On the legitimate authority of international human rights bodies

Abstract

Introduction The idea of ‘human rights’ has established itself as the dominant discourse in world society without a coherent understanding of its proper function or meaning. There is no agreement among legal and other scholars on the relationship between international human rights and domestic systems; the identity of the subjects of international human rights law, or the holders of the correlative duties; on the importance of enforceability; or indeed the object and purpose of international human rights law, and consequently the function of international human rights bodies (IHRBs) established under human rights treaties. The role of IHRBs is understood by scholars in a number of ways, including, for example, ensuring that States parties comply with their international obligations; delimiting the circumstances in which it is appropriate for external actors to take an interest in the treatment of human persons within the State; and/or elaborating an idealized conception of the ‘just’ society. The focus of this essay concerns the extent to which we should recognize the claims of IHRBs to normative authority, i.e. to be able to regulate domestic societies on issues of social, economic and political controversy. International human rights bodies do not possess the capacity to ‘legislate’ human rights; their normative power is exercised through an elaboration of the scope and content of abstract international law norms adopted in the form of Concluding Observations, Views, Recommendations and General Comments. The requirement for interpretation results from the fact that human rights norms are (radically) indeterminate, and it is not possible to cover all possible scenarios within the text of an international law instrument. The claim by IHRBs to a ‘right to rule’ rests on providing an authoritative interpretation of human rights norms and making a determinative evaluation as to whether a State party has complied with its obligations under the treaty. Any analysis of the role of international human rights bodies is made complex by three factors: first, IHRBs have not constrained themselves to a literal interpretation of the text of human rights treaties; second, given that the treaties construct the States parties as democratic societies, IHRBs are required to engage with a political conception of rights in the absence of a meaningful political community; and third, the ‘constitutionalization’ of human rights regimes means that we can no longer understand certain (if not all) human rights regimes in terms of an expression of the wills of the States parties.