The Fragility of International Human Rights Law

In this essay I will argue that some philosophers’ optimism about the shape and strength of international human rights legal practice is misguided. Allen Buchanan, for example, claims in his The Heart of Human Rights that there is an area of robust human rights law that amounts to “international law that claims the authority to regulate matters once considered to be the exclusive concern of the state, including the state’s treatment of its own citizens.” Two points can be made to clarify the idea of robustness. First, it suggests that human rights norms make a practical difference in the world. Second, it suggests that there are institutional actors that have the power to make such a difference. On both counts, it is possible to advance skeptical arguments that show that those norms suffer from a lack of normative bite, and that even if those norms were providing clear normative guidance, there are no institutions that are capable of implementing them. Human rights law is not robust and its practice lacks shape and strength. Further, the gap between ideals and practice is only likely to increase rather than the other way around.

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