ABSTRACT
When political theorists write about human rights they mean a special kind of moral claim (Hart 1967:55; Raz 1986:181ff; Feinberg 1973, 1980, 1994, 2003; Gewirth 1992:13-14; Nickel 1987:173). At the same time, lawyers, referring to human rights or International Human Rights, mean the various provisions of international human rights law, IHRL from now on (Cassese 1990; Buergenthal 1997; Alston 1999; Ratner and Abrams 2001; Gearty 2004). The assumption, however, seems to be that both traditions are, in the final analysis, aiming at the same thing: one group elaborating the normative foundations of rights principles, whilst the other works in the positive, or practical, enforcement of those principles. In what follows, we aim to show that this view of the relationship between foundations and law is simplistic and superficial. This simplification has important consequences for the future study and practice of human rights, and for interpreting human rights law. ‘Human right’ is an ambiguous term. If critiques, defences and investigations into the notion of human rights are to be intellectually rigorous and fruitful, then it is essential to disentangle divergences in the way the term is understood.
