Does International Human Rights Law Make a Difference

Does International Human Rights Law Make a Difference? Douglass Cassel I. INTRODUCTION Does international human rights law make a difference? Does it protect rights in practice? The importance of these questions for rights protection is obvious: the institutions of international human rights law deserve our energetic support only to the extent they contribute meaningfully to protection of rights, or at least promise eventually to do so. Moreover, at the moment these questions have added urgency. They underlie an ongoing debate, fomented in part by this Journal, on the extent to which the United States should be prepared to cede degrees of its national sovereignty to international human rights institutions, in return for their presumed benefits for rights protection.' For example, should the US ratify the treaty to create an international criminal court for war crimes, at the risk, however slight, that Americans might be prosecuted before the Court?2 Similarly, should the US ratify human rights treaties with only a minimum of reservations, rather than, as now, accepting the treaties (if at all) only to the extent they conform to our domestic norms?' And should we be willing to make human rights treaties enforceable against our federal, state, and local governments? The extent to which we should accommodate ourselves to these international organizations and treaties depends in part on whether they are likely to do any good in protecting rights globally.4 In answering these questions, international human rights law must be understood and evaluated as part of a broader set of interrelated, rights-protecting processes. So understood, and taking into account its still early stage of historical development, international human rights law has shown itself to be a useful tool for rights protection. Most important are its indirect effects. International articulation of rights norms has reshaped domestic dialogues in law, politics, academia, public consciousness, civil society, and the press. International human rights law also facilitates international and transnational processes that reinforce, stimulate, and monitor these domestic dialogues. While reliable quantitative measurement is probably impossible, by strengthening domestic rights institutions, international human rights law has brought incalculable, indirect benefits for rights protection. In addition, international enforcement mechanisms have more limited, but nonetheless important, direct benefits for rights protection. They protect lives, free prisoners, rescue reputations, prompt legislative reform, and afford otherwise unattainable justice in the form of truth telling, reparations, and condemnation and punishment of rights violators. Still, direct international interventions are limited in impact. Over time, the extent to which international law serves as a useful tool for protection of human rights will depend mainly on its contribution to a broader set of transnational processes that affect the ways people think and institutions behave5whether governments, state security forces, guerrilla groups, or corporations. Granted, the instrumental value of international human rights law-direct or indirect-is not self-evident. Within the last decade alone, skeptics may cite such breaches as the genocide of nearly one million Rwandans, the ethnic cleansing of hundreds of thousands of former Yugoslavs, and the displacement of nearly two million Colombians. But continued atrocities do not disprove the case for international human rights law; the fact that it has not triumphed everywhere does not mean that it serves no useful purpose anywhere. Where human rights have made remarkable advances-as in the ending of forced disappearances in Latin America and the freeing of political dissidents in central Europe-skeptics may plausibly credit factors other than international law. Moral outrage, we are told, sufficiently galvanizes world public opinion,6 while internal factors such as economic collapse, economic development, democratization, or domestic legal institutions deserve the credit for improvements in rights. …