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ABSTRACT
This article interrogates the processes and politics of standard setting in human rights. It traces the history of the human rights project and critically explores how the norms of the human rights movement have been created. This article looks at how those norms are made, who makes them, and why. It focuses attention on the deficits of the international order, and how that order-which is defined by multiple asymmetries-determines the norms and the purposes they serve. It identifies areas for further norm development and concludes that norm-creating processes must be inclusive and participatory to garner legitimacy across various divides.
I. INTRODUCTION
In the past decade, the thinking has been that international action on human rights should move from setting legal standards to the implementation of existing standards. The usefulness of some new standards has been questioned, and there is evidence that disenchantment is growing. At its simplest, the issue is that treaty making in the area of human rights has, in some ways, become complicated, and even in cases where a text is adopted, there is no guarantee that the treaty is effective. Both governments and nongovernmental organizations (NGOs) are divided over the value of undertaking negotiations on new texts. Recent negotiations on particular standards-for example, the Optional Protocols to the Convention on the Rights of the Child and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment-show that some states are reluctant to support new standards, even when ratification is optional.
This article examines the nature and recent evolution of international human rights standard setting processes. It analyzes the effectiveness of those processes, the role of different actors within those processes, and seeks to identify possible new avenues in standard setting. It also seeks to understand the processes involved in standard setting and draws lessons through the examination of different standards and their contexts. The aim is to provide analysis, guidance, and fresh thinking to human rights experts and human rights NGOs that seek to initiate or advocate for new human rights standards and officials in inter-governmental and governmental organizations that are involved in standard setting processes.
The article specifically examines the history and genesis of four cases where standards have been recently drafted or amended: the Optional...