1. International human rights and the challenge of legitimacy

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3. Outline of the book
In the following chapters of this volume, a number of authors – philosophers, lawyers and political scientists – provide multi-faceted attempts to address the problems of legitimacy that international human rights regimes may entail.

In the chapter appropriately opening this volume, Samantha Besson argues that before one can assess the institutional legitimacy problems involved in enforcing and specifying international human rights, one must first account for the legitimate authority of international human rights law as such. Yet this topic, she finds, has been oddly neglected in recent debates about the legitimacy of international law, perhaps because a common conventional view holds human rights as standards of legitimacy for the rest of the legal order. Setting out to cover this lacuna, Besson develops a revision of Joseph Raz’s account of law’s authority, where she focuses on law’s ability for democratic coordination when people disagree on issues of common concern as a main justification of its authority. Applying this conception of the authority of law to human rights, Besson argues that they are both inherently moral-political and inherently legal: in a democratic polity, the law provides the best way of mutually recognizing the importance of the moral interests expressed as human rights. From this foundation, Besson analyses the legitimate authority of international human rights law through four issues, key to any autonomy-focused account of legal authority: its subjects, justification, the role of consent, and sovereignty. Besson concludes that the legitimate authority of international human rights law is ‘doubly piecemeal’: First, following the Razian account, the justification of authority will vary depending on the circumstances and the subject’s own reasons. Moreover, in the case of human rights law, such contextual variation is particularly prevalent, because given their reciprocal legal sources in domestic and international law, the legitimate authorities of international human rights and that of corresponding domestic human rights are themselves reciprocal. ‘If the forum of realization of moral-political rights and as a consequence the locus of human rights legalization are situated at the domestic level,’ Besson concludes, ‘this is also where the legitimation of international human rights ought to be sought for and promoted.’

Steven Wheatley examines the function of international human rights bodies in world society, and specifically whether their normative statements should be regarded as providing content-independent reasons for state parties to comply. To what extent should we recognize the normative authority of these international bodies to regulate domestic societies on issues where there is substantial political disagreement? Wheatley addresses the puzzle that international human rights bodies have the authority to develop the scope and content of international human rights, but in doing so, they extend the obligations of state parties beyond the original treaty text. Like Besson, Wheatley draws on the work of Raz. Applied to international human rights bodies, Wheatley argues, Raz’s conception of authority implies that such institutions could only claim a right to rule where they can demonstrate that the state parties of international human rights treaties would better conform to the reasons that already apply to them by following the institution’s directives than by acting independently. On Raz’ interventionist account of human rights, however, the function of international human rights is to establish under what conditions external actors legitimately can take an interest in the exercise of sovereign authority in domestic societies. But this account, Wheatley argues, falls short where international human rights bodies have constitutionalized by developing a coherent jurisprudence, becoming an autonomous legal system. Such cases, where international human rights bodies adopt normative statements about the content of human rights norms and constitutional norms about norms, result in a dilemma: An international human rights body would possess legitimate authority in so far as state parties would better conform to the reasons that apply to them by following the body’s directives than acting independently, yet in most cases, domestic institutions will be better placed to determine the substance of human rights, especially so in solid democracies. Hence, on Wheatley’s view, international human rights bodies need to guarantee that the procedures by which human rights norms are given content in domestic settings are consistent with democratic ideals. Therefore, such bodies may serve to provide both procedural standards for democratic political systems and to express the content of human rights treaties, consistent with a literal, logical approach to international legal norms and the ‘overlapping consensus’ among state parties. Democratic states may accept the authority of international human rights bodies, Wheatley concludes, as an expression of epistemic humility, as the political and legal institutions of a democratic society must admit the possibility that they have been mistaken.

Kristen Hessler explores a similar dilemma. The case she uses as a starting point for her chapter is the United Nations Human Rights Committee, which in 2006 noted concern over the United States’ disenfranchisement of citizens convicted of a felony, recommending the US to restore the right to vote to citizens who have served their sentences. If legitimate states have rights to a certain level of non-interference in their domestic affairs, Hessler asks, why should their governments consider such recommendations issued by international human rights treaty bodies as authoritative, especially as such bodies themselves do not satisfy criteria of legitimacy grounded in the values of democracy or consent? In order to resolve this puzzle, Hessler suggests, we must reconsider the conceptions of both human rights and normative legitimacy. On an institutional conception of human rights, human rights express principles of justice which apply to the structure of a society’s social and political institutions (rather than ethical principles that apply directly to an agent’s conduct). Hessler adopts an institutional conception according to which human rights serve, primarily if not exclusively, to secure the equal moral status of persons, and this notion of equality also, she argues, informs the most convincing accounts of political legitimacy. Now, unlike states, supranational human rights are not morally necessary to achieve justice among fellow citizens, and therefore, it is a category mistake to apply traditional conceptions of legitimacy to them. Instead, Hessler concludes, we should regard human rights treaty bodies as supranational institutions created to improve the human rights realization of states’ social and political institutions – that is, as means for improving the legitimacy of states. ‘To the extent that participation in international human rights regimes enables states to improve their own human rights records, such participation also improves their political legitimacy,’ Hessler writes and suggests that participation in international human rights regimes may improve the level of human rights protection even in states that meet standard thresholds of internal political legitimacy.

The puzzle that Başak Çali addresses in her chapter is why domestic authorities – the judiciary, legislative or executive – should accept the interpretive authority of international human rights courts and quasi-judicial bodies. Dismissing alternative conceptions of legitimacy, Çali suggests an instrumentalist view where questions of legitimacy – who should defer to what interpretations and who should make decisions – depend on what practices promote human rights globally in the long run. Often, the problem of legitimacy is not just to decide whether an international human rights court should prevail over a democratic state. Such a view neglects, she argues, the distinct moral value of international interpretive authorities in a world order where many political communities need to co-exist with one another, and where there are many different interpretive authorities. That moral value goes beyond the domestic benefits to individuals as citizens; in exercising interpretive authority, international human rights courts help foster a global human rights culture, a debate about common standards and the common understanding that individuals have entitlements regardless of where in the world they happen to live. Noting that the long list of human rights provisions in international law might open for political manoeuvring by states, Çali considers whether the scope of rights that international courts can legitimately interpret should be limited to a set of basic rights, while leaving the interpretation of a more extensive set of rights to domestic authorities. Rejecting this solution, Çali instead argues that international interpretive authorities should develop standards of interpretation that take the respect for domestic democratic processes into account. When domestic authorities disagree with the interpretive authority, they should do so in a spirit of reconciliation and improvement, rather than conflict, she concludes.

In his contribution, Ian Hurd disputes common wisdom in both normative and descriptive accounts of legitimacy: that legitimacy implies compliance. Hurd studies the debates in the United States under the Bush administration about compliance with key international treaties on torture. While the international legal rules prohibiting torture are widely accepted and rarely called into question, their ostensive legitimacy coexists with state policies that permit torture – a puzzle from the conventional assumption that widespread belief in the legitimacy of an international rule will cause agents to comply with that rule. Hurd notes that even those actors who sought to open for the use of practices outlawed by conventions, such as the Convention Against Torture, accepted the legitimacy of international law, yet argued that torture practices did not constitute a violation of US obligations under international law. Hence, Hurd argues that perceiving a rule as legitimate does not preclude agents from violating them; rather, it shapes how violations are framed in order to legitimate them. International law is one tool which political actors use in the ‘legitimation contest’, as they fight over the meaning of compliance, and like any tool, it may be used for quite different purposes. Hence, this example demonstrates that international norms, institutions and law do not put an end to politics, but rather implies its continuation by other means.

In her chapter, Lynn Dobson seeks to offer a theory of the political legitimacy of international human rights institutions. Providing some clarifying conceptual distinctions, Dobson argues that political legitimacy must be distinguished from other types of normative justification, such as morality and justice, and pertains to the wielding of certain kinds of power by specific bodies. Specifically, legitimacy entails that a body has a right to rule over subjects who, in turn, are under a political obligation to it. On this view, it is not a capacity for coercion that makes legitimacy significant; rather, it raises a need for justification in situations where other reasons for action are insufficient to determine action. Here, Dobson makes two important claims about determining political legitimacy. First, political legitimacy is invoked comparatively, when credible candidates compete for authority in a domain that only admits one holder, and, second, attributions of legitimacy are always contextual, specifying which institution is legitimate for whom over what. Now, for international human rights institutions, this means that the question about their legitimacy boils down to the question: When should states, that believe their own institutions to be adequate to the task of applying human rights law, defer to the authority of international bodies? Here, Dobson suggests opening up the idea of pre-emptive power in legitimacy, so that both its scope and content may be variable and truncated. Consequently, an international institution’s claim to legitimacy, Dobson concludes, ‘would be less comprehensive and less hard-nosed than is the standard claim to legitimacy we are familiar with.’ On this view of legitimacy, rather than telling states what to do, international human rights institutions hold states to account from deviations form such first-order commands.

The chapter by Johan Karlsson Schaffer explores whether international human rights institutions can be assessed by certain complex, hybrid standards of legitimacy that cosmopolitan theorists have suggested for global governance regimes. While such regulatory regimes may perhaps enjoy a prima facie justification in terms of the benefits they help states obtain, such a rationalist-functionalist view of institutions has difficulties making sense of international human rights institutions, which do not serve to solve collective action problems among states, but to regulate the internal relation between governments and their citizens. If we conceive of international human rights institutions in this way, they are justified to the extent that they provide individuals and groups certain benefits, such as the opportunity to assert their interests vis-à-vis their governments. If so, state consent may offer a standard of legitimacy more plausible and feasible than recognized by certain cosmopolitan authors, he concludes.

Richard Bellamy starts from a number of recent controversial decisions by the European Court of Human Rights, which, similarly to Hessler’s empirical example, relate to the disenfranchisement of prisoners serving custodial sentences. Drawing on the debate about the case of Hirst v. the United Kingdom as an illustration, Bellamy examines from a normative perspective whether international courts may legitimately interfere with the legal and political decisions and processes of well-established democracies, given that such states may seem to possess greater democratic legitimacy than most international arrangements. Bellamy explores the issue from the theoretical vantage point of political constitutionalism, which emphasises the constitutional qualities of actual processes of democratic self-government and thereby offers an alternative to the dominant legal constitutionalist understanding of the role of international human rights conventions. Just as political constitutionalism only rules out strong forms of judicial review, weak review by international human rights organs may also be considered legitimate from this theoretical perspective. An international human rights convention can be regarded as an extension of the domestic political constitutions of democratic states to the extent that it results from, and is regulated by, a voluntary and fair association among democratic states, where its competences remain under their equal control and are limited to weak, contestatory review, respecting a principle of subsidiarity in its judgments. Bellamy finds that while the European system falls short of some of these criteria, it could easily be adjusted to fulfil the political constitutionalist model’s demands.

Similarly engaging with the authority of international human rights courts over well-functioning democracies, Andreas Føllesdal presents a partial democratic defence of the judicial review by the European Court of Human Rights. The chapter addresses some of the tensions between sovereignty, international human rights review and legitimacy, and bring these findings to bear on the proposals for reform of the ECtHR that would reduce its authority over national legislatures and judiciaries. The objectives of such review are not obvious, the causes of noncompliance are contested, as is the legality of dynamic treaty interpretation; all of which hamper efforts to assess proposed improvements. Føllesdal first presents some relevant aspects of the ECtHR and reviews some of the recent criticism against the ECtHR practice of judicial review to protect human rights in ‘well-functioning’ democracies, in terms of various forms of legitimacy deficits. It also presents some of the recent proposals for reform of the ECtHR. Subsequently, he lays out some reasons why such judicial review of majoritarian democratic decision-making may be defensible, also for well functioning democracies, and responds to some of the criticisms, presenting a partial defence. Some standard objections are not well targeted against the practices of the ECtHR, Føllesdal argues, partly due to the division of responsibility between the Court and national public bodies, and the different roles of legislators and of judiciaries. His chapter concludes by considering some of the important remaining normative challenges, this partial defence notwithstanding.

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