Saving Human Rights from Human Rights Law

This Article advances the thesis that international human rights law (IHRL) has strayed from its formative purpose, as given by the Formative Aim Thesis (FAT), which 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. The 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 legalization and, more specifically, the judicialization of human rights. It is tentatively suggested throughout the Article 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’ against human rights. One element in rescuing human rights today is saving them from the deformations they have undergone at the hands of IHRL.