29 January 2021

The Post-Backlash Human Rights Law

There is an increasing wave of states around the world that are dissatisfied with global human rights institutions and NGOs. A recent PhD thesis by Sanja Dragić investigates both the effects of this trend on international law and the narratives of the opposing states and international human rights community that are happening in the background. 

How did you come to choose your research topic?

I guess the choice of topic and ideas we have are framed by our previous experience and knowledge. In my case, it came from personal experience of working as a human rights lawyer in Serbia. It was always a puzzle for me to figure out “how international human rights law changes domestic orders”. The choice of backlash, as a phenomenon that goes against the change of the domestic system, was simply part of this longstanding interest of mine. While researching “how human rights work”, I noticed a substantial and continuously increasing amount of states that are rejecting human rights institutions and NGOs. I wanted to look deeper into the phenomenon and its effects on international law.

Can you describe your thesis questions and methodology?

As with any research, writing the thesis was truly an intellectual journey. It involved several steps that needed to be clarified before I was able to formulate my main questions. I started by asking a simple question of “what is human rights backlash?”. After being satisfied with the provided definition, the next step was to explore the effects of this social phenomenon on international human rights law. There, I noticed that it can influence the creation of new norms that I call “post-backlash human rights law”. At this point, I was finally at the stage of being able to explore narratives that are present before a new norm appears. My questions were then, What are the justifications put forward by the opposing states and how is the international human rights community responding? What are the interests, values, and motivations present in the process? Finally, what can the interactions between these two constituencies tell us about the “post-backlash human rights law”?

In order to be able to enquire into the narratives of the two sides, I have selected three post-backlash norms to serve as case studies: rules governing reservations and withdrawals from human rights treaties; the right of civil society to foreign funding as part of the right to freedom of association; and finally, the norm of immunity of senior state officials as envisaged in the Malabo Protocol. I carefully studied a number of legal documents that immediately preceded the creation, or initiation of the creation, of these norms. These include, among others, letters of withdrawal from major human rights treaties, decisions of human rights courts and bodies, a report of the UN Special Rapporteur, debates before the UN bodies, etc.

What are your major findings?

From my perspective, the post-backlash human rights law examined in this thesis in its process of creation has some reoccurring regularities. There is a tendency on the part of the international human rights community not to engage with the arguments raised by the opposing states. I further notice that the international human rights community tends to frame its response to the backlash in the language of the protection of humanity. Nevertheless, these two steps have not resulted in a more “humane” law but in a tendency to create, or initiate the creation of, a law that is essentially augmenting the power of the global human rights structure. Surprisingly, I have also noticed that there is a substantial amount of conflation between human rights and the institutions that are in charge of their protection. Sometimes, rules that are regulating institutions are made under the cover of substantive human rights. Nonetheless, I feel that if we are to preserve the legitimacy of human rights, we need to keep a clear difference between rights and institutions, a difference analogous to the one between religion and the church.

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

One of the probably more controversial choices that I have made in the thesis is to give a platform to the opposing states, even to the ones termed “authoritarian”, and actually hear what they were saying. The phenomenon of backlash keeps augmenting, and international law has a role to play in it. It is the tool that is both targeted and used to respond to the backlash. I hope that by painting the picture of the “post-backlash law” from several perspectives I am also shedding new light on the law that has been made as a reaction to the backlash. And not only the law, but, importantly, on the process and the way we international lawyers are interacting with the states that are rebelling. Perhaps some of the reasons put forward by the opposing states, in particular when they reoccur, might make the international human rights community reconsider its way of responding to the backlash.

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Sanja Dragić defended her PhD thesis in International Law in October 2020. Professor Andrea Bianchi presided the committee, which included Professor Vincent Chetail, thesis supervisor, and Professor Sarah Nouwen, Department of Law, European University Institute, Florence, Italy.

Full citation of the PhD thesis:
Dragić, Sanja. “Into the Post-Backlash Human Rights Law.” PhD thesis, Graduate Institute of International and Development Studies, Geneva, 2021.

For access, please contact Dr Dragić.

Editing by Nathalie Tanner, Research Office.
Banner picture: excerpt from an image by Sinan Kocak/