Does the French law restricting the religious practice of the Islamic full-face veil amount to persecution within the remit of International Refugee Law, or is it a legitimate distinction under International Human Rights Law?

Regional human rights courts like the European Court of Human Rights (ECtHR), the Inter-American Court of Human Rights (IACtHR), and the African Court of Human and People's Rights (ACtHPR) have become popular sites of mobilization for victims and activists who seek justice when justice fails at home. Besides being platforms for individual remedy, human rights courts increasingly shape social norms and state policy within countries, making them attractive avenues for rights advocates to develop new norms or to push domestic authorities to reform legislation. The judges of these courts can decide, for example, whether same-sex couples have a right to be married, if prisoners have the right to vote or receive HIV/AIDS treatment, or when a state can deport illegal immigrants to a country where they will likely be tortured. As these courts pass their judgments, they often find themselves in conflict with states that are violating human rights of marginalized groups on a large scale and are unwilling to implement international rulings. Although international human rights courts have become increasingly popular venues among victims and activists who seek justice when justice fails at home, we are only beginning to understand how activists play roles in shaping the development of regional human rights courts' case law—the body of judgments that shapes how judges will make their decisions in the future. We now have plenty of international relations and international legal research on the interactions between states and international courts: how judges in these courts wrestle between deferring to the interests of member state governments whose actions are on trial and sticking closely to the conventions' fundamental yet evolving principles (Alter et al., 2019; Helfer & Voeten, 2014). As some states begin to resist international courts' authority, scholars have begun to examine the dynamics of this backlash (Hillebrecht, 2022; Madsen et al., 2018; Sandholtz et al., 2018). Recent studies have also demonstrated that human rights advocates—whether NGOs or individual lawyers—have a significant impact on shaping the jurisprudence of international courts and the impact judgments have in concrete locations (Kahraman, 2018; Sundstrom, 2014; van der Vet, 2012; Kurban, 2020; Conant, 2018; Harms, 2021; Cichowski, 2016; Hodson, 2011; Haddad, 2018). Meanwhile, these advocates themselves have been subject to repression and stigmatization by governments as part of the backlash phenomenon. Without an adequate understanding of the factors shaping activists' engagement with international courts, we risk undervaluing their strategic impact on the expansion of case law, the human rights protection of marginalized groups who cannot find remedies at home, and the domestic implementation of these judgments in an age of state backlash. In this section, we summarize the three papers contained in this symposium and their original contributions to these themes. Over the last decade, dozens of countries have erected legal barriers or started vilifying campaigns to stymie the work of NGOs (Buyse, 2018; Chaudhry, 2022). One tactic in this toolkit is the enactment of burdensome regulation on NGOs that receive funds from foreign donors as they allegedly promote foreign agendas (Christensen & Weinstein, 2013; Dupuy et al., 2021). States that frequently abuse human rights are especially prone to target NGOs that engage in strategic litigation (Hillebrecht, 2019). Most NGOs depend on foreign funding, and NGOs that litigate international cases fall disproportionately in this category, but do funders affect the selection of cases? In “Foreign Agents or Agents of Justice? Private Foundations, NGO Backlash, and International Human Rights Litigation,” Heidi Haddad and Lisa Sundstrom examine the extent to which Western donors, particularly private foundations, have encouraged NGOs in Europe to litigate at the ECtHR as a human rights advocacy strategy. They examine overall patterns of donor funding and NGO litigation records, and look in more detail at the case of Russian NGOs' foreign funding and litigation records. The analysis is extremely timely, as the Russian government's criminalization of independent civil society actors, especially in the human rights field, and their accusation that foreign funding turns NGOs into “foreign agents” have been crucial elements of the Russian regime's autocratization. This claim has also provided fuel for Russia's disenchantment with the ECtHR in recent years, contributing to the assessment of many observers that Russia's full-scale attack on Ukraine was the last straw in an inevitable collision course leading to its exit from the Council of Europe. Haddad and Sundstrom debunk the idea that foreign donors are pushing NGOs toward strategies of human rights litigation. Instead, they argue, there is more evidence that NGOs themselves promoted the mechanism of international litigation as a strategy that donors later adopted. This article is a poignant reminder of the advocacy tools that Russian human rights activists and citizens have lost as a result of their government's departure from the Council of Europe, including ECtHR jurisdiction. Yet it also provides insight into the likely roles of foreign donors in other country cases where NGOs are using international court litigation as a human rights advocacy strategy, which is often a target of the ire of national governments, as explored in the next article in the symposium. When states attack human rights NGOs within their borders and/or international human rights courts themselves, how does this affect the willingness of those NGOs to take cases to international courts, and the ways in which they do so? De Silva and Plagis ask this question in their article about state backlash against NGOs in the case of Tanzania and the African Court on Human and Peoples' Rights. A fascinating empirical question they pose is: does state backlash against NGOs increase NGO litigation at international courts (to contest state repression at those courts and use international mechanisms when domestic ones are not available), roughly in line with Keck and Sikkink's famous “boomerang pattern” (Keck & Sikkink, 1998), or decrease it due to heightened fear and restricted NGO capabilities that state repression creates? Employing a process-tracing analysis of NGOs' involvement in three cases before the African Court at different stages of the Tanzanian government's backlash against the Court, De Silva and Plagis find that “two-level backlash” by states can result in both phenomena, either promoting or deterring NGO legal mobilization at international human rights courts, depending on certain conditions. The three selected cases concerning the death penalty, the rights of persons with albinism, and the rights of pregnant schoolgirls and mothers, which took place at different time periods, demonstrate a number of patterns of state backlash interacting with NGO strategies. The authors find that domestic-level state backlash deterred domestic NGOs from partnering with international NGOs in litigation, but that such backlash, when it repressed domestic political and legal mobilization opportunities, actually encouraged both Tanzanian and international NGOs to turn to the African Court more frequently to seek remedies. International-level backlash in turn only deterred NGOs from international litigation when such backlash consisted of state efforts to restrict NGOs' ability to engage in litigation, and not when the international backlash was in the form of routine noncompliance with African Court rulings. Importantly, the authors find that NGO responses to state backlash were significantly shaped by their degree of legal consciousness and expertise with the rules, proceedings, and workings of the African Court. Those NGOs with less knowledge and experience were more likely to back away from engaging with the Court under the pressure of state backlash. De Silva and Plagis conclude that “NGOs' persistent human rights advocacy in the face of state backlash is a double-edged sword,” in the sense that they may not be deterred by state backlash initially, but there is a danger that their continued determination to engage in international litigation could prompt governments to engage in even more severe forms of backlash, with critical impacts on international courts and already vulnerable human rights defenders. Rights advocates have a growing menu of institutions and courts available to them. How do activists choose at which institution to lodge their cases in a world where legal remedies have diversified, or as some have argued, fragmented (Koskenniemi & Leino, 2002)? In “What Makes an International Institution Work for Labor Activists? Shaping International Law through Strategic Litigation,” Filiz Kahraman goes beyond the tendency of legal mobilization studies to only examine how activists interact with a single court or institution. Instead, Kahraman opens up how rights advocates imagine which institution is most receptive to their claims. Drawing on a comparative interview study of British and Turkish trade union activists and their legal mobilization campaigns at international courts and quasi-judicial institutions like the International Labor Organization (ILO), Kahraman examines how activists first probe and then strategically identify which court or international institution is most susceptible to their primary goals of influencing structural reforms and setting new norms. Through this probing process—or dynamic signaling game between courts and litigants—activists push a court's jurisprudence and case law into new issue areas. For instance, at the ECtHR, Turkish trade unionists challenged domestic courts' ruling that public sector workers did not have the right to establish unions, even though the ECtHR had no established case law on labor rights in 1990s. They won the case, with the ECtHR finding that Turkey violated the right of public sector workers to unionize. These cases not only had an impact within Turkey, but over the next decades, similar cases brought by British unionists would spin off the early precedent set by the Turkish legal mobilization efforts. Kahraman argues that they ultimately pushed the ECtHR to recognize the basic trade union rights as fundamental human rights. Kahraman sheds light on the often hidden strategies behind international litigation. Activists litigate not just for the immediate impact on the current case they work on, but how they envision that all the cases they work on may shape norms and domestic structural reforms further in the future. Whether an institution is perceptive of claims lies in the eye of the beholder. Kahraman finds that besides targeting institutions with high compliance rates, they also take cases to institutions with low rates of compliance, especially “if these institutions have extensive judicial authority to create new international norms.” So, it is not the de jure protection set by an international courts, but rather how activists perceive the juridical responsiveness and judicial authority of courts—or, how judges adopt either an activist approach or restraint in response to incoming cases and how willing states are to implement cases of a court, respectively—that determines why activists select certain courts or quasi-judicial institutions (like the ILO). Kahraman gives us new tools to interpret how activists perceive authority and receptiveness and respond to opportunities. Rather than static external legal remedies, courts and quasi-judicial institutions are opportunity structures that are malleable to the strategic vision of the activist or litigant. The articles in this symposium together reveal a number of key overlapping insights. At the broadest level, they demonstrate that activists' behaviors and strategies influence international courts' jurisprudence, politics within states, and the human rights outcomes of everyday citizens—and these influences have often been hidden in our existing canon of research on international courts. In addition, all of these articles show that, while activists may face challenges in their efforts, often including significant backlash from their home state governments, they also continue to retain significant agency through their creative efforts to develop legal strategies and circumvent state repression. Activists perennially innovate: sparking the ideas that inspire donors who fund them; calculating how to continue their litigation work when government actors threaten them; and taking risks in litigation to push courts to expand how they define human rights. However, along with these uplifting conclusions, there are worrying patterns that demand future research. States are increasingly pushing back against the powers of international courts to bind them to costly measures, and as this symposium has shown, national governments often point to activists as contributors to this “problem” of invasive international human rights standards. A growing body of research has tracked how human rights defenders of all kinds globally are under threat from actors like governments and corporations who disagree with their contentious actions. We need more studies that gather comprehensive data and systematically track these threats, specifically with regard to activists who engage in international human rights litigation. We suspect that such activists are likely disproportionately targeted due to the international visibility of their complaints. We also desperately need research into possible innovative responses to these threats to activists—responses from activists, funders, governments of countries that support human rights, and international courts themselves. Freek van der Vet is a University Researcher at the Erik Castrén Institute of International Law and Human Rights, Faculty of Law, University of Helsinki and the principal investigator of the Toxic Crimes Project. Lisa McIntosh Sundstrom is Professor of Political Science at the University of British Columbia. She is the director of the ActinCourts network at UBC and conducts research on legal mobilization by Russian activists.

Central Asian States’ Compliance with International Refugee and Human Rights Law Both China and Central Asian states are parties to the major international human rights instruments that demand protection of the human rights of ethnic and religious minorities as well as protection of refugees from persecution based on their ethnicity and religious and political views. This chapter explores how Central Asian states have been balancing their international human rights obligations towards Chinese Uyghur asylum seekers and their regional obligations under the Shanghai Cooperation Organisation (SCO) to fight against terrorism, extremism and separatism. The author finds that Central Asian states have continuously treated Chinese asylum seekers as a political matter and have given preference to their regional commitments towards China over their international human rights obligations, which has resulted in the absence of any real protection for Chinese asylum seekers in the region. This chapter argues that while Central Asian states may see compliance with human rights obligations to be politically inconvenient, only due compliance with international refugee and human rights law in good faith will benefit these states in the long run. In particular, a strictly legal approach to Chinese asylum seekers will help Central Asian states assert their sovereign equality and independence within the SCO and balance out China’s growing influence on their domestic policy.

Global inequities persist despite the achievements of the human rights project so far, as Kofi Annan highlighted in 2005. Caribbean calls for reparations for chattel slavery are a manifestation of and a response to global inequities that affect the Global South in particular. However, when endeavouring to find a footing in international law, and specifically in international human rights law, reparations calls have been contested and challenged. This article proposes a reimagining of the international human rights system to offer a legitimate place for reparations for chattel slavery and thus enable an effective challenge to pressing injustices such as racial discrimination and its ramifications. Despite being a region that has been birthed from such profound historical injustices that still affect the full realisation of human rights today, the Caribbean and its human rights challenges and calls for justice have been relegated to and maintained at the periphery of international human rights law. For that reason, this article focuses on reparations for slavery emanating from the Caribbean. Drawing on Third World Approaches to International Law (TWAIL), it argues that the inability of international legal systems to respond to historical injustices indicates that the colonial imagination, constructed on the compass of exclusion, is still the foundation of international human rights law and of modern, postcolonial societies. The article thus advocates for decolonising international human rights law to accommodate a more inclusive future for human rights.

Over the last decade, many scholars have argued for the enforcement of international human rights norms by the domestic courts. Those claims are largely normative and there are hardly any empirical arguments advanced in support of the normative arguments. This paper presents an empirical study which examines the enforcement of international human rights norms by the Indian Supreme Court between 1997 and 2008; based on the content analysis of its judicial decisions. With specific focus on the Indian Supreme Court, it examines the reasons, justifications and means for referral to international human rights norms between 1997 and 2008. Firstly, it examines the human rights cases in which the Supreme Court refers to international human rights norms. Then, human rights cases are divided into three categories; those involving: 1. Civil and political rights, 2. Economic, social and cultural Rights and 3. Both. Secondly, techniques developed by the Supreme Court of India for the enforcement of international human rights norms in these three categories of cases are explained. The methodology deployed codes the variables aimed at ascertaining the frequency of the enforcement of international human rights norms by the Supreme Court of India, using different techniques between 1997 and 2008. The study finds that the Supreme Court’s jurisprudence during the years 1997-2008 can be defined as a transitional period, at least when it comes to the enforcement of international human rights norms. The Court has used international human rights norms largely as an interpretative tool, where international human rights norms were taken as a ‘given’ under the international human rights instruments. There are only a few instances where the Court has ‘defined’ what constitute international human rights norms by reading them into customary international law.This paper concludes by suggesting that the Supreme Court of India should take an ‘active,’ informed approach, while referring to international human rights norms, and should enforce international human rights norms by reading them into customary international law where needed; rather than its ‘passive’ approach of referring to international human rights norms for statutory interpretations. The Supreme Court should look at the relationship between international and domestic legal norms as a “co-constitutive, or synergistic,” and should utilize these norms actively as a participant in the dynamic process of developing international law. The Supreme Court must be able to apply customary law on human rights exhaustively and in a fully independent way, in particular, it must be able to verify that the violations of human rights recognized by customary international law are not committed by the executive. While the Supreme Court has been known for its judicial activism, it is time that it is also known for its informed approach and respect towards international human rights norms.

It is a joy and a privilege for me to be here with you allfriends and colleagues of very long standing and new (dare I say "younger"?)colleagues with whom I look forward to forming lifelong friendships.**[Much of the depressing material that we have been discussing has to do not with substance, but with procedurewho can gain access to the courts or legislatures, what statutory or regulatory language will be held to be enforceable at the instance of private plaintiffs, etc.***Although this is not what I am going to discuss, I do want to underscore that access to the courts and legislatures is crucial.I never understand why so-called conservatives want to keep people out of these institutions, for when aggrieved people do not have such access, they are more likely to express their grievances in other ways, often including violence.

This chapter analyzes the interaction between international investment law and human rights instruments from a socio-cultural perspective. It is argued that legal interactions between various branches of international law (either integration or fragmentation) may be analyzed as social interactions between the relevant communities. These legal interactions are affected by the particular features of relevant social settings, as well as the mutual relationships between the relevant social groups. More specifically, it is argued that the socio-cultural distance between the particular international legal settings affects the inclination of relevant decision-makers to incorporate or reject parallel legal rules developed in other branches of international law. Consequently, greater socio-cultural ‘distance’ between the involved social settings and groups is likely to decrease the prospects for mutual incorporation of legal rules developed in the other legal sphere. As to the relationship between international investment and human rights laws, the likelihood of investment tribunals to accord a significant role to human rights treaties is influenced by the cultural distance between these two branches of international law. An analysis of investment tribunals' jurisprudence indicates that investment tribunals do not hesitate to apply rules derived from certain non-investment branches of international law (state responsibility, treaty law and general principles of law regarding corruption). Despite that, they are generally reluctant to accord significant weight to human rights treaties in international investment law. An analysis of the relationships between the social settings involved in international human rights and investment laws reveals a considerable socio-cultural distance between these branches of international law. In light of this and the deep-rooted tensions between the relevant communities, it is not surprising that investment tribunals are generally reluctant to accord significant weight to human rights treaties in international investment law. Thus, the considerable socio-cultural distance between these socio-cultural settings parallels the normative distance between these branches of international law. The existing social and normative gaps between investment and human rights laws may change in the future. Past experience shows that the relationship between various branches of international law is often dynamic. Future socio-cultural changes within each community – or changes in the social interactions between the relevant communities – may narrow the normative distance between international human rights and investment laws.

Human rights queryfalse are typically presented in terms of entitlements, correlative duties, claims, “trumps,” and remedies. 1 These framings, which draw principally on law and philosophy, emphasi...

Normative Consensus and Contentious Practice: Challenges to Universalism in International Human Rights Courts Courtney Hillebrecht (bio) I. INTRODUCTION In 2015 the Russian Constitutional Court announced that it would review all of the European Court of Human Rights (ECHR) rulings against Russia for their constitutionality.1 This decision, which both the Duma and the Kremlin supported, underscored a fundamental disagreement between Russia and the ECHR about both the substance of human rights norms and the ways in which disagreements about human rights can and should be resolved. Russia has been a member of the Council of Europe since 1996 and agreed to accept the compulsory jurisdiction of the ECHR in 1998. Russian citizens regularly seek recourse at the ECHR and Russia even complies with many of the Court’s demands to pay financial reparations to victims. And yet, Russia’s prolonged tensions with the ECHR are textbook examples of the [End Page 190] persistent, unresolved disputes at the center of the promotion and adjudication of universal human rights. Russia’s relationship with the ECHR suggests that underneath the façade of the institutionalization and judicialization of human rights remain fundamental divides about which rights “count,” and if and how those divides should be bridged. Simply engineering a different court or judicial process cannot ameliorate Russia’s contentious relationship with the ECHR. Instead, as we can learn from Reza Afshari’s long history of grappling with these inconsistencies in the international human rights regime, the problem runs much deeper than institutional design; they cannot be easily resolved. In his 2007 Human Rights Quarterly article titled “On Historiography of Human Rights,” Afshari begins with an observation about a related fundamental inconsistency in the historiography of the international human rights regime. He writes: One of the main issues that the current historiography has to grapple with is the apparent disparity between the often-celebrated normative global achievements in codifying human rights values among the UN member states and the often-lamented failures to enforce them. . . . I argue that the link should not be seen as mechanical or procedural. Weaknesses so obviously apparent in the enforcement process signify the lack of vigor in the normative consensus; the vim and vigor by which the face was adorned by high-flying colors might in fact have masked a frail body.2 This pattern of inconsistency is visible across a wide range of issue areas, from women’s rights to economic justice, and in diverse political contexts, from Iran to the United States. Examining the disjuncture between “often-celebrated” international human rights judicial instruments and their “often-lamented” enforcement and cooperation failures can give scholars and practitioners alike a clear view of the tensions that Afshari describes. II. UNVEILING THE DIVISIONS IN THE INTERNATIONAL HUMAN RIGHTS JUSTICE REGIME As Afshari reminds us, high levels of state membership and participation in international human rights and criminal tribunals sometimes mask deep divisions among their members over both the meaning of human rights and their understanding of how human rights disputes should be resolved. This is, in essence, illustrative of variations in states’ levels of commitment to [End Page 191] international human rights institutions, as well as the basic norms under-girding them. As part of an in-progress book project, I examine four extreme manifestations of these variations in states’ normative and political commitments to international human rights tribunals: 1) member states’ withdrawing, or threatening to withdraw, from the courts; 2) member states and political elites’ undermining and usurping legal cases; 3) stakeholders’ imposing financial restrictions on the tribunals; and 4) both members and non-members’ creating alternatives to the tribunals. In each of these circumstances, while contenders are calling into question the form and function of the tribunals, they are also casting doubt on the underlying norms themselves. For example, Venezuela’s withdrawal from the Inter-American Court of Human Rights in 2012 and the Organization of American States in 2017 cannot simply be dismissed as the consequences of a state’s displeasure with the international human rights system.3 Instead, it calls into question the principles of universality, compulsory jurisdiction, and the ability of international human rights laws and norms to protect individuals’ rights when the going gets...

This article proceeds from a way of thinking about legal-rights reasoning that is grounded in the rhetorical tradition. In light of questions of political legitimacy and personal ethics, a central premise of the article is that the rhetorical enterprise must situate itself within a paradigm of dialogic communication in which mutual persuasion is the orientation to argument and the quest for intersubjective validation of claimed premises, lines of argument, and conclusions is the purposive mode. The first step in the article is to move from a general conception of law as a field of rhetoric to an account of how such a conception can be a useful way of thinking about both the nature of (human) rights - assisted by the analytical account of the nature of rights advanced by Joseph Raz - and the interpretive processes of meaning-giving that go on within the international human rights treaty orders. The article then develops an account of representational diversity that builds on previous work on a notion of interactive diversity of knowledge and that situates such diversities as a sine qua non for the legitimate judicialization of interpretive authority in any legal order, but especially in the international realm. To accomplish this, the argument first reminds readers of the central problem of representation within an interstate conception of international human rights law that was first identified and grappled with by Hersch Lauterpacht as the dust of the Second World War was settling - how to justify granting the power of judgment (whatever its formal force) to an international human rights body in light of objections that such judgment represents an unjustifiable imposition from 'outside' a state and its society. The Lauterpacht concern with the representation of states on international bodies is then complemented by a perspective that draws lightly on the theories of process and authority of Myres McDougal and Harold Lasswell and on notions of counterfactual assent such as are associated with the communicative theorizing of Jurgen Habermas. It is argued that the central question of representation in evolving international human rights law should be one that leaves behind the implicit image of an international body as a surrogate for interstate deliberation. Instead, an approach is needed that locates the persuasive authority of international human rights bodies in a double conception of what is termed rhetorical responsibility: at one level, international human rights adjudication as a kind of microcosm of transnational dialogues over human rights in which, alongside representational concerns tied to political geography, non-state representational diversity is valued and given shape by purposive accounts of the point(s) of the international human rights enterprise; and, at another level, of international human rights adjudication as an enterprise that cannot ultimately be divorced from personal ethos and existential decision on the part of judges or analogous decision-makers. In a brief and deliberately tentative concluding section, it is hypothesized that the extent to which a (both) transnationalized and personalized idea of international human rights judging - animated by an ideal of dialogical universalism - can overcome legitimacy concerns based on societal sovereignty in a still-state-ordered world can only be understood alongside an account of two key framing variables. The first variable is the nature and degree of the formal power of an international body to bind states and other actors to its judgments. The second variable is the extent to which a body can plausibly present itself as playing a 'constitutional' role vis-a-vis the community of actors to whom its judgments are addressed.

The legal status of international human rights litigation under the Alien Tort Statute (ATS) has been the subject of much debate, culminating in the Supreme Court’s decision in Sosa v. Alvarez- Machain, 542 U.S. 692 (2004). The debate has been almost exclusively doctrinal and has focused on the Judiciary Act of 1789, the historical treatment of the law of nations as general or federal common law, the evolution of the Supreme Court’s international law jurisprudence, and the integration of customary international law (CIL) into the domestic legal system. This Article argues that the focus on doctrine masks underlying international relations theory assumptions that are the true motivations of the federal incorporation of CIL and international human rights litigation under the ATS. One cannot evaluate the desirability of the federal incorporation of CIL and international human rights litigation in U.S. courts without having a theory of the operation of the international system, the motivation for state behavior in international politics, and the efficacy of international law as a coercive instrument. Proponents of the federal incorporation of CIL and international human rights litigation implicitly rely on social constructivism, democratic peace theory, and institutionalism — international relations theories that motivate a universalist theory of international law. The universalist theory holds that international law has an independent, exogenous affect on state behavior. Since States obey international law out of legal obligation, universalists tend to encourage the greater integration of CIL into domestic legal regimes and the use of CIL to improve human rights practices around the world. Therefore, the desirability and efficacy of the federal incorporation of CIL and international human rights litigation under the ATS depends on the explanatory power of specific international relations theories and the strength of the universalist theory as the appropriate conception of international law. This Article directly engages the universalist theory of international law and the underlying international relations assumptions upon which proponents of federal incorporation and international human rights litigation under the ATS rely. The Article examines a competing international relations theory and alternative conception of international law that views compliance as a function of state interests rather than of legal obligation. Working from this perspective, the Article provides a framework to evaluate the desirability of the federal incorporation of CIL and international human rights litigation in U.S. courts. The Article concludes that international human rights litigation under the current legal regime would likely complicate the achievement of the United States’ normative and strategic foreign policy goals. Given the executive’s institutional competencies, constitutional prerogatives and resource advantages, it is the branch best-placed to determine whether international human rights litigation will assist or hinder the United States’ foreign policy objectives. Therefore, the Article suggests that a modest shift along the continuum of existing judicial deference to the executive branch — perhaps in the form of judicial review of executive determinations on specific litigation under an arbitrary and capricious abuse of discretion or reasonableness standard — is warranted for international human rights litigation under the ATS.

The World Bank and International Monetary Fund (IMF) have been criticised for their weak commitment to human rights, with the World Bank subject to greater scrutiny and criticism than the IMF and despite significant progress since 2015 in linking its policies and operations to international human rights law. In this light, we explore the extent to which the IMF meets its responsibilities under international human rights law. We focus on IMF conditionality, on the conditions attached to IMF loans to countries in the global South. Using QDA Miner Lite, and a system of interpretive coding, we explore the extent to which international human rights standards are reflected in IMF loan conditions on the basis of inter-temporal and cross-country comparisons. We find that human rights are increasingly reflected in IMF conditionality, but also that it continues to undermine human rights, for instance, by unduly constraining the fiscal space available to sovereign governments. The IMF, we conclude, continues to compare unfavourably to other multilateral institutions, warranting enhanced scrutiny by organs of the UN Human Rights Council and by human rights NGOs.

Although collective cultural rights are included in international human rights law, their precise place and their nature and significance are not well-explored or understood. This paper aims to show where collective cultural rights can be found in international human rights law and explore how these rights fit in the general body and framework of international human rights law. The starting point in this chapter is international human rights law, which implies that the analysis of collective cultural rights is framed by positive law and international legal instruments, such as treaties and conventions, as well as by soft law instruments, such as declarations, recommendations and resolutions. In this paper, the two categories of collective rights and cultural rights are defined, drawing a distinction between a) different types of collective rights, including rights for collectivities as such, rights for individuals as members of collectivities, and rights with a collective interest or object; and b) between different types of cultural rights, including rights that explicitly refer to ‘culture’ and rights that relate to culture or have a cultural dimension. This paper furthermore analyses various contentious issues surrounding collective rights and cultural rights in international human rights law, including the lack of clarity on the object and subject of these rights. The paper then outlines the different forms of collective cultural rights in international human rights law, by providing examples of legal provisions in international human rights law that can be classified as collective cultural rights. Finally, the paper elaborates on how collective subjects and collective cultural interests are integrated in international human rights law and analyses how and to what extent collective cultural rights provisions provide answers to the above-noted issues.

The lyrics of “Delayed Devotion,” a song by the artist Duffy, speak of a woman’s decision to end a relationship in which, it seems, her partner only began to realize her value as she prepared to leave. There are doubtless many situations in which these lyrics, and the story they tell, are applicable. One such situation is manifested in international human rights law, particularly in regard to the rise in the creation and use of individual complaint mechanisms as a part of international human rights treaties. As this article explains, these lyrics are applicable in the individual complaint mechanism context because the increase in creating these procedures for specific groups through specific conventions indicates a sense that the devotion of the international community to implementing the rights guaranteed in foundational human rights has been delayed. At the same time, the increase in individual complaint mechanisms indicates that individuals are being provided with a greater ability to penetrate the international human rights law system that has for so long regarded them as only peripheral actors to be given rights rather than as actors having the agency to claim these rights at the international level. In sum, the result is a steady penetration of the international system by individuals, albeit through a system that is designed by international actors and therefore has structural limitations to this interaction. Although clearly the structure of the international law system mandates that the individual complaint system is itself structured in a way that is essentially state-centric, it is argued that the increasing prominence of the individual in international human rights law is a discernible trend that stands to alter the understanding of the international system. This prominence, however, is based on a greater sense of individual empowerment than the language of individual rights that has been traditionally used in international human rights law. The article argues that the increase in individual prominence is certainly laudable but that, by attaching this increased individual penetration of the international human rights law system to an ever-increasing series of specialized conventions, there is a significant risk of fragmenting the concept of the international human rights law system. Instead, it is argued that the individual, as the foundation of the human rights and dignities that are the backbone of international human rights law, should not need to seek specialized avenues of redress, but rather should be able to penetrate the international law system based on his basic identity as the holder of human rights and human dignity. This is especially so because these concepts of essential human rights and human dignity are at the core of the entire international human rights law system. This recommendation stresses both the internal status of people as holders of human rights and human dignity while also doing away with the need to create new quasi-judicial structures that are themselves potentially limiting depending on the ways in which they are drafted and function.

Reviewed by: International Human Rights: A Survey by Cher Weixia Chen & Alison Dundes Renteln Siobhán McInerney-Lankford (bio) Cher Weixia Chen & Alison Dundes Renteln, International Human Rights: A Survey (Cambridge University Press 2022), ISBN 9781108484865, 590 pages. The term “tour de force” is overused, but in the case of Chen and Renteln’s International Human Rights: A Survey, it is an entirely appropriate description of the work. The book delivers on its title: it provides an incisive and thoroughly modern account of international human rights today. It is an impressive work in both its breadth and depth, charting the outer boundaries of international human rights with respect to both what is covered, how it is enforced, and the manner in which it is studied. It offers a comprehensive resource on all aspects of the international human rights framework, covering substantive, procedural, and cultural perspectives. It is remarkable both in the detail and analytical rigor it brings to the subject, tackling the normative architecture, the contextual dimensions, and the cultural complexities and controversies, as well as a thoroughgoing analysis of the institutions, processes, and actors whose purpose is to uphold and enforce human rights law. The Survey draws from a broad range of regional contexts and considers legal provisions and practice at the international, regional, domestic, and local levels. Although clearly motivated by a deep commitment to human rights, Chen and Renteln’s work doesn’t read as pure advocacy. It is written in a sophisticated yet accessible style and handles controversial issues with sensitivity and subtlety. It maintains a tone that is critical while remaining balanced and steadfastly hopeful. In terms of methodological approach, it goes beyond the standard legal analysis of human rights, to embrace perspectives from other disciplines, including moral philosophy, history, anthropology, and sociology. While clearly rooted in the normative foundations of international human rights and providing a thorough analysis of international human rights law, it adopts a confident interdisciplinary approach. This is particularly welcome since human rights legal scholarship has [End Page 342] been critiqued for being insufficiently concerned with methodology, metrics, and impacts. The Survey appears at a crucial time when the COVID-19 pandemic has created new and compounded vulnerabilities for many groups and when the international rule of law—upon which human rights depends—is under sustained threat, particularly with the ongoing war in Ukraine. In these respects, it both captures the Zeitgeist of international human rights, reflecting on its most profound challenges, as well as its most important contributions. A unique feature of international human rights law as a special regime of public international law is that it introduces legal obligations that operate both horizontally (between states parties) and vertically (between the state party and its citizens). That vertical application introduces a particular type of legal accountability between states parties as duty-bearers and citizens as rights-holders. That feature permits international scrutiny of the behavior of states towards their citizens and of the relationship between a sovereign and its subjects; this forms the foundation of international human rights accountability. The quest for that accountability pervades Chen and Renteln’s work, which underscores the central importance of human rights accountability of all actors: states, non-state actors, international organizations, and private sector actors. It also describes the diversity of issues subject to human rights accountability today and the increasingly varied constituencies that now claim their rights and demand respect and protection. Human rights accountability requires the mediation of a perennial tension between the principles of sovereignty and territorial integrity on the one hand, and the respect, protection, promotion, and fulfillment of human rights on the other. This is a recurring theme that the book addresses effectively through its conceptual and substantive chapters. In addition to tackling some of today’s most contentious human rights issues such as racism, abortion and reproductive rights, female genital mutilation, and head coverings and honor killings, the Survey takes on broader challenges facing international human rights law, including those related to ethics, culture, and politics, as well as interpretative and enforcement challenges. The Survey begins with an analysis of the philosophical foundations of international human rights law (IHRL), analyzing the historical background, political traditions, and normative...

In 2006, the Constitutional Court of Colombia declared unconstitutional a statute criminalizing abortion under all circumstances. The Court ruled that abortion should be legally permitted when: