Do states socialize?

Duke Law Journal

Volumn 54, Issue 4, 2005, Pages 961-974

  Alvarez, José E ^a  

^a Columbia Law School ^*  (United States)

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[No Author keywords available]

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EID: 33747875147     PISSN: 00127086     EISSN: 00127086     Source Type: Journal    
DOI: None     Document Type: Article

References (34)

1. Ryan Goodman & Derek Jinks, How to Influence States: Socialization and International Human Right Law, 54 DUKE L.J. 621 (2004).
2. Even when it comes to describing the existing mechanisms for compliance, which they acknowledge have been developed by other scholars, Goodman and Jinks recognize the complexity of the dynamic processes at work. See, e.g., Ryan Goodman & Derek Jinks, Measuring the Effects of Human Rights Treaties, 14 EUR. J. INT'L L. 171, 173-81 (2003) (describing the many dependent and independent variables that must be taken into account when empirically analyzing the effects of human rights treaties and explaining the complexities that a theoretical model ought to take into account). Their Table I contains a refreshingly supple description of tools of influence that are most often described in more mechanistic terms.
3. Goodman & Jinks, supra note 1, at 655 tbl.1.
4. See Goodman & Jinks, supra note 1, at 629 ("The question whether international law can promote human rights norms may be recast, in an important sense, as how human rights regimes can best harness the mechanisms of social influence.").
5. A.W. Brian Simpson, Britain and the Genocide Convention, 2002 BRIT. Y.B. INT'L L. 5.
6. Both Simpson and Moravcsik have dealt with the origins of the European system of human rights. See generally A.W. BRIAN SIMPSON, HUMAN RIGHTS AND THE END OF EMPIRE: BRITAIN AND THE GENESIS OF THE EUROPEAN CONVENTION (2001);
7. Andrew Moravcsik, The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe, 54 INT'L ORG. 217 (2000).
8. Simpson, supra note 4, at 62.
9. Regina v. Bow St. Metro. Stipendiary Magistrate, [2000] 1 A.C. 147, 148 (1999).
10. Interestingly, Simpson's account does not suggest that one of the obstacles to Britain's participation in the genocide regime was the "vagueness" of the underlying legal rules. Cf. Goodman & Jinks, supra note 1, at 676 (suggesting that one of the characteristics of human rights treaties is that they are notoriously vague compared with other legal domains). On the contrary, it was the relative precision of the Genocide Convention-its requirement that extradition requests not be denied-that was regarded as a principal obstacle. On reflection, human rights treaties are not necessarily more imprecise than any other treaties. Many of the requirements of the International Covenant on Civil and Political Rights, for example, are comparable to or even more, rather than less, precise than the general nondiscrimination norm that is the basis of the World Trade Organization (WTO) regime and would appear to share many of the enforcement difficulties of the typical human rights regime. (Not all trade rights are self-enforcing and many-from non-discrimination to respect for intellectual property rights-are systematically under-enforced; as with human rights, not all countries are able to rely on reciprocity as a reliable enforcement tool.) Goodman and Jinks's larger premise-that human rights regimes share unique characteristics-is worth re-examining. Other treaty regimes, from those involving international economic law to those trying to solve problems of the global commons, may need to rely on socialization techniques as much as human rights treaties.
11. Goodman & Jinks, supra note 1, at 646-55.
12. See, e.g., FREDERIC L. KIRGIS, JR., INTERNATIONAL ORGANIZATIONS IN THEIR LEGAL SETTING (2d. ed. 1993), at 585-616 (discussing the impact of such factors on decisions within the UN General Assembly and in UN Specialized Agencies to attempt various types of membership sanctions with respect to Israel or apartheid-era South Africa).
13. Id.
14. S.C. Res. 757, U.N. SCOR, 47th Sess., 3082d mtg., at 13, U.N. Doc. S/RES/757 (1992); G.A. Res. 47/1, U.N. GAOR, 47th Sess., 7th plen. mtg., at 12, U.N. Doc. A/RES/47/1 (1992). Even this instance, a rare case in which membership sanctions not explicitly authorized by treaty were imposed, involved considerable activity by UN lawyers to confine the scope of the measures sought to be imposed and limit the damage of the legal precedent set by this arguably "ultra vires" action. See Consequences for Purposes of membership in the United Nations of the Disintegration of a Member-State-General Assembly Resolution 47/1 and Practical Consequences of its Adoption, 1992 U.N. Jurid. Yb. 428, UN Doc. A/47/485 (providing the legal opinion of the Secretariat of the United Nations on how the breakup of Yugoslavia affects the UN membership of the successors of that state).
15. Simpson's account also implies that those interested in compliance need to consider the role and influence of lawyers, and not only whether, for example, the state involved is a "liberal" or "democratic" state. The extent to which a state "legalizes" its relevant foreign policy decisions appears to have an impact on a state's decision to ratify a treaty and presumably has an impact on whether steps are taken to implement a treaty upon ratification. Simpson's case study suggests that, at least in some cases, democratic states that take a legalistic approach to such questions might face greater impediments to expeditious ratification, in contrast to the assumptions made by some liberal theorists. See generally Simpson, supra note 1.
16. As Professors Richard Lempert and Joseph Sanders acknowledged long ago, Weberian ideal types are conceptual abstractions from reality that are sufficiently general that they cannot capture the whole of any actual phenomenon. An ideal type is a useful analytical yardstick for a generalized statement precisely because it is "a stylized construct that represents the perfect, and thus unreal, example-it is not the average case; it is the pure one." RICHARD LEMPERT & JOSEPH SANDERS, AN INVITATION TO LAW AND SOCIAL SCIENCE 3 (1986). What makes ideal types so useful simultaneously limits their relevance to describing real historical events-such as Britain's consideration of the Genocide Convention at particular moments in time.
17. Thus, one of the most thorough efforts to gauge the level of compliance with respect to multilateral environmental treaties, by Professors Harold K. Jacobson and Edith B. Weiss, concluded that the level of states' compliance is affected by the characteristics of the activity involved (the number of actors involved, the effect of economic incentives, the role of multilateral corporations in the activity, and the concentration of activity in major countries), the characteristics of the accord (the perceived equity of the obligations, their precision, provisions for obtaining scientific and technical advice, reporting requirements, other forms of monitoring, secretariat, incentives and sanctions), the international environment (whether the treaty was the subject of a major international conference or of worldwide media attention, the presence of international non-governmental organizations), as well as factors involving the country. Harold K. Jacobson & Edith Brown Weiss, Assessing the Record and Designing Strategies to Engage Countries, in ENGAGING COUNTRIES: STRENGTHENING COMPLIANCE WITH INTERNATIONAL ENVIRONMENTAL ACCORDS 511, 511-542 (Edith Brown Weiss & Harold K. Jacobson eds., 1998). The very thoroughness of this study-the comprehensiveness of its list of compliance factors-poses a challenge for those seeking to draw practicable prescriptions from it.
18. Compare, in this respect, the work of those who study the "interactional processes" of managerial environmental treaty regimes. Such regimes would also appear to share some of the enforcement challenges faced by human rights regimes and also appear to rely on, at least in part, socialization compliance techniques. See, e.g., Jutta Brunnée, COPing with Consent: Law-Making Under Multilateral Environmental Agreements, 15 LEIDEN J. INT'L L. 1, 39 (2002) (noting that "states may be most inclined towards less formal procedures when patterns of practice and shared understandings have solidified" and that "interactive processes . . . take shape gradually" to increase compliance).
19. Id. at 645.
20. Goodman & Jinks, supra note 1, at 642-43.
21. Id. at 643.
22. Id. at 652-53.
23. On the distinction between implementation, compliance, and effectiveness, see generally Jacobson & Weiss, supra note 15.
24. Harold Hongju Koh, Why Do Nations Obey International Law?, 106 YALE L.J. 2599, 2649 (1997) (book review).
25. Goodman and Jinks also need to say more about how their concept of socialization relates to or differs from the work of political scientists working on comparable terrain. See, e.g., AUDIE KLOTZ, NORMS IN INTERNATIONAL RELATIONS: THE STRUGGLE AGAINST APARTHEID 29-33 (1995) (describing states' concern for reputation);
26. Jeffrey T. Checkel, The Constructivist Turn in International Relations Theory, 50 WORLD POLITICS 324, 344-45 (1998), (book review) (describing "social learning" as a process whereby actors acquire new interests and preferences through interaction with a broader institutional context of norms or discursive structures in the absence of obvious material incentives);
27. Thomas Risse & Kathryn Sikkink, The Socialization of International Human Rights Norms into Domestic Practice: Introduction, in THE POWER OF PRINCIPLES 1, 11-12 (Thomas Risse et al. eds., 1999) (describing the socialization of norms through dialogue, communication, and argumentation);
28. Alexander Wendt, Constructing International Politics, 20 INT'L SECURITY 71, 73 (1995) (distinguishing compliance based on coercion, cost-benefit analysis, and determinations that the norm is "legitimate," and suggesting that only in the latter instance are actors' identities "constructed" by the norms). While these other scholars would apparently agree with Goodman and Jinks that states indeed "socialize, " it would appear that there is some dispute about how this phenomenon takes place: through norm internalization, learning, concern for status, or as the product of discourse. The subtle distinctions between these accounts of socialization may suggest different prescriptions.
29. W. Michael Reisman, Aftershocks: Reflections on the Implications of September 11, 6 YALE HUM. RTS. & DEV L.J. 81, 83-84 (2003).
30. See, e.g., Sundhya Pahuja, 'This is the World: Have Faith', 15 EUR. J. INT'L L. 381, 382-90 (2004) (book review) (questioning whether the growing convergence of accepted human rights norms can ever be anything other than imperialistic).
31. But see Amitav Acharya, How Ideas Spread: Whose Norms Matter? Norm Localization and Institutional Change in Asian Regionalism, 58 INT'L ORG. 239 (2004) (arguing that local actors do not passively act out a universal moral script but selectively borrow and adapt transnational norms in accordance with pre-constructed local normative beliefs and practices).
32. See THOMAS L. FRIEDMAN, THE LEXUS AND THE OLIVE TREE 101-11 (2000) (discussing the pressure that the Western world has put on non-Western countries to conform to Western economic and political norms).
33. Reisman, supra note 21, at 85-86 (discussing the objectives of Al Qaeda as including the establishment of a second Caliphate to revive "the old glory of Islam," and the consequences of such a future: namely the "suspension of the vision of a global community based upon a common conception of human dignity").
34. See generally JOSEPH S. NYE, JR., THE PARADOX OF AMERICAN POWER 8-12 (2002) (describing the United States' "soft power").