Incomplete Internalization and Compliance with Human Rights Law

In earlier work, we argue that acculturation is a distinct social process by which international law infl uences states and that human rights law might harness this mechanism in designing effective global regimes. In this article, we consider an important objection to our work. The concern is whether acculturation institutionalizes non-compliance. The growing body of empirical evidence for global-level acculturation, in part, documents persistent forms of decoupling – suggesting that formal commitments to global culture often fail to change concrete practices of local actors. In the human rights context, this is particularly troubling, given the prevalence of seemingly disingenuous acceptance of human rights instruments by states with poor human rights records. Many critics suggest, and understandably so, that acculturation should not guide the design of international human rights regimes since any such regime would promote only shallow reforms – further entrenching the gap between formal commitments and actual practices. The problem with human rights law, on this view, is that it is under-enforced – not that it is insuffi ciently acculturative. In reply, we argue that acculturation generally does not impede progress toward deeper reform and, indeed, will often facilitate it. How are states influenced, if at all, to improve their human rights practices? How might international human rights law better account for, and thus better harness, the mechanisms of state influence? Prevailing approaches in human rights scholarship rely – at times explicitly, at times implicitly – on coercion-based or persuasion-based theories of social influence. 1 That is, prevailing approaches maintain that international law exerts discrete, meaningful infl uence on recalcitrant states, * Rita E. Hauser Professor of Human Rights and Humanitarian Law, Harvard Law School. ** Marrs McLean Professor in Law, University of Texas School of Law. We wish to thank Philip Alston, Jack Goldsmith, Benedict Kingsbury, Joseph Weiler, and participants in the Institute for International Law and Justice International Legal Theory Colloquium at the NYU School of Law. 1 See Goodman and Jinks, ‘ How to Infl uence States: Socialization and Human Rights Law ’ , 54 Duke LJ (2004) 621. 726 EJIL 19 (2008), 725–748 either by coercing relevant actors to comply with human rights norms or by persuading relevant actors of the validity and propriety of these norms. 2 Human rights regimes, therefore, should be designed either to compel relevant actors to follow international law or to convince relevant actors of the appropriateness of international law. In previous work, we argue that international law infl uences states through a third mechanism which we call acculturation. 3 By acculturation, we mean the general process by which actors adopt the beliefs and behavioural patterns of the surrounding culture. This complex social process is driven, at bottom, by identifi cation with a reference group which generates varying degrees of cognitive and social pressures to conform with the behavioural expectations of the wider culture. At the highest level of generality, we argue (1) that acculturation is a conceptually distinct social mechanism that infl uences state behaviour and (2) that regime elements designed to harness acculturation would differ importantly from those designed to facilitate coercion or persuasion. 4 Our approach builds on important developments in the behavioural sciences which have documented the descriptive inadequacy of coercion-based and persuasion-based accounts of social infl uence. 5 Substantial empirical evidence suggests that not only individual actors, but also organizations, including states, are infl uenced through acculturation. As a descriptive matter, the case for state-level acculturation is founded on a pair of empirical fi ndings. On the one hand, states exhibit a striking degree of structural isomorphism. That is, the structure and formal commitments of states, across remarkably many issue areas, are increasingly similar. 6 The pattern of this isomorphism strongly suggests that the structural attributes of states substantially derive from institutionalized models promulgated at the global level. On the other hand, states are not ‘ tightly coupled ’ to their institutional environment even though they exhibit signifi cant structural isomorphism. 7 Because global cultural models are not sensitive to context and because the social benefi t of conformity is often captured by taking modest, largely symbolic steps, isomorphism is often accompanied by ‘ decoupling of general values from practical action ’ . 8 Many states adopt the abstract forms of world culture without closely linking these forms to actual practice. Public conformity with global norms often has little to do with private acceptance of those norms. The ultimate point on the empirical question is that neither coercion-based nor persuasion-based accounts of social infl u2 Ibid ., at 630 – 637. 3 Ibid ., at 638 – 656; see also Goodman and Jinks, ‘ International Law and State Socialization: Conceptual, Empirical, and Normative Challenges ’ , 54 Duke LJ (2005) 983; Goodman and Jinks, ‘ Toward an Institutional Theory of Sovereignty ’ , 55 Stanford L Rev (2003) 1749 (outlining a general theoretical model founded on acculturation mechanisms). 4 Goodman and Jinks, supra note 1, at 627. 5 W.W. Powell and P.J. DiMaggio (eds), The New Institutionalism in Organizational Analysis (1991); Meyer and Rowan, ‘ Institutionalized Organizations: Formal Structure as Myth and Ceremony ’ , 83 Am J Sociology (1977) 340; A.R. Pratkanis (ed.), The Science of Social Infl uence: Advances and Future Prospects (2007); A.I. Johnston, Social States: China in International Institutions, 1980 – 2000 (2007). 6 Goodman and Jinks, supra note 1, at 648 – 651 (collecting examples). 7 See ibid. at 651 – 655; Goodman and Jinks, ‘ Toward an Institutional Theory of Sovereignty ’ , supra note 3, at 1760 – 1761; see also Meyer, Boli, Thomas, and Ramirez, ‘ World Society and the Nation-State ’ , 103 Am J Sociology (1997) 144. 8 Meyer, et al., supra note 7, at 155. Incomplete Internalization and Compliance with Human Rights Law 727 ence explain the observed patterns of structural isomorphism and decoupling. Structural similarity exceeds that which might be explained by reference to the material incentives of target states, and yet persistent decoupling strongly suggests an ‘ incomplete internalization ’ inconsistent with persuasion-based explanations. 9 The upshot is that coercionand persuasion-based accounts, however indispensable for a comprehensive theory of global social infl uence, require supplementation. The resultant, more comprehensive theory of global social infl uence further suggests several regime design principles that might guide the fashioning of more effective human rights law and institutions. 10 In this article, we consider a potential weakness in our theory of acculturationbased compliance. A major concern is whether acculturation processes leave a gap between formal commitments by states and actual practices on the ground. As discussed above, acculturation studies often document persistent forms of decoupling – suggesting that formal commitment to the organizational features of global culture often fails to change the concrete practices of local actors. In the human rights context, this is particularly troubling, given the familiar problem of the seemingly ‘ shallow ’ or disingenuous embrace of international human rights law by many states. The central concern is simple: Acculturation should not guide the design of international human rights regimes since any such regime would promote only shallow reforms – further entrenching the gap between formal commitments and actual practices. 11 The balance of this article addresses this concern. First, this concern is predicated in part on a conceptual mistake – one in which the empirical footprint of acculturation is confused with the necessary result of acculturation. Acculturation-driven changes are not necessarily characterized by decoupling; many instances of acculturation include complete internalization of global scripts. Secondly, acculturation may also be accompanied by decoupling – but not of the variety that raises compliance concerns. Thirdly, persistent decoupling – even when it occurs along a more troubling axis – does not preclude deep reform regardless of whether the gap between global norms and actual state practice remains fi xed. Because global standards, and the demands of global civil society, evolve over time, acculturation will impel relevant actors to adopt increasingly ambitious human rights norms. Human rights outcomes, therefore, might improve over time even if the gap between world-cultural expectations and actual state practice never closes. Fourthly, even when acculturation 9 Goodman and Jinks, supra note 1, at 700. 10 Ibid ., at 656 – 700. We do not argue that acculturation is the ideal or preferable social mechanism around which to design international human rights regimes. Our argument is that acculturation is a neglected, poorly understood mechanism of social infl uence and that a fuller understanding of the ways in which international law infl uences states is necessary to fashion effective international human rights regimes. Accordingly, our ‘ defence ’ of acculturation-based approaches seeks only to show that these approaches are plausible and normatively defensible – that is, they should be part of the larger conversation about the optimal design of human rights regimes. 11 See, e.g., Alvarez, ‘ Do States Socialize? ’ , 54 Duke LJ (2005) 961; Koh, ‘ Internalization Through Socialization ’ , 4 Duke LJ (2005) 975 (arguing that acculturation might be understood as incomplete persuasion); J.L. Goldsmith and E.A. Posner, The Limits of International Law (2005), at 127; Hathaway, ‘ Do Human Rights Treaties Make a Difference? ’ , 111 Yale LJ (2002) 1935; Schmitz and Sikkink, ‘ International Human Rights ’ , in W. Carlsnaes, T. Risse, and B.A. Simmons (eds.), Handbook of International Relations (2002), at 517, 523. 728 EJIL 19 (2008), 725–748 results in forms of decoupling which hinder compliance, acculturation-driven social change can set in motion other domesticand international-level processes which reduce gaps between human rights commitments and local practices. In other words, domestic systems may undergo a two-step process in which decoupling is simply the fi rst stage that helps lead to the progression of more meaningful change over time. Fifthly, to the extent that troubling patterns of decoupling persist, several reform strategies could facilitate effective management, and gradual elimination, of these gaps between formal commitments and actual practice. We address each of these points in turn. 1 Acculturation without Decoupling Although gaps between structural commitments and concrete practices constitute important evidence of acculturation, the process of acculturation may, in other circumstances, foster complete internalization of a norm. In earlier work we analyse studies which also demonstrate just this sort of internalization. 12 Importantly, our argument turns on the distinction between the concept of acculturation and evidence used to document its existence. We employ a conception of acculturation as a causal process; acculturation is not an outcome. 13 This process, as a conceptual matter, need not result in incomplete or shallow internalization. All socially-legitimated actors routinely internalize, via acculturative processes, the cognitive frames and behavioural expectations of socially relevant others. Accordingly, state actors often embrace common beliefs and practices because they refl ect taken-for-granted scripts of how ‘ liberal ’ or ‘ modern ’ states behave. For instance, state actors consider particular organizational structures and practices to be inherent features of the modern state. Such actors accept, for example, that states engage in instrumentalist modes of planning, follow the dictates of science, and promote the general public welfare. 14 Such commitments are deeply held self-understandings of the purpose and character of modern statehood. That acculturation-driven processes also generate some rigidly decoupled outcomes does not mean that such outcomes are inevitable or even common. Although we focus heavily on patterns of decoupling in detailing acculturation in international society, we do so only because of the specifi c evidentiary value of these patterns. Coercion, persuasion, and acculturation can all result in behavioural change. Hence, behavioural change itself does not indicate which of these mechanisms is at work. The question then is what evidence suggests the presence or absence of any of the mechanisms. Evidence of incomplete internalization tends to support acculturation-based explanations and discredit persuasion-based explanations. In 12 See, e.g., Goodman and Jinks, ‘ Toward an Institutional Theory of Sovereignty ’ , supra note 3, at 1765 – 1780 (discussing national security examples). 13 See generally Berry, ‘ Conceptual Approaches to Acculturation ’ , in K.M. Chun et al. (eds.), Acculturation: Advances in Theory, Measurement, and Applied Research (2003) (describing processand outcome-based conceptions of acculturation). 14 See, e.g., Boli, ‘ World Polity Sources of Expanding State Authority and Organization, 1870 – 1970 ’ , in G. Thomas et al. (eds.), Institutional Structure: Constituting State, Society, and the Individual (1987), at 71; Meyer et al. , supra note 7, at 145; G.J. Kasza, One World of Welfare: Japan in Comparative Perspective (2006). See generally G.S. Drori et al. , S cience in the Modern World Polity: Institutionalization and Globalization