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The Failed Promise of Language Rights: A Critique of the International Language Rights Regime

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Major international legal instruments commit international law to protect language rights absolutely, irrespective of counter-pressures toward linguistic uniformity. This unconditional commitment to language rights is echoed in the writings of prominent human rights scholars, who argue that language is a constitutive element of cultural identity. This article contrasts the ideals of language rights with the actual record of their enforcement. It presents a detailed analysis of the 133 cases that have come before the European Court of Human Rights, the U.N. Human Rights Committee, and the Inter-American Court of Human Rights dealing with language issues as they arise in
(i) education, (ii) court proceedings, and (iii) communications with the government. The analysis demonstrates that the decisions of international judicial or quasi-judicial bodies in language protection cases have consistently favored linguistic assimilation, rather than the robust protection of linguistic diversity that is formally espoused. Instead of strong language guarantees, only transitional accommodations are offered in the public realm for those as yet unable to speak the majority language. This jurisprudence treats minority language not as a valuable cultural asset worthy of perpetual legal protection, but as a temporary obstacle that individuals must overcome in order to participate in society. The legal decisions take a narrowly utilitarian approach to language, forcing the state to accept the use of minority languages only insofar as they facilitate communication with the majority and with the official bodies of the state. The paper concludes with a commentary suggesting that treating language interests under the rubric of human rights, however valid and worthy they may be, cannot be normatively defended.

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Consent to the Use of Force and International Law Supremacy

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Many celebrate international law as a way to compel states to protect human rights. Often it serves this role. But sometimes it has the reverse effect: states use international agreements to circumvent individual rights in domestic law. For example, the United States reportedly relied on Italy’s consent to render a terrorist suspect from the streets of Milan into secret detention. Pakistan seems to have authorized U.S. lethal strikes against Al Qaeda members without regard to rights protections in Pakistani law.

This Article uses the under-examined phenomenon of international consent to the use of force to explore the larger question of how states use international law to circumvent individual rights. International law facilitates these rights violations by embracing a principle termed “supremacy.” Supremacy requires a state to prioritize its international obligations over its domestic laws. This means that a state may rely on another state’s consent to an agreement without asking whether that consent violates the rights of individuals in the consenting state.

To minimize this manipulation of international law, the Article proposes that states receiving consent to use force bear a “duty to inquire” to ensure that the state consenting to the use of force is acting in a manner consistent with its domestic laws. This solution challenges international law’s traditional approach to supremacy. The Article shows why a more functional approach to supremacy for international agreements that operate at the intersection of national security and individual rights will advance the goals of international and domestic law more effectively.

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Getting to Rights: Treaty Ratification, Constitutional Convergence, and Human Rights Practice

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This Article examines the adoption of rights in national constitutions in the post-World War II period in light of claims of global convergence. Using a comprehensive database on the contents of the world’s constitutions, we observe a qualified convergence on the content of rights. Nearly every single right has increased in prevalence since its introduction, but very few are close to universal. We show that international rights documents, starting with the Universal Declaration of Human Rights, have shaped the rights menu of national constitutions in powerful ways. These covenants appear to coordinate the behavior of domestic drafters, whether or not the drafters’ countries are legally committed to the agreements (though commitment enhances the effect). Our particular focus is on the all-important International Covenant on Civil and Political Rights, whose ratification inclines countries towards rights they, apparently, would not otherwise adopt. This finding confirms the complementary relationship between treaty ratification and domestic constitutional norms, and suggests that one important channel of treaty efficacy may be through domestic constitutions.

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International Vote Buying

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This Article examines the widely practiced—and widely ignored—phenomenon of “international vote buying” among states, that is, conduct whereby states offer material benefits to other states in exchange for their votes or decisions in international institutions. Domestically, such behavior would be patently illegal as bribery or election fraud. Yet under international law, it is both legal and relatively routine. Should this be so? Is vote buying corruption, or an acceptable feature of international relations? Scant attention has been devoted to these questions; this Article therefore represents a modest attempt to fill that void. Building on insights from the domestic sphere, this Article presents a new normative framework for assessing international vote buying. In so doing, it aims to foster debate about this important and underappreciated phenomenon, as well as to reassess our intuitions about the nature of international decisionmaking.

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Conceptualizing China Within the Kantian Peace

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Immanuel Kant’s 1795 essay, “To Perpetual Peace: A Philosophical Sketch” (Zum ewigen Frieden), established a concept of cosmopolitan law as the nemesis of war, instilling in generations of thinkers and practitioners a vision of a world without conflict. Kant’s paradigm posited that “republican constitutions, a commercial spirit of international trade, and a federation of interdependent republics” would provide the basis for a “perpetual peace” amongst states bound together under international law. Yet cultural relativists since the time of Kant have argued that only certain nations—namely those with a “Europeanized” culture—are capable of coming together to secure this lasting peace.

This Article seeks to challenge such claims and assess the contemporary relevance of Kant’s “perpetual peace” under international law in light of one of the most important geopolitical developments of our time: the rise of China. It is clear today that efforts to secure an enduring world peace without China have limited prospects for success. Amidst this reality, the Article argues that historical and contemporary claims regarding the irreconcilability of the Kantian paradigm with Chinese thought are inaccurate and incomplete. It presents evidence to rebut these cultural relativist arguments by identifying sources of resonance with Kant in classical Chinese political philosophy; highlighting Chinese scholars’ ongoing engagement with Kant’s writings over the past century; and revealing trends in recent Chinese scholarship and foreign policy discourse that support Kantian liberal internationalism.

Finally, the Article demonstrates that modern China is increasingly committed to two pillars of the Kantian project, international institutions and commercial interdependence, but concludes that the rising power must develop a missing third pillar—liberal democracy—if it is to strengthen its normative commitment to international law and participate in a lasting peace amongst states. China’s fate and the future of international law thus appear inextricably tied.

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Controlling the International Investment Law Agency

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In recent years foreign investors have used a rapidly expanding network of bilateral and multilateral investment treaties to directly sue states before international tribunals for violations of international law. There have now been hundreds of such lawsuits, with tribunals occasionally granting investors massive damage awards. In the process of resolving these disputes, tribunals announce and apply new rules of law. This brave new world of international investment law (“IIL”) has emerged as one of the most dynamic and controversial areas of international law today. In this Article I argue that the IIL system can be usefully analogized to a domestic-law administrative agency, where significant regulatory power is transferred to expert decision-makers acting on behalf of political principals. Viewing IIL as an agency highlights the IIL system’s major weakness: the lack of sufficient mechanisms of political control by states. Drawing on domestic administrative practice, I suggest reforms designed to enhance control by adapting domestic-law systems of notice-and-comment and the legislative veto. Doing so promises to ensure states a more adequate degree of control over IIL outputs.

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