Whither and whether with the formative aim thesis

• Published in: Vanderbilt journal of transnational law Vol. 52; no. 5; pp. 1331 - 1357
• Main Author: Sreenivasan, Gopal
• Format: Journal Article
• Language: English
• Published: Vanderbilt University, School of Law 01.11.2019
• Subjects: Analysis; EVIDENCE; HUMAN RIGHTS; INTERNATIONAL LAW; International law and human rights; Interpretation and construction; Law; Laws, regulations and rules; Moral and ethical aspects; Moyn, Samuel; Nominalism; Tasioulas, John
• ISSN: 0090-2594; 2831-8633

According to John Tasioulas, the formative aim of international human rights law is to give effect to moral human rights (insofar as it is appropriate for international law to do so, through the technique of assigning a uniform set of individual legal rights to all humans). In cases of pure human rights inflation, an international legal human right fails to give effect to any moral human right. Tasioulas regards international legal human rights that fit this criterion as morally unjustified. This Article scrutinises various bases on which the inference underlying his conclusion might be validated and argues that none of them succeeds. It concludes that international legal human rights are morally independent of moral human rights. To evaluate them properly, there is no alternative to a detailed case by case analysis. While this analysis may include reference to moral human rights, it is by no means limited to them and need not include them either. Even pure cases of human rights inflation may be morally justified.