Abstract

Why do activists employ international human rights law in domestic policy disputes and to what effect? Can international human rights law play an important role in cases where its direct application and justiciability by domestic courts is questionable? This study considers these questions in the area of socioeconomic rights by analyzing the mobilization of human rights law in the German social movement against tuition fees. Whereas legal mobilization theory is broadly concerned with the invocation of law on behalf of political demands, this article emphasizes discursive opportunity structures and vernacularization to make sense of which rights are adopted, why, and with what impact. I draw on content analysis of movement and political party documents, court decisions, and news reports as well as semi-structured interviews and participant observation. I find that activists in Germany were not naive about human rights. Instead, activists invoked human rights to resist political elites’ framing of education as a private good and students as consumers and to broaden the issue to include social inclusion and justice throughout the German education system. The mobilization of human rights law also was an effective means by which activists generated media attention and pressured politicians.

Highlights

  • Why do activists employ international human rights law in domestic policy disputes and to what effect? Can international human rights law play an important role in cases where its direct application and justiciability by domestic courts is questionable? Even advocates of international law point to the lack of enforcement mechanisms in much of human rights, in the area of socioeconomic rights

  • If higher education is merely a right of citizenship, for example, anyone who is not a citizen has no claim to a financially accessible higher education. If it is merely a privilege, the state’s responsibility to students is even more diminished. Given skepticism both about the efficacy of international human rights law, in general, and the applicability of socioeconomic rights, in particular, we return to the questions that opened this article: why do activists employ international human rights law in domestic policy disputes and to what effect? Can international human rights law play an important role in cases where its direct application and justiciability by domestic courts is questionable? While legal mobilization scholarship is broadly interested in the invocation of law and rights on behalf of political demands, frameworks emphasizing discursive opportunity structures and the vernacularization of human rights law into local contexts provide additional analytical leverage to understand which rights are mobilized, why, and with what impact

  • This article has sought to engage with theoretical understandings of legal mobilization and human rights discourse in the context of welfare state retrenchment, directing our attention to bottom-up efforts to resist the privatization of social institutions

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Summary

INTRODUCTION

Why do activists employ international human rights law in domestic policy disputes and to what effect? Can international human rights law play an important role in cases where its direct application and justiciability by domestic courts is questionable? Even advocates of international law point to the lack of enforcement mechanisms in much of human rights, in the area of socioeconomic rights. Many advanced capitalist states have adopted policies of retrenchment from what Gosta Esping-Andersen (1990, 2) refers to as the “Keynesian welfare state” or “welfare capitalism.” According to this understanding, the welfare state consists of the individual social and redistributive policies present in varying forms across states and the more general political economy of advanced capitalist states and human outcomes in terms of employment, wages, (in)equality, and security in an increasingly globalized financial system. States have reduced resources to support and finance public institutions, including schools This has come in the form of movements for private vouchers and charter schools at the primary and secondary levels; as efforts to make schools up to and including postsecondary operate according to competitive market principles, competing with each other over students and scarce resources; and as a move toward private financing of higher education (Levin 2001; Johnstone & Schroff-Mehta 2003; Angus 2015; Pattillo 2015). Administrative staff positions have ballooned, directing scarce resources away from the core academic functions of the institutions

Mobilizing Law against Retrenchment
Case Selection
Data and Methods
HUMAN RIGHTS IN THE GERMAN MOVEMENT AGAINST TUITION FEES
Discursive Opportunity Structures and the Human Right to Education in Germany
Rights Mobilization as Effective Resource or Distraction?
Generating Political Pressure through Human Rights Mobilization
Findings
CONCLUSION
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