A European Perspective
Edited by Alberta Fabbricotti
Chapter 16: Political Economy and the Protection of Human Rights: Political Economy and Compliance with Human Rights Treaties
AbstractThis Chapter tends to analyse the feasibility of a Political Economy (hereinafter PE) approach to a study of compliance with Human Rights treaties (hereinafter HR treaties). It considers the applicability of the principal theories of compliance with international law (hereinafter IL) specifically to international HR treaty-based obligations. This Chapter then considers the opportunities and shortcomings of applying the PE approach to the analysis of compliance with HR treaties. It concludes by arguing that there are limits to interdisciplinary studies of IL and of this particular subject matter in particular. While acknowledging some potential merits of a PE approach to the study of IL, this Chapter, however, argues that the model presented in the introductory Chapter of this Volume is not illustrative of any particular pattern with regard to compliance with HR treaties for several reasons: (i) not all the preconditions of the model have a significant effect on the compliance with HR treaties (e.g., while information and international law lobbies may contribute to such compliance, they have no decisive effect on a decision to comply with a particular treaty, whereas reciprocity is deemed not to have any – even though these factors may contribute to occasional compliance in a particular case, they do not constitute a compliance trigger as a rule); (ii) as any other social science model, this model fails to take into account the complexity of the international legal order and of the system of HR treaties in particular (appealing to (1) the importance of the content of HR treaty-norms – protection of fundamental humane values – in addition to the traditional normative value; and (2) differences between HR treaties in terms of substantive and procedural norms, specific protected values, monitoring and compliance bodies and mechanisms, suggesting the inappropriateness of any empirical survey of all HR treaties together); (iii) failure to comprise the nature of compliance with international HR treaties and distinguish between compliance with (1) procedural obligations, (2) substantive obligations, or (3) with the spirit of the treaty; (iv) failure to comprise the possibility of State action (including compliance behavior) in pursuit of the collective interest of humanity; (v) failure to take into account the continuously evolving and socializing nature of the international community and the effect of globalization processes on domestic decision-making. The conclusion reached in this Chapter is that while there are certain areas of IL that may benefit from economic and political science analysis, this tendency shall not be generalized to law’s every dimension. The PE approach seems to be a great intellectual exercise, which may identify certain legal problems, but it is unlikely to generate a comprehensive solution to the fundamental problems of law (domestic or international) and in particular of HR law. International PE and the PE approach may sometimes supplement legal scholarship (or legal reasoning), but may not be a substitute for traditional doctrinal normative analysis of law, and human rights treaty law is an illustrative example of that.
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