ABSTRACT

During the lead-up to the adoption of the Universal Declaration of Human Rights (UDHR) in 1948, only a few brave states supported the idea that the Declaration should be made legally binding. 1 For the majority, and especially for the ‘Big Powers’, such an idea was anathema since they saw their advocacy of human rights more as a way of making political gains for themselves vis-à-vis each other than as imposing legal constraints on their own activities. Moreover, many states had much to hide as a consequence of their activities in their colonies and/or in the area of race relations. It is somewhat surprising, therefore, that some scholars, myself included, should now be worrying about the significance of the legalization process summarized in the following passage:

[From the late 1970s onwards,] although political concepts, such as those associated with feminism, informed some of the campaigns for the new covenants, legal discourse became ever more entrenched as the source of concepts to think through difficulties as well as more generally ‘handle’ human rights issues. Furthermore, the various [United Nations] committees became ever more confidently judicial in their reasoning and the tone of their comments and ‘views’… This development was buttressed by the emergence of regional human rights jurisdictions in the forms of the European Court of Human Rights, the African Commission on Human and Peoples Rights, and the InterAmerican Court for Human Rights. Thus legal and political discourses coexist under the terms established by the hegemony of legal discourse with the result that even the proponents of politically inspired arguments can only hope to make a difference if they use legal terms or, minimally, do not challenge legal norms or procedures-legal reasoning, then, is now virtually the only possible way of working within the conceptual field of human rights.