The Authority of Human Rights
Evan Fox-Decent, 'The Authority of Human Rights' University of Toronto Law Journal (2017), Forthcoming.
34 Pages Posted: 28 Oct 2016
Date Written: Sept 4, 2016
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 review essay, 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 Austin’s command theory than Hart or Raz’s positivism. As a consequence, Macklem’s theory struggles to account for the authority of IHRL. In the final section of the paper 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.
Keywords: international law, human rights, jus cogens, rule of law, global constitutionalism, cosmopolitanism
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