Federalism and Horizontality in International Human Rights

This commentary to the 2008 Missouri Law Symposium, “Return to Missouri v. Holland: Federalism and International law,” critiques the intersystemic/pluralist framework as a tool for analyzing the process of international human rights norm diffusion. While I argue that intersystemic approaches are extraordinarily useful for framing case studies to better understand the increasingly horizontal process of human rights norm transmission, it has its limits. The commentary raises questions about the impact of these theoretical frames on more traditional understandings of human rights enforcement through vertical institutions (courts, commissions, committees) and on potential institutional reform at the international level. It ultimately concludes that horizontal processes can be effective in filling the enforcement gaps of vertical institutions and in affecting state human rights behavior. The future challenge is to harness horizontal processes in a way that reinforces the legitimacy of domestic and international legal mechanisms and permits international institutions to be flexible in adapting to these horizontal processes.