have some combination of the above. Nonbinding interpretations of human rights
by experts usually gives rise to soft law: these interpretations are not legal sources
but nevertheless are a persuasive guide on how the “hard” law should be
understood.
Experts are not as prone to bargaining rights away as politicians, but they are less
constrained by law and legal procedures than judges. As a consequence, they can be
a suitable medium to resolve claims of less importance, to act in situations that need
a more rapid reaction than what judges or politicians can provide, or to address the
predicament of claimants, who due to lack of resources, or due to being an
oversized group, have problems in presenting claims for justice judicially.
From the three institutions discussed, it seems that experts are also the most
likely to take an “activist” or “progressive” stance on the law and push for
interpretations that favor the vulnerable.
Conclusion
Nowadays, it is impossible to approach the law—domestic or international—
without reference to human rights, and almost no one is against human rights.
Nevertheless, this superficial agreement hides deep tensions. There is profound
disagreement on what the human rights are, on which duties they give rise to,
and on the proper methods for implementation.
It is dangerous to treat human rights uncritically because the relationship
between human rights and the human good is bound to be a contingent one.
Support for human rights must not preclude us from questioning the foundation
of rights, their role in the law, and their effectiveness in society. Quite on the
contrary, reflection and critical thinking are a vital part of a healthy culture of
rights.Recommended Literature
Alexy R (2009) A theory of constitutional rights (trans: Rivers J). Oxford University Press, Oxford
Coomans F, Kamminga M, Grunfeld F (eds) (2009) Methods of human rights research. Intersentia,
Antwerpen
Forsythe D (2006) Human rights in international relations. Edited by Themes in International
Relations. Cambridge University Press, Cambridge
Griffin J (2008) Human rights. Oxford University Press, Oxford
Moeckli D, Shah S, Saivakumaran S (2010) International human rights law. Oxford University
Press, Oxford
Shue H (1996) Basic rights: subsistence, affluence, and U.S. foreign policy. Princeton University
Press, Princeton
Tomuschat C (2008) Human rights: between idealism and realism. Oxford University Press,
Oxford
Van Dijk P, Van Hoof F, Van Rijn A, Zwaak L (eds) (2006) Theory and practice of the European
Convention on Human Rights. Intersentia, Antwerpen
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