University of Minnesota



David Weissbrodt, Joan Fitzpatrick, and Frank Newman, International Human Rights—Law, Policy, and Process (3d ed. 2001). 

Supplement to Chapter 17: Causes of Human Rights Violations (November 2003)


 

The materials in Chapter 17 illustrate the efforts by social scientists to attempt to correlate human rights violations by country with various characteristics of nations and thereby provide empirical evidence of the causation of such violations.

Oona Hathaway, Do Human Rights Treaties Make a Difference?, 111 Yale L. J. 1935 (2002), has made an important contribution to both the theoretical and empirical literature of human rights.

  This article sets forth most of the major theories of international relations and international law as to why governments ratify human rights treaties and why they should comply with their international human rights treaty obligations. It also reflects a huge empirical effort to determine whether governments actually do comply with those obligations. After having identified the various theories for ratification and compliance, the author’s empirical study comes to the rather disturbing conclusion that governments do not generally comply with their treaty obligations. The article then tries to develop some theoretical explication of her results and makes some rather limited suggestions for improved techniques for the implementation of treaty obligations that might make governments more likely to comply.  

Hathaway gathers data from quite diverse sources in order to assess whether governments are actually complying with their human rights treaty obligations. Hathaway and her research assistants have done a prodigious quantity of work in order to create the database on which they run statistical analyses. Although she demonstrates her awareness of the relevant efforts to assess human rights performance, she differs with the other studies in terms of the sources of data she has selected. For example, she uses the Freedom House reports, even though she indicates her awareness of the criticisms leveled at the lack of impartiality and inadequate methodology underlying the numerical ratings in those reports. For genocide figures she uses a University of Maryland set of figures as to which the definition of “geno/politicide” is far more inclusive than the Genocide Convention for which she is trying to measure performance. She measures compliance with the Convention on the Political Rights of Women even though that treaty has been eclipsed by the much more important Convention on the Elimination of All Forms of Discrimination Against Women.  

Hathaway’s results might be misused to suggest that it is not worthwhile for governments to ratify human rights treaties. Hathaway does not draw this conclusion. She correctly notes that governments often ratify treaties because they are engaging in a public relations exercise without necessarily intending to comply with their obligations. For example, she suggests that ratification of treaties is “expressive” and she cites Dan Farber for the proposition that governments are trying to “signal” their compliance without actually complying. [1]  She then correctly observes that strengthening the implementation procedures under the treaties would make it more likely that governments would comply. Her suggestions for improvements are based on Anne Bayefsky’s study on implementation of treaties. [2]  

Despite some misgivings about the statistical basis for Hathaway’s article and the potential misuse of her conclusion, she is correct that governments often ratify treaties without necessarily intending to comply. Governments are motivated by peer pressure and by a desire for inclusion in regional or international communities. Take, for example, Turkey. It is a country that wishes very much to join the European Union and to be counted as a European nation. Hence, it has ratified the [European] Convention for the Protection of Human Rights and Fundamental Freedoms and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. It is unclear, however, whether Turkey intended to comply with its obligations in that regard, but it ratified the two treaties because it particularly knew it had a problem as to the endemic nature of torture in that society.  As Hathaway says, Turkey was trying to show that it cared about its torture problem. Hathaway’s data probably demonstrates that Turkey continued to torture after ratifying the two treaties, but that is no great revelation. The ratification of a treaty does not bring about immediately compliance any more than the adoption of a statute ensures universal obedience. Over time, however, Turkey has begun to take practical measures, including decreasing the period of incommunicado detention and ensuring the right to counsel at an early stage, such that torture has evidently declined in that country. It is unclear from Hathaway’s study whether she would have been able to pick up such trends in compliance as opposed to the simplistic fact that Turkey continued to torture after it ratified the relevant treaties.  

Hathaway’s article reflects a horizontal look at the conduct of many countries, but we hope that it will be succeeded by a longitudinal assessment as at how governments act over a sufficient period of time to assess their performance after ratifying a human rights treaty. Risse, Ropp, and Sikkink have done such an analysis on the basis of several case studies, but without the statistical approach Hathaway has used. [3]   

As Hathaway’s study illustrates, the first step in such analyses of causation of human rights violations seems to be characterizing the human rights record of the nation states. Various organizations have developed systems for ranking nation states on different aspects of human rights. A student of international human rights law should, however, keep in mind the inherent limitations in compiling data of this type. Coding schemes and counts of violations are value-laden and present significant challenges to even the most talented and seasoned investigators. For example, are 10,000 cases of torture worse than 1,000 extrajudicial killings or vice versa? What about 1,000 disappearances? Furthermore, many of the reports focus on particular types of rights violations. As for violations of freedom of the press and assembly, how should they be ranked in comparison to abuses concerning personal integrity? Studies may only report a particular type of abuse and not the number or severity of incidents. 

Although tough choices need to be made concerning how to count human rights violations, limitations inherent in statistical analysis do not necessarily doom attempts to categorize, tally, and compare human rights violations across countries and contexts. All of these methods of counting and comparing abuses must just be seen as very rough estimates based on diligent, but unavoidably imperfect, work, which may be significantly affected by the values of the researcher or compiling organization. Some of the most often cited reports include the following: 

1.  Freedom House (www.freedomhouse.org) since 1972 has published an annual assessment of political rights and civil liberties of nation states. (The methodology for these rankings is available on the web site.) 

2.  The Heritage Foundation (www.heritage.org) is a NGO that was founded in 1973 and “whose mission is to formulate and promote conservative public policies based on the principles of free enterprise, limited government, individual freedom, traditional American values, and a strong national defense.” (The methodology for these rankings is available on the web site.) 

3. Transparency International (www.transparency.org) is a NGO dedicated to increasing governmental accountability and curbing international and national corruption. Since 1995 it has published the Corruption Perceptions Index that ranks countries by their freedom from corruption. (The methodology for these rankings is available on the web site.) 

For further comments on these reports, see William Schulz, In Our Own Best Interest—How Defending Human Rights Benefits Us All (2001). 

In addition, there are annual reports of human rights conditions in the countries of the world (without rankings) by Amnesty International (www.amnesty.org), Human Rights Watch (www.hrw.org), and the U.S. State Department (www.state.gov). The U.S. State Department also publishes an annual International Religious Freedom Report, pursuant to the International Religious Freedom Act of 1998.  

Exchange Regarding Hathaway’s Methods and Conclusions 

 Hathaway's provocative analysis has sparked controversy in the international human rights community. Below is a summary of an exchange between Hathaway and two other international law scholars, Ryan Goodman and Derek Jinks.  

Ryan Goodman & Derek Jinks, Measuring the Effects of Human Rights Treaties, 14 Eur. J. of Int’l L. 171 (2003).  Although Hathaway’s contribution is much-needed, Goodman and Jinks argue that there are real flaws in Hathaway’s methods and policy recommendations. Hathaway’s independent variable (treaty ratification) and dependent variable (reported human rights violations) may suffer from measurement error. For example, it is not clear why ratification is the “magic moment” of human rights norm acceptance for states, and increased reports in human rights violations may actually be evidence of liberalizing and increasingly transparent governments rather than repressive ones. Hathaway’s application of her theoretical model may also be flawed. For example, Hathaway’s empirical evidence does not test the validity of her theoretical model, she fails to make explicit some of her guiding assumptions, and her conception of state signaling through virtually costless ratification underestimates the true costs to state sovereignty of ratifying treaties. Furthermore, Hathaway's policy recommendation to increase the costs of state ratification of treaties may disrupt the gradual process of constructing global normative order. 

Oona A. Hathaway, Testing Conventional Wisdom, 14 Eur. J. of Int'l L. 185 (2003).

Hathaway argues that Goodman and Jinks either misunderstand or misrepresent her argument.  She responds to their criticisms in a number of ways.  First, she clarifies her own argument by noting that Goodman and Jinks fail to address the nuance of her work and thereby make claims that are at odds with her real conclusions and recommendations.  Second, she asserts that many of Goodman and Jinks’ challenges about shortcomings in her empirical project could be leveled at any large-scale quantitative project and should be noted, but not used to dismiss her project. She addresses Goodman and Jinks’s assertions about various potential sources of error and questions their reading of theoretical and quantitative literature concerning the power of treaties to change state behavior. Better analysis demands more accurate and comprehensive measures of human rights abuses and treaty compliance, but current large-scale analysis allows social scientists to detect macro-level trends and should not be entirely abandoned. Hathaway also responds to Goodman and Jinks’s critique of her theoretical claims. She does not claim that treaty ratification is a “costless signal.” Rather, many burdens of treaty compliance are internally imposed and it is relatively less costly to ratify than implement.  Her argument does not falter in relying on assumptions from established theories of international relations when she seeks to criticize past predictions based on their assumptions. Rather, past predictions have been “myopic” and failed to take into account the different ways that treaties relate to state behavior. States engage in mixes of rational behavior and action influenced by norms and ideas. Hathaway concludes by reasserting that hers is the first large scale investigation of its kind; treaty ratification may not be as simple a mechanism for norm diffusion and compliance as some contemporary accounts suggest; and Goodman and Jinks seek to ignore clear evidence challenging current assumptions in favor of established beliefs about treaties and state compliance therewith. 

Oona A. Hathaway, The Cost of Commitment, 55 Stan. L. Rev. 1821 (2003). 

C. POLITICAL AND ECONOMIC FACTORS 

1. Political and Economic Theories and Research 

Scott Walker & Steven C. Poe, Does Cultural Diversity Affect Countries’ Respect for Human Rights?, 24 Hum. Rts. Q. 237 (2002). Walker & Poe note that there is some scholarly disagreement about whether the amount of cultural diversity in countries affects their relative respect for several clusters of human rights, including security and personal integrity rights, economic and subsistence rights, and civil and political rights. They do not find evidence that ethnic homogeneity is a necessary condition for governments to meet their obligations to respect personal integrity rights.  There also did not appear to be a significant relationship between countries respecting subsistence rights and ethnic homogeneity with only the caveat that there appeared to be a “floor” under which no homogeneous society fell in their analysis. Furthermore, adequate respect for women’s political and legal rights does not appear to require any particular level of homogeneity.  Human rights protections may exist for women across the spectrum of cultural diversity. Although there does not appear to be any hard and fast prohibition on diverse societies achieving high levels of human rights protection, the analysis does show that heterogeneous societies may face significant challenges in establishing strong human rights norms. 

 Walker & Poe used data around the year 1980 because they had trouble finding enough data for the variables they thought were important in any other general time period. What does this say about the limitations of this sort of empirical analysis? Is there another possible explanation for their findings that only relatively homogeneous countries can achieve the highest ratings on the Freedom House Civil Liberties scales? What other variables or biases might be operating here?  

Maria Green, What We Talk About When We Talk About Indicators: Current Approaches to Human Rights Measurement, 23 Hum. Rts. Q. 1062 (2001).

Many of the articles in Chapter 17 and this supplement are concerned with ways to quantify levels of human rights abuse or enjoyment across the globe. Green examines the idea of human rights “indicators” and shows that their definition and application may not be as simple as dry statistics or indices might suggest.  Green takes an overview of the types of rights that are recognized under international law and the manner in which international bodies and researchers choose to report enjoyment of the rights and government compliance with treaty obligations. She concludes that the field of human rights indicators is not entirely coherent.  

There are numerous areas in which there is not a current theoretical consensus.  The word “indicator” is used in the human rights community to mean more than just a statistic. Human rights practitioners develop and analyze “thematics,” “benchmarks,” and “indices,” as well. Green warns against attributing false levels of precision to numbers and that aggregate data only reflect averages across populations and may not be meaningful for many individuals within the group.  

Although the stereotype is that civil and political rights indicators are thematic and economic, social, and cultural rights are measured by statistics, there is little difference in the kinds of indicators used to measure civil and political as opposed to economic, social, and cultural rights. There is also no consensus on how to separate measurement of government compliance with obligations from progressive realization of rights by citizens. Furthermore, there is also no clear distinction in current human rights discourse between indicators that measure development or conditions of poverty and those that measure economic, social, and cultural rights.  

Shannon Lindsey Blanton, Promoting Human Rights and Democracy in the Developing World: U.S. Rhetoric versus U.S. Arms Exports, 44 Am. J. Pol. Sci. 123 (2000). The United States has endorsed the promotion of human rights and liberal democracy as important parts of its foreign policy. Blanton uses a two-stage model of decisionmaking to determine whether particular countries will receive U.S. arms based on human rights and democracy. She uses the same data set as Poe and others have used in their research to judge respect for personal integrity rights. [4]  She uses data from the Freedom House index of political rights and the Polity III data set to determine levels of democratic governance. [5]  Blanton finds that in the first stage of her model—the “gatekeeping” stage in which policymakers decide whether countries can receive any arms transfers at all—countries with poor human rights conditions or poorly developed democratic institutions are less likely to receive arms than countries with better human rights and democratic records.  The second stage involves a determination of the amount of arms transfers that are appropriate. Blanton finds in the second stage there is no significant difference in arms transfers across levels of respect for human rights and democratic governance. She concludes once the decision is made that a country is eligible to receive weapons, it has reached a “threshold of acceptability” and its internal human rights and governing practices will not be held against it in determining levels of arms transfers. 

E. PSYCHOLOGICAL FACTORS 

Mika Haritos-Fatouros, The Psychological Origins of Institutionalized Torture (2003). This study is a book length treatment of the subject covered by Janice T. Gibson & Mika Haritos-Fatouros, The Education of a Torturer, Psychol. Today (1986) which is summarized and cited on page 1009 of the main text. Haritos-Fatouros emphasizes the extreme circumstances under which torturers must be trained.  Her study of Greek military torturers found that soldiers were drawn from conservative families and were subjected to a series of rigorous treatments and training regimens over a matter of months in order to prepare them psychologically for their task. These treatments included random beatings, orders to do impossible things (meant to create blind adherence to orders rather than reason), and complete separation from people outside the context in which the torturers were being trained.  

Whereas Milgram’s experiments were performed in the presence of “authorities,” Haritos-Fatouros points out that in many cases torturers perform their roles in the absence of any supervision.  For them, it is part of their job. The banality of the action is key to explaining how they actually carry out the acts themselves.  In the Greek case, the creation of torturers necessitates indoctrination as well as instruction in the appropriate skills and techniques.  While torturers came from relatively ordinary backgrounds, it was only in extreme settings and carefully controlled conditions in which the trainees became torturers. 

GLOBALIZATION, TRANSNATIONALS, AND HUMAN RIGHTS ABUSES 

Robert McCorquodale with Richard Fairbrother, Globalization and Human Rights, 21 Hum. Rts. Q. 735 (1999); 

William H. Meyer, Human Rights and MNCs: Theory Versus Quantitative Analysis, 18 Hum. Rts. Q. 368 (1996); 

Jackie Smith, Melissa Bolyard, & Anna Ippolito, Human Rights and the Global Economy: A Response to Meyer, 21 Hum. Rts. Q. 207 (1999); 

David Weissbrodt & Muria Kruger, Business and Human Rights, in Human Rights and Criminal Justice for the Downtrodden: Essays in Honor of AsbjØrn Eide, 421 (Morten Bergsmo ed., 2003). 

ADDITIONAL READINGS:

 1. Political and Economic Theories and Research 

Jack L. Snyder, From Voting to Violence: Democratization and Nationalist Conflict, (2000); 

Alan O. Sykes, International Trade and Human Rights:  An Economic Perspective (John M. Olin Law and Economics, Working Paper No. 188, May 2003). 

3. Sociocultural and Psychological Factors 

Marguerite Feitlowitz, A Lexicon of Terror: Argentina and the Legacies of Torture (1998);  

Martha K. Huggins, Mika Haritos-Fatouros, & Philip G. Zimbardo, Violence Workers: Police Torturers and Murderers Reconstruct Brazilian Atrocities (2002); 

Sanjeev Khagram, James V. Riker, & Kathryn Sikkink, Restructuring World Politics: Transnational Social Movements, Networks, and Norms (2002);  

Dilip K. Das & Arvind Verma, Teaching Police Officers Human Rights, 6 Int’l J. of Hum. Rts. 35 (2002).



[1] Hathaway cites Daniel A. Farber, Rights as Signals, 31 J. Leg. Stud. 83 (2002).

[2] Hathaway cites Anne F. Bayefsky, The UN Human Rights Treaty System:  Universality at the Crossroads 8 (2000); see also Philip Alston, Final Report on Enhancing the Long-Term Effectiveness of the United Nations Human Rights Treaty System, U.N. ESCOR, 53d Sess., Agenda Item 15, P 37, U.N. Doc. E/CN.4/1997/74 (1996); Philip Alston & James Crawford, The Future of UN Human Rights Treaty Monitoring (2000).

[3] The Power of Human Rights: International Norms and Domestic Change (Thomas Risse, Stephen C. Ropp, and Kathryn Sikkink, eds., 2001). See Coursebook at 1031.

[4] The Purdue University Political Terror Scale (PTS) was created in 1983 by Michael Stohl, includes data from 1980-1996, and uses information from United States Department of State and Amnesty International Annual Reports to assign numerical values to the general level of human rights abuses within countries. For each year, countries within the data set are assigned values from 1 to 5 (1 is assigned to states “under a secure rule of law” with minimal abuses and 5 is assigned to states in which abuses are widespread and “leaders of these societies place no limits on the means or thoroughness with which they pursue personal or ideological goals.”) It is available at: <http://www.ippu.purdue.edu/global_studies/gghr/research_pts.cfm.> (last visited November 17, 2003).

[5] Freedom House political rights data is available at: <http://www.freedomhouse.org/> (last visited November 17, 2003). Data is available from the Polity III archive at: <http://weber.ucsd.edu/~kgledits/Polity.html>(last visited November 17, 2003). This page also includes links to newer sets of data, including Polity IV. 



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