Section I Theoretical Background
Chapter 2: Understanding States
C. The Role of NGOs
character and may be able to take advantage of the standards outlined in the treaty when making claims against the state for its poor human rights standards.
We can therefore see that while a state’s legal character is an importance factor in a treaty’s incorporation into domestic law, other features of a state’s domestic legal character can also be pivotal in the influence a treaty has domestically. To ignore the domestic context, both in relation to democratic principles and the nature of the state’s legal system would exclude from our analysis a variable that is assumed to affect state decisions regarding international engagement significantly. But by recognising – and possibly including – this factor in the analysis, we are moving away from the state as a ‘black box’. A state that has unitary preferences is a state that is not subject to the influences of other entities.
In this light, taking a rational choice approach and acknowledging domestic influences requires the kind of careful probing applied above. Domestic factors can play a role, we argue, but that role will be subsumed into a state’s cost-benefit analysis. This preserves the character of the state as a unitary act while also recognising the undeniable contribution of domestic issues in international affairs.
of NGOs because it is intrinsic to each state, rather than existing, as those other influences do, on a transnational level. A state’s power is inherent to its character and manifests itself on a horizontal level such that states interact with other states in a to-and-fro manner and express their power in this way.155 This is evidently distinct from the way in which ‘norm entrepreneurs’,156 stakeholders that attempt to mobilise collective action relating to a norm, attempt to spread norms throughout the world: rather than spreading horizontally through state-state interaction, or vertically through engagement with the state, transnational NGOs exist laterally to these dynamics by being able to utilise poor human rights standards in one state to petition governments in other states to both recognise those poor standards and to improve their own provision of human rights.157 As non-state actors have a status that is not formal or institutional like that of states, they must influence state decisions without exercising significant power, and must instead takes a softer approach, affording states the leeway to make their own judgements while simultaneously putting pressure on states to consider the inter-state effects of those decisions.
While the ideational reading of the spreading of norms is far less cynical of the possible success of an international movement calling for greater respect for human rights, it has certainly not been without its critics.158 The accusation that idealism ‘overemphasizes the role of social structures and norms at the expense of the agents who help create and change them in the first place’159 puts it in direct
hindering, through repression, NGOs. See, for example: Mark Neocleous, Administering Civil Society: Toward a Theory of State Power (1st edn, Palgrave Macmillan 1996).
155 States can also exercise power vertically, through the suppression of interest groups that are a threat to a state’s hegemony.
156 There are a number of nuanced interpretations of this meaning. See: Cass R Sunstein, ‘Social Norms and Social Roles’ [1996] 96 Columbia Law Review 903; Ryan Goodman and Derek Jinks,
‘How to Influence States: Socialization and International Human Rights Law’ [2004] 54 Duke law Journal 621; Ethan A Nadelmann, ‘Global Prohibition Regimes: The Evolution of Norms in International Society’ [1990] 44 International Organization 479.
157 Thomas Risse, ‘The Power of Norms versus the Norms of Power: Transnational Civil Society and Human Rights’ in Ann M Florini (ed), The Third Force: The Rise of Transnational Civil Society (1st edn, Carnegie Endowment 2000); Anne Peters, Non-State Actors as Standard Setters (1st end, Cambridge University Press 2009).
158 Jack Goldsmith and Steven D Krasner, ‘The Limits of Idealism’ [2003] 132(1) Daedalus 47.
159 Jeffrey T Checkel, ‘Review: The Constructivist Turn in International Relations Theory’ [1998]
50(2) World Politics 324, 325.
conflict with state-centric models, including rational choice, and suggests that it fails to sufficiently account for the importance of state power. Nevertheless, recent changes in the nature of international engagement and the speed with which norm can be spread – such as through online campaigns160 – can be used to justify the approach’s merit. The greater ability of transnational actors to engage with one another, to disseminate literature, and to update one another about human rights standards in other regions assists the argument that social movements must be recognised as being influential in the emergence of a global human rights discourse.
That notwithstanding, we must be careful not to apply a counter-factual analysis to the development of treaties by assuming that the falling cost of communication may have aided global recognition of human rights norms.
Indeed, the historical existence of such barriers to communication remained in place – since time immemorial – until relatively recently.161 Any contention that idealism may have been a pivotal force in the development of human rights norms must take account of these issues. The ease with which norms can spread – both organically and as part of a structured campaign by transnational actors – is a direct function of the cost of spreading those norms.162 Lower costs of spreading information are assumed to be found in economically developed states, owing to greater access to information technology.163 Equally, it may be that
160 An interesting study of the relationship between NGOs, norms, and information technology can be found in Hyunjin Seo, Ji Young Kim, Sung-Un Yang, ‘Global Activism and New Media: A Study of Transnational NGOs’ Online Public Relations’ [2009] 35(2) Public Relations Review 123;
but information and its costs can also be analysed from a power-centric perspective, as applied in Robert O Keohane and Joseph S Nye Jr, ‘Power and Interdependence in the Information Age’
[1998] 77(5) Foreign Affairs 81.
161 In a long-term sense, the pace of change of falling communication was remarkably slow over the centuries. See, for an overview of economic history and the role of communication and information costs, Gregory Clark, A Farewell to Alms (1st edn, Princeton University Press 2007), 305-309.
162 For an overview of the costs of reporting human rights related problems, see Jamie Frederic Metzel, ‘Information Technology and Human Rights’ [1996] 18(4) Human Rights Quarterly 705.
163 This can be broadly termed the ‘global digital divide’ and relates to the inequality existing between states in terms of access to information technology. See Mauro F Guillen and Sandra L Suarez, ‘Explaining the Global Digital Divide: Economic, Political, and Sociological Drivers of Cross-National Internet Use’ [2005] 84(2) Social Forces 681.
economically developed states are also likely to be more democratic.164 In addition, the commitment these countries show to democracy – such that domestic NGOs are not repressed165 – might be assumed to indicate that norms will spread from wealthier and more democratic states to poorer and less democratic states. The relationship between democracy and a strong NGO sector has been shown to be correlated with better human rights standards,166 with this finding acting as evidence ‘in favor of liberal theories and the theory of transnational human rights advocacy networks’.167 But these findings do not establish the nature of the causality. While ideational arguments emphasising the importance of non-state actors implicitly make reference – owing to the means by which non-state actors interact – to the value democratic states place on human rights principles, it may be this valuation of the importance of those principles that aids the spreading of norms, rather the existence of non-state actors themselves. Without the facilitation of democratic states committed to these principles, and without the greater ease of communication that comes with democratic – and perhaps wealthier – states, norms cannot spread.
This slights the role of non-state actors, as it apportions the credit for the emergence of human rights norms to states. This is not to say that constructivist arguments fail to explain the evolution of treaties in any way; rather, the approach’s failings lie in the difficulty in distinguishing the influence of non-state actors from the role played by state power and state institutions in facilitating that influence. If we cannot remove NGO-influence from the shadow of democratic states, we cannot measure their impact alone.
164 It has been argued that ‘[…] democracy is related to the state of economic development. The more well-to-do a nation, the greater the chances that it will sustain democracy’, Seymour Martin Lipset, ‘Some Social Requisites of Democracy: Economic Development and Political Legitimacy’
[1959] 53(1) American Political Science Review 53, 75.
165 For an overview of the relationship between these entities, see Claire Mercer, ‘NGOs, Civil Society, and Democratization: A Critical Review of the Literature’ [2002] 2(1) Progress in Development Studies 5.
166 Hafner-Burton and Tsutsui, ‘Human Rights in a Globalizing World: The Paradox of Empty Promises’ (n 46), 1390.
167 Neumayer ‘Do International Human Rights Treaties Improve Respect for Human Rights?’ (n 84), 950.