Decentered Construction of Global Rights: Lessons from the Human Right to Water

• In Event: Comparative Legal Mobilization

Abstract

In this paper we argue that the development of a global right should not be understood solely as a unidirectional pattern of international development by global legal elites, and a subsequent top-down vernacularization; or as a process of norm development in the global center, with subsequent diffusion to the periphery; or as subaltern resistance from below; or even as a linear diffusion process of any sort, whether coming from the global north or the global south, that spreads a legal rule from one place to another in a traceable way. The development of a global “right” will, in fact, have elements of all of these, but it will also go beyond them, allowing for multiple, uncoordinated, processes of norm creation coming out of myriad norm-creating spaces, only loosely informed by the meanings invested in the norms by other actors in other spaces. These processes will be animated and held together by a common element that defines them—a shared felt human need, like the need for freedom to express one’s identity, or the need for dignified labor; or even a shared need for a particular good or service, like health care, or, in the case that we examine here, for water. But the demands surrounding this common element will often be radically different in different contexts, as social actors mobilize to infuse the right with the meaning it requires to reach and meet their own felt needs. The final outcome—whose conception of the norm dominates, the possibilities and limitations of the norms, the bindingness of the norms in different arenas—is indeterminate. In this sense, the creation of a right is, in socio-legal terms, the creation of a shell into which different actors pour meaning, in response to the dynamics of their economic, social, and political environment.

Authors

• Daniel M. Brinks, University of Texas at Austin

• Bruce M. Wilson, University of Central Florida