Reanimating Global Human Rights Governance: Towards a Relational Normativity

Abstract

The backsliding of human rights is a (re)current feature of global human rights governance. Whether it concerns the protection of LGBTQIA+ persons in Uganda or migrants crossing the Mediterranean, the promotion of human rights is the subject of political contestation in various global fora. Those calling for the development and application of future and current human rights norms are diametrically opposed to those advocating for their erosion or even suppression. The resulting political stalemate portrays an indeterminate picture of global human rights governance whose operational modes are reduced to scapegoating human rights abusers and accusatory rebuttals against human rights advocates. The inability to transcend those differences towards an agenda on compliance with international human rights law (IHRL) harms global human rights governance and, consequently, as a self-fulfilling prophecy, erodes the very norms by and upon which such regimes respectively operate and rely. In order to offer an exit out of such doom scenario and to restore faith into global human rights governance, one must understand the conditions that give rise to such divergent interpretations on IHRL. Once those have been identified, one can start strategizing on how to remedy and even strengthen global human rights governance. With those aims in mind, this paper takes stock of the Theory on the Relational Normativity of International Law (TORNIL) which reconceptualizes the sources from which IHRL derives its binding force. In this respect, traditionally, the norms themselves, i.e. treaties, international customs and general principles of law, are considered to be the – prevailing – first source of IHRL, which are often complemented with moral values, such as peace, humanity and justice (the second source of IHRL). TORNIL posits that a third – complementary – source must be taken into account, namely the context in which those norms and values are coming into being and are applied. That context is shaped by different sets of relationships between diverse (inter)national actors concerned with and affected by the development and application of IHRL. The nature of those relationships is characterized on a scale of trust and distrust. The more trust is present in those relationships, the more likely that compliance with existing IHRL can be secured or its future development can be promoted. With such relational perspective in mind, it is possible to address protection gaps on the ground and the political stalemate in global human rights governance. Lessons can be drawn from negotiating strategies of frontline humanitarian professionals on how to restore trust between different (fighting) parties in order to govern their respective relationships in accordance with the rule of law in general and IHRL in particular. Such relational governance can be instrumental in safeguarding IHRL whose development and application ultimately depends on the presence of trust between the different share- and stakeholders in global human rights governance. If one fails, however, to appreciate the context as a source from which IHRL derives its normativity, division will be inevitable and one risks giving global human rights governance its final stroke.