Abstract

http://ssrn.com/abstract=1116406
 
 

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Democracy and International Human Rights Law


John O. McGinnis


Northwestern University - School of Law

Ilya Somin


George Mason University School of Law

July 1, 2009

Notre Dame Law Review, Vol. 84, No. 4, pp 1739-1798, May 2009
Northwestern Public Law Research Paper No. 08-08
George Mason Law & Economics Research Paper No. 08-19

Abstract:     
The undemocratic origin of most international human rights law greatly reduces the desirability of allowing it to change the domestic law of democratic states. Most international law is made through highly undemocratic procedures. 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.

Our article does not rest on theoretical arguments alone. We describe several concrete effects of the nondemocratic generation of international human rights law. For example, we show how the influence of unrepresentative legal elites and authoritarian states has led to the establishment of potentially harmful international law norms with respect to hate speech, the humanitarian law of war, and comparable worth.

Nevertheless, our conclusions about international human rights law are not wholly negative. Our embrace of democratic processes as an 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 generating controversial substantive rights to protecting norms that will facilitate the leverage of citizens in controlling their own governments. As an example, we advocate more ample protection and enforcement for migration rights because these allow citizens around the world to vote with their feet and thus help them control the actions of the governments under which they live.

Number of Pages in PDF File: 62

Keywords: human rights, international law, domestic law, democratic process, immigration, migration, liberal democracies, authoritarian states, humanitarian law of war, comparable worth, substantive rights, hate speech

JEL Classification: K33

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Date posted: April 7, 2008 ; Last revised: July 2, 2009

Suggested Citation

McGinnis, John O. and Somin, Ilya, Democracy and International Human Rights Law (July 1, 2009). Notre Dame Law Review, Vol. 84, No. 4, pp 1739-1798, May 2009; Northwestern Public Law Research Paper No. 08-08; George Mason Law & Economics Research Paper No. 08-19. Available at SSRN: http://ssrn.com/abstract=1116406

Contact Information

John McGinnis (Contact Author)
Northwestern University - School of Law ( email )
375 E. Chicago Ave
Unit 1505
Chicago, IL 60611
United States
312-503-3235 (Phone)
Ilya Somin
George Mason University School of Law ( email )
3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8069 (Phone)
703-993-8124 (Fax)
HOME PAGE: http://mason.gmu.edu/~isomin/
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