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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.
Bearing the above in mind, this Article locates three detrimental consequences that arise out of the current, state-centric strategy for diffusing human rights: norm imposition, norm bargaining, and norm tainting. Norm imposition describes the practice of giving preference to external priorities on human rights even when such priorities differ from local ones. Norm bargaining is when states divert attention from more consequential human rights by adopting norms that are comparatively less significant for their society. Finally, norm tainting occurs when autocratic states adopt a human rights norm and, by associating with it, tarnish its reputation. Each of these consequences diminishes a norm’s long-term viability. The Article argues that effective promotion of human rights requires engaging the society below, where a norm will operate, and crafting methods that will best advance norms in that context. To this end, it proposes an additional approach-enculturation-which relocates the strategy for norm diffusion as one beginning with and centering on the society below. Building on the theories of vernacularization and empirical desert, enculturation seeks to indigenize human rights as a strategy for resilient, morally credible norms.