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Many norms of international law, especially international human rights law, are widely violated. The international legal system as a whole may suffer as result.
International human rights law has changed international law. The two primary sources of international legal obligations—treaties and custom—have become more expansive and looser so as to bring more human rights norms into the ambit of international law, despite wide-spread non-compliance with those norms. In one sense, the success of the effort is clear: international law now regulates a vast array of human-rights-related conduct. Whether the expansion is an effective way to promote human rights is widely-debated.
The broader, unacknowledged problem, however, is the potential effect of the expansion on international law as a whole, as I discuss in detail here. Today, international law includes a broad range of human rights norms which are routinely violated, from the U.N. reporting requirements to gross violations of human dignity. Wide-spread violations of some legal norms may, in turn, make it harder to enforce others. As a (very) imperfect analogy, consider the “broken windows” theory of crime prevention: widespread violations of human rights law may be a symbol of unaccountability, a signal that no one cares about violations of international law and that no one is in charge. Accountability is a fundamental concern of public international law because the system lacks a centralized enforcement mechanism. Whatever the merits of the “broken windows” argument in the context of domestic law enforcement, behavior which signals a lack of accountability may be especially damaging to international law writ large.
Theoretical literature on compliance with international law suggests that non-compliance in some areas makes other norms of international law harder to enforce. Work on rational choice posits, for example, that states comply with international law in part to protect their reputations. If states as a whole tend to expect non-compliance from each other, the costs of entering into treaties or developing norms of customary international law become higher for all states. A baseline reputation of non-compliance among states generally harms interstate cooperation because it means that states will have to do more in a treaty agreement to generate trustworthy commitments (such as monitoring non-compliance), and because it makes some agreements not worth the time or effort. To be sure, these effects depend upon states having reputations for compliance which are not entirely issue-specific or compartmentalized, a plausible assumption for reasons explained here (pages 103-06).
Other theories of compliance with international law, including constructivism and organizational sociology, also suggest that widespread non-compliance with human rights will make the rest of international law less effective. For example, constructivists Jutta Brunnée and Stephen Toope argue that international legal obligations arise from communities of practice which have shared understandings and which generate norms with specific characteristics of legality. Lack of congruence between a norm and behavior impedes the development of a community of practice. They reason in the context of torture (page 232) that “a widespread failure to uphold the law as formally enunciated leads to a sense of hypocrisy which undermines fidelity to law.” Research from domestic law and social psychology, including the work of Tom Tyler, suggests that widespread lack of faith in government and its ability to solve problems undermines peoples’ sense of their own obligation to follow the law.
If international law does have a problem along these lines, one solution is to more effectively enforce international human rights law: Doing so would not only benefit human rights, but also international law as whole. Yet creating a truly effective international human rights enforcement system seems unlikely. A more complicated possibility is to find ways to promote and protect human rights that do not depend upon binding norms of international law, including regional human rights courts and tribunals, domestic statutes and constitutions, capacity building and iterative interactions with review bodies, the enforcement of soft obligations, and so on. Thanks to the successes of the international human rights movement, there are a wide variety of tools designed to improve global human rights practices. While we have yet to see whether those mechanisms will work if they are de-coupled from binding international legal commitments, it is clear that we should understand international human rights law as part of a broader international legal system. The debate around international law and human rights should be re-framed to consider not just potential benefits to human rights but also the potential costs to international law as a whole.