Expansionism and the Sources of International Human Rights Law
17 Pages Posted: 29 Mar 2016
Date Written: March 28, 2016
This article discusses the abundant scholarship and practice on the sources of IHRL with a view to showing that legal argumentation on the sources of IHRL is built on the coexistence of exceptionalist claims – whereby sources of IHRL are said to depart from general international law – and generalist claims – whereby sources of IHRL are said to be anchored in general international law. It is argued that this intrinsic ambivalence of the scholarship and practice pertaining to the sources of IHRL is informed by the fundamental expansionist nature of IHRL. The argument is thus made that the constant oscillation between exceptionalism and generalism in the scholarship and practice pertaining to the sources of IHRL can be traced back to the expansionism that lies at the heart of IHRL. This article is an attempt to shed light on the various expansionist uses of the sources of international law.
This article starts by outlining how IHRL scholarship and practice are built on interdependent claims of exceptionalism and generalism and discusses the ambivalence according to which IHRL is meant to be both autonomous from general international law but still part of it (section 1). It proceeds with showing how this ambivalence serves an expansionist project (section 2). This expansionist project is then further examined in relation to the sources of IHRL and the various expansionist uses of sources are discussed (section 3). In a fourth section, the relative successes of such expansionist uses of the sources are mentioned, as well as some of the paradoxes that they bring about (section 4). The article ends with a few concluding remarks (section 5).
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