Work

States as bystanders of legal change: Alternative paths for the human rights to water and sanitation in international law

Year: 2023

Type: article

Abstract: This article argues for international legal change in human rights as a consequence of a states-as-bystander effect: When states do neither actively drive nor block change processes, and alternative state-empowered authorities exist in a legal field, states’ position at the sidelines opens a path for non-state actors to enact substantive change. In human rights law, this is a process they route through General Comments, a powerful instrument of the human rights treaty bodies to set, expand, and redefine standards for global human rights. This article bears its core argument of a states-as-bystander effect by taking a single norm, the necessity of water for human life, and tracing its change process from non-existent in human rights law, to a non-right, to a condition for other rights, and, finally, to the recognition of water and sanitation as independent rights at the international level. Ultimately, the analysis shows that non-actors can enact change to law, and do so, on the heels of states’ relegation to the periphery of the human rights system. This opened the door for certain actors – transnational coalitions of expert body members, human rights advocates and issue professionals – to use General Comments in a way that not only impacts international legal change but can also withstand state opposition.

Source: Leiden Journal of International Law

DOI: 10.1017/s0922156523000535

Author: Nina Reiners

Institution: University of Oslo

Language: English

Topic: Water Resources and Governance

Subfield: Law

Field: Social Sciences

Domain: Social Sciences

SDGs: Peace, justice, and strong institutions, Clean water and sanitation

Open Access status: hybrid

Estimated APC paid: $3,255