Paradigms of International Human Rights Law.

Author:Duijzentkunst, Bart L. Smit
Position:Book review

Paradigms of International Human Rights Law. By Aaron Xavier Fellmeth. Oxford, New York: Oxford University Press, 2016. Pp. xiv, 286. Index. $90.

Lawyers writing about international human rights law (IHRL) must walk a thin line. To remain relevant and intelligible to their practice-minded peers, they must steer clear from too theoretical a treatment of the historical, political, and moral questions that their topic raises. Yet to write coherently about human rights in a way that surpasses mere description of legal practice, one requires just such a theoretical approach. A quick glance at the ever-increasing lirerature in the field suggests that human rights wtiters usually deal with this dilemma by choosing one of two routes. Books on practice typically deal with a particular righr, regime, or region; books on theory often seek to define or justify the very concept of human rights. Some authors manage to bridge the gap by examining the theoretical and practical perspectives of a particular problem in human rights law. (1) Still, books focused on the practice or jurisprudence of human rights can seem dogmatic, while those dealing with its theory esoteric. Few lawyers dare to combine a serious theoretical analysis of human rights with that of its practice in a single work. Aaron Fellmeth, a professor of law and the Willard H. Pedrick Distinguished Research Scholar at Sandra Day O'Connor College of Law, Arizona State University, is one of those few.

He faces a daunting task, however, made yet more formidable by the goals that he sets for himself in the first few pages of his book. The introduction promises that the book will "begin a structural critique of some of [the] systemic features of IHRL" (p. 1); "to make some progress in bridging moral theory with legal theory in the human rights field" (p. 2); and even attempt an "evaluation and proposal of moral justifications for the main structural aspects of IHRL..." (p. 5). Fortunately, Fellmeth does not try to do all of this at once. He breaks up the book into three parts that address different "paradigms" of IHRL, each chosen because it "undetgirds the fundamental assumptions and beliefs of international lawyers... about how IHRL does, can, and should operate to protect and promote human dignity" (p. 5). Part One focuses on "human rights and fundamental duties"; Part Two addresses "non-discrimination and substantive right claiming paradigms"; and Part Three deals with the distinction between "negative and positive human rights." Fellmeth is careful to stress that he does not aim for a comprehensive theory of IHRL.

In Part One, Fellmeth explores the concept of "fundamental duties" as an alternative way to frame human rights issues. He first identifies a number of international human rights instruments that use the "duty" vernacular and impose individual duties toward a range of beneficiaries, such as other individuals, groups, mankind as a whole, oneself, or the natural environment. This analysis demonstrates, in Fellmeth's view, that individuals already undertake a plethora of moral and legal duties that operate horizontally, i.e. between...

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