Article Specificity

state non-interference; however, as discussed, the politicised nature of many negative rights can result in ‘audience costs’²³⁹ for states parties that protect such rights. Accordingly, it is difficult for treaty drafters to predict the likely consequences of framing a right as positive or negative, as state heterogeneity and the treaty’s subject matter will strongly influence how either a negative or a positive framing will be received.

states. By contrast, complying with more broadly drafted provisions is more easily achievable. But while treaty drafters might wish to draft a treaty as specifically worded as possible, doing so is assumed to result in fewer ratifications under the normative goal of universal ratification as there is a disincentivising effect of specifically worded treaty articles. Drafting committees, aware of the effects of detail on state ratification decisions, must decide to what extent the treaties are detailed.

Based on our challenge to the traditional normative goal, we conceive of two scenarios: treaty drafter either structure treaties so as to achieve the challenged normative goal of universal ratification or they structure treaties with effectiveness in mind. This assumes, also, that heterogeneity of preferences between treaty drafters exists, which may contradict the actual reality of the composition of drafting committees: it may rather be that all drafters share the same preference of universal ratification. If we assume, nonetheless, that drafter preferences differ, we are able to distinguish between different stages of drafting.

At the first stage, drafters face negotiation costs: some parties to the negotiation – those that are most eager to draft treaties with clear and strict human rights pronouncements – are likely to drive a hard bargain, while other parties – those that are more concerned with achieving universal ratification – will seek more vague treaties if they recognise that specificity deters ratification. This game, in which the drafting committee bargains over how to write and structure the treaty, takes time. Each party takes strategic positions pursuant to its own outlook, thereby delaying potential negotiation. Article specificity will also be influential on the issue of whether a dispute settlement mechanism will established, and whether the body charged with monitoring state adherence has the freedom to interpret treaty articles as they wish.

In elaborating upon the approach to be taken in deciding the level of article detail, we apply the concept from the economics of contract law whereby contracts are left with gaps when the transaction costs of filling those gaps outweigh the ex post costs of allocating loss by the likelihood of loss.²⁴¹ Importantly for the present project, this approach has been extended to international law, with Trachtman suggesting that sometimes treaties may be left vague.²⁴² Treaty specificity is therefore a function of the likelihood the treaty will                                                                                                                

241 Cooter and Ulen, Law and Economics (n 57), 181.

242 Trachtman, The Economic Structure of International Law (n 2), 49.

be breached coupled with the costs of determining the loss of that breach, which is the cost of establishing the difference between the treaty’s requirements and the state’s legal standards. In applying this to human rights treaties, this suggests that when there is a strong possibility that states will breach their treaty obligations, and when loss from breach is acute (i.e. if breaching results in significant externalities), rights should be framed specifically. By contrast, gaps may be left in treaties when filling those gaps during the drafting stage involves higher costs than the costs that might materialise if the treaty is breached ex post.

When treaty drafters expect that it will be difficult to agree on an article’s specificity, and when they anticipate that it will be cheaper for treaty bodies to determine breach at a lower cost in the future, it is more efficient to leave the treaty vague. To many human rights scholars this may seem anathema; they might conjecture that specifically worded articles should never be sacrificed.

However, if it is cheaper for treaty bodies to interpret treaty articles than it is for the drafting committee to fully clarify the meaning of such articles at the time the treaty is being drafted, then our law and economics approach mandates that framers should leave treaties vague.

This assumes, however, that a treaty body is in place in order to make determinations as to treaty violations, and also that it has authority to receive complaints.²⁴³ In most instances relating to human rights treaties, dispute settlement mechanisms are not established alongside the treaty itself, despite some treaties calling for their establishment.²⁴⁴ Instead, dispute settlement mechanisms are generally formed pursuant to optional protocols to the initial treaty, although it is never known whether or when those optional protocols will actually be drafted in pursuant periods.²⁴⁵ This leads to a situation where treaty drafters are in limbo with regard to the extent of the provisions in the initial treaties. Not knowing whether and when a dispute settlement body will be in place to adjudicate on treaty issues ex post affects treaty drafters’ decision sets.

243 Treaty bodies are limited, under the periodic review system, in their ability to fill gaps in treaties because they engage with states only at specific periodicities.

244 Not all treaties call for the establishment of complaints mechanisms but most include provisions for the establishment of monitoring bodies. See CRPD (n 16) art 34 and CRC (n 22) art 43.

245 Although the creation of an individual complaints mechanism alongside the treaty itself can be seen in at least one case: International Convention on the Elimination of All Forms of Racial Discrimination (adopted 21 December 1965, entered into force 4 January 1969) 660 UNTS 195, art 14.

Instead of being able to opt for either more or less detail, the balance is tilted toward treaties with more detail, as it will be unclear whether gaps will be filled in future periods. This increases the costs of treaty drafting and lowers the likely treaty ratification levels. By having treaty drafting and optional protocol drafting as two separate games, an inefficiency results: treaties are drafted with greater detail when it might have been more efficient to leave gaps in the treaty.

In putting this in practical terms, we consider a hypothetical treaty in relation to the right to food, which is outlined in international treaties²⁴⁶ and has been discussed by the Special Rapporteur, who stated that:

The right to food is the right to have regular, permanent and unrestricted access, either directly or by means of financial purchases, to quantitatively and qualitatively adequate and sufficient food corresponding to the cultural traditions of the people to which the consumer belongs, and which ensures a physical and mental, individual and collective, fulfilling and dignified life free of fear.²⁴⁷

We simply this analysis in order to present a better picture of out discussion, and instead suggest that treaty drafters must decide between the right to food, F, and the right to nutrition, N, with these rights being subject to the obligation that they be respected, protected, and fulfilled.²⁴⁸ When respect is the issue we assume that the right is akin to a negative, such that respect refers to the state allowing access to the right, whether that is food or nutrition. Respecting the right to food (F-) is analogised as not interfering with access to food and this is assumed to be more costly for states than is non-interference with access to nutrition (N-):

𝐶(𝑇_!!)≥ 𝐶(𝑇_!!)²⁴⁹

246 ICESCR art 11.1 (as part of the right to an adequate standard of living), art 11.2 (framed as a right to be free from hunger).

247 UNHCR ‘Report of the Special Rapporteur on the Right to Food’ (16 March 2006) UN Doc E/CN.4/2006/44, 4.

248 Committee on Economic, Social and Cultural Rights, ‘General Comment No. 12: The Right to Adequate Food (Art. 11)’ UN Doc E/C.12/1999/6.

249 The cost of ratifying a treaty with an obligation to not interfere with the right to food is greater or equal to the cost of ratifying a treaty with an obligation to not interfere with the right to nutrition.

where C(T) refers to the cost of ratifying a treaty that includes the relevant right.

As food is a broader definition, we assume that it is more likely that a state’s domestic actions might infringe a population’s access to food. A treaty that includes a right that solely requires the respecting of the right to food would be therefore more costly than one mandating the respecting of a right to nutrition.

However, when positive obligations are brought into the equation, the situation changes. Protection and fulfilment of treaty obligations is assumed to impose positive obligations on states.²⁵⁰ If a state must act proactively, the right to nutrition will be more costly than the right to food because more resources will be required in relation to ensuring the former rights is guaranteed than would be the case regarding the latter right. If protecting and fulfilling suggests that a state must ensure individuals have food (T++) or nutrition (N++), we assume providing for the right to nutrition is more costly than providing for the right to food:

𝐶(𝑇_!!!) ≥𝐶(𝑇_!!!)

Once these positive and negative factors are included in the treaty article, the ultimate right, 𝑇_{!!!  !  (!!)} or 𝑇_{!!!  !  (!!)}, whether it is the right to food or the right to nutrition, will be a composite of the obligations to respect, protect, and fulfil. On this basis, we assume that the inclusion of the right to nutrition will increase the marginal costs of ratification more than the inclusion of the right to food:

𝐶′(𝑅 𝑇_! ) >𝐶′(𝑅 𝑇_! )

This is rooted in the assumption that having to provide for the right to nutrition brings about greater costs than having to provide for the right to food. Ergo, article specificity can matter to the cost of ratifying a treaty.

To extend the analysis further, however, we now consider a situation in which drafters may choose between a human right guaranteeing freedom from hunger, H, a right guaranteeing freedom from malnutrition, M, and a right guaranteeing                                                                                                                

250 Lorenzo Cotula and Margaret Vidar (FAO Legal Office), ‘The Right to Adequate Food in Emergencies’ FAO Legislative Study (2002), 27-37.

freedom from starvation, S. Framing a right using the terminology ‘freedom from’ in relation to matters related to food is assumed to confer obligations on states.

Firstly, we assume that hunger relates to a lack of basic foodstuffs, meaning that hunger is a function of food, such that

𝐻 𝐹  𝑤ℎ𝑒𝑟𝑒  𝐹 ∈[0,1]

secondly, we assume that malnutrition does not necessarily stem from a lack of food, although it may, but rather stems from a poor unbalanced diet, such that

𝑀 𝑁  𝑤ℎ𝑒𝑟𝑒  𝑁 ∈[0,1]

and thirdly, we assume that starvation is a function of both a lack of food and a lack of nutrition.

𝑆 𝐹+𝑁  𝑤ℎ𝑒𝑟𝑒  𝐹,𝑁 ∈[0,1]

As from the preceding analysis, we make the same assumption that, on balancing the obligations to respect, protect, and fulfil, the overall obligation on states will be positive. In this light, the costs of providing for these rights increase as the right provided for moves from freedom from hunger to freedom from malnutrition to freedom from starvation.

𝐶(𝑇_!!)> 𝐶(𝑇_!!) >𝐶(𝑇_!!)

We assume that states are required to ensure that these rights are fully provided for, meaning that resources will be required to be spent when infringement of the rights becomes more pronounced. Ergo, a state will have to expend more resources to prevent starvation than it will have to expend to prevent hunger or malnutrition. Treaty drafters should consider this in their decision set. The inclusion of the more specific right (i.e. the right to nutrition or the right to be free from starvation) will increase ratification and compliance costs, and therefore ratification is lower when rights are framed more specifically.

In situations in which the drafting committee is facing high transaction costs, we would expect less specificity and the determining of specificity to be allocated to the treaty body ex post. When costs are low and when deterrence from greater specificity is low, we assume the right will be framed in greater detail.

Resultantly, the specificity of the human rights enshrined in the treaty is a function of the costs of bargaining for more specificity at the drafting stage plus the costs more specificity places on potential ratifying states (through deterring ratification) minus the costs of adjudicating on the relevant right ex post (as adjudication over specifically worded articles will be easier).

However, unless drafters know that a treaty body will be present ex post then they will be more inclined to draft articles more specifically. This suggests that treaties and treaty bodies should be created at the same time, as drafters are then in a position to choose the most efficient means of framing the treaty’s articles.

They would be afforded the freedom to draft the articles either vaguely or specifically and can leave gap-filling to treaty bodies where appropriate.

In reality, though, this is not the case: optional protocols creating adjudicatory bodies are often drafted later. This could stem from a belief that to indicate during the drafting of the treaty that an adjudicatory body will be formed at a later stage might deter states from ratifying the treaty. Equally, though, establishing treaty bodies and dispute settlement mechanisms in later periods can also enable treaties to be written at a cheaper cost. Further, if rights are less specifically worded, states may be more likely to ratify, since they might under-calculate the costs of dispute settlement gap-filling.

If this analysis holds, then the traditional approach has followed an inefficient path. Treaties with less specifically worded treaty articles but with a dispute settlement bodies in place that can determine specificity at a cheaper cost ex post may experience a higher level of ratification than traditionally constituted treaties. This is assumed to stem from the state’s assessment of the treaty and its calculation of the costs and benefits of ratifying the treaty. States compare their provision of human rights against the extent of the human rights standards enshrined in the treaty. When rights are specific, and when states provide similar rights, they will ratify the treaty, irrespective of the existence of a dispute settlement mechanism. Given the linearity between the state’s provision of human rights and the expectations of the treaty, the presence of an adjudicatory body becomes irrelevant.

When, however, a state’s provision of human rights does not meet with the expectations of the treaty, the specificity of the rights matter. More specifically framed rights may deter ratification because the reputational benefits of ratifying the treaty are more muted than if a division between the state’s and the treaty’s rights were not so evident. This is contrasted with the case of treaties with less specifically framed rights, which are assumed to see greater ratification from states with a substandard provision of human rights.

In this analysis, we assumethat vague treaties come with treaty bodies or dispute settlement bodies because treaty drafters were unable to agree upon specificity and so they elected to leave the specificity to ex post adjudication, while the treaties that specifically outline human rights in great detail do not form adjudicatory bodies contemporaneously.

Consequently, we might contend that states with poor human rights standards might be deterred from ratifying the more vague treaties, given the adjudicator’s existence. However, the central assertion is that such states might ratify those treaties to gain a reputational benefit but will fail to fully internalize the costs of ex post regulation. This they do because although they are aware that their own human rights provisions are substandard, they measure substandard in relation to the phrasing of the human rights in the treaty. In reality, they should be measuring substandard in relation to what the treaty drafters would have agreed upon had there been no transaction costs during the drafting stage.

Therefore, by leaving treaties vague drafters push states with substandard human rights provisions toward using the treaty as the fulcrum around which those states measure substandard. These states thereby carry out a skewed cost benefit analysis and ratify treaties with vague human rights provisions but with ex post adjudication present. Vagueness coupled with an adjudicatory body may therefore induce ratification by states with poor human rights standards, as these states cannot determine the optimal standard.

Table 3: Design Payoffs

Treaty Design State Motivations

Vague articles with adjudicator Incentivise good & bad

Specific articles with adjudicator Highly incentivise good, deter bad Vague articles without adjudicator Incentivise bad, somewhat good Specific articles without adjudicator Incentivise good, deter bad

This analysis points to some interesting policy conclusions. For instance, if we are eager to achieve ratification from states with poor human rights standards, and if the transaction costs of negotiating treaty terms more specifically are high, then we should draft treaties with ‘gaps’ and leave the gap-filling to ex post adjudication.

It is important to stress that this approach is general and stylised. We assume that the normative goal of treaty drafters is to achieve universal ratification, rather than accepting that there might be an efficient number of states parties, as was proposed above. Presently, the focus has been on how to achieve ratification from states with poor standards, whereas we previously focused on achieving ratification from states with good standards. In both cases, however, more vaguely drafted treaties should be subject to higher levels of ratification, as the states will fail to internalize the future costs of the gap-filling by the (simultaneously-created) adjudicatory body, focusing instead on the gains from ratifying a treaty at all. All of this points in one direction: if universal ratification of human rights treaties is the normative goal and if drafters find it difficult to draft a treaty with specific rights, then ex post adjudicators should be allocated the role of determining optimal human rights standards.

III. Flexibility Tools

The cost of ratifying a human rights treaty is assumed to be influenced by the extent to which states can mitigate the strength of those treaties, which is chiefly facilitated by the Vienna Convention’s reservations provision, which defines a reservation as

a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.²⁵¹

251 Vienna Convention on the Law of Treaties (23 May 1969) 1155 UNTS 331 (Vienna Convention) art 2(1)(d); for the procedure for making a reservation to a particular treaty, including what is permissible and what is not permissible, see arts 19 – 23.

In this respect, while treaty drafters are at the mercy of the Convention to an extent, we nonetheless consider ‘flexibility tools’²⁵² both as a treaty design feature and for the manner in which they can affect state motivations in relation to treaty ratification.