In this essay I will argue that some philosophers' optimism about the shape and strength of international human rights legal practice is misguided. Allen Buchanan, for example, claims in his The Heart of Human Rights that there is an area of robust human rights law that amounts to “international law that claims the authority to regulate matters once considered to be the exclusive concern of the state, including the state's treatment of its own citizens.”Footnote 1 Two points can be made to clarify the idea of robustness. First, it suggests that human rights norms make a practical difference in the world. Second, it suggests that there are institutional actors that have the power to make such a difference. On both counts, it is possible to advance skeptical arguments that show that those norms suffer from a lack of normative bite, and that even if those norms were providing clear normative guidance, there are no institutions that are capable of implementing them. Human rights law is not robust and its practice lacks shape and strength. Further, the gap between ideals and practice is only likely to increase rather than the other way around.
There is a specific problem that is at stake here: international human rights law claims supremacy over states' norms. In case of a conflict between international human rights law and domestic law, the former is in principle meant to trump the latter. In practice, this is highly problematic as it requires international human rights norms to be capable of invalidating domestic norms that have been legally and democratically introduced. In other words, international human rights law may challenge the very validity of domestic law. Also it may well create a conflict between international norms and constitutional democracies. This is what Buchanan calls “the problematic supremacy of international human rights.” Buchanan points out that there is no incompatibility between robust international law—in particular international human rights law—and constitutional democracy. Instead he claims that the supremacy of human rights law requires trade-offs that need to be evaluated.
Buchanan argues that the debate should be reframed: it is not about compatibility or lack thereof; rather, it is about what kinds of trade-offs are acceptable. To make this determination one has to know how to measure constitutional change so as to be able to tell when change is acceptable and when it is too much. Another fundamental aspect of the debate is to evaluate when the self-determination of nation-states has been excessively impinged upon by the supremacy of international human rights law. In short, the debate centers on developing a theory that explains permissible trade-offs between robust human rights law and constitutional democracy.
In what follows I would like to reframe the idea of the “problematic supremacy” of international human rights law. The problem is not that international human rights law is robust, and as a consequence calls for trade-offs; the problem is that it is weak, and as a consequence does not matter enough. Thus, the supremacy is problematic because it can hardly be translated into a meaningful practice that makes a difference in the world.
I will do my best to highlight three issues of concern. First of all, I will suggest that the supremacy of international human rights law at the legislative level is not problematic: most political actors at the international stage are happy to sign a multitude of treaties. Moreover, oftentimes when human rights are not mentioned in a treaty, signatories will insist that they be incorporated. Second, I will show that judicial institutions struggle to treat international human rights law as being potentially applicable at the domestic level. There is disagreement as to whether domestic courts should borrow from foreign human rights precedents, but that does not even qualify as a problem for international human rights law. The real disagreement lies between exporting and importing human rights: the former is desirable, the latter is less so. Third, I will examine the notion of problematic supremacy in the present world of states. International human rights law can only thrive in collaboration with robust democratic institutions at the national level. But we are moving away from a world of constitutional democracies and toward a world of anarchy where states are either failed or are failing, or are simply not democratic. In such a world, the supremacy of international human rights is problematic because there are very few national institutions willing to uphold it. In such cases “supremacy” remains an empty word.
Beyond Compatibility
Most discussions about international human rights law are founded on mistaken assumptions about the incompatibility between international human rights and domestic constitutional democracies. I agree with Buchanan that we have to go beyond the incompatibility debate. If incompatibility were a serious concern to domestic lawmakers, then it would be difficult to explain the multiplication of human rights treaties. These treaties are the minimum common denominator of international governance. To this extent, their supremacy is neither contested nor problematic.
The European experience, if we leave the United Kingdom aside, shows that the compatibility between constitutional democracy and supranational human rights is not only very high but also that national institutions sometimes call for the introduction of international human rights when and if they are not yet entrenched. For example, the European Union was not born as a human rights organization. The EU treaties avoided any mention of human rights. However, very early on—in the late 1960s—the German and the Italian constitutional courts started putting pressure on the European Court of Justice to develop its own practice of European human rights. National courts insisted that the primacy of EU law over national law was conditional upon the judicial development of a system of European human rights law. This went well beyond compatibility; the debate was about conditionality: human rights were considered to be a precondition of the primacy of European law. Of course, this does not mean that there are no tensions between constitutional democracies and international human rights; it means that there are tensions within an accepted supranational architecture that reconciles human rights law and constitutional democracy. It also shows that at the national level European constitutional courts are the guardians of the impact of EU treaties on internal constitutional structures and self-determination.
Things can get complicated, however, when domestic constitutional courts are called on to implement international human rights law that is inconsistent with domestic constitutional law. Constitutional judges reserve their right to evaluate the comparability of the international system of human rights with their own. The German Constitutional Court (Bundesverfassungsgericht) acknowledges the primacy of European law as long as European human rights are comparable to German constitutional rights. The German Constitutional Court called it the Solange doctrine, where Solange means “as long as.” The idea is that as long as European human rights law offers comparable protection to German constitutional law, the court will not question the authority of the European Court of Justice.
This doctrine deserves a few comments. First, national courts are the ultimate umpires of the compatibility of European human rights with domestic constitutional principles. Second, and flowing from the first idea, European human rights can only offer a minimum level of protection that cannot be characterized as robust because it has to yield whenever national courts point to an infringement of their constitutional principles. Thus, Buchanan is right to claim that the debate should not be framed in the language of incompatibility; it should be about trade-offs. However, the practice of European human rights law shows that the very robustness of human rights is traded off in the name of compatibility.
Exporting and Importing International Human Rights Law
When domestic actors in a particular state discuss the behavior of foreign nation-states, they often call for them to respect international human rights law. However, when those same domestic actors discuss international norms as they apply to their own state's domestic legal system, the status of human rights law is often hotly debated. The robustness of human rights law thus seems dependent on the distinction between domestic and foreign. If international human rights law is to be exported, then the more robust the better; if it is for internal consumption, then it must be carefully scrutinized before it can fetter domestic institutions.
Nation-states such as the United States desire to export international human rights norms through treaties. But this process becomes much more controversial when the moment comes to import norms that have been drafted for other states. The supremacy of international human rights law is problematic because it creates an international double standard: some states are seen as deserving the full implementation of human rights law, while others regard themselves as exempted. This lesson became very clear when the Bush administration attempted to free its hands from the Geneva Conventions following 9/11. In the quest to tighten its security norms, the United States dented the protection of fundamental rights and freedoms, including the inviolable freedom from being tortured, which is clearly protected by the Geneva Conventions.
The United Kingdom has also exercised a double standard on international human rights law. The European Convention on Human Rights was pushed forward by the United Kingdom in 1950. It was engineered to create a further layer of protection of human rights in Europe so as to prevent any further descent into extremism. But clearly, in the minds of U.K. officials, it was one thing to export human rights and another thing to import them. The United Kingdom has always believed that its constitutional system has built-in guarantees against the abuse of state power, and that it did not need to be complemented by a bill of rights or by an external check. However, once the United Kingdom incorporated international human rights standards through the Human Rights Act (1998), it had to face a small number of challenges to its own power to pass policies incompatible with human rights. The position of the U.K. government was to ask for a withdrawal from the Council of Europe and the redrafting of a domestic bill of rights independent from international standards. The paradox is that the United Kingdom promoted the creation of the Council of Europe, but never tolerated subjecting itself to it and to the jurisdiction of the European Court of Human Rights.
Another important issue has to do with judicial borrowing of foreign human rights standards. The supremacy of international human rights law is likely to polarize domestic constitutional systems. The American debate is split between two camps. On one hand are those who believe that the United States and Europe belong to a wider civilization that shares the same values, underpinning the same human rights. As a consequence of that, human rights progress in Europe can be used as evidence of the changing standards of protection and as a reason to promote change domestically. On the other hand, there are those who believe that the United States is legally hermetic. Domestic constitutional norms are to be interpreted in the light of domestic constitutional history and cannot follow the patterns of foreign legal systems.
The commonly expressed concern with judicial borrowing of human rights norms is the fear that judges will cherry-pick foreign cases to support their ideological preferences. The problem is that foreign human rights law does not have any great degree of coherence, and appears to be a reservoir of all possible positions when one searches hard enough. This quintessentially American debate, however, is misleading. It conflates foreign human rights law with international human rights law. The former is comprised of practices developed in other legal systems; the latter of norms created for the whole international community. Philosophers do not always understand that domestic courts have an obligation to translate international human rights into domestic norms, while they have no legal duty whatsoever to pay attention to what other states' domestic courts do elsewhere in the world. This confusion is evidence that in the eyes of domestic institutions, international human rights are not robust.
The bottom line is that the so-called supremacy of international human rights law is subject to the strict guardianship of domestic courts. From a legal perspective, it is very difficult to argue that human rights standards are robust. Human rights have a problematic supremacy, but not because they are robust and really make a difference. Their supremacy is problematic because it is only true on paper, not in practice. International human rights law is weak and does not have any real effect unless domestic courts decide to give it weight. Supremacy from a legal viewpoint ought to entail the ability to set aside valid domestic legal norms, but domestic courts are reluctant to take that supremacy seriously. This is because domestic courts do not have an interest in highlighting conflicts between international human rights law and domestic constitutional law. There are two reasons for avoiding a conflict. First, domestic courts have an interest in maintaining a monopoly on the interpretation of rules: they can always interpret international human rights law in a way that makes it compatible with domestic law. Second, a conflict of rules would alert representative institutions and would likely create a political backlash against international norms, as has happened in more than one case in the United Kingdom. Think, for example, of the bitter disagreement between the United Kingdom and the European Court of Human Rights on the issue of voting rights in prison. The United Kingdom applies a blanket ban on voting rights in prison, while European human rights law requires a more nuanced approach. This issue is often raised in the United Kingdom to push for an exit from the system of European human rights.
We have seen that importing human rights is a problem, but so too is exporting them. Even if the main task of exporting international human rights law were minimal, that is, to improve the practice of civil and political rights of foreign states, it would still face one large problem: lack of institutional capacity. To make international human rights law enforceable—short of a military intervention—one needs domestic institutions willing to translate and implement these standards. The problem is that in less-than-fully-democratic states, the likelihood that legislative or judiciary institutions are impartial and independent is very low. Even if there were impartial and independent institutions, it is difficult to see how they could enforce human rights law that undermines domestic law. The supremacy of international human rights law is thus problematic because the necessary robust institutions capable of upholding the rule of law simply do not exist.
This overview leaves us with a skeptical picture of robust human rights law. First, importing international human rights law into well-functioning constitutional democracies is problematic because of the resistance of robust domestic institutions vying to protect the integrity of their own domestic standards. Second, exporting international human rights is problematic because of the lack of robust domestic institutions capable of enforcing the rule of law. Third, any talk of judicial borrowing is regarded with great suspicion because it refers to an unregulated practice of looking at foreign precedents and takes the focus away from the much more important task of making actual international human rights law matter domestically.
A World of Failing States
Optimism about human rights is impossible without the political progress of states around the world. Buchanan believes that “the past three decades have witnessed a dramatic increase in the number of democratic states.”Footnote 2 I cannot agree. A quick glimpse presents us with a worrying landscape of failed states that cannot guarantee the security of their own citizens. There are also many authoritarian states that refuse to protect human rights because they are inconsistent with their own exercise of power. Both failed and authoritarian states are highly unlikely to comply with international human rights law, much less incorporate international human rights into domestic law. They may still participate in the drafting of treaties, including those that incorporate human rights protection, but they do so because they know that the implementation of those human rights is entirely in their hands and there is no international mechanism that can force them to comply.
The gap between human rights on paper and human rights in practice is still wide enough to explain an attitude of indifference vis-à-vis human rights treaties. Those treaties are burgeoning because they do not make any great difference—yet another way of saying that their supremacy is not really at stake because those human rights are not robust. I do not think that in the Western world there is any problem with the idea that on paper international human rights law is something everyone desires. In particular, all Western states desire the existence of human rights treaties. But when it comes to the practice, the United States and the United Kingdom are among the first to demonstrate incompatibility between international human rights and constitutional structures.
One of the main arguments put forward by Euro-skeptics and international-skeptics is that of the “democratic deficit” at the international level. International treaty-making institutions are regarded as lacking a full mandate to represent the people. This is one of the ironies of the international legal system: it is there to promote the spread of liberal democracies, but at the same time it is criticized for not being sufficiently democratic. Buchanan does not want to resist the force of the argument from democratic deficit. Instead, he advocates for the introduction of a robust democratic authorization whenever the change brought about by an international treaty is fundamental to the constitutional architecture of the domestic legal and political system. By robust democratic authorization, Buchanan means that “some political changes are so momentous that the ordinary processes for making political decisions are inadequate, and in such cases the decision ought to be made by the ultimate source of political authority, the people.”Footnote 3
Robust democratic authorization is not likely to work, as it is hardly evident that people will be inclined to vote in favor of constitutional changes brought about by international instruments. People are skeptical of international institutions because they are far away and removed, and because national governments often blame them for problems at home. This is most likely when international law is robust and incompatibility with domestic constitutional structures is perceived as high.
The momentous British referendum to exit the European Union is just one example of what can happen when the people are asked to provide legitimization to international institutions that escape direct democratic control. We could just as well speculate that the British people would vote to exit the Council of Europe and its system of European human rights, were it given the opportunity to do so. The reason is that European human rights law as expanded by the European Court of Human Rights is regarded by critics as impinging on national sovereignty.
It is worth noting that the European Court of Human Rights is an exception to the rule that international human rights law does not make any major difference to domestic law. Even so, it is a remarkably cautious court that is constantly trying to legitimate its own role by applying a very broad, yet arbitrary, margin of appreciation; that is to say, it gives ample discretion to nation-states. It is nevertheless the object of constant criticism both by dictatorial states such as Russia and democratic states such as Britain.
Conclusion
Human rights treaties and practices are multiplying, but this is not yet a sign that we can talk optimistically of a robust international human rights law that makes a practical difference in our world of states. While I agree with Buchanan that the supremacy of human rights does not really require major trade-offs between constitutional democracies and international law, the very multiplication of treaties is a sign of weakness and fragility: one clear universal declaration of human rights is not enough to make human rights salient. In fact, no declaration is likely to succeed if it is not backed up by an institutional architecture that is capable of sanctioning the breaches of human rights law.
The so-called supremacy of human rights is problematic not because it engenders conflicts between international and domestic norms, but because it is only nominal. Additionally, as I have pointed out, the debate surrounding domestic courts borrowing precedents on human rights from foreign courts primarily serves to illustrate the fact that powerful constitutional democracies are much more comfortable exporting human rights than importing them. Finally, I question whether we live in a world of states where robust international law truly makes a difference. The evidence shows that a great many countries simply do not perceive the pressure of international human rights law.
Political philosophers are allowed to be optimistic and to speculate about the future of human rights, but they should not conflate their speculation and wishful thinking with political reality. This does not mean that they need to gather more empirical evidence, but that their analysis of the work of existing institutions should reflect an informed understanding of their practical impact. And at the end of the day, if we want to take international human rights law seriously, we have to make sure that it is capable of making the same (or at least comparable) difference as domestic constitutional law.
