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Human Rights Norms From Below
Zulfiqar, Adnan A.
Zulfiqar, Adnan A.
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YJIL 48_2.pdf
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Abstract
The conventional approach to international human rights relies extensively,
both in practice and scholarship, on a state-centric approach. In particular, the
discourse on mechanisms for promoting human rights norms tends to operate on
a key assumption: state-level adoption of norms will allow greater penetration of
rights in the underlying society. A fatal flaw with this assumption is its failure to
consider a norm’s long-term prospects of taking hold in the context “below.”
This Article argues that for a norm to be durable, it must be considered morally
credible by the population adopting it. A norm’s moral credibility is affected by
the norm’s alignment with the values of the society below and the manner in
which the norm is introduced to that society. In both regards, it is imperative to
understand the nature of political authority and legal culture in the local context.
In many societies, the preexisting legal landscape includes the presence of
universal legal orders apart from international law. These “alternative
universals” structure those societies and help determine which norms will align
with their values. In addition, states governed by autocratic regimes may
inherently lack credibility with the population, thus impeding the diffusion of
human rights norms there. The presence of autocracy may also provide insight
into the types of norms a population is likely to prioritize.