HUMAN RIGHTS EXPERIMENTALISM.

Author:de Burca, Gradinne
 
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ABSTRACT

Human rights in general and the international human rights system in particular have come under increasing attack in recent years. Quite apart from the domestic and global political events since 2016, including an apparent retreat from international institutions, the human rights system has in recent times come in for severe criticism from academic scholars. Amongst the various criticisms levelled have been: (1) the ineffectiveness and lack of impact of international human rights regimes, (2) the ambiguity and lack of specificity of human rights standards, (3) the weakness of international human rights enforcement mechanisms, and (4) the claim to universalism of human rights standards coupled with the hegemonic imposition of these standards on diverse parts of the world. This article responds to several of those criticisms by introducing the idea of experimentalist governance, interpreting key aspects of the functioning of certain international human rights treaties from the perspective of experimentalist governance theory, and surveying a body of recent scholarship on the effectiveness of such treaties. Contrary to the depiction of international human rights regimes as both ineffective and top-down, the article argues that they function at their best as dynamic, participatory, and iterative systems. Experimentalist governance offers a theory of the causal effectiveness of human rights treaties, brings to light a set of features and interactions that are routinely overlooked in many accounts, and suggests possible avenues for reform of other human rights treaty regimes with a view to making them more effective in practice.

  1. INTRODUCTION

    Human rights in general and international human rights law in particular have faced serious challenges in recent times. Geopolitical upheavals, including the Brexit vote in the United Kingdom, the election of Donald Trump in the United States, the global spread of illiberal democracy, and the withdrawal of several African states from the International Criminal Court suggest an era of political retreat from liberal internationalism and international institutions, including from human rights courts and bodies. (1)

    Yet the array of serious challenges to human rights has come not only from current political developments, but also from a growing range of prominent scholars, and even from "insiders" to the human rights system. A significant body of academic and policy literature in recent years has been harshly critical of the international human rights enterprise. (2) And although scholarly challenge to human rights discourse and institutions is not in itself a new phenomenon, (3) the extent and volume of the critique in recent years have notably increased. Indeed, it seems that as the international human rights domain has grown and continued to spread, the range of critical reactions in turn has spread and intensified.

    Amongst the various scholarly and policy criticisms which have been put forward are a number which are particularly prominent and recurrent. These critiques concern: the ambiguity and lack of specificity of human rights standards; the weakness of international human rights enforcement mechanisms; and the ineffectiveness and lack of impact of human rights law. Another target for criticism is the universalist claim of human rights standards, and the accompanying hegemonic or top-down imposition of human rights standards on diverse parts of the world. In the face of these critiques, how can it be argued that the international human rights system is working?

    This article focuses on one key part of the international human rights regime which has come in for particular criticism--the international human rights treaty system--and it argues that that the treaty system does indeed work. Drawing on experimentalist governance theory, the article suggests an account of how the human rights treaty system works in practice to make a difference, and in a way that rebuts several of the criticisms outlined above.

    After introducing the idea of experimentalism as a theory of transnational governance, three important international human rights treaties are analyzed as transnational experimentalist governance regimes: the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); the Convention on the Rights of the Child (CRC); and the Convention on the Rights of Persons with Disabilities (CRPD). One effect of interpreting these treaty regimes through the lens of experimentalist governance is to highlight important features--particularly the iterative interaction between civil society actors, UN treaty bodies, and governmental actors--which are routinely neglected or underestimated in conventional descriptions and critiques of the human rights treaty system.

    Having introduced experimentalist governance theory and its relevance to the international human rights treaty system, this article addresses the effectiveness critique set out above by surveying a range of empirically based studies of the international human rights treaty system in practice. (4) This survey indicates that a growing body of recent empirical scholarship identifies a positive correlation, under specific conditions, between the adoption of human rights treaties by states and an improvement in human rights standards within those states. Significantly, most of the studies, both quantitative and qualitative, suggest that the conditions under which human rights treaties are likely to contribute toward this positive impact include two key experimentalist features: a degree of political liberalization, and a reasonably active domestic civil society that is strongly engaged with the UN treaty reporting regime. A case study of children's rights in Albania is included to illustrate more closely the ways in which the experimentalist operation of treaty body system can promote positive human rights reform.

    The experimentalist lens offers a plausible and cogent account of something which the scholarly literature to date (even the literature which shows a correlation between ratification of human rights treaties and improved respect for human rights) has struggled to explain: how international human rights treaties actually work in practice to improve human rights. (5) And the specific finding of most of the qualitative and quantitative studies surveyed below--essentially that there is a correlation between the existence of an active domestic civil society which is engaged with the UN treaty system and the positive domestic effects of an international human rights treaty--bolsters the argument that it is the experimentalist functioning of these human rights treaty systems that helps to account for their positive impact.

    Further, in addition to providing a more developed theoretical account of the mechanism by which international human rights treaties can work to produce progressive change, an experimentalist governance analysis also offers a response to the first and second critiques of the human rights treaty system outlined above, namely the apparent ambiguity in standards and the weakness of enforcement mechanisms. Understood from an experimentalist perspective, these features, far from being weaknesses, can be seen as important and necessary components of a properly functioning system. A more challenging criticism, however, may be that which denounces the universalist claim of international human rights law and its alleged hegemonic imposition of international standards on diverse parts of the world. Nevertheless, to the extent to which these human rights treaty systems do operate in the way suggested in this article, a more nuanced response to this fourth criticism can be offered: (6) that the open-endedness of human rights standards and the existence of an active domestic civil society within the treaty systems examined have the effect of facilitating genuinely two-way interaction and engagement between locally situated actors and institutions and internationally situated actors and institutions. Local actors are in a position to articulate their specific claims and concerns and to provide contextualized knowledge and feedback to the international actors and institutions which rely on such feedback, and on the other hand, they are in a position to adapt or vernacularize international standards within domestic and local contexts. (7)

    Finally, understanding the operation of human rights treaties as a form of experimentalist governance may also have practical implications about where future research and resources might be directed in terms of strengthening the human rights system to improve the lives of people across the globe.

  2. EXPERIMENTALISM AS A THEORY OF TRANSNATIONAL GOVERNANCE

    The disciplines of international law and international relations have long struggled with the difficulty of developing or even imagining a legitimate system of transnational governance which could provide a minimally satisfactory functional substitute for domestic political systems within states. On the one hand, it is widely acknowledged that however attractive the notion of sovereignty remains to states, they are in fact deeply interdependent, and the capacity of separate political communities to govern themselves is fundamentally affected by what other political communities do or do not do, as well as by flows of capital, commerce, persons, and ideas. On the other hand, despite this deep and factual interconnectedness, no adequate system of transnational governing capable of meeting the challenges of interdependence has yet been developed. International institutions largely lack both the capacity and the democratic legitimacy of domestic political institutions, and even the deep experiment in transnational polity-making represented by the European Union has revealed all too starkly in recent times the difficulty of developing a democratically legitimate and accepted form of governance beyond the...

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