Martii Koskenniemi on Human Rights: An Empirical Perspective

Abstract

Martii Koskenniemi argues that human rights law is indeterminate, and that arguments based on human rights unavoidably reflect the policy preferences of the speaker. I connect this argument to empirical evidence of the failure of international human rights treaties to improve human rights in countries that have ratified them. I argue that many features of the human rights regime that are celebrated by lawyers — the large number of treaties, the vast number of rights, the large amount of institutionalization, and the involvement of NGOs — actually reflect the failure of the regime. Governments tolerate these developments because they add to the indeterminacy of the legal regime, freeing them to act in the public interest when they are motivated to do so.