Friday, September 6, 2013

Padmanabhan: The Human Rights Justification for Consent

Vijay M. Padmanabhan (Vanderbilt Univ. - Law) has posted The Human Rights Justification for Consent (University of Pennsylvania Journal of International Law, forthcoming). Here's the abstract:

A range of actors have advocated and implemented changes in how international human rights law is made and interpreted to reduce a State’s control over the content of its human rights obligations. Such efforts are premised on the view that State consent is an impediment to development of human rights. This article argues, however, that State consent is essential to the protection of the human right of self-determination, a right which guarantees people collective control over their political, economic, social and cultural development. Thus, efforts to expand international human rights without State consent themselves infringe upon a human right.

Because consent is essential to protecting the right to self-determination, efforts to limit State consent must be undertaken consistently with the traditional methodology for adjudicating rights competitions: proportionality analysis. Proportionality requires that limitations upon self-determination be based upon a human rights rationale that is proportionate to the restriction in question. Advocates for diminishing the role of State consent in human rights lawmaking have not conducted this analysis.

Proportionality analysis reveals the need to develop additional human rights rationales that support restrictions on self-determination. It also reveals the need to modulate restrictions on self-determination to better match the rationales proffered.