Human rights overreach?

Abstract

Current and future challenges are in need of an effective human rights response. In ensuring this, the question can be asked whether there is such a thing as human rights overreach, and if so, what must be done about it. This contribution deals with this question by, first, outlining various forms of human rights proliferation. For example, proliferation can take the shape of expanding the scope of rights or inventing new human rights. It then illuminates several lines of criticism that can be found in the literature. These concern issues of legalisation and of judicialisation, as well as the indeterminacy of rights. The articles that together form this Special Issue deal with aspects of proliferation and (potential) overreach from different and original angles. After introducing these, it is concluded that the overreach question is even more complex than it seems and requires careful consideration if we want to make human rights more effective and more resilient.

1. INTRODUCTION

For over more than a decade now, we have witnessed evidence of what has been called a backlash against human rights. For example, such a backlash became visible in the heavy discussions in response to judgments of the European Court of Human Rights (ECtHR or Court) on prisoners’ voting rights and crucifixes in classrooms. ¹ In the UK, an ‘exit’ from the European Convention on Human Rights (ECHR) has been called for multiple times, and structural criticism has been voiced in other States as well. ²

More generally, authoritarian governments and leaders contribute to the worrisome trend of democratic backsliding, while populists make human rights a suspect category associated with the protection of elites or others who are said to be non-deserving. ³ Very recently, Russia was expelled from the Council of Europe (CoE) in view of its committing of grave violations of the CoE's Statute. This is arguably another result of the backlash against human rights, which constitutes an inevitable step backwards for the people in Russia and for a united and peaceful Europe. ⁴

Of course, the backlash against human rights attracts the attention of human rights experts, scholars, and activists. We recognise and condemn the harm done to our shared values and analyse underlying shifts towards authoritarianism as well as populist trends. A different way of approaching backlash, however, is asking whether the expanding body of human rights – and the way professionals deal with it – is itself part of the problem. ⁵ This perspective too deserves thorough scholarly attention.

Human rights have proliferated significantly, and for understandable reasons as we will explain below. Protection has been extended into new fields and for new groups against new addressees. Yet it is to be asked whether this comes at a price. Does proliferation lead to inflation of rights, in the sense that the more human rights we have, the less we can guarantee their effective realisation?

In any case, it is clear that most human rights are neither absolute nor do they always come with clear-cut obligations. This has been amply illustrated during the Covid-19 pandemic, in which freedoms were severely restricted while socio-economic rights such as the right to health provided reason for action, but no clear guidelines on how to act. At the same time, the pandemic has served as a reminder of the importance of human rights. In times of crisis, even the most trusted governments might be tempted to restrict rights to a greater extent and for a longer period than can be considered necessary and proportional. Others, in turn, might wish to protect economic interests at the expense of our most fundamental (social) rights.

The pandemic will not be the last large-scale crisis we will be confronted with. Indeed, the beginning of 2022 has been marked by a horrific war and humanitarian crisis, while also the climate crisis looms large. In light of this, fundamental constitutional and international human rights have by no means become redundant. Rather, it may be asked how they should be adapted and interpreted to also serve us in the times to come.

The idea for this Special Issue developed from the discussion on human rights ‘going too far’. How can we value this claim, and should we be more critical when it comes to the recognition of new human rights norms or the stretching of existing ones? Asking this question runs the risk of being misunderstood as undermining the extensive protection offered by human rights. In fact, the opposite can be true as well: discussing potential overreach of human rights may eventually contribute to ensuring these rights’ effectiveness against the background of current challenges.

During a workshop we organised in the summer of 2020, a diverse group of human rights scholars presented their papers on the topic of ‘Human rights overreach?’. A selection of papers was reworked into articles, which ended up in this Special Issue. The remainder of this introduction serves to set the scene for the various contributions. What exactly is proliferation of rights and what forms does it take? What points of criticism can be distilled from the existing literature and how do the papers of this Special Issue relate to them? At the end of this introduction, we draw a few cautious conclusions.

2. PROLIFERATION AND ITS MANY FORMS

‘Proliferation’, which is used here in a non-pejorative sense, may take many forms. First, there is a growing tendency to recognise new human rights. Second, we witness an increasing trend to frame political struggle in the language of human rights. Third, existing rights are often interpreted in an extensive way. Fourth, human rights may also be understood extensively to justify certain geopolitical interests and the use of force. The overall assessment of this tendency of proliferation is ambiguous and calls for a more thorough analysis of the effects of each form of proliferation in detail.

2.1. Recognising new human rights

A first form of proliferation concerns the recognition of new human rights norms that move beyond the protection of humans and may also involve new addressees. Iconic examples are the rights of mother earth as recognised by courts in Ecuador and Bolivia, ⁶ and the rights of rivers as recognised amongst others by courts in Colombia, New Zealand and Bangladesh. ⁷ These developments are often summarised as a development towards ‘Rights of Nature’ in a broader sense. ⁸ Recently, the UN Human Rights Council for the first time recognised a clean, healthy, and sustainable environment as a human right. ⁹ Viewed from a strategic perspective, human rights in the context of environmental protection express a growing discontent with the political measures taken in response to the increasing climate challenge.

Another illustration of the invention of new human rights is the claim for human rights of animals. ¹⁰ The focus of these claims is less on compensating legislative failure, but rather on giving voice to actors who do not have the ability to raise their interests themselves. In addition, the claim for human rights of animals comes with a strong ethical claim that animals should be treated with equal dignity and that the anthropocentric worldview is inherently misguided.

Finally, there are not only claims for new human rights, but also for a recognition of new duty-bearers. This is a trend we have witnessed predominantly in the context of ‘business and human rights’. The recognition of new addressees of human rights obligations here reacts not only to the strong power asymmetries between transnational companies and local workers, but also to the complexity of global production chains and the difficulty of States to regulate business activities across borders. ¹¹

2.2. Framing political struggles in the language of human rights

A second expression of human rights proliferation is the growing number of political struggles now being expressed in the language of human rights. A powerful example are struggles about social inequality. Austerity, social security, and labour relations have long been primarily an issue of political struggle despite there being an extensive list of social and economic rights in the International Covenant on Social, Economic and Cultural Rights (ICESCR) since 1966. In the Global South, socio-economic rights have played an important role in addressing deeply entrenched social inequality. ¹² More specifically, these rights have often been used to claim collective interests rather than merely individual rights. A case in point is the increasing relevance of socio-economic rights to ensure effective access to health care and other public services also for indigenous people. ¹³ Human rights here serve as a language to give voice and standing to actors that have long been marginalised and neglected in public discourse.

In the Global North, socio-economic rights were only of limited relevance for a long time. Labour relations in particular gained attention as a matter of individual human rights only relatively late. It was especially during the global financial crisis, which began in 2008, that socio-economic rights and labour rights were prominently invoked also in the Global North to confront the pressure and dynamic of ‘economic emergency’ and prevent pay cuts as well as far reaching liberalisation of labour relations. ¹⁴ Corroborating political claims with human rights in this context served as a powerful tool to challenge the dominance of the ‘there-is-no-alternative’-rhetoric. As such, these claims can be understood as a reaction to the increasing power of private actors combined with a weakening position of the formerly interventionist State in effectively regulating power relations. Currently, we see this happening in relation to the field of housing in the context of commodification. ¹⁵

More recently, human rights have likewise been used to address conflicts about climate change. A famous example is the Urgenda saga before the Dutch courts, in which an effective reduction of carbon dioxide emissions was framed as a State obligation resulting from the human right to life (Article 2 ECHR) and to private life (Article 8 ECHR). ¹⁶ The linking of human rights to these constellations, while frequently criticised, ¹⁷ can be understood as an attempt to compensate legislative failure in regulating private action, in particular the actions of large multi-national enterprises, in a way so as to ensure the long term protection of the conditions of human life. In this sense, human rights are again used as a tool to mitigate the powerful lobby of global companies and – again – to counterbalance arguments of economic necessity.

2.3. Extensive interpretation of human rights’ scope and State obligations

Third, rights proliferate in the sense that existing norms are given a broad – for instance purposive or indivisible – interpretation. Examples include the extensive interpretation of the protection of property and private life, particularly, but not exclusively, in the jurisprudence of the ECtHR. ¹⁸ Property has been interpreted by the ECtHR to comprise a whole range of issues, including social security benefits, ¹⁹ company shares, ²⁰ and trademarks. ²¹ Such an extensive interpretation can be seen as linked to the growth of State apparatus, including a strong welfare State, necessitating new forms of protection against State intervention.

Another example of a broad interpretation of civil rights norms is the case-law of the ECtHR on the right to private and family life (Article 8 ECHR). Here, the Court used a civil rights norm to ensure social protection of which the guarantee is otherwise lacking in the ECHR. Housing issues especially, such as the protection against cancellation of tenancy or eviction, have been dealt with by the Court under Article 8 ECHR. ²² Likewise, the Court considered issues of environmental health to fall under Article 8 ECHR. ²³ While the ECHR does not contain an explicit right to health, the Court has derived positive State obligations to provide adequate health care both from the right to life and the right to privacy. This includes an obligation to have in place regulations compelling both public and private hospitals to adopt appropriate measures for the protection of their patients’ physical integrity. ²⁴ Thus, social protection is ensured through extensive interpretations of civil rights norms.

Article 8 ECHR has also been interpreted broadly in its civil rights dimension. Over the years, the Court has extended the protection of family life to same-sex couples. ²⁵ While not obliging States to introduce same-sex marriage, the Court still found an emerging consensus among European States towards the recognition of same-sex couples. ²⁶ The Court also found that the right to abortion for reasons of health or wellbeing falls within the scope of Article 8 ECHR. ²⁷ More generally speaking, reproductive rights, including the decision to become or not to become a parent, have been interpreted to form part of the right to private life under the ECHR. ²⁸

The extensive interpretation of the scope of human rights also has potential downsides, however. Most notably, a broad scope of application often correlates with large State discretion when it comes to proportionality review. In the context of international human rights protection, this often implies a large margin of appreciation for national legislators. As a consequence, international courts may limit themselves to a mere reasonability test regarding the proportionality review undertaken by national courts or just apply a procedural form of review by asking whether domestic authorities have done a balancing exercise at all. ²⁹ While such a deferential stance does not necessarily imply that human rights review does not have sufficient bite, it at least bears some risk of resulting in too lenient an approach towards national legislators.

Human rights courts, however, have not only expanded the personal and material scope of human rights – thereby recognising new beneficiaries – but have also created new obligations. The protection against non-refoulement as developed both in the jurisprudence of the ECtHR as well as in the case law of the Human Rights Committee, serves as a case in point. According to the ECtHR, the prohibition of torture and inhuman and degrading treatment also implies prohibition to deport any person to a place where they would face such treatment. ³⁰ Likewise, States need to refrain from deportation if this would endanger a person's life and physical integrity. ³¹ The Court has even decided that the expectation of flagrant violations of the right to fair trial can trigger protection against refoulement. ³² At the international level, the Human Rights Committee (HRC) has recently decided that protection of the right to life may also include the prohibition of refoulement where the conditions for life are destroyed due to the effects of climate change. ³³ This resonates with an entire body of case-law produced by UN treaty bodies on protection against refoulement. Both the HRC and the Committee on the Rights of the Child have long recognised such protection if a person's life is endangered or if a well-founded fear of inhuman and degrading treatment or torture can be established. ³⁴ Proliferation in this sense can be understood as a tool to ensure universal protection and hold States responsible for their actions even where the human rights violation only materialised beyond their territory.

The case-law on the prohibition of non-refoulement also reflects another more general issue of broad human rights interpretation, namely the expansion of the territorial scope of human rights. Extraterritorial human rights obligations have become a core topic of recent human rights discourse, ³⁵ not least due to the increasing interdependence of States in a globalised world and the increasing cross-border effects of State action. This includes a diverse range of issues, such as the responsibilities of States for the actions of their military and intelligence service abroad, cross-border environmental effects, and States’ responsibilities for the actions of private businesses abroad. In the case of protection of non-refoulement, the issue of extraterritorial application is gaining relevance not least due to the fact that States are increasingly externalising border protection by creating buffer zones and cooperating with third parties or private actors. ³⁶ In their case-law on extraterritorial obligations, both the ECtHR and the HRC have acknowledged a responsibility of State parties for extraterritorial activities whenever they exercise ‘effective control’. ³⁷ The exact limits of this jurisprudence remain contested, in particular in the context of non-refoulement where States are inventing ever new forms of outsourcing their border control and ‘push-back’ activities. In any event, a broad interpretation of the territorial scope of application of human rights may likewise be considered a form of proliferation. Extensive human rights interpretation here reacts both to new modes of governance and attempts by governments to actively circumvent their responsibility for human rights protection.

While extensive interpretation of human rights is often advocated by non-governmental organisations and triggered by strategic litigation, it is in the end the result of judicial interpretation by courts or UN supervisory bodies. Human rights proliferation is therefore typically associated with stronger courts. Potential overreach therefore also refers to issues of separation of powers and thus a form of institutional overreach. ³⁸

2.4. Human rights as a justification (or pretext) for intervention

Finally, we also witness instances of enforcement overreach where human rights provide the justification (or pretext) for military or other forms of intervention. NATO's intervention in Kosovo in 1998 illustrates such an instrumental use of human rights. International law still does not recognise mass violations of human rights as a justification for unilateral intervention. The primacy of collective answers to mass violations and threats to peace, together with the very limited exception of self-defence under Article 51 of the UN Charter, prohibit unilateral use of force even where human rights are massively violated. In the course of NATO's intervention in Kosovo, a number of States nevertheless invoked the concept of a ‘humanitarian intervention’ and tried to establish it as an additional exception to the general prohibition of the use of force. ³⁹

Likewise, it has been argued in legal scholarship that the continuing use of force in the fight against the Islamic State in the Middle East can be justified as a ‘humanitarian intervention’. ⁴⁰ The UK government has officially justified its intervention in Syria on the basis of a ‘humanitarian intervention’. ⁴¹ Proponents of this concept argue that massive violations of human rights require imminent action even where no political consensus among the permanent member of the Security Council can be achieved due to contradicting strategic interests. ⁴² Critics however not only stress the extraordinary value of a system of collective security to protect both sovereignty and peace, ⁴³ but also see the danger of human rights being abused for the realisation of geopolitical interests. ⁴⁴ Some scholars even argue that the increasing use of humanitarian considerations has led to an erosion of the prohibition of the use of force, which facilitated the recent Russian invasion of Ukraine. ⁴⁵ While there are of course notable differences from previous references to ‘humanitarian concerns’, it can hardly be denied that the introduction of such a concept opens the door for every powerful State to use human rights as a pretext for military action.

3. THE OVERREACH QUESTION

In view of the many forms of proliferation it can be argued that human rights’ omnipresence strengthens the case for implementation and often expands protection to those persons and situations previously marginalised and overlooked. Certain forms of proliferation may be seen as a reaction to an ever-weaker position of the State in particular areas in effectively regulating power relations and limiting the power of some particularly powerful private actors. At the same time, there seems to be a risk that proliferation impedes human rights’ effectiveness or even dilutes their content given the dangers involved in proceduralisation of control and a too lenient approach towards domestic legislators.

Proliferation may even contribute to a devaluation of human rights. This can be the case where human rights are taken less seriously by those expected to guarantee them due to the fact that human rights now seem to be everywhere rather than limited to a specified group of interests. In an effort to expand their benefits and effects, human rights could then arguably lose part of the normative force they are praised for. These often contradictory or ambiguous considerations regarding the value and effect of different forms of human rights proliferation are also reflected in academic discourses about an alleged human rights overreach. Some of the lines of criticism could already be distilled from the discussion of proliferation above. In this section, we attempt to summarise the various concerns under four headings.

3.1. Sovereignty concerns

Picking up on where we ended the previous section, one set of overreach concerns can be summarised as ‘sovereignty concerns’. As explained there, bringing into the picture human rights in the context of ‘humanitarian interventions’ can form the starting point for powerful States to unilaterally infringe on the sovereignty of another State. While grave human rights violations can arguably form a good reason for doing so, this comes at the risk of misusing human rights for realising geopolitical interests as well as of endangering peace. It is argued in this respect that ‘international human rights law as a whole (…) appears to have expanded and changed international law in ways that have made it weaker, less likely to generate compliance, and more likely to produce interstate friction and conflict’. ⁴⁶ Also in current times, the challenges related to the protection of human rights against the background of the prohibition of the use of force are particularly relevant. ⁴⁷ However, as the articles published in this issue do not concern this particular form of (possible) overreach, we will not deal with it in more detail here.

3.2. Legalisation and de-politicisation

The second category relevant here is that of criticism that centers on the problematic features of what can be called ‘legalisation’ and the accompanying alleged de-politicisation of a broad range of issues generally considered to be part of the political domain. Rather than merely framing political struggles in the language of rights, this point is concerned with the actual codification of new rights or the extension of the protective scope of existing constitutional or human rights norms to include new aspects. In this respect, Tasioulas has argued ‘that it is better to resist the idea that there is a conceptual nexus between human rights morality and human rights law’; a pragmatic constraint here relates to whether human rights law ‘will actually work to bring about increased compliance with human rights morality or whether it will be, instead, neutral or even counterproductive in its effect or in some way excessively damaging to other values’. ⁴⁸ Membership of (new) human rights treaties, besides positive effects, is also said to lead to ‘backsliding’ ⁴⁹ and a ‘race to the middle’ meaning high-performing States can be dragged down. ⁵⁰ Also, ‘proclaiming too many new norms without ensuring that meaningful consensus exits within all regions of the world can be problematic’. ⁵¹

Legalisation is also criticised for resulting in increasing the power of courts, including international human rights courts and semi-judicial actors, which rely on the (scope of) rights norms for delineating their sphere of influence. Rights are often seen as the special province of courts, although this means they get a large say in determining the content of provisions that are generally abstract and open-ended. ⁵² Yet, as indicated previously, a broad scope and an extensive list of rights also tend to come with significant room for maneuver for legislators and executives (and national courts). More concretely, proportionality review does not always entail that a judicial body itself balances all the relevant interest to come up with ‘the best’ solution. In this respect, legalisation can still go hand in hand with a deferential or otherwise fitting role for courts as opposed to other (national) branches.

Even if that is the case, however, legalisation can be seen to entail a kind of closure by ‘fixating’ discussions through the use of the label of rights. ⁵³ Where law and politics are often presented as primarily opposing concepts, codification and other forms of legalisation are seen as removing certain issues from the political sphere. In the words of Frankenberg: ‘On the one hand, the claim of human rights law to neutrality underscores its legitimacy. On the other hand, this very neutrality—based on legal formalisation in abstract and universal terms, recognised in court as entitlements, and implemented, and their violations remedied depending on the inherent command—masks the political power at play in legislation and application’. ⁵⁴

Whereas it may seem an a priori good thing to label the things we consider important as belonging to the sphere of rights, there are also risks involved here. In the literature, it is argued that legalisation may perpetuate existing structures rather than opening up space for political decisions that might effectively transform social realities. The ‘mainstreaming’ of human rights can hence not be considered unproblematic. ⁵⁵ If political possibility is conceptualised in a human rights vocabulary, this may leave some concerns unaddressed that do not easily translate into human rights terms. It can also come at the cost of political representation, while human rights ‘may highlight the position of lawyers and litigation at the cost of other types of knowledge and practice’. ⁵⁶

At the same time, it must be acknowledged that listing something as a human right does not imply that no room for politics is left. ⁵⁷ In fact, it might not only draw attention to structural exclusions, but also open up new opportunities to politicise an issue and discuss political alternatives. This point, however, is often overshadowed by the impression that courts have the ‘final say’ and that its interpretations are carved in stone the moment a judgment is rendered. Moreover, it neglects the fact that claiming human rights is often accompanied by campaigns for raising political awareness.

3.3. Indeterminacy

And this brings us to the third, related point. It is argued that the proliferation of rights increases the indeterminacy of what these rights require, and that this is problematic. This point is often made in relation to the emancipation of socio-economic rights and positive dimensions of civil and political rights. But also ‘classical’ civil and political rights, rather than simply requiring non-interference, often come with obligations that are hard, if not impossible, to determine a priori or apart from the context of a specific State or situation. These obligations can be determined only by taking into account the other interests at stake, or the conflicting fundamental rights concerned. An illustrative example is the many conflicts dealt with in terms of rights between privacy rights and reputation concerns on the one hand, and the freedom of expression on the other.

Indeed, the fact that where many and broad rights exist, there is an increased chance of rights conflicting with one another, exacerbates this point. As mentioned in the introduction, the pandemic forms a good example of a crisis in which rights protection formed a central concern, but where constitutional and human rights at the same time were unable to provide clear guidance. Yes, the State has an obligation to take the necessary measures to protect the right to life, ensure access to health care, and make sure that interferences with fundamental freedoms do not go further – and continue longer – than is necessary. But knowing this does not provide any magical solution to the dilemmas in place.

As is well known, determining what rights in a concrete situation require is often considered a matter of proportionality, or reasonableness. And although this provides decision-makers with an important starting point, it may also generate a significant role for courts to determine whether an action or omission by State authorities was suitable and necessary to achieve a legitimate aim and, moreover, proportional in the strict sense. Yet, notwithstanding its worldwide success, there is an ongoing discussion on whether this standard is objective enough. Can it actually rationalise the courts’ decision-making, or is it merely ‘the best’ option we have to date, albeit not a perfect one? ⁵⁸

One other specific variant of the indeterminacy critique is worth mentioning here as well. It is argued that (especially social and ‘collective’) rights merely define aspirations in the sense that they cannot or are not likely to be complied with, at least not anytime soon. ⁵⁹ Socio-economic rights such as those enshrined in the ICESCR must indeed be realised progressively, meaning that full compliance is not expected on the spot. At the same time, it is hard to determine what ‘full realisation’ means, yet it is clear that not every State will manage to achieve this. Is this another example of the watering down of the power of rights or, and this is claimed to be the case, is it simply another illustration of legal norms being indeterminate almost by definition? ⁶⁰ Arguably, in this respect, we must judge the effectiveness of human rights not by looking at whether they are fully realised, but rather at how far we have come given where we started. ⁶¹ Socio-economic rights at least require steps to be taken, as well as non-retrogression (or at least that necessary steps back meet criteria such as non-discrimination and temporariness). The question of whether rights are too indeterminate could in this regard be replaced by the question whether rights discourse and codification have led to progress that would otherwise not have been made. ⁶² Of course, this is notoriously hard to determine, but one's stance on the indeterminacy critique does seem related to whether one believes this is at least possible.

3.4. Judicialisation

In discussing criticisms related to legalisation and indeterminacy, mention was already made of the role of courts. This aspect deservers separate attention, however, as legalisation and indeterminacy concerns can exist without any evidence of judicialisation or role for courts in the first place. In turn, judicialisation can occur in the context of already existing rights and treaties, and may not only be considered problematic when rights are particularly vague or aspirational.

Whereas rendering rights justiciable is often perceived as progress, it is fair to ask whether doing so increases rights effectiveness. Even apart from that, constraints can be recognised related to for example lacking expertise, the fact that not everyone has equal access to court, the problem of waning legitimacy because of its taking on of lawmaking tasks, which moreover underlines the lack of democratic legitimacy of courts. But even leaving these points aside, according to Tasioulas, ‘there is still the more diffuse point that the vitality of the human rights ethos in a democratic society will be sapped by human rights matters being systematically decided in court proceedings rather than through ordinary democratic political contestation’. ⁶³

In the end, often the concerns about judicialisation and institutional overreach boil down to the point that the separation of power is in danger. Yet this only holds true if the separation of powers or trias politica is defined in a way that does not allow a role for courts adjudicating – a wide array of – rights. Our understanding of a separation or balance of powers is changing constantly, and not least due to the strong administrative States that have developed over the past decades. At the same time, due to privatisation, the role of big tech and other developments, State powers are not the only powers influencing our lives on a daily basis. In any case, the political decision-making process does not always live up to its promise. Especially also if we add to this the fact that the State may also fail to take action due to a focus on short-term (political) interests or apathy, for example in the area of climate change measures. It may also marginalise certain interests due to entrenched power imbalances. The political decision-making process can hence be in need of more ‘counterweight’ in the form of judicial (rights) review. Finally, also doubts regarding courts’ expertise and their capability to ‘make law’ depend on how exactly a court gives shape to it adjudicatory role. Besides strong forms of review, there are weaker ones requiring an interference with a right to be reasonable or rational, or ones that primarily focus on procedural requirements. That it is courts that give detailed content to vague rights norms open to multiple interpretations, thereby assuming a lawmaking role, is an idea that has only little to do with reality.

4. THE CONTRIBUTIONS AND HOW THEY FIT IN

The contributions in this special issue seek to shed light on specific constellations of human rights proliferation and to analyse the doctrinal challenges and inconsistencies ensuing from these forms of proliferation. At the same time the authors – to a varied extent – also aim to address some of the major lines of criticism voiced regarding human rights overreach.

Verena Kahl's contribution primarily deals with questions of legalisation. It does so by addressing one of the most iconic examples of human rights proliferation in the sense of creating new human rights, namely the codification of a human right to climate protection. Kahl makes a strong argument in favour of establishing such a new right rather than achieving climate protection through a broad interpretation of existing human rights. Expanding the interpretation of existing human rights involves significant challenges and risks, as Kahl's analysis demonstrates. Amongst others, questions of causality and attribution of human rights violations will evolve and standing will be an issue as the consequences of climate change will only play out in the future. What is more, according to Kahl, the lack of a codified, separate right to climate protection, could increase the indeterminacy of the standards set: when protection is based on a variety of other human rights, there is a serious risk of developing incoherent or even arbitrary standards for the respective climate change constellations. Instead, a newly established human right to climate protection would allow to develop coherent standards for similar situations. In addition, she argues that agreeing upon a new right would increase the legitimacy and acceptance of human rights litigation in the context of climate change. Unlike a merely ethical and rhetorical ‘rights talk’ that could undermine the credibility of human rights, it provides a solid legal basis for human rights claims in the context of climate protection.

Viljam Engström, Mikaela Heikkilä & Maija Mustaniemi-Laakso deal in their contribution with 'vulnerabilisation’ as a very specific phenomenon of broad human rights interpretation. The authors argue in their contribution that the establishment of special protection regimes within human rights law and the extending, expansion, and specification of the scope of existing norms has resulted in a process of ‘vulnerabilisation’ in international protection. This example of legalisation, taking the form of creating new categories of human rights protection by way of interpretation allows, on the one hand, to better protect those most in need. On the other hand, as the authors argue, it bears a risk of justifying new forms of exclusion. Moreover, vulnerabilisation may also lead to further compartmentalisation and potential instrumentalisation of human rights protection. It might therefore also be detrimental to the coherence of human rights protection more generally.

Lieneke Slingenberg's contribution focuses on social rights and mobility rights of migrants, which in European human rights law are both limited in their scope of application to persons lawfully in the territory. Her contribution is concerned with the uneven application of broad interpretation depending on the content of the human right at issue. Slingenberg analyses case law by European courts and treaty bodies in response to claims for a broad interpretation of lawfulness or in favour of exceptions to this limitation. Her contribution reveals that European courts and treaty bodies have significantly expanded the personal scope of social rights and/or the material scope of civil rights into the social realm. However, they have refrained from doing so as regards mobility rights. Slingenberg posits that these findings nuance the general idea that civil rights are privileged over social rights, especially when it comes to judicial review by courts. Moreover, they also mitigate concerns about human rights ‘proliferation’ or ‘overreach’, which have played a particularly prominent role in the discussions about migrants’ social rights.

Anuscheh Farahat's paper also critically engages with allegations of human rights overreach in the context of the treatment of migrants, but focuses rather on rights protection at the border. Farahat suggests advancing and defending a more political understanding of human rights by admitting that the constant struggle about the concretisation of human rights is always and necessarily political. Addressing the link between legalisation and politics she thus argues that despite the issues’ political dimension, the formalism of legal methodology allows distinguishing methodologically acceptable arguments from non-legal considerations. Farahat analyses different strategies applied by courts in reacting to increasing political pressure in the field of migrant protection and assesses in how far they can be defended methodologically. She suggests that courts should deal with the immense pressure by relying on a more transparent reasoning, including the use of dissents as a tool to highlight alternative interpretations and identify tendencies of regression. At the same time, she argues, migration law scholarship should strive to clarify the doctrinal limits of regressive human rights interpretation. Farahat concludes by showing that the accusation of a human rights argument being politically motivated is unfounded in light of the inherently political dimension of any vision and interpretation of human rights, and often only masks the political intention of those who raise the allegation.

Finally, David McGrogan's article adds to existing literature asserting human rights overreach by identifying the ‘anti-individual’ in modern human rights practice. Relying on the work of Michael Oakshott, he argues that the contemporary human rights movement is informed by a vision of morality as something that is to be imposed on populations from above for their own good, rather than something that inheres within each individual and is contingent on free choice. According to McGrogan, this gives effect to a fundamentally managerial approach, meaning that international human rights law now largely manifests itself in obligations imposed on States to coordinate societies towards benevolent ends. While the author recognises that this derives from good motives, his concern is that it also means that the human rights movement for the most part buttresses an aggrandisement of the State that will happen regardless. He concludes that this places modern human rights law on the side of a creeping paternalistic ‘soft despotism’ – a development that the author himself regrets.

5. SOME CONCLUDING REMARKS

In this introduction, we have aimed to shed some light on the topic of potential human rights overreach. In doing so, we have identified several forms of human rights proliferation as well as several lines of criticism. Besides sovereignty concerns, legalisation, indeterminacy of rights, and judicialisation raise questions concerning the room left for political struggle and democratic decision-making, and the possible power creep by unelected courts.

After outlining the criticism found in the literature, the five articles constituting this Special Issue were introduced. And what by now already has become clear, is the following. Our delineation of a number of forms of proliferation and criticisms thereof suggests that the overreach debate and its object are relatively straightforward. That they are characterised by a distinction between those believing in the power of human rights norms and an accompanying role for courts, and those who think that law and politics should not overlap too much, and are generally rather skeptical when it comes to the capacities of courts. Yet the topic of overreach turns out to be much more complex than that.

First, the overreach question is arguably as polycentric as some of the rights disputes it concerns. For example, as the contributions by Kahl and Slingenberg show, aspects of proliferation and (potential) overreach cannot be viewed in isolation. The question is not merely whether we need a separate right to climate protection, but what the pros and cons of such a right would be as opposed to the alternative ways climate change finds its place in human rights discourse and doctrine. Also, in answering the question whether the protection of social rights of migrants goes ‘too far’, attention must also be had to the scope of other norms, such as mobility rights. Proliferation and its effects take shape in the context of an intricate web of – constantly changing – norms and facts, which means that definite conclusions are hard to reach.

Second, complexity also surfaces if we zoom in on what might at first glance be considered ‘solutions’ to potential overreach. One such solution could be the focus on the most deserving, that is vulnerable groups and individuals. But as the contribution of Engström, Heikkilä, and Mustaniemi-Laakso shows, ’vulnerabilisation’ can come with downsides too. The same goes for the 'managerial’ interpretation of human rights showcased in McGrogan's contribution, the excess of which can also be phrased in terms of overreach. Another example is courts trying not to fuel ‘the ‘populist’ charge that human rights are the plaything of ‘elites’ who deploy them as trump cards in order to short-circuit the democratic process whenever it suits their interests to do so, ⁶⁴ and opt for procedural types of review, which might still be criticised by those who argue that setting procedural standards goes beyond the proper task of the court.

Finally, trying to address negative effects of proliferation and preventing – where possible – overreach is an ambiguous task for courts, as the article by Farahat illustrates. Either way courts try to react to increasing State pressure, whether by showing deference or by resistance, they risk contributing to undermining the legitimacy of human rights. This illustrates how much the legitimacy and acceptance of human rights as an inherently political project also depends on the combined efforts of legal actors, political branches, and civil society.

The articles of this Special Issue have illuminated and illustrated forms of proliferation and risks of overreach. And while they may have complicated the discussion rather than disentangled it, in this way this Special Issue has hopefully inspired new questions and projects. The rights challenges we face in the years and decades to come, certainly would merit them.