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The Limitations of International Human Rights Law

I was very intrigued by this recent post over on the Volokh Conspiracy discussing an article by Hadi Ghaemi and Aaron Rhodes of the International Campaign for Human Rights in Iran.  Though I am most often blogging about Russia, Europe, and even Venezuela over on my pages here, the parallels between these discussions on other human rights problems should be evident.  Ilya Somin argues that some of the critical structural flaws of international human rights law are caused by the role of authoritarian states who use well-intentioned institutions to influence enforcement and legitimize practices of repression, and to protect against this, he proposes that “we should explore the possibility of establishing international human rights bodies that exclude illiberal regimes from membership.”

Far from seeking to protect human rights, the HRC (whose membership includes numerous dictatorships), often passes resolutions intended to facilitate repression (see e.g. here and here). Iran itself has been a member of the HRC in the past and, as Ghaemi and Rhodes point out, is likely to succeed in its efforts to become one again. Even the UN’s Universal Declaration of Human Rights — the most important international human rights law agreement — includes repression-facilitating elements introduced at the behest of the USSR and its totalitarian allies.

The bottom line is that the main weaknesses of the international human rights system are structural. By giving so much influence to the very sorts of governments that human rights law is supposed to constrain, it actually empowers oppressors much more than victims. In the short run, liberal democratic governments should work to limit the scope of the system and and prevent its pernicious elements from overriding their own domestic law, a point McGinnis and I emphasized in our articles linked above. In places like Iran, progress in protecting human rights probably depends on action by liberal democracies and internal dissidents acting outside the confines of the UN system. Liberal democracies cannot and will not always prioritize the promotion of human rights. But they have fewer perverse incentives on these issues than dictatorships do.