Regulating Human Rights: International Organizations, Flexible Standards, and International Refugee Law

Abstract

The bad actor problem, or the puzzle of how to get known human rights violators to improve their practices, is central to human rights scholarship and policy-making. Scholarship has largely focused on understanding how and if state commitments to multilateral international human rights treaties, such as the International Covenant on Civil and Political Rights, can improve human rights practices. This article reframes the bad actor problem as a regulatory matter, suggesting that international agencies may, under certain conditions, provide a way to get even bad actors to improve their human rights practices. By flexibly interpreting international law, international organizations can use their authority to coordinate state interests, while enhancing the credibility of state commitments and providing valuable legal cover for state actions. I present examples of how international agencies may and have improved human rights practices, focusing on the case of the use of international refugee law during the post-2003 Iraqi refugee crisis in Jordan and Syria. My analysis suggests that traditional scholarly discussion of promoting compliance with international human rights instruments may be misplaced, and that the role of international agencies in regulating human rights deserves further attention.

Keywords: international law, international organizations, refugees, international refugee law, Iraq, Iraq war, international administrative law, regulation, global administrative law, global governance, United Nations High Commissioner for Refugees, UNHCR, United Nations, UN, Iraq, Iraqi refugees