The Limits of International Law in Protecting Dignity
McGinnis, John O., Harvard Journal of Law & Public Policy
My perspective on international law and human dignity can be simply stated: International law, as currently constituted, is likely to fail to advance human dignity. The vehicles most relied upon to advance this great goal--human rights treaties--are flawed as a matter of substance and process. Nor can much hope be placed in the principles of customary law, because its process of generation provides no guarantee that its principles as a whole will be beneficial, particularly to those who most struggle for human dignity--the impoverished of the developing world. In contrast, world trade agreements provide the most likely international vehicle for advancing human dignity. By increasing wealth and bringing the world's poor into the web of exchange, multinational trade agreements are likely to move societies onto paths leading to more democratic governance and improved civil rights. (1)
The central premise of my talk is that, as a general matter, political systems that create the conditions necessary for human dignity are best rooted in popular consent and respect for basic economic freedoms. My reasons for this conclusion are historical, empirical, and theoretical. Historically, growing popular consent and economic freedom permitted a rising middle class in England, and then America, to create a society that protected civil rights to a degree unprecedented in human history. (2) Empirically, the nations that respect popular consent and democracy tend to protect the other civil rights that permit human beings to flourish. (3)
Theoretically as well, popular consent is an important step to make rulers govern according to the preferences of the people. Without popular consent and democracy, government structures operate for the benefit of the rulers and the factions that support them--a problem that bedevils all political systems and detracts systematically from human dignity. But even democratic institutions are bedeviled by high agency costs. Insofar as the actions of elected officials are not transparent, and the officials themselves are not accountable to the electorate, rulers of democratic governments display the same tendencies as dictatorships: to protect their own interests and the interests of the factions that support them at the expense of the public. Government should be structured to reduce those agency costs. When either tradition of constitutional principle allows individuals very substantial control over their own economic destiny, the scope and thereby the agency costs of government are substantially curtailed.
Unfortunately, as currently constituted, most mechanisms of international law rail to provide means for popular consent to the rules they create, and the substance of these rules have utterly failed to protect economic freedom. One reason for this failure is that the citizens of sovereign nations have no process by which they may hold accountable the architects of international rules. International rules do not generally emerge from the kind of process that gives us historical, empirical, and theoretical reasons to believe that the rules will actually protect human dignity. Because these international processes are distant from the average citizen, agency costs are in fact particularly high.
Here, I briefly review human rights treaties and customary international laws--two sources from which advocates seek a greater infusion of dignity from international law--and show why they are unlikely to contribute to human dignity. In contrast, the treaties promoting free trade under the aegis of the World Trade Organization can contribute to human dignity because their operations have relatively low agency costs and, in fact, particularly empower the poor, a group whose interests are at risk even in democratic systems.
First, let me begin with the procedural problems in the family of international law provisions that human rights advocates hold up as charters of human dignity, such as the Universal Declaration of Human Rights (4) and the International Covenant on Economic, Social, and Cultural Rights. …