Abstract
How is international human rights law (IHRL) made “everyday” outside of treaty negotiations? Leading socio-legal accounts emphasize transnational civil society activism as a driver of norm change but insufficiently consider power dynamics and the legal-institutional environment. This article sheds light on these dimensions of IHRL by reconstructing how domestic violence came to be included in the prohibition of torture in five international and regional human rights institutions. Through process tracing based on interviews and a vast amount of documentation, the study reveals everyday lawmaking in IHRL as a complex, incremental process in which a wide range of actors negotiate legal outcomes. The political implications of this process are ambiguous as it enables participation while creating hidden sites of power. In addition to challenging existing models of international norm change, this study offers an in-depth empirical exploration of a key development in the international prohibition of torture and demonstrates the benefits of process tracing as a socio-legal methodology.
Highlights
How is international human rights law (IHRL) made? Who writes IHRL, and who shapes the evolution of its norms? These questions are important for understanding this area of law and evaluating its legitimacy as well as for assessing whether activists should continue to view it as an arena within which to promote social change, especially at a time when IHRL is under attack from both conservative and progressive corners
Such process tracing was conducted through an analysis of several hundred documents reflecting the procedures that preceded the production of a legal data point: state reports to treaty bodies, shadow reports by non-governmental organizations (NGOs), correspondence between treaty bodies, states and other actors, summary records of treaty body meetings, audio and video recordings of regional court hearings, concluding observations, communications, general comments, case law, and party and third-party submissions
This article has focused on lawmaking at the international level. It has set aside important questions as to how international legal norms are mobilized domestically and how they affect state behavior and people’s lives. Research into these questions will be necessary in order to comprehensively evaluate the inclusion of domestic violence as torture/CIDT and, in particular, how emancipatory this normative change is in practice
Summary
How is international human rights law (IHRL) made? Who writes IHRL, and who shapes the evolution of its norms? These questions are important for understanding this area of law and evaluating its legitimacy as well as for assessing whether activists should continue to view it as an arena within which to promote social change, especially at a time when IHRL is under attack from both conservative and progressive corners. This article sheds light on some of the socio-legal dynamics in everyday lawmaking in IHRL at the international level, paying attention both to the legal-institutional context and to the power relations among participants It argues that norm change in IHRL does not occur through a linear process of activism but, rather, through numerous incremental steps by a wide range of actors—victims, grassroots and elite civil society actors, state officials, legal experts, and international bureaucrats. The findings reveal everyday lawmaking in IHRL as a complex process carrying both emancipatory and hegemonic implications They demonstrate the importance for norm change of three practices within IHRL: the hardening of soft (non-binding) law, the consolidation of interpretations across a fragmented field, and grafting—namely, the incremental growth of state obligations building on the achievements of previous activists. The fourth part offers a systemic analysis of the findings across institutions, and the conclusion discusses the study’s implications
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