The Role of Power

need to appease external donors¹²¹ are just two examples of immediate issues that may affect a state’s preference in the short term, such that it chooses to ratify a particular treaty. If the state were to take long-term issues into account, perhaps an alternative policy may have been chosen. The state’s inability to account for its future preferences is set aside when one applies rationalist assumptions. Its bounded rationality, possibly influenced by the realities of politics and international relations, entail that it might pursue policies that are harmful in the long term.

By applying rationalism to state decisions, this dissertation brings with it the intellectual baggage associated with all applications of rationalism in social scientific analysis. To that end, we simplify our analysis significantly, and assume that states are capable of consciously assessing the consequences of their actions and pursuing the policies that best result in overall gains. In doing so, immediate issues may influence them to a greater extent than less tangible issues.

In applying these assumptions to states it is necessary to frame them within the context of the established IR theories. Accordingly, we are concerned with investigating how power, domestic contexts, non-state actors, and institutions all influence the decision of states to ratify treaties and to comply with treaty bodies.

This is done so as to make links between the various IR theories and to assist the contextualising of rational choice arguments within those established theories.

human rights treaties as it implies that the international community is subservient to the interests of powerful states. Indeed, the extent to which powerful states constitute ‘the international community’ itself, rather than being constituents of that community would also be instrumental, from a realist perspective, to the emergence of human rights treaties. Realism’s focus on coerciveness would suggest that greater and less concentration of power in a number of states would result in less and greater leeway for each state to pursue its own decision to ratify a human rights treaty or comply with its obligations. In this way, we can see that its explanatory power is limited by its rather simplistic assertion that power can be influential and according to which ‘treaty ratification is simply cheap talk’.¹²⁴ If states alter their human rights practices following ratification of a treaty, such that they elect to comply, and if that conflicts with the interests of powerful states, then we could reasonably conclude that power has been usurped.

On a practical level, if human rights treaties exist because they satisfy the interests of powerful states, then it should be possible to explain the emergence of treaties since World War Two as having occurred alongside the granting of independence to former colonial states in Africa during the middle part of the twentieth century.¹²⁵ The theory would argue that treaties emerged because they fitted the interests of the key international powers in light of the growing number of states existing on the world stage and in light of the on-going Cold War. From this reading, their emergence would be explained by a desire by the dominant powers – in this case the US and its European allies – to outline to new and emerging states the human rights standards that the international community expected these state to strive for. In a world in which the preferences of the dominant powers differed so drastically, however, such an analysis ignores the interests of the USSR; realism’s contention that treaties emerge because they add to a powerful state’s stock fails to explain how a treaty might emerge despite hegemonic states having competing heterogeneous preferences. However, if the                                                                                                                

124 Hathaway, ‘Do Human Rights Treaties Make a Difference?’ (n 23), 1987

125 By this, we mean that powerful states would have had to take account of the changing global dynamics that were emerging on account of decolonization. For interesting accounts of this process, see Berch Berberoglu, The National Question: Nationalism, Ethnic Conflict, and Self-Determination in the Twentieth Century (1^st edn, Temple University Press 1995); Samuel P Huntington, The Third Wave: Democratization in the Late Twentieth Century (1^st edn, University of Oklahoma Press 1993).

competing hegemonies are both able to benefit from a treaty’s emergence – one benefitting because emergence suits its desire to be a party to the treaty and another benefitting because emergence suits its preference of not being a party to the treaty – then realism is a rather intuitive approach. A treaty will emerge irrespective of whether one powerful state does not want to be party to that treaty; in fact, the treaty may very well emerge because of a powerful state’s apathy for the treaty. The apathetic hegemony may be able – just as with the treaty-advocating state – to coerce other states to join it in its apathy. In this way, there is nothing to preclude us viewing treaties as the outcome of what might appear contrasting preferences and power struggles.

Such emphasis on the power of the state has led to the development of theories that share certain characteristics with realism but that are more cautious in the level of focus they give to powerful states: chief among these is neorealism, which suggests that compliance with human rights treaties is merely coincidental and that it occurs because states are assumed to ‘act primarily in pursuit of their self-interest’.¹²⁶ Little or no emphasis is given to the power of international law to change behaviour, with any changes to behaviour the result of the rational calculations of states existing in an anarchic world;¹²⁷ if states are committed to human rights, and if their human rights standards fit those outlined in the relevant treaty, this is either the result of the interaction between less powerful and more powerful states or of coincidences of interest.¹²⁸

In situations in which state-to-state interaction plays a role in state decisions, regional integration or disassociation is assumed to be influential: decisions made on the international setting invariably have power-implications for a state’s regional and international stock. States might be accordingly viewed, in line with classical realism, as being motivated by geopolitical interests.¹²⁹ As states exist in a setting in which they must often closely interact – and cooperate – with neighbouring states, the influence of geopolitics is entirely conceivable. An                                                                                                                

126 Hathaway, ‘Do Human Rights Treaties Make a Difference?’ (n 23), 1938.

127 This relationship between power and anarchy is analysed in Alexander Wendt, ‘Anarchy Is What States Make of It: The Social Construction of Power Politics’ [1992] 46(2) International Organization 391.

128 Goldsmith and Posner, A Theory of Customary International Law (n 19), 1115.

129 For critical assessments of such arguments, see Peter Toft, ‘John J Mearsheimer: An Offensive Realist between Geopolitics and Power’ [2005] 8 Journal of International Relations and Development 381; Phil Kelly, ‘A Critique of Critical Geopolitics’ [2006] 11(1) Geopolitics 24.

apparent trend in ratification in a particular region could be rooted in a ratification consensus among the states of that region. Equally, a paucity of ratifications in a particular region might indicate a regional consensus not to ratify. In these contexts, geopolitics can either act as a constraint on the state’s ratification decision or it may hasten the state’s ratification decision. Equally, the converse might be true, such that states might ratify in order to influence the ratification decisions of other states. In each of these scenarios, the state is acting rationally given the circumstances, and reflects the state’s responses to the

‘shifting distribution of power among states’.¹³⁰ This neorealist perspective emphasises a hierarchical structure and suggests that it is powerful states that essentially determine the rules of the ratification game, as well as whether treaties or institutions exist.¹³¹ This is not to say that the less powerful states cannot achieve their self-interested goals, but rather that achieving those goals may be dependent on the interests of powerful states. If such states desire that a human rights treaty emerges, we would expect this to occur. Power, therefore, in its purest form, can both facilitate and stifle self-interest. What matters is on which side of the power divide a particular state falls.