Legal Status, Political Legitimacy, and Compliance with the ‘Views’ of Human Rights Treaty Bodies

In contrast to the three regional human rights regimes in Africa, the Americas, and Europe, all of which include courts to settle disputes and monitor compliance, the global UN human rights treaties only feature ‘committees’ whose competence to receive individual complaints is optional and whose concluding observations on state reports and ‘views’ in individuals’ cases are legally non-binding. Systematic research on compliance with their output is virtually absent from the literature, but rough assessments of the rates of compliance with the committees’ views suggest that they are well below those that characterize the regional courts. Notably, legal bindingness, or lack thereof, is clearly an important, but not determinative factor as to whether governments will comply with an adverse decision by either a court or a committee. In this paper – which forms part of a broader research project that systematically investigates the compliance record with the committees’ output – I address the role of the (perceived) political legitimacy of the UN human rights supervisory mechanisms in contributing to compliance with the treaty bodies’ ‘views’ in the absence of their legally binding quality and of any institutionalized enforcement mechanism. Specifically, I explore in the concrete context of the human rights treaty bodies an inherent problematique of any concrete assessment of the legitimacy of an institution: The fact that, despite the widespread definition of legitimacy as, inter alia, providing content-independent (‘second-order’) reasons to comply with a rule or decision issued by an institution, legitimacy assessments, and compliance decisions based on them, are in practice never fully divorced from considerations of substantive aspects of an institution’s decisions (‘first-order reasons’). In the human rights domain, and in other policy fields for that matter, an institution’s overall political legitimacy is the ‘sum vector’ of often divergent and necessarily perspective-bound assessments by the stakeholders involved in the committees’ monitoring and dispute settlement practices: governments, on the one hand, and private (groups of) individuals, on the other. Taking the issue of conditional deference to national decision-making under the aegis of the principle of subsidiarity and doctrines such as the margin of appreciation as a case in point, I show how affording, or not affording, deference may lead to different legitimacy assessments as well as to different substantive outcomes. To causally connect rates of (non-)compliance with the legitimacy of an institution it is thus always necessary to disaggregate an institution’s asserted overall legitimacy and link asserted behavioral effects to the legitimacy perceptions of specific (types of) stakeholders. The paper contributes to the panel topic by addressing non-state fora in which human rights responsibilities of states are being articulated and by investigating the strength of their ability to effect change as a function of different legitimacy assessments made by relevant private and public stakeholders.