What is International Human Rights Law?
Three Applications of a Distributive Account
Patrick Macklem*
in
to speak
its capacity
they correspond
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 altemative account of the field, one that locates its
normative dimensions
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
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
international political theory. It sheds
contemporary
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.
titre,
pas
la
r6pondre
aux
parce
les droits de
juridique
La position traditionnelle do droit international
la personne veut que sa mission
des droits de
transcendante soit de prot6ger
les caract&ristiques
universelles et essentielles de l’ftre humain face d
l’exercice du pouvoir souverain. Cet article offre une
conception alternative du champ d’application de cc
droit, situant ses dimensions normatives dans sa
capacit6 de
injustices distributives
induites par la mise en =ovre de l’ordre lgal du droit
international dans Ia r6alit6 politique internationale. A
cc
la personne possdent une
importance
non
qu’ils
correspondent A des conceptions abstraites de cc qu’&tre
un 6tre humain signifie, mais parce qu’ils garantissent
la distribution de la justice dans la structure et dans
l’op6ration de l’ordre juridique international lui-mrime.
Ce texte s’appuie sur des conceptions cosmopolites de
la
th6orie politique
internationale contemporaine, tout en cherchant A s’en
6loigner. L’auteur explique sous un angle normatif les
raisons pour lesquelles certains droits de la personne
m6ritent une protection juridique internationale, bien
qu’il
leur manque parfois certaines des propri6t6s
ncessaires A one vision universelle de cc domaine. Les
principaux enonc6s de l’article sont illustr&s par one
description de la manifre dont les droits autochtones,
les droits des minorit6s et les droits i la coop6ration et L
l’assistance
certaines des
cons6quences n6fastes de la distribution do pouvoir
souverain, par
i one vari6t6
d’acteurs juridiques que cc dernier reconnait en tant
qA’Etats.
justice distributive dans
internationales pallient
le droit international,
W.C. Graham Professor of Law, University of Toronto; 2007-2008 Louise and John Steffens
Member, Institute for Advanced Study. I am indebted to Andrew Arato, Jean Cohen, Dennis Davis,
Fr&dric MWgret, Anne Norton, Zoran Oklopcic, Michel Rosenfeld, Joan Scott, Brian Tamanaha, and
especially Courtney Jung, for their constructive comments. I am also grateful for the comments
received when presenting previous versions of this article at McGill University, Queen’s University,
Cardozo Law School, NYU School of Law, University of Texas, Princeton University, and the
Institute for Advanced Study. I would also like to acknowledge the institutional generosity of the
Social Sciences and Humanities Research Council of Canada.
Patrick Macklem 2007
To be cited as: (2007) 52 McGill L.J. 575
Mode de r6f6rence : (2007) 52 R.D. McGill 575
576
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 52
Introduction
I. The Foundations of International Human Rights Law
I1. 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
577
578
585
590
594
597
604
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P MACKLEM- WHAT IS INTERNATIONAL HUMAN RIGHTS LAW?
577
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 so it 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
its normative mission
In this article, I advance an alternative account of international human rights law,
one
that comprehends
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
1 For a classic articulation of this conception of the field, see Jack Donnelly, Universal Human
Rights in Theory and Practice, 2d ed. (Ithaca: Cornell University Press, 2003).
2 See e.g. Adamantia Pollis & Peter Schwab, “Human Rights: A Western Construct with Limited
Applicability” in Pollis & Schwab, eds., Human Rights. Cultural and Ideological Perspectives (New
York: Praeger, 1979) 1.
3 For an overview and assessment of the debate, see Alison Dundes Renteln, International Human
Rights: Universalism versus Relativism (Newbury Park: Sage, 1990).
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[Vol. 52.
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
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.
inequality-duties
account
has
that
the
traditional
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.
I. 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.’ 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,
the formal genesis of a profound structural
transformation of the international legal order. What was previously a legal system
its adoption marked
“4 GA Res. 217(111), UN GAOR, 3d Sess., Supp. No. 13, UN Doc. A/810 (1948) 71 [Universal
Declaration].
5 Ibid., Preamble.
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P MACKLEM– WHAT IS INTERNATIONAL HUMAN RIGHTS LAW?
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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.
into force
in 1976:
to draft two treaties that eventually came
This project assumed momentum when the UN Commission on Human Rights
proceeded
the
International Covenant on Civil and Political Rights6 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 Convention
on the Elimination of All Forms of Racial Discrimination,8 the Convention on the
Elimination of All Forms of Discrimination against Women,9 the Convention against
torture and other, cruel, inhumane or degrading treatment or punishment,10 the
Convention on the rights of the child,” and the International Convention on the
Protection of the Rights ofAll Migrant Workers and Members of Their Families.’2
Each of these treaties establishes a monitoring body charged with overseeing
state compliance.’ 3 These treaty bodies provide specific comments on state reports,
general comments on the legal nature and scope of relevant treaty provisions, and
also coordinate their responsibilities among each other and with other institutions
such as the High Commissioner for Human Rights. Some, like the Human Rights
Committee (“HRC”), possess the authority to hear complaints brought by individuals
alleging that their rights have been violated.’4 Some are empowered
to hear
6 19 December 1966, 999 U.N.T.S. 171, Can. T.S. 1976 No. 47 (entered into force 23 March 1976)
[ICCPR].
7 16 December 1966, 993 U.N.T.S. 3, Can. T.S. 1976 No. 46 (entered into force 3 January 1976)
[ICESCR].
1981).
8 7 March 1966, 660 U.N.T.S. 195, Can. T.S. 1970 No. 28 (entered into force 12 March 1969).
9 18 December 1979, 1249 U.N.T.S. 13, Can. T.S. 1982 No. 31 (entered into force 3 September
10 10 December 1984, 1465 U.N.T.S. 85, Can. T.S. 1987 No. 36, 23 I.L.M. 1027 (entered into force
26 June 1987) [Convention against torture].
” 1577 U.N.T.S. 3, Can. T.S. 1992 No. 3 (entered into force 2 September 1990).
12 Annex to GA Res. 45/158, UN GAOR, 45th Sess., Supp. No. 49, UN Doe. A/Res/45/158(1)
(1990) 261 (entered into force 1 July 2003).
13 For an assessment of the effectiveness of these treaty bodies, see James Crawford, “The UN
Human Rights Treaty System: A System in Crisis?” in Philip Alston & James Crawford, eds., The
Future of UN Human Rights Treaty Monitoring (Cambridge: Cambridge University Press, 2000) 1.
“14 The Committee on the Elimination of Racial Discrimination (“CERD”), the Committee Against
Torture (“CAT”), and the Committee on
the Elimination of Discrimination Against Women
(“CEDAW”) also possess the power to hear individual complaints. This procedure applies only to
states parties who have made a declaration accepting the competence of the Committee in this regard.
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complaints by one state that another state is in violation of its treaty obligations. 5
Some, like the Committee Against Torture, may, on their own initiative, initiate
inquiries if they have received reliable information about serious human rights
violations. 16
Paralleling
the international proliferation of human rights instruments and
institutions are similar developments at the regional level, with the adoption of both
general and specific human rights treaties in Europe, Africa, and the Americas, and
the establishment of institutions responsible for treaty oversight, elaboration, and
enforcement. 7 Adding further complexity to the field is the participation of judicial
institutions of national legal systems in which international and regional human rights
commitments possess domestic legal significance. Judges around the world are
borrowing
international,
regional, and foreign sources to assist in their interpretive tasks.’ The relation
between the domestic and international legal spheres increasingly involves “not
merely the
transmittal of the international, but a process of translation from
international to national” that possesses the capacity to “produce new meanings.”‘ 9
relatively freely and with
increasing regularity from
Despite the multiplicity of its constituent legal sources and instruments, the
dominant approach to the normative foundations of international human rights law
regards human rights as moral entitlements that all human beings possess by virtue of
our common humanity.20 What constitutes a human right, according to this account, is
“1 CAT, CERD, HRC, and the Committee on Migrant Workers (“CMW”) possess this authority.
CEDAW, CAT, and CMW also provide for disputes between states concerning interpretation or
application of the convention to be resolved in the first instance by negotiation or, failing that, by
arbitration. One of the states involved may refer the dispute to the International Court of Justice if the
parties fail to agree to arbitration terms within six months. States may exclude themselves from this
procedure by making a declaration at the time of ratification or accession,
in which case, in
accordance with the principle of reciprocity, they are barred from bringing cases against other states.
16 CERD also possesses this authority. Inquiries may only be undertaken with respect to states
parties who have recognized the competence of the relevant committee in this regard.
17 See e.g. Convention for the Protection of Human Rights and Fundamental Freedoms, 4
November 1950, 213 U.N.T.S. 221, Eur. T.S. 5 (Europe); American Convention on Human Rights:
“Pact of San Jos6, Costa Rica”, 22 November 1969, 1144 U.N.T.S. 123, 9 I.L.M. 673 (entered into
force 18 July 1978) [American Convention on Human Rights]; Organization of African Unity, African
(Banjul) Charter on Human and Peoples’Rights, OAU Doc. CAB/LEG/67/3/Rev.5, 21 I.L.M. 58
(1982).
“18 See generally Sujit Choudhry, ed., The Migration of Constitutional Ideas (Cambridge: Cambridge
University Press, 2006). See also Christopher McCrudden, “A Common Law of Human Rights?
Transnational Judicial Conversations on Constitutional Rights” (2000) 20 Oxford J. Legal Stud. 499
(“The phenomenon of borrowing and transplantation from the international to national, from the
national to international, from national jurisdiction to national jurisdiction[,] is now commonplace” at
501).
19 Karen Knop, “Here and There: International Law in Domestic Courts” (2000) 32 N.Y.U.J. Int’l L.
& Pol. 501 at 506.
20 See e.g. Donnelly, supra note 1 (“Human rights are, literally, the rights that one has simply
because one is a human being” at 10); A. John Simmonds, Justification and Legitimacy: Essays on
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P MACKLEM- WHATIS INTERNATIONAL HUMAN RIGHTS LAW?
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not determined by a positive legal instrument or institution. Human rights are prior to
and independent of positive international human rights law. Just because the field
declares something to be a human right does not make it so. Conversely, the fact that
a human right does not receive international legal protection does not mean that it is
not a human right. The existence or non-existence of a human right rests on abstract
features of what it means to be human and the obligations to which these features
give rise. The mission of the field is to secure international legal protection of
universal features of what it means to be a human being.
On this universal account, human rights protect essential characteristics or
features that all of us share despite the innumerable historical, geographical, cultural,
communal, and other contingencies that shape our lives and our relations with others
in unique ways. They give rise to duties that we owe each other in ethical recognition
of what it means to be human. This is not to say that rights and obligations cannot
also arise from the bonds of history, community, religion, culture, or nation. But if
such rights relate simply to contingent features of human existence, they do not
constitute human rights and do not merit a place on the international legal register.
And if we owe each other duties for reasons other than our common humanity-say,
because of friendship, kinship, or citizenship-then these duties do not correspond to
human rights and do not possess international legal significance.
What characteristics of human existence possess universal value, and whether
they can and should be comprehended in the form of rights, are thus questions that
have fuelled intense debates about the nature and scope of the field. Since its
inception, many state and nonstate actors tend to privilege interests that underlie
international civil and political rights at the expense of those underlying social,
economic, and cultural
rights, notwithstanding assertions of a principle of
interdependence that holds all human rights to be interdependent and of equal value.2″
This privileging of the civil and political over the social, economic, and cultural is in
no small measure due to the fact that most of the field’s foundational instruments and
institutions came
in the wake of wartime atrocities and were
consciously designed to protect interests associated with civil and political freedom
from the raw exercise of collective state power.
into existence
But this privileging
is also a function of the influence of universalism in
normative debates about the nature of this field of law. If human rights correspond to
only those duties that we owe each other directly in moral recognition of what it
means to be human, then they, as do civil and political rights, may well obligate
individuals to not interfere with the liberty or autonomy of others. But whether they
impose positive obligations to assist others in need, especially others who belong to
Rights and Obligation (Cambridge: Cambridge University Press, 2001) (“human rights are rights
possessed by all human beings (at all times and in all places), simply in virtue of their humanity” at
185 [emphasis in original]).
21 See e.g. World Conference on Human Rights, K4enna Declaration and Programme ofaAction, UN
Doc. A/CONF.157/23 (1993), art. 5 [mimeo], 32 I.L.M. 1661 (“All human rights are universal,
indivisible and interdependent and interrelated”).
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different political communities or other communities of value, is a matter of deep
controversy from the perspective of a universal account. As a result, human rights that
require positive state action to secure their protection, especially those that impose
duties on individuals and collectivities in political communities other than where the
bearers of rights are located, fit awkwardly within the universal picture.
treaties also extend rights protection
So too do initiatives that extend legal protection to certain individuals and groups
but not others. Several states have entered into bilateral treaties protecting the rights
of minorities living outside the state in which they share a historical affiliation.22
to various minority
Some multilateral
communities.” Although worded in universal terms, numerous international civil and
political rights can be and have been interpreted to protect the interests of religious,
ethnic, and cultural communities.24 In addition, recent developments at the regional
levels signal a renewed commitment to rights that protect
and
indigenous territories, cultures, and forms of governance from assimilative forces
emanating from states in which indigenous peoples are located.25
international
International human rights law thus protects rights that relate to features we all
share as human beings, but it also protects rights that attach to certain individuals and
not others, rights that create positive as well as negative obligations, and rights that
require us to attend to the needs of strangers both at home and abroad. An account of
the normative architecture of the field should not conflate fact and norm by equating
legal validity with normative legitimacy, but nor should it lose sight of the object in
which it seeks to vest normative meaning. In contrast to the universal account,
understanding international human rights law in distributive terms provides normative
shape to the diverse international legal entitlements that actually comprise it. What
22 Poland has entered into treaties with the Federal Republic of Germany (1991), the Czech and
Slovak Republics (1991), the Russian Federation (1992), Belarus (1992), and Lithuania (1994). In the
1990s, Hungary entered into treaties with Ukraine, Slovenia, Croatia, Slovakia, and Romania. In
addition to its treaty with Hungary, Romania has entered into treaties with Ukraine and Moldova.
Other examples include treaties among Croatia, Hungary, and Italy. See generally Arie Bloed & Pieter
van Dijk, eds., Protection of Minority Rights Through Bilateral Treaties: The Case of Central and
Eastern Europe (The Hague: Kluwer, 1999).
23 Article 27 of the ICCPR, supra note 6, for instance, extends protection to ethnic, religious, and
linguistic minorities. For a review of the Human Rights Committee’s views on art. 27, see Gaetano
Pentassuglia, Minorities in International Law (Strasbourg: ECMI, 2002).
24 See e.g. UN Committee on Human Rights, Communication No. 549/193, Hopu v. France, UN
Doe. CCPR/C/60/D/549/1993/Rev.1 (1997), reprinted in Selected Decisions of the Human Rights
Committee Under the Optional Protocol: International Covenant on Civil and Political Rights, vol. 6
(New York: UN, 2005) at 68 (UN Doc. CCPR/C/OP16) (defining art. 23 of the ICCPR, supra note 6,
which enshrines the right to a family life, by reference to indigenous cultural traditions); Case of the
Mayagna (Sumo) Awas V7ngni Community (Nicaragua) (2001), Inter-Am. Ct. H.R. (Set. C) No. 79 at
para. 11 (defining art. 21 of the American Convention on Human Rights, supra note 17, which
enshrines the right to property, as protecting indigenous title).
25 See Part III, below.
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P. MACKLEM- WHAT IS INTERNATIONAL HUMAN RIGHTS LAW?
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these diverse legal entitlements share is a normative concern with the structure and
operation of the international legal order itself.
Specifically, a distributive account of human rights law ties the field more closely
to the existing international legal order. It begins with the premise that international
law, not moral or political philosophy, determines the international legal status of a
human right. There exists an international human right to food, for example, because
the International Covenant on Economic, Social and Cultural Rights enshrines such a
right.26 Its international legal status as a human right derives from the fact that
international law, according to the principle pacta sunt servanda, provides that a
treaty in force between two or more sovereign states is binding upon the parties to it
and must be performed by them in good faith.27 The international legal validity of a
norm-what makes it part of international law-rests on whether its enactment,
promulgation, or specification
that
international law lays down for the creation of specific legal rights and obligations.
is in accordance with more general rules
On the distributive account offered here, the fact that one or more international
human rights instruments stipulate that a human right constitutes a valid legal norm
does not end normative inquiry into its international legal status. But, unlike the
universal account, which determines the legitimacy of a human right by reference to
criteria external to positive international law, a distributive account ascribes its
legitimacy to a role that is internal to international law.28 On this account, the
legitimacy of international human rights lies in their capacity to serve as mechanisms
or instruments that mitigate some of the adverse consequences of how international
law organizes global politics into an international legal system.
This distinction between universal and distributive approaches to international
human rights law is similar to the distinction between orthodox and practical views of
human rights suggested by Charles Beitz. According to Beitz, the distinguishing
feature of an orthodox conception of human rights is “the idea that human rights have
an existence in the moral order that is independent of their expression in international
doctrine.”29 A practical conception, in contrast, regards the “functional role of human
26 Supra note 7, art. 11(1).
27 See Vienna Convention on the law of treaties (with annex), 23 May 1969, 1155 U.N.T.S. 331,
Preamble, art. 26, Can. T.S. 1980 No. 37 (entered into force 27 January 1980).
28 Compare John Rawls, The Law of Peoples (Cambridge: Harvard University Press, 1999) at 80 (a
human right should receive international as opposed to domestic protection is because it is “intrinsic to
the Law of Peoples”).
29 Charles R. Beitz, “Human Rights and the Law of Peoples” in D.K. Chatterjee, ed., The Ethics of
Assistance: Morality and the Distant Needy (Cambridge: Cambridge University Press, 2004) 193 at
196. Rawls also defines the functional role of international human rights in terms of justifying
interference in the internal affairs of a state. See The Law of Peoples, ibid. at 79 (human rights “restrict
the justifying reasons for war and its conduct” and “specify limits of a regime’s internal autonomy”).
But as Beitz points out, Rawls does not also see human rights as justifying external assistance in their
realization. Beitz, in contrast, includes external assistance in his definition of the functional role of
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rights in international discourse and practice … as definitive of the idea of a human
right,” and seeks to provide the best interpretation of international doctrine in light of
this functional role.3″ Beitz argues that international human rights function as grounds
for interfering in the internal affairs of a state and assisting in their realization. In his
view, “[t]o say that something is a human right,” according to a practical conception,
“is to say that social institutions that fail to protect the right are defective-they fall
short of meeting conditions that anyone would reasonably expect them to satisfy-
and that international efforts to aid or promote reform are legitimate and in some
cases may be morally required.”31
Beitz develops a practical conception of human rights as part of a larger
cosmopolitan theory of the demands of international distributive justice. He and
others advocate evaluation of the justice of global institutional arrangements in light
of dramatic economic inequality in the world.32 The distributive account offered here
draws on this strand of cosmopolitan theory but, because of its specifically legal
focus, it operates with a more modest conception of international distributive justice,
one that does not question the legitimacy of the basic structure of international law as
much as it seeks to mitigate some of its adverse legal consequences. Whereas Beitz
focuses on the functional role that human rights play in “international political
discourse”,33 this account focuses on the functional role that they play in international
law.34 The role of human rights in international law, in other words, is not co-
extensive with their role in international political discourse. In the international legal
law organizes
sphere, human rights seek to do justice
international political reality by attending to the distributional consequences of its
various modes of conceptualizing political power as legal authority.
to how international
Understanding international human rights law this way doesn’t eliminate deep
political disagreement over what distributive justice in international law might mean
and how it might be promoted. But nor does it relegate human rights law to a
functional role in international political discourse. It comprehends human rights as
legal sites of political contestation over fundamental questions about international
distributive justice, but it casts these debates in distinctively legal terms. It focuses on
human rights, which leads him to define the right to an adequate standard of living as mandating
global wealth redistribution (ibid.).
30 Beitz, ibid. at 197.
3′ Ibid. at 210.
32 See Part V, below.
33 Beitz, supra note 29 at 194.
34 Allen Buchanan, who offers a comprehensive theory of the moral foundations of international
law, appears to split the difference between these two accounts, by holding that “[h]uman rights … are
ascribed to all human beings simply by virtue of their humanity or personhood” but at the same time
arguing that “the law provides institutional structures within which … reasoning [about the nature and
value of human rights] can occur, processes for determining who can participate in the reasoning, and
constraints on the reasoning that occurs within these structures” (Justice, Legitimacy, and Self-
Determination: Moral Foundations for International Law (Oxford: Oxford University Press, 2004) at
120).
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P MACKLEM- WHAT IS INTERNATIONAL HUMAN RIGHTS LAW?
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5
how international
law distinguishes between legal and illegal claims of power,
including sovereign power, and how international human rights possess the potential
to monitor the constitution and exercise of international legal authority. In doing so,
this account shapes legal judgment on more precise legal questions that punctuate the
field-such as what constitutes the scope and content of specific human rights, what
interests various human rights protect, and what duties they generate-by directing
these questions toward the effects of the structure and operation of international law
itself.
The next section of this article characterizes international law as an enterprise that
distributes sovereign power among a variety of legal actors. It focuses on what
sovereignty means in international law and how its distribution brings legal order to
international political
rights,
minority rights, and rights to international co-operation and assistance, respectively,
as legal instruments that offset some of the adverse distributional consequences of
this mode of legal organization in the international arena.
reality. Subsequent sections describe
indigenous
II. The Distribution of Sovereignty in the International Legal
Order
If a distributive account of international human rights law relates to injustices
associated with the structure and operation of the international legal order, what then
is the structure of international law and how does it operate? How does it organize
international political reality into an international legal order? One central feature of
the structure and operation of international law is the conception of sovereignty that
lies at its heart.
Sovereignty is a concept that means different things, at different times, to
different people. It can be imagined as resting in a divine being, an individual, a
group of individuals, or an institution or group of institutions. It can be imagined as
absolute, limited, or both, as in one of its earliest formulations by Jean Bodin, who
defined sovereignty as absolute power limited only by the power of God.35 It can be
imagined as inherent in a people, as in Rousseau’s account of sovereignty as the
general will of a people,36 or contingent on the consent of people, as in the Hobbesian
account of the state as the result of a social contract among individuals to escape
anarchy.37 It can be indivisible, as in the case of a unitary state, or divisible, as in the
case of a federal state. It can be understood in factual terms, as a concept that
organizes political reality by the distinctive constellation of power to which it refers;
in normative terms, as a constellation of power that vests only in those entities that
35 Les six livres de la Rpublique (Paris: Librairie G6n6rale Franaise, 1999).
36 Jean-Jacques Rousseau, The Social Contract, trans. by M. Cranston (London: Penguin, 1968).
37 Thomas Hobbes, Leviathan, 2d ed. by Richard Tuck (Cambridge: Cambridge University Press,
1999).
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possess legitimate authority to rule people and territory; and in legal terms, as power
that vests in an entity lawfully entitled to its exercise.
is into sovereignty’s meaning in international
For the purposes of understanding how international human rights law engages
sovereign power, however, the relevant question is not which of sovereignty’s
multiple characterizations best conceptualizes its true nature. Instead, the relevant
law. In international law,
inquiry
sovereignty refers to the legal power of a state to rule people and territory. In J.L.
is “an aggregate of particular and very
Brierly’s elusive definition, sovereignty
extensive claims that states habitually make for themselves in their relations with
other states.””3 But international law does not accept as given what states claim as
sovereign right, no matter how habitually such claims might occur. In a dizzying
array of contexts, much of international law regulates the exercise of sovereign power
by identifying its constituent elements and managing its limits: Does sovereignty
entitle a state to divert its natural water supply in a way that affects the water supply
of a neighbouring state? Does sovereignty authorize a state to wage war against
another state? Does it entitle a state to abuse the human rights of its citizens? Does it
immunize state officials from criminal prosecution in another state? Yet international
law does more than regulate the exercise of sovereign power. It determines who
possesses sovereignty. It establishes, in other words, sovereignty’s international legal
existence.
Claims of sovereign power possess legal validity in international law only under
certain conditions and in certain circumstances. International law provides that a state
the whole of its population within its territory
whose government represents
consistent with principles of equality, nondiscrimination, and self-determination is
entitled to maintain its territorial integrity under international law and to have its
territorial integrity respected by other states. 9 The field also entitles a collectivity to
form a state and wield sovereign power if it constitutes a “people” and has
experienced severe and ongoing injustices such as colonial rule or alien subjugation,
domination, or exploitation.4″ Finally, international law also confers legal validity on
38 The Law of Nations: An Introduction to the International Law of Peace, 6th ed. (Oxford: Oxford
University Press, 1963) at 47.
39 See e.g. Declaration on the Occasion of the Fiftieth Anniversary of the United Nations, UN
GAOR, 50th Sess., Supp. No. 49, UN Doc. A/RES/50/6 (1995) 13 (the right of self determination
“shall not be construed as authorizing or encouraging any action that would dismember or impair,
totally or in part, the territorial integrity or political unity of sovereign and independent States
conducting themselves in compliance with the principle of equal rights and self-determination of
peoples and thus possessed of a Government representing the whole people belonging to the territory
without distinction of any kind” at 13).
40 According to some formulations, international law also entitles a people to form a state and
assume sovereign power if it is denied any meaningful exercise of its right to self-determination
within the state of which it forms a part. See e.g. Reference Re Secession of Quebec, [1998] 2 S.C.R.
217, 161 D.L.R. (4th) 385.
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8
a claim of sovereignty by a collectivity if a sufficient number of states recognize its
sovereign status as an empirical fact.4′
These avenues of obtaining and maintaining sovereign statehood are the means
by which the international legal order distinguishes between legal and illegal claims
of sovereign power. By legally validating some claims of sovereign power and
refusing to validate others, international law organizes international political reality
into a legal order in which certain collectivities possess legal authority to rule people
and territory. Sovereignty, in international law, is thus a legal entitlement to rule
people and territory that the field confers on the multitude of legal actors that it
recognizes as states. International legal rules determine which collectivities are
entitled to exercise sovereign authority and which territory and people such authority
law effectively performs an ongoing
operates over. In doing so, international
distribution of sovereignty among certain collectivities throughout the world.
That international law distributes sovereign power doesn’t mean that a national
legal order construes sovereignty in the same terms. We could imagine a national
legal order wedded to the proposition that the legal source of its sovereign power lies
in international law. According to Hans Kelsen, this is the way we should imagine the
relationship between national and international
law. For Kelsen, the legality of
domestic law ultimately rests on international legal norms that validate claims by
states of sovereign authority over persons and territory.42 Regardless of the merits of
Kelsen’s theoretical claim, most national legal orders do not in fact or law ground
their sovereignty in the international legal order; they locate it elsewhere. In liberal
democratic states, sovereignty is typically said to flow from the will of the people,
from the bottom up, so to speak. But international law comprehends sovereignty in a
radically different way. Sovereignty, in the international legal imagination, comes
from above, from international law itself.
That international
law distributes sovereign power also doesn’t mean that
international law doesn’t come from sovereign states. Much of international law-
including what it says about what sovereign states are entitled to do and not do with
their sovereignty-is the product of treaties among states or customary practice of
states. International rules governing the distribution of sovereignty themselves are the
product of treaty and custom, including those that require respect for the territorial
integrity of existing states, as well as those that redistribute sovereign power by right
or recognition. Saying that international
law distributes sovereignty means that
“41 See e.g. Convention on Rights and Duties of States, 26 December 1933, 165 L.N.T.S. 19, art. 1,
49 U.S. Stat. 3097 (listing the following criteria of statehood: “a permanent population”, “a defined
territory”, a system of government, and “capacity to enter into relations with other states”). Absent
recognition by other sovereign states, a political community with a territorial base-say, Quebec-
will not possess sovereign statehood under international law unless it can successfully assert a right of
external self-determination.
42 Hans Kelsen, Pure Theory of Law, 2d ed. trans. by Max Knight (Berkeley: University of
California Press, 1967) at 338.
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international legal norms shape an international political reality into an international
legal order by determining the legality of multiple claims of sovereign power. That
states participate in the production of these norms doesn’t strip these norms of their
distributional consequences, which include the fact that some collectivities possess
international legal authority to rule territory and people and others don’t.
A more formidable challenge to the concept of sovereignty in international law
rests on a skeptical understanding of international law as the repository of delegated
national authority, and therefore subordinate to the sovereign power of states. On this
view, to the extent that sovereignty is an international legal entitlement, it is a proxy
for, and does not ultimately limit, the authority of a state to rule people and territory.
This is not the same as claiming that sovereignty assumes a different meaning in
domestic legal orders than in international law, nor is it the same as claiming that
states participate in the establishment of international legal norms. It is an account of
international law as delegated domestic legal authority, legally binding on states only
to the extent that they consent to be bound by its terms. It claims that international
law
legal consequences, and
sovereignty in international law is really only a projection of its domestic legal
meaning. If this is the case, then it makes little sense to speak of international law as a
legal order that regulates national legal orders, let alone seek to determine its relation
to international distributive justice. 3
is really only domestic
international
law with
is
in
to organize
legal order. Comprehending sovereignty
international political’ reality
international
But whether this is the case rests on the merits of characterizing international law
by means of a particular definition of sovereignty, one that international law must
necessarily eschew if it
into an
international
law as
delegated national authority assumes what it purports to prove, namely, that there is
no law in international law other than domestic law and therefore that international
law is not law. There are many reasons to question the empirical validity of this
assumption, but the relevant question ultimately is not empirical but theoretical. What
definition of sovereignty best enables the conceptual organization of international
political reality into an international legal order? Defining sovereignty in terms that
preclude an understanding of international law as constituting an international legal
order may yield a measure of internal legal coherence to the domestic political reality
of a given state. It may also provide domestic legal justification for coercive action in
the international political arena. But it does so by conceptually denying international
law the very means it must rely on to bring legal order to the international political
reality that states produce through their mutual interaction.
Martti Koskenniemi has advanced a more nuanced claim, that international law
to states by
sovereignty simultaneously as authority delegated
comprehends
43 See Michael Blake, “Distributive Justice, State Coercion, and Autonomy” (2001) 30 Philosophy
and Public Affairs 257 (arguing that since international law rests on state consent, it is not a coercive
legal order. Therefore, international law cannot cause legal harms that it should seek to rectify in the
name of international distributive justice).
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international law and as authority delegated to international law by states. As a result,
for Koskenniemi, international law is shot through with legal indeterminacy and is
thus a thoroughly political enterprise.” Koskenniemi is not alone in pointing out that
the legal boundary between the national and international is much more porous than
traditional understandings of either field of law.45 But it is one thing to claim that
domestic law influences international legal outcomes and vice versa. It is another to
claim that domestic law constitutes international law. Koskenniemi’s characterization
ultimately suffers from the same flaw as its more skeptical cousin, albeit in gradated
form. The more the international is constituted by the national, the less sense it makes
to speak of international law as a legal order relatively distinct from national legal
orders. That international
legal orders does not
necessarily mean that national legal orders accept how they are conceptualized in
international law, but it does require conceptualizing sovereignty as an international
legal entitlement that international law distributes and regulates. To the extent that
this conception’s opposite-sovereignty as delegated national authority-finds
expression in international legal argument, this is a reflection of the capacity of
national legal orders to dominate
law and impair its capacity to
independently organize international political reality into a distinct legal order.
to regulate national
international
law aims
that
international
The remainder of this article focuses on three consequences of the role that
sovereignty plays in the structure and operation of the international legal order. First,
certain collectivities-those
law regards as states-possess
sovereign power, and other collectivities do not. Second, by virtue of recalibrations in
the distribution of sovereignty that occur when international law validates the transfer
of sovereignty over territory and people from one sovereign actor to another, some
individuals and groups can find themselves subject to the sovereign authority of a
state to which they bear little or no historical affiliation. Third, not all sovereign states
acquire their sovereignty under international law at the same time or under the same
conditions. On a distributive account, part of the normative challenge for international
human rights law is to mitigate harms associated with these consequences by its
commitments, respectively, to indigenous rights, minority rights, and rights to
international co-operation and assistance.
44 Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument, 2d
ed. (Cambridge: Cambridge University Press, 2006). In a more recent work, Koskenniemi argues that
international law stands to promote formalism, which embodies a “culture of resistance to power, a
social practice of accountability, openness, and equality whose status cannot be reduced to the
political positions of any one of the parties whose claims are treated within it” (The Gentler Civilizer
of Nations: The Rise and Fall of International Law, 1870-1960 (Cambridge: Cambridge University
Press, 2002) at 500).
45 See Knop, supra note 19.
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III. Indigenous Rights
What injustices does international law produce by conceptualizing the power to
rule people and territory as a legal entitlement to be distributed among certain
geographically concentrated collectivities in the various regions of the world? The
inclusion of certain collectivities and the exclusion of others in the distribution of
sovereignty do not, in themselves, produce an unfair or unjust distribution. Fairness
or justice in this context turns in part on the strength of the reasons that international
law provides for the principles it lays down for the legal acquisition of sovereign
power and their relationship to the nature of the entitlement-sovereignty-that
forms the subject of the distribution and the nature of the legal actors-states-in
which the entitlement vests.46
As described previously, international law provides that existing states, except
under exceptional circumstances, are entitled to have their territorial integrity
respected by other states. It also vests the right of self-determination in peoples,
which, again
in exceptional circumstances, may entitle a people to sovereign
statehood. And it confers legal validity on a claim of sovereignty by a collectivity if a
sufficient number of states recognize its sovereign status. The first of these three legal
stances validates the status quo distribution of sovereignty. The second and third
permitted and continue to permit recalibration of the existing distribution
in
exceptional circumstances.
But the legality of the existing distribution of sovereign power was not produced
simply by the operation of these three organizing principles. International law began
to validate claims of sovereign power, and thereby began to constitute international
political reality into a legal order, when European states launched ambitious plans of
imperial expansion and began to establish overseas colonies. Each colonizing power
viewed itself and others as entitled to claim sovereignty to territory if it could
establish a valid claim according
to doctrines that governed European imperial
practice at the time. Some of these doctrines, such as cession, were antecedents of
contemporary
the acquisition of
sovereignty, but others, such as the doctrines of discovery and conquest, no longer
form part of contemporary international law.47
legal principles
international
that
regulate
46 Compare Michael Walzer, Spheres of Justice: A Defence of Pluralism and Equality (New York:
Basic Books, 1983) (“principles of justice are themselves pluralistic in form; … different social goods
ought to be distributed for different reasons, in accordance with different procedures, by different
agents; and … all these differences derive from different understandings of the social goods themselves
” at 6).
47 This is not to suggest that international law, or at least the principles governing the acquisition of
territory, predated the colonial encounter. For an extended argument that international rules deciding
which entities are sovereign, and determining the powers and limits of sovereignty, were “generated
by problems relating to colonial order,” see Antony Anghie, Imperialism, Sovereignty and the Making
of International Law (Cambridge: Cambridge University Press, 2004) at 7.
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5
According to the doctrine of discovery, sovereignty could be acquired over
unoccupied territory by discovery. If the territory in question was occupied, then
conquest or cession was necessary to transfer sovereign power from its inhabitants to
an imperial power. However, European imperial practice was to deem territory
occupied by indigenous peoples to be unoccupied, or terra nullius, for the purposes
of acquiring sovereign power. Because indigenous territory was deemed vacant,
neither conquest nor cession was necessary to acquire the sovereign power to rule
indigenous people and territory. International law deemed indigenous territory to be
terra nullius because European powers viewed indigenous people to be insufficiently
Christian or civilized to merit recognizing them as sovereign powers.4″ In the words
of Chief Justice John Marshall of the United States Supreme Court:
[T]he character and religion of [North America’s] inhabitants afforded an
apology for considering them as a people over whom the superior genius of
Europe might claim an ascendency. The potentates of the old world found no
difficulty in convincing themselves, that they made ample compensation to the
inhabitants of the new, by bestowing on them civilization and Christianity, in
exchange for unlimited independence.49
International
law thus excluded
indigenous peoples from the international
distribution of sovereignty and included them under imperial sovereign power by
deeming them to be inferior peoples. This process of indigenous exclusion and
inclusion vested states with international legal authority to assume sovereign power
over indigenous peoples and territory. The ensuing consequences, which included
genocide, forced relocation, and territorial dispossession, are well known and need
not be catalogued here. The important point is that this process of sovereign exclusion
and inclusion was not a one-shot affair, occurring some time in the distant past when
international law accepted the proposition that indigenous territory constituted terra
nullius. It
is an ongoing process of exclusion and inclusion because of how
international law validates and restricts legal challenges to the status quo distribution
of sovereign power except in exceptional circumstances.
The morally suspect foundations of these baseline legal entitlements are why
indigenous rights merit recognition on the international legal register. In recent years,
international human rights law has begun to recognize the international
legal
significance of indigenous cultures, territorial commitments, and forms of governance
48 See e.g. John Westlake, Chapters on Principles of International Law (Cambridge: Cambridge
University Press, 1894) at 136-38, 141-143 (drawing a distinction between “civilisation and the want
of it” at 141); William C. Hall, A Treatise on International Law, 8th ed. (Oxford: Clarendon Press,
1924) at 47 (international law only governs states that are “inheritors of that civilisation”); L.
Oppenheim, International Law, 3d ed. by Ronald F. Roxburgh, vol. 1 (New York: Longmans, Green,
1920) at 126 (law of nations does not apply to “organised wandering tribes”); Charles Cheney Hyde,
International Law Chiefly as Interpreted and Applied by the United States (Boston: Little, Brown,
1945) vol. 1 (“native inhabitants possessed no right of territorial control […] which a European
monarch was bound to respect” at 328).
4 9 Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543 at 573, 5 L.Ed. 681 (1823).
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in the face of sovereign power that threatens these interests. The most visible
manifestation of this development is illustrated by the declaration, recently passed by
the UN General Assembly, that recognizes differences, partly denied and partly
produced by the international distribution of territorial sovereignty initiated by
colonization, that exist between indigenous and non-indigenous peoples.5″ A similar
development is occurring in the Organization of American States. The OAS Proposed
American Declaration on the Rights of Indigenous Peoples, prepared by the Inter-
American Commission on Human Rights and made public in 1995, has since gone
through a number of modifications. 51 It enshrines rights of non-discrimination and
affirmative action; rights of autonomy and self-government; rights of political
participation; rights to lands, territories and resources; rights relating to cultural
integrity; and treaty rights.
that differentiate between
to promote
Indigenous peoples can also avail themselves of other international
legal
protections
indigenous and non-indigenous people.
Convention 107 of the International Labour Organization, adopted in 1957, while
advocating the “integration” of indigenous populations into national communities,
also calls upon governments to develop coordinated and systematic action to protect
indigenous populations and
their social, economic, and cultural
development.52 The ILO more recently adopted a revision of Convention 107, known
as Convention 169.”3 Article I (1)(b) of Convention 169 states that indigenous peoples
are defined by their “descent from the populations which inhabited the country, or a
geographical region to which the country belongs, at the time of conquest or
colonisation or the establishment of present state boundaries … ,i4 It recognizes “the
aspirations of [indigenous] peoples to exercise control over their own institutions,
ways of life and economic development and to maintain and develop their identities,
languages and religions, within the frameworks of the States in which they live …
Other provisions list a wide range of additional indigenous rights and corresponding
state obligations.
50 United Nations Declaration on the Rights of Indigenous Peoples, GA Res. 61/295, UN Doc.
A/RES/61/295 (October 2007) [mimeo.].
51 OAS Doc. No. OEA/Ser.L/V/II.90/doc. 14/Rev. 1 (1995). The text of the proposed declaration is
reprinted, with a discussion of its development, in Inter-American Yearbook on Human Rights: 1996
(The Hague: Martinus Nijhoff, 1998) at 1208.
52 Convention (No. 107) concerning the protection and integration of indigenous and other tribal
and semi-tribal populations in independent countries, 26 June 1957, 328 U.N.T.S. 247, art. 2(1), 40
International Labour Office Official Bulletin 12 (adopted by the International Labour Conference at its
40th session, entered into force 2 June 1959) [Convention 107].
53 Convention concerning Indigenous and Tribal Peoples in Independent Countries, 27 June 1989,
72 International Labour Office Official Bulletin Series A 59, 28 I.L.M. 1382 (adopted by the
International Labour Conference at its 76th session, entered into force 5 September 1991) [Convention
169].
54 Ibid.
“5 Ibid., Preamble.
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International indigenous rights are capable of being normatively understood in
universal terms, as concrete expressions of more abstract rights that inhere in all
individuals. Debates within the ILO during the drafting of Convention 107, and its
text, for example, manifest a commitment to indigenous rights in instrumental
terms-as mechanisms that would enable indigenous people to benefit “fully from the
rights and advantages enjoyed by other elements of the population … “56 Convention
169 and the United Nations Declaration on the Rights of Indigenous Peoples5 7 can
also be construed as concrete expressions of a more general
right of self-
determination that inheres in all people. 8
But these characterizations miss much of the international legal significance of
indigenous rights. Indigenous rights in international law are differentiated rights that
recognize differences, partly denied and partly produced by the international
distribution of territorial sovereignty initiated by colonization, that exist between
indigenous and non-indigenous peoples.59 They speak to the consequences of
organizing international political reality, including indigenous political reality, into a
legal system that vests sovereign power in certain collectivities and not others. Not
only does this mode of legal organization exclude
indigenous peoples from
participating in the distribution of sovereign power that it performs, it authorizes legal
actors to whom it distributes sovereign power-states-to exercise such power over
indigenous peoples and territory to their detriment.
International law, absent exceptional circumstances, does not stipulate that the
right of self-determination authorizes an indigenous people to assert sovereign
independence from a state in which it is located. Nor does it authorize indigenous
people to challenge the legal validity of the sovereign power to which they are subject
on the basis of its morally suspect origins.6” But international indigenous rights can
mitigate some of the adverse consequences of how international law validated
56 Convention 107, supra note 52, Preamble. For a review of the debates within the ILO, see Luis
Rodriguez-Pificro, Indigenous Peoples, Postcolonialism, and International Law: The ILO Regime
(1919-1989) (Oxford: Oxford University Press, 2005) at 186-99.
57 Supra note 50.
58 See S. James Anaya, Indigenous Peoples in International Law, 2d ed. (Oxford: Oxford University
Press, 2004) (“self-determination arises within international law’s human rights frame and hence
benefits human beings as human beings and not sovereign entities as such” at 99 [emphasis in
original]).
59 See generally Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights
(Oxford: Oxford University Press, 1995) at 6-7 (introducing the concept of “group-differentiated
rights”).
61 Island of Palmas Case (Netherlands v. United States) (1928), 2 R.I.A.A. 829 (Permanent Court of
Arbitration) (“a juridical fact must be appreciated in the light of the law contemporary with it” at 845).
With its doctrine of recognition, international law also validates illegal acquisition of sovereign power.
For a discussion of how international law looks back on legal and illegal acquisitions of sovereign
power over indigenous territories, see David Berry, “Legal Anomalies, Indigenous Peoples and the
New World” in Barbara Saunders & David Haljan, eds., Whither Multiculturalisin? A Politics of
Dissensus (Leuven: Leuven University Press, 2003) 235 at 249-51.
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morally suspect colonization projects that participated in the production of the
existing distribution of sovereign power. Indigenous rights speak to injustices
produced by the way in which the international legal order conceives of sovereignty
as a legal entitlement that it distributes among collectivities it recognizes as states.
They call on states to take appropriate domestic measures to vest their contemporary
claims of sovereign authority over indigenous peoples and territory with a modicum
of normative legitimacy.
IV. Minority Rights
At the end of the First World War, after the armistice was signed on 11 November
1918,6″ leaders of over fifty states participated in the Paris Peace Conference. Lasting
approximately one year, negotiations were dominated by the United States, Britain,
France, Italy, and Japan, the five major powers responsible for defeating Austria-
Hungary, the German Empire, Bulgaria, and the Ottoman Empire. The conference
yielded five treaties that imposed military restrictions and financial liabilities and
determined the postwar boundaries of Bulgaria, Turkey, Austria, Hungary, and
Germany, and their neighbouring states.
These treaties reassigned sovereign power over people and territory from
defeated to victorious states, dramatically redrawing the territorial map of Europe.
The Treaty of Trianon,62 for example, signed under protest by the Hungarian
delegation at the Trianon Palace at Versailles, reduced the size and population of
Hungary by about two-thirds, divesting it of virtually all areas that were not purely
Magyar. Romania received Transylvania, part of the adjoining plain, and part of the
including Timisoara.63 Czechoslovakia received Slovakia and Ruthenia.
Banat,
Austria was awarded the Burgenland, but the city of Sopron and its vicinity were
returned to Hungary after a plebiscite in 1921. Yugoslavia (then the Kingdom of the
Serbs, Croats, and Slovenes) obtained Slavonia, the western section of the Banat, and
Croatia, depriving Hungary of access to the Mediterranean Sea.64
Treaties,
like
the Treaty of Trianon, possess
the
distribution of sovereign power by transferring sovereignty over territory and people
from one sovereign actor to another. In so doing, they create national minorities, such
as Hungarians living in Ruthenia, Slovakia, and Transylvania, communities located
outside the territorial sovereignty of the state with which they bear historical
the capacity
to modify
“61 U.K., H.C., Conditions of an Armistice with Germany, 11 November 1918, Cd 9212 in Sessional
Papers, vol. 26 (1918) 511.
62 Treaty of Peace between the Allied and Associated Powers and Hungary, 4 June 1920, 6 L.N.T.S.
187 [Treaty of Trianon].
63 The Banat region is primarily an agricultural region, bordered on the east by Transylvania and
Walachia, on the west by the Tisza River, on the north by the Mure$ul River, and on the south by the
Danube.
64 Treaty of Trianon, supra note 62, art. 27.
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affiliation.65 The major powers in the postwar period attempted to address some of the
distributional consequences of the realignment of sovereign power in Europe by a
web of multilateral and bilateral treaties, monitored by the League of Nations, that
guaranteed national minorities in Central and Eastern Europe protection of their
ethnic, religious, and linguistic identities, including the right to officially use their
mother tongue, to have their own schools, and to practice their religion. This system
of minority protection was not a universal one, as it governed only certain states
within Europe; its shortcomings were but one of the complex variables that led to the
demise of the League of Nations and the onset of the Second World War.
After 1945, minority rights assumed a different form in international human
rights law. The field comprehends minority rights in primarily individualistic terms,
vesting in individuals who belong to ethnic, religious, or linguistic minorities.
According to article 27 of the International Covenant on Civil and Political Rights,
such “persons … shall not be denied the right, in community with the other members
of their group, to enjoy their own culture, to profess and practise their own religion,
or to use their own language.”66 The UN Declaration on the Rights of Persons
Belonging to National or Ethnic, Religious and Linguistic Minorities further specifies
that minorities possess rights to “enjoy their own culture,” to “practise their own
religion,” and to “use their own language”; to participate in “cultural, religious,
social, economic and public life”; to participate in “decisions on the national and,
where appropriate, regional level”; and to associate with “other members of their
group and with persons belonging to other minorities … “67
Minority protections are also contained in two Council of Europe treaties, the
Framework Convention for the protection of national minorities68 and the European
Charter for Regional or Minority Languages,69 and
the OSCE Copenhagen
Document of 1990.7” The latter instrument established the Organisation for Security
and Co-operation in Europe, which, under the auspices of the Office of the High
“65 Will Kymlicka defines national minorities more broadly, as “groups who formed functioning
societies on their historical homelands prior to being incorporated into a larger state” (Politics in the
Vernacular: Nationalism, Multiculturalism, and Citizenship (Oxford: Oxford University Press, 2001)
at 54).
66 Supra note 6.
67 Annex to GA Res. 47/135, UN GAOR, 47th Sess., Supp. No. 49, UN Doc. A/RES/47/135 (1992),
art. 2.
68 1 February 1995, 2151 U.N.TS. 243, Eur. T.S. 157, 34 I.L.M. 351 (entry into force I February
1998).
69 5 November 1992, 2044 U.N.T.S. 575, Eur. T.S. 148 (entry into force 1 March 1998).
70 Conference on Security and Co-operation in Europe, Document of the Copenhagen Meeting of
the Conference on the Human Dimension of the CSCE, 29 June 1990, online: Organization for
Security and Co-operation in Europe
Document].
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Commission on National Minorities, monitors the treatment of minorities throughout
Europe in the name of regional security and co-operation.7″
Although
international human rights law provides national minorities with
several avenues for challenging the exercise of state power, the field displays deep
ambivalence about the legitimacy of providing protection to minorities beyond what
accrues to all individuals by virtue of our common humanity. The civil and political
freedom of a member of a minority may well be more likely to be interfered with than
that of a member of a majority, and therefore the field is attentive to the various forms
of discrimination and marginalization that minorities unjustly experience because of
their minority status. But beyond this level of protection, minority rights run counter
to protect universal, not
to the aspiration of international human rights law
contingent, features of human identity.
At
the
is simply
level of the political, this ambivalence
the collective
unwillingness of states to consent to binding international legal norms and institutions
that challenge their domestic legal authority. But at the level of the normative, the
ambivalence is the product of comprehending the field in terms of an aspiration to
identify and protect universal human values. Human rights, according to this
aspiration, do not protect ethnic, racial, cultural, or national groups; they protect
individual freedom in the face of the ethnic, racial, cultural, or national differences
that otherwise divide us.
But this ambivalence is another illustration of how the universal account of the
field fails to engage fundamental questions relating to the justice of the international
legal order. Comprehending minority rights claims in distributive terms, that is, in
terms of the role they can play in monitoring the justice of the distribution of
sovereign authority, reveals that their normative status rests not on whether they
protect universal human values but whether they promote a just distribution of
sovereign authority in international law. Minorities exist in relation to majorities, and
majorities exist because international law distributes sovereign power over territory
and people to certain collectivities and not others. Seen in this light, minority rights
serve as instruments to mitigate injustices associated with the kinds of recalibrations
of sovereign power embodied in the Treaty of Trianon that international law treats as
possessing international legal force.
Viewing international minority rights this way does not end normative inquiry
into their legitimacy. Whether the Treaty of Trianon was a just or unjust recalibration
of sovereign power is obviously critical to determining the justice of requiring
Romania, say, to respect certain differentiated rights of the Hungarian minority under
the sway of its sovereign power. Nor does adopting this perspective necessarily
determine the content of the rights due to any given minority. But it does direct
legal
normative judgment on these questions
to identifiable moments in the
71 See generally Jennifer Jackson Preece, National Minorities and the European Nation-States
System (Oxford: Clarendon Press, 1998).
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organization and reorganization of international political reality, and asks whether the
legitimacy of an assertion of sovereign power rests on the extent to which the state in
question respects the rights of national minorities within its midst.
Focusing on
injustices produced by
the structure and operation of the
international legal order as opposed to abstract conceptions of universal right also
yields a more refined approach to minority protection. The standard tmiversal account
of the field fails to address the deep diversity of claims by minority communities that
they are entitled to a certain measure of autonomy or protection from assimilative
tendencies of the broader political community in which they are located. Some of
these communities, like indigenous peoples in the Americas and elsewhere, claim
ancestral relations to territories that long predate the establishment of states in which
they find themselves. Some, like the Hungarians in Romania, share an ethnic kinship
with a state other than the one in which they are located. Some simply share common
cultural traditions that they regard as defining features of their collective identities.
Some define themselves in terms of religious identities not shared by the majority of
members of the political community in which they are located. The standard account
of the field forces us to inquire into what all of these diverse claims might share, and
then determine whether this feature or set of features possesses universal value and
therefore merits international protection.72
locating
their
international
A distributive account of international human rights law, in contrast, facilitates
differentiation among minority claims by
legal
significance in relation to the legitimacy of the sovereign power that they challenge,
which in turn rests on the way in which international law participates in the formation
of minorities by distributing and redistributing sovereign power among states.
Indigenous rights and national minority rights claims speak to different distributive
injustices caused by how international law organized and continues to organize
international political reality. Claims based on religious and cultural difference
challenge the limits of sovereign power more than its sources. Differentiation does
not resolve the contentious ethical, political, and legal
issues associated with
international minority rights. But it clarifies why some minority rights and not others
might merit international legal protection and locates their legal significance
in
relation to the structure and operation of the international legal order.
V. The Right to International Co-operation and Assistance
The universal account of the normative mission of international human rights law
fails to speak adequately to another set of injustices associated with our international
legal order, namely, those that result from the enormous inequalities in wealth and
opportunities that exist throughout the world. The account, as noted, treats human
72 Contemporary legal and political theory typically identifies cultural difference to be the unifying
feature of these kinds of diverse political claims and either defends or critiques its protection. See
Courtney Jung, “Why Liberals Should Value ‘Identity Politics”‘ (2006) 135:4 Daedalus 32.
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rights as corresponding to duties that individuals owe directly to others in ethical
recognition of universal features of what it means to be a human being. With the
International Covenant on Social, Economic and Cultural Rights and other
international and regional instruments, the field displays commitments to a broad set
of social and economic rights that guarantee individuals access to a set of basic social
resources, such as food, shelter, a basic income, health care, and education. But these
rights, though framed in universal terms, are typically understood as generating duties
on states to secure access to such resources for its own citizens.73
More promising are commitments to a right to development and, what are often
thought of as two of its constituent elements, rights to international co-operation and
assistance. The UN Declaration on the Right to Development defines the right to
development as an entitlement to “a comprehensive economic, social, cultural and
political process, which aims at the constant improvement of the well-being of the
entire population and of all individuals on the basis of their active, free and
meaningful participation in development and in the fair distribution of benefits
resulting therefrom … “,” The declaration also imposes a duty on all states to
cooperate with each other in ensuring development and eliminating obstacles to
development, implying that the right to development can be asserted by a state on
behalf of its population against other states and the international community.75 But the
universal account, focused on conditioning the existence of rights on abstract moral
duties we owe others directly, offers little reason to comprehend these commitments
to international co-operation and assistance as yielding positive duties on all of us to
improve the social and economic condition of impoverished people around the world.
The legitimacy of such duties quickly becomes subsumed in a larger debate within
classical political theory about the nature of one’s obligations to assist strangers in
need.76
73 But see Phillip Alston & Gerard Quinn, “The Nature and Scope of States Parties’ Obligations
under the International Covenant on Economic, Social and Cultural Rights” (1987) 9 Human Rights
Quarterly 156.
74 GA Res. 41/128, UN GAOR, 41st Sess., Supp. No. 53, UN Doc. A/RES/41/128 (1986),
Preamble.
75 See Philip Alston, “The Shortcomings of a ‘Garfield
the Cat’ Approach to the Right to
15 Cal. W. Int’l L.J. 510; Anne Orford, “Globalization and the Right to
Development” (1985)
Development” in P. Alston, ed., Peoples’Rights (Oxford: Oxford University Press, 2001). See also
Universal Declaration, supra note 4, art. 22; ICESCR, supra note 7, art. 2; Convention on the Rights
of the Child, supra note 11, art. 4; Vienna Declaration and Programme of Action, supra note 21;
Millennium Declaration, UN GAOR, 55th Sess., Supp. No. 49, UN Doc. A/Res/55/2 (2000) 4, arts. 4,
6.
76 Contemporary political theory on cosmopolitanism and its limits has reinvigorated this debate by
asking whether such obligations extend to strangers in other states. For the view that they don’t, see
Thomas Nagel, “The Problem of Global Justice” (2005) 33 Philosophy & Public Affairs 113. For the
view that they do, but only to the point where the personal cost of such an obligation is equal to what
it would be if everyone assumed similar obligations, see Liam Murphy, Moral Demands in Nonideal
Theory (New York: Oxford University Press, 2000).
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the relationship between
A focus on the distributive dimensions of international law, however, provides an
alternative framework for understanding
international
human rights and global economic inequality. If the legitimacy of international
human rights rests on their capacity to mitigate injustices produced by the structure
and operation of international
law, then the task of international human rights
scholarship is to try to identify, first, how the organization of international political
reality into a legal order contributes to global economic inequality and, second, how
international human rights can be comprehended as mechanisms that mitigate such
inequality.
The work of Thomas Pogge illuminates this task.77 Pogge argues that human
rights, properly conceived, should focus less on perfect or abstract duties that we owe
others directly and more on what justice requires of the establishment and operation
of institutional orders that exercise coercive power.”8 Those responsible for the
establishment of international order (for Pogge, this means all of us) confront an array
of possible
institutional options, and respecting human rights requires certain
institutional choices over others when constructing and operating institutions to
govern global matters. Pogge argues that justice requires institutional choices that
decrease rather than increase world poverty.79 Pogge identifies two specific areas of
institutional concern: international resource and borrowing privileges, which vest
states with unlimited control over natural resources in their territories,8 and the
structure and operation of international institutions, such as the WTO, which, he
argues, enable economically powerful states to secure “the lion’s share of the benefits
of global economic growth… “8
Pogge is right to zero in on the role that the international legal order contributes
to global economic inequality. In this respect, he offers a more compelling moral case
for global redistribution than John Rawls, who argues that in the international arena,
distributive justice only requires states to assist other states to be able to operate in
accordance with a public conception of justice. Rawls refers to this requirement of
justice as a duty of assistance, one that is considerably less demanding than his
domestic
that
“difference principle”, which requires of liberal democracies
77 Thomas W. Pogge, World Poverty and Human Rights (Cambridge: Polity Press, 2002).
“7 Ibid. at 64.
79 Ibid. at 209. This enables Pogge to claim that the obligation to reduce world poverty constitutes a
negative duty to not act in ways that exacerbate economic inequality, as opposed to a positive
obligation to share one’s wealth or resources with strangers in need. The better view, I believe, is that
the distinction between negative and positive obligations possesses little currency in a distributive
conception of international law, as the normative question in such a conception is not whether to
redistribute or not; instead, it assumes that distribution is inevitable in the establishment and operation
of an international legal order and asks which order, and which modes of operation, best meet the
demands of distributive justice.
8o Ibid. at 22. Pogge proposes a “global resources dividend”, in which a state would be required to
share a small part of the value of any resources it decides to use or sell, on the premise that the global
poor own an inalienable stake in all limited natural resources (ibid. at 196).
“81 Ibid. at 20.
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socioeconomic inequalities be arranged to the greatest benefit of the least advantaged
within their jurisdiction.82 One reason that Rawls offers in support of a thinner
conception of distributive justice at the international level is that the wealth of a
nation is a function of domestic political variables. In his words, “[T]he causes of the
wealth of a people and the forms it takes lie in their political culture and in the
religious, philosophical, and moral traditions that support the basic structure of their
political and social institutions, as well as in the industriousness and cooperative
talents of its members.”83
But disparities between wealthy and poor states cannot solely be explained by
reference to domestic political cultures; even the most industrious of states can only
address poverty if it possesses sufficient resources to do so, and whether a state is
blessed with an abundance of resources is a function of the nature and reach of its
sovereign power. The international legal order ultimately determines what belongs to
any given state by validating certain claims of power to rule territory and people and
invalidating others. International law establishes a basic legal structure that identifies
which territory and resources legally belong to which states. International law
performs this distribution for a host of reasons that, as we have seen, have little to do
with global economic equality and so it is not surprising that there are huge
disparities between states in terms of their resources and capacity to generate wealth.
This is not to say that international law causes global economic inequality; obviously,
there are a host of complex factors that contribute to its presence and persistence. But
it is to say that the distribution of sovereignty does participate in the production of
economic inequality, and that a just international legal order is one that attends to its
own adverse distributional consequences.
Take Pogge’s concern about the international resource and borrowing privileges
of states, by which he means “the privileges freely to borrow in the country’s name
(international borrowing privilege) and freely to dispose of the country’s natural
resources (international resource privilege).”8 4 International law comprehends these
rules as incidents of sovereignty. In the words of the Permanent Court of International
Justice, sovereign independence means “a separate State with sole right of decision in
that
all matters economic, political,
independence is violated, as soon as there is any violation thereof, either in the
economic, political, or any other field, these different aspects of independence being
in practice one and indivisible.”85 Pogge argues that these incidents of sovereignty
contribute to global poverty because they foster “bad government in the resource-rich
financial or other with
the
result that
82 John Rawls, A Theory of Justice, rev. ed. (Cambridge: Harvard University Press, 1999) at 37.
83 Rawls, The Law of Peoples, supra note 28 at 108.
84 Pogge, supra note 77 at 113.
85 Case of the Customs Rfime Between Germany and Austria (1931), Advisory Opinion, PC.I.J.
(Ser. A/B) No. 41 at 45 (The Permanent Court of International Justice overseeing disputes between
members of the League of Nations).
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developing countries by giving repressive rulers a source of revenues and by
providing incentives to try to seize political power by force.””6
in
turn relates
these
that international
incidents of sovereignty, which
Whether this is the case, and whether these incentives outweigh any potential
positive effects of these rules, are important questions. For present purposes, I want to
focus on one small piece of this complex puzzle, which relates to when developing
countries acquired
to
international law’s participation in decolonization. The rules to which Pogge refers
came to govern developing countries only after they achieved sovereign statehood
under international law. Recall
law vests the right of self-
determination in peoples, which, in exceptional circumstances, may entitle a people
to sovereign statehood. International
legal sources supporting a right of self-
determination include the Charter of the United Nations, which lists the principle of
self-determination as one of the purposes of the United Nations.87 The charter also
calls for the promotion of a number of social and economic goals “with a view to the
creation of conditions of stability and well-being which are necessary for peaceful
and friendly relations among nations based on respect for the principle of equal rights
and self-determination of peoples.””8 Similarly, the International Covenant on Civil
and Political Rights provides that “[a]ll peoples have the right of self-determination
… [and to] freely determine their political status and freely pursue their economic,
social and cultural development.'”89
Before
the First World War, however, “if international
law enforced any
conception of self-determination, it meant one thing: Established states had a right to
be left alone by other states.””9 The field traditionally understood self-determination
as vesting in the entire population of an existing state. It only began to comprehend it
as a right vesting in a collectivity that does not necessarily constitute the whole of a
state’s population after the Second World War, as a means of managing and
legitimating the legal transformation of colonial territories in Africa and elsewhere
into sovereign states. Developing countries only acquired the incidents of sovereignty
when they acquired sovereignty itself. Before they achieved sovereign recognition,
control over natural resources vested in their colonial masters, as did all other
incidents of international sovereign power.
86 Pogge, supra note 77 at 22-23.
87 26 June 1945, Can. T.S. 1945 No. 7, art. 1(2), 59 Stat. 1031 (“[t]he purposes of the United Nations
are … [t]o develop friendly relations among nations based on respect for the principle of equal rights
and self-determination of peoples”).
88 Ibid., art. 55.
89 Supra note 6, art. 1. Accord ICESCR, supra note 7, art. l(l). See also Legal Consequences for
States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding
Security Council Resolution 276 (1970), Advisory Opinion, [1971] I.C.J. Rep. 16 at 31; Western
Sahara, Advisory Opinion, [1975]
that a people possess self-
determination as of international right).
90 Diane Orentlicher, “Separation Anxiety: International Responses to Ethno-Separatist Claims”
(1998) 23 Yale J. Int’l L. I at 22.
I.C.J. Rep. 12 at 31 (holding
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Thus, when international law extended its distribution of sovereignty to include
colonies that had achieved sovereign independence, it vested ex-colonies with the
incidents of sovereignty only at the moment of their independence. States acquire
“the sole right of decision in all matters economic, political, financial or other” only
when they become states.9″ Whether a developing country
is resource-rich or
resource-poor, in other words, turns in part on what resources were left by colonial
authorities when international law vested it with sovereign power.
As Antony Anghie and others have pointed out, additional international legal
doctrines also shaped the extent of resources available to third world states at the
moment of their inclusion in the international distribution of sovereign power. The
doctrine of state succession holds that rights granted by a sovereign power to a
private entity are to be respected by the successor sovereign. In the context of
decolonization, the predecessor sovereigns were, of course, colonial powers. Some
colonial powers also entered into agreements with their colonies shortly before
sovereign independence in which the colony undertook to protect all territorial rights
acquired by achieving independence.9″ Before colonies participated in the distribution
of sovereignty, international law vested the legal power to dispose of their natural
resources in colonial powers, and when colonies became subjects in the distribution,
international law vested them with power only over those resources that remained at
the date on which they achieved sovereign statehood.
subject
to colonial
into
law
rule
incorporated collectivities
The right to development, on a distributive account, thus constitutes a legal
means of addressing adverse distributional consequences caused by the way in which
its
international
distribution of sovereign power. This conception of the right to development focuses
on how the international legal order contributed to the disparity of resources that
exists between developed and developing states. The extent to which it mandates
redistribution turns on how much of this disparity we attribute to the operation of the
international legal order and how much can be attributed to other factors, such as the
failure of poorer states to take advantage of the resources over which they exercise
sovereign power. But this question of attribution is a normative matter, not a matter of
financial accounting. Conceiving of the right to development in distributive terms
it as
yields normative reasons for international human rights law to interpret
to this
mandating global wealth redistribution. The obligations corresponding
interpretation of the right to development do not necessarily correspond to abstract
duties that we owe each other by virtue of our common humanity. Instead, these
obligations lend legitimacy to an international distribution of sovereign power tainted
by the ways in which developing states were legally disadvantaged in the process of
their incorporation in the international legal order.
91 Case of the Customs Regime Between Germany and Austria, supra note 85 at 45.
92 See Anghie, supra note 47 at 214-16; Okon Udokang, Succession of New States to International
Treaties (Dobbs Ferry, N.Y.: Oceana, 1972).
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in contemporary
This distributive account of rights to international co-operation and assistance
and, more generally, the right to development both draws on and departs from
cosmopolitan conceptions of distributive justice
international
political theory. Cosmopolitan justice, at least in some of its strong forms, holds that
the global distribution of wealth and resources should be decided independently of
the boundaries of the state because state boundaries are essentially arbitrary. Beitz
and Pogge, for example, both argue that international distributive justice requires that
global socioeconomic inequalities be arranged to the greatest benefit of the least
advantaged.9″ Simon Caney defends a similar egalitarian distributive vision, one that
includes “subsistence rights, a principle of global equality of opportunity, rules of fair
play, and a commitment to prioritizing the least advantaged.”94 Hillel Steiner goes
further, arguing that all persons have a right to an equal portion of the world’s natural
resources.
95
such
indeed obliged
to, give special concern
The principal challenge confronting
cosmopolitan conceptions of
distributive justice, in the words of Kok-Chor Tan, “is to show how the aspiration for
justice without borders can be reconciled with what seems to be a basic moral fact
that people may, and are
to their
compatriots.”96 The distributive account offered here adopts a narrower focus than
such cosmopolitan conceptions by attending to the effects of how international law
distinguishes between valid and invalid claims of sovereign power. It works with the
existing international legal order, including its commitment to sovereignty. It treats
sovereignty as a good that international law distributes among a variety of legal actors
for reasons that relate to the nature of sovereignty itself, including the fact that it
protects associative relationships
the
distributive account seeks to do justice in an international legal order that protects a
plurality of political communities and the multiple associative ties and obligations
that they engender.
in political communities.
In doing so,
93 Charles R. Beitz, Political Theory and International Relations, 2d ed. (Princeton: Princeton
University Press, 1999) at 180; Pogge, supra note 77 at 209. See also Kok-Chor Tan, Justice Without
Borders: Cosmopolitanism, Nationalism, and Patriotism (Cambridge: Cambridge University Press,
2004) (“a just global distributive scheme would be one which meets [Rawls’] second principle of
justice-equality of opportunity and the regulation of global equality by the difference principle …
[and which] would keep the plight of the worst-off individuals (globally situated) firmly in its sight” at
60-61).
94 Justice Beyond Borders: A Global Political Theory (Oxford: Oxford University Press, 2005) at
95 An Essay on Rights (Oxford: Blackwell, 1994) at 268.
96Supra note 93 at 136. Tan advances a version of cosmopolitan distributive justice that
accommodates but limits patriotic concerns (ibid. at 136-62). Compare Samuel Scheffler, Boundaries
and Allegiances: Problems of Justice and Responsibility in Liberal Thought (Oxford: Oxford
University Press, 2002) at
llff. (distinguishing between cosmopolitanism as a “doctrine about
culture” and cosmopolitanism as a “doctrine about justice”, and seeking to defend a theory of
cosmopolitanism that takes seriously the particular ties and associative relationships that arise in
particular communities of value).
264.
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Conclusion
it as dedicated to the promotion of distributive justice
What remains of the traditional account of international human rights law once
in the
we understand
international legal order? First, it doesn’t rule out comprehending the field as also
concerned with the justice of how states exercise sovereign power. International law
authorizes states to exercise sovereign power, and international human rights law
places limits on how states exercise this power. But international law also distributes
sovereign power to states, and international human rights law requires that it do so in
a just manner. It conditions the legitimacy of sovereignty itself on the extent to which
its exercise mitigates injustices associated with its distribution. Second, it also doesn’t
rule out comprehending the field as concerned with essential features of what it
means to be a human being. Determining whether something constitutes an injustice
will inevitably involve questions of this sort, whether it occurs in the distribution or
exercise of sovereign power.
There is also much more to the structure and operation of the international legal
order than the way it distributes sovereignty among states. A comprehensive
normative account of international human rights law would require a more complete
picture of the distributive dimensions of international law itself, including how it
integrated
gives institutional voice and
economic relations typically associated with processes of economic globalization
between and among state and nonstate actors. It would also require a richer
examination not only of indigenous rights, minority rights, and rights to international
co-operation and assistance, but of the broader set of human rights that comprises the
field as a whole.97 But I hope that the three applications offered here illustrate how, on
a distributive account, universalism takes a back seat to distributive justice in
international law.
legal effect to increasingly dense and
97 For a step in this direction, in the context of international labour rights, see Patrick Macklem,
“The Right to Bargain Collectively in International Law: Workers’ Right, Human Right, International
Right?” in Philip Alston, ed., Labour Rights as Human Rights (Oxford: Oxford University Press,
2005).
