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The Political Conception of Human Rights and Its Rule(s) of Recognition

Published online by Cambridge University Press:  17 January 2022

Andre Santos Campos
Andre Santos Campos*
Affiliation:
Nova University, Lisbon, Portugal
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Abstract

The political conception makes sense of human rights strictly in light of their role in international human rights practice, more specifically by describing how they justify interventions against states that engage in or fail to prevent human rights violations. This conception is, therefore, normative and fact-dependent. Beyond this, it does not seem to have much to say about the actual nature of international human rights practice. The argument sustained here reinterprets the political conception by resorting to a heuristic device that explains how normativity can be fact-dependent: the Hartian model. The characteristics of H.L.A. Hart’s rule of recognition are useful to determine the characteristics of human rights practice from the viewpoint of the political conception. Also, they help to overcome some of the problems typically faced by the political conception, such as whether there is only one practice or many, whether the notion of human rights becomes too contingent on the way the world is currently organised, how agents can violate content-changing practices, or how reliance on current states of affairs leaves room for criticism of those states of affairs.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 35 , Issue 1 , February 2022 , pp. 95 - 116
Copyright
© The Author(s), 2022

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References

1. See John Rawls, A Theory of Justice, revised ed (Harvard University Press, 1999) at 79-80.

2. See Charles Beitz, The Idea of Human Rights (Oxford University Press, 2009); Joseph Raz, “Human Rights Without Foundations” in Samantha Besson & John Tasioulas, eds, The Philosophy of International Law (Oxford University Press, 2010) at 328.

3. See Raz, supra note 2 at 330-32.

4. See Beitz, supra note 2 at 101.

5. See Michael Ignatieff, Human Rights as Politics and Idolatry (Princeton University Press, 2001).

6. See Joshua Cohen, “Minimalism About Human Rights: The Most We Can Hope For?” (2004) 12:2 J Political Philosophy 190.

7. See Andre Santos Campos, “Long-term Urgent Interests and Human Rights Practice: A Challenge to the Political Conception” (2020) Critical Rev of Intl Soc & Political Philosophy, online: DOI: 10.1080/13698230.2020.1737478.

8. The idea that the identification of an underlying moral right is both a necessary and a sufficient condition for the justification of any legal human right is called ‘the Mirroring View’ or ‘the embodiment thesis’. For ‘the Mirroring View’, see Allan Buchanan, The Heart of Human Rights (Oxford University Press, 2013) at 17. For ‘the embodiment thesis’, see Margaret Gilbert, Rights and Demands: A Foundational Enquiry (Oxford University Press, 2018) at 333-34. Supporters of the moral conception thus hold that the human rights inherent in legal practice must mirror moral rights necessarily, whereas supporters of the political conception can adopt the Mirroring View or not. Both Buchanan and Gilbert, each on different terms, reject the Mirroring View.

9. For further developments on the different dimensions of normative efficacy, see Andre Santos Campos, “An Inquiry into a Normative Concept of Legal Efficacy” (2016) 29:4 Ratio Juris 460.

10. In this sense, see especially Jacques Rancière, “Who is the Subject of the Rights of Man?” (2004) 103 South Atlantic Q 297; Slavoj Žižek, “Against Human Rights” (2005) 34 New Left Rev 115; Costas Douzinas, Human Rights and Empire (Routledge, 2007); Étienne Balibar, “On the Politics of Human Rights” (2013) 20:1 Constellations 18.

11. Authors typically associated with the moral conception are not oblivious to international human rights practice. Rather, they endorse a principle of fidelity to the practice in their analyses. See e.g. John Tasioulas, “On the Nature of Human Rights” in Gerhard Ernst & Jan-Christoph Heilinger, eds, The Philosophy of Human Rights: Contemporary Controversies (De Gruyter, 2011) 17; James Griffin, On Human Rights (Oxford University Press, 2008) at 29. From the outset, they are able to talk about human rights only when developing practice-sensitive (even if not practice-dependent) conceptions of moral rights.

12. See HLA Hart, The Concept of Law, 3rd ed (Oxford University Press, 2012).

13. On this set of characteristics, see Beitz, supra note 2 at 45.

14. Buchanan, supra note 8 at 5 [emphasis added].

15. See David Ingram, “Of Sweatshops and Subsistence: Habermas on Human Rights” (2009) 2:3 Ethics & Global Politics 193.

16. See Ignatieff, supra note 5 at 20.

17. See Beitz, supra note 2 at 210.

18. Ken Baynes, “Discourse Ethics and the Political Conception of Human Rights” (2009) 2:1 Ethics & Global Politics at 7.

19. See Hart, supra note 12 at 233.

20. See Jeremy Waldron, “International Law: ‘A Relatively Small and Unimportant’ Part of Jurisprudence?” in Luís Duarte d’ Almeida, James Edwards & Andrea Dolcetti, eds, Reading HLA Hart’s ‘The Concept of Law’ (Hart, 2013) at 220-22; Mehrdad Payandeh, “The Concept of International Law in the Jurisprudence of HLA Hart” (2010) 21:4 Eur J Intl L at 989-90.

21. See Samantha Besson & John Tasioulas, “Introduction” in Samantha Besson & John Tasioulas, eds, The Philosophy of International Law (Oxford University Press, 2010) at 10.

22. See Carmen E Pavel, “Is International Law a Hartian Legal System?” (2018) 31:3 Ratio Juris 307.

23. See Hart, supra note 12 at 101-2.

24. Ibid at 89-90.

25. Ibid at 105-10.

26. For further developments of this view, see Jules L Coleman, Markets, Morals and the Law (Cambridge University Press, 1988) at 3-27; Wilfrid J Waluchow, Inclusive Legal Positivism (Clarendon Press, 1994); Matthew H Kramer, “How Moral Principles Enter into Law” (2000) 6:1 Leg Theory 83.

27. The engagement with international practice by domestic bodies can take a variety of forms. For instance, with regard to the judiciary, the so-called International Bill of Human Rights can provide a rule of decision binding on a domestic court in legal systems that accept its applicability via international customary law, as in the case of Austria and Tanzania; it may also be utilized to interpret domestic law which deals with human rights, as in the cases of Belgium, the Netherlands, the U.S.A., India, and Sri Lanka; or it may be evidence of governmental policy which a court must respect. Cf Hurst Hannum, “The UDHR in National and International Law” (1998) 3:2 Health & Hum Rts at 150. Some domestic written constitutions even include explicit references to the application of the International Bill of Human Rights, as occurs in the cases of Portugal, Spain, Romania, and Sao Tome and Principe.

28. See Johan Karlsson Schaffer, “The Point of the Practice of Human Rights: International Concern or Domestic Empowerment?” in Reidar Maliks & Johan Karlsson Schaffer, eds, Moral and Political Conceptions of Human Rights (Cambridge University Press, 2018) 33.

29. See Andrea Sangiovanni, Humanity Without Dignity (Harvard University Press, 2017) at 191.

30. Not only states but also NGOs, corporations, or international organisations. See e.g. Stéphanie Bijlmakers, Corporate Social Responsibility, Human Rights and the Law (Routledge, 2018); Philip Alston, “The World Bank as a Human Rights-Free Zone” in Fannie Lafontaine & François Larocque, eds, Doing Peace the Rights Way (Intersentia, 2019) 375; Benjamin Gregg, “Human Rights Require Yet Contest National Sovereignty: How a Human Rights Corporation Might Help” in Andre Santos Campos & Susana Cadilha, eds, Sovereignty as Value (Rowman & Littlefield, 2021) 215.

31. See Sangiovanni, supra note 29 at 196-99.

32. See Rawls, supra note 1 at 65.

33. See Raz, supra note 2; Beitz, supra note 2 at 117-21.

34. See Sangiovanni, supra note 29 at 178.

35. For example, until quite recently, international and regional human rights judiciaries tended to interpret the right to life as being in threat of violation—especially for the purpose of assessing rights to refugee status—only in cases of imminent violence of sufficient intensity to create a real risk of irreparable harm: see e.g. the Human Rights Committee’s general comment No. 31 in UNHRCOR, 80th Sess, 2187th Mtg, UN Doc CCPR/C/21/Rev.1/Add.1326 May 2004 at para 12; Sufi and Elmi v United Kingdom, No. 8319/07, [2011] IV ECHR 218. More recently, however, the same judiciaries consider that slow-onset processes related to climate change are sufficient conditions for assessing an imminent threat to the right to life: see e.g. the Human Rights Committee’s recent decision, in 2020, on communication No. 2728/2016 in UNHRC, Views Adopted by the Committee under Article 5(4) of the Optional Protocol, concerning communication No. 2728/2016, UN Doc CCPR/C/127/D/2728/2016, January 2020 at para 9; Cordella and others v. Italy, No. 54414/13, [2019] I ECHR 157; see also e.g. Advisory Opinion OC-23/17, Inter-Am Ct HR (Ser A) No 23 at para 47. The practice of recognition expanded so as to embrace new criteria concerning the scope of the human right to life.

36. Universal Declaration of Human Rights, GA Res 217a (III), UNGAOR, 3rd Sess, Supp No 13, UN Doc A/810 (1948) 71 at 74. See also Abdulaziz M. Alwasil, “Saudi Arabia’s engagement in, and interaction with, the UN Human Rights system: an analytical review” (2010) 14:7 The Intl J Human Rights at 1074.

37. Such a peremptory status derives from the doctrine of opinio juris sive necessitatis in International Law: see Alexander Orakhelashvili, Peremptory Norms in International Law (Oxford University Press, 2006). As an illustration, see e.g. the following view expressed by the International Law Commission that drafted the Vienna Convention on the Law of Treaties: “if one state in isolation refused to accept the peremptory character of a rule, or if that state was supported by a small number of States, the acceptance and recognition of the peremptory character of the rule by the international community as a whole would not be affected”. UNILCOR, 1st Sess, 80th Mtg, UN Doc A/CONF.39/11 at 472 para 12.

38. See Mary Anne Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (Random House, 2001) at 141; David Little, John Kelsay & Abdulaziz A Sachedina, Human Rights and the Conflict of Cultures: Western and Islamic Perspectives on Religious Liberty (University of South Carolina Press, 1980) at 35.

39. See HLA Hart, The Concept of Law, 3d ed (Oxford University Press, 2012) at 97.

40. See Laura Valentini, “In What Sense are Human Rights Political? A Preliminary Exploration” (2012) 60:1 Political Studies at 183.

41. This is what Andrea Sangiovanni calls ‘the Normativity Desideratum’: see Sangiovanni, supra note 29 at 179.