence that norms influence state torture practices. Kelley’s (2007) study of bilateral nonsurrender agreements provides the best opportunity to examine the influence of norms on state values. She finds that even while controlling for a significant number of realist assumptions, states that have demonstrated a prior normative affinity for the International Criminal Court (ICC) are less likely to sign nonsurrender agreements; however, she does not find that human rights norms influence signing of the nonsurrender agreements. Even though the asylum literature has consistently demonstrated that security and material interests strongly influence U.S. asylum decisions, these studies have also consistently demonstrated that humanitarian norms (especially human rights conditions) do influence U.S. compliance with its commitments under international law (Rosenblum and Salehyan 2004; Salehyan and Rosenblum 2008; Rottman, Fariss, and Poe 2009; Keith and Holmes 2009). The presence of transnational networks or civil society pressure (typically measured as the number of INGOs in which citizens have membership) is much easier to measure than the presence of norms; however, the direct link between treaty ratification and civil society pressure is not typically tested in human rights models. Both Hafner-Burton and Tsutsui (2005) and Powell and Staton (2008) find that as the number of INGOs to which citizens belong increases, so does the level of protection of human rights. Neumayer (2005) provides the most rigorous analysis, examining specifically the effect of treaty commitment on human rights behavior, conditioned upon the strength of civil society organizations. His results are mixed: he does find that the stronger the state’s participation in INGOs, the greater the beneficial effect of ratification of the CAT on human rights behavior; however, the results do not hold for ICCPR ratification. He also finds mixed results in regard to regional treaties.
For example, ratification of the Inter-American torture convention with INGO participation is beneficial, but the effect does not hold for the European torture convention. Overall, the observable effect of norm diffusion is weak and inconsistent at best. The evidence of a strong positive influence by NGOs on states’ human rights practices is more convincing; however, we must keep in mind that the civil society link through treaty ratification is not directly demonstrated except in Neumayer’s work. In the following chapters I continue to explore the role of norms diffusion and treaty ratification in regard to state commitment to constitutional freedoms and subsequent state rights behavior.
Moving the Literature Forward
In this book I seek to build upon this substantial body of human rights literature, examining the core assumptions of multiple subfields in political science through the organizing concepts of opportunity and willingness, arguing that state actors’ choice to employ various tools of repression is shaped factors based in both the agent (for example, democratic values, ideological preferences, resources, etc.), the structure (for example, competitive party system or independent judiciary) and environment (for example, domestic and external threats). I argue that these factors influence which options (tools of repression) are available or deemed appropriated and that they shape the consequences and costs and benefits of employing the tools of repression. I also seek to move the literature forward in several ways. I expand what has become known as the “standard model” of repression forward in time to cover almost three decades and the global set of states. I expand the standard model to reflect developments in the literature concerning the conceptualization and measurement of democracy, and I explore measurement issues in regard to civil liberties. I also explore more thoroughly the conflicting expectations in the literature regarding the effect of military regimes and Marxist/Marxist-Leninist regimes. Subsequently, I expand the standard model to account for state embeddedness in global society and liberal economic theory. This book’s primary contribution lies in the substantive examination of the role of judicial independence. I first address why states commit formally to the norm judicial independence, and then examine the circumstances that shape the actual achievement of judicial independence within the state. I also present a new measure of de facto judicial independence and examine its relationship with both categories of repression. Throughout these analyses I model and control for selection effects. I also examine interaction between judicial independence and the transnational network and domestic circumstances. I also examine state constitutional commitment to individual freedoms and due process rights, first examining factors that influence commitment, especially prior commitment to the ICCPR and then examining the influence of that commitment on repression of the specific rights promised in the provisions, controlling for selection effects. Finally, I examine the influence of threats on repression of personal integrity rights and restrictions of civil liberties. Ultimately, I examine the effectiveness of states of emergency provisions in models that condition the level and type of threat. I believe these analyses offer one of the rigorous assessments of the role of the judiciary and the role of law on state decisions to repress their own citizens.
Chapter 3
The Standard Model of Human Rights
December 2001, Gbarnga, Liberia: Students rioted to protest the killing of a fourth grade boy by the police commander; the police killed two more students during the demonstration in front of the police station. (U.S. Department of State 2001)
October and December 2008, Central Yerevan, Armenia: Newspaper editors Nikol Pashinian and Shogher Matevosian were arrested after participating in a march with supporters of the former President Levon Ter-Petrosian, a vocal critic of the government, and two months later the Gyumri-based television channel Gala TV was harassed by government officials following its broadcasting of Levon Ter-Petrosian’s campaigning activities. (Amnesty International 2009)