09 November 2021

The discursive plasticity of international human rights law

Faced with the heterogeneity of human rights narratives, a recent PhD thesis seeks to understand the form and the boundaries of arguments in international human rights law (IHRL). It asks, What can be said in IHRL and how can it be said? Pedro José Martinez Esponda concludes that, in the argumentative practice of human rights, rhetoric overrides legality. It matters more to prove the plausibility of an argument in terms of individual autonomy, equal capabilities, or democratic procedure, than to get the strictly legal aspects of a claim right.

How did you come to choose your research topic?

I am – and have been for a long while – intrigued by the question of legal validity and the authoritativeness of arguments in law. What makes us feel constrained by a legal rule? In the case of national law, one can always point to a police car and say, “That’s why.” But in the case of international law, and IHRL even more so, authority is almost entirely discursive. Actors follow it not because they risk physically being forced to, but because they experience a much more subtle and ideational form of deference. Finding out where this deference stems from in human rights was the initial aim of this project. 

Now, in the years prior to starting the PhD at the Institute, I had the opportunity of working for UNHCR and OHCHR both in Mexico and in Geneva. These experiences marked me deeply. In dealing with governments, activists and businesses, it became clear to me that international human rights are followed – or pretended to be followed – because they are discursively powerful. In contrast to other fields of international law, actors in IHRL seldom contest the content of a rule or pretend that they are not bound by it. Instead, they do everything they can to show that they agree with human rights and that they follow them, even if in practice they commit mass violations.

This speaks volumes of the authority of human rights in our times: IHRL embodies a great deal of the political morality that the twentieth century generated – a morality that powerfully constrains what can be done and said in contemporary international relations. In that sense, human rights are the perfect place to start an inquiry on the discursive power of international law, and the idea of discursive plasticity allows us to understand how this discursive power is put in to action in practice. 

Can you describe your thesis questions and the methodology you use to approach those questions?

My thesis begins with an observation: the practice of IHRL is exceptionally heterogenous. Even if the legal rules on which they are based tend to be short and reiterative, arguments of international human rights take all sorts of shapes. They construe legal categories in contrasting and sometimes contradicting ways, they use thresholds that privilege this or that interpretation, and they stand on greatly diverse sources of legal and moral worth. In this context, it seems pertinent to inquire how this diversity is created and what its limits are. How is textual homogeneity transformed into discursive heterogeneity? What is persuasive and authoritative in IHRL? Where does a human rights argument stop being a human rights argument? These are the core inquiries of this thesis.

In order to attempt to answer these questions, I use the concept of discursive plasticity. This is the methodological key of my work. The idea is that legal argumentation in general, and in IHRL in particular, needs to comply with certain legal and rhetorical expectations in order to persuade its audiences. These expectations constitute in each subfield of IHRL a core of mainstream understandings that actors then narratively stretch according to their beliefs, interests, institutional baring, and so on and so forth. The concept of discursive plasticity thus seeks to provide an analytical lens with which to assess the shaping of arguments and the simultaneous attempt to comply with the field’s expectations. 

With this in mind, my thesis uses comparative methodology throughout five case studies in order to assess the diversity of human rights arguments, first by zooming in and then by zooming out. The zooming in consists of an analysis of three narratives in each case study around an issue area of IHRL: climate change and human rights, the limits of freedom of expression vis-à-vis freedom of religion, non-discrimination, the right to privacy in the digital space, and the right to food. The zooming out seeks to observe commonalities among narratives and issue areas, so as to see how legal and rhetorical stretches evidence recurring practices and common rhetorical cores.

What are your major findings?

The first major finding of my work is that arguments in IHRL tend to be more heterogeneous in their legal dimension than in their rhetorical dimension. Actors make use of non-IHRL elements in their arguments, they assimilate non-legal considerations into their reading of the law, and they play with over- and underemphases, all resulting in legal arguments that fluctuate considerably. Crucially, though, the analysis showed that these variations at the level of legality tended to be a function of the rhetorical articulation of the narratives. That is to say, that stretches in the way of construing the legal aspects of an argument had the effect of making the rhetorical dimension of narratives more compelling.

More importantly, perhaps, the comparative analysis yielded a series of recurrent ideas – or topoi, as referred to in the thesis – on which the plausibility of human rights argumentation rests. The most important ones seen in the sample were individual autonomy, equal capabilities, and democratic procedure. This, it seems, is the rhetorical core of IHRL. Yet other topoi emerged in the case studies, defying the boundaries of the notion of justice in human rights. These were community identity and environmentalism. IHRL therefore seems to be grounded on a mixture of liberal and egalitarian values, largely inherited from the twentieth century but not wholly closed to alternative sources of worth. 

Can you give us a concrete illustration of this phenomenon, using for example one of your case studies? 

Feminist human rights activism is a great example. Starting perhaps with Charlotte Bunch, feminists have navigated masterfully the discursive plasticity of IHRL. Chapter 6 of my thesis deals with this. One of the documents analysed in it, namely a report on the right of women to food in Colombia by FIAN, makes the claim that, while most Colombian women can be said to have access to nutrition in a strict sense, this access is subject to several forms of gender discrimination that in fact disempower them and subject their access to food to burdens that men do not face. The traditional logic of material wellbeing that underlies the right to food is thereby inverted by FIAN to make it one of individual autonomy. The right to food becomes a right to feed oneself, instead of just a right to access food. This shows how the rhetorical dimension of human rights can be shaped narratively to give way to innovative and powerful legal arguments. 

What could be the social and political implications of your thesis?

My work seeks to expose the worth and the power of IHRL in our contemporary world. It spells out, on the basis of empirical and textual analysis, what human rights are and how they are used nowadays. It therefore provides the basis for a discussion on the liberal, egalitarian, and democratic underpinnings of this field and its legal operation. This inevitably leads to questioning whether IHRL, as a global project of justice, is suited for the challenges of the twenty-first century or not. 

What are you doing now?

I am very happy to continue my collaboration – now as a postdoc researcher – with the Paths of International Law project, an effort led by Professor Nico Krisch and Ezgi Yildiz at the Global Governance Centre. In addition, for personal reasons I recently established in Algeria, which I hope can be the basis on which I can join academic efforts on international and constitutional law in the region and in the whole of Africa. I am very excited to begin this new phase. 

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Pedro José Martinez Esponda defended his PhD thesis in International Law in October 2021. Professor Nico Krisch presided the committee, which included Professor Andrew Clapham, thesis director, and Professor Başak Çalı, Hertie School of Governance, Germany.

Citation of the PhD thesis:
Martinez Esponda, Pedro José. “The Plasticity of International Human Rights: A Comparative Analysis of the Processes of Discourse Formation in IHRL.” PhD thesis, Graduate Institute of International and Development Studies, Geneva, 2021.
For access, contact Dr Martinez.

Banner picture: excerpt from an illustration by Francisca Salomon in FIAN, Cooking Up Political Agendas: A Feminist Guide on the Right to Food and Nutrition for Women in Rural Areas, 2020.
Interview by Nathalie Tanner, Research Office.