The Democratic Legitimacy of International Human Rights Law

Abstract

International human rights law is gaining strength. Its tenets have been absorbed into the discourse of international politics.

Regulatory arbitrage in relation to international human rights

“…Therefore, regulatory arbitrage in relation to human rights law is plausible because of negligible reputational costs due to inherent limitations of international human rights, such as debatable universal legitimacy (von Bernstorff 2008;Mayerfeld 2009;Chan 2013;Tasioulas 2013), differing interpretations of the provisions (Chinkin 2014; M egret 2014), and selective or substantial delay in international intervention (Habibi 2007;Walling 2015), as acknowledged in many prior studies. 4 If the reputational cost of human rights violation is economically negligible (Lebovic and Voeten 2009;Wintour 2015), this would encourage arbitrage practices.…”

“…The controversial nature of international human rights casts doubt on the legitimacy, ability, and capacity to deter violation of human rights (von Bernstorff 2008;Mayerfeld 2009;Chan 2013;Tasioulas 2013). If a state is driven by a rational arbitrage strategy, then low compliance can be expected when laws have limitations that can be capitalized on to disguise crimes against humanity.…”

“…If protecting human rights is viewed as costly and limiting the economic progress of the states (and state actors), then the controversial nature of international human rights law, such as debatable universal legitimacy (von Bernstorff 2008;Mayerfeld 2009;Chan 2013;Tasioulas 2013), differing interpretations of provisions (Chinkin 2014;M egret 2014), delayed intervention or selective international intervention (Habibi 2007;Walling 2015), and negligible reputational cost of violation (Lebovic and Voeten 2009;Wintour 2015), are likely to be exploited by states that violate human rights in pursuit of economic gains. Ineffective enforcement of international human rights policies and regulations means that the cost of regulatory arbitrage is negligible, which provides conditions that breed arbitrage actions among those economically driven states.…”

Diversity and cosmopolitan democracy: Avoiding global democratic relativism

“…These include questions relating to the categories of rights that should be constitutionalized globally, or which should be held up as a long-term constitutional aim. They also include important questions about how narrowly drawn specific rights should be within the constitutional categories, and how much deference should be given to domestic societal norms in formal suprastate adjudication of rights-based challenges (Mayerfeld 2009: 75–86; Buchanan 2008; see also Scheuerman 2002). 1 Other questions will arise around the roles that suprastate democratic deliberation could play in pressing challenges from below (Gould 2014: ch 11).…”

“… 22 An important related claim then is that local democratic outcomes or rights interpretations are generally more legitimate the more open they are to challenge, including formal legal challenge in suprastate jurisdictions. See Mayerfeld (2009) for a nuanced account of ways in which democracy and individual rights can be seen as inherently connected and mutually reinforcing, and of the importance of securing judicial review, including above the state, in the current global system.…”