Deontology, Functionality and Scope in the Sovereignty of Human Rights

Abstract

This is a commentary on Prof. Patrick Macklem’s recent book, The Sovereignty of Human Rights (SHR). It provides several inter-related critiques of SHR. The first relates to the blurred lines between deontology and functionality in the thesis of SHR and the lack of defining benchmarks – normative, empirical or otherwise - for the 'adversity' or 'harmfulness' of the consequences of sovereignty as derived from international law, in a way that works against the claim of distance from either politics or morality. At a higher level of generality, the book's theory is not necessarily restricted to international human rights law, but could be (counterintuitively and even provocatively) recast as a theory of public international law more pervasively, or - more subversively - a reverse ‘merger and acquisition’ of public international law by international human rights law. Finally, the review considers the roles, positive and negative, that a functionally positivist theory of international human rights such as presented in SHR may play in the current anti-internationalist geopolitical and legal environment, in which elements of a ‘backlash’ against legalized human rights and global governance are rampant.