Looking to the Future: The Scope, Value and Operationalization of International Human Rights Law

By McGregor, Lorna | Vanderbilt Journal of Transnational Law, November 2019 | Go to article overview

Looking to the Future: The Scope, Value and Operationalization of International Human Rights Law


McGregor, Lorna, Vanderbilt Journal of Transnational Law


TABLE OF CONTENTS    I. INTRODUCTION                                     1282  II. THE FUTURE OF IHRL I: EFFECTIVELY      DIAGNOSING  AND ADDRESSING THE MULTILAYERED      THREATS TO HUMAN RIGHTS                          1286        A. Scrutinizing the Validity of Claims that           Backlash is Self-Generated                  1287        B. Recognizing the Complexity and           Multifactorial Nature of Backlash           1289        C. Recognizing Human Rights as a           Self-Reflective Field                       1291 III. THE FUTURE OF IHRL II: PRIORITIZING THE      INTERPRETATION AND ADAPTATION OF IHRL TO      PARTICULAR GROUPS AND NEW CONTEXTS               1294  IV. THE FUTURE OF IHRL III: OPERATIONALIZATION AND      REVALUING LAW AND THE COURTS                     1300        A. Implementation of Human Rights              1301        B. Revaluing Courts                            1310   V. CONCLUSION                                       1313 

I. INTRODUCTION

In recent years, scholarship has burgeoned on the challenges faced by the international human rights system. This literature has critically assessed the effectiveness and impact of international human rights law (IHRL). (1) These themes are often examined through the lens of compliance with treaty commitments and implementation, referring to both the "legal implementation," of the decisions or recommendations of international human rights bodies, (2) and "the operational delivery of human rights within communities and beyond." (3) Scholars have analyzed the mainstreaming of human rights beyond institutions and agencies with a dedicated mandate on human rights, for example, mainstreaming human rights throughout the United Nations (UN). (4) Some have focused on the "pushback" and "backlash" experienced by parts of the system. (5) This has included critiques of the international human rights system, particularly the global institutions established to promote and protect human rights and international human rights law (IHRL). The system has been invariably critiqued for being ineffective, too legal, insufficiently self-critical, and elitist. (6) As a result, some claim that the system self-generates some of the challenges it faces. (7) IHRL and its related institutions have also been criticized both for overexpansion of rights and for addressing the human rights implications of enduring and emerging global challenges, such as climate change, artificial intelligence, and inequality. (8)

This Article challenges these critiques and in doing so, identifies three priorities for the future of IHRL, if it is to remain an effective branch of international law mandated to promote and protect human rights. This Article first examines the claim that the international human rights system is insufficiently self-critical and generates many of the pressures it is experiencing. (9) It questions this proposition and suggests that a priority for IHRL is to diagnose the complex and multifactorial threats to human rights and critically assess how it can best contribute to addressing these threats. Part II makes this point in three ways. First, claims that IHRL and its related institutions constitute a major source of pushback and backlash have to be approached with care as history demonstrates the potential for states and other actors to levy criticisms at IHRL and its institutions as a means of pursuing particular political agendas, rather than revealing intrinsic deficiencies within IHRL. Second, pushback and backlash on the international human rights system are multifactorial and variable depending on the actor, issue, and point in time. It is difficult, therefore, to make generalized or universally applicable statements about the weight of particular pressures. (10) Moreover, apportioning responsibility for pushback and backlash to "internal pressures" risks underplaying the significant structural factors, global challenges, and shifts in scope conditions that currently present major threats to human rights and need to be addressed. …

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