Suboptimal Human Rights Decision-Making

Abstract

The literature on human rights generally assumes that when a state fails to comply with human rights norms, it is because the state’s leaders rationally determined that a violation would maximize the state’s expected utility. Strategies for improving compliance accordingly focus on altering a state’s expected utility calculation either through coercion, which seeks to introduce external incentives that make compliance more attractive, or persuasion, which seeks to recalibrate a state’s underlying preferences. A wide array of social science research, however, has demonstrated that human beings regularly make suboptimal decisions that fail to maximize their expected utility. This so-called behavioral research has had a significant impact on domestic law scholarship, but its implications for human rights, as well as for international law more broadly, have not yet been adequately explored.

This Article begins that long-overdue conversation by showing that states may in some instances have an interest in complying with human rights norms but fail to do so as the result of suboptimal decisionmaking by their leaders. In particular, the Article explores how three strands of social science research — on prospect theory, overconfidence, and emotion-based decisionmaking — have been applied to state leaders in international relations scholarship and can be extended to help explain suboptimal decisions in the human rights context. In doing so, the Article also addresses (without attempting to conclusively resolve) some of the major methodological objections to such a project by collecting the most recent available research on the extent to which experimental findings about individuals in laboratories can be translated into predictions about state behavior. The Article then discusses two examples in further depth to illustrate how suboptimal decisionmaking may have contributed to human rights violations in real-world scenarios. Finally, the Article identifies several steps the human rights community can take, beyond coercion and persuasion, to capitalize on existing incentive structures and find ways to ensure that states that already have an interest in complying actually do so.

Keywords: human rights, international law, behavioral economics

JEL Classification: K33