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
University of Toronto Law Journal, Forthcoming
16 Pages Posted: 6 Mar 2017 Last revised: 20 Mar 2017
Date Written: March 4, 2017
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, one which seems to me to be more consistent with much of the practice that he describes but rearranges it 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.
Keywords: Sovereignty, Human Rights, International Law, Jurisprudence, Pluralism
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