II. Starting Points for the Study of International Human Rights Law

As Susan Marks observed, “human rights are not one thing.”Footnote ⁴ This insight applies equally to IHRL. Multiple objects of study fall within the general banner of international human rights scholarship and diverse research methods can be employed to study these. For example, one can study IHRL by focusing on a single human right,Footnote ⁵ the rights of specific groups,Footnote ⁶ or human rights treaties in a particular region.Footnote ⁷ International human rights law can be studied comparatively, where the comparator may be other branches of international law, variations in human rights treaty provisions and interpretation, or differences in and enforcement strategies and compliance rates across human rights regimes.Footnote ⁸ International human rights is also characteristically open to interdisciplinary inquiries, drawing upon philosophy, history, political science, and anthropology, just to name a few. Significant interdisciplinary projects have explored the moral groundingFootnote ⁹ and historicalFootnote ¹⁰ origins of IHRL, IHRL's real world impacts,Footnote ¹¹ and the limits and politics of human rights law.Footnote ¹²

The four books pursue different strategies in delimiting their object of study, as one might expect, given the multiple possibilities of engaging with IHRL as a multi-level object and site of inquiry.

Nina Reiners is Associate Professor of Human Rights and Social Sciences at University of Oslo's Faculty of Law. Her book, Transnational Lawmaking Coalitions for Human Rights,Footnote ¹³ focuses on international human rights law making through the interpretation of UN human rights treaties. The book zooms in on a central problématique in IHRL, namely, the dynamic or evolutive interpretation of human rights treaties through general comments issued by UN human rights treaty bodies (UNTBs). Reiners further delimits her object of inquiry by analyzing the genesis and release of three General Comments on three different rights by three different UNTBs, namely, the UN Committee on Economic, Social and Cultural Rights’ General Comment No. 15 on the right to water (Articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights),Footnote ¹⁴ the Human Rights Committee's General Comment No. 36 on the right to life,Footnote ¹⁵ and the Committee on the Elimination of All Forms of Racial Discrimination's General Recommendation No. 35 on combatting racist hate speech.Footnote ¹⁶ Methodologically, the book is interested not only in UNTBs, but also in civil society efforts to impact the drafting of these general comments. To do so, the book offers an empirical analysis of the conditions and circumstances under which individuals and groups gain participation, access, and, ultimately, influence over new interpretations of international human rights law, process tracing their impact on the drafting processes of general comments of UNTBs.

César Rodríguez-Garavito is Professor of Clinical Law and Chair of the Center for Human Rights and Global Justice at NYU School of Law. His edited volume, Litigating the Climate Emergency: How Human Rights, Courts, and Legal Mobilization Can Bolster Climate Action,Footnote ¹⁷ is composed of twenty-two substantive chapters, written both by scholars and human rights practitioners. This book also addresses the making of international human rights law, but does so through a specific focus on telling the stories of those who seek to reinterpret human rights law in the context of the climate crisis. Rodríguez-Garavito's edited collection places a special emphasis on the role of legal mobilization by different groups before domestic, regional, and international courts and bodies and seeks to uncover the unfolding dynamics of human rights-based climate litigation. Unlike Reiners's book, Rodríguez-Garavito's volume reimagines human rights law in plural institutional sites, ranging from NGO offices to domestic and international courts. The book seeks to prompt a conversation among scholars and practitioners with the aim of contributing to understandings of the processes through which human rights are made and remade in the context of the climate crisis. Individual chapters focus on how human right law is made not only at the level of the United Nations human rights treaties, but also at the level of regional human rights courts;Footnote ¹⁸ highlight domestic legal mobilization and the role of domestic courts, including constitutional and apex courtsFootnote ¹⁹ as well as lower level administrative courts;Footnote ²⁰ and consider domestic litigation against private actors as sites for the repurposing of human rights in the context of the climate crisis.Footnote ²¹ Furthermore, contributors to this volume focus on multiple international human rights, including both individual and collective rights, in particular rights of Indigenous peoples,Footnote ²² and ranging from civil and political rights to economic, social, and cultural rights, to examine their use and impact in litigation over climate issues.Footnote ²³

Gráinne de Búrca is Professor of Law at the European University Institute in Florence and on leave from New York University. Her book, Reframing Human Rights in a Turbulent Era,Footnote ²⁴ takes the multi-level legal and extra-legal interactions for and around human rights as its key object of study. These interactions, according to de Búrca, underpin not only the making and remaking of international human rights law as a set of legal-normative propositions, but also its effectiveness, understood as tangible outcomes in the form of domestic social or political change. Significantly, these interactions, which typically involve contestation and struggle, are neither top-down nor bottom-up. Rather, they are multi-directional, involving both horizontal interactions between human rights movements and public institutions within specific domestic contexts, and vertical interactions between domestic actors and international institutions.Footnote ²⁵

The delimitation of the object of study in this book is revealed through a diverse set of case studies. Different chapters analyze gender equality mobilization in Pakistan, the role of the Convention on the Rights of Persons with Disabilities in Argentina, and the mobilization for children's rights and reproductive rights in Ireland. A central focus throughout is the efficacy of international human rights in practice and over time. The book argues that this long durée account of IHRL's effectiveness better captures the dynamic practice of human rights across domestic and international levels as compared to a static snapshot of IHRL at a specific site at a certain point.

Dia Anagnostou is Associate Professor of Comparative Politics and International Governance, in the Department of Public Administration at Panteion University of Social Sciences, and Senior Research Fellow at the Hellenic Foundation of European and Foreign Policy (ELIAMEP) in Athens. She is currently a seconded national expert at the European Research Council Executive Agency. Her book, The European Convention of Human Rights Regime Reform of Immigration and Minority Policies from Afar,Footnote ²⁶ focuses on one regional human rights system, that of the European Convention on Human Rights. Its focus, similar to de Búrca's book, is not static. Anagnostou's book explores the life cycle of the implementation of European Court of Human Rights (Court or ECtHR) judgments. This cycle starts with the human rights judgments issued by the Court and ends with the domestic consequences of these judgments, in close interaction with the political peer review process of the Council of Europe's Committee of Ministers, which is tasked with ensuring the implementation of human rights judgments. To explore this life cycle, the book focuses on the implementation of ECtHR judgments in two “hard cases” involving the rights of minorities and migrants. Specifically, Anagnostou traces the life cycle of judgments delivered in the context of challenges to Roma segregation in education in the Czech Republic, Croatia, Greece, and Hungary,Footnote ²⁷ on the one hand, and judgments that concern immigration detention reform in Greece and in the European Union more generally, on the other.Footnote ²⁸

Two common themes run through all the books: (1) a cross-cutting approach to international human rights law as a cluster of legal entitlements spread across a myriad of legal sources; and (2) a commitment to study human rights law in action.

In all of these studies more than one human right and more than one site is at play. In addition, the polycentric and dynamic aspects of international human rights law are evident in all four books. In Reiners's book, this dynamism is visible through the connections the book traces between individuals, NGOs, UNTBs, and governments. In Rodríguez-Garavito's volume, there is a special effort to explain how human rights-based climate litigation unfolds in domestic, regional, and international sites as well as through the use of multi-layered forms of law, domestic and international. Likewise, in de Búrca's and Anagnostou's books, the analysis centers on multi-level interactions between the domestic and international levels as well as actors situated in transnational spaces that straddle these levels. Collectively, these volumes, therefore, evidence the strong trend toward multi-level, multi-site, and multi-actor analysis in contemporary IHRL scholarship.

The four books also share a strong methodological commitment to the study of IHRL in action. None of the texts limit themselves to the analysis of “law in the books,” underscoring the firm influence of the empirical turn in the study of international human rights law. Reiners's work focuses on the empirical development of international human rights law at the level of the United Nations. Even though the book examines General Comments of the United Nations Human Rights Treaty Bodies, the focus is not on their normative or doctrinal content, but on the interactions between the independent experts that serve on UNTBs and the advocacy networks and epistemic communities that seek to influence them, i.e., on the creation of transnational lawmaking coalitions and their efforts to shape the general comments of UN Human Rights Treaty Bodies. Anagostou's book is interested in both the genesis and downstream effects of IHRL. She investigates both the reasons for and the effects of mobilizing international human rights law in Europe by transnational and domestic civil society organizations to protect rights for marginalized groups. Significantly, Anagostou underlines that the law's interpretation through Court judgments and its subsequent effects are deeply entangled. In her account, legal mobilization by civil society organizations, refugees, and marginalized minority communities plays a dual role. First, these communities concretize the law through legal mobilization before the Court,Footnote ²⁹ and then they use the judgments they help create to push for domestic as well as European level reform.

De Búrca's book offers a comprehensive analytical framework to understand how human rights law works in action. This framework is strongly informed by de Búrca's earlier work on “experimental governance”Footnote ³⁰ and “human rights experimentalism.”Footnote ³¹ For her, law in action is iterative both as a matter of norm specification and as a matter of the law creating transformative effects in domestic settings. Significantly, de Búrca parts ways with earlier studies of experimental governance, which focused on “expert” or technocratic agents, and instead foregrounds social movements and civil society as significant actors in the circulation of human rights norms that enables their effects.Footnote ³² Law in action also plays a prominent role in many of the individual chapters in Rodríguez-Garavito's volume. For example, the chapter by Lisa Vanhala firmly locates the legal mobilization for human rights based climate litigation in the well-established literature that seeks to understand why individuals or groups turn to courts (rather than to other institutions) in order to make claims.Footnote ³³ Elsewhere in the book, Jolene Lin and Jacqueline Peel ask who mobilizes behind climate litigation in the Global South and develop an inductive typology of litigator profiles including grassroots activists; hero litigators who are activist lawyers; litigators funded by grant making organizations and non-profit organizations; transnational litigators; and domestic prosecutors, government agencies, and domestic NGOs who seek to enforce local laws.Footnote ³⁴ In addition, various chapters address the impact of domestic judicial and political cultures on the law's ability to transform itself and offer remedies in the context of the climate crisis in a variety of national settings.Footnote ³⁵

III. Addressing the Dynamism of International Human Rights Law

Regardless of the chosen scope and method, all IHRL researchers encounter a dynamic field of law and practice. This dynamism characterizes both the supply side of human rights law, i.e., legal and doctrinal sources, and the demand side, i.e., the ways in which communities and movements ascribe meaning to human rights in social and political practices as aspirational legal-normative ideals. A diverse group of domestic, transnational, and international norm entrepreneurs and norm interpreters help drive this dynamism, which is evidenced by the adoption of new global or regional human rights treaties,Footnote ³⁶ a wide range of soft law instruments, including new and updated general comments and recommendations from UN Treaty BodiesFootnote ³⁷ and advisory opinions,Footnote ³⁸ as well as domestic constitutional law processes.Footnote ³⁹ This widely dispersed activity leads human rights scholars to focus on multi-level, entangled, or conflicting interpretations of human rights law by different states, courts, and other bodies, and the consequences thereof.Footnote ⁴⁰ Moreover, societal actors and scholars continuously call for recognition of new human rights, such as the right to a healthy environment,Footnote ⁴¹ right to access the internet,Footnote ⁴² or freedom from algorithmic discrimination,Footnote ⁴³ in the context of new and emerging risks.Footnote ⁴⁴

At their core, all four books directly address IHRL's dynamism. This dynamism is treated both as an empirical fact and an aspirational value of the practice of human rights law.

The dual function of IHRL's dynamism comes across most clearly in Rodríguez-Garavito's volume. Individual chapters emphasize the normative need for dynamic evolution of IHRL in the context of the climate crisis, not only as a matter of how existing rights should be interpreted,Footnote ⁴⁵ but also in support of larger claims regarding systemic thinking about developing new rights and duties for states as well as corporations.Footnote ⁴⁶ As one critic of this book has already observed, this volume, therefore, has both a scholarly orientation and an activist sensibility.Footnote ⁴⁷

Rodríguez-Garavito's edited volume further stands out in its engagement with the study of “new human rights”Footnote ⁴⁸ including, for example, the rights of future generations.Footnote ⁴⁹ In addition, individual chapters in the book venture beyond the substantive interpretations of human rights and duties and call for interrogating paradigms of evidence and remedies in human rights law.Footnote ⁵⁰ The book's overall goal, therefore, is to enable cross-learning among human rights litigators, civil society, and domestic and international judiciaries, all of whom are conceived as in a position to shape the law (understood broadly to encompass international human rights law, constitutional law, corporate law, and administrative law), by building a repertoire of insights into how human rights law can be mobilized and reframed for effective climate action.

Reiners is likewise interested in the articulation of new human rights, in particular the right to water. Her focus, however, is not on how best to structure normative arguments, narratives or frames that would underpin the recognition of new human rights. Instead, she is interested in explaining the agency of individuals as experts and in particular “the key role expert bodies and issue professionals—working informally and sans government-involvement at the boundaries of an [international organization]—play in the development of human rights law.”Footnote ⁵¹ To do so, she explores how informal transnational lawmaking coalitions are able to gain entry to and exert influence on the making of IHRL by facilitating dynamic interpretations of existing rights by UNTBs. Reiners locates the influence of transnational lawmaking coalitions in an interactional perspective, underlining that the experts and civil society organizations that have access to the UN Human Rights Treaties are not engaged in international law making in a vacuum; instead they discharge these roles alongside governments and through institutional structures that are ultimately controlled by governments.Footnote ⁵²

De Búrca's book offers an altogether different account of IHRL's dynamism. She sees international human rights law's dynamism in the movement of a set of action guiding and correcting ideas travelling horizontally via the activism of human rights social movements and civil society to independent domestic institutions, namely courts, media, and agencies, as well as vertically to international human rights institutions and transnational networks.Footnote ⁵³ It is this constant circulation of IHRL that leads to domestic human rights reform, understood as action leading to better protections of human rights by both state and private actors in domestic settings.Footnote ⁵⁴ In this respect, de Búrca's text is also in conversation with Rodríguez-Garavito's volume. Both books underline the importance of interactions between domestic and international actors as key of understanding the dynamism of human rights law. Whilst Rodríguez-Garavito's book is an invitation to increase these interactions, de Búrca views such interactions as central to explaining the effectiveness of human rights law in bringing about domestic reform.

Anagnostou also focuses on the dynamics of domestic human rights reform, but with specific focus on the utility of international human rights judgments in engendering wider human rights reforms at the domestic level. Like de Búrca, Anagnostou emphasizes the importance of feedback loops between domestic and transnational civil society organizations and between these organizations and the Council of Europe, with a focus on the latter's institutional processes for monitoring the implementation of human rights judgments. In these iterative interactions, an international human rights judgment provides a trigger, mobilizing both domestic and transnational civil society and intergovernmental interactions between states through the Council of Europe's peer review mechanism.Footnote ⁵⁵ Significantly, in Anagnostou's analysis, ECtHR judgments can engender human rights reforms not only at the domestic level, but also at the level of the European Union. She demonstrates this through analyzing the effects of the implementation of the M.S.S. v. Greece and Belgium, identifying the judgment and the advocacy surrounding its implementation as a “catalyst for change” at the EU level, prompting policy reforms on asylum and migration, in particular, its framework of returning migrants to the first state through which they entered the European Union.Footnote ⁵⁶

IV. Responding to Human Rights Law Critiques

IHRL is an object of sustained external and internal critique in both scholarship and practice. External criticisms question whether international human rights law was ever, or is currently, normatively justified or desirable.Footnote ⁵⁷ Internal criticisms claim that human rights laws can serve as sources of exclusion of the very subjects they aim to protect,Footnote ⁵⁸ reproducing inequalities, and entrenching existing power relations.Footnote ⁵⁹ A further strand of internal critique questions the legitimacy of international human rights law institutions, particularly in light of their distance from democratic decision making and their overreliance on legal solutions to complex political, social, and economic problems.Footnote ⁶⁰ Others examine the causes and consequences of IHRL's waning power in global politics, highlighting backlash against human rights by both authoritarian and democratic states.Footnote ⁶¹

The four books under review engage with and respond to these diverse critiques to varying degrees, ranging from seeking to fully counter them to not engaging with them at all. Of the four books, de Búrca's explicitly positions itself as a direct response to the scholarly critique of IHRL and the waning support for human rights due to the rise of authoritarian and illiberal governments and political movements. She specifically identifies five strands of criticism, namely: (1) the “elitism of institutionalised forms of international [human rights] practice”;Footnote ⁶² (2) the “overreach of human rights law”;Footnote ⁶³ (3) the cultural imperialist features of international human rights law;Footnote ⁶⁴ (4) the lack of effective enforcement of international human rights;Footnote ⁶⁵ and (5) the failure of international human rights to address economic inequality.Footnote ⁶⁶

Her response to these diverse critiques of international human rights as a legal and political project underscores the continuous processes of transformative engagement with human rights by social movements, civil society activists, international and domestic institutions across the globe. Accordingly, for de Búrca, criticisms of the human rights practice do not fully account for why domestic social movements and civic actors across the world, including in repressive regimes, have not abandoned human rights, despite its weaknesses and deficiencies.Footnote ⁶⁷ De Búrca claims that the scholarly criticisms have not produced the “end of human rights” and that the criticism-heavy scholarship (as she notes mostly written by scholars from the Global North)Footnote ⁶⁸ does not pay adequate attention to individuals and groups that regularly invoke human rights discourse as they fight for social, environmental, Indigenous, and other movements in diverse domestic settings around the globe. De Búrca takes an additional step and argues that the “plural, dispersed and even fragmented nature” of the international human rights system is not only a key practical driver of domestic human rights reforms, but also better understood as a strength rather than a weakness.Footnote ⁶⁹ Plural sites and dynamic institutions not only offer multiple access points for human rights movements and organizations, but also are capable of compensating for the sites and institutions that fail to respond adequately to old as well as new challenges.Footnote ⁷⁰ De Búrca argues that these pluralistic features will also be key to addressing the rise of political illiberalism, digitalization, the climate crisis, the COVID-19 pandemic, and rising inequalities.Footnote ⁷¹

Reiners's book engages with the critique that highlights the allegedly elitist nature of institutionalized human rights practices. Reiners acknowledges that the informal influence of human rights professionals in the formation of UNTB general comments lacks democratic or representational credentials, thus raising questions about the legitimacy of such informal law making.Footnote ⁷² This critique is exacerbated by the fact that only a very small number of individuals have informal privileged access to the UN human rights treaty regime.Footnote ⁷³ Reiners stops short, however, of joining those who view this elitist influence as a major shortcoming. First, she argues that these individuals do not displace states, or their central role in international human rights law making and implementation. She notes that states possess ample means to impact UNTBs, including through elections of their members, budgetary allocations, and responses to UNTB statements. Moreover, she emphasizes that UNTBs retain ultimate authority to decide whether to adopt a general comment. Their informal interactions with individual experts, therefore, are better conceived as processes of learning, rather than as undue influence by a handful of elite professionals.Footnote ⁷⁴

In contrast, scholarly criticisms of international human rights law as a legal and political project do not receive attention in Anagnostou's book or in Rodríguez-Garavito's volume. Anagnostou, for example, carefully traces the role of international NGOs in mobilizing for Roma rights, including the European Roma Rights Centre, Amnesty International, and Open Society Justice Initiative, and their subsequent role in the implementation of human rights judgments. She demonstrates the active role these organizations play in monitoring the implementation of human rights judgments through written submissions to the Council of Europe's Committee of Ministers.Footnote ⁷⁵ Her evaluation of international civil society involvement is broadly positive. Anagnostou finds that the involvement of these international actors allows the European human rights system and domestic laws and policies to be more responsive to the rights of marginalized groups and results in a “profound transformation” of the supervisory mechanisms of the European human rights system.Footnote ⁷⁶ There is therefore no emphasis on the elitist features of transnational human rights actors, or concern over them occupying too much “space” at the expense of resource-limited domestic civil society organizations. Rodríguez-Garavito's volume similarly finds the transformative potential of civil society involvement in advancing human rights-based climate litigation as praiseworthy, and indeed some of the book's authors work for or lead international civil society organizations. The use of human rights to push for meaningful action to combat the climate crisis in legal proceedings is not viewed as an elitist intervention. Instead, the emphasis is placed on commonalties among social movements in the Global North and the Global South, which creates opportunities for building transnational coalitions and of providing multiplier effects to tackle the climate crisis through international human rights law.

V. Optimism and International Human Rights Law Practice

Read together, these four books offer an optimistic assessment of international human rights law practice, treating the dynamic circulation of ideas and the polycentric character of international human rights institutions as a strength of this legal, political, and civic practice. Criticism of international human rights law's inability to alter structural inequalities, be they in the field of climate justice or other domains, are countered primarily by emphasizing the agency of actors involved in human rights struggles, be they domestic activists, transnational lawmaking coalitions, courts, or international institutions and the overall commonalities that bring these groups together in promoting human rights. These works, therefore, support a conceptualization of human rights actors exercising a form of “protean power,”Footnote ⁷⁷ nimbly and creatively able to shape outcomes under conditions of uncertainty.

The books under review further emphasize the inseparability of legal knowledge from the agency of the actors creating this knowledge. This emphasis also allows these books to transcend some of the well-worn dichotomies found in the study of IHRL (and also the study of public international law). The studies overcome, for example, the distinctions between formalism and informalism, the “international” and the “local,” individual and collective rights, in terms of the sources, interpretation, effects, or telos of human rights law. Instead, the books provide a blended approach, viewing these apparent dichotomies as defining the ends of a continuum and not as neatly separable in making sense of IHRL as a dynamic field of agency-driven practice. Through purposive action by individuals, domestic, and international civil society, ideas and doctrines travel horizontally from one domestic setting to another and vertically from domestic to international sites.

These agency-focused accounts are further enriched through explicit or implicit engagement with experimental governance. Experimental governance clearly emerges as an overarching theoretical resource in the books by de Búrca, Reiners, and Anagnostou. In its celebration of diverse and multi-level strategies to use human rights law to tackle the climate crisis, the arguments in Rodríguez-Garavito's volume are also consistent with the logics of experimental governance. In these books, experimental governance emerges as an apt framework of analysis for human rights law because of the attention this theoretical framework pays to continuous interactions, incrementalism, and cross- and multi-level feedback loops between non-hierarchically positioned actors and institutions. In de Búrca's book, in particular, experimental governance also emerges as a response to critics of international human rights, underscoring that human rights law is about ongoing interaction and contestation among multiple actors, generating learning, renovation, and innovation. de Búrca invites the critics to be part of this enterprise, instead of critiquing it from an external perspective.

The importance of agency and interactional processes, which sit at the heart of experimental governance, means that the books conceive their relationship with the normativity of international human rights as mediated, subject to ongoing revisions through interventions by human rights actors. In line with the experimentalist governance literature, normativity is treated as amenable to change and emerges from deliberation amongst multiple actors. Domestic, transnational, and international actors are all part of this deliberative process of human rights rulemaking and implementation. These processes, of course, are in line with the pragmatist philosophical underpinnings of experimental governance, captured by the mantra that “knowing the world as inseparable from agency within it.”Footnote ⁷⁸

A central question prompted by reading these works together is whether they adequately address the shortcomings of agency-centered accounts of international human rights law against the backdrop of international human rights critiques. This question arises for two distinct reasons. First, whilst these books privilege agency in the long-standing agency or structure debate when assessing how broader social change can occur in society, they do not clearly address the role of the structural limitations of such agency in IHRL practice.Footnote ⁷⁹ These four books emphasize that mobilizing for and with human rights in international, transnational, and domestic spaces matters, not only in the context of international human rights making and remaking, but also in how international human rights law brings about renovation and change. Yet human agency inevitably occurs within structures that limit potential strategies and constrain potential outcomes. The books do not offer overarching and robust responses to those who ultimately view international human rights law as a feeble legal and political project, primarily because of the limits of agency. Rather, the books invite attention to detail and offer practice-informed and contextual arguments about the power of agency and international human rights law.

Second, none of the books focus on what may be conceptualized as “well-intentioned, but not well-thought out” or “complacent” or “bad faith” exercises of agency by individuals, civic organizations, international organizations, or states in the human rights space.Footnote ⁸⁰ Whilst there is measured caution as to how much can be achieved through the active exercise of agency and recognition that exclusionary and regressive practices and outcomes cannot always be prevented,Footnote ⁸¹ this may not adequately respond to criticisms concerning the overreliance on “agency for good” position commonly found in international human rights law scholarship, and that these works represent. These books, read together, do not offer an analytical account of the proliferation of what may be termed as “bad faith agency” in international human rights law and practice. Nonetheless, these books are important reading for everyone who would like to explore the arguments for cautious optimism about the future of international human rights law in terms of both its doctrinal renovation and its real-world effectiveness.