Thursday, October 21, 2010

Lou Henkin's Legacy

By Mike Dorf

My post yesterday celebrated Lou Henkin's warmth and character.  Today I want to add a brief comment on a point of contention in the field that Lou did so much to build: international human rights law.  I'll begin by confessing that I am not an expert in international law, but I know enough about the lay of the land for some informed speculation.

Lou sometimes said that he treasured what he called "human rights hypocrisy"--a term he used for countries (including the U.S. on more than one occasion but more typically dictatorships) that pay lip service to human rights even as they violate them.  In Lou's view, formal commitment to human rights in the form of accession to multilateral human rights treaties, even by chronic rights abusers, has constraining force.

That view has been questioned by various scholars who argue that countries that sign human rights treaties are no more likely to respect human rights than those that don't--and that such accessions may even have a small correlation with worse behavior with respect to human rights.  In this view, human rights treaties of the sort promoted and celebrated by the likes of Lou Henkin are, to borrow a phrase from James Madison in the domestic context, mere "parchment barriers."  There is an active debate in the international human rights literature about this critique, but here I want to assume for the sake of argument that the critics are right: Knowing that Dictator X has signed onto the Convention Against Torture or the Genocide Convention does not tell us that Dictator X is less likely than Dictator Y (whose country has not signed on) to commit torture or genocide.

To my mind, the critique nonetheless focuses on too narrow a slice of time.  A man like Lou, who was born during the Russian Revolution and lived to 2010, necessarily takes the long view.  In that long view, the abusive practices of dictatorial and other regimes over the course of decades are consistent with the emergence and solidification of norms over the course of generations.  Those norms then play an important role in the realpolitick of later times.  As ratifications pile up, even if insincere originally, they develop a normative force.  True, the human rights treaties may not be implemented domestically by the dictators, but their widespread acceptance by the world community creates sources of external pressure.  For one thing, "leaders of countries care about what leaders of other countries think of them."  [Risse, Ropp & Sikkink, The Power of Human Rights 8 (1999)].  For another thing, violation of a human right that is so widely accepted as to become a matter of customary international law may generate sufficient outrage that military or other intervention results (although, of course, other factors also strongly influence whether this occurs).

The broader point is that initially insincere acceptance of a norm may, over a long time, create the conditions for the progressive realization of that norm.  To paraphrase Chou en Lai on the French Revolution, it's too soon to tell whether the age of human rights on paper that Lou Henkin did so much to create will end up resulting in nothing more than paper rights.  As between that cynical view and Lou's unusually clear-eyed optimism, I prefer the latter.  His was an attitude much like that of Dr. MLK Jr., who famously said that "the arc of the moral universe is long, but it bends towards justice."  Believing that such sentiments are more than pretty-sounding words does not make it so.  But the demoralization that comes from believing that these are only pretty words is likely to be a self-fulfilling prophecy.


Patrick S. O'Donnell said...

This comment is in two parts.


I agree with the overall point and general tenor of the discussion here. But I think it’s important to maintain a distinction between consensually-based customary norms and those norms we refer to as jus cogens, evidence for which may be found in custom yet their justification is not based on consent, nor does the passage of time, however long, magically render such norms binding upon (previously or currently) non-consenting parties. In other words, “we need to distinguish between evidence for the existence of a universal norm and justification of that norm.” The reasons why are drawn from Larry May’s Crimes Against Humanity: A Normative Account (2005):

“The peremptory norms, which are called jus cogens norms, are themselves often said to be based on the acceptance and recognition of the international community. ‘Acceptance’ introduces an element of consent into norms that conceptually are to be non-consensual. [….] Whether jus cogens norms are conceptualized as a non-consensual part of the general principles of international law, it remains clear that they cannot be consensual [for states reserve the power to claim non-consent], or they will lose any claim to be universal and inviolable (not subject to derogation).” Or at least they cannot be grounded in consensually based customs alone (as in customary international law). And the addition of opinio juris (which itself can fail to reflect a consensus among jurists) does not suffice to transform a customary norm into the status of a jus cogens norm. In short, we ask the Humean question: how can treaty agreements binding on some states come, over time, to bind or obligate non-signatory States? The sheer passage of time, as Hume explained to us, cannot account for how non-consenting parties come to be bound by norms first grounded in consent. May summarizes the fundamental point: “At most, customary practices of some States will tell us what those States think they are legally bound to do, not what other States that have rejected these customs are legally bound to do.” However, and moreover,

“Consensually based custom could provide evidence, although certainly not conclusive evidence, of the existence of a universal (jus cogens) norm, but consensually based custom cannot justify a jus cogens norm. The main reason for this is quite simple. Even if all States once consented to be bound by a given custom, and behaved as if this custom were universally binding, that would not make the norm universally binding since the States could change their views toward this custom.”

A State might, for example, find sufficient reason to declare the norm against torture to be non-binding (May cites a well-known textbook on international law that speaks of how what was not customary becoming can become customary law and what was once custom can change into non-custom; and there’s the related problem of true ‘persistent objectors’ to customary norms that may otherwise have close to unanimous consent):

Patrick S. O'Donnell said...

Part 2

“Yet surely this cannot be. If the norm is to be universally binding now, it cannot also be true that now States can make that norm not universally binding. Either the norm is universally binding or it is not. States cannot make a norm universally binding by their votes or their practices, even if based on a sense of obligation.”

Some international norms, jus cogens norms in particular (as well as obligations erga omnes, which presume them), have a non-consensual basis, they are non-derogable by definition or nature and thus beyond the contractual norms (i.e., beyond State-based) of treaty-based consent. There are various ways to morally and legally ground or justify such norms: natural law theory (or something akin to same, like Buchanan’s ‘Moral Equality of Persons’ and ‘Natural Duty of Justice’), a fiduciary theory of sovereign (State) authority (Criddle and Fox-Decent), or Hobbesian-like moral minimalism (May). In international criminal law, these serve, in turn, to ground the idea of “universal jurisdiction” for condemnation and prosecution of such practices as torture, apartheid, slavery, and genocide. May asks:

“So what might count as conclusive evidence of a universal legally binding norm? It might be conclusive if there is a morally normative argument based, for instance, on what reasonable States would accept. The very best evidence we have of a universal norm of international law is when there is both opinio juris and normative justification for such a norm. Normative justification may be enough, at least in the abstract, but in a highly diverse world, where the very premises of such a conceptual argument are highly contested, it is prudent to look to opinio juris in addition to normative justification in order to determine what the jus cogens norms of international law are. It is prudent because, even if fully justified, the norm may not be respected by States unless it already has fairly widespread support seen in the customary practices of these States. But such appeals to consensual custom, standing alone, cannot ground these norms. A norm cannot be said to be universally binding if, at the moment of a State’s falling under the obligation, a State can evade this bindingness merely by declaring itself not bound. [….] Jus cogens norms can be part of customary international law and still be non-consensual as long as the non-consensual nature of these norms is not thought to derive from their being originally consensual, as we learned from David Hume. That universal jus cogens norms are customary is merely due to the way that they are sometimes recognized rather than anything having to do with their nature or justification.”

May himself provides an argument that a norm of international law is jus cogens if it satisfies two principles—the security principle and the international harm principle [the former inspired by Hobbes, the latter by Feinberg and Liberalism generally]. I leave it to those interested to read May’s book for the details of the argument.

Michael C. Dorf said...


Thanks for these comments. To be clear, I was referring to CIL in the way that you describe--as binding even on dissenting sovereigns. Whether widespread (but not unanimous acceptance) is merely evidence for a rule of CIL being universal or is itself in some way part of what makes it universal is an "internal" question of international law on which I did not mean to be taking a position. I was looking at the matter externally, from the standpoint of a human rights advocate who believes that some norm (say the norm against torture) SHOULD be a universal principle of CIL. For the activist, securing acceptance is, as a practical matter, one way to move CIL in that direction.

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