Seeking to Persuade: A Constructive Approach to Human Rights Treaty Interpretation
By John Tobin
Click here to download the full article (pdf)
Human rights protected in international treaties are invariably vague and ambiguous. This ambiguity is most acute with respect to economic, social, and cultural rights.1 The rights to health, housing, and education are not standards that have traditionally been renowned for their clarity of content. But even civil and political rights, which have a significantly longer jurisprudential ancestry, are often indeterminate. For example, the precise scope of the prohibition against torture is continuously shifting,2 and the parameters of the right to a fair trial remain contentious.3 Thus, the need to determine the meaning of human rights standards is a constant dilemma: a dilemma that is heightened by the absence of an authoritative adjudicative body to bind states parties to a particular interpretation of each human right.
In practice, non-judicial actors—academics, NGOs, treaty monitoring bodies, special rapporteurs, and states—attempt to fill this interpretive void. All too often, however, this process of defining the content of a human right is accompanied by scant, if any, explanation of the methodology used to generate the interpretation offered.5 Indeed, in the case of human rights standards, advocates can be quick to offer interpretations that reflect personal preferences as to the nature of protection that the advocates think the right in question should accord.6 The work of the committee bodies established to monitor implementation of human rights treaties has, at times, also been accused of such an approach.7 Such “result driven jurisprudence” 8 may well persuade those who focus on what the law should be (lex ferenda) but its impact is limited for those who focus on what they perceive the law to be (lex lata). Moreover, this lex ferenda approach encourages criticisms like David Kennedy’s that “the human rights movement degrades the legal profession by encouraging a combination of overly formal reliance on textual articulations that are anything but clear or binding and sloppy humanitarian argument.”9 Simply clothing an assertion about the content of an internationally recognized human right with the apparel of humanity may satisfy a moral or political urge, but it does not necessarily accord with the nature of the legal obligations actually assumed by a state under a human rights treaty.