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.