Paradigms of International Human Rights Law: An Exchange

Earlier this month, Tom Dannenbaum reviewed Aaron Fellmeth’s new book, Paradigms of International Human Rights Law. Fellmeth responds to the review below. Dannenbaum then replies.

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Fellmeth responds:

I appreciated Tom Dannenbaum’s review of Paradigms of International Law. However, it quickly becomes apparent that the greater part of his comments is based on a misconception about the book, and some unexpected interpretations of the arguments themselves. Without addressing them in full, I’ll make a few points that should clarify the bases of our disagreement.

Regarding the book’s aim, the title of the review, “A Philosophical Foundation for International Human Rights Law?,” suggests that Dannenbaum read the book as attempting a grand reconciliation of IHRL with ethical theory. Indeed, he early on suggests that I should have explained “precisely” what is “the presumed interaction between law and moral theory” in the book. The fact that he reverses the order of my goals, putting the “bridging” first and the structural critique second, when in fact I stated them contrarily, suggests he missed the point.

I wish I could have written a book that ambitious. But a less abridged reading shows that my stated purpose was much more modest: to “make some progress” in bridging the two fields (p. 2). There is a world of difference between formulating thought-provoking theses on ethical theory relevant to IHRL, and thereby advancing the dialogue between philosophers and international lawyers (the book’s stated goal), and explaining how ethical theory can justify the entire, diverse and sometimes self-contradictory corpus of international human rights law (the goal he ascribes to the book).

In fact, I do not think the goal Dannenbaum proposes is even realistic. As I observed in Paradigms, IHRL is not built on a coherent moral theory. IHRL arose from the moral intuitions of diplomats moderated by power politics, rather than fully developed and articulated ethical theories. The interaction between moral theory and IHRL is not susceptible to “methodological exactitude” because their relationship is fragmented and tenuous. That does not mean moral theory cannot enlighten the analysis of IHRL de lege ferenda, and that is what I tried to do in the book. An attempt to reform the entire corpus of IHRL with a unified moral theory, complete with a catalog of all values that contribute to human dignity, would be far beyond my professed aim. The book is titled “Paradigms of IHRL,” not “A Unified Moral Theory of IHRL.”

Some of Dannenbaum’s specific criticisms of my argument seem to arise from the same insufficiently nuanced reading. For example, he accuses me of dismissing “practical objections” to pure normative theory, then points out that I integrate the practical consequences of alternative paradigms into my own analysis. This is an overly simplistic interpretation of a more complex, but I think fully justifiable, argument. A reasonably careful reading reveals that I did not dismiss practical objections as irrelevant. I did point out that practical objections to the implementation of a moral theory do not themselves impugn the underlying theory; only once it is determined whether a moral theory is sound should we address whether and how that theory can be translated to law. The implementation in law of a sound moral theory may well prove impracticable, but first things first. This seems to me a noncontroversial proposition.

I’d also like to address his criticisms of my argument about duties. He makes three points in opposition: (1) international legal regimes other than rights regimes impose ambiguous duties; (2) IHRL already “is in many respects a duty-based system”; and (3) I should have taken a stance on whether IHRL does or should impose duties on business organizations.

The first argument is essentially irrelevant to my point, but in any case it misses the basic difference between IHRL and other legal regimes. IHRL is normatively elevated; its demands take precedence presumptively (though not conclusively) over competing policy considerations. The very fact that other international legal regimes include state duties is what makes the concept of fundamental duties useful. Fundamental duties take precedence over less normatively pressing duties, and because (as I argued) IHRL cannot coherently privilege all of the international community’s most urgent values using the rights paradigm, a fundamental duties paradigm can fill in the gap. As for international environmental law, it appears we are doomed to disagree on whether that body of law is formulated as structurally more fundamental than other fields of international law. I obviously see why it should be; I do not see how it currently is.

The second point criticizes me for ignoring that IHRL includes state duties independent of individual rights. The best response is to quote myself: “Modern IHRL already includes some such state human rights duties,” which I follow with an example (pp. 79-80). But the point is that most duties are indeed tied to individual rights, and that there are reasons for considering a balance more weighted toward state duties. That X sometimes does Y is not a logical refutation of the argument that X could benefit from doing more Y under the following circumstances, etc.

On the final criticism, that I failed to take a stand on whether business firms do or should have fundamental duties under IHRL, I plead guilty. Whole books have been published about this question; mine is not one of them. My goals were to argue (1) that business firms have an exceedingly limited basis for claiming human rights; (2) that, notwithstanding the apparent asymmetry, there is a strong theoretical basis for attributing fundamental moral duties to business firms; and (3) that the arguments against including fundamental individual duties do not apply equally to business firms. If Dannenbaum wanted to read a book making more aggressive arguments, I can recommend several, but it seems slightly unfair to criticize me for not accomplishing what I never set out to do.

Finally, it would be perhaps most helpful briefly to address Dannenbaum’s questions about the role of pragmatism in my analysis. In addressing the third paradigm—positive versus negative rights—I contended that although the theoretical arguments for positive human rights to fulfillment are very strong, there are practical reasons for moderating them with respect to states that have not achieved the basic conditions necessary for the fulfillment of negative rights. The point is to allow a temporary disparity in human rights commitments between states with high fulfillment potential (generally, representative democracies with well-developed economies) and states with low fulfillment potential (generally, enduring dictatorships), with progressive pressure applied to move those states toward fuller fulfillment of negative and later positive rights. The disparity is regrettable, but it avoids creating a much worse disparity between formal IHRL commitments and chronic noncompliance by many states.

Dannenbaum asks, “[I]f the proposal has little chance of actual implementation, in what sense it is really practical?” But the whole point is that my proposal has a greater chance of actual implementation than the current practice of low-potential states committing to extensive positive obligations. It is a concession of sound theory to pragmatics.

And here, to get back to Dannenbaum’s first criticism, is where the bridging occurs. Philosophers dealing with human rights have tended to focus primarily on formulating a theoretical justification for universal human rights, or certain kinds of such rights, usually without detailed consideration of the problems of implementation or how their proposals would fit into the structure of the international legal system. International human rights lawyers generally either focus on questions of doctrinal consistency, critique doctrine in light of practice, or critique practice in light of doctrine, with only glancing consideration of ethical theory as a justification for their proposals. My method for bridging ethical theory with a structural analysis of IHRL on the subjects under investigation was to articulate ethical justifications for or against certain key IHRL doctrines, then critique the doctrines in light of the structural and pragmatic limitations of international law. It is admittedly not an elaborate path from abstraction to recommendation, but the unexplained shifts in methodology are, I trust, now explained.

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Dannenbaum replies:

I am grateful that Aaron Fellmeth responded to my review of his book. It helps to clarify our dispute and thus advances the conversation. I offer the following brief remarks in reply.

Our most significant disagreement pertains to the book’s aim and method. In Fellmeth’s response, he suggests that I attributed too broad an ambition to the book, indicating that it was a failed effort to provide a grand reconciliation of IHRL with ethical theory. That was neither my understanding of the book, nor my criticism of it. My critique was simple. The book is not clear on a point of methodology that is central to pursuing one of its two stated aims: bridging law and moral theory in the study of IHRL. Arguing, as Fellmeth does in his response, that the book hoped only to “make some progress” (my emphasis) in that respect by “advancing the dialogue between philosophers and international lawyers” does not answer that concern. Asserting the modesty of the aim does not address the question of how it is to be achieved. The questions remain: Make progress how? Dialogue on what terms?

Fellmeth seems to admit the book’s lack of clarity on these points when he argues that the “fragmented and tenuous” relationship between IHRL and moral theory precludes methodological exactitude. This has it backwards. As I expressed in the review, it is precisely because Fellmeth recognizes that there is no grand reconciliation to be had here that clarity on method is so important. The question, given that fragmented and tenuous relationship, is how moral theory (and, indeed, what moral theory) is to illuminate the law’s form and formulation. The closest Fellmeth comes to explaining this in his response is in the following passage:

My method for bridging ethical theory with a structural analysis of IHRL on the subjects under investigation was to articulate ethical justifications for or against certain key IHRL doctrines, then critique the doctrines in light of the structural and pragmatic limitations of international law.

This, however, only raises further questions. First, if the ethical analysis is the starting point, is it not essential to provide some explanation of the ethical framework used and to justify “choices about which values should be considered integral to human dignity” (p. 285)? We agree that IHRL is not rooted in a single ethical theory, but what is the ethical theory underpinning Fellmeth’s own analysis? After all, he hopes to “enlighten the analysis of IHRL de lege ferenda,” so presumably he is not constrained by the existing normative fragmentation. Are the reflections on each paradigm simply ad hoc? If so, what are we to make of them as a whole? Alternatively, are they informed by a coherent ethical framework? If so, what is it? And, crucially, what do the answers to these questions mean for international lawyers? These questions are not demands for a grand reconciliation; they precede laying even the first brick in the bridge that Fellmeth hopes to begin to build.

Second, and perhaps more importantly, what is the interaction between the two seemingly entirely separate steps he describes in the passage cited above ((1) ethical justification and structural and (2) pragmatic critique)? What happens when the two militate in different directions? Does pragmatism always win? Ought human rights err towards apology? To take a concrete example, Fellmeth claims (both in the book and in his response) that creating a disparity between the positive rights commitments in states with “high fulfillment potential” and the positive rights commitments in states with “low fulfillment potential” is a justified “concession of sound theory to pragmatics.” Even if the practical claims hold (as noted in the review, I am not sure they hold on his own terms), on what basis do the pragmatic considerations override the importance of the regime’s normative clarity and equal recognition of persons in all states? Under what conditions would the normative considerations resist this kind of pragmatic override? If Fellmeth’s analysis is to initiate a dialogue between moral theorists and international lawyers, he needs to articulate at least the beginnings of an approach to navigating these conflicts. To be clear, I never argued in the review that moral theory and pragmatism cannot be combined. Nor is it my claim that there are easy answers to these questions. It is simply that a book seeking to bridge this divide cannot avoid them.

On a narrower set of disagreements, Fellmeth argues that I misunderstand his claims regarding duties. He addresses three lines of critique. In order to keep this brief, I’ll focus on the first, which goes to why it is important for an expanded regime of fundamental duties to be enshrined in IHRL specifically, and why it is a failing of IHRL that it is focused primarily on rights.

To put it simply, my worry in the review was that there is something peculiar about criticizing the only “rights regime” in international law for being too focused on rights and not enough on duties when the rest of the legal system of which it is part is focused almost exclusively on duties. Fellmeth dismisses that broader legal context as “irrelevant.” How so? Is the claim that IHRL should do all of the morally expressive or morally important work of international law? Why?

In his response, Fellmeth argues that “IHRL’s normatively elevated” status means that a regime of duties in that domain would be different from the existing regime of duties in international law more broadly. At stake here, he stresses, are “fundamental duties” (emphasis his). He seems to rest this on IHRL’s precedence over less normatively pressing duties in international law, but human rights give way to other international law duties in ways that call that normative priority into question (consider, for example, the issue of immunities in Germany v. Italy, DRC v. Belgium, or Jones v. UK). To be sure, human rights sometimes resist the application of other international law duties, but even then, it is not clear that this is due to fundamental normative priority, rather than the fact of fragmentation and a dualistic judicial posture (see Kadi).

Moreover, as I noted in the review, there is already a concept of normatively elevated duties in international law—jus cogens. The duties enshrined in that body of law (including a few key human rights duties, but also duties from other domains like the law on the use of force) cannot be understood as anything other than “fundamental.” It is inexplicable, then, that in the part of the book devoted to these issues, Fellmeth does not mention the concept of jus cogens once (there are a few unrelated mentions in other parts of the book). To be sure, many features of jus cogens norms are open to question or critique, but Fellmeth needs to actually offer that critique and to explain why reformulating IHRL to include fundamental duties, rather than seeking to build on the regime of fundamental duties we currently have, would solve those problems and avoid equally potent concerns.

On the specific question of the environment, my claim was not that environmental law as it stands is formulated as a regime of fundamental duties. On the contrary, I agreed with the weaknesses of international environmental law that Fellmeth identifies in his book. I simply noted that those weaknesses are the products of politics and that those political obstacles apply no less to the prospect of solving this through a reformulated IHRL regime. The point is this: even following Fellmeth’s response, I don’t know what it is for him that makes the lack of clear and normatively elevated state duties vis-à-vis the environment a defect of the formulation of IHRL, rather than a more basic defect of international law, rooted in a massive failure of collective political action.

As always, there is more to say (both on the issues above, and on other points that Fellmeth raises in his response), but to keep this brief, I will leave it at that and thank him once again for his comments.