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 literature in the field suggests that human rights writers usually deal with this dilemma by choosing one of two routes. Books on practice typically deal with a particular right, 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.Footnote 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 “undergirds 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 individuals and groups, rather than vertically, namely between a state and a non-state entity. “It is therefore not a tremendous conceptual leap to add to the mix individual and corporate international legal duties with regard to fundamental values,” he adds (p. 60). Having said that, Fellmeth refrains from developing a theory that would embed “universal individual duties,” i.e. duties that individuals hold toward each other, into IHRL. He first suggests that duties, rather than replacing rights, could provide “complementary or contingent support for state action” and “might exert some psychological and cultural influence to restrain” human rights infringements (pp. 66–67). Yet after surveying objections to the duty paradigm (e.g. that duties are unnecessary, would undermine human rights, are too indeterminate, or do not fit within public international law), Fellmeth acknowledges, with some disappointment, that “international legal recognition of direct individual duties would contribute very little towards the progressive realization of a world public order based on dignity” (p. 77, emphasis in original). Instead, the main normative advantage of the duty paradigm lies in its application to states, according to Fellmeth. His overall argument, most concisely formulated in the book's epilogue, is that “fundamental duties capture community values in a way for which a rights paradigm is manifestly ill-suited” and that their neglect “sacrifices some critical public policy goals” (p. 283). On the one hand, framing human rights norms as duties aids in the identification of the state as their bearer and helps clarify the conduct expected of the state, according to Fellmeth. On the other hand, the duty paradigm allows public policy to go beyond the interests of an individual right holder; it enables states to take on duties with regard to a wide variety of causes, such as animals, future generations, and the natural environment—something that a rights paradigm might not be able to achieve.

Fellmeth's conclusion is fair but not new: the limited functionality of the rights paradigm is central to the communitarian critique of the liberal view of human rights.Footnote ² Moreover, it raises questions regarding what human rights are, and what they are for. Simply put: if human rights serve human dignity, as Fellmeth claims in the opening pages of his book, why should IHRL take into account the interests of animals or the environment? There may be important moral or policy reasons why states should consider these interests, but that does not mean they need to be protected through the language of human rights. Fellmeth seems to acknowledge that he is leaving the human rights universe by suggesting that the fundamental state duty paradigm “need not be grounded in dignity” but “can instead be grounded in less metaphysically contentious reasons, such as interests or utility” (p. 80). Yet he continues to assess the human rights regime on the basis of its potential to address all possible public policy concerns. Its obvious inability to do so demonstrates perhaps less the failure of the human rights paradigm than its natural limitations as a legal tool for social change, and the disproportionate expectations that human rights lawyers often levy onto the regime.

The second part of the book sheds an interesting new light on the role of non-discrimination in IHRL. Much writing treats the principle as simply another human right. Fellmeth, however, argues that it constitutes a distinct “claiming paradigm” from that of substantive rights, i.e. one that offers an alternative way to frame human rights claims. While substantive rights typically set absolute standards, are universally applicable, and protect a particular interest, non-discrimination rights are comparative, context-specific, and potentially apply to any interest. The interpretation and application of substantive rights often requires political theorizing to identify relevant interests and the appropriate modes of their protection. In contrast, non-discrimination rights tend to be neutral as to their content and rely on their context to be substantiated. Often these paradigms are interchangeable, but Fellmeth argues convincingly that one is sometimes more suitable than the other. For example, a state granting tax privileges to one religious community but not to another may be respecting the freedom of religion while violating the principle of non-discrimination.Footnote ³ In other cases, however, a non-discrimination right may lead to too broad a claim, making it a “super-right” (p. 205) that turns inconsequential distinctions into human rights violations. To refine the non-discrimination paradigm and help determine its appropriate application, Fellmeth identifies and discusses five factors that play a role in non-discrimination analysis: (1) the prohibited grounds of discrimination; (2) the interest protected; (3) the consequences of discriminatory treatment; (4) the source of the threat; and (5) whether there was an intent to discriminate. His analysis in these chapters is refreshing, thorough, and insightful, with great potential for practical application. A more thorough discussion of the nexus between human dignity—the purported foundation of human rights—and the principle of equality might have provided an interesting bridge with the first part of the book, but Fellmeth offers enough theory for the reader not to miss it.

The book's third part again challenges conventional wisdom, this time concerning the distinction between negative and positive rights. Traditionally, negative rights require states to refrain from action, while positive rights demand state interference in some social matter. Fellmeth points out that any right, whether it is phrased in positive or negative terms, might require the state to act. Accordingly, this cannot be the reason for the distinction. Instead, he argues that the negative or positive character of a right is determined by “the source and nature of the threat” (p. 224). In Fellmeth's view, negative rights protect against state interference, while positive rights oblige the state to offer protection from other actors or events, including natural disasters. Many rights straddle the boundary between these two domains, but Fellmeth's insightful analysis demonstrates that language and framing matter: too strong a focus on negative rights risks disregarding human suffering, while excessive attention to positive rights can become an excuse for authoritarianism. Switching between legal and ethical analysis, Fellmeth develops his own moral justifications for positive rights. He draws on Henry Shue's notion of basic rights to argue that the state should ensure the fulfillment of rights that are “necessary for the enjoyment of a broad spectrum of other human rights, and whose enjoyment the state is best positioned to guarantee” (p. 241).Footnote ⁴ Rejecting Thomas Pogge's claim that states have a negative duty not to benefit from the existing, deeply unequal global order, Fellmeth also demonstrates that not all ethical postulates translate readily into international law.Footnote ⁵ Part Three concludes with an exploration of the “structural implications” of negative and positive rights paradigms, where Fellmeth clarifies that positive rights typically demand a “reasonable best effort” rather than an absolute obligation (p. 261). He concludes that negative and positive rights, rather than opposites, should be seen as “alternative means of social control” (p. 274), whose appropriate application depends on practical circumstances rather than abstract theory. These claims are not groundbreaking in and of themselves, but the original and perceptive way in which Fellmeth presents the distinction between negative and positive rights should inspire human rights lawyers and rights theorists more generally to rethink some of their ingrained assumptions about these concepts.

Throughout the book, Fellmeth carefully balances his ambitious aim of achieving a “cross-fertilization of human rights jurisprudence with philosophical theory, especially ethics” (p. 285), with his more moderate methodology, which focuses on systematic features rather than holistic theory. At times, this balance is challenged by a somewhat linear vision of human rights, according to which the “founders of the modern IHRL system” (p. 285) directed “the project of … world public order” (p. 282) to advance “human dignity” in all realms. These big concepts remain largely unexplained, which allows for generalizations that blur the lines between the legal and the moral/political. For example, in the first part, Fellmeth suggests that the ingrained preference for rights over state duties might have been a matter of historical “expediency” (p. 10). Yet to early rights theorists, such as Hobbes, Locke, and Kant, rights served as justifications for the state, from which the latter's duties flowed. In other words, rights preceded the state (at least politically) and cannot simply be redefined as its duties. It is true that modern human rights are typically correlative (i.e. entail state duties), but applying a contemporary legal lens to past moral or political developments, and vice versa, confuses the analytical and normative issues at stake. Another example flows from one of the book's first footnotes (p. 5). Here, Fellmeth asserts that all legal rights require enforcement, thus doing away with one of the central debates in rights theory.Footnote ⁶ Yet if he is right, to what extent can IHRL be considered legal? After all, few international regimes provide for legal enforcement of human rights (certain regional systems offering notable exceptions). Fellmeth resolves this conundrum by adopting a loose notion of enforcement, which equates the act of filing a claim with a political treaty body to obtaining a legally binding ruling by an international court. It is an understandable strategy, but one that risks losing sight of the dividing lines between political and legal spheres in IHRL, which are so important for works in this field.

These critiques mainly apply to the first part of the book, which deals with “fundamental duties.” In the second and third parts, the book completes its delicate dance between law and moral/political theory with remarkable success. Fellmeth's analysis is clear and measured, even when dealing with complex theoretical questions. He helpfully illustrates his analytical points with cases and practical examples, without losing himself in jurisprudential commentary. And last but not least, his novel insights into the use of non-discrimination and substantive rights paradigms, and the relationship between negative and positive rights, will help human rights scholars and practitioners to better comprehend and further develop this complex but fascinating field of international law.