Cheap Talk? How much is “Jawboning” Worth in International Law?

 

In “The New Sovereignty”, the Chayes note that “jawboning” or “naming and shaming” of states may be a significant factor leading towards compliance with international treaties. The latest edition of International Organization has an interesting article on this issue. In “Sticks and Stones: Naming and Shaming the Human Rights Enforcement Problem”, Emilie M. Hafner-Burton provides some empirical data on the effect of “naming and shaming” on human rights abuses and enforcement. The methodology employed (described by me in overly simplistic terms) measures and compares human rights abuses (referenced in the Torture Convention and the ICCPR) in 145 states before and after “shaming” by NGOs, the UN and the media. Accordingly, an index of “shaming” as well as human rights abuses is developed.

 

The study finds that “naming and shaming” is not all cheap talk.  It is noted though that, “governments subjected to global publicity efforts often behave in contradictory ways, reducing some violations of political rights afterward— sometimes because these violations are easier or less costly to temper yet some governments continue or expand their use of political terror—sometimes because terror is less in governments’ control or can be used to cancel out other improvements governments make but do not want to work”. In particular, the evidence produced seems to show that, on the one hand, governments “named and shamed” as human rights violators often improve protections for political rights after being publicly criticized, for example, holding elections or passing legislation to increase political pluralism or participation. On the other hand, “naming and shaming rarely is followed by the cessation of political terror and, paradoxically, sometimes is followed by more.”

 

It is posited that this paradox can be explained by various factors including, the varying capacity of different governments to reform, and that “some governments abuse human rights strategically—when faced with global pressures for reform…(using) terror, such as killings or beatings, to counteract the effectiveness of political reforms they make in response to international pressures, such as holding elections”.

 

How does this square with existing work on how states’ reputations affect compliance with international law? Rachel Brewster most recently examined this issue in “Unpacking the State’s Reputation”, which can be found at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1268322.

 

Brewster notes that most work relating to state reputation and compliance rests in constructivist theories of socialization and acculturation and attempts to find a rationalist basis for the same. This rationalist basis rests on the proposition that “reputation is a causal mechanism because it influences the future range of cooperative activity available to the state. Without a good reputation, other states will not want to enter into cooperative agreements that provide joint gains but hold the possibility of opportunistic defection.” Accordingly, assuming that compliance involves a Prisoner’s Dilemma, reputational costs associated with violation change the payoffs for a state in deciding whether or not to cooperate or defect. However, she keenly identifies crucial limits to this model which stem from the indefinite nature of reputation. In particular, problems arise with respect to varying time horizons for different states, distinguishing the reputation of the state from that of the regime, and the distinction between a reputation for “legality” and a reputation for “cooperation”. She concludes, “(b)y adopting a more limited view of reputation, we can determine when reputational concerns are important to compliance and where other (rational or non-rational) approaches to international law are needed.”

 

In some ways, Hafner-Burton’s work addresses some of Brewster’s concerns. In particular, it attempts to distinguish instances where the state has control of reputation from instances where it does not. Further, by sticking closely to human rights obligations in the Torture Convention and the ICCPR, “reputation” is given more definition i.e. “reputation as a human rights law violator”. However, it was unable to adjust for variable time horizons and only included a fixed effect for time. More importantly, it was unable to account for the varying weights which different states place on reputation. As Brewster notes, “(i)ncluding reputation in the calculus, where the weight of reputation can be incredibly high or vanishingly small, allows rationalist scholars to explain any act of compliance with international law. Reputation becomes an error term that makes rationalist claims invariably correct.”

 

Was sufficient justice done to “jawboning”? You be the judge.

 

 

 

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