THE DEMOCRATIC LIMITS OF INTERNATIONAL HUMAN RIGHTS LAW.

• Author: McGinnis, John O.
• Position: International Law and U.S. Foreign Policy

We citizens of the United States have been handed a precious gift--the Constitution. (1) The importance of this gift lies not merely in the structures for government that the document details but also, more broadly, in the commitment to the rule of law. Some in the current generation of jurists have now asked the question: "Which law should rule us?" Some justices on the Supreme Court have been looking to international law and precedent to decide domestic cases. (2) But is this legitimate? Should decisions made in Geneva bind people in Grand Rapids?

In this brief essay, I will argue that international law should not be applied against United States officials or others in the United States except when Congress has made it part of our law by either treaty or statute. Our structure for creating norms applied to Americans is better than the structure for creating international norms. Far from harming the cause of international human rights, this limitation to their application will advance it.

Currently, many Americans, particularly conservatives, are suspicious of international human rights because they fear such rights will be used to attack American practices and actions, despite our functioning democracy and the benefits we provide the world in keeping the international peace. But if the only international norms that are applied to the United States are those to which we actually consent, that limitation will put to rest these fears. Under that regime, Americans will have more credibility to attack the worse abuses of international human rights that occur not in well-functioning democracies but in authoritarian regimes, like Iran, and in communist regimes, like China, North Korea, and Cuba.

The United States should not generally feel bound by international human rights law unless it has agreed to be bound through its own domestic law--either by treaty or congressional executive agreement. The democratic processes for legislating in the United States are superior to the often-flawed processes that create modern human rights law. While other well-functioning democracies should also not feel bound by international law to which their domestic systems have not consented, the United States has particular reasons for its refusal because of its constitutional structure of federalism, its common law style of judging, and its unique international responsibilities as a world superpower.

America's need for screening human rights claims through its own democratic processes has become much more important in recent times because of the vast, continuing expansion of human rights law since World War II (3) and because of the more uncertain processes by which the international community generates that law. (4) Participatory nations used to share a consensus on what constituted a legitimate international human rights claim--rights involving a fairly definable core, like "freedom of opinion and expression." (5) Now, however, human rights claims like "sustainable development" are more difficult to define. International human rights claims have also moved from rights that have claim to universality, such as freedom from arbitrary detention, to ones whose content might plausibly vary with time and place, like rights to housing and medical care. (6) Both the scope and vagueness of modern human rights claims call for a domestic process that will keep them within precise bounds.

The broader problem is that by their very nature, some of the positive rights to government-provided resources for which modern international human rights policymakers argue can conflict with the United States' negative individual rights traditions, like rights to liberty and to private property. The ever-expanding range of norms that international human rights advocates now accept or espouse is breathtaking. For example, many now claim the right to healthcare or the right to affirmative action as an accepted norm. (7)

While democratic processes for resolving policy conflicts possess many advantages, two are particularly pertinent. First, if the governed have no meaningful control over their rulers, then the rulers' inherent right to rule is far from clear. Second, citizens are likely to be better off under a government that is subject to democratic checks because that accountability makes the government's right to rule dependent on the citizens' continuing preferences.

Many of the processes for generating international human rights laws are inferior to a beneficent democracy because they do not provide citizens as much control over those that frame international human rights. The three primary sources of modern international human rights law--multilateral international human rights treaties, customary international law, and "soft law," all of which are norms emerging from international courts and interpretive bodies--merit specific consideration in comparing them to domestic democracy.

First, there is a variety of international human rights treaties, which many nations have signed and ratified. (8) The range of these treaties covers many subjects. Some are general, such as the Covenant on Civil and Political Rights, (9) as well as the Covenant on Economic, Social and Cultural Rights, (10) which addresses some positive claim rights. Some treaties are much more specific, like the Rights of the Child Convention. (11) The United States has signed many of these multilateral conventions but has ratified relatively few of them. For example, the Senate gave its advice and consent to the Covenant on Political and Civil Rights, which the President subsequently ratified. (12) In contrast, the United States has not ratified the Covenant on Economic, Social and Cultural Rights or the Rights of the Child Convention. (13)

Even with most of the treaties the United States has ratified, the government has registered substantial reservations, often in the form of statements that the United States will not follow the treaties in some particulars, such as when some kinds of international human rights endanger First Amendment freedoms. (14) Moreover, the ratifying bodies almost universally make these ratified treaties nonself-executing. (15) A non-self-executing treaty requires the United States Congress to pass legislation to make the treaty judicially enforceable in the United States. (16) In the absence of such legislation-and certainly, in the absence of ratification of...