Regulating Human Rights: International Organizations, Flexible Standards, and International Refugee Law

AbstractTable of ContentsI. Introduction 455II. Literature Review 458III. The Case of International Refugee Law 461A. The Malleable Definition of "Refugee" in International Law 462B. The Administrative and Regulatory Roles of the U.N. Refugee Agency.. 464IV. Case Study: The Post-2003 Iraqi Refugee Crisis 467A. The Beginning of the Iraqi Refugee Crisis 467B. Flexible Interpretation of International Law Succeeds in Improving Rights Outcomes 470C. Silence on the Iraqi Plight: 2003-2006 472D. Policy Shifts in the U.S 474E. Change in UNHCR's Legal Strategy 475F. Change in U.S. Policy Enhances Agency Efforts 476G. UNHCR's Regulations Enable Alignment of State Interests 477H. The Effects of International Regulation 480V. Applications 483A. Positive Implications of Human Rights Regulation by International Agencies 483B. How Other International Agencies Can Regulate Human Rights 486VI. Limitations and Potential Drawbacks of Human Rights Regulation By International Agencies 488VII. Conclusion 491`I. IntroductionThe "bad actor problem," or the puzzle of how to get known human rights violators to improve their practices, is central to human rights scholarship and policy-making.1 A great deal of international legal scholarship has focused on understanding why states commit to international human rights law, and the processes by which they may come to comply with it.2 Much of this literature implicitly assumes that promoting commitment to the rules expressed in multilateral human rights treaties is a good way to get countries to improve their human rights records. While essentially all empirical studies have concluded that the human rights records of repressive regimes have not improved as a result of their signing human rights treaties,3 human rights supporters continue to devote significant effort to pushing these countries to commit to, and eventually comply with, such multilateral instruments.This article suggests that, under certain conditions, an international organization can regulate, monitor, and implement human rights protections in a way that may induce even bad actors to improve their human rights practices. By serving as an intermediary to coordinate state interests and interpreting international human rights law flexibly, international organizations have the potential to improve human rights outcomes. My argument will focus on the case of the U.N. Refugee Agency's implementation of international refugee law during the post-2003 Iraqi refugee crisis. In this context, I explain how insistence on compliance with the strictures of international human rights law may sometimes have the effect of harming human rights, while flexible interpretation can improve them. I will also discuss how my analysis may apply to other international organizations that have assumed responsibility for protecting human rights, particularly in states known as "bad actors."This article contributes to our understanding of the growing role of international administrative agencies, which has been under-studied in international legal scholarship.4 As Andrew Guzman notes, legal scholars have generally ignored the role of the soft law of international organizations.5 Some scholarship has discussed organizations that monitor the major instruments of international human rights law, such as the Committee Against Torture and the U.N. Commission on Human Rights, and has repeatedly dismissed them as ineffective.6 Literature on treaty flexibility mechanisms largely does not focus on the workings of multi-lateral international agencies that have far more extensive missions and functions.7 The U.N. Refugee Agency (also known as the Office of the United Nations High Commissioner for Refugees, or UNHCR) and other international agencies perform as regulators of human rights, not just as mere monitors. They do so by promulgating interpretive regulations, monitoring international human rights law on the ground through a network of hundreds of country field offices, and providing valuable humanitarian services. …