Efficient Breach

central to this discussion on the possible application of a liability rule and the relevance of substitutes to breaches of international human rights law, therefore, is the question as to whether a liability rule results in a Pareto efficient allocation of rights. A state’s decision not to strive for the provision of high levels of protection across all areas of human rights, but to pick and choose the rights that it can provide for, must fulfil Pareto efficiency. So while the size of the youth demographic might be larger, the gains made by the higher level of protection of the human rights afforded to the older generation should equal or outweigh those losses.

This analysis of the relevance of a liability rule and substitutes to human rights law has shown its application would pose both normative and theoretical challenges. States would be permitted to breach their treaty obligations if, in doing so, they pay compensation to the parties whom they have harmed. That compensation has been analogised as a substitute human right, and whereby its provision ensures that the state’s overall level of protection remains stable. We follow this approach further in a chapter 8 by investigating how other forms of compensation might be paid in human rights contexts.

terminating or withdrawing from the treaty unless: (a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and (b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty.

2. A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty: (a) if the treaty establishes a boundary; or (b) if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.

3. If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty.³²⁵

On the general level of international law, therefore, efficient breach is alluded to but is severely restricted, as states must be able to justify their termination using carefully framed restrictions.

In analogising the link between efficient and human rights law, we rely upon some important assumptions. Firstly, we assume there is a treaty body in place that can adjudicate on the form and extent of compensation transferrable to the promisee. Secondly, assuming a treaty body has been established, we assume that it has jurisdiction to adjudicate on the issue at hand (i.e. has the state accepted the adjudicator’s jurisdiction to monitor compliance or to receive petitions, such as by ratifying an optional protocol). Thirdly, we assume that the treaty body can correctly calculate the level of compensation that will make promisees indifferent between breach and performance.³²⁶ In practice, all of these assumptions might not hold. In addition, situations might sometimes arise in the domestic setting which alter the cost function of aligning domestic and international law. When these occur, it might be efficient for the state to breach its treaty commitments. We assume that these situations arise because of

325 Vienna Convention (n 253) art 62.

326 When dealing with compensation awarded to promisees, we are mainly referring to individuals, rather than the international community. In chapter 8, we go into more detail about the forms of compensation applicable.

unfortunate or fortunate contingencies.³²⁷ Fortunate contingencies make non-performance more profitable: they are situations in which the benefits from not aligning domestic and international law are greater than the gains from doing so.

However, we are chiefly concerned with unfortunate contingencies, which are those situations in which the costs of complying with international human rights law are higher than the benefit of not doing so. When the citizens of the relevant state can be compensated somehow, states might be permitted to not comply and to put their resources to other uses. The costs of complying with a treaty vary by state: some states might find it easier to align their level of human rights protection with international standards, which is likely to be influenced by the political structure of the state, the strength of the legislature, or the ease with which the judiciary applies international standards. States with strong governments willing to align domestic and international standards may attempt to do so, but a concurrent slow and burdened judiciary may stifle that.

Ergo, both the costs of adhering to international law and the necessity to make changes to the domestic political or legal constituency are high. Rather than aligning its domestic law with international law, the state might be allowed to breach and to compensate thereafter. In this case, we do not consider the link between a liability and substitute rights, as that assumes that the equilibrium level of protection remains the same.

Efficient breach, in our application of its domestic relevance to human rights law, instead examines the conditions under which breach will be dealt with in the absence of substitutes. For instance, let us consider a hypothetical right to same-sex marriage. Under the substitutes theory, substitutes (likely imperfect) might include a right to civil marriage or civil partnership. But the substitutability of each relevant right will depend on the demand individuals place on each right as well as the costs of introducing that right. While a state might be committed to a hypothetical treaty providing for marriage for all, the value placed by certain domestic constituents on the right not being provided for might be higher than the value placed by other domestic constituents on the right being provided for. The costs of adhering to treaties covering subject matters that are not well established in the international human rights discourse will be a

327 Cooter and Ulen, Law and Economics (n 57), 238-245.

function of the extent to which domestic constituents oppose such a right. ³²⁸ Such constituents increase the cost of compliance because they might increase domestic instability. In such circumstances, breaching treaty obligations might be efficient if it quells domestic instability in such a way that this alleviates the likely costs that would be incurred by promisees if breach were not to take place and if the domestic instability were to result in greater violations of individuals’ rights.

Efficient breach therefore has a very close connection with certain provisions of international human rights law that permit breach in certain circumstances, and which are generally termed ‘limitations’ or ‘restrictions’. Thus, for example, the ICESCR mandates that

The states parties to the present Covenant recognise that, in the enjoyment of those rights provided by the state in conformity with the present Covenant, the state may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting general welfare in a democratic society.³²⁹

Equally, a very similar provision can be found in, among others, the American Convention on Human Rights.³³⁰ We can compare the references to restricting rights in both treaties with the provision in the African Charter on Human and Peoples’ Rights which suggests that ’the rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest’.³³¹ So while the ICESCR provision makes reference to democratic principles in the scope of permissible restrictions that would allow efficient breach, the African Charter is more ambiguous about how those restrictions will be judged. If restrictions are to be used solely so as to indicate the limits of rights, then a more ambiguous framing will afford greater leeway to                                                                                                                

328 It is likely to be cheaper to violate a right that is not well established in human rights law than it is to violate a well-established right, as there will less moral outrage and fewer potential complainants.

329 ICESCR, art 4.

330 ‘The rights of each person are limited by the rights of others, by the security of all, and by the just demands of the general welfare, in a democratic society’, American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123 (American Charter) art 32(2).

331 African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58 (African Charter) art 27(2).

judges in human rights courts to determine the boundaries of those restrictions ex post (i.e. to determine when efficient breach is permissible). In that way, the members of the African Commission on Human and Peoples’ Rights are freer to determine whether a breach of an inalienable rights could have been justifiable under given circumstance than, in our example, members of the Committee on Economic, Social and Cultural Rights.³³²

To restrict judicial or quasi-judicial bodies from exercising authority to make judgments about when it might be permissible to violate inalienability rules, provisions exist to constrain that authority. States are therefore both afforded latitude to breach and judicial and quasi-judicial bodies are granted freedom to make findings of breach, but both are constrained in their ability to do so; one such example of this restriction on using an international treaty to justify breach of one right over another can be seen in the ICCPR, which states that

nothing in the present Convention may be interpreted as implying for any state, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms recognised herein or at their limitation to a greater extent than is provided for in the present Covenant.³³³

But on top of clauses that limit ex post broad interpretations by states or narrow gap filling by judicial or quasi-judicial bodies on a general level, many human rights articles contain specific terms that restrict the ability of states to allow breaches of inalienable rights; these are often drafted using the terms ‘public health’, ‘public morals’, ‘public safety’, ‘public order’, ‘in a democratic society’,

‘national security’, and ‘rights and freedoms of others’.³³⁴ If these provisions are too restrictive, it could be conceivable than inefficiencies will result if states are required to adhere to treaty obligations when it might be more efficient to breach.

For those ICCPR rights for which limitations might be permissible, however, those limitations are expected to fulfil strict requirements, such that they must ‘be interpreted strictly and in favor of the rights at issue’, they must be ‘interpreted                                                                                                                

332 Noting, of course, that, at present, the Committee has no authority to receive complaints and accordingly such a situation would not arise in practice.

333 ICCPR, art 5.

334 United Nations, Economic and Social Council, Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, UN Doc.

E/CN.4/1984/4, Annex (1985).

in the light and context of the particular right concerned’, and they should not be

‘applied in an arbitrary manner’.³³⁵ These restrictions are framed so as to limit states expropriating inalienable entitlements.

In practice, a number of judgements of the various regional bodies implicitly allude to concepts related to efficient breach. In a case examining restrictions on freedom of expression and the right’s protection in the American Convention on Human Rights, the Inter-American Court found that

limitations must meet certain requirements of form, which depend upon the manner in which they are expressed. They must also meet certain substantive conditions, which depend upon the legitimacy of the ends that such restrictions are designed to accomplish.³³⁶

By referencing ‘ends’, we can make a connection between the flexibility of such restrictions and the conditions under which efficient breach comes about. If states consider that the ‘ends’ of breaching will result in welfare maximisation overall, given the permutations inherent in that assessment,³³⁷ then breach could be justified. In facilitating flexibility in relation to restrictions, the African Charter is particularly liberal. Article 6 mandates that freedom should not be deprived

‘except for reasons and conditions previously laid down by law’, and Article 8, in relation to freedom of religion and conscience, dictates that ‘no-one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms’. Such ‘clawback clauses’,³³⁸ enable states to limit rights through domestic legislation and therefore afford states more free rein to breach their obligations. While an argument can be made that these provisions are efficient under certain circumstances, states might not always apply domestic legislation in light of whether it fulfils the efficient breach criterion. The efficiency of the Charter’s provisions is therefore dependent on a state’s commitment to democracy. In Africa, where democratic principles did not fully develop in the

335 ibid.

336 Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion 5, Inter-American Court of Human Rights Series A No 5 (13 November 1985), point 37.

337 These will relate to the heterogeneity of the state’s citizens, the different values citizens place on the right at issue, and, among other things, the externalities (good and bad) that will stem from a restriction.

338 Sandhiya Singh, ‘The Impact of Clawback Clauses on Human and Peoples’ Rights’ [2009] 18(4) African Security Review 95.

second part of the twentieth century,³³⁹ we could predict that assigning interpretation to states would increase the likelihood of inefficient breach.

However, such provision have been qualified by the African Commission on the basis that

To allow national law to have precedent over the international law of the Charter would defeat the purpose of the rights and freedoms enshrined in the Charter. International human rights standards must always prevail over contradictory national law. Any limitation on the rights of the Charter must be in conformity with the provisions of the Charter.³⁴⁰

Essentially, restrictions on rights must be ‘legally established, non-discriminatory, proportional, compatible with the nature of the rights and designed to further the general welfare’.³⁴¹ In this way, the Commission has outlined the criteria under which restrictions are permitted and, by extension, clarified the parameters with which efficient breach should fall. But whereas a restrictive framework for allowing efficient breach might lead to inefficiencies if states cannot breach when it might be inefficient, they are not as restrictive as the absolute protection afforded to non-derogable rights such as freedom from torture,³⁴² and which alludes to the debate about whether such rights might be sometimes breachable.³⁴³ Non-derogability is assumed to be appropriate for those rights valued most highly by the international community, the breaching of which are assumed to cause grave externalities.³⁴⁴ Considering efficient breach in                                                                                                                

339 For example, between the early 1950s and 2000 there were 85 coup d’ états in African states.

340 Media Rights Agenda and Others v. Nigeria, AHRLR 200, African Commission on Human and Peoples’ Rights (October 1998), point 66.

341 Icelandic Human Rights Centre, ‘Alteration of Human Rights Treaty Obligations’

<http://www.humanrights.is/the-human-rights-project/humanrightscasesandmaterials/humanrightsconceptsideasandfora/theconceptsofhuman rightsanintroduction/alterationofhumanrightstreatyobligations/> accessed 15 August 2013.

342 ICCPR art 4; ECHR art 3; UNCAT art 2; for a detailed analysis of the latter treaty, see Manfred Nowak and Elizabeth McArthur, The United Nations Convention Against Torture: A Commentary (1^st edn, Oxford University Press 2008).

343 The most prominent proponent of this view is Alan Derschowitz, see Alan M Derschowitz,

‘Want to Torture? Get A Warrant’ The San Francisco Chronicle (22 January 2002)

<http://www.sfgate.com/opinion/openforum/article/Want-to-torture-Get-a-warrant-2880547.php> accessed 15 November 2010.

344 Despite this point, commentary on non-derogable rights has not entirely ruled out the possibility that they might also be subject to a hierarchical ranking. See, for example, the

these contexts runs into greater difficulties than considering efficient breach in the case of human rights more generally. Whereas efficient breach might be welfare maximising in certain circumstances, this is assumed not to be the case with non-derogable rights.

The concept of efficient breach therefore presents an interesting case study in the application of law and economics to international human rights law.

Evidently, a connection can be made between the two issues. When situations arise such that the cost of complying is higher than the benefit of not complying, we have argued that breach will be efficient. However, the divergence in the treaties between the conditions under which restrictions and limitations – which we have analogised as legal terms for efficient breach – are permitted, means that findings of efficient breach are likely to vary according to the treaty in relation to which a breach has been alleged. A closer alignment of these provisions across treaties would aid states in understanding, ex ante, the requirements that must be met for efficient breach to exist.