Thesis proposal
Intense scholarly debate regarding why states ratify human rights treaties continues as the international condemnation of torture becomes increasingly codified. The first comprehensive international criminalisation of torture occurred with the entry into practice of the UN CAT. International relations academics have, for some time, tried to explain why states commit to such human rights treaties in the first place. The controversy over ratification occurs in large part due to the absence of major engines of compliance in human rights law, that is evident in other areas such as trade. There appear to be fewer obvious incentives to comply to such treaties, as human rights law lacks competitive market forces or the costs of retaliatory non-compliance. The lack of obvious reciprocal benefits or costs in the case of human rights is further complicated by the infringement of domestic sovereignty that such treaties represent. The conflict between the costs to state sovereignty and the benefits of signing such treaties must be explained in order to determine why states are willing to overlook such interference in their domestic affairs. Despite the British government being opposed to such interference in the British domestic system and having major qualms about ratifying the CAT, they did so regardless. This thesis will contribute to the debate about motivations behind ratification of human rights treaties by identifying the reasons behind Britain’s ratification of the CAT despite significant opposing factors.
Crucial questions regarding the ratification of human rights treaties have divided theorists into a number of distinct groups. Realist scholars see states joining such treaties through instrumental self-interested convenience, making cost-benefit analysis based primarily on material incentives. Rational institutionalists, while agreeing with the claim that states act out of self-interest, see that treaty adherence can represent a long-term preference for restraint. These theorists may also recognise the importance of reputation in a functionalist sense, whereby stable expectations of an actor can help further cooperation and material benefits. Liberal scholars highlight the importance of domestic processes, and pressure by NGOs, citizens and norm entrepreneurs. Finally, constructivist theories centre around the social context of shared subjective understandings, and some highlight the way in which at least some types of states might ratify sincerely, as they have internalised the norms that such treaties institutionalise. Other constructivist explanations look to conscious role-playing, as norms constrain behaviour even when actors don’t fully believe in them. This latter explanation looks both at discomfort about being out of step with a certain peer group and the impact on Britain’s social status. Typically constructivist concerns about status and identity thus play into the broader international politics of social competition.
Resolving this debate about ratification is not only complicated by the aforementioned sovereignty costs and lack of retaliatory non-compliance, but by the confidentiality of the process through which decision-making occurs. Drawing broad conclusions about why states accede to human rights treaties is problematized by the lack of data. This issue is compounded by the intimate connection between two processes that must be kept analytically and temporally distinct: the decision to ratify and the decision to comply. While considerations of compliance undoubtedly affect commitment, this reciprocal relationship must be separated to determine the main drivers for ratification.
Furthermore, attempting to isolate a single motivation as superior to others and declare this as the explanation for state behaviour is arguably naïve. There must be a recognition of the limitations of theoretical frameworks that attempt to make universal assumptions. The real world is clearly must richer than the theories used to simplify and explain it. Increasingly, scholars recognise the complex interaction of strategic and normative dynamics, arguing against the unnecessary dichotomy usually enforced. Particularly in the area of human rights and international laws of war, the search for a predominant explanatory factor has continued. This thesis aims to transcend this ‘gladiatorial’ theory testing, instead allowing for an appreciation of more pluralist theorizing. ADD ONCE U READ CHECKEL.
This thesis contributes to, and furthers, this debate both empirically and theoretically. British government memoranda and Cabinet conclusions are confidential documents, and face a 30 year embargo before they are released into the British National Archives. As Britain ratified the CAT in 1988, the release of extensive archival evidence key to explaining the reasoning behind such a decision occurred last year, in 2018. This newly released evidence has yet to be analysed thoroughly, and will allow for an original discussion of Britain’s motivations for ratification.
This empirical originality will also assist in advancing the existing theoretical discussion
Existing Theories on State Ratification of Human Rights Treaties
Ratification of an international treaty is a formal mechanism whereby states consent to become legally bound by the contents of the treaty and accept the associated rights and obligations. Ratification therefore differs from signature of a treaty, as the latter shows official state intention to ratify and only binds the state informally. States’ decisions to ratify and thus commit strongly to human rights treaties have been widely analysed by international relations scholars, who can be broadly divided into four schools of thought: realist, rational institutionalist, liberal and constructivist.
Rational actor models see individuals and states as rational, self-interested actors that make choices primarily through cost-benefit analyses. This rationalist perspective is taken by realists, who see ratification occurring to maximise the relative gains of states. There is a conceptual distinction between instrumental and non-instrumental that must therefore be defined. Instrumental will be seen, for the purposes of this work, as something that will accrue a benefit, and relates to some functional expectation, either material or intangible. Realists focus on instrumental motives highlights inter-state bargaining power and the possibility of great powers coercing other states through the use of material incentives or sanctions. Realists therefore see the interests of powerful states as the drivers of change. Realist scholars thus explain ratification through considerations of self-interest aided by a cost-benefit analysis, whereby states are able to gain rewards and/or avoid sanctions. This predicts that states will disregard treaties when the costs outweigh the benefits, and material benefits and drawbacks will sway decision-making.
A second, more optimistic rationalist perspective is taken by rational institutionalists who focus more on absolute gains while recognising that states have common interests and can benefit from cooperation. States are still self-interested but use institutions to look beyond this self-interest and help cooperation, as they aim to develop shared expectations of behaviour. States are seen as having a long-term preference for restraint, and commit to abide by laws as an instrumentally advantageous guide for behaviour. In this way, ratification may be explained by the presence of law-respecting instrumental arguments and the desire to build and maintain expectations of behaviour. Hathaway (2002) highlights how reputation can be a main mechanism for rational institutionalists, as repeated cooperative interaction in international institutions relies in part on predicting the behaviour of others. The threat of, or actual, harm or benefits to reputation can therefore constrain or motivate state actions to enable them to engage in such cooperative activity.
By contrast, liberalism rejects this assumption of states as being unitary rational agents, instead seeing ratification as a by-product of domestic politics. In this view, domestic political processes and pressures lead governments to commit to international treaties. This view accounts more strongly for the role played by IOs, NGOs, other pressure groups and the legal system of a state. While similar to rational institutionalism in the importance it accords to cooperation and institutions, its focus on domestic political, economic and legal pressures highlights more clearly the ability of individuals and private groups to be fundamental actors in international politics.
However, even within this liberal view norms are seen as a superstructure over a material base, serving a regulative function. The aforementioned theories rely primarily on instrumental motivations, using behavioural models based on utility maximisation. While accounting for such instrumental behaviour, constructivist scholars go beyond it to highlight shared norms and culture, seeing states as social beings rather than purely rational ones. Constructivists highlight the social context of shared subjective understandings and norms that help constitute state identities and roles, while rejecting the possibility of objectively determined state interests. This an approach based on two assumptions: firstly, that the setting in which actors operate is social as well as material, and secondly that this environment can help shape actors’ understandings of their interests. Social contexts are thus able to give material structures meaning, and actors’ interests and preferences are derived and altered through social interaction.
Constructivist explanations for treaty ratification thus often focus on international social pressures, where actors are socialised to fit in with social norms and peer groups. There are two sides to this constructivist argument. The first sees state acting in ways that improve their social approval by peers or the global community as a whole, and so look to gain non-material rewards. The second claim is that states may act to avoid social opprobrium, which is ‘real or perceived discomfort over (potential or actual) embarrassment and isolation’, and thus to avoid shunning, shaming and a loss of status. This analytical distinction between positive and negative reasons for acting is useful to evaluate whether rewards or conformity are significant motivators for ratification.
Two broad constructivist views explaining human rights treaty ratification through a focus on socialisation have been specified by Checkel (2005). Type I socialisation sees agents adopt roles that they see as appropriate, without a significant ‘process of reflective internalisation driven by communicative processes’. This practice sees individuals and states adopt roles and act in accordance with expectations, irrespective of whether they truly believe in or like the role. This conscious role-playing requires agents to understand what is socially acceptable in a given environment. In this sense, norms don’t have to be internalised for them to be able to constrain behaviour. Causal mechanisms for this view include group pressures and considerations of social dynamics and self-perceptions of status, legitimacy and identity. By contrast, Type II socialisation goes beyond this role-playing and sees agents internalise norms more fully, adopting the interests and identity of the community. Norms achieve a ‘taken for granted’ quality and agents align their behaviour with them as they see it is the ‘right’ thing to do. This is a deeper, more stable form of socialisation that sees ratification occur as states become convinced of the moral and legal worth of human rights treaties. Causal mechanisms include moral persuasion and reasoned deliberation, where principled ‘norm entrepreneurs’ convince states to embrace new norms. The idea that states interact in a global environment with shared principles, norms and institutions and may often rely on a logic of appropriateness rather than one of consequence is significant when evaluating empirical evidence for ratification.
The research undertaken here concerns the mechanisms and motivations that led the UK to ratify the CAT, an international human rights treaty. The decision to sign and ratify was preceded, as is typical in Britain, by a focused internal decision-making process. This is centred around an Inter-Ministerial Group joining together the Home Office, the Foreign & Commonwealth Office, and various other relevant stakeholders. The most appropriate type of evidence to analyse the required casual mechanisms for ratification is thus private evidence from this group. This is particularly true for considerations of reputation and identity, as states may not want to speak publicly about matters that might embarrass them. Individuals are more likely to be frank when expressing themselves in private, and so it is easier to understand true motivations behind ratification without reliance solely on public documentation. These records are therefore crucial for assessing motives and calculations and have been freshly opened this year in the British National Archives. I located, organized and analysed most of the invaluable reports, memoranda and letters from 1977, when discussions regarding signature and ratification of the CAT took off, until 1990, two years after the UK signed the CAT.
Having thus determined what evidence will be used, it remains to establish which causal mechanisms are most pertinent for explaining ratification. These causal mechanisms will be determined by using process tracing, ‘the analysis of evidence on processes, sequence, and conjunctures of events within a case’. This tool of qualitative analysis helps both describe political and social phenomena and evaluate causal claims. Using diagnostic evidence from the British Archives, process-tracing enables the evaluation of causal evidence for a hypothesis from a sequence of events. Process-tracing is particularly successful at focusing on the unfolding of events over time, providing a dynamic analysis of the stability of causal mechanisms. For the purposes of this research project, I focus on a single process-tracing test that aims to show the relevance of various arguments for ratification during the UK process of signature and ratification. This test focuses in particular on arguments surrounding reputation and the broader international politics of social competition. Accordingly, I will use a ‘hoop’ test, designed to affirm the relevance of a hypothesis, in order to determine how best to explain Britain’s ratification of the CAT.