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ABSTRACT
Institutional complexity has enjoyed growing attention in the literature on international regimes. However, the concept has not found wide application in the field of human rights research. This article argues that institutional complexity is an important aspect of the international human rights regime, in particular because it may affect the compliance record, impact and effectiveness of international human rights commitments that states enter into. This article analyses the evolution of the prohibition of torture within the Inter-American Human Rights System through the lens of institutional complexity. It proposes that institutional complexity can be captured by two indicators: states’ subscription to human rights treaties and their decision density on human rights. Detailed descriptive statistics show the evolution of recommendations, decisions and judgments issued by the judicial and quasi-judicial institutions that operate under the system, and the share of treaty ratifications in the region between 1980 and 2012. The analysis corroborates the theory that the Inter-American Human Rights System has evolved in the direction of greater institutional complexity. This analysis is complemented by an overview of the historical evolution of the institutions created by the regime, with a focus on developments of the Inter-American Commission of Human Rights’ mandate over the years.
Acknowledgements
Earlier versions of this article were presented at the APSA Annual Meeting 2015 and a workshop of the Inter-American Human Rights Network, at University College London, in 2015. We wish to thank the participants at these events and especially Sandra Borda, Par Engstrom, Mark Gibney, Courtney Hillebrecht, and Beth Simmons for their helpful comments.
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes on contributors
Cristiane Lucena Carneiro holds a PhD in Politics from New York University. She is an Assistant Professor at the International Relations Institute, University of São Paulo, and has experience in the areas of compliance, regime design, the World Trade Organization and human rights. Her current research investigates the impact of institutional complexity on compliance with international legal commitments, with a particular focus on the Inter-American Human Rights regime.
Simone Wegmann is a PhD student at the Department of Political Science and International Relations, University of Geneva, Switzerland. Her research interests include parliaments, political attitudes, transitions and consolidation of democracy, and human rights institutions and compliance with human rights.
Notes
1. Oona A. Hathaway, ‘Do Human Rights Treaties Make a Difference?’, Yale Law Journal 111 (2002): 1938.
2. Beth A. Simmons, Mobilising for Human Rights: International Law in Domestic Politics (New York: Cambridge University Press, 2009).
3. Hathaway, ‘Do Human Rights Treaties Make a Difference?’, 1951.
4. See for example Han S. Park, ‘Correlates of Human Rights: Global Tendencies’, Human Rights Quarterly 9 (1987); Neil J. Mitchell and James M. McCormick, ‘Economic and Political Explanations of Human Rights Violations’, World Politics 40 (1988); Conway W. Henderson, ‘Conditions Affecting the Use of Political Repression’, Journal of Conflict Resolution 35 (1991); Steven C. Poe and C. Neal Tate, ‘Repression of Human Rights to Personal integrity in the 1980s: A Global Analysis’, American Political Science Review 88 (1994); Steven C. Poe, C. Neal Tate, and Linda Camp Keith, ‘Repression of the Human Right to Personal Integrity Revisited: A Global Cross-National Study Covering the Years 1976-1993’, International Studies Quarterly 43 (1999).
5. Linda Camp Keith, ‘The United Nations International Covenant on Civil and Political Rights: Does it Make a Difference in Human Rights Behavior’, Journal of Peace Research 36 (1999).
6. Todd Landman, Protecting Human Rights: A Comparative Study (Georgetown University Press, 2005); Eric Neumayer, ‘Do International Human Rights Treaties Improve Respect for Human Rights?’, Journal of Conflict Resolution 49 (2005); Simmons, Mobilising for Human Rights; Daniel W. Hill, ‘Estimating the Effects of Human Rights Treaties on State Behavior’, The Journal of Politics 72 (2010); Wade M. Cole, ‘Human Rights as Myth and Ceremony? Reevaluating the Effectiveness of Human Rights Treaties, 1981–2007’, American Journal of Sociology 117 (2012).
7. Hathaway, ‘Do Human Rights Treaties Make a Difference?’; Eric Neumayer, ‘Do International Human Rights Treaties Improve Respect for Human Rights?’
8. Camp Keith, ‘The United Nations International Covenant on Civil and Political Rights’; Emilie Hafner-Burton and Kiyoteru Tsutsui, ‘Human Rights in a Globalising World: The Paradox of Empty Promises’, American Journal of Sociology 110 (2005).
9. Simmons, Mobilising for Human Rights; Emilie Hafner-Burton and Kiyoteru Tsutsui, ‘Justice Lost! The Failure of International Human Rights Law to Matter Where Needed Most’, Journal of Peace Research 44 (2007).
10. Simon Hug and Simone Wegmann, ‘Complying with Human Rights’, International Interaction 42 (2016).
11. See for example Karen J. Alter and Sophie Meunier, ‘The Politics of International Regime Complexity’, Perspective on Politics 7 (2009).
12. See Alter and Meunier, ‘The Politics of International Regime Complexity’.
13. Kenneth W. Abbott and Duncan Snidal, ‘Strengthening International Regulation Through Transnational New Governance: Overcoming the Orchestration Deficit’, Vanderbilt Journal of Transnational Law 42 (2009): 501.
14. Frank Biermann, Philipp Pattbert, and Harro van Asselt, ‘The Fragmentation of Global Governance Architectures: A Framework for Analysis’, Global Environmental Politics 9 (2009): 14.
15. Tom Pegram, ‘Governing Relationships: The New Architecture in Global Human Rights Governance’, Millennium Journal of International Studies 43 (2015): 618.
16. David Victor and Kal Raustiala, ‘The Regime Complex for Plant Genetic Resources’, International Organisation 32 (2004): 147.
17. Michael Zürn and Benjamin Faude, ‘On Fragmentation, Differentiation, and Coordination’, Global Environmental Politics 13 (2013): 119.
18. Ibid.; Alexander Betts, ‘Regime Complexity and International Organisations: UNHCR as a Challenged Institution’, Global Governance 19 (2013): 69.
19. Pegram, ‘Governing Relationships’, 636–7.
20. Betts, ‘Regime Complexity and International Organisations’, 76–7.
21. Laura Gómez-Mera, ‘Regime Complexity and Global Governance: The Case of Trafficking in Persons’, European Journal of International Relations, first published on 24 September 2015 as doi:10.1177/1354066115600226.
22. This claim is not unproblematic in the literature. As our main objective in this article is to propose two dimensions of institutional complexity that are amenable to operationalisation, we do not pursue the problematic question of whether more complexity brings about higher levels of efficiency, effectiveness or compliance. To that end, orderly designed institutions are merely arrangements wherein competences and mandates are: (1) hierarchically established; and (2) mutually respected most of the time.
23. Alter and Meunier, ‘The Politics of International Regime Complexity’, 13.
24. We chose to leave the ‘nesting’ aspect of institutional complexity outside of our analysis, because it does not feature as prominently in the IAHRS as ‘overlap’ and ‘parallelism’ do.
25. Ibid.; Alter and Meunier, ‘The Politics of International Regime Complexity’, 15.
26. Hathaway, ‘Do Human Rights Treaties Make a Difference?’, 1935; David J. Lektzian and Christopher M. Sprecher, ‘Sanctions, Signals, and Militarised Conflict’, American Journal of Political Science 51 (2007); Simmons, Mobilising for Human Rights.
27. See for example David Hollyer and Peter Rosendorff, ‘Why Do Authoritarian Regimes Sign the Convention Against Torture? Signaling, Domestic Politics and Non-Compliance’, Quarterly Journal of Political Science 6 (2011).
28. Alter and Meunier, ‘The Politics of International Regime Complexity’, 14. With respect to the relationship between institutional complexity and compliance, the authors advise that the associations brought to light by contributors to the special issue do not point in the same direction: sometimes complexity helps compliance, but at other times, complexity hinders it.
29. Jack Donnelly, Universal Human Rights in Theory and Practice (Ithaca, NY: Cornell University Press, (2003), at 206.
30. Jonas Tallberg, ‘Paths to Compliance: Enforcement, Management, and the European Union’, International Organisation 56 (2002): 632.
31. Donnelly, Universal Human Rights in Theory and Practice, at 127–9.
32. Ibid., at 127–9.
33. Alter and Meunier, ‘The Politics of International Regime Complexity’, at 13.
34. See also Par Engstrom and Andrew Hurrell, ‘Why the Human Rights Regime in the Americas Matters’, in Human Rights Regimes in the Americas, ed. Monica Serrano and Vesselin Popovski (Tokyo, New York, Paris: United Nations University Press, 2010).
35. Farer, ‘The Rise of the Inter-American Human Rights Regime’. The 1967 Protocol of Buenos Aires grants the commission the right to receive individual petitions and the right to initiate investigations.
36. Farer, ‘The Rise of the Inter-American Human Rights Regime’, at 527.
37. Thomas Buergenthal, ‘New Upload – Remembering the Early Years of the Inter-American Court of Human Rights’, New York University Journal of International Law and Politics 37 (2005): 259.
38. Farer, ‘The Rise of the Inter-American Human Rights Regime’, at 543. By the end of the 1980s, the commission had shifted back to individual cases – with the task of building a ‘body of doctrine interpreting the American Declaration and the Inter-American Convention on Human Rights’. This coincides with a growing trend towards democratisation in the region.
39. Courtney Hillebrecht, ‘The Domestic Mechanisms of Compliance with International Human Rights Law: Case Studies from the Inter-American Human Rights System’, Human Rights Quarterly 34 (2012): 959. Patterns of compliance with the different aspects of any given judgment by the court have become the subject of a growing literature, which now emphasises the different levels of compliance associated with each type of judicial award. Along the same lines, the domestic engines of compliance received a thorough analysis in Courtney Hillebrecht, Domestic Politics and International Human Rights Tribunals (Cambridge: Cambridge University Press, 2014).
40. Data come from the website of the UN High Commissioner for Human Rights (Treaty Body Database) and from the website of the University of Minnesota Human Rights Library, respectively: http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en; http://www1.umn.edu/humanrts/iachr/series_C.html
41. From 1976 on and as early as in 1977 and 1978 for Ecuador, and 1979 for Chile, countries in the region were involved in conversations with the HRC related to their Country Reports. See ‘Compilación de Observaciones Finales del Comité de Derechos Humanos sobre Países de América Latina y el Caribe, 1977–2004’, United Nations Office of the High Commissioner for Human Rights, http://www.ohchr.org/Documents/HRBodies/CCPR/HRC-Compilacion1977-2004_sp.pdf
42. Robert Goldman, ‘History and Action: The Inter-American Human Rights System and the Role of the Inter-American Commission on Human Rights’, Human Rights Quarterly 31 (2009).
43. This is in keeping with the fact that the first is a judicial body, whereas the last two are quasi-judicial institutions, whose decisions do not generate legal obligations properly speaking.
44. These years are 1999 (19 decisions and judgments), 2001 (20 decisions and judgments), 2004 (13 decisions and judgments), and 2012 (19 decisions and judgments). No decisions or judgments were issued in 1992, 2006, 2007, 2008, 2009 and 2010.
45. These countries are: Suriname (7 rulings); Chile, Nicaragua, Trinidad and Tobago (5 rulings each); El Salvador (4 rulings); Bolivia and Panama (3 rulings each); Costa Rica, Dominica, Mexico, and Uruguay (2 rulings each), and Haiti (1 ruling).
46. Canada is likely an outlier in the analysis, because an important number of cases challenged the prerogative of the Canadian government to extradite individuals to countries (most commonly the United States), where these individuals had been sentenced to death and were likely to be executed upon their return. Extradition in these circumstances is prohibited by the Second Optional Protocol to the ICCPR, which Canada has ratified.
47. Information on treaty ratification: http://www.oas.org/en/sla/dil/inter_american_treaties.asp and http://indicators.ohchr.org/
48. The figure considers the treaties that correspond to the UN core treaties.
49. These countries are: Cuba, Canada and the United States of America (see in the Appendix).
50. These countries are: Brazil, Costa Rica, Ecuador, Mexico, Panama, Paraguay, Uruguay and Venezuela (see in the Appendix).
51. Until the present day, Costa Rica has not ratified the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW), which became available for ratification in 2003. Variation in the levels of compliance has received growing attention by the literature, with a particular focus on the influence of domestic politics. See Carmela Lutmar, Cristiane L. Carneiro, and Sara McLaughlin Mitchell, ‘Formal Commitments and States’ Interests: Compliance in International Relations’, International Interactions 42 (2016): 559, forthcoming.