a free press and an independent legislature.
Some rights function as primary entitlements and instrumental protections simultaneously. Liberty is one such right, as Locke emphasized in the Second Treatise of Government. It is both valuable in itself and indispensable to other goods; nothing valuable is secure, not even our lives, when freedom is withheld.54 Examples can be multiplied. Education, among its many benefits, teaches us awareness of our rights, and gives us resources to defend them. A right to economic subsistence, valuable in itself, arms individuals against blackmail used to perpetuate abuse (such as domestic violence against women and servants). Freedom of speech is both a primary entitlement and a means of protesting the denial of other rights.
If human rights include both primary entitlements and their protections, they also include protections of those protections, and protections of human rights generally. A series of outer walls is erected to minimize the danger of erosion or attack. The logic of mutually reinforcing supports is well displayed in the Universal Declaration of Human Rights. “Everyone has the right to recognition everywhere as a person before the law” (art. 6) and to the “equal protection of the law” (art. 7), “to equal protection against any discrimination in violation of this Declaration” (art. 7), “to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law” (art. 8), and “to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations” (art. 10). These protections, though they may sound arid and legalistic, prove indispensable when fundamental entitlements are threatened.
It is significant that many protections of rights are themselves counted as human rights, not just as means to the fulfillment of human rights. To leave fundamental entitlements without protection is to leave persons exposed and thus to harm their dignity. A falsely accused person who is denied a fair trial but is still acquitted—say, because of luck, or a sympathetic judge, or friends helping behind the scenes—is not treated with the dignity she deserves, because she is denied the fully panoply of protections that is her due; her safety, preserved for now, remains contingent. We are entitled not only to the enjoyment of our rights, but to their secure enjoyment. We have a right to take our rights for granted.
The ideal posited here is independence, where independence means not having to fight, scheme, barter, or plead for one’s rights. Rejected, obviously, is a vision of extreme self-reliance, in which rights themselves must be achieved through struggle. Struggle, of course, is built into any society that honors human rights, since people face the stress of making their own choices in life, and must inevitably compete for scarce prizes and positions. But human rights are not something to be earned; they are not a reward for superior virtue, fortitude, and pluck. The “survival of the fittest” is foreign to the idea of human rights, its entry into rights discourse a sure sign that the discourse has been corrupted. Human rights are anchored by “the right to have rights,” as Hannah Arendt correctly insisted, not the right to seek rights.55 That is why rights include the protections of our rights.
Why Human Rights Require International Protections
Human rights are both a moral and a political concept. As a moral concept, they imply a set of moral permissions for oneself and duties for others. But among the duties owed one by others is the duty to organize or coordinate their behavior in suitably helpful ways. Human rights imply the need for certain kinds of social institutions, and that is why they are a political, not just a moral, concept. This point has been well understood at least since the seventeenth century, when the classic social contract theorists argued that human rights entitle their bearers to institutional protections. Social contract theorists envisaged such institutions within the frame of the nation-state, which could protect individuals from each other, but could also, of course, violate human rights on a much larger scale. To guard against this danger, Locke advocated the creation of representative democracy, in which the enforcement of human rights was entrusted to “collective bodies of men,” chosen by the people, who would dedicate themselves to upholding the law of nature.
But human rights are not adequately fulfilled if we entrust their protection to the nation-state alone. The state has too many opportunities to betray human rights. Or it may lack the resources to fulfill important human rights even if it wanted to. International rights institutions are needed to correct the failures of nation-states—for example, to compensate for the resource deficiencies of poor states, or to oppose national policies that violate or threaten human rights. The moral principle is well captured in the Universal Declaration of Human Rights, whose Article 28 proclaims, “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.”
Hence the effort since World War II to create an effective international human rights regime. Despite formidable obstacles and demoralizing delays, the human rights movement has succeeded in establishing a system of interlocking protections in the form of multilateral declarations, treaty commitments, monitoring committees, investigative bodies, reporting procedures, fact-finding missions, regional human rights courts, and international criminal courts. It goes without saying that human rights continue to be violated on a massive scale, and that some states still demonstrate an astonishing capacity for cruelty. But international human rights institutions have had some impact on the calculations and self-understandings of states and public officials. While the maleficent potential of the state has not been removed, it has often been inhibited, and in some parts of the world significantly reduced.56 I examine some contributions of international human rights institutions in the chapters to follow.
When international institutions reinforce national protections of human rights, they recapitulate the domestic process of institutional reinforcement whose necessity has long been understood. The secure enjoyment of human rights within any society depends on the presence of multiple overlapping protections. A democratic state mindful of its constitutional mission should therefore welcome the oversight and assistance that international human rights institutions provide. When a state refuses international checks on its human rights practices, it negates our right to the reliable protection of our rights. The international protection of human rights is the logical completion of the human rights idea.
Chapter 2
Madison’s Compound Republic and the Logic of Checks and Balances
Learned men pledged to the defense of individual rights forged political institutions for the new United States. They constructed forms of government not seen before, thus transforming our understanding of politics itself. The U.S. Constitution was the culmination of their efforts, and James Madison the principal genius behind its creation. Alexander Hamilton boasted that the original constitution was itself a bill of rights (Fed. 84, p. 477),1 even before the first ten amendments. Although the original constitution contained grave flaws, above all the accommodation of slavery, its underlying principles inspired many to seek improvements, efforts that bore fruit in subsequent amendments abolishing slavery and requiring equal protection of the laws. Our current understanding of human rights owes an immense debt to American innovations in the art of government.2
Gratitude for the theoretical contributions of the Founders, and Madison in particular, has nourished the view that U.S. institutions do not stand in need of international human rights law. There is a sense that Madison and his colleagues solved the main difficulties, that to institutionalize external supervision of U.S. human rights practices or incorporate international human rights law into America’s domestic legal system would be to tinker with the Founders’ wise design, a move both ungrateful and imprudent. Mixed with these feelings is the pride of vicarious authorship (the thought that the Founders’ achievement is ours, too) and an attachment to strong national sovereignty as a matter of principle. Belief in the sovereign right of Americans to govern their affairs without external supervision and belief that the Founders made the correct
