From Law as a Means to Law as an End: About the Influence of International Human Rights Law on the Structure of International Law Rules
© Springer International Publishing Switzerland 2015Norman Weiß and Jean-Marc Thouvenin (eds.)The Influence of Human Rights on International Law10.1007/978-3-319-12021-8_1
1. From Law as a Means to Law as an End: About the Influence of International Human Rights Law on the Structure of International Law Rules
University Paris West Nanterre La Défense, Nanterre, France
The conception of law as a means derives from the distinction between law and politics. Politics is here understood as related to community life, not as a way to govern or to use power. In the French language, we have two different words: le politique and la politique. The first one is about common good or common interest, whereas the second refers to the use of power, that is to say the world of politicians. The second definition will be excluded from this study.
To define politics is a way to define law and to understand how law becomes integrated into society. But human rights law in particular pushes us to rethink of the distinction between law and politics. Human rights law is not just about rights but also about a political project for society. This is true for States and also for the international legal order. For example, the Charter of the United Nations defines the purposes of the organisation. It is “To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion”.1
The purposes of an organisation such as the United Nations constitute a project for almost all the States of the world, and according to the above-quoted text of the Charter, the aim of the community life in the international legal order is the respect of human rights and fundamental freedoms. Then how is it possible to distinguish the legal rules that constitute a means from the legal rules that constitute a purpose, a project, or an aim? To do that, it is necessary to distinguish law from politics as regards human rights law (Sect. 1.2) and then to distinguish legal rules that are means from the ones that are ends (Sect. 1.3).
1.2 Law as a Means and Politics as an End as Regards Human Rights Law
It is necessary to define law in relation to politics, particularly as regards human rights law. Indeed, human rights are not only legal rules but a project too, a political project. To understand the nature of human rights and their influence on international law, we have to understand first the distinction between law and politics (Sect. 1.2.1). Second, we shall deal with the articulation between these two concepts (Sect. 1.2.2).
1.2.1 The Distinction Between Law and Politics
The distinction between politics and law can be explained as a temporal distinction. Politics is about the future, about elaborating a project for the community, while law is about the present. As we can say, law is always formulated or written in the present tense—except perhaps in Spanish, in which language the future is used, like in the Ten Commandments. For example, we may read that “[e]veryone has the right to freedom of movement and residence within the borders of each state”2 and not “everyone shall have the right to freedom of movement” even though rules are even valid for the future.
Therefore, politics as a project constitutes an end, a purpose. In this way, Julien Freund claims: “Le droit est l’ensemble des règles que la politique se donne pour utiliser avec plus d’efficacité la force au service du but du politique.”3 He adds: “le droit n’ [est] jamais qu’[un] moyen et n’[a] donc pas de signification par [lui-même], mais uniquement par la fin ou le but que l’homme se propose d’atteindre par l’organisation politique.”4 It means that law is only a means serving the aim determined by politics. Law as a means is then not significant by itself; its meaning is the result of the aim proposed by politics for human beings to reach.
Politics as a purpose needs to use means such as law. And to accomplish that purpose, it needs to use means. As Friedrich Hayek sustains: “the chief instrument of deliberate change in modern society is legislation.”5 As we say, one of the most important means at politics’ disposal is the law. Indeed, how is it possible to implement a political project apart from adopting rules of law? For instance, a project might be rooting out slavery. One of the means used is the prohibition of slavery, that is to say the adoption of a rule prohibiting slavery. Both law and politics are then defined one by the other. Thus, Hans Kelsen claims about the means–end relation that something is an end only in relation to something else as a means.6
From that point of view, politics is always about what is collective, what is common to every part of a society, whereas law, and especially human rights law, offers individual answers.7 For all these reasons, would there be a contradiction between the collective project and the individual rights? Indeed, the aims stated by the human rights, such as the right to life, the right to freedom of opinion and expression, or the right to work, are almost impossible to reach, particularly by States. Those ones would not be able to control everything everywhere even if they were totalitarian States.8 Human rights, and perhaps social rights more than political ones, are unreachable.
Yet politics is always about law. The legislator, isn’t he a lawmaker? His duty is to adopt legal rules. And human rights remind us the duty, especially of States, to implement public policies in their legal order or in the international one. From that point of view, there is no contradiction between human rights and politics. On the contrary, human rights law needs politics, perhaps even more than the other bodies of law.9 Then the development of human rights law leads to a rethink of the articulation between law and politics. Law and politics complement each other so that human rights could be effective.
1.2.2 Law as a Means for Politics: About the Effectiveness of Law?
There need to be two concepts so as to define one or the other as a means or as an end. In that conception, law is not totally autonomous as it is integrated in a concrete world. Rudolf von Ihering claims: “Purpose is the creator of the entire law; […] there is no legal rule which does not owe its origin to a purpose, i.e., to a practical motive.”10 One may object that law is often performative, as in the book of John Austin, How to do things with words.11 For example, I can bet you something, by saying that I effectively bet you the thing. The most famous example is probably the one of marriage. If I am empowered, I marry you as I say “I marry you”. In that case, law is effective as it is declared. But these situations are really far from human rights law (except perhaps for the right to property). Consequently, a purpose can’t be accomplished only as it is desired or formulated. It needs a medium. We can conclude that law is a means for an end, usually defined or which has to be defined by politics.
Then the effectiveness of human rights needs to draw a political project. It may be noted that a lot of international texts that provide human rights have no binding force, such as the Universal Declaration of Human Rights.12 This great influence of soft law in international human rights law is not a surprise. Indeed, these declarations establish a political project perhaps even more than legal rules. For instance, about the Charter of Fundamental Rights of the European Union, Florence Benoît-Rohmer wrote in 2003: “La Charte est ainsi venue renforcer la politique de l’Union qui tend aujourd’hui à faire de la reconnaissance des droits économiques et sociaux l’un de ses axes prioritaires.”13
Furthermore, if bodies of law other than human rights law are always formulated in the present tense—at least in English and in French—human rights law constitutes sometimes an exception. While most human rights and fundamental freedoms are formulated in the present tense, some are not. For example, the right not to be a slave is sometimes formulated in the future tense. The Universal Declaration of Human Rights states that “[n]o one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms”.14 In the same way, the International Covenant on Civil and Political Rights provides that “[n]o one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited”.15 We shall notice that the International Covenant on Civil and Political Rights is not part of soft law but is an international treaty, binding on all States Parties. One might conclude that the prohibition of slavery in the Covenant is part of soft law because it is formulated in the future tense, but it would be a little exaggerated. That may reflect instead the fact that human rights are also, perhaps above all, a project for the future, that is to say a political project. Then it becomes difficult to distinguish politics from law within the context of human rights.
Besides, human rights need a political project, i.e. public policies, and legal rules to become effective. Politics and law are then inseparably linked. Accordingly, Jacques Commaille stated: “l’évaluation des politiques publiques est susceptible d’apparaître indissociable d’une évaluation législative, la recherche de l’efficacité du droit étant liée à celle de l’efficacité des politiques concernées.”16