Modern Discourses on the Nature of Human Rights: Towards a Relational Normativity

Abstract

Human rights compliance has more than ever been the subject of political contestation in various global fora portraying 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. In order to escape such political stalemate and to strengthen human rights regimes instead, one must understand the conditions that give rise to such divergent interpretations on international human rights law (IHRL). 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. Besides the norms themselves, i.e. treaties, international customs and general principles of law – the first source – and moral values which underpin those norms – the second source, TORNIL posits that a third – complementary – source of IHRL 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. Relational governance can here 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 jeopardizing global human rights governance in the long run.