The Promise of Human Rights. Jamie Mayerfeld
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measures have the potential to strengthen respect for human rights, and in many cases they plainly do.
Fourth, those who deny the effectiveness of international human rights law typically overlook its potential to influence domestic law.51 Since the adoption of international human rights law is partly a matter of its incorporation into domestic law, it largely misses the point to claim that international human rights law is ineffective per se. If that claim is true, we have all the more reason to incorporate international human rights law into domestic law. In any event, the influence of international human rights law on domestic law is extensive. The rights provisions of the 1948 Universal Declaration of Human Rights and 1966 International Covenant on Civil and Political Rights (ICCPR) have been widely reproduced in national constitutions.52 A recent study shows that countries that ratify the ICCPR are likelier to incorporate its provisions into their constitutions and that their decision to do so is associated with improved respect for physical integrity rights.53 Human rights treaty provisions are often written into domestic legislation.54 As discussed in Chapter 3, the European Convention on Human Rights is domestic law in all forty-seven member states. The growing influence of international human rights law on domestic law, a much-studied phenomenon,55 shows that ratifying international human rights treaties can have significant consequences for domestic practice.
Finally, international human rights law provides human rights advocates an important resource to advance their cause.56 The availability of the resource is important in itself, notwithstanding the frequent difficulty of knowing if or when or how its use will bear fruit in the form of legislative, judicial, and bureaucratic change. As an analogy, we may think of the role of the Equal Protection Clause (ratified as part of the Fourteenth Amendment to the U.S. Constitution in 1868) in mobilizing legal advocacy against racial discrimination, even though it took many decades to translate those efforts into lasting legislative and judicial victories. As Geoff Dancy and Christopher Fariss observe, we need to attend to the “slow-burning and hard-to-observe improvements in state behaviors” associated with “sustained human rights legal activism over time.”57 In this and other ways, large-N cross-national studies, if used in isolation, may miss important developments in the struggle for human rights.
Brief Summary of the Book
My discussion is roughly divided between empirical and theoretical chapters (though there is some mixture of empirical and theoretical material throughout). Chapters 3 through 5 contrast Europe and the United States to demonstrate the benefits of international human rights law and the costs of its marginalization. The remaining chapters build the case for the moral necessity and political legitimacy of international human rights law. I argue that we should affirm universal human rights (Chapter 1); that adoption of international human rights law is a corollary of the human rights idea (Chapter 1); that participation in an international human rights regime is required by sound principles of constitutional design such as those that guided the founders of the United States (Chapter 2); that international human rights law does not subvert but, on the contrary, bolsters democracy (Chapters 2 and 6); and that international human rights law can be criticized as an infringement of sovereignty only on an implausibly strong conception of sovereignty that we should reject anyway (Conclusion).
Parts of the empirical discussion in Chapters 3–5 are highly detailed. Readers wishing to focus on the theoretical storyline might want to limit their reading of those chapters to pages 73–78, 89–93, 105–10 (chap. 3), 111–17, 120–24, 142–46 (chap. 4), and 147–51, 155–59, 164–70, 180–85 (chap. 5), while skimming or skipping the rest.
More Detailed Summary
Chapter 1 addresses the meaning and justification of human rights. I propose that rights are grounded in a set of principles that can be held by people holding diverse philosophical and religious doctrines. The principles recognize our shared interest in security and freedom and shared status as equal and inviolable persons. Human rights have an institutional dimension, because they embrace not only primary entitlements but also social arrangements that protect those entitlements. Because of the many ways national rights protections may fail, international protections are a necessary supplement; they are the logical completion of the human rights idea. In this chapter, I also consider controversies relating to cultural relativism, socioeconomic rights, and the proper addressee of human rights claims.
Chapter 2 develops a justification of international human rights institutions based on James Madison’s constitutional philosophy. A democratic constitution as envisaged by Madison is a promise to hold one another accountable in a shared project to promote justice, above all the protection of human rights. Madison’s consistent strategy against tyranny was to break up concentrated power and replace it with a system of divided powers and mutual oversight. As Madison was aware, however, checks and balances can be undermined by faction—that is, by groups of people organized to pursue a collective interest or passion at the expense of justice. His famous solution to this problem involved the skillful geographic redistribution of decision-making authority. During the debates over the ratification of the U.S. Constitution, he argued that a federal union would limit the harm caused by faction in the separate American states. In our own time, when nation-states (especially the United States) wield a degree of power unlike anything Madison ever knew, and when profound social transformations have made national factions a formidable threat to individual liberty, Madisonian constitutionalism calls for international oversight of national policy.
Chapter 3 shows what a Madisonian system of transnational human rights protections might look like in practice. Over the last seventy years, Europe has built a powerful human rights regime that adheres to Madisonian principles of constitutional design. The fundamental idea is that the protection of human rights is a collective task—that all European states and all European citizens are simultaneously responsible for the protection of human rights in each national jurisdiction. The significant achievements of this regime show why a multilateral approach is necessary for the effective protection of human rights.
Chapters 4 and 5 examine the U.S. refusal to integrate itself into international human rights institutions. Since World War II, the United States has kept itself practically exempt from international human rights law, in the belief that its domestic institutions give rights sufficient protection. But this policy of “American exceptionalism” has created loopholes, blind spots, and a lack of accountability resulting in grave abuses of human rights. Chapter 4 begins by reviewing the emergence of American exceptionalism, the U.S. involvement with torture before 9/11, and the prohibition of torture under U.S. constitutional and international law. It then examines the United States’ authorization of torture in the “War on Terror,” with special attention to the so-called torture memos written by senior lawyers in the Bush administration. In Chapter 5, I show