International Human Rights Law and the Individual

I present in this paper a contractualist justification of international human rights law that does not presuppose, as many theories of both human rights and global justice do, a minimalist understanding of the content of human rights. One prominent line of argument for minimalism about human rights appeals to the claims of states against outside interference in their domestic affairs. I examine and compare these claims with the human rights claims of individuals, which I understand as claims against not only the government of one’s state but also outside actors. In doing so, I interpret the claims of sovereign states into the various claims of the individuals who belong to these societies. I thus employ what I call the contractualist method of justificatory individualism, on which norms must be justifiable to each person subjected to the norm by appeal to her individual reasons, rather than to some collective, or by appeal to reasons that aggregate claims across persons. By driving the justificatory project all the way down to the individual level, I argue, we get a more complete and accurate view of the claims that must be taken into account in order for international human rights law to be justifiable. Applying this method, I generate novel support for the view that international human rights law appropriately acts as a constraint on states’ discretion to act as they choose. Moreover and importantly, I argue that this view need not presuppose the assumption that human rights protect only absolute, minimum thresholds. Creating space for non-minimalism has the practical payoff of potentially successful responses to the recently popular charge that international human rights law and advocacy have politically conservative implications, by focusing only on absolute minimums rather than, e.g., more demanding egalitarian ideals.