Democratic Defecit in International Law?

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Over on the Volokh Conspiracy George Mason Law Professor Ilya Somin has a very interesting post on the democratic deficit in international human rights law. Somin argues, in a paper co-authored with John McGinnis of Northwestern, available on SSRN, that most international human rights law is created in an undemocratic environment as a result of undemocratic procedures and undue influence of authoritarian states. As an example Somin and McGinnis refer to international law-making relating to the "crime" of hate speech.

From reading the abstract, while awaiting the full paper, it is clear that the authors have some valid points. In particular the example of the hate speech as well as the works of the UN human Rights Council, where the influence of authoritarian states is evident in the Council's attempts to undermine norms of freedom of speech, underline the authors' arguments. At the same time, notwithstanding the relative vagueness of terms like "democracy", "undemocratic" and "authoritarian", the authors deserve credit for raising the question of legitimacy in international law-making. Such debates have unfortunately always gained a bigger audience in the US than in Europe where there sometime seems to be a tendency to uphold international law as answer to numerous problems.

Comments

Anonymous said…
It appears that they employ utilitarian approach, which goes against the universality of human rights. Essentially, what they are saying is that let use use international human rights law for “dictatorship” but not for what they described as “democracies". What they disregard are some basis notions of international human rights law. I find such arguments troubling as advances arguments that some nations just know better how to protect human rights than United Nations. We all know where such arguments can lead to.

Jernej
8 April 2008 at 11:49
Unknown said…
I think they'd respond by saying something like "hate speech" does not have a universal definition. I think there's no question that some nations protect rights better than the UN.

Hate speech in a totalitarian state which disregards human rights may in fact be censorship of the statements of political opposition.

The Human Rights Council recently voted to prohibit the dissemination of ideas based on religious superiority. Azerbaijan, China, Cuba, Russia, and Saudi Arabia voted for the measure, while the US, Slovenia, Canada and others voted against.

The provision on its face may seem a good idea, but it restricts free speech, and amounts to censorship. That's a universal human right isn't it?
9 April 2008 at 08:19
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