Political Repression, Human Rights and the Rule of Law: The Global Picture, 1976-2005
C. Neal Tate and Linda Camp Keith
The recent wave of democratization and the concomitant increase in constitution writing have engendered significant optimism that the state of global human rights would improve in tandem with these trends. At the same time international financial organizations and bilateral and multilateral aid organizations increasingly have supported state efforts to improve human rights through rule of law initiatives, particularly those focusing on judicial reform. However, this expectation has not been met in a significant number of countries. Indeed, countries that are parties to the international human rights treaty regime have been found to have worse human rights behavior than those who are not states parties, countries receiving U.S. rule of law aid have been found to have worse human rights behavior, and at least some constitutional provisions have been found to be ineffective in regard to states human rights practices, and some provisions such as those for states of emergency have proven to be more harmful than helpful. And thus political scientists and international law scholars have turned their attention to the theoretical and normative expectations and have begun to engage in rigorous systematic empirical analysis of this question—does the law make in a difference in human rights practices? The goal of this book is to build upon this initial scholarly work in political science and law, examining in the global set of states over a thirty year period of time the impact of constitutional provisions for fundamental freedoms and rights typically associated with bills of rights and now promised in international law, the impact of constitutional provision for judicial independence and actual levels of judicial independence, and the impact of constitutional states of emergency provisions. We seek to enhance our current understanding of the circumstances and ways in which these formal provisions and institutional design prevent states from abusing the rights of their citizens. We will examine these influences across regime type, during a variety of domestic and international threats, and across a variety of international and domestic factors regarding economic development and the socialization toward human rights norms. Our expectation is that this research should provide a more robust theoretical framework of understanding state human rights behavior that is relevant to both scholars and policy makers alike.
Description of Subject
The potential for improved global human rights has rarely appeared as promising as it has in this first decade of the new century. The fall of the Soviet Union and the spread of constitutional democracies across the globe have followed upon a period of near-global acceptance of international human rights standards (set forth in the Universal Declaration of Human Rights) and widespread participation in international documents that legally bind states to many of these human rights standards. What was long regarded as an American peculiarity, a written constitution with a bill of fundamental rights, protected by an independent judiciary, especially one empowered with judicial review, today is seen as a global model of democratization to the extent that, as Waldron (1998) notes, newly independent or democratizing countries “turn almost instinctively to some version of this constitutional arrangement” (335). Indeed, as Howard (1991) suggests, almost every country in the world has adopted some document called a constitution, and as Blaustein (1993) concludes, constitutions have become “the only fixture of modern government to be universally accepted” (70-1). Institutionalization of the rule of law and building of an independent judiciary have become direct goals of U.S. democracy assistance (see Talbott, 1998) and international financial institutions (see Rishmawi 1999 and Garcia-Sayan 1999).
For some scholars and commentators, this proliferation of legal protections and provision for judicial independence represents substantial progress and engenders considerable potential for human rights protection. This optimism may stem from the general belief that the best way to safeguard individual freedoms is through “the enumeration of rights and their protection by the judiciary” (Rosenthal 1990, 401). Presumably regimes would be less willing to abuse rights that are clearly and publicly promised to their citizens in a legally binding document and that are supported by constitutional mechanisms, such as an independent judiciary (on independence, see, for example, Mutua 2001; Prillaman 2000; Ramseyer 1994) which serve as a check on the scope and direction of the power of the government (for example, see Andrews 1964, Finer 1974, Elster 1993, Finer et al. 1995; Daima 1998). Even if constitutions do not serve as a charter of these fundamental rights, they may still serve as a “binding statement of a people’s aspirations for themselves as a nation” (Murphy 1993, 10) and ultimately may foster the conditions under which a regime would give in to demands for these fundamental protections (see also Finer 1974 and Finer et al. 1995). The mere existence of constitutions, particularly bills of rights, may encourage the development of a rights consciousness among the people (see Epp 1998, MacGuigan 1965, Martin 1991, and Murphy 1993).
However, this optimism is countered by skeptics who doubt state commitment to these documents and question the effectiveness of these legal document's mechanisms. Others argue that the effects of these documents “are commonly exaggerated” or in fact may be “shams” (see Epp 1998, 13). Howard (1991, 3) argued that many of the world’s constitutions are “worthless scraps of paper." Ludwikowski (1996, 227) pointed out that constitutions may also limit individual rights, affording personal freedoms protection only within the boundaries of the state's law or placing an equal if not greater emphasis on individual duties to the nation. Additionally, many constitutions stipulate that any guaranteed rights must not be detrimental to the nation's best interest or the public good. Thus formal-legal protection promised by constitutions and their bills of rights may be full or may be limited.
Even while the world's constitutional experts have been busy advising newly independent states and emerging democracies how best to provide constitutional protections to their citizens, the effect of the law (and its specific components) on states human rights behavior has remained an unanswered empirical question, one that political scientists have only begun to explore in rigorous systematic analyses. Such analysis would allow us not only to identify which elements of law work, but also would allow us to determine under what circumstances or conditions, these elements work best. It is this overarching goal we seek to achieve in the proposed book. The earliest analyses (Boli-Bennett 1976, Pritchard 1986) found evidence that would support our constitutional skeptics—not only were the constitutional provisions not associated with improved rights behavior, the associations were in the opposite direction. Blasi and Cingranelli (1996), who focused a larger set of countries, examined the impact of two types of constitutional provisions, the provisions for an independent judiciary and for a federal system on the human rights practices. They did find some evidence to support the optimist’s expectation; their index of constitutional provisions measuring nine attributes of judicial independence was associated with actual judicial independence, and, in turn, judicial independence was associated with human rights protection. They also found that constitutional provisions for a federal system correlated with actual federalism in the state, but that federalism was not related to human rights protection. Still, overall, their study suggested only a weak direct effect of the constitutional provisions. These early studies tended to utilize simple bivariate analysis of the association between constitutions and various rights measures, and additionally they tended to be limited to a single year; thus the generalizability of the results is significantly limited, and more importantly our confidence in the conclusions is severely limited as we know many potentially confounding factors contribute to states human rights practices, and therefore, multivariate analyses are imperative.
Over time the analyses have become more statistically sophisticated and the depth of analysis has extended to longer periods of time and a broader set of countries. Davenport's (1996) study moves the literature in that direction examining the impact of constitutional provisions on state sanctions across a three-year period. Davenport finds, though, only three constitutional indicators (out of fourteen) that demonstrate statistically significant effects on state application of negative sanctions: the constitutional promise of freedom of press and the presence of state of emergency clauses reduced while constitutional restriction of the press increased the likelihood of negative sanctions. Davenport’s analysis is well executed and but, as Davenport notes, his sample of countries is rather small and not fully representative of the world, and because of limitations on the availability of his dependent variable measure, his analysis terminated well before the extensive and intensive development of constitutions that has occurred during the Third Wave of democratization and the post-communist era. Cross's (1999) study of the impact of judicial independence and the constitutional protection against unreasonable searches upon human rights behavior finds evidence that judicial independence does increase the probability of political rights and the protection against unreasonable searches and seizures; however, his constitutional measures did not achieve statistical significance. Cross’s effort to analyze the impact of judicial independence on human rights is commendable. However, there are several aspects of his study that limit our applicability of his work. First, Cross’s dependent variable is an average of each country's Freedom House political rights indexes during the 1980s. We (and others –see Bollen 1993) actually treat the Freedom House political rights index as a measure of democracy, not of human rights, and specifically not of personal integrity rights. Second, his measure of judicial independence is the subjective rating of the late Charles Humana (1992) that provides no replicable operationalization of the concept of judicial independence Finally, Cross’s study is limited, as were the studies above, to a small sample of countries that is not fully representative of the global set of nations
One of the prospective authors here has built upon these early works, expanding the analysis to the global set of countries across a twenty-year period of time and expanding the set of constitutional provisions. Keith (2002a) examined ten constitutional provisions associated with internationally recognized human rights and found some evidence to support our optimists’ expectations, and while the traditional freedoms associated with bills of rights (freedom of speech, religion, assembly, association and press) were not found to improve human rights behavior, provisions for public and fair trials did significantly improve states’ behavior, even controlling for the broad range factors known to influence this type of behavior. Skeptics would note that in addition to the failure of the basic constitutional freedoms to influence human rights neither the provision for the right to writ of habeas corpus nor a provision banning state torture influenced state human rights behavior. Keith’s (2002b) examination of the impact of seven formal provisions for judicial independence on state protection of civil liberties would support somewhat the optimists’ expectation in that four of the seven provisions increased the likelihood that the states would protect fundamental freedoms and rights; these included provision for separation of powers, guaranteed terms of office for judges, fiscal autonomy for the judiciary, and a ban against exceptional courts. However, again, skeptics would note that the other three provisions failed to produce the expected effect; these included the provision for exclusive judicial authority and finality its decision making process, along with the provision for enumerated qualifications for judges. Keith cautions that her analysis is limited to formal provision for judicial independence, which do not guarantee that the judiciary actually achieves the level of independence that would be necessary to stand against the regime in protecting fundamental rights.
Prior to Howard and Carey (2004) there was not a systematic replicable measure of actual judicial independence available for the global set of countries that went beyond formal provisions. A few studies have created subjective ratings for a significant albeit non-random set of countries; however, these evaluations are not replicable (e.g. Johnson 1976; Cross 1999 and La Porta, López-de-Silanes, Pop-Eleches, and Shleifer 2004). Howard and Carey created an indicator of de facto judicial independence based on assessments within the State Department’s human rights country reports that measure the degree to which judiciaries function in practice independent of the executive and legislature, are free from corruption and bribery, and afford basic criminal due process protections to criminal defendants. Howard and Carey do find that across a ten year period and the global set of countries the level of judicial independence does influence the states’ provision of civil and political rights. While we applaud Howard and Carey’s standards-based measure of judicial independence, we have concern about the use of their measure in regard to our human rights analysis because one of the measure’s three components considers whether the state “afford[s] basic criminal due process to criminal defendants.” This component seems at best indirectly related to consensus definitions of judicial independence. In addition, our strong interest in exploring the potential influence of judicial independence on human rights leads us to be very sensitive to possible overlaps between operationalizations of independent variables linked to human rights and our primary human rights measures, the Political Terror Scale (Gibney and Dalton 1996), frequently referred to as a measure of the abuse of personal integrity, and Cingranelli and Richards’ measures of physical integrity. Both measures assess the degree of abusive or politically motivated state behavior included imprisonment, torture, disappearance, and extrajudicial killings, that seem by their very nature to deny basic due process rights. Even if, arguably, the targets of the abuse are not in fact criminals, we are still measuring in our dependent variable the same forms of abuse, which encompass an abuse of procedural due process as well. Thus, we are left with the need for a more appropriate measure of de facto judicial independence.
Overall, recent empirical analyses suggest then that there is some justification for the optimistic expectation that legal provisions for rights and judicial independence (both de jure and de facto) may increase the level of state human rights protections. However, our confidence in the generalizability of these results is somewhat constrained due to some of the limitations associated with these previous studies. First, none of these studies extend beyond 1996, which limits our understanding in regard to the post Cold War period. Second, the studies examine a wide range of human rights behavior, but typically each study examines only one type or measure of behavior, and thus the empirical tests are not as robust as they could be. Third, only Keith and Howard and Carey examine the global set of countries. Fourth, most of the studies examine one set of constitutional provision in isolation of the others. Fifth, the studies do not examine the full set of causal links or the paths of influence; for example, they do not explore the path from formal judicial independence to actual judicial independence to human rights protection. Finally, we believe that the studies are lacking an appropriate measure of judicial independence, at least in regard to core human rights, such as personal integrity abuse.
In this proposed book we seek to improve upon these previous studies, as well as to build upon the growing body of work on political repression (for example, Poe and Tate 1994, Davenport 1995, 1996, Gibney and Dalton 1996, Cingranelli and Richards 1999a and 1999b, Poe, Tate and Keith 1999). We propose to examine the global set of states’ human rights behaviors from 1976-2005, using a variety of standards-based human rights measures that are now available and that extend forward to 2004 or 2005: Gibney’s political terror scale (Gibney and Dalton 1996), the CIRI measure of physical integrity (Cingranelli and Richards 1999a) and Freedom House’s civil liberties and political rights measures. We will build upon the standard model of human rights behavior (Poe, Tate and Keith 1999, Davenport and Armstrong 2004) and expand the scope of study by examining not only core constitutional provisions for fundamental rights, but also states of emergency clauses, and provisions for nine elements of judicial independence, including judicial review. Additionally, we will offer a new measure of de facto judicial independence that will enable us to examine the paths of influence and the causal links. Finally, we will examine the potentially intervening effects of domestic and international threats on the ability of these provisions and institutional constraints to protect against state human rights abuse. The following section sets out our proposed plan of study.
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Proposed Chapter Outline
1. Empirical Theories of Human Rights and the Status of Research
In the first substantive chapter we will present the relevant theories that inform our understanding of state human rights behavior, drawing across the subfields of comparative politics, international relations, and public law. Additionally the chapter will examine the status of research in regard to this issue, identifying the gaps that our research will seek to fill in our understanding of the states’ human rights practices.
2. Democracy and Human Rights
In the second substantive chapter we will conceptualize and operationalize two key concepts: democracy and human rights. We believe it is important to distinguish these concepts theoretically and empirically as we begin our study. In this chapter, after presenting initial data on the state of human rights and democracy in the world, we will begin to explore the theoretical links between democracy, judicial independence, and compliance with formal law, drawing upon comparative literature on domestic institutions and compliance literature from international law and international relations. In this chapter we ultimately seek to expand our understanding of the effect of the level of state democratization has states’ human rights behavior. We will examine various dimensions and measures of democracy and human rights, as we explore the causal links and direction and nature of influence between democracy and human rights.
3. Constitutional Provisions for Fundamental Rights
In the third substantive chapter we will conceptualize and operationalize our core fundamental rights that typically are formalized in bills of rights. These fundamental rights include freedom of speech, association, assembly, religion and press, as well the right to a fair trial and a public trial, the right to writ of habeas corpus, and the right to not be tortured. We will examine the various dimensions that these our measures of formal rights may represent through factor analysis. In addition to the formal provision of these rights, we will also examine the actual protection of some of these rights, using the CIRI data that measures state protection of freedom of press, speech, assembly, association, and religion. Additionally, we believe it is important to present descriptive analysis of the state of bills of rights over time. Ultimately we seek to understand the relationship between the formal provision of rights and the actual protection of core human rights including the right to personal integrity as well as the specific constitutionally promised rights.
4. Judicial Independence—De Jure and De Facto
In the fourth substantive chapter we will conceptualize and operationalize judicial independence, examining the competing schools of thoughts on this concept. Ultimately we rely on international principles and minimum standards for judicial independence in creating a set of measures for formal judicial independence. These dimensions include: enumerated qualifications, guaranteed terms of office, fiscal autonomy, separation of powers, finality in decision making, exclusive judicial authority, a ban against exceptional or military courts, and judicial review. Additionally, we will present a measure that we have created to capture the level of actual judicial independence in global set of states. We will use factor analysis to explore these dimensions of judicial independence, both the de jure and the de facto measures. As with each of the previous chapters, we believe it is important to present descriptive analysis of the state of judicial independence over time. In this chapter we seek to expand our understanding of the effect of both states of judicial independence on states’ human rights behavior. In our examination we will explore the causal links and direction and nature of influence between judicial independence and human rights.
5. States of Emergencies and Perceived Threats
In the fifth substantive chapter we will conceptualize and operationalize formal delineations of states of emergency and formal provisions for protecting rights during such states. Relying on recommendations made by the International Commission of Jurists and the International Lawyers Association we create four formal measures: provisions in regard to the declaration of the state of emergency, provisions in regard to the duration of the state of emergency, protection of the legislature and provision for non-derogable rights during the state of emergency. We will use factor analysis to explore these formal protections. Additionally, we will examine various levels of threats, including nonviolent protest, violent protest, armed rebellion, civil war, international war, and declared states of emergency. Once again, we will include a descriptive analysis of the state of domestic threats and of constitutional provisions for states of emergency across time. In this chapter we seek to expand our understanding of the effect of domestic and external threats and the effect of formal protections for such threats on states’ human rights behavior. In our examination we will explore the causal links and direction and nature of these influences.
6. Protecting Human Rights–A Final Analysis
In the sixth substantive chapter we will specify a full model of human rights behavior based on our analyses in the previous chapters, and incorporating the standard model that has emerged in studies of personal integrity abuse. Here we will be able to simultaneously test the various influences we have studied in the previous analyses, using a variety of rigorous statistical methods including path analysis and simultaneous equations. Additional influences for which we will control in this model will include measures for military or leftist regimes, population, economic development, international and regional norms, and colonial experiences. We may also include analyses that seek to test for cultural distinctions in the influences examined here. And finally we may include analyses that test the impact of USAID’s Rule of Law and human rights aid allocations.
To conclude, we will discuss the implications of the research for our theoretical understanding of human rights behavior and for human rights policy making. We will also discuss the limitations of our analyses and make suggestions for future research.