Democracy and International Human Rights Law
John O. McGinnis
Northwestern University - Pritzker School of Law
Antonin Scalia Law School, George Mason University
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
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
Date posted: April 7, 2008 ; Last revised: July 2, 2009
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