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.

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.