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The Context: The Expansion of Rights and Conflicting Expectations

For a number of years now the general trend of proliferation of international law has been described and debated among scholars and practitioners.2 Within international human rights law, this proliferation can be seen through a steady increase in General Comments or Recommendations, views, and observations from treaty bodies. Altogether it has provoked ongoing reform efforts in order to enhance coherence and consistency across the UN monitoring machinery.3 Simultaneously, new individual communication mechanisms are nonetheless established, as well as the Universal Periodic Review, which produces an astronomical amount of recommendations alongside the many existing recommendations and the newly established Special Procedures.

In addition to this quantitative increase in soft law, a qualitative expansion is also taking place through the dynamic interpretation of existing standards. The practice of the Committee overseeing ICESCR is a good example of this development. During the 1980s the Committee abided by state party consensus, that is, keeping its recommendations in line with at least a majority of states. This interpretative principle transformed in the 1990s into a much broader mode of interpretation.4 This dynamic trend has continued and has led to more comprehensive and detailed versions of General Comments and Concluding Observations.5

Another important trait is the growing involvement of actors other than states in the official human rights machinery. Over the past decades, NGOs and National Human Rights Institutions (NHRIs) have increasingly been invited to participate in the drafting process for new soft law6 as well as binding standards, most recently the Convention on Rights of Persons with Disabilities (CRPD).7 Treaty bodies systematically invite NGOs and NHRIs to submit supplementary information as part of the reporting procedures.8 Hence, the ‘interpretive community’9 for international human rights now includes, on the one hand, civil society actors that are (2013): 123—60; D. Shelton, ‘International law and “Relative Normativity” ’, in International Law, ed. M. D. Evans (Oxford: Oxford University Press, 2010): 141.

  • 3 Office of the United Nations High Commissioner for Human Rights, Strengthening the United Nations Human Rights Treaty Body System: A Report by the United Nations High Commissioner for Human Rights, Navanethem Pillay, 26 June 2012, A/66/860: 25; S. Egan, ‘Strengthening the United Nations Human Rights Treaty Body System’, Human Rights Law Review vol. 13 (2013).
  • 4 K. G. Young, ‘The Minimum Core of Economic and Social Rights: A Concept in Search of Content’, The Yale Journal of International Law vol. 33 (2008): 150.
  • 5 B. Saul, D. Kinley, and J. Mowbray, The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases and Materials (Oxford: Oxford University Press, 2015): 5.
  • 6 H. Keller and G. Ulfstein, UN Human Rights Treaty Bodies: Law and Legitimacy (Cambridge: Cambridge University Press, 2012): 186—92.
  • 7 Cf. documents from the Working Group set up by the Ad Hoc Committee mandated by General Assembly Res. 66/168 to work towards a convention, available at .
  • 8 All UN treaty bodies have procedures inviting non-governmental organizations and NHRIs to submit supplementary information in relation to the reporting and examination processes of states parties. Cf. e.g. CCPR/C/104/3.
  • 9 This notion does not imply the parties’ shared interest in preserving the overall relationship of the community, as Johnstone has defined it. This cannot be taken for granted when it comes to human rights relationships. I. Johnstone, ‘Treaty Interpretation: The Authority of Interpretive Communities’, Michigan Journal of International Law vol. 12 (1991): 407.

not responsible for implementation of the treaty obligations and, on the other, states members that may be critical to the system.

Simultaneously, other trends pull in the exact opposite direction. Most saliently in the European context, the Brighton Declaration, adopted in 2012 by all member states of the Council of Europe, suggests a series of reforms as a response to what is perceived as failure of the European Court of Human Rights to ensure consistency and high-quality rulings.[1] [2] [3] [4] [5] [6] [7] Some authors have considered this a collective effort by the states parties to regain power taken away from them by a supranational body.n Other trends testify more generally to the fragile foundation on which human rights legitimacy is built. For instance, while a steady increase in the number of state ratifications of all UN conventions seems to reflect a greater acceptance of human rights, some have discussed the ‘false positive’ in terms of states parties that claim to acknowledge human rights but in fact show no commitment to their content.12

Despite these challenges and instances of resistance within the human rights system, the growing influence of human rights can be observed almost everywhere in international politics. 13 The development sector is a topical example of this. Major players like the World Bank and the OECD have incorporated human rights in their policy documents.14 Human rights in the development context are very often linked to the notion, or principle, of participation, which in turn has evolved into a key means of ensuring ownership and sustainability of reformsTh At the intersection of human rights and development, participation is a term employed increasingly by activists, professionals, and academics alike. 16 The UN has pushed the ‘principle of participation’ to the forefront of all its programming activities by proclaiming it as one of the cornerstones of the HRBA.[8] [9] [10] [11] [12] [13] [14] The HRBA has subsequently been adopted as an internal policy or working method among a growing number of human rights and development organizations, including outside the UN.18

Human rights professionals and activists in the development contexts have turned to participation rights as a way to create new channels of influence for underprivileged groups, with the aim of enhancing economic, social, and cultural rights. This has brought about a vast number of soft law instruments which aim to define and specify participation rights. Concurrently, academics and activists have growing expectations in terms of the potential of human rights to deliver greater justice.

These trends have imposed a difficult task on the treaty bodies and other UN organs. These bodies must balance aspirations for change and justice that can be achieved through human rights tools with the credibility and consistency expected of a system of public international lawd9 As their interpretation of hard law instruments moves away from a consensus-seeking approach, it increasingly requires other persuasive qualities. Matthias Goldmann suggests seeking reliable concepts of legality as opposed to ‘imponderable discourses about legitimacy’^0 However, the question of human rights legality should not and indeed cannot avoid issues of legitimacy.21 This does not mean that Goldmann’s alternative of ‘formalistic arguments’ can be set aside as ‘legalistic’ and exchanged for realistic or even critical power analyses, as David Forsythe comes very close to implying.22 Rather, as Martti Koskienniemi has suggested, the most fruitful approach features the simultaneous involvement of rigorous formalism and substantive or political opennessd3

  • [1] Available at . See especially paras 11—12,and 23.
  • [2] The European Court of Human Rights between Law and Politics, ed. J. Christoffersen and M. R.Madsen (Oxford: Oxford University Press, 2013): 238—41.
  • [3] B. A. Simmons, Mobilizing for Human Rights: International Law in Domestic Politics(Cambridge: Cambridge University Press, 2009): 77—80. A similar concept denoting ‘tactical confessions’ by states is suggested in The Persistent Power of Human Rights: From Commitment to Compliance,ed. T. Risse, S. C. Ropp, and K. Sikkink (Cambridge: Cambridge University Press, 2013): 5—16.
  • [4] E. M. Hafner-Burton and J. Ron, ‘Seeing Double: Human Rights Impact through Quantitativeand Qualitative Eyes’, World Politics vol. 61 (Apr. 2009): 360^01. The article is critical of this development, warning that human rights may appear to promise more that can be delivered and may crowdout more appropriate local alternatives, at 392—3.
  • [5] 14 World Bank Groups Strategy. Oct. 2013, para. 9 (p. 6) available at (18 Dec. 2014), OECD: ‘The AccraAgenda for Action’, paras 3 and 13(c), 2008.
  • [6] See: G. Mansuri and V. Rao, ‘Localizing Development: Does Participation Work?’ (World BankPolicy Research Report, Washington DC, 2013): 30; OECD: Paris Declaration for Aid Effectivenessand the Accra Agenda for Action (2005/2008): 3.
  • [7] A. Ling, R. McGee, J. Gaventa, and M. Pantazidou, ‘Literature Review on Active Participationand Human Rights Research and Advocacy’ (Institute for Development Studies, 2010). Available at. P Gready and W Vandenhole, Human Rights and Development in the NewMillennium: Towards a Theory of Change (New York: Routledge, 2014).
  • [8] A landmark document for the HRBA policy within the UN is the ‘Common Understandingon Human Rights Based Approach to Development Cooperation’. This was issued as the result of aworkshop held by the UN administration and its agencies in Stamford, Connecticut, in May 2003,and hence is often referred to as the Stamford Agreement, available at . See .
  • [9] 18 At the time of writing (Aug. 2015), documents relating to HRBAs were obtained from thewebsites of the following organizations; The Global Human Rights Education and Training Centre,Scottish Human Rights Commission, Minority Rights Group International, and ESCRA-Asia.
  • [10] Similarly, consistency and coherence are high-profile development policy goals in OECD and theEU; S. Mclnerney-Lankford, ‘Regime Interaction and the Fragmentation of International Law’, WorldBank Legal Review (Innovation and Empowerment for Development) vol. 4 (2013): 147—9.
  • [11] M. Goldmann ‘Inside Relative Normativity: From Sources to Standard Instruments forthe Exercise of International Public Authority’, in The Exercise of Public Authority by InternationalInstitutions, ed. A. von Bogdandy et al. (Berlin: Springer Verlag, 2010): 665.
  • [12] The concept of legitimacy in human rights law has prompted a wealth of literature. In the presentchapter the meaning is primarily ‘output legitimacy’, i.e. the degree to which human rights is seen tocontribute to fairness, justice etc. See: Keller and Ulfstein (2012): 120 and Ling et al. (2010):141.
  • [13] D. P. Forsythe and P. David, ‘Human Rights Studios: On the Dangers of Legalistic Assumptions’,in Methods of Human Rights Research, ed. F. Coomans, F. Grunfeld, and M. T. Kamminga(Maastrict: Maastrict Centre for Human Rights/Intersentia, 2009): 59—75.
  • [14] M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument, reissuewith new Epilogue (Cambridge: Cambridge University Press, 2005): 562—3.
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