A Signaling Theory of Human Rights Compliance

Essay INTRODUCTION For years international law scholarship generally assumed that nations tend to comply with international law.1 As Louis Henkin famously phrased it, "almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time."2 Of course, the truth is that noncompliance is common. Sadly, the assumption of compliance may be farthest from the truth in the realm of international human rights. Despite the dramatic increase in the number of human rights instruments since World War II, noncompliance remains prevalent.3 Recognizing, perhaps, the degree of noncompliance that exists in international law generally, scholars in recent years have begun to focus on what motivates nations to comply with or deviate from international law. Many theories have been advanced to explain compliance. Abram and Antonia Handler Chayes have argued that treaty compliance results largely from a "propensity to comply," which in turn derives from efficiencies achieved by avoiding case-by-case decisionmaking, the fact that treaties are negotiated to reflect the parties' interests, and the norm that treaties create law which states presumptively should obey.5 According to the Chayeses, treaty compliance also derives from the need to maintain one's status within a highly interrelated community of states.6 Addressing compliance with customary international law from a rational choice perspective, Jack Goldsmith and Eric Posner have rejected the notion that nations feel a sense of obligation to obey international law and have treated compliance as an epiphenomenal result of the convergence of a nation's interests with the tenets of that law.7 Defending the influence of international law, Harold Koh has argued that nations comply with international law as a result of repeated participation in transnational legal interactions with state and nonstate actors which leads to internalization of international norms and the formation of national identity around those norms.8 Likewise recognizing the importance of non-state actors, liberal theorists like Ann-Marie Slaughter have focused on the impact that individuals and groups exert on state behaviors through domestic political institutions.9 Still other approaches exist.10 None of these approaches, however, offers a comprehensive description of compliance with international law in general or human rights law in particular. To name some of the more apparent shortcomings, the Chayes's managerial model assumes a tendency to comply rather than explaining compliance.11 Rational choice theory has not provided a comprehensive explanation of why a nation would find it in its self-interest to conform to human rights norms when it is not compelled to do so by domestic influences and is not coerced12 into doing so by other states.13 Transnational legal process theory fails to explain how human rights principles become internalized domestically.14 Finally, liberal theory has been called into question by recent empirical work, finding among other things that "ratification of treaties on the whole, and of regional treaties in particular, often appears to be associated with worse human rights practices than would otherwise be expected" and that "fully democratic nations have worse torture ratings when they ratify the Torture Convention than would otherwise be expected."15 Clearly, no one theory has a corner on the explanation for compliance. In fact, all share a common failing. Each fails to take adequate note of a significant dynamic that affects human rights compliance: signaling.16 This Essay corrects that failing by developing a signaling theory of human rights compliance. Like the theories developed to date, signaling theory does not explain human rights compliance in its entirety. Indeed, it does not purport to do so. Instead, signaling theory supplements the rational choice perspective on compliance,17 helping to explain that puzzling swath of compliance that occurs when a nation neither faces effective domestic pressure nor direct pressure from other states to comply. …