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Publisher's note: Current and future challenges are in need of an effective human rights response. In ensuring this, the question can be asked whether there is such a thing as human rights overreach, and if so, what must be done about it. This contribution deals with this question by, first, outlining various forms of human rights proliferation. For example, proliferation can take the shape of expanding the scope of rights or inventing new human rights. It then illuminates several lines of criticism that can be found in the literature. These concern issues of legalisation and of judicialisation, as well as the indeterminacy of rights. The articles that together form this Special Issue deal with aspects of proliferation and (potential) overreach from different and original angles. After introducing these, it is concluded that the overreach question is even more complex than it seems and requires careful consideration if we want to make human rights more effective and more resilient.
Publisher's note: The Universal Declaration of Human Rights (UDHR) is thought to have shaped constitutions profoundly since its adoption in 1948. The authors identify two empirical implications that should follow from such influence. First, UDHR content should be reflected in subsequent national constitutions. Second, such reflections should bear the particular marks of the UDHR itself, not those of the postwar zeitgeist more broadly. The authors examine the historical evidence at various levels to identify and untangle the UDHR's impact. In a macro analysis, they leverage an original data set on the content of constitutions since 1789. They explore historical patterns in the creation and spread of rights, and test whether 1948 exhibits a noticeable disruption in rights provision. The authors build a multivariate model that predicts rights provision with constitution- and rights-level covariates. To gain further analytic leverage, they unearth the process that produced the UDHR and identify plausible alternative formulations evident in a set of discarded proposals. The authors further test the plausibility of UDHR influence by searching for direct references to the document in subsequent constitutional texts and constitutional proceedings. The evidence suggests that the UDHR significantly accelerated the adoption of a particular set of constitutional rights.
Publisher's note: The ‘aid conditionality’ hypothesis as documented in the literature suggests that aid is effective in augmenting growth only in the presence of a sound policy environment. This hypothesis was so influential that its policy recommendation, to provide aid conditional upon recipient domestic policies, is currently the dominant ODA allocation criterion. However non-economic dimensions of development (political and institutional) are increasingly seen as fundamental. For this reason, this paper focuses on the linkage between aid and a non-economic factor like Human Rights (reflecting repression and corruption) as a measure of aid effectiveness, in explaining growth outcomes across 42 Least Developed economies. We find that countries with better protection of human rights experience positive growth from aid receipts, signifying the role of stronger institutions in enabling more effective use of aid. The paper thus concludes that the measurement and monitoring of human rights provision is a useful tool in gauging the likely effectiveness of foreign aid.
Publisher's note: International human rights law (IHRL) is often conceived of and taught as a system for enforcing specific, individual and group rights. In fact, IHRL’s mandate extends beyond individual rights to imposing broad constraints on state measures. Like most other fields of public international law, IHRL is normally viewed as a system primarily applicable to state actors. Beyond this, however, IHRL occupies a uniquely important role in international law due to its intrinsic connection with the main constitutive value of the modern world public order: human dignity. This article argues that IHRL’s central role puts it in a hierarchically superior position relative to other fields of international law and policy. Notwithstanding this priority, international practice has not fully integrated IHRL into other fields of public international law. The consequences of this incomplete convergence are felt most strongly in those other fields of international law and policy that directly affect human dignity. We argue that of these fields, international economic law and global development policy are most important to examine. The article argues for a reconciliation of these fields with IHRL as a precondition for good governance at the international level, and analyzes the potential means of integration. It concludes with a discussion of the implications of the theory developed here, for international policymaking.
Publisher`s note: The maintenance of international peace and security is the raison d' être of the United Nations and the core responsibility of the UN Security Council, yet its realization is constitutively linked to both human rights and development in the UN Charter. They argued that human rights concerns were most appropriately taken up by the Commission on Human Rights and that all UN organs, including the Council, should restrict their discourse and action to their respective spheres of competence.[21] The Security Council's reluctance to formally involve human rights experts in its discussions or to receive their reports endures nearly thirty years later. That started to change in 2009 when the UN High Commissioner for Human Rights, the deputy commissioner for human rights, and the assistant secretary-general for human rights began addressing the Council during formal meetings. The intractable character of recent conflicts, deep political divisions among permanent members, the politicization of human rights and especially its weaponization by permanent members who apply human rights standards against enemies but not friends, have stalled the advancement of human rights at the UN and specifically in the Council.
Publisher's note: This article examines the legal basis for the concept of the responsibility to protect (R2P) in international law. Accordingly, the article attempts to determine the extent to which various elements of the concept have already been incorporated into existing international instruments as well as in customary international law. It also ascertains the extent to which the concept has been accepted as a binding norm of international law, particularly in view of the burgeoning activities and resolutions concerning its use. The study analyses the existing provisions of major international instruments concerning the responsibility to protect, such as the Genocide Convention and Geneva Conventions, as interpreted by the International Court of Justice in its opinions. Finally, as part of the conclusion, the article evaluates the scope and limitations of the concept of R2P under international law.
Publisher's note: Transnational regional networks of regulatory bodies play a prominent role in complex systems of human rights governance. Despite their growing importance, we still have much to learn about the roles regional networks play as regulatory stewards in the field of human rights. I draw on the literature about regulatory stewardship to analyse a recently formalised regulatory network operating in Europe – the European Network of National Human Rights Institutions. The analysis proposes a model of global governance for human rights that includes networks of national human rights institutions as intermediaries. Moreover, it draws on some of the main concepts of network analysis to assesses the European network’s development into a ‘network administrative organisation’ and applies the model of regulatory stewardship to analyse the institutional network’s use of hierarchical and managerial stewardship to: support its member institutions; stimulate intra-network communication and learning; gain access to international networks; and to shape the regional human rights agenda.
Publisher's note: Cross-national quantitative data measuring human rights practices have existed for about four decades. However, those data have yet to gain much traction in the public sphere, leaving human rights advocacy a largely data-free enterprise. We argue that the underutilization of these data is due to (1) a heavy reliance on public documentation alone as an information source, (2) incomplete coverage of the entire list of internationally recognized rights, and (3) the many barriers to data access and understanding faced by those outside of academia. In response to these problems, we introduce the Human Rights Measurement Initiative, a global collaborative project committed to generating the best cross-national, comprehensive human rights data possible through a process of codesign across disciplines and professions and presenting those data in ways that are accessible and useful to academics, practitioners, and everyday people alike.
Publisher's note: Governing elites often ratify human rights treaties, even when their policies do not align with those treaties’ obligations. This article argues that this can be explained by the fact that executives anticipate the potential challenges these treaties could raise vis-à-vis their domestic policies and enter different types of reservations when they ratify to head them off. The types of reservations they use depend on key characteristics of the executive’s policies and practices, as well as its relationship with the legislative and judicial branches. Domestic actors can raise different types of challenges against the executive depending on variations in these key factors. The types of reservations executives use will therefore vary depending on the specific challenges ratification raises for them. Using an original dataset of the reservations states entered on human rights treaties registered with the United Nations, and employing an event history analysis, this study shows that the particular challenges treaties present for executives in different types of states help explain variation in how they use reservations when they ratify human rights treaties.
Publisher's note: This paper investigates how practices of (de)legitimation deal with regime overlaps by invoking the convergence or collision of norms, rules and procedures in regime complexes. It brings together two strands of International Relations literature – the concept of regime complexes and (de)legitimating practices in global governance institutions – to analyse the UN Treaty Process as a case study in the field of business and human rights. It makes three main arguments. The first is that regime complexes can be characterized by the concomitance of a collision and convergence of norms, rules and procedures. Second, regime overlaps and the collision of norms and rules may appear within a single international institution. Third, norm collision and convergence are inferred in (de)legitimation practices that characterize contestations in regime complexes. The UN Treaty Process demonstrates convergence and collision as (de)legitimation in light of the UN Guiding Principles (intra-organizational overlap) and the European Union (inter-organizational overlap).
Publisher's note: The article takes stock of developments in domestic and international law concerning the regulation of adverse human rights impacts by global business enterprises, one decade after the adoption of the UN Guiding Principles on Business and Human Rights (UNGPs) and the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights (Maastricht Principles). It discusses these soft-law instruments in the light of long-standing systemic obstacles to holding business enterprises legally accountable for their global human rights impacts. The article argues for a new legal consensus on business and human rights, grounded in the increasing recognition by States that corporate respect for human rights should be brought under the purview of (international) human rights law. This consensus builds on the gradual convergence between the regulatory models that underpin the UNGPs and the Maastricht Principles, such that States’ domestic regulation of business enterprises with extraterritorial effect becomes anchored in international legal obligations towards foreign victims of business-related human rights violations.
Publisher's note: After the UN Guiding Principles on Business and Human Rights (UNGPs) were adopted in 2011, an international treaty has been being negotiated since 2014. The two instruments reveal similarities and also conflicts regarding the adequate organization of the global economy based on human rights. The focus in this article will be on the processes leading to these instruments, because they themselves mirror different understandings of governance in the field of business and human rights as well as the struggle over the power of definition and legitimacy. The UNGPs were developed on the basis of global multi-stakeholder consultations, underlining legitimacy through broad inclusion. There are varying judgements as to the success of this approach. The process towards the treaty follows the traditional path of negotiations at UN level. These negotiations reveal a struggle for recognition of the legitimacy of the process itself. Both procedures have shortcomings with regard to legitimacy and show the need for a revision concerning the inclusion of stakeholders. The complementarity of a soft and hard law instrument may enhance the creation of a level playing field in the global economy, thereby strengthening human rights.
Publisher's note: While National Human Rights Institutions (NHRIs) are widely regarded as particularly promising tools in the emerging transnational regime for the regulation of business and human rights, we still know little about their potential and actual contribution to this field. This article bridges the gap between business and human rights research and NHRI scholarship, proceeding in three steps: Firstly, I analyze the structural conditions for NHRIs to tackle business-related human rights abuses effectively, focusing on the key conditions of legitimacy and competences. Secondly, I examine the envisaged role and functions of NHRIs in business and human rights regulation according to the Paris Principles and the UN Guiding Principles. Thirdly, I reconstruct and critically assess NHRIs’ mandates and powers to address corporate human rights abuse, based on the analysis of surveys and reports. I argue that there is a significant mismatch between the essential structural conditions for effective NHRI engagement with business and human rights, the expected contribution of NHRIs to the prevention and remedy of corporate human rights abuses, and the limitations of their mandates and powers in practice. To overcome that misalignment and unlock NHRIs’ full potential, this article proposes a reform of the Paris Principles which would provide these institutions with a robust source of international legitimacy and increase the pressure on state governments to extend their powers.
Publisher's note: This Article explores global human rights obligations, which form the least elucidated and the most unfulfilled type of extraterritorial obligations. Global obligations represent a key legal tool for empowering the most vulnerable individuals and social groups, promoting social justice, and reducing extreme poverty and inequality worldwide. Despite their importance, global obligations have not yet received adequate legal recognition, regulation, and realization. The Article outlines the main contours of the conception of global obligations. While defending a human rights-based cosmopolitan concept of justice, it addresses issues surrounding the nature, status, content, scope, and hierarchy of moral duties towards non-compatriots and shows under which conditions and to what extent these duties should be recognized as human rights obligations of multiple actors. The Article aims to demonstrate that global obligations are morally justified human rights obligations that bind all members of the international community and require their legal regulation and implementation. It suggests a new classification of global obligations and stresses their significance for the enjoyment of guarantees of relational and distributive justice, as well as for promoting a shift from a state-centered to human-centered global order. It also seeks to uncover the interrelation between philosophical discourse, normative legal order, and legal practice. The Article explains how contemporary theories of global justice can contribute to the justification, conceptualization, allocation, and implementation of global obligations. It translates philosophical ideas into the language of law and incorporates empirical findings in relation to global obligations. At the same time, it examines whether human rights theory and practice regarding global obligations are capable of, and essential to, solving widely debated issues of global justice.
Publisher's note: In this paper I argue that there is objectivity in international human rights law, against which the justifiability of arguments can be determined, and which could advance the universality versus relativity of human rights debate. Revisiting the three schools of treaty interpretation (i.e. textual, intentional, and teleological) and applying the three elements of Radbruch’s rule of law, I discuss how the interpreter’s job of balancing those schools has limited room for manoeuvre. I further propose an approach to help jurists detect unjustifiable arguments in treaty interpretation, often in the disguise of relativism. That approach consists of: (a) a non-justifiable argument contradicts all three schools of treaty interpretation; or ignores all three; (b) a justifiable argument is supported by at least one of these schools; (c) a better argument is a more balanced argument, i.e. supported by more elements of interpretation. Finally, I argue that there is a degree of objectivity in each school of treaty interpretation, which is supported by shared intention and speech act theory, and can therefore be held to apply to the whole process of treaty interpretation. I illustrate above arguments with a case (Golder vs. the United Kingdom), a doctrine (international human rights legal regimes’ interpretation of the exhaustion of domestic remedies rule), and a country (China’s relativistic arguments on Article 1 of the Convention against Torture).
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