faculty & experts
02 May 2022

Human Rights: The State of the Art

Professor Andrew Clapham ponders whether human rights might be an art or if it's purely scientific. 


I was asked to write some introductory remarks about human rights and the “state of the art”. This seemed like a relatively straightforward task, but then I started wondering, is human rights really an art? Or is it more of a science? There is luckily no space to answer this question properly but let me offer some shallow thoughts.

One could teach and write about human rights stressing the accepted meanings of the terms and the strict rules for interpreting the terms in the treaties. This would be to see human rights as a “term of art”. 

It could offer a scientific approach which allows an authoritative decision-maker to determine whether an act counts as torture under international law; whether denying someone access to a job or to healthcare counts as illegal discrimination; or whether taking down a post should be considered a denial of freedom of expression, or alternatively a necessary interference to prevent a violation of the right to privacy or incitement to racial hatred. 

It is possible for lawyers to keep the discussion of human rights confined within these contours, and treat the mapping of human rights and the possible remedies as a sort of science: violations can be detected and the results of the investigation can be confirmed with scientific rigour. Human rights violations can be mapped and tabulated.

But the thing about human rights is that they come alive when people feel a sense of injustice. When human rights claims are made, they are often not reclamations made under existing law but rather protests that the law itself is unjust. Complaints about slavery or apartheid were made in the face of laws that facilitated these injustices. Human rights claims related to gender injustice or in opposition to targeted killings by drones draw on deep conceptions of morality and appeal to solidarity beyond what has been agreed to by states as a matter of law.

Demonstrations demanding dignity or justice or freedom of association may be protesting the existing laws in force. The law may be part of the problem rather than the obvious solution. 

And yet claims about human dignity and the right to life have succeeded in forcing an end to the use of the death penalty in some states; demands of respect for privacy and family life have led to the abolition of laws criminalising same-sex relations and discrimination on grounds of gender identity or sexual preference. 

Complaints that states and companies have not done enough to reduce CO2 emissions may soon lead to binding rulings based on the idea that the resulting climate change violates human rights today and in the future.

To craft a good human rights argument could be considered an art. One might need to suspend a scientific approach to the law. To win a human rights case one should certainly be familiar with human rights rules as terms of art. 

But human rights talk has to speak to its audience and reflect contemporary concerns, in a way just like much contemporary art. Today the human rights movement is concerned about climate justice, gender identity, reproductive health, vaccine equity, the dominance of the tech and social media companies, and levels of structural violence and inequality that are obviously unjust. 

A state-of-the-art human rights campaign probably has less to do with the science of treaty drafting, and much more to do with the art of building a social movement. Of course some will always worry that the currency of human rights will become devalued if the meaning of human rights is inflated to cover everyone’s wishes. But human rights claims have never really only mirrored what people are already entitled to. Finding the spot where a demand based on a sense of injustice becomes an obvious entitlement is the art of human rights argumentation. 

To understand how these demands play out in practice we need all the social sciences that we are fortunate to have represented in the Institute’s student body and faculty. This dossier allows for a plethora of scientific voices and allows us to see how various social sciences contribute to a better understanding of the role of human rights today. 

The future of human rights, on the other hand, may depend on finding the artist in all of us.

This article was published in Globe #29, the Graduate Institute Review, as part of "The Future of Human Rights" dossier. 

Pictured: An artist performs during an exhibition of photographer and human rights activist Shahidul Alam and a performance arts event about "extrajudicial crossfire killings" by Bangladesh law enforcement agencies.

Photo credit: Munir Uz Zaman/AFP