![Sample our Politics & International Relations journals, sign in here to start your FREE access for 14 days]({"type":"image" , "src" : "/sda/5947/TOC-Subject-Sample-2021-Politics-International-Relations.jpg"})
ABSTRACT
Literature, most notably in anthropology and international law, has explored experiences and contributions of local-level actors in efforts to realise international human rights. This article contributes a new and complementary perspective to one aspect of this scholarship, on the localisation of international rights language. It focuses on the localisation of legal language in a European context. It explores claims by civil society actors about the applicability of legal human rights standards, drawing upon data generated during the participative mapping process that underpinned Scotland's first National Human Rights Action Plan. The article provides a qualitative case study of engagements with three particular rights – the right to life, the right not to be subjected to inhuman or degrading treatment, and the right to respect for private and family life. It finds significant evidence of civil society actors using the language of human rights law to anchor interpretive claims about how the rights should apply, in a way that is prescribed, but not defined by, authoritative institutional interpretations. The case study reveals how interpretive engagement with human rights law corresponds to a sense of entitlement to use the language of international human rights. It thereby contributes to a richer understanding of the drivers of, and risks to, local-level ownership of human rights language, highlighting insights for both scholarship and human rights advocacy.
Acknowledgements
We would like to thank our reviewers for their invaluable comments, and Alison Hosie for being available to answer queries about the research data. We would also like to thank Clowance Wheeler-Ozanne for her research assistance on judicial interpretations of Article 8 of the European Convention on Human Rights. Any errors remain our own.
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes on contributors
Elaine Webster (LLB Hons, MA, MA, PhD) is a Lecturer in the Law School, and Director of the Centre for the Study of Human Rights Law, at the University of Strathclyde in Glasgow, Scotland. She teaches on a number of courses on human rights in the UK, European human rights law and human rights theory and practice. Her research interests are broadly in the fields of European and international human rights law, human rights interpretation and human rights education.
Deirdre Flanigan is a qualified solicitor working in Glasgow specialising in housing, human rights, employment and adults with incapacity law. She has an LLB (Hons) and a Diploma in Legal Practice from the University of Edinburgh and an LLM in International Human Rights Law from the Irish Human Rights Centre at the National University of Ireland. She was formerly the Outreach Coordinator at the Scottish Human Rights Commission.
Notes
1 Annelise Riles, ‘Anthropology, Human Rights, and Legal Knowledge: Culture in the Iron Cage’, American Anthropologist 108, no. 1 (2006): 52–65, p. 62.
2 Mark Goodale et al., ‘Toward a Critical Anthropology of Human Rights’, Current Anthropology 47, no. 3 (2006): 485–511, pp. 485–490; Mark Goodale, ‘Introduction to “Anthropology and Human Rights in a New Key”’, American Anthropologist 108, no. 1 (2006): 1–8; Sally Engle Merry, ‘Anthropology and International Law’, Annual Review of Anthropology 35 (2006): 99–116, p. 109.
3 Mark Goodale and Sally Engle Merry, The Practice of Human Rights: Tracking Law between the Global and the Local (Cambridge: Cambridge University Press, 2007), 13–27.
4 Daniel M Goldstein, ‘Whose Vernacular? Translating Human Rights in Local Contexts’, in Human Rights at the Crossroads, ed. Mark Goodale (New York: Oxford University Press, 2013), 111–21, p. 121.
5 Upendra Baxi, The Future of Human Rights, 3rd ed. (New Delhi: Oxford University Press, 2008); Koen De Feyter et al., The Local Relevance of Human Rights (Cambrige: Cambridge University Press, 2011).
6 George Ulrich, ‘Epilogue: Widening the Perspective on the Local Relevance of Human Rights’, in The Local Relevance of Human Rights, ed. Koen De Feyter et al. (Cambridge: Cambridge University Press, 2011), 338.
7 For examples see the contributions to De Feyter et al., Local Relevance of Human Rights, and Goodale and Merry, Practice of Human Rights.
8 For example Sally Engle Merry et al., ‘Law from Below: Women’'s Human Rights and Social Movements in New York City’, Law & Society Review 44, no. 1 (2010): 101–28.
9 Simon Halliday and Patrick Schmidt, eds., Human Rights Brought Home: Socio-Legal Perspectives on Human Rights in the National Context (Oxford: Hart, 2004).
10 Austin Sarat and Thomas R. Kearns, eds., Law in Everyday Life (Michigan: University of Michigan Press, 1995).
11 Halliday and Schmidt, Human Rights Brought Home.
12 Halliday and Schmidt, Human Rights Brought Home; Sally Engle Merry, ‘New Legal Realism and the Ethnography of Transnational Law’, Law & Social Inquiry 31, no. 4 (2006): 975–95.
13 For example Richard J Maiman, ‘“We’ve Had to Raise Our Game”: Liberty's Litigation Strategy under the Human Rights Act 1998’, in Human Rights Brought Home; Balakrishnan Rajagopal, ‘International Law and Social Movements: Challenges of Theorizing Resistance’, Columbia Journal of Transnational Law 41 (2002): 397.
14 For example European Union Committee of the Regions and European Union Agency for Fundamental Rights, ‘Making Rights Real: A Guide for Local and Regional Authorities’, 12 December 2014, http://fra.europa.eu/sites/default/files/fra-cor-making_rights_real-booklet_en.pdf.
15 Sally Engle Merry, ‘Human Rights and Transnational Culture: Regulating Gender Violence Through Global Law’, Osgoode Hall LJ 44, no. 1 (2006): 53–75, p. 55.
16 Sally Engle Merry, ‘Transnational Human Rights and Local Activism: Mapping the Middle’, American Anthropologist 108, no. 1 (2006): 38–51, p. 39.
17 United Nations, Office of the High Commissioner for Human Rights, http://www.ohchr.org/EN/Issues/Education/Training/Pages/HREducationTrainingIndex.aspx.
18 United Nations, Office of the High Commissioner for Human Rights, http://www.ohchr.org/EN/PublicationsResources/Pages/TrainingEducation.aspx.
19 For an overview and critique of this conceptualisation of the rights-bearing subject, see Costas Douzinas, The End of Human Rights: Critical Legal Thought at the Turn of the Century (Oxford: Hart Publishing, 2000).
20 Richard A. Wilson, ‘Tyrannosaurus Lex: The Anthropology of Human Rights and Transnational Law’, in Practice of Human Rights, 342–69.
21 Mark Goodale, ‘Locating Rights, Envisioning Law between the Global and the Local’, in Practice of Human Rights, 8–9.
22 Merry et al., ‘Law from Below’, 108.
23 Wilson, ‘Tyrannosaurus Lex’, 351–55.
24 Remedies such as injunctions against state institutions.
25 Wilson, ‘Tyrannosaurus Lex’, 351.
26 Council of Europe, Commissioner for Human Rights, ‘Workshop on Developing and Implementing National Action Plans for Human Rights, Conclusions’, Strasbourg, 27–28 March 2014, 3, https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=2531623&SecMode=1&DocId=2145406&Usage=2.
27 Rajagopal, ‘International Law and Social Movements’, 406.
28 The Human Rights Act 1998 renders rights within the European Convention for Human Rights enforceable in domestic courts; Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950.
29 This report distils the issues raised during the mapping exercise into eight themes – Dignity and care, Health, Where we live, Education and work, Private and family life, Safety and security, Living in detention and Access to justice, and the Right to an effective remedy. The report suggests that while Scotland has made notable progress in the realisation of rights, it can do better. It concludes that Scotland has a relatively strong legal and institutional framework for human rights and some examples of positive policy direction, but that outcomes for people often remain inconsistent.
30 See the Editorial in this special issue on the origins of the project in the SHRC Research Advisory Group and development of collaborative writing partnerships.
31 See Glaser and Strauss on the value of the expert researcher and the importance of reflexivity to allow new insights to emerge from the data: Barney G. Glaser and Anselm L. Strauss, The Discovery of Grounded Theory: Strategies for Qualitative Research (London: Weidenfeld and Nicolson, 1967), 251–2. See also Laura Finlay, ‘“Outing” the Researcher: The Provenance, Process, and Practice of Reflexivity’, Qualitative Health Research 12, no. 4 (2002): 531–45.
32 On the privacy/private life/family life keyword search across both data sets, we excluded 17 returns from analysis because they repeated/mirrored section headings in the Getting It Right? report; two because they were not claims about gaps in human rights protection (e.g. as in ORG-0051a- Crown Office and Procurator Fiscal Service -000: ‘COPFS fully supports parents’ and children's rights to private and family life as they are enshrined in article 8 of ECHR and set out in the Children (Scotland) Act 1995'); two because we deemed them not to be relevant uses of the terms (e.g. in INV-001a-KTainsh-000 referring to self-employment: ‘This would help to: make people “Responsible” for their own actions and family life, and reduce dependency on the National Social Services budget'); four because they appeared to form part of a facilitator's questions/notes within the ‘collected transcript’ documents (e.g. as in notes of a break-out group discussion in a consultation in 2009 recording priority issues in the rural north of Scotland: ‘Where people are named as accused of a crime they will be discriminated against. When they are found not guilty that will change nothing and will often not be publicised. Freedom of press and labelling – privacy’); and two because we deemed them to be not legalistic (see note 37). On the inhuman*/degrad* keyword search across both data sets, we excluded 11 returns from analysis because they overlapped with earlier returns within the search (i.e. where a participant referred to ‘inhuman and degrading’ treatment, this incidence was counted only once); five because we deemed them to be irrelevant (e.g. because they invoked alternative meanings of the terms, such as in ORG-0028a-Victim Support Scotland-000: ‘Where the state has an opportunity to do this and fails to do so, it is not only failing to uphold the human rights of victims, it is constructively contributing to the further degradation of these rights’), or because they appeared to form part of a facilitator's questions/notes within the ‘collected transcript’ documents (e.g. in a consultation event in 2009, the facilitator asked: ‘How should we go about making the international human rights obligations real in Scotland? Any thoughts on how we should promote, and monitor the Convention on the Rights of Persons with Disabilities, and the Convention against Torture, inhuman and degrading treatment in particular?’); and six because we deemed them to be non-legalistic (see note 37). On the right to life keyword search across both data sets, we excluded five returns from analysis because they appeared to form part of a facilitator's questions/notes within the ‘collected transcript’ documents (e.g. in a consultation event in 2009 a question is noted – ‘What examples of relevant work do you know of in this area that SHRC should be aware of?’ – with the following response: ‘What about right to life? (Euthanasia, gender screening, assisted suicide)’).
33 Our criteria for identifying legalistic references were the following questions: Were the terms referred to in a way that mirrored the legal formulation of the right (i.e. ‘inhuman or degrading treatment’ and variations such as ‘inhumane and degrading treatment’)?; and/or were they referred to alongside an acknowledgement of a legal standard (e.g. ‘Article 3’ or ‘stipulations’ on ill-treatment, and so on)?
34 See note 32 for details on grounds of exclusion.
35 (A) Social Work Student ‘F’, Consultation Event, 2011.
36 (A) Name not attributed, Consultation Event, 2010.
37 (B) ORG-0032a-Care Inspectorate-000; see also (B) ORG-0058a-SCLD-000.
38 (B) ORG-0024a-Shakti Women's Aid-000.
39 (B) ORG-0040a-Alliance-000.
40 For a brief overview of the ‘denotation/connotation’ distinction see Theo van Leeuwen, Introducing Social Semiotics (London, Routledge, 2005), 37.
41 Mark Goodale, ‘The Power of Right(s): Tracking Empires of Law and New Modes of Social Resistance in Bolivia (and Elsewhere)’, in Practice of Human Rights, 146–7.
42 (B) ORG-0052a-STUC-000.
43 (B) ORG-0026a-People First (Scotland)-000.
44 (B) ORG-0049ab-Aberdeen City Council-000.
45 (B) INV-006a-JKermode-101.
46 (B) ORG-0019a-Rape Crisis Scotland-000; ORG-0028a-Victim Support Scotland-000.
47 (B) ORG-0029b-CELCIS-000.
48 (B) ORG-0041a-Scottish Youth Parliament-000.
49 (B) ORG-0010a-Human Rights Lawyer Scottish Green Party-000.
50 (B) INV-029a-VPerezSaez-000.
51 (B) ORG-15a-Dorothy-Grace Elder: Scottish Parliament's cross party group on chronic pain-000.
52 (B) ORG-15a-Dorothy-Grace Elder: Scottish Parliament's cross party group on chronic pain-000.
53 (B) ORG-0026a-People First (Scotland)-000.
54 (B) INV-022a-CMuirhead-000.
55 (B) ORG-0028a-Victim Support Scotland-000.
56 Goodale, ‘Power of Right(s)’, 150.
57 The idea of extra-judicial interpretation is commonly used in US-focused literature on ‘popular’ or ‘progressive’ constitutionalism within a debate about sources of authoritative meanings of constitutional texts. See Amy J. Cohen and Michal Alberstein, ‘Progressive Constitutionalism and Alternative Movements in Law’, Ohio State Law Journal 72 (2011): 1083–113. Proponents of this movement emphasise a shift in power where interpretations of legal norms are made outside of the typical legal/judicial paradigm. In this paradigm, ordinary people's interpretations of these norms are equally as valid as the authoritative judicial interpretation. Cohen and Alberstein conclude that the engagement of ordinary people can ‘transcend, if not transform, our current legal system with its court-centred focus’ (p. 1111). This approach echoes socio-legal work on popular legal culture; e.g. Barbara Yngvesson, ‘Inventing Law in Local Settings: Rethinking Popular Legal Culture’, Yale LJ 98 (1989), 1689–1709. For our purposes, we understand the term ‘extra-judicial’ to include any voices outside of authoritative judicial/quasi-judicial institutions, including academic scholars, legal practitioners, political advocates and groups, human rights-promoting and -protecting organisations, and of course rights-holders themselves.
58 Two examples of work on human rights interpretation are: on the European Court of Human Rights’ practice, George Letsas, A Theory of Interpretation of the European Convention on Human Rights, 2nd ed. (Oxford: Oxford University Press, 2009); and from an international law perspective, David McGrogan, ‘On the Interpretation of Human Rights Treaties and Subsequent Practice’, Netherlands Quarterly of Human Rights 32, no. 4 (2014): 347–78. Constitutional interpretation, including but not limited to the interpretation of fundamental rights, has received greater attention. There is a broad and long-standing theoretical literature on legal interpretation in more general perspective, which addresses basic features of interpretation (including how legal meaning is attributed to everyday words, and the relationship between legal meaning and ordinary meaning). See, for example, Aharon Barak, Purposive Interpretation in Law (Princeton, NJ: Princeton University Press, 2005); and Jerzy Wróblewski, ‘Legal Language and Legal Interpretation’, Law and Philosophy 4 (1985): 239–55.
59 Koen De Feyter, ‘Sites of Rights Resistance’, in The Local Relevance of Human Rights (Cambridge: Cambridge University Press, 2011), pp. 11–39.
60 Sally Engle Merry, Human Rights and Gender Violence: Translating International Law into Local Justice (Chicago: University of Chicago Press, 2006), p. 134.
61 Maureen Cain, ‘The General Practice Lawyer and the Client: Towards a Radical Conception’, International Journal of the Sociology of Law 7 (1979), 331–354, p. 335.
62 There are glimpses in the data of some participants consciously assuming an intermediary role; e.g. (B) ORG-0058a-SCLD-000.
63 Merry, Human Rights and Gender Violence, 20, 229.
64 (B) ORG-0033a-name redacted-010; (B) ORG-0048a-AutismRights-000; (B) ORG-0048b-AutismRights-000 (this respondent organisation also advocated a public inquiry); (B) ORG-0026a-People First (Scotland)-000; (B) ORG-0041a-Scottish Youth Parliament-000.
65 For example (A) Ex-offender and support liaison for offenders leaving prison, One-to-One Interview, 2011; (B) ORG-15a-Dorothy-Grace Elder: Scottish Parliament's cross party group on chronic pain-000; (B) ORG-0026a-People First (Scotland)-000.
66 (B) ORG-0032a-Care Inspectorate-000; (B) ORG-0048a-AutismRights-000; (B) ORG-0048b-AutismRights-000; (B) ORG-0010a-Human Rights Lawyer Scottish Green Party-000.
67 (B) ORG-0049ab-Aberdeen City Council-000; (B) ORG-0029b-CELCIS-000.
68 (B) ORG-0026a-People First (Scotland)-000; (B) ORG-0032a-Care Inspectorate-000; (B) ORG-0058a-SCLD-000; (B) ORG-0028a-Victim Support Scotland-000.
69 (B) ORG-0026a-People First (Scotland)-000; (B) ORG-0029b-CELCIS-000.
70 (B) ORG-0033a-name redacted-010; (B) ORG-0048a-AutismRights-000.
71 Koen De Feyter and Stephan Parmentier, ‘Introduction: Reconsidering Human Rights from Below’, in The Local Relevance of Human Rights, EUIC Studies in Human Rights and Democratisation, ed. Koen De Feyter et al. (Cambridge: Cambridge University Press, 2011), 3.
72 (B) ORG-0026a-People First (Scotland)-000.
73 Kacper Nowakowski v. Poland, Application no. 32407/13, 10 January 2017 .
74 United Nations General Assembly, Convention on the Rights of Persons with Disabilities, 13 December 2006, A/RES/61/106.
75 (B) INV-006a-JKermode-101.
76 For example respectively, B v. France, Application no. 13343/87, 25 March 1992; and E.B. v. France, Application no. 43546/02, 22 January 2008.
77 On challenges to the minimum income immigration rules in the UK, see summary in United Kingdom House of Commons Library, ‘The Financial (Minimum Income) Requirements for Partner Visas’, Briefing Paper No. 06724, 27 January 2017, http://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN06724.
78 (B) ORG-0019a-Rape Crisis Scotland-000; ORG-0028a-Victim Support Scotland-000; Independent legal representation for sexual offence complainers was examined in the 2016 Scottish case WF, Petitioner [2016] CSOH 27.
79 (B) ORG-0029b-CELCIS-000; government plans for the sharing of information amongst professionals regarding children generally was examined in the 2016 UK case The Christian Institute and ors v. the Lord Advocate (Scotland) [2016] UKSC 51.
80 (B) ORG-0048a-AutismRights-000.
81 Stanev v. Bulgaria [GC], Application no. 36760/06, 17 January 2012.
82 Đorđević v. Croatia, Application no. 41526/10, 24 July 2012.
83 (B) ORG-0026a-People First (Scotland)-000.
84 Opuz v. Turkey, 33401/02, 9 September 2009.
85 (A) Name not attributed, Consultation Event, 2009.
86 For example M.S.S. v. Belgium and Greece [GC], 30696/09, 21 January 2011.
87 For example Peers v. Greece, 28524/95, 19 April 2001. The term ‘slopping out’ was used by a range of media outlets – see http://www.bbc.co.uk/news/uk-scotland-14763605 and http://www.dailyrecord.co.uk/news/scottish-news/landmark-human-rights-ruling-backs-1080882; also see Napier v. Scottish Ministers [2001] WL 1346975.
88 (B) INV-029a-VPerezSaez-000 and (B) ORG-0010a-Human Rights Lawyer Scottish Green Party-000, respectively. On the application of the right to life to socio-economic contexts, see Elizabeth Wicks, ‘The Meaning of Life: Dignity and the Right to Life in International Human Rights Treaties’, Human Rights Law Review 12, no. 2 (2012):119–219, pp. 206–208.
89 Goodale, ‘Power of Right(s)’, 150.
90 Similar to the idea of a loss of radical potential is the observation by Merry et al. of the ‘compromises’ inherent in ‘mobilizing’ law; Merry et al., ‘Law from Below’, 125.
91 Sallly Engle Merry, ‘Rights Talk and the Experience of the Law: Implementing Women’'s Human Rights to Protection from Violence’, Human Rights Quarterly 25, no. 2 (2003): 343–81, p. 381.
92 Merry, Human Rights and Gender Violence, p. 181.
93 Merry, ‘Rights Talk and the Experience of the Law’.
94 Merry, Human Rights and Gender Violence, 215, 220, 223; see also Yngvesson, ‘Inventing Law in Local Settings’, 1709.
95 Scottish Human Rights Commission, Getting It Right? Human Rights in Scotland (Edinburgh: Scottish Human Rights Commission, 2012), http://www.snaprights.info/wp-content/uploads/2016/01/Getting-it-Right-An-Overview-of-Human-Rights-in-Scotland.pdf.
96 Male survivor of domestic abuse, One-to-One Interview, 2011.
97 Research by Merry, Levitt, Rosen and Yoon on the use of human rights in social movement activism on discrimination in the United States suggests that the values dimension makes the human rights framework accessible; Merry et al., ‘Law from Below’, 125.
98 The ideas of humiliation and personal integrity are a feature of institutional interpretations of the right not to be subjected to inhuman or degrading treatment (Ireland v. United Kingdom, Application no. 5310/71, 18 January 1978, Series A, No. 25 (1979–1980)) and the right to respect for private life (e.g. Y.F. v. Turkey, Application no. 24209/94, 22 July 2003, para. 33).
99 Gauthier de Beco and Rachel Murray, Commentary on the Paris Principles on National Human Rights Institutions (Cambridge: Cambridge University Press, 2014), p. 64.
100 Upendra Baxi, ‘Epilogue: Whom May We Speak For, With, and After? Re-Silencing Human Rights’, in Silencing Human Rights: Critical Engagements with a Contested Project, ed. Gurminder K. Bhambra and Robbie Shilliam (Hampshire: Palgrave Macmillan, 2009), p. 258.
101 On the space occupied by NHRIs, see Anne Smith, ‘The Unique Position of National Human Rights Institutions: A Mixed Blessing?’ Human Rights Quarterly 28, no. 4 (2006): 904–946.
102 For an overview see recent book-length studies by Julie Mertus, Human Rights Matters: Local Politics and National Human Rights Institutions (Stanford, CA: Stanford University Press, 2009); and Sonia Cardenas, Chains of Justice: The Global Rise of State Institutions for Human Rights (Philadelphia, PA: University of Pennsylvania Press, 2014).
103 Obiora Chinedu Okafor and Shedrack C. Agbakwa, ‘On Legalism, Popular Agency and “Voices of Suffering”: The Nigerian National Human Rights Commission in Context’, Human Rights Quarterly 24, no. 3 (2002): 662–720, p. 699.
104 Yngvesson, ‘Inventing Law in Local Settings’, 1693.
105 Yngvesson, ‘Inventing Law in Local Settings’, 1693.
106 Goodale, ‘Locating Rights’, 8–10.
107 Baxi, Future of Human Rights, vi.
108 Baxi, ‘Epilogue’, 258.