Human Rights Protection and State Capacity: The Doctrinal Implications of the Statist Character of International Human Rights Law

Research output: Chapter in Book/Report/Conference proceedingChapter

Abstract

Human rights protection has a markedly ‘statist’ character in international law. The chapter explores the origins of this statism and asks how it affects doctrinal development in human rights regimes. It offers a clarification of how the idea of modern statehood, as well as its constitutive political ideals (democracy and the rule of law), have interacted with human rights law. It argues that human rights became associated with a broad conception of ‘state functions’, and that concerns with ‘state capacity’ came to influence the jurisprudence of human rights institutions (like the European Court of Human Rights in freedom of religion cases). Still, what we need is not liberating international human rights law from the limitations of statism. The chapter aims at a more sophisticated and more reflexive understanding of its character and its implications.
Original languageEnglish
Title of host publicationHuman Rights in Times of Transition
Subtitle of host publicationLiberal Democracies and Challenges of National Security
EditorsKasey Mccall-Smith, Andrea Birdsall, Elisenda Casanas Adam
Place of PublicationCheltenham
PublisherEdward Elgar Publishing
Chapter4
Pages64-88
Number of pages25
Edition1
ISBN (Electronic)9781789909890
ISBN (Print)9781789909883
DOIs
Publication statusPublished - 24 Nov 2020

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