A Philosophical Foundation for International Human Rights Law?

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A review of Aaron Xavier Fellmeth, Paradigms of International Human Rights Law (Oxford University Press, 2016).

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Aaron Fellmeth takes on two important tasks in this book. First, he seeks to “bridg[e] moral theory with legal theory” in the study of international human rights law (IHRL) (p. 2). Second, he aims to “begin a structural critique” of IHRL’s “form and formulation” (as distinct from its substantive focus or its institutional framework) (pp. 1-2).

The goal of bridging the divide between moral philosophers and international lawyers is motivated in part by the observation that IHRL is “built upon a foundation of moral beliefs,” such that it would be “as fruitless to analyze IHRL without recourse to ethical theory as it would be to analyze international trade law without reference to economic theory” (p. 2) Fellmeth is right about this. IHRL is among the domains of law that are morally expressive, and not simply coordinative in function. Paradigms of International Human Rights Law is commendable not just for recognizing the relevance of moral theory in understanding such a regime, but for engaging genuinely with both the law and the philosophical literature in its effort to connect the two.

However, interdisciplinary work of this kind requires methodological exactitude. What precisely is the presumed interaction between law and moral theory? What, if any, is the significance of political and institutional reality in framing or qualifying the analysis? How, in short, is the bridge to be built? Paradigms does not answer these questions. In some passages, Fellmeth dismisses “practical objection(s)” as contaminating pure normative theory (pp. 11, 30, 153). Later, however, the “practical consequences” of alternative paradigms play a central role in the argument, and this is in fact touted as a key contribution of the book, despite the lack of empirical research or engagement with the empirical literature (p. 285). Elsewhere, Fellmeth engages in standard positivist methods, emphasizing the importance of reading law consistent with “the intent of the parties” and “subsequent international practice,” (p. 251) while expressing skepticism of “aggressive” interpretive deviation from the text, regardless of the moral reasons for preferring such an interpretation (p.155). In yet other passages, he seeks to get into the minds of judges and expose “the real explanation” for a particular line of case law (p.183).

The problem is not that Paradigms uses each of these modes of analysis. The problem is that it is not clear on how they are intended to work together. I suspect that this is derivative of a more fundamental opacity around the basic objective of the bridge-building exercise. As Fellmeth accepts, IHRL was not the product of consensus on a single, “clearly articulated philosophical theory” (p. 2). And, notably, he admits neglecting to justify his “choices about which values should be considered integral to human dignity” (p. 285). But what, then, does it mean to build a bridge between the law and moral philosophy here? Should we expect there to be a morally coherent account of the regime today, despite its origins? In reimagining a reformed regime rooted in a more coherent moral framework, what are the political, legal, or philosophical constraints on that lex ferenda? It seems to me that the book cannot deliver on its first promise without strong answers to these questions

Fellmeth’s second objective is to provide a structural critique of the form and formulation of IHRL. He focuses in particular on three elements: IHRL’s framing around rights, rather than duties, the unique role of non-discrimination rights in IHRL, and the distinction between positive and negative rights. Consider these in turn.

Fellmeth argues that shifting from the extant regime’s formulation around fundamental rights to a regime of fundamental state duties would matter in several ways. Tonally, he argues, to find a breach of duty is to condemn and lay the ground for punishment, whereas to find a rights violation is to demand remedy. On the matter of allocating responsibility, he claims, a shift to state duties would clarify which states bear which duties, as even well-articulated rights are often ambiguous on questions of vicarious or shared responsibility for their breach. Finally, he contends, such a shift would cover duties that lack associated rights-holders, such as duties to animals, humankind, or future generations.

These claims are not altogether convincing. The problem of ambiguity on shared responsibility in international law is hardly limited to rights-focused regimes (see, for example, here). Moreover, its textual form notwithstanding, IHRL is in many respects already a duty-based system. In most human rights treaty regimes, the central processes of committee monitoring, condemnation, encouragement, and capacity building are focused not on specific rights-holders, but on states, for whom submitting to supranational review of individual complaints is an optional add-on. Even when individual complaints are applicable, much of the court’s or committee’s analysis tends to focus not on the harm to, or infringement of, the individual, but on whether the state did its duty, by exercising due diligence to prevent and protect (even if unsuccessfully), or using available resources to fulfill (even if that was not enough). And IHRL duties are not always tied to identifiable rights-holders. Consider, for example, states’ duty under CEDAW article 5(a) “to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.”

Even if none of this were the case, the more fundamental peculiarity of this first part of the book is that international law does not lack duty-based regimes. On the contrary, IHRL aside, it is already framed clearly and overwhelmingly in terms of duties, including fundamental duties erga omnes and jus cogens. Fellmeth argues that these existing duty frameworks are not the same, insisting that environmental law is “voluntary and mutable” in a way that a fundamental duty to the environment would not be (p. 101). But that response is misleading. The mentioned weaknesses in environmental law are the product of the politics around the issue, not “the neglect of a fundamental duties paradigm” (p. 283). It is hard to imagine that shifting to the latter frame would yield a breakthrough.

Still in the first part, Paradigms also considers the global duties of natural and legal persons other than the state. Having endorsed a broad range of fundamental moral duties between individuals, Fellmeth contends that practical considerations preclude translating them into fundamental legal duties any broader than existing international criminal law. Specifically, he argues, individual violations outside that category lack the breadth of impact of a state violation and a fully developed regime of individual legal duties would present overwhelming logistical challenges. (pp. 74-75). If he is right that these are the best reasons against a broader regime of individual duties in international law, it is notable that they are far less potent when applied to multi-national businesses. (p. 78). It is particularly disappointing, then, that Fellmeth avoids taking a stance on whether international law does or should impose fundamental duties on such entities, explaining simply that the question has already “received a great deal of quite competent discussion in the legal literature” (p. 79).

The book’s analysis of the second paradigm is stronger. The focus on non-discrimination as an issue of form and formulation (rather than as a substantive human right like any other) is rooted in its claimed unique features among IHRL norms: non-discrimination is defined by an “abstract,” rather than “substantive” human interest; it intersects with almost any substantive human rights violation, while also extending to substantive areas otherwise outside of IHRL’s reach; it involves a connection between group and individual interests; and it is the focal point of egalitarianism in IHRL (pp. 103-112).

For the most part, this is persuasive, and Fellmeth’s framework for understanding the right’s internal dimension of variation (particularly regarding prohibited grounds of discrimination and interests protected from it) is useful. Also significant is his discussion of non-discrimination’s unique (and thus far, he claims, incoherent) role in being applied in conjunction with other rights claims. Fellmeth is right to argue that the different ways of thinking about this interaction matter on multiple levels, from shaping the contours of rights, to foregrounding future trajectories of jurisprudence, and defining the available legislative and other responses on the part of the respondent state. For that reason, he is right that IHRL as a whole would benefit from a more coherent theory of how to approach such situations. However, the question is what this would entail. His own proposal that the two forms of rights “can be combined to extend legal protection synergistically beyond what either kind could accomplish alone” is inadequately theorized and lacks the kind of elaboration necessary to clarify what it would mean in concrete cases (p. 209).

In the last of the book’s three parts, Paradigms seeks to bring greater precision and clarity to the distinction between positive and negative rights. Much of this involves elaborating the standard respect-protect-fulfill framework. More interestingly, Fellmeth argues that the case for positive duties (to “protect” or “fulfill” a particular human interest) depends (or ought to depend) in practice “on the environment in the implementing state and the world public order generally” (p. 276). Thus, he contends, in states “in which the government itself remains a primary threat to human rights” and resources are low, framing rights as positive could doom human rights generally to aspirational status and thus undermine even negative rights provisions (p. 276). As such, he argues, practical exigencies in such situations may override the ethical imperative to include positive duties, even though this would create disparities across states and regions.

Needless to say, this is a provocative claim. It is also an odd one. As Fellmeth notes, governments in such states have a strong incentive to prefer positive rights framing, both to dilute their responsibility by making rights aspirational, and to turn the spotlight onto the duty of wealthy, developed states to assist in the fulfillment of rights where host states’ resources are limited (pp. 260-61). In other words, those states for which Fellmeth advocates eschewing positive rights framing are those most likely to draft or ratify rights documents with a positive framing. If that is right, what role is pragmatism playing here? Put another way, if the proposal has little chance of actual implementation, in what sense is it really a practical “concession to present realities,” or an operational deviation from the “desirable myth system of universally binding positive rights” (pp. 276, 282)?

A final observation may be clear from the above discussion. Disconnected arguments and unexplained shifts in methodological emphasis across the three parts of the book contribute to the sense that this is really three separate works united by a common general theme, but little else. That sense is especially sharp in passages in which synergy is inexplicably eschewed. For example, the (perfectly plausible) rejection in Part II of the notion that non-discrimination doctrine should be used to “punish morally repugnant purposive action,” rather than to “prevent or rectify the harm,” (p. 178) is offered with no attempt to link it to the argument to the discussion in Part I of fundamental duties and condemnatory tone. Similarly, the discussion in Part II of the source of discriminatory threat as a core contextual factor in discrimination analysis proceeds with no detailed effort to link it to the principles of positive rights in Part III, or the discussion of fundamental business duties in Part I. And the discussion of states’ shared positive responsibility to fulfill basic rights in Part III (pp. 263-265) is not linked to the discussion of the utility of fundamental duties (as opposed to rights) in solving complicity challenges in Part I. In short, the methodological fragmentation described at the start of this review is mirrored by a structural fragmentation across the book’s three parts (and the paradigms that are their focus). The result is a work that offers a series of interesting insights, while falling short of its core objectives and struggling to convince as a whole.