Human Rights Justifications: Uses and Abuses

Authors: Maria Grahn-Farley, Leeds Law School & Ester Herlin-Karnell, University of Gothenburg

Human Rights Day: Why an annual review of our global human rights remains essential to ensuring they are protected? What does it mean to have a human right? The universality of human rights is one of the greatest international law achievements in the post-war area. As Rainer Forst explains it, “every human being has a right to justification and must not be subjected to domination” (Forst 2012). 

In the aftermath of the horrors of the Second World War, there was a widespread belief in the need for a new set of internationally recognized protections for individuals against harm inflicted by their states (Beitz 2009). The human rights system is built on one premise that human rights are to protect individual persons against the abuse of the state. The Universal Declaration of Human Rights 1948 set out fundamental human rights to be universally protected. The Declaration was signed on 10th December 1948, that is 74 years ago. This day is now honored as Human Rights Day and remembered every day on the 10th of December. In short, the message of the Declaration is that human rights are rights, all humans have by virtue of their humanity (Waldron 2015). 

While most human rights theories regard the state as necessary for the proper protection of human rights, there is less research on the practices of justifications and abuses of human rights by states. Unfortunately, the picture of human rights looks bleak with regard to state practices around the world despite the Declaration on the universality of human rights. Specifically, internal domestic forces often affect which human rights states choose to accept, and the specific manner states use to express their support of human rights. While democratic backsliding is a challenge and a threat in many democracies across the globe, it seems important to empirically evaluate the link between human rights and democracy, not only concerning how to transform authoritarian states into democracies but rather how to preserve democratic states, democratic through human rights. In a recent Horizon 2022 project HRJust funded by the EU Commission, we seek to answer the question – How do states use human rights in defense or justification of their actions and what is the empirical link between human rights and democracy? This seems important for legal debates on human rights protection in constitutionalism, as the rule of law is often depicted to go hand in hand with human rights and democracy. It is also important as a link between the rich theoretical literature on human rights practices (Corradetti 2022, Etinson 2018) and possible abuses of such practices.

With the ongoing war in Ukraine, and human rights abuses around the world, climate change to name of few of the current global challenges, we may ask what does human rights protection hold for the future? While this is indeed a very broad question, HRJust includes at least five comparative studies: Finland, India, Sweden, Taiwan, and Ukraine selected because civil society in these countries (although the states are largely different in terms of democratic and institutional matters) are confronted by national, regional or global expansionist ambitions about human rights and in relation to other countries. Human rights in this context seem to gain a dual meaning of both protecting the individual from state abuse and risk becoming a legitimizing tool for authoritarian government ambitions. The project aims to develop a framework for how to strengthen individual human rights protection while at the same time preventing states from legitimizing abuses of human rights language. 

In conclusion, Human Rights Day still matters, not because of what human rights have failed to achieve but because of what the very idea of a human right entails and still holds true, and should force states to critically reflect – even if only once a year – on how they could do a much better job and thereby realize rights in practice.

For more on this topic, browse the curated collection of content on Springer Nature’s Human Rights Day 2022 campaign page.

About the Author

Maria Grahn-Farley, Professor of Law, Leeds Law School, UK, Consortium Coordinator HRJust, Horizon 2022. She holds a S.J.D. and  LL.M from Harvard Law School, USA, and LL.M. from Gothenburg University, Sweden.  Professor Grahn-Farley\'s book on the Child Rights Convention won the academic book award of 2019. Professor Grahn-Farley has published in the areas of Critical Race Theory, Feminist Legal Theory, Postcolonial Theory, Child Rights, International Law and Critical Legal Theory. 

Ester Herlin-Karnell, Professor of EU Law, University of Gothenburg, WP3 coordinator, HRJust, Horizon 2022. She holds degrees from Oxford University (DPhil), King’s College London (LLM) and Stockholm University (LLM). Her recent publications include The Public Uses of Coercion and Force from Constitutionalism to War (co-edited with E Rossi, Oxford University Press 2021), The Constitutional Structure of Europe’s Area of “Freedom, Security and Justice ” and the Right to Justification (Hart publishing 2019), Constitutionalism Justified  - Rainer Forst in Discourse (co-edited with M Klatt, Oxford University Press 2020).

¹HRJust (EU Horizon grant nr 101094346), hosted at the University of Gothenburg.