Academic journal article
By Goodman, Ryan; Jinks, Derek
Duke Law Journal , Vol. 54, No. 3
Regime design choices in international law turn on empirical claims about how states behave and under what conditions their behavior changes. Substantial empirical evidence suggests three distinct mechanisms whereby states and institutions might influence the behavior of other states: coercion, persuasion, and acculturation. Several structural impediments preclude effective implementation of coercion- and persuasion-based regimes in human rights law--yet these models of social influence inexplicably predominate in international legal studies. In this Article, we first describe in some detail the salient conceptual features of each mechanism of social influence. We then link each of the identified mechanisms to specific regime design characteristics--identifying several ways in which acculturation might occasion a rethinking of fundamental regime design problems in human rights law. Through a systematic evaluation of three design problems--conditional membership, precision of obligations, and enforcement methods--we elaborate an alternative way to conceive of regime design. We maintain that (1) acculturation is a conceptually distinct social process through which state behavior is influenced," and (2) the regime design recommendations issuing from this approach defy conventional wisdom in international human rights scholarship. This exercise not only recommends reexamination of policy debates in human rights law, it also provides a conceptual framework within which the costs and benefits of various design principles might be assessed. Our aim is to improve the understanding of how norms operate in international society with a view to improving the capacity of legal institutions to promote respect for human rights.
TABLE OF CONTENTS Introduction I. Three Mechanisms of Social Influence A. Coercion B. Persuasion C. Acculturation 1. The Microprocesses of Acculturation 2. Acculturation as Incomplete Internalization: Distinguishing Persuasion 3. Acculturation as Social Sanctions and Rewards: Distinguishing Coercion 4. Acculturation and the State II. Conditional Membership A. Coercion B. Persuasion C. Acculturation III. Precision of Obligations A. Coercion B. Persuasion C. Acculturation IV. Implementation: Monitoring and Enforcement A. Coercion B. Persuasion C. Acculturation V. Toward an Integrated Model Conclusion
International regime design questions are essentially empirical in nature. (1) Addressing them requires nothing short of understanding the social forces that shape the behavior of states--whether rewards and penalties, reasoned arguments, or concerns about status might influence recalcitrant states (and individuals). In this Article, we identify three specific mechanisms for influencing state practice: coercion, persuasion, and acculturation. We also describe the distinct, and sometimes competing, logic of each mechanism. Optimal regime design, we contend, is impossible without identifying and analytically foregrounding the mechanisms of influence and their discrete characteristics. We consider in detail how these mechanisms of social influence might occasion a rethinking of fundamental regime design issues in international human rights law.
The increasing exchange between international relations scholarship and international legal scholarship illuminates some of the difficulties involved in regime design and offers useful insights to resolve them. (2) Much current international relations research focuses on theoretical and empirical issues concerning human rights and state practice. (3) This work has inspired legal analyses of international human rights regimes. This groundbreaking "first generation" of empirical international legal studies demonstrates that international law "matters." (4) Nevertheless, the existing literature does not adequately account for the regime design implications of this research. …