Courts, Politics and Human Rights

Human rights play a distinctive role as a “moral touchstone” in international life today. Whether conceived of as a system of transnational rules for regulating state behavior, a standard for the reform of domestic institutions, or a collection of widespread customary international norms, different concepts of rights underlie contemporary expectations about life, personal security, health, education, work, fair treatment, and systems of government. Human rights violations are often perceived as threats to peace, and aspirations of people to be treated with dignity are commonly framed in the capacious language of human rights. Indeed, respect for human rights is now seen as a prerequisite for harmonious relations between peoples and states, good governance, and the well-being of individuals and communities. Yet human rights violations remain widespread. And the sheer scale of the human rights problem makes the challenge to build effective human rights protections especially daunting. International political institutions like the United Nations seem paralyzed when faced with massive atrocities, while many national governments are unwilling to take effective action to protect and promote human rights domestically and abroad. Today, no single government stands out as the champion of human rights.

Faced with this leadership vacuum, international human rights activists and some policy-makers have looked increasingly to courts as a centerpiece of strategies for promoting human rights. In the past decade, ad hoc international criminal tribunals—for the former Yugoslavia and Rwanda—have paved the way for such permanent institutions as the International Criminal Court. Regional supranational bodies (the European Court of Human Rights, the Inter-American Court of Human Rights, and the new African Court of Human and Peoples’ Rights) have been expanded.  At the same time, domestic courts have increasingly been called upon to apply international human rights norms in holding individuals accountable for extraterritorial conduct, most notably through the Spanish prosecution of former Chilean dictator Augusto Pinochet and through prominent civil lawsuits brought in U.S. courts against human rights abusers under the Alien Tort Claims Act. Domestic courts are also now asked to evaluate the legality of their own government’s conduct by international standards, exemplified by recent U.S. Supreme Court cases involving everything from the juvenile death penalty to the rights afforded under the Geneva Conventions to post-September 11th detainees.

Not only have courts been asked to be pivotal in the safeguarding of human rights, but hopes about larger roles have also been kindled.  Today, courts-- whether they are international, regional or domestic-- are often expected not only to punish perpetrators in human rights cases and deter future abuses but also to provide a forum for the victims of mass atrocities, construct legitimate chronicles of truth, memory and history, explicate the religious and cultural significance of human rights violations, guide governments in crafting policy, and promote peace and security in the areas where atrocities have occurred.

But have we come to ask too much of courts? Can courts accomplish these multi-faceted and sometimes contradictory tasks? Are they as independent as legal scholars often assume, or as enmeshed in politics and subject to pressures of expediency as political scientists and historians contend? Should courts be a preferred human rights venue, or are there other more accessible and effective ways to secure human rights?

This multi-disciplinary, multi-year project seeks to address these questions about the role of courts in protecting and generating human rights through drawing on the theories and methods of legal scholars, political scientists, philosophers and historians working together. Our study will span countries, regions, issue areas and historical time to pursue our central concern: What can we reasonably expect from courts in safeguarding human rights, and what can we learn about the human rights project by reflecting on the role of courts in helping to define and realize new norms, rules and laws?