Saving Human Rights from
Human Rights Law
John Tasioulas*
ABSTRACTThis Article advances the thesis that internationalhumanrights law (IHRL) has strayed from its formative purpose. This
purpose, as formulated by the FormativeAim Thesis (FAT), is to
give expression and effect to an underlying morality of humanrights, insofar as it is appropriateto do so, through the medium
of individual legal rights ascribed to all human beings. This
Article elaborateson two main ways in which IHRL has deviatedfrom the FAT: (1) a tendency to ignore the vital distinction
between human rights (which have associated obligations) anduniversal human interests or values more generally; and (2) aninsufficiently critical promotion of both the legalisation and,more specifically, the judicialisation of human rights. This
Article tentatively suggests that these internal deviations within
IHRL may partly explain some of the external resistance IHRL
has encountered, in the form of what is generally referred to as a
"populistbacklash."One element in rescuing human rights today
is saving them from the deformations they have undergone at thehands of IHRL.

* Yeoh Professor of Politics, Philosophy and Law, Dickson Poon School of Law and
Director of the Yeoh Tiong Lay Centre for Politics, Philosophy and Law, King's College
London. An early version of this article was delivered as a keynote lecture at the Human
Rights Under Pressure Program at the Free University, Berlin on July 16, 2018. I am
grateful to Helmut Aust for the invitation and for his helpful written comments. A
subsequent version of this Article was delivered as the co-keynote lecture at the
Vanderbilt Journal of TransnationalLaw Symposium on the Future of Human Rights
Law, held at Vanderbilt University Law School on February 22, 2019 where I benefited
from comments by James Gathii, Kathryn Sikkink, Gopal Sreenivasan, Lorna McGregor,
Karima Bennoune, and Samuel Moyn. It also formed the subject of a seminar at the
University of Frankfurt's "The Formation of Normative Orders" Exzellenzcluster on
January 22, 2019 and Kadish Workshop in Law, Philosophy, and Political Theory at the
University of California, Berkeley on April 12, 2019 where I benefited from thecommentary of Ajay Ravichandran. For valuable comments on drafts at various stages I
am grateful to Gerald Neuman, Katerina Linos, Yuval Shany, Colleen Murphy, Ingrid
Wuerth, Guglielmo Verdirame, Rainer Forst, Jiewuh Song, Joshua Cohen, Jay Wallace,
Scott Casleton, and numerous participants at the discussions in Berlin, Nashville, andBerkeley.

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TABLE OF CONTENTSII.

INTERNATIONAL HUMAN RIGHTS LAW: INTERNAL AND...............................
EXTERNAL PRESSURESTHE FORMATIVE AIM OF INTERNATIONAL HUMAN

III.

RIGHTS LAW: OR, NOT ESCHEWING THE FAT................
CONFUSING HUMAN RIGHTS WITH INTERESTS AND

I.

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1173

VALUES ............................................. 1179...........

1195........................................

1206

IV.

LEGALISATION AND JUDICIALISATION .......

V.

CONCLUSION

I. INTERNATIONAL HUMAN RIGHTS LAW: INTERNAL AND EXTERNALPRESSURES

Human rights are always under pressure, a pressure that isexerted on at least two levels. The first level is that on which humanrights are conceived as exacting moral standards: rights that ordinary
moral reasoning, objectively albeit fallibly, discloses to us arepossessed by all human beings simply in virtue of their humanity.' If
one considers human rights as universal moral rights in this way, thenthey are constantly under pressure, both in relation to ourunderstanding of them and our success in complying with them. The
pressure stems from pervasive frailties that afflict the humancondition-ignorance, lack of empathy and imagination, laziness andinertia, the impulse to dominate, illegitimate self-preference, scarce
resources, and so on-that hinders humanity in grasping thosestandards 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 edificeon 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

1.
I have argued in favour of this in John Tasioulas, On the Nature of Human
Rights, in THE PHILOSOPHY OF HUMAN RIGHTS: CONTEMPORARY CONTROVERSIES 17, 1759 (Gerhard Ernst et al. eds., 2012) [hereinafter On the Nature of Human Rights]. Thisview differs from the legalistic, Benthamite thesis that all rights owe their existence totheir embodiment in law, but also from the family of "political" accounts of human rights,
inspired by John Rawls' The Law of Peoples. See JOHN RAWLS, THE LAW OF PEOPLES(Harv. Univ. Press 1999) (according to which it is an essential feature of human rights
norms that they play a specific political role, such as setting benchmarks for politicallegitimacy or serving as triggers for international concern or intervention in the event of
their gross violation).

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the essential point of IHRL is to give expression and effect to anunderlying morality of human rights, insofar as it is appropriate to doso, through the medium of individual legal rights ascribed to all humanbeings. This sums up what I have called the Formative Aim Thesis(FAT). 2 The tendency to stray from this governing rationale is liable togenerate 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, "IsInternational Human Rights Law Under Threat?," was delivered on
July 26, 2017, as the British Institute of International andComparative 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 areillustrative of widely shared beliefs and anxieties among scholars andpractitioners 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 humanrights agenda."5 Alston proceeds to warn, in dire terms, that as a resultof populism, "the challenges the human rights movement now faces arefundamentally different from much of what has gone before." 6 In theconstructive 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 inhuman 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 greater2.
I defend the FAT in John Tasioulas, Exiting the Hall of Mirrors:Morality and
Law in Human Rights, in POLITICAL AND LEGAL APPROACHES TO HUMAN RIGHTS 73, 7389 (Tom Campbell & Kylie Bourne eds., Routledge 2018).
3.
Philip Alston, The Populist Challenge to Human Rights, 9 J. HUM. RTS. PRAC.
1, 5 (2017).
4.
Zeid Ra'ad Al Hussein, U.N. High Comm'r for Human Rights, Speech at the
BIICL Annual Grotius Lecture: Is International Human Rights Law Under Threat? (July26, 2017) (transcript available at the British Institute of International and Comparative
Law).
5.
Alston, supra note 3, at 2.
6.
Id.

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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
7
on the motivation of would-be human rights lawyers and activists.
The lecture by Prince Zeid delves deeper, aiming to unearth thepsychological origins of the populist backlash against human rights.
He asks: "Why is international human rights law such an easy target?
Why is it so misunderstood, so reviled by some, feared by others,
spurned, attacked?"8 The answer he gives, in broad terms, is that
unscrupulous politicians stoke and exploit fears among the citizenryxenophobia, the fear of terrorism, and so on-to justify human rights
violations, such as torture, arbitrary detention, and the curtailment of
free speech, in order to secure and maintain their grip on power. Those
who oppose human rights law are acting on the basis of unreasoning
fear, whether by experiencing it themselves or promoting andexploiting it in others; by contrast, defenders of human rights law
aspire to be guided by reason freed from the distortive influence of fear.
In a truly striking passage, Zeid goes on to posit a difference in how thebrains of those in the two opposed camps function:.

The default condition of the human mind is, after all, fear. Primordial fear. That
innermost instinctive mechanism protecting us from harm, from death. An
emotion every extremist, skilled populists included, seeks to tap or stimulate .
. . The emotional mechanism in the mind of a human rights defender works
rather differently. To do good in our lives, and not just to some, but to all; todefend the human rights of all - this requires a continuous investment ofthought, where the natural prejudices lying deep within each of us must be
watched out for and rejected every day of our lives. The default flow in the mindsof humanity may be reptilian; but the internal battle to overcome it is profoundly
9

human.

This presents us with a dramatic image: one side trapped in, or
exploiting, humanity's reptilian inheritance, the other seeking totranscend it by ascending to a standpoint oriented to the good of all
humanity.
For present purposes, nothing in this Article will contest anything
said in these two lectures; indeed, many of Alston's constructive
proposals are highly plausible.1 0 Rather, this Article simply aims to

Id. at 13.
7.
Al Hussein, supra note 4, at 1.
8.
Id. This analysis chimes with some of the thoughts in Martha Nussbaum's
9.
The Monarchy of Fear, which gives primordial fear a fundamental role in explaining how
other emotions-such as retributive anger and exclusionary forms of disgust-can havea toxic effect on liberal democracy. See MARTHA C. NUSSBAUM, THE MONARCHY OF FEAR:A PHILOSOPHER LOOKS AT OUR POLITICAL CRISIS 17-62 (Simon & Schuster 2018).

For an insightful discussion of both internal and external pressures on
10.
international human rights law, see Gerald L. Neuman, Human Rights, Treaties, and2019]SAVING HUMANRIGHTSFROMHUMANRIGHTS

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convey the shape of the problem they present as confronting IHRLone that arises from external and morally disreputable sources-andto draw attention to a startling omission common to the diagnoses
presented in both lectures. Neither author contemplates the possibility
that some of the most serious pressures on IHRL are internallygenerated, arising from grave defects in the elaboration of humanrights law and the self-understanding of its practitioners and scholars.
In particular, they do not consider the extent to which IHRL has
generated internal pressures by straying from its formative aim ofgiving substance and effect to a background morality of human rights.
Had this possibility been in view, they might have gone on to consider
to what extent these internal pressures are responsible for triggering
or exacerbating some of the external pressures they identify. Thislatter move, however, would have required contemplating thepossibility that the populist backlash that they decry is not accurately
characterised in unremittingly negative terms as "xenophobic,
misogynistic, and explicitly antagonistic to all or much of the humanrights agenda," although no doubt such strands are present within it.
Without wishing to pursue this point, it is a plausible hypothesis thatsuch an exclusively negative portrayal of contemporary "populism" isan unrealistically Manichean template for interpreting politicalrealities."
Now, it is admittedly true that Alston does occasionally refer to"shortcomings" within the human rights movement, but it quickly
becomes apparent that for him these are overwhelmingly at the levelof strategy and implementation, not fundamental principle andapproach. There is no question, he believes, of "giving up on basic
principles."1 2 To put it crudely, the impression conveyed is that thefundamentals of human rights law are in order, they just need better
public relations to secure a wider consensus on them and more effective
mechanisms to enhance levels of compliance.' 3 When he does broach

InternationalLegitimacy, in HUMAN RIGHTS, DEMOCRACY, AND LEGITIMACY IN A WORLDOF DISORDER 51, 51-72 (Silja Voeneky et al. eds., Cambridge Univ. Press 2018).

&

11.
The notion of "populism" is contested, both in regards to its meaning and its
utility. Jan-Werner Miiller has a pejorative definition, according to which populists
falsely lay claim to being the exclusive representatives of the "real people." Jan-WernerMiller, How Can Populism be Defeated?, in RETHINKING OPEN SOCIETY 196 (Michael
Ignatieff et al. eds., Cent. European Univ. Press 2018); see also ROGER EATWELL
MATIHEW GOODWIN, NATIONAL POPULISM: THE REVOLT AGAINST LIBERAL DEMOCRACY

78 (2018) (identifying populism, in more neutral terms, with a thin, three-pronged
ideology: (1) an attempt to make the popular will heard and acted on; (2) the call todefend the interests of the plain, ordinary people; (3) the desire to replace corrupt anddistant elites). As an indication of the complexities of contemporary populism's relation
to human rights, consider the way in which "populist" politicians in Europe have sought
to justify greater restrictions on immigration on the basis of protecting women's andLGBT rights or ensuring the continuation of democracy and strong social welfare
policies.
12.
Alston, supra note 3, at 2.
13.
See id.

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deeper criticisms, Alston refers to scepticism about the very idea of
human rights as a moral ideal, human rights on what I have referred
to as the first level. 14 Specifically, he recounts a story about a famousinternational legal scholar who in a lecture dismissed human rights as
an "illusion," arguing that "there could not reasonably be universal
rights to strive for; that there could be no way of proving or justifying
any particular rights; and that most are heavily contingent andsubjective."1 5 This illusion, the famous scholar asserted, confronted
would-be practitioners of IHRL with a yawning "abyss."' 6 It is this kindof scepticism that Alston chastises academic critics of IHRL for
engaging in; these critics fail in their responsibility to take seriously
its "unintended consequences," such as its demoralising effect on
students and others committed to the cause of human rights.1 7
In other words, the only serious intellectual challenge to thehuman rights enterprise that Alston considers is that which trashes
the very idea of a rationally grounded morality of human rights. But
this kind of root-and-branch rejection of human rights morality can beleft to one side, especially since it typically reflects a crude version ofrelativism that perhaps only narrowly escapes self-contradiction bylapsing into deep implausibility. This Article will proceed on the basisthat there is a sound human rights morality that can be rationallyjustified even though our grasp of it, and compliance with it, isinevitably far from perfect. Even if one believes that societies thatpractice torture, slavery, or female genital mutilation are not only
operating on different cultural norms, but are objectively mistaken
about profound moral questions, this still leaves the question whether
or not existing human rights law is seriously flawed. In other words,
one can be sceptical about IHRL not because one is sceptical about the
moral idea of human rights, but precisely because one believes in that
idea, and additionally believes that the law has fallen out of tune with
it in significant ways. Unfortunately, Alston skates over this possibility
by assuming that the only serious intellectual or moral challenge to
IHRL is one that repudiates the very idea of human rights morality,
perhaps because he just assumes that IHRL is broadly in line with sucha morality. But this assumption is eminently contestable.
Human rights laws and institutions, after all, are not themselves
to be identified with sound human rights morality. They are not thedeliverances of perfectly operating reason. To conceive of them in thisway is a kind of idolatry, one that confuses man-made institutional
means with objective ethical ends. Rather, they are fallible humancreations, established by flawed human beings, relying on theirinevitably limited reasoning powers against the countervailing

14.
15.
16.
17.

See id. at 13.
Id.
See id.
See id.

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influence of nonrational factors, such as egoism and fear. So, between
merely strategic criticisms of international human rights law, on the
one hand, and a scepticism about the very idea of human rights
morality, on the other, it is imperative to address deeper criticisms of
the way in which human rights law is elaborated and understood by
its practitioners and scholars. Otherwise, there is a risk of serious
complacency: indulging in the wholesale disparagement of critics of
IHRL while neglecting to inquire into whether IHRL itself is in goodorder.
This Article will explore the idea of saving human rights from theway in which they have been distorted by human rights law that has
transgressed its proper bounds. Once that rescue operation has begun,
human rights law might in turn be saved by bringing it into greateralignment with the human rights morality it is supposed to advance.
This is, of course, a massive project that requires mobilising manydifferent forms of expertise, ranging from philosophical expertise, tolegal-doctrinal and social-scientific expertise. All that can be done
here is to sketch a few lines of thought that might encourage others tolend a hand to this rescue mission.1 8

II. THE FORMATIVE AIM OF INTERNATIONAL HUMAN RIGHTS LAW: OR,NOT ESCHEWING THE FATIn order to assess whether IHRL has been subverted from within,
it is important to build up an understanding of the formative point of
IHRL. In this regard, IHRL is no different from any other coherent
department of law, each of which has its characteristic point thatshapes its distinct identity as one department of law among others.
Some theorists, for example, argue that the point of contract law
is to be understood as essentially that of recognising and upholding, bymeans of law, certain morally binding promises. The moral idea of apromise is the justifying point that lends coherence to this body oflaw. 19 This, of course, does not mean that all promises should be legally
enforceable-some may be too trivial to merit legal concern, hence thewinnowing effect of the doctrine of consideration, while others may
belong to a private domain that should be free of legal surveillance. Nordoes it mean that only transactions that are properly classified under18.
As Jan-Werner Miller has stressed, "dealing with populism is not just a PR
challenge; it is above all a question of policy content and a question about the adequacyof some of our political institutions." Miller, supra note 11, at 202. Although I am
somewhat skeptical about the general helpfulness of the notion of "populism" in
explaining current widespread disaffection with existing international and national
political orders, this article can be partly viewed as an attempt to give substance toMilller's claim in the specific domain of human rights law and policy. See generally id.
19.
For a version of this view, see CHARLES FRIED, CONTRACT AS PROMISE: A
THEORY OF CONTRACTUAL OBLIGATION (2d ed., Oxford Univ. Press 2015).

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the prelegal idea of promise should be recognised under contract law.
There may be perfectly good reasons to extend the scope of contract, forinstance by analogy, to other kinds of agreements. But it is to say thatthe idea of a promise is at the core of our understanding of a contract,and deviating excessively from this idea risks distorting contract
doctrine, alienating it from its true purpose. Such distortion would
occur, on this understanding, if contract doctrine were developed inline with an overarching justifying rationale, such as wealthmaximisation.
The sort of analysis just hinted at for contract law can be
replicated for other departments of law, such as criminal law. There, it
could be argued, the formative aim turns on the idea of certain moral
wrongs that there is a legitimate public interest in prohibiting,condemning, and punishing. 20 Accordingly, the criminal law tends togo astray, on this view, if it designates as crimes forms of conduct that
do not fit the rubric of public wrongs of this kind. For example, when it
proscribes conduct simply as a means of social control without regard
to whether it is morally wrongful. Pursuing this line of thought, critics
have plausibly argued that in recent decades both the United States
rampant
experienced
have
Kingdom
Unitedtheand"overcriminalisation," with legislators succumbing to the temptation to
attach criminal sanctions to forms of behaviour that they perceive to
be socially undesirable even if they are not clearly morally wrongful or
do not in some other way fall within the class of public wrongs that is21
the criminal law's proper concern.
In previous writings, I have argued that a similar analysis can be
carried out for IHRL. 2 2 Specifically, I have defended the FAT,
according to which the point of IHRL is that it is primarily concernedwith giving effect to universal moral rights, insofar as it is appropriate
for international law to do so, through the technique of assigning auniform set of individual legal rights to all human beings. Now, theidea that the point of IHRL is given by a relationship with abackground morality of human rights is a familiar one, but it has beendisputed in recent years by prominent philosophers such as Martha C.
23
Nussbaum, Charles R. Beitz, and Allen Buchanan. They have sought
to articulate the point of IHRL without invoking a background moralityof universal rights, appealing instead to such notions as capabilities,

20.
For a version of this view, see Sandra E. Marshall & R.A. Duff,
Criminalizationand Sharing Wrongs, 11 CAN. J.L. & JURIS. 7, 8 (1998).
For a good example of such criticism, see DOUGLAS HUSAK,
21.
OVERCRIMINALIZATION: THE LIMITS OF THE CRIMINAL LAW 4-17 (Oxford Univ. Press

2008).
22.

See Tasioulas, supra note 2.

See generally CHARLES R. BEITZ, THE IDEA OF HUMAN RIGHTS (Oxford Univ.
23.
Press 2011); ALLEN BUCHANAN, THE HEART OF HUMAN RIGHTS (Oxford Univ. Press

2017); Martha C. Nussbaum, Capabilitiesand Human Rights, 66 FORDHAM L. REV. 273,
273 (1997).

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urgent interests, and norms enjoining a minimally decent standard ofwelfare and an egalitarianism of moral status. Elsewhere I haveargued that such attempts fail, often collapsing back into some versionof the FAT, especially when they are confronted with the question of
the degree to which these other values need to be secured through
IHRL. 24 In what follows, this Article shall simply take the correctnessof the FAT as given.
It is important, however, to clarify two features of the FAT. First,
it is not the profoundly mistaken view, which unfortunately is widely
held, that IHRL is the only department of international law concernedwith securing human rights morality, and that prior to IHRL's adventin the postwar era, international law did not concern itself with theprotection of human rights. 25 On the contrary, many domains ofinternational law, from humanitarian law to trade law, are vitallyconcerned with human rights. Indeed, if one were to ask which area ofinternational law does most to. safeguard human rights, the bestanswer may very well be the international law on the use of force andintervention, since war is probably the source of the gravest humanrights catastrophes. Rather, the claim made by the FAT is that IHRL
is concerned with human rights morality in a distinctive way: (a) giving
effect to it is its primary aim, in that any other aims are appropriately
subordinate or supplementary to this aim; and (b) it gives effect to it
through a specific legal technique (i.e., by assigning individual legal
rights to all human beings which impose corresponding obligations
primarily on states).
The second misunderstanding to clear up is that the FAT does notassert that IHRL should simply mirror, in a simple-minded way, thebackground set of universal moral rights.2 6 It does not require an
isomorphism of human rights morality and law, such that the latterset of norms precisely match the former in terms of their normative
content, as given by their associated duties and their bearers. Recall
the proviso embedded in the FAT: IHRL should give effect to universal
moral rights only insofar as it is appropriatefor internationallaw to do
so by assigning universal legal rights to individuals. The proviso makes
ample room for the fact that there are both principled and pragmaticconstraints on giving effect to human rights morality through humanrights law. Even if human rights morality requires a just distributionof domestic chores, for example, it is not the law's proper business to
get involved with private matters of this kind. This is a principledconstraint. Pragmatic constraints will arise when, even assuming that
advancing a given human right is the law's business in principle, theadoption of legal means would be ineffective or even counterproductive.

24. See Tasioulas, supra note 2.
25.
For an endorsement of this view, see BUCHANAN, supra note 23, at 121-30.
26.
This so-called 'Mirroring View' is wrongly attributed to defenders of the FAT.
Id. at 14-23. For a criticism of this interpretation, see Tasioulas, supra note 2.

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In order to comply with these constraints, IHRL may justifiably
diverge significantly in content from human rights morality, but therationale for any such divergence will remain that of giving
appropriate effect to the latter within these constraints. Sometimes
IHRL will properly diverge by being narrower than human rights
morality; sometimes it will diverge by being broader, e.g. whenenshrining a right that promotes compliance with human rights
morality, even though the content of that legal right does notcorrespond (even partially) with the content of a norm of human rights
morality. I will come back to these considerations towards the end of
the Article.
Although IHRL is subject to these constraints, it can nonethelesshave significant value in enhancing compliance with human rights
morality through a variety of means. First, it can offer a publicly
accessible statement of the content of a given human right, one thatcan be discovered through formal legal reasoning rather than by meansof more contestable moral reasoning. Among other things, this enables
all the advantages of agreement on a set of human rights in spite ofdisagreement about the underlying normative case for acknowledging
them as human rights. Second, insofar as there is disagreement about
the proper interpretation of any given component of human rights
morality, the law can help single out an authoritative interpretationthat can coordinate expectations among actors with disparate views on
the merits. Thirdly, human rights norms in morality may need to berendered more determinate in specific ways in order to more effectively
guide conduct. Lines need to be drawn, for example, regarding whichforms of speech fall within the boundaries of the right to free speech
and which (such as, perhaps, forms of hate speech) do not. Schemes forthe allocation of obligations need to be settled upon in cases where aplurality of such schemes is, in principle, eligible. This requires aprocess of specification or determinatio that goes beyond the strict
operations of reason, involving some kind of collective volitional act
that chooses between rationally eligible alternative specifications of
the content and allocation of the obligations associated with a given
right. 27 Finally, a legal norm setting out a human right may also bebacked up with one or more enforcement mechanisms, such as selfreporting by states bound by human rights, inquiries conducted byexpert treaty bodies, formal criticism by other states or nonstate actors
such as NGOs, judicial protection, economic sanctions, or militaryintervention.
The FAT is not only the most appealing account of the point of
IHRL; it also has a strong foothold in the self-understanding of the
postwar human rights culture. A striking illustration of this is thehistory of Article 27 of the Universal Declaration of Human Rights

27.

On the idea of "determinatio," see JOHN M. FINNIS, NATURAL LAW AND

NATURAL RIGHTS 284-89 (2d ed., Oxford Univ. Press 2011).

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which concerns, among other things, intellectual property rights.2 8

Article 27 has the unique distinction of having generated a controversy,
during the drafting stage, as to whether or not the rights it enumerates
should have been included at all, as opposed to disputes about theirprecise formulation.29 The nature of the disagreement pays eloquent
tribute to the influence of the FAT. On the one hand, states from thecommon law tradition objected to the inclusion of intellectual property
rights precisely because they did not see them as truly reflecting
background moral rights, but rather as means of incentivisingtechnological innovation so as to promote economic prosperity. 30 By
contrast, states from the civil law tradition, which had long recognised
the moral rights of authors, pressed for the inclusion of intellectual
property rights.3 1 This is precisely the shape of debate one would
expect among those who presuppose the truth of the FAT and therefore
see IHRL as a vehicle for human rights morality.
If we construe the essential point of IHRL as that of subserving
human rights morality through a specific institutional technique, as
the FAT does, then we are well placed to resist recent arguments to theeffect that human rights is "an elite discourse," one that has little
foothold in the "moral operating systems"-the day-to-day moral
reasoning-of the vast majority of people across the globe. 3 2 Pursuingthis line of thought, Michael Ignatieff has recently argued that the
moral thinking of most people revolves not around human rights but"ordinary virtues," such as generosity, trustworthiness, resilience, andso on.3 3 This is a hypothesis that may suggest an alarming divide
between enlightened, human rights-loving elites ranged against the
benighted, reptilian-brained mass of the populace. In fact, Ignatieff issceptical about the moral powers of human rights discourse, setting
greater store by the capacity of the ordinary virtues to challenge theoppressive and dehumanising forces at work in our globalising world. 34
But, in any case, Ignatieffs entire setup thrives on the basis of the
dubious equation of human rights with IHRL. It is hardly surprisingthat most people's moral thinking does not draw heavily on a set ofinternational legal norms geared primarily to the regulation of state
conduct. It would be very peculiar were it otherwise. Human rights are28.
See G.A. Res. 217 (III) A, Universal Declaration of Human Rights, art. 27(Dec. 10, 1948).
29.
For a very helpful discussion, see generally Lea Shaver, The Right to Science
and Culture, 2010 WIs. L. REV. 121 (2009).
30.
See id.
31.
See id.
32.
See MICHAEL IGNATIEFF, THE ORDINARY VIRTUES: MORAL ORDER IN A
DIVIDED WORLD 24, 28 (Harv. Univ. Press 2017) (characterising human rights as "an'elite discourse', the lingua franca of an influential but thinly spread stratum of educated,
middle- and upper-middle-class intellectuals, university teachers, students, activists,
journalists and bureaucrats.").
33.
Id. at 40, 150-54, 216-17.
34.
See id. at 24, 200-23.

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fundamentally moral norms, and the system of IHRL should beunderstood as subservient to them, in the manner outlined by the FAT.
Interpreted as moral norms, human rights can be more readily foundembedded in the "moral operating systems" of a striking number ofpeople throughout the world irrespective of the place they occupy in
any given social hierarchy.3 5 Indeed, Ignatieff's own investigations in
moral ethnography revealed that all of the people he interviewed, nomatter how humble their social status, believed they counted morally
as individuals, that they have a "right to an equal voice," that in virtue
36of their humanity they are not to be treated "like garbage." Even if
they do not explicitly utter the expression "human rights" in making
these assertions, it is not difficult to see that the thought that they arearticulating may be accurately rendered in its terms, especially if they
believe the forms of treatment they are demanding should be accorded
to them simply in virtue of their status as human beings.
Once due credit is given to the thought that many people have an
intuitive grasp of human rights morality-of moral rights possessed by
all human beings simply in virtue of their humanity-it is no great
stretch to suppose that their attitudes to IHRL are influenced, in
broadly the manner suggested by FAT, by what they rightly or wrongly
take to be the shape of that morality. Hence, for example, common
expressions of suspicion or incredulity towards novel human rights,
such as the rights to annual paid leave, internet access, or same-sex
marriage. There is no need to take these doubts as manifesting a
repudiation of the very idea of human rights, as opposed to scepticism
that supposed rights of this kind deserve to be classed alongside
paradigmatic human rights such as the rights against slavery andtorture. If IHRL is commonly perceived to deviate excessively from the
FAT, this may help explain some of the popular backlash encounteredby the former. But leaving these sociological speculations aside, this
Article turns now to the question posed at the beginning: Is there any
reason to suppose that IHRL really does deviate in any significant way
from the demands of the FAT?
Without in any way purporting to give an exhaustive accountingof the ways in which IHRL may have strayed from the FAT, the rest of
this Article will highlight two important types of deviations that havein recent years subverted IHRL from within:(a) A failure adequately to recognise and follow through on theidea that IHRL is primarily concerned with giving effect touniversal moral rights-which crucially have associatedobligations-rather than either human interests generally or
the full gamut of political values (Part III); andSee id. at 24, 28.
35.
Id. at 198, 201. For a complete presentation of my skepticism about Ignatieffs
36.
claims, see John Tasioulas, Making Human Rights Ordinary Again: A Response to
Ignatieff, KING'S C. L.J. (2018).

2019]SAVING HUMANRIGHTS FROMHUMANRIGHTS LAW

1179(b) The enthusiastic promotion of both the legalisation and, more
specifically, the judicialisation of human rights, as if these
institutional mechanisms were necessitated by a commitment
to human rights, without due regard to the efficacy orlegitimacy of pursuing these methods of institutionalising
human rights (Part IV).
These two deviations are not exhaustive of the ways in which IHRL
deviates from the FAT, nor does this Article purport to give anything
approaching an exhaustive treatment of each of these points.37

III. CONFUSING HUMAN RIGHTS WITH INTERESTS AND VALUES
According to the FAT, IHRL must be assessed in terms of thetouchstone of a background morality of human rights. Teasing out thecontent of this background morality is the vital starting point indetermining whether or not IHRL is aligned with its true purpose.
What, then, is the content of the guiding idea of universal moral rights,
moral rights possessed by all human beings simply in virtue of their
humanity? This is, of course, an immense topic. This Article will focus
on only one vital aspect: the fact that moral rights are associated withobligations, which are their normative content. In speaking abouthuman rights, one is not simply appealing to a universal humaninterest, such as freedom from pain, or the interests in autonomy,
knowledge, or friendship. Nor is one simply appealing to some otherkind of deontic value, such as human dignity. Both universal humaninterests and human dignity are values that lie at the foundations ofhuman rights; they are the underlying values that ground humanrights claims. But they are not to be identified with human rights.
Human rights only exist when the values of universal interests andhuman dignity are sufficient, in the case of all human beings, to justify
obligations to treat each of them in certain ways.3 8 That human rights
involve counterpart obligations is significant in at least four ways.

37.
Other important deviations include the tendency to associate a genuine
commitment to human rights morality with a robust commitment to militaryintervention in the case of their extensive violation and with an uncompromising
attitude to the punishment of individuals responsible for gross human rights violations.
For helpful discussions of these areas of IHRL overreach, among others, see generally
HURST HANNUM,RESCUING HUMAN

RIGHTS: A RADICALLY MODERATE APPROACH(Cambridge Univ. Press 2019), especially chapters 2 and 8. Hannum's analysis, however,is generally encumbered by the lack of a developed account of the principles determining
what the formative aim of IHRL should be and, more specifically, by the lack of anappreciation of the significance of human rights morality in such an account.
38.
For an elaboration of my account of the foundations of human rights morality,
see John Tasioulas, On the Foundations of Human Rights, in PHILOSOPHICALFOUNDATIONS OF HuMAN RIGHTS (Rowan Cruft et al. eds., 2015).

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First, obligations are categorical. Whether one is bound by themor not does not depend on one's attitudes or desires or projects. One isbound by them irrespective of how one happens to be motivated. A
person cannot simply evade being subject to an obligation through the
expedient of changing their profile of desires, goals, or preferences.
Whether one has a reason to eat now or later is partly a function of
one's desires. But that one has an obligation to provide food for one's
dependent children obtains independently of one's desires or othersubjective attitudes towards doing so.
Second, obligations are robustly resistant to being defeated by, or"traded off' against, other considerations, including other obligations.
If we are simply talking about practical reasons to do or refrain fromdoing something, then reasons are habitually defeated by otherreasons. One may have a reason to get out of bed early in the morning,but this could easily be defeated by countervailing reasons, such as thepleasantness of lingering a while longer in bed. But if one has promised
to attend an early morning meeting that one can only do by getting up
earlier than usual, then one has an obligation to do so, one that cannot
be defeated by the reason to stay in bed because it would be pleasant.
Of course, sometimes even obligations may be defeated, for example,
in emergency cases, although there is an interesting question whether
there is a class of moral obligations that are absolute in force, hence
never subject to defeat. But, by their very nature, the instances where
obligations are defeated will be exceptional. It is important, however,that we do not conflate the resistance of obligations to being defeatedwith the Dworkinian idea that rights are "trumps" against the common
good. 39 This latter thesis embodies a conception of the common goodmost likely, a utilitarian one-that does not incorporate human rights
as part of its content, and construes rights as standardly liable to40collide with the common good so construed. Both assumptions involve
grave distortions.
Third, the failure to comply with an obligation is wrongful.
Someone who violates an obligation, without justification or excuse, isproperly blameable by others and by himself (i.e., he has reason to feelguilty). Contrast failing to further another person's interests, or evenacting in a way detrimental to their interests; doing either of those
things is not necessarily wrongful. There is no wrong committed if aperson fails to imperil their own life in order to save another's, unlessthere is a special relationship between the two. Equally, no wrong iscommitted if in a fair competition one drives another out of business orbeats them for a coveted job.

See John Tasioulas & Effy Vayena, The Place of Human Rights and the39.
Common Good in Global Health Policy, 37 THEORETICAL MED. & BIOETHICS 365, 366(2016).
See id. at 375-80.
40.

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Finally, there are some obligations that are not associated withrights, for example, the "imperfect obligations" of charity and mercy.4 1
However, there is a subset of obligations that are directed in character,insofar as they are owed to a right holder. These rights-involving
obligations (or, "perfect obligations") have traditionally been thought
to constitute the demands of justice. These demands ceteris paribus
enjoy a certain priority over other ethical considerations, including
moral obligations that have no associated right holder. The subset ofthese duties of justice that are owed to all human beings simply invirtue of their humanity is designated as human rights. It is a difficult
question what explains the directedness of such rights-involving
duties, but one plausible suggestion is that it arises from the nature of
the justification of the relevant obligations. 42 This justification is
individualistic in nature, appealing to some interest or value inheringin the right holder, rather than in a collectivity. The exclusive origin of
the perfect, rights-involving, obligation in some features (e.g. interests,
dignity, etc.) possessed by the right holder explains why a violation of
the obligation wrongs the latter in particular and provides a justified
ground for feelings of resentment, not just blame.
The key premise to be extracted from this sketch is that if IHRL
is to be faithful to its point, it must give proper expression and effectto universal moral rights that involve obligations in this sense, and not
simply universal interests or values like human dignity. However, apersistent flaw of contemporary human rights discourse is thetendency to ignore the overarching demand that IHRL should be
regulated by a background morality of human rights. One
manifestation of this is the widespread anxiety about human rights
inflation. This is not so much the vague concern that there are "toomany" human rights, but rather the idea that there is a troubling
corrosion of the idea of human rights because the distinction between
a universal human interest and a universal moral right is too often
overlooked by IHRL. 43 In other work, I have offered a general accountof the foundations of human rights, which will only be sketched very
roughly here. Human rights norms in morality are to be conceived as
grounded in two basic kinds of concerns: human interests and humandignity. 44 Human dignity relates to the equal intrinsic value possessedby all human beings simply as members of the human species. 4 5
Universal human interests refer to the universal ingredients of humanwell-being. These are an irreducible plurality of values, such asaccomplishment, friendship, knowledge, and play, which are objective,in that their value is not conditional on their being objects of desire or

41.
42.
43.
44.
45.

Tasioulas, supra note 38, at 61-62.
See id.
See generally JAMES GRIFFIN, ON HUMAN RIGHTS (Oxford Univ. Press 2008).
See Tasioulas, supra note 38, at 50-56.
Id. at 53-56.

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46
preference on the part of those for whom they are good. Then there is
the difficult matter of how one gets from these underlying values(universal interests and human dignity) to rights involving obligations.
Three key considerations here are the following: (a) the putative
obligation must be possible to comply with; (b) the obligation must not
impose excessive burdens on duty bearers and others; and (c) the
obligations associated with a given right must satisfy a holistic
47
constraint of being generally consistent with other rights. All threeof these elements require complicated explication, but it is worth
observing here that the reference to "burdens" in (b) is not simply to be
explicated in terms of such factors as market price or psychologicalburdens due to immoral (e.g., homophobic or racist) commitments,
since this would render the existence of human rights hostage to8
features of the world that involve moral flaws. 4 Unfortunately, muchof contemporary IHRL discourse fails to heed these considerations,
damaging its ability to realise its formative aim of giving effect tohuman rights morality.
This was strongly borne in on me in the course of working as
consultant to the World Bank on a project on minimum core obligations
49
and their relevance to the right to health in particular. Taking thehuman right to health as a point of focus is especially illuminating, inthis context, because it resonates with the plausible claims of humanrights advocates, such as Alston,50 that an effective response to the
populist backlash against human rights must accord socioeconomic
rights, in whose provision the general populace might more readily see
itself as having a stake, equal visibility alongside more familiar civil
and political rights, which are often (wrongly) conceived as
predominantly of benefit to minority groups, criminals, refugees,

46.
47.
48.

Id. at 50-53.
Id. at 56-63.
Id. at 60.

49.

See JOHN TASIOULAS, MINIMUM CORE OBLIGATIONS: HUMAN RIGHTS IN THE

2017),Bank(World
1-3
Now
AND
HERE
https://openknowledge.worldbank.org/bitstream/handle/10986/29144/122563-WP[https://perma.cc/P7EV-977D]
Tasioulas2-PUBLIC.pdf?sequence=1&isAllowed=y(archived Sept. 11, 2019) [hereinafter TASIOULAs, MINIMUM CORE OBLIGATIONS]; JOHNTASIOULAs, THE MINIMUM CORE OF THE HUMAN RIGHT TO HEALTH 1-2 (World Bank

22561https://openknowledge.worldbank.org/bitstream/handle/10986/29143/1
2017),[https://perma.cclF5VL-CKYMI]
WP-Tasioulas-PUBLIC.pdf~sequence=l&isAllowed=y(archived Sept. 11, 2019) [hereinafter TASIOULAS, RIGHT TO HEALTH]; see also James G.
Stewart, New Symposium - John Tasioulas' Minimum Core Obligations in Economic,
Cultural and Social Rights, JAMES G. STEWART BLOG (May 10, 2018),
http://jamesgstewart.com/new-symposium-john-tasioulas-minimum-core-obligations-ineconomic-cultural-and-social-rights/ [https://perma.ccVXS4-J4XI] (archived Aug. 31,2019).
See Alston, supranote 3, at 9 (explaining that economic and social rights must50.
be part of the fight for human rights).

20191SAVING HUMANRIGHTS FROM HUMANRIGH7S LAW

1183

terrorists, and others.5 1 The standard interpretation of the humanright to health, however, is disfigured by two forms of bloating arisingfrom the failure to heed the vital distinction between interests andrights.
The first form of bloating pertains to the normative scope of thehuman right to health (i.e., the subject matter of this right that
individuates it as one distinct human right among other humanrights). The human right to health is standardly treated as not only
encompassing the provision of (certain kinds of) medical treatment,
public health measures, and social determinants of health. 52 It is also
taken to include any right that bears on the interest in health,including, the right to education, to work, to political participation, theright not to be tortured or discriminated against, and so on.5 3 This
interpretation is doubly problematic-it renders the human right tohealth an unwieldy standard of assessment, since compliance with it
involves compliance with a large schedule of other rights, and it
undercuts the very enterprise of having an enumerated list of specific,
largely nonoverlapping, rights since it turns out that one of these rights
incorporates virtually all of the others. What underlies these
difficulties is a failure adequately to distinguish the right to healthfrom the interest in health. The former is one right among others; thelatter is a universal interest that underlies many rights, among whichis the right to health (the same is true of an interest like autonomy,
which also lies at the basis of many human rights, hence cannot serveas the basis for individuating their normative scope). 54 The proper way
of individuating distinct human rights is not simply by reference to the
profile of interests they serve (since these will often be very similar in
the case of quite different rights) but by reference to the subject matter

See TASIOULAs, MINIMUM CORE OBLIGATIONS, supra note 49; TASIOULAS,51.
RIGHT TO HEALTH, supra note 49.

U.N. Comm. on Econ., Soc., & Cultural Rights, General Comment No. 14: The
52.
Right to the Highest Attainable Standard of Health, ¶ 2, U.N. Doc. E/C. 12/2000/4 (Aug.
11, 2000) [hereinafter CESCR General Comment 14].
53.
See id. at 1 3 ("The right to health is closely related to and dependent upon
the realization of other human rights . . . including the rights to food, housing, work,
education, human dignity, life, non-discrimination, equality, the prohibition against
torture, privacy, access to information, and the freedoms of association, assembly andmovement. These and other rights and freedoms address integral components of theright to health."). A leading global health law scholar has found this characterisation of
the scope of the human right to health too limited, and has suggested the inclusion of"gender equality, employment, and social inclusion." LAWRENCE 0. GOsTIN, GLOBALHEALTH LAW 257 (Harv. Univ. Press 2014). Meanwhile, a "Fact Sheet" jointly issued by
the Office of the UN High Commissioner for Human Rights and the World HealthOrganization has, in similar terms, described the right to health as incorporating a rangeof other rights, including gender equality and freedom from torture and other cruel,inhuman, or degrading treatment of punishment. The Right to Health: Fact Sheet No.
31, OFFICE OF THE U.N. HIGH COMM'R FOR HUMAN RIGHTS & WORLD HEALTH ORG. 3

2008),
https://www.ohchr.org/Documents/Publications/Factsheet3l.pdf(June[https://perma.cc/A4QT-JNZB] (archived Sept. 17, 2019).
54.
See Tasioulas & Vayena, supra note 39.

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of the obligations associated with them. 55 In the case of the humanright to health, these obligations are best interpreted as relating to
medical treatment, public health measures, and social determinants ofhealth. 56 On this view, therefore, torture, chronic unemployment,
deprivation of basic education, and gender discrimination can all behuman rights violations that have a severely negative impact on healthwithout also thereby constituting violations of the human right tohealth. Nor is this tendency confined to economic, social, and culturalrights, as the Human Rights Committee's recent General Comment
No.36 on the right to life amply illustrates.5 7 The committee interprets
to
right
a
includingas
expansively,
very
this rightenjoy a life with dignity (T 3), with the result that its content is
extensively "informed by other human rights," including rights in theInternational Covenant on Economic, Social, and Cultural Rights (¶2).58 However, the committee is less than forthcoming in articulating a
principled basis for when the right to life incorporates the content ofother human rights. It also does not adequately explain how theextensive overlaps with socioeconomic rights, such as the rights tohealth and housing, that it proposes are compatible with its claim thatthe right to life is nonderogable "even in situations of armed conflict59
and other public emergencies which threatens the life of the nation."
Again, the suspicion arises that the right to life is being individuatedhere by reference to the generalised interest in a "life with dignity,"60
rather than by anything with the normative shape of a right.
The second way in which the human right to health is bloatedrelates to its content (i.e., the content of the obligations associated withit). This is so even if the scope of its normative content is restricted to
obligations whose subject matter pertains to medical treatment, publichealth measures, and relevant social determinants of health. This
content is standardly made to encompass elements that it is not
remotely plausible to claim are owed to all because, in virtue ofentrenched resource constraints, it is not possible, or it is unduly

Id. at 369-73.
55.
Id.
56.
57.
See U.N. Human Rights Comm., General Comment No. 36, art. 6, U.N.
Doc. CCPR/C/GC/36 (Oct. 30, 2018).
58.
See id. at ¶ 26. The extent of the overlap with socio-economic rights issignificant. "The duty to protect life also implies that States parties should takeappropriate measures to address the general conditions in society that may give rise todirect threats to life or prevent individuals from enjoying their right to life with dignity.
These general conditions may include high levels of criminal and gun violence, pervasive
traffic and industrial accidents, degradation of the environment, pervasive traffic andindustrial accidents, deprivation of land, territories and resources of indigenous peoples,the prevalence of life threatening diseases, such as AIDS, tuberculosis or malaria,
extensive substance abuse, widespread hunger and malnutrition and extreme poverty
and homelessness."
59.
Id. at ¶ 2.
Id. at ¶ 3.
60.

2019]SAVING HUMAN RIGHTS FROM HUMANRIGHTS LAW

1185

burdensome, to impose them as obligations. Consider, again, theEconomic, Social and Cultural Rights Committee's General Comment
14 on the human right to health, 61 and focus on what it says about the
special category of minimum core obligations. These are supposed to be
obligations of immediate effect, unlike other obligations associatedwith socioeconomic rights they are not subject to progressive
realisation over time, and also obligations that the General Commentinterprets (wrongly, in my view) as nonderogable. 62 The minimum core
is interpreted as including elements, such as the adoption of "anational public health strategy and plan of action on the basis of
epidemiological evidence" that, as leading commentators have pointed
out, the richest and most advanced societies would struggle to meet. 63
In the judgment of John Tobin, author of a meticulous study of theright to health in international law,the vision of the minimum core obligations of states under the right to health, as
advanced by the ESC Committee, is disassociated from the capacity of states torealize this vision. It simply does not offer a principled, practical, or coherent
rationale which is sufficiently sensitive to the context in which the right to health64
must be operationalized.

It is hardly surprising, in light of the kind of approach detailed
above, that critics of the policy significance of the human right tohealth have dismissed it on the grounds that it represents "a claim on
funds that has no natural limit, since any of us could get healthier withmore care." 65 This criticism would hit its intended target if the
expansive interpretation of human rights as interests were defensible
in terms of the FAT, but it is not. Once the right is identified with theunderlying interest which it serves, what is left is a supposed "right"that no longer has content with the shape and force of an obligation; it
is to a large extent unfeasible; and it is readily and systematicallyoverridden by competing considerations, given an environment ofmultiple competing claims on scarce resources. 6 6 In defiance of the
FAT, it increasingly alienates IHRL from its normative roots in humanrights morality, breeding scepticism about human rights law that may

61.
62.
63.

CESCR General Comment 14, supra note 52.
See id.
See id.

64.

JOHN TOBIN, THE RIGHT TO HEALTH IN INTERNATIONAL LAw 240 (Oxford

Univ. Press 2012).
65. William Easterly, Human Rights are the Wrong Basis for Healthcare, FIN.
TIMES,
Oct.
12,
2009,
http://www.ft.com/cms/s/0/89bbbda2-b763-1lde-981200144feab49a.html#axzz3ym5AIA9w [https://perma.ccl3WMJ-76HF] (archived Sept. 11,2019).
66.

See TASIOULAS, RIGHT TO HEALTH supra note 49, at 8.

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end up becoming, by a foreseeable if not justifiable process of blowback,scepticism about human rights morality itself.

67

A human rights doctrine that exemplifies the concerns expressed
here is that of proportionality, a doctrine whose influence has
expanded beyond its origins in German theology to German
constitutional law and on to human rights legal thinking moregenerally, even if the United States has remained largely impervious
to its otherwise extensive influence. 68 This doctrine involves a very
expansive interpretation of human rights, such that they are equatedwith virtually any legally cognisable interest an individual may
possess.6 9 Having inflated the scope and content of human rights inthis way, it then asks whether a measure that infringes this wide rightmight nonetheless be justified on a proportionality analysis that takes
70
into account valid purposes served by the infringement. This Article's
discussion will be focused on the very first step of the proportionality
analysis-the highly expansive interpretation of the content of humanrights with which it starts.
Although proponents of the proportionality approach may use thewords "obligation" or "duty," proportionality exerts great pressure on
the key idea that human rights are rights as opposed to interests orvalues.7 1 As the leading theoretical proponent of the doctrine, Robert
Alexy, has recognised, on the proportionality view fundamental rights
are "ubiquitous," just because legally cognisable interests ofindividuals are ubiquitous.7 2 But the price of this ubiquity is a drastic

For a helpful discussion of the ways in which expansion in the content of IHRL
67.
can undermine their effectiveness, see Yuval Shany, The Universalityof Human Rights:
PragmatismMeets Idealism, THE JACOB BLAUSTEIN INST. HUMAN RIGHTS LECTURE (July

https://www.jbi-humanrights.org/BlausteinLecture2.Online.24Julyl8.pdf
2018),
21,[https://perma.cclS5B8-RW6W] (archived Aug. 31, 2019).
See Robert Alexy, Constitutional Rights, Balancing, and Rationality, 16
68.
RATIO JURIS 131, 132 (2003).

See id. at 135.
69.
70.
There are different formulations of the doctrine, but one that has achieved
canonical status proceeds by (1) identifying a legitimate aim served by some measure;(2) asking whether the means adopted are effective in achieving that end; (3) whether
they have has the smallest negative impact on other rights and interests; and (4) asking
whether, all things considered, the pursuit of the aim through these means is reasonable
having regarding not only to the harm done as a side-effect, but also to the harm thatwould ensue by not pursuing the aim at all (or through these or comparable means).
There are various criticisms to be made of these elements, but my focus is on a prior stepin proportionality analysis: the tendency to identify rights with interests and hence tobe quick to identify all sorts of measures as interferences with rights that need to bevindicated via proportionality analysis. For a discussion of proportionality, see John M.
Finnis, JudicialPower:Past, Present and Future 18-19 (Oxford Legal Studies, Researchhttps://papers.ssrn.com/sol3/papers.cfm?abstract-id=2710880
2/2016),No.
Paper[https://perma.cclH9JU-RRE4] (archived Sept. 1, 2019).
71.
See Alexy, supra note 68, at 133.
72.
Id.

2019]SAVING HUMANRIGHTS FROMHUMANRIGH7SLAW

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demotion in significance. 73 As Mattias Kumm, another of the leading
defenders of proportionality, has written: "[A] rights-holder does nothave very much in virtue of having a right .... An infringement of thescope of a right merely serves as a trigger to initiate an assessment of
whether the infringement is justified." 74 What is lost here is the ideathat human rights involve obligations, because obligations are notubiquitous and of their nature generally resistant to being overridden
by countervailing considerations. 7 In forthrightly setting out manifest
implications of the proportionality doctrine, Alexy and Kumm
inadvertently provide us with its reductio ad absurdum.
To elaborate somewhat on this last point, it is important todistinguish three real or apparent conflict scenarios that need to beaccommodated by human rights morality, and a human rights law thatis properly responsive to it. The first scenario is that in which a given
human right appears to be in conflict with another consideration,
including perhaps another human right, but this appearance is false.
One reason why there is no conflict may be that the supposed
conflicting consideration falls within the scope of an exception built
into the specification of the relevant human right's associatedobligations. It is an open question, of course, whether there are any
human rights that identify wrongs that are not subject to exceptions.
The obligations associated with the human right not to be tortured areoften interpreted in this way. 76 The criminal who has been justly
sentenced to a term of imprisonment for having committed murder
should be treated as falling within an exception to the right to liberty.
His right to liberty is not in conflict with the demands of retributive
justice which justify the imprisonment.7 7 Instead, the obligation
associated with his right to liberty is subject to certain exceptions, andone of them is an exception catering for loss of liberty based on theinfliction of a just punishment. 7 Such a criminal's interest in liberty is

73. See id. at 134 (citing JURGEN HABERMAS, BETWEEN FACTS AND NORMS 1, 256(William Rehg trans., Cambridge Polity 1996)).
74.
Mattias Kumm, PoliticalLiberalism and the Structure of Rights: On the Placeand Limits of the Proportionality Requirement, in LAW, RIGHTS AND DISCOURSE: THE
LEGAL PHILOSOPHY OF ROBERT ALEXY 139 (George Pavlakos ed., Hart Publishing 2007).

75.
See id.
76.
As a matter of law, Article 7 of the International Covenant on Civil andPolitical Rights, which prohibits governments subjecting anyone "to torture or to cruel,inhuman or degrading treatment of punishment," is standardly interpreted as
exceptionless. See International Covenant on Civil and Political Rights, March 1976, 99
U.N.T.S. 171.
77.
See GRIFFIN, supra note 43, at 57-82. This is the leading contemporary on
philosophical discussion of human rights, but it manifests a tendency to identify humanrights with our interest in personhood, downplaying the vital role of obligations in
specifying the content of human rights. This, I have argued, has unfortunate
consequences for Griffin's account of the grounding of human rights and their role inpractical conflicts. John Tasioulas, Taking Rights out of Human Rights, 120 ETHICS 647,
672-78 (2010).
78.
See Tasioulas, supra note 77, at 673-78.

VANDERBILT JOURNAL OFTRANSNATIONAL LAW

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undeniably set back in virtue of the just sentence imposed upon himthat setback to interests is, after all, a crucial part of the point of
79
This ispunishing him-but his right to liberty is unaffected.
something that cannot easily be said on the proportionality analysis,
which tends to reduce the right to liberty to the criminal's interest inliberty, and therefore is compelled to regard the just sentence as an
80
infringement-a justified violation-of that right.
Justified violations, or infringements, of a right represent thesecond kind of conflict scenario. They involve cases where theobligation associated with a right is engaged but its normative force isoverridden or at least counterbalanced by another consideration,
whether a human right or some other value.si Again, it is an open
question whether an obligation associated with a given right isdefeasible in this way or, instead, possesses absolute force and82
therefore is never open to being justifiably overridden. Almost bydefinition, the occurrence of cases of infringement will tend to be rare,arising in emergency situations rather than the ordinary course oflife. 83 Reverting to the human right to liberty, an example of an
infringement of a human right would be a situation in which, in order
to avert a massive terrorist attack, a large number of people have to belocked in a building for a whole day in order to prevent the launch ofthat attack by a terrorist reasonably suspected to be hiding in thatbuilding." Here the rights to liberty of the innocents in the building
have been violated, but justifiably so. That they have been violated, in
contrast with the case of the criminal sentenced to a just punishment,
is shown by the fact that they, unlike him, deserve an apology andperhaps even compensation for the permissible violation of their rights.
The obligations to apologise and to compensate are what have beentermed "remainders" of the initial obligation not to interfere with theirliberty. Moreover, they, unlike the criminal, have good reason to seek
to evade the restriction of their liberty, if they could do so in such a way
as to not unduly risk imperiling the measures taken to foil the terrorist
attack.
Finally, the third scenario is that in which is a genuine conflict
between the human right and the other practical consideration, butthere is no justification for overriding the obligation associated withthe right. Failure to comply with the right in such a case is astraightforward violation of the human right. The only ameliorating
factors here may be considerations that tend to excuse the rights
violator, such as the fact that they were provoked or acted in ignorance,

79.
80.
81.
82.
83.
84.

See id.
See GRIFFIN, supra note 43; Tasioulas, supra note 77.
See Tasioulas, supra note 77.
See id.
See id.
See id. at 673.

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or that justify extending merciful treatment to them, such as the factthat they have repented of their wrongdoing.
An aspect of the poverty of the proportionality analysis is that, in
conflating rights with interests in its very first step, it fails toaccommodate this threefold scheme in the right way, being too readyto find conflicts where there are none and, as a result, massively
inflating the category of infringements.8 5 But this is inconsistent withthe fact that the normative content of rights is given by their associatedobligations and that it belongs to the very idea of such an obligationthat it is robustly (if not absolutely) resistant to being overridden. 8 6 Or,
as T.M. Scanlon has put it, "interests are balanced, rights are redefined."87 In other words, while interests, considered purely asinterests, pervasively come into conflict among themselves and withother considerations and have to be traded off against each other inordinary practical deliberation, rights have as their content
obligations, and serious thinking about the latter has to focus on
specifying their content in such a way that they are generally resistant
to being overridden, which may indeed involve redefining thoseobligations over time.8 8

It is not difficult to see how continual gnawing away at theconnection between IHRL and human rights morality can lead togeneral disaffection with the former. One way is through people coming
to feel that the FAT, which they believe ought to regulate thedevelopment of IHRL, is not being complied with by the latter. Such a
possibility is not farfetched if, as suggested above, elements of humanrights morality figure strongly in the moral consciousness of ordinary
people, together with the common-sensical belief that the point of
IHRL is to give appropriate expression and effect to this morality.8 9
But a more indirect path to discontent makes less ambitious
assumptions about implicit moral knowledge. For, even if ordinary
people are persuaded that the basic interests discussed above are theirrights, it is inevitable that the aspirational and insatiable character of85.
Interestingly, Article 19(2) of the German Basic Law protects the "essence" ofa basic right from being qualified. See GRUNDGESETZ [GG] [BASIC LAW] art. 19(2) (Ger.).
But this expedient of identifying a non-derogable core leaves out the central case, inwhich the obligation is robustly, but not absolutely, resistant to trade-off.
86.

See FRANCISCO URBINA, A CRITIQUE OF PROPORTIONALITY AND BALANCING(Cambridge Univ. Press 2017); Guglielmo Verdirame, Rescuing Human Rights From
Proportionality, in PHILOSOPHICAL FOUNDATIONS OF HUMAN RIGHTS, supra note 38;

Finnis, supra note 70.
87.
T.M. Scanlon, A Framework for Thinking about Freedom of Speech, and Someof its Applications 5 (Oct. 26, 2018) (unpublished manuscript) (on file with the Universityof California, Berkeley School of Law).
88.
For reasons of the kind sketched above, I have been encouraged by, and learnt
from, the following recent works on proportionality: Finnis, supra note 70; URBINA, supranote 86; Verdirame, supra note 86 (criticizing proportionality as a subversion of humanrights morality).
89.
See Tasioulas, supra note 2, at 14.

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such demands will lead those interests to go systematicallyunderfulfilled. This, after all, is the clear message of the
proportionality analysis in conceding that "a rights-holder does not0have very much in virtue of having a right."9 It can be anticipated thatthose who have had their hopes raised about lavish entitlements tohealth care, education, or work opportunities will be liable to fall victim
to intense frustration when these entitlements are not remotely
satisfied, followed by anger and eventually cynicism about the wholeenterprise of IHRL, and perhaps even about human rights morality
itself.91

Various lines of response on the part of those who are sympathetic
to the tendency to identify rights with interests can, of course, be
anticipated. Consider here two broad responses that concede thesubstance of the critique that the Article has been elaborating. The
first kind of response, which is broadly technocratic in character, canbe put in the mouths of the friends of the proportionality doctrine.
Accepting the categorical difference between universal interests andhuman rights morality, they might nonetheless defend proportionality
as a useful judicial heuristic device or decision procedure. This would
be to contend that, although it does not closely reflect the logic of
human rights proper, nonetheless proportionality is the procedure best
calculated to secure superior human rights outcomes overall in judicial
adjudication, thereby meeting the demands of the FAT. Much here will
depend upon whether the vaunted advantages really are in the offing,something regarding which it is possible to be doubtful, especiallywhen it comes to the limits of judicial expertise in the domain ofsocioeconomic policy within which so-called welfare rights must
operate. But even if these doubts could be assuaged, there would still
be a problem of legitimacy confronting the proposal to confer such
92
broad-ranging discretion upon judges in human rights adjudication.
The second response, call it the vanguard response, might be
attributed especially to human rights activists operating beyond thestrict confines of legal adjudication. The response is that the distinction
between interests and rights is correct as a matter of strict moral logic,

90.
Robert Alexy, Political Liberalism and the Structure of Rights, in LAW,RIGHTS AND DISCLOSURE: THE LEGAL PHILOSOPHY OF ROBERT ALEXY 139 (George
Paviakos ed., Hart Publishing 2007).
For a powerful expression of this sort of theme, see Onora O'Neill, The Dark
91.
Side of Human Rights, 81 INT'L AFF. 427, 429-33 (2005). However, O'Neill imposes amore stringent demand that not only must there be obligations associated with humanrights in morality, but that these obligations must be allocable by pure moral reasoning,
without any kind of institutional fiat. This leads her to reject the bona fides of socioeconomic rights as moral human rights, since the allocation of the positive obligations
associated with them typically does demand some institutional mechanism. I haveargued against this overly austere view. See John Tasioulas, The Moral Reality of
Human Rights, in FREEDOM FROM POVERTY AS A HUMAN RIGHT: WHO OWES WHAT TO
THE VERY POOR? 75, 80-82 (Thomas Pogge ed., Oxford Univ. Press 2007).
92.
See infra Part IV.

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but neglects the advantages of treating human rights as important
human interests when it comes to fashioning and deploying apolitically effective rhetoric. Only such an ambitious, aspirationalrhetoric, the response goes, will galvanise ordinary people to further
the interests of their fellow citizens and others; only such a rhetoric
will set a high enough bar against which to judge official action, given
the inveterate tendency of governments to fall short of the objectives
they have been set. This response too is to be judged empirically on
whether it achieves its advertised payoffs, rather than breeding
cynicism about human rights law as embodying practicallymeaningless utopian ideals that give with one hand only to take withthe other. But, beyond this outcome-oriented concern, there is also an
inherent strain in advancing the human rights cause by means ofliterally overblown claims that deviate from the actual truth abouthuman rights. After all, the strategy advocated for involves misleading
people about their human rights in order to achieve a supposedly
improved human rights outcome.
If, as this Article has urged, IHRL is disciplined in line with the
FAT, then we have to jettison-happily, rather than with regret-theidea that IHRL is a blueprint for utopia. We have to give up the ideathat IHRL is a means for pursuing all of the moral and political ideals
we properly recognise. Instead, IHRL is primarily aimed at advancing
human rights morality through a distinctive legal technique. But
human rights morality does not exhaust the whole of morality, noreven everything that is most important in morality. In addition to
universal moral rights, there are moral rights that we possess not
simply in virtue of our humanity, but in virtue of our membership ofparticular communities, call them citizenship or membership rights.9 3
These rights form a natural template for thinking about legallyenshrined constitutional rights within a given polity.94 There are also
moral rights possessed by groups, such as the right to national selfdetermination, and also rights held by animals. In addition to theserights, morality includes obligations that are not associated withrights, such as obligations of charity or mercy, which have an
important place in practical deliberation despite not being claimableby any of their beneficiaries as a matter of right. Finally, it includes
supererogatory ideals-such as ideals of excellence, heroism, or lovethat there is good reason to pursue but which are not obligatory.95 It inno way undermines the distinctive significance of human rights toobserve that they do not exhaust the whole field of moral concern; on

93.
See DAVID MILLER, NATIONAL RESPONSIBILITY AND GLOBAL JUSTICE (Oxford
Univ. Press 2007) (providing a helpful exploration of the idea of citizenship rights).
94.
See id.
95.
See id. at 14-15.

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the contrary, it is essential to registering that distinctive
significance. 96
Fortified with this antiutopian insight, one is better equipped todefend a reformed IHRL against leading critics from both the right andthe left of the political spectrum. These are influential critics who in noway fit Alston's and Zeid's characterisation of the populist opponents
97
of human rights as nationalists, xenophobes, and misogynists. One
double-barreled line of objection from the right can be found in Eric
Posner's book, The Twilight of Human Rights Law.9 8 Posner's firstobjection takes its rise from the tendency of IHRL to proliferate rights
and uncontrollably expand their content. 99 This tendency, Posnerargues, deprives IHRL of its ability effectively to guide the conduct ofstates or, therefore, to provide a determinate yardstick for subjecting
state policy to critical evaluation. 0 0 Putting a somewhat cynical spinon this phenomenon, he observes that since human rights demands are
numerous and impossible to comply with immediately as a complete
set, a state can always plausibly claim to postpone compliance with any
given right (or a given obligation associated with a right) in order tocomply with another right (or its associated obligation).101 But, even if
this has some strength against the current expansionist tendencies of
IHRL, the proper answer is to bring such law into line with the FAT,
and to develop certain doctrines more fully, such as those of progressive
realisation and minimum core obligations, which offer guidance withrespect to the prioritisation of human rights demands in the face ofresource scarcity.1 02 Posner's second line of objection is that, to theextent that IHRL does provide guidance when it comes to matters ofdevelopment, development economics is a far superior source of
guidance than IHRL:
If the goal is to help people in poor countries, and limited funds are available,
then those funds should be used in ways that do the most good, not to compel the96.

This has been a persistent theme in the important work of Onora O'Neill. For

example, see JUSTICE ACROSS BOUNDARIES: WHOSE OBLIGATIONS? (Cambridge Univ.

Press 2016).
Alston, supra note 3; Al Hussein, supra note 4.
97.
98.

See generally ERIC A. POSNER, THE TWILIGHT OF HUMAN RIGHTS LAw (Oxford

Univ. Press 2014).
See id. at 32-38.
99.
100. See id.
101. Compare POSNER, supra note 98, at 92-93 ("The dilemma for human rights
enforcers is that they cannot demand that states comply with all rights perfectly, but ifthey do not, then they have no basis for criticizing a country's decision to allocate moreresources to satisfy one rather than another."), with HANNUM, supra note 37, at 57-58(arguing that the proliferation and expansion of human rights claims often reflects anattempt by governments hostile or indifferent to human rights "drown" the project of
IHRL by overburdening it). For a more moderate version of this objection, see Neuman,supra note 10, at 51.
102. See POSNER, supra note 98, at 92-93.

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country to submit to an abstract formulation of human rights that Westerners
103
imagine are right for everyone in the world.

Crudely put, if our goal is to maximise utility in a less developed
country, mosquito nets are generally superior to lawsuits. 104 But noticethat Posner simply appears to assume that maximising utility ("do themost good"), and its customary proxy, economic growth, is the ultimate
objective of development policy.' 0 5 Whether or not one believes that
there is a requirement to maximise utility-whether or not one is autilitarian of some sort-according to the FAT this is decidedly not theaim of IHRL. Human rights law should secure human rights even if,
as is often the case, doing so fails to maximise aggregate utility (e.g.,
because it rules out forms of surveillance or interrogation that would
maximise general welfare but violate the right to privacy or the rightnot to be tortured). Human rights are a vital component of an accountof sustainable development, but scarcely the whole of it. 106 If one isclearer about the important, but circumscribed, objective of IHRL, such
critics can be put on the back foot. The yardstick they employ tomeasure the performance of IHRL can be challenged, and this will force
critics like Posner to articulate and defend their own normative
assumptions, something that they typically avoid doing (often on theunhelpful grounds that they are not advancing "philosophical"
theses). 0 7 Unfortunately, international human rights lawyers havenot been in a good position to do this because they have tended toembrace the idea that IHRL is about the promotion of interests
generally, collapsing the human rights system into what Posner calls"an undifferentiated welfarism," thereby gifting him precisely the
opening his scepticism needs to question the efficacy of IHRL. 0 8
Something similar goes for critics from the left. Writers like
Samuel Moyn, for example, have explicitly attributed to IHRL the aimof constructing utopia-the last utopia, in the words of his well-known
book-a replacement for the postwar collapse of socialist andcommunist ideals. 0 9 They go on to point out that IHRL has come103. See id. at 146.
104. See id. at 146-47.
105. See id. at 145-48.
106. U.N. High-Level Panel of Eminent Persons on the Post-2015 Development
Agenda, A New Global Partnership: Eradicate Poverty and Transform Economies
Through
Sustainable
Development
9
(May
30,
2013),
https://sustainabledevelopment.un.org/content/documents/8932013-05%20%20HLP%2OReport%20-%20A%2ONew%20Global%2Partnership.pdf[https://perma.cc/HTU9-R29T] (archived Sept. 13, 2019).
107. See generally POSNER, supra note 98.
108. Id. at 94 ("The more human rights there are, and thus the greater the varietyof human interests that are protected, the more that the human rights system collapses
into an undifferentiated welfarism in which all interests must be taken seriously for thesake of the public good.").
109. See SAMUEL MOYN, THE LAST UTOPIA: HUMAN RIGHTS IN HISTORY 4-5, 211(Harv. Univ. Press 2010); see also Samuel Moyn, Human Rights in Heaven, in HUMAN

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drastically short of building utopia on earth, in part because human0
rights do not give us enough of the values we cherish.11 In particular,
IHRL has not done enough to address the massive economic
inequalities that have arisen in the very same period -the heyday of
economic "neoliberalism"-during which the human rights ideology
has been ascendant."' Now, it seems there are many things that one
could say in reply to Moyn. One is that he has not adequately specified
what kind of egalitarianism he has in mind, let alone defended itagainst objections. This requires hard normative work, as thephilosophical literature on equality readily attests. Another is that heunderestimates the potential of human rights to constrain permissible
material inequality, perhaps because he focuses excessively on how
IHRL is understood or implemented, rather than on what it actuallyrequires or ought to require. It is worth asking: How much truly
worrying inequality would persist if an IHRL properly in line with the
FAT were fully realised throughout the globe? This question, whichgoes to the core of his criticism, is one that is not taken seriously
enough by Moyn. But the third point to stress here is that the utopian
interpretation of IHRL should be rejected-there should be no truck
with the idea that IHRL is supposed to be the primary conduit forrealising all of our most important human values. So, even if leftist
critics like Moyn can articulate a compelling egalitarian ideal, thequestion will remain whether that ideal is the proper business of IHRL.
It may, instead, be one of a number of eligible conceptions of social
justice, none of which has a compelling claim in the abstract to therealised through IHRL. It cannot be assumed that any such egalitarian
ideal is the proper business of IHRL on the illusory basis thateverything of great value reduces to human rights.
Both criticisms from the stylised left and right politicalstandpoints could be parried if IHRL were properly responsive to theimportant but limited objective described by the FAT. As an anecdotal
matter, however, it is worth registering that whereas criticisms to theeffect that IHRL is overly ambitious are often regarded by insiders as
heretical, criticisms along the lines that it is not aiming high enoughusually receive a much more sympathetic hearing. This is not only
because it is those nominally associated politically with "the right" whoare prone to make criticisms of the former kind. This asymmetry in
response also reflects the misguided totalising ambitions of many of
those in the human rights movement, hence their reluctance to accept
that not everything of great value is a matter of human rights or to be

RIGHTS: MORAL OR POLITICAL? (Adam Etinson ed., Oxford Univ. Press 2018); John
Tasioulas, Philosophizingthe Real World of Human Rights: A Reply to Samuel Moyn, in
HUMAN RIGHTS: MORAL OR POLITICAL?, supranote 109.
110. See id.
111. See SAMUEL MoYN, NOT ENOUGH: HUMAN RIGHTS IN AN UNEQUAL WORLD
176-220 (Harv. Univ. Press 2018) [hereinafter MoYN, NOT ENOUGH]

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pursued through IHRL. It is this totalising ambition, the dream offormulating a "secular ethic" for a globalising world couched
exclusively in the language of human rights, that needs to be discarded
as a prelude to a proper understanding of both human rights morality
and IHRL.

IV. LEGALISATION AND JUDICIALISATIONLet us turn now to the second way it was previously foreshadowedthat contemporary IHRL strays from the FAT: through the unjustified
legalisation or judicialisation of human rights morality. We begin withlegalization before turning to judicialization. Prominent philosophers
have argued that it belongs to the very nature of human rights thatthey are oriented towards legalisation, in that affirming the existenceof a norm of human rights morality carries the implication that there
is at least a pro tanto case for its legal enactment: whether as law
generally (Joseph Raz), as constitutional law (Jilrgen Habermas), or as
part of IHRL (Allen Buchanan).1 12 By contrast, I have argued,
following the lead of Amartya Sen, 113 that it is better to resist the ideathat there is a conceptual nexus between human rights morality andhuman rights law of any of these kinds. 114 On this view, preparedness
to legalise human rights norms is an important indication that one
takes them seriously.1 15 Recall however that, according to the FAT,
there are both principled and pragmatic constraints bearing on thequestion of whether some component of human rights morality should
be enshrined in, or given effect through, IHRL.11 6 One pragmaticconstraint relates to whether IHRL will actually work to bring about
increased compliance with human rights morality or whether it will be,
instead, neutral or even counterproductive in its effect or in some way
excessively damaging to other values. 1 7 So, to provide a helpful focus
for this discussion, consider the question of whether joining a112. These are the views, respectively, of Joseph Raz, Jilrgen Habermas, and Allen
Buchanan. See generally JOSEPH RAz, Human Rights Without Foundations, in THE
PHILOSOPHY OF INTERNATIONAL LAw (Samantha Besson & John Tasioulas eds., Oxford
Univ. Press 2010); JURGEN HABERMAS, The Concept of Human Dignity and the Realistic
Utopia of Human Rights, in THE CRISIS OF THE EUROPEAN UNION: A RESPONSE 71(Ciaran Cronin trans., Polity 2012); BUCHANAN, supra note 23, at 3.
113. See Amartya Sen, Human Rights and the Limits of Law, 27 CARDOZO L. REV.
2913, 2918-19 (2006); Tasioulas, On the Nature of Human Rights, supra note 1, at 23-

24.
114. See Tasioulas, On the Nature of Human Rights, supra note 1, at 23-24.
115. So, for example, an astute but sympathetic critic of IHRL, like Hurst
Hannum, still conceives of human rights norms as essentially legal norms. See HANNUM,
supra note 37, at 19. But even human rights lawyers who do not follow him in this, andacknowledge a background morality of human rights, are strongly prone to take thedesirability of legalising such rights as an article of faith.
116. Tasioulas, supra note 2.
117. Id.

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multilateral human rights treaty regime enhances compliance withhuman rights morality by member states.
Empirical investigations into this question suggest an interesting
conundrum. On the one hand, the strongest evidence for a positive
1 18
These
effect of treaty membership relates only to a subset of states.
do not include established liberal democracies or autocratic regimesthe best and worst performers with regard to human rights compliance,
one might plausibly suppose-but rather the group of states that aremoderately democratic or transitioning towards democracy after aperiod of turmoil, such as a civil war. 11 9 This was the finding of Beth120
We
Simmons's groundbreaking book Mobilizing for Human Rights.
need not be detained here by questions about the mechanisms throughwhich this improvement in performance is achieved; suffice to say that
Simmons and others strongly emphasise the impact of treaties on
domestic politics and litigation rather than on the workings of external,"white knight" interventions by other states or internationalorganisations.1 21 This priority of domestic politics explains thesignificance of a state's possessing a quasi-democratic character inchannelling the influence of IHRL into its policy and conduct.122

However, in addition to this positive effect, there is also evidenceof backsliding-of deterioration in compliance with human rights
relative to what it was or might have been domestically for a given
state-when high-performing states, especially democratic states thatare highly integrated into the international legal order, join humanrights treaties.1 23 In an original and richly suggestive article, Andrew
Guzman and Katerina Linos set out some cases of backsliding,including how membership of the European Convention on Human
Rights has impacted negatively on the rights of criminal defendants
and gay people in the United Kingdom and entitlements of welfare
claimaints in Sweden. 124 Guzman and Linos claim that the existence
125
of backsliding explains various human rights-related phenomena.
These include the reluctance of high-performing states to join humanrights treaties and the emergence of regional human rights regimes(since such regimes will typically involve less gaping discrepancies inhuman rights performance among participating states than

118.

BETH A. SIMMONS, MOBILIZING FOR HUMAN RIGHTS: INTERNATIONAL LAW INDOMESTIC POLITICS 1, 151 (Cambridge Univ. Press 2009).
119. Id.
120. Id. A somewhat different way of identifying the states that are most benefited
is formulated by Guzman and Linos. They are those states who are close to, but below,
the relevant international legal human rights norm. See Andrew T. Guzman & Katerina
Linos, Human Rights Backsliding, 102 CALIF. L. REV. 603, 646-47 (2014).
121. See SIMMONS, supra note 118, at 126 ("The real politics of change is likely tooccur at the domestic level."); see also Guzman & Linos, supra note 120.
122. See SIMMONS, supra note 118, at 151.
123. Guzman & Linos, supranote 120, at 605.
124. Id. at 615-23.
125. Id. at 610.

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international
regimes,
thereby diminishing
the threatofbacksliding). 126 They additionally contend that these effects occur
beyond the treaty context, for example, in relation to customaryinternational law and "soft law" norms, since such norms can also
shape the views of some domestic political agents and enhance theirinfluence at the expense of others.1 27 This means that the phenomenonof backsliding cannot be localised to situations in which there is stateconsent to the international norms in question, as in the multilateraltreaty scenario. 128
Now, the overall phenomenon that potentially emerges here iswhat has been aptly termed a "race to the middle."*2 9 As some poorerperforming states are lifted upwards by a human rights treaty, highperforming states are dragged down.' 30 More importantly, the two
phenomena of uplift and backsliding are intimately related. 11 On the
one hand, the very same democratic or quasi-democratic domestic
mechanisms that lead to human rights improvements in the case ofpoorer-performing states can also lead to deteriorations in performancein the case of higher-performing states.1 32 On the other hand, one
cannot simply respond to this situation by excluding high-performing
states from such treaty regimes, since the beneficial effect of such
regimes on poorer-performing states appears to be significantly
dependent on the participation of the former.' 3 3This is a troubling scenario derived from empirical investigation
into how human rights treaty regimes actually work, one that calls into
question the complacent assumption that human rights laws have an
exclusively positive effect on human rights compliance across theboard. In the remainder of this discussion, it will simply be assumed
that this "race to the middle" exists, recognising that whether it does
is a matter of controversy that needs to be settled through the
deployment of skills beyond those of the professional philosopher. One
observation worth making, however, is that Guzman and Linos are notimmune to the tendency to identify human rights with underlying
interests that was criticised in the previous section.1 34 This arguably
leads them to exaggerate the incidence and extent of backsliding
insofar as they are prepared to find that it has occurred whenever there

126. Id.
127. Id. at 640.
128. See id. at 641.
129. See RYAN GOODMAN & DEREK JINKS, SOCIALIZING STATES: PROMOTINGHUMAN RIGHTS THROUGH INTERNATIONAL LAw 1, 75-76 (Oxford Univ. Press 2013).

130. See id.
131. See Guzman & Linos, supra note 120, at 638.
132. See id. at 637-38.
133. See id. at 647-48.
134. The conflation of rights and interests is suggested at various points in theirarticle, for example, in their talk of "infinite provision of the right." Id. at 626; see also
id. at 648, 653 (noting the "greatest improvements to human welfare" and proposing thatmaximal specifications of human rights in law will eliminate backsliding).

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is a reduction in the fulfilment of interests, even without properly
addressing the question whether this reduction breaches any moral or
legal obligation generated by those interests.1 3 5 However, suchconcerns shall be left aside and it will be simply assumed thatbacksliding is a real possibility in order to raise two questions about it.
The first is: What can be done to mitigate, or even eliminate, therisk of human rights backsliding by higher-performing states? Here
there is an interesting proposal by Guzman and Linos that opposes thegeneral drift of my argument in the earlier parts of this Article.1 36 They
claim that one way to eliminate the risk of human rights backsliding
is by having human rights standards in treaties that are "maximal"standards that are very hard or impossible to meet even by highperforming states:
A demanding norm-perhaps even one that exceeds every country's existing
practice-reduces the associated backsliding costs because it reduces the numberof states for which the international norm is less demanding than their ex ante
domestic policy. In the most extreme cases, such as the CEDAW requirementthat states take "all appropriate measures ... to modify the social and cultural
patterns of conduct of men and women," the number of such countries may be
137
reduced to zero, which eliminates the risk of backsliding completely.

However, they concede that this solution would come at a cost, sincemaximal standards would diminish the extent to which poor
performers can be influenced to improve their compliance with humanrights, given that such influence will only operate on states that do not
1 38
fall too far short of the relevant international norm.
But the idea that employing "maximal" standards in treaties
eliminates the risk of backsliding seems very questionable. First of all,if a standard is so maximal that it is virtually impossible for highperforming states ever to meet-like General Comment 14's ambitious"minimum core obligations" associated with the human right to health,which we encountered previously-then it is unlikely to embody thedemands of human rights morality. Human rights morality imposes a
set of obligations that it is feasible, in general, for states to meet. 139
Meeting those obligations is a moral demand, not a mere aspiration;
failure to meet them is a wrong, not an inevitable disappointment.
Maximal standards, by contrast, seem more like aspirations. To thisconcern, the reply may come: Why worry if the 'maximal' standard goes
far beyond the content of the relevant norm of human rights morality?
Will it not be the case that by striving to meet that maximal standard
states are unlikely to do worse in human rights terms than they were135. See id. at 626, 648, 653.
136. Id. at 614 (observing that many international human rights standards are set
at moderate levels and arguing that unreachable standards could eliminate backsliding).
137. Id. at 614, 653.
138. See id. at 652.
139. See CESCR General Comment 14, supra note 52.

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doing before joining the treaty? But there are two main reasons why
this hypothesis is misguided.
First, in seeking to advance human rights by means of a maximal,
aspirational norm, one creates a conflict in human rights
consciousness. Human rights are supposed to be moral demands thatare feasible and that it is morally wrong to violate; maximal standards
will include many elements that are neither of these things. The risk
is that casting human rights law in aspirational terms discredits thevery idea of human rights, promoting a sense of disenchantment andcynicism, or at least laxity, that is detrimental to our commitment to
the morality of human rights and, indirectly, to our compliance withit. 14 0 Second, and more importantly, a maximal human rights norm
will presumably encompass some elements that are genuinely humanrights demands and some that are not. But given that the maximal
norm cannot be realistically fully complied with, a state must
inevitably choose which of its components to meet and which to leave
unmet. The risk is great that a state will choose to fulfil a merely
aspirational component of the norm at the expense of a component thatgenuinely reflects a human right. This might occur not only within thecomponents of a single maximal norm, but also between different
maximal norms, such as the rights to health and to education. So, forexample, faced with resource limitations, a state might choose toprovide cosmetic surgery-an aspirational component-at the expenseof adequate provision of secondary education-a rights-based
component. It would then be complying with human rights law but
backsliding in terms of human rights morality.
Let us turn now to the second question prompted by thephenomenon of backsliding. Assume that backsliding by highperforming states as a result of joining a human rights treaty cannot
be eliminated. This is a reason, pro tanto, for such states not to jointhese treaties. On the other hand, there remains the fact that a treaty
regime would have a positive effect on poor-performing states. Assume
that this positive effect is partly conditional on high-performing states
also joining the treaty regime. Now, the question that arises here iswhether it is acceptable for a government to join a treaty regime,
reasonably anticipating that it will lead to backsliding domestically,
but justifying its decision on the basis of the human rights benefits tocitizens of other states? 141 The question is not fanciful-it is precisely
the way in which some defend the United Kingdom's membership ofthe European Convention on Human Rights. They claim that

140. For a perceptive discussion of the problems that arise when a large andchronically persistent gap opens up between the content of international human rights
law and actual state practice, see Shany, supra note 67, at 8-12.
141. Of course, if Guzman and Linos are right, this worry will extend beyond treaty
norms to customary law and soft law which can have a backsliding effect on a state even
if it has not consented to them. Guzman & Linos, supra note 120, at 640-41. But I leavethis issue to one side.

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membership results in an overall inferior human rights jurisprudence
domestically than nonmembership, but that this detriment is offset by
the gains in human rights compliance in other states' parties. In orderto answer this question, a principled basis is needed for weighing thehuman rights of our own citizens against those of citizens of othercountries.
One line of thought is that a state should give absolute priority to
the human rights of its own citizens. No gains in the human rights offoreigners should be achieved at the expense of human rights losses athome. When it comes to human rights, it is "fellow citizens first." But
this answer has its difficulties, especially in light of the fact that the
obligations associated with human rights vary greatly in importancenotwithstanding that they all arise from moral rights possessed by all
human beings simply in virtue of their humanity. If membership of ahuman rights treaty will bring a significant reduction in the tortureand degrading treatment of prisoners in foreign lands, does the factthat it might have some negative effects domestically at the marginsof the right to free speech really preclude joining the treaty?
At the other extreme, one might argue that when it comes tohuman rights, the human rights of all should count equally; if humanrights are at stake, we should treat people entirely sub specie
humanitatis. No priority whatsoever should be accorded to our fellow
citizens simply in virtue of the fact that they are fellow citizens. A state
would therefore be justified, perhaps required, to join a human rights
treaty if it had a net positive effect on human rights compliance bystates parties, even if this came at the cost of serious backsliding at
home. Like the absolute priority view, however, this no priority view isstrong medicine. It is perhaps most plausible if the set of human rights
were highly constrained, limited to such rights as the right not to be
tortured or enslaved. But on a more expansive reading of humanrights, it seems very hard to sustain against the thought that states
have a special responsibility for their own citizens, which requires
them to accord extra weight to their rights, even if not absolute weight.
Presumably, the thought that states have a special responsibility toadvance the rights and welfare of their own citizens lies at the core ofmuch of the populist revolt against forms of economic globalisation
that-very arguably-have helped raise the living standards of someof the very poorest people on earth, but at the expense of job losses in
wealthier countries.
So, the middle ground proposal is that states should give aweighted but not absolute priority to the fulfilment of their own
citizens' human rights. The difficulty, of course, is in specifying theadded weight and justifying it. The justification, presumably, would besought in the special value of membership of a political community
and, in consequence, the special responsibility that governments haveto the members of their community. That special value is a function,broadly, of the intrinsic and instrumental value of membership of a

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community. Moreover, this value partly encompasses human rights
concerns. The rights to a nationality and to democratic participation
are partly grounded in the intrinsic value to individuals of community
membership. Equally, it can be argued that one form of politicalcommunity-the state-is the most effective instrument for therealisation of human rights in the world today. Hence, the extra
weighting accorded to fellow citizens' rights would not merely reflect
the force of communitarian, non-human rights values.
My strong inclination is to accept a version of the weighted
priority view. However, I do not claim to have provided an answer tothe challenge arising from the asymmetric distributional effects acrossstates of human rights treaties. Nor has our discussion broachedprocedural responses to this challenge, such as the role that democratic
endorsement can play in justifying a choice among some version of thethree broad answers sketched. But once it is seen that human rights
law has to be assessed by reference to a background human rights
morality, and its implications for such a morality cannot be assumed
always to be positive, it is precisely such difficult questions with which
we will need to wrestle. Unfortunately, there is little evidence that
advocates of the legalisation of human rights morality have done so,leaving them open to objections along the lines that human rights
treaties unjustifiably sacrifice the rights and interests of domesti
constituencies.
Let us turn now from legalisation to judicialisation. That humanrights norms are given effect through some legal system or other is one
thing (legalisation), that these norms may be upheld through judicial
procedures of some sort (judicialisation) is another. 142 Again, for manya serious commitment to human rights morality involves acommitment not only to the legalisation of its norms but also theireffective justiciability. It is a powerful theme in contemporary humanrights theory and practice that rights, especially human rights, are thespecial province of the courts. 143 On a crude, but influential, version ofthis account attributable to Ronald Dworkin, legislatures deal withmatters of policy, which aims to maximise the fulfilment of theinterests or preferences of citizens, while courts are forums of principle
in which rights that set a limit to the pursuit of the general welfare are
identified, interpreted, and applied to the specific circumstances of acase.1 44 But this attempt to solder certain categories of values tocorresponding types of institutions (legislature/welfare, courts/rights)
is misguided, as is the idea that rights essentially protect minorities

142.

See, e.g., RONALD M. DWORKIN, A MATTER OF PRINCIPLE 1, 58 (Harv. Univ.

Press 1985).
143. See id. at 33-72.
144. See id.

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from majorities.1 4 5 This is partly for the reason, broached earlier inthis Article, that the idea that rights stand in a dichotomous andgenerally antagonistic relationship to the general welfare or thecommon good is a profound error. But another strain in this crude
picture, which is the assumption that giving adequate effect to rights
entails rendering them justiciable, is worth exploring here. The matteris complicated by the fact that there are different kinds of justiciability,
but this Article will focus on the relatively strong form according towhich a right is justiciable if its possessor is empowered to seek theirentitlements under the right in question to be granted to them by46
means of a judicial decision upholding that right.1
There is much to be learned, in this connection, from the way inwhich the Constitutional Court of South Africa has engaged withsocioeconomic rights, including minimum core obligations associatedwith various such rights enshrined in the constitution. As argued
elsewhere, what can be found in the South African jurisprudence is acombination of three elements: (a) a rejection of any justiciable claim
to be immediately furnished with the content of one's socioeconomic
rights, including that covered by minimum core obligations; (b) an
acknowledgement that the doctrine of minimum core may nonethelessbe relevant to the all-things-considered test of reasonableness inrealising the relevant rights; and (c) a general failure by theConstitutional Court of South Africa explicitly to articulate, or evenrely upon, specific minimum core obligations in reaching its
decisions.1 4 7 Notwithstanding (c), however, it is plausible that theminimum core doctrine is implicit in some of the decisions-especiallythose that involve fulfilment of the right to health insofar as it
addresses urgent needs, as well as various forms of unjustified
48
exclusions.1
This interpretation of the relevant South African jurisprudence
contradicts those commentators who argue that the Constitutional
Court has adopted a test of reasonableness in regard to the fulfilmentof socioeconomic rights in preference to the idea of minimum coreobligations. Quite apart from posing a false opposition between
minimum core obligations and the test of reasonableness, these latterinterpretations seem to be in thrall to the mistaken idea that properly
affirming the existence of a human right entails rendering it justiciable145. See GRtGOIRE WEBBER ET AL., LEGISLATED RIGHTS: SECURING HUMAN
RIGHTS THROUGH LEGISLATION 1-14 (Cambridge Univ. Press 2018) (skewering nicely
some prevailing myths of this kind); see also Finnis, supra note 70.
146. For a helpful discussion addressing some of the complexities of whether
human rights morality should be justiciable in constitutional courts, see Frank I.
Michelman, Human Rights and ConstitutionalRights, in HUMAN RIGHTS, DEMOCRACY,AND LEGITIMACY IN A WORLD OF DISORDER, supra note 10, at 73-96.

147. TASIOULAS, RIGHT TO HEALTH, supra note 49, at 18.
148. Id.

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in the strong sense of justiciability described above. 149 In reality, there
are many practical and principled considerations that stand in the wayof that simplistic inference.1 50 A key passage that helps show why thisis so can be found in the Constitutional Court's judgment in Ministerof Health v. Treatment Action Campaign (No. 2):
It should be borne in mind that in dealing with such matters the courts are notinstitutionally equipped to make the wide-ranging factual and political enquiries
necessary for determining what the minimum core standards ... should be, nor
for deciding how public revenues should most effectively be spent. There aremany pressing demand on the public purse. . . . Courts are ill-suited toadjudicate upon issues where court orders could have multiple social andeconomic consequences for the community. The Constitution contemplates
rather a restrained and focused role for the courts, namely, to require the state
to take measures to meet its constitutional obligations and to subject thereasonableness of those measures to evaluation. Such determinations ofreasonableness may in fact have budgetary implications, but are not themselves
directed at rearranging budgets. In this way the judicial, legislative and
15 1
executive functions achieve appropriate constitutional balance.

Elaborating somewhat on this instructive passage, at least four
significant limitations on the idea of strong justiciability in relation tohuman rights claims can be identified, especially those invoking
socioeconomic rights such as the human right to health. In outlining
these limitations, it will be assumed that part and parcel of any suchjusticiability will be a large role for courts in determining the content
of abstract and open-ended human rights provisions. To begin with,there are constraints on judicial expertise, itself formed by legal
education, experience of legal practice and of judging, when it comes tospecifying the content of human rights and the best means for securingthat content. The process of specification would not only require anadequate grasp of the interests in play, but also of the costs that would
be incurred in fulfilling those interests by means of an obligation of aparticular shape, including the appropriateness of distributing thosecosts in various ways across the different members of society, and in
addition a grasp of the best policies for implementing those obligations.
Of course, the issue of cost arises with respect to all human rights,
whether they belong to the category of civil and political rights or else

149.

See Emma J. Broster, Litigatingthe Right to Health Care in South Africa, in

LITIGATINGTHE RIGHTTO HEALTH IN AFRICA 116 (Ebenezer Durojaye ed., 2016); POSNER,

supra note 98, at 87-88.
150. See Minister of Health v. Treatment Action Campaign 2002 (5) SA 721 (CC)at 28 T 37-38 (S. Afr.).
151. See id.; cf. id. at 1 55-69 (holding that the government policy of restricting
the use of nevirapine, an antiretroviral drug used to combat mother-to-childtransmission of HIV, to research and training sites, unreasonably excluded individuals
in the case of which such treatment was medically indicated); id. at 1 125 (requiring thegovernment to revise its policy on access to nevirapine, but stressing that this did notmean that "everyone can immediately claim access to such treatment, although the ideal...

is to achievethat goal.").

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to economic, social, and cultural rights. 5 Nonetheless, it poses anespecially acute problem for rights of the latter kind, both because of
the relative lack of a long-standing judicial tradition of engaging withsuch rights in most jurisdictions, but also because the process fordetermining whether the benefit to the right holder justifies incurring
the costs of a given obligation is generally a more complex one in theircase. Of course, it is not the mere existence of these constraints that is
at issue here, but whether they bear more heavily on judges thanlegislators. This is, at least, a matter to be determined case by case,depending on an assessment of the capabilities of the various
governmental organs in different jurisdictions, rather than one inwhich there is a blanket presumption in favour of superior judicial
competence.
A second limitation on the making human rights strongly
justiciable, independent of the first, must also be recognised. Even if
courts are just as good, or even better, than legislatures in specifying
the content of human rights and the institutional means for theirrealisation, enabling litigants to claim their entitlements under thoserights in court may be counterproductive so far as overall compliancewith human rights is concerned. 5 3 A dramatic illustration of this is
the experience of certain Latin American jurisdictions, such as Brazil
and Colombia, in which there are strongly justiciable constitutionalrights to health.1 54 Rather than straightforwardly enhancing thefulfilment of this right, justiciability has sometimes had the opposite
effect due to contextual economic and social factors bearing on people's
55
Wealthier individuals are better placed toaccess to legal justice.s
exercise their human rights entitlements, insofar as they are better
informed and more able to bear the costs of litigation, than less welloff individuals.1 56 The upshot, given an overall static or nonexpanding
health budget, is that more scarce resources are used to benefit betteroff people at the expense of the poor than would otherwise be the case,irrespective of the comparative weight of the human rights
considerations in play.

152. For example, see STEPHEN HOLMES & CASS R. SUNSTEIN, THE COST OF
RIGHTS: WHY LIBERTY DEPENDS ON TAXES (Norton Press 2013).
153. See generally TASIOULAS, RIGHT TO HEALTH, supra note 49.

154. See id. at 19-21.
155. See, e.g., Octavio L.M. Ferraz, Health Inequalities, Rights and Courts: The
Social Impact of the "Judicialization"of Health" in Brazil, in LITIGATING HEALTHRIGHTS: CAN COURTS BRING MORE JUSTICE TO HEALTH? (Alicia E. Yamin et al. eds.,

2011) (regarding Brazil); David Landau, The Reality of Social Rights Enforcement, 53
HARV. INT'L L.J. 189 (2012) (regarding Colombia); Akritas Kaidatzis, Socio-Economic
Rights Enforcement and Resource Allocation in Times of Austerity: The Case of Greece
2015-2018 26 (June 6, 2019) (unpublished manuscript) (on file with the Ofiati Institutefor the Sociology of Law) (discussing of the potentially negative impact of judicialization
on social rights in the context of a country subject to austerity measures).
156. See Landau, supra note 155, at 199-200; Kaidatzis, supra note 155.

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A third limitation arises out of the essentially law-creating
function countenanced by the strong judicial role in relation to humanrights. One problem is that, in conflict with the rule of law, thisundermines the ability of courts credibly to present themselves asfundamentally law-applying bodies within an overall constitutional
structure that includes a legislature. Courts will be robbed of theirlegitimacy insofar as they come to assume the role of retrospective lawmakers, or are widely perceived to have done so. It is no answer to say
this problem is obviated so long as courts can be trusted to arrive atcorrect specifications of the content of human rights. This is because it
is highly unlikely that there is a single correct specification of aworkable human rights standard in each case, which means that
inevitably a choice will need to be made to adopt one formulation of thehuman right from a range of eligible options. Of course, there are ways
to mitigate this problem, such as according such judicial decisions only
prospective effect. But still a fourth problem would remain: that suchlaw-making is not democratic in character, a factor that strongly bears
on law's legitimacy. Again, much here will depend on the details of theparticular scheme of justiciability that is in question, and in particularwhether judicial determinations of human rights can be overturned oi
amended by democratically elected bodies or by democratic
referendums. But even leaving aside the compromised legitimacy oflaw that is not subject to robust democratic accountability, there is still
the more diffuse point that the vitality of the human rights ethos in a
democratic society will be sapped by human rights matters being
systematically decided in court proceedings rather than throughordinary democratic political contestation. This not only risks fuellingthe "populist" charge that human rights are the playthings of "elites,"
who deploy them as trump cards in order to short-circuit thedemocratic process whenever it suits their interests to do so, it also has
a further consequence. By reducing the vast majority of citizens
primarily to spectators of, rather than active participants in, thepolitics of human rights, it also risks undercutting their generalawareness of human rights matters, the strength of their commitment
to such rights, and their willingness and ability to engage with themat the requisite level of sophistication. This last point resonates withwhat Mona Younis has identified as the greatest flaw of thecontemporary human rights movement-the overprivileging of expert
technical expertise and the concomitant failure to engage a mobilised
citizenry:
By neglecting citizen engagement, the human rights movement has failed not
only to secure all rights but has put the civil and political rights already secured
at risk, including in the North. Indeed, our gravest error has arguably been to
imagine that we could achieve rights-respecting governments without amobilized citizenry. We disregarded the need for movements in our efforts,

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despite our knowledge of the essential role of social movements in all significant
1 57
social and political transformations.

Naturally, the four types of concerns enumerated above apply
with even greater force to regional or international courts. Their very
supranational character distances them from domestic jurisdictions inways that exacerbate the problems of competence, effectiveness, ruleof law, and democratic legitimacy and ethos.15 8

V. CONCLUSION

Proceeding from an account of the formative point of IHRL, as
specified by the FAT, this Article has sought to identify challenges
confronting this body of law that do not arise from sources external toit, but rather from failures on the part of its scholars and practitioners
to ensure proper responsiveness to this formative point. Verytentatively, it has also been suggested that some of the external
frustrations with IHRL-those often ascribed to a "populist
backlash"-may themselves be partly explicable as responses to theseinternal failures. The internal problems identified are located on two
broad levels: the first-the conflation of rights and interests-arises atthe level of the overarching normative point of JHRL; the second-theuncritical enthusiasm for legalisation and judicialisation-relates tothe institutional embodiment of human rights norms. Unavoidably,157. Mona Younis, Back to the Future:Returning to Human Rights, OPEN GLOB.
RIGHTS (Nov. 1, 2018), https://www.openglobalrights.org[Back-to-the-Future-returningto-human-rights/ [https://perma.cc/3ULU-NBM8] (archived Aug. 30, 2019). Younis'emphasis on popular social movements, as opposed to elite agendas, in driving
progressive social change echoes a theme developed at length in Elizabeth Anderson,
Social Movements, Experiments in Living, and Moral Progress: Case Studies from2014),11,(Feb.
OF
KANSAS
UNIV.
Slavery,ofBritain's Abolition
https://kuscholarworks.ku.edubitstream/handle/1808/14787/AndersonSocialMoveme
nts.pdfsequence=l&isAllowed-y [https://perma.cc/V3PB-VQM9] (archived Aug. 30,2019). In addition to the failure to engage a mobilized citizenry, Younis' insightfulcommentary identifies the privileging of civil and political rights over socio-economic
rights, and the related privileging of Western human rights accomplishments over thoseoutside the West, as the three major failures of the contemporary (Western) humanrights movement.
158. Perhaps the most grandiose manifestation of the tendency to judicializationis the proposal by human rights experts, supported by the governments of Switzerland,
Austria, and Norway, to establish a World Court of Human Rights that would be"competent to decide in a final and binding manner on any complaints brought by
individuals, groups or legal entities alleging a violation of any human right found in aninternational human rights treaty binding on the duty-bearer." Panel on Human
Dignity, Protecting Dignity: An Agenda for Human Rights, GENEVA ACAD. INT'L
HUMANITARIAN L. & HUM. RTS. 36 (2011), https://web.sonoma.edulusers/s/shawth/
Panel%20Human%20Dignity [https://perma.cc/LC2V-QD4Z] (archived Aug. 30, 2019).
For incisive criticism, see Philip Alston, Against a World Court for Human Rights, 28
ETHICS & INT'L AFF. 197, 199 (2014).

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this Article has been highly selective in the illustrations given of these
problems; unavoidably, also, this Article has had to pass over othervarieties of deviation from the FAT that doubtless arise at both of theselevels. Beyond that, some of the most significant deviations from the
FAT occur at a third level-those concerned with appropriate
responses to violations of IHRL. In this connection, consider especiallythe tendency of IHRL to be recruited both in campaigns to expand thelegal grounds for military intervention and to restrict or to eliminate
the scope of immunity to criminal prosecution for human rights
violations. Both of these developments are erosions of state sovereignty
partly caused by the increasing dominance in recent years of IHRL
within the international legal order.i 5 9 As a result, it is also notdifficult to interpret both developments as triggering a backlash on thepart of those anxious to resist any such erosion. But pursuing such
speculations is a task for another day. Harking back to the outwardlooking diagnoses of the challenges confronting IHRL of Alston and
Zeid from which we began, this Article has hopefully given some
substance to the thought that human rights also need to be saved frommany of their avowed friends, and not just from their sworn enemies.
The starting point for this rescue operation is the recognition thathuman rights are first and foremost moral standards and that IHRL's
formative aim is to give those standards appropriate legal expression
and effect.

159. For a compelling exploration of some of the ways in which the increasing
dominance of IHRL has put pressure on key concepts and norms of general internationallaw and encumbered its pursuit of international peace and cooperation, see Ingrid
Wuerth, InternationalLaw in the Post-Human Rights Era, 96 TEX. L. REV. 279, 331, 346(2017). This article is impressively sensitive both to the concerns that motivate the FAT
and to the fact that IHRL is, in principle, only one among various mechanisms, legal andnon-legal, for realizing human rights morality. For some powerful skepticism about thetendency for anti-impunity to dominate the agenda of IHRL, see generally ANTIIMPUNITY AND THE HUMAN RIGHTS AGENDA (Karen Engle et al. eds., Cambridge Univ.

Press 2016).