Theorizing the multi-layered nature of human rights law (Introduction) (int)

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Key words : Human rights

Authors : Eva Brems, Professor of Human Rights Law at Ghent University and Ellen Desmet, post-doctoral fellow at Ghent University and the University of Antwerp.

The papers that follow are the first batch of a set of four papers that are presented together as part of a co-ordinated research effort. The other batch will be published in the next issue of this Journal. The full set is briefly introduced here.

In the last decades, the number of legal instruments addressing human rights has proliferated dramatically. Human rights texts dealing with particular groups (e.g., women, children, persons with disabilities, indigenous peoples) or themes (e.g., racial discrimination, enforced disappearance) have complemented the general human rights conventions. Global, regional and national human rights systems have been established, including a diversity of monitoring mechanisms. These human rights systems may diverge in their approach : whereas, for instance, the Inter-American human rights system has been particularly progressive in interpreting general human rights provisions in a way accommodative to the concerns of indigenous peoples, the European Court of Human Rights remains for the most part conspicuously silent on indigenous issues in particular, and collective rights in general. The African Commission on Human and Peoples’ Rights, on the other hand, has substantially drawn on the Inter-American jurisprudence on indigenous rights. [1]

Moreover, the end of the expansion of human rights law does not seem in sight : new human rights, such as the right to water, are finding entrance [2] ; new groups, such as peasants, are entering the human rights scene, striving for a more comprehensive and tailored protection of their rights [3] ; and new regions, such as Asia, are taking their first steps towards a more robust human rights regime. [4] .

In sum, human rights law appears as an increasingly complex and expanding field of law, consisting of different levels, actors and norms. Instances of cross-pollination stand next to diverging interpretations and evolutions. The question inevitably arises : how to make (theoretical and practical) sense of these multiple layers of human rights law ? The four papers we present discuss theoretical and conceptual frameworks that aim to contribute to a more sophisticated understanding of the multi-layered nature of human rights law. Given the theoretical vocation of this exercise, the aim is not to explore how these frameworks can be applied to concrete contexts and cases. This research will be undertaken elsewhere [5]

Two of the papers (Bailleux and Oomen) present empirical approaches to the multi-layered architecture of human rights law, the other two (Baumgärtel et al. and Brems) examine normative perspectives. The bottom-up approach of legal anthropology, expressing the empirical reality of multiple human rights norms and fora in terms of legal pluralism (Oomen), is confronted with a different empirical approach – ‘law as a network’ (Bailleux). Moreover, no less than nine different theories about the legal effects of globalisation are scrutinized to uncover their normative implications for human rights integration (Baumgärtel et al.). Finally the pros and cons of a normative stance favouring human rights integration are examined from within the discipline of human rights law (Brems). While the empirical approaches are mostly geared to explaining and analysing the facts on the ground, the normative approaches aim at changing those same facts. Thus, both types of approaches are complementary. The concepts and theories of legal pluralism and of ‘law as a network’ help unravel the complex architecture of human rights law, and the normative models work towards streamlining that picture toward integrated human rights.

In this issue, we present papers by Antoine Bailleux and by Moritz Baumgärtel, Dorothea Staes and Francisco Mena Parras.

Antoine Bailleux employs the theory of ‘law as a network’, developed by Ost and van de Kerchove [6] , to describe and interpret the evolution of human rights law as well as the strategies used by its principal actors. Three main characteristics of a network, i.e. its fluidity, polycentricity and interdependence, appear useful to enhance under¬standing of the functioning of human rights law. Each of these features moreover is the outcome of infinite tensions, between openness and closure (fluidity), centralization and marginalization (polycentricity), and moves towards independence versus solidarity (interdependency of dots within the network). By illustrating these conflicting movements, the author aims to demonstrate that human rights function in a ‘network-like environment’. Although mainly empirical, the concept of network is said to also imply a certain normative stance, in that the complete denial of the existence of a network would be ineffective. Bailleux suggests that both the tendency toward fragmentation and the trend toward integration in human rights are inevitable, and even necessary for the human rights network.

Another set of approaches that may serve to refine our conceptualization of the various layers of human rights law are bundled under the denominator of ‘global law theories’. Indeed, in analysing the fragmented landscape of international human rights law, it is interesting to begin with what many believe is the root cause of legal fragmentation : globalisation. Moritz Baumgärtel, Dorothea Staes and Francisco Mena Parras discuss nine strands in a global law scholarship, which all explore the dynamics of law in a globalising world, albeit each with their own epistemological, philosophical and methodological frameworks. Analysing the way teach of these theories deals with human rights integration, the authors distinguish three models of human rights integration. They find a model of ‘hierarchical integration’ in the theories of neo-naturalism, global constitutionalism and global administrative law. In theories of ordered legal pluralism, neo-insti¬tutionalism and systems theory, they see a shared preference for ‘coordinative integration’. Finally there is the model of ‘conflictual integration’, as embraced by pragmatic approaches, critical legal studies and theories of the Global Studies. Ultimately, the distinctive approaches to human rights integration adopted by the different schools of thought are rooted in their profoundly different readings of the process of globalisation.

In the next issue, we present papers by Barbara Oomen and Eva Brems.

In her contribution on legal pluralism and human rights, Barbara Oomen discusses how socio-legal theories of legal pluralism can lead to a better understanding of human rights implementation, understood as the process by which a particular human right acquires a meaning in a particular setting, – and human rights integration – the study of the simultaneous application of human rights and its implications for rights holders and duty bearers. With the increase in globalisation and the related strengthening of international legal regimes, the focus in legal pluralism shifted from the interaction between state and non-state laws to global and transnational legal pluralism. In the wake of this, the normative field of human rights and the socio-scientific field of legal pluralism have increasingly found one another over the past two decades. Oomen explains how a number of key conceptual and methodological tools developed in the context of the study of legal pluralism, may contribute to a better understanding of the process of human rights integration, and the forces driving it. These include the key emphasis on the semi-autonomous social field as an object of study, the eye for the role of actors in the process of human rights implementation, the attention for the importance of the power differentials involved, the role of framing, as well as a specific research methodology. Oomen enriches her theoretical discussion with input from a case study on passive voting rights of orthodox-protestant women in the Netherlands.

In the fourth article of this collection, Eva Brems explores what it would actu¬ally imply to look at human rights law in an integrated way. She submits that an integrated approach to human rights requires both a comprehensive normative framework – taking into consideration all human rights norms that are at play in a given situation –, and an inclusive approach to rights holders – accounting for the human rights of all rights holders that are involved in a certain case. Brems’ point of departure is that such an approach is prima facie desirable from the perspective of international human rights law, as it would contribute to realizing in practice the basic principles of universality and indivisibility of human rights, that are now mostly paid lip-service to. After zooming in on the expected benefits of an integrated perspective to human rights law, she encounters the main coun¬ter-arguments to this approach. She concludes that the claim for human rights integration is a strong one, yet realizing this perspective presents huge challenges to work on mechanisms of coherence and integration in human rights law.

Notes et références

  1. See, e.g., African Commission on Human and Peoples’ Rights, Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya, 4 February 2010 (276/2003)
  2. See Committee on Economic, Social and Cultural Rights, The right to water, 20 January 2003 (E/C.12/2002/11)
  3. See Human Rights Council, Promotion and protection of the human rights of peasants and other people working in rural areas, 11 October 2012 (A/HRC/RES/21/19), establishing an “open-ended intergovernmental working group with the mandate of negotiating, finalizing and submitting to the Human Rights Council a draft United Nations declara¬tion on the rights of peasants and other people working in rural areas” (§ 1)
  4. See, e.g., T.-U. BAii, Emerging Regional Human Rights Systems in Asia, Cambridge, Cambridge University Press, 2012
  5. See E. BREMs and E. DEsMET (eds.), “Studying human rights law as an integrated whole from a users’ perspective”, Human Rights & International Legal Discourse, no 2, 2014
  6. F. OsT and M. Van de Kerchove, De la pyramide au réseau ? Pour une théorie dialectique du droit, Brussels, Publica¬tions des Facultés universitaires Saint-Louis, 2002.