Legal mobilization for human rights
In: The collected courses of the Academy of European Law volume 30,2
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In: The collected courses of the Academy of European Law volume 30,2
In: The collected courses of the Academy of European Law volume 28,2
In recent years, human rights have come under fire, with the rise of political illiberalism and the coming to power of populist authoritarian leaders in many parts of the world who contest and dismiss the idea of human rights. More surprisingly, scholars and public intellectuals, from both the progressive and the conservative side of the political spectrum, have also been deeply critical, dismissing human rights as flawed, inadequate, hegemonic, or overreaching. While acknowledging some of the shortcomings, this book presents an experimentalist account of international human rights law and practice and argues that the human rights movement remains a powerful and appealing one with widespread traction in many parts of the globe. Using three case studies to illuminate the importance and vibrancy of the movement around the world, the book argues that its potency and legitimacy rest on three main pillars: First, it is based on a deeply-rooted and widely appealing moral discourse that integrates the three universal values of human dignity, human welfare, and human freedom. Second, these values and their elaboration in international legal instruments have gained widespread - even if thin - agreement among states worldwide. Third, human rights law and practice is highly dynamic, with human rights being activated, shaped, and given meaning and impact through the on-going mobilization of affected individuals and groups, and through their iterative engagement with multiple domestic and international institutions and processes. The book offers an account of how the human rights movement has helped to promote human rights and positive social change, and argues that the challenges of the current era provide good reasons to reform, innovate, and strengthen that movement, rather than to abandon it or to herald its demise. --
In: Collected courses of the Academy of European Law 9,3
In: American journal of international law: AJIL, Band 111, Heft 2, S. 277-316
ISSN: 2161-7953
AbstractHuman 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.
In: American journal of international law, Band 111, Heft 2, S. 277-316
ISSN: 0002-9300
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." (Seite 277)
World Affairs Online
In: Global constitutionalism: human rights, democracy and the rule of law, Band 5, Heft 3, S. 320-326
ISSN: 2045-3825
In: Maastricht journal of European and comparative law: MJ, Band 20, Heft 2, S. 168-184
ISSN: 2399-5548
This article examines the engagement by the Court of Justice of the European Union (CJEU) with the EU Charter of Fundamental Rights over the period since the Charter was made formally binding by the Lisbon Treaty in 2009. A survey of the output of the Court during that time reveals a sharp rise in the number of cases in which a provision of the Charter was cited or argued before the Court. Further, the Court has engaged substantively with and given prominence to the Charter argument in a growing number of these cases. In other words, the incidence of human rights adjudication before the CJEU has been significantly augmented by the adoption of the Charter as a binding legal instrument. The article considers the implications for the Court of Justice of the growing demand for it to function in certain cases as a human rights adjudicator. More particularly, it questions whether the long-standing judicial style and approach of the Court – its self-referential, formulaic and often minimalist style of reasoning – is appropriate to this expanded role. The article argues that the nature and context of the increasing number of human rights claims being made before the Court call for greater openness on the part of the CJEU to the use of international and comparative law and to the possibility of third party interventions. Further, and particularly given the evident unwillingness of the CJEU to countenance the practice of separate concurring or dissenting opinions, the Court should, particularly in cases involving human rights claims, rethink its increasingly frequent practice of dispensing with the Opinion of an Advocate General.
In: The EU's Role in Global Governance, S. 39-58
In: Maastricht journal of European and comparative law: MJ, Band 18, Heft 4, S. 418-420
ISSN: 2399-5548
In: American journal of international law, Band 105, Heft 4, S. 649-693
ISSN: 0002-9300
World Affairs Online
In: Harvard international law journal, Band 51, Heft 1, S. 1-49
ISSN: 0017-8063
World Affairs Online
In: EU Law and the Welfare State, S. 1-10
In: The State of the European Union, 6, S. 48-76