International Human Rights Law: One Purpose or Many? Reflections on Macklem’s The Sovereignty of Human Rights

Abstract

International human rights law (IHRL) puzzles international lawyers and moral philosophers alike. On the one hand, IHRL does not rest on logic familiar to international lawyers, such as reciprocal obligations between states. It is a body of law created by states, but what it regulates is relationships between states and individuals.1 On the other hand, IHRL has strong affinities with moral philosophy. It claims to protect the fundamental interests of individuals in the form of claim rights against states. Yet, IHRL contains a much longer list of rights than most moral philosophers are willing to justify. It further contains doctrines that are alien to moral philosophical accounts of rights, such as derogable rights and jurisdiction-based responsibility for duty holders. That IHRL shares much in common both with international law and with moral philosophy yet, in some ways, remains distinct from both of them, has been subject to both philosophical and legal theoretical inquiry through the past decade.4 Significant questions have been raised concerning the normative justifiability of IHRL both from philosophical and legal perspectives. Should we interpret IHRL in the light of a moral philosophy of human rights? What explains the discrepancies between moral philosophical accounts of human rights and the practice of IHRL? What is IHRL for? Does the practice of IHRL allow us to make sense of the purpose of IHRL distinct from moral philosophical accounts of IHRL? The Sovereignty of Human Rights5 is an important contribution to these questions, and in particular, to the purposive analysis of IHRL as a legal project distinct from the moral enquiries into human rights qua human rights. What is more, it offers a purposive analysis of a much wider range of IHRL than commonly found in the existing literature. It proposes that a legal account of the purpose of IHRL must go beyond the civil, political, economic, social, and cultural rights of individuals and include minority rights, rights of indigenous peoples, the right to self-determination, the right to development and freedom from poverty. The Sovereignty of Human Rights brings together the latter under an integrated account of the purpose of IHRL by way of assigning a unified purpose to IHRL as a whole: monitoring and seeking to alleviate not only the exercise, but also the distributive effects of the allocation of sovereignty in the international legal order. This article, part of the Symposium on Macklem’s The Sovereignty of Human Rights, has two aims. First, it seeks to reflect on the central argument of The Sovereignty of Human Rights that the legal purpose of IHRL is to monitor the exercise and distribution of sovereignty in the international legal order with a specific focus on the normative methodological underpinnings of this argument. Second, it turns to the implications of this central argument for understanding the purpose of legal minority rights as developed in Chapter 5, holding that minority rights foremost aim to monitor the distribution of the allocation of sovereignty in the international legal order.