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The Will and the Way: How State Capacity and Willingness Jointly Affect Human Rights Improvement

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Abstract

When should we expect compliance with international human rights norms? Previous literature on the causal mechanisms underlying compliance have focused independently on the roles of state willingness, thought of as the preferences of the regime leadership, and on state capacity, in improving human rights practices within a state. We build an argument that neither of these factors are sufficient on their own to improve compliance with human rights norms. Instead, improved human rights practices require both “the will and the way.” Our central hypothesis is that capacities and willingness, acting jointly, are key determinants of improvements in compliance with international human rights norms. The paper confirms this proposition using two-staged and single-stage regression models and a time-series cross-sectional approach at the country-year level. A highly capable bureaucracy and a state that has signaled its willingness through the acceptance of individual complaint and inquiry procedures in the UN treaty regime are jointly necessary for improved human rights practices.

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Notes

  1. See also Hill (2010) and Fariss (2014) for evidence of positive and unconditional relationships between some human rights treaties and human rights compliance.

  2. We understand compliance as the respect of human rights norms in practice. For example, a state complies with international human rights norms when it abstains from torturing, executing or disappearing people; or when it follows due process or impedes violence against women. Compliance, of course, is not a matter of all or nothing, but of degrees. Compliance is sometimes understood as the implementation of the decisions of international human rights organs and bodies. For example, the implementation of the specific remedies established in a ruling of the Inter-American Court of Human Rights. But we consider that it is important to differentiate between implementation of decisions and compliance with norms. Implementing a decision implies putting in practice concrete decisions of international human rights organs and bodies. Of course, the implementation of these decisions is expected to contribute to compliance (most likely in the mid to long terms), but it is not equivalent to it. A country can implement an international court’s decision regarding a specific case of enforced disappearance, but still perpetrate enforced disappearances. Implementation of decisions is more specific, whereas compliance implies a broader and consistent long-term abidance to human rights norms (cf. Huneeus 2011 and Hillebrecht 2012).

  3. In a case study on judicial decisions in the Democratic Republic of Congo, Lake (2014: 515) found the opposite—that is, that limited statehood has “created openings” for transnational actors to have a direct or indirect impact on the delivery of public goods (such as the administration of justice) which has resulted in “surprisingly progressive human rights outcomes”. For a normative argument on the human rights obligations of non-state actors in areas of limited statehood, see Jacob et al. 2012.

  4. As a robustness test, we also ran all models with the CIRI Human Rights Dataset physical integrity rights index. These results generally reinforce our findings using the Fariss (2014) measure and are available in our online appendix.

  5. These nine core human rights treaties are the (1) Covenant on Civil and Political Rights (CCPR), the (2) Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the (3) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the (4) Convention on the Elimination of All Forms of Racial Discrimination (CERD), the (5) Convention on the Rights of Persons with Disabilities (CRPD), the (6) Convention for the Protection of All Persons from Enforced Disappearance (CPED), the (7) Covenant on Economic, Social, and Cultural Rights (CESCR), the (8) Convention on the Rights of the Child (CRC), and (9) the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW). Our focus on these nine treaties as the core of the UN human rights treaty system reflects the classification of the UN Office of the High Commissioner of Human Rights. See http://www.ohchr.org/EN/Issues/Indicators/Pages/HRIndicatorsIndex.aspx

  6. Information was gathered in late 2017 and early 2018 from the UN Office of the High Commissioner for Human Rights website entitled “State of Ratification Interactive Dashboard” (https://indicators.ohchr.org/). We used the underlying data Excel files that are found on the dashboard website.

  7. We also ran models where we restricted our focus to only the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), and the Convention for the Protection of All Persons from Enforced Disappearance (CPED), as these three treaties could be argued to most closely related to our dependent variable. These results were also largely consistent with the results shown here and are available by request. Although this is an important robustness test, we argue that our expanded focus on all nine core human rights treaties is better in line with our central concept of willingness. In addition, many human rights treaties that are not focused exclusively on physical integrity rights still outline physical integrity rights in their provisions.

  8. http://indicators.ohchr.org/

  9. To our knowledge, the inter-state procedure has been used three times and in the framework of only one treaty body, the Committee on the Elimination of Racial Discrimination (CERD). In March 2018, Qatar submitted two communications, one against the Kingdom of Saudi Arabia and the other one against the United Arab Emirates; and in April 2018, the State of Palestine submitted a communication against Israel. The CERD Committee is currently processing the three communications. As of the end of 2020, it has adopted favorable decisions regarding its jurisdiction on the three communications and also it adopted decisions on admissibility regarding the two communications submitted by Qatar. To our knowledge, the CERD Committee has not made a decision on admissibility yet on the communication by Palestine. Based on its rare usage and the newness of these three communications, which are still being processed, the inter-state procedure is not included in our analysis. See https://www.ohchr.org/EN/HRBodies/CERD/Pages/InterstateCommunications.aspx and http://www.ohchr.org/EN/HRBodies/TBPetitions/Pages/HRTBPetitions.aspx

  10. Models with additional controls for civil society participation, human rights INGOs, and aid from states and intergovernmental organizations are included in our online appendix. Our main findings continue to hold.

  11. Our main results do not hold when we include both fixed effects on country and fixed effects on year (two-way fixed effects). In general, we think a fixed effects approach is unwise for our analysis for a number of reasons. First, as Wooldridge (2012) discusses, fixed effects do not allow for the inclusion of covariates that do not vary over time, a worrisome concern for many of the instruments used in Cole (2012). Second, we are theoretically interested in how our key variables of interest influence human rights practices on average across countries, as opposed to how our key variables affect changes in particular countries, which would be a better justification for the use of fixed effects. Further, tests of autocorrelation show that there is serial correlation in the model. We feel the inclusion of a lagged dependent variable is much more important than running a fixed effects model and, as Nickell (1981) points out, the inclusion of fixed effects and a lagged dependent variable lead to potential bias in a sample with a relatively short timeframe.

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Authors and Affiliations

  1. Department of Social, Political and Legal Studies, ITESO, Universidad Jesuita de Guadalajara, Tlaquepaque, Jalisco, Mexico

    Alejandro Anaya-Muñoz

  2. Department of International Affairs, University of Georgia, Athens, GA, USA

    Amanda Murdie

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  1. Alejandro Anaya-Muñoz
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Correspondence to Alejandro Anaya-Muñoz or Amanda Murdie.

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Anaya-Muñoz, A., Murdie, A. The Will and the Way: How State Capacity and Willingness Jointly Affect Human Rights Improvement. Hum Rights Rev 23, 127–154 (2022). https://doi.org/10.1007/s12142-021-00636-y

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