The limits of international law in protecting dignity.

AuthorMcGinnis, John O.

My perspective on international law and human dignity can be simply stated: International law, as currently constituted, is likely to fail to advance human dignity. The vehicles most relied upon to advance this great goal--human rights treaties--are flawed as a matter of substance and process. Nor can much hope be placed in the principles of customary law, because its process of generation provides no guarantee that its principles as a whole will be beneficial, particularly to those who most struggle for human dignity--the impoverished of the developing world. In contrast, world trade agreements provide the most likely international vehicle for advancing human dignity. By increasing wealth and bringing the world's poor into the web of exchange, multinational trade agreements are likely to move societies onto paths leading to more democratic governance and improved civil rights. (1)

The central premise of my talk is that, as a general matter, political systems that create the conditions necessary for human dignity are best rooted in popular consent and respect for basic economic freedoms. My reasons for this conclusion are historical, empirical, and theoretical. Historically, growing popular consent and economic freedom permitted a rising middle class in England, and then America, to create a society that protected civil rights to a degree unprecedented in human history. (2) Empirically, the nations that respect popular consent and democracy tend to protect the other civil rights that permit human beings to flourish. (3)

Theoretically as well, popular consent is an important step to make rulers govern according to the preferences of the people. Without popular consent and democracy, government structures operate for the benefit of the rulers and the factions that support them--a problem that bedevils all political systems and detracts systematically from human dignity. But even democratic institutions are bedeviled by high agency costs. Insofar as the actions of elected officials are not transparent, and the officials themselves are not accountable to the electorate, rulers of democratic governments display the same tendencies as dictatorships: to protect their own interests and the interests of the factions that support them at the expense of the public. Government should be structured to reduce those agency costs. When either tradition of constitutional principle allows individuals very substantial control over their own economic destiny, the scope and thereby the agency costs of government are substantially curtailed.

Unfortunately, as currently constituted, most mechanisms of international law rail to provide means for popular consent to the rules they create, and the substance of these rules have utterly failed to protect economic freedom. One reason for this failure is that the citizens of sovereign nations have no process by which they may hold accountable the architects of international rules. International rules do not generally emerge from the kind of process that gives us historical, empirical, and theoretical reasons to believe that the rules will actually protect human dignity. Because these international processes are distant from the average citizen, agency costs are in fact particularly high.

Here, I briefly review human rights treaties and customary international laws--two sources from which advocates seek a greater infusion of dignity from international law--and show why they are unlikely to contribute to human dignity. In contrast, the treaties promoting free trade under the aegis of the World Trade Organization can contribute to human dignity because their operations have relatively low agency costs and, in fact, particularly empower the poor, a group whose interests are at risk even in democratic systems.

First, let me begin with the procedural problems in the family of international law provisions that human rights advocates hold up as charters of human dignity, such as the Universal Declaration of Human Rights (4) and the International Covenant on Economic, Social, and Cultural Rights. (5) Both of these international human rights documents were negotiated during the period of the Cold War when the communist bloc was a party to these treaties and greatly influenced their content. This provenance greatly undermines the worth of these documents as vehicles for human dignity: They emerged from a process influenced by totalitarian regimes and not by a process of open popular consent. Obviously what went into these documents was in part a consequence of what these dictators wanted. Certainly, if human rights treaties had been negotiated during the ascendancy of Nazi Germany and its axis allies, no one would argue in favor of applying them because the process by which conventions were negotiated with such totalitarian nations could not provide any guarantee that the document should be relied upon independently as a guide to the principles that establish human dignity. I am, of course, not asserting that no provision in these agreements is a good one, but the process by which the provisions were generated provides no evidence that any particular provision is beneficial.

The substance of these documents also confirms their flaws as vehicles for protecting human dignity. To mention just a few, these documents mint all sorts of rights citizens as a collective have against the government--rights to good education, free health care, and even, in one case, the right to have the government assure paid holidays! (6) Neither of the covenants, however, contains a right to compensation for the taking of property, or provides protection for other individual economic freedoms, such as the right to contract. The Universal Declaration of Human Rights mentions property rights, but provides only for "the right to own property" and the right not to "be arbitrarily deprived of ... property." (7) It provides no specification of what constitutes property. It is wholly silent on other economic freedoms, like the right to contract. It thus seems to ignore the very rights that both historically and empirically have been the foundations of a culture that protect human dignity.

But even setting aside the defects in the process that gave rise to these human rights documents and the flaws in the documents themselves, grounding human dignity in an international human rights regime faces substantial obstacles. The dilemma is simply that outside of certain core matters like genocide and the like, the optimal contours of many rights vary with the level of development and culture of the country. Thus it is difficult, if not impossible, for an international document to provide the optimal set of civil rights in the context of each nation. As a result, any document would need to be pitched at a very high level of generality in its definition of civil rights, and even many property rights. That generality would then need to be interpreted in a specific context. The question of who would do the interpreting then raises the problems of agency costs yet again: who will watch over the interpreters to guard against unrepresentative or special-interest interpretations?

This problem is more than a theoretical one, because those who have the most influence over the interpretation of these treaties, such as law professors and nongovernmental organizations, are not representative of citizens. Take the case of law professors--the publicists of international law. First, they are predominantly from the developed, rather than the developing, world. Intellectuals are expensive, and the developed world can simply afford more of them, just as it can afford other luxuries. Second, even within their own nations, law professors, like intellectuals generally, have distinctly unrepresentative views. For instance, in the United States, law professors are overwhelmingly left-liberal in their political orientation. (8) Overall, Democratic-leaning law professors outnumber Republican-leaning law professors by about eleven to two, and a recent study that I have conducted on campaign contributions suggests that international law professors are at least as liberal as other professors. (9) While data on the political preferences of law professors in Europe and other Western countries is not as readily available, in general the academic class stands well to the left of modern society.

The combination of these two biases can be quite powerful. Because academics come from countries that are already wealthy, they profit less from growth than the average global citizen who may be more willing to take risks to better his very low standard of living. Because academics are left-liberal, they are less sympathetic to entrepreneurial ideas than the average citizen. The combination would...

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