ABSTRACT
In the area of human rights, lawyers tend to focus on rights, remedies and actors: what is the content of the right? is it justiciable? and, if so, who can enforce it? For some, doubts concerning either the availability of a remedy for a breach or the standing of the claimant call into question whether there is a right. However, as is discussed below, law should not be seen as simply a set of rules to be applied; rather, it provides a framework or context for the interaction of various actors, actors that the law itself seeks to define. The traditional view is that states are the primary, if not the sole, actors.1 Under this understanding, ‘international’ law is something of a misnomer; it should really be ‘interstate’ law because international law primarily regulates the relations of states,2 not nations.3 That ‘primarily’ in the previous sentence, though, is to the fore when one discusses international human rights law, because the individual has a much fuller standing than is usual. Allott in Eunomia 4 proposes that the state should not be the central actor, the primary authority: ‘that the ever-increasing well-being of the whole human race can, must, and will be promoted’. As Scobbie has pointed out:5
States are neither conscious nor sentient. States neither bleed nor starve nor are forced to flee for their lives. [. . .] This is precisely the point of Allott’s Eunomia. Having looked at the world and found it sadly wanting,
Eunomia provides a blueprint for making it better. Its idealism is not about thinking the unthinkable, it is about thinking the unthought, and then grasping the challenge to put these thoughts into practice. Thinking, after all, is what theory is all about.
