n Violence and the Word, Professor Robert Cover describes law as “tak[ing] place in a field of pain and death.”1 International law and human rights adjudication, in particular, could not be more different. Human rights courts lack the power to compel adherence to their decisions through violence.2 They are designed for voluntary participation. This poses a problem for those who view compliance as the goal of law. But it is consistent with an alternative account of human rights adjudication as world building — the creation of a normative vision for transforming the status quo. The claim of this Note is that human rights courts can succeed without violence, and that the nonviolent character of human rights courts is perhaps best suited to their liberatory promise. When courts move people to act not out of fear of adverse consequences but from conviction, they can inspire lasting transformation. And human rights courts, unburdened with the restraint appropriate to the use of violence, can make greater moral demands.
This Note proceeds in four parts. Part I describes the problem of violence in human rights and situates the argument within scholarly debate. Part II explains how human rights courts lack coercive enforcement. Part III advances the idea of human rights adjudication as world building. Part IV considers the benefits of law without violence.
I. The Debate
In the wake of Russia’s invasion, Ukraine brought a suit against Russia before the International Court of Justice (ICJ) under the Genocide Convention.3 Ukraine argued that Russia had falsely accused it of genocide against the Russian-speaking population in Eastern Ukraine to justify the invasion.4 The court issued provisional measures ordering Russia to stop the war.5 But Russia ignored them, continuing a war that has claimed close to two hundred thousand lives.6 The ICJ has no tools to compel Russia or any other state to follow its judgments: it has no army of its own and cannot conscript domestic armies into its service or even impose sanctions. Under the United Nations (U.N.) Charter, parties may ask the Security Council for enforcement, but the Security Council has declined to play this role.7 Russia’s veto in the Security Council forecloses enforcement in this case,8 yet the pattern is broader. The Security Council has never used its powers to enforce an ICJ judgment.9 This would appear to be the spectacular failure of international law and human rights in particular. Without enforcement, powerful states, like Russia, can trample on the rights of the weak with deadly consequences. What, then, is the point of adjudicating human rights?
International law and international relations scholars answer a version of the question in various ways. Some, like former National Security Advisor John Bolton, respond in the Coverian vein that international law is not law at all.10 Realists, like Professors Jack Goldsmith and Eric Posner, argue that international law is weak because it cannot make states comply unless it is in their interest to do so.11 Human rights, from this perspective, fare even worse. Posner contends that human rights treaties are unenforceable by design and are responsible for the global failure to address human rights violations.12
Those who defend international law tend to argue that it can inspire compliance through less coercive means. The managerial approach of Professors Abram Chayes and Antonia Handler Chayes locates the effectiveness of international law in negotiation among treaty members and social pressures created by participation in a global community.13 Proponents of liberalism look for the internalization of international norms among populations within states, who encourage governments to comply.14 But effectiveness might be limited by the degree of states’ democratic accountability.15 Constructivists believe that institutions — including international law — can construct new meanings, changing the norms and culture of a state and, ultimately, its actions.16
This Note draws on constructivist ideas, especially those of Professors Jutta Brunnée and Stephen Toope — who understand international law as communication — and reject force and, more radically, power relations as the proper measure of law.17 Yet, Brunnée and Toope nevertheless embrace ideas of “adherence” and “legitimacy” that recall compliance.18 So too do constructivist theories of persuasion,19 derived in large part from managerialism.20 The trouble with centering compliance, however, is that it easily collapses into coercion. After all, the most foolproof way to achieve compliance is to force rogue states to follow the rules — through violence if necessary. This raises the question of whether human rights adjudication is serving a purpose other than compliance,21 and if so, whether stripping it of the power of violent enforcement is ever desirable. Here, Professors Natsu Taylor Saito and Robert Cover point to a response. Cover’s Nomos and Narrative suggests that law can “invite new worlds.”22 Saito builds on Cover to describe human rights law as creating “a vision of rights and remedies.”23