[New publication] Private international law and the making of human rights
Published 12 August 2024
In his latest article, ‘A New History for Human Rights: Conflict of Laws as Adjacent Possibility’, published recently in the Journal of the History of International Law, Asser researcher León Castellanos-Jankiewicz highlights conflict of laws as a crucial yet overlooked foundation of international human rights law.
The article opens with the following quote by the late Karen Knop: 'Private international law can sometimes be more cosmopolitan than public law, and in illuminating ways.' Castellanos-Jankiewicz takes this statement as his starting point to rethink the emergence of human rights.
The adjacent possible
In his article, Castellanos-Jankiewicz argues that private international law was generative of human rights by using the theory of the adjacent possible (TAP). Theoretical biologist Stuart Kauffman originally put forward the idea of adjacent possibility in the 1990s to describe evolutionary potential in the biosphere.
TAP refers to all the elements outside but near a certain system which provide that organism with opportunities to expand and can themselves become system components. This means that the incremental interaction of existing things can lead to unpredictable paths towards new ideas and structures, thus reinventing the present we know.
Using TAP as a theoretical metaphor, Castellanos-Jankiewicz argues that private international law in the nineteenth century together with ethno-nationalism, state-based codification, and transnational expertise networks allowed for international human rights law to flourish. The article follows the discursive moves of conflict scholars to trace the epistemic adjacency between private international law and human rights.
Overcoming disciplinary boundaries
According to Castellanos-Jankiewicz, the application of TAP’s combinatorial model to international law breaks new ground: 'Today, it is not self-evident to write about public and private international law in the same register because their research methodologies are subfield-specific. As a result, public and private international lawyers are not really in conversation anymore, despite sharing epistemic origins and contemporary challenges. TAP helped me overcome these disciplinary boundaries, and gave me a theoretical vocabulary to spell out what would have otherwise remained within the realm of intuition.'
For Castellanos-Jankiewicz, TAP’s open-endedness can also bridge theoretical stances to better understand knowledge production in the field: 'International law academics today are expected to be ‘doctrinal’, ‘critical’, ‘quantitative’, and so on. This segmentation is understandable to a degree, but moulding research methods to particular schools of thought has siloed many academic communities from each other. I hope this article will change that.'
How human rights law emerged
In his article, Castellanos-Jankiewicz shows that private international law was chosen as the solution to a distinct set of problems at a time when humanitarian discourse was readily available but was not embraced. More specifically, he refers to legal predicaments following the Bolshevik Revolution.
When Russians fled towards Western Europe in 1917, they were stripped of their citizenship. How could their rights and status be established then? Law and policy experts responded with tools of private international law, and their proposals formed a new baseline of standards that had a striking resemblance to what we now perceive as non-derogable human rights. Conflict of laws stabilised personal rights across borders while allowing for a degree of deference to national law, which opened pathways for future adaptations to universal human rights.
Looking at this event, the importance of private international law to international human rights law could not be clearer and has contemporary implications. Current re-evaluations of private international law show its potential in human rights litigation, particularly in ensuring access to justice through conflict of laws, which pertains to the resolution of problems resulting from the diversity of private law systems.
Read the full article with open access here.
About León Castellanos-Jankiewicz
Dr León Castellanos-Jankiewicz is a senior researcher in International Law at the Asser Institute and Supervisor of the International Law Clinic on Access to Justice for Gun Violence at the University of Amsterdam Faculty of Law. He is currently part of the research strand “In the Public Interest: Accountability of the State and the Prosecution of Crimes.”
Read more
[Publication] Overlooking continuity: National minorities and ‘timeless’ human rights
In the book chapter ‘Overlooking Continuity: National Minorities and ‘Timeless’ Human Rights’, Asser Institute researcher León Castellanos-Jankiewicz critiques the dominant approach to national minorities in human rights discourse. The author argues that this approach fails to account for the ways in which historical and social contexts shape the experiences of national minorities and their struggles for rights. Read more
[Symposium] Decolonisation and human rights – the Dutch case
The Verfassungsblog-Asser Institute symposium, 'Decolonisation and human rights - the Dutch case', was led by Asser Researcher León Castellanos-Jankiewicz and Wiebe Hommes (University of Amsterdam). The symposium deals with the complicated relationship between decolonisation and human rights. Focusing on the Dutch colonial past, it engages with the ongoing legacies of colonialism to examine human rights both as a language of critique and as a constitutive part of the imperial legacy. Read more
Asser at the 2019 ASIL Annual Meeting
Asser researcher Dr León Castellanos-Jankiewicz attended the 2019 American Society of International Law’s (ASIL) annual meeting to receive the inaugural David D. Caron Prize. He was awarded the prize for his paper entitled ‘Nationality, Alienage and Early International Rights’ at the ASIL 2018 Research Forum in Los Angeles, California. Read more
