The Promise of Human Rights. Jamie Mayerfeld
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the relationship of the United States to international human rights law is ambivalent. While often eager to apply international human rights law to other countries, it has consistently sought to minimize the impact of such law on its own laws and policies.2 It has refused to ratify several major human rights treaties, and ratified others only after a long delay. Even when ratifying human rights treaties, it uses “reservations, understandings, and declarations” to cancel any obligations requiring a change in its own laws and policies and to block American judges from enforcing treaty provisions in their judgments. It has declined to accept the jurisdiction of the International Criminal Court and the Inter-American Court of Human Rights. It has questioned the binding force of customary international law, including that pertaining to human rights and armed conflict, on the president and Congress.
Resistance to U.S. adoption of international human rights law began very early.3 In the late 1940s, as the United Nations proclaimed the Genocide Convention and began work drafting a human rights covenant, Frank Holman, president of the American Bar Association, led a campaign to block U.S. ratification of any human rights treaties. He found a tireless champion in Senator John Bricker, Republican of Ohio, who introduced a constitutional amendment that would bar U.S. treaties from becoming domestic law in the absence of congressional legislation. The amendment failed to win the necessary two-thirds vote in the Senate, but the campaign elicited a promise from President Dwight Eisenhower not to submit any human rights treaties for Senate approval. The United States waited forty years (until 1988) to ratify the Genocide Convention and twenty-six years (until 1992) to ratify the International Covenant on Civil and Political Rights; ratification of both treaties was heavily qualified with reservations, understandings, and declarations.
Arguments by Holman and Bricker have been restated ever since: that the adoption of international human rights law is unnecessary in view of the deep U.S. commitment to rights and that it would undermine the Constitution, subvert democracy, and violate U.S. sovereignty. The arguments gained fresh impetus in the 1990s with the rise of the New Sovereigntists,4 a group of prominent legal scholars and Republican administration officials who recommended sharply limiting the impact of international law on U.S. law and policy. The New Sovereigntists have expressed particular concern about international human rights law, warning that its domestic incorporation not only would be imprudent and antidemocratic, but may violate the Constitution.5 Their arguments have influenced judicial opinions.6 Most New Sovereigntists belong to the right, but some of their arguments are echoed by scholars on the left.7 Parallel critiques are raised in other countries8—the issues are general in scope.
I argue that the critiques are misplaced. Because domestic human rights protections in the United States are both fragile and incomplete and because international human rights law offers much-needed reinforcement, it does not undermine but rather shores up the Constitution. It supports democracy, because respect for human rights is a core purpose of democracy. Democracy does not mean unfettered choice, and the Founders wisely rejected such an understanding of popular government. Learning from James Madison, we should envisage democracy as a joint commitment to uphold justice, including human rights, where popular participation in government is the primary but not exclusive device used to block unjust policies. Nor must we rely on Madison: other arguments show that the best understanding of democracy is one that incorporates effective rights protections, and this view now informs standard uses of the term “democracy.” Because human rights require international as well as domestic protections, international human rights institutions complete the democratic project. They place limits on state sovereignty, but such limits are no cause for regret. The limits do not contravene democratic or other moral values.
A leading criticism of international human rights law is that it is antidemocratic because it limits the policies that citizens of a nation-state might otherwise choose to adopt. To rebut this criticism, I develop two arguments. The gentler argument (made in Chapter 6) is that international human rights law prohibits policies countries should not consider anyway, so these prohibitions constitute no loss for democracy. This argument is compatible with diverse theories about the meaning of democracy, and is not overturned by the fact that people may disagree about the content of human rights. The bolder argument (made in Chapter 2) advances a particular theory about the meaning of democracy. As an institutional matter, democracy requires popular government, but that leaves open the question what the purpose of democracy is. It is often assumed that its purpose is to realize the people’s will. I argue instead that its purpose is to secure justice. I defend what I call a “Madisonian” conception of democracy, understood as a promise among citizens and officials to hold one another accountable in a shared project of crafting and enacting policies that promote justice, where justice necessarily includes a commitment to human rights. The fundamental institutional logic of democracy is checks and balances, where citizens and officials monitor each other to prevent the misuse and abuse of political power. Popular government is the most important of these checks, but not the only one; it is a necessary but insufficient element of democracy. On this account, democracy requires, and is not in tension with, international human rights law. I hope readers may be persuaded by the Madisonian conception of democracy, but if not, the gentler argument mentioned above is still sufficient to establish the democratic legitimacy of international human rights law.
I make no claims for international law as a whole. Let me state what should be obvious: international law can reinforce human rights and democracy but can also undermine them.9 This book addresses the international law of human rights, not international law in general. Nor is international human rights law infallible. Sometimes it may harbor a false conception of human rights or adopt flawed means of implementation. The politicized resolutions process of the UN Human Rights Council (and its predecessor, the Human Rights Commission), in which some notorious human rights abusers have been shielded from criticism, reminds us that human rights institutions sometimes fall short of their mandate.10 We should also be vigilant against attempts to corrupt international human rights institutions from within, attempts that sometimes use the language of human rights to subvert human rights.11 In the worst case, if corruption becomes too pervasive, withdrawal may be necessary. But we may succeed in defeating (or at least limiting) attempts at sabotage, and we may be able to improve flawed human rights institutions or replace them with better ones. A theme of this book is that democratic states have a responsibility to enhance and maintain the integrity of international human rights institutions. Moreover, it is important to point out that some international human rights laws and institutions have made great contributions, and that constitutional democracies, including the United States, can harness those contributions for their own good.
When I claim that constitutional democracies should become integrated into an international human rights regime, therefore, I do not mean any international regime bearing that label. There can be false international human rights institutions no less than false constitutional democracies. The main danger is the influence of abusive governments wishing to subvert rather than support human rights and their ability to commandeer international human rights institutions to their purposes. One example is the Permanent Independent Human Rights Commission of the Organization of Islamic Cooperation, which some observers fear is little more than an exercise in window dressing for an anti-human rights agenda by the organization’s most powerful member states.12 What complicates the picture is that repressive governments may sometimes become entrapped in their own human rights pledges, however insincere. A well-known case is the Helsinki Final Act of 1975, briefly discussed in Chapter 3: the Soviet Union and its allies agreed to what they thought were pro forma human rights commitments, not anticipating that the declaration would boost the human rights movement throughout the Eastern Bloc, eventually contributing to the fall of the Berlin Wall. But entrapment is not inevitable; forewarned states may prevent it. Among the factors that contribute to the effectiveness of international human rights institutions are the inclusion of democratic states, a platform for human rights nongovernmental organizations, and an independent staff that cares about human rights and can resist member-state pressure.13 International human rights institutions are not a deus ex machina; their success