Allen Buchanan’s The Heart of Human Rights is the ground-breaking normative assessment of the international human rights system that his previous Justice, Legitimacy and Self-Determination 1 was to the broader international legal system about ten years ago. While the first was simply one of the first evaluations of the international legal and political system from a normative standpoint, the second builds upon the fast-developing literature on the normative foundations of human rights in the predominantly analytic tradition of moral and political theory over the past decade. The ambition is however similar: taking international legal institutions and practices seriously. In this review, I first reconstruct how Buchanan successfully paves a third way in the literature in normative human rights theory before turning to a two-fold critique focused on the role of law in his account.
Oxford: Oxford University Press, 2013; isbn: 978-0-19-932538-2 336 pages; price gbp 30.
The Heart of Human Rights elegantly starts with the critique of the predominant Mirroring View. In this critique, Buchanan convincingly establishes that proponents of the Mirroring View have been confusingly assuming a correspondence between the justification of moral human rights, on the one hand, and the justification of legal human rights, on the other. On the correspondence view, championed by James Griffin and his “personhood” account,2 “the function of the system of international legal human rights is to realize a set of corresponding preexisting moral rights”.3 There is no reason to think that such co-extension between morality and law is necessary, Buchanan argues, once we draw our attention to the structure of the human rights legal system that currently exists. As others have also acknowledged, this preliminary argument does not dismiss the traditional, ethical approach to human rights. It simply suggests that adjusting our perspective to the legal practice of human rights comes at a price: “even if the Mirroring View were true, things look quite different if one has a richer view of what the law is and does”.4
What consequences does this practice-based approached have for the normative theory of human rights? Most importantly, Buchanan suggests in Chapter 2 that one should rather opt for a pluralistic rather than monistic and substantive conception. This is because legal rights, by contrast to moral rights, should be grounded in a variety of interests and not solely those of the right-holders (not solely “subject-grounded”).5 Rather, defining those duties implies showing how “their fulfillment would positively impact the interests (autonomy, etc.) of a large number of people”.6 It is simply not enough to justify the ascription the entire set of duties correlative of human rights just in the name on some morally significant feature of the right-holder. It must be noted that this pluralistic grounding echoes another voice in the recent literature, namely John Tasioulas’, in that the multifaceted normativity of human rights should also constrain the enterprise of justification.7 But since Buchanan’s distinctive object is legal and international – in contrast to Tasioulas’ attachment to ordinary moral life – the pluralism underlying the rights implies is applied to that larger context.
Putting this principle into practice, Buchanan argues in Chapter 4 that legal human rights should first be understood to “foster the public recognition of equal basic status for all in all society”.8 This deontological status of rights-holders remains crucial not only to accommodate the various due process and non-discrimination rights that pervade international covenants and conventions. It also avoids the challenge that many welfare-centered accounts of human rights face, that is, that individuals could lead a “minimally good life” and still suffer from crude forms of discrimination. As far as the interests of other actors are concerned, implementing human rights can, first, guarantee that domestic constitutional bills “are not distorted by parochialism”9 and thereby enhance the legitimacy of the state implementing those rights. More instrumentally, they can also provide “a way of conceptualizing the harms caused by cumulative damage to the environment (…)”.10 Second, the system provides basic standards without which the international order and the “extremely robust right against interference in a “state’s domestic affairs””11 would be unjustifiable. Finally, as Buchanan also argued in his first book on international justice, states are “are “the chief beneficiaries of the international order in general and in particular of the dangerous norms of sovereignty” and “they are in the best position to correct its flaws because the international order is created and sustained by them”.12 Because of their privileged position within the system (that varies with their respective power), states have a special obligation to support just institutions.
In accommodating those various features of the system, Buchanan’s pluralistic account also provides an alternative to the so-called “political” or “practical” conception of human rights championed by Charles Beitz, which concentrates on the overarching sovereignty-limiting role of human rights in contemporary “global political life”.13
While Buchanan endorses this primary function too, he adds a moral layer of reasons – namely the affirmation and the promotion of the equal status of all people – that Beitz denies to be necessary to account for the practice. Indeed, for Beitz human rights are “reasons-giving for various kinds of political actions which are open to a variety of agents”).14 In contrast to Buchanan, Beitz does not clearly explain how those interests and duties give rise to rights, legal or moral.15 Consequently, Buchanan’s account succeeds to the extent that it combines a descriptive challenge (the reconstruction of the international legal human rights system and its various underlying interests) with a normative and substantive basis (the egalitarian basis of justification) within the conceptual perimeter of rights.
1 The Critique: Setting the Boundaries of Human Rights Law
A critique of Buchanan’s pluralistic account could surely be provided by moral and political theorists as the book is primarily addressed to them (the central place of the critique of the Mirroring View is indicative here). But Buchanan’s seminal contribution also lends itself to the disciplinary perspective endorsed in the book, namely the one of international lawyers. Indeed, Buchanan aims to assess a particular legal object – the “international legal human rights system” – that can and must, for Buchanan’s own purpose, be first grasped in descriptive and analytic terms before turning to the normative level. International human rights law, like international law or law tout court, is a legal and therefore social object. This implies that an (even approximate) account of the boundaries of what counts as human rights law, or what “fits” in the international legal human rights system, remains an essential preliminary question prior to and required by normative evaluation.
This is where Buchanan’s firm “priority to the practice” law tends to lose some ground. Despite that Buchanan clearly assigns legal rights an independent existence, “they are what they are; legal rights; and legal rights need not be embodiments of corresponding moral rights” or that “any justification must satisfy certain constrains of ‘fit’ (…)”,16 he surprisingly does not thoroughly elaborate on which legal facts or norms fall within the domain of international human rights law – beyond the “four major categories of international human rights”17 and some passing references to treaty-based law, customary law and jus cogens norms.18 A salient symptom of this preliminary problem is Buchanan’s systematic use of “system” to characterise human rights law. Buchanan does not specify in detail what lies behind this structuring concept of the book despite the contentious role it has continuously played in legal theory. Of course, one may reply that “system” plays a conceptualising and heuristic role for the sake of the overall normative investigation. But that would count against the distinctive ambition of the book, which promises fidelity to the current developments of human rights law. This leads one to build a preliminary hurdle to Buchanan’s enterprise of justification: the normative assessment of a legal object or institution can proceed, it seems, only when there is some form of consensus on the nature and scope of this object. There are strong reasons to doubt, I shall argue, that this is case with human rights law. Buchanan implicitly suggests that there is a consensus on this question.
In particular, Buchanan does not seriously incorporate the salient non-systemic features of the practice of international human rights law. Most importantly, as Buchanan fully acknowledges, there is no centralised and authoritative law-maker in international human rights law. Mirroring Beitz on this point, Buchanan simply assumes “the absence of well-developed legal systems, such as representative legislatures and a hierarchy of courts with compulsory jurisdictions”19 and that the law is “underdeveloped” and “incoherent”.20 Yet those alleged deficits are constitutive of the practice and cannot be rebutted for the comfort of philosophical theorising. One could for instance refer to the various attempts to identify human rights law with constitutional law.21 More importantly, when one compares the supranational judicial or quasi-judicial institutions of human rights that currently exist, one is struck by their distinctive historical origins (noted by Buchanan, but not developed),22 or their different judicial powers, but also by the variation in the reception of those norms in domestic legal orders.23 While it is reported that seventy per cent of the Views delivered by the Human Rights Committee (hrc) established by the iccpr are not implemented,24 the judgments of the European Court of human rights are routinely recognised direct effect in domestic legal orders of state parties.25 Similarly, Buchanan rightly assumes that the interpretation and enforcement of human rights can be confined to the national level (subsidiarity). But since there is no necessary connection between the two levels, one may also wonder here if “system” can render justice to this complexity without explaining how the levels interact in practice. In other words, when Buchanan suggests “why it is important to have an international legal human rights system, rather than relying solely on regional systems”,26 it seems that the independent and privileged normative standpoint that Buchanan fiercely aims to avoid strikes back.
This first hurdle may be related to a second one, namely Buchanan’s use of “system”: conveying the idea of interconnected and organised whole tends to obscure the constant but localised and incremental development of the judicial law of human rights – e.g. the Views and Recommendations of un Treaty Bodies and, more importantly, the case law of regional human rights courts. Despite Buchanan’s acknowledgement that law is an “institutionalized form of practical reasoning”,27 or that adjudication plays various clarificatory functions, Buchanan does not understand judicial law as guiding to the normative content of human rights. Mirroring Griffin on this point, Buchanan simply turns to “the task of justifying the inclusion of particular rights”28 without considering how judicial agents shape the content and limits of those rights. One could bet that a more thorough attention paid to this judicial dimension could help pass the first hurdle just outlined (the standard for human rights qua law). Indeed, the central questions of legal theory – in particular, the definition of “legal system” – have emerged from judicial law.29 This is even more important to human rights qua law as the legal human rights listed in covenants and conventions are irremediably indeterminate and abstract. As a result, adjudicators (national or supranational) play a crucial role in specifying their normative content – by applying rights to a vast diversity of situations and by balancing the rights against the grounds of the respondent state party.30 In other words, judicial law embodies a novel and crucially important dimension to human rights law that should be incorporated.
Not only does the judicial dimension of human rights put the use of “system” into question, it may also have consequences for the choice of Buchanan’s pluralistic strategy: while judicial law specifies and modulates the content of those rights, the pluralistic approach favoured by Buchanan widens it. True, Buchanan devotes an entire chapter to the legitimacy of human rights legal institutions, but surprisingly apprehends those with an independent set of standards (that were initially conceived to apply across a variety of international institutions in Buchanan’s earlier work). Testing Buchanan’s account against the dynamic body of case law would provide another test-case in order to evaluate whether the conception “fits” the practice.
Allen Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (Oxford University Press, Oxford, 2004).
James Griffin, On Human Rights (Oxford University Press, Oxford, 2008).
Alllen Buchanan, The Heart of Human Rights (Oxford University Press, Oxford, 2013) 12.
Buchanan, supra note 3, 62.
John Tasioulas, ‘Taking Rights out of Human Rights’, Ethics 120(4) (2010): 647–678.
Buchanan, supra note 3, 88.
Charles Beitz, The Idea of Human Rights (Oxford University Press, Oxford, 2009), 40.
See Samantha Besson, ‘Human Rights: Ethical, Political…or Legal? First Steps in a Legal Theory of Human Rights’, in Donald Earl Childress (ed.), The Role of Ethics in International Law (Cambridge University Press, Cambridge, 2012).
Buchanan, supra note 3, 114.
See e.g. Stephen Gardbaum, ‘Human Rights as International Constitutional Rights,’ The European Journal of International Law 19:4 (2008): 749–68.
Buchanan, supra note 3, 150.
See in particular Nico Krisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (Oxford University Press, Oxford, 2012).
See Rosanne van Alebeek and André Nollkaemper, ‘The Legal Status of Decisions by Human Rights Treaty Bodies in National Law’, in Helen Keller and Geir Ulfstein (eds.), Human Treaty Bodies: Law and Legitimacy (Cambridge University Press, Cambridge, 2012).
See Samantha Besson, ‘European Human Rights, Supranational Judicial Review and Democracy – Thinking Outside the Judicial Box’, in Patricia Poepelier, Catherine Van de Heyning, and Piet Van Nuffel (eds.), Human Rights Protection in the European Legal Orders: Interaction Between European Courts and National Courts (Intersentia, Cambridge, 2011).
Buchanan, supra note 3, 157.
Cf. Keith C. Culver and Michael Giudice, Legality’s Borders: An Essay in General Jurisprudence (Oxford University Press, New York, 2010).
I have tried to remedy this deficit with regard to the European Court of Human Rights in Alain Zysset, The echr and Human Rights Theory: Reconciling the Moral and the Political Conceptions (Routledge, London, 2016).