Special Issue: The Future of Human Rights

Introduction

What may the future hold for human rights? The Nordic Journal of Human Rights (NJHR) – a leading forum for interdisciplinary exchanges on human rights in the Nordic region and beyond – is celebrating its 40th anniversary. Its Editorial Office decided to honour the occasion with a special issue on ‘The Future of Human Rights’. In our call for papers, we invited submissions that provide insights on the future development of human rights and that are theoretically informed, empirically grounded, and methodologically rigorous in their ambitions to advance not only the academic study of human rights, but also its relevance to reflective practice in the real world.¹ These papers would eventually set agendas and advance new potential lines of inquiry. True to the multi- and inter-disciplinary approach of both the journal and the subject of human rights, we encouraged and welcomed contributions drawing from different disciplines.

Looking back at the past 40 years of the existence of our journal, it is evident that human rights – as a legal, political, and social practice – have experienced significant achievements and successes, some notable setbacks and failures, and numerous unprecedented and unforeseen events and developments. Likewise, the academic study of human rights has matured and become increasingly specialised. Part of that development is also expressed in the articles and special issues published by the journal. From its establishment in 1982 as the Scandinavian-language journal Mennesker og Rettigheter, to its eventual consolidation as the English-language Nordic Journal of Human Rights in 2010, the journal has become one of the leading publications and fora for academic discourse in the field. Yet, rather than retrospectively summarising these 40 years, we use(d) the occasion to invite scholars and practitioners to prospectively conjecture about what the coming decades may hold for human rights, to discern where current trends are likely to lead, and to make sense of the future they herald.

Speculating about the future, let alone predicting it, is a daunting task for academic researchers and practitioners alike. Human rights seem to be permanently at a crossroads and are frequently subjected to scepticism, even harsh criticism.² According to some scholars, the idea of human rights has failed to deliver on its radical promise of emancipation.³ Some even argue that human rights are instruments for dominating and oppressing the very populations they are meant to protect – that the powers-that-be can use the discourse of human rights to justify colonialism, warfare, and attacks on civilians.⁴ Yet the ideal of human rights continues to inspire not only academic criticism, but also real-world activism to challenge power and address injustices and inequalities. Human rights are not only a ‘weapon of the weak against the strong’ – i.e. normative principles that give relatively weak actors a resource for challenging dominant institutions.⁵ They are also a discursive battlefield where different actors struggle to give meaning to human rights.⁶ Ultimately, the emancipatory potential of human rights is an empirical question.⁷

Institutional, Substantive, and Procedural Developments

Since its inception in the aftermath of the Second World War, the international human rights system has evolved through several successive phases and, arguably, we are now in the middle of a new stage of rethinking and development.⁸ Those developments are institutional, substantive, and procedural. Institutionally, some of these complex processes are reflected internationally in ongoing efforts to strengthen the UN human rights treaty bodies;⁹ regionally, in the processes to reform regional human rights systems, especially the European and the African ones; and, domestically, with the establishment of national human rights institutions and other specific mechanisms.¹⁰

Substantively, although no new international human rights treaties have been adopted in over 15 years, many relevant resolutions have been adopted by the UN General Assembly, the Human Rights Council, and other international and regional organisations that address various human rights issues, not to speak about guidelines and other so-called soft instruments prepared by various actors. Jurisprudence by human rights judicial and quasi-judicial bodies based on individual and inter-State complaints, and by the highest domestic courts, continues to further interpret and develop the substance of human rights, filling the gaps and ambiguities left by treaty law.

Procedurally, individual access to various human rights mechanisms has increased over time, with eight UN human rights treaty bodies accepting individual communications, and regional human rights courts and commissions dealing with an increasing number of cases. The various methods of work of international human rights mechanisms, including State reporting, individual communications, inter-State complaints, and country (in situ) visits, provide spaces for engagement with civil society and other actors. The possibility of third parties to submit amicus curiae briefs to the regional courts or to the UN treaty bodies accepting individual complaints is another important procedural development.

The abovementioned developments have faced some backlash from States and other actors and, in recent years, the institutional machinery of the international human rights system has been strained. In part, UN human rights treaty bodies and regional human rights mechanisms have become victims of their own success, with some human rights courts struggling with docket overload. However, they also increasingly face direct challenges from the States whose human rights record they are monitoring. Challenges range from outright backlash from authoritarian governments denouncing regional human rights courts to pushback from governments that at least nominally commit to international human rights norms.¹¹

While some of the criticism towards the international human rights system is misplaced, it must be admitted that its institutional machinery has grown piecemeal and might need certain adjustments to function optimally. In his landmark 2005 report, In Larger Freedom, the late UN Secretary-General Kofi Annan identified several human rights challenges, including poverty and global inequities, discrimination, armed conflict and violence, impunity, democracy deficits, and weak institutions.¹² More than 15 years later, those major challenges outlined therein, are more relevant than ever before. Additionally, countering climate change and achieving the Sustainable Developments Goals (SDG) through the UN Agenda 2030 have become an important part of the global agenda.

Despite a decrease in the number of civilian casualties and persons losing their lives during armed conflicts, more than three decades after the end of the Cold War there are about 100 ongoing (international and non-international) armed conflicts involving around 60 States and more than 100 non-State armed groups.¹³ More recently, the Russian Federation’s large-scale invasion of Ukraine since 24 February 2022 has resulted in serious violations of human rights law and grave breaches of international humanitarian law with several million refugees and internally displaced persons. Meanwhile, the civil war in Ethiopia, ongoing since November 2020, has killed tens of thousands of civilians, while more than two million persons are displaced and in dire need of humanitarian aid. Other armed conflicts – in Syria, Yemen, and Libya, to mention a few – have become protracted, with no apparent peace prospects in sight. No durable and just solution seems forthcoming to the several decades long Israeli–Palestinian conflict, while serious human rights violations are committed in the occupied Palestinian territory.¹⁴

Data on armed conflicts shows that there are some 20 theatres of conflict with massive impacts on people, livelihood systems, neighbouring countries, and the international community. As noted above, about 60 States, almost a third of the UN member States, are involved in these conflicts either directly or indirectly. In 2018, Peter Maurer, President of the International Committee of the Red Cross, noted several worrying trends, including protracted armed conflicts; more conflicts fought in densely populated urban areas; root causes of violence being unclear and difficult to address; armed actors being more numerous, more radical but also less political and less structured; wars often involving partners, allies, and coalitions – leading to a dilution of responsibility, fragmentation of chains of command, and an unchecked flow of weapons; and the challenges of new military technologies.¹⁵ Alongside international humanitarian law, States, international organisations, and other actors have given increased attention to the role of human rights in early warning and prevention of mass atrocity crimes, and in peace negotiations, peace-building measures, and transitional justice efforts.¹⁶

Meanwhile, the so-called liberal international order has been challenged at various degrees and levels by a host of authoritarian and populist State leaders,¹⁷ pursuing other models of global governance. What does the current rise of authoritarian populism around the world entail for the future of human rights? Some argue the global trend of democratisation has stalled and even reversed into democratic decline. States that have experienced setbacks in terms of democracy and the rule of law include not only those that have had recurring problems, but also the US and some European countries.¹⁸ Furthermore, many liberal-democratic States have been promoting human rights in their foreign policies since the 1970s, but when the international human rights regime increasingly turned towards domestic implementation in the 1990s, it put their commitment to a test they did not always pass.¹⁹ Some have also backtracked on their foreign policy promotion of, for instance, sexual and reproductive rights or LGBTQI+ rights. Such selective commitments have been subject to significant criticism on account of double standards and political bias.

Given that States bear the primary responsibility for the protection and promotion of human rights, how are such trends likely to shape the future of human rights? The end of the Cold War paved the way for a major breakthrough for human rights with new human rights instruments and expanding State commitments, but also for new forms of mass violations of human rights. If the liberal hegemony that triumphed with the end of the Cold War is now being undermined, what role will there be for human rights in an emerging ‘multiplex’ world order?²⁰ These are important questions to complex problems facing the organised international community. In any event, the response by the EU and the international community to Russia’s attack on Ukraine might suggest that the rumours of the death of the liberal international order may have been premature.

Room for Cautious Optimism?

Despite setbacks and persisting difficulties in implementing and enforcing human rights, there is some room for cautious optimism. The Sustainable Development Goals (SDGs) and the UN Agenda 2030 have set an ambitious programme for improving life conditions in the world across many areas by the end of the present decade. Since the turn of the millennium, one billion individuals have been lifted out of absolute poverty, with China contributing to almost 75% of the global reduction in the number of people living in such conditions.²¹ For large and increasing parts of the world’s population, problems that once seemed perennial like famine and diseases, today seem more remote. Yet, the COVID-19 pandemic has also shown how such progress cannot be taken for granted, exposing again the North–South divide and the limits of international solidarity. Moreover, critics have argued the SDGs have sidelined some core human rights concerns. States accept international law obligations to respect, protect, and fulfil the rights covered in the main human rights treaties and pledge to participate in periodic reviews of their performance, while the international human rights regime compensates for its weak enforcement capabilities by empowering rights-holders and their advocates to hold governments to their promises. By contrast, the SDG approach, critics have argued, is overburdened by unactionable, unquantifiable goals and its encyclopaedic approach makes everything a top priority.²² It contains a lot of action plans nobody notices and with no actors motivated to act on them, and allows reluctant governments to opt out, deferring to each nation’s ‘policy space and priorities’. With about eight years to go, the SDGs are achievable but unlikely to be achieved, due to the lack of political will by key players to join in an internationally coordinated response.²³

New Human Rights Issues and Developments

The law and practice of human rights has been able to expand its topical focus over time by successively addressing new issues.²⁴ The prohibition of torture, and women’s and children’s rights emerged on the agenda in the 1970s and 1980s. The rights of indigenous peoples, disability, and LGBTQI+ rights have gained prominence since the 1990s. There are more recent developments regarding international migrants and refugee law, rights of the elderly, and intersectional or environmental issues. Finally, there is increased attention concerning the decolonisation process, crimes committed during that period, and reparations for historical injustices. New issues are likely to appear on the human rights agenda.

Furthermore, human rights are championed as the new frontier in environmental and climate change litigation, inspired among others by the 2020 Urgenda and the 2021 Royal Dutch Shell cases in the Netherlands.²⁵ In the latter, the court interpreted human rights law – foremost the right to life and the right to family life – to protect against hazardous climate change.²⁶Also outside of the Netherlands, human rights-based climate change litigation is rapidly expanding: in only five years (2015–2020), no less than 40 cases were brought before national courts and international bodies.²⁷ In most cases, the judgments discuss the future generations’ right to a healthy environment or ‘ …  intertemporal safeguards of freedom’, as exemplified by the recent decision of the German Constitutional Court in 2021.²⁸ Yet, change happens not only by way of litigation. Rather, to date, over 100 constitutions have adopted the human right to a healthy environment.²⁹ These recent developments may indicate the crystallisation of a new field of law: intergenerational climate justice that bridges the (still) existing gap between human rights and environmental law and is founded on an understanding of solidarity between generations.³⁰

In addition to climate change, in recent years human rights have gained increasing significance for indigenous peoples’ rights. Notwithstanding special conventions and declarations that provide indigenous peoples (collective) rights, (individual) human rights have become an important supplement in the protection of individual members or groups of indigenous peoples.³¹ The recent decision by the Inter-American Court of Human Rights in the case Indigenous Maya Kaqchikel Peoples of Sumpango v Guatemala of 17 December 2021, which was hailed as ‘historic’,³² declared the Republic of Guatemala ‘ …  internationally responsible for the violation of the rights to freedom of expression, equality before the law and participation in cultural life’ of Indigenous Peoples.³³ The judgment thereby opened up for the Maya Kaqchikel people to operate radio stations and broadcast in their indigenous languages, a right the State had not provided them earlier.

Besides indigenous groups, international human rights law has contributed to expanding both the subjects and the objects of international law beyond States. Individuals are increasingly recognised not just as rights holders, but also as duty bearers. Many international human rights bodies provide opportunities for non-State actors to participate in monitoring, implementation, and litigation. Defying their non-existence as subjects of international law, cities and other sub-State entities are progressively engaging with international human rights law.³⁴ Non-State armed groups and rebel organisations are being held accountable not only under international humanitarian law, but also increasingly under international human rights law,³⁵ and sometimes non-State actors and de facto State entities even pledge themselves to abide by the international human rights treaties that they cannot (yet) sign or ratify. The number and nature of actors involved in human rights is likely to continue broadening in the future.

Another development is the expansion of human rights beyond human beings. In the past few years, legal bodies increasingly acknowledged certain human rights of nature, for instance of mountains, volcanoes, and rivers. Commonly, this acknowledgement is connected to the recognition of nature’s sacred status for indigenous peoples. In New Zealand, for instance, the volcano Mount Taranaki and Whanganui river were granted the same legal rights as a person, thus respecting that all Māori tribes regard themselves as part of the universe, at one with and equal to the mountains, the rivers, and the seas.³⁶ On the other side of the globe, in Canada, on the territory of the Ekuanitshit First Nation, the Muteshekau Shipu (or Magpie) river was granted by way of resolution nine rights: the right to live, exist, and flow; the right to respect for its natural cycles; and the right to take legal action, among others.³⁷

Advances in science and technology usually entail both opportunities and threats for human rights.³⁸ The internet has provided billions of people with new channels for keeping themselves informed, for mobilisation, and monitoring of human rights abuses, but also enabled new forms of surveillance, control, disinformation, hate speech, and destabilisation. Artificial intelligence has been touted as the next technological quantum leap, but the rule of algorithms can also entail new forms of discrimination and abuse. If algorithms create discriminatory situations or autonomous weapon systems select targets and engage without human control, who can be held liable for human rights violations? Advances in medicine and genetic modification have brought new possibilities, but also entail new threats to privacy and ethical challenges. How can human rights considerations be utilized and guide regulatory efforts concerning these new emerging fields and technologies?

Some authors suggest expanding human rights beyond already existing nonhuman entities to robots. Thus, Schulz and Raman argue not only that humans have to adapt to changing circumstances and new realities, including artificial intelligence, emerging technologies, deep learning, and more, but that human rights must adapt as well, since they are not set in stone.³⁹ With the aim of preserving ‘the good society’ and based on the overarching concept of and right to dignity, they submit that human rights have to change to safeguard humanity from potentially harmful, unforeseen, or unregulated developments.

These editorial reflections are but some of the challenges and opportunities we could envision for the future of human rights. Dystopic prognosis of the failure or collapse of the human rights system might have a too narrow perspective. Perhaps radical changes will not be necessary if the already existing human rights catalogue is strengthened, and – most importantly – enforced. We hope to see many of these topics addressed in future volumes of the NJHR – and we are pleased to initiate some of these conversations with the papers we selected for this celebratory special issue.

The Submissions and the Papers

The Editorial Office received over 120 abstracts and had to make some hard choices. Ultimately, 12 research articles and one legal developments article made it through the peer-review process. The first five articles deal with more general human rights issues; the four subsequent articles deal with matters of climate change, right to a healthy environment, preventing disasters and building resilience, and resource management; and the last three with artificial intelligence and algorithmic decision-making. The legal developments article deals with potential paths in the future relationship between the African and the European Human Rights Court. The special issue includes also three book reviews.

In the first article, Kirtika Kattel explores ways to reimagining the existing human rights framework due to criticisms vis-à-vis a range of issues, including ambiguity in its standards, weakness in its enforcement mechanisms, and the notion of universality not being compatible with cultural particularities. The article analyses some of these scholarly criticisms and argues that they should be seen as a wake-up call. The reimagining aims at revisiting the assumptions on which the current system is based rather than a reformulation. Kattel argues that the language of human rights is still highly relevant, as seen in its increasing use by both scholars and practitioners, including human rights defenders and civil society organisations. According to her, the focus of the discourse should shift from criticising human rights to learning lessons and exploring new ways to make human rights relevant to all.

In his article, Solomon Dersso addresses the future of the African human rights system, while drawing some more general lessons. As its founding treaty – the African Charter on Human and Peoples’ Rights – marked its 40th anniversary in 2021, Dersso seeks to examine the future of the African human rights system both from the perspective of the issues endogenous to the system and from the perspective of the various human rights protection challenges that have given rise to existential concern about the future of human rights in general. At one level, he interrogates questions about the efficacy and relevance of the African system for individuals and communities whose rights are violated and whether the human rights system will continue in its current form. These questions mainly relate to various developments including regressions in the human rights protection environment, the fraught relationship of the institutions making up the African human rights protection system with African Union member states and the persistence of existing institutional and structural challenges. At another level, Dersso seeks to examine questions about the future of human rights in general that also apply the African human rights system, using the lessons from the COVID-19 pandemic as a useful prism. The article examines the major changes and developments in the international society including the recent upsurge of populism, nationalism and various forms of bigotry and the deeper and structural issues relating to the core premises of human rights.

In their article, Allison Corkery, Gilad Isaacs, and Carilee Osborne hold that a prevailing critique of the human rights framework is that it remains too uncritical of the concentration of economic power. A critical factor in this apparent contradiction, the authors argue, is the manner in which the disciplines of human rights and economics ‘speak past each other’. The article draws from a year-long project to build a community of practice at the nexus of human rights and economics, primarily in South Africa. While South Africa has one of the most progressive constitutions in the world and a vibrant human rights community, rights have been neglected in economic policymaking and extreme levels of economic deprivation remain. This article opens a debate over how the human rights community might change this. In doing so, the authors argue for the necessity of building out the interrelations between the disciplines of human rights and economics and for the usefulness of the law and political economy.

In her article, Ramona Biholar addresses reparations for chattel slavery. Despite the achievements of the human rights project so far, global inequities, as highlighted by Kofi Annan in 2005, are persisting. Caribbean calls for reparations for chattel slavery are a manifestation of and a response to the global inequities that affect the so-called Global South. However, reparations calls have been contested and confronted with challenges when endeavouring to find a footing in international law, and specifically in international human rights law. Biholar proposes a re-imagining of the international human rights system to offer a legitimate place for reparations for chattel slavery and thus enable an effective challenge to pressing injustices, such as racial discrimination and its ramifications. The article focuses on the reparations for slavery emanating from the Caribbean, especially because as a region that has been birthed from such profound historical injustices that affect the full realisation of human rights today, the Caribbean and its human rights discourses have been relegated to and remained at the periphery of international human rights law. Drawing on Third World approaches to international law (TWAIL), Biholar argues that the incapability of international legal systems to respond to historical injustices indicates that the colonial imagination constructed on the compass of exclusion is still the foundation of international human rights law and of modern, postcolonial societies. The article thus advocates for decolonising international human rights law in order to accommodate a more inclusive future for human rights.

In his article focusing on children’s education, Bede Sheppard suggests that a new optional protocol to the Convention on the Rights of the Child could provide a way forward to finally realise a right to free education for all children. International law guarantees all children free primary education, but there is currently no obligation under international human rights treaties to provide free pre-primary and secondary education. The author argues that although such omission may have been in line with countries’ limited available resources at the time the right was incorporated into legal treaties, decades of economic growth and increasing evidence of the economic benefits to society of expanding access to education deserve revisiting it.

The next four articles focus on issues concerning climate change, right to a healthy environment, preventing disasters and building resilience, and resource management. Miriam Cullen and Jane Munro build their article on the widespread recognition that disaster is not a ‘natural’ phenomenon but occurs where exposure to a hazard coincides with pre-existing vulnerabilities – which might be social, economic, or environmental – to increase personal susceptibility to harm. They argue that the impacts of climate change impose an increasingly pressing need to revive the realisation of economic, social and cultural rights as a priority, not only through their express incorporation into disaster risk planning, policies, and domestic law, but by rethinking how they are implemented to include and empower the people who need them most.

Annika Bergman Rosamond and Daria Davitti examine the future of human rights by looking at how authoritarianism, in its multifaceted forms and manifestations, intersects with existing discourses on climate change, environmental protection, populism, and gender deviance. By adopting an intersectional lens, they interrogate the emergence of the right to a healthy environment and reflect on whether it will help against the double challenge faced by human rights of climate breakdown and rising authoritarianism. The authors study the link between authoritarianism and populism, focusing on far-right populism and the creeping authoritarian features that we can associate with far-right groups, both movements and parties. They also consider how certain understandings of nature and the environment are put forward by authoritarian regimes. This leads them to consider so-called ‘ecologism’ and the ways in which far-right movements draw upon green thought on the natural environment to further a gendered agenda based on conceptions of nature as a ‘national treasure’. These conceptions, the authors conclude, go hand in hand with policies that promote national identity and directly undermine the rights of migrants, ethnic minorities, women, and LGBT+ groups.

Corina Heri and Helen Keller evaluate the potential role of the European Court of Human Rights in adjudicating cases related to climate change. The Court is currently facing its first-ever applications on this topic, with four climate cases pending before it. Addressing these cases is more than a routine question of applying existing case law. These cases speak to fundamental questions regarding the Court’s engagement with systemic problems, politically and technically challenging issues, and its own subsidiarity to State decision-making. Keller and Heri argue that the Court must rise to the novel challenges posed by climate change to ensure that, in keeping with the theme of this special issue, it can be part of the ‘Future of Human Rights’. Looking at recent environmental case law, they identify and discuss possible futures for the Court’s approach to climate cases, including from admissibility, substantive, and remedial perspectives. They also consider the various tendencies and factors influencing the Court’s potential response to climate claims. The Court, the authors conclude, must contribute to searching for a modus vivendi that permits competing interests to coexist and ensures a liveable future. This is not only a question of ensuring future enjoyment of human rights, but also of safeguarding the Court’s own ability to carry out its role and to thrive into the future.

Lotta Viikari examines the status of rural local communities within the international framework of human rights. The adoption in 2018 of the United Nations Declaration on the Rights of Peasants and other People Working in Rural Areas (UNDROP) has made the theme particularly topical. The UNDROP is an instrument designed to advance the recognition of human rights with specific relevance for rural communities and to develop locality as a factor contributing to stakeholdership in the international human rights system. Rural local communities consist of both indigenous and non-indigenous people, the legal status of which can be quite different. A practical example used for demonstrating this is the international legal regime governing whaling. The UNDROP has interesting potential with respect to attempts to revise the whaling regime to be more inclusive while benefiting both indigenous and non-indigenous populations involved in small-scale hunting of whales.

The next three articles focus on artificial intelligence and algorithmic decision-making. The article by José-Miguel Bello y Villarino and Ramona Vijeyarasa looks at the risks and advantages of early regulation of Artificial Intelligence (AI) from an international human rights angle. The authors identify a current trend among States to wait rather than proactively regulate. Acknowledging the few notable exceptions (the new EU proposed regulation), the authors draw on well-established international human rights principles to challenge the idea that there is a reasonable or legitimate case to ‘wait and see’. The article presents three examples of AI systems, analysed from the lens of women’s rights, to outline the human rights implications that States will have to grapple with in the coming years with the expansion of the use of AI systems in their jurisdictions. The authors suggest that the absence of regulatory activity in the AI domain can be in itself a violation of international human rights norms, reflecting a state of play where governments have relinquished their obligations to protect, fulfil, and remedy. However, given the limited likelihood that regulatory actions will take place in the short term, the authors alternatively propose, as an immediate step, that the international human rights monitoring framework should systematically seek reporting from States that assesses their readiness to deal with risks for human rights derived from the deployment of AI systems.

In her article, Sue Anne Teo explains that, despite the increasing relevance of artificial intelligence to the field of human rights, the concerns that have arisen in relation to one another have primarily concentrated around infringements of enumerated discrete rights such as the right to privacy, non-discrimination, and freedom of expression and information. Therefore, her article takes a problem-finding perspective and argues that the conceptual foundations of the human rights protection framework are facing serious challenges. To support her claims, the author highlights three main misalignments that inform the conceptual framework of contemporary human rights and challenge the structural enabling conditions for their exercise.

Drawing on the ‘theory of vulnerability’, the article by Zuzanna Godzimirska, Aysel Küçüksu, and Salome Addo Ravn lays out a proposal that permits for the coexistence of efficiency and individual access to the European Court of Human Rights through a hybrid decision-making model. Departing from the premise that solving the Court’s backlog problem necessarily involves a choice between improving its efficiency and shrinking individual access, their proposal combines the strengths of algorithmic decision-making with those of human case-handling to enable the re-introduction of context-sensitive practices around individual access to the Court. The authors hold that better access to human rights courts is in itself a key component of a just human rights system, but procedures need to be context-sensitive and adopted in ways that acknowledge humans’ inherent vulnerability. To support the argument, they draw inspiration from the African Court on Human and Peoples’ Rights, whose current practices help illustrate the point that more equitable access to justice need not be a relic of the past.

In their legal developments’ section article, Martin Lolle Christensen and William Hamilton Byrne argue that there are two potential paths in the future relationship between the African Court on Human and Peoples’ Rights and the European Court of Human Rights. One path is brimming with optimism, where a ‘global community of courts’ engages in judicial dialogue and contributes to global human rights law. A second path has recently emerged in a concurring opinion to the judgment by the European Court to the case ND and NT v Spain which legitimised the pushback of migrants at the frontiers of European territory. Judge Pejchal suggested that the application should have been struck out, as the applicants could have brought their claim to the African Court if they were unsatisfied with the human rights situation in their home country. This takes place in a context of backlash against both Courts in politically fraught areas that divide whole polities, and in a shared experience of waves of migration from Africa to Europe. The article presents the two paths of these regional courts and their potentially intertwining futures. The authors argue that aspirations of unity and the cynicism of insularity are likely to be prominent and overlapping themes in the future of regional human rights courts.

Concluding Remarks

This special issue would not have been possible without the combined efforts of the Editorial Office, including our two assistant editors, Eduardo Sánchez Madrigal and Caroline Zwingelstein. We sincerely congratulate the contributors and thank the peer reviewers for their invaluable support.

The future of human rights is open, as human rights are in a perpetual process of construction and deconstruction to better serve the needs of the society. As pointed out by de Búrca, the human rights project is a dynamic one, activated, shaped, and given its meaning and impact through the ongoing mobilisation of affected populations, groups, and individuals, and through their iterative engagement with an array of domestic and international institutions and processes over time.⁴⁰ The further development of human rights and the human rights project depends on the principled engagement of the various stakeholders, keeping open the dialogue among States, international organisations, civil society, and other important actors, including the voices of the marginalised, and maintaining an adequate balance among the interests of various actors. The ultimate beneficiaries of the human rights project should be individuals, communities, and peoples.

Notes

1 See Kevin G Corley and Dennis A Gioia, ‘Building Theory about Theory Building: What Constitutes a Theoretical Contribution?’ (2011) 36(1) Academy of Management Review 12. On methodological issues, see among others issues 30(3) and 36(4) of the Nordic Journal of Human Rights.

2 See among others David Kennedy, The Dark Sides of Virtue (Princeton University Press 2004); Conor Gearty, Can Human Rights Survive? (Cambridge University Press 2006); Stephen Hopgood, The Endtimes of Human Rights (Cornell University Press 2015); Samuel Moyn, ‘A Powerless Companion: Human Rights in the Age of Neoliberalism’ (2014) 77(4) Law and Contemporary Problems 147.

3 See among others Eric Posner, The Twilight of Human Rights Law (Oxford University Press 2014); Samuel Moyn, Not Enough: Human Rights in an Unequal World (Belknap Press 2018).

4 Nicola Perugini and Neve Gordon, The Human Right to Dominate (Oxford University Press 2015).

5 Raymond John Vincent, Human Rights and International Relations (Cambridge University Press 1986) 16f; Christian Reus-Smit, ‘Human Rights in a Global Ecumene’ (2011) 87(5) International Affairs 1205; Johan Karlsson Schaffer, ‘The Point of the Practice of Human Rights: International Concern or Domestic Empowerment?’ in Reidar Maliks and Johan Karlsson Schaffer (eds), Moral and Political Conceptions of Human Rights: Implications for Theory and Practice (Cambridge University Press 2017).

6 Richard Georgi, “Political Imaginaries Amidst a Peace Deferred. The Politics of Human Rights Activism in the 2016 Colombian Peace Process” (PhD thesis, University of Gothenburg 2021) ch 2.

7 Christof Heyns and Frans Viljoen (eds), The Impact of the United Nations Human Rights Treaties on the Domestic Level (Kluwer Law International/Brill 2002).

8 See among others Micheline Ishay, The History of Human Rights: From Ancient Times to the Globalization Era (University of California Press 2008); Samuel Moyn, The Last Utopia: Human Rights in History (Harvard University Press 2012); Steven LB Jensen, The Making of International Human Rights: The 1960s, Decolonization, and the Reconstruction of Global Values (Cambridge University Press 2016); Alexander Orakhelashvili (ed), Research Handbook on the Theory and History of International Law (Edward Elgar Publishing 2020).

9 For more information see OHCHR, ‘Treaty Body Strengthening’ <www.ohchr.org/en/treaty-bodies/treaty-body-strengthening> accessed 15 May 2022.

10 Steven LB Jensen, Stéphanie Lagoutte and Sébastien Lorion, ‘The Domestic Institutionalisation of Human Rights: An Introduction’ (2019) 37(3) Nordic Journal of Human Rights 165.

11 Mikael Rask Madsen, Pola Cebulak and Micha Wiebusch, ‘Backlash against International Courts: Explaining the Forms and Patterns of Resistance to International Courts’ (2018) 14(2) International Journal of Law in Context 197; Johan Karlsson Schaffer, Andreas Føllesdal and Geir Ulfstein, ‘International Human Rights and the Challenge of Legitimacy’ in Andreas Føllesdal, Johan Karlsson Schaffer and Geir Ulfstein (eds), The Legitimacy of International Human Rights Regimes: Legal, Philosophical and Political Perspectives (Cambridge University Press 2013).

12 Report of the Secretary-General, ‘In Larger Freedom: Towards Development, Security and Human Rights for All’ (26 May 2005) UN Doc A/59/2005/Add3, paras 10–21.

13 ICRC, Appeals 2022 Overview, p 6 <www.icrc.org/en/document/icrc-appeals-operations-2022> accessed 15 May 2022.

14 See statement by Michelle Bachelet, United Nations High Commissioner for Human Rights, ‘Occupied Palestinian Territory’ (25 March 2022) with references to the fourteenth periodic report on the human rights situation in the Occupied Palestinian Territory (A/HRC/49/83) and the second report on Israeli settlements in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan (A/HRC/49/85) <www.ohchr.org/en/statements/2022/03/occupied-palestinian-territory> accessed 15 May 2022. See also Human Rights Committee, Concluding observations on the fifth periodic report of Israel (30 March 2022) UN Doc CCPR/C/ISR/CO/5.

15 ICRC, ‘Global Trends of War and Their Humanitarian Impacts’ (17 October 2018) <www.icrc.org/en/document/global-trends-war-and-their-humanitarian-impacts-0> accessed 15 May 2022.

16 See among others Gentian Zyberi and Jernej Letnar Černič, ‘Transitional Justice Processes and Reconciliation in the Former Yugoslavia: Challenges and Prospects’ (2015) 33(2) Nordic Journal of Human Rights 132; Gentian Zyberi (ed), An Institutional Approach to the Responsibility to Protect (Cambridge University Press 2013); Carola Lingaas, The Concept of Race in International Criminal Law (Routledge 2019).

17 See among others Philip Alston, ‘The Populist Challenge to Human Rights’ (2017) 9(1) Journal of Human Rights Practice 1; Jure Vidmar (ed), European Populism and Human Rights (Brill Nijhoff 2020).

18 Laurent Pech and Kim Lane Scheppele, ‘Illiberalism Within: Rule of Law Backsliding in the EU’ (2017) 19 Cambridge Yearbook of European Legal Studies 3; Carola Lingaas, ‘Judicial Responses to the Migration Crises: The Role of Courts in the Creation of a European Identity’ in Giovanni Carlo Bruno, Fulvio Maria Palombino and Adriana Di Stefano (eds), Migration Issues before International Courts and Tribunals (CNR Edizioni 2019) 5–8 <www.iriss.cnr.it/wp-content/uploads/2020/02/Migration-Issues-before-international-Courts-and-Tribunals-CNR-Edizioni-2019.pdf> accessed 15 May 2022.

19 See, generally, the concluding observations of UN human rights treaty bodies where these shortcomings are identified and recommendations are made to address them. For a scholarly discussion of the case of Nordic states see among others Carola Lingaas, ‘Hate Speech and Racialized Discrimination of the Norwegian Sámi: Legal Responses and Responsibility’ (2021) 8(2) Oslo Law Review 88; Johan Karlsson Schaffer, ‘The Self-Exempting Activist: Sweden and the International Human Rights Regime’ (2020) 38(1) Nordic Journal of Human Rights 40; Malcolm Langford, Aled Dilwyn Fisher, Johan Karlsson Schaffer and Frida Pareus, ‘The View from Elsewhere: Scandinavian Penal Practices and International Critique’ in Peter Scharff Smith and Thomas Ugelvik (eds), Scandinavian Penal History, Culture and Prison Practice (Palgrave Macmillan 2017) 451–79.

20 Amitav Acharya, ‘After Liberal Hegemony: The Advent of a Multiplex World Order’ (2017) 31(3) Ethics & International Affairs 271.

21 World Bank Group, Development Research Center of the State Council, the People’s Republic of China, Four Decades of Poverty Reduction in China Drivers, Insights for the World, and the Way Ahead (International Bank for Reconstruction and Development/The World Bank 2022) viii.

22 William Easterly, ‘The SDGs Should Stand for Senseless, Dreamy, Garbled’ (Foreign Policy, 28 September 2015) <https://foreignpolicy.com/2015/09/28/the-sdgs-are-utopian-and-worthless-mdgs-development-rise-of-the-rest/> accessed 15 May 2022; Jan Vandemoortele, ‘From Simple-Minded MDGs to Muddle-Headed SDGs’ (2018) 5 Development Studies Research 83.

23 Jeffrey D Sachs, Guido Schmidt-Traub and Guillaume Lafortune, ‘Speaking Truth to Power about the SDGs’ (26 August 2020) UN Sustainable Development Solutions Network 3 Working Paper <https://resources.unsdsn.org/speaking-truth-to-power-about-the-sdgs> accessed 15 May 2022.

24 See among others Andreas von Arnauld, Kerstin von der Decken and Mart Susi (eds), The Cambridge Handbook of New Human Rights: Recognition, Novelty, Rhetoric (Cambridge University Press 2020).

25 André Nollkaemper and Laura Burgers, ‘A New Classic in Climate Change Litigation: The Dutch Supreme Court Decision in the Urgenda Case’ (EJIL:Talk !, 6 January 2020) <www.ejiltalk.org/a-new-classic-in-climate-change-litigation-the-dutch-supreme-court-decision-in-the-urgenda-case/> accessed 15 May 2022.

26 David Vetter, ‘Monumental Victory’: Shell Oil Ordered to Limit Emissions in Historic Climate Court Case (Forbes, 26 May 2021) <www.forbes.com/sites/davidrvetter/2021/05/26/shell-oil-verdict-could-trigger-a-wave-of-climate-litigation-against-big-polluters/> accessed 15 May 2022; César Rodríguez-Garavito (ed), Litigating the Climate Emergency: How Human Rights, Courts and Legal Mobilization Can Bolster Climate Action (Cambridge University Press 2022). For a critical discussion, see Jasper Krommendijk, ‘Beyond Urgenda: The Role of the ECHR and Judgments of the ECtHR in Dutch Environmental and Climate Litigation’ (2021) 31(1) Review of European, Comparative & International Environmental Law 1.

27 Kumaravadivel Guruparan and Harriet Moynihan, ‘Climate Change and Human Rights-Based Strategic Litigation’ (2021) Chatham House Briefing paper <www.chathamhouse.org/sites/default/files/2021-11/2021-11-11-climate-change-and-human-rights-litigation-guruparan-et-al.pdf> accessed 15 May 2022; Joana Setzer and Catherine Higham, ‘Global Trends in Climate Change Litigation: 2021 Snapshot’ (2021) Grantham Research Institute on Climate Change and the Environment and Centre for Climate Change Economics and Policy, London School of Economics and Political Science, 6.

28 BVerfG, Beschluss des Ersten Senats vom 24. März 2021 – 1 BvR 2656/18 -, Rn 1-270.

29 Katarina Zimmer, ‘The Human Right that Benefits Nature’ (BBC, 17 March 2021) <www.bbc.com/future/article/20210316-how-the-human-right-to-a-healthy-environment-helps-nature> accessed 15 May 2022.

30 Manuela Nienhaus, ‘Protecting Whose Children? The Rights of Future Generations in the Courts of Germany and Colombia’ (Völkerrechtsblog, 23 March 2022) <https://voelkerrechtsblog.org/protecting-whose-children/> accessed 15 May 2022; Julie Fraser and Laura Henderson, ‘The Human Rights Turn in Climate Change Litigation and Responsibilities of Legal Professionals’ (2022) 40(1) Netherlands Quarterly of Human Rights 3.

31 Carola Lingaas, ‘Wind Farms in Indigenous Areas: The Fosen (Norway) and the Lake Turkana Wind Project (Kenya) Cases’ (Opinio Juris, 15 December 2021) <http://opiniojuris.org/2021/12/15/wind-farms-in-indigenous-areas-the-fosen-norway-and-the-lake-turkana-wind-project-kenya-cases/> accessed 15 May 2022.

32 IACtHR, Indigenous Maya Kaqchikel Peoples of Sumpango and others v Guatemala (Merits) [2021] Series C No 440; see also Monica Coc Magnusson and Avexnim Cojti, ‘Inter-American Court of Human Rights Affirms Indigenous Peoples’ Right to Freedom of Expression in Guatemala’ (Cultural Survival 20 December 2021) <www.culturalsurvival.org/news/inter-american-court-human-rights-affirms-indigenous-peoples-right-freedom-expression> accessed 15 May 2022.

33 Indigenous Maya Kaqchikel Peoples of Sumpango (n 32) §156.

34 Barbara Oomen and Moritz Baumgärtel, ‘Frontier Cities: The Rise of Local Authorities as an Opportunity for International Human Rights Law’ (2018) 29(2) European Journal of International Law 607.

35 Katharine Fortin, The Accountability of Armed Groups under Human Rights Law (Oxford University Press 2017); Tilman Rodenhäuser, Organizing Rebellion: Non-State Armed Groups under International Humanitarian Law, Human Rights Law, and International Criminal Law (Oxford University Press 2018).

36 Eleanor Ainge Roy, ‘New Zealand Gives Mount Taranaki Same Legal Rights as a Person’ The Guardian (London, 22 December 2017) <www.theguardian.com/world/2017/dec/22/new-zealand-gives-mount-taranaki-same-legal-rights-as-a-person> accessed 15 May 2022.

37 Justine Townsend and others ‘Why the First River in Canada to Become a Legal Person Signals a Boom for Indigenous Rights’ (The Narwhal, 11 June 2021) <https://thenarwhal.ca/opinion-muteshekau-shipu-magpie-river-personhood/> accessed 15 April 2022; Kirsta Hessey, ‘How a River in Quebec Won the Right to Be a Legal Person’ (Global News, 2 October 2021) <https://globalnews.ca/news/8230677/river-quebec-legal-person/> accessed 15 May 2022.

38 See among others Molly K Land and Jay D Aronson (eds), New Technologies for Human Rights Law and Practice (Cambridge University Press 2018); Ben Wagner, Matthias C Kettemann and Kilian Vieth (eds), Research Handbook on Human Rights and Digital Technology: Global Politics, Law and International Relations (Edward Elgar Publishing 2019).

39 William Schulz and Sushma Raman, The Coming Good Society (Harvard University Press 2020).

40 Gráinne de Búrca, Reframing Human Rights in a Turbulent Era (Oxford University Press 2021) 3–4.