Now available online

University of Toronto Law Journal

Volume 67, No. 4, Fall 2017

UTLJ Online:


Patrick Macklem: The Sovereignty of Human Rights

Editor’s Note

David Dyzenhaus


The University of Toronto Law Journal is delighted to present a collection
of papers that were first given at a symposium on Patrick Macklem’s book,
The Sovereignty of Human Rights. The symposium includes a response by the
author to the revised papers and is introduced by Karen Knop, who sets
Macklem’s book and the different papers in the context of his work as a
whole. The Journal thanks both the University of Toronto Press and the Law
Faculty of the University of Toronto for their support of this endeavour.


Introducing Patrick Macklem, The Sovereignty of Human Rights: Four Contexts

Karen Knop


In offering an account of international human rights internal to public
international law, Patrick Macklem’s The Sovereignty of Human Rights
explicitly takes back international human rights from both moral and
political theory. A number of the contributions to this UTLJ symposium on
Macklem’s book speak to this context by questioning his positivist
definition of law. To grasp the originality and ingenuity of Macklem’s
account more fully, however, several contexts unstated in the book are
essential. The second context identified and contested in the symposium is
the contrast with current trends in legal thought that either meld
international human rights with their domestic counterparts or dissolve them
into transnational law. Other contributions add a third, rights-sceptical
context, understanding Macklem’s account of international human rights as
also addressed to critiques that human rights leave underlying structural
injustices in place. The book’s revolutionary central claim is that the
purpose of international human rights law is to mitigate the adverse effects
of the distribution of power by public international law in the form of
sovereignty. After distilling these three contexts from the articles in the
symposium, this introduction argues that a genealogical reading of The
Sovereignty of Human Rights points to temporality and transition as an
important supplementary context. In effect, the book’s focus is on
redistributions of sovereignty rather than on its distribution at large. The
introduction concludes by asking, in this fourth context, what Macklem’s
‘theoretical architecture’ of international human rights might mean for new
human rights.  <>



Mitigating State Sovereignty: The Duty To Consult With Indigenous Peoples

S James Anaya, Sergio Puig


Few areas of international law practice illustrate the tensions between
business and human rights as well as the implementation of the duty to
consult with indigenous peoples. Consultations give indigenous and tribal
peoples a safeguard for protection of their rights when confronted by the
decisions of governments and business enterprises that may directly affect
them. While states, non-governmental organizations (NGOs), and corporations
are starting to rely on, and to take, this duty seriously, states struggle
with tailoring adequate processes, NGOs often argue that the duty provides
indigenous peoples with an absolute right to give or withhold consent, and
corporations use different strategies to limit the scope of consultations.
Based on two case studies in Latin America, we identify divergent positions
on the duty to consult – positions we call instrumentalist, consent-or-veto
power, and minimalist – and we explain the main elements of each of these
positions. After clarifying common imprecisions, we argue for an approach
centred on the human rights of indigenous peoples to reconcile this
divergent conceptualization of the duty by different stakeholders. Finally,
we argue for reinforcing indigenous peoples’ rights with mechanisms for
specific safeguards and direct participation in benefits, drawing on the
United Nation’s ‘protect, respect, and remedy’ framework, to mitigate the
adverse consequences of the existing distribution of sovereign power as
predicated by Patrick Macklem’s influential work.   <>



Human Rights In International Law? The Forgotton Origins Of Human Rights In
Latin America

Arnulf Becker Lorca


Patrick Macklem’s book is a welcome intervention in current discussions
about the contextual and structural dimensions that account for human rights
abuses. Macklem’s book contributes to this discussion, introducing the
international legal order as a relevant dimension to be considered. Macklem
does so by arguing that international law in part structures our globalized
world and that human rights as international legal entitlements also play a
role in this process. Human rights, Macklem argues, monitor the
international legal order’s structuring of our world, they mitigate the
adverse consequences of this structuring, and, when monitoring and
mitigating, they also render the international legal order legitimate. What
Macklem proposes is a conceptual link between human rights and the
international legal order, in which legitimacy of the latter depends on
meeting the structural demands of justice required by the former. This
conceptual link, however, requires actual articulation. I will explore an
example of this articulation in Latin America. When human rights appeared in
the region, they did so under a conception that linked them to the
international legal structure. Latin American states participated in the
codification of human rights not only to limit the scope of diplomatic
protection but also to give social policies like land redistribution
international legitimacy. While the conceptual link identified by Macklem is
crucial, the Latin American example suggests that it was an underlying
political ideology about regional solidarity – the project of ‘American
International Law’ – which allowed human rights to embody structural
transformation. With that ideological project gone, it remains to been seen
if human rights, at least in Latin America, may again convey yearnings for
international justice.  <>



The Sovereignty Of International Law?

Jutta Brunnée, Stephen J Toope


Patrick Macklem’s The Sovereignty of Human Rights is underpinned by a
commitment to explaining the role of human rights law from the ‘inside’ of
international law, distinguishing this strictly legal realm from global
politics. We explore questions surrounding the ‘inside’ and ‘outside’ of
international law by juxtaposing Macklem’s positivist, validity-focused,
account and our own ‘interactional’ approach, which embraces the
embeddedness of law in social norms and social practices while emphasizing
distinctive traits of legality and legal interaction. We argue that a
validity-based conception of legality results in a necessarily thin account
of the ‘justice’ that human rights can do. Next, we consider Macklem’s focus
on collective rights as being central to the role that he argues human
rights play in mitigating the distribution and exercise of sovereign power
and in legitimating international law’s normative architecture. We assess
whether or not international human rights law really plays the legitimating
role for international law that Macklem claims it does, given that these
rights are subject to a range of limitations built into positive law, such
as reservations to treaties, derogation provisions, or substantive limits.
Finally, we ask whether human rights serve the distinctive normative
function within international law that Macklem accords to them, concluding
that several branches and processes of international law shape and restrict
sovereignty alongside human rights law.  <>



The Uses And Limits of Legalism: On Patrick Macklem’s The Sovereignty of
Human Rights

Jean L. Cohen


Human rights have become the language of justice in our globalizing world.
Yet, curiously, despite many rounds of debate over moral versus political
conceptions, little attention has been paid to the meaning of human rights
as international legal concepts. The specific normative significance of the
fact that human rights are legal norms of the international legal order and
the implications this has for the nature and justice of that order has
gotten lost in the fray. This article addresses Patrick Macklem’s excellent
attempt to fill that gap. He is right that a key function of international
human rights law is to mitigate the injustices of an international legal
order that distributes sovereignty to states. A legal conception of human
rights is indeed needed to get at the distinctive normative role
international human rights documents play as law. But I argue that, while
such an analysis can and must supplement other approaches, no adequate
understanding of human rights as international legal norms can dispense with
moral justifications of them. Otherwise, the purpose and specificity of
human rights as distinct from the rights of corporations and other non-human
entities gets obscured and the priority of the human rights of human
persons, vis-à-vis other legal persons, is undermined.



International Labour Rights: Legitimizing The International Legal Order?

Ruth Dukes


This article considers the role of international labour rights in an era of
globalization. It begins from Patrick Macklem’s definition of that role in
terms of providing the international legal order with a measure of normative
legitimacy. It then interrogates the relationship between sovereignty and
international labour rights in an era of globalization, highlighting the
particular significance, in this context, of the voluntary surrender by
nation states of elements of their sovereignty. It questions whether Macklem
has given due consideration to this phenomenon and to its consequences for
the rights and interests of workers and whether, therefore, he has succeeded
in providing an account of international labour rights that is at once
descriptive and normative, as he intends it to be. Having drawn attention to
the limitations of international labour rights, the article concludes by
commenting briefly on the desirability of a body of transnational labour
law, of which international labour law would form only one part.



The Politics Of International Indigenous Rights

Andrew Erueti


The Declaration on the Rights of Indigenous Peoples is typically read as an
elaboration of classic human rights norms. Patrick Macklem in his book, The
Sovereignty of Human Rights, argues that the declaration should instead be
read as corrective in that it seeks to address unfair distributions of
sovereignty sanctioned by international law. I suggest that instead of being
based on a single justificatory model, whether human rights or historical,
the declaration contains both models. This interpretative mixed model, as I
call it, is based on the political history of the negotiation of the
declaration and, in particular, on the advancement of a decolonization model
by indigenous peoples of the Northern Anglo-settler states versus the human
rights model preferred by indigenous peoples of Latin America, Asia, and
Africa.  <>



The Authority Of Human Rights

Evan Fox-Decent


Original and magisterial, Patrick Macklem’s The Sovereignty of Human Rights
departs radically from the moral and political conceptions of international
human rights law (IHRL) that dominate the literature. Rather than grounding
human rights on features of our shared humanity (the moral, orthodox
conception) or on their role in global politics (the political conception),
Macklem claims that the point and purpose of IHRL is to mitigate the adverse
effects produced by the structure and operation of international law itself
and, in particular, the adverse effects of its distribution of sovereignty
to some entities – states – and not others. In this article, I suggest that
Macklem’s mitigation theory succeeds admirably in explaining various
international human rights that moral and political theories are
hard-pressed to explain, such as collective rights and labour rights. The
great virtue of his theory is that it recognizes the potent abuses
international law’s distribution of sovereignty makes possible and then
calls on IHRL to serve a remedial and legitimating function from within
international law itself. Macklem, however, subscribes to a positivist legal
theory that is closer to John Austin’s command theory than it is to HLA
Hart’s or Joseph Raz’s positivism. As a consequence, Macklem struggles to
account for the authority of IHRL. I suggest a friendly amendment that would
let Macklem’s theory account for IHRL’s authority. The way forward is
through the development of a relational conception of IHRL. This conception
trades on a criterion of legitimacy according to which IHRL’s authority is
constituted by its capacity to empower legal institutions to speak in the
name of, or on behalf of, whomever is subject to them.



Is The Principal Function Of International Human Rights Law To Address The
Pathologies Of International Law? A Comment On Patrick Macklem’s The
Sovereignty Of Human Rights

Christopher McCrudden


I aim to provide a critique of Patrick Macklem’s thesis in The Sovereignty
of Human Rightsthat the function of human rights in international law should
be seen ‘in terms of their capacity to monitor the structure and operation
of the international legal order … requir[ing] the international legal order
to attend to pathologies of its own making.’ I suggest an alternative
account that seems to me to be more consistent with much of the practice
that he describes, which I rearrange to provide a more convincing narrative.
The function of human rights in international law does have the function
that Macklem attributes to it, among others, but to claim that this is the
function of international human rights law is to underestimate the
complexity of human rights as well as their true significance (at least in
my view). An analysis of international human rights law must take this
complexity into account if a coherent and convincing explanation of the
normativity of international human rights law is to stand any chance of
being identified.  <>


Positivism And Practice Beyond Sovereignty

Patrick Macklem


This Reply engages with three topics raised in the essays in this special
issue on The Sovereignty of Human Rights. The first relates to the book’s
enlistment of international legal positivism as a defining feature of what
constitutes a human right in international law. The second is the role that
practice plays in the account that it offers of the normative mission of
human rights in international law – namely, that human rights act as legal
instruments that mitigate some of the pathologies associated with how
international law organizes global politics into an international legal
order. The third inquires into the role that human rights play beyond
sovereignty – specifically, in relation to non-state actors such as
multinational corporations and international economic institutions.


Review Essay


Managing The Governance Gap

Galit A Sarfaty


There is a governance gap in the reach of both national and international
law, thus leaving companies not legally accountable for potential human
rights violations. Closing this governance gap is a critical challenge and
one that Penelope Simons and Audrey Macklin strive to address in their book,
The Governance Gap: Extractive Industries, Human Rights, and the Home State
Advantage. After carefully outlining the limitations of existing laws and
initiatives, they argue that home state regulation should play a larger role
in deterring corporations from becoming complicit in human rights
violations. The potential success of any regulatory proposal to close the
governance gap will depend on its ability to effectively shape corporate
behaviour. In an effort to achieve this goal, Simons and Macklin recommend a
home state governance regime that not only provides ex poste civil liability
but is also focused on ex ante prevention of corporate human rights abuses
through assessment, monitoring, and disclosure mechanisms. Simons and
Macklin’s proposal revolves around mandatory domestic legal mechanisms and a
risk-based approach that is centred around due diligence, which would
facilitate the operationalizing of human rights within corporate culture.
This review essay considers the implications of this proposal in the context
of a review of Simons and Macklin’s book.  <>



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