Dr. Başak Çalı (pictured above left) is Associate Professor of International Law at Koç University, Turkey. Lorna McGregor (pictured right) is a Reader in Law and Director of the Human Rights Centre at the University of Essex School of Law. Ivana Radačić (pictured below left) is a senior research associate at Ivo Pilar Institute of Social Sciences in Zagreb and a visiting lecturer at the University of Zagreb, the University of Osijek, the European Inter-University Centre for Human Rights and Democratisation (Venice). They are the Founding Co-Chairs of the European Society of International Law’s Interest Group on International Human Rights Law.
The theme of this year’s ESIL annual conference is ‘International Law AND …’ It takes place in a year of conferences seemingly devoted to ‘taking stock’ of the current state of international law and assessing the future opportunities and challenges it will face (see the recent ASIL-ILA conference on the Effectiveness of International Law and last week’s ILA British Branch conference on Foundations and Futures of International Law).
In establishing the ESIL Interest Group on Human Rights, we wanted to ‘take stock’ of International Human Rights Law and in doing so, to ask the big structural, procedural and substantive questions that are necessary to determine its future. We plan to hold conferences like our inaugural roundtable on ‘International Human Rights Law AND…’ at the ESIL annual conference in Vienna in September and to encourage debate and discussion through online symposia, particularly on EJIL Talk! and other academic and practical projects.
Before our discussions even begin, however, we have to be clear on how we understand international human rights law. We regard international human rights law as a field that is simultaneously positioned both within public international law and across other disciplines. International human rights law is substantial but nonetheless a sub-branch of public international law as well as part of a large and growing interdisciplinary ‘field’ of human rights. Characterising international human rights law in this way is often overlooked but gives a much more textured and nuanced picture of its operation and the challenges it faces through resistance to containment as a sub-branch; internal-fragmentation; and interdisciplinary expansion.
Resistance to Containment to a Sub-Field
The presentation of international human rights law as a sub-branch conceals its dominance within public international law making it a much bigger project than a ‘sub-branch’ would suggest. Human rights are central organizing principles in public international law (see Article 55 of the UN Charter) and as some commentators note ‘human rights’ are at the core of the constitutionalisation of international law (Cf. M. Kumm, ‘The Cosmopolitan Turn in Constitutionalism: On the Relationship Between Constitutionalism’ in Ruling the World? International Law, Global Governance, Constitutionalism (Dunoff and Trachtman eds)). This requires other principles of international law to be interpreted in line with international human rights law rather than public international law solely applying one-directionally to international human rights law.
International human rights law routinely interacts with other sub-branches of public international law by demanding new interpretations of existing law (cf. the principle of territorial application of treaties as regulated in the Vienna Convention on the Law of the Treaties); by qualifying existing obligations under other bodies of law (cf. international human rights law and the law of occupation); or imposing procedural and substantive obligations onto other bodies of law (cf. the ICC Statute). International human rights law’s permeation of other branches of international law opens up new research agendas in bodies of law that have been studied in isolation from IHRL (cf. the law of the sea, the international law of investment, the international law of trade). As a consequence, human rights law featured heavily in the International Law Commission’s study on the fragmentation of international law and the many commentaries the study has spawned.
At the opposite extreme,a major concern for international human rights law is how to master the exponential growth in international human rights standards and norms, jurisprudence, actors and institutions, often with competing or nuanced differences in their articulation and interpretation of the law. Such growth inevitably leads to internal fragmentation and the increasing emergence of sub-communities – or what the new editors of the Leiden Journal of International Law call ‘small discourse communities’ – specialised in particular areas of international human rights law. It is therefore common now to talk of human rights lawyers in terms of their sub-specialties whether torture or the right to water, a regional system or in relation to particular groups such as women or persons with disabilities. While inevitable, internal fragmentation raises serious questions about the coherence and unity of international human rights law as a sub-field. The dominant presence of international human rights law in public international law and the volume of jurisprudence coming from multi-level institutional sites leading to internal fragmentation both demands but challenges the feasibility of the ideal that one can be a generalist international human rights lawyer let alone a public international lawyer with a specialism in international human rights law.
Layered on to these challenges is the recognition that international human rights law is now a sine qua non interdisciplinary field. Interdisciplinary expansion refers to the identity of human rights not only as a specific sub-branch of public international law but as a ‘field’ or ‘movement’. Thus, it is no longer sufficient to talk of human rights purely in terms of law but we also have to understand and interact with other languages of human rights from disciplines such as sociology, political science and philosophy.
The emergence and creation of new human rights law is informed by political, social and economic developments and movements. The interpretation of substantive provisions of human rights law opens up a necessary dialogue with the theoretical foundations of human rights law and constantly changing social, politics, economic and scientific circumstances. The implementation of human rights law is infused with processes of political, cultural, economic and legal appropriations in different contexts.
While internal-fragmentation and interdisciplinary expansion might seem diametrically opposed, they can converge by steering actors and institutions to view human rights thematically rather than steeped in one discipline. Thus, with some exceptions one might work thematically on torture or health or in relation to particular groups such as women, LGTBIQ or persons with disabilities, for example, with a group of colleagues from different disciplines without necessarily focusing on the intra or interdisciplinary anchors. Equally, the examination of the wider questions of internal fragmentation; resistance to containment to a sub-field; and interdisciplinary expansion through a thematic lens might provide key insights into how to address these pressing challenges of volume and disciplinary coherence. More work might be done therefore to seize the opportunity of thematic spaces to advance thinking on the disciplinary underpinnings and future of international human rights law.
The challenges for international human rights law, therefore, are not contained to its vertical relationship to public international law, its horizontal relationship to other sub-branches of international law or its relationship to multilevel interpretative communities of human rights law, be it international, regional or domestic. International human rights law reaches both inwards and outwards. We do not always consciously think of human rights as simultaneously part of a system of law and a wider field. However, in doing so, our view is that we will be better able to see the achievements, the challenges and opportunities for intra and interdisciplinary exchange. In looking to the future, we need to investigate the normative and practical basis on which human rights law can maintain its dual identity as a specialised sub-branch of public international law (and other disciplines) and a wider field or discourse reaching across disciplinary boundaries both within law and beyond. If one person cannot be all things at all times, we may need to consciously shift our positions and vantage points moving between sub-specialism, generalist human rights lawyer and generalist public international lawyer and developing a language for interacting with (increasingly dominant) disciplines in the human rights ‘field’.
With this significant research agenda in mind, the ESIL Interest Group on International Human Rights Law seeks to be a hub for international human rights law researchers interested in reflecting on the place of international human rights law within the general field of public international law as well as in the field of human rights studies more broadly. The objective of our online symposia is to develop critical thinking around these themes which will be deepened through events, conferences and other academic and practical projects.