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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 has been called the "age of human

rights" is over, at leastfor 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 the rising of

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 as a whole-

whatever its much disputed benefits for human rights

themselves-appears to have expanded and changed

international law 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 should 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. Human rights could be advanced through domestic

and regional legal systems, through the the development of

non-binding international norms, and through iterative

processes of international reporting and monitoring-a model

not unlike the Paris Climate Agreement.

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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 has been called the "age of human

rights" is over, at leastfor 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 the rising of

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 as a whole-whatever its

much disputed benefits for human rights themselves-

appears to have expanded and changed international law 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 should 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. Human rights could be

advanced through domestic and regional legal systems,

through the the development of non-binding international

norms, and through iterative processes of international

reporting and monitoring-a model not unlike the Paris

Climate Agreement.

Introduction

During the past half-century, human rights have become

central to international law. Substantive international human

rights law expanded from a small core of initial protections

after World War II to today's vast domain reaching from

foreign direct investment to climate change. With this

proliferation of norms came other, more fundamental

changes. The meaning of sovereignty purportedly shifted to

focus on the individual. The sources of international law

changed so that international law now includes as "law"

many norms, especially human rights norms, that are

routinely violated. This Article argues that even as

substantive human rights obligations continue to proliferate,

the more fundamental transformations of international law

through human rights have not fully taken hold and have

proven costly to international law as a whole. Applications of

a variety of interdisciplinary tools, from empirical measures

of the causes of war to domestic social psychology, suggest

that human rights-related changes to both sovereignty and

to the doctrine of sources tended to undermine interstate

relations and the "territorial peace," and to make it harder to

generate compliance with many norms of international law.

These costs point to the conclusion that efforts to transform

international law around human rights should be abandoned

in favor of the development of a stronger core of

international law dedicated to protecting international peace

and security rather than human rights. At a minimum, the

debate around human rights and international law should be

reframed to consider the costs of human rights to

international law as a whole.

The transformation of sovereignty and international law

through human rights has stalled across several fronts, as

described in Part I of this Article. The conceptual

reorientation of sovereignty to focus on the individual or on

humanity writ large provided-or was hoped to provide-the

basis for doctrinal innovations in international law to allow

for the coercive enforcement of international human rights

law through foreign domestic courts, secession, and the use

of force. Institutionally, the United Nations became

increasingly focused on the enforcement of international

human rights. The conceptual, doctrinal, and institutional

aspects of the human rights enforcement architecture are all

fading, however. Conceptually, traditional sovereignty is

resurgent. Institutionally, the United Nations' human rights

enforcement mechanisms appear to be largely ineffective

despite decades of reform efforts, although here the

trajectory may be more stagnation than decline. Doctrinally,

innovations such as universal jurisdiction have encountered

growing resistance and backlash. More broadly, human

rights themselves appear to be in global decline.

The flagging efforts to transform international law and

institutions around human rights raise an additional issue

addressed in Part I: the costs of that transformation for

international law. Methods of enforcing human rights

through international law as a whole have the apparent

effect of undermining the peaceful and friendly interaction of

states, which is part (although not all) of what explains the

failed efforts at transformation.1 Key doctrinal innovations in

international law, such as a lack of foreign state immunity in

human rights cases, universal jurisdiction, a human right to

democracy, remedial secession, and the responsibility to

protect, all arose out of the human rights transformation of

sovereignty. These enforcement doctrines were never widely

adopted, were often applied politically, became associated

with Western efforts to project power instead of universal

values, and undermined interstate cooperation. There may

also have been a parallel institutional development: human

rights enforcement may have contributed to polarization

within the United Nations and made it less effective overall.

Some of the doctrinal developments also undermine the

territorial security provided by international law, which may

threaten what political scientists term the "territorial peace."

Human rights did bring transformative changes to another

core feature of international law: the doctrine of sources. As

Part II of this Article describes, the effort to protect as many

human rights as possible through law led to an expansion of

the two primary sources of international law-treaties and

custom. The fruits of this labor seem clear. From military

intervention to gentrification and the Greek debt crisis, every

international legal issue today is an international human

rights issue.2

In practice, changes to the doctrine of sources have also

meant, however, that human rights norms are deemed part of

binding international law notwithstanding widespread

violations and nonconforming behavior. Violations of

international human rights law have become rampant,

ranging from failures to comply with administrative reporting

requirements to gross violations of human dignity. Again,

there is a parallel development in the United Nations. The

United Nations Security Council expanded its mandate to

include redressing and preventing human rights violations,

yet such violations continue to occur with alarming

regularity. Others have questioned whether these

developments are good for human rights, but their impact

international law as a whole has gone unexamined.3 Models

of state and individual behavior, from rational choice

theories, constructivism, organizational sociology, and social

psychology, all show that widespread violations of some

international legal rules likely make it more difficult to

enforce others. We might call this a "broken windows" theory

of international law.

The present decline of international human rights law-

however broad and durable it may be-accordingly presents

an opportunity to reframe the normative debate about

human rights and international law, as discussed in Part III.

That extensive and inconclusive debate has focused almost

entirely on whether international law is an effective way to

promote human rights. The broken windows problem, the

effect of human rights enforcement on interstate relations,

the empirical work on the "territorial peace," and problems

with polarization and credibility all demonstrate, however,

that human rights impose costs on the international legal

system. Just as human rights may benefit from being part of

an international legal system, this Article illustrates that the

system itself may be weakened through the inclusion of

human rights. Those costs suggest that international law

should become focused on a core set of stronger, more

effective norms that promote international peace and

security, not human rights. They also suggest that we should

explore with more creativity and vigor ways to advance

human rights that do not rely upon the coercive enforcement

of binding international law; proposals for doing so can draw

on the important work of human rights scholars who have

focused on domestic processes and insitutions and their

relationship to international norms.

This Article can reframe the debate around international law

and human rights, but it will not resolve it. The benefits of

international human rights law for human rights are

themselves contested, an issue that this Article discusses,

but does not seek to resolve. A second important variable

not fully explored in this Article is the extent to which human

rights can today, thanks in part to the success of the

international human rights movement, be enforced through

domestic and regional law, and soft international

commitments. This Article does not purport to resolve those

issues; it endeavors instead to show that the debate about

human rights should expand to consider the relationship

between human rights and international law as a whole.

To begin, a few clarifications about terminology:

"International human rights law" refers in this Article to

international law governing the relationship between states

and their own citizens; excluded are regional human rights

instruments and most of international criminal law, although

both fields see related developments,4 and both are noted at

various places in the Article.

The terms "decline" and the "post-human rights era," do not

mean we are at the end of human rights obligations

themselves (indeed, they are multiplying), but instead that

we have seen the end of an era: what Makau Mutua has

termed the "age of human rights" or what Louis Henkin

called the "Age of Rights" in international law.5 Temporal

baselines vary slightly from section to section, but for the

most part the decline is measured from a baseline period in

the late 1990s. In most of the doctrinal areas described here,

decline began in the middle or end of the first decade of the

twenty-first century.6 In some sections stasis is a more

accurate term than decline, and to some extent the

transformations themselves were more aspirational than on-

the-ground realities, so that perhaps the golden age was

never so golden. Nor do the terms "decline" and "post-human

rights era" preclude the possibility that international human

rights enforcement is gaining ground in discrete areas, or

that it will someday have a second golden age so that the

process is really a dialectic, not heyday and crash.

Nevertheless, contemporary political events and decades-

long stasis and decline in enforcement architecture have

come together to produce an especially difficult period for

international human rights law. The Article focuses on the

primary international legal enforcement mechanisms for

human rights and on the United Nations because they are

important to human rights, to international law, and to the

claim that sovereignty has been transformed.

Finally, this Article is about the costs of human rights to

international law as a whole. Its purpose is to advance our

overall understanding of how best to strengthen

international law while at the same time ensuring that people

everywhere enjoy lives of dignity and well-being. It builds on

the work of human rights scholars who have repeatedly

questioned the effectiveness of various international

enforcement mechanisms7 and on scholarship analyzing

how domestic politics and institutions, as well as iterative

engagement with international institutions, contribute to the

development and efficacy of human rights norms.8 This

Article provides additional reasons, beyond human rights

themselves, to explore means other than binding

international law through which human rights might be

realized. Other authors have called for creativity and for the

development of new frameworks to advance the cause of

human rights9-this Article provides additional impetus for

doing so.

I. International Human Rights: Costs to Peace and Friendly

Relations

Human rights are often viewed as a foremost achievement of

modern international law.10 The protection and promotion of

human rights are central to much of the work of the United

Nations today, a striking expansion from both the interwar

League of Nations and the immediate post-World War II

period.11 Human rights are even said to have transformed

international law itself. International law was once

understood as a discrete set of rules derived from consent of

sovereign states and designed to facilitate their peaceful

interaction.12 Today, by contrast, sovereignty and

international law purportedly derive their legitimacy from

individuals.13

Despite its ubiquity and its many successes, international

human rights law is under growing attack. To begin, scholars

question, with what appears to be increasing force and from

a variety of perspectives, how effective international law

actually is at safeguarding individual human rights;14 new

analyses have thrown into question the historical pedigree

often claimed for international human rights law, including

its "glorious, triumphalist" narrative;15 and questions persist

about the Western, imperial "civilizing mission" of the human

rights movement.16 A new study shows how the pursuit of

human rights and other aspects of liberal internationalism

undermined U.N. peacekeeping efforts.17

Second, according to many experts, human rights conditions

are also in global decline. In the past decade, internationally

protected civil and political rights have suffered a downturn

as measured by a number of states experiencing a decline in

rights protection.18 The number of countries in which

human rights are at "extreme risk" has increased from twenty

in 2008 to thirty-five in 2015.19 Although harder to measure

because most economic and social rights are framed in

relative terms,20 it appears that these kinds of rights have

also suffered a setback.21 Empirical measures of human

rights are generally contested, in part because an apparent

decline might be due to better reporting and monitoring.22 It

is clear, however, that a wide variety of observers report a

recent and serious rise in human rights violations in many of

the world's powerful and/or regionally important countries

such as China, Russia, India, Turkey, Poland, Hungary,

Venezuela, Egypt, and Philippines.23 In these countries,

power is increasingly centralized around a strong leader who

tolerates little dissent.24 Moreover, populist leaders recently

elected in Britain and the United States are openly critical of

international human rights norms.25 Citizens of mature

democracies are becoming less satisfied with their form of

government.26 Whether generally termed an "authoritarian

resurgence," or "the coming illiberal order"-the trend appears

clear.27 As Philip Alston puts it: "[t]he world as we in the

human rights movement have known it in the recent years is

no longer."28

There is a third way of considering the general state of

human rights and of international human rights law in

particular: the decline of what one might term the

"architecture" for the international legal enforcement of

human rights. That enforcement architecture is built

conceptually upon the redefinition of sovereignty as based

upon a responsibility towards individuals and their

universally acknowledged human rights. This conceptual

foundation provided the basis for doctrinal innovations in

international law designed to facilitate the coercive

enforcement of a variety of human rights norms through

foreign domestic courts, secession, and the use of force.

Institutionally, all branches of the United Nations became

increasingly focused on the enforcement of human rights

law as central to their mission, including the Security

Council, which is nominally charged instead with the

protection of international peace and security.

The doctrinal and institutional aspects of the human rights

enforcement architecture have entered a period of setbacks

and retrenchment, which is the focus of the rest of Part I.

More important than the specifics of each doctrine, or the

possibility that one or more may see a resurgence (or never

had a heyday at all), is the broader pattern and the views of

states as a whole. This Part shows that states lack a serious

commitment to the enforcement of human rights as

international law-such enforcement has often been

perceived as selective and political and has imposed costs

on the peaceful interaction of states.

A. Doctrinal Innovations and Their Costs

The human rights-driven transformation of international law

and sovereignty has generated specific doctrinal changes-

including limitations on state immunity, universal

jurisdiction, the right to democracy, the right to remedial

secession, and humanitarian intervention/Responsibility to

Protect (R2P).29 These innovations limit the protections

afforded to sovereigns by doctrines such as immunity,

jurisdiction, the sovereign equality of states, and prohibitions

on the use of force. The changes are based on the

conceptual redefinition of sovereignty (or of international law

itself) as legitimate only to the extent it reflects popular

choice and to the extent it protects and promotes individual

human rights. The traditional understanding of sovereignty,

by contrast, affords all sovereign states exclusive control

over their territory and includes the "principles of sovereign

immunity, domestic jurisdiction, and nonintervention."30 The

move from the traditional to the human rights-based

understanding of sovereignty is described in different ways

using different terminology, and it is often seen as part of a

broader diminution in the significance of the nation-state

itself in both international law and politics.31 Whatever the

terminology and however sweeping the global changes, all

acknowledge the shift in sovereignty and international law

towards the individual and the protection of people.32

The five doctrinal innovations, which were advanced with

most enthusiasm in a period from the early 1990s to the mid-

2000s, are all experiencing decline or stasis. They all also

appear to harm interstate relations-or at least states say that

they do. A right to remedial secession, for example, would

permit oppressed groups who are the victims of extreme

human rights abuses to use violence and break apart from

the state to which they belong. The cost to international

peace is part of the doctrine itself. In other respects,

however, the doctrines generate indirect costs for

international relations, such as problems with selective

enforcement or the diminution of the principle of sovereign

equality of states. These problems increase the potential for

international friction and thus increase the possibility of

instability or even military conflict, as illustrated by the

actual efforts to implement all five doctrinal innovations.

1. Immunity.-Immunity is a long-standing, classic doctrine of

public international law based on "the sovereign equality of

states" and described as "one of the clearest examples of the

'statist' nature of international law."33 Beginning in the late

1990s, immunity appeared to be of declining application in

cases alleging violations of international human rights law. A

reversal of course began in early 2010, and today it seems

well-established that immunity applies in human rights

cases just as it does in other litigation against foreign states

or their officials.

International law provides several kinds of immunity to

states and the individuals who work on their behalf. The

most important, at least in terms of economic impact, is the

immunity states themselves enjoy from suit in foreign

domestic courts, a form of immunity that also extends to

some individual government officials.34 State immunity has

exceptions, including one for litigation related to a state's

commercial activity.35 The purpose of state immunity is to

ensure the peaceful coexistence of states and to minimize

interstate friction. As a leading scholar and judge put the

point: "[t]here is no more important way to avoid conflict than

by providing clear norms as to which state can exercise

authority over whom, and in what circumstances."36

Scholars and activists have long argued that state immunity

should not apply in suits or prosecutions alleging human

rights violations.37 At the state-to-state level, efforts to

develop such an exception never gained much traction.38

But around the turn of the twenty-first century, developments

in a handful of domestic and regional courts appeared to

support the claim that an exception was in the making. Most

prominently, the House of Lords denied immunity to Augusto

Pinochet, the former dictator of Chile.39 The decision

cleared the way for the extradition of Pinochet to Spain for

trial on criminal charges of torture committed during his rule,

although the U.K. government ultimately refused to send him

to Spain for health reasons.40 The Law Lords offered a

variety of rationales for their ruling, including some which

would apply broadly to claims of human rights violations

against states.41 Shortly thereafter, the European Court of

Human Rights held in a nine-to-eight decision that

international law afforded Kuwait immunity from a suit in

English courts alleging torture.42 But the dissenters, and

many scholars, reasoned that because torture violates jus

cogens norms, a state which allegedly committed torture

"cannot invoke hierarchically lower rules (in this case, those

on State immunity) to avoid the consequences of the

illegality of its actions."43

Cases from Italy and Greece pointed in the same direction, at

least initially. The most significant, Ferrini v. Germany,44

denied immunity to Germany in a civil case alleging forced

labor during World War II.45 In response, Germany sued Italy

before the International Court of Justice alleging that the

Italian judgments violated customary international law. 46

The ICJ held for Germany. Its decision focused in part on the

purpose and values served by state immunity, including the

"sovereign equality of States, . . . one of the fundamental

principles of the international legal order."47 On the heels of

the Germany v. Italy decision, the European Court of Human

Rights held in Jones v. United Kingdom48 that customary

international law afforded immunity to an individual Saudi

official who allegedly committed torture and who was sued

in a civil suit in the U.K.49

As international law stands today, immunity applies in suits

alleging human rights violations as it does in other cases.

The reversal of momentum is due in part to interstate friction

caused by domestic court cases against foreign individuals

accused of human rights violations.50 There continues to be

a significant constituency seeking to limit immunity in

human rights cases,51 national court decisions in Italy have

found the Germany v. Italy decision inconsistent with the

Italian legal order,52 and a South African court recently

concluded that sitting heads of state could be prosecuted in

South Africa for some crimes, although such prosecutions

would violate customary international law.53 The issue has

certainly not gone away. But as a "fundamental principle of

the international legal order," designed to facilitate the

peaceful coexistence of states, the international law of

immunity is of ongoing significance.54

2. Universal Jurisdiction.-Universal jurisdiction was another

doctrinal facet of the changing definition of sovereignty.55 It,

too, began to decline about a decade ago and today appears

to be in a period of stasis at best.56 Universal jurisdiction

allows any state to exercise prescriptive jurisdiction and

apply its laws, even if there is no traditional basis (such as

territory or nationality) for doing so.57 Universal jurisdiction

seemed like a promising way to ensure the prosecution of,

and civil remedies against, many individuals who violated

basic human rights norms such as torture and genocide.58

In practice, however, the doctrine has-like other methods of

enforcing international human rights-been applied selectively

based on political calculations, leading to international

friction.

Universal jurisdiction cases that go forward are generally

those brought against defendants from weak, poor states or

states that have been vilified by the world community as a

whole-the former Yugoslavia and Rwanda serve as

examples.59 In many universal jurisdiction cases, the

executive branch (including prosecutors) of the forum state

plays an important role in case selection or has the power to

veto cases altogether.60 It often exercises its discretion to

have cases dismissed when the defendant is from a

powerful country or the case would otherwise impose

foreign policy costs on the forum state.61

A survey of universal jurisdiction cases against Chinese

nationals, for example, shows numerous potential cases

arising out of severe human rights violations in Tibet and

against the Falun Gong.62 In case after case, however,

prosecutors dismissed the claims or, failing that, legislatures

passed new laws to ensure that Chinese defendants would

not stand trial.63 German litigation against Donald Rumsfeld

on allegations of torture has similarly gone nowhere, again

because of the intervention or control of German

government officials.64 Litigation in Spain against U.S.

officials for conduct in Guantanamo has fared no better.65

The disproportionate focus on African defendants led to

complaints from individual African countries and from the

African Union. 66 The Assembly of the African Union noted

that the "abuse" of universal jurisdiction could "endanger

[International law, order and security" and declared that "[t]he

political nature and abuse of the principle of universal

jurisdiction by judges from some non-African States against

African leaders, particularly Rwanda, is a clear violation of

the sovereignty and territorial integrity of these States."67

Putting aside whether these criticisms are valid, the point

here is that, as with other doctrinal innovations, the selective

application of universal jurisdiction has led to political

friction and the doctrine itself is in apparent retreat.68

International human rights litigation in the United States

followed a similar course. The Second Circuit's 1980

decision in Filartiga v. Pena-Irala69 opened the door for a

wide range of human rights cases to go forward under the

Alien Tort Statute (ATS). The ATS became the primary

vehicle for expansive human rights litigation in the United

States.70 It also attracted worldwide attention and

generated a cottage industry of litigators and scholars.71

Jurisdictionally, the extraterritorial application of the statute

was said to rest on universal civil jurisdiction.72 But the

Supreme Court substantially curtailed ATS litigation in Kiobel

v. Royal Dutch Petroleum Co., which applied the presumption

against extraterritorial application of statutes to the ATS.73

The Court justified its decision in part by noting that if the

ATS provides a "cause of action for conduct occurring in the

territory of another sovereign," it could result in "diplomatic

strife."74 In support, the Court cited to "[r]ecent experience"

in the form of lower court ATS litigations, which drew

objections from Canada, Germany, Indonesia, Papua New

Guinea, South Africa, Switzerland, and the United

Kingdom.75

The European countries that had been at the forefront of the

universal jurisdiction movement have since amended their

statutes to limit the doctrine's application, and it appears

that the universal jurisdiction complaints have decreased so

that the doctrine is on the decline.76 On the other hand,

universal jurisdiction may be reinvigorated through European

cases against Syrians accused of torture and other crimes

during that country's brutal civil war.77 Even if successful,

however, such prosecutions are likely to fuel, not quell,

complaints that universal jurisdiction is applied selectively.

3. Right to Democracy.-A third doctrinal change brought by

human rights was a purported right to democracy. This

doctrine, too, was designed to make inroads in the

protections afforded to sovereigns by international law. After

a heyday in the immediate post-Cold War period, the

purported right to democracy was largely abandoned by the

first decade of the new century.

The breakup of the Soviet Union generated enthusiasm for

democratic governance around the world.78 Election-

monitoring institutions and initiatives grew quickly in

countries from Namibia to Nicaragua to Cambodia and

Bulgaria.79 The ouster of democratically elected Jean-

Bertrand Aristide resulted in unprecedented condemnation

by the Organization of American States and the U.N. General

Assembly, both of which suggested that governmental

authority is only legitimate to the extent it is a function of

popular sovereignty in the form of democracy.80 A series of

other events unfolded over the decades that followed,

including the restoration of Aristide to power through the use

of force authorized by the U.N. Security Council,81 which

made clear a growing connection between political

legitimacy and democratic governance. The support of

"democratic institutions" and "democracy promotion"82

became an important mission of the United Nations and

other regional and international organizations.83

A wave of scholarly enthusiasm for the emerging right to

democratic governance ensued, especially among U.S.

scholars.84 Based in part on international and state practice,

the right also found support in regional treaty regimes, the

International Covenant on Civil and Political Rights (which

affords individuals a right to vote), and Article 21 of the

Universal Declaration of Human Rights.85 Article 21 protects

the right of individuals to participate in "periodic and genuine

elections," which express the will of the people and further

provides that "[t]he will of the people shall be the basis for

the authority of government."86 Thus, states' legitimate

claim to the protections of "sovereignty" on the international

level arguably became dependent upon an internal

democratic legal order.87 Understanding legitimate

sovereign authority as necessarily based upon a democratic

order led many to conclude that military and other

intervention in foreign states is not prohibited by

international law when used to restore or create

democracy.88 The costs to international peace and security

are clear. To be sure, scholars offered prudential reasons for

states to be cautious when using "intrusive political,

economic, and military measures" to "implement

democratization in a recalcitrant State," but such measures

could "now be included on the menu of lawful options."89

Today, however, international practice-and even academic

scholarship-has for some time retreated from the position

that international law requires states to have a "democratic

origin."90 The retreat can be attributed to several factors.

Like universal jurisdiction and human rights exceptions to

immunity, a right to democracy caused interstate friction.

African nations protested the emphasis on democracy in the

European Union's trade and development policy.91 China's

(and to some extent Russia's) rise in power has also

weakened the right to democracy, as China has rejected any

purported requirement of international law that it or other

states have a government that is democratic in origin.92

More generally, democracy is in a worldwide decline.93

Academics and other critics have increasingly questioned

the purported benefits of democratic governance, especially

the claim that it leads to peace, the protection of other

human rights, and economic prosperity.94 Finally, the

promotion of and purported right to democracy has been

used selectively to advance other foreign policy agendas of

Western countries, especially the United States.95

4. Remedial Secession.-International human rights led to a

fourth purported doctrinal change in international law: the

emergence of a right to "remedial secession." Like the others,

this doctrine experienced a surge in academic enthusiasm in

the 1990s based on some indicia of state practice.

Contemporary arguments about secession are closely linked

to the "self-determination" of "peoples," a right protected by

the U.N. Charter,96 by the International Covenant on Civil and

Political Rights,97 by the International Covenant on

Economic, Social and Cultural Rights,98 and by a variety of

other human rights instruments.99 That there is a right to

self-determination for peoples subjected to colonial rule is

now well-settled.100 The right to self-determination may

also afford "peoples"-that is, groups united by some

combination of race, ethnicity, territorial affiliation, language,

and religion- a right to political representation within their

state.101 If the state does not afford peoples internal self-

determination, the state is arguably not fully sovereign,

giving rise to a right of unilateral external secession or

"remedial" secession.102 As Ruti Teitel puts it, the "values of

stability of statehood" that had been "settled since the

postwar period-entrenched in the UN Charter, and so on-are

now in play with other values, such as those of the

protection of persons and peoples, e.g., self-determination as

a remedy for oppression."103

Teitel's argument is part of an important strand of

philosophical work on international law and its relationship

to human rights.104 The right to remedial self-determination

follows from the beginning premise that sovereignty and

international law are only legitimate to the extent they

represent and protect the individual; here, the individual's

rights and well-being are reflected in a group-based or

collective right to self-determination.

The difficulty with an international right to violent or

"remedial" secession is that it threatens to increase armed

conflicts and war, and to encourage the break-up of states

into ever-smaller units. Descriptions of a right to remedial

secession implicitly recognize these dangers by limiting it to

situations in which peoples in question have suffered

"extreme abuses" as in Teitel's formulation of the argument.

In one sense, it is difficult to see the basis for such a

limitation. To the extent that a state has inflicted "very bad"

(but not "extreme") human rights abuses, the state is not

acting as a legitimate sovereign, so that there is no

+

International Law in the Post- Human Rights Era Wuerth, Ingrid.

Texas Law ReviewTexas Law Review; Austin; Austin Vol. 96, Iss. 2, (2017): 279-

349.

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Veebel, Viljar; Markus, Raul. Baltic Journal of Law & PoliticsBaltic Journal of Law & Politics WarsawWarsaw Vol. 8, Iss. 1, (2015): 165-194.

Anonymous. The EconomistThe Economist; London; London (Jun 9, 2012): 54-55.

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