Human Rights Protection and State Capacity: The Doctrinal Implications of the Statist Character of International Human Rights Law

Human rights protection has a markedly ‘statist’ character in international law. The chapter explores the origins of this statism and asks how it affects doctrinal development in human rights regimes. It offers a clarification of how the idea of modern statehood, as well as its constitutive political ideals (democracy and the rule of law), have interacted with human rights law. It argues that human rights became associated with a broad conception of ‘state functions’, and that concerns with ‘state capacity’ came to influence the jurisprudence of human rights institutions (like the European Court of Human Rights in freedom of religion cases). Still, what we need is not liberating international human rights law from the limitations of statism. The chapter aims at a more sophisticated and more reflexive understanding of its character and its implications.