The treaty lives a double life. By day, it is a creature of international law, which sets forth extensive substantive and procedural rules by which the treaty must operate … By night, however, the treaty leads a more domestic life. In its domestic incarnation, the treaty is a creature of national law, deriving its force from the constitutional order of the national state that concluded it.Footnote 1
1. Introduction
On 17 August 2004, the Nepalese security forces raided a mass meeting organized by the Maoist communist party in the Kanchanpur district in far western Nepal. Eleven villagers were arrested and detained incommunicado under the Terrorist and Disruptive Activities Ordinance. Among them, Birman Sarki suffered from severe mental disabilities due to torture and ill-treatment at the detention centre.Footnote 2 Although the Kanchanpur Appeal Court and the Nepalese Supreme Court ruled that these 11 men were illegally detained and ordered their immediate release, the group of villagers were believed to be still kept in detention.Footnote 3
Commenting on reports of civilians rearrested following their release by court orders in Nepal, UN officials expressed concern that the ‘consistent disregard of the security forces for the rule of law’ demonstrated ‘the unchecked power exercised by the police and the security forces’ in Nepal.Footnote 4 As a state party to the 1984 UN Convention Against Torture since 1991, the Nepalese government has enacted a series of laws to prohibit the use of torture.Footnote 5 Yet, the UN and human rights groups found evidence of systematic practice of torture by law enforcement officials in Nepal. Repudiating these torture allegations, the Nepalese government contended that ‘these are not the outcome of a deliberate State policy, but are rather isolated acts carried out by individuals’.Footnote 6
The anecdote from Nepal highlights that while national authorities have taken steps to promote various rights enshrined in international human rights treaties, local law enforcement officials continue to violate them, thereby putting states in breach of their human rights commitments.Footnote 7 When the international society criticizes domestic human rights abuses, national leaders deflect these criticisms by putting the blame on unco-operative local officials.
Local authorities’ defiance contradicts the dominant view in the human rights literature that ‘[n]oncompliance in the area of human rights—especially for the most egregious violations—can rarely be explained by bureaucratic failure’.Footnote 8 Central to this view is the assumption that the state (usually the executive) is a unitary actor with full control of domestic policies.Footnote 9 If a state fails to comply with international human rights law, it must do so deliberately. Consequently, most scholars have looked for various domestic actors – political opposition groups, legislative veto players,Footnote 10 independent judiciaries,Footnote 11 and human rights nongovernmental organizations (NGOs)Footnote 12 – that stand on the opposite side of the executive and explored how they can rein in rights-abusing governments. Yet, the role of local authorities as opposed to the central government is largely under-theorized, despite many accounts of local officials’ withdrawal from national governments’ commitments to international human rights law.
Building on the basic understanding that international human rights law needs to pass through domestic political and administrative processes before it can be translated into local practice, this article articulates a reputation-based theoretical framework for understanding the link between state-level human rights outcomes and local actors’ practices that have continuously remade human rights standards and policies flowing from the top. The central argument of this article is that a state in which local authorities enjoy more discretion over local matters is less likely to comply with international human rights law for two reasons. To begin with, the reputational mechanisms that provide national leaders with incentives to comply with international human rights law have less influence on the large number of local authorities in a decentralized political system. Additionally, a divided governmental structure aids the central government in shifting blame for noncompliance to local officials and the domestic governance system. These tactics of blame management help national leaders muddle the assignment of political accountability and excuse the central government from rigorously enforcing international human rights law. Applying this reputation-based theoretical perspective, this article further explores how the power-sharing between states and the federal government affects US compliance with Article 36 of the Vienna Convention on Consular Relations (VCCR), an issue on which several high-profile cases before the International Court of Justice (ICJ) centre.
By demonstrating that a decentralized governmental structure deters the central government from complying with international human rights law, this study speaks to a growing literature on the relationship between state capacity and governmental commitments to international human rights standards. Existing studies tend to focus on the central government’s lack of control over non-state actors, such as criminal groups, paramilitary forces, and transnational corporations.Footnote 13 Problematizing the assumption that the government is a unitary actor, this study explores how divergent motives and constraints of different governmental tiers affect domestic human rights practices. Particularly, this study highlights local authorities’ resistance to conform to international human rights standards and the national government’s strategic use of its decentralized political arrangement to evade international scrutiny.
It is worth noting that there is an opposite scenario in which national governments fail to commit to international human rights law, but local authorities have taken proactive measures to implement progressive human rights standards.Footnote 14 For example, despite the US government’s persistent reluctance to ratify the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), several cities in the US have followed San Francisco’s pioneering effort to pass local ordinances that implement the principles of CEDAW and advance gender equality policies.Footnote 15 The progressive stance of local authorities vis-à-vis national governments on the observance of international agreements is even more evident in the climate change sector, as numerous cities and municipalities across the world have made voluntary pledges to fight the global climate crisis.Footnote 16 The scenario of progressive subnational policies exceeding what national law requires, however, is beyond the scope of this study for two reasons. First, as Nash notes, ‘this setting has received its share of scholarly attention’.Footnote 17 Second, the fact that ‘[w]hile the vast majority of countries have ratified nearly all the major human rights treaties, rights violations remain common’ has long puzzled scholars. Footnote 18 This article takes up the challenge and tackles the important question of why the elaborate edifice of the international human rights regime that has come out of human rights activists’ decades-long effort loses much of its lustre when implanted at the subnational level.
The remainder of this article is structured as follows. Section 2 provides an overview of contending perspectives on the gap between formal commitments to international human rights law and actual rights practices on the ground. Section 3 articulates a reputation-based theoretical framework to analyse how a divided governmental structure impedes the domestication of international human right law. Section 4 turns to evidence from a case study of US engagement with Article 36 of the VCCR. Section 5 concludes.
2. State capacity and governmental compliance with international human rights law
Over the last decade, scholars in the ‘enforcement school’ have examined a variety of domestic actors that help make national commitments to international human rights law credible. Among them, independent judiciaries conduct unbiased investigations of human rights abuses and clarify the legal specificities of human rights principles that would hold government officials to new standards.Footnote 19 Political opposition parties use their veto power in the legislature to obstruct the incumbent party’s effort to renege on its commitment to human rights protection.Footnote 20 Lastly, by spreading information about domestic human rights abuses, human rights NGOs gain support from sympathetic audiences to pressure national governments to improve their human rights practices.Footnote 21
These studies, however, rely on one problematic assumption – the state (usually the executive) violates international human rights law deliberately.Footnote 22 Evidence suggests that formal commitments to international human rights law, such as ratifying international human rights treaties, represent ‘considered and well-developed conceptions of national interest that have themselves been shaped to some extent by the preparatory and negotiating process’.Footnote 23 Thus, once national governments decide to ratify a treaty, they rarely hold the idea that they will violate them routinely; instead, they expect to discharge their treaty obligations.Footnote 24 As Creamer and Simmons aptly argue, ‘[m]any countries do comply with most of their treaty obligations, and even more genuinely want to comply’.Footnote 25
Departing from the ‘enforcement school’, Chayes and Chayes’s pioneering work paves the way for the ‘managerial model’ by identifying culprits in states’ involuntary non-compliance with regulatory treaties.Footnote 26 To them, international law non-compliance is a top-down management issue rather than some kind of ‘purposeful disobedience’ by national governments ‘who choose defection from the rules’.Footnote 27 The fundamental constraint on international human rights law compliance is states’ weak capacity to enforce domestic human rights policies and regulations.Footnote 28 Following Chayes and Chayes, Börzel and Risse explore different aspects of state capacity deficiency, or ‘areas of limited statehood’ in which central authorities lack sufficient ability to enforce rules and demands.Footnote 29 To them, the ‘areas’ of limited statehood can be different configurations of territory, policy issue areas, and demographic segments.Footnote 30
To aid in examining the effect of state capacity in empirical research, a few scholars have proposed operational definitions of state capacity from resource-based and institution-based approaches.Footnote 31 For example, studying how state capacity interacts with power and legitimacy of norms to affect EU member states’ compliance with European law, Börzel and colleagues measure state capacity with three indicators: governmental autonomy from veto players, GDP per capita, and ‘bureaucratic efficiency and professionalism of the public service’.Footnote 32 Similarly, Cole analyses the effect of state capacity on governmental respect for civil, political, and physical integrity rights enshrined in the 1966 International Covenant on Civil and Political Rights (ICCPR).Footnote 33 He finds that bureaucratic efficacy and a state’s territorial reach help promote human rights. Additionally, in her statistical analysis of the effect of treaty ratification on the prevalence of torture practices, Simmons controls for the degree of federalism, a domestic institutional characteristic that taps into how easy it is to control government agents. Footnote 34 Lastly, a recent study by Creamer and Simmons investigates the effect of state capacity on state parties’ reporting obligations under the UN Convention Against Torture.Footnote 35 Situating themselves in the managerial school, they argue that it takes substantial legal, financial, and human resources for state bureaucracies to prepare for reports and to produce timely and high quality reports.
Empirical studies of the effect of state capacity on state compliance with international human rights law – substantive compliance (e.g., rights outcomes) or procedural compliance (e.g., report submission) – largely find that states with stronger institutional capacities are better compliers. But the theorization of domestic institutional structure in the ‘managerial school’ is limited in two aspects. First, scholars in the ‘managerial school’ tend to treat state bureaucracy as a non-political machine. States’ non-compliant behaviour is simply caused by some mechanical malfunction of this machine, such as administrative inertia and logistic shortage. Thus, we do not know much about how the political dynamics between different governmental tiers affect human rights policy outcomes.
Second, compared with their counterparts in the ‘enforcement school’, scholars in the ‘managerial school’ fall short of explaining the interplay between domestic and international factors. Not only has the ‘enforcement school’ explored a range of domestic constraints on states’ rights-abusing behaviour, but it has also analysed how domestic constraints interact with international factors. For example, civil society organizations amplify their criticisms of domestic rights abuses by strategically framing them with prevailing international human rights norms. In doing so, they make a strong moral case for pressure from the international society on rights-abusing governments.Footnote 36 Yet, most scholars in the ‘managerial school’ fix their sights firmly on domestic factors.Footnote 37 When states violate human rights, ‘a force for good’ in the international society is usually galvanized to denounce these abuses. How do ‘guilt-free’ national governments respond to international criticism of rights violations? Existing studies in the ‘managerial school’ offer no clear answers to this question. To address these limitations, the following section advances a reputation-based theoretical framework to explain how the central-local governmental structure affects state compliance with international human rights law.
3. A reputation-based approach
The major ‘compliance pull’ of international law is states’ willingness to avoid reputational harm caused by their violation of norms and standards embedded in it. In international law, a state’s reputation refers to ‘judgments about [its] past response to international legal obligations’ that are ‘used to predict future compliance with such obligations’.Footnote 38 The extent to which a state fulfils its treaty obligations provides other states with cues to predict its future behaviour in similar settings. Because a state’s preferences cannot be directly observed, other states can only tell whether or not a state is co-operative by collecting and judging information about its past compliance behaviour.Footnote 39 According to this signalling theory of reputation, a state decides to comply with international law because it wants to present itself as a reliable and co-operative partner in an anarchical world in which mistrust and uncertainty plague international co-operation.
3.1 The lack of reputational mechanisms at the local level
A state’s reputation, however, is not uniform. As Rachel Brewster insightfully points out, states are ‘a collection of people, traditions, government processes, political parties as well as individual leaders’, so ‘[u]sing the state as the relevant unit in reputational analysis systematically exaggerates and biases the importance of reputation in government decision-making’.Footnote 40 Concerning state compliance with international human rights law, the central government is responsible for treaty negotiation and ratification, but it is the local governments that put human rights policies into practical application. The latter point is evident in federal states in which subnational governments have distinct powers authorized by a constitution to make final decisions in certain issue areas, such as criminal administration in the case of the US. In many unitary states, especially those without a strong central government, subnational authorities also enjoy considerable discretion in policy formulation and day-to-day operations of polices and orders transmitted from above. Analysing the political relationship between different tiers of governments in China, a centralized political system that has undergone waves of decentralization reforms, Montinola and colleagues write that ‘China’s political decentralization shares much in common with Western federalism’.Footnote 41
Given that the notion of consolidated statehood is rather a myth than a reality,Footnote 42 the central-local governmental dichotomy provides a starting point for analysing how the reputational costs of (non)compliance with international human rights law differ between various domestic duty-bearers. To evaluate national leaders’ and local authorities’ differential reputational costs of (non)compliance with international human rights law, this section draws on the three conditions identified by Heyman for the effect of reputation:
any violation must be known; it must be known by a party whose reactions to the violation are important to the violator; and the expected costs of violation to the violator must exceed the benefits of giving in to the conflicting temptation.Footnote 43
First, because reputation refers to judgements about a state’s past practices of discharging international legal obligations, gathering information about a state’s compliance behaviour is crucial for other states to make the correct judgement.Footnote 44 It follows that the reputational costs of non-compliance are higher if it is easier to detect a state’s non-compliant behaviour. Applied to domestic actors – national leaders and local authorities, this reasoning suggests that reputational costs are higher for national leaders because it is easier to bring to public notice national leaders’ non-compliant behaviour that typically involves drastic changes to existing national policies. Moreover, when the executive violates international human rights law, political opposition parties have incentives to expose non-compliant behaviour because doing so helps them reap electoral gains.Footnote 45 Conversely, it is harder to gather accurate information about human rights violations committed by local officials because mechanisms of checks and balances are weaker at the local level. In places where human rights violations are widespread and fact-finding is most needed, avenues for seeking justice, such as courts and civil society organizations, are usually limited. Local authorities’ abusing practices might permeate citizens’ daily lives, but victims might be afraid to stand up and talk. When this happens, local authorities can cover up their abusive practices and promote alternative storylines.
The second factor that determines the amount of reputational costs of non-compliance with international human rights law is the violator’s audience.Footnote 46 When there is a concentrated group of audience that is willing to sanction violators, reputational costs are higher. Compared with local authorities, national leaders have a larger group of rights-promoting audience. Leaders form progressive countries can put pressure on national leaders at international forums where high-level politicians conduct diplomatic talks and political negotiations. International organizations with human rights mandates and prominent human rights NGOs can also take advantage of these occasions to criticize culpable national leaders. Media, especially the Northern media, help expose human rights abuses to a wider sympathetic constituency at the global level.Footnote 47 In a saturated media environment, notorious national leaders often attract more media attention. Aside from international audiences, national leaders face pressure from domestic opposition groups and human rights NGOs. Although these domestic groups are usually too weak to constrain rights-abusing governments, they could seek help from external actors to put pressure on the target states.Footnote 48
Local authorities, on the other hand, deal with an incredibly parochial audience. Most civil servants and law enforcement officials at the local level report to their immediate bureaucratic superiors who are primarily concerned with practical issues rather than normative concerns such as human rights protection. Land disputes are a case in point. In many developing countries, to promote economic development, it is a common practice for local governments to confiscate land owned by farmers, villagers, and indigenous people. Land disputes often result in serious violations of human rights law. According to reports released by the Indonesian National Commission on Human Rights in 2016, land disputes not only involve the unlawful takeover of indigenous forests, but also numerous cases of human rights abuses, including ‘displacement, intimidation, [and] violence’.Footnote 49
For local, elected authorities who respond to larger constituencies, they could also have few incentives to observe international human rights norms that most local voters would find foreign. Although no direct evidence demonstrates local people’s deficient understanding of global affairs, the theory of world society aptly suggests so, as they are distant from international foci where participants (usually state leaders) are socialized and acculturated to adopt universal values and global scripts, including international human rights norms.Footnote 50 As to the relationship between knowledge about global affairs and human rights concern, findings from survey studies show that people (specifically, college students and young adults) who know less about global affairs show less concern about human rights.Footnote 51 Thus, ironically, we are likely to find in democracies areas where the domestic rule of law is respected but international human rights law hardly penetrates. In these places, local authorities do not accept progressive human rights norms diffused from the international society because they have an overriding incentive to appeal to local voters whose policy preferences collide with external norms.
Third, reputational costs also depend on the expected penalties of violations. For national leaders, breaching their commitments to international human rights law involves high penalties.Footnote 52 If their non-compliant behaviour is brought to public notice, they could suffer a crisis of legitimacy, as a sympathetic domestic constituency, human rights NGOs, liberal states, and international organizations with human rights mandates would make a concerted effort to condemn national leaders’ hypocrisy.Footnote 53 Although in many cases national leaders’ non-compliant behaviour stems from wrongful action carried out by incalcitrant agents, because central governments represent sovereign states and enjoy international legal personality, national leaders usually bear the brunt of international scrutiny. National leaders could also face prosecution by the International Criminal Court if they commit gross violations of international human rights law. Even if not convicted, national leaders could suffer significant ‘health and financial losses’ under the International Criminal Court investigations.Footnote 54 In contrast, if local officials are held accountable for their violations of human rights, they often receive administrative punishments, such as fines, reprimand, demotion, and dismissal. Those who commit human rights abuses can often get away with impunity or a light sentence because top leaders are concerned that harsh punishment might dampen the morale within a bureaucracy, thereby eroding elite support for a government.Footnote 55 For subnational authorities in federal states, legal consequences can also be minimal if their breach of international human rights law falls out of the scope of federal rules.
To summarize, national leaders face a broad international audience motivated by human rights concern and a domestic audience that can use national leaders’ non-compliant behaviour to delegitimize the incumbent government. Local authorities, however, face a narrow audience alienated from global norms, and they are often not held accountable for their rights-abusing behaviour.Footnote 56 This is particularly the case in democracies where local officials respond to local voters far away from the centre of global norms and in federal states where subnational authorities are the ultimate arbiters in certain issue areas. Furthermore, national leaders’ non-compliant behaviour relates to state policies, so it distinguishes itself from local officials’ human rights abuses that tend to be individually initiated. It is therefore harder to establish a pattern of rights-abusing behaviour committed by local authorities. On the whole, the effect of reputation is much weaker for local authorities than for national leaders.
3.2 National leaders managing blame for violating international human rights law
Building on the premise that reputation helps pull sovereign states towards compliance with international law and the basic understanding that central–local governmental co-ordination is crucial for the domestication of international law, the previous section argues that national leaders incur greater reputational costs than subnational authorities do if they fail to respect international human rights standards. These reputational costs are imposed mainly through ‘naming and shaming’, the softer approach of shining an unwelcome spotlight via news reporting, press releases, letter-writing campaigns, and expert reviews on countries and their leaders that do not live up to their human rights commitments.Footnote 57
The activity of naming and shaming is essentially the assignment of responsibility to an actor for her action that contravenes common rules, standards, and expectations in a social setting. Such causal attributions of responsibility serve as the ‘psychological adhesive’ that connects a factor or an actor not only to an event, but also to relevant prescriptions that allow people to take control of the event, especially when it involves a negative outcome.Footnote 58 When states fail to fulfil obligations under international human rights law, the international society, notably human rights NGOs that do not have a coercive arsenal at their disposal, often use naming and shaming to hold culpable national leaders accountable and to call on them to provide redress to the victims of human rights abuses.
The formation of causal attributions of responsibility, however, is not clear-cut. On the one hand, a long line of economic voting literature finds that the assignment of political accountability depends on institutional contexts. Footnote 59 Particularly, a divided government has been found to muddle voters’ judgment of governmental responsibility for economic conditions, making it harder for voters to reward or punish the incumbent government. Footnote 60 On the other hand, much evidence has shown that politicians are keenly aware of voters’ heterogeneous formation of responsibility attributions, and that they strategically shape or frame voters’ perception of policy outcomes, especially negative ones, to reduce the political damage from being blamed. Footnote 61
One common strategy politicians use is taking advantage of the decentralized or tangled bureaucracy to partially or fully deny the causal link between them and the negative outcome, and to designate the responsibility to other actors.Footnote 62 For example, US President Ronald Reagan has managed to avoid blame and to remain popular by using his decentralized style of leadership to scapegoat his subordinates.Footnote 63 The blame-shifting game among politicians in the midst of Hurricane Katrina’s political fallout in the US also vividly illustrates that the ‘confusing layers of bureaucracies and redundancies in services’ in a federal system make it easier for politicians to deny accountability and thus, harder for citizens to hold politicians answerable to their conduct. Footnote 64 Aside from blame-shifting attempts, to ease their responsibilities for negative policy outcomes, politicians can present mitigating circumstances such as ‘the policies of a previous administration’, shifting attention from personal responsibility to situational factors that leave policy makers ‘with no other choice but to reach the decision’.Footnote 65
Applied to the study of state compliance with international human rights law, particularly the question of to what extent international reputation exerts a ‘compliance pull’ on national leaders, the insights from the economic voting literature suggest that a decentralized governmental structure dilutes the effect of reputation on national leaders. The first and foremost component of naming and shaming is identifying the perpetrators of noncompliance. Targeted criticism is more likely to succeed because finding and isolating the persons at fault serves as the critical causal link between incidents of human rights violations and the remedies needed to redress these violations. Footnote 66 But much as politicians are motivated to manage blame for negative consequences in the domestic context, national leaders actively try to minimize the reputational damage of international condemnations of human rights violations. A recent study by Gruffydd-Jones shows that authoritarian governments temper the negative influence of international human rights pressure on their citizens by passing on information that reports human rights in the context of ‘geopolitical competition, rather than genuine individual rights violations’.Footnote 67 In addition to manipulating the flow and content of negative human rights information from abroad, research on responsibility attribution in the economic voting literature suggests that national leaders can take advantage of a decentralized governmental structure to produce explanatory accounts that excuse them from being held accountable for violating international human rights law.Footnote 68
One explanatory account that national leaders generate to divert the moral pressure from international society is accusing sub-national officials of violating human rights, despite the central government’s commitment to human rights protection. A decentralized governmental structure features divided authority and shared responsibilities between the central government and local authorities. Unless there is a nationwide rights-abusing policy, national leaders can reasonably claim that local authorities other than the central government are putting the state in breach of international human rights law. In 2004, 43 students from the Mexican state of Guerrero planned to attend a demonstration but before they showed up at the site for the protest, they were kidnapped, disappeared, and then murdered. Confronted with international condemnation of the massacre as well as the worsening human rights conditions in Mexico, President Peña Nieto defended the federal government’s incompetence, stating that the mass murder was ‘a strictly local issue’ and the governor of the state of Guerrero ‘should take responsibility’. Footnote 69
Another exculpatory account that national leaders use to manage blame is minimizing the severity of human rights violations, and framing rights-abusing behaviour as some errant conduct committed by individual local officials. As mentioned earlier, denying allegations of the widespread use of torture and ill-treatment in Nepal, Nepalese leaders maintained that the central government has never permitted such violent practices. Although they admitted the existence of rights violations in some places, they contended that these rights-abusing cases were sporadic incidents committed by uncivil local officials. In doing so, top officials seek to present an alternative storyline: the central government has always upheld its commitment to human rights protection; local officials’ idiosyncratic deviance other than high-level officials’ wicked intentions caused those rights-abusing incidents.
National leaders’ shifting blame to local officials, however, might not work as intended. The efficacy of attributing blame to other actors hinges on how credible the blame is. In addition to claims raised by the initiators of blame-shifting, audiences also consider counterarguments from the blamed. If the blamed can put forward a plausible case to contradict the scapegoating story, the effort to designate responsibilities would be severely thwarted. As discussed above, one tactic national leaders often use to avoid criticism of human rights violations is to cast blame down to subnational authorities. In authoritarian regimes characterized by a strict chain of control in the bureaucracy and political apparatus, this tactic works well because local officials would mostly keep away from openly expressing their disagreement. Consequently, whether or not the fault lies with national leaders, their strategy of blame-shifting prevails almost unchallenged in the domestic context.
In democracies, however, assessment of the blame-shifting strategy is not straightforward. One the one hand, national leaders’ efforts to accuse sub-national authorities can be greatly blunted by alternative explanations given by the latter. Due to laxer political control, sub-national authorities in democracies have more leeway to voice their dissenting opinion. In particular, when the preferences of local voters diverge from those of national leaders, sub-national authorities would have electoral incentives to fight back against accusations of wrongdoing from the top. These counter-arguments make it harder for national leaders to skirt blame. On the other hand, the very fact that politicians from different governmental tiers toss the blame back and forth demonstrates how tangled the political system is. And this kind of political game of ‘hot potato’ might just perpetuate national leaders’ blame-shifting plot that accentuates their limited control over the occurrence of bad outcomes at issue.
Other than shifting blame for human rights abuses to disobedient officials that occupy the lower end of the command chain, national leaders also use the power-sharing structure in a decentralized political system as a mitigating circumstance to reduce or waive the central government’s obligations under international human rights law. Because the power-sharing arrangements between the central and local governments entail carving out certain legislative or judicial jurisdictions to local authorities, the central government can argue that it has limited power to coerce local authorities to comply with international human rights law. To illustrate, the US government routinely attaches to some major international human rights treaties a federal clause that preserves states’ prerogatives in some issue areas.Footnote 70 In the case of ratifying the ICCPR in 1992, the US government added an understanding, stating that ‘the United States understands that this Covenant shall be implemented by the Federal Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered therein, and otherwise by the state and local governments’.Footnote 71 Similar to states’ qualified ratification of international human rights treaties with federal clauses,Footnote 72 leaders can offer the constitutional limits on the central government’s power as mitigating evidence to ward off criticism about non-compliant behaviour, which on many occasions arises from local authorities’ rejection of progressive human rights policies in issue areas within the privileges of local government. Such an effort to provide a situational excuse, however, might be hard to justify if made by a unitary state in which the power-sharing arrangements among different governmental tiers stem from the central government’s policy decision, which ‘can be revoked if the central government so wishes’. Footnote 73
In summary, national leaders use a variety of tactics to confuse the assignment of political accountability and to divert the moral pressure from international society, including scapegoating disobedient local officials, framing human rights abuses as isolated incidents, and using the fragmented authority structure in a decentralized political system as mitigating evidence for not upholding their obligations under international human rights law. Consequently, international reputation is not as effective as the extant literature suggests in pulling national leaders towards compliance with international human rights law.
4. Case Study: US compliance with Article 36 of the VCCR
A flurry of empirical research has examined whether and under what circumstances ‘naming and shaming’ – a tool of reputation sanction – constrains states’ transgressions against international human rights standards.Footnote 74 These studies, however, have not paid close attention to how moral pressure from negative publicity by international society operates in the shadow of domestic bureaucratic politics. Filling this void, while the previous section theorizes about how a divided governmental structure hampers the domestication of international human rights law through the reputation lens, this section takes up the empirical task of substantiating the theoretical framework by performing a case study of US compliance with Article 36 of the VCCR, a clause that safeguards foreign nationals’ individual rights to consular notification and access when they are arrested or detained by law enforcement officials in the receiving states.
The reasons for selecting this case are threefold. First, the VCCR provides a most-likely case to trace the effect of reputation on state compliance. Although it is common for states to shame each other for breaking human rights standards,Footnote 75 sceptics of the efficacy of international human rights law contend that sovereign states generally care little about how foreign governments (mis)treat their own citizens and thus, have few incentives to pressure foreign governments to stop violating human rights. The VCCR, however, differs from most international human rights instruments in that it is an international treaty that regulates inter-state consular relations and more relatedly, the treatment of detained or arrested nationals from a sending state in a receiving state. Thus, in cases of violations of the Vienna consular rights, national governments would have stronger incentives to intervene on behalf of their citizens imprisoned abroad. Yet, as the later discussion shows, in these cases where international pressure and reputational concerns are considerable, a divided governmental structure renders them almost ineffective.
Second, Article 36 of the VCCR offers a sound focus for analysing how governmental authorities react to the moral pressure emanating from violations of widely accepted human rights principles. Although Article 36 of the VCCR is not an explicit human rights clause, progressive forces in the international society – including the Inter-American Court of Human rights,Footnote 76 the UN Commission on Human Rights,Footnote 77 and the European Union – have given it dynamic interpretations and have considered the rights conferred under it part of the global human rights corpus. Notably, the failure to promptly notify foreign detainees or defendants of their rights to consular notification has been considered by the UN as a violation of the right to a fair trial and the right to adequate legal assistance, fundamental safeguards recognized within the ICCPR.Footnote 78 Additionally, the right to consular notification has been affirmed and incorporated in other international human rights instruments, including the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, the UN Rules for the Protection of Juveniles Deprived of their Liberty, the UN Standard Minimum Rules for the Treatment of Prisoners, and the International Convention for the Protection of All Persons from Enforced Disappearance.Footnote 79 Empowered by the new rights discourse, human rights proponents have mobilized around a series of high-profile lawsuits that fall within the jurisdictions of international and domestic courts and have called on policy-makers to respect the Vienna consular rights.
Third and relatedly, most of these contentious cases arise from US non-compliance with Article 36 of the VCCR, which is replete with diplomatic and legal ‘pulling and hauling’ among divergent actors, including US federal and state governments, foreign governments, human rights NGOs, and the ICJ. The records of US compliance are the focus of this case study simply because they provide rich fodder for probing political dynamics surrounding different political actors’ policy responses. It is worth noting that legal scholars have done an excellent job in delineating the history of US engagement with Article 36 of the VCCR and analysing how federalism complicates the incorporation of this article into the US legal system.Footnote 80 Complementing these scholarly works, the following sections aim to recast historical evidence scattered in the legal discipline and to illustrate how the lack of reputational concerns at the sub-national level and national leaders’ blame management prohibit the rigorous protection of foreign nationals’ consular rights in the US.
4.1 An overview of US engagement with Article 36 of the VCCR
Before the mid-1990s, the US government largely adopted co-operative measures on issues of consular notification and access. The Senate unanimously approved the VCCR and the Optional Protocol, which were signed by the US delegate at the 1963 UN Conference on Consular Relations in Vienna. Upon the Senate’s approval, President Nixon ratified the VCCR in November 1969. Even before the US ratification of the VCCR, federal law enforcement agencies had already taken steps to implement policies that gave effect to consular notification and access embodied in Article 36 of the VCCR.Footnote 81
In the mid-1990s, Sandra Babcock, an attorney in Texas, started to lead the efforts of using international law, mainly Article 36 of the VCCR, to seek relief for foreigners on death row in the US. On behalf of Joseph Stanley Faulder, a Canadian sentenced to death for murder by a Texas trial court in 1979, Babcock filed a petition in the US Supreme Court in November 1998 and asked for a review of Faulder’s death sentence. In her motion, she maintained that Faulder’s right to consular assistance in accordance with the terms of the VCCR was violated and that ‘prosecutors had withheld evidence that might help exonerate him’.Footnote 82
While Faulder’s petition to the US Supreme Court was running its course, his case gained international attention as the Canadian government intervened in this case. Lloyd Axworthy, the Canadian Foreign Minister, contacted the Secretary of State Madeleine K. Albright and Texas Governor George W. Bush, calling for the postponement of Faulder’s execution.Footnote 83 In response to the Canadian government’s request, Albright wrote a letter to Governor Bush and brought up Babcock’s VCCR argument. Albright urged Governor Bush to delay the execution until ‘issues regarding Mr. Faulder’s rights under the treaty could be examined’.Footnote 84 As a strong supporter of capital punishment, Bush showed no interest in granting clemency. After some futile attempts by Babcock and the Canadian government to seek relief from avenues such as the UN, the Inter-American Commission on Human Rights, and the US Supreme Court, Faulder was executed in 1999.Footnote 85
The novel use of Article 36 of the VCCR as a defence in the Faulder case sent ripples through the US judicial system.Footnote 86 Since the mid-1990s, a cascade of litigation was filed in state and federal courts, raising the issue of violations of the right to consular notification under Article 36 of the VCCR. In several prominent cases involving the death penalty, foreign governments filed motions against the US before the ICJ. The Breard case is one such.
Angel Breard, a Paraguayan national, was sentenced to death in 1993 for attempted rape and murder in Virginia. Following failed appeals to state and district courts, he filed a federal habeas corpus petition in 1998. In his petition, he claimed that his trial was marred because his defence attorney and state habeas counsel failed to raise this issue of Virginia authorities’ violation of his Vienna consular rights. Footnote 87 Although the court admitted that ‘Virginia’s persistent refusal to abide by the Vienna Convention troubles the Court’, it reasoned that he never alleged violations of his consular rights in state court proceedings. Footnote 88 Accordingly, Breard’s claim was considered procedurally defaulted and was thus dismissed.Footnote 89
Prompted by the denial of relief for violation of Breard’s consular rights, the Paraguayan government sued Virginia officials in federal district court and the US Court of Appeals for the Fourth Circuit. Paraguay also attempted to stop the imminent execution of Breard through ‘the good offices’ of the US State Department. As Paraguay’s legal and diplomatic efforts bore no fruit, it took the US to the ICJ in 1998 and requested provisional measures of protection.Footnote 90 The ICJ unanimously issued a preliminary order, asking the US to ‘take all measures at its disposal to ensure that Breard is not executed pending the final decision in these proceedings’. Footnote 91
Following the ICJ’s preliminary order, the US federal government submitted an amicus brief upon the US Supreme Court’s invitation and advised the US Supreme Court to deny both Paraguay and Breard’s requests for relief. In the brief, the Solicitor General and the Legal Adviser asserted that the ICJ’s order was suggestive rather than mandatory. Footnote 92 On the other hand, Secretary of State Albright wrote a letter to the Governor of Virginia, James S. Gilmore. In her letter, she noted the non-binding nature of the ICJ’s order. But due to her concern that ‘[t]he execution of Mr. Breard in the present circumstances could lead some countries to contend incorrectly that the US does not take seriously its obligations under the Convention’, she requested that Governor Gilmore grant a reprieve of Breard’s execution.Footnote 93
The US Supreme Court later denied the petitions of Paraguay and Breard. Governor Gilmore also declined to stay Breard’s execution. He explained that ‘[t]he US Department of Justice, together with Virginia’s Attorney General, make a compelling case that the International Court of Justice has no authority to interfere with our criminal justice system’.Footnote 94 Breard was executed on 14 April 1998 before the ICJ could deliver a ruling. Paraguay later withdrew its action against the US in the ICJ and thus saved the US the trouble of confronting a possible unfavourable decision. But in less than a year, the US would become involved in another tussle over the Vienna consular rights in the ICJ.
After much futile diplomatic effort, the German government instituted a proceeding against the US before the ICJ in March 1999 on behalf of Karl and Walter LaGrand, two German nationals sentenced to death for a murder in Arizona. As foreign nationals, they were not advised of their rights to seek help from consular officials throughout their detention and trials. This time, the ICJ handed down a decision in the LaGrand case, ruling that the US failed to comply with the VCCR by not informing foreign detainees of their consular rights. The ICJ’s decision, however, was not clear about what remedies aggrieved detainees would receive. Indeed, many US courts ignored the ICJ’s decisions when considering petitioners’ claims of violations of their consular rights. Moreover, violations of the Vienna consular rights were still widespread at the local level since most of the arrests fall under state jurisdictions and ‘it has proven all but impossible to guarantee that state law enforcement officials observe this obligation in all cases’.Footnote 95
Due to US ongoing non-compliance with the VCCR, on behalf of 54 Mexican nationals, including Carlos Avena Guillen who was on death row, Mexico filed an action against the US before the ICJ in 2003. In its application, Mexico asked the ICJ to specify what remedies the US authorities should provide when Mexican nationals’ consular rights were violated. Supporting Mexico’s claims, the ICJ ruled in 2004 that ‘the process of review and reconsideration should occur within the overall judicial proceedings relating to the individual defendant concerned’.Footnote 96 Echoing Mexico’s argument that ‘no state may invoke its municipal law or internal structure to excuse or justify failure to obey international law’, the ICJ held that the clemency procedure as practised in the US ‘does not appear to meet the requirements … and that it is therefore not sufficient in itself to serve as an appropriate means of “review and reconsideration” as envisaged by the Court in the LaGrand case’. Footnote 97 Accordingly, the ICJ concluded that it is incumbent on US courts to undertake ‘the effective “review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in the Convention” as already proscribed in the ICJ’s ruling in the LaGrand case’. Footnote 98
On 28 February 2005, President George W. Bush issued a Memorandum through his Attorney General. In the Memorandum, President Bush wrote that ‘the United States will discharge its international obligations under the decision’ of the ICJ in the Avena case. He further directed state courts to ‘give effect to the decision in accordance with general principles of comity’ in the Avena case. Despite President Bush’s push for compliance, subnational governments withstood the top-down enforcement of international human rights standards. For example, in a case concerning Medellín, a Mexican national who sought relief for his conviction and sentence on the ground that his Vienna consular rights were violated, the Texas Court of Criminal Appeals dismissed Medellín’s state habeas corpus petition, holding that ‘neither the Avena decision nor the President’s Memorandum was “binding federal law” that could displace the State’s limitations on the filing of successive habeas applications’. Footnote 99 The US Supreme Court later affirmed the judgment of the Texas Court of Criminal Appeals and ruled that the President overstepped his authority. The Bush administration’s conciliatory stance on the issue of the Vienna consular rights was short-lived, as it withdrew from the Optional Protocol of the VCCR one week after the issuance of the 28th memorandum and thus terminated the ICJ’s compulsory jurisdiction over disputes arising from US breach of the VCCR.
4.2. Differential reputational concerns
The cases of violations of the Vienna consular rights have a strikingly similar storyline. After years of imprisonment, a death row foreign national found that he had not been advised of his right to seek help from his consulate when he was detained or arrested by local law enforcement officials. He then filed state and federal habeas corpus petitions to seek relief and suppression of incriminating evidence on the ground that his right to due process and a fair trial had been violated due to law enforcement agencies’ failure to advise him of his consular rights under Article 36 of the VCCR, to which the US is a party. His claim of violation of his Vienna consular rights was barred due to the procedural default rule in state courts.
In response to domestic opposition to enforcing the Vienna consular rights, a coalition of progressive forces put pressure on the US. Foreign governments appealed to federal and state authorities through diplomatic channels. As mentioned earlier, in the Faulder case, the Canadian Foreign Minister Lloyd Axeworthy personally asked Secretary of State Madeleine Albright to help stop the Faulder’s execution.Footnote 100 In the LaGrand case, the President and the Chancellor of Germany, the Foreign Minister and Minister of Justice of Germany, the German Ambassador to the US, and the Consul-General in Los Angeles all intervened for Karl LaGrand and made appeals to the US President and Arizona Governor.Footnote 101
In addition to diplomatic efforts, foreign governments, intergovernmental organizations, and human rights groups submitted amicus curiae briefs to express their positions on issues of the Vienna consular rights. For example, in the Medellín case, the EU filed an amicus brief to support Joseph Medellín.Footnote 102 The EU stated that Article 36 of the VCCR conferred judicially enforceable rights and that the consular rights are part of customary international law. Thus, the conviction and sentence of Medellín should be reconsidered by the Court, and the state procedural default rule may not be applied.
Human rights activists also organized protests to denounce violations of the Vienna consular rights. Amnesty International USA joined hundreds of protesters to denounce Florida’s violation of Joaquin Martinez’s right to consular notification before the US Embassy in Madrid, Spain in December 1999. Sam Jordan, Director of the Program to Abolish the Death Penalty of Amnesty International USA, commented that ‘[o]nce you allow a state to disregard international treaties that this country has signed and ratified, you lose the moral authority to demand that foreign governments grant our citizens the rights outlined in those treaties’.Footnote 103 In the Faulder case, human rights groups worked hard to support the commutation of Faulder’s death sentence. They held vigils and organized letter-writing campaigns; it is estimated that about ‘4,000 letters poured into the Austin office of the Texas Board of Pardons and Paroles in support of commutation’.Footnote 104
According to the reputation-based theoretical framework discussed in the previous section, the differential reputational costs between national leaders and local authorities lead to the empirical observation that the former are more responsive to international pressure. Indeed, the federal government showed more respect to appeals from the international society. When the Breard case put Paraguay and the US at the centre of a bitter international legal tussle, then Secretary of State Madeleine Albright asked Virginia Governor Gilmore to hold the execution of Breard partly due to her belief that ‘[t]he execution of Mr. Breard in the present circumstances could lead some countries to contend incorrectly that the US does not take seriously its obligations under the Convention’.Footnote 105 Similarly, in the Faulder case, Albright asked the Texas authorities to grant some executive relief. She noted that ‘the strong efforts Canada customarily makes to help its nationals’ could have prevented Faulder’s trial attorney from mishandling his case at the sentencing phase of his trial.Footnote 106 Albright’s interventions, though falling short of calling for a commutation of Beard’s and Faulder’s death sentences, illustrate that due to their active participation in various global forums where ideas, appraisals, and disapproval are exchanged, national leaders are more concerned with their international reputation and thus, are more receptive to global norms.
Unlike national leaders, subnational authorities were largely unresponsive to international pressure, some of which was applied through federal officials. In both criminal cases where Albright intervened, state and local officials mostly ignored her requests as well as international pressure. In the Breard case, Virginia Governor Gilmore decided to proceed with Breard’s scheduled execution, despite the ICJ’s provisional measures of order and Albright’s appeal. In the Faulder case, the Texas Board of Pardons and Paroles unanimously decided not to recommend clemency, regardless of ‘editorials supporting commutation in major US newspapers, appeals from the Canadian government and the intervention of many prominent organizations and individuals’, including Secretary of State Albright.Footnote 107 Faulder’s attorney later found out that members of the Texas Board did not even review Albright’s letter.Footnote 108 According to Amnesty International, the Texas Board members mentioned at a court hearing that ‘they had almost no memory of the particulars of the Faulder case and had paid little attention to the concerns expressed by the State Department’.Footnote 109 Not only appeals from the Secretary of State but also the president’s executive order failed to bring state governments into line with US treaty obligations. After President Bush took the extraordinary step of ordering state courts through a memorandum to re-examine cases involving death row inmates named in the Avena decision, Jerry Strickland, a spokesman for the Attorney General of Texas, commented that ‘[t]he State of Texas believe no international court supersedes the laws of Texas or the laws of the United States’.Footnote 110
The different measures that George W. Bush took to handle cases concerning the VCCR when he was the Governor of Texas and when he was the President further demonstrate that reputational concerns resulted from international pressure influence national leaders more than subnational authorities. While the Faulder case in Texas was gaining world attention and provoking international criticisms, George W. Bush was unmoved by Albright’s request for a reprieve and the Canadian Prime Minister’s call for a stay of execution. He commented that ‘[i]n general, I will uphold the laws of the state of Texas, regardless of the nationality of the person involved’, and that ‘[p]eople can’t just come into our state and coldbloodedly murder somebody’.Footnote 111 According to Amnesty International, in another VCCR case involving Irineo Montoya, a Mexican national on death row, the State Department ‘asked the Texas authorities to investigate the breach of Montoya’s consular rights and report back to the State Department prior to Montoya’s execution’, but ‘the Texas authorities have so far failed to respond’.Footnote 112 The Mexican foreign Minister also intervened and asked Governor Bush to delay the execution but to no avail.Footnote 113
As a strong supporter of the death penalty, Texas Governor Bush showed little sympathy to appeals from the State Department and the international society. But when he sat in the White House, he softened his long-standing position in support of capital punishment, at least in cases concerning the Vienna consular rights. As discussed earlier, after the ICJ issued its judgment in the Avena case, President Bush decided to discharge the US obligation under the VCCR and to give effect to the Avena decision. He sent a memorandum through his Attorney General, directing state courts to re-examine proceedings involving named foreign nationals in the Avena case. Although the Bush administration was concerned that interference with state criminal procedure would provoke a backlash from state authorities, reputational concerns eventually tipped the balance towards President Bush’s use of his constitutional authority to intervene. Officials in the Bush administration took note of ‘the President’s reputation in certain foreign capitals as a unilateralist eager to exercise executive power in breach of international norms’.Footnote 114 ‘Noncompliance with the ICJ order would only reinforce the belief that the United States was neither respectful of the rights of other nations nor in compliance with international law’, some officials in the Bush administration argued, ‘this perception would further encourage European public opposition to US policy and would likely discourage European governments from working with the United States in Afghanistan and Iraq’.Footnote 115
The records of US compliance with Article 36 of the VCCR indicate that the differential reputational concerns between national leaders and subnational authorities shaped their divergent policy responses to legal disputes over violations of the Vienna consular rights. National leaders are more sympathetic to appeals from the international society because they are concerned that continuing non-compliant behaviour would undermine US values and interests in upholding international legal standards. National leaders’ receptiveness to moral persuasion is evidenced by Albright’s communications with subnational authorities following foreign governments’ pressure and President Bush’s changing stance on death penalty cases that involve violations of the Vienna consular rights. Without international pleas and diplomatic pressure, the Bush administration would not have directed state courts to comply with the ICJ’s decision in the Avena case. In contrast, for subnational authorities who care little about their international reputation, moral appeals hardly hold sway. Seldom did state governors yield to requests from the US federal government and foreign governments.
4.3. Blame management
Due to differential reputational concerns, recalcitrant, subnational authorities impede the penetration of international human rights law at the local level, especially in a decentralized political system where local officials enjoy substantial discretion in policy implementation. Although national leaders are expected to show more respect to international human rights law, international reputational concerns might not exert as a strong ‘compliance pull’ as the existing human rights literature suggests because national leaders are motivated to take advantage of the fragmented authority structure in a decentralized political system to shift blame for violating international human rights standards to local officials and the internal governance system.
As discussed before, the central government’s strategy of using the domestic governance system as mitigating evidence for not fulfilling obligations under international human rights law is more evident in a federal state in which the limits on the central government’s power to enforce top-down implementation of human rights policies are established by the constitution rather than a policy decision. Indeed, in several high-profile legal disputes involving US violations of Article 36 of the VCCR, the US federal government’s responses in court settings exemplify how the central governments in federal countries use domestic federal structures as a political excuse to evade their liabilities for breaches of treaty obligations. For example, in a brief submitted to the US Supreme Court in the Breard case, the Solicitor General argued that ‘our federal system imposes limits on the federal government’s ability to interfere with the criminal justice system of the States’. Footnote 116 Thus, ‘measures at the United States’ disposal under our Constitution may in some cases include only persuasion … and not legal compulsion through the judicial system’. Footnote 117
The US government made similar arguments of federalism restrictions in the LaGrand case before the ICJ. Germany requested the ICJ to issue a provisional measures order to stay the imminent execution of Walter LaGrand. The ICJ granted the order. In the order, the ICJ requested the US government to take all measures to make sure that Walter LaGrand was not executed before the ICJ delivered its final decision. Responding to the ICJ’s order, the US government argued that other than transmitting the ICJ’s order to Virginia Governor Jane Hull, ‘the measures at the United States Government’s disposal were exceedingly limited’. Footnote 118 The US government explained that ‘the character of the United States of America as a federal republic of divided powers’ is one of two main factors that limited its ability to give full effect to the ICJ’s order. Footnote 119 ‘The separate states are not subsidiary bodies subordinate to the power of the Federal Government and subject to its direction’, it further elaborated, ‘[r]ather, they remain sovereign and the masters of their affairs within the areas of responsibility reserved to them by the United States Constitution’. Footnote 120 It further called attention to states’ prerogative in criminal law, ‘[o]ne of the most important functions reserved to the states is criminal law enforcement, including the right to impose and administer capital punishment in serious cases prescribed by state law’. Footnote 121
The US federal government’s rhetoric of federalism restrictions in courtrooms is accompanied by its lacklustre enforcement of the ICJ’s judgements on cases concerning US violations of Article 36 of the VCCR. For example, upon receiving the ICJ’s provisional measures order in the Breard case, the federal government did nothing more than transmit the order to the US Supreme Court and Virginia Governor Gilmore. Although the State Department later sent a letter asking Virginia’s governor to stay Breard’s execution, this letter ‘looked more like an inducement based on the statement of facts rather than a request’. Footnote 122 Moreover, the State Department sent a confusing message by saying that the United States ‘has throughout vigorously defended Virginia’s right to go forward with the sentence imposed on Mr. Breard by Virginia’s courts’. Footnote 123 By doing so, the US government appeared to have no intention to obey the ICJ’s order, which held that the US ‘should take all measures at its disposal to ensure that Angel Francisco Breard is not executed pending the final decision in these proceedings’. Footnote 124
The US federal government’s invocation of federalism restrictions in court settings and its half-hearted effort to give effect to the ICJ’s rulings is not in harmony with the federal government’s practice of taking direct, compulsive actions at times to strengthen US compliance with international treaties. Specifically, as Quigley notes, in some cases ‘in which a local or state government authority has acted in a way that put the United States in violation of a treaty violation, the US Attorney General has sued’. Footnote 125 Clearly, unlike what the federal government claimed, the measures at its disposal are not limited to persuasion. Another telling piece of evidence is that, in the wake of the ICJ’s Avena decision, President Bush issued a memorandum to bring state courts into conformity with the Avena decision. Although the US Supreme court later ruled that President Bush’s memorandum was unconstitutional, the very fact that President Bush took such an unprecedented action suggests that the remedies at the federal government’s disposal go beyond appealing to state governors via written communications.
The US federal government’s wavering stance on the domestic enforcement of international law indicates that when deciding to enforce an international treaty it balances foreign relations and international obligations against domestic federalism concerns. If the costs of overcoming domestic federalism obstacles exceed the benefits of complying with an international treaty, the federal government is unlikely to take effective measures to bring states into compliance with the treaty. The case of US compliance with Article 36 of the VCCR fits squarely within this scenario.
The federal government’s lacklustre enforcement of the Vienna consular rights has, therefore, drawn a lot of negative publicity and lawsuits from lawyers, human rights activists, and foreign governments. But the fact that subnational governments violate treaty terms but cannot be held accountable for these violations in international law creates strategic room for the federal government to ward off international criticism. Unlike some other central governments that choose to put blame on subnational authorities, the US federal government offered mitigating evidence imbued with legal discourse in response to a series of contentious cases that put the US in the spotlight. Specifically, the federal government used the constitutional limits placed on its scope of regulating state matters as an excuse for not rectifying subnational authorities’ violations of the Vienna consular rights. It also argued that other than persuasion, it had limited means to compel state governments to observe treaty terms under the VCCR. By doing so, the US federal government sought to justify the very limited action it took was no half measure.
5. Conclusion
Since Hathaway’s seminal study, a continuing debate in the human rights literature concerns whether international human rights law helps curb repressive state behaviour.Footnote 126 The general view in this body of literature holds that international human rights law in itself does not automatically translate into better human rights performance but depends on various scope conditions to realize its intended effect.Footnote 127 Building on the basic understanding that the working of international human rights law operates in the shadow of domestic bureaucratic politics, this article highlights that the lack of reputational concerns at the subnational level and the central government’s shifting blame to subnational authorities and the internal governance structure make international human rights law less effective. In the process, this study forges connections between law and politics by revealing that the actual impact of reputation – the major ‘compliance pull’ of international human rights law – is much weaker in a decentralized political system.
The retarding effect of a divided governmental structure on the domestication of international human rights law is evidenced by the tumultuous history of US engagement with Article 36 of the VCCR, not an explicit human rights clause by design but a legal base used by human rights activists and foreign governments alike to elevate the protection of consular rights into an international human rights norm via negative publicity, diplomatic intervention, and most notably, legal proceedings before the ICJ and in US courts. Due to differential reputational concerns, while high-ranking officials in the US federal government showed sympathy to international appeals, subnational authorities largely ignored pressure from the international society as well as the federal government. Additionally, the US federal government used the domestic federalism structure as mitigating evidence for not rigorously enforcing the Vienna consular rights. Although it claimed that other than persuasion it had very limited ability to interfere with state affairs, the historical practice of federal-state relations suggests that the federal government can take direction actions to strengthen US compliance with the VCCR.Footnote 128
Because the reciprocal treatment of imprisoned foreign nationals regulated by Article 36 of the VCCR provides contracting countries with a stronger incentive to exert moral as well as diplomatic pressure on the US governments, the records of US compliance provide a most-likely case to substantiate how reputational concerns, albeit in their strongest possible form, are rendered ineffective by a divided governmental structure. For most international human rights instruments in which the ‘deterrent effect of reciprocity’ has no pivotal position, states could be less constrained by reputational concerns that stem mainly from nonstate actors’ negative publicity.Footnote 129 Therefore, we probably should not be too optimistic about the positive effect of reputational concerns on pulling states toward compliance with international human rights law in many countries with a fragmented authority structure.
Although the case of US compliance with Article 36 of the VCCR is selected for its setting in which reputational concerns are most likely to have an effect, the reputation-based theoretical framework, which is developed in the context of international human rights law in this article, applies to other areas of international law that also involve the regulation of domestic conduct. When a set of international legal standards seek to regulate domestic conduct, such as a national government’s treatment of its own citizens in the human rights sector and the preservation of biodiversity in the environment protection sector, the principal mechanisms of compliance are moral persuasion and reputational sanctions, not inter-state tit-for-tat sanctions that often entail serious material consequences.Footnote 130 In addition to the regulation of domestic conduct, considerable subnational implementation is another facet of those areas of international law to which the reputation-based theoretical framework can be applied. Other than issues of ‘high politics’ – such as national security and diplomacy – that involve mainly interactions among high-ranking officials, a wide range of international legal principles and rules regulate social and economic matters that fall within subnational governments’ legislative and judicial jurisdictions or their scope of discretion. Subnational authorities’ role in policy implementation has become even more central in the past few decades, as many countries across the world have carried out decentralization reforms through which the central governments transfer substantial authority and responsibility to subnational governments.Footnote 131
One major policy implication of this study is that to advance human rights, human rights proponents should take measures to hold local officials accountable. Indeed, against the background of national governments’ declining control over their territories in the past few decades, there is a growing consensus among human rights activists that promoting human rights on the ground necessitates looking beyond nation-states. International society has recognized that it is crucial to work with not only national governments but also local actors, especially local governments. The European Charter for the Safeguarding of Human Rights in the City of 2000, which has been signed by more than 400 cities, manifests human rights activists’ effort to find alternative pathways to bring human rights closer to home. Another example of this new development is the European Coalition of Cities Against Racism, an initiative created by the UN Educational, Scientific and Cultural Organization in 2004. Furthermore, the resolution adopted by the UN Human Rights Council on 26 September 2013 and several subsequent resolutions further demonstrate a global commitment to strengthen the foothold of local authorities in international legal systems. Footnote 132 While reminding national governments of their obligations to create official human rights laws and regulations, these resolutions emphasize the important role of local governments in translating these formal laws into actual policy outcomes.Footnote 133
