Regulatory arbitrage in relation to international human rights

Abstract

The adoption of the United Nations (UN) Charter in 1945 marked the legalization of international human rights. Despite the legalized status of human rights, their violation by states is not uncommon. This article questions why a state might violate international human rights. Analyzing this issue from an economic perspective, this article advances regulatory arbitrage theory to rationalize a state's violation of human rights. It discusses regulatory arbitrage-type behaviors among state actors that derogate from the obligations to respect, protect, and fulfill human rights. Defending state sovereignty, minimizing regulatory or compliance costs, and prioritizing economic achievement are identified as rational arbitrage actions that circumvent international human rights. We call for competent and credible governance mechanisms that can increase the cost of arbitrage, to disincentivize state violation of international human rights. Good governance encompasses full respect for human rights and the rule of law (UN Office of the High Commissioner for Human Rights [OHCHR] 2016). The adoption of the UN Charter in 1945 marked the legalization of international human rights, which govern the relationship between the state and the individual. It is commonly believed that "all states are bound to respect internationally recognized human rights" whether or not they have ratified the relevant treaties on human rights (De Schutter 2012: 39). This view is legally supported through the exercises of customary international law, jus cogens norms (universally applicable norms with no derogation permitted), and general principles of law (Chinkin 2014). However, violation is not uncommon, despite the legalized status of international human rights (