The Authority of Human Rights

THE AUTHORITY OF HUMAN RIGHTS September 4, 2016 Evan Fox-Decent* (draft, forthcoming in 2017 in University of Toronto Law Journal) Authoritas non Veritas facit Legem. Authority not Truth makes Law. Thomas Hobbes, Leviathan, reprinted in Noel Malcolm ed, The English and Latain Texts (i) vol 2 (Oxford: Oxford University Press, 2012) ch 26 at 431 (Latin version). I. INTRODUCTION The dominant approach to human rights conceives of them as natural and universal moral entitlements possessed by all individuals.1 The character of human rights on this understanding can be brought into relief by comparing them to the rights of citizens. Whereas the rights of citizenship are grounded on membership in a particular political community, human rights are thought to be rights all human beings share simply by virtue of their common humanity. Typically, these theories claim that the moral status, personhood or dignity of individuals lies at the foundation of human rights. On this orthodox view, international human rights law (IHRL) is legitimate to the extent it mirrors the moral and universal requirements of the individual’s moral status, personhood or human dignity. In recent years, practical or political conceptions of human rights have challenged the orthodox approach. Under these rival accounts, human rights are conceived as practical or political * Associate Professor of Law, McGill University. For helpful comments and suggestions I am indebted to the participants of the symposium that gave rise to this edition of the UTLJ, and in particular to the UTLJ’s editor, David Dyzenhaus. 1 See, for example, Jack Donnelly, International Human Rights, 4th ed (Boulder, Colorado: Westview Press, 2013); Alan Gewirth, Human Rights: Essays on Justifications and Applications (Chicago: University of Chicago Press, 1982); HLA Hart, “Are There Any Natural Rights?” (1955) 64 The Philosphical Review 175; John Tasioulas, “Towards a Philosophy of Human Rights” (2012) 65 Current Legal Problems 1. limits on state sovereignty,2 benchmarks for a state’s entrance into the ‘reasonable Society of Peoples,’3 or indicators of when international action, such as humanitarian intervention, may be taken against wicked states.4 Under both orthodox and political accounts, human rights oppose state sovereignty by limiting the scope of a state’s sovereign autonomy to actions consistent with human rights. Human rights operate, under both accounts, as ‘side constraints’ on the exercise of sovereign powers.5 Patrick Macklem’s magisterial The Sovereignty of Human Rights presents a very different vision of IHRL. According to Macklem, ‘human rights [of international law] serve as instruments that mitigate adverse consequences of how international law organizes global politics into an international legal system.’6 More specifically, human rights ‘speak to adverse consequences of how international law deploys the concept of sovereignty to organize global politics into a legal order.’7 Macklem convincingly demonstrates that international law’s past and ongoing distribution of sovereignty produces many dangers and adverse effects. When international law draws lines on a map over territory occupied by more than one people or nation, it necessary creates minorities who, ordinarily, are vulnerable to the majority. International law drew many such territorial lines over the lands of indigenous peoples, legitimating colonial projects that dispossessed those peoples of their lands. And because international law’s distribution of sovereignty carries with it an authorization to govern through force of law, individuals subject to state power are vulnerable to abuse by state agents or private parties the state is unwilling to sanction. On Macklem’s telling, IHRL can Charles Beitz, The Idea of Human Rights (New York: Oxford University Press, 2009). John Rawls, The Law of Peoples (Cambridge: Harvard University Press, 2001) at 5, 18, 63, 64, 84, 126. 4 Joseph Raz, “Human Rights Without Foundations” in John Tasioulas & Samantha Besson, eds, The Philosophy of International Law (Oxford: Oxford University Press, 2010). 5 See Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974) at 30-33. 6 Patrick Macklem, The Sovereignty of Human Rights (New York: Oxford University Press, 2015) at 22. 7 Ibid. 2 3 2 be explained by the role it plays in international law’s quest for redemption: by protecting groups and individuals made to suffer adverse effects of international law’s own making, IHRL lends international law a measure of legitimacy. Macklem’s account is original, revolutionary, and powerful. It is original because it offers a whole new way to think about IHRL. It is revolutionary because rather than posit human rights as moral or political constraints on sovereignty, it aims to explain them from within international law through reference to international law’s distribution of sovereignty to states. And it is powerful because it holds out the promise of explaining various fields and aspects of IHRL that orthodox and political conceptions are hard-pressed to explain. The orthodox conception, for example, struggles to explain minority rights and indigenous rights where the right-holder is a group, because the holder of human rights under moral conceptions is ordinarily the individual. Similarly, the orthodox approach strains to explain IHRL’s conferral of rights on some persons but not others, such as the special rights enjoyed by women and workers. Because these rights do not extend to everyone, they sit uneasily with the orthodox account’s commitment to universalism. Political conceptions face other challenges. Because their focus is generally limited to relations between sovereigns and their people, they are ill-equipped to accommodate the right to development’s cosmopolitan obligations to reduce global poverty. And because the overarching concern of such conceptions is to deploy human rights as benchmarks or indicators within the realm of global politics, they neglect, as Macklem points out, ‘the normative role that [human rights] play in the structure and operation of international law.’8 By contrast, Macklem’s mitigation theory is well suited to explain group rights, special rights and cosmopolitan obligations. Plausibly, international law’s distribution of 8 Macklem, supra note 6 at 18. 3 sovereignty to territorially discrete states is substantially to blame for a multitude of adverse effects confronting minorities, indigenous peoples, and historically vulnerable individuals. It is equally plausible that the ‘structure and operation of international law’ is at least partially responsible for significant global poverty. If the central mission of IHRL is mitigation of these harms, then it makes no difference that the right-holder is a group rather than an individual, or a particular class of individuals rather than every individual, or a stranger in a foreign land. Moreover, for international lawyers and legal theorists generally, Macklem’s theory is arresting because it purports to explain human rights from within international law, from a distinctively legal point of view, and in a way that aspires to redeem international law by positioning human rights ‘to attend to pathologies of [international law’s] own making.’9 Nonetheless, we shall see that Macklem’s effort to develop an internal and redeeming explanation of IHRL is impeded by his commitment to a positivist account of international law. Macklem’s positivism treats IHRL as external to sovereignty, casting doubt on whether IHRL can reconstitute sovereignty so as to make legitimate authority of sovereign power. The separation of IHRL and sovereignty risks putting the two in an unstable conflict in which IHRL at best tames sovereignty from the outside, making it less bad than it would be otherwise. In elaborating the sense in which his theory is a legal theory, Macklem follows Kelsen in drawing a sharp, positivist line between law and morality. He warns that ‘legal conceptions of human rights that seek to explain their purpose in terms that go beyond positivistic accounts of their legal production threaten to reintroduce moral considerations into the picture, which undermines the possibility that human rights can be understood in 9 Ibid at 1. 4 distinctly legal terms.’10 Of course, this is true only if one subscribes to a positivist view of law under which the existence of authoritative legal norms is determined entirely by reference to their pedigree or source.11 Macklem defends his positivist approach, in part, with the claim that ‘if the right to development imposes obligations on developed States to combat global poverty because global poverty is morally unjust, then morality, not law, determines the purpose of the right.’12 This is a variant of a classical and powerful positivist argument against old-school natural law theories; i.e., the argument that natural law theories cannot account for laws that are both valid and morally unjust. There is, however, an equally powerful and familiar argument against positivism: if law’s existence can be fully explained by reference to its normatively inert sources, how are we to explain the normative authority law claims and the correlative idea that it imposes binding obligations on its subjects? In what follows, I argue that Macklem unnecessarily truncates the explanatory power of his theory as a legal theory because he tethers it to a positivist conception of law that conflates the source-based modes of IHRL’s authorization, on the one hand, with the nature of IHRL’s authority, on the other. A non-positivist conception of IHRL that does not produce this conflation is available to Macklem, an account that eschews the view that unjust laws are ipso facto invalid while nonetheless claiming that valid laws can fail to be authoritative if they lack constitutive requirements of IHRL’s authority. Rather than treat IHRL as a side constraint on sovereignty, this account views IHRL as partially constitutive of sovereignty, and therefore allows IHRL to contribute to the authority of both sovereignty and international law. Ibid at 21. See, for example, HLA Hart, The Concept of Law, 3rd ed (Oxford: Oxford University Press, 2012) at 91-123 (developing his theory of law as the union of primary and secondary rules which, he argued, are fully specifiable as social facts and without resort to moral considerations) [Concept of Law]. 12 Macklem, supra note 6 at 22. 10 11 5 I begin this argument by exploring, in Part II, IHRL as a form of constitutionalism, and one specifiable independently of a concern to mitigate the adverse effects of international law’s distribution of sovereignty. In addition, while a concern for mitigation offers an intriguing macro-level explanation of various fields of IHRL—one that takes seriously the structure and operation of international law—that insight alone may not help to resolve controversies within IHRL itself, such as questions regarding the content of its norms and whether certain of them are jus cogens or peremptory, and therefore not subject to limitation. These remarks set the stage for Part III, which develops a critique of Macklem’s positivism. We shall see that Macklem’s theory of IHRL mirrors the structure of Joseph Raz’s theory of the rule of law. Whereas for Raz the rule of law mitigates the danger of ‘arbitrary power’ posed by law and its institutions,13 for Macklem IHRL mitigates the adverse effects of international law’s distribution of sovereignty. Neither Raz nor Macklem, I argue, can account for law’s claim to authority, a claim that Raz takes to be a necessary feature of any legal system. In Macklem’s case, this failure implies that even if his theory can illuminate a central purpose of IHRL (i.e., to mitigate the adverse effects of sovereignty), it nonetheless cannot integrate IHRL into the core of sovereignty because the core of sovereignty is constituted by precisely the authority law claims. This implication in turn raises the question of whether Macklem’s purportedly legal account of human rights is really ‘internal to the structure and operation of international law.’14 Part IV offers a non-positivist account of IHRL as a friendly amendment to Macklem’s view. The amendment aims to be friendly because it takes on board Macklem’s Joseph Raz, “The Rule of Law and its Virtue” in Joseph Raz, The Authority of Law (Oxford: Oxford University Press, 1979) 210, at 224 (‘The law inevitably creates a great danger of arbitrary power—the rule of law is designed to minimize the danger created by the law itself’) [Rule of Law]. 14 Macklem, supra note 6 at 2. 13 6 central insight that IHRL aims to mitigate the adverse effects of international law’s distribution of sovereignty. Moreover, Macklem’s positivism is arguably in tension with another aspect of his theory, which is that IHRL itself ‘seeks to do justice in the world in which we live,’15 and in particular, that it seeks to promote ‘international distributive justice.’16 Compare this positive orientation toward justice with Raz’s thought that ‘[t]he rule of law is essentially a negative value’ because ‘conformity with [the rule of law] does not cause good except through avoiding evil and the evil which is avoided is evil which could only have been caused by the law itself.’17 For IHRL to embody or promote a form of distributive justice that goes beyond being a ‘negative value,’ it has to embody a form of law whose authority is in part constituted by IHRL. Or so I shall argue. II. IMMANENCE, CONTINGENCY, AND HARM Many proponents of human rights imagine them to establish a constitutional floor of any decent or well-ordered society.18 Within a paradigm sometimes referred to as global constitutionalism, human rights are part of its ‘trinitarian commitment,’ along with democracy and the rule of law.19 Some of Macklem’s readers may wonder whether a teleological focus on the mitigation of international law’s adverse effects is adequate to account for the liberal and (more controversially) egalitarian constitutional vision IHRL is sometimes thought to represent. Macklem, supra note 6 at 184. Ibid at 207 (characterizing the right to development as ‘an instrument that promotes international distributive justice’). 17 Raz, Rule of Law, supra note 13 at 224. 18 See, for example, James Nickel, Making Sense of Human Rights, 2nd ed (Malden, MA: Blackwell Publishing, 2007) at 36, 140; John Rawls, “The Law of Peoples” (1993) 20 Critical Inquiry 36. 19 Mattias Kumm, “Constitutionalism and the Cosmopolitan State” (2013) New York University Public Law and Legal Theory Working Papers, Paper 423 at 3. 15 16 7 Imagine a sizable multicultural and pluriethnic group that is shipwrecked and marooned on an uncharted island. Through no fault of anyone, the shipwrecked population consists in a dominant western majority and several western minorities. Living on the island already is a small and a non-western indigenous group. These groups agree to establish a democratic forum, and within that forum they decide they want to establish a liberal egalitarian constitution under which everyone is to be treated with equal respect and concern. Some suggest looking to various national liberal constitutions for guidance. Others suggest looking to IHRL, and point specifically to its wide range of political, civil, socioeconomic, cultural, minority, and indigenous rights. We might imagine debate over whether some of IHRL’s rights are relevant to the islanders’ circumstances, given the island’s lack of modern institutions and lack of contact with the outside world (e.g., the right to legal counsel in a criminal proceeding, the right to form a union, the right to a nationality, the right to seek asylum). We might imagine further discussion around the question of how precisely economic rights, such as rights to shelter and healthcare, are to be realized progressively. Yet other discussions might turn on how the rights of minority and indigenous peoples found in IHRL are to be recognized so as to protect their beneficiaries from domination at the hands of the majority. But I think it would strike any participant in these discussions as odd if someone were to suggest that IHRL is an inapposite place to look for guidance on the grounds that IHRL’s strict purpose is to ameliorate the adverse affects of international law’s distribution of sovereignty. It would strike the discussants as odd because arguably the significance of IHRL is not exhausted by the role it plays in mitigating the adverse effects of sovereignty. Quite plausibly, IHRL can inform the very constitution of sovereignty itself. One need not travel to philosophically quixotic islands to see that this is so, for IHRL is an explicit part of the ‘trinitarian’ message of global constitutionalism, and 8 part of the practice of the international community when it assists societies emerging from conflict. When the United Nations takes on transitional territorial administration, as it did recently in East Timor and Kosovo, or otherwise provides support to countries with a violent history, such as Namibia, Haiti, El Salvador and Guatemala, its first order of postconflict business tends to be constitutional reform premised in part on IHRL.20 On a cynical interpretation, one might think that the United Nations follows this path because no belligerent party can publicly deny the legitimacy of internationally recognized human rights. A less cynical and equally available interpretation is that the rights and freedoms of IHRL can play a constitutive role in the construction of a kind of sovereignty worthy having. Macklem can offer two sorts of replies to these concerns. The first is to concede that from philosophical and artificial perspectives such as a desert island, a state of nature, or even a veil of ignorance, human rights may indeed form part of the constitution around which reasonable persons might come to agree. But his theory is more limited in scope. Its aim is not to explain the fundamental organizing principles of a just society considered in the abstract, but rather to explain the human rights actually recognized by international law today, under contemporary circumstances in which international law actually distributes sovereignty over territory and persons throughout the world to some actors and not others. Macklem’s theory, in other words, seeks to expose a structure that is immanent to contingent features of international law’s history and practice. The second reply is to note that there is no inconsistency between IHRL forming the bedrock of domestic constitutional orders, on the one hand, and explicating IHRL as For discussion and critique of the UN missions in several of these contexts, see Simon Chesterman, You, The People: The United Nations, Transitional Administration, and State-Building (Oxford: Oxford University Press, 2004). 20 9 international law’s own means of mitigating the dangers of sovereignty, on the other. International law distributes sovereignty to all entities it recognizes as states, so entrenching aspects of IHRL within their constitutions is explained as international law’s effort to protect individuals and groups from abuses of sovereign power. What neither of these replies do, however, is provide a reason for thinking that the sovereignty international law distributes to states today is not itself in part constituted by IHRL. Borrowing from Jean Cohen, Macklem suggests that sovereignty and human rights are in a ‘recursive relationship,’21 by which he means that international law ‘treats neither in absolute terms.’22 I return to this below. For now, I pause to consider a further aspect of the mitigation theory, which is its capacity to offer a legal explanation of IHRL’s norms while helping to guide inquiry into their content and status. In his discussion of labour rights, Macklem convincingly argues that instrumental accounts cannot explain the purpose of IHRL’s entrenchment of labour rights from an international legal point of view, while universal conceptions cannot explain the rich diversity and specificity of labour rights enshrined in IHRL. On the instrumental view, international labour rights serve to protect domestic labour from ‘the corrosive effects of international competition,’ such as races to the bottom.23 The significance of international labour rights, on this view, lies in their instrumental ability to buttress domestic labour law’s struggle against global capital. As a consequence, the ‘structure and operation of the international legal order’ is not relevant to the purpose and nature of international labour rights, since it is ‘the structure and operation of domestic legal arrangements’ that do ‘the Macklem, supra note 6 at 105 (citing Jean L. Cohen, Globalization and Sovereignty: Rethinking Legality, Legitimacy, and Constitutionalism (Cambridge: Cambridge University Press, 2012) at 163). 22 Macklem, supra note 6 at 105 23 Ibid at 83. 21 10 normative heavy lifting.’24 Universal accounts, for their part, are ill-equipped to explain the basic fact that labour rights vest in workers alone, and some labour rights, such as the right to bargain collectively, vest in only some workers (managers typically have no right to bargain collectively).25 Nor, Macklem says, can universal theories explain the thought that states have cosmopolitan duties to extra-territorial foreign workers, since the focus of universal approaches is the state’s obligation to respect ‘the labor rights of the individuals under its sovereign power.’26 Macklem’s solution to the weaknesses of the rival theories turns on the elegant insight that ‘the normative significance of labor rights in international law lies in the fact that their purpose is to mitigate the harm that States can cause to workers in the exercise of sovereign power that international law vests in States.’27 The threat of harm to workers has both an internal and an external dimension, since states are authorized under international law to govern the people within their territory (the internal dimension) and to act for their people internationally (the external dimension). On this view, international labour rights mitigate the harm that States could otherwise do to workers within their territory, but they also, Macklem boldly claims, ‘require States, when exercising sovereign power, to do so in ways that enhance the capacity of all States to protect workers from exploitation,’ and ‘in ways that promote labor rights globally.’28 This felicitous cosmopolitan result follows, Macklem says, from the idea that ‘the purpose of international labor rights relates to the legitimacy of the international, not the domestic, legal order.’29 Ibid. Ibid at 89. 26 Ibid at 94. 27 Ibid at 95. 28 Ibid at 100. 29 Ibid. 24 25 11 While I am enamoured of the normative project and the conceptual ambition to root the significance of international norms within the ‘structure and operation of international legal order,’ there are a number of steps in the argument about which I am uncertain. Here and elsewhere Macklem refers to the ‘harm’ or ‘adverse effects’ states can cause to individuals or groups through the exercise of sovereignty. The idea of a harm or adverse effect can be understood in two ways. On the first understanding, harm is a non-moralized concept that denotes the setting back of interests to which the individual has no moral or legal claim. When I decline your dinner invitation or set up a business to compete with yours, I harm you in this sense. On the second understanding, harm is a moralized concept that denotes the wrongful setting back of someone’s interests. When, for no good reason, I break my promise to join you for dinner, or steal trade secrets crucial to your business, I harm you in this second sense, because I also wrong you. Generally, it seems that Macklem deploys the first, non-moralized understanding of harm. This conception fits well with his positivism, as it allows him to identify international legal norms with non-moralized language, and simply by reference to their sources. Yet at times, when he seeks to articulate the normative payoff of his theory, he seems to rely on the second, moralized understanding of harm: states must exercise sovereign power to ‘enhance the capacity of all States to protect workers from exploitation.’ Exploitation in the relevant sense, I assume, is intrinsically wrongful. And more interesting still, it can occur even when the exploitative act benefits its victim, as occurs when an impoverished worker has to choose between starvation and work at an exploitative rate. Both choices are bad, but ordinarily starvation leaves the worker worse off. The point is that a mere focus on harms of a nonmoralized nature may not be enough to account for IHRL from its own internal point of view or self-understanding, since IHRL seems to care about wrongs such as exploitation that 12 a non-moralized account of harm cannot explain. In other words, although Macklem’s theory may provide an account of IHRL that is internal to international law, the deployment of a non-moralized account of harm arguably undermines the theory’s ability to provide an account of IHRL that is true to IHRL’s own nature and internal to it. This can be seen as well by the difficulty Macklem’s theory would confront if called on to offer guidance on the content and status of various norms of IHRL. Many of IHRL’s norms are cast in deliberately open-textured language, and their interpretation is the subject of ongoing controversy. Consider, for example, the prohibition on torture, which is enshrined in numerous treaties, has its own treaty and monitoring body, and is widely regarded as a peremptory norm of international law.30 Under Article 1 of the CAT, torture is defined, in part, as the intentional infliction of ‘severe pain or suffering.’31 One of the difficulties with this standard is that it is amorphous, so much so that during the early years of the ‘war on terror’, practitioners of enhanced interrogation tactics, including waterboarding, could publicly claim that they were not engaged in torture. But another deficiency of this aspect of the definition is that it does not identify the special wrong of torture. It thereby fails to distinguish it from cruel, inhuman or degrading treatment except by reference to a quantum of pain and suffering that is in practice if not in principle impossible to specify. Evan Criddle and I have argued that the special wrong of torture, in the standard See, for example, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100– 20 (1988), 1465 U.N.T.S. 85 [hereinafter CAT]; International Covenant on Civil and Political Rights, Dec. 16, 1966, S. Exec. Doc. E, 95- 2 (1978), 999 U.N.T.S. 171, Art. 7. 31 Article 1 of the CAT affirms that ‘the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.’ 30 13 case, consists in the use of violence by public officials to break the victim’s will so as to conscript him to serve as a means to an end he does not share.32 Others, such as David Luban, suggest the wrong consists in the ‘total subordination’ of the victim to his persecutor.33 What these various approaches share is the view that to understand torture, we have to understand the wrong it represents. A non-moralized conception of harm could never be enough to explain the content of the wrong. We might also query how Macklem’s theory could guide deliberation toward singling out some of IHRL’s norms and not others for inclusion within the relatively narrow range of peremptory norms of international law. These are jus cogens norms that states may not infringe on any pretext. The prohibitions on genocide, slavery, arbitrary killing, forced disappearance, racial discrimination, and torture, for example, are commonly cited as jus cogens norms of international law.34 But even torture’s inclusion has become controversial because, from the third-personal standpoint of balancing and weighing interests, it is easy to construct ticking time-bomb scenarios in which the greater good is arguably achieved through the authorization of torture. A theory whose focus is the mitigation of (nonmoralized) harm may be vulnerable to the charge that it counsels interest-balancing to the detriment of legal and normative lines in the sand that, for better or worse, international law has seen fit to draw. The inclusion of other norms within jus cogens is more controversial still. These include the prohibition on non-refoulement or deportation to a place of danger,35 the Evan J Criddle & Evan Fox-Decent, Fiduciaries of Humanity: How International Law Constitutes Authority (New York: Oxford University Press, 2016) at 108-110. 33 David Luban, Torture, Power, and Law (Cambridge: Cambridge University Press, 2014) at 128-136. 34 See, for example, Restatement (Third) of Foreign Relations of the United States § 702 cmts d-I, § 102 cmt k (1987). 35 See, for example, Jean Allain, “The Jus Cogens Nature of Non-Refoulement” (2001) 13 International Journal of Refugee Law 533 (defending the duty of non-refoulement as a peremptory 32 14 prohibition on corruption,36 and minimal requirements of due process.37 There is no consensus within international law on whether such norms are peremptory. The usual sources of treaty law and customary law are either silent or ambivalent. A state that violates any of these norms will ordinarily set back the interests of the individual or group affected. But a state that infringes non-peremptory rights that are explicitly subject to limitation, such as freedom of expression or assembly, will also typically set back the interests of those affected. A concern for the protection of interests alone does not supply a criterion adequate to distinguish peremptory from non-peremptory norms. Nor could it, for two related reasons. The first, discussed above, is that a concern for interests, without more, does not illuminate the quality of the wrong that transpires when state action sets back interests protected under jus cogens. Without some sense of the quality of the wrong at stake, it is hard to imagine how international law could justifiably prohibit states from engaging in certain actions in absolute terms, let alone distinguish those prohibitions from the non-absolute restriction on state action mandated by the majority of the norms found in IHRL. The second reason a concern for interests alone cannot separate peremptory from nonperemptory legal norms has to do with the standpoint from which interests are balanced and considered. norm). But see Kay Hailbronner, “Nonrefoulement and ‘Humanitarian’ Refugees: Customary International Law or Wishful Legal Thinking” (1985) 26 Virginia Journal of International Law 857, at 858 (rejecting the idea of a customary duty of non-refoulement as ‘wishful legal thinking’). 36 For the idea that wide-scale public corruption should be considered a crime against humanity, and by implication a peremptory norm, see Sonja B Starr, “Extraordinary Crimes at Ordinary Times: International Justice Beyond Crisis Situations” (2007) 101 Northwestern University Law Review 1257, at 1297. 37 See Alexander Orakhelashvili, Peremptory Norms in International Law (Oxford: Oxford University Press, 2008) at 60 (affirming ‘due process’ as peremptory). But see Michael Byers, Book Review (2007) 101 American Journal of International Law 913, at 916 (claiming that ‘due process guarantees’ are ‘derogable’). 15 Interest-balancing presupposes a third-personal standpoint from which, other things being equal, all relevantly similar interests are treated as equal. From this perspective, it may make moral sense to torture someone to stop a ticking time-bomb.38 Law, however, does not adopt this standpoint. Law speaks and makes claims not as an impersonal observer, but as an authority.39 It does so from what Stephen Darwall describes as the ‘second-personal’ perspective, the perspective from which an authority lays claim to tell others what to do just because the authority is in fact an authority.40 It is the difference between reasoning with your children and instructing them what to do just because you said it. Or, consider one of Darwall’s examples, the case of someone stepping on your foot, and what you might say to to get him to stop.41 From the third-personal perspective, you might tell him that he has a general duty not to cause pain. You might point out how easy it would be for him to comply with his duty in this case, and that the world would instantly be a better place were he to do so. From the second-personal perspective, however, you would simply demand that the transgressor remove his foot from yours, and this would give him a reason to do so because all moral agents have authoritative standing to make these kinds of demands against others who are wronging them. For Darwall, authorities necessarily adopt this second-personal perspective. They make claims against others on the basis of their standing to do so, whereas I leave to one side the possibility of indirect justifications of the prohibition on torture. Indirect justifications are those that prohibit a practice that may in a given case lead to an optimal result (however that is measured), but which over time can be expected to lead to suboptimal results. Some consequentialists justify the strict prohibition on torture through this device. These arguments are vulnerable to the critique that in an exceptional case the consequences of doing nothing would be so grave that torture must be permitted. 39 Of course, ‘law’ and ‘IHRL’ do not literally speak and make claims for or against others; the occupants of legal institutions do so. I sometimes use ‘law speaks’ or ‘law claims’ (or ‘IHRL speaks’ or ‘IHRL claims’) as a shorthand for the attribution of words or actions to persons authorized to occupy legal institutions or to act in a public or representative capacity. Likewise, I sometimes say ‘law’ or ‘IHRL’ is an authority, when really the law or IHRL is authoritative, and the authorities are those who the law authorizes to wield public power. 40 Stephen Darwall, The Second-Person Standpoint: Morality, Respect and Accountability (Cambridge: Harvard University Press, 2006). 41 Ibid at 5-10. 38 16 speakers from the third-personal perspective make claims against others on the basis of impersonal moral reasons whose force is not related to the speaker’s standing, position, or role. I will suggest that IHRL, properly understood and as a species of law more generally, is authoritative for those subject to it. Consequently, IHRL does not adopt a third-personal perspective that invites open-ended interest-balancing, but rather adopts the second-personal perspective characteristic of authorities. We shall see that an advantage of this framework is that it suggests a practicable criterion for establishing the limits of state authority, limits that are constituted, in part, by IHRL. Evan Criddle and I have argued that this criterion of legitimacy lays down that all state action, to be legitimate, must be intelligible as action taken on behalf of or in the name of every person subject to it.42 International law can delegate this authority to states because international law speaks for and represents humanity, as an authority. With the framework of authority and its criterion of legitimacy in place, we can explain the quality of the wrongs (or threats of wrongdoing) that IHRL seeks to address. Before turning to these matters, however, I canvas briefly the difficulty positivism faces in accounting for law’s authority, the best positivist reply to this conundrum (which fails), and how the problem of accounting for authority affects the positivist aspect of Macklem’s theory. III. POSITIVISM AND AUTHORITY If the existence of law is determined simply by reference to social facts, which are normatively inert, how are we to make sense of the normative claim to authority law makes over those who are subject to it? Contemporary positivists are well aware of the challenge 42 Criddle & Fox-Decent, supra note 32 at 3. 17 they face in explaining law’s authority. Joseph Raz has offered one of the most ingenious positivist attempts to solve this puzzle. Far from denying that there is a necessary connection between law and authority, Raz posits as an existence condition of any legal system that it must claim to possess legitimate authority.43 ‘The law’s claim to authority,’ Raz says, ‘is manifested by the fact that legal institutions are officially designated as “authorities,” by the fact that they regard themselves as having the right to impose obligations on their subjects, by the claims that their subjects owe them allegiance, and that their subjects ought to obey the law as it requires to be obeyed.’44 A legal system’s claim to possess legitimate authority distinguishes it from a purely coercive system, and distinguishes law as a human artefact from laws that govern the physical world. Of course, the mere fact that a legal system claims to possess legitimate authority does not mean that it does in fact possess it, or that its possession of legitimate authority is as extensive as it alleges. But, if ‘the claim to authority is part of the nature of law,’ as Raz suggests, then he is committed to the further proposition that ‘whatever else law is it must be capable of possessing authority.’45 Raz offers an account of legitimate authority that he thinks legal systems in principle could possess, which he calls the ‘service conception,’ since the idea is that legitimate authorities help their subjects comply better with the requirements of reason than they would if they relied on their own judgment.46 At the heart of Raz’s account is the ‘normal justification thesis,’ whose name is meant to suggest that his theory exposes the presuppositions latent within our ordinary or Joseph Raz, “Authority, Law, and Morality” in Ethics in the Public Domain: Essays in the Morality of Law and Politics, rev ed, (Oxford: Oxford University Press, 1994) at 215 (arguing that ‘every legal system claims that it possesses legitimate authority’) [‘Authority, Law, and Morality’]. 44 Ibid at 215-16. 45 Ibid at 215. 46 Ibid at 214. 43 18 ‘normal’ understanding of practical authority.47 According to this thesis, one person is an authority for another if the authority’s subject would generally comply better with moral or prudential reasons that apply to her anyway were she to do what the authority told her to do rather than act directly on her own judgment. For example, if people abide by local traffic laws by driving on the right side of the street in Canada and the left side of the street in the UK, they will generally comply better with reasons that apply to them anyway than if they decide for themselves on which side of the street to drive. Numerous commentators have objected that even if an authority under Raz’s theory can help its subjects comply better with reason, it does not follow that the purported authority has standing to impose duties on its subjects.48 Stephen Perry provides a decisive argument to show that even if a subject had a moral duty (and not just a moral reason) to do as instructed by the putative authority, it would not follow that the authority had standing to impose such a duty on the subject or enforce his compliance.49 Perry invites us to imagine someone embarking on the transportation of dangerous goods. Given the nature of this activity, the individual is under a moral duty to avoid creating risks for others in the transportation of those goods. The relevant governmental regulator, we assume, knows much better than the individual the various precautions that must be taken to minimize the risks to others. The transporter, therefore, will comply better with her moral duty to avoid Joseph Raz, The Morality of Freedom (Oxford: Oxford University Press, 1986) at 53. See, for example, Jules L. Coleman, “Beyond Inclusive Legal Positivism,” (2009) 22 Ratio Juris 359; Stephen Darwall, “Authority and Second-Personal Reasons for Acting,” in David Sobel and Steven Wall, eds, Reasons for Action (Cambridge: Cambridge University Press, 2009) 150; Stephen Darwall, “Authority and Reasons: Exclusionary and Second-Personal,” (2010) 120 Ethics 257; Evan Fox-Decent, “Fiduciary Authority and the Service Conception,” in Andrew Gold & Paul Miller, eds, Philosophical Foundations of Fiduciary Law (Oxford: Oxford University Press, 2014) 363; Scott Hershovitz, “The Role of Authority,” (2011) 11 Philosopher’s Imprimt 1; Stephen Perry, “Political Authority and Political Obligation,” in Leslie Green & Brian Leiter, eds, Oxford Studies in Philosophy of Law, vol 2 (Oxford: Oxford University Press, 2013) 1. 49 Perry, supra note 48 at 44-48. The paraphrased argument in the subsequent text is a considerable simplification of Perry’s argument, which involves other aspects of Raz’s theory of authority that need not detain us. 47 48 19 creating risks for others if he complies with the requirements imposed by the regulator. Let us also assume that it follows from all this that the transporter has a moral obligation to obey the regulator’s directives. It still would not follow, Perry claims, that the regulator has authority over the transporter. To see that this is so, notice that if the regulator had issued optional recommendations rather than binding commands, the argument that the transporter is under a moral duty to obey would still go through, since the transporter would still comply better with the moral duty she had anyway were she to follow the regulator’s recommendations. More illuminating still, if a friend or passerby made the relevant recommendations, the argument for the transporter’s moral duty to obey would likewise go through. It is of course absurd to imagine that the friend or passerby is an authority for the transporter. Ultimately, the problem with Raz’s account is that it relies on a relationship between persons and reason whereas, as Jules Coleman notes, ‘[o]ne who has authority stands in a particular relationship, not to reason, but to other persons.’50 My concern with Macklem’s positivist account of international law is that its explanation of the legitimacy of international legal order in terms of a ‘recursive relationship’ between IHRL and sovereignty goes to third-personal moral reasons to value international law—reasons having to do, on Macklem’s telling, with distributive justice. His account, however, fails to articulate how international law and its institutions can be thought to stand in relationship of authority vis-à-vis their subjects. Let us assume that when international law distributes sovereignty to states on an ongoing basis, this project of transforming global politics into an international legal order attains a measure of legitimacy precisely because international law concomitantly requires that states abide by IHRL. And let us also assume 50 Coleman, supra note __ at 372. 20 that this measure of legitimacy arises specifically because IHRL attends to pathologies of international law’s own making. It does not follow from these premises that international law and its institutions have authority to announce, adjudicate or enforce international law against states or others. Just as the transporter of dangerous goods has a moral duty to do what the regulator says, states arguably have moral duties to abide by IHRL. But that does not mean that IHRL, or international law more generally, has authority over states. The most that can be fairly said in this regard is that if international law has the authority it claims, then its exercise of that authority will be more legitimate if it follows Macklem’s script. A further distinction may help to clarify the point. John Simmons argues persuasively that there is a categorical difference between the justification of the state and its legitimacy.51 Roughly, he claims that a state’s justification has to do with considerations such as the extent to which it respects human rights, the rule of law, democratic principles, and so on. States are more or less good, or more or less evil, on the register of justification, to the extent they adopt decent liberal policies that treat their people fairly and generously. The register of legitimacy is distinctive. It does not track the vice or virtue of policy, but rather the question of whether there is a ‘special relationship of a morally weighty kind’ between states and their people capable of justifying the state’s authority and, correlatively, the individual’s duty to obey. 52 As a political voluntarist, Simmons thinks that only actual consent to state authority can render it legitimate, but there are a range of other theories that purport to do the same work, such as theories based on fair play, associative obligations, natural duty, and the prohibition on unilateralism.53 What these theories generally share is the conviction that A. John Simmons, Justification and Legitimacy (New York: Cambridge University Press, 2001). Ibid at 148. 53 See, for example, George Klosko, The Principle of Fairness and Political Obligations (Lanham, Maryland: Rowman & Littlefield, 1992) (fair play); Ronald Dworkin, Law’s Empire (Cambridge: Harvard University Press, 1986) at 195–215 (associative obligations); Jeremy Waldron, “Special Ties and 51 52 21 authority requires a special sort of justification. The benefits of a policy respectful of human rights are not enough, because the conferral of benefits implies neither that the donor is an authority nor that the donee has an obligation to obey. Such benefits would operate on the register of justification, from a third-personal perspective, but they would not explain how certain institutions and not others could legitimately possess legal authority over subjects who would have a duty to obey. For Simmons, when Macklem speaks of the legitimacy of international law, he is really speaking about its justification, in the sense that Simmons uses the term. This is important because Macklem’s theory purports to be a legal theory of international law and its legal order. However, his account of international law’s legitimacy is not grounded on an interpersonal relation of authority between international law and its subjects, but rather on third-personal benefits flowing from IHRL. It is far from clear how these benefits might ground the authority and legitimacy (in Simmons’s sense) that international law claims. Whereas Raz’s positivism relates persons to reason, Macklem’s positivism relates persons (sovereign states and their people) to the benefits of IHRL. Neither can account for law’s authority because authority is inter-personal, whereas both Raz and Macklem’s theories are impersonal. They allege that law’s authority or legitimacy flows from the way it helps its subject comply with reason (Raz), or from its ameliorative effect on international law’s distribution of sovereignty (Macklem). But because neither addresses the inter-personal aspect of law’s claim to authority, neither explains the inter-personal standing of domestic or international legal institutions to perform lawgiving functions. Natural Duties” (1993) 22 Philosophy and Public Affairs 3 (natural duties); Arthur Ripstein, Force and Freedom: Kant’s Legal and Political Philosophy (Cambridge: Harvard University Press, 2009) (prohibition on unilateralism). 22 Macklem might reply that his argument is not about the authority of IHRL, but is rather an attempt to offer a legal account of IHRL by construing IHRL to have a mission that is internal to international law more generally; i.e., the mission of mitigating the adverse effects of sovereignty. The analytic point of the project is to show how IHRL can lend the international legal system a measure of legitimacy by placing side constraints on how states can exercise the sovereign powers international law has delegated to them. While the project may prescind from an account of international law’s authority, developing such an account was never its point. It is therefore uncharitable to object that Macklem has not explicitly elaborated and defended an account of international law’s authority. And furthermore, whatever the best account of international law’s authority happens to be, Macklem’s theory still provides a valuable framework for assessing international law’s virtue; i.e., the extent to which IHRL makes the world a better place by addressing the adverse effects of sovereignty. My sense is that Macklem tends to speak of international law’s ‘legitimacy’ rather than its authority because the positivist understanding of law he adopts is closer to a command theory of law than the legal theories of Hart or Raz. We shall see momentarily that he characterizes sovereignty as coercive power. With respect to the question of how one is to determine whether a norm is an international legal norm, he claims that ‘a norm possesses international legal validity if its enactment, promulgation, or specification is in accordance with more general rules that international law lays down for the creation of specific legal rights and obligations.’54 This formulation resonates with Hart’s idea of primary and secondary rules as well as with Raz’s sources thesis, but the positivist thinker who Macklem treats most sympathetically is Kelsen.55 Kelsen explicitly claims that, from an international perspective, the legality of domestic law rests ultimately on a delegation of 54 55 Macklem, supra note 6 at 18. See, for example, ibid at 19-20, 40, 133-134, 136-139, 158. 23 sovereignty from international law.56 In a sense, Kelsen provides the monist architecture that makes Macklem’s mitigation theory possible, since Macklem, like Kelsen before him, connects the international legal system to the domestic plane from the top down, albeit through the distribution of sovereignty and IHRL rather than through Kelsen’s idea of legal validity. What Kelsen arguably did not provide, however, was a persuasive account of law’s normativity. Kelsen claimed that law’s normativity rests on a hypothesized grundnorm that must be postulated to explain the normativity and unity of any given legal system.57 Hart developed his rule of recognition, in part, because he believed that Kelsen had failed to provide a satisfying account of law’s normativity. And Raz developed his argument on authority, in part, because he believed that neither Kelsen nor Hart had met the challenge of explaining law through reference to social facts alone while also explaining its normativity. This is not the place to re-litigate these disputes. But to the extent Macklem’s theory adopts the structure of Kelsen’s, it may be subject to the kinds of objections that Hart and Raz raised against Kelsen regarding the lack of a compelling account of law’s normativity. One way for Macklem to respond to such objections would be for him to offer an account of law’s authority, as Raz attempts to do. I have tried to show that the benefits of IHRL, without more, are not enough to grounds law’s authority. The more immediate reason that authority has to be part of the IHRL story is that the law’s claim to authority really is as significant as Raz says: i.e., the claim to authority is a central part of the nature of law. Thus, any putatively internal account of the nature of a particular legal regime would be incomplete without some explanation of the regime’s claim For lucid discussion of Kelsen’s views on this topic, see Lars Vinx, Hans Kelsen’s Pure Theory of Law: Legality and Legitimacy (Oxford: Oxford University Press, 2007). 57 Hans Kelsen, The Pure Theory of Law, 2nd ed (Berkeley: University of California Press, 1967). 56 24 to authority, and ideally there would be as well an account of the constitutive features of the authority claimed. Raz is hardly the first jurist to notice the tight connection between law and authority. Centuries ago, Thomas Hobbes famously wrote the laconic text of the epigraph to this essay: ‘Authority not Truth makes Law.’ Macklem’s frequent use of the concept of legitimacy suggests awareness on his part of the connection between law and authority, and the relevance of that connection in this context. The question of whether an authority is (merely) a de facto or (also) a de jure authority is commonly expressed as the issue of whether a particular authority has legitimacy; that is, has a moral entitlement to govern.58 Macklem seems to be using this sense of legitimacy when he ‘ascribes a richer mission to the field [of IHRL] by placing the legitimacy of international legal order under its watch.’59 Arguably, the ‘legitimacy of international legal order’ to which Macklem refers is its moral claim to govern global politics, a claim that depends on IHRL to monitor the ‘structure and operation of international legal order.’60 Similarly, the ‘real normative terrain of international human rights law,’ he says, is ‘the legitimacy of the international legal order itself,’61 a legal order that is shaped principally by international law’s delegation of sovereignty to states and subsequent monitoring of that sovereignty by IHRL. Passages such as these suggest that Macklem implicitly recognizes that the authority of international legal order and IHRL is very much in play. But even if I am mistaken about this as an interpretive matter, Macklem’s invocation of legitimacy is a persistent and salient feature of his account that invites scrutiny of the authority of IHRL and the international legal order it monitors. See, for example, Raz, Authority, Law and Morality, supra note 43 at 215; Simmons, supra note 51. Macklem, supra note 6 at 2. 60 Ibid at 23. 61 Ibid. 58 59 25 IV. THE HUMAN RIGHTS OF SOVEREIGNTY In this final section, I suggest a friendly amendment to Macklem’s theory. Macklem generally treats international law’s distribution of sovereignty and IHRL as separate phenomena. But not always. In his discussion of self-determination and state recognition, he observes that international law will sometimes use human rights principles both to extend recognition, as occurred with the decolonization of Africa, and to withhold recognition, as occurred when South Africa attempted to assert sovereignty over Namibia in 1971.62 Elsewhere, however, Macklem seems to suggest that international law’s distribution of sovereignty to states allows them to rule more or less as they please, without external interference, unless and until IHRL intervenes to cabin their authority. Having noted that ‘the central feature of the structure and operation of international law is the concept of sovereignty that lies at its heart,’ Macklem fleshes out the principal content of sovereignty as the international and legal validation of coercive power: ‘International law confers legal validity on claims by States to extensive coercive power over people and territory by conceptualizing this power as State sovereignty, and it vests in States legal authority to exercise this power at home and abroad.’63 Macklem notes that sovereignty today is often thought to be conditional on compliance with various norms of international law, and he expresses scepticism about whether sovereignty was ever truly absolute.64 But the constraints on sovereignty, on his telling, are external to it, notwithstanding that they come from international law. Macklem’s discussion of international labour law reveals this feature of this theory, as well as his commitment to the thought that international law’s delegation of ‘State sovereignty’ is chiefly if not entirely a delegation of ‘coercive power.’ Ibid at 168-174. Ibid at 31, 33. 64 Ibid at 31-40. 62 63 26 As noted in Part II, Macklem argues that ‘the normative significance of labor rights in international law lies in the fact that their purpose is to mitigate the harm that States can cause to workers in the exercise of sovereign power that international law vests in States.’65 There is an important ambiguity in the ‘can’ of the clause ‘the harm that States can cause to workers…’ Macklem could mean ‘can’ in a descriptive sense; i.e., the state is physically able to cause harm to workers through the exercise of sovereign power. But it is clear from what he says shortly afterwards that he means ‘can’ in a normative and legal sense; i.e., the state is legally entitled to cause harm to workers in the exercise of sovereign power vested in it by international law. Macklem asserts that ‘international law authorizes States to exercise sovereign power in ways that threaten the interests that [social and economic] rights seek to protect.’66 It is precisely this sort of claim that makes space for the ameliorative mission of IHRL. The reference to international law’s alleged authorization of robust sovereign power implies that, but for IHRL, states would be legally entitled to exercise sovereign power against interests protected by IHRL. It follows under this conception of international law that in any given context, if a state has not ratified a relevant human rights treaty and there are no applicable customary norms, then international law authorizes the state to treat its subjects in any way it pleases. This is consistent with Macklem’s idea that international law’s conferral of sovereignty consists in a validation of coercive power which is tempered, if at all, by legal norms external to it. On my view, the legal authority conferred by sovereignty can never be understood as merely coercive power, for two sets of reasons. The first are Hart’s decisive objections to Austin’s command theory of law, objections which showed that law has both power- 65 66 Ibid at 95. Ibid (emphasis added). 27 conferring rules and an internal point of view inconsistent with the command theory.67 The second set relates to the way mere coercive power would subvert the possibility of law making a claim to legitimate authority, though here too I can only gesture toward an argument. A system of mere and pure coercive power would thoroughly dominate its subjects. It would stand in a relation to them akin to the relation of master to slave, with a capacity to interfere in their lives with impunity in any way and at any time. A purely coercive system, in other words, would institutionalize the unfreedom characteristic of slavery. To the extent the purely coercive system were to assert a right or legal power to treat its subjects as slaves, it cannot in principle make a claim to possess legitimate authority over them, since it cannot credibly claim to rule in their name or on their behalf, given that it regards them as slaves.68 There are more constructive reasons, too, for doubting that international law confers merely coercive power on states when it distributes sovereignty to them. The better view, I suggest now, is that when international law grants legal validity to claims of state sovereignty, it is validating a much richer conception of legal authority than mere coercive power. Whereas mere coercive power can in principle be exercised for private ends and in any fashion,69 lawful authority must be exercised through legal institutions structured and governed by the rule of law. The rule of law requires that all government action be authorized by law, ushering in the rule of law in place of the rule of individuals. It is generally understood to regulate law-making through formal requirements of publicity, nonHart, Concept of Law, supra note 11 at 18-78. For careful analysis of how a legal system’s claim to legitimacy can be subverted by the adoption of certain wicked policies such as slavery, see Kristen Rundle, “Form and Agency in Raz’s Legal Positivism” (2013) 32 Law & Philosophy 767. 69 Carl Schmitt’s conception of sovereignty probably comes closest to this, since he imagined sovereignty as essentially a private power of a sovereign who was ultimately subject to no legal constraint. See Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (Chicago, IL: University of Chicago Press, 1985). 67 68 28 retroactivity, clarity, and so on (Fuller’s internal morality).70 It is also thought to denote legal equality, in the sense that public officials as much as private parties are subject to it.71 In common law jurisdictions, the rule of law governs administrative decision-making through the doctrines of judicial review of administrative action. These include common law duties of procedural fairness and other duties that constrain substantive decision-making, such as the requirement that decisions not be made on the basis of irrelevant considerations.72 The rule of law also dictates various rules of natural justice appropriate to criminal proceedings, including the right to a hearing by an independent and impartial judge.73 This short list of the rule of law’s tenets is far from complete, but already it exposes a constitution for governance with public avenues of accountability that, unlike mere coercive power, suggest at least the possibility of legitimacy. Some of the requirements of the rule of law overlap with the norms of IHRL, including various duties bearing on procedure in criminal law and administrative proceedings.74 Perhaps a more pervasive overlap, however, lies in the duties to justify adverse decisions that punctuate both IHRL and the rule of law. In IHRL, the duty is implicit to the proportionality inquiry that arises in most cases of an alleged rights violation, where the challenged state must show that the rights infringement is proportionate to the public end sought. This structure of public justification is part of domestic constitutional law in numerous jurisdictions as well as IHRL, and is what Kai Möller refers to as the ‘global Lon L Fuller, The Morality of Law, rev ed (New Haven: Yale University Press, 1969). See, for example, AV Dicey, Introduction to the Study of the Law of the Constitution, 10th ed (UK: Palgrave Scholarly, 1959) 183-205. 72 See, for example, Trevor Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford: Oxford University Press, 2003). 73 See, for example, Raz, Rule of Law, supra note __ at 217. 74 For the overlap of IHRL and common law rights protection in UK administrative law, see Richard Clayton, “The Empire Strikes Back” [2015] Public Law 2. 70 71 29 model’ of constitutional rights.75 Under the rule of law in common law jurisdictions, there is an emerging duty to give reasons in administrative law that requires the state to explain the grounds of its action.76 If there is an important interest or constitutionally entrenched right at stake, the state must typically satisfy a proportionality test.77 In doing so, it holds itself legally accountable to the law and the people the law serves. The state also implicitly acknowledges, as Rainer Forst puts it, that ‘there is at least one fundamental moral demand that no culture or society may reject: the unconditional claim to be respected as someone who deserves to be given justifying reasons for the actions, rules, or structures to which he or she is subject.’78 Like Macklem’s mitigation theory of IHRL, this principle does not distinguish between civil and political rights, on the one hand, and social and economic rights, on the other: state action that threatened either would trigger the duty of justification. While it is true that a determined government may pass express legislation that could override common law duties of administrative law, in a democracy the government must go to the legislature to do so, where the possibility of political accountability remains. Furthermore, there may be some limits on what even the most determined government can do through express legislation. Courts have consistently read down express privative or ouster clauses that seek to restrict judicial review of administrative action.79 And, even where the government is successful, judges who understand their rule-of-law role in legal order can still hold the government to account by declaring that the regime has deliberately chosen to Kai Möller, The Global Modal of Constitutional Rights (Oxford: Oxford University Press, 2012). See Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817 at paras 35-44. 77 See, for example, Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395. This test has long been part of administrative law in civilian jurisdictions. See, for example, Boudewijn WN Waard, “Proportionality in Dutch Administrative Law” in Sofia Ranchordás & Boudewijn WN Waard, eds, The Judge and the Proportionate Use of Discretion: A Comparative Study (New York: Routlege, 2016) 109. 78 Rainer Forst, The Right to Justification (New York: Columbia University Press, 2011) at 209 (emphasis in original). 79 See, for example, Crevier v. A.G. (Québec) et al., [1981] 2 S.C.R. 220. 75 76 30 use legislation to evade important principles of the rule of law.80 Because the rule of law is partially constitutive of legal order, it cannot be jettisoned without cost. The rule of law is not merely one of several options for governance available to a state on which international law has conferred sovereign power. The rule of law is partially constitutive of the sovereign power international law confers of states, including the aspects of the rule of law that overlap with IHRL, such as the duty to justify adverse decisions. The idea for amendment, then, is first to acknowledge Macklem’s insight that IHRL does respond to international law’s distribution of sovereignty: the conferral of sovereign powers on the world’s states makes their members and humanity at large vulnerable to abuse of those powers, and in some cases, such as the colonization of indigenous lands, it ossifies past abuse. The second step is to imagine IHRL as a partial reconceptualization of sovereignty—taking into account its historical adverse effects and present dangers—rather than as a side constraint on it. The thought is to take seriously the suggestion of Frances Deng and others that sovereign power embodies a requirement of responsibility.81 Within this framework, international human rights are constituent features of the public power international law vests in states through its distribution of sovereignty. Just as international law confers legal validity on claims to legal authority that presuppose a commitment to the rule of law, international law similarly, on this view, confers validity on claims to legal authority that presuppose a commitment to human rights. This is not as great a stretch as it may initially seem when one recalls the considerable overlap that exists already between IHRL and the rule of law, especially with respect to the requirement of public justification. For discussion of this theme in the national security context, see David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (Cambridge: Cambridge University Press, 2006). 81 Francis M Deng et al., Sovereignty as Responsibility: Conflict management in Africa (Washington, DC: Brookings Institution Press, 1996). 80 31 Understood from this perspective, international human rights do not pierce the veil of sovereignty or condition its exercise from the outside. In a good sense, they are sovereignty. Not all of it, of course, but enough of it that, on this view, we could not explain what sovereignty is without explaining the constitutive role of international human rights within it. The relationship between sovereignty and human rights on this construal, therefore, is not so much recursive as co-constitutive, much as Mattias Kumm characterizes the relationship between international and domestic law in general.82 Implicit to this understanding of IHRL and sovereignty is a relational and interpersonal account of both the state’s authority and the authority of international law. From the perspective of international law, the state’s authority comes, as Macklem says, ‘from above.’83 International law delegates sovereignty to states, but it does so as humanity’s representative, on behalf of or in the name of all of us. The kind of sovereignty it delegates—Deng’s sovereignty as responsibility—is itself wholly relational in nature, for the purpose of the delegation is to serve humanity by establishing political communities that enjoy self-determination, and which themselves are organized as legal orders partially constituted by IHRL. Legal institutions within states are capable of possessing legitimate authority precisely because they are subject to the requirements of legal order and IHRL visà-vis the people they serve, and are accountable to international law for their defaults. Evan Criddle and I have argued that a helpful way to think of the relationship of states to their subjects and to humanity at large, and of the relationship of international institutions to states and non-state actors, is that these relations are fiduciary in nature.84 On this understanding, IHRL protects individuals and groups from wrongful exercises of Kumm, supra note 19 at 24. Macklem, supra note 6 at 41. 84 Criddle & Fox-Decent, supra note 32. 82 83 32 sovereign power. It requires of all states that they provide their subjects, citizens and noncitizens alike, a regime of secure and equal freedom. And it requires of states that they assume the role of fiduciaries of humanity in their dealings with foreign nationals, such as when they detain them on suspicion of terrorism, or determine the merits of their claims to refugee status, or engage in multinational negotiations to address climate change. The idea that states are fiduciaries of both their people and humanity thus supplies a congenial framework for the idea of sovereignty as responsibility, which includes a cosmopolitan dimension over which Macklem properly extends the mission of IHRL, as we saw in the case of labout rights. Moreover, because fiduciary relations are interpersonal, the fiduciary theory can account for international law’s authority through the specification of a distinctively legal relationship characterized by the authority one person or institution holds in relation to another. The fiduciary theory’s criterion of legitimacy for assessing exercises of public power—that legitimate state action must be intelligible as action taken in the name of or on behalf of everyone subject to it—is in turn derived from its account of authority. This criterion is the most basic condition that must be met for a public authority’s action to be authoritative with respect to the individuals or groups over whom it claims authority. With this criterion in place, the fiduciary theory can assist IHRL to distinguish peremptory norms from others: peremptory norms are those whose infringement would always violate the criterion of legitimacy. Offending action in this context could never be said to be done with the authority of international law because by hypothesis it cannot be interpreted as action taken on behalf of the people subject to it. The violation of peremptory norms is for this reason always a subversion and disavowal of legal authority. But one needs an account of IHRL that shows how IHRL is constitutive of authority to see that this is so. 33 A similar account can be given of the quality of the wrongs IHRL seeks to address. At the most general level, under the fiduciary theory, IHRL provides a blueprint for a legal order of secure and equal freedom. Lying between the ideal of secure and equal freedom and the particular rights of IHRL are two intermediate principles: the republican principle of non-domination that eschews subjection to arbitrary power, and the Kantian principle of non-instrumentalization that calls for individuals to never be treated as mere means. The fiduciary position of public authorities also entails principles relevant to the manner in which public power will be exercised, irrespective of the goals pursued. These are principles of formal moral equality, solicitude for the legitimate interests of subjects, and evenhandedness. All of these principles are, in a sense, more fine-grained instances of the fiduciary’s theory criterion of legitimacy. The wrongs they seek to address consist in violations of these principles, all of which are abuses of authority that subvert sovereignty by breaching human rights constitutive of it. Criddle and I share with Macklem the thought that IHRL responds to abuses that international law’s distribution of sovereignty makes possible. But on our view, the way forward is not to tame sovereignty from the outside, but to reconceive it from within. Properly understood, the sovereignty of human rights lies in the human rights of sovereignty. 34