State Compliance Research Articles

Navigating Human Rights in a ‘Post-Human Rights’ Era

Abstract International human rights law and mechanisms tasked with promoting state compliance with it are being increasingly challenged. Opposition is originating from, amongst others, countries that have historically supported the global human rights project. These new trends and sites of contestation bolster opposition from other countries and regions that have consistently diverged from international human rights norms. Examining the relationship between the United Nations human rights system and states of the Association of Southeast Asian Nations in this broader context of opposition to human rights, this article argues that existing theories on why states do, or ought to, comply with international human rights law are often inadequate to either explain or inspire state adherence to human rights norms. What is required, this article will argue, is not another theory but rather more targeted and incremental efforts to address the gap between rhetoric and compliance.

Giving ‘teeth’ to the African Union towards advancing compliance with data privacy norms

ABSTRACT That international organizations have always played a pivotal role in the development and advancement of data privacy norms is now beyond doubt. With regard to advancing compliance specifically, the role of international organizations cannot be overemphasized. Although data privacy is no longer new to Africa, compliance with data privacy norms has been significantly lower compared to other jurisdictions. A (possible) explanation for this is that the primary regional organization on the continent – the African (AU) – has played an insignificant role in this regard. Related to this explanation is the usual contention that the absence of a settled normative standard is a reason for the low level of compliance. Since there is now a continental data privacy standard in Africa - the AU Data Protection Convention - the question remains why is compliance still low. Therefore, using insights from the normative and institutional theories of state compliance with international norms, the article examines why there is still a low compliance rate. The article then suggests how to strengthen the AU towards advancing compliance with data privacy norms on the continent.

Autonomous Weapons Systems and International Humanitarian Law: Need for Expansion or Not

This paper was written following the advent of Lethal Autonomous Weapons Systems that are weapons capable of autonomy in detection, selection and attacking targets. The paper sought to first examine the area of overlap between such weapons systems and current laws and principles of international humanitarian law. It found the major issue arising from such systems is the risk of disproportionate attacks and challenges of distinction between lawful targets of lethal force, especially in highly context-specific situations. The paper thereafter sought to investigate how states with potential for developing such weapons systems had approached this issue and it selected the United States and the European Union as the two jurisdictions to base its study on. The former was chosen because of its regulations concerning the development and use of such systems, and the latter because as a regional block, the European Parliament had adopted a resolution imposing a total ban on the said weapons. The findings were that the United States has taken the path of coming up with policy directives on the development, testing and deployment of such systems and has set up multiple bodies tasked with overseeing various elements of the development and use of such systems. The European Union, on the other hand, took a precautionary stance instead of banning the development of such weapons on the basis that full autonomy of such weapons still does not guarantee compliance with principles of International Humanitarian Law. Therefore, conscious of these concerns but apprehensive that despite these fears, such weapons systems will still be developed; this paper took the path of trying to formulate basic principles to guide the development of Lethal Autonomous Weapons. It recommends not only the adoption of the said principles by states but also the formation of a supranational regulatory body to oversee state compliance with them.

Optimality criteria method in 2D linearized elasticity problems

In optimal design problems the goal is to find an optimal distribution of materials in a fixed domain which optimizes a criterion, computed through the solution of a partial differential equation modelling the involved physics. We consider optimal design problems in the setting of linearized elasticity, and restrict ourselves to domains filled with two isotropic elastic phases. Since a classical solution usually does not exist, we use the homogenization method in order to get a proper relaxation of the original problem. Unfortunately, the related G-closure problem in linearized elasticity is not solved. However, in the compliance minimization problem, G-closure can be replaced by a smaller subset made of sequential laminates, which is explicitly known. Moreover, for the compliance minimization the necessary conditions of optimality are easily derived, which enables a development of optimality criteria method for the numerical solution. We explicitly calculate the lower Hashin-Shtrikman bound on the complementary energy in two space dimensions, and necessary conditions of optimality. We develop an optimality criteria method for the single state compliance minimization problems.

“A very good dialogue”?

Abstract This article builds on previous research on the communicational practices of the United Nations human rights monitoring system (Wallace 2017). Treaties such as those responsible for women’s and children’s rights lack direct enforcement mechanisms, so interest falls on the means by which treaty monitoring committees can encourage state compliance. The proceedings are bookended by writing (state reports and committee concluding observations), the focus of my earlier research. However, there is also an oral component, invariably characterized by the committees (but less frequently by the states) as “constructive dialogue” where the objective is “to assist and not to judge.” I explicate the structure and practices of these proceedings and find much that is justifiable, given the communicational context, but also some potential for reconsideration.

ПОГІРШЕННЯ ЯКОСТІ ДЕМОКРАТІЇ В ДЕРЖАВАХ-УЧАСНИЦЯХ ЄС:

На прикладі Естонії вивчається відповідність держав останніх «хвиль» розширення ЄС ліберально-демократичному інституційному та ціннісному стандарту ЄС. Аналізується якість естонської демократії, визначаються основні її дефекти. Оцінюються потенційні загрози, які можуть поглибити демократичний відступ за ситуації віднедавного переходу Естонії до більш консервативного, націоналістичного порядку денного.

Satisfied or not? Exploring the interplay of individual, country and international organization characteristics for negotiation success

International norms and rules are created in international negotiations. A comprehensive survey shows that the satisfaction with negotiation outcomes varies between delegates, states and International Organizations (IOs), which is important as it has potential ramifications for state compliance and the effectiveness of the international rules and norms. This paper investigates which role individual, country and IO features and their interactions play for satisfaction with international negotiation outcomes. Drawing on approaches of international negotiation and cooperation, hypotheses on individual, country and IO features are specified and examined empirically with a multilevel analysis. This reveals that especially individual and IO level features impact outcome satisfaction. Outcome satisfaction increases if delegates put in much work in negotiations and can conduct them flexibly and if IOs are small in size, and have institutional designs that seek to foster debates. The paper also shows that there are cross-level interaction effects. Most notably, the positive effect of flexibility on high outcome satisfaction is less pronounced when negotiations are more strongly characterized by bargaining dynamics. Vice-versa, when IOs are prone to arguing dynamics all actors become more satisfied.

Does monitoring without enforcement make a difference? The European Union and anti-corruption policies in Bulgaria and Romania after accession

ABSTRACT The European Union (EU) has made effective corruption control a condition for membership, but it cannot sanction non-compliance once a country has joined. The Cooperation and Verification Mechanism (CVM) was an institutional experiment to compensate the loss of sanctioning power after accession with continued monitoring. Most commentators dismiss the potential of such monitoring without enforcement. This article’s original coding of the CVM reports with regard to corruption control in Romania and Bulgaria provides an empirical basis to assess the CVM’s ability to foster compliance. It suggests that monitoring can have a positive impact on state compliance even without material sanctions: despite the low expectations in the literature, compliance in Romania was significantly better than in Bulgaria. We explain Romania’s better compliance record with successful domestic institution-building. In contrast to Bulgaria, Romania created strong anti-corruption institutions that served as a powerful institutional base for the fight against corruption. The CVM has not only had a direct effect on institution-building, but also an important indirect effect. As the anti-corruption institutions remain vulnerable to governmental interference, the CVM played a key role as a social constraint on attempts by the government to curb their power and as a focal point for societal mobilisation.

Development of an UNDRIP Compliance Assessment Tool: How a Performance Framework Could Improve State Compliance

Improving state compliance with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) can be supported by monitoring and measurement. Current approaches to monitoring state compliance with the UNDRIP are qualitative and non-standardized, which limits comparability across time and across geopolitical lines. In this article, we introduce a novel approach to monitoring compliance with the UNDRIP and human rights more generally. This work highlights the potential advantages of using a performance improvement framework to clearly identify gaps in compliance, monitor state compliance with the Declaration over time, and effectively assess and compare state compliance. We describe the development of a standardized UNDRIP compliance assessment tool and report the process and findings of a pilot test of the tool. The pilot assessment utilized the UN Special Rapporteur on the Rights of Indigenous Peoples' (SRRIP; Anaya, 2014) findings on the situation of Indigenous Peoples in Canada in three thematic areas: (a) self-government and self-governance; (b) consultation and free, prior, and informed consent (FPIC); and (c) land and natural resources. While insufficient for a fulsome assessment of Canada’s compliance with the UNDRIP, we restricted ourselves to the report for two reasons: first, to test the applicability of the tool for quantifying qualitative data; and, second, to evaluate the degree to which the UN monitoring mechanism for Indigenous rights adheres to the Declaration’s Articles for monitoring and reporting. We discuss implications and opportunities for improving human rights monitoring and state implementation efforts.

From Accountants to Detectives: How Nuclear Safeguards Inspectors Make Knowledge at the International Atomic Energy Agency

AbstractThe International Atomic Energy Agency (IAEA) verifies state compliance with the Nuclear Nonproliferation Treaty through nuclear safeguards. The agency's legitimacy derives from the convincing display of technical authority. The politics of nuclear things, however, constantly threaten to undermine this authority. Nuclear safeguards are made legibly authoritative and credibly technical through bureaucratic objectivity. This epistemic logic and practice is widely shared by projects of technocratic governance in the liberal international order. After the discovery of Iraq's secret nuclear weapons program, the IAEA transformed its accounting‐based knowledge practices. However, these transformations into more detective‐like ways of knowing call into question the presumed technical purity of safeguards reports. This article unearths the historical origins of safeguards as bureaucratically objective knowledge and demonstrates its enduring legacy at the IAEA, as its bureaucrats and diplomats attempt to manage the tension between effectiveness and credibility.

Пандемія коронавірусу — виклик міжнародному праву, міжнародній спільноті, державам, народам (нарис окремих проблемних питань)

The article analyzes the challenges posed by the coronavirus pandemic to international law. Several problematic blocks in international practice in the context of pandemic have been identified. The level of compliance of states with their international obligations in the field of public health is shown. The interdependence between quarantine restrictions and the obligation of states in the field of human rights protection has been revealed.

Guarding utopia: law, vulnerability and frustration at the UN Human Rights Committee

In the 1940s activists lobbied for the creation of a binding international bill of rights backed up by an international human rights court as the backbone of the post‐World War II order. Together, so the activists believed, these would guarantee peace and harmony to all mankind. Seven decades later this vision has been transformed into a cluster of UN human rights treaties and expert committees known as treaty bodies to monitor them. In practice treaty bodies process documents in ongoing bureaucratic cycles, which are located somewhere between an audit ritual and a court session. This duality is a source of strength as well as vulnerability and frustration, embodying an endless navigation between the ‘utopia’ of a robust and binding legal framework and an ‘apology’ for actual state conduct. This paper explores how this duality manifests itself in the practices of the most authoritative and ‘court‐like’ treaty body of the UN, namely the Human Rights Committee monitoring state compliance over the International Covenant on Civil and Political Rights (ICCPR), simultaneously exploring how the vision is kept alive. (Less)

A Commentary on the Right to an Effective Remedy in the Case Law of the CJEU

The right to an effective judicial remedy is an essential element of realising the rule of law. It is the fundamental right granting individuals the possibility to request independent review of compliance with the legal provisions. The genius of protecting as an individual fundamental right this structural notion of independent judicial review, has much contributed to the prominence and the protection of judicial accountability and effective enforcement of EU law. Yet, this critical commentary on the right to an effective remedy shows that the case law of the CJEU has predominantly aimed at ensuring Member State compliance with the right to an effective remedy. When it comes to reviewing EU law provisions against this right, the general considerations of ensuring effective judicial remedies are a lot less pressing, and accordingly, the CJEU has decided to be less stringent in its application of the right. Such case law of the CJEU has left gaps in protection. The commentary ends with the observations that additional problems for the enforcement of the right to an effective remedy arise from the often-composite nature of procedures, linking one or several Member State bodies with European institutions and bodies in one single procedure.

State Infrastructural Power and Social Transfers: The Local Politics of Distribution and Delivering ‘Progress’ in Ethiopia

This paper examines the politics of implementing the PSNP in Ethiopia. The PSNP is a targeted food and cash-for-work programme that places a strong emphasis on its ‘productive’ contribution through public works, a livelihoods component and the aim of mass ‘graduation’ from support. The paper focuses on how local governments resolve two challenges related to the distribution of social transfers. First, is the challenge for state capacity of generating sufficient and accurate information with which to select households while limiting undue influence of powerful local actors. Second, is the recurrent tension between the programme’s developmental objectives and its protective function. The paper argues that variation in state infrastructural power is vital to understanding how these challenges are resolved in different parts of Ethiopia. Drawing on two research sites in each of Afar, Oromiya and Tigray, the paper highlights the extremes of variation within Ethiopia. Implementation is shaped by the particular spatial pattern of expansion of the party-state carried out under EPRDF rule. In Tigray, strong party-state infrastructural power underpins selection processes and local state compliance with national targets. In Oromiya, state infrastructural power was underpinned by a significant degree of coercion in the face of limited legitimacy of the party-state. However, recent political events have seriously eroded this. In Afar, the state is forced to compensate for its own limitations by engaging in negotiation with clan structures.

Do Israeli Targeted Killings Comply with High Court of Justice's Guidelines?

In December 2006, the Israeli High Court of Justice (HCJ) delivered its ruling in case 769/02, also known as the killing case. The Court laid out four specific criteria for when a targeted killing might legally be carried out, and imposed two safeguards on the state to assure that each operation complied with these criteria. We examined the compliance of Israeli post-2006 targeted killings with the HCJ's ruling over Israel's targeted killing policy. We present strong evidence which suggests that Israel complies with the Court's four requirements, but argue that it is unclear whether it complies with the safeguards. In particular, the extent to which the state implements safeguard #1, the independent ex-post targeted killing investigative committee, remains uncertain. The committee's composition and independence has yet to be verified. Moreover, there is no public evidence that the safeguard #2, judicial oversight, has occurred. In addition, we argue that a careful examination of Israeli practice and policy on targeted killing reveal a troubling effort to marginalize the restraints that the HCJ imposed in 2006. Particularly, two landmark points of evolution in Israeli post-2006 targeting practices have significantly reduced the applicability of the HCJ's ruling. Yet there are still circumstances under which the HCJ's framework continues to bind the state of Israel. Therefore, despite some tangible gestures towards implementation, the state's compliance with the safeguards set out in the 2006 targeted killing judgments remain doubtful, especially with regards to the independent ex-post targeted killing investigative committee.

Inducing state compliance with international fisheries law: lessons from two case studies concerning the Republic of Korea’s IUU fishing

Despite the expansion of international fisheries law, fish stocks are still threatened by illegal, unreported and unregulated (IUU) fishing. An inevitable question arises: What can be done to better induce state compliance with international fisheries law? This article reveals a factor affecting compliance with international fisheries law that had not yet been explored in the compliance studies literature: the processes for implementing that law. It notes that one actor’s implementation processes may enhance other actors’ compliance with international fisheries law if the processes aim to affect others’ behaviour and others conform to them. Accordingly, the purpose of this article is to identify conditions under which the implementation processes have such a socialisation effect. These conditions are explored in two case studies concerning IUU fishing: that existing between the Republic of Korea and the European Union (2013–2015) and that between the Republic of Korea and the Commission for the Conservation of Antarctic Marine Living Resources (2011). The case studies show that, from an institutional perspective, the design of transparent implementation processes with dialogue between the actors involved is crucial and, in terms of social context, the international leverage and reputations of the implementing actor and the targeted actor, as well as collaboration with media and civil society, are also significant factors in the processes’ socialisation effect.

Time and Compliance with International Rulings: The Case of the Inter-American Court of Human Rights

Most studies of international courts analyze state compliance with court rulings by looking at the status of legal cases at a particular point in time. This “snapshot” approach ignores two important features of the compliance process. First, states often take a long time to comply with court rulings. Therefore, we need metrics that reflect not only if, but also when, states satisfy court rulings. Second, the conditions that facilitate or hinder compliance change over time. To accommodate these analytic challenges, we introduce the concept of expected time to compliance (ETC), and show how to estimate this metric using discrete-time survival models. We illustrate the advantages of this approach with an analysis of all cases decided by the Inter-American Court of Human Rights between 1989 and 2018.

Mining on Celestial Bodies: The Equitable Distribution of Benefits Doctrine and Distributive Justice

Abstract The United States and Luxembourg have recently legislated to permit the acquisition of private property rights over celestial resources mined by private actors. Considering these developments, this note will consider an element of the Common Heritage of Mankind under international space law: the equitable sharing of benefits doctrine. It proposes a formulation of the doctrine that entails material and equitable distribution of economic benefits derived from space mining among all States, ensuring that space is utilised in a manner delivering a tangible collective benefit. It suggests that this doctrine presently lacks the preconditions to amount to an international legal principle erga omnes, and therefore considers how it may develop into a binding juridical standard through analysing an existing model of equitable sharing in an analogous context: the deep seabed. Accordingly, this note conceptualises an international legal framework that delivers an effective mechanism for the redistribution of wealth obtained from mining celestial resources, and that will enhance the compliance of States and private actors with principles of equitable sharing.

The Rule of Law Erosion in the EU: Are We Solidly Built to Hinder It? Between Ineffective Tools and New Approaches

The European Union is a Community built on a set of common and foundational principles of Democracy, the Rule of Law and Fundamental Rights, as enshrined in Article 2 of the Treaty of the European Union. Whereas compliance of future Member States with these principles is strictly monitored before their accession to the Union, no effective mechanism exists to supervise adherence to them after it, giving room for potential systemic violations which may go as far as overthrowing the Rule of Law, as occurred in the recent and most remarkable cases of Hungary and Poland, and so the grounds of the European functioning. Against this background, this research paper deals with a comprehensive analysis of the Rule of Law backsliding phenomenon the EU has lately been witnessing and addresses its potentialities to hinder it, corroborating its weaknesses in this respect and beseeching the endowment of new tools which also includes a rethink of them.

Regulatory arbitrage in relation to international human rights

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.