Overcoming Temptations to Violate Human Dignity in Times of Crisis: On the Possibilities for Meaningful Self-Restraint

Abstract

The codification of key instruments of international human rights law and international humanitarian law, and the accession to those treaties by a large majority of states, does not, at least at first glance, seem to have any significant effect upon states' behavior in situations of crisis. Any understanding of the prospects for such law in these situations requires an appraisal of both the motivations of states in concluding these treaties and the pressures on them to ignore them. This paper analyzes those motivations and temptations through the framework of precommitment theory, a component of rational choice theory, originally articulated by Jon Elster and Thomas Schelling. The metaphor of Ulysses offers a useful way to address three different dimensions of the purposes that states join treaties: (1) beliefs, i.e., the state's attitude toward the norms in the treaty; (2) predictions, the state's concerns about its own future behavior; and (3) interactions, i.e., the extent to which the state is trying to influence or bind other states. And it permits linking those motivations to the propensity of states to comply at a later time. The paper offers a four-part typology for why states commit to such treaties, contrasting it with notions from contemporary international relations theories. It then explores the contrasting approaches of compliance theories and international law doctrine to the temptation of states to violate treaties and elaborates the contributions of the precommitment framework. Building upon that framework, it proposes a set of strategies that those concerned with compliance might explore for making international law more relevant when governments seem most inclined to discount it.