International human rights treaties (IHRTs) make it easier for citizens to seek legal redress for violations of their human rights. But this greater ability for a state's domestic courts to protect the rights of its citizens might have two very different effects.
First, the state is going to expect to pay a greater price for repression. The cost of repression is assumed to depend, among other things, on how powerful and effective the domestic courts were to begin with, and the extent to which commitment to an IHRT empowers the courts.
Second, anticipation of the state's increased cost for repression may encourage dissident groups to mobilize against the state at higher levels.
Of course, the more the people mobilize, the more attractive repression becomes.
So what's the net impact? Does the increased fear of litigation rein in the state? Or do IHRTs perversely lead to more repression, by encouraging the people to mobilize?
Emily and Courtenay make a persuasive case that the answer is that the former effect prevails, provided that the leader is sufficiently secure in office. Otherwise, we don't see much effect one way or the other.
The intuition is that insecure leaders don't feel as threatened by mobilization.
Wait -- insecure leaders don't feel threatened?
Think of it this way -- if you would otherwise have expected to remain in office until you die in your sleep in your nineties, the prospect of mass protests or riots or whatever culminating in you being forced to enact critical reforms makes a huge difference in terms of how long you expect to remain in office. So when the people start to mobilize, you are going to find repression pretty attractive.
On the other hand, if you otherwise would have expected to be stepping down in a few months anyway, perhaps because you are ineligible to run for another election (if we're talking about a democratic leader) or because things have been unstable for some time anyway and the economy is in the tank (if we're talking insecure autocrats), the benefit of suppressing a mobilized challenge to the state is a lot smaller.
Granted, there aren't many leaders who are very sure they're going to be leaving office in a matter of months. But thinking about what happens at the extremes helps to clarify the general tendency. Essentially, leaders who expect to remain in office longer are playing a higher stakes game. And so they're more willing to resort to desperate measures to keep from losing that game.
If you're thinking about Assad and the atrocities taking place in Homs right now, before you insist that he is doing what he is doing because his hold on power is threatened and therefore object to the argument Emily and Courtenay present, consider this -- how much longer would Assad have been in power if there had been no protests? Somewhere just shy of forever, right?
The claim isn't that leaders whose hold on power becomes weaker as a result of the mobilized challenge itself won't repress. Indeed, these are exactly the leaders we expect to do so. It's that those leaders who were initially facing a high baseline probability of remaining in office are the ones who have the most to lose when challenged by their people.
Yet such leaders are also sensitive to changes in the ability of the court to constrain them.
So Emily and Courtenay expect that we should find that it is only among the most secure leaders that judicial effectiveness and commitment to IHRTs will reduce repression -- because it is only the most secure leaders who are likely to be sufficiently threatened by mobilized challenges to be tempted to engage in significant levels of repression anyway.
I'll skip the details of the empirics, just as I've skipped the details of the formal model, but here are graphs of the key results.
Note, these graphs are plotting the change in the probability of systemic torture, as a function of changes in judicial effectiveness (first graph) or commitment to the Convention Against Torture (second graph). Thus, when you see that the line starts out high then drops sharply as we move to the right, you should note that what we are seeing is not that insecure leaders repress a lot while secure leaders do not (which would contradict the theoretical argument). Rather, what we are seeing is that, as job security increases, the difference between the probability of systemic torture as a function of judicial effectiveness or commitment to an IHRT goes from being indistinguishable from zero (as expected -- you can't reduce the probability of repression much when it was low to begin with) to being negative and statistically significant.
There's much more detail to their argument than I've presented here. And I've only talked about the results from one of the papers Emily discussed. In the second one, Emily and Courtenay turn their focus to the level of mobilization against the state, and the effects thereon of commitment to an IHRT and the leader's job security.
But the take home point from this brief post is that international law matters, contrary to the received wisdom in IR. It doesn't always have the effect that we'd like, to be sure. But if we focus our attention just on those cases where it is most likely to make a difference (leaders who would otherwise have had the greatest incentive to repress), we do indeed find the effect we'd like to see.