Research project P7/27 (Research action P7)
Starting point of the research project is the finding that both rights holders and duty bearers under human rights norms are confronted simultaneously with a multitude of human rights provisions differing as to their scope, focus, legal force and level of governance. This non-hierarchical accumulation of human rights provisions has resulted in a complex and unco-ordinated legal architecture that may in some circumstances create obstacles for effective human rights protection. The central research objective of the network is the study of human rights law as an integrated whole from a users’ perspective.
A first research hypothesis concerns the relevance of concepts and theories from legal anthropology for an in-depth analysis of human rights law from the viewpoint of state authorities as well as rights holders . The concept of legal pluralism describes and analyses the multiplicity of forms of law present within a given social field. From that perspective, the research will map overlaps, conflicts and gaps in the architecture of human rights law, as well as users’ strategies to deal with them. In addition, theoretical insights from scholarship on legal pluralism will feed the network’s normative proposals, as may related theories such as the ‘théorie du droit en réseau’. Moreover, these empirical approaches will be confronted with traditional-legal normative approaches, that categorize potential models for legal integration, in an effort to identify a model that would fit the integration of human rights law.
A second research hypothesis states that the current lack of co-ordination between different spheres of human rights law creates obstacles leading to sub-optimal human rights protection, and that at least some of these can be removed or reduced. The research will identify the frictions that arise in the integrated experience of human rights, as well as existing good practice that alleviates such frictions.
Within the above-sketched framework, the network will pursue 7 ambitious research goals:
1. Develop theoretical and conceptual frameworks capturing the multilayered nature of human rights law.
2. Analyse users’ trajectories through the complex architecture of human rights law.
3. Explore actual and potential bridges between different layers of human rights law.
4. Determine how to maximize the added value of one specific layer of human rights law.
5. Define optimal conditions of access for users navigating through international human rights mechanisms.
6. Investigate the tension between divergence and coherence in human rights law in theory and practice.
7. Research the interaction between human rights law and its next-door neighbours: international humanitarian law and international criminal law.
WP 1: Theorizing the multilayered nature of human rights law
Work package 1 theorizes and conceptualizes the multilayered nature of human rights law. The bottom-up approach of legal anthropology, expressing the empirical reality of multiple human rights norms and fora in terms of legal pluralism, will be confronted with a different empirical approach – ‘law as a network’-as well as with approaches borrowed from legal philosophy that may serve to grasp the same reality. While the empirical approaches are mostly geared to explaining and analysing the facts on the ground, these other approaches are normative in nature, aimed at changing those same facts. Thus, both types of approaches are complementary. The concepts and theories of legal
pluralism and of ‘law as a network’ will help unravel the complex architecture of human rights law, and the normative models will work towards streamlining that picture toward integrated human rights. Concept papers on these approaches will provide guidance as well as cohesion to all work packages within the project.
WP 2: Users’ trajectories in human rights law
Work package 2 concerns mostly empirical research on how rights holders navigate through the complex architecture of human rights law. It includes the development of an adequate methodology, as well as five case studies. Three case studies will examine how urban and rural poor communities in the Global South have used human rights in order to protect themselves from perceived threats to their human dignity. They will be carried out in India, the DRC and China, in close cooperation with institutional partners in the countries concerned. In the fourth case study, the functioning of the Human Rights Council is analysed from a users’ perspective. The fifth case study will examine the human rights trajectories of foreigners in Europe in a migratory context. It will undertake a detailed analysis of the jurisdictional process of these vulnerable human rights users and of their mobilization of the fragmented set of human rights sources and mechanisms at the European and global levels. It will allow for both the identification of good practices and the analysis of obstacles these actors encounter in pursuit of justice through the human rights labyrinth.
WP 3: Bridges between different layers of human rights law
Work package 3 will investigate ways in which an integrated view of human rights may be envisaged, both as a project of normative development, and as a matter of current procedural practice. A first axis of research, centred on disputes brought before the European Court of Human Rights, examines the procedures of reference to ‘external sources’ and of ‘cross references’ which de facto build bridges between different layers of human rights law. Yet they raise important difficulties in terms of legitimacy, which need in-depth scrutiny. In addition, crucial questions regarding these procedures’ ‘methodology’ will be addressed, in particular the need for transparence in order to avoid perceptions of arbitrariness. The second axis of research focuses on the results of these bridge building efforts. Can they produce such a powerful integrating effect that it can lead to the construction of a corpus juris that is functionally equivalent to the drafting of a hard law instrument? This query will be conducted through a case study on the categorical rights of the elderly.
WP 4: Maximisation of added value of human rights texts/mechanisms: Do we need a national Bill of Rights?
Work package 4 will zoom in on the status and functions of one source within the multilayered human rights protection system, i.e. national bills of rights. Situating this single source within the context of human rights law as a whole, the central question will be how to optimize its added value for users. For several years, the promotion of an integrated approach towards fragmented human rights law has notably taken the shape of a reflection as regards the modernisation of the national constitutional catalogue of protection of fundamental rights and freedoms. The idea would be to transform this catalogue into an ‘interface’ or a ‘synthesis’ integrating and organising the contributions of different layers of human rights law. Mobilizing the resources of legal theory, comparative law, political science and legal sociology, the research will critically examine the feasibility of such a project.
WP 5: Optimizing access to international human rights mechanisms
Work package 5 will examine the procedural dimensions of human rights integration, with a focus on international complaint procedures. While monitoring bodies such as the European Court of Human Rights and the Inter-American Commission and Court on Human Rights are confronted with mounting or even huge amounts of incoming petitions, individual petitioners and in particular members of vulnerable groups still experience practical and legal obstacles hindering them to effectively pursue cases of alleged human rights violations. The research will formulate clear-cut and substantiated proposals reconciling optimal access with the need of procedural efficiency and an efficient management of incoming cases. Particular attention will be paid to examining to what extent solutions and strategies developed within one system (also beyond the regional mechanisms) may benefit another.
WP 6: Divergence and coherence in human rights law
Work package 6 will examine the value there may be in not –entirely – integrating human rights law. Indeed, a central question is to what extent human rights pluralism makes room for variations on a single theme, i.e. different formulations and interpretations of the same norms. The research will define a guiding framework for the demarcation of acceptable degrees of divergence in specific situations. Next, the research will provide an inventory of – both existing and new-legal techniques that allow to accommodate and at the same time control divergence in human rights formulations and interpretations. The theme will be further explored in two extensive case studies: one concerns the potential of the Strasbourg (ECtHR) tool of ‘margin of appreciation’ for the Luxemburg court (ECJ). The other examines how indigenous peoples’ rights to lands and resources are approached in different manners in different human rights mechanisms, in particular on account of European resistance to the idea of collective rights.
WP 7: Clarifying the grey zone between internal human rights abuses and crimes against humanity
Work package 7 will broaden the central research question toward the fuzzy borders of human rights law. The projects of international human rights law (IHRL), international humanitarian law (IHL) and international criminal law (ICL) are rooted in a similar ideal: respect for the autonomy and integrity of individuals and protecting individuals from abuse of state authority. The research will investigate the potential for integration of these streams, focused on the crucial concept of crimes against humanity. It will identify the frictions that arise in the integrated experience of IHRL and ICL as an enforcing mechanism of IHRL in the field of crimes against humanity. Disagreements on the exact definition of that concept have led to sub-optimal human rights protection. The research will test the value of the argument that the progressive development of ICL and the law on crimes against humanity in particular is halted under influence of IHRL, on account of the latter’s state-centred nature.
