The Promise of Human Rights: Constitutional Government, Democratic Legitimacy, and International Law

The Promise of Human Rights

PENNSYLVANIA STUDIES IN HUMAN RIGHTS

Bert B. Lockwood, Jr., Series Editor

A complete list of books in the series is available from the publisher.

The Promise of Human Rights

Constitutional Government, Democratic Legitimacy, and International Law

Jamie Mayerfeld

UNIVERSITY OF PENNSYLVANIA PRESS

PHILADELPHIA

Copyright © 2016 University of Pennsylvania Press

All rights reserved. Except for brief quotations used for purposes of review or scholarly citation, none of this book may be reproduced in any form by any means without written permission from the publisher.

Published by

University of Pennsylvania Press

Philadelphia, Pennsylvania 19104-4112

www.upenn.edu/pennpress

Printed in the United States of America on acid-free paper

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Library of Congress Cataloging-in-Publication Data

ISBN 978-0-8122-4816-6

for Peter Mack

Contents

Introduction

Chapter 1. Human Rights

Chapter 2. Madison’s Compound Republic and the Logic of Checks and Balances

Chapter 3. Europe and the Virtues of International Constitutionalism

Chapter 4. American Exceptionalism and the Betrayal of Human Rights, Part I: The Torture Memos

Chapter 5. American Exceptionalism and the Betrayal of Human Rights, Part II: Enabling Torture

Chapter 6. The Democratic Legitimacy of International Human Rights Law

Conclusion

Notes

Index

Acknowledgments

[M]en can never be secure from tyranny, if there be no means to escape it till they are perfectly under it; and, therefore, it is that they have not only a right to get out of it, but to prevent it.

—John Locke, Second Treatise of Government, 1690

No man is allowed to be a judge in his own cause.

—James Madison, The Federalist, 1787

The Promise of Human Rights

Introduction

I argue in this book that human rights require not only domestic but also international protections. The reasons why a country should adopt constitutional democracy as a form of government are also reasons why it should become integrated into an international human rights regime. It should incorporate international human rights law into its domestic legal system and accept international oversight of its human rights commitments. Contrary to the view that international human rights law undermines constitutional government by undermining state sovereignty, I argue that international human rights law is a necessary extension of domestic checks and balances, and therefore necessary for constitutional government itself. To put it another way, constitutional democracy is incomplete unless domestic human rights institutions are bolted into a system of international guarantees.

The justification for international human rights institutions typically offered to Western audiences is outward looking—that such institutions can improve the human rights practices of other countries. I instead present the inward looking argument that international human rights institutions can improve the human rights practices of one’s own country. International human rights institutions are an element of domestic governance: they allow democratic and democratizing states, through mutual criticism and oversight, to strengthen the domestic constitutional order. I do not minimize the importance of outward-looking motives. Indeed, the inward-looking rationale presupposes their existence: countries must take an interest in improving one another’s human rights practices in order for participating countries to reap the benefits of the system. But the inward-looking justification merits more attention than it has received.

Faith in the sufficiency of domestic human rights institutions is one mistake; belief that international human rights institutions can function unaided is another. The role of international human rights institutions is not to replace but rather to strengthen their domestic counterparts. When they ensure that domestic rights institutions honor their mandate, they not only provide individuals an additional layer of protection from abuse, but also make the domestic institutions more secure. By the same token, democratic states are needed to safeguard the integrity of international human rights institutions. In this way, the mutual oversight mechanisms of domestic checks and balances are reproduced (though not in identical form) at the transnational level. The fundamental point is that human rights require the protection of multiple guardians, exercising concurrent responsibility and holding one another to account.

The United States as a Case Study

Although the argument of this book is general in application, the United States figures prominently in the discussion. Recall that the United States came into being with a declaration of universal human rights, a claim that all human beings¹ are endowed with certain unalienable rights and that governments exist to secure these rights. The Founders reaffirmed their commitment to human rights in language contained in the original Constitution and Bill of Rights, a commitment strengthened in subsequent amendments abolishing slavery, obligating states to respect due process and uphold the equal protection of the laws, and extending suffrage to racial minorities and women. The Constitution that frames the U.S. system of government was famously defended in The Federalist Papers as one best suited to the protection of human rights.

Given the historical association of the United States with the idea of human rights, one might have expected it to seek integration into the international human rights institutions that developed after World War II. Those institutions, largely derived from the 1948 Universal Declaration of Human Rights, include a growing number of UN-based and regional treaties, together with their respective courts, commissions, and monitoring committees. Contemporary international human rights law has sources in custom as well as treaty, and is enriched by international humanitarian law, whose sources include the Nuremberg and Tokyo trials following World War II, the 1949 Geneva Conventions and their Protocols (1977), the war crimes tribunals for the former Yugoslavia and Rwanda, and the Rome Statute of the International Criminal Court (1998).

Yet 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 depends on the supportive action of dedicated participants.

The United States should not incorporate international human rights law in a blind or mechanical way. On the contrary, it should reject treaty obligations and institutional arrangements if it has good reason to believe that they would undermine human rights. Such critical engagement can promote an international dialogue from which all parties can learn. Instead of taking this path, however, the United States has rejected the incorporation of international human rights norms whenever it perceives that such norms would require a change in its national law or policy. The message conveyed by the self-exemption policy is that the United States has nothing to learn from others, and that others may learn from it through imitation but not dialogue.¹⁴

Learning from Europe

Europe demonstrates what international human rights institutions can achieve. Since the end of World War II, it has built an international regime under which participating states hold one another accountable to respect human rights. In effect, European countries have become co-guardians of human rights within each national jurisdiction. The dramatic advancement of human rights throughout the region would have been impossible if Europe had rejected the multilateral approach and left each country to be final judge of its human rights policies. The European human rights system adopts central principles of Madisonian constitutionalism and proves their power to promote justice.

The success of the European regime should not be exaggerated. Grave human rights problems persist. Progress has been slow in some areas, nonexistent in others. I do not attempt a global comparison of respect for human rights in the United States and Europe. Instead, my claim is that respect for human rights in Europe is significantly stronger than it would have been in the absence of a strong transnational human rights regime. Even after 9/11, when officials in some European countries colluded in the U.S. torture program, there can be little doubt that regional human rights institutions prevented what would otherwise have been a worse unraveling of human rights. They exerted a significant, albeit inadequate, restraint on government conduct.

Serious problems cloud the future of human rights in Europe. These include the Eurozone crisis and its political fallout, the rise of extreme right-wing parties, the persistence of anti-immigrant and anti-Roma sentiment, authoritarian entrenchment in Russia and Azerbaijan, Russia’s aggression against Ukraine, the authoritarian turn in Hungary and Turkey, the refugee crisis, and terrorism. One threat is recurrent opposition to the regional human rights regime itself. Echoing American critics of international human rights law, some European citizens, politicians, and media accuse the regime, especially the European Court of Human Rights, of being antidemocratic and infringing state sovereignty. I seek to rebut this line of criticism by establishing the democratic legitimacy of international human rights institutions and by reminding readers of the invaluable contributions made by Europe’s regional institutions to the protection of human rights.¹⁵

Lessons from the War on Terror

The War on Terror reveals the dangers of the U.S. self-exemption policy. When tested by the shock of 9/11, U.S. human rights institutions failed dramatically. Practices that should have been unthinkable, enhanced interrogation techniques constituting torture in all but name, were authorized by the president and members of his cabinet. The government’s senior lawyers vowed that the practices broke no laws, a finding that gave officials the assurance they needed to continue using torture and that hindered the ability of future administrations to put those officials on trial. Government lawyers similarly enabled the policy of using extraordinary rendition to have individuals tortured by foreign officials.¹⁶

U.S. officials designed and implemented interrogation methods calculated to cause pain, terror, humiliation, and despair.¹⁷ The avowed goal was learned helplessness, to be achieved by patient and methodical destruction of the victim’s sense of agency and self-worth. Victims sometimes thought they would die under torture, and several did.¹⁸ Their harrowing testimonies have been confirmed by the internal government communications of those who tortured them.¹⁹

Some of the victims had no connection to terrorist activity. False statements elicited by torture were used to justify the 2003 Iraq War, a moral and strategic catastrophe that has set off a careening escalation of violence with no end in sight.²⁰ As symbols of U.S. torture, Abu Ghraib and Guantanamo became a rallying cry for terrorists worldwide.²¹

Back in the United States, the architects of the torture policy found themselves with a personal stake in defending its legitimacy. They have mounted a vigorous campaign aimed at weakening the torture taboo and propagating the false belief that torture benefited U.S. efforts to combat terrorism.²² The CIA destroyed video recordings of its interrogation sessions, then fiercely resisted the Senate Intelligence Committee’s investigation into its treatment of detainees, to the point that it spied on Committee staffers and sought to have them prosecuted (but publicly denied these actions).²³ U.S. law was rewritten to immunize several acts constituting torture from criminal prosecution.²⁴ At the urging of both the George W. Bush and Barack Obama administrations, courts have blocked lawsuits by victims of U.S. torture, and the reasoning on which judges have based their findings of official immunity suggests that there are weak institutional restraints against the future resumption of systematic torture in the name of national security.

I consider the U.S. torture policy in depth in Chapters 4 and 5, but take this opportunity to recall a few of its many victims. In the fall of 2002, Maher Arar of Canada was seized by U.S. agents at JFK Airport in New York, then delivered to Syria, where he was tortured and kept in a grave-like cell for ten months.²⁵ After his release, a Canadian commission of inquiry produced a three-volume report clearing him of all ties to terrorism. The Canadian government formally apologized for providing U.S. officials misleading information about Arar and awarded him $9 million in compensation, but when he attempted to sue U.S. officials responsible for his rendition to torture in Syria, U.S. judges blocked his case from going to trial.²⁶ He remains on a terrorist watch list that bars his entry into the United States.

In December 2001, Murat Kurnaz of Germany was seized by Pakistani police and sold for a $3,000 bounty to the United States. At Kandahar Airbase in Afghanistan, U.S. interrogators beat him, suffocated him by forcing his head under water, administered electric shocks, and suspended him by his hands for days. He was sent to Guantanamo, where a tribunal justified his detention on the grounds that his friend had carried out a suicide bombing in Istanbul. In fact, his friend never took part in the bombing, but was alive and well in Germany. Although internal Pentagon documents dating from 2002 stated there was no evidence linking Kurnaz to Al Qaeda or terrorist activity, he was kept in detention and tortured over the next four years.²⁷

Lakhdar Boumediene, an Algerian resident of Bosnia, was arrested by Bosnian police at the request of U.S. authorities claiming that he was part of a plot to blow up the U.S. and British embassies. Bosnia’s highest courts ordered his release when they could find no evidence to support the allegations, but U.S. authorities spirited him to Guantanamo, where he endured harsh interrogation including torture for over seven years, and was force-fed during a two-year hunger strike. After the Supreme Court ruled in 2008 that Boumediene had a constitutional right to habeas corpus, the government was obliged to justify his designation as an enemy combatant in court. No longer alleging a plot to attack the embassies in Bosnia, the government submitted as its sole evidence a document reporting a statement by an unnamed informant that Boumediene planned to travel to Afghanistan to fight the United States. A U.S. judge, finding that the reliability of the informant could not be established, ordered Boumediene’s release.²⁸

In June 2002, U.S. citizen Jose Padilla was placed in indefinite detention in a South Carolina military prison without charge or trial. Federal authorities claimed he was part of an Al Qaeda plot to explode a radioactive dirty bomb inside the United States. Kept in extreme solitary confinement for over three years, Padilla reports that he was subjected to stress positions, sleep deprivation, temperature extremes, and noxious fumes, as well as hooded, denied urgent medical care, given mind-altering drugs, and threatened with torture, mutilation, and execution.²⁹ For over two years he was denied access to a lawyer. As the Supreme Court was considering whether to review the legality of his indefinite detention, the government transferred him to the criminal justice system. No longer charged with the dirty bomb plot, he was instead accused and convicted of conspiring to murder, kidnap, and maim people outside the United States.³⁰ His repeated attempts to sue those responsible for his torture have been thrown out of court.³¹

In March 2002 Abu Zubaydah, a Saudi Arabian citizen who helped administer a jihadist military training camp in Afghanistan, was captured by U.S. agents in Pakistan. Described by President Bush as al Qaeda’s chief of operations and one of the top three leaders in al Qaeda,³² Abu Zubaydah became a test subject for the CIA enhanced interrogation program. He was kept naked, subjected to extreme cold, deprived of solid food, denied pain medicine for wounds received in his capture, kicked and beaten, shackled in uncomfortable positions, slammed into walls, blasted with loud music, confined in a small box (causing his wounds to reopen), prevented from sleeping (once for over two weeks), and waterboarded eighty-three times in one month.³³ In September 2006, he was transferred to Guantanamo. In habeas corpus proceedings in 2009, the government dropped its earlier claims that he was a member of Al Qaeda and that he had helped plan the attacks of September 11.³⁴ His lawyer has reported that Abu Zubaydah’s mental grasp is slipping away, partly because of a head injury suffered in the 1990s and partly because of his treatment by the CIA.³⁵ Abu Zubaydah remains in Guantanamo, having never been charged with a crime by the U.S. government.

How could the United States, following 9/11, institute a policy of torture, and even maintain it after the secret was revealed? This question will require years of empirical and intellectual detective work. We need to understand not only the individual decisions and bureaucratic and legal maneuvers that constructed the policy but also the background conditions that made it possible. Though several outstanding journalistic, scholarly, and investigative works have been written,³⁶ the question needs vastly more attention. One obstacle to full engagement is the still widespread assumption, even among those who acknowledge the fact of officially sponsored torture, that the United States is a rights-respecting polity. This is not who we are is a common response to revelations of U.S. torture. (In President Bush’s words: The values of this country are such that torture is not a part of our soul and our being.)³⁷ Because the self-image of the United States as a non-torturing nation is preserved, Americans seem to feel less need to understand the program’s underlying causes.³⁸

As I show in Chapters 4 and 5, one of the major contributing factors—though of course not the only one—was the U.S. marginalization of international human rights law. As it turns out, legal choices previously made by executive, legislative, and judicial officials in furtherance of the self-exemption policy made a direct and decisive contribution to the U.S. authorization of torture; they facilitated the task of Bush administration officials charged with authorizing enhanced interrogation techniques. The pre-9/11 legal choices that smoothed the subsequent path to torture included the substantive exceptions attached to U.S. ratification of the Torture Convention and International Covenant on Civil and Political Rights; the decision to block U.S. judges from enforcing U.S. treaty obligations; the general unwillingness to implement human rights treaty obligations through congressional legislation; the position taken by the executive branch and federal appeals courts that a policy decision by the president or a cabinet-level official overrides customary international law; and the refusal to ratify or domestically incorporate the Rome Statute of the International Criminal Court.

U.S. marginalization of international human rights law must therefore figure into an explanation of the U.S. torture policy, a policy that in the words of the U.S. Senate Armed Services Committee damaged our ability to collect accurate intelligence that could save lives, strengthened the hand of our enemies, and compromised our moral authority.³⁹ Because the self-exemption policy remains in effect, the return of enhanced interrogation techniques cannot be excluded.⁴⁰ The price for American exceptionalism is paid in terms of other human rights violations, not just torture. (I shall give some attention to rights violations committed in the U.S. criminal justice system.) Yet the torture program reveals the cost of American exceptionalism with special clarity.

The Effectiveness of International Human Rights Law

The embrace of international human rights law has inhibited human rights violations in Europe, while its marginalization has facilitated human rights violations in the United States. These findings, elaborated in Chapters 3 through 5, are powerful evidence for the practical value of international human rights law. Obviously, international human rights law does not stop all abuses (and some governments seem quite indifferent to their own international human rights promises), but when used well it can exert a significant restraint. Constitutional democracies should employ it as one device among others to prevent the abuse of power.

In recent years, studies have appeared claiming that ratification of international human rights treaties is not correlated with improved respect for human rights.⁴¹ On the basis of these studies, it is sometimes asserted that international human rights law is ineffective—that it makes little or no meaningful contribution to the protection of human rights.⁴² However, this inference is unwarranted for several reasons.

First, several studies report a statistical correlation between human rights treaty ratification and improved respect for human rights under certain conditions. For example, Beth Simmons reports such a correlation among the large group of countries that are neither stable democracies nor stable autocracies.⁴³ Other studies report such a correlation for democratic states,⁴⁴ a result consistent with my argument that international human rights law strengthens respect for human rights in constitutional democracies.

Second, it now appears likely that the negative statistical findings are the result of misleading social science datasets. Because the principal datasets report an overall stationary or slightly declining respect for human rights, and because of the large increase in human rights treaty ratifications, it is fairly easy to demonstrate a noncorrelation between treaty ratification and respect for human rights. But the datasets are derived from yearly reports by human rights monitors (primarily Amnesty International and the U.S. State Department) that over time have been able to obtain more information about human rights violations and have defined such violations more broadly. This results in a stricter standard of accountability, such that actual improvements are underreported in the datasets.⁴⁵ The pattern is accentuated in states genuinely committed to the respect of human rights, since such commitment entails openness to human rights scrutiny.⁴⁶ The existence of a changing standard of accountability is confirmed by the political science methodologist Christopher Fariss, who shows statistically that it offers the best way to make sense of a wide array of human rights information sources.⁴⁷ He goes on to show that once the social science datasets are corrected for the changing standard of accountability, they reveal a positive correlation between ratification of major human rights treaties and respect for physical integrity rights.⁴⁸

Third, the skeptical statistical studies use an overly simple test to measure the adoption of international human rights law. They check whether a country has ratified one or another human rights treaty, but as I emphasize in the following chapters, adoption of international human rights law involves much more than treaty ratification.⁴⁹ A country like the United States may ratify human rights treaties and then undercut ratification through reservations, understandings, declarations, and other actions. Beyond ratification, the adoption of international human rights law includes measures such as legislative implementation of human rights treaty provisions, authorization for the enforcement of human rights treaty provisions by domestic courts, screening of proposed legislation for compliance with international human rights commitments, the establishment of national human rights institutions,⁵⁰ and respect for customary international human rights law. Such 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 how specific features of American exceptionalism (treaty loopholes, nonincorporation and nonjusticiability of treaties, demotion of customary international law, and nonratification of the International Criminal Court treaty) created a legal environment more conducive to the authorization of torture.

Chapter 6 responds to complaints that international human rights law, by limiting policies that states might otherwise adopt, is antidemocratic. I add new arguments to those made in Chapter 2 for the democratic legitimacy of international human right law. Because democracy is not group license, because it can never include permission to violate human rights, international human rights law bars only those policies that governments should not consider anyway. Some will object that this reasoning overlooks cross-national disagreement about the meaning of human rights. I do not deny such disagreement, but argue that international human rights law offers a constructive response to disagreement about human rights.

In the conclusion I consider how international human rights law stands in relation to the norm of national sovereignty. I show that international human rights law is compatible with a moderate conception of sovereignty. Only an expansive conception of sovereignty is rejected by international human rights law, but since such a conception represents a false political ideal, this is no cause for regret.

Human Rights and Shared Governance

I argue not only for a strong international human rights regime but also for the