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The UN Human Rights Council and the Influence of Nondemocratic States on International Law:

Eugene's excellent post on the UN Human Rights Council's egregious resolution seeking to repress freedom of speech provides an example of a problem that John McGinnis and I have sought to highlight in our work on democracy and international law: the extensive influence repressive nondemocratic regimes on international law's contents. If you look at the list of nations supporting the resolution, it turns out that most of them are either outright dictatorships (such as China, Cuba, and Jordan) or authoritarian pseudo-democracies such as Russia. By my count, about 16-18 of the 21 nations voting for the resolution fall into one of these categories. In a vote limited to democratic states, the resolution would have lost overwhelmingly by at least a 2-1 margin (all 10 of the nations voting against it were democratic).

An international law norm supported primarily by dictatorships is not necessarily a bad one. On average, however, such norms are likely to be worse than those generated by the domestic legislative processes of democratic states and therefore should not be allowed to override them without prior ratification by those same democratic processes (as in the treaty ratification process in the United States).

We should be especially wary of nondemocratic states' influence in the field of human rights law, where these regimes have an obvious incentive to promote norms that legitimize their efforts at repressing their political opponents and staying in power. The resolution discussed in Eugene's post is a clear example. Repressive regimes seeking to suppress opposition groups can easily label their speech "racist," "xenophobic" or an incitement to "hatred," to use the terminology of the resolution; they could then argue that repressing such speech is just a case of enforcing international law. Although these regimes would probably engage in repression even without support from international law, obtaining such support gives their policies unwarranted legitimacy, and undermines international efforts to prevent them.

Unfortunately, many scholars and international law advocates argue that international law should be allowed to override the domestic law of democratic states in even absent formal ratification processes. To the extent that this occurs, our domestic law might be displaced by legal norms that serve the interests of brutal despots.

Most experts would concede that UN Human Rights Council Resolutions are not in and of themselves binding international law. However, as McGinnis and I discuss in our article, such resolutions do contribute to the formation of so-called "customary international law." It would be unfortunate if such "law" were allowed to displace domestic law - not because US law is especially good, but because this particular alternative is often far worse.

Mohamed:

Repressive regimes seeking to suppress opposition groups can easily label their speech "racist," "xenophobic" or an incitement to "hatred,"



Of course these regimes already use such language to justify violent suppression of "opposition" groups. The examples I am most familiar with are the Russian campaign in Chechnya and the Serbian campaign in Kosovo which are both billed as efforts to protect an oppressed local minority from "racist" or genocidal ethnic majorities. Of course, this was simply a way to mask efforts for that same minority to maintain control over the supposedly "racist" majority ethnic group.

Accepting this current state of affairs, I believe that the resolution at least provides a means of undermining the legitimacy of using violennce to combat racism or xenophobia. If you look closely at the resolution, it encourages states to combat the dissemenation of hate speech through "political institutions and organizations" not through military campaigns or support of para-military forces. Also, the resolution "urges States to provide, within their respective legal and constitutional systems, adequate protection against acts of hatred." Thus, by signing on the resolution these states are actually pledging to use alternatives to violence.

Of course, this is subject to the valid criticism that this resolution is non-binding and even it it were there is no enforcement mechanism. But I wanted to point at that even though these signatories are often undemocratic regimes, this resolution is, at least on its face, a step towards establishing more "democratic" methods for dealing with hate speech and ethnic tensions.
4.3.2008 4:37am
M. Lederman (mail):
Hey Ilya -- just curious (and this is what most puzzled me about your article): Who, exactly, are these "many scholars and international law advocates [who] argue that international law should be allowed to override the domestic law of democratic states even absent formal ratification processes"?

As far as I know, those of us who think international law has an important place within U.S. law reach that conclusion because we think it is so established by our Constitution, laws and/or treaties. Does anyone of note argue that (customary) international law should "override" those (democratically established) forms of domestic law?

I know you think that the Charming Betsy canon effectively does so by misreading congressional intent. I disagree about the descriptive claim --I think CB is a valid and accurate presumption about legislative will. But regardless of which of us is correct on that (basically empirical) question, the important point is that no one, as far as I know, argues that the CB canon should be applied in cases where Congress in fact does not wish the U.S. to abide by international law.
4.3.2008 5:55am
martinned (mail) (www):
L.S.,

I was wondering the same thing as Lederman: Who? International law is created by treaty and custom. Treaties are ratified, and customs evolve slowly, and only to the extent that states accept them. (Paquete Habana anyone?)

Instant customs are essentially a myth. Certain decisions by international organisations are law because the treaties that created these organisatons say so. No one is making up international law out of thin air!

And, regarding this specific case, and just so we're clear: UN GA resolutions can contribute to the forming and articulation of customary international law, but only to the extent that they are relatively uncontroversial, i.e. without major blocks of countries voting against. (eg. the NIEO resolutions from the 70s, which are rubbish but were at least accepted by a near unanimous General Assembly.)

An obscure resolution by the Human Rights council would never be taken as saying anything about customary international law, least of all with so many important states voting against.
4.3.2008 6:59am
kadet (mail):
thank you for you input in righteous indignation about Yoo memos, Ilya.
I knew you were always opposed to anti-constitutional encroachment by Bush administration.
4.3.2008 7:09am
George Weiss (mail) (www):
im curious to see ilya's thoughts on the torture memo's-is this a joke or did he really write about them?
4.3.2008 7:26am
Richard Aubrey (mail):
I suppose it was necessary to write that US law is "not especially good", just better than some of the rest. But for sure better than that of despots. Sometimes.
Was that "not necessarily" a preemptive self-defense against accusations of patriotism?
Even many countries we think of as free have some of those freedoms defined by present custom, or law. Nobody has a Bill of Rights to guard against what somebody may decide is custom or law. See Britain and its free speech issues, for example.
4.3.2008 8:46am
martinned (mail) (www):
L.S.,

Oh, yes, I'd forgotten to mention that in my previous comment. As in other recent posts, prof. Somin writes: "On average, however, such norms are likely to be worse than those generated by the domestic legislative processes of democratic states", again without explaining what he means by worse/better. More legitimate? More efficient?
4.3.2008 9:05am
George Tenet Fangirl:
It's really a shame that despots have such power over the law. Why, I hear that in one country, all individual rights are subject to the personal whims of nine elders wearing ceremonial garb, who are not elected and can almost never be removed from power!
4.3.2008 9:41am
Benjamin Davis (mail):
Please stop Ilya, John and you are making yourselves look terribly bad. Customary International Law - (1) general practice of states (2) accepted as law. No one would suggest that what you are citing is a general practice of states accepted as law.

We have internal limits in our First Amendment doctrines on Free Speech. So do the French and Germans (apologies for war crimes). None of these three - unless the memos of Yoo become the language of the day - are dictatorships but they place limits on the freedom of speech. Puh-leaze.

Best,
Ben
4.3.2008 10:05am
Ilya Somin:
If you look closely at the resolution, it encourages states to combat the dissemenation of hate speech through "political institutions and organizations" not through military campaigns or support of para-military forces. Also, the resolution "urges States to provide, within their respective legal and constitutional systems, adequate protection against acts of hatred." Thus, by signing on the resolution these states are actually pledging to use

"Political institutions" certainly include the use of force and repression. And "adequate protection" can also include the use of such methonds. Nothing in the resolution excludes those options.
4.3.2008 10:29am
Ilya Somin:
thank you for you input in righteous indignation about Yoo memos, Ilya.
I knew you were always opposed to anti-constitutional encroachment by Bush administration.


Since I have actually publicly debated Yoo and criticized his approach to executive power many times on this blog (always arguing that executive power in wartime is subject to congressional constraints), this is an extremely stupid comment.
4.3.2008 10:31am
Ilya Somin:
Please stop Ilya, John and you are making yourselves look terribly bad. Customary International Law - (1) general practice of states (2) accepted as law. No one would suggest that what you are citing is a general practice of states accepted as law.

As John and I discuss in our article, many experts have a much broader conception of customary international law than that. Moreover, UN resolutions are part of what advocates of broad views of international law regarded as indications of state practice and acceptance of law.
4.3.2008 10:32am
Ilya Somin:
As far as I know, those of us who think international law has an important place within U.S. law reach that conclusion because we think it is so established by our Constitution, laws and/or treaties. Does anyone of note argue that (customary) international law should "override" those (democratically established) forms of domestic law?

As we discuss on pp. 1186-92 of the article linked in the text, there are many leading scholars and jurists (e.g. - Harold Koh) who argue that customary international law and other international law materials notformally ratified by the US should be used to reinterpret (and thus override) domestic law (including even constitutional law) in ways that would diverge from the results reached using domestic interpretive materials alone. If the results would not be different, there would be no point in resorting to such materials.
4.3.2008 10:36am
martinned (mail) (www):
L.S.,

@prof. Somin: Do you have case law that supports such dangerous international law? As far as I can see, if one legal scholar refers only to writings by other legal scholars as his cause for concern (and thus reason for writing), the result starts to look a lot like too many people who don't have enough to do.

The Convention against Torture is an example of what you're describing; the ICTFY, the House of Lords and even the Court of Appeals for the 9th circuit have interpreted international law to say that the original scope of the Convention is roughly what the ius cogens norm is now (and has been for some time). This essentially means that the US reservation to the Convention has zero value outside the US. But, given the nature of ius cogens, how is this result illegitimate?
4.3.2008 10:42am
Ilya Somin:
It's really a shame that despots have such power over the law. Why, I hear that in one country, all individual rights are subject to the personal whims of nine elders wearing ceremonial garb, who are not elected and can almost never be removed from power!

Sup Ct justices are appointed and confirmed by elected officials, and apply a document ratified through a supermajority process. There are also other checks on their power, such as their generally weak enforcement authority. It's far from perfect, but also a far cry from the justices simply being able to "impose their personal whims" whenever they want.
4.3.2008 10:43am
Ilya Somin:
I was wondering the same thing as Lederman: Who? International law is created by treaty and custom. Treaties are ratified, and customs evolve slowly, and only to the extent that states accept them. (Paquete Habana anyone?)

THis is the "classic" conception of customary international law. Even it has serious legitimacy problems because the majority of states until very recently were nondemocratic, and therefore the classic conception often simply ends up imposing their preferred practices. However, as we show in our article (pp. 1199-1206), the classic view is increasingly displaced by the so-called "modern" view of customary international law, which requires a lot less consensus among states and relies heavily on various materials produced by "publicists" (unelected experts) and international bodies - including the UN - as indicators of custom.

Instant customs are essentially a myth. Certain decisions by international organisations are law because the treaties that created these organisatons say so.

I have never claimed that there are "instant" customs. However, it is clearly the case that both the modern and classical theories of customary international law go beyond what is embodied in formal, ratified treaties. Otherwise, CIL wouldn't impose any rules other than those already embodied in treaties and the whole distinction between CIL and standard treaty law would be lost.
4.3.2008 10:49am
David M (www):
The Thunder Run has linked to this post in the - Web Reconnaissance for 04/03/2008 A short recon of what's out there that might draw your attention, updated throughout the day...so check back often.
4.3.2008 11:44am
davod (mail):
"Who, exactly, are these "many scholars and international law advocates.."

Wasn't it Justice Kennedy who said they were not bound only by the Constitutin and that he looks to international law and jurists for guidance.
4.3.2008 12:04pm
Al Maviva (mail):
Ilya,

Cast not your pearls.
4.3.2008 12:04pm
Just Curious:

Unfortunately, many scholars and international law advocates argue that international law should be allowed to override the domestic law of democratic states in even absent formal ratification processes. To the extent that this occurs, our domestic law might be displaced by legal norms that serve the interests of brutal despots.


What about the persistent objector concept? Nations often repeatedly vote against U.N. resolutions supporting certain "principles of international law." The ICJ takes the persistent objection as evidence that the principle at issue is not properly considered customary international law, or at the very least should not be applied against countries that have never acquiesced to the rule. So long as the U.S. keeps calling these resolutions out for what they are, do we really have any cause for concern?

And don't be so worried about publicists. You know academics of every field love to right outlandish things to get published.
4.3.2008 12:52pm
ER:
The point everyone is missing is that international law serves a number of purposes. The primary purpose of this resolution is to protect anti-blasphemy laws from domestic and international criticism. The specific reason the Organisation of Islamic Countries pushed for the resolution is to protect the anti-blasphemy laws most of them already have on the books. Now they can respond to critics by saying that they aren't violating international human rights norms by enforcing these anti-blasphemy laws. In fact, they are complying with international human rights norms by prosecuting blasphemy!! Note that Pakistan, where blasphemy prosecutions are regularly used to target religious minorities and political opponents, introduced the resolution.
4.3.2008 1:32pm
advisory opinion:
martinned, why do you keep prefacing your comments with "L.S."? It's pretentious. So please stop because most readers probably have no f*cking idea what it means (apart from a vague apprehension that it is a Latin abbreviation of some sort).

Benjamin Davis:
Customary International Law - (1) general practice of states (2) accepted as law. No one would suggest that what you are citing is a general practice of states accepted as law.
It has indeed been suggested. Anthony D'Amato, The Concept of Custom in International Law ("If states later behave in a manner consistent with the resolution when exploration and use of outer space become technologically feasible, we may then say that customary law has been established."); Hugh Thirlway, The Sources of International Law ("This makes it possible to see a rule of international customary law where there is insufficient practice, or none, but there is other evidence that States believe in the existence of a rule of law; this is particularly relied on by those who see General Assembly resolutions as law-creating.").

Please stop Benjamin, you are making yourself look terribly bad.
4.3.2008 1:38pm
Tony Tutins (mail):
I would like to reserve the definition of customary international law to the actual practice of states when dealing with each other, per Benjamin Davis's post. This GA resolution has nothing to do with how states interact with each other. Instead it proposes enforcing uniformity among states' domestic laws. This is not the law between nations, but a proposal analogous to the Directives of the European Union, only lacking any enforcement power in the absence of any overall "one world" government.

Although the Uniform Commercial Code shows there is value to having the same laws in each locality, even within the US, each state has the option to enact, for example, the Uniform Vehicle Code.
4.3.2008 2:04pm
advisory opinion:
But that would invalidate jus cogens prohibitions against genocide or torture, which are species of customary international law that do not necessarily involve the question of "how states interact with each other."

So you and Davis are at once wrong on the facts and missing the point. For Somin does not assert that resolutions = customary law. He's saying that resolutions contribute to the formation of customary international law, whether as evidence of a state's opinio juris or via some other mechanism. This is uncontroversial. What's worse, his suggestion that "no one would suggest" what Somin did not suggest is wrong in any case, as the Thirlway allusion to "But that would invalidate jus cogens prohibitions against genocide or torture, which are species of customary international law that do not necessarily involve the question of "how states interact with each other."

So you and Davis are at once wrong on the facts and missing the point. For Somin does not assert that resolutions = customary law. He's saying that resolutions contribute to the formation of customary international law, whether as evidence of a state's opinio juris or via some other mechanism. This is uncontroversial. What's worse, his suggestion that "no one would suggest" what Somin did not suggest is wrong in any case, as the Thirlway allusion to "those who see General Assembly resolutions as law-creating" demonstrates.

In short, Davis has no idea what he's talking about.
4.3.2008 3:17pm
advisory opinion:
Repost, formating fixed:

But that would invalidate jus cogens prohibitions against genocide or torture, which are species of customary international law that do not necessarily involve the question of "how states interact with each other."

So you and Davis are at once wrong on the facts and missing the point. For Somin does not assert that resolutions = customary law. He's saying that resolutions contribute to the formation of customary international law, whether as evidence of a state's opinio juris or via some other mechanism. This is uncontroversial. What's worse, his suggestion that "no one would suggest" what Somin did not suggest is wrong in any case, as the Thirlway allusion to "those who see General Assembly resolutions as law-creating" demonstrates.

In short, Davis has no idea what he's talking about.
4.3.2008 3:21pm
M. Lederman (mail):
Ilya: You write that "there are many leading scholars and jurists (e.g. - Harold Koh) who argue that customary international law and other international law materials not formally ratified by the US should be used to reinterpret (and thus override) domestic law (including even constitutional law) in ways that would diverge from the results reached using domestic interpretive materials alone."

Well, no, what you euphemistically call "reinterpretation" -- what I would simply call "interpretation with sensitivity to international law limitations" -- is not "overriding" what the legislature has done. To the contrary, what scholars such as Harold Koh have urged is what courts since the beginning of the Republic, almost without exception, have done -- namely, to construe federal treaties and statutes on the strong presumption that our national legislature -- you know, the democratic one -- does not intend for the United States to violate international law. I think that is, and should remain, a very strong and proper presumption about legislative intent; certainly Congress has rarely given any reason to call the presumption into question. (You disagree about how well the presumption captures congressional intent; fair enough, but that's merely a dispute about statutory canons -- the critical point is that everyone agrees that Congress controls.)

The strongest variant of the argument, such as that pressed recently by David Golove, is that the Framers (and all three branches until late in the 19th Century) intended that the scope and contours of certain constitutional powers -- in particular, the President's war powers -- would themselves be defined by a particular subset of international law (the laws of war). But that, too, is a claim about the meaning of domestic law -- constitutional meaning -- not an argument in favor of displacing domestic law with wholly exogenous law.

I repeat: There is virtually no serious scholar with whom I am familiar who argues that international law should be permitted to "displace" or "override" our domestic law; the claim is simply that domestic law itself does, in certain contexts, incorporate international law, or is designed to heed the limits of CIL. That is to say, the "incorporation" of international law as our law is itself effected through democratic processes.
4.3.2008 11:16pm
Benjamin Davis (mail):
Thanks for putting my name in lights!

"do contribute to the formation of so-called "customary international law"

Ah yes, "contribute to the formation" makes it ok, right?

What is stated in a resolution may or may not become/reflect a general practice of states and may or may not be accepted as law. The classic case on this type of thing is the Advisory Opinion of the ICJ on nuclear weapons where arguments were made on the basis of resolutions etc.

Once again, the post is a red herring. A resolution supported by 19 of 21 allegedly non-democratic/dictatorship states is something I seriously doubt is anything close to being the kind of statement of some widely accepted practice of states or a statement of what could become a rule down the road.

In theory it could be a reflection of prior practice that was a general practice of states accepted as law - if there was a consensus that the resolution reflected.

Or, down the road, if general state practice moved in the same way it could in some sense contribute to the crystallizing of a new rule.

My impression is that it contributes in the way one car coming on a freeway contributes to the traffic.

Please keep in mind, at least in the way I think of it, that the transition from a resolution to become/reflect rule can be narrow or can be very wide and everything in between. I suspect. given the vote, the space on this resolution is extremely wide. Using it to try to delegitimize customary international law is a red herring to me.

That seems to be precisely what Ilya and John are trying to do with their changing the terms (raw international law or modern position). It is a kind of special pleading by Ilya and John and I wish they would just stop it. It is creative but I just do not think it does more than mystify like so many writings of foreign relations law types about international law.

And yes I recognize that there are persons out there who formulate the creation of customary international law in many different ways. Maybe this is a debate among outliers - one proclaiming vast space for customary international law and one decrying that vast space. I am not sure, but I am not trying to claim more than what customary international law has tended to be in a traditional non-exotic sense.

I am happy to call other stuff norms, I have a problem with the term soft law as it implies there is some law there, or standards, or perceptions or something like that.

No doubt I am just old fashioned.

Best,
Ben
4.4.2008 6:09pm