What is international human rights law? Three applications of a distributive account.

• Author: Macklem, Patrick
• Position: McGill Law Journal Annual Lecture Series/Conference Annuelle de la Revue de Droit de McGill

The standard account of international human rights law is that its overarching mission is to protect universal features of what it means to be a human being from the exercise of sovereign power. This article offers an alternative account of the field, one that locates its normative dimensions in its capacity to speak to distributive injustices produced by how international law brings legal order to international political reality. On this account, human rights possess international legal significance not because they correspond to abstract conceptions of what it means to be human but because they monitor the distributive justice of the structure and operation of the international legal order itself. This account both draws on and departs from cosmopolitan conceptions of distributive justice in contemporary international political theory. It sheds normative light on why some human rights merit international legal protection despite the fact that they might lack some of the properties required by a universal account of the field. It illustrates these claims by describing how indigenous rights, minority rights, and rights to international co-operation and assistance mitigate some of the adverse consequences of how international law distributes sovereign power among a variety of legal actors it recognizes as states.

La position traditionnelle du droit international des droits de la personne veut que sa mission transcendante soit de proteger les caracteristiques universelles et essentielles de l'etre humain face a l'exercice du pouvoir souverain. Cet article offre une conception alternative du champ d'application de ce droit, situant ses dimensions normatives dans sa capacite de repondre aux injustices distributives induites par la mise en oeuvre de l'ordre legal du droit international dans la realite politique internationale. A ce titre, les droits de la personne possedent une importance juridique non pas parce qu'ils correspondent a des conceptions abstraites de ce qu'etre un etre humain signifie, mais parce qu'ils garantissent la distribution de la justice dans la structure et dans l'operation de l'ordre juridique international lui-meme. Ce texte s'appuie sur des conceptions cosmopolites de la justice distributive dans la theorie politique internationale contemporaine, tout en cherchant a s'en eloigner. L'auteur explique sous un angle normatif les raisons pour lesquelles certains droits de la personne meritent une protection juridique internationale, bien qu'il leur manque parfois certaines des proprietes necessaires a une vision universelle de ce domaine. Les principaux enonces de l'article sont illustres par une description de la maniere dont les droits autochtones, les droits des minorites et les droits a la cooperation et a l'assistance internationales pallient certaines des consequences nefastes de la distribution du pouvoir souverain, par le droit international, a une variete d'acteurs juridiques que ce dernier reconnait en tant qu'etats.

Introduction I. The Foundations of International Human Rights Law II. The Distribution of Sovereignty in the International Legal Order III. Indigenous Rights IV. Minority Rights V. The Right to International Co-operation and Assistance Conclusion Introduction

International human rights law emerged as a distinct field of international law in the aftermath of the Second World War. The standard account of the field is that its overarching mission is to protect essential and universal features of what it means to be a human being from the exercise of sovereign power. (1) This universal mission has its critics, who argue that at least some standards are relative to specific cultural and historical contexts and that there are no universal means of judging the merits of culturally specific ways of life. Cultural relativists argue that universalism masks the imposition of culturally specific beliefs on communities that possess different inner logics, whereas universalists charge that relativists authorize violations of human rights in the name of cultural difference. (2)

The debate between universalism and relativism has long dominated theoretical inquiries into the nature of international human rights law. (3) And soit should--assuming, as it does, that the mission of the field is to protect universal features of what it means to be a human being. But the significance of this debate turns precisely on the validity of this assumption. If the nature of the field is not what the standard account valorizes or what the relativists criticize, then its traditional supporters and detractors are locked in a debate that does not appear to be resolvable in either the near or distant future and that has little to do with the actual object of their attention. The drawback is not simply a loose grasp of the law. The true cost is a shrinking of the field's capacity to engage fundamental questions relating to the justice of the international legal order.

In this article, I advance an alternative account of international human rights law, one that comprehends its normative mission in terms of the distributional consequences of how international law brings legal order to international political reality. On this distributive account, human rights possess international legal significance not because they correspond to abstract conceptions of what it means to be human but because they operate as mechanisms that promote a just international legal order. This account both draws on and departs from cosmopolitan conceptions of distributive justice in contemporary international political theory. It sheds light on why some human rights merit international legal protection despite the fact that they might lack some of the properties required by a universal account of the field.

I illustrate these claims by reference to existing and emergent international legal commitments to indigenous rights, minority rights, and rights to international co-operation and assistance. Indigenous and minority rights relate primarily to differences between individuals and collectivities rather than to features we all share by virtue of our common humanity. Rights to international co-operation and assistance, often referred to more generally as elements of a broader right to development, generate duties on developed states and their citizens to reduce global economic inequality--duties that the traditional account has difficulty comprehending in universal terms. On a distributive account, however, these three categories of rights possess international legal significance because they seek to mitigate injustices associated with how international law distributes sovereign power among a variety of legal actors it recognizes as states and how it entitles them to rule people and territory.

A distributive account of international human rights law is not indifferent to the ongoing debate between universalism and relativism. International law authorizes states to exercise sovereign power and thus invites inquiry into the limits of such authority. But by comprehending the mission of the field in terms that embrace rights and impose obligations that speak to differences between people as well as to features we all share, a distributive account redefines the debate between universalism and relativism as a debate within--as opposed to about--international human rights law. How a given state exercises sovereign power in specific instances, in other words, is but a small part of the real normative terrain of international human rights law, namely, the distributive justice of the structure and operation of the international legal order itself.

1. The Foundations of International Human Rights Law

   Devoted to the protection and promotion of human rights deemed to possess international legal significance, international human rights law comprises a variety of sources and instruments, including the United Nations Universal Declaration of Human Rights, (4) various international and regional treaties, principles of customary international law, and general principles of international law. Adopted and proclaimed by the General Assembly of the United Nations in 1948, the Universal Declaration, as its title suggests, is universal in tone and aspiration, declaring that "all members of the human family," by virtue of their equal worth and dignity, share certain fundamental human rights. (5) These include rights to property, life, liberty, and security of the person; equal protection of the law; freedom of thought, opinion, expression, religion, assembly, and association; rights to social security, education, work, and an adequate standard of living; and rights of cultural membership and political participation. Although the Universal Declaration technically is not legally binding on states, its adoption marked the formal genesis of a profound structural transformation of the international legal order. What was previously a legal system almost exclusively devoted to providing legal form to relations between and among sovereign states, international law began to lay claim to the power to regulate relations between states and individuals and groups.

   This project assumed momentum when the UN Commission on Human Rights proceeded to draft two treaties that eventually came into force in 1976: the International Covenant on Civil and Political Rights (6) and the International Covenant on Economic, Social and Cultural Rights. (7) Whereas the ICCPR commits states to respect the right to life, the right to vote, freedom of conscience, freedom of speech, freedom of religion, freedom of association, equal protection, and other civil and political freedoms, the ICESCR enshrines rights to food, education, health, and shelter, as well as a host of other social, economic, and cultural rights. These were followed by the adoption of additional, more specialized human rights treaties addressing specific categories of human rights, namely, the International...