Exploring the Limits of International Human Rights Law

I have just posted on SSRN a symposium piece titled Exploring the Limits of International Human Rights Law, a comment to the book “The Limits of International Law,” by Jack Goldsmith and Eric Posner, which I discussed earlier here and here. My essay argues that the value of the rational choice/instrumentalist approach that Goldsmith and Posner set out as their unifying explanation of international law is greatly diminished when applied to international human rights law. Here is the precis:

In The Limits of International Law, Jack Goldsmith and Eric Posner posit that “[i]nternational law emerges from states acting rationally to maximize their interests given their perceptions of the interests of other states and the distribution of state power”. There is value in applying this instrumentalist, rational choice twist on traditional realism to a range of international coordination and cooperation problems. But the theory reaches its limits where Goldsmith and Posner attempt to extend it to the international human rights system. In the last decade, there has been a shift toward examination of human rights norm compliance from a range of alternative and interdisciplinary perspectives, including transnational legal process, governmental networks theory, liberal democratic theory, and constructivism. While the rational choice theory in Limits may be useful for understanding political trends in international human rights, these additional theories – which Goldsmith and Posner either ignore or dismiss – are necessary to a more complete understanding of how law affects state behavior.

This essay argues that a hybrid approach that draws from a range of theoretical approaches offers a more useful account of the complexities of human rights behavior than the instrumentalist approach of Limits. First, the book largely ignores the effect of international human rights legal institutions (e.g., ad hoc and permanent courts) on a range of state and individual behavior. Second, by focusing almost exclusively on interstate behavior and international political institutions, Goldsmith and Posner fail to examine the domestic dimension of human rights compliance. Third, by minimizing the role of individuals, NGOs, corporations, and other non-state actors, the book paints a distorted picture of the current processes through which human rights norms are elaborated and enforced. Fourth, the book draws overly broad conclusions from limited empirical data about the effect of legalization on human rights behavior. Finally, the instrumentalist thesis of Limits is weakened by the explicit and implicit normative claims of the book, i.e., that states should not act on the basis of moral values or the basis of perceived cosmopolitan duties and that international law should not constrain state behavior. Indeed, if law is an instrument of preference as Goldsmith and Posner claim, it follows that law can result from a preference for the universal observation and protection of human rights.

If you have any comments or critiques, please feel free to email me.