The Rise and Fall of Human Rights: A Sceptical Account of Multilevel Governance

Abstract

The pursuit of universal human rights in the modern era has a dark side. While universal conceptions of rights can keep abusive governmental practices in check, they can also limit the advancement of rights and result in their diminishment. Where a lower level of government has a strong pre-commitment to rights, obligations imposed at a higher level—such as through a national constitution or an international treaty—can act as a ceiling rather than a floor. Left to their own devices, some states or nations would adopt stronger protections for rights than they do when brought into a system of universal standards. Worse, universality provides cover to local reformers interested in cutting back on pre-existing local rights protections: as attention shifts from strong local traditions to less stringent universal standards, rights diminish. When rights weaken locally, a feedback effect, facilitated in part by judicial dialogue, can in turn reduce the scope of universal requirements. As core sets of rights continue to spread around the world, we should thus expect those rights to take on ever-diminishing form. When it comes to protecting rights, localism has benefits over globalism; diverse conceptions of rights may be preferable to common requirements; and the celebrated practice of cross-jurisdictional dialogue among courts (and other actors) may curtail rights rather than advance them.