著者

大内 勇也

出版者

一般財団法人 日本国際政治学会

雑誌

国際政治 (ISSN:04542215)

巻号頁・発行日

vol.2018, no.192, pp.192_33-192_49, 2018-03-30 (Released:2018-12-19)

参考文献数

59

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The adoption of international human rights treaties has been a subject of great interest in International Relations. As human rights protection has been regarded as a domestic matter, it is understandable that many states were reluctant to restrict their sovereignty by treaties in this field.Existing studies therefore focus on treaties with implementation mechanisms like human rights courts or individual petitions. At the same time, these studies assume that agreements on human rights treaties depend on governments’ acceptance of principled norms of human rights. And based on discourse theory, they claim that states agree on the treaties because they are “persuaded” by arguments referring to principled norms.Yet such norms do not always imply specific means to realize human rights. Therefore, treaty implementation mechanisms are often contentious issues in negotiations, and the results of negotiations vary. Existing studies cannot explain the differences in these results. What explains the incorporation of implementation mechanisms?To answer this question, this article focuses on legal experts as political actors in “epistemic communities” and explains how they incorporate implementation mechanisms into human rights treaties. I argue that legal experts are able to define agendas and specific policy for governments in two ways. First, when human rights problems are internationally recognized, these experts create a legal framework for international policy and take the initiative in drafting. Second, they prepare the draft of their policy preferences and direct the course of governmental negotiations.In the two steps above, three conditions affect the extent of legal experts’ influence on governments’ positions. First, the higher the level of agreement between legal experts on treaty provisions, more influential the experts become. Second, the more uncertain governments are about the nature of human rights problems and the prospect for policies, more dependent they are on legal experts. Third, the greater the level of disagreement between governments on treaty provisions, the more influential legal experts become. When these conditions are favorable for legal experts (i.e., agreement between experts, high government uncertainty, and disagreement between governments), they can realize a treaty that matches their preferences.To test my argument, I analyze the drafting process of the European Convention on Human Rights adopted at the Council of Europe in 1950. This convention is a significant case of providing both the human rights court and individual petitions. Yet most states were unwilling to provide these implementation mechanisms in the beginning. My analysis shows that legal experts of the European Movement succeeded in incorporating these provisions into the convention, because the three conditions were favorable for legal experts. These conditions made it possible to realize their human rights project despite the major power, Britain, strongly opposing both of the implementation mechanisms.