Davidson: Human Rights Realism

Natalie R. Davidson (Tel Aviv Univ. - Law) has posted Human Rights Realism (Vanderbilt Journal of Transnational Law, forthcoming). Here's the abstract:

In the aftermath of gross human rights abuses, when, if at all, should we forego legal accountability? Human rights scholars debated this question in the 1980s and 1990s, in what was referred to as the “peace versus justice” debate. The “justice” side won the day in the human rights community, where the dominant position is that legal accountability is a necessary response to atrocity and cannot be limited by political considerations (a position I term “human rights absolutism”). However, this question has resurfaced in the twenty-first century, in intense debates with interlocutors outside the field of human rights. Faced with the development of international criminal justice, Alien Tort Statute litigation, and regional human rights court jurisprudence on the right to a remedy, courts, state officials and conservative scholars argue that legal accountability should be limited to avoid hampering states’ control of their internal affairs and international relations (a position I term “sovereigntism”). Some scholars take a middle ground, and argue that legal responses to gross human rights abuses should be limited only to avoid harm to peace or democratic decision-making. However, the latter have not yet offered a persuasive justification for their position, nor a rationale for distinguishing peace and democratic decision-making from other values advanced by sovereigntists as limits to accountability.

This article offers a new middle ground between sovereigntism and human rights absolutism, under a position it terms “human rights realism.” Drawing on American legal realism and grounded in human rights values, this approach mandates limiting legal accountability to avoid those consequences that threaten certain core human rights, and the article identifies armed conflict and economic inequality as relevant consequences. This approach overcomes both human rights absolutists’ denial of the politics of accountability mechanisms, and sovereigntists’ subordination of accountability to values other than human rights. Moreover, drawing on legal realist writing on the right-remedy relationship, this article offers a robust justification for accepting limitations to legal accountability across a wide range of mechanisms, and a principled framework for considering such limitations in light of evolving empirical evidence.

The argument is developed by revisiting the debate about universal civil jurisdiction, and expanding the analysis to international criminal law and regional court jurisprudence. The article shows that human rights realism offers not only a promising normative framework for integrating political considerations into human rights enforcement, but also that it sheds new light on recent developments such as African state threats of withdrawal from the International Criminal Court.