Decriminalization and the U.N. Human Rights Bodies

Abstract

Concern about the penal turn in criminal law has sparked a proliferation of scholarship examining criminalization and decriminalization. In the human rights arena, most scholarship has concerned itself with specific categories of criminal offences and whether they are appropriately criminalized, what the consequences of this criminalization are, and the arguments for curtailing criminal regulation. This research tends to be issue specific and is relatively siloed. The current literature is missing analysis on the general interplay of criminalization or decriminalization and human rights law and systems. International and transnational human rights bodies are a significant source of new criminal norms, as national legislatures often pass or repeal laws to fulfill their State’s international obligations. This paper examines the developing jurisprudence on decriminalization at the U.N. human rights bodies, which collectively provide guidance for the development of international human rights norms. It aims to elucidate current patterns and practice in interpreting and applying international human rights norms to the issue of decriminalization writ large, to offer a systematic account of the subject. Further understanding of the scope and content of jurisprudence that supports decriminalization may help inform efforts to reconsider the inappropriate criminalization of a wide array of conduct.