Democracy and international human rights law.

• Author: McGinnis, John O.

INTRODUCTION I. THE CHALLENGE OF INTERNATIONAL HUMAN RIGHTS LAW A. The Growing Scope of International Human Rights Law B. International Human Rights Law as a Justification for Changing Domestic Law 1. Direct Incorporation of Human Rights Law into Domestic Law Without Legislative Warrant 2. International Human Rights Law as a Rule of Construction for Domestic Law 3. International Human Rights Law as an Authority Justifying Legal Change II. ADVANTAGES OF DEMOCRATIC PROCESSES IN FORMULATING HUMAN RIGHTS Law A. General Benefits of Democratic Processes B. Is Human Rights Law Special? C. Advantages of Supermajoritarian Democratic Processes for Determining Human Rights Law D. What If Domestic Constitutional Law Is Also Produced by Undemocratic Processes? E. The Insufficiency of Democratic Override III. THE DEMOCRACY DEFICIT OF INTERNATIONAL HUMAN RIGHTS LAW A. The Influence of Nondemocratic States B. Multilateral Human Rights Treaties C. Customary International Law D. Other Sources of International Human Rights Norms 1. Committees Charged with Interpreting Multilateral Human Rights Law 2. The International Committee of the Red Cross IV. THE EFFECT OF THE DEMOCRACY DEFICIT ON INTERNATIONAL HUMAN RIGHTS LAW A. Hate Speech B. Comparable Worth C. The Right to Housing D. Humanitarian Law V. REPRESENTATION-REINFORCING RIGHTS" THE EXAMPLE OF FREE MIGRATION A. Representation-Reinforcing Rights B. The Advantages of "Foot Voting" C. Migration Rights in Current International Law D. Democracy, Foot Voting, and the Case for an Expanded International Right to Entry E. Migration Rights as a Form of Representation-Reinforcing International Law CONCLUSIONS AND IMPLICATIONS INTRODUCTION

International human rights law has greatly expanded since World War II. Advocates argue that it should supplement and even displace the domestic lawmaking process in a wide range of settings. Such displacement would be desirable if international human rights law were likely to provide legal norms that are on average superior to those produced by domestic lawmaking processes. Unfortunately, the opposite is likely to be the case when international human rights law norms are used as authority to displace domestic law that would otherwise govern liberal democratic states.

As we have discussed in an earlier article, (1) most international law is made through highly undemocratic procedures. (2) These processes lack the advantages of democratic processes, and have few, if any, off setting virtues of their own. 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. (3) By contrast, international law that has been validated by the domestic lawmaking process of a democracy--either through ordinary legislation or treaty ratification--should on average be as good as other laws enacted by the same domestic processes. (4)

In this Article, we extend our analysis of democracy and raw international law to the special case of international human fights law, including international humanitarian law. In that area, advocates of human rights law argue that international law has a special role to play because such rights are too fundamental to be left to the vagaries of domestic democratic processes. We demonstrate, however, that there is good reason for skepticism about the desirability of using international human rights law to change the domestic human rights law of democratic nations.

Our analysis rests on both theory and example. As a matter of theory we show how domestic democratic processes are likely to generate human rights norms superior to those embodied in international law. International law is often enacted through the influence of nondemocratic governments and unaccountable, unrepresentative elites from democratic states. Even the assent of democratic governments to international human rights norms is often "cheap talk," because that assent does not reflect a willingness to have these norms directly enforced. We also show that many specific international human rights norms are at best debatable and at worse potentially harmful. One of the key structural problems is that the institutions interpreting such norms are not democratic, but bureaucratic and oligarchic and, thus, often hostile to basic economic and personal liberties.

We do not argue against the use of international human rights law to replace democratic decisionmaking because democracy produces perfect results. We merely contend that even a flawed democratic process is likely to produce better legal rules than the international lawmaking system. The democratic process to some degree reflects the decisions of the people either directly or, more often, through their representatives. The international law system, by contrast, reflects the views of national governments, whether democratic or not, and unelected publicists, who are accountable to no one. There is no good reason to believe that such a process will better choose appropriate human fights, including minority rights, than a democracy will. This is particularly clear if one includes the constitution-making processes of complex, modern democracies as part of the domestic lawmaking system.

Nevertheless, our conclusions about international human rights law are not wholly negative. Our emphasis on democracy leads to qualified enthusiasm about the role human rights law can play in restricting the abuse of government power by nondemocratic regimes. Moreover, our embrace of democratic processes as a relatively effective generator of human rights naturally 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 the generation of controversial substantive rights to protection of norms that will facilitate the leverage of citizens in controlling their own governments. In short, because there is no global democratic process, international law lacks the ability to generate substantive rights norms superior to those of democratic states. Thus, international human rights law might better focus on creating rights that facilitate rather than supplant domestic democratic processes.

Such a reorientation is particularly defensible in cases where international human fights law seeks to displace the domestic law of democratic states, which are likely to generate better laws through their democratic processes than those enacted through international law. (5) As an example of international human rights law that may facilitate such leverage, we advocate rights that empower citizens to vote with their feet through free migration.

Part I of this Article describes the wide range of situations in which advocates of international human rights law justify the use of these norms to displace the domestic law of democracies. Part II responds to the claim that human rights law is best developed through international lawmaking processes by explaining the advantages of democratic processes in formulating human rights law relative to nondemocratic alternatives. In Part III, we show why international human rights law suffers from a democracy deficit. This deficit exists whether the international law is embedded in multilateral human rights treaties, in customary international law, or in softer international law norms created by international organizations. Much of international human rights law is made either by relatively unaccountable international elites or through processes in which the governments of oppressive dictatorships wield influence. Allowing such international law to displace the domestic lawmaking process in democratic states is more likely to cause harm than good because the legislative processes that generate international law are generally inferior to those of well-functioning democracies. In addition, subordinating the law of various nations to a single international standard could close off valuable diversity and experimentation.

Part IV provides concrete examples of the democracy deficit at work. We consider specific norms of international human rights law generated by international institutions and show that they are deeply controversial and potentially highly flawed. These rights are largely generated by international bureaucrats, including many representing authoritarian governments. Not surprisingly, some of these norms are inimical to personal and economic liberties that can themselves be categorized as important human rights. The subset of international rights law known as humanitarian law is also defective in a similar way. The International Committee of the Red Cross (ICRC) is a private organization made up of citizens from a single country that is focused on expanding the reach of humanitarian law through its interpretations of the Geneva Convention and customary international law. (6) But this expansion is potentially at the expense of permitting nations, like the United States, to prosecute necessary wars, including a war against terror--a prosecution that itself may protect human liberty. It is a striking confirmation of the lack of attention to the democracy deficit in international human rights law that the parochial nature of the ICRC is hardly mentioned, let alone evaluated, in previous discussions of whether domestic institutions in the United States and elsewhere should defer to its legal judgments.

In Part V, we sketch a new theory of representation-reinforcing international human rights law that is not as open to the democracy deficit objections as conventional approaches. Our argument is conceptually similar to John Hart Ely's classic justification of representation-reinforcing elements of judicial review. (7) Just as Ely argued that domestic judicial review might avoid the dangers of...