What’s Wrong with International Human Rights Law?
I’ve long admired Oscar Schachter’s idea that there is an ‘invisible college’ of international lawyers operating across the globe, all of whom share a common culture of professionalism and purpose in advancing international law. Of course, with fragmentation the unity of that profession is more overtly stressed now than in the past (which, I suppose, should not be all that surprising since anyone who’s spent time within a “college” can attest to the occasionally sharp divisions that emerge among faculty and/or their students).
There is one area, however, where the unity of the international legal profession has, to date, appeared unchallenged — international human rights law. To be sure, there are frequent debates over what this law contains, who has a voice in its interpretation and application, and how effective these rights may be in practice. But, it’s almost taboo to challenge the concept of international human rights itself. After all, since we’re all humans, who could oppose the idea that we all have (and are entitled to) certain universal rights? Well, my colleague Jaya Ramji-Nogales has actually launched just such a challenge as part of a new research agenda, seeking to examine critically the concept of international human rights. Her first step is a new draft article, ‘Undocumented Migrants and the Failures of Universal Individualism‘. In it, she actually does something I don’t think I’ve seen an international lawyer do before — identify multiple conceptual problems with the very idea of a universal, international law of human rights. It’s sure to be a controversial thesis. But I also think it’s not one to be shouted down, but rather engaged with openly, especially by those who identify themselves as international human rights lawyers. Here’s her argument in abstract form:
In recent years, advocates and scholars have made increasing efforts to situate undocumented migrants within the human rights framework. Few have examined international human rights law closely enough to discover just how limited it is in its protections of the undocumented. This article takes that failure as a starting point to launch a critique of the universal individualist project that characterizes the current human rights system. It then catalogues in detail the protections available to undocumented migrants international human rights law, which are far fewer than often assumed. The article demonstrates through a careful analysis of relevant law that the human rights framework contains significant conceptual gaps when it comes to the undocumented. It concludes by stepping away from human rights law and offering a radically innovative approach to protecting undocumented migrants and other vulnerable populations.
For those interested in reading further, the paper is up on SSRN here.