Incomplete internalization and compliance with Human Rights Law

European Journal of International Law

Volumn 19, Issue 4, 2008, Pages 725-748

  Goodman, Rita E ^a   Jinks, Derek ^b  

^a HARVARD LAW SCHOOL   (United States)

^b UNIVERSITY OF TEXAS AT AUSTIN   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 54949124665     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chn039     Document Type: Article

References (147)

1. See Goodman and Jinks, 'How to Influence States: Socialization and Human Rights Law', 54 Duke LJ (2004) 621.
2. Ibid., at 630-637.
3. Ibid., at 638-656;
4. see also Goodman and Jinks, 'International Law and State Socialization: Conceptual, Empirical, and Normative Challenges', 54 Duke LJ (2005) 983;
5. Goodman and Jinks, 'Toward an Institutional Theory of Sovereignty', 55 Stanford L Rev (2003) 1749 (outlining a general theoretical model founded on acculturation mechanisms).
6. Goodman and Jinks, supra note 1, at 627.
7. W.W. Powell and P.J. DiMaggio (eds), The New Institutionalism in Organizational Analysis (1991);
8. Meyer 0and Rowan, 'Institutionalized Organizations: Formal Structure as Myth and Ceremony', 83 Am J Sociology (1977) 340;
9. A.R. Pratkanis (ed.), The Science of Social In. uence: Advances and Future Prospects (2007);
10. A.I. Johnston, Social States: China in International Institutions, 1980-2000 (2007).
11. Goodman and Jinks, supra note 1, at 648-651 (collecting examples).
12. See ibid. at 651-655;
13. Goodman and Jinks, 'Toward an Institutional Theory of Sovereignty', supra note 3, at 1760-1761;
14. see also Meyer, Boli, Thomas, and Ramirez, 'World Society and the Nation-State', 103 Am J Sociology (1997) 144.
15. Meyer, et al., supra note 7, at 155.
16. Goodman and Jinks, supra note 1, at 700.
17. Ibid., at 656-700. We do not argue that acculturation is the ideal or preferable social mechanism around which to design international human rights regimes. Our argument is that acculturation is a neglected, poorly understood mechanism of social influence and that a fuller understanding of the ways in which international law influences states is necessary to fashion effective international human rights regimes. Accordingly, our 'defence' of acculturation-based approaches seeks only to show that these approaches are plausible and normatively defensible - that is, they should be part of the larger conversation about the optimal design of human rights regimes.
18. See, e.g., Alvarez, 'Do States Socialize?', 54 Duke LJ (2005) 961;
19. Koh, 'Internalization Through Socialization', 4 Duke LJ (2005) 975 (arguing that acculturation might be understood as incomplete persuasion);
20. J.L. Goldsmith and E.A. Posner, The Limits of International Law (2005), at 127;
21. Hathaway, 'Do Human Rights Treaties Make a Difference?', 111 Yale LJ (2002) 1935;
22. Schmitz and Sikkink, 'International Human Rights', in W. Carlsnaes, T. Risse, and B.A. Simmons (eds.), Handbook of International Relations (2002), at 517, 523.
23. See, e.g., Goodman and Jinks, 'Toward an Institutional Theory of Sovereignty', supra note 3, at 1765-1780 (discussing national security examples).
24. See generally Berry, 'Conceptual Approaches to Acculturation', in K.M. Chun et al. (eds.), Acculturation: Advances in Theory, Measurement, and Applied Research (2003) (describing process- and outcome-based conceptions of acculturation).
25. See, e.g., Boli, 'World Polity Sources of Expanding State Authority and Organization, 1870-1970', in G. Thomas et al. (eds.), Institutional Structure: Constituting State, Society, and the Individual (1987), at 71;
26. Meyer et al., supra note 7, at 145
27. G.J. Kasza, One World of Welfare: Japan in Comparative Perspective (2006).
28. See generally G.S. Drori et al., Science in the Modern World Polity: Institutionalization and Globalization (2003).
29. Hironaka and Schofer, 'Decoupling in the Environmental Arena: The Case of Environmental Impact Assessments', in A. Hoffman and M. Ventresca (eds), Organizations, Policy, and the Natural Environment (2002), at 214, 215.
30. Eyre and Suchman, 'Status, Norms, and the Proliferation of Conventional Weapons: An Institutional Theory Approach', in P.J. Katzenstein (ed.), The Culture of National Security: Norms and Identity in World Politics (1996), at 78.
31. Shenhav and Kamens, 'The "Cost" of Institutional Isomorphism: Science in Non-Western Countries', 21 Social Studies of Science (1991) 527.
32. Hafner-Burton, Tsutsui, and Meyer, 'International Human Rights Law and the Politics of Legitimation: Repressive States and Human Rights Treaties', 23 Int'l Sociology (2008) 115.
33. Benavot, Cha, Kamens, Meyer, and Wong, 'Knowledge for the Masses: World Models and National Curricula, 1920-1986', 56 Am Sociological Rev (1991) 85.
34. Boli-Bennett and Meyer, 'The Ideology of Childhood and the State: Rules Distinguishing Children in National Constitutions, 1870-1970', 43 Am Sociological Rev (1978) 797.
35. Hironaka and Schofer, supra note 15, at 214.
36. See, e.g., Thomas and Meyer, 'The Expansion of the State', 10 Annual Rev Sociology (1984) 461;
37. see generally Goodman and Jinks, supra note 1, at 646-656 (summarizing research);
38. Goodman and Jinks, 'Toward an Institutional Theory', supra note 3, at 1757-1787 (same).
39. See, e.g., Meyer et al., supra note 7.
40. Frank, Hironaka, and Schofer, 'Environmentalism as a Global Institution', 65 Am Sociological Rev (2000) 122;
41. Frank, Hironaka, and Schofer, 'The Nation-State and the Natural Environment over the Twentieth Century', 65 Am Sociological Rev (2000) 96.
42. Frank, Hardinge, and Wosick-Correa, 'The Global Dimensions of Rape-Law Reform: A Cross-National Study of Policy Outcomes', paper presented at Human Rights and Sociological Institutionalism Colloquium, Human Rights Program, Harvard Law School, 6 June 2007 (on file with authors).
43. Boli-Bennett and Meyer, supra note 20;
44. Boli-Bennett and Meyer, 'Constitutions as Ideology', 45 Am Sociological Rev (1980) 525.
45. K. Linos, Social Policy Diffusion Across OECD Countries (Nov. 2007) (Ph.D. dissertation, Harvard University, UMI No. AAT 3285506).
46. A. Chayes and A. Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (1998).
47. Meyer and Rowan, supra note 5, at 357.
48. Ibid.
49. Meyer, 'Globalization: Sources and Effects on National States and Societies', 15 Int'l Sociology (2000) 233, at 244-245;
50. see also Alkoby, 'Theories of Compliance with International Law and the Challenge of Cultural Difference', 4 J Int'l L & Int'l Rel (2008) 151, at 176 (pointing out that decoupling 'actually helps to smooth over the transition to world culture by absorbing possible shocks to local institutions').
51. Cf. Frank, Hardinge, and Wosick-Correa, supra note 25, at 11 (finding, among late adopters with weak domestic infrastructures, that absolute rape 'reporting rates still rose during the period, but the results clearly indicate a loosening of the coupling between rape-law reforms and police reporting with global institutionalization over time').
52. Schofer and Hironaka, 'The Effects of World Society on Environmental Protection Outcomes', 84 Social Forces (2005) 27.
53. Ibid., at 39.
54. Notably, as a methodological aside, cross-country comparisons of relative performance between nations might overlook such aggregate outcomes. It is also questionable whether country case studies could detect these systemic effects.
55. Frank, Hardinge, and Wosick-Correa, supra note 25, at 11-12.
56. Ibid., at 7 and n. 12 (referencing similar findings in cross-national studies of mass education) (citing Meyer, Ramirez, and Soysal, 'World Expansion of Mass Education, 1870-1980', 65 Soc Educ (1992) 128).
57. McAdam, 'Conceptual Origins, Current Problems, Future Directions', in D. McAdam, J.D. McCarthy, and M.N. Zald (eds), Comparative Perspectives on Social Movements: Political Opportunities, Mobilizing Structures and Cultural Framing (1996), at 21;
58. S. Tarrow, Power in Movement: Social Movements and Contentious Politics (2nd edn, 1998), at 7 ('changes in political opportunities and constraints create the most important incentives for initiating new phases of contention.');
59. ibid., at 71 ('outbreaks of contention cannot be derived from the deprivation people suffer or the disorganization of their societies. For these preconditions are far more enduring than the movements they support. ... [C]ontention is more closely related to opportunities for - and limited by constraints upon - collective action than by the persistent social or economic factors that people experience'.).
60. A.S. Layton, International Politics and Civil Rights Policies in the United States, 1941-1960 (2000);
61. Mc-Adam, 'On the International Origins of Domestic Political Opportunities', in A. Costain and A. McFarland (eds), Social Movements and American Political Institutions (1998), at 251;
62. D. McAdam, Political Process and the Development of Black Insurgency, 1930-1970 (2nd edn, 1982), at 82-83;
63. cf. M.L. Dudziak, Cold War Civil Rights: Race and the Image of American Democracy (2000).
64. McAdam, 'Conceptual Origins, Current Problems, Future Directions', in D. McAdam, J.D. McCarthy, and M.N. Zald (eds), Comparative Perspectives on Social Movements: Political Opportunities, Mobilizing Structures, and Cultural Framings (1996), at 23, 27;
65. see also Tarrow, supra note 38, at 76-80. The emphasis here is on more volatile rather than relatively constant dimensions of opportunity. Gamson and Meyer, 'Framing Political Opportunity', in Comparative Perspectives on Social Movements, supra, at 274, 278.
66. McAdam, McCarthy, and Zald, 'Introduction', in ibid., at 1, 10 ('a change in any of the four dimensions may encourage mobilization....').
67. See, e.g., Tarrow, supra note 38, at 71-90;
68. Tarrow, 'States and Opportunities: The Political Restructuring of Social Movements', in Comparative Perspectives on Social Movements: Political Opportunities, supra note 40, at 41, 42;
69. McAdam, McCarthy, and Zald, supra note 41, at 6;
70. Meyer, 'Protest and Political Opportunities', 30 Ann Rev Sociology (2004) 125, at 129-130;
71. Meyer and Minkoff, 'Conceptualizing Political Opportunity', 82 Social Forces (2004) 1457.
72. Gusfield, 'Moral Passage: The Symbolic Process in Public Designations of Deviance', 15 Social Problems (1967) 175;
73. J.R. Gusfield, Symbolic Crusade: Status Politics and the American Temperance Movement (1963).
74. B. Simmons, International Human Rights: Law, Politics and Accountability (forthcoming), at 28, also available at: www.iilj.org/ courses/documents/2008Colloquium.Session3.Simmons.pdf.
75. Hafner-Burton, Tsutsui and Meyer, supra note 18, at 123-126.
76. Ibid., at 126.
77. Simmons, supra note 44, at 17-18.
78. Frank et al., 'The Nation-State and the Natural Environment', supra note 24, at 106.
79. See, e.g., McAdam, 'On the International Origins of Domestic Political Opportunities', supra note 39, at 257 and 263-264;
80. McAdam, 'Conceptual Origins, Current Problems, Future Directions', supra note 40, at 34-35.
81. Risse and Sikkink, 'The Socialization of International Human Rights Norms in Domestic Practices: Introduction', in T. Risse, S.C. Ropp, and K. Sikkink (eds), Power of Human Rights: International Norms and Domestic Change (1999), at 1, 18;
82. M.E. Keck and K. Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics (1998), at 12-13.
83. Hafner-Burton and Tsutsui, 'Human Rights in a Globalizing World: The Paradox of Empty Promises', 110 Am J Sociology (2005) 1373, at 1398 (states whose citizens belong to a greater number of INGOs are more likely to protect the rights of their citizens').
84. Ibid.
85. McAdam, On the International Origins of Domestic Political Opportunities, supra note 39, at 258-259.
86. Elster, 'Deliberation and Constitution Making', in J. Elster (ed.), Deliberative Democracy (1998), at 97, 111;
87. see also Goodman, 'Humanitarian Intervention and Pretexts for War', 99 AJIL (2006) 107 (describing 'blowback effects' by which the justificatory practices of states ultimately constrain state action irrespective of whether the justifications are pretextual).
88. First, Elster develops his model in the context of external pressure exerted on political actors to support a public position. Acculturation often involves external pressure on actors to adopt a public action. Secondly, Elster considers how public actors express or commit to principled, pro-social norms. Acculturation generally involves the pressure to adopt a global script which is generally a principled idea, articulated in pro-social terms. Thirdly, Elster studies particular institutional settings - public deliberative or policy-making arenas in which political actors are focused on the (constitutional) design of government institutions. Our analysis of acculturation generally concerns the same domain.
89. A separate external audience effect is that public commitment to a norm signals to other recalcitrant actors that social opposition to the norm in question is declining (or that social support for the norm is rising). In other words, public conformity, even without private acceptance, exerts collateral influence on other actors in the social system.
90. Elster, supra note 54, at 104.
91. X. Dai, International Institutions and National Policies (2007), at 70-71, 102.
92. Ibid., at 104.
93. Ibid., at 130-132.
94. Ibid., at 20.
95. K.J. O'Brien and L. Li, Rightful Resistance in Rural China (2006), at 15-24 (focusing primarily on contemporary China, but also finding comparative examples in East Germany, South Africa, and the United States).
96. O'Brien, 'Rightful Resistance', 49 World Politics (1996) 31, at 33;
97. O'Brien and Li, supra note 62, at 3.
98. Ibid., at 25-49.
99. Ibid., at 17;
100. O'Brien, supra note 63, at 34.
101. O'Brien and Li, supra note 63, at 16 and 52.
102. Ibid., at 47.
103. O'Brien, supra note 63, at 35;
104. O'Brien and Li, supra note 63, at 17.
105. Ibid., at 64.
106. In the context of human rights treaties, Simmons notes as well: '[p]re-commitment makes it harder for a government that has secured domestic ratification to plausibly deny the importance of rights protection in the local context. Even ratification that could be mere lip service has an important influence on domestic politics.... Disingenuous governments will face inconsistency costs and thus risk a degree of legitimacy to the extent that their populations expect commitments to correspond at least in a very broad way to policies and practices'. Simmons, supra note 44, at 35-36.
107. Elster, supra note 54, at 111.
108. Elster, 'Timur Kuran: Private Truths, Public Lies: The Social Consequences of Preference Falsification', 39 Acta Sociologica (1996) 112, at 115 (book review); see also L. Festinger, A Theory of Cognitive Dissonance (1957).
109. See, e.g., O.R. Holsti, Crisis Management, in Psychological Dimensions of War (ed. Betty Glad, 1990), at 116;
110. Snyder, 'Rationality at the Brink: The Role of Cognitive Processes in Failures of Deterrence', 30 World Politics (1978) 345
111. R Jervis, Perception and Misperception in International Politics (1976), at 382-406.
112. Goodman, supra note 54, at 126.
113. Victories - the successful exercises of political leverage - are important to the survival and development of a movement: McAdam, Political Process, supra note 39, at 52 ('[o]ver time the survival of a social movement requires that insurgents be able to maintain and successfully utilize their newly acquired leverage to advance collective interests. ... In short, the ongoing exercise of significant political leverage remains the key to the successful development of the movement.');
114. Gamson and Meyer, supra note 40, at 286 ('[a]ctivists overcome the futility argument by asserting the openness of the moment. ... Action now will open the window wider and keep it open longer, allowing more room for future victories. Organizing manuals tell activists to pick some modest and winnable objectives early in a campaign as demonstrations that action can have an impact.'). A sense of collective efficacy is important to the maintenance of a movement, such that members tend to exaggerate modest or ambiguous successes in order to sustain their motivation for action: Einwohner, 'Motivational Framing and Efficacy Maintenance: Animal Rights Activists' Use of Four Fortifying Strategies', 43 Sociological Quarterly (2002) 509, at 510-512 (surveying literature);
115. cf. Suh, 'How Do Political Opportunities Matter for Social Movements?: Political Opportunity, Misframing, Pseudosuccess, and Pseudofailure', 42 Sociological Quarterly (2001) 437.
116. Notably, victories also create a demonstration effect that encourages individuals with similar demands to engage in collective action against the state. Tarrow, supra note 38, at 87;
117. Tarrow, supra note 42, at 58-59.
118. Tarrow, supra note 38, at 149 ('[g]overnments that give in rapidly to insurgents' demands may find themselves replaced, as these demands escalate with every sign of the regime's weakness. This was the case in eastern Europe in 1989, as the revealed weakness of the regimes led challengers to broaden their demands from reforms within state socialism to its liquidation.');
119. ibid., at 74 (as Tocqueville wrote, because people act on opportunities, 'the most perilous moment for a bad government is one when it seeks to mend its ways') (citation omitted).
120. Meyer, supra note 42, at 137 (discussing A.N. Costain, Inviting Women's Rebellion: A Political Process Interpretation of the Women's Movement (1992)
121. and McAdam, supra note 74);
122. ibid., at 130 ('[d]emobilization followed political defeats and government neglect. In such cases, opportunities for social mobilization are also opportunities for policy reforms, which encourage each other in a synergistic spiral');
123. McAdam, supra note 74, at 110 ('[p]olitical efforts by blacks now produced concrete results, thereby generating increased pressure for further remedial action. The result, throughout this period, was an accelerating cycle of black action and federal response, with a growing sense of political efficacy as the important by-product of the process');
124. but cf. Meyer, 'Peace Protest and Policy: Explaining the Rise and Decline of Antinuclear Movements in Postwar America', 21 Policy Studies J (1993) 35.
125. Paxton, Hughes, and Green, 'The International Women's Movement and Women's Political Representation, 1893-2003', 71 Am Sociological Rev (2006) 898.
126. Ibid., at 916.
127. Ibid.
128. Ibid., at 899-900, 914, 916.
129. H. Gintis, Game Theory Evolving: A Problem-Centered Introduction to Modeling Strategic Interaction (2000), at 188-219 (summarizing the theoretical models and empirical evidence of social interactions characterized by evolutionary signalling and learning).
130. R. Goodman and D. Jinks, Socializing States: Promoting Human Rights through International Law (forthcoming 2009).
131. Schofer and Hironaka, 'The Effects of World Society on Environmental Protection Outcomes', 84 Social Forces (2005) 27.
132. Ostrom, 'Policies that Crowd out Reciprocity and Collection Action', in H. Gintis, S. Bowles, R.T. Boyd, and E. Fehr (eds), Moral Sentiments and Material Interests: The Foundations of Cooperation in Economic Life (2005), at 253;
133. Fehr and Falk, 'Psychological Foundations of Incentives', 46 European Econ Rev (2002) 687;
134. Frey and Jegen, 'Motivation Crowding Theory', 15 J Econ Survey (2001) 589.
135. Bradley, Goldsmith, and Moore, Sosa, Customary International Law, and the Continuing Relevance of Erie', 120 Harvard L Rev (2007) 869, 900.
136. Fehr and Gintis, 'Human Motivation and Social Cooperation: Experimental and Analytical Foundations', 33 Annual Rev Sociology (2007) 43;
137. Fehr and Fischbacher, 'The Economics of Strong Reciprocity', in Gintis et al., supra note 84, at 151, 172, 176.
138. Henrich et al., 'Costly Punishment Across Human Societies', 312 Science (2006) 1767;
139. Fehr and Fischbacher, 'Third-party Punishment and Social Norms', 25 Evolution of Human Behaviour (2004) 63.
140. Notably, the micro-processes of acculturation turn on identification between similar actors. Identification between actors can also influence how likely and how heavily penalties will be initiated by strong reciprocators to promote social norms. Acting as third parties, strong reciprocators are generally biased toward members of their own group: see, e.g., Bernhard, Fischbacher, and Fehr, 'Parochial Altruism in Humans', 442 Nature (2006) 912. It is thus important whether the strong reciprocator identifies with perpetrators, victims, or both. Those factors should also inform institutional design strategies.
141. Herrmann, Thöni, and Gaechter, 'Antisocial Punishment Across Societies', 319 Science (2008) 1362;
142. Gintis, 'Punishment and Cooperation', 319 Science (2008) 1345.
143. McCammon, Muse, Newman, and Terrell, 'Movement Framing and Discursive Opportunity Structures: The Political Successes of the U.S. Women's Jury Movements', 72 Am Sociological Rev (2007) 725;
144. Gamson and Meyer, 'Framing Political Opportunity', supra note 40, at 275;
145. McAdam, 'Culture and Social Movements', in E. Laraña, H. Johnston, and J.R. Gusfield (eds), New Social Movements: From Ideology to Identity (1994), at 36.
146. McCammon et al., supra note 89, at 732 (explaining that overarching cultural models, upon which framing is based, may be newly emergent and impermanent).
147. Cf. Frank and McEneaney, 'The Individualization of Society and the Liberalization of State Policies on Same-sex Sexual Relations, 1984-1995', 77 Social Forces (1999) 911 (describing shifts in 'cultural opportunity structure' due to global institutionalization of human rights norms; and local social movements successfully framing their agendas in accordance with those shifts).