Deontology, Functionality and Scope in the Sovereignty of Human Rights

Jerusalem Review of Legal Studies, Forthcoming

Hebrew University of Jerusalem Legal Research Paper No. 17-21

Hebrew University of Jerusalem International Law Forum Working Paper No. 03-17

15 Pages Posted: 15 May 2017 Last revised: 1 Jun 2017

See all articles by Tomer Broude

Tomer Broude

Hebrew University of Jerusalem - International Law Forum

Date Written: May 13, 2017

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.

Keywords: Human Rights, Social Rights, International Law, Sovereignty

Suggested Citation

Broude, Tomer, Deontology, Functionality and Scope in the Sovereignty of Human Rights (May 13, 2017). Jerusalem Review of Legal Studies, Forthcoming, Hebrew University of Jerusalem Legal Research Paper No. 17-21 , Hebrew University of Jerusalem International Law Forum Working Paper No. 03-17, Available at SSRN: https://ssrn.com/abstract=2967672 or http://dx.doi.org/10.2139/ssrn.2967672

Tomer Broude (Contact Author)

Hebrew University of Jerusalem - International Law Forum ( email )

Mount Scopus
Mount Scopus, IL 91905
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