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In recent years, the United States has appeared before four different treaty bodies to defend its human rights record. The process is part of the human rights enforcement structure: each of the major universal treaties has an expert body that reviews and comments on compliance reports that states must periodically submit. What's striking about the treaty bodies' dialogues with the United States is not that they criticized it or disagreed with it on the content of certain substantive rules. (That was all expected.) It's the extent to which the two sides talked past each other. Each presumed a different set of secondary rules – rules governing how and by whom human rights law may be made, applied, and enforced – so their arguments on substance appeared irresolvable.

The lack of consensus on the applicable secondary rules strains the human rights system. First, it inhibits the system's capacity to specify substantive rules of conduct. Without defining the processes for making law and distinguishing it from mere aspirations, the system cannot resolve what the law requires. Second, the lack of consensus breeds dissidence within the system, as international actors regularly invoke and enforce their version of law without acknowledging conflicting versions and without resolution on which version is authoritative. This Essay calls attention to that problem and seeks to initiate a conversation on how best to mitigate it. Throughout, I draw on the jurisprudential insights of my mentor and friend, Professor Michael Reisman. For those and many other insights, I honor him with this Essay.

Two stage-setting notes: First, I focus in this Essay on the secondary rules in human rights law. Human rights law may not be the only international regime with specialized secondary rules, but it probably is unique in the degree to which those rules are contested. Second, the legal process on human rights is extraordinarily complex. In this Essay, I paint with a broad brush, erasing some nuance in order to address the system as a whole. Because I focus on the universal human rights system, I exclude from discussion the various regional ones.


Human Rights Law | Law