McCall-Smith: Human Rights Treaty Bodies, Proceduralization and the Development of Human Rights Jus Commune

Kasey L McCall-Smith (Univ. of Edinburgh - Law) has posted Human Rights Treaty Bodies, Proceduralization and the Development of Human Rights Jus Commune. Here's the abstract:

The obligations set out in UN human rights treaties are open-textured and evolutionary, therefore they present a particular challenge in articulating the basis of a substantive breach that is universally applicable. Universal applicability, however, is a primary goal of international human rights and fundamental to the recognition of a jus commune of human rights. As the specialist supervisory mechanisms of the core UN human rights treaties, the human rights treaty bodies must balance the progressive realisation of rights against the historic state sensitivity to interference in domestic affairs, an exercise that has often put the treaty bodies at odds with states. Review of treaty body jurisprudence suggests that migration toward a procedural approach to human rights violations may resonate more naturally with states due to the simplicity of establishing procedural infractions. This observation stems from examining how treaty body jurisprudence is utilised in national judicial decisions. It is argued that proceduralized decisions aid in the establishment of human rights jus commune by slowly moving away from value-based determinations, a practice that sits more easily with States. This migration is reflected in two identifiable practices. The first sees states in breach of obligations based on the failure to adhere to rules of procedure or procedural obligations under a treaty. The second bases a breach determination on the procedural dimension of a substantive right. The lingering question is whether this is a positive development in the overall protection of human rights and how this impacts the growing common law of human rights. An examination of treaty body jurisprudence across the UN treaty bodies will allow the proceduralization of human rights at the international level to be evaluated in terms of individual human rights protection. The tedious balance that must be maintained in order to advance the human rights jus commune should be evaluated from a universal perspective to assess whether proceduralization of rights adds to or detracts from the overall human rights project.