A. Human Rights as Law

‘Human rights’ as a phrase is extraordinarily broad and can encompass many understandings of what ‘rights’ are. As implied by the first sentence of this article, however, the contemporary content of human rights is defined most clearly and most powerfully as law. The relationship of law to other regulatory or aspirational frameworks—politics, ideology, religion, social justice, equality or fairness, to name only a few—is a recurring theme of the present work. The underlying assumption is that the status of human rights as law needs to be protected and that the distinction between legal obligations and other obligations of a moral or political nature needs to be maintained. ‘Human rights’ may mean all things to all people, but ‘international human rights law’ cannot.

This understanding of human rights as denoting international human rights law is necessarily narrow; it does not encompass every right that someone or some group seeks to assert. As discussed below in the section on the flexibility inherent in human rights norms, this narrowness should not be confused with uniformity in interpretation and application. Law does, however, provide a structural context in which human rights can be best understood in today’s world. Law also provides (i) the best evidence of the content of human rights; and (ii) the best evidence of the essential universality of human rights commitments that states have actually undertaken. As aptly put by Allen Buchanan, ‘Human rights law, not any philosophical or "folk" theory of moral human rights, is the authoritative lingua franca of modern human rights practice.’ 7

This approach does not seek to minimize the role of human rights understood more broadly as an aspirational moral framework that has inspired activists and ordinary people around the world. It also recognizes the political value that many governments have found in human rights, whether it is to promote them or to hold them up as foils for nationalist rhetoric that rejects any influence by foreigners on the sacred homeland. However, understanding the role of human rights as law is essential if one hopes to clarify the other roles that human rights may play, as ideology, utopia or political weapon.

Law can change, and international human rights law is no exception. Neither the Universal Declaration of Human Rights nor any other human rights instrument was handed down on golden tablets or otherwise revealed through divine intervention. The continuing evolution of international human rights law is demonstrated by the adoption of numerous treaties at the global and regional levels that expand, nuance or occasionally limit the broad norms articulated in the UN Charter or by the 1948 Universal Declaration of Human Rights. New norms await further elaboration and agreement, and interpretations of existing norms may shift—just as many domestic statutes and constitutions acquire new meaning in order to respond to new situations and new problems. We should welcome this process, although proclaiming too many new norms without ensuring that meaningful consensus exists within all regions of the world can be problematic, as discussed further in the section on new rights.

The arguments that follow are pragmatic rather than philosophical, realist rather than visionary. They assume that the constraints of the current international system of states will continue to exist for the foreseeable future and that neither a world government nor a new ‘super’ or ‘hyper’ state will have either the capacity or the legitimacy to mould the world into any particularly orderly shape.

The arguments also are premised on the proposition that international human rights law has had a positive influence on the situation of individuals across the globe and that maintenance and better implementation of that law should be encouraged. 8 It does not presume that either human rights or law are the primary agents of change within or across societies, but it does argue that human rights norms can facilitate the development and influence of other socio-economic–political–moral change agents in ways that are more likely to respond to the needs of most people in the world.