Electronic copy available at: http://ssrn.

com/abstract=2004309



1
Uncorrected version

Effectiveness of International and Regional Human Rights Regimes
Published in Robert A. Denemark (ed.), The International Studies Encyclopedia,
Oxford: Blackwell Publishing (2010)

Par Engstrom
Oxford University
par.engstrom@politics.ox.ac.uk / parengstrom@gmail.com

Introduction
This chapter examines the study of human rights regimes in the field of International
Relations (IR). In particular, it explores the links between theories of regimes (how
are the origins, development and effects of regimes on politics explained?) on the one
hand, and the evolving norms and practices of human rights embedded within the
institutions of international and global society on the other. Despite the ubiquitous
institutional presence of human rights in world politics, the subject of human rights
regimes remains somewhat elusive. The first section therefore seeks to give a general
overview of how the study of human rights regimes has developed at the interface
between IR and international law with a view to outlining the subject of research; to
survey the main approaches adopted; to give a sense of why regimes matter and to
what extent they could be understood to be effective. In particular, the implications
of the analytical shift from the inter-state dynamics of international society to its
transnational dimensions for the study of human rights regimes are outlined. Building
on this last point, the second section explores the ways in which the norms and
practices of global human rights institutions have evolved since the Second World
War and into the age of globalisation. The focus here is on the institutionalization of
Electronic copy available at: http://ssrn.com/abstract=2004309



2
human rights globally through the United Nations system and the connections
between the development over time of international human rights institutions on the
one hand and their relative effectiveness in shaping human rights behaviour on the
other. Against this global background, the third section examines the comparative
development of regional human rights regimes. Particular emphasis is put on the role
and influence of regionalism in shaping the development and impact of international
human rights law and policy.
The Study of Human Rights Regimes
In recent decades the scholarship on international organizations, institutions and
regimes has burgeoned in response to the increasingly institutionalized character of
world politics (Martin & Simmons 2001). In the early years of the post-war era, the
term international institution generally referred to international organizations (IOs).
Yet, over time the distinction has been established between the role of institutions,
defined [] as settled practices, and formal organizations that possess formal
hierarchies of decision making and that are palpable entities, such as bureaucracies
with headquarters that issue directives and might administer certain programs and
activities (Kratochwil & Mansfield 1994:Preface). The perceived gap between the
formal structures of IOs on the one hand and the actual processes of international
politics on the other led in the 1970s to a move away from the study of formally
established international organizations to that of regimes (Krasner 1983). The study
of international regimes sought to supplement the technical aspects of formal IOs
within an analytical framework that focused on the rules, norms and principles
governing state behaviour. Regimes were specifically concerned with state
cooperation in particular issue-areas, and on one influential account were defined as
persistent and connected sets of rules (formal and informal) that prescribe behavioral



3
roles, constrain activity, and shape expectations (Keohane 1988). However, as noted
by Simmons and Martin (2002:194), this definition of regimes makes it difficult to
assess whether institutions affect behaviour and shape expectation, that is, to evaluate
institutions effectiveness. Other critiques of the early regime literature highlighted
its relative neglect of international law, and broader institutional and normative
dynamics of the international system in which regimes are embedded (Hurrell 1993).
The term international institution now tends to co-exist and is often equated with
international regime (Hasenclever et al. 1997), and though institutions are generally
considered to be specifically normative (i.e. they identify general standards of
behaviour, and define actors rights and obligations), for some, the definition does not
insist that institutions are effective, that is, that they necessarily affect behaviour
(Levy et al. 1995). On this account thus, international institutions are broadly
understood as sets of rules meant to govern international behaviour in specific issue-
areas, whilst rules in turn are seen as statements that forbid, require, or permit certain
kinds of actions.
The particular issue-area of human rights raises a puzzle for the discipline of
IR in general and the literature on international institutions in particular. As
Moravcsik notes, unlike other forms of institutionalised cooperation that are designed
to manage international concerns trade, monetary, environmental, or security policy
for example international human rights seek to monitor and regulate essentially
domestic political activities. Moreover, [i]n contrast to most international regimes
[] human rights regimes are not generally enforced by interstate action (Moravcsik
2000:217). Instead, since international human rights institutions are primarily, but
not exclusively, concerned with how states treat their own citizens these institutions
seek to empower individual citizens and groups vis--vis their own governments.



4
From this perspective, states are the source of the international human rights system and
the principal contemporary mechanisms for implementing and enforcing rights
(Henkin 1989:25). Yet, the expansion of human rights norms during the second half of
the twentieth century and in recent decades in particular has increasingly blurred the
boundaries and highlighted the multiple linkages between the national and the
international. It is through these broader concerns with international regimes,
transnational dynamics and the role of norms in international life that human rights
institutions now have entered mainstream IR scholarship.
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
the Second World War. 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
towards 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



5
behaviour and outcomes, that is, issues of compliance, enforcement and effectiveness
specifically (Schmitz & 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 behaviour. 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 actors 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 behaviour 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



6
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 behaviour. 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 (2002:525-26) emphasise 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 behaviour (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 emphasised 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



7
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 attribute 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 behaviour. 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 Behaviour
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 & 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 1993:140-41). Moreover, as
argued by Downs et al. (1996) in relation to state cooperation in general, the realist
insistence on the strategic dimensions of cooperation emphasises the role of
enforcement and contend that the deeper the agreements (the more ambitious and
intrusive the human rights norms for example), the increasing need for more severe



8
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 facilities 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 behaviour 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 behaviour, 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,



9
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
behaviour. 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 favour 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 sceptical 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)
summarises 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 behaviour (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



10
international governmental organisations 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 emphasised 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 include: ratification of human rights treaty;
fulfilment of reporting and other requests by supervisory bodies; implementation of
norms in domestic law; and rule-consistent behaviour 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.



11
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--vis domestic political opponents (Moravcsik 2000). In a
similar vein some scholars have emphasised 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 emphasise 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 & Sikkink 1998). These perspectives emphasise 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 & 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 & 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



12
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 emphasised 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 has led to the emergence of a transnational political space in the
field of human rights and emphasises the depth of interaction between international
human rights developments and national-level political and legal debates. Hence, on



13
this account, the expansion and institutionalisation 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 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 grows, 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 & 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 & 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 organisations in mobilizing domestically for



14
reform and effective implementation of human rights legislation while linking their
demands with the states international commitments has attracted growing scholarly
attention (Neumayer 2005).
Beyond civil society activism, a growing literature emphasises 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 forthcoming, 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



15
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 U.S.
federal courts is towards the individualisation 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 & 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 legitimising 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 (2001:744-47) emphasise 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



16
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 laws
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 behaviour. 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 behaviour.
Global Human Rights: the United Nations System
The literature on the UN system and its relative effectiveness in shaping world
politics in general and human rights in particular has waxed and waned according to
broader political trends in international relations and reflects fluctuating scholarly
perspectives on the potential of international institutions in influencing state
cooperation as discussed in previous sections. As a consequence of the gradual
evolution towards the institutional complexity of the contemporary UN human rights
regime, the literature on human rights at the UN is vast and has become a technical
and specialized field of legal expertise. Increasingly however, the IR literature on the
UN system has broadened its focus beyond issues of institutional development to
engage with questions of institutional impact and effectiveness.
Institutional Change and Hardening of Enforcement



17
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 & Voeten 2006).
A substantial literature has traced UNs 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 states 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 states 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 & 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 behaviour, 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



18
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 UNs human rights regime
as UNs 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 programme. As



19
the establishment in 2006 and the early proceedings of the UN Human Rights Council
(replacing the Commission on Human Rights) has 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 is
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 & 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



20
this area of global governance, implementation remains largely with sovereign states
(Wheeler 2003). Yet, contrasting visions of the UNs 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. (2008:735-36), 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 UNs 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, colonisation and decolonisation,
civil society activism, legal and judicial traditions, democratization, and economic



21
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 & 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 & Ron 2007) as it allows for a contextualised examination of the actual
processes underpinning the interaction between national, regional, and global human
rights (Buergenthal 1977).
This section emphasises 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 & Merrills 1993). The Convention initially



22
established a Commission and a Court to monitor state compliance. Yet, the drafters
of the Convention made the Courts jurisdiction optional, and while creating the
worlds 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



23
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--vis
member-states and is increasingly used by individuals across the region (Helfer
2008).
The expansion and increasing intrusiveness of the system has 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 Courts 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 institutionalised. Explanations



24
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
judgements 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



25
and the increasing acceptance of the Courts 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 (Mndez & 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 & 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--vis the system (Cerna 1996-
1997). 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 democratic form of government with the
promotion of human rights in the region (Cooper & 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



26
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 mobilisation.
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
systems human rights instruments with the U.S., Canada, and much of the English-
speaking Caribbean not accepting the Courts jurisdiction (Helfer 2002). Pasqualucci
(2003) also argues that the effectiveness of the Court is limited due 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 fulfil 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 states 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 towards the
protection of individuals against actions of the state, built around legal notions of state



27
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 (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 & Louw 2007).



28
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 & 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 AUs 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 towards 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 OAUs
and now AUs 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



29
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 towards 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 towards 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



30
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.
Conclusion
This chapter has focused on a series of research questions and puzzles that arise from
the central concern whether international human rights institutions make a difference
for the protection and promotion of human rights. It identified some major lines of
enquiry that have emerged in response to these questions with a particular emphasis
on the increasing transnationalisation of the study of human rights regimes on the one
hand and the range of conceptual understandings of regime effectiveness on the other.
The research on human rights regimes has clearly generated important insights into
the role of institutions in narrowing the gap between the rhetoric and practice of
human rights; yet crucial areas seem to call for further scholarly attention. One
particularly important area of research consists of identifying and explaining the



31
mechanisms for institutional effects located at the transnational and domestic levels;
and that seeks to disaggregate the state. Further study is required on the domestic
actors and institutions that act and could potentially act as compliance constituencies
and conduits of domestic implementation linking international human rights norms to
domestic political and legal institutions and actors. Also, human rights scholarship
tends to examine only a narrow set of human rights that are institutionalised in
international human rights regimes (predominantly civil and political rights). With the
more systematic recognition of social, economic and cultural rights within human
rights institutions, norm-setting efforts are increasingly target other actors than states.
Efforts to push beyond state-centric understandings of human rights should also be
seen in the light of many contemporary human rights violations that are occurring in
the context of weak and fragile states where state responsibility for violations is
difficult to establish and often even absent. Finally, a genuinely interdisciplinary
approach to the study of human rights regimes calls for a dislocation of disciplinary
boundaries between international and national law, IR and comparative politics on the
one hand, and between law and politics on the other. This seems particularly
important as studies of regime effectiveness increasingly engage with studies of what
explains repression and human rights violations in the first place. Moreover, although
increasing methodological diversity is enriching our understandings of both the
potential and limits of human rights regimes, the central questions and research
puzzles of this particular field of enquiry should guide the appropriate methods and
disciplinary approaches and not the other way around. This chapter has identified a
number of areas in which scholarly efforts are exploring such links to foster better
understandings of the role of international and regional human rights institutions in
human rights protection.



32


Word Count: 9,016


Acknowledgements: The author is particularly grateful to Andrew Hurrell whose
guidance and insights on many of the themes covered in this chapter continue to be
inspiring. Carolyn Haggis, Thomas Pegram, Ioanna Thoma and two anonymous
reviewers provided very helpful comments on a previous draft. Chandra Srirams
patience in pushing this chapter through the editorial process is gratefully
acknowledged. Any remaining errors of fact and interpretation remain the sole
responsibility of the author.


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Keywords
compliance, enforcement, human rights, international institutions, international law,
regimes, regional organizations, transnationalism, United Nations





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