target="_blank" rel="nofollow" href="#u4b4d4416-60a3-5b68-a66c-ea8d5369524f">Chapter 3 shows what a Madisonian system of transnational human rights protections might look like in practice. Over the last seventy years, Europe has built a powerful human rights regime that adheres to Madisonian principles of constitutional design. The fundamental idea is that the protection of human rights is a collective task—that all European states and all European citizens are simultaneously responsible for the protection of human rights in each national jurisdiction. The significant achievements of this regime show why a multilateral approach is necessary for the effective protection of human rights.
Chapters 4 and 5 examine the U.S. refusal to integrate itself into international human rights institutions. Since World War II, the United States has kept itself practically exempt from international human rights law, in the belief that its domestic institutions give rights sufficient protection. But this policy of “American exceptionalism” has created loopholes, blind spots, and a lack of accountability resulting in grave abuses of human rights. Chapter 4 begins by reviewing the emergence of American exceptionalism, the U.S. involvement with torture before 9/11, and the prohibition of torture under U.S. constitutional and international law. It then examines the United States’ authorization of torture in the “War on Terror,” with special attention to the so-called torture memos written by senior lawyers in the Bush administration. In Chapter 5, I show how specific features of American exceptionalism (treaty loopholes, nonincorporation and nonjusticiability of treaties, demotion of customary international law, and nonratification of the International Criminal Court treaty) created a legal environment more conducive to the authorization of torture.
Chapter 6 responds to complaints that international human rights law, by limiting policies that states might otherwise adopt, is antidemocratic. I add new arguments to those made in Chapter 2 for the democratic legitimacy of international human right law. Because democracy is not group license, because it can never include permission to violate human rights, international human rights law bars only those policies that governments should not consider anyway. Some will object that this reasoning overlooks cross-national disagreement about the meaning of human rights. I do not deny such disagreement, but argue that international human rights law offers a constructive response to disagreement about human rights.
In the conclusion I consider how international human rights law stands in relation to the norm of national sovereignty. I show that international human rights law is compatible with a moderate conception of sovereignty. Only an expansive conception of sovereignty is rejected by international human rights law, but since such a conception represents a false political ideal, this is no cause for regret.
Human Rights and Shared Governance
I argue not only for a strong international human rights regime but also for the need to give it a decentralized character. States must preserve enough authority and independence to monitor each other’s human rights policies and to safeguard the integrity of the system overall.58 What is needed is a model of shared governance built on the cooperation of international institutions, democratic states, and civil society.
If we look beyond human rights (or civil and political rights, which are the primary focus of my book), there are urgent reasons to strengthen global (not just transnational) governance. Climate change, nuclear proliferation, and world poverty are global crises requiring global solutions.59 (Other global crises could be added to this list.) The world cannot afford to let individual states block just and necessary solutions to these crises, and these solutions may require a greater degree of centralization than is necessary and appropriate for international monitoring of human rights. (That is to say, the proper degree of centralization may vary according to policy issue.) These matters, however, lie outside the scope of my book.
By means of international human rights institutions, states can remind one another of their domestic and international human rights pledges, and correct one another’s errors, blind spots, and biases. The “War on Terror” has reminded us of the fragility of human rights, even in constitutional democracies. Human rights are too important to be left to the sole care of one’s government. If all human beings are “endowed with certain unalienable rights” and governments exist “to secure these rights,” then it is incumbent on governments to provide both internal and external safeguards. Transnational institutions form part of the necessary architecture of human rights.
Chapter 1
Human Rights
Human rights are enshrined in international law and the domestic law of most countries. A vast network of local and transnational organizations is dedicated to their defense. All over the world, people believe in and struggle for human rights.
Many scholars have written about the meaning and justification of human rights. Heated debate on particular controversies masks broad areas of agreement. Appropriating the wisdom of past and present thinkers, I offer a brief account that is neither new nor distinctive but that I hope is persuasive. Toward the end of this chapter and in the rest of the book, it will help us draw out the institutional implications of human rights.
I claim that human rights are based on a set of principles that can be shared by people holding diverse philosophical and religious views. Highlighting this widely sharable conception of human rights is the main purpose of the chapter. In addition, I argue, albeit briefly, that human rights can withstand the cultural relativist critique, that they do not conflict with one another, that they include certain socioeconomic rights, that they entail both institutional and interpersonal duties, that they are mutually supportive, and (anticipating the larger argument of the book) that they require international protections. Though some of these claims may court controversy, they lead us, I believe, to a sounder understanding of human rights.
As the term implies, human rights are rights that we have because we are human. They are not conditional on nationality, race, religion, sex, or other group memberships. The guiding thought is that each person is a moral center whose perspective matters and whose interests must be accorded significant weight and respect. Think of the child who (as you are reading this sentence) was most recently born into the world. What kind of life may this child expect? What opportunities will he or she enjoy, and what harms and dangers will he or she endure? Will he or she have enough to eat, enjoy adequate health care, receive an education, be protected from violence and persecution, and be permitted to chart the direction of his or her life? Such questions remind us of the person’s vulnerability to the individual and collective choices of other people. They focus our attention on the minimal entitlements to which we give the name human rights.
Human rights are distinct from legal rights.1 In the American South before the Civil War, the law gave whites the right to own slaves and denied slaves the right to be free. The first was a legal right that was not a human right; the second was a human right that was not a legal right. At most, the law recognizes human rights; it does not create them.2 The law is nonetheless important to human rights for the following reasons: (1) many human rights require legal backing; (2) some of those legal protections are themselves human rights; (3) the law can transmit the values of human rights; (4) the law provides a forum where we can negotiate provisional (though fallible) agreement about human rights; (5) a well-designed legal system, by structuring thoughtful deliberation, can improve our understanding of human rights.3
Which rights are human rights? I make the working assumption that the 1948 Universal
