πŸ“ Measuring behaviour, not compliance

Human rights measurements are often used as a proxy for compliance with human rights law. Kyle Reed argues that this misrepresents compliance and may skew our understanding of how international law shapes human rights practices. Careful design and new methods, however, may help link human rights measurements and studies of compliance

What is compliance?

We often define compliance as the 'conformity of a behaviour to a rule'. While intuitive, this misses the role of interpretation. As my research shows, without interpretation, there is often no way to know exactly what the rule requires or prohibits. While some behaviours may be widely understood as compliant – with widespread agreement on the interpretation – others are not.

This means that compliance is constructed – actors reference law to justify their behaviour as compliant. If there is no opposition, or if opposition is weak, we consider the act compliant. If the justification is rejected, however, we consider the act non-compliant. Finally, compliance may be contested – with justifications supported by some and rejected by others. This leaves space for argument about what the law means or what it requires. In essence, we cannot, in that case, definitively answer the question of whether a behaviour complies with the law.

Compliance is not solely about behaviour. It is about how behaviours are justified to, and interpreted by, the international community

Compliance, then, is not solely about behaviour – it is about how behaviours are justified to, and interpreted by, the international community. Focusing solely on behaviours, then, cannot tell us the full story of human rights compliance. However, we can bridge the gaps between measurement and compliance to improve our understanding of human rights around the world.

What measurements can tell us

Human rights measurements provide vital insights into the state of human rights in a time or place. They allow for comparisons over time, showing whether states are improving or backsliding on their human rights practices. They also allow for comparisons between states, helping to identify outliers which may serve as examples or warnings.

Human rights measurements often help us identify what interests us. If our goal is to understand changes in human rights practices, we need good measurements. Accurate data allows for better evaluation, policy-making, and human rights promotion. Initiatives like HMRI use new methods to build measurements aimed at assisting the public sphere.

These measurements cover a wide range of human rights, with a focus on making data accessible and usable. Human rights organisations can use this data to develop more focused interventions and human rights reforms. Accurate data may motivate public opinion or push for international action, exposing areas that need improvement. Data also allows for more effective programme evaluation as projects are implemented. Human rights data, in short, has a key role to play in the protection and promotion of human rights.

What measurements do not do, however, is tell us about compliance. Practices may improve and still fall short of a state’s legal obligations. Alternatively, a state’s practices may regress but be legally acceptable – if morally undesirable.

Compliance vs behaviour – why does it matter?

If we want to improve human rights practice, does this distinction between compliance and behaviour matter? While it may be tempting to dismiss this distinction as merely theoretical, that would be a mistake. Instead, understanding this difference can help improve human rights behaviour in the medium and long term.

Compliance is about how law affects behaviours. States are limited, by the language of human rights law, in the behaviours they may justify as compliant. Contests over justifications, meanwhile, work to reshape interpretations of human rights law over time. This, in turn, further shapes how the law limits behaviour.

Without good data, we cannot know if human rights laws are improving the protection and promotion of human rights

Accurate data on human rights, then, is central to understanding how compliance shapes practice. Without good data, we cannot know if human rights laws are improving the protection and promotion of human rights. As such, bridging the gap between compliance and measurement is important if we want to understand the effects of human rights law.

Bridging the gap

If we want to understand the relationship between compliance and behaviour, we need to portray compliance accurately. One option is to focus on how actors talk about their behaviours or the behaviours of others. How are human rights policies justified or contested? What arguments do we accept or reject?

Doing so highlights the relationship between compliance – the justifications and arguments surrounding a behaviour – and the act itself. We may then better examine how compliance shapes behaviour, how changes in the law influence human rights practice, and related questions.

focusing on how actors talk about their behaviours and others' highlights the relationship between compliance and the act itself

If focusing on a single case or issue, we might examine public contests surrounding the legality of the behaviour. By examining how actors contest these behaviours, we may understand the construction of human rights compliance. We may then compare these contests to behaviours: how is law shaping human rights performance?

On a broader scale, computational text analysis offers a way to bridge this gap. This method allows us to consider numerous human rights compliance claims at once. Measuring changes in justifications and contests over time provides insights into the changing scope of compliance. We can then compare this to changes in human rights behaviour. In doing so, we may study the broader relationship between human rights compliance and behaviour.

Measurement and compliance

Accurate measurements are vital to improving the protection and promotion of human rights. Yet these measurements do not tell us if a state is complying with their human rights obligations. This difference is central to better understanding the relationship between human rights law and practice.

It raises methodological questions and encourages us to reflect on, and think beyond, legalistic human rights frameworks. Ultimately, while human rights measurements do not measure compliance, they are an important part of the puzzle for research that aims to do so.

πŸ“ No.6 in our Measuring Human Rights series, discussing the challenges and limits of methodologies for gathering human rights data

This article presents the views of the author(s) and not necessarily those of the ECPR or the Editors of The Loop.

Author

photograph of Kyle Reed
Kyle Reed
Research Fellow, Freie UniversitΓ€t Berlin

Kyle currently works in the Berlin Potsdam Research Group The International Rule of Law – Rise or Decline?

He earned his PhD in Political Science and International Relations at the University of Southern California, and holds an MSc in Human Rights from University College Dublin.

His research focuses on the relationship between international law and politics, in particular the construction of compliance claims and the use of legal rhetoric and references in international relations.

Personal website

He tweets @KyleSRapp

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