Sovereignty Of Human Rights Research Articles

The Sovereignty of Human Rights

A primary purpose of a human rights theory is to provide a foundation from which the actual and complete nature of human rights can be gleaned. Particularly for rights that are controversial or do not enjoy widespread consensus, a human rights theory provides a system for understanding what rights exist or should exist and what rights contain or should contain. The most predominant theories of human rights are based in law, politics and morality. Patrick Macklem's The Sovereignty of Human Rights proposes a new theory of human rights devised to bypass the shortcomings of those predominant theories. He argues that sovereignty is a better foundation for understanding human rights because sovereignty and its distribution in the international legal order has given rise to the need for certain rights to exist. The exercise of sovereign power by individuals also influences how human rights are implemented within state borders. He maintains that understanding the adverse effects of sovereignty and its distribution yields greater insight than other theories into why human rights exist, what they contain, and how they should be implemented.Following a brief summary of Macklem's argument, the review examines how his theory compares with the predominant theories of human rights, particularly in light of the shortcomings of those theories. The review outlines Macklem's position that the adverse effects of sovereignty can clarify the international community's understanding of why human rights are necessary and what forms of protection they include. The review then examines how Macklem's theory corresponds with traditional classifications of human rights, which depict such rights in terms of generations. Finally, the review concludes with reflections on the theory and poses new questions raised by Macklem's theory of human rights.

INTRODUCING PATRICK MACKLEM, THE SOVEREIGNTY OF HUMAN RIGHTS: FOUR CONTEXTS

In offering an account of international human rights internal to public international law, Patrick Macklem’s The Sovereignty of Human Rights explicitly takes back international human rights from both moral and political theory. A number of the contributions to this UTLJ symposium on Macklem’s book speak to this context by questioning his positivist definition of law. To grasp the originality and ingenuity of Macklem’s account more fully, however, several contexts unstated in the book are essential. The second context identified and contested in the symposium is the contrast with current trends in legal thought that either meld international human rights with their domestic counterparts or dissolve them into transnational law. Other contributions add a third, rights-sceptical context, understanding Macklem’s account of international human rights as also addressed to critiques that human rights leave underlying structural injustices in place. The book’s revolutionary central claim is that the purpose of international human rights law is to mitigate the adverse effects of the distribution of power by public international law in the form of sovereignty. After distilling these three contexts from the articles in the symposium, this introduction argues that a genealogical reading of The Sovereignty of Human Rights points to temporality and transition as an important supplementary context. In effect, the book’s focus is on redistributions of sovereignty rather than on its distribution at large. The introduction concludes by asking, in this fourth context, what Macklem’s ‘theoretical architecture’ of international human rights might mean for new human rights.

THE SOVEREIGNTY OF INTERNATIONAL LAW?

Patrick Macklem’s The Sovereignty of Human Rights is underpinned by a commitment to explaining the role of human rights law from the ‘inside’ of international law, distinguishing this strictly legal realm from global politics. We explore questions surrounding the ‘inside’ and ‘outside’ of international law by juxtaposing Macklem’s positivist, validity-focused, account and our own ‘interactional’ approach, which embraces the embeddedness of law in social norms and social practices while emphasizing distinctive traits of legality and legal interaction. We argue that a validity-based conception of legality results in a necessarily thin account of the ‘justice’ that human rights can do. Next, we consider Macklem’s focus on collective rights as being central to the role that he argues human rights play in mitigating the distribution and exercise of sovereign power and in legitimating international law’s normative architecture. We assess whether or not international human rights law really plays the legitimating role for international law that Macklem claims it does, given that these rights are subject to a range of limitations built into positive law, such as reservations to treaties, derogation provisions, or substantive limits. Finally, we ask whether human rights serve the distinctive normative function within international law that Macklem accords to them, concluding that several branches and processes of international law shape and restrict sovereignty alongside human rights law.

POSITIVISM AND PRACTICE BEYOND SOVEREIGNTY

This Reply engages with three topics raised in the essays in this special issue on The Sovereignty of Human Rights. The first relates to the book’s enlistment of international legal positivism as a defining feature of what constitutes a human right in international law. The second is the role that practice plays in the account that it offers of the normative mission of human rights in international law – namely, that human rights act as legal instruments that mitigate some of the pathologies associated with how international law organizes global politics into an international legal order. The third inquires into the role that human rights play beyond sovereignty – specifically, in relation to non-state actors such as multinational corporations and international economic institutions.

IS THE PRINCIPAL FUNCTION OF INTERNATIONAL HUMAN RIGHTS LAW TO ADDRESS THE PATHOLOGIES OF INTERNATIONAL LAW? A COMMENT ON PATRICK MACKLEM’S THE SOVEREIGNTY OF HUMAN RIGHTS

I aim to provide a critique of Patrick Macklem’s thesis in The Sovereignty of Human Rights that the function of human rights in international law should be seen ‘in terms of their capacity to monitor the structure and operation of the international legal order … requir[ing] the international legal order to attend to pathologies of its own making.’ I suggest an alternative account that seems to me to be more consistent with much of the practice that he describes, which I rearrange to provide a more convincing narrative. The function of human rights in international law does have the function that Macklem attributes to it, among others, but to claim that this is the function of international human rights law is to underestimate the complexity of human rights as well as their true significance (at least in my view). An analysis of international human rights law must take this complexity into account if a coherent and convincing explanation of the normativity of international human rights law is to stand any chance of being identified.

THE POLITICS OF INTERNATIONAL INDIGENOUS RIGHTS

The Declaration on the Rights of Indigenous Peoples is typically read as an elaboration of classic human rights norms. Patrick Macklem in his book, The Sovereignty of Human Rights, argues that the declaration should instead be read as corrective in that it seeks to address unfair distributions of sovereignty sanctioned by international law. I suggest that instead of being based on a single justificatory model, whether human rights or historical, the declaration contains both models. This interpretative mixed model, as I call it, is based on the political history of the negotiation of the declaration and, in particular, on the advancement of a decolonization model by indigenous peoples of the Northern Anglo-settler states versus the human rights model preferred by indigenous peoples of Latin America, Asia, and Africa.

THE AUTHORITY OF HUMAN RIGHTS

Original and magisterial, Patrick Macklem’s The Sovereignty of Human Rights departs radically from the moral and political conceptions of international human rights law (IHRL) that dominate the literature. Rather than grounding human rights on features of our shared humanity (the moral, orthodox conception) or on their role in global politics (the political conception), Macklem claims that the point and purpose of IHRL is to mitigate the adverse effects produced by the structure and operation of international law itself and, in particular, the adverse effects of its distribution of sovereignty to some entities – states – and not others. In this article, I suggest that Macklem’s mitigation theory succeeds admirably in explaining various international human rights that moral and political theories are hard-pressed to explain, such as collective rights and labour rights. The great virtue of his theory is that it recognizes the potent abuses international law’s distribution of sovereignty makes possible and then calls on IHRL to serve a remedial and legitimating function from within international law itself. Macklem, however, subscribes to a positivist legal theory that is closer to John Austin’s command theory than it is to HLA Hart’s or Joseph Raz’s positivism. As a consequence, Macklem struggles to account for the authority of IHRL. I suggest a friendly amendment that would let Macklem’s theory account for IHRL’s authority. The way forward is through the development of a relational conception of IHRL. This conception trades on a criterion of legitimacy according to which IHRL’s authority is constituted by its capacity to empower legal institutions to speak in the name of, or on behalf of, whomever is subject to them.

The Sovereignty of Human Rights: A Reply to Four Critiques

This essay is a reply to four critiques of the thesis advanced in The Sovereignty of Human Rights, which are to be published in a special issue of the Jerusalem Review of Legal Studies. The first claims that practices associated with human rights in the international arena bear a loose conceptual and methodological relationship to the role that the book ascribes to human rights in international law. The second highlights the practice of actors who circumvent the state to engage directly with multinational corporate human rights abuses, which The Sovereignty of Human Rights fails to treat as salient to the theoretical architecture of international human rights law. The third characterizes the book’s account of the right to development as, at best, an optimistic overstatement of its efficacy and, at worst, a hindrance to development efforts by states at the receiving end of international assistance. The final contribution explores the under-theorized relationship between the book’s thesis and the burgeoning scholarship on global constitutionalism, implicitly suggesting that it underplayed the hand that it dealt itself. Each is addressed in turn.

Positivism and Practice Beyond Sovereignty

This essay is a reply to commentaries on The Sovereignty of Human Rights (New York: Oxford University Press, 2015). Three themes inform the commentaries. Each represents a topic that the book engages with in ways challenged or critiqued in some of these essays. The first relates to its enlistment of international legal positivism as a defining feature of what constitutes a human right in international law. The second is the role that practice plays in the account that I offer of the normative mission of human rights in international law – namely, that human rights act as legal instruments that mitigate some of the pathologies associated with how international law organizes global politics into an international legal order. Finally, some of the essays in this issue inquire into the role that human rights play beyond sovereignty – specifically, in relation to non-state actors such as multinational corporations and international economic institutions.

Deontology, Functionality, and Scope in The Sovereignty of Human Rights

In The Sovereignty of Human Rights (SHR),1 Patrick Macklem asks a question of crucial importance to anyone interested in the theory and practice of international human rights and global governance: what is international human rights law for? The answer cannot simply be what one would expect from a law student in international human rights 101, something like “promoting and encouraging respect for human rights,”2 because that response would not provide an account of the need for such a large-scale corpus of international law and institutions, that often replicate or supplement domestic systems of formal human rights protection (constitutional and otherwise).3 Nor does it explain why states sign up to legally binding international commitments (whose credibility and effectiveness are, one must state from the outset, sub-optimal at best)4 in fields of human rights that do not obviously present international collective action problems whose solution necessitates legal cooperation across borders.5

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

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.

The Sovereignty of Human Rights: A Reply to Four Critiques

This essay is a reply to four critiques of the thesis advanced in The Sovereignty of Human Rights, which are to be published in a special issue of the Jerusalem Review of Legal Studies. The first claims that practices associated with human rights in the international arena bear a loose conceptual and methodological relationship to the role that the book ascribes to human rights in international law. The second highlights the practice of actors who circumvent the state to engage directly with multinational corporate human rights abuses, which The Sovereignty of Human Rights fails to treat as salient to the theoretical architecture of international human rights law. The third characterizes the book’s account of the right to development as, at best, an optimistic overstatement of its efficacy and, at worst, a hindrance to development efforts by states at the receiving end of international assistance. The final contribution explores the under-theorized relationship between the book’s thesis and the burgeoning scholarship on global constitutionalism, implicitly suggesting that it underplayed the hand that it dealt itself. Each is addressed in turn.

Global Poverty and the Right to Development: An African Perspective on Macklem's The Sovereignty of Human Rights†

Global Poverty and the Right to Development: An African Perspective on Macklem's The Sovereignty of Human Rights†

Deontology, Functionality and Scope in the Sovereignty of Human Rights

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.

Human Rights in International Law: Three Generations or One?

International human rights are often portrayed as corresponding to three generations. First generation rights refer to civil and political rights, specifically, those enshrined in the International Covenant on Civil and Political Rights, such as freedom of expression and the right to vote. The second generation concerns economic, social and cultural rights, specifically, those enshrined in the International Covenant on Economic, Social and Cultural Rights, such as rights to housing and to form a trade union. The third generation typically is said to include the right to development, the right to self-determination, minority rights, the right to a healthy environment, the right to peace, and the right to ownership of the common heritage of mankind. This essay argues that what generational accounts fail to grasp is the fact that, despite the diverse sets of interests they seek to protect, human rights in international law share a common purpose, which is to mitigate injustices produced by the ways in which international law brings legal order to global politics. In this sense, civil and political rights and social, economic and cultural rights, as well those thought of as third generation rights, comprise but one generation: a single population of entitlements, speaking to the structure and operation of international law. This essay, I hope, will introduce readers to The Sovereignty of Human Rights (Oxford University Press, forthcoming), in which I explore its thesis at greater length.

Cosmopolitan Exception

There has been a resurgence of interest in cosmopolitanism in contemporary political theory, based upon the hopeful premise that it heralds an ameliorative response to the malignity of sovereignty's lack and the treacherous violence of sovereignty's excess. The promise of cosmopolitanism inheres in the claim that state sovereignty is and should be supplemented by an international system backed by the legitimacy of international law, grounded in the sovereignty of human rights. Drawing upon Foucault and Agamben, my argument in this essay is that the laudable endeavour of liberal cosmopolitans is flawed in two ways: first, cosmopolitanism cannot escape sovereign violence, because it cannot escape sovereignty; and second, cosmopolitans misconstrue the composition of the very sovereignty they aim to escape. This means that cosmopolitan theorists are unable to identify cosmopolitan practices of sovereignty that also entail forms of violence: cosmopolitan exception. Cosmopolitan exception denotes violent sovereign practices that cannot be differentiated from the protection of rights.

National Sovereignty versus Moral Sovereignty

By a case study of the major national paper The Australian, this article analyses the Australian mainstream print media reporting on the tension between the two sides of the Taiwan Straits. The article argues that in the international context of human rights and democracy discourse and “humanitarian intervention” after the end of the Cold War, there has been a shift of emphasis in international politics from the old discourse of realism of national sovereignty to a new discourse of moral sovereignty of human rights and democracy. The findings of the research demonstrate that within this context of discourse shift, the Australian media is caught between the two discourses. On the one hand the media defends Taiwan’s strife for Taiwanese identity and even independence because of Australia’s political and cultural values of human rights and democracy. On the other hand the Australian media is sensitive to Australia’s geopolitical position in Asia. Therefore, the media is sympathetic with Taiwan in terms of moral sovereignty. However, the media, by reflecting the Australian government’s position, does not go all the way to denounce China’s claim of national sovereignty over Taiwan.