Academic journal article Vanderbilt Journal of Transnational Law

Saving Human Rights from Human Rights Law

Academic journal article Vanderbilt Journal of Transnational Law

Saving Human Rights from Human Rights Law

Article excerpt

TABLE OF CONTENTS    I. INTERNATIONAL HUMAN RIGHTS LAW: INTERNAL AND   1168      EXTERNAL PRESSURES  II. THE FORMATIVE AIM OF INTERNATIONAL HUMAN       1173      RIGHTS LAW: OR, NOT ESCHEWING THE FAT III. CONFUSING HUMAN RIGHTS WITH INTERESTS AND      1179      VALUES  IV. LEGALISATION AND JUDICIALISATION               1195   V. CONCLUSION                                     1206 

I. INTERNATIONAL HUMAN RIGHTS LAW: INTERNAL AND EXTERNAL PRESSURES

Human rights are always under pressure, a pressure that is exerted on at least two levels. The first level is that on which human rights are conceived as exacting moral standards: rights that ordinary moral reasoning, objectively albeit fallibly, discloses to us are possessed by all human beings simply in virtue of their humanity. (1) If one considers human rights as universal moral rights in this way, then they are constantly under pressure, both in relation to our understanding of them and our success in complying with them. The pressure stems from pervasive frailties that afflict the human condition--ignorance, lack of empathy and imagination, laziness and inertia, the impulse to dominate, illegitimate self-preference, scarce resources, and so on--that hinders humanity in grasping those standards or adhering to their demands in practice.

But that human rights are under pressure is also true on a second, and more topical, level if we focus on the imposing and complex structure of international human rights law (IHRL) that has been built up in the postwar era. It is this second sort of pressure--on the edifice on IHRL's norms and institutions--that is the focus of this Article. A major theme in the argument that follows is that relieving the pressure on IHRL, including pressures that are external in character, requires grasping its relation to human rights on the first level. This is because the essential point of IHRL is to give expression and effect to an underlying morality of human rights, insofar as it is appropriate to do so, through the medium of individual legal rights ascribed to all human beings. This sums up what I have called the Formative Aim Thesis (FAT). (2) The tendency to stray from this governing rationale is liable to generate both internal and external pressures on IHRL.

The idea that IHRL is under severe pressure is a common refrain in recent years. Two important recent lectures are exemplary illustrations of this phenomenon. The first is "The Populist Challenge to Human Rights" delivered at the London School of Economics on December 1, 2016, by Professor Philip Alston of New York University, who is also the current United Nations (UN) Special Rapporteur on Extreme Poverty and Human Rights. (3) The other lecture, "Is International Human Rights Law Under Threat?," was delivered on July 26, 2017, as the British Institute of International and Comparative Law Annual Grotius Lecture by Prince Zeid Ra'ad Al Hussein, who at the time was the UN High Commissioner for Human Rights. (4) These two lectures are chosen not only because they are illustrative of widely shared beliefs and anxieties among scholars and practitioners of IHRL, but also because the two authors are eminent figures in the human rights field. Their words, therefore, deserve serious consideration--and, of course, critical scrutiny.

In his lecture, Philip Alston addresses the challenge posed by "[t]he populist agenda that has made such dramatic inroads recently," an agenda that "is often avowedly nationalistic, xenophobic, misogynistic, and explicitly antagonistic to all or much of the human rights agenda." (5) Alston proceeds to warn, in dire terms, that as a result of populism, "the challenges the human rights movement now faces are fundamentally different from much of what has gone before." (6) In the constructive part of his lecture, Alston advances a number of proposals for responding to the populist challenge. These include: achieving more effective synergies between international and local human rights movements; giving economic and social rights equal prominence in human rights advocacy alongside civil and political rights; broadening the kinds of actors the human rights community engages with beyond states, so as to include, for example, corporations; making greater efforts to persuade sceptics of the soundness of human rights norms and institutions; and, in relation to human rights scholarship, he urges scholars to consider the "unintended consequences" of their scepticism about human rights law and institutions, such as its corrosive impact on the motivation of would-be human rights lawyers and activists. …

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