By: John Tasioulas
PDF: Saving Human Rights from Human Rights Law
This Article advances the thesis that international human rights law (IHRL) has strayed from its formative purpose. This purpose, as formulated by the Formative Aim Thesis (FAT), is to give expression and effect to an underlying morality of human rights, insofar as it is appropriate to do so, through the medium of individual legal rights ascribed to all human beings. This Article elaborates on two main ways in which IHRL has deviated from the FAT: (1) a tendency to ignore the vital distinction between human rights (which have associated obligations) and universal human interests or values more generally; and (2) an insufficiently 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 “populist backlash.” One element in rescuing human rights today is saving them from the deformations they have undergone at the hands of IHRL.