Human rights can’t undermine international law – they’ve cherrypicked maximalist conjecture

C. THE VICTORY OF THE MILDLY REFORMIST STRAND OF INTERNATIONAL HUMAN RIGHTS LAW It is difficult, then, to argue both that human rights are in decline and that they are still—even in their mildly defeated form—that problematic. A better view might be to see them instead to be part of a moderate and dialectic process of reform of international law, one that has slightly shifted its center of gravity without fundamentally undermining it. It seems unfair to the human rights movement to simultaneously accuse it of being less forceful than it could be as a result of having lost some of the battles it waged, blame it for having lost these battles, and blame it for having dared to challenge and possibly continue to unsuccessfully fully challenge international law. It also seems uncharitable to add that the punishment for failing to do all of these things should be that human rights should cease to claim that they are part of international law, having not done enough to deserve that label. One could of course argue that even the moderate encroachments of human rights on international law that have occurred are a step too far. There are certainly some states—Venezuela, Zimbabwe, Cuba—that have strongly argued for even less interference with sovereign affairs; some foreign service lawyers are concerned that former heads of states might lose their immunities for international crimes. But I doubt Professor Wuerth is arguing that we should roll back even those modest challenges as unduly upsetting the delicate balance of international law, and I would be curious as to how she would propose to do so given their by now unmistakable international legal status. If all we are left with are very minor victories, then, I think it would be unfair to deny the international human rights movement, even those. One intriguing possibility is that the international human rights law movement has itself all along been substantially about international law, rather than just about human rights. What is interesting in that light is how its mainstream, at least, has been very cautious to not upset the Westphalian system. Indeed, perhaps what is revealing is not that human rights concepts have fundamentally interfered with the proper order of international law but that, as others and myself have argued, they have quite relentlessly comforted its broad contours. Not all interpretations of human rights are maximalist and corrosive of sovereignty, therefore, and some could be faulted for not being at all. As Professor Wuerth points out, it is scholars of remedial secession who seem to define the rights restrictively in the hope of making it palatable to the international legal order. In other words, far from setting out to upset the international legal order, many international human rights lawyers and thinkers seem bent on an agenda of suppleness and docility. It is ironic, then, that even that seems too much and that international human rights law is asked to, essentially, make itself disappear.