How can UN institutions ensure a future for human rights in a changing world? Transnational Lawmaking Coalitions are key to understand how UN human rights treaty bodies change and advance international law beyond the state-led adoption of new treaty commitments.
Many scholars, policymakers, and human rights defenders are concerned with the increasing backlash against key human rights norms, even from actors who traditionally supported them. Scholars equally observe a stagnation in the development of international law. In human rights law, for example, a binding treaty on business & human rights or one that protects the rights of older people are two current examples for multilateralism without visible action. Despite decades of advocacy, discussions, and negotiations, no agreement has been reached so far. Additionally, the UN human rights regime is often criticized for being elitist and imperialistic in its universal claims, ignorant of local customs; ineffective in protecting the most vulnerable, and unable to adequately address challenges arising from inequality and climate change. This legitimacy crisis is further compounded by the fact that the codification of human rights in global governance has not always been driven by actors with the best interests for individuals in mind, as evidenced in the hostage-taking of human rights by states, international institutions, and non-state actors. As such, change is needed yet increasingly difficult to accomplish, rendering the future of human rights rather uncertain.
In spite of this seemingly pessimistic snapshot, human rights are nonetheless evolving. In my book Transnational Lawmaking Coalitions for Human Rights (Cambridge University Press, 2022), I focus on the UN human rights treaty bodies to show how and why such evolutions are possible. These are state-empowered expert committees established to monitor the implementation of the core human rights treaties. They are also authorized to adopt and publish interpretations of the provisions in their respective treaty. I argue that the development of human rights is fostered by coalitions between experts of the ten UN treaty bodies together with outside professionals through joint elaboration of treaty interpretations – so called Transnational Lawmaking Coalitions (TLCs). The value of TLCs lies in their ability to act as change makers in international law in light of political, economic, and social challenges.
Transnational Lawmaking Coalitions as Change Makers
I share much of the criticism the current UN human rights system is confronted with, yet I observe a UN human rights treaty system that is much more dynamic than the above narrative suggests. TLCs highlight the role of treaty bodies as change makers for human rights. These coalitions of individuals usually emerge when states do not act decisively on a given global problem or their negotiations and decision-making processes are in gridlock. In that sense, TLCs are not a new phenomenon. Efforts by individuals and organizations – from civil society, academia, international institutions, and other public and private spheres – to advocate for global solutions and lobby for preferred regulations exist everywhere policies are made. Yet, TLCs are not focused on persuading governments or intergovernmental negotiations. They deliberately choose international law as a response to these challenges.
This dynamism is possible because the treaty body members are neither delegates nor bureaucrats but serve as independent experts. They are individuals who are elected based on their expertise in human rights, expected to act free of national interests and committed to protect human rights and find ways to prevent violations. Treaty interpretations, published in the form of “general comments” or “general recommendations”, provide such a positioning and maneuvering. Not needing state consent but only adoption by the treaty body, interpretations become the tool of choice for many human rights defenders to clarify state obligations for the implementation of treaties they previously ratified. Some of these interpretations significantly shaped the development on international human rights law.
Interpreting Economic and Social Rights to Establish the Right to Water
For example, in 2002, the Committee on Economic, Social and Cultural Rights that oversees the International Covenant on Economic, Social and Cultural Rights interpreted obligations to a right to water from the Covenant’s right to an adequate standard of living and the right to health. The right to water for all has not been included as a norm in the human rights treaties, and the interpretation was met with backlash and contestation. Yet, eight years later, it was referenced as a precedent for resolutions adopted by the UN General Assembly and the UN Human Rights Council.
One case study in my book shows that this interpretation was the work of a small coalition of individuals, among them an expert from the treaty body, an NGO officer experienced in the legalization of economic and social rights, an expert on water infrastructure in development contexts and a World Health Organization (WHO) representative. This group is a typical example of TLCs which form around independent experts, and their mode of operation is determined by the professional relationships among their constituent members. Notably, these relationships form and develop mainly outside of the UN premises of Palais Wilson in Geneva.
The Ubiquity of Transnational Lawmaking Coalitions
Through their ability to assemble legal and technical expertise without formal procedures and bound by a commitment to protect human rights through strong normative frameworks, TLCs help explain the rapidly evolving justiciability of economic, social, and cultural rights. TLCs also help us understand the broader trend of increasing adoptions of human rights interpretations, a trend that occurred despite a reform process that has aimed at slowing down this development. While the TLC for a human right to water gave a detailed account of how and why this coalition was benefiting from weaknesses in the treaty, the book’s other case studies show that TLCs exist in other treaty bodies, too. Even in bodies monitoring a treaty with a rather narrow focus, such as the Convention against Torture, we find close collaborations between the committee members and external professionals. TLCs, while most proliferating when initiating drafting processes around a substantial gap in human rights law, are not limited to specific rights or treaty bodies but rather inherent to the entire human rights treaty body system.
Resource Scarcity as the Root of Transnational Lawmaking Coalitions
Resource scarcity in the UN human rights system is a major driver for the influence of TLCs. It generally falls on one or few committee members to draft treaty interpretations, who, because of their independent expert status, need to carry out this task outside of their committee’s work in their regular work as, for example, a professor. As experts on human rights, they know who could provide valuable input to the process and whose work will likely benefit from a particular general comment. However, as the book’s discussions with UN experts and human rights defenders in New York and Geneva highlight, these few individuals often represent a small elite from the US and Europe and not all TLCs will always work for the progressive development of human rights.
Transnational Lawmaking Coalitions call for modest human rights optimism
Fragmented in reform politics and challenged by state- and civil society-led human rights regression whilst being pervaded by the sense that it just does not work anymore (or never has) and its foundations are wrong, the human rights system is presently steeped in pessimism. In contrast to this rather bleak view, my book shows promising and creative ways in which the UN treaty bodies advance human rights norms and protections. Experts in the human rights system capitalize on their autonomy to adopt interpretations that work around the stagnation of formal lawmaking. Transnational Lawmaking Coalitions are a shimmer of optimism for better human rights safeguards. While such coalitions are not the cure for all ails of the human rights system, they can facilitate monitoring and compliance through authoritative interpretations that fill some pressing gap in human rights law and at their best bring change in law and in politics for the life of many.
About the author
Nina Reiners is a Political Scientist specialized in International Relations and International Law. She is a postdoctoral researcher in the Berlin/Potsdam research group “International Rule of Law – Rise or Decline?” and research associate at the Global Governance Centre of the Graduate Institute Geneva. Her book “Transnational Lawmaking Coalitions for Human Rights” received the Academic Council on the United Nations System (ACUNS) book award 2022. She tweets at @NinaReiners.