The Concept of Human Rights in International Law
![handle is hein.journals/clr82 and id is 1132 raw text is: The Concept of Human Rights in International Law*
Anthony D'Amato**
In the past ten years, the concept of human rights has become a perma-
nent part of the way we think about relations between nations. International
human rights are now a legislative condition of foreign aid,' have been
institutionalized in bureaucratic structures,2 and, perhaps most importantly,
have been stamped indelibly in the minds of the public as one of the most
important standards by which we measure other countries.
Human rights is not just a political and moral concept; it is a legal one as
well. Not surprisingly, human rights has been the subject of a burgeoning
jurisprudential literature. Since the signing of the United Nations Charter the
virtual equivalent of a new academic discipline has emerged to champion the
idea that international law gives individuals rights against the state.3 To prove
their claim, these scholars can point to a plethora of international treaties,
conventions, and United Nations resolutions guaranteeing individuals all sorts
of different rights.
It was inevitable that these advances would be challenged. In the political
sphere, the human rights policies of Jimmy Carter have given way to the
realpolitik of the Reagan administration. In the legal sphere, the proponents
of international human rights jurisprudence have come under the vigorous
attack of such younger scholars as Professors J.S. Watson and Mark Lane. In
various journals and symposia,4 Watson and Lane have accused their older
* Copyright © 1982 Anthony D'Amato.
** Professor of Law, Northwestern University School of Law. A.B. 1958, Cornell Univer-
sity; J.D. 1961, Harvard Law School; Ph.D. 1968, Columbia University. The author would like to
thank Professor Oscar Schachter and Professor Roger Fisher for their invaluable critiques of a
draft of this Article. In particular, Professor Fisher's writings and teachings deal with the most
difficult and realistic aspect of international law: how to get nations to comply with norms.
Although the present Article disagrees in some important points with Professor Fisher, it could
not have been written without his pioneering work in this field.
1. E.g., 22 U.S.C. § 2151n(a) (1976), which bars United States economic assistance to the
government of any country which engages in a consistent pattern of gross violations of interna-
tionally recognized human rights.., unless such assistance will directly benefit the needy people
in such country. See also id. § 2304(a)(2), which bars security assistance to such countries.
2. E.g., id. § 2384(f), which establishes the position of Assistant Secretary of State for
Human Rights and Humanitarian Affairs. The Assistant Secretary's functions include the
gathering [of] detailed information regarding humanitarian affairs and the observance of and
respect for internationally recognized human rights.
3. See, e.g., W. Miller, Human Rights: A Bibliography, 1970-1976 (1977); R. Rich & R.
Shimane, International Human Rights: A Selected Bibliography (1979); A. Rusis, Human Rights:
A Selective Bibliography (1969).
4. See Lane, Demanding Human Rights: A Change in the World Legal Order, 6 Hofstra L.
Rev. 269 (1978) [hereinafter cited as Lane, Demanding Human Rights]; Lane, Mass Killing by
Governments: Lawful in the World Legal Order?, 12 N.Y.U. J. Int'l L. & Pol. 239 (1979)
[hereinafter cited as Lane, Mass Killing by Governments]; Watson, Autointerpretation, Compe-
tence and the Continuing Validity of Article 2(7) of the U.N. Charter, 71 Am. J. Int'l L. 60 (1977)
[hereinafter cited as Watson, Autointerpretation]; Watson, Legal Theory, Efficacy and Validity
in the Development of Human Rights Norms in International Law, 1979 U. Ill. L.F. 609
[hereinafter cited as Watson, Legal Theory]. See also Watson, A Realistic Jurisprudence of
International Law, 1980 Y.B. World Affairs 265.
1110](ViewImageLocal?handle=hein.journals/clr82&div=57&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
The Concept of Human Rights in International Law
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most