E Pluribus Unum – Bhinneka Tunggal Ika? Universal Human Rights and the Fragmentation of International Law

Dialogues on Human Rights and Legal Pluralism, René Provost & Colleen Sheppard, eds., Springer 2012

29 Pages Posted: 18 Jan 2013

See all articles by Carlos Iván Fuentes

Carlos Iván Fuentes

United Nations - Office of Legal Affairs; Centre for Human Rights & Legal Pluralism, McGill University

Rene Provost

McGill University - Faculty of Law

Samuel G. Walker

McGill University - Faculty of Law

Date Written: January 17, 2012

Abstract

The adoption of the Universal Declaration of Human Rights (UDHR) by the United Nations General Assembly in 1948 has been presented as a global embrace of human rights, reflecting an international community united in a coherent statement of its aspiration to protect the fundamental rights and freedoms of every individual and, to some extent, groups. The UDHR is now commonly seen as having achieved customary status, and thus applicable to every state. To what extent does this signal the existence of a unified human rights regime under international law? Does a finding that the human rights regime is fragmented necessarily lead to the conclusion that it cannot be considered universal? We will argue that universality and unity represent distinct conceptual propositions, the first relating to a normative claim, the second to a structural relation. A pluralistic understanding of universality, far from an oxymoron, offers a model in which regime fragmentation actually sustains universal values in a manner more effective than a unified regime grounded in nowhere in particular, if not nowhere at all. The essay first recalls the story of the emergence of human rights into positive international law, underscoring the extent to which it became an ideological battlefield between East and West, all the while excluding a significant portion of the world’s population still subsumed by vast colonial empires. Beyond the UDHR, human rights regimes began to materialize at different speeds in various regions, without any assured uniformity in the guarantees thus entrenched, a phenomenon which was actually supported by the UN. In a second section, the debate regarding the fragmentation of international law is presented, including the reasons which triggered the International Law Commission (ILC) to appoint a working group on the subject and the main conclusions reached by the ILC. The doctrinal discussion regarding fragmentation is then related directly to the field of human rights, to assess the extent to which factors such as the emergence of discrete regimes and the multiplication of institutions have had an impact on the unity of international human rights law. Finally, in a third section, the essay questions the conceptual relationship which can be said to exist between universality (rather than unity) of human rights and the fragmentation of that regime. Relying on a legal pluralist critique of international law, the essay challenges the normative assumptions underlying the concept of universality, to ultimately question whether it is possible and indeed desirable that the universal human rights regime be unfragmented.

Keywords: law, human, rights, universality, unity, fragmentation

Suggested Citation

Fuentes, Carlos Iván and Provost, René and Walker, Samuel G., E Pluribus Unum – Bhinneka Tunggal Ika? Universal Human Rights and the Fragmentation of International Law (January 17, 2012). Dialogues on Human Rights and Legal Pluralism, René Provost & Colleen Sheppard, eds., Springer 2012, Available at SSRN: https://ssrn.com/abstract=2202474

Carlos Iván Fuentes

United Nations - Office of Legal Affairs ( email )

United States

Centre for Human Rights & Legal Pluralism, McGill University ( email )

3644 Peel Street
Montreal H3A 1W9, Quebec H3A 1W9
Canada

HOME PAGE: http://www.mcgill.ca/humanrights

René Provost (Contact Author)

McGill University - Faculty of Law ( email )

3644 Peel Street
Montreal H3A 1W9, Quebec H3A 1W9
Canada

Samuel G. Walker

McGill University - Faculty of Law ( email )

3644 Peel Street
Montreal H3A 1W9, Quebec H3A 1W9
Canada

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