In the context of the human rights literature, these approaches typically focus on the commitment to and compliance with international norms, specifically human rights treaties; however, international human rights norms broadly speaking, and human rights treaty commitments more specifically, are both strongly associated with expectations that these norms and/or commitments will be translated into domestic law and policy and protected by domestic institutions, particularly the judiciary. To the extent that the adoption or maintenance of constitutional provisions for core rights represents compliance with international treaty commitments, realists would expect that commitment to these norms in constitutional documents would simply reflect a convergence of interests that, once again, would dissipate once the state’s material interests conflicted with the formal commitments, and thus the state would be likely to ignore or change its constitutional commitments when it was no longer beneficial to its goals. In other words, the commitments would not be likely to alter the menu of policy choices, especially if the regime’s primary interest, staying in power, was threatened from within or without. It is, however, more likely that formal commitments to international human rights norms through domestic constitutions will be associated with stronger legal remedies for violations and enforcement mechanisms than those of human rights treaties. Specifically, constitutions that provide for an independent judiciary increase the potential costs of the regime’s choice to engage in political repression. The third stream of the rational actor approach addresses the influence of the judiciary and domestic institutions more broadly.
DOMESTIC INSTITUTIONS/DEMOCRATIC PEACE
A third stream within the rational actor perspective dismisses the assumption of a unitary state actor and instead recognizes the role of numerous domestic actors and institutions within the state (particularly in democratic regimes) that may affect the regime’s menu of acceptable policy options or its calculation of costs and benefits related to commitment to international national human rights norms and with subsequent (non)compliance to formal commitment to the norms. Poe, Tate, and Keith (1999) argued that state leaders have less opportunity and less willingness to employ the tools of repression when faced with domestic or international conflict (293 and citations therein). As I noted above, opportunity is constrained because the structure and limited nature of democratic governments, which may include separation of powers and/or checks and balances, make it difficult for state actors to coordinate extensive use of repression. The necessity to utilize repression as a tool to solve conflict can be mitigated in democracies because they provide a variety of alternative mechanisms through which conflict can be channeled for possible resolution (Poe, Tate, and Keith 1999; Davenport 2007c), in turn, weakening the state’s justification for coercive state action. The need to employ the tools of repression is also dampened by “the socialization processes that guide citizens of democratic polities toward the belief that nonviolent means of resolving conflicts are preferred over violence” (Poe, Tate, and Keith 1999, 293). The democratic norms of compromise, toleration, and facilitation may influence the decisions of the rulers by “increasing the cost of human rights violations as well as decreasing the value to quiescence” (Davenport 1999, 96). The cost of repression is increased in democracy as the electoral process “provides citizens (at least those with political resources) the tools to oust potentially abusive leaders from office before they are able to become a serious threat” (Poe and Tate 1994, 855).
It is not just democratic electoral processes but also the legal institutions associated with democratic systems that can provide the public and other political actors with the tools and venues through which they can hold the regime accountable should it fail to keep its formal commitments, both domestic (Keith 2002b) and international (for example, Keith 1999; Neumayer 2005; Hathaway 2007; Powell and Staton 2009). A truly independent judiciary, in particular, “should be able to withstand incursions upon rights because (1) the courts’ power and fiscal well-being are protected, (2) the courts have some ability to review the actions of other agencies of government, and (3) the judges’ jobs are constitutionally protected” (Keith, Tate, and Poe 2009, 649). Powell and Staton (2009) posit that in states where the courts are influential (effective), the use of repression may lead to rights claims in which the regime will incur a loss of resources as punishment for violating its obligations (154). In addition, nongovernmental organizations (NGOs) may initiate human rights litigation and form with courts what Moustafa refers to as “judicial support networks,” which consist of domestic and transnational institutions and associations that support the judiciary’s independence and power, which in turn are necessary for activists to pursue their claims (Moustafa 2008, 2007, 44).
These general explanations tend to assume a rather monolithic set of democracies, although it should be noted that most empirical human rights studies ultimately test the level of democratization rather than assuming a simple dichotomy. Most studies also tend to assume a linear association, at least in their empirical models. Recent theoretical and empirical work suggests that these often-unstated assumptions do not accurately reflect the true relationship between democracy and repression. Some scholars argue that there is “more repression in the middle,” with full autocracies and democracies applying relatively low amounts of repression (with the latter being the least coercive) and mixed and transitional regimes, which combine elements of autocracy and democracy, being the most coercive (Regan and Henderson 2002, 120, modifying Fein 1995). Reagan and Henderson argue that autocratic regimes are suspicious of attempts to subvert their rule, and “in the face of an overarching state police machinery, the public is cowed and quiescent and made more accepting of domination, such that violent repression by the autocratic state is less likely” (123). However, they argue that the insufficiently developed infrastructure of semi-democratic regimes does not allow for the efficient channeling of opposition or dissent into the political arena, and the fragility of the institutions of government and the more limited range of options available encourage these leaders to respond harshly to opposition threats out of fear of political usurpation (124). In more recent work, both Davenport and Armstrong (2004) and Bueno de Mesquita et al. (2005) argue that the relationship between democracy and repression has been misspecified and that a threshold effect is a more accurate characterization. Specifically, Davenport and Armstrong argue that
until there is a particular combination of institutions and behavioral factors in place, authorities will not be compelled to respect human rights. Below this critical point, the constraints are not comprehensive or severe enough to deter repressive action nor are the social control mechanisms well enough situated to provide viable alternatives for state repression. As these institutions and behavioral patterns gain strength beyond some threshold and the country’s over-all level of democracy increases, however, the repressive behavior used by authorities should decrease. Above the critical point, constraints become too significant to ignore, and democracy functions as an acceptable substitute for influencing citizens. (542)
Other scholars have perceived democracy as multi-dimensional, following Lasswell (1950) and Dahl (1971), and have sought to understand which dimensions of democracy are more likely to lessen the use of political repression (Gleditsch and Ward 1997; Keith 2002a; Bueno de Mesquita et al. 2005).
Scholars also have attempted to distinguish between types of autocracy. For example, scholars have examined the role of military regimes (McKinlay and Cohen 1975; Poe and Tate 1994; Poe, Tate, and Keith 1999, Davenport 2007b) and Marxist-Leninist regimes (Mitchell and McCormick 1988; Poe and Tate 1994; Poe, Tate, and Keith 1999). The expectation that military regimes are more willing and able to use the tools of repression than other regimes has been well established, extending back to the work of McKinlay and Cohen (1975), who found that military regimes were more likely than civilian ones to suspend constitutions and to ban assemblies and political parties. As Poe and Tate (1994) noted, this increased willingness of a military regime to employ coercive means against its civilian population is not surprising, as “military juntas are based on force, and force is the key to coercion” (858). And as Poe, Tate, and Keith (1999, 293) argued, because the leaders in a military regime have direct control of the instruments of coercion, they will also be likely to face fewer constraints and barriers than other leaders if they choose to act repressively. As Poe and Tate (1994) noted, “since military rule is by definition antithetical to democracy, it