A Law and Economics Approach to Problem of International Human Rights Law

Afer World War ?, many international human rights treaties have been ratified. Although an expectation that international human rights law makes world better to protect human rights, there are still vast human rights violations in various countries. From the gap between expectation to international human rights law and reality of human rights violations, the purpose of this thesis is to point out the problem of international human rights law and not only to point out the problem but also to suggest a coherent and logical explanation. To achieve the goal, this thesis investigates three questions: what is the better way to understand international law?, why do states comply with international law?, and what is the problem of international human rights law?. The first, this paper argues and represents that law and economics approach can be the better way to understand international law and can be a useful methodology to research international law. Despite of some concerns from misunderstanding of law and economics approach, law and economics can give insights to study international law, using economic theories such as price theory, transaction cost economics, game theory. The second, this paper shows the reason why states comply with international law. Although there are previous studies that explain compliance with international law, the studies have limitations to suggest a coherent and logical explain. By law and economics analysis, the key for states’ compliance is the three Rs of compliance: reciprocity, retaliation, and reputation. The three Rs makes and raises cost for states’ non-compliance with international law. Therefore, through the three Rs, international law can work as self-enforcing mechanism and can induce states to comply with international law. The third, this paper point out problems of international human rights. This paper argues that international human rights law has different character or concept compared with other international laws such as WTO law and law of war. International human rights law is not based on reciprocal character as contract model but based on moral foundation that makes consent between states as declarations of existing moral norms. Because this different character, the three Rs as the key for compliance cannot work well. Only reputation little works. Moreover, there are no strong enforcement mechanisms in international human rights regimes. Although there are some enforcement mechanisms in international human rights system, they have limitations to induce states to comply with international human rights law and do not impose costs for states’ non-compliance. In conclusion, from law and economics approach, international human rights law as self-enforcing mechanism cannot satisfy the conditions for compliance of international law: reciprocity, retaliation, and reputation. Moreover, there are not strong and effective enforcement mechanisms to assure compliance in international human rights treaties. Therefore, current international human rights law cannot fully induce and facilitate states to comply with international human rights obligations