The States-as-Bystander Effect in Human Rights Law

This paper argues for international legal change in human rights as a consequence of a states-as-bystander effect: When states do neither actively drive or 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, which has 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 also can withstand state opposition.