Section II Formalising Treaties
Chapter 5: Creating Institutions
II. Institutional Design
Allocating regulatory authority to an international treaty body is therefore assumed to fulfil the efficiency criterion if national regulation fails.
Essentially, this analysis suggests that there are three possible approaches to structuring regulation of human rights issues. Firstly, regulatory authority can be allocated to the single party that can most easily regulate: this reflects a pre-World War II situation with limited formal international cooperation, but in which hegemonies could assert their comparative advantage in efficient regulation through military intervention. Secondly, regulatory authority can be vested in an international treaty body that asserts its efficiency when regulation fails on the domestic level. Thirdly, we can explain the vesting of regulatory authority in one entity or another through the assumed value each entity places on that authority.
In addition to this, the vesting of regulatory authority in a treaty body may not, in and of itself, correlate with the vesting of regulatory authority in the entity that can most efficiently regulate. A second stage in the analysis is required, such that we must consider the extent to which the treaty body is indeed the most efficient regulator. This will depend on the treaty body’s design and structure, issues that are addressed in the following sections.
perspectives,359 fails to fully satisfy the requirements of legal researchers, who are more concerned with understanding state compliance or non-compliance than examining state-to-state dynamics. The existing literature helps us to better appreciate the political motivations behind various state decisions, while institutionalism facilitates understanding why formal institutions emerge,360 as well as how regulation can be structured.361 Having previously argued that the inclusion of monitoring mechanisms in treaties is likely to deter states with poor standards from ratifying, we extend that approach here by suggesting that particular structures might be received differently by each respective state. If there are diverse structures in many international regulatory institutions, they cannot be explained by coincidence: rather they are assumed to be the outcome of bargaining between – and among – treaty drafters and states.
In addition, the diversity of the various bodies can also be analysed from another perspective: why are they divided along international lines, regional lines, subject-specific lines, and general lines? Why is there an absence of a single international institution tasked with monitoring state compliance in all areas of human rights?362 The absence of such a ‘unified standing treaty body’, as proposed by the High Commissioner for Human Rights, 363 must be explainable on the basis
359 Some influential pieces include Friedrich Kratochwil and John Gerard Ruggie, ‘International organization: a state of the art or an art of the state’ [1986] 40(4) International Organization 753;
Peter J Katzenstein, Robert O Keohane, and Stephen D Krasner, ‘International Organization and the Study of World Politics’ [1998] 52(4) International Organization 645.
360 The emergence of several international and supranational institutions has been subject to extensive analysis by scholars working in institutionalism. This author found a context-specific overview helpful in getting an insight into its practical relevance: Donald J Puchala,
‘Institutionalism, Intergovernmentalism and European Integration: A Review Article’ [1999] 37(2) Journal of Common Market Studies
361 Julia Black, ‘New Institutionalism and Naturalism in Socio-Legal Analysis: Institutionalist Approaches to Regulatory Decision Making’ [1997] 19(1) Law & Policy 51; Fabrizio Gilardi,
‘Institutional change in regulatory policies: regulation through independent agencies and the three new institutionalisms’ in Jacint Jordana and David Levi-Faur, The Politics of Regulation:
Institutions and Regulatory Reforms for the Ages of Governance (1st edn, Edward Elgar 2004).
362 An attempt to answer this question can be found in Geir Ulstein, ‘Do We Need a World Court?’
in Ola Engdahl and Pål Wrange (eds), The Law as it was and the Law as it Should Be (1st edn, Brill 2008); Manfred Nowak, 'The Need for a World Court of Human Rights' [2007] 7(1) Human Rights Law Quarterly 251.
363 United Nations, ‘Concept Paper for the High Commissioner’s Proposal for a Unified Standing Treaty Body’ (22 March 2006) UN Doc. HRI/MC/2006/2.
that its establishment would not be, or have been, Pareto optimal. But if this is the case, then the present situation of disparate bodies should fulfil that criterion.
Despite this, the following analysis suggests that the existence of disparate bodies tasked with monitoring compliance in distinct subjects or in particular regional areas may result in duplication, expertise, efficiency, inefficiency, or myriad other outcomes. With such manifold possible outcomes, it is difficult to both determine which are genuine and to suggest optimal treaty body structures. Further, optimality is also a function of the normative goal of treaty body establishment:
achieving universal ratification might demand that treaty bodies take a hand-off approach, so as to encourage ratification, while achieving an effective treaty system might require treaty bodies to be more investigative in their approaches.
We have dealt with these normative issues previously in relation to the drafting of treaties and consider the issues again here in relation to treaty body structures.
Resolving the issues that plague the disparate system must be understood in light of that system: a single monitoring body existed in 1970, whereas now seven bodies exist.364 This increase occurred both alongside the emergence of many new states (127 states were UN members in 1970 compared with 193 in 2011),365 and alongside the end of the Cold War and the emergence of a heightened global emphasis on liberal democratic principles and peace,366 and greater respect for human rights.367 Under such circumstances, an increasing number of monitoring bodies might be explainable on the basis that the growth in the number of states might broaden the distribution of human rights standards in the world.368 This might have required a higher number of monitoring bodies to facilitate this increased diversity and to accommodate state preferences. States that were capable of adhering to treaty obligations in one area of human rights
364 The most extensive work detailing the developments of – and relating to – the treaty bodies can be found in Anne F Bayefsky (ed), The UN Human Rights Treaty System in the 21st Century (1st edn, Kluwer Law 2001).
365 United Nations, ‘Growth in United Nations Membership, 1945-present’ (internet page) available at <http://www.un.org/en/members/growth.shtml#1970> accessed 23 July 2013.
366 Francis Fukuyama, The End of History (reprint edn, Free Press 2006).
367 This has been quantitatively proved on a general level, see David L Cingranelli and David L Richards, ‘Respect for Human Rights after the End of the Cold War’ [1999] 36(5) Journal of Peace Research 511.
368 We are using distribution in the economic sense, such that we mean that the diversity between the standards in different states might have grown.
law may have been keen on the establishment of treaty bodies in those areas.
Separately, however, the proliferation in the number of these bodies might also be rooted in falling costs of monitoring state adherence, such that technological changes since 1970 may have made monitoring easier.369 Equally, the increase in the number of NGOs in the world is likely to have reduced the cost of resolving information asymmetries between states and the international community.370 Whatever the reason for the increase in the number of disparate treaty bodies, their existence requires analysis. In carrying out that analysis, we largely follow Guzman, whose work on the establishment of international organisations has heavily influenced the present assessment. 371 He suggests that international organisations share four functions.372 Firstly, they provide a space in which states can come together to negotiate and where the previously nefarious concept of the institution grows walls and a roof. Secondly, they perform functions that are visible, positively (mostly) contributing to the world through directed action.
Thirdly, international organizations exist on the international stage in much the same way as many states do. As well as being the outcome of political negotiations, they are also political actors: they take stances in relation to various issues, they release press releases commending agreeable processes, and they criticise opponents.373 This is all activity that states undertake and which international organizations also engage in. Finally, and something which is central to the present topic, international organizations are or can be (quasi-) judicial bodies that resolve dispute and make case law.374
In light of these propositions, we are chiefly interested in the final function of international organisations, and specifically in the ex ante regulatory structures that are assumed to monitor – and influence – compliance. We analogise treaty
369 See, generally, Metzel, ‘Information Technology and Human Rights’ (n 162)
370 See, in which they emphasise the increased importance of NGOs in recent decades, Richard Devetak and Richard Higgott, ‘Justice Unbound? Globalization, States and the Transformation of the Social Bond?’ [1999] 75(3) International Affairs 493.
371 This influence stems from an hour-long presentation Guzman made at the European Association of Law and Economics Annual Conference at the University of Hamburg in September 2011. Available online at <http://lecture2go.uni-hamburg.de/konferenzen/-/k/12603> accessed 05 June 2013.
372 ibid.
373 ibid.
374 ibid.
bodies and periodic review as ex ante regulation on the basis that periodic reporting does not require an alleged violation to have taken place in order for it to function, unlike the case of dispute settlement mechanisms, which require the presence of alleged violations before they can be used. We frame the current situation of disparate treaty bodies around a hypothetical unified standing treaty body,375 which is similar but not identical to the High Commissioner’s proposed model.376 The purpose is to examine the advantages and disadvantages of the current and proposed systems. In doing so, Guzman’s ‘IO Design Studio’
approach,377 according to which there are six design choices open to states when they are creating international organizations, is instructive. These choices reflect a variety of possible approaches, with the different approaches likely to result in different outcomes for the states concerned. Electing for one approach or the other is assumed to have an effect on ratification and compliance. When designing treaty bodies, we expect that treaty drafters will consider the normative goal of the body’s establishment: the difficulty for scholarly analysis is establishing the nature of that normative goal. We previously addressed this hurdle through differentiating between the assumed traditional approach and the economic approach. Universal ratification as a normative goal, we argued, was incompatible with an effective treaty system: heterogeneous state preferences meant that treaties could not achieve both ratification and compliance. States with bad human rights standards would only ratify if it meant they did not have to alter their domestic standards. Through Guzman’s ‘IO Design Studio’, we are again reminded of the conflict between normative goals and practical realities. He suggests that when designing organisations, designers can choose between the following:
1. Action vs policy;
375 Our hypothetical unified standing treaty body is akin to a single treaty body that will monitor adherence to all treaties equally.
376 For some excellent analysis of the treaty body system and the changes (both proposed and realised to how it functions, see Francoise J Hampson, 'An Overview of the Reform of the UN Human Rights Machinery' [2007] 7(1) Human Rights Law Review 7; Gareth Sweeney and Yuri Saito, 'An NGO Assessment of the New Mechanisms of the UN Human Rights Council' [2009]
9(2) Human Rights Law Review 203; Philip Alston and James Crawford (eds), The Future of UN Human Rights Treaty Monitoring (1st end, Cambridge University Press 2000).
377 Guzman, 2011 EALE Lecture, Hamburg (n 371).
2. Narrow vs broad scope;
3. Silence vs speech;
4. Non-binding vs binding rule-making;
5. Low vs high voting requirements;
6. Easy vs hard exit.378
Each design choice is assumed to aid or hinder an institution’s normative goal.
Thus, for example, being able to easily exit a treaty framework (6) – in our case being able to avoid treaty body investigation – is assumed to facilitate universal ratification as states cautious of the body’s power and Equally, if a treaty body can arrive at decisions about a state’s level of adherence easily (5) – such as if the voting requirements are low – then states may be deterred from recognising the authority of the treaty body to monitor its level of compliance.379 These design choices can be analysed relatively easily for their assumed impact on state decisions, on the basis that they can increase or decrease the cost of compliance.
We can largely set them aside them from our analysis as to whether disparate bodies or a unified body might be a more appropriate institutional setting for monitoring state compliance with human rights treaty obligations. Rather, the more relevant design permutations are those governing whether the institution will be vocal and whether its decision are binding, the extent to which its mandate is policy-oriented, and whether the scope of its regulatory authority is narrow or broad. These design features are discussed below.