What’s Wrong with International Human Rights Law?

by Duncan Hollis

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.

http://opiniojuris.org/2013/09/11/whats-wrong-international-human-rights-law/

2 Responses

  1. This is one great topic that will pose a very intriguing issue…
    Non-discrimination constitute a basic and general principle in protecting human rights.  Although I am  Dallas TX brain injury attorney and my expertise doesn’t fall on this category, I am still an advocate on fair treatment of the undocumented. 
     
     

  2. Thanks for the pointer to what looks on a first skim to be a very interesting article.  I look forward to reading it more closely. That said, a brief reaction to some of the premises underlying the post:
    We should be careful to distinguish between “human rights” as a concept expressing a commitment to universal individualism and international human rights law. In the latter case, the idea of human rights in the first sense is subjugated to (and literally swallowed by) international law. International human rights law is to a large extent the rejection of universal individualism and the subjugation of the global cosmpolis to the whims and interests of States.  
    There are many (though not nearly enough) challenges both to human rights and international human rights law, many coming from people who would consider themselves “international lawyers”. I would suggest that one reason human rights and/or international human rights law “appear unchallenged” is due to the marginalization of such criticisms by international lawyers and their exclusion from the invisible college. The concept of “human rights” (as opposed to international human rights law) is seen as not the province of international law but of other disciplines such as philosophy or IR which are placed outside the invisible college’s walls. As for criticisms of international human rights law, any truly radical critique is as much a fundamental challenge to international law generally (and its role in denying the realization of human rights), placing it also outside the college walls (or perhaps beneath, digging at the foundations in the hopes they crumble!).
    Jaya’s choice to focus on migrants is a great decision in this regard. As Deleueze and Guattari observed, it is the migrant or the nomad physically crossing law’s physical borders which also presents the greatest challenge to international law’s metaphysical borders and to the walls it creates to prevent the effective realization of human rights in the first sense. These are issues I previously explored in EJIL, vol. 23 (2012), no. 1, pp. 97-119.
     

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