Separation Anxiety? Rethinking the Role of Morality in International Human Rights Lawmaking

Article excerpt

ABSTRACT

The conventional accounts of international law do a poor job accounting for human rights. International legal positivists generally argue that there is a strict separation of law and morality, with no role for moral obligation in the validation of law. But human rights practice reveals many situations in which it appears that morality is validating legal obligation. Process theorists recognize an intrinsic role for the values underlying international law in understanding its commands. But they embrace a vision of law as dialogue that fails to protect the right to self-determination that is a core value of human rights.

This Article argues that inclusive positivism provides the best model to understand international human rights law. Unlike process theory, inclusive positivism accepts that law is a discrete object identified through application of validation criteria. This model allows states to retain control over the content of their legal obligations. Unlike conventional international legal positivism, inclusive positivism acknowledges that moral obligation plays a role in the validation of human rights law consistent with the practice of human rights actors.

This Article suggests hypotheses as to how the commonly accepted rules that define human rights law can be modified to account for the role moral obligation plays in human rights practice.

TABLE OF CONTENTS

I.   INTRODUCTION
II.  SEPARATION THESIS IN INTERNATIONAL
     Lawmaking
     A. Central Theses
     B. Positivist Account of International
        Lawmaking
     C. Normative Defense of Exclusion of Moral
        Criteria from International Lawmaking
     D. Alternative Approaches to Moral Criteria
        Validating Law
III. FAILURES OF THE SEPARATION THESIS IN
     INTERNATIONAL HUMAN RIGHTS LAWMAKING
     A. Missing Morality
     B. Jus Cogens
     C. Customary Law
     D. Treaty Law
IV.  INCLUSIVE POSITIVISM
     A. Defending the Social Fact Thesis in
        Human Rights Law
     B. Defending Inclusion of Moral Criteria
        in Rules of Recognition in Human Rights
        Law
V.   INCORPORATING MORAL OBLIGATION INTO A
     POSITIVIST ACCOUNT OF HUMAN RIGHTS LAW
     A. Jus Cogens
     B. Customary Law
     C. Treaty Law
VI.  CONCLUSION

I. INTRODUCTION

The role of the moral obligation of states, or how states ought to behave, in international law is a source of significant controversy. The dominant twentieth century positivist paradigm of international lawmaking was predominantly, exclusively positivist in nature because it saw no formal role for moral obligation in determining the content of the law. (1) Exclusive positivism holds that there is a separation between law and morality (separation thesis) and that moral criteria cannot play a role in validating law. (2) Adherents to this view of the separation thesis defend it as necessary in international law to overcome different conceptions of justice in the heterogeneous international community. (3) Exclusive positivists also believe that a separation of law and morality fosters greater predictability regarding the content of law, which is critical to avoiding fragmentation in a legal regime without an organized settlement system. (4) While many nonpositivist international scholars have challenged the viability of the separation thesis, most international legal positivists have adhered to a strict view of the separation of law and morality. (5)

This Article argues that inclusive positivism provides the proper framework for understanding international human rights law. Inclusive positivists, like all positivists, are committed to the social fact thesis, which provides that the secondary rules that tell legal officials when law exists are social facts, observed through the practice of legal officials. (6) But unlike exclusive positivists, inclusive positivists permit moral criteria to validate law if the social practice of a legal community assigns moral criteria such a role. …