Compliance, Enforcement, and Effectiveness

The creation and evolution of human rights as embodied in international human rights law and its associated institutions and mechanisms is a very significant feature of the legal and normative changes that international society has undergone since the end of World War II. Human rights scholarship has traditionally focused on the emergence of particular human rights claims and their incorporation through international legal processes into binding legal norms. Significant attention has also been given to the development of the international legal and institutional machinery that is designed to monitor human rights and pursue strategies for greater recognition and implementation of human rights. While this scholarship has overall generated significant insights into the conditions under which international institutions are created and why states “design” them the way they do, relatively little consideration has been given to questions of how human rights institutions actually work, and why and when they “matter.” Hence, the general development of human rights scholarship toward a focus on institutional impact and effectiveness has led scholars to turn from questions of why international institutions exist to how they significantly affect state behavior and outcomes, that is, issues of compliance, enforcement and effectiveness specifically (Schmitz and Sikkink 2002).

As questions surrounding state compliance with international legal norms have entered mainstream IR scholarship, the scope for increasingly fruitful engagement with international law scholarship has significantly widened, particularly in relation to the role of legal rules in shaping behavior. Raustiala and Slaughter (2002:539) argue in a recent review of the literature that “most theories of compliance with international law are at bottom theories of behavioural influence of legal rules” and they define compliance as “a state of conformity or identity between an actor’s behavior and a specified rule.” On this understanding, compliance is distinct from (although related to) questions of effectiveness. For example, international rules as embedded in regimes can be effective even if compliance is low as “high levels of compliance can indicate low, readily met and ineffective standards” and regimes with “significant non-compliance can still be effective if they induce changes in behavior.” For Levy et al. (1995:292) in contrast, international regimes generally emerge in response to problems, and “[e]ffective regimes cause changes in the behaviour of actors and in patterns of interaction among them in ways that contribute to the management of targeted problems.” From this perspective, assessments of regime effectiveness focus on the capacity of regimes to generate specific policies and the extent to which these are implemented through the passage of legislation, the creation or reform of domestic institutions that prove effective in attaining regime objectives. On this account, the emphasis lies on observable behavior and effectiveness is evaluated on the basis of the degree to which a regime ameliorates the problem that prompted its creation in the first place. In much international law scholarship, understandings of effectiveness tend to focus on the degree to which a particular issue or problem give rise to contractual obligations, become regulated by law, and the extent to which the legal rules are complied with. From this perspective, the question of effectiveness is understood to relate to whether international law and institutions make a difference to how states and domestic actors behave.

In the area of international human rights, the specific question of regime effectiveness has been the focus of much recent quantitative research on the relationship between international human rights law and actual protection of human rights, and whether human rights institutions are effective in affecting behavior. This framing of the research problem of institutional effectiveness has generated an important methodological diversity in the study of human rights regimes. However, this research also tends to underplay the long-term evolution of human rights norms and institutions. Schmitz and Sikkink (2002:525–6) emphasize that the “initial recognition of a norm or even binding conventions have often highlighted, rather than immediately narrowed, the gap between rhetoric and practice.” Young (1992:160) notes that regime effects – variably understood in the literature in terms of regime consequences, impact and effectiveness – are difficult to separate from broader questions concerned with regime origins and evolution. In other words, although questions of regime effectiveness focus on the role of institutions in shaping human rights behavior (institutions as independent variables), the importance of thinking about these institutions as dependent variables whose character is shaped by a variety of factors is frequently emphasized in the literature. For example, Levy et al. (1995) argue that the nature and course of the evolution of international institutions can indicate the extent of autonomy, robustness, and authority these entities develop over time; factors that are commonly considered to shape institutional impact. Also, in a recent review of the literature Hafner-Burton and Ron (2009) argue that scholarly assessments of the role of law and institutions in protecting human rights tend to be significantly shaped by choice of research method. Whilst statistically inclined research generally attributes very little impact, if any, to international human rights institutions, qualitative case studies tend to find often significant influence of international law and institutions on political behavior. Such divergent assessments may, they note, be grounded in often-irreconcilable epistemological positions with many qualitative scholars rejecting the utilitarian groundings of research into questions of “effectiveness.” These methodological divisions are partly reflected in the IR literature in relation to understandings of human rights compliance, enforcement and regime effectiveness.

How Human Rights Regimes Affect Behavior

For some, human rights only come to matter when powerful states take them up and seek to use their own power to enforce human rights standards. On this view, human rights institutions are of only marginal importance, as “[m]ost human rights practices are explained by coercion or coincidence of interest” (Goldsmith and Posner 2005:134). Thus, governments will only dispense political capital to enforce international human rights when it serves their political interests, and, moreover, states sometimes cynically use human rights to justify certain acts of foreign policy. From this perspective, the question of why and when states comply with human rights regimes “is a function of the extent to which more powerful states in the system are willing to enforce the principles and norms of the regime” (Krasner 1993:140–1). Moreover, as argued by Downs et al. (1996) in relation to state cooperation in general, the realist insistence on the strategic dimensions of cooperation emphasizes the role of enforcement and contends that the deeper the agreements (the more ambitious and intrusive the human rights norms, for example), the increasing need for more severe punishments to deter non-compliance. Reliance on enforcement as the route to compliance raises, however, important questions of legitimacy both in terms of what is likely to be the selective enforcement of human rights norms and the more long-term costs of the use of coercive measures. Along these lines, hegemonic stability theorists, for example, have argued that although hegemonic power facilitates regime creation, it is more problematic when it comes to effective and legitimate implementation over time.

Although the realist tradition offers important insights into the role of power asymmetries in shaping enforcement and state compliance, explanations along realist lines have difficulties, as Sikkink (2004) argues, to account for why states are willing to pursue human rights norms in the first place, and why powerful countries that were not previously concerned with human rights adopt policies espousing these norms when they do. Moreover, most realist accounts do not answer the question why states agree to expend resources to set up human rights institutions and commit to and be constrained, however minimally, by their rules and norms.

For others, states set up international institutions and give them certain functions in order to overcome problems of inter-state collaboration and coordination. The focus here is on the effects on state behavior as institutions alter incentives thereby making it rational for states to cooperate (Koremenos et al. 2004). Institutions affect actor strategies – but not their underlying preferences – by reducing transaction costs, by identifying focal points for coordinated behavior, and by providing frameworks for action on a wide range of issues (Keohane 1982). In this literature international agreements are generally thought to be “self-enforcing” in that they rely on the interests of states themselves to comply with the terms of the agreement, even in the absence of an external enforcement mechanism. Overall, on these accounts, human rights institutions matter but primarily because of what they can do to shift the incentives facing member states – by generating publicity, by naming and shaming, and by creating positive or negative linkages with other issues (Hafner-Burton 2008).

In this vein, a number of studies have sought to explain why countries ratify treaties and whether states’ treaty commitments actually change human rights behavior. Based on theories of delegation and agency, the core assumption of this literature is that states create institutions and delegate power to them in order to resolve collective-action problems (Hawkins et al. 2006). In part drawing from managerial models of compliance in international legal scholarship, this literature generally posits that states have an interest in compliance with rules, a propensity to comply with their international commitments, and therefore rejects sanctions and coercive enforcement in favor of collective management of (non)performance of treaty obligations, such as monitoring, non-confrontational, and facilitative measures. These general propositions have generated a burgeoning literature on quantitative measures of treaty participation. Generally skeptical of the impact of international human rights institutions, these statistical analyses of specific human rights treaties (drawing on standardized measures of the International Covenant for Political and Civil Rights and the Torture Convention in particular) have highlighted the limits of international law in ensuring the protection of human rights. In a recent review, Landman (2008) summarizes the general findings of the statistical studies on the impact of states’ human rights treaty commitments on rights protection. According to Landman, there is statistical evidence to suggest that international human rights treaties have at least a limited impact on actual state human rights behavior (for contrasting views see Camp Keith 1999; Hathaway 2002); domestic regime type matters; the gap between treaty ratification and human rights protection narrows over time; and membership in international governmental organizations and presence of international NGOs lead to higher state participation in human rights regimes. The positive and significant statistical relationship between treaty ratification and rights protection disappears however, Landman notes, when studies control for the other independent effects of democracy, wealth, conflict, and population.

However, such global comparisons do not capture what may be strong regional diversity in these relationships including the relative effectiveness of regional human rights regimes to which countries are a party, a point that will be returned to below. Also, this literature focuses exclusively on compliance with formal treaties, and largely ignores what may be the significant role of broader categories of rules and norms, including customary international law and jus cogens norms. Clearly treaty ratification does not necessarily set in motion an automatic process of domestic reform. Yet, as emphasized by Schmitz and Sikkink (2002), formal state ratification of a human rights treaty is often part of a prolonged and continuous process of political struggle about the domestic implementation of human rights norms. Schmitz and Sikkink therefore suggest that compliance with human rights treaty obligations is best understood along a continuum that includes ratification of human rights treaty; fulfillment of reporting and other requests by supervisory bodies; implementation of norms in domestic law; and rule-consistent behavior on the domestic level. This perspective also allows for consideration of what constitutes “partial compliance” which in the area of human rights is often the most frequent outcome. Hence, theories of self-enforcement and credible commitments that underpin much of the literature on treaty ratification, and in which efficiency arguments carry most of the analytical weight, may not be very persuasive in matters of human rights.

On an alternative account however, state decisions to create and join international human rights mechanisms are driven by domestic political calculations and domestic “compliance constituencies” (Dai 2007). On this view, the submission to an international regime constitutes an act of political delegation that could be used by governments to “lock in” and consolidate domestic policies, thereby enhancing their credibility and stability vis-à-vis domestic political opponents (Moravcsik 2000). In a similar vein some scholars have emphasized the role of domestic institutional and normative preferences to conform to rules denominated as law, and the ways in which domestic regime type may affect compliance with international commitments.

While most rationalist accounts of institutions assume largely invariable interests and constant state preferences, what may be best referred to as ideational perspectives emphasize the role of ideas in bringing about political and normative change. On this view, states are not seen to be rationally adapting, nor coercively compelled, but are motivated by a “logic of appropriateness” to adhere to human rights norms (Finnemore and Sikkink 1998). These perspectives emphasize the potential of institutions to shift actors’ understandings of problems either by providing the possibilities for cooperative outcomes or via processes of socialization by which norms and values are diffused (Goodman and Jinks 2004). The main thrust of sociological institutionalism, for example, lies in the claim that ideas have a strong and continuous influence on state policy as they become embodied in institutions and that institutions themselves can become autonomous and powerful political actors (Barnett and Finnemore 2004). This highlights the importance of social context, and how acting in ways perceived to be illegitimate by the collectivity concerned can significantly raise the material costs of the action. Yet, although this literature provides important insights into the processes of diffusion of norms and practices, and the constitutive and empowering potential of human rights discourse and institutions in general, it has difficulties in explaining why certain norms become institutionalized and not others. Moreover, it often neglects the more regulative and coercive dimensions of norms by which interests and power shape their creation, implementation, and enforcement.

Transnational Human Rights

Although the IR literature on international institutions generally focuses on efforts of states to provide international collective and redistributive goods, international human rights norms and institutions have increasingly come to affect many of the social, political, and economic problems traditionally seen to be within the exclusive jurisdiction of the state. Therefore, a narrow focus on the dynamics of interstate interactions does not fully capture the ways in which international human rights institutions may be effective. Recent scholarship has emphasized the transnational character of human rights institutions in terms of the emergence of a transnational legal and political space and ongoing challenges to state sovereignty; in terms of how this affects political actors and notions of the state as a unified actor in world politics; and in terms of how a transnational perspective shapes conceptual understandings of “compliance” and “enforcement.”

First, the consolidation of human rights institutions raises questions regarding the legitimate form and scope of international intervention in the domestic affairs of sovereign states. The establishment of supranational jurisdiction over fundamental political choices and decisions underscores the extent to which current trends in global governance have led to the emergence of a transnational political space in the field of human rights and emphasizes the depth of interaction between international human rights developments and national-level political and legal debates. Hence, on this account, the expansion and institutionalization of human rights highlights the reality of constant renegotiations of state sovereignty in matters of human rights, and the extent to which sovereignty in the sense of power of the state over its nationals has been eroded by human rights law, the increased use of international human rights norms in national courts, and the increased availability of a variety of international tribunals. These trends also invoke understandings of sovereignty not as entitlement but as status, understandings of what it means to be a legitimate member of an international society, and the capacity to engage in increasingly complex transactions with other members of the system.

Second, as the density and complexity of international institutions grow, and as new channels of transnational political action open up, so the process of norm creation becomes more complex, more contested, and harder even for powerful states to control. Although non-state actors remain excluded from the formal negotiations of international human rights instruments and decision-making fora, a considerable body of research indicates that they have gained significant informal influence through their agenda-setting activities and expertise in the context of evolving and increasingly complex global governance structures (Price 2003). From this perspective, international human rights institutions have provided the platforms upon which the struggle over human rights between and among activists and states has played out (Keck and Sikkink 1998). For some, this process has not only resulted in the construction of a normative framework but also a globalizing process that is driven by the struggles of transnational actors and social movements (Goodale and Engle Merry 2007). Hence, viewing international human rights institutions in transnational terms highlights a number of important ways in which these institutions affect domestic political actors. The role of civil society organizations in mobilizing domestically for reform and effective implementation of human rights legislation while linking their demands with the state’s international commitments has attracted growing scholarly attention (Neumayer 2005).

Beyond civil society activism, a growing literature emphasizes the extent to which international human rights norms are incorporated into domestic legal systems and how these legal processes of internalization affect political actors (Koh 1997). This perspective on the role of international human rights law in shaping domestic policies and legal developments highlights on the one hand the multiple linkages that exist between the domestic and the international, and the importance of disaggregating the state (Slaughter 2004) on the other. On this view, the political costs of violating international rules are domestic as, for example, they provide focal points around which domestic opposition is able to mobilize (Simmons 2009). It is also important to consider how far interaction with international human rights institutions may affect the relative power of sections of the state bureaucracy dealing with human rights; or may lead to processes of socialization on the part of those state officials involved.

Similarly, it is also important to see domestic judiciaries as political actors. There is widespread variation not just in the effective enforcement of human rights within domestic legal systems but also in the capacity and willingness of judges to engage in the transnational legal culture of human rights and to take advantage of the potential legal and argumentative resources available. Understanding the sources of this variation in terms of judicial independence but also in terms of divergent national legal traditions, patterns of legal education, and engagement with the transnational legal community, forms an important part of understanding the ways in which human rights regimes do or do not affect political outcomes. Also, the general accessibility of human rights institutions to individual complaint needs to be noted. Indeed, the general tendency observable in the 1990s – evidenced in the former Yugoslavia and Rwanda tribunals, the establishment of a permanent International Criminal Court, the Pinochet case, and the various cases before national courts including tort cases in US federal courts – is toward the “individualization” of allegations involving violations of human rights. Clearly, the consolidation of a system of international criminal law has resulted in complex and interlocking processes of human rights enforcement (Broomhall 2003). However, within the broader universe of human rights institutions, adjudication still captures only a small part of how human rights regimes matter.

Third, conventional accounts of state compliance with international human rights norms that adopt predominantly top-down perspectives on international institutions, law and human rights tend to pay little attention to relevant domestic mechanisms and the conditions under which international norms are more, or less, likely to be effective or politically salient at the domestic level (Cortell and Davis 2002). Hence, evaluating human rights regimes in transnational terms also shapes how we might best think about “compliance” and “enforcement.” For many, the study of the role of law, and norms more generally, in world politics has suffered from inadequate attention given to the processes of legitimizing law as well as from failing to properly recognize that international law consists of processes as much as of its structural manifestations of law in international institutions (Kingsbury 1998). As Finnemore and Toope (2001:744–7) emphasize in relation to international human rights law generally, “[o]utside of the European context, the entire law of human rights operates and affects world politics without any mechanisms of compulsory adjudication. Where modern treaties create mechanisms to promote implementation, they are often premised on the need for positive reinforcement of obligations rather than on adjudication and sanctions for noncompliance.” For Finnemore and Toope, international law is more than merely a matter of cases and courts or formal treaty negotiation. It has a constructive dimension in which actors participating in law’s construction “contribute to legitimacy and obligation, and to the continuum of legality from informal to more formal norms.” Law in this view draws attention to those rules, norms and decision-making procedures of institutions that shape expectations, interests, and behavior. The force of law in politics – its “effectiveness” – therefore does not merely manifest itself in the form of constraints, but it also has important creative, generative, and constitutive influences on political practice. In the context of the international human rights system, this perspective on the role of law in shaping political developments brings to our attention the criteria established by the system on which to judge the legitimacy of states’ behavior.

Institutional Change and Hardening of Enforcement

Both the substantive issues in the field of human rights and the procedures in the UN for handling them have changed dramatically over time (Buergenthal 2006). From not having any formal powers to take any action in regard to human rights complaints at its inception, by the end of the 1990s the Commission on Human Rights annually reviewed the human rights records of UN member states (Lebovic and Voeten 2006).

A substantial literature has traced the UN’s remarkably successful record of standard-setting in the area of human rights (for an overview, see Forsythe 1985). There is a tendency in the human rights literature to portray the Universal Declaration of Human Rights, the two International Covenants, and subsequent human rights treaties as an authoritative international expression of the human rights obligations of contemporary states, as those states have themselves agreed to, and as a reflection of global human rights as a universal, uniform, and coherent set of norms. However, the adoption of the various international human rights instruments varies considerably between states with the Convention on the Rights of the Child having the largest number of state parties and the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty being the treaty with the fewest state parties excluding the treaties most recently opened for signature. A burgeoning literature seeks to evaluate the empirical relationship between country participation in human rights treaties and country performance on different measures of human rights in practice (Hathaway 2002; Goodliffe and Hawkins 2006; Vreeland 2007). This literature has generated important insights into the political dynamics of state commitment to international human rights and the effects of treaty ratification on state behavior, though some argue this has been achieved at the expense of a more holistic understanding of the inter-related nature of global human rights politics. On this view the different committees monitoring compliance with and implementation of the respective treaties form part of a complex system of universal mechanisms that are best understood and evaluated not as isolated organs functioning within the particular treaty but also as part of the larger UN system.

The issue of human rights moved to the forefront of UN activities and since 1997 within the broader UN reform process the idea is for human rights to become operational (the so-called mainstreaming of human rights) throughout the UN organization (Oestreich 2007), with a High Commissioner for Human Rights serving as a focal point for UN action and information in the field of human rights (van Boven 2007). The UN itself has grown both in size and ambition, and through the expansion of different human rights mechanisms and specialized agencies in conjunction with a rapid growth in human rights NGOs worldwide a veritable “human rights industry” has been formed.

The 1990s also saw another dramatic opening for the UN’s human rights regime as the UN’s new peace-building role increasingly incorporated human rights protection in its mandate (Katayanagi 2002). Although the limitations of the UN in solving violent conflicts and ensuring human rights protection around the world were highlighted in, for example, the conflicts in Rwanda and the Balkans, the extent of efforts to “mainstream” human rights and the more overtly coercive dimensions of human rights enforcement could be seen in debates surrounding humanitarian intervention (Welsh 2006) and more recently, the principles of the “responsibility to protect,” and associated efforts to redefine threats to international peace and security that have introduced human rights on the agenda of the UN Security Council (Bailey 1994). However, these debates have also exposed the fissures in the dominant narrative of the 1990s regarding the potential of a more activist UN human rights program. As the establishment in 2006 and the early proceedings of the UN Human Rights Council (replacing the Commission on Human Rights) have highlighted, the divisions and tensions – despite the creation of novel monitoring procedures – over the role and purpose of global human rights institutions remain. Similarly, attempts in recent years on the part of the most powerful states in the international system to shift the normative balance between human rights and security in the name of “war on terrorism” has showed, according to some, the inherent power-based logic underpinning the global human rights regime (Sands 2005; Dunne 2007). For others however, the resilience and normative strength of the human rights system are demonstrated by the ways in which the human rights discourse has re-asserted itself at various levels (Foot 2007). However, beyond the more immediate human rights concerns, others envisage a more uncertain future for the global human rights regime as highlighted in the debates surrounding the meaning and wider implications of the rise of non-Western states, shifting global power balances, and what some predict could be the beginning of the end of the period of US hegemony (Evans 1996).

Overall, the development of the institutional human rights framework under the auspices of the UN has been far from linear (Alston and Megret 2004; Oberleitner 2007). The broader trend however, although uneven and contentious, could be characterized by normative expansion and increasing intrusiveness of international norms and institutions for the protection of human rights, an increased plurality of actors involved in the creation and implementation of these norms, and, over time, the hardening of enforcement. Many IR scholars note however that these enforcement procedures have not significantly altered the allocation of responsibility for human rights implementation. Whilst norm creation in the human rights field has been internationalized reflecting in large part the increasing role and influence of NGOs in this area of global governance, implementation remains largely with sovereign states (Wheeler 2003). Yet, contrasting visions of the UN’s institutional mechanisms of human rights implementation range between those based on state agreement, peer review, recommendations, and then possibly conciliation, as opposed to harder enforcement mechanisms based on binding legal and judicial measures, sanctions, and referral to the UN Security Council. As argued by Steiner et al. (2008:735–6), those who focus on the role of sanctions and coercive measures targeting rights violators consider compliance to be a question of choosing the appropriate means of enforcement in a world of state actors. For others, compliance is mainly an issue of institutional design and judicial process, which focus attention on the features of the implementation mechanisms developed by the UN’s human rights institutions and the extent to which they are able to shift the incentives of states. And, for some, the pathway to compliance lies in the ability of non-state actors and coalitions to persuade and potentially socialize states through norm-driven arguments, which highlights the importance of meaningful NGO participation in UN human rights fora.

Regional Human Rights Regimes

As with international institutions more generally, regional human rights regimes need to be understood in the context of the broader normative structures in which they are embedded (Shelton 2008). Clearly, significant differences underpin the development of the regional systems with comparatively deep and complex institutionalization of human rights in Europe and the Americas, a mainly promotional regime in Africa, and Asia and the Arab world still without established human rights institutions. This regional variance partly reflects the extent of the cultural embedding of human rights norms across regions, but patterns of state formation, colonization and decolonization, civil society activism, legal and judicial traditions, democratization, and economic development also shape the scope and depth of regional institutionalization. Also, while some regional systems may actively draw on global human rights norms (the Americas), other regional institutions seek to more actively resist extra-regional pressures for human rights (Africa). In other words, the impact of processes of regionalization on the development of international law lies in the ways in which they shape the interaction between “universal” human rights standards and regional diversity and traditions (Fawcett and Hurrell 1995). Methodologically speaking, moreover, a regional perspective provides a more nuanced understanding of the relative impact of international human rights institutions more generally (Hafner-Burton and Ron 2007) as it allows for a contextualized examination of the actual processes underpinning the interaction between national, regional, and global human rights (Buergenthal 1977).

This section emphasizes the evolutionary character of regional organizations as each has undergone reform since its creation and has strengthened the human rights obligations of member states. Although compliance remains an issue in each system, as several studies have shown the regional systems have increasingly converged by developing similar norms, institutions and procedures to promote and protect human rights (Weston et al. 1987; Heyns et al. 2006). In particular, the impact of each regional system depends in large part on the uses domestic and transnational actors make of the system; how the system responds to developments under its jurisdiction; and, crucially, the responses of national governments, as there is significant variation amongst different states within the same regional system.

Europe

In 1950 the member states of the Council of Europe adopted the European Convention on Human Rights (Robertson and Merrills 1993). The Convention initially established a Commission and a Court to monitor state compliance. Yet, the drafters of the Convention made the Court’s jurisdiction optional, and while creating the world’s first individual petition procedure for human rights violations this was again made optional. The Convention also conferred some supervisory functions on the Committee of Ministers, the governing body of the Council of Europe. Hence, the standard procedure envisaged under the Convention was one over which states maintained considerable control and where inter-state complaints brought through the Commission to the Committee of Ministers, a political body, constituted the primary route to enforcement (Simpson 2001).

Over time, however, the regional system has developed into a “complex system of norms, institutions and procedures [that] have regionalized many aspects of human rights law in Europe” (Shelton 2003:95). In addition, although the mechanisms of the Council of Europe constitute the principal human rights organ in the region, the regional system consists of two other entities with partially overlapping membership, the European Union (EU) and the Organization for Security and Cooperation in Europe (OSCE) (Brett 1996; Alston et al. 1999). The expansion of European institutions has generated an extensive research agenda that seeks to specify the driving forces behind the increasingly intrusive nature of European legal and political integration, including state interests, national courts, individual litigants, and supranational actors such as the European Court of Justice. These developments have made EU law in general increasingly embedded in national legal systems and have offered domestic actors additional tools to influence national policies (Drzemczewski 1998). In the field of human rights specifically, the proliferation of European human rights bodies has considerably expanded and deepened the regional system and in the process enmeshed European states in an increasingly intrusive network of human rights institutions. In many ways this complex regional system invokes aspects of regional constitutionalization of human rights norms and the Court developed into what resembles a regional constitutional court (Merrills 1993). Madsen (2007) also notes that these developments have in some important ways transformed the Convention into a deeply specialized field of law and legal practice whereby the regional system has gained a considerable degree of legal autonomy vis-à-vis member states and is increasingly used by individuals across the region (Helfer 2008).

The expansion and increasing intrusiveness of the system have given rise to tensions between establishing and enforcing uniform regional standards and the need to respect member states’ diversity, and moreover, achieving the appropriate balance between individual rights and what may reasonably be claimed to be in the public interest. At the core of this system the European Court of Human Rights deals with questions of uniformity and diversity in judging whether a given state practice falls below “common European standards.” According to the Court’s doctrine of the “margin of appreciation,” the Court seeks to ensure minimum regional standards by testing the limits states themselves have decided to impose on the rights of the Convention outside the set of core rights. The Court has had a considerable influence on human rights standards in Europe, shaping domestic legislation in various domains across the region (Wildhaber 2007). In the process, the regime has developed from a system of human rights protection based solely on litigation to a complex network of interlocking bodies focused on standard-setting, prevention, monitoring, and enforcement. From a comparative perspective therefore, the European system has developed into the most legalistic of the regional human rights regimes where implementation has to a considerable degree become institutionalized. Explanations for the relative effectiveness of the European system have focused on broadly converging state interests; the institutional autonomy of a productive and authoritative Court; the embedment of the system in domestic legal systems; significant transnational connections with domestic litigants; and an interlocking framework for human rights enforcement that draws from the political resources of other European institutions. The regional system, however, has had to deal with few cases of gross and systematic violations of human rights. Therefore, the democratization of the wider Europe and the integration of new member states have posed a considerable challenge to the human rights system as it has become increasingly difficult to maintain uniform regional standards and high levels of state compliance with Court judgments in a system overloaded with cases and only limited resources.

The Americas

With the creation of the Organization of American States (OAS) in 1948, an American Declaration on the Rights and Duties of Man was adopted by OAS member states. But it was not until 1978 with the entry into force of the American Convention on Human Rights that the inter-American system adopted the institutional structure that has remained to this day composed of a Commission and a Court (Medina 1990). Throughout its existence the OAS has been comprised of member states many of which at numerous occasions have been governed by repressive regimes with scant regard for human rights.

Yet, through the latter part of the Cold War and particularly in the 1990s, there was a significant expansion of regional institutions and important changes in the ambition, scope and density of regional governance in the Americas (Sikkink 1996). With the transition to democracy in the region the human rights system extended its reach as seen in the increasing number of ratifications of human rights instruments and the increasing acceptance of the Court’s jurisdiction (Pasqualucci 2003). The inter-American system also adopted numerous mechanisms to address the many human rights challenges confronting the region, thereby developing increasingly extensive and intrusive human rights norms (Moir 2003). For many of the democratic governments in the region, the question of how to deal with human rights abuses under prior governments would come to define the nature of the new democracies, and although differences in national approaches to “transitional justice” reflected country-specific political concerns the policies eventually adopted by governments were in part shaped by international legal norms developed and formalized by the regional system (Méndez and Mariezcurrena 1999).

In the process the inter-American human rights system has emerged, from its roots as a quasi-judicial entity with an ill-defined mandate to promote respect for human rights in the Americas, as a legal regime formally empowering citizens to bring suit to challenge the domestic activities of their own government (Medina Quiroga 1988; Harris and Livingstone 1998). The inter-American human rights regime has developed in an independent fashion with, at its most positive reading, benign neglect on the part of most OAS member states vis-à-vis the system (Cerna 1996–7). The Court has also taken the view that the objective of the Convention is to integrate the regional and global systems of human rights protection and the regional system has also sought to explicitly link the democratic form of government with the promotion of human rights in the region (Cooper and Legler 2006).

In comparative terms the inter-American system has developed ambitious human rights norms that to a significant degree draw from regional legal traditions of expansive formal constitutional protections of individual rights. A considerable literature on the regional system has focused on the political and quasi-judicial role of the inter-American Commission with a mandate not found in the European system to put pressure on regional states to comply with its recommendations. Since the introduction of the right of individual petition, the system has become, many observers argue, more effective in addressing human rights problems; although the capacity of domestic litigants to turn to the regime varies considerably between countries in the region reflecting uneven patterns of civil society mobilization. Moreover, in recent years the literature on the system has given increasing attention to the Court and its role in ensuring compliance with the norms of the system. However, again, there is significant regional variance in adherence to and ratification of the system’s human rights instruments with the US, Canada, and much of the English-speaking Caribbean not accepting the Court’s jurisdiction (Helfer 2002). Pasqualucci (2003) also argues that the effectiveness of the Court is limited owing to the failure of the political organs of the OAS to adequately support the human rights system as evidenced in inadequate funding and quality control of judges elected to the Court, but also in the absence of a supervisory body that would fulfill the enforcement role of the Council of Ministers in the European system. Beyond the internal workings of the regional system however, the spread of elected governments across the region has clearly marked an improvement in the condition of human rights in most countries. Yet, not only has the system begun to receive more cases from the “grey borderland where the state’s authority to promote the general interest collides with individual rights” (Farer 1997:543), but it also has to confront cases of structural human rights violations the causes of which do not lie in the exercise of arbitrary state power but are rather the consequences of state weaknesses and failures to act. These trends pose major challenges for a regional human rights system that is geared toward the protection of individuals against actions of the state, built around legal notions of state responsibility, and that assumes, politically, that pressure can be exerted on states which possess the levers to improve the situation – in other words that states which are part of the problem can also be part of the solution.

Africa

The Organization of African Unity (OAU) was established in 1963 in the early phases of decolonization during which newly independent African states sought to consolidate their status as sovereign states whilst pursuing more ambitious goals of African unity and solidarity. The adoption of the African Charter of Human Rights and Rights of Peoples in 1981 (Kannyo 1984) created an African Commission, which allowed for interstate complaints and further envisioned a mechanism for the receipt of individual petitions. In terms of particular regional characteristics the Charter emphasized notions of collective or “peoples’ rights,” such as the rights to peace and development, and gave a particularly prominent place to individual duties (wa Mutua 1995). However, the Commission was established as a weak monitoring body and did not provide for a judicial organ or any other mechanism for authoritative regional enforcement of decisions. It is frequently noted that the African institutional environment is extremely unconducive to the pursuit of ambitious organizational objectives and that the OAU developed into a highly politicized organization for which questions of human rights came to play a marginalized role. Yet, as emphasized by Odinkalu and Christensen (2001:327), “[t]he perception of the African regional human rights system generally has been significantly shaped […] by and filtered through a pessimism about Africa” (see further Murray 2006). However, the capacity of the human rights system to consider individual petitions, to provide remedies for violations, and to monitor states’ compliance with Charter obligations has remained significantly constrained (Viljoen and Louw 2007).

These structural and institutional challenges notwithstanding, since the end of the Cold War and during the last decade in particular the African system has undergone significant changes (Evans and Murray 2008). In 1998, the OAU created an African Court on Human and Peoples’ Rights (Mutua 1999; Van Der Mei 2005). In 2001, moreover, African states adopted the Constitutive Act of the African Union marking the transition from the OAU to a new regional organization, the African Union (AU) (Murray 2004). Significantly, with the establishment of the AU, the member states formally endorsed the AU’s right to intervene in a member state in particularly grave circumstances such as cases involving war crimes, genocide, and crimes against humanity. Hence, the regional system has developed in response to a variety of internal and external factors, including tensions within existing regional institutions and the growing pressure exerted by international organizations and donor countries on African governments. Williams (2007) argues that a normative shift in regional institutions has taken place – from an emphasis on non-intervention to a “doctrine of non-indifference” – which has imposed limits on the applicability of the non-interference norm, and which may indicate some steps toward accountability of state officials who have committed atrocities.

Overall, the regional system has developed increasingly intrusive and robust institutions. In addition, an increasingly large number of international and local NGOs and other civil society actors have helped to put human rights issues on the OAU’s and now AU’s agenda (Okafor 2007). Yet, despite the greater normative and legal weight given to human rights norms in the region, the extent to which these norms have been internalized in countries across the region remains highly uneven, regional variance in terms of state and civil society engagement with the system is significant, and enforcement mechanisms remain weakly institutionalized and contested as reflected in ongoing debates surrounding the mandate and functions of the new regional human rights court (Bekker 2007).

Asia-Pacific and the Middle East

In relative terms the regional institutionalization of human rights in the Asia-Pacific and the wider Middle East remains patchy. The various regional entities that make up the organizational map of the Asia-Pacific and the Middle East are yet to set up formal human rights institutions. Donnelly, for example, identifies a number of reasons for the absence of regional human rights institutions in Asia, including low levels of regional cooperation and weak perceptions of regional community (Donnelly 1986:628). Moreover, human rights norms remain deeply contested in many parts of the Asia-Pacific and the Middle East where, it is argued, such international norms are variably perceived as vehicles for external interference in domestic affairs and ill-suited to local cultures, customs and values.

However, in recent decades developments toward the strengthening of regional human rights norms and incipient institutional initiatives have been noted. For example, the member states of the Association of Southeast Asian Nations (ASEAN) has since the early 1990s considered the establishment of a regional human rights mechanism (Thio 1999). Partly reflecting the informal networking and consensus-seeking style that has traditionally characterized ASEAN cooperation, and partly as the result of active resistance on the part of some member states to commit to human rights, the development toward a more robust institutional human rights framework has been slow. Yet, efforts by Asian and international NGOs led to the creation of an Asian Human Rights Charter in 1998 that urges regional states to establish an Asian Human Rights Commission and a Court (Harris 2000) and the newly adopted ASEAN Charter includes provisions for the establishment of an ASEAN human rights body. Many ASEAN member states remain reluctant however to the idea of a supranational human rights monitoring body and some states have instead emphasized the need for national human rights institutions under closer state control (Maznah 2002).

In the Middle East these tensions between broader normative changes internationally and resistance by regional states run equally deep (An-Na’im 2001). The League of Arab States established the Permanent Arab Commission on Human Rights in 1968 but the subsequently proposed Arab Charter of Human Rights was largely ignored. However, in 1994 the Arab League adopted the Charter and after significant criticisms by regional human rights NGOs adopted a revised Charter in 2004, which entered into force in 2008. Yet, although the Charter declares “human rights [to be] at the centre of the key national concerns of Arab States” Rishmawi (2005:368) argues that there is still no “common vision and position among Arab states on human rights.”