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International Law in the Post-Human Rights Era

69 Pages Posted: 7 Apr 2017 Last revised: 3 Sep 2017

Ingrid B. Wuerth

Vanderbilt University - Law School

Date Written: April 6, 2017

Abstract

International law is in a period of transition. After World War II, but especially since the 1980s, human rights expanded to almost every corner of international law. In doing so, they changed core features of international law itself, including the definition of sovereignty and the sources of international legal rules. But what might be termed the “golden-age” of international human rights law is over, at least for now. Whether measured in terms of the increasing number of authoritarian governments, the decline in international human rights enforcement architecture such as the Responsibility to Protect and the Alien Tort Statute, the growing power of China and Russia over the content of international law, or rising nationalism and populism, international human rights law is in retreat.

The decline offers an opportunity to consider how human rights changed, or purported to change, international law and how international law as a whole can be made more effective in a post-human rights era. This article is the first to argue that international human rights law – whatever its much disputed benefits for human rights themselves – appears to have expanded and changed international law itself in ways that have made it weaker, less likely to generate compliance, and more likely to produce interstate friction and conflict. The debate around international law and human rights needs to be reframed to consider these costs and to evaluate whether international law, including the work of the United Nations, should focus on a stronger, more limited core of international legal norms that protects international peace and security, not human rights.

Keywords: human rights, international law, United Nations, universal jurisdiction, immunity, secession, broken windows, responsibility to protect, China, Russia, territorial disputes

JEL Classification: K33

Suggested Citation

Wuerth, Ingrid B., International Law in the Post-Human Rights Era (April 6, 2017). Texas Law Review, Vol. 96, 2017, Forthcoming; Vanderbilt Law Research Paper No. 17-28. Available at SSRN: https://ssrn.com/abstract=2947771

Ingrid B. Wuerth (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States

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