Section I Theoretical Background
Chapter 1: Methodological Considerations
B. The Externalities of Human Rights
This dissertation assumes that the human rights standards that exist in each state result in externalities for the international community and, by definition, the states that comprise that community. Externalities form a central focus of traditional law and economics research, in which they are defined as the consequences that pertain for other actors from a first actor’s actions and whereby those consequences can be both positive and negative.57
The relevance of this theory to international law is the assumption that international treaties attempt to encourage states to take account of the externalities they impose on other states. The most pressing example is the
56 Andrew Moravcsik, ‘The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe’, [2000] 54(2) International Organization 217; Andrew Moravcsik, 'Explaining International Human Rights Regimes: Liberal Theory and Western Europe' [1995] 1(2) European Journal of International Relations 157; Peter Leuprecht, ‘Innovations in the European System of Human Rights Protection: Is Enlargement Compatible with Reinforcement?’ [1998] 8 Transnational Law & Contemporary Problems 313.
57 Robert Cooter and Thomas Ulen, Law and Economics (3rd edn, Addison Wesley Longman 2000), 151.
problem of environmental damage, whereby international attempts at curbing climate change are viewed as measures aimed at deterring states from imposing the externality of pollution on one another.58 In effect, they are contractual agreement governing pollution. In relation to human rights matter, we assume that bad human rights standards result in such externalities as refugee flows, 59 moral outrage, 60 and higher humanitarian or intervention costs for the international community. 61 In practice, the UN Charter alludes to issues of social concern having an international character in Article 55, where it states that:
With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote:
a. higher standards of living, full employment, and conditions of economic and social progress and development;
b. solutions of international economic, social, health, and related problems;
and international cultural and educational cooperation; and
c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.62
58 The literature detailing pollution as an externality and how best to resolve public goods problems is vast; some useful overviews are PK Rao, International Environmental Law and Economics (1st edn, Wiley Blackwell 2001); Grant K Hauer, ‘International Pollution Externalities:
Public Bads with Multiple Jurisdictions’ (PhD thesis, University of Minnesota 1997); Mathew J Kotchen, ‘Voluntary Provision of Public Goods for Bads: A Theory of Environmental Offsets’
[2009] 119 The Economic Journal 537.
59 Pae JoonBeom, ‘Sovereignty, Power, and Human Rights Treaties: An Economic Analysis’, [2006]
5(1) Northwestern Journal of International Human Rights Law (2006) 71, 72.
60 I assume that being morally offended by the actions of a state can be read as a cost because the international community has to direct its attention to that particular issue, and is thereby distracted from focusing on other issues, assuming a limited ability to deal with all the problems facing the world.
61 Eric Neumayer, ‘A New Moral Hazard? Military Intervention, Peacekeeping and Ratification of the International Criminal Court’ [2009] 46(5) Journal of Peace Research 659.
62 United Nations, Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI (UN Charter) art 55.
In addition, Article 56 then goes on to further establish these principles by effectively codifying erga omnes, when it states that ‘All Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55’.63 In this way, the Charter implicitly makes references to matters that might be termed externalities and obliges states to take account of these issues when making domestic decisions and when engaging on the international level.
We assume that the establishment of international human rights treaties can be viewed from two perspectives. Firstly, treaty formation could be analogised as a way of codifying this principle and that a successfully functioning international human rights system can result in fewer externalities for other states and the international community. This takes a regulatory perspective. Secondly, we could analogise treaties as agreements relating to human rights protection and with a goal of fewer externalities. This takes a contractual perspective. Given that states parties to such treaties commit to providing their citizens with a treaty-mandated level of human rights protection, and, assuming those commitments are genuine, we would anticipate fewer externalities among states parties. Thus, for example, fewer refugees will leave states that fail to adhere to their treaty obligations and move to states that don’t violate those obligations or to refugee camps or internally displaced persons camps.64 Fleeing a state with poor human standards is assumed to be a rational response on the part of individuals, with refugees having left states in which repression was rife for centuries.65 It is difficult, however, to separate refugee flows in peacetime from refugee flows in wartime.
Generally speaking, refugees are more likely to be found leaving states with bad human rights standards and engaged in conflict, rather than from states with bad standards but which are otherwise peaceful. Nonetheless, while individuals will
63 ibid, art 56.
64 As at the end of 2012, UNHCR claimed to be dealing with 35.8 million ‘persons of concern’, with 17.7 million of these internally-displaced person and 10.5 million of these refugees; see UNHCR
‘Displacement: The 21st Century: UNHCR Global Trends 2012’ (19 June 2013).
65 When Spain controlled The Spanish Netherlands, ‘there was large scale migration from Flanders and Brabant to the new republic. […] The refugees included a large proportion of the merchant class and bankers of the Southern Netherlands (though some of the latter went to Germany). They brought capital, skills and international contacts. Virtually all of the Jewish population moved to the North.’ Angus Maddison, The World Economy: A Millennial Perspective (Development Studies Centre OECD 2001), 79.
naturally flee conflicts, which are governed by humanitarian law,66 this should not preclude the assumption that pure human rights violations can result in individuals fleeing peaceful states. Contrariwise, if states adhere to their legal obligations, such that human rights standards are upheld and citizens can claim these rights on the domestic setting, then there should be no need for individuals to flee their home state as refugees.67 In this way, the establishment of international treaties, all things held equal, should result in reduced refugees flows. Equally, though, we should also recognise that refugee flows can also bring positive externalities: refugees can often contribute more to their host state than the costs they impose.68
In addition, the externalities of moral outrage among the states and an assumed movement toward an interventionist policy on the basis of a state’s poor human rights standards has been subject to significant academic debate.69 Intervention can take many forms: military intervention, peacekeeping missions, the establishment of refugee camps, or it might take more indirect policies, such as campaigns urging the respective states to improve their institutional weaknesses and respect for human rights principles. As a larger proportion of states recognises the value of good human rights standards, and as more states commit to their obligations, there will be an assumed lower likelihood that the
66 An excellent overview of the issues pertaining to refugees and humanitarian law can be found in Mélanie Jacques, Armed Conflict and Displacement: The Protection of Refugees and Displaced Persons under International Humanitarian Law (1st edn, Cambridge University Press 2012).
67 Individuals may continue to leave their home states for reasons other than poor human rights standards. Economics factors are widely regarded as exerting a significant contributing influence on refugee flows. For an overview of general migratory trends in recent times, see Stephen Castles and Mark J Miller, The Age of Migration: International Population Movements in the Modern World (1st edn, Guildford Press 2009).
68 Many examples exist in this respect, but the most pertinent is the emigration of established Jewish artists, scientists, and academics from Europe before World War II, when human rights for Jews became very restricted. This led to significant benefits to (chiefly) American society in a range of different areas of its social make-up. See, on a more general level, Karen Jacobsen, 'Can Refugees Benefit the State? Refugee Resources and African Statebuilding' [2002] 40(4) Journal of Modern Africa Studies 577.
69 Jonathan Moore (ed), Hard Choices: Moral Dilemmas in Humanitarian Intervention (1st edn, Rowman
& Littlefield 1998); JL Holzgrefe and Robert O Keohane (eds), Humanitarian Intervention: Ethical, Legal and Political Dilemmas (1st edn, Cambridge University Press 2003); Anne Orford, Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law (1st edn, Cambridge University Press 2003).
international community will have to intervene, often at significant cost,70 in the internal affairs of states with poor domestic human rights standards.
In both the case of negative and positive externalities, we cannot determine their level and effect. Despite that, this dissertation utilises their assumed existence as a cornerstone of its analysis. This transfer of an analogy from the domestic context to the international context proceeds despite externalities on the domestic context, such as pollution, being more tangible than externalities stemming from the absence or existence of international human rights law. Nonetheless, framing poor human rights standards and rights violations around the concept of externalities enables us to more easily understand the justification for international law as a regulatory response to rights violations.