Crossing the Boundaries: the place of human rights in contemporary scholarship
Afternoon panel session:
Mr Paul Harvey
Democracy and human rights (yet again): the possibilities and pitfalls of interdisciplinary work in cases of partial democratisation
Too often the work of lawyers on democracy and human rights is limited to the ideological level and rarely informed by empirical - or even theoretical - work from the social sciences proper. The result is that the seemingly endless debates among lawyers on this question (whether at the national or international law level) take place without being grounded in a proper appreciation democracy in practice.
Taking the case of the European Court of Human Rights, this paper looks beyond debates such as the right to democracy in international law or the proper conception of democracy as applied by courts in their judgments. It argues that the fact that not all of the parties to the European Convention on Human Rights can be considered to be liberal democracies makes these kinds of questions secondary and opens up the possibility of a more inter-disciplinary approach to European human rights law. It means that the primordial question for both judges and commentators is to understand the reality of democracy across the forty-six states that are party to the Convention, particularly in order to understand patterns of human rights protection in those states which are neither fully democratic nor autocratic but are stuck in a grey zone between the two. The paper argues that a failure to address this question will ultimately widen the gap between legal thinking on democracy and human rights and political realities.
To this end, the paper examines insights from contemporary democratisation and transition theory and examines the possibility of building on these insights both in human rights adjudication and in academic commentary on that adjudication. It questions, though, whether such insights can be integrated into legal approaches to human rights without over-politicising courts such as the European Court of Human Rights or over-stretching legal academic commentators. It concludes by outlining further avenues of research on this question which may address some of the difficulties of such an inter-disciplinary approach.
Dr Kate Nash
Mediated international human rights in the national public sphere: the Pinochet case
Human rights are gained, defined, and limited in political struggles. The focus of this paper is on social constructions of human rights as a vital aspect of the formation of political will for their realisation through legislation, policy-making and legal judgement. States, internationalising in global governance, are the primary focus of political struggles over human rights. The question this paper sets out to answer is the following: how are citizens' obligations towards universal human rights, on behalf of individuals who need not be citizens, being constructed in the domestic public sphere of the British state?
The Pinochet case raised public awareness of international law in unprecedented ways (Sands 2005). This paper - part of an ongoing research project - compares the production of constructions of human rights in the public sphere of four principal actors in the Pinochet case: INGOs (especially Amnesty International); the media (a selection of liberal and conservative broadsheets and tabloids); the judiciary (Law Lords ruling on Regina v. Bow Street Magistrate, ex parte Pinochet Ugarte); and politicians (speeches).
Analysis of this material suggests that sense was made of the Pinochet case in the public sphere through three competing discourses: global citizenship; cosmopolitan nationalist; and the hegemonic discourse of (inter)national public policy. The Pinochet case represented a crisis of the normal (inter)national discourse of public policy and provided a focus around which its dilemmas and contradictions were debated and alternatives were constructed.
The research draws on work in three disciplines: in International Relations on the importance of ideas and identities in the extension of human rights (eg Risse and Sikkink 1999); in political and legal theory on the normative status of human rights between law and morality (eg Habermas 1996; Benhabib 2004); and in Sociology on the reception (eg Cohen 2001) and use (eg Soysal 1994) of human rights. The research is limited to investigating the social construction of human rights, and is therefore complementary to approaches that deal with explanations of human rights violations and of the positivisation of human rights agreements (Goldstein et al. 2001).
Benhabib, S (2004) The Rights of Others: Aliens, Residents and Citizens Cambridge: Cambridge University Press.
Cohen, S (2001) States of Denial: Knowing about Atrocities and Suffering Cambridge: Polity
Goldstein, J, Kahler, M, Keohane, R and Slaughter, A-M (eds) (2001) Legalization and World Politics. Cambridge, Massachusetts: MIT Press.
Habermas, J (1996) Beyond Facts and Norms: Contributions to a Discourse Theory of Law and Democracy Cambridge: Polity
Risse, T, Ropp, S and Sikkink, K (1999) The Power of Human Rights: Institutional Norms and Domestic Change Cambridge: Cambridge University Press.
Sands, P (2005) Lawless World: America and the Making and Breaking of Global Rules London: Allen Lane
Soysal, Y (1994) Limits of Citizenship: Migrants and Postnational Membership in Europe Chicago: University of Chicago
Dr Rory O'Connell
Towards a stronger conception of democracy in the Strasbourg Convention
This paper examines the promotion of democracy through human rights law. Human Rights law has been developed in recent years to contribute to improving the institutions of representative democracy. This has lead to important cases upholding the right to vote and the right to form political parties for instance. However representative democracy is only one form of democracy. This paper will explore the possibilities for promoting more participatory conceptions of democracy, and will concentrate on the possibility of the European Convention on Human Rights being used to promote participatory democracy. The author argues that the jurisprudence of the Strasbourg Court is beginning to recognise some participatory measures such as the requirement of consultation. Article 11 of the Convention accords a right to make representations and to be heard for instance, while more recent cases under Article 8 may lay the basis for a more ride ranging duty to consult persons affected when their rights are being limited. This nascent development stems from diverse cases dealing with the rights of Gypsies and Travellers, but also the famous Hatton litigation about night flights into Heathrow.
These cases represent only modest developments, and in particular only allow for an element of consultation. Whilst these are modest steps, the jurisprudence of the Court might be bolstered by considering this requirement more carefully and explicitly, and perhaps by making careful use of jurisprudence in English administrative law on the nature of a duty to consult properly.