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On April 10, Aaron Fellmeth, Arizona State University College of Law, moderated a well-attended interdisciplinary round-table entitled “Overloading Human Rights Law.”
Fellmeth framed up the topic for the participants, asking whether human rights is already overloaded, and whether additional issues that get posited – from animal rights to internet access--threaten its overload in the future.
James Nickel, University of Miami, began the conversation by tackling the term “overload.” Drawing on various metaphors, he argued that to determine if a system is overloaded, we must first answer what it is we think the system should have the capacity to carry. If the goal is a high realization of all human rights everywhere then, he said, the system is already overloaded. But “if our goal is more modest, then we might think we are only slightly overloaded.”
Henry Shue, University of Oxford, focused on climate change, asking whether its dangers require us to implement additional rights. He answered this question in the negative: “I don’t think we need a single new right … but we need to create new protections … Institutions need to evolve as threats evolve, even while rights remain the same.” On Shue’s account, threats posed by climate change, such as access to food and shelter, can all be framed in terms of existing rights. But, he said, climate change may demand a recalibration of existing norms of sovereignty. To the extent sovereignty entails control over ones energy choices, such control may need to be constrained.
Frédéric Megret, McGill University, took a step back to suggest that overloading is an anxiety that has been with the human rights movement for a long time, beginning with whether to add so-called “second generation” economic and social rights to the core of civil and political rights. Human rights are, he argued, a victim of their own success. “If you can re-frame any issue as a human rights issue it seems to bring a certain moral urgency to it.” Over time, he said, human rights have mutated from a minimalist regime with a consensus around basic freedoms, to a project that is about a very comprehensive notion of “the good life.”
Erika George, Center for Global Justice, Utah University, introduced the notion of “off-loading” human rights into other arenas, arguing that this was already happening quite successfully with Corporate Social Responsibility taking up the rhetoric of human rights. This moved human rights from being solely the provenance of States to provide, and showed the possibility of expanded threats being accompanied by an expanded range of protectors.
Rebecca Hamilton is an Associate-in-Law at Columbia University and she is Co-Chair of ASIL’s International Criminal Law Interest Group. Her latest article, “The ICC’s Exit Problem” appears in the current issue of the N.Y.U. J. Int’l L. & Pol.