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Democracy and International Human Rights Law:

My new paper on "Democracy and Human Rights Law," coauthored with Northwestern law professor John McGinnis, is now available on SSRN. The paper - which is currently under submission to law reviews - continues our analysis of the implications of the undemocratic origins of much of modern international law, begun in our Stanford Law Review article last year. The paper is highly relevant to recent debates over the Medellin case, and the United Nations Human Rights Council's efforts to establish an international law norm restricting speech that supposedly "defames" religion. Here are some excerpts from the abstract:

The undemocratic origin of most international human rights law greatly reduces the desirability of allowing it to change the domestic law of democratic states. Most international law is made through highly undemocratic procedures. Thus, on average, the quality of what we call "raw" international law rules that have not been ratified by domestic democratic processes is likely to be lower than that of domestic legal rules established by liberal democracies....

Our article does not rest on theoretical arguments alone. We describe several concrete effects of the nondemocratic generation of international human rights law. For example, we show how the influence of unrepresentative legal elites and authoritarian states has led to the establishment of potentially harmful international law norms in with respect to "hate speech," the "humanitarian" law of war, and comparable worth.

Nevertheless, our conclusions about international human rights law are not wholly negative. Our embrace of democratic processes as an effective generator of human rights . . . leads to a willingness to consider domestic enforcement of international human rights that directly strengthen citizens' control over government policy. We thus seek to reorient international human rights law from generating controversial substantive rights to protecting norms that will facilitate the leverage of citizens in controlling their own governments . . .

As we discuss in the paper, our position differs from the Bush Administration's view that adherence to human rights law (at least in wartime) should be at the virtually complete discretion of the executive. In our view, the executive is bound by domestic human rights restrictions imposed by the Constitution or by Congress and by international law duly ratified through the treaty ratification process in a way that indicates Congress' intent to impose an enforcable legal rule. However, the best way to address executive abuses is through judicial and congressional enforcement of US domestic law, not through imposition of unratified international law norms that are likely to be inferior to the domestic law they displace.

Dilan Esper (mail) (www):
The conservative claim that international human rights law is imposed by unelected law professors is overstated. There has to be a consensus, including even by many nondemocratic states. Thus, torture violates customary international law (as well as treaties), but the death penalty doesn't, even though many of the states that retain the death penalty are big time human rights violators.

The scholars-- at least the good ones-- are trying to recognize the consensus, not make up some right that nations don't accept and don't conform their practice to.

And once understood to encompass the sorts of things that nearly everyone agrees with (and recognizing, in many instances, the right of a government to be a "persistent objector" and opt out of customary international law), there's no reason to overrule The Paquete Habana and retreat to a rule that we will only be bound by self-executing or congressionally implemented treaties.
4.7.2008 3:04pm
Ilya Somin:
And once understood to encompass the sorts of things that nearly everyone agrees with (and recognizing, in many instances, the right of a government to be a "persistent objector" and opt out of customary international law),

We do not claim that "law professors" alone can impose a norm. However, it is simply not true that claims of customary international law are limited only to those rules that "everyone agrees with," a point that we discuss at some "length in both this article and the earlier one linked in the post. Moreover, "publicists" (who include law professors) play a crucial role in the current system in creating what are viewed as authoritative interpretations of the customary international law rules that (supposedly) do exist.

The scholars-- at least the good ones-- are trying to recognize the consensus, not make up some right that nations don't accept and don't conform their practice to.

Unfortunately, there is no rule limiting the role of publicists in establishing and defining international customary law norms to the "good scholars." And even the "good" scholars may be biased because of their highly unrepresentative nature.
4.7.2008 3:16pm
AnonLawStudent:

And once understood to encompass the sorts of things that nearly everyone agrees with (and recognizing, in many instances, the right of a government to be a "persistent objector" and opt out of customary international law), there's no reason to overrule The Paquete Habana and retreat to a rule that we will only be bound by self-executing or congressionally implemented treaties.


But isn't it problematic to say that a "consensus" exists when the world's most powerful nation, measured both economically and militarily, doesn't follow the purported "consensus"? In other words, shouldn't consensus be weighted such that - regardless of how many geopolitical nonactors concur - no consensus can be said to exist without the agreement AND adherence of the major players, e.g., the U.S. and China?
4.7.2008 3:26pm
Humble Law Student (mail):
I read the Stanford article and enjoyed it. I look forward to this one. The bonus is that this gives me ammo for the liberal BS in my international law classes.
4.7.2008 3:33pm
Thorley Winston (mail) (www):

The conservative claim that international human rights law is imposed by unelected law professors is overstated.


Who exactly has made such a claim?
4.7.2008 3:39pm
Zathras (mail):
"...the influence of unrepresentative legal elites and authoritarian states has led to the establishment of potentially harmful international law norms in with respect to "hate speech...."

Harmful as determined by whom? ASAIK, the hate speech code are no worse than in most democratic countries. The United States's protection of free speech is an outlier.

If causation is to be established between undemocratic processes and harmful results, hate speech is not a good example. Most democratic countries have restrictions on hate speech as strong or stronger than those proposed in international conventions.
4.7.2008 3:48pm
LarryA (mail) (www):
shouldn't consensus be weighted such that - regardless of how many geopolitical nonactors concur - no consensus can be said to exist without the agreement AND adherence of the major players, e.g., the U.S. and China?
I doubt you'll kill many trees publishing that list. However it is realistic. Note the U.N. rules concerning Security Council vetoes.

The conservative claim that international human rights law is imposed by unelected law professors is overstated.
No, I haven't had time to read the article yet.

However, I doubt that law professors "impose" international law any more than U.S law professors "impose" U.S. law. I'm a lot more concerned about the politicians. A lot (maybe even a majority) of the U.N. members have heads of state that are effectively "unelected," and intend to stay that way.

Even where the leaders of a country are elected, power tends to produce laws that favor the powerful. That "treat alike the rich and poor who sleep under bridges and steal bread." (I'm winging the quote.)

There's an interesting exchange in the current movie Becoming Jane Austin. (Again winging quotes.) The jurist father asks his son, who is reading for the law, "What is the purpose of the law?"
The son recites, as taught, "To protect property."
"From whom?" the jurist continues.
"From those who have none."

It would probably be too distracting (controversial) but I would have liked to see the same discussion using the example of the U.N. initiatives concerning the private ownership of firearms, and the U.S. response. There's an example that goes directly to the issue.
4.7.2008 5:23pm
Elliot123 (mail):
"The scholars— at least the good ones— are trying to recognize the consensus, not make up some right that nations don't accept and don't conform their practice to."

If there really is a consensus, it shouldn't take a bunch of scholars to recognize it.
4.7.2008 5:31pm
Displaced Midwesterner (mail):
Ilya,

A bit off topic, but this argument made me wonder: what are your views on the 17th amendment? As I understand it, part of the argument presented here against human rights law involves unrepresentative elites being part of the process, even if those elites themselves are not from an authoritarian country. The same argument seems applicable to the idea that Senators should not be directly elected.

Also, your argument seems to appply broadly to all international law, which would include trade law, investment law, recognition of foreign judgments, etc. While arguably these areas might be exceptions, it seems that in general the idea that undemocratic process=bad law would apply there as well.
4.7.2008 5:34pm
Bob from Ohio (mail):
The Paquete Habana is a horrible and unconstitutional decision.

The Constitution says in Article VI that the Constitution, Laws "which shall be made" and Treaties are the Supreme Law of the Land. I do not see international "custom" anywhere there.
4.7.2008 5:40pm
Benjamin Davis (mail):
Here we go again! Of all the areas of customary international law, the one area that bears specifically on the rights of humans is the one to be the subject of attack. As if international human rights law has not served as a strong basis to block the adventurous goals of dictators. Hello - earth to everyone - does anyone here not remember the Helsinki accords? And does anyone remember the incorporation of human right rules in the process of defining what that the Final Act meant for Eastern Europe and the then Soviets?

Let's pick some real old customary international law rules - law of the sea - and see what the non-democratic critique is to be. Most of those rules have been developed by non-democratic states over the centuries (democracry being such a relatively recent phenomenon).

Best,
Ben
4.7.2008 5:41pm
Dilan Esper (mail) (www):
shouldn't consensus be weighted such that - regardless of how many geopolitical nonactors concur - no consensus can be said to exist without the agreement AND adherence of the major players, e.g., the U.S. and China?

One of the keys to understanding why there is a customary norm against torture is that every country that does it denies it does it.

In other words, yes, the practices of dictatorships count and if they don't subscribe to the norm, it can't become customary international law. But if everyone claims to subscribe to the norm, and those that do not comply with it deny noncompliance, it's reasonable to conclude that everyone actually accepts the norm.

In any event, I would also caution those of you on the right that a lot of the stuff that would define the status of enemy combatants in ways that conservatives might find useful-- especially when we get outside the strictures of the Geneva Convention-- comes from customary international law.

As for Bob from Ohio's comment, where does The Paquete Habana claim that customary international law supersedes the Constitution, treaties, or statutes?

Finally, what Benjamin Davis said. If you are going to take pot-shots at customary international law, then you have to have the courage of your convictions and argue that we would be better off and more democratic without customary international law in commercial and criminal areas. That it would be better if pirates weren't hostis humanae generis, and their sponsors international outlaws. That it would better with the law of the jungle out on the oceans.

Otherwise, this exercise is nothing more than an attempt to excuse evil.
4.7.2008 6:14pm
AnonLawStudent:

[T]he one area that bears specifically on the rights of humans is the one to be the subject of attack.


If you are going to take pot-shots at customary international law, then you have to have the courage of your convictions and argue that we would be better off and more democratic without customary international law in commercial and criminal areas.


I think that the reason many conservatives reject so-called customary "human rights" law is that it bears on domestic politics. Customary international law should should be international, i.e., it should govern only the interactions between states in the jungle, rather than purport to govern the purely internal actions of governments (especially democratic governments). As applied to the example of piracy, cited above, a pirate declares himself to be free of the restrictions of a state (and by extension, its protections); customary international law thus holds him subject to the law of the jungle.
4.7.2008 6:53pm
Elliot123 (mail):
"As if international human rights law has not served as a strong basis to block the adventurous goals of dictators."

What international law? What dictator? Where? When?
4.7.2008 7:52pm
Benjamin Davis (mail):
Yes. I know that the sovereigns find it very inconvenient that there might be obligations to human beings that flow from customary international human rights law. Yes, you can not use people as so much swill like you could in the good old days. Sorry that causes any inconvenience.

An example is the use of international human rights law in the Final Act of the Helsinki accords. The customary internaitonal human rights law rules were what were elaborated that gave a background for the efforts of persons in the Eastern bloc to get free. Helped Solidarnosc blossom etc.

Best,
Ben
4.7.2008 8:14pm
Elliot123 (mail):

They gave a "background for the efforts of persons in the Eastern bloc to get free?" What does that mean? I suppose the Beatles music and a thousands other things over the past thousand years could also lay claim to providing a "background."

Exactly how did Helsinki help Solidarnosc?

Ain't it great we can't use people as swill anymore?
4.7.2008 8:41pm
Dilan Esper (mail) (www):
I think that the reason many conservatives reject so-called customary "human rights" law is that it bears on domestic politics. Customary international law should should be international, i.e., it should govern only the interactions between states in the jungle, rather than purport to govern the purely internal actions of governments (especially democratic governments). As applied to the example of piracy, cited above, a pirate declares himself to be free of the restrictions of a state (and by extension, its protections); customary international law thus holds him subject to the law of the jungle.

I don't think this answers the charge of hypocrisy. Conservatives use customary international law to argue that terrorists are like pirates, even though (in many cases) they are not stateless.

Further, even human rights norms have a plainly international effect; one reason why the international community is concerned with internal human rights practices is to facilitate foreign travel and ensure certain things don't happen to one state's nationals in another state's territory. Certainly the US has raised contentions based on customary international law in protesting the treatment of its nationals in foreign country.

Finally, I hate to violate Godwin's Law here, but if one posited the worst sort of government, it would seem less than satisfactory to argue that it's human rights policies are none of the international community's business no matter how heinous. There have been examples in recent history that suggest that this is a very bad way to go.
4.7.2008 9:34pm
Bob from Ohio (mail):

As for Bob from Ohio's comment, where does The Paquete Habana claim that customary international law supersedes the Constitution, treaties, or statutes?


Nice strawman.

It says that federal courts can look to international custom to decide cases. Nothing in the Constitution supports that reasoning. The custom of not seizing fishing boats is not in either 1. The Constitution or 2. a statute or 3. a treaty. So, where is the power of federal courts to enforce such "custom"?
4.7.2008 9:44pm
Dilan Esper (mail) (www):
Bob:

Because customary international law is part of the common law tradition which American courts enforce in the absence of applicable Constitutional provisions, treaties, and statutes.

If you believe otherwise, then you would have to argue that, for instance, the principle of comity that generally allows a United States court to respect a fairly litigated foreign judgment is an improper basis for decision, and that therefore everything litigated by a foreign court should be relitigated in the US.

And, more to the point, you would certainly have to argue that the US government has no power to try enemy combatants for war crimes unless the offenses are specifically defined by Congress, and thus Ex Parte Quirin was wrongly decided. You see, customary international law does things conservatives like too.

The reality is that customary international law is nothing more than one of many common law principles that are applied in the absence of a more authoritative source of positive law. But it apparently steps on some conservative toes, and we can't have that, so we have to throw it out.
4.8.2008 12:38am