Substantive Minimalist Realism in Human Rights Law: the Case of Art. 21 UDHR

Abstract

This paper draws on the intersection between international law and political philosophy in order to identify potential improvements for the contemporary international human rights law framework, namely on the lacking capacity of international bodies to provide effective enforcement for breaches of international human rights law committed by States. The article first explores the tensions and human rights law implications between two sets of philosophical currents, namely universalism and particularism, on the one hand, and realism and idealism on the other. Subsequently, drawing on this, it introduces a new perspective from which to evaluate the obligation of States: substantive minimalist realism. Following the example of Article 21 UDHR, the author argues that the goal of human rights is to ensure a decent life for every person; however, it is acknowledged in the article that different cultures have distinct principles and customs. Enhanced universality, as promoted today, is rooted in Western supremacy and can become detrimental to the protection of individuals, if weaponised by States or radical political groups to protests against their opponents in international politics. Drawing on the theory of substantive minimalism, the author pleads for upholding universal protection only for a select list of rights, without which even the survival and physical freedom of persons are endangered. My proposal, although not exhaustive, concerns the right to life, prohibition of torture, prohibition of slavery, and the right to remedy for acts violating fundamental rights granted by national law. While these universal freedoms shall be interpreted and enforced strictly, the international community should allow States more leverage in determining whether and how other rights shall be secured. Regarding the enforcement of human rights obligations, the author pleads for political and diplomatic scrutiny as the most effective mechanism.