Abstract
The adoption of the United Nations (UN) Charter in 1945 marked the legalization of international human rights. Despite the legalized status of human rights, their violation by states is not uncommon. This article questions why a state might violate international human rights. Analyzing this issue from an economic perspective, this article advances regulatory arbitrage theory to rationalize a state’s violation of human rights. It discusses regulatory arbitrage-type behaviors among state actors that derogate from the obligations to respect, protect, and fulfill human rights. Defending state sovereignty, minimizing regulatory or compliance costs, and prioritizing economic achievement are identified as rational arbitrage actions that circumvent international human rights. We call for competent and credible governance mechanisms that can increase the cost of arbitrage, to disincentivize state violation of international human rights.
Highlights
Violation is not uncommon, despite the legalized status of international human rights (Berween 1999; Schwarz 2004; Hafner-Burton and Tsutsui 2007; Cole 2012; Tapsell 2013; Davies 2014)
We further question: How does a state behave during a probable regulatory arbitrage period that involves violation of human rights? Our thesis suggests that a state arbitrageur would seek to defend its sovereignty, minimize compliance costs imposed by human rights law, and prioritize economic achievement during what we describe as a regulatory arbitrage period that violates human rights
There are several factors that may contribute to human rights violations and regulatory arbitrage is one of them
Summary
Violation is not uncommon, despite the legalized status of international human rights (Berween 1999; Schwarz 2004; Hafner-Burton and Tsutsui 2007; Cole 2012; Tapsell 2013; Davies 2014). We further asked: How does a state behave during the probable regulatory arbitrage period that involves violation of international human rights law?
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