It has become increasingly difficult to persuade States to adopt new international human rights treaties at the universal level, for a variety of political, institutional and resource reasons. In recent campaigns for the elaboration of new United Nations conventions on violence against women and on the human rights of older persons, some advocates have supported their call by arguing that current international law suffers from a ‘normative gap’ that needs to be filled by a new binding instrument, The argument is assumed to be powerful in itself – more law is posited as a solution to the absence of law and is presumed to contribute in practice to the better enjoyment of the human rights concerned. The argument is also seen as strategically pre-emptive of the counter-argument by States that the problem is not a shortage of relevant legal standards: what is required is rather more effective implementation of existing norms, not more of them.
Professor Andrew Byrnes' presentation will examine the elusive and malleable concept of a ‘normative gap’ and the argumentative strategies used by advocates for these new conventions. It will consider the problematic implications of relying primarily on this analysis to argue for a new UN treaty on violence against women, and the way in which arguments about the existence of a normative gap have evolved in a different direction in the debate over the need for a new convention on the rights of older persons. It will also provide an assessment of the strategic choices faced by the advocates for these new instruments.
Andrew Byrnes is Professor of Law at the University of New South Wales, Sydney, Australia. He teaches and writes in the fields of public international law, human rights, and international criminal/humanitarian law. His work includes publications on women’s human rights, gender and human rights, national human rights institutions, economic and social rights, peoples' tribunals and international law, and the incorporation of human rights in domestic law. He was President of the Australian and New Zealand Society of International Law from 2009 to 2013 and external legal adviser to the Australian Parliamentary Joint Committee on Human Rights from 2012-2014. He is also a member of the NSW Bar Association’s Human Rights Committee. He was involved in the drafting of the CEDAW Optional Protocol, the Convention on the Rights of Persons with Disabilities, and is working with the Asia Pacific Forum of National Human Rights Institutions as an adviser in the current UN General Assembly discussions on a possible new international instrument on the human rights of older persons.