The latest episode in the soap concerning our relationship with Strasbourg may end in a fizzle rather than a cliffhanger, but it has provoked some useful soul-searching about the vision of the good embodied in the ECHR, and its monopoly on the right to govern social life.
Derogating from the ECHR or even pulling out of Strasbourg altogether have ceased to be taboo subjects for discussion, but the fear seems to be that the consequence of such defection would mean reversion to selfish nationalism. Is this a bad thing?
This question is not as facetious as it seems and answering it is central to the long term maintenance of a set of principles by which states agree to live.
We sign up to human rights agreements, and this is a collective decision. There’s nothing unique about it; it’s one of the many important collective problems that human decision makers face , and like all of these problems it may be characterised by a conflict of interest between individual and group benefit. Gathering together the mass of interests at a national level and weaving them in to a regional, or international whole is a massively ambitious experiment and one that may be toppled for very basic reasons, which have nothing to do with modish views on codified rights or otherwise.
The “Tragedy of the Commons”
We are all selfish, that is trite; and the classic dilemma about human behaviour in economics was coined as the ‘tragedy of the commons’ , by the biologist Garrett Hardin in 1968:
In a group of herders, each individual farmer has an incentive to put as many cattle on the common meadow as possible. The tragic consequence may be overgrazing from which all farmers suffer. Collectively, all farmers would be better off if they were able to constrain the number of cattle that grazes on the commons. Yet, each individual farmer is better off by letting their cattle graze.
How to square this circle? Decades of grandiose statements from intra-governmental gatherings, and their top-down aspirational norms, have achieved nothing to persuade us to let go of our “selfish” notions. Instead of dwelling on the politics, let’s look to the science. We may find the solution – may be a little bit unpalatable, but a roadmap nonetheless – in the framework theory developed by biologists in recent years to explain the phenomenon of cooperation.
The reason why cooperation has been a particularly active research field in the behavioural sciences is that it presents a particular challenge to the evolutionary paradigm of the “selfish gene”. Scientists have been puzzling over increasing evidence of cooperative behaviour in animal societies between non-related individuals and even different species. Applying some of these important discoveries to people, evolutionary biologists, economists and psychologists agree that people cooperate only if it is in their (long-term) self-interest.
In many animal societies, cooperation has evolved because individuals help relatives (kin selection). However, in humans and other animals which commonly help non-relatives, other explanations for cooperation are required, such as reciprocity, reputational benefits or punishment of non-cooperators.
The point of all this motive-hunting is to do away with bare altruism as an explanation, for altruism describes something that is costly to the actor and beneficial only to the recipient. This is clearly not a framework for a stable system. Indeed some experts recommend doing away with this description altogether, preferring the designation “reciprocity” for cooperation preferentially directed at cooperative parties, either directly (“help those that help you”) or indirectly (“help those that help us”).
For the purposes of human rights, these findings are critical to a proper understanding of our behaviour. If we have no selfish incentive to cooperate, it is possible that any attempt to institutionalise altruism is ultimately doomed to failure.
The fragility of cooperation
Experts across the social sciences agree that it is vital to understand the evolutionary underpinnings of cooperation and this is no less true of law than any other system. Elaborate experiments have been carried out on volunteers worldwide in order to expose the true determinants of human behaviour, and one thing is common to all the elaborate games that have been devised: that cooperation is fragile and declines after a while. In community investment games which emulate the tragedy of the commons, the observation is that people make high contributions initially but over time contributions dwindle to low levels. According to experimental economist Simon Gaechter, the decay of cooperation has been replicated numerous times and has also been observed across a variety of participators.
The significance of this finding is that the decay of cooperation will occur not just because people eventually learn what is in their best interest but because frustrated conditional cooperators reduce their contributions.
Cooperation and Climate Change
How to square this circle? Collective welfare is jeopardized by individual greed/cheating/free-riding in many modern areas requiring cooperation, most topically environmental protection. Indeed it has been the area of climate change regulation that has received much recent attention from game theorists and behavioural ecologists like Nicola Raihini, at the Institute of Zoology. She explains why enforcement mechanisms in the relevant treaties are so weak:
Regulation of climate change requires cooperation among individuals who are unrelated and often do not even know one another for certain costs and a very uncertain reward. This is the quintessential tragedy of the commons, where the self-regarding behaviour of several individuals results in overexploitation of a common good and the ruin of all.
Thus, an economically rational actor would do best to free-ride, by letting others pay the costs of abatement while enjoying the collective benefits this brings. We also have a tendency to discount future benefits, and this is another serious obstacle to overcome in the face of climate change, since abatement costs must be paid upfront while the benefits are likely to be delayed by several decades.
This is why climate change is such a dilemma, since individual actors maximise their personal gain by emitting greenhouse gases into the atmosphere even though this is detrimental to the collective global good. According to Raihini
Cooperation on a global scale is urgently required if we are to overcome this problem. However, this is difficult to achieve because cooperators pay the cost of reducing emissions while any benefits are shared between cooperators and free-riders alike.
Free-Riding and Reputation: Cooperation in the Human Rights Field
The climate change problem has strong parallels with the standards urged upon individuals and states by human rights enforcement bodies. If we take governments as individuals and the regional bodies to which they belong as collective groups, we can see how the problem of enforcing cooperation emerges: a collective benefit if every signed up state contributes properly, but “cheats” or “free-riders” get more benefit, by way of prestige, or saving on the costs of rights protection.
To expand on this, and at the risk of stating the obvious, human rights treaties are not rigid legal contracts. So in this particular context states have little to benefit from the compliance of other states. There may be some marginal benefit in what is called “burden-sharing” in asylum law, in other words if state A accepts a refugee, other signatory states to the Refugee Convention do not have to do so. But in behaviourist terms, direct reciprocity is not the driving force here.
A possible direct benefit is “group augmentation“, another example drawn from animal studies. Just as the growth of a group of social animals decreases their risk of predation whilst increasing their foraging success, so does the increase in the size of intergovernmental groups such as the Council of Europe, the EU, NATO etc bear directly on their ability to resist threats arising elsewhere in the world.
Of more relevance to human rights however is the indirect reciprocal benefit of reputation since countries participating in these agreements send a moral signal that they themselves are willing to respect human rights. This brings social prestige, a motivational force evident in studies of animals as diverse as tamarins and cleaner wrasse. For some countries, signing up to these instruments brings the indirect reward of accession to the EU. But for others it seems that the gleam on this reputational prize is becoming somewhat tarnished and if the current debate about our adherence the jurisdiction of the Strasbourg Court is anything to go by, one of the main drivers found in nature for cooperation has fallen away. What else is there to make us stick?
Cooperation in these “altruistic” agreements is hindered because of the way we perceive present cost and (speculative and uncertain) future benefit. Each party perceives its own investments or concessions as losses whilst devaluing any benefits gained from the concessions of others. We can see the way this tendency is implicated in the reluctance of states to commit to weapon disarmament, a point made by international jurist Niels Pieterson in his review “How Rational is International Law?”
since any country feels the impact of reductions in national security (from decommissioning its own weapons) more acutely than the impact of equivalent increases in security(when other countries disarm).
In human rights, as well as climate change, the outcomes are seldom certain. The constraints that human rights instruments place on states’ behaviour are no longer being seen by individuals as a welcome brake on governmental power; they are perceived more as costly regulation from above that we have no power to challenge at the ballot box. And therefore those countries that signed up to these agreements over half a century ago are increasingly sceptical about the need for them.
What we can conclude from this is that the notion that somehow “solidarity” in the protection of human rights is no longer accepted,as it once was, as a value in itself, a payoff for the costs of burden sharing. And equally the consequence of defecting from this burden-sharing is no longer perceived to be so costly; the damage to reputation that flows from an adverse court judgment decreases in proportion to the reputation of that court. Once the vision of reciprocity has melted away (state 2 will take on the burden in future if state 1 takes it on now) – and it was always only a vision – then the cooperation simply becomes a waste of resources.
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- It’s time we packed our bags at Strasbourg, says report
- Justice in the age of security
- Unelected judges dictating our law, etc etc
- Evolutionary explanations for cooperation
- Uncertainty, irrationality and cooperation in the context of climate change
- Cooperation and punishment in public goods experiments