Scholar Patrick Macklem, author of The Sovereignty of Human Rights, says the law “…is agnostic in terms of what becomes a new human right or not”

By Peter Boisseau / Photography by Nick Wong

From the Spring/Summer 2016 issue of Nexus.

Prof. Patrick MacklemInternational human rights exist only to the extent that the law says they do, and the cold hard fact is that, technically, morality and politics have little to do with them, says University of Toronto Law Professor Patrick Macklem.

“Moral and political accounts say human rights reflect what it means to be human, and so they are universal,” Macklem said in an interview following an April 19th symposium on The Sovereignty of Human Rights, named after the title of his latest book on the subject.

“Those moral and political accounts say a Syrian has a human right to life because life is essential to what it means to be human, as a feature of our common humanity,” Macklem explained.

“I say he’s got a human right to life or security of the person because the law gives him that right through international legal instruments and various treaties that recognize human rights in international law,” said Macklem.

“It may well reflect something that relates to our common humanity, but it’s not essential that it does. What is essential is that it exists in law.”

Macklem starts from the premise that international law, not moral theory or political practice, determines the existence of a human right. An international human right to food, for example, exists because the International Covenant on Economic, Social and Cultural Rights enshrines it, Macklem wrote in a recent blog post about his book.

Similarly, the right to development is a human right in international law because the UN General Assembly has declared its legal existence. 

In Syria and elsewhere, the true role of human rights from the legal perspective is to mitigate some of the adverse consequences that flow from international legal recognition of state sovereignty, said Macklem.

That’s because the prime focus of international law is to organize global politics into a legal order that distributes and authorizes sovereign power.

While the “standard moral account” of human rights says that those rights reflect interests and values that we all share, “they operate in a very different way as a matter of law as defined in the international legal arena,” he explained.

When moral considerations enter into the debate about the nature and scope of human rights, “they are tethered to legal concepts about the purpose of those rights.”

In that sense, moral questions are part of a legal discourse, and not the other way around.

Similarly, while the law can guide us on the methods and procedures for enshrining legal rights, “it’s agnostic in terms of what becomes a new human right or not,” added Macklem.

It’s up to political actors to decide which human rights are translated into international legal rights. But once something does become a legal human right, the law takes over, and its nature and scope are determined by legal interpretation.

Theoretical debates and concepts may seem to matter little compared to the tragic reality of human rights abuses, but there is a practical benefit to his theory, argued Macklem.

“It makes sense of the structure and operation of international law, and with an explanatory force that moral and political accounts don’t have. The obvious practical benefits are that we understand what’s happening with greater clarity and conceptual cohesion, so we have a better sense of what is going on and what should be going on.”

The Sovereignty of Human RightsWith Macklem’s book as its focal point, the conference drew top legal thinkers from U of T and scholars from around the world to exchange ideas and publish their reflections in the University of Toronto Law Journal (UTLJ).

First published in 1935 by the founder and former dean of U of T’s law school, renowned legal scholar W.P.M. Kennedy, the journal’s goal is to provide a forum for discourse where moral and political arguments matter, but only on the law’s terms, said Faculty of Law dean, Professor Edward Iacobucci, in his introduction at the conference.

Macklem’s latest work is part of an ongoing effort to define what it means to say “on the law’s terms,” Iacobucci explained. The book also contributes to the law journal’s legacy of going beyond a vocational approach to the study of law, added Professor Mayo Moran, provost of Trinity College and former law school dean.

In her introductory remarks to the conference, U of T Law’s Professor Karen Knop said Macklem’s book helps us understand the extent to which the international legal order is centred on state sovereignty.

While human rights may be broadly understood to be part and parcel of the way the law allocates sovereignty, that doesn’t mean that the international legal order is built on the idea of universal human rights, said Knop.

Human rights cover a broad range of issues, she noted, including self-determination, development, life, liberty and work.

Macklem’s concepts challenge contemporary thought and bring a new perspective to the human rights sphere. At the conference, scholars weighed in with their critiques.

In a joint presentation, U of T Law’s Professor Jutta Brunnée and Munk School of Global Affairs Director Stephen Toope agreed that one of the unique contributions of Macklem’s book was to defend and promote the aspirations of individuals and groups, such as Indigenous peoples and minorities, within international law.

Brunnée said she and Toope were also sympathetic to Macklem’s goals of achieving a greater understanding of the wide range of human rights issues “in a distinctly legal way.”

But Toope said they wondered if the real role of human rights was not to fundamentally challenge the operation of state sovereignty within the international order, but rather to simply balance and modify it whenever possible.

“Human dignity is not tethered to international law,” added Christopher McCrudden, a Queen’s University Belfast law professor, who also praised the book for sparking debate, but questioned if its premise went too far.

The complete reactions and views of the conference participants to Macklem’s book will be published in a forthcoming edition of the University of Toronto Law Journal.