Contesting (Supportive and Critical) Human Rights Orthodoxies – The Significance of Regional Human Rights Systems (CUP 2022), by Christopher Roberts

            Alternative Approaches to Human Rights: The Disparate Historical Paths of the European, Inter-American and African Regional Human Rights Systems conducts a comparative historical investigation of the development of the three regional human rights systems mentioned. The aim is less to lay out the contemporary shape and jurisprudence of each of the systems than it is to come to a better understanding of the forces that have shaped the evolution of the human rights systems in question, and by inference likely shape other human rights systems as well, over time. In addition to identifying structural forces that inevitably influence international human rights systems, the book explores some of the manners in which the history of each system has been shaped by the visions and beliefs of its founders and participants—pointing the way to the potential for more deliberate, evidence-based interventions in human rights system design in future.

            Alternative Approaches to Human Rights is also a book that attempts to take on several established wisdoms at once. These challenges can, for the sake of brevity, be grouped under three headings. First, the book challenges the tendency of human rights literature to focus on the global human rights system. Second, the book challenges the interlinked tendencies of the literature to view human rights as an overly unitary project, and to consider human rights a subject best dealt with in the terrain of the history of ideas. Third, the book challenges the interrelated tendencies to emphasize the jurisprudence-producing function of human rights bodies and to prioritize courts over other forms of rights-supporting mechanisms.

            The first challenge of the book is to certain aspects of the manner in which the history of human rights has been recounted to date. The literature on the development of the international, United Nations-affiliated human rights system is too voluminous and well-known to be recapped or need recapping here. While valuable in itself, it would be a mistake for any rights-interested academic or practitioner to mistake global-level developments with the entirety of international human rights work. In that context, all three of the regional systems considered have played a vital role, in many ways developing more systematically than, and certainly in different forms from, United Nations human rights institutions. The regional systems are particularly important insofar as they offer additional and alternative avenues for human rights engagement, avenues that many civil society groups in their respective regions appear to find more fruitful than those offered by the UN system, many of the complaints mechanisms of which remain systematically under-utilized, for instance. While the European human rights system is relatively well-known, moreover, the Inter-American and African human rights systems are far less so, despite the fact that their accomplishments have been achieved in the face of often far less rights-hospitable terrain. Shedding further light on the work of these systems is hence valuable in and of itself.

            In addition, approaching ‘human rights’ through the lens of the regional systems is valuable insofar as such an investigation by its nature casts certain existing modes of human rights history into question. In particular, there has been a tendency, from rights-laudatory and rights-skeptical scholars alike, to present ‘human rights’ both as an overly singular, unitary project, and as an ideational rather than a practical engagement. In the first place, while (understandably) popular among scholars, ideational histories of human rights miss the fact that most rights-related developments historically have been driven by popular struggles and understanding, not high-minded debates. In practice, there has neither in theory nor reality been much of a unified theory of human rights involved in these struggles, nor even in the construction of particular human rights institutions, which have rather inevitably represented compromises between complex and diverse sets of contemporaneous interests and perspectives and the accretions of historical struggles. In practice, moreover, the development of each of the regional systems has been driven to a significant extent by contingent historical political developments in each of the regions in question, augmented by procedural and institutional design choices about which the founders of each system had little prescient understanding.

Each regional system has, moreover, evolved in distinct terms, developing its own particular institutional and procedural approaches, leading to substantive differences in the human rights standards articulated at times as well. Thus whereas the Inter-American and African systems have embraced an expanding scope for indigenous peoples’ rights, for instance, the European system has demonstrated great reluctance in the face of such a category. While the European system has equivocated on the extensively rights-violating vagrancy law tradition, moreover—with the potential penalization of vagrants still embedded in Article 5(1)(e) of the European Convention itself—the African Court on Human and Peoples’ Rights issued an advisory opinion in December 2020 clearly outlining the numerous human rights obligations violated by vagrancy laws (laws which, it is worth noting, constitute a clear component of the colonial legal legacy). These differences alone are enough to suggest there is no single concept of human rights or unitary ‘human rights movement’ operating across all three systems.

            The difference among the systems is even clearer in institutional and procedural terms, and it is in this terrain that the book launches its third critique. While many in the human rights world have prioritized and still prioritize the judicial resolution of human rights issues, and believe that the primary function of human rights systems is the production of jurisprudence, Alternative Approaches suggests this view is seriously mistaken. The history of the European human system provides a ready way to understand this point. When the European Convention on Human Rights was prepared, neither the need to accept individuals’ ability to bring complaints nor the binding jurisdiction of the court was a mandatory feature of the European human rights system. Making both mandatory became a mission for the European system’s advocates over time, one that was ultimately triumphally fulfilled, with such success that the quasi-judicial European Commission on Human Rights was disbanded in the 1990s in favor of a unified court system. The history of the European human rights system since has been one that belies a simple narrative of progressive triumph, however, as the system has been beset by both functional and political challenges.

            In contrast, neither the Inter-American nor the African system has achieved the ratifications necessary to consider movement to a fully judicialized system. From one angle, however, Alternative Approaches would argue, this has been a blessing in disguise, as both systems have therefore been forced to develop vibrant and innovative human rights commissions. Those commissions have been involved not only in case processing, to which they are able to bring a greater degree of procedural flexibility, but also in a range of other valuable functions, including preparing thematic reports, developing guidelines and hosting regular public sessions. While no system has been perfect—indeed, in a perfect world presumably human rights institutions wouldn’t exist—Alternative Approaches argues strongly in support of human rights systems that incorporate commissions alongside courts. This is due not only to the diversity of functions played by such bodies, but also and more specifically to the fact that such institutions are better suited to working alongside and helping to provide opportunities for civil society engagement as such, as well as the fact that much human rights work requires not the development of novel standards but rather the implementation of standards that already exist—a task for which courts are comparatively ill-suited.

            By exploring and casting further light on the institutional and procedural history of the world’s most developed regional human rights systems, Alternative Approaches to Human Rights will hopefully make a small contribution to awareness of the diversity of human rights systems in existence, as well as adding a voice in support of the need to resist over-judicialization in the world of human rights work. While as noted above the book is critical of the tendency in much of the existing literature on human rights to view the scope of human rights work and visions in overly limited terms, that critique has certain limits. Despite the fact the three regional systems considered have adopted different procedural, institutional and substantive approaches to various issues, the scope of all three remains limited when it comes to tackling some of the most pressing issues of the contemporary world. In particular, for instance, none of the systems has yet compellingly addressed the violence and inequality produced by structural features of the international economic system. While Alternative Approaches suggests the resources within the global human rights system are more diverse and contain more potential than some critical accounts might indicate, the book leaves little doubt that much more radical work will be necessary in order to make human rights jurisprudence responsive to the most pressing challenges of the contemporary world.

Posted by Dr. Christopher Roberts (Assistant Professor, The Chinese University of Hong Kong)

Photo credits: African Rights Commission –