This LL.M. thesis engages in the contemporary debate concerning critical approaches to international human rights law through introducing the thoughts of the French philosopher Michel Foucault to the debate. The debate so far has largely focused on the elucidation of the intricacies of international legal arguments in the context of international human rights law with the intention of exposing the incoherence of the mainstream understanding of the nature and role of international human rights law, which it is submitted, is epitomised in the phrase ‘speaking law to power’. This thesis suggests that such a critical approach, while initially useful, is at the same time limiting, for it fails to take into question and bring to the fore the complicity of international human rights law in the reproduction of our current state of international affairs.
As such the first part of this paper engages the scholarship of Professor Martti Koskenniemi, by arguing that while the descriptive ‘indeterminacy’ thesis elaborated by Professor Koskenniemi provides the critical human rights scholar with a devastating critique of international legal decision making in the context of international human rights law – exposing the politics therein - the normative aspect of his scholarship, epitomised in the call for a ‘culture of formalism’, is limited by that very same descriptive thesis. This limitation becomes manifest in its failure to respond to the counter-argument that his Laclauian “negative instead of positive datum […] [which supposedly, PK] thus avoids the danger of imperialism” “[…] is never a ‘mere’ form; it involves a dynamics of its own, leaves its traces in the materiality of social life and is only then fully valid.”
Therefore, this thesis argues that we must move beyond the study of the intricacies of legal argument – the conditions of possibility of our profession – and rather than ask the traditional jurisprudential question ‘what is law and legal argument’ ask ‘how does the law operate’ with regards to the perpetuation of the current status quo. Here is it argued that by adopting a Foucauldian approach, we see that human rights law, rather than acting as a limit to the power of politics, in fact becomes an essential aspect of that power, and as such it is suggested that not only is the mainstream understanding concerning the nature of international human rights law – ‘speaking law to power’ – manifestly false, but ought to be completely reversed, to the new Foucauldian variant of ‘speaking law as power’.
In the final chapter this paper reflects on the possibility of a Foucauldian normative practice of resistance to this new understanding of the nature of international human rights law, and suggests that such a practice is possible, but will most likely be very alien to the contemporary self-understanding of many a human rights lawyer, as in this approach the practice of the critical human rights scholar will become an “an instrument, a means for a future or a truth that it will not know and that it will not be; it is a gaze on a domain that it wants very much to police and where it is incapable of laying down the law…There is something in critique that is related to virtue.”