The Sovereignty of Human Rights

The Sover eignty of Human R ights
The Sovereignty of Human Rights
Patrick Macklem
1
1
Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of
excellence in research, scholarship, and education by publishing worldwide.
Oxford New York
Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid
Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto
With offices in
Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary
Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand
Turkey Ukraine Vietnam
Oxford is a registered trademark of Oxford University Press in the UK and certain other countries.
Published in the United States of America by
Oxford University Press
198 Madison Avenue, New York, NY 10016
© Oxford University Press 2015
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or
transmitted, in any form or by any means, without the prior permission in writing of
Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the
appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope
of the above should be sent to the Rights Department, Oxford University Press, at the address above.
You must not circulate this work in any other form
and you must impose this same condition on any acquirer.
Library of Congress Cataloging-in-Publication Data

Macklem, Patrick, author.
The sovereignty of human rights / Patrick Macklem.
pages cm
Includes bibliographical references and index.
ISBN 978-0-19-026731-5 ((hardback) : alk. paper)
1. Human rights. 2. Civil rights. I. Title.
K3240.M3215 2015
342.08'5—dc23
2015006707
9 8 7 6 5 4 3 2 1
Printed in the United States of America on acid-free paper
Note to Readers
This publication is designed to provide accurate and authoritative information in regard to the subject matter
covered. It is based upon sources believed to be accurate and reliable and is intended to be current as of the
time it was written. It is sold with the understanding that the publisher is not engaged in rendering legal,
accounting, or other professional services. If legal advice or other expert assistance is required, the services of a
competent professional person should be sought. Also, to confirm that the information has not been affected
or changed by recent developments, traditional legal research techniques should be used, including checking
primary sources where appropriate.
(Based on the Declaration of Principles jointly adopted by a Committee of the

American Bar Association and a Committee of Publishers and Associations.)
You may order this or any other Oxford University Press publication
by visiting the Oxford University Press website at www.oup.com
For Courtney
Contents
Acknowledgments ix
1. Field Missions 1
Human Rights as Moral Concepts 3
Human Rights as Political Concepts 13
Human Rights as Legal Concepts 18
The Plan of the Book 26
2. Sovereignty and Structure 29

Sovereignty and Its Exercise 31
Between the National and International 37
Sovereignty and Its Distribution 45
3. Human Rights: Three Generations or One? 51

Generations as Chronological Categories 52
Generations as Analytical Categories 58
Civil and Political Rights as Monitors of Sovereignty’s Exercise 64
Social and Economic Rights as Monitors of Sovereignty’s Exercise 67
4. International Law at Work 73

Labor Rights as Instrumental Rights 76
Labor Rights as Universal Rights 84
Labor Rights and the Structure of International Law 95
vii
viii Contents
5. The Ambiguous Appeal of Minority Rights 103

The Moral Ambiguities of Minority Rights 105
The Political Ambiguities of Minority Rights 117
The Interdependence of Sovereignty and Minority Protection 124
6. International Indigenous Recognition 133

Indigenous Territories and the Acquisition of Sovereignty 136
Indigenous Recognition and the International Labor Organization 141
Indigenous Recognition and the United Nations 152
The Purpose of International Indigenous Rights 156
7. Self-Determination in Three Movements 163

Self-Determination and the Legality of Colonialism 165
The Many Paradoxes of Self-Determination 174
Bridging International Law and Distributive Justice 182
8. Global Poverty and the Right to Development 185

The Emergence of the Right 188
Implementing the Right 198
From Global Poverty to International Law 206
The Right to Development and the Rise and Fall of Colonialism 217
Bibliogr aphy 225
Index 247
Acknowledgments
i first conceived of this book when I was a Fellow at the School of Social
Science at the Institute for Advanced Studies in Princeton, New Jersey. Many
thanks to Danielle Allen, Joan Scott, and Michael Walzer for their gracious hos-
pitality and our countless conversations that shaped this project at its outset. I also
wish to thank my colleagues at the Faculty of Law, University of Toronto, an insti-
tution with an unparalleled group of international legal scholars and legal theorists
from whom I have learned so much.
Over the years, I have had discussions about the various themes and arguments
that comprise this book with many friends and colleagues. Thanks to Roy Adams,
Andrew Arato, Jutta Brunée, Vincent Chiao, Jean Cohen, Dennis Davis, Ron
Daniels, David Dyzenhaus, Karen Engle, Willy Forbath, Evan Fox-Decent, Judy
Fudge, Michael Ignatieff, Karen Knop, Brian Langille, Frédéric Mégret, Ed Morgan,
Guy Mundlak, Anne Norton, Jennifer Orange, Umut Özsu, Gaetano Pentassuglia,
Kerry Rittich, Michel Rosenfeld, Brad Roth, András Sajó, Kim Scheppele, Brian
Tamanaha, Balázs Tóth, and Renata Uitz, as well as, of course, Michael Trebilcock,
for always advising to throw deep. Special thanks go to Patrick Healy, Courtney
Jung, Zoran Oklopcic, Arthur Ripstein, David Schneiderman, and the two anony-
mous reviewers at Oxford University Press, all of whom read the entire manuscript
with care and provided me with invaluable comments and advice. I am also grate-
ful to Evan Rosevear and especially Patrick Healy for their research assistance, and
Nancy Bueler for her exceptional administrative assistance. I would also like to
thank the Social Sciences and Humanities Research Council of Canada, for provid-
ing me with valuable research funding.
ix
x Acknowledgments
Parts of the book build on but significantly revise work previously published in
the International Journal of Constitutional Law, the London Journal of International
Law, the London Review of International Law, the McGill Law Journal, and the
Michigan International Law Journal, and I am grateful for their permission to use
this material. I would also like to thank Blake Ratcliff and Alden Domizio, both of
Oxford University Press, and Cassie Tuttle, Arun Kumar Vasu, and Enid L. Zafran
for skillfully shepherding the manuscript to publication.
I could not have completed this project without the enduring love I receive from
my family, especially my wonderful children, Riel, Sam, Serena, and Peter. But my
greatest debt is to Courtney Jung, my heart and soul mate, for filling my life with
love and purpose.
1
F IEL D M I S S IO N S
human rights are the vocabulary of justice for our globalizing world. They
frame our moral conceptions of obligations to friends and strangers, they shape our
political judgments about the nature and exercise of economic and political power,
and they help us distinguish legal acts from arbitrary violence and coercion. Human
rights frame the moral, shape the political, and distinguish the legal in places as local
and diverse as the family, the school, the workplace, the community, the nation, and
the State. But their true significance lies in their status as international legal entitle-
ments that call for radical revision of the ways in which international law organizes
global politics into an international legal order.
What it means to speak of human rights in this way is the subject of this book.
I offer a legal theory of human rights in international law that defines their nature
and purpose in terms of their capacity to monitor the structure and operation of
the international legal order. On this account, human rights require the interna-
tional legal order to attend to pathologies of its own making. They monitor the dis-
tribution and exercise of sovereign power to which international law extends legal
validity. They impose obligations on sovereign and other legal actors to exercise the
authority they receive from international law in ways that respect the rights of all.
They mobilize critical judgment on international law’s participation in the perpetu-
ation of global economic inequality. They generate international legal duties on all
of us to improve the social and economic conditions of impoverished people around
the world.
1
2 The Sovereignty of Human Rights
This way of speaking of international human rights law is a marked departure

from traditional accounts of its nature and purpose. Dominant moral accounts of
the field stipulate that its overarching mission is to protect essential and universal
features of what it means to be a human being from the exercise of sovereign power.
In addition to protecting essential features of our common humanity, however, inter-
national human rights law protects rights that attach to certain individuals and not
others, rights that create positive in addition to negative obligations, and rights that
obligate us to attend to the needs of strangers both at home and abroad. Minority
rights, indigenous rights, and, more broadly, the right of self-determination typi-
cally vest in some communities and not others for reasons that appear to be steeped
in contingencies of history and geography. Labor rights, social and economic rights,
and the right to development impose positive obligations on others to secure their
realization, make more sense in some national economies than others, and engage
with legal norms addressing colonization and economic globalization in ways that
moral accounts fail to grasp.
This book seeks to make sense of the rich variety of rights and instruments that
make up the field of international human rights law in ways that moral accounts
cannot. It ascribes a richer mission to the field by placing the legitimacy of the inter-
national legal order under its watch. It comprehends human rights in international
law as legal sites of moral and political contestation over fundamental questions that
relate to the structure and operation of international law, but it does so in distinc-
tively legal terms. The legal existence of international human rights is the product
not of moral insight but of the enactment of the various instruments that place
them on the international register, and their critical force rests in their capacity to
attend to some of the adverse effects of how we organize global politics into an inter-
national legal order.
This role is not divorced from the demands of morality. Determining why cer-
tain consequences merit criticism and others merit praise inevitably invites moral
judgment—and moral disagreement. But, unlike most moral conceptions, the legal
role of human rights, on the account offered here, is internal to the structure and
operation of international law. Even though, in moral theory, they may be formal
expressions of what we owe each other in ethical recognition of universal features of
what it means to be a human being, human rights play a different normative role in
international law. They express—imperfectly—what is required of the international
legal order to enable it to acquire a measure of normative legitimacy.
Readers familiar with these questions will recognize important affinities with
scholarship that emphasizes the role that human rights play in global politics.
Unlike most moral approaches, which focus on universal features of our common
humanity, political conceptions define the nature of human rights in terms of their
Field Missions 3
function in global political discourse. Human rights, according to political concep-

tions, are reasons that social, political, and legal actors rely on in international are-
nas to advocate interfering in the internal affairs of a State and to provide assistance
to States to promote their protection. Like political conceptions, this book links the
nature of international human rights to the function they perform in the broader
international arena.
Unlike political conceptions, however, the account offered here distinguishes
between global politics and international law. Human rights monitor the legitimacy
of political claims and actions to which the broader international legal order other-
wise extends international legal validity. Thus, while human rights act as political
reasons for international intervention and assistance in the practice of global poli-
tics, their international legal significance rests on their role as criteria for determin-
ing which of the countless claims and acts of power that constitute global politics
can assume a mantle of international legal legitimacy.
Human R ights as Mor al Concepts
Devoted to the protection and promotion of human rights deemed to possess inter-
national legal significance, international human rights law comprises a variety of
sources and instruments, including the United Nations Universal Declaration of
Human Rights, various international and regional treaties, principles of custom-
ary international law, and general principles of international law. Adopted and
proclaimed by the General Assembly of the United Nations in 1948, the Universal
Declaration, as its title suggests, is universal in tone and aspiration, declaring that
“all members of the human family,” by virtue of their equal worth and dignity, share
certain fundamental human rights.1 These include rights to property, life, liberty
and security of the person; equal protection of the law; freedom of thought, opin-
ion, expression, religion, assembly, and association; rights to social security, educa-
tion, work, and an adequate standard of living; and rights of cultural membership
and political participation. Although the Universal Declaration technically is not
legally binding on States, its adoption marked the formal genesis of a profound
structural transformation of the international legal order. What was previously a
legal system almost exclusively devoted to providing legal form to relations between
and among sovereign States, international law began to lay claim to the power to
regulate relations between States and individuals and groups.
Universal Declaration of Human Rights, G.A. Res. 217A(III), U.N. Doc. A/RES/217(III) (Dec. 10, 1948).
1
This project gathered momentum when the U.N. Commission on Human

Rights proceeded to draft two treaties that eventually came into force in 1976: the
International Covenant on Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights.2 Whereas the ICCPR commits
States to respect the right to life, the right to vote, freedom of conscience, speech,
religion, association, equal protection, and other civil and political freedoms, the
ICESCR enshrines rights to food, education, health, and shelter, as well as a host
of other social, economic, and cultural rights. These were followed by the adoption
of additional, more specialized human rights treaties addressing specific categories
of human rights, namely, the International Convention on the Elimination of All
Forms of Racial Discrimination, the Convention on the Elimination of All Forms
of Discrimination Against Women, the Convention Against Torture and Other,
Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the
Rights of the Child, and the Convention on Migrant Workers.3
Each of these treaties establishes a monitoring body charged with overseeing
State compliance.4 These treaty bodies provide specific comments on State reports
as well as general comments on the legal nature and scope of relevant treaty provi-
sions and coordinate their responsibilities with each other and other institutions,
such as the High Commissioner for Human Rights. Some, like the Human Rights
Committee, possess the authority to hear complaints brought by individuals alleg-
ing that their rights have been violated.5 Some are empowered to hear complaints by
one State that another State is in violation of its treaty obligations.6 Some, like the
2
International Covenant on Civil and Political Rights, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered
into force Mar. 23, 1976) (ICCPR); International Covenant on Economic, Social and Cultural Rights, U.N.
Doc. A/6316 (1966), 993 U.N.T.S. 3 (entered into force Jan. 3, 1976) (ICESCR).
3
International Convention on the Elimination of All Forms of Racial Discrimination, U.N. Doc. A6014
(1966), 660 U.N.T.S. 195 (entered into force Jan. 4, 1969); Convention on the Elimination of All Forms of
Discrimination Against Women, U.N. Doc. A/34/46 (1979), 1249 U.N.T.S. 14 (entered into force Sept. 3,
1981); Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
U.N. Doc. A/39/46 (1984), 1914 U.N.T.S. 519 (entered into force June 26, 1987); Convention on the Rights
of the Child (1989), 1577 U.N.T.S. 43 (entered into force Sept. 2, 1990); International Convention on the
Protection of the Rights of All Migrant Workers and Members of Their Families (1990), U.N. Doc. A/45/49
(entered into force July 1, 2003).
4
For an assessment of the effectiveness of these treaty bodies, see James Crawford, The UN Human Rights
Treaty System: A System in Crisis?, in The Future of UN Human Rights Treaty Monitoring
(Philip Alston & James Crawford eds., 2000).
5
The Committee on the Elimination of Racial Discrimination (CERD), the Committee Against Torture
(CAT), and the Committee on the Elimination of Discrimination Against Women (CEDAW) also pos-
sess the power to hear individual complaints. This procedure applies only to States parties who have made a
declaration accepting the competence of the Committee in this regard.
6
CAT, the Committee on Migrant Workers (CMW), CERD, and the Human Rights Commission possess
this authority. CEDAW, CAT, and CMW also provide for disputes between States concerning interpreta-
tion or application of the Convention to be resolved in the first instance by negotiation or, failing that,
Field Missions 5
Committee against Torture, may, on their own initiative, initiate inquiries if they
have received reliable information about serious human rights violations.7
Paralleling the international proliferation of human rights instruments and insti-
tutions are similar developments at the regional level, with the adoption of both
general and specific human rights treaties in Europe, Africa, and the Americas,
and the establishment of institutions responsible for treaty oversight, elaboration,
and enforcement.8 Adding further to the complexity of the field is the domestic
legal significance of international and regional human rights commitments. Judges
around the world are borrowing relatively freely and with increasing regularity from
international, regional, and foreign sources to assist in their interpretive tasks.9 The
relation between the domestic and international legal spheres increasingly involves
“not merely the transmittal of the international, but a process of translation from
international to national” that possesses the capacity to “produce new meanings.”10
Despite the multiplicity of its constituent legal sources and instruments, the
dominant approach to the normative foundations of international human rights
law conceives of human rights as moral entitlements that all human beings possess
by virtue of our common humanity. What constitutes a human right, according
to this approach, is not determined by a positive legal instrument or institution.
Human rights exist prior to and independent of positive international human rights
law. Just because a legal order declares something to be a human right does not
make it so. Conversely, the fact that a human right does not receive international
legal protection does not mean that it is not a human right. The existence or non-
existence of a human right rests on abstract features of what it means to be human
by arbitration. One of the States involved may refer the dispute to the International Court of Justice if the
parties fail to agree to arbitration terms within six months. States may exclude themselves from this proce-
dure by making a declaration at the time of ratification or accession, in which case, in accordance with the
principle of reciprocity, they are barred from bringing cases against other States.
7
CERD also possesses this authority. Inquiries may only be undertaken with respect to States parties who
have recognized the competence of the relevant Committee in this regard.
8
Regional instruments include the European Convention for the Protection of Human Rights and
Fundamental Freedoms (1950), 213 U.N.T.S. 221 (entered into force Sept. 3, 1953); the American Convention
on Human Rights, OR OEA/Ser.L.V/II.82/Doc.6, rev.1 (1992); the Organization of African Unity (1963;
disbanded and replaced by the African Union, 2002); and the African Charter on Human and Peoples’
Rights (1981), AU Doc. CAB/LEG/67/3 rev.5, 21 I.L.M. 58 (entered into force Oct. 21, 1986).
9
See generally The Migration of Constitutional Ideas (Sujit Choudhry ed., 2006). See also
Christopher McCrudden, A Common Law of Human Rights? Transnational Judicial Conversations on
Constitutional Rights, 20 Oxford J. Legal Stud. 499, 501 (2000) (“[t]‌he phenomenon of borrowing
and transplantation from the international to national, from the national to international, from national
jurisdiction to national jurisdiction, is now commonplace”).
10
Karen Knop, Here and There: International Law in Domestic Courts, 32 N.Y.U. J. Int’l L. & Pol. 501, 506
(2000).
and the obligations to which these features give rise. The mission of the field is to
secure international legal protection of universal features of what it means to be a
human being.
Immanuel Kant wrote of a single, innate “right belonging to man by virtue of his
humanity” from which all other rights flow.11 Kant’s conception of rights sweeps
in much more of moral life than contemporary human rights law, but many con-
temporary moral accounts of human rights draw from the principle of universality
on which it rests. James Griffin, for example, conceives of human rights as protec-
tions of “personhood” and argues that they “must be universal, because they are pos-
sessed by human agents simply in virtue of their normative agency.”12 John Tasioulas
defines human rights as “moral entitlements possessed by all simply in virtue of
their humanity.”13 Similarly, John Simmonds argues that “human rights are rights
possessed by all human beings (at all times and in all places), simply in virtue of their
humanity.”14 In a somewhat different—but equally universal—vein, human rights,
according to Martha Nussbaum, protect “central human capabilities” that are fun-
damental to what it means to be truly human.15
On moral accounts such as these, human rights protect essential characteristics
or features that all of us share despite the innumerable historical, geographical,
cultural, communal, and other contingencies that shape our lives and our rela-
tions with others in unique ways. They give rise to specifiable duties that we all owe
each other in ethical recognition of what it means to be human. Rights and obli-
gations can also arise from the bonds of history, community, religion, culture, or
nation. But if such rights relate simply to contingent features of human existence,
they do not constitute human rights and do not merit a place on the international
legal register. And if we owe each other duties for reasons other than our common
humanity—say, because of friendship, kinship, or citizenship—then these duties
11
Immanuel Kant, The Doctrine of Right, Part I of the Metaphysics of Morals, in Practical Philosophy
6:237 (Mary Gregor trans. & ed., 1996). For discussion, see Arthur Ripstein, Force and
Freedom: Kant’s Legal and Political Philosophy 30–56 (2009).
12
James Griffin, On Human Rights 48 (2008).
13
John Tasioulas, The Moral Reality of Human Rights, in Freedom from Poverty as a Human
Right: Who Owes What to the Very Poor? 76 (Thomas Pogge ed., 2007), 75–101 at 76 (emphasis
deleted).
14
A. John Simmonds, Justification and Legitimacy: Essays on Rights and Obligation 185
(2001) (emphasis omitted); Jack Donnelly, Universal Human Rights in Theory and Practice
18 (2d ed., 2003) (“[h]‌uman rights are, literally, the rights that one has simply because one is a human
being”); see also Alan Gewirth, Human Rights (1982).
15
Initially, Nussbaum distinguished between capabilities and rights. See Martha Nussbaum, Woman
and Human Development: The Capabilities Approach (2000). She subsequently defended the
capabilities approach as a species of a human rights approach. See Martha Nussbaum, Frontiers of
Justice: Disability, Nationality, Species Membership (2006).
Field Missions 7
do not correspond to human rights and should not be identified as such by interna-
tional legal instruments.
Distinguishing between obligations that correspond to human rights and those
that reflect special bonds of solidarity echoes a distinction more formally drawn by
H.L.A. Hart between general and special rights. For Hart, general rights are “rights
which all men capable of choice have,” whereas special rights are “rights that arise
out of special transactions between individuals or out of some special relationship in
which they stand to each other.”16 Although Hart did not specifically equate general
rights with human rights, he believed that some rights are general in nature because
they vest in men “qua men and not only if they are members of some society or stand
in some special relation to each other.”17 Special rights, in contrast, arise from par-
ticular relationships that we have with others, whether voluntarily, as in contract, or
by virtue of belonging to a particular social or political community. General rights
impose obligations on “everyone,” whereas special rights impose obligations only on
“parties to the special transaction or relationship.”18
Moral accounts treat human rights as general rights.19 They arise from the fact of
humanity, they can be claimed by all, and they impose obligations on all. Human
rights are not special rights. They do not reflect special bonds that exist among mem-
bers of particular communities, they do not vest in some people and not others, and
they do not require us to be partial to some at the expense of others. To speak of an
entitlement as a human right must mean something other than what justice requires
in the context of contingent relationships in which we find ourselves. It must be an
entitlement grounded in a universal feature of what it means to be human, regard-
less of the diverse circumstances that define our places in the world.
With the International Covenant on Economic, Social, and Cultural Rights
and other international and regional instruments, international human rights
law includes what are often referred to as second- and third-generation rights.20
Second-generation social and economic rights guarantee individuals access to a
set of basic social resources, such as food, housing, an adequate standard of living,
16
H.L.A. Hart, Are There any Natural Rights?, 64 Phil. Rev. 175, 188, 183 (1955).
17
Id. at 175.
18
Id. at 183.
19
Charles Beitz also makes this connection. See Charles Beitz, The Idea of Human Rights 68 (2009).
20
First-generation rights typically refer to civil and political rights, second-generation rights typically refer
to social, economic, and cultural rights, and third-generation rights include the right to development,
the right to self-determination, and a right to a healthy environment. For their initial iteration, see Karel
Vasak, Human Rights: A Thirty-Year Struggle: the Sustained Efforts to Give Force of Law to the Universal
Declaration of Human Rights, 30 UNESCO Courier 11 (Paris: U.N. Educational, Scientific, and Cultural
Organization, November 1977).
healthcare, and education.21 It conceives of these rights as imposing obligations on

States to take measures to secure their protection.22 But social and economic rights
and the obligations that accompany them fit awkwardly into moral conceptions of
human rights. Basic needs, such as food and shelter, are essential features of what it
means to be human. To take from someone something essential to one’s existence
is a human rights violation. It is a matter of deep controversy, however, whether
the set of duties that we owe each other directly in moral recognition of our com-
mon humanity includes positive obligations to assist others in need. While moral
accounts easily generate negative obligations of noninterference, they do not easily
generate universal and specifiable obligations of assistance. What positive obliga-
tions accompany the right to food, for example, and who bears these obligations?
International human rights instruments also extend protection to labor rights
and what is referred to as a third-generation right to development. These rights,
too, can be understood in terms that are consistent with moral accounts of human
rights as protecting universal interests. Labor rights are often said to be specific
entitlements that attach to workers by virtue of a more general right to freedom of
association that vests in all of us. The right to development speaks to the universal
aspiration that all individuals are free to develop, flourish, and live their lives to the
fullest. But these rights also typically impose positive obligations on others to secure
their realization, make more sense in some national economies than others, and pro-
tect some individuals and not others, and they are tied to the international legality
of processes of economic and social globalization in ways that moral accounts fail
to grasp.
This has led some moral theorists to claim that second- and third-generation
rights that entail positive obligations are not human rights at all. While such posi-
tive obligations can be specified in law, their specification is conditional on political
and legal institutions and not on a pre-institutional conception of the obligations
we owe each other by virtue of being human. In the name of social justice, a politi-
cal community may opt to entrench domestic rights protecting the welfare of its
members by imposing positive obligations on State actors and institutions to pro-
vide, say, food to those in need—and on individuals to contribute to the cost of
such a benefit. In the absence of such allocation of obligations, however, we cannot
identify inaction that would violate one’s right to food. Nor can we identify which
actors might be required to fulfill a right to food. A human right, such as a right
21
Adopted Dec. 16, 1966, 993 U.N.T.S. 3 (entered into force Jan. 3, 1976), arts. 11 (food, housing, adequate
standard of living), 12 (health), 13 (education).
22
Id. at art. 2. See also General Comment No. 3 in Report of the Fifth Session, U.N. ESCOR, 5th Sess., Supp.
No. 3, Annex 3, U.N. Doc. E/1991/23. E/C.12/1990/8 (1990).
Field Missions 9
to life, may entail positive obligations to secure its protection, but such secondary
obligations flow from a primary obligation that attaches to all of us not to infringe
this right.23
This is not to say that moral theorists have not addressed this challenge. Griffin
argues that human rights provide “at least the minimum provision of resources and
capabilities” necessary to be a human agent. He does so by drawing a distinction
between general and particular obligations. For Griffin, we all bear obligations to
assist others in distress, but who bears these obligations in particular instances—and
what they amount to—rest on a host of contingencies such as which person or insti-
tution is in the best position and best able to act. They are also shaped by competing
considerations that arise from deep commitments that form our moral identities,
such as commitments to one’s own family and community.24 Tasioulas has sug-
gested that human rights enjoy a “temporally constrained form of universality,”
which permits features of the social world that we inhabit to play a role in deter-
mining their existence.25 Tasioulas also takes issue with the requirement that cor-
relative duties must be universal in nature. In his view, the existence of a human
right is conditional only on it being grounded in an interest we all share as humans
“significant enough to generate duties on the part of others,” such as freedom from
poverty.26 But meeting this challenge—whether by distinguishing between general
and particular obligations, conceptualizing universal claims in temporal terms, or
accepting the contingency of duties—requires relaxing the properties of universal-
ity on which moral conceptions of human rights typically rest their case.
This challenge is compounded when a human right is said to impose duties on
individuals and collectivities in political communities other than where the bearers
of rights are located. If A has a right to x, then B has a duty not to interfere with A’s
enjoyment of right x. A’s right to x, however, does not typically obligate B to give x
to A, especially if A and B are citizens of different States. Again, this is not to say
that moral theorists have not addressed this challenge. Griffin, for example, writes
that “if poor central governments are unable to shoulder the burden” of poverty
within their midst, “then perhaps the time has come for us to consider whether
23
See, e.g., Onara O’Neill, The Dark Side of Human Rights, 81 Int’l Aff. 427 (2005). See also Carl
Wellman, Welfare Rights 181 (1982).
24
Griffin, supra note 12, at 96–110. Compare Pablo Gilabert, Humanist and Political Perspectives on Human
Rights, 39 Pol. Theory 439, 443 (2011) (distinguishing between “abstract rights concerned with extremely
important interests shared by all” and “specific rights” that “identify the protection that the basic interests
deserve in certain historical circumstances.”).
25
Tasioulas, supra note 13, at 76.
26
Id. at 77.
the burden should not also be placed on a group of wealthy nations.”27 But the fact
remains: moral conceptions of human rights grounded in universality struggle with
rights that impose positive obligations on States to provide benefits to their own
citizens and on citizens to contribute to their cost. They struggle even more with
rights whose external dimensions mandate international redistributive measures to
address global poverty.28
Moral accounts of human rights cast in universal terms also struggle with inter-
national human rights that extend legal protection to certain individuals and groups
but not others. Several States have entered into bilateral treaties protecting the
rights of minorities living outside of the State in which they share a historical affili-
ation.29 Some multilateral treaties also extend rights protection to various minor-
ity communities.30 Minority rights are sometimes portrayed as protecting religious,
cultural, and linguistic affiliations that are essential features of what it means to be
a human being. Although worded in universal terms, numerous international civil
and political rights also can be and have been interpreted to protect the interests of
specific religious, ethnic, and cultural communities.31
In addition, recent developments at the regional and international levels sig-
nal a renewed commitment to rights that protect indigenous territories, cultures,
and forms of governance from assimilative forces emanating from States in which
27
Griffin, supra note 12, at 104. Griffin adds that “a lot of work would have to go into deciding which
nations count as ‘rich’ for this purpose, how great a demand can be made of them, and what a fair distribu-
tion of the burden would be.” Id.
28
But see Philip Alston & Gerard Quinn, The Nature and Scope of States Parties’ Obligations under the
International Covenant on Economic, Social, and Cultural Rights, 9 Hum. Rts. Q. 156 (1987) (the ICESCR
gives rise to a duty on rich States to assist poor States when poor States do not have resources necessary to
fulfill their obligations under the ICESCR to their citizens).
29
Poland has entered into treaties with the Federal Republic of Germany (1991), the Czech and Slovak
Republic (1991), the Russian Federation (1992), Belarus (1992), and Lithuania (1994). In the 1990s, Hungary
entered into treaties with Ukraine, Slovenia, Croatia, Slovakia, and Romania. In addition to its treaty with
Hungary, Romania has entered into treaties with Ukraine and Moldova. Other examples include treaties
between Croatia and Hungary and Italy. See generally Protection of Minority Rights Through
Bilateral Treaties: The Case of Central and Eastern Europe (Arie Bloed & Pieter van Dijk
eds., 1999).
30
Article 27 of the International Covenant on Civil and Political Rights, for instance, extends protection
to ethnic, religious, and linguistic minorities. For a review of the Human Rights Committee’s views on
article 27, see Gaetano Pentassuglia, Minorities in International Law: A Comparative
Perspective (2002).
31
See, e.g., Francis Hopu and Tepoaitu Bessert v. France (Communication no. 549/193), Views of the Human
Rights Committee, UN Doc. CCPR/C/60/D/549/1993, 217–222 (July 29, 1997) (defining art. 23 of the
ICCPR, which enshrines the right to a family life by reference to indigenous cultural traditions); Awas
Tingni v. Rep. of Nicaragua, Inter-Am. Comm’n H.R., Petition No. 11 577 (2001) (defining art. 21 of the
American Convention on Human Rights, which enshrines the right to property, as protecting indigenous
title).
Field Missions 11
indigenous peoples are located.32 Indigenous rights can be understood as specific

instantiations of more general rights that inhere in all of us, such as the right of
self-determination, but which are tailored to the unique circumstances of indige-
nous peoples.33 The right of self-determination is often said to vest in all individuals
and in all peoples and, to this extent, possesses universal value. But minority rights,
indigenous rights, and, more generally, the right of self-determination typically vest
in some individuals and communities and not in others, for reasons that have less
to do with universal norms and more to do with contingencies of history and geog-
raphy that form the backdrop of the international legal order. Moreover, minority
rights, indigenous rights, and the right of self-determination possess the capacity to
divide people into different communities, create insiders and outsiders, pit ethnic-
ity against ethnicity, and threaten the universal aspirations that inform dominant
moral conceptions of the field.
The commitment to universalism in moral accounts also sheds light on the prac-
tice of privileging certain human rights at the expense of others. Since the inception
of contemporary international human rights law, many State and non-State actors
have tended to privilege interests that underlie international civil and political
rights at the expense of second- and third-generation rights, notwithstanding asser-
tions of a principle of indivisibility that holds all human rights to be interdependent
and of equal value.34 Governments are more likely to entrench civil and political
rights than social and economic rights in their constitutions and less likely to agree
to individual redress measures at the international level.35 The prominence that civil
and political rights enjoy in international human rights law is in no small measure
due to the fact that most of the field’s foundational instruments and institutions
came into existence in the wake of wartime atrocities and were consciously designed
to protect interests associated with civil and political freedom from the raw exercise
of collective State power.
32
See, e.g., Declaration on the Rights of Indigenous Peoples, A/RES/61/295 Ann. 1 (Sept. 13, 2007).
33
See S. James Anaya, Indigenous Peoples in International Law (2d ed. 2004) for an account of
international indigenous rights in these terms.
34
See, e.g., art. 5 of the Vienna Declaration and Programme of Action, UN A/CONF.157/23 (adopted by
World Conference on Human Rights, June 25, 1993) (declaring that “[a]‌ll human rights are universal,
indivisible and interdependent and interrelated”). For an extensive treatment of the topic, see Daniel
J. Whelan, Indivisible Human Rights: A History (2010).
35
Until recently, there was no Optional Protocol to the International Covenant on Economic, Social, and
Cultural Rights akin to that which accompanies the International Covenant on Civil and Political Rights,
for example, enabling individuals to file petitions to the Committee on Economic, Social, and Cultural
Rights. The new Optional Protocol to the ICESCR opened for signature and Ratification in September
2009. It came into force on May 5, 2013. As of this writing, forty-five States are signatories to, and only three
States have ratified, the Optional Protocol.
But this prominence is also a function of the influence of universalism in norma-

tive debates about the nature of this field of law. If human rights correspond to only
those duties that we owe each other directly in moral recognition of what it means to
be human, then second- and third-generation rights, like civil and political rights, may
well obligate individuals to not interfere with the liberty or autonomy of others. But
whether they impose positive obligations to assist others in need, especially others who
belong to different political communities or other communities of value, is a matter of
deep controversy from the perspective of a universal account. As a result, human rights
that require positive State action to secure their protection, especially those that impose
duties on individuals and collectivities in political communities other than where the
bearers of rights are located, fit awkwardly within the universal picture.
Critics often charge that universal accounts of human rights fail to grasp that at
least some moral standards are relative to specific cultural and historical contexts
and that there are no universal means of judging the merits of culturally specific
ways of life. Cultural relativists argue that universalism masks the imposition of cul-
turally specific beliefs on communities that possess different inner logics,36 whereas
universalists charge that relativists authorize violations of human rights in the name
of cultural difference. Debates between universalism and relativism have long domi-
nated moral inquiries into the nature of international human rights law.37 And so
36
Cultural relativism is often broken down into a number of different versions. A common list includes descrip-
tive relativism, normative relativism, and meta-ethical relativism. Descriptive relativism is factual in nature: it
points out that as a matter of fact, different moral beliefs exist by virtue of differing cultural contexts. For refine-
ments of this version, see Melford Spiro, Cultural Relativism and the Future of Anthropology, 1 Cultural
Anthropology 259, 260–61 (1986). Normative relativism is based on the more contentious claim that differ-
ing moral values have no validity outside of their particular cultural contexts and, as such, are incommensurable.
The work of Ruth Benedict is often associated with this view. See Ruth Benedict, Patterns of Culture
278 (1934) (there are “coexisting and equally valid patterns of life”). Meta-ethical relativism holds that one can-
not objectively justify the moral beliefs of one culture over the moral beliefs of another, although there may
exist certain shared or universal values. See generally Douglas Lee Donoho, Relativism Versus Universalism
in Human Rights: The Search for Meaningful Standards, 27 Stan. J. Int’l L. 345, 351–52 (1991); William
K. Frankena, Ethics 109–10 (1973); Paul F. Schmidt, Some Criticisms of Cultural Relativism, 70 J. Phil. 780
(1955). For an insightful critique of relativism, see Steven Lukes, Moral Relativism (2008).
37
The debate began in earnest in 1947 when the Executive Board of the American Anthropological
Association fired a salvo at the U.N. Commission on Human Rights during the drafting of the Universal
Declaration of Human Rights, claiming that “standards and values are relative to the culture from which
they derive so that any attempt to formulate postulates that grow out of the beliefs or moral codes of one
culture must to that extent detract from the applicability of any Declaration of Human Rights to mankind
as a whole.” Executive Board, American Anthropological Association, Statement on Human Rights, 49
Am. Anthropologist 539 (1947). It resurfaced in the context of a debate over collective “Asian values”
that are said to deviate from individualistic understandings of human rights. See Anthony J. Langlois,
The Politics of Justice and Human Rights: Southeast Asia and Universalist Theory
(2001). It has assumed a new guise in the context of an initiative primarily by Russia to ground international
human rights norms in “traditional values.” For an illuminating account, see Christopher McCrudden,
Field Missions 13
they should—assuming, as they do, that the mission of the field is to protect universal
features of what it means to be a human being.
The significance of these debates turns precisely on the validity of this assump-
tion. If the nature of the field is not what the standard account valorizes or what
relativists criticize, then its traditional supporters and detractors are locked in
a disagreement—one that does not appear to be resolvable in either the near or
distant future—that has little to do with the actual object of their attention. An
account of the normative architecture of the field should not conflate fact and norm
by equating legal validity with moral legitimacy, but nor should it lose sight of the
object that it seeks to describe. If human rights in international law are not those
that moral theory generates, then moral accounts of human rights are not normative
accounts of international human rights law. In the words of two critics, moral theo-
rists “have concentrated on disputes over which rights should appear on the legal
list, with little or no attention paid to what being on the list actually means.”38 The
drawback is not simply a loose grasp of the law. The true cost is a shrinking of the
field’s capacity to engage fundamental normative questions relating to the structure
and operation of the international legal order.
Human R ights as Political Concepts
In recent years, political accounts of international human rights have garnered

attention in international political theory. Unlike most moral approaches, which
focus on universal features of our common humanity, political conceptions define
the nature of human rights in terms of their function in global political discourse.
Human rights, according to political conceptions, do not necessarily correlate to the
requirements of moral theory. They represent reasons that social, political, and legal
actors rely on in international arenas to advocate interfering in the internal affairs of
a State and to provide assistance to States to promote their protection.39
Human Rights, Southern Voices, and “Traditional Values” at the United Nations (2014) (unpublished
paper on file with author). For an overview of the universalism-relativism debate, see Alison Dundes
Renteln, International Human Rights: Universalism versus Relativism (1990).
38
Saladin Meckled-Garcia & Başak Çali, Lost in Translation: The Human Rights Ideal and International
Human Rights Law, in The Legalization of Human Rights: Multi-Disciplinary
Perspectives on Human Rights and Human Rights Law 11 (Başak Çali & Saladin
Meckled-García eds., 2006).
39
See generally Joseph Raz, Human Rights without Foundations, in The Philosophy of International
Law (Samantha Besson & John Tasioulas eds., 2010); Beitz, supra note 19; Kenneth Baynes, Toward
a Political Conception of Human Rights, 35 Phil. & Soc. Criticism 371 (2009); Andrea Sangiovanni,
Justice and the Priority of Politics to Morality, 16 J. Pol. Phil. 137 (2008); Joshua Cohen, Minimalism about
Charles Beitz, for example, argues that justifications of human rights, as well as
questions relating to their content and the obligations they impose on others, pre-
suppose a concept of human rights that specifies the properties that make human
rights what they are. Such a concept will not justify their protection nor determine
their content or their ensuing obligations, but it will provide some purchase and
help to frame debate on these questions. Beitz offers a concept of human rights
derived from the practice of human rights in global politics. Global human rights
practice, for Beitz, is a social practice where participants invoke or rely on human
rights as reasons for certain kinds of actions in certain circumstances.
What this practice reveals is that human rights protect urgent individual inter-
ests against certain predictable dangers associated with the exercise of sovereign
power. States have a primary obligation to protect urgent interests of individuals
over whom they exercise sovereign power, but external actors, such as other States
and international institutions, have secondary obligations to secure protection
when a State fails to live up to its responsibility.40 “To say something is a human
right,” in Beitz’s view, “is to say that social institutions that fail to protect the right
are defective—they fall short of meeting conditions that anyone would reasonably
expect them to satisfy—and that international efforts to aid or promote reform are
legitimate and in some cases may be morally required.”41
Political conceptions of human rights that focus on practice require attributing
significance to the intentions of political actors producing and reproducing the
practice at hand. A political conception gives credence to the intent of participants
in the practice of human rights because it identifies the nature of human rights by
reference to the actions of those involved in the practices that exemplify their discur-
sive role in global politics. Ascribing meaning to such actions requires determina-
tions of the intentions, aims, and objectives of those who engage in them. A political
conception, in other words, attributes relevance to the intent of participants in the
practice of human rights because the meaning of an action cannot be gleaned with-
out a grasp of the intent behind it. The nature of the human rights that comprise the
Human Rights: The Most We Can Hope For?, 12 J. Pol. Phil. 190 (2004); John Rawls, The Law of
Peoples (1999).
40
Beitz, supra note 19, at 102–17. Rawls also defines the functional role of international human rights in
terms of justifying interference in the internal affairs of a State. See Rawls, supra note 39, at 79 (human
rights restrict “the justifying reasons for war and its conduct” and specify “limits of a regime’s internal
autonomy”). But as Beitz points out, Rawls does not also see human rights as justifying external assis-
tance in their realization. Beitz, in contrast, includes external assistance in his definition of the functional
role of human rights, which leads him to define the right to an adequate standard of living as mandating
global wealth redistribution. See Charles Beitz, Human Rights and the Law of Peoples, in The Ethics of
Assistance: Morality and the Distant Needy 196 (D.K. Chatterjee, ed., 2004).
41
Id. at 210.
Field Missions 15
field, according to this perspective, rests in no small measure on what political actors
intend to accomplish when they engage in the practice of human rights.
Beitz reveals his reliance on the intent of participants in his critique of conceptions
of human rights that rely on the natural law tradition to specify their nature. Beitz
notes correctly that those responsible for the creation of contemporary international
human rights instruments and institutions explicitly ruled out natural law as a single
conceptual framework for comprehending their international legal status.42 The draft-
ers of the Universal Declaration, for instance, comprehended human rights as public
principles that participants in the global practice of human rights rely on to criticize
the exercise of sovereign power, not as legal entitlements that individuals possess by
virtue of their human nature. While the global practice of human rights manifested
a natural law perspective in some quarters, it also manifested different perspectives in
other quarters, and the framers of the Universal Declaration, Beitz observes, conceived
of this practice as manifesting a “public doctrine open to a variety of justifications.”43
As Beitz’s account of the formation of the Universal Declaration reveals, a focus on
the original intent of those responsible for promulgating international human rights
instruments assists in distinguishing political conceptions of human rights from
moral accounts that seek to locate their nature in essential properties of what it means
to be human. But although reliance on originalism might bolster the plausibility of
political accounts in the eyes of those otherwise tempted by the allure of natural law,
it exposes what such accounts must repress to acquire explanatory power. Divining
the intent of those responsible for the enactment of a legal norm is a thoroughly inter-
pretive enterprise that must specify a plausible method of discerning intent, distin-
guish actual intentions from stated intentions, identify which actors count as framers,
assume that each actor was motivated by a single objective or assign weights to her
multiple objectives, specify how much weight is to be given to their intentions in rela-
tion to the intentions of those whom they represent, and sift through countless, com-
peting political motivations of a multiplicity of international actors.44
42
Beitz, supra note 19, at 20–21.
43
Id. at 21. This led Jacques Maritain, a Catholic philosopher active in the drafting of the U.N. Declaration
while serving as France’s ambassador to the Vatican, to famously report a colleague’s comment about the
Declaration that “we agree about the rights but on condition that no one asks us why.” Jacques Maritain,
Introduction, in Human Rights: Comments and Interpretations 10 (UNESCO ed., 1949).
44
One way to address some of these concerns is to narrow the class of political actors whose practice defines
a human right. Jean Cohen, for example, focuses on “the politics of actors who invoke the international
documents and rely on strong moral arguments when declaring and claiming their own rights vis-à-vis the
exercise of the public power first and foremost of their own state.” Jean L. Cohen, Globalization
and Sovereignty: Rethinking Legality, Legitimacy, and Constitutionalism 164 (2012)
(emphasis in original). This enables Cohen to box out the politics of actors who invoke the discourse of
human rights in the context of “the enforcement model that humanitarian intervention articulates
Putting aside challenges associated with relying on originalism in international

law, if the goal is to specify the political role that human rights play in the interna-
tional legal order as a descriptive matter, then it makes eminent sense to attend to
how they motivate and justify the actions of political actors in the international
arena. But relying on practice to identify the normative dimensions of human
rights—that is, the role they should play in the international arena—risks conflat-
ing fact and norm and potentially drains human rights of their capacity to act as
instruments of critique of existing practices. Determining the extent to which a
human right should act in this way requires accounting for its normative purpose,
and it makes little sense to locate such an account in existing practice.
Moral theorists generally do not confront this challenge to the extent they affirm
that universalism grounds the normativity of human rights and hold existing
practice to account to the extent that it fails to respect what human rights require
as a matter of abstract morality.45 But, as we have seen, they face this problem in
reverse: the legal regime they imagine in normative terms becomes the legal regime
that, they insist, must exist in fact. If a political account seeks to offer a prescriptive
as well as a descriptive explanation of human rights, however, it needs to explain
why the particular discursive role a human right plays in motivating and justifying
political action explains its normative value.46
Political conceptions of human rights rarely rest on crude versions of convention-
alism, where what we do has normative value simply because we do it.47 Beitz, for
example, is certainly aware of the challenges that political accounts of human rights
face when moving from the descriptive to the prescriptive plane. One challenge
relates to how we determine whether the purposes associated with human rights
are sufficiently important objectives of “global political life to justify imposing
regarding grave humanitarian crises or grave rights violations” from “the heart of the international human
rights ‘regime.’ ” Id. at 194. For an illuminating account of international human rights that derives their
normativity from the practices of feminist human rights activists “working to make marginalized peo-
ples and marginalized structures visible,” see Brooke A. Ackerly, Universal Human Rights in a
World of Difference (2008). For a critique of various methods of identifying the practice of human
rights and its practitioners and a proposal that one needs to construct an “idealized practitioner” for this
task, see David Jason Karp, The Location of International Practices: What Is Human Rights Practice?, 39
Rev. Int’l Stud. 969 (2013).
45
It should be noted that Griffin argues that practice (in his words, “the human rights tradition”) is consis-
tent with and therefore supports conceiving of human rights in universal terms. Griffin, supra note 12,
at 30–32.
46
Compare Laura Valentini, Human Rights, Freedom, and Political Authority, 40 Pol. Theory 573,
577 (2012) (“Why should the function human rights actually play in contemporary politics shape their
meaning?”).
47
For a defense of moral relativism grounded in conventionalism, see Gilbert Harman, Moral Relativism, in
Moral Relativism and Moral Objectivity (G. Harman & J.J. Thompson, eds., 1996).
Field Missions 17
costs on those agents whose contributions the practice claims to exist.”48 A second
is how to generate “selection criteria for the substantive requirements of human
rights.”49 Beitz’s elegant solution is to defend a set of conditions that practices must
meet before determining that their purposes are sufficiently important objectives of
global political life to attract the normative value we attach to human rights.50
Other scholars conceive of selection criteria required of political conceptions of
human rights in different terms. Joseph Raz argues that such criteria must be empir-
ical and variable, resting on whether, under the circumstances, external interference
in the domestic affairs of a State is normatively justifiable, which in turn rests on
contingencies specific to the State in question and the current nature of the interna-
tional legal order.51 Joshua Cohen argues that human rights, properly understood,
are those that relate to “an idea of membership or inclusion in an organized political
society, and not on a deeper outlook about the proper conduct of a good or righteous
life.”52 Michael Ignatieff offers a minimalist account of human rights, validating
practices of intervention in the name of those human rights that relate to “the ele-
mental priority of all human rights activism: to stop torture, beatings, killings, rape
and assault to improve, as best we can, the security of ordinary people.”53 Selection
criteria such as these provide political conceptions with critical distance from posi-
tive international law. But if one’s selection criteria generate a list of human rights
that is narrower than those that exist in international law, then political accounts,
like their moral counterparts, are not normative accounts of international human
rights law. They are normative critiques of international human rights law.
More fundamentally, whether these solutions are adequate to the task at hand is
less important than what they assume, which is that the task at hand is to ascertain
48
Beitz, supra note 19, at 126.
49
Id., where Beitz also identifies the challenge of determining in whom obligations associated with human
rights ought to vest.
50
According to Beitz (id. at 137), an argument for a justifying claim about “the content of human rights doc-
trine” should make good three contentions:
1. That the interest to be protected by the right is sufficiently important when reasonably regarded
from the perspective of those to be protected such that it would be reasonable to consider its
protection to be a political priority.
2. That it would be advantageous to protect the underlying interest by means of legal or policy
instruments available to the State.
3. That in the central range of cases in which a State might fail to provide the protection, the failure
would be a suitable object of international concern.
51
Raz, supra note 39, at 186.
52
Joshua Cohen, Is There a Human Right to Democracy?, in The Egalitarian Conscience: Essays in
Honour of G.A. Cohen 237 (Christine Sypnowich, ed., 2006) (emphasis omitted).
53
Michael Ignatieff, Human Rights as Politics and Idolatry 173 (2001).
the normative dimensions of the discursive practice of human rights. This may well
be the case if the nature of the inquiry is to determine the normative properties of
the role that human rights play in global politics. But if the task is instead to deter-
mine the normative properties of human rights in international law, then what is at
stake is the normativity of laws that require or authorize actions we associate with
the practice of human rights, not the normativity of actions that these laws require
or authorize. Whereas a political account focuses on the role that human rights play
in global politics, a legal account focuses on the normative role that they play in the
structure and operation of international law.
Human R ights as Legal Concepts
Understanding international human rights as legal concepts starts with the prem-
ise that international law, not moral theory or political practice, determines their
existence.54 An international human right to food, for example, exists because the
International Covenant on Economic, Social, and Cultural Rights enshrines such
a right.55 Its international legal status as a human right derives from the fact that
international law, according to the principle pacta sunt servanda, provides that a
treaty in force between two or more sovereign States is binding upon the parties
to it and must be performed by them in good faith.56 Similarly, the right to devel-
opment is a human right in international law because the U.N. General Assembly
has declared its legal existence.57 The international legal validity of a norm—what
makes it part of international law—rests on a relatively straightforward exercise in
legal positivism: a norm possesses international legal validity if its enactment, prom-
ulgation, or specification is in accordance with more general rules that international
law lays down for the creation of specific legal rights and obligations.58
54
Allen Buchanan puts it this way: legal rights “are what they are: legal rights; and legal rights need not be
embodiments of corresponding moral rights.” Allen Buchanan, The Heart of Human Rights 11
(2013) (emphasis omitted).
55
ICESCR, supra note 2, art. 11.
56
Art. 26, Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 U.N.T.S. 331
(entered into force Jan. 27, 1980).
57
See, e.g., Richard Bilder, Rethinking International Human Rights: Some Basic Questions, [1969] Wisc.
L. Rev. 171, 173 (“in practice a claim is an international human right if the United Nations General
Assembly says it is”). The authority of the General Assembly to proclaim human rights, according to Philip
Alston, is derived from the terms of the U.N. Charter. See Philip Alston, Conjuring Up New Human
Rights: A Proposal for Quality Control, 78 Am. J. Int’l Law 607 (1984).
58
For classic articulations of legal positivism, see John L. Austin, The Province of Jurisprudence
Determined (Wilfred E. Rumble ed., 1995) (a law is valid because it is the command of a sovereign);
Hans Kelsen, General Theory of Law and State (Anders Wedberg trans., 1999) (a legal norm is
Field Missions 19
International legal theory is intimately familiar with the positivist claim that the
validity of a law rests on its formal compliance with the rules surrounding the for-
mation of law of its host legal system. Understood in positivist terms, international
law is a body of norms that governs international actors that the field recognizes as
possessing international legal personality, and the legal validity of these norms does
not rest on the extent to which they secure or promote justice or morality. Whether
international law requires a State to act or abstain from acting in a particular way
turns on whether the requirement in question is in accordance with, or is autho-
rized by, the rules that international law establishes for the creation of legal rights
and obligations and the regulation of power.
In contrast, justice is a matter of ethics or morality. Justice may require much of
international law. It may require the field to prohibit war when it authorizes it, or
authorize war when it prohibits it. It may mandate open borders to allow individu-
als, families, even whole communities, to relocate to other parts of the world even
though international law authorizes States to build legal—and actual—barriers
around their borders. It may demand wealthy States to share their wealth and
resources with those lacking in both. But what justice or morality demands is not
necessarily the law. The international legal validity of a norm rests on compliance
with more general norms governing the legality of its enactment, promulgation, or
specification.
The history of international legal thought is punctuated by spectacular efforts to
establish a measure of autonomy for the field from raw claims of morality and power.59
Perhaps the most ambitious is Hans Kelsen’s “pure theory of law,” which epitomizes
a positivist conception of international law.60 Kelsen distinguishes between moral
norms, which are typically derived from general moral principles, and legal norms,
which are the product of an act of will. According to Kelsen, an act of will cre-
ates law only if it is authorized by a “higher” legal norm. For Kelsen, the legality of
domestic law—at least from the perspective of international law—ultimately rests
valid if authorized by another legal norm of a higher rank); and H.L.A. Hart, The Concept of Law
(1961) (a law is valid if it conforms with “secondary rules” or laws that authorize the enactment of a law).
Some have drawn a distinction between political and analytic positivism, the former an interpretive strat-
egy and the latter an objective description. See Ronald Dworkin, Justice in Robes 26–33 (2006). For
a defense of political positivism in international law, see Benedict Kingsbury, Legal Positivism as Normative
Politics: International Society, Balance of Power and Lassa Oppenheim’s Positive International Law, 13 Eur.
J. Int’l L. 401 (2002).
59
See Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of
International Law 1870–1960 (2001).
60
Hans Kelsen, Introduction to Problems of Legal Theory (Bonnie Litschewski Paulson &
Stanley L. Paulson trans., 1992).
on international legal norms, which validates claims by States of sovereign authority

over territory and persons.
That scholars like Kelsen sought to establish a measure of autonomy for interna-
tional law from claims of morality and justice is no surprise. The norms on which
the field confers legal validity are produced, in multiple sites, by ambiguous cus-
tomary practices and shifting coalitions of the very same legal actors—States—that
they regulate. Moreover, there is no overarching judicial institution that regularly
provides authoritative guidance on what the field requires of States in the context of
particular disputes. Since the very inception of the field, States have sought to define
international law by invoking broad claims of justice or morality to provide a legal
veneer to self-interested international political aspirations. Separating international
law from justice or morality is not simply an intellectual challenge. It is a task that
international lawyers and scholars have seen as critical to the capacity of interna-
tional law to provide legal order to global politics.
Conceiving of an international human right’s legal existence in positivistic terms
is not to downplay the politics behind its legal production. Human rights in inter-
national law are legal outcomes of deep political contestation over the international
legal validity of the exercise of certain forms of power. For those in whom human
rights vest, seeking international legal validity “entails wresting the power to par-
ticipate in the politically relevant discussion and decisions regarding who should
be accorded which rights, whose voices should be heard, what rights people have,
how they should be interpreted, and about how public power should be exercised.”61
Such contestation does not cease upon the enactment of an international instru-
ment that enshrines a human right in international law. Contestation continues
over its nature and scope in particular contexts as diverse as individual or collective
disputes requiring international legal resolution, opinions offered by international
legal actors on State compliance with treaty obligations, juridical determinations of
the boundaries between domestic and international legal spheres, and negotiations
among State actors that yield binding or nonbinding specifications of international
legal obligations. Once transformed from political claim into legal right, and sub-
sequently as a result of interpretive acts that elaborate their nature and purpose,
human rights in turn empower new political projects based on the rules they estab-
lish to govern the distribution and exercise of power.
Contestation continues in part because the legal existence of an international
human right underdetermines its content. The interests that a human right pro-
tects, the nature of the obligations to which it gives rise, the actors who bear these
61
Cohen, supra note 44, at 170.
Field Missions 21
obligations—these and other questions typically remain open to legal interpreta-

tion. Various interpretive sources assist in resolving questions surrounding the con-
tent of an international human right, including the intent of those who participated
in the politics that led to its legal existence.62 But unless one is a strict proponent of
original intent, the content of an international human right is not determined by
the politics of its legal production. Textual considerations also play a role in deter-
mining the content of an international human right.63 Occasionally, a legal instru-
ment in which a human right is enshrined sets out relatively clearly, for example,
what obligations it entails and on whom they fall. The practice of legal and political
actors seeking to implement a human right in a variety of institutional contexts also
helps to answer questions about its content.
Like political conceptions, the legal account offered here finds practices surround-
ing a human right useful. However, practice is not, as political theorists might pro-
pose, the source of a right’s normative significance in international law. Practice is
relevant in illuminating a right’s content. Various international initiatives designed
to implement the right to development, for example, help to clarify what the right
to development requires of States in the internal and external exercise of sovereign
power. But, equally as often, practice, as well as text and intent, underdetermines
the meaning of a human right, and its content will rest on a normative account of
its purpose.64
Whereas moral conceptions of human rights locate their legitimacy outside of
law and face challenging questions about their legal validity, legal conceptions thus
confront an opposite set of challenges. Determining the legal validity of an inter-
national human right is a relatively simple legal task. But legal validity does not
determine the normative purpose of a right, and 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 distinctly
62
Article 31 of the Vienna Convention, supra note 56, requires “[a]‌treaty to be interpreted in good faith in
accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the
light of its object and purpose.” Article 32 of the Vienna Convention refers to the “preparatory work of the
treaty,” from which one might infer the intent of the parties as merely a “supplementary means of interpre-
tation” to be examined only “to confirm the meaning resulting the application of Article 31” or when such a
meaning is “ambiguous or obscure” or “leads to a result that is manifestly absurd or unreasonable.”
63
See Andrea Bianchi, Textual Interpretation and (International) Law Reading: The Myth of (in)
Determinacy and the Genealogy of Meaning, in Making Transnational Law Work in the Global
Economy—Essays in Honour of Detlev Vagts 35 (P. Bekker, ed., 2010).
64
This is an interpretive method that international lawyers obliquely refer to as the “teleological” approach to
treaty interpretation. See generally G.G. Fitzmaurice, The Law and Procedure of the International Court of
Justice: Treaty Interpretation and Certain Other Treaty Points, 28 Brit. Y.B. Int’l L. 1 (1951).
legal terms. For example, if the right to development imposes obligations on devel-
oped States to combat global poverty because global poverty is morally unjust, then
morality, not law, determines the purpose of the right. And if, as we will see, moral
theory struggles with casting the moral wrong of global poverty in terms of human
rights, then these struggles will simply reproduce themselves in legal accounts of
understanding the right to development in these terms.
But a legal conception of human rights need not conflate law and morality to
ground the purpose of a human right in more than the mere fact of its legal validity.
Human rights in international law are not so much formal expressions of what jus-
tice requires as a matter of abstract morality as they are legal instruments that aim
to do justice in the actual international legal order in which we live. Their purposes
ultimately rest on how we comprehend their relationship to the structure and opera-
tion of the international legal order in which they operate. Although these purposes
inescapably possess normative dimensions, forays into moral theory to determine
their normative content remain tethered to the international legal order.
On the legal conception offered here, human rights serve as instruments that
mitigate adverse consequences of how international law organizes global politics
into an international legal system. Human rights in international law are simi-
lar to other legal norms that comprise the field in the sense that they are part of
customary international law or are enshrined in treaties. But unlike other interna-
tional legal norms, which characteristically vest entitlements in States and regulate
relations between and among sovereign States, international human rights vest
rights in individuals and collectivities not necessarily coextensive with the popula-
tions of States. They thus perform a distinct function in international law. They
speak to adverse consequences of how international law deploys the concept of sov-
ereignty to organize global politics into a legal order—consequences that generate
political projects aimed at their amelioration. Some of these projects successfully
receive international legal validation in the form of human rights. Determining
the purpose of an international human right thus involves identifying the amelio-
rative role that it performs in relation to the structure and operation of interna-
tional law itself.
As a result, the possibility that human rights might possess universal and
non-universal properties does not threaten the legitimacy of legally comprehending
them in these terms. Their role in our international legal order makes sense of the
fact that some international human rights legally vest entitlements in, and impose
obligations on, some individuals and communities and not others. Nor does the
possibility that an international human right imposes positive obligations on others
threaten its standing as a human right. If the point of international human rights
law is to mitigate harms produced by the structure and operation of international
Field Missions 23
law, then—depending on the nature of these harms and the ways in which interna-
tional law participates in their production—international human rights may well
give rise to positive legal obligations to provide assistance to others. And although
their purposes rest on moral considerations that extend beyond the positive fact of
their legal existence, the normativity on which they rely is one that is internal—not
external—to international law.65 The purpose of international human rights law,
in general, is to do justice to the structure and operation of the actual international
legal order in which we find ourselves. The purpose of a particular international
human right is to mitigate harms produced by international norms that relate to its
text, the reasons for its entrenchment, and its implementation.
This account of international human rights law is not indifferent to the ongo-
ing debate between universalism and relativism. International law authorizes States
to exercise sovereign power and thus invites critical inquiry into the limits of its
authority. But by comprehending the mission of the field in terms that embrace
rights and impose obligations that speak to differences between people as well as
to features that we all share, this books seeks to redefine the debate between uni-
versalism and relativism as a debate within—as opposed to about—international
human rights law. Although some human rights in international law may protect
universal features of humanity from the exercise of State power, some international
human rights speak to contingent features of human identity. The debate between
universalism and relativism occurs in international law, in contexts where legal
entitlements protecting cultural differences clash with legal entitlements protecting
competing interests.66 Universalism does not determine the inside of international
human rights law, and relativism does not determine its outside. By conceptualiz-
ing claims about cultural difference in juridical terms, international human rights
law is even more hegemonic than cultural relativists realize. And by monitoring the
structure and operation of the international legal order, international human rights
assume a normative mission much richer than what is ascribed to them by the uni-
versal imagination. Preventing a State from threatening essential features of what it
means to be human, in other words, is but a small part of the real normative terrain
of international human rights law, which is the legitimacy of the international legal
order itself.
65
Compare Rawls, supra note 39, at 80 (a human right should receive international as opposed to domestic
protection because it is “intrinsic to the law of peoples”).
66
For an insightful assessment of the compatibility of various forms of legal pluralism with international
and regional human rights law, see Helen Quane, Legal Pluralism and International Human Rights
Law: Inherently Incompatible, Mutually Reinforcing or Something in Between?, 33 Oxford J. Leg. Stud.
675 (2013).
Unlike moral conceptions of human rights, political conceptions link human

rights to the function they perform in the broader global arena. Political concep-
tions treat international law as a subset of international politics. International law
undoubtedly is the product of political projects. But international law also struc-
tures global politics by a binary opposition between legality and illegality, conferring
legal authority on some claims of economic and political power and rejecting others
as international illegalities. The basis of an international legal order—as opposed to
a political or economic order—lies in its capacity to structure economic and politi-
cal realities by reference to a concept of legality. What transforms an economic or
political act into an international legal act is the extent to which it complies with
criteria of legality provided by international law itself. Human rights monitor the
legitimacy of economic and political acts to which the broader international legal
order otherwise extends international legal validity. While human rights may well
act as political reasons for international intervention and assistance in the practice
of global politics, the legal account offered here locates the normative force of these
reasons in the role they play in mitigating some of the adverse consequences associ-
ated with the ways in which international law constitutes global politics into an
international legal order.67
This account bears important affinities with a conception of international human
rights law advanced by Allen Buchanan. Buchanan argues that “international
human rights law has the potential to ameliorate the damage caused by … flaws
of the international legal order”—flaws which he, like Beitz, attributes to the exten-
sive latitude that the traditional international legal order conferred on States in the
exercise of their sovereign authority.68 International human rights, for Buchanan,
“constrain sovereignty for the purposes of affirming and protecting the equal basic
status of all people … and helping to ensure that all have the opportunity to lead a
minimally good or decent life.”69 The conception offered in this book is that human
rights in international law aim to ameliorate harms associated with not only the
exercise but also the distribution of sovereignty to which international law extends
legal validity. What, and how serious, these harms are is a matter of legal contesta-
tion over the scope and content of the various human rights that collectively consti-
tute the field of international human rights law.
67
Compare Joseph Raz’s conception of the rule of law in domestic legal orders. Joseph Raz, The
Authority of Law: Essays on Law and Morality 224 (1979) (“[t]‌he law inevitably creates a great
danger of arbitrary power—the rule of law is designed to minimize the danger created by the law itself ”).
68
Buchanan, supra note 54, at 125.
69
Id.
Field Missions 25
Specifically, human rights in international law tend to be defined in terms of the

interests that they are designed to protect,70 and what these interests are, and how
human rights should protect them, are questions that are subject to contestation in
interpretive contexts in which they are subject to legal determination. Legal con-
testation of this nature occurs over the nature and extent of the harm associated
with the structure and operation of international law that human rights seek to
mitigate. For example, international minority rights speak to harms that interna-
tional law produces when it validates new assertions of sovereignty or rearranges
the existing distribution of sovereignty among sovereign legal actors. Although the
text that enshrines minority rights in international law might provide some inter-
pretive guidance on what interests might underlie them, the nature and purpose of
minority rights are not predetermined by the text of an international instrument
in which they might be entrenched. Specifying these interests and how they should
be protected are interpretive judgments about the nature and extent of the harms
produced by international reallocations of sovereign power.
Interpretive judgments about the scope and content of any given international
human right can be guided by the norms advanced by Buchanan, namely, the equal
moral status of peoples and the opportunity to lead a decent life. And if they are,
then the effect of the human right in question is to secure these values. But interpre-
tive judgments need not be guided by these norms; they can just as easily be guided
by other universal norms, or less universal norms, as well as by text and precedent
and the various pragmatic considerations, such as efficiency, utility, and prudence,
characteristic of legal argumentation. The purpose or role of international human
rights law is not necessarily to protect these norms in the face of the exercise of
sovereign power. It is instead to ameliorate harms associated with the distribution
and exercise of sovereignty to which international law extends legal validity. The
nature and severity of these harms are debates that occur as part of the ongoing
interpretive project that constitutes the field of international human rights law in
institutional contexts in which they are subject to legal determination. To be sure,
legal debates about the scope and content of human rights are charged with ques-
tions that are moral in nature. But these debates are about morality within law; they
are not debates between morality and law.
The central claim of this book, then, is that the purpose of international human
rights law is to identify and mitigate adverse effects of the structure and opera-
tion of the international legal order. International human rights speak to distribu-
tional consequences of the fact that international law deploys sovereignty, as a legal
70
For a theoretical defense of an interest-based view of rights, see Raz, The Morality of Freedom (1986).
entitlement, to organize global economic and political realities into an international

legal order. International human rights monitor the distribution and exercise of sov-
ereign power to which international law extends legal validity. They impose positive
and negative obligations on sovereign and other legal actors to exercise the authority
they receive from international law in ways that respect the rights of all individuals
and not simply those who fall within their domestic jurisdiction. They focus on the
extent to which international legal structuring of global politics by means of a sys-
tem of sovereign States participates in the production of global economic inequality.
They impose international legal duties on all of us to improve the social and eco-
nomic conditions of impoverished people around the world – conditions for which
the structure and operation of international law are partly responsible.
Understanding international human rights law this way does not eliminate deep
political disagreement over what global justice might mean and how it might be
promoted. Nor does it relegate human rights law to a merely functional role in inter-
national political discourse. It ascribes a richer mission to the field by placing the
legitimacy of the international legal order under its watch. It comprehends human
rights as legal sites of moral and political contestation over fundamental questions
about the structure and operation of international law, but it casts these debates in
distinctively legal terms. It focuses on how international law distinguishes between
legal and illegal claims of power, including sovereign power, and how international
human rights possess the potential to monitor the distribution and exercise of inter-
national legal authority. In doing so, this account shapes legal judgment on more
precise legal questions that punctuate the field—such as what constitutes the scope
and content of specific human rights, what interests various human rights protect,
and what duties they generate—by directing these questions toward the effects of
the structure and operation of international law itself.
The Plan of the Book
The chapters that follow seek to both illuminate and defend this way of compre-
hending international human rights law first from a theoretical perspective and
then by explicating what it has to say about a number of specific human rights on
the international legal register. Chapter 2 identifies two key features of the structure
and operation of international law that give rise to the role of international human
rights law advanced in this book. The first is the deceptively simple fact that the
international legal order vests sovereign power in legal actors it recognizes as States,
entitling States to exercise sovereign power in ways that harm interests associated
with human rights. The second is the more complex fact that the international legal
Field Missions 27
order performs a distribution of sovereign power among the legal actors it recognizes
as States. Subsequent chapters offer accounts of civil and political rights, social and
economic rights, minority rights, indigenous rights, the right of self-determination,
and the right to development as instruments that mitigate some of the adverse
consequences associated with both dimensions of the structure and operation of
international law.
Chapter 3 examines the relationship between civil and political rights and social
and economic rights—two sets of rights that speak to the fact that the international
legal order vests sovereign power in legal actors it recognizes as States. This chapter
takes issue with common portrayals of these two sets of rights as, respectively, first-
and second-generation rights. It engages with portrayals that conceive of generations
of rights as chronological categories that define human rights in terms of their tem-
poral emergence in international law. It then examines conceptions that treat gener-
ations as analytical categories that sequence human rights by distinctive properties
they are said to possess. This chapter argues that generational accounts—whether
chronological or analytical—are ill-suited to the task of classification and gloss over
commonalities that all human rights in international law share, which flow from
their role in mitigating pathologies produced by how international law brings legal
order to global politics.
The remaining chapters engage with international human rights thought by
dominant accounts to be on the periphery of international human rights law, and
seek to demonstrate, to the contrary, that they are central to the mission of the field.
Chapter 4 explores why the international legal order attends to a specific subset of
social and economic rights—the rights of workers. It traces the history of interna-
tional labor rights from their origins as instruments that provided a floor of protec-
tion to shield worker protection regimes in domestic legal orders from international
competition. It identifies a competing conception of the international legal signifi-
cance of labor rights that achieved prominence after the Second World War, one
that viewed them as specific instantiations of freedom of association, which is said
to possess universal value. The chapter traces the rise of a new understanding of
international labor rights, which defines their role in terms of their capacity to mon-
itor the structure and operation of the international legal order. It illustrates this
new conception by examining what are referred to as “core labor rights” embodied
in the 1998 ILO Declaration on Fundamental Principles and Rights at Work and
their relevance to international and regional processes devoted to the liberalization
of trade.
Chapters 5, 6, and 7 are devoted to human rights that speak more to consequences
of international law’s distribution and redistribution of sovereignty to collectivities
it recognizes as States. Chapter 5 examines the international legal significance of
minority rights. It details how minority rights mitigated some of the effects of how
international political developments surrounding the dissolution of the Ottoman
Empire at the end of the First World War were vested with international legal valid-
ity. It identifies ambiguities associated with both moral and political conceptions
of international minority rights and advances an alternative account of their nor-
mative significance in international law. On this account, international minority
rights speak to wrongs that international law produces when it reallocates interna-
tional legal authority to rule people and territory from some sovereign legal actors
to others.
Chapter 6 describes developments in the International Labour Organization that
led to the gradual emergence of indigenous populations as legal actors in interna-
tional law. It addresses developments in the United Nations, culminating in the
recent adoption of the U.N. Declaration on the Rights of Indigenous Peoples. It
specifies international indigenous rights as legal mechanisms that speak to the fact
that the international legal order continues to validate what were morally suspect
colonization projects by imperial powers. It offers theoretical observations on the
legal requirements of indigenous recognition in international law, the relation
between legal recognition of States and legal recognition of indigenous peoples, and
the nature and purpose of international indigenous rights.
Chapter 7 traces the history of the right of self-determination throughout the
twentieth century in terms of three movements: from its international legal status
as a principle to that of a right; from a right that vests in the population of an entire
State to one that potentially vests in populations within and across State boundar-
ies; and from an entitlement that only had the capacity to protect existing States or
produce new States to one that also validates domestic constitutional reorganiza-
tion of a political community. It suggests that the right of self-determination now
stands to promote a just distribution of sovereign power by both protecting existing
States and authorizing the formation of a new one when an existing State fails to
secure effective measures of political representation—what international law refers
to as “internal self-determination”—for a people in its midst.
Chapter 8 focuses on the right to development—a human right that addresses
consequences of the twin facts that international law validates both the distribu-
tion and exercise of sovereign power. It seeks to shed light on how international law
contributes to global poverty by focusing on rules that determined the international
legality of decolonization projects in the twentieth century and on rules that struc-
ture the global economy. These two sets of legal norms generate a conception of the
right to development that includes positive legal obligations to provide assistance
and cooperation to developing countries to reduce global poverty and economic
inequality in the world.
2
S OV ER E IG N T Y A N D S T R U C T U R E
international law conceptually brings legal order to international

political and economic developments by a rich ensemble of diverse rules, principles,
instruments, and institutions. What binds this ensemble together into a coherent
structure is a deep-rooted commitment to a concept of sovereignty as an interna-
tional legal entitlement that vests in collectivities internationally recognized as
States. International law confers legal validity on claims by States to extensive coer-
cive power over people and territory by conceptualizing this power as State sover-
eignty. It vests States with legal authority to exercise this power at home and abroad.
By legally validating some claims of sovereign power and refusing to validate others,
international law organizes global politics into a legal order in which certain collec-
tivities possess international legal authority to govern people and territory.
International law shapes global politics into a legal order not only by legally vali-
dating some claims of sovereign power and refusing to validate others. International
legal norms that perform this validating function also effectively produce an ongo-
ing distribution of sovereign power among geographically concentrated collectivi-
ties that international law recognizes as States. International law has recognized the
sovereign power of some States for centuries, with the 1648 Treaty of Westphalia,
discussed in more detail in Chapter 5, often portrayed as sovereignty’s first moment
of recognition. In other cases, international legal recognition has been much more
of a recent phenomenon. Namibia, for instance, acquired sovereignty roughly
twenty-five years ago. And, of course, international law also withholds legal recogni-
tion of claims of sovereign power from other collectivities that it does not recognize
29
as States. Although indigenous people now formally enjoy extensive rights of inter-
nal self-determination in international law,1 for example, they do not—by virtue of
their indigeneity—possess a right of external self-determination that would enable
them to acquire sovereign independence from the States in which they are located.
The legal norms that international law relies on to perform these tasks render
the distribution of sovereignty they produce capable of recalibration and realign-
ment in light of new political developments deemed to possess international legal
significance.
International law thus extends legal validity to the exercise of sovereign power by
States and performs an ongoing distribution of sovereignty among those collectivi-
ties it recognizes as States. This chapter examines in more detail these two contribu-
tions that the concept of sovereignty makes to the structure of international law. It
does so because they constitute the terrain on which international human rights
legally operate. The legal norms that international law relies on to distribute and
authorize the exercise of sovereign power have been defended for numerous reasons,
including the need “for a presumptive monopoly of the last word on public order
in any given territory.”2 Sovereignty also possesses a measure of normative purchase
to the extent that people can and do flourish by being organized into particular
political communities and, in doing so, generate a complex set of interests that merit
protection.3 And, although it does not guarantee it, “sovereignty protects the nor-
matively special status of members and their prerogative to assess the legitimacy of
their domestic system, and to struggle to make it more just, more democratic, and
more inclusive.”4 Despite these and other values associated with the role that sov-
ereignty plays in lending structure to the international legal order, it also produces
an array of adverse consequences that international human rights, on the account
offered in this book, seek to rectify.
Subsequent chapters focus on adverse consequences that arise from the fact that
international law extends legal validity to the discretionary exercise of sovereign
power by States (Chapter 3); that international institutional arrangements provide
legal validity to processes of economic globalization and transnational production
1
See U.N. Declaration on the Rights of Indigenous Peoples, A/Res/61/295 Ann. 1 (Sept, 13, 2007).
2
Brad R. Roth, Sovereign Equality and Moral Disagreement: Premises of a Pluralist
International Legal Order 7 (2011).
3
Compare Rogers M. Smith, Stories of Peoplehood: The Politics and Morals of Political
Membership 64–65 (2003) (because humanity has yet to devise ways that people can flourish without
being organized into particular political communities, we should attach moral weight to what is essential for
particular communities to survive).
4
Jean L. Cohen, Globalization and Sovereignty: Rethinking Legality, Legitimacy, and
Constitutionalism 78 (2012).
Sovereignty and Structure 31
(Chapter 4); that international law episodically transfers the power to govern peo-
ples and territories from some sovereign legal actors to others (Chapter 5); that some
collectivities have their sovereignty legally recognized for centuries while, for oth-
ers, international legal recognition is a recent phenomenon (Chapter 6); that sover-
eign legal authority vests in some collectivities and not others (Chapter 7); and that
the international distribution of sovereign power participates in the production and
reproduction of global poverty (Chapter 8).
Sover eignty and Its Exercise
The central feature of the structure and operation of international law is the concept
of sovereignty that lies at its heart. Sovereignty means different things, at differ-
ent times, to different people, for different reasons. It can be imagined as resting
in a divine being, an individual, a group of individuals, or an institution or group
of institutions. It can be imagined as absolute or limited, or both, as in one of its
earliest formulations by Jean Bodin, who defined sovereignty as absolute power lim-
ited only by the power of God.5 It can be imagined as inherent in a people, as in
Jean-Jacques Rousseau’s account of sovereignty as the general will of a people,6 or
contingent on the consent of people, as in the Hobbesian account of the State as
the result of a social contract among individuals to escape anarchy.7 It can be indi-
visible, as in the case of a unitary State, or divisible, as in the case of a federal State.
Sovereignty can be “pooled,”8 “mixed,”9 “pre-,”10 “post-,”11 even “floating.”12 It can
be understood in factual terms, as a concept that organizes social, economic, and
political life by the distinctive constellation of power to which it refers; in norma-
tive terms, as a constellation of power that vests only in those entities that possess
5
Jean Bodin, Les Six Livres de la République (1999).
6
Jean-Jacques Rousseau, The Social Contract (trans. M. Cranston, 1968).
7
Thomas Hobbes, Leviathan (R. Tuck, ed., 1999).
8
See Bruno De Witte, Sovereignty and European Integration: The Weight of Legal Tradition, in The
European Courts and National Courts: Doctrine and Jurisprudence (Anne Marie
Slaughter, Alec Stone Sweet & Joseph H. Weiler eds., 1998).
9
See Richard Bellamy, Sovereignty, Post-Sovereignty, Pre-Sovereignty: Three Models of the State, Democracy
and Rights within the EU, in Sovereignty in Transition (Neil Walker ed., 2003).
10
Id.
11
Id.
12
See Dora Kostakopoulou, Floating Sovereignty: A Pathology or Necessary Means of State Evolution?, 22
Oxford J. Leg. Stud. 135 (2002).
legitimate authority to rule people and territory; and in legal terms, as power that
vests in an entity lawfully entitled to its exercise.13
Cutting through some of this definitional maze, Stephen Krasner offers a four-
fold typology of sovereignty’s meaning. According to Krasner, sovereignty can refer
to a State’s international legal sovereignty, “Westphalian” sovereignty, domestic sov-
ereignty, and interdependence sovereignty.14 International legal sovereignty refers
to practices primarily associated with the mutual recognition and formal equality
of States. “Westphalian” sovereignty refers to a State’s capacity to exclude exter-
nal actors from exercising legal authority on its territory and over its population.
Domestic sovereignty refers to internal structures of State power and the capacity
of the State to exercise effective control within its territory. Interdependence sov-
ereignty refers to a State’s capacity to regulate movements of people, ideas, goods,
capital, and the like across borders. Because Krasner construes sovereignty in terms
of capacity, different States can manifest different degrees of these variants of sover-
eignty. A State like Taiwan, he notes, “has Westphalian sovereignty but not interna-
tional legal sovereignty.”15
For the purposes of understanding the structure that sovereignty lends to inter-
national law, the relevant question is not which, or which combination, of sover-
eignty’s multiple characterizations best conceptualizes its true nature. Instead, it is
to inquire into sovereignty’s meaning in international law. In J.L. Brierly’s words,
sovereignty is “an aggregate of particular and very extensive claims that states habit-
ually make for themselves in their relations with other states.”16 In international
law, sovereignty means more than what Krasner refers to as “international legal
sovereignty” and also includes elements associated with the other variants that he
identifies.17 Specifically, it refers to what international law recognizes as the legal
13
For an interdisciplinary examination of sovereignty, see Sovereignty in Fragments: The Past,
Present and Future of a Contested Concept (Hent Kalmo & Quentin Skinner eds., 2011).
14
Brad Roth offers an alternative typology, where sovereignty is understood as an empirical condition, a
policy imperative, a domestic source of constitutional power, and a legal entitlement in international law.
Roth, supra note 2, at 58. Robert Jackson distinguishes between “negative” and “positive” sovereignty.
Robert H. Jackson, Quasi-States: Sovereignty, International Relations, and the Third
World 26–31 (1990).
15
Stephen D. Krasner, Sovereignty: Organized Hypocrisy (1999).
16
J.L. Brierly, The Law of Nations: An Introduction to the International Law of Peace
48–49 (4th ed. 1949). Compare Bruno Fassbender, Sovereignty and Cosmopolitanism in International Law,
in Sovereignty in Transition: Essays in European Law 129 (Neil Walker ed., 2003) (“Sovereignty
is a collective or umbrella term denoting the rights which at a given time a state is accorded by international
law and the duties imposed on it by that same law. These specific rights and duties constitute ‘sovereignty;’
they do not flow from it.”).
17
This may be because Krasner approaches the concept of sovereignty in terms of capabilities, whereas here it
is approached in terms of the legal norms that produce its international legal existence.
power of a State to rule people and territory. International law confers legal validity
on claims by States to extensive coercive power over people and territory by concep-
tualizing this power as State sovereignty, and it vests States with legal authority to
exercise this power at home and abroad. What Paul Kahn wrote about domestic law
is equally true of international law: “morality may be without borders, but law’s rule
begins only with the imagination of jurisdiction.”18
But international law does not accept as given what States imagine is theirs as
of sovereign right, no matter how habitually such claims might occur. In a dizzy-
ing array of contexts, much of international law regulates the exercise of sovereign
power by identifying its constituent elements and managing its limits. Does sov-
ereignty entitle a State to divert its natural water supply in a way that affects the
water supply of a neighboring State? Does sovereignty authorize a State to wage war
against another State? Does it entitle a State to abuse the human rights of its citi-
zens? Does it immunize State officials from criminal prosecution in another State?
Moreover, international law does more than regulate the exercise of sovereign
power. It determines who possesses sovereignty. It establishes sovereignty’s inter-
national legal existence. Sovereignty in international law refers to what the inter-
national legal order recognizes as the aggregate of valid claims that States make in
their relations with other States. These claims can be about a State’s relations with
other States, as in Krasner’s conception of international legal sovereignty, but they
can also be about a State’s relatively exclusive power to exercise domestic, transna-
tional, and international legal authority in relation to matters that bear on its ter-
ritory and population. As subsequent chapters seek to demonstrate, international
human rights legally operate to mitigate some of the adverse consequences associ-
ated with the fact that international law entitles States to exercise sovereign power
both internally, in relation to people and resources on its territory, and externally, in
its relations with other States and in international arenas.19
It is not particularly controversial to defend the view that international human
rights operate to check the exercise of internal sovereign power. This is a commonly
held view of international human rights, whether one understands human rights
from a moral, political, or legal perspective. Where these perspectives begin to
diverge is in relation to the reason or reasons human rights check the exercise of
internal sovereign power. From a moral perspective, they do so to protect interests
that transcend the significance of State sovereignty because they relate to universal
features of what it means to be a human being. From a political perspective, Charles
Paul Kahn, The Cultural Study of Law: Reconstructing Legal Scholarship 55–56 (1999).
18
For an early formulation of the distinction between internal and external sovereignty, see Bodin, supra
19
note 5, at Chapter IX.
Beitz argues that the framers and early advocates of contemporary international
human rights law viewed “World War II and its precipitating events as evidence of
a structural deficiency in the system of states as it then existed.”20 As evidenced by
the practice of their framers and early proponents, the normative purpose of human
rights, for Beitz, is to address “pathologies of a global political structure that concen-
trates power at dispersed locations not subject to higher-level control.”21
The legal account advanced in this book shares important affinities with political
perspectives on human rights. It too requires international law to attend to patholo-
gies of its own making. One set of pathologies that human rights address, as Beitz
notes, is a product of the fact that international law vests States with international
legal authority to exercise sovereign power over people and territory in ways that
harm interests that legal instruments deem to be associated with human rights.
But this account is less concerned with the normative dimensions of human rights
as a discursive political practice and is more concerned with the normative role
they perform in the constellation of international legal norms in which they find
themselves—in other words, in the structure and operation of international law
itself.
It is more controversial to also defend the proposition that international human
rights check the exercise of external sovereign power, namely, a State’s relations with
other States and in international arenas. Take the fact that a State’s sovereign power
includes the legal capacity to enter into legally binding bilateral and multilateral
agreements to structure and manage its relationships with other sovereign States.
Because international law vests States with international legal personality, a State
is legally entitled to expand or restrict the scope of its sovereign power by entering
into a treaty with one or more sovereign States. A treaty has the capacity to alter the
distribution of sovereignty by enlarging or reducing the territory over which a State
can legally claim sovereign power. But a treaty can also expand or limit the jurisdic-
tional scope of authority that sovereignty vests in a State. A treaty can create legally
binding obligations on signatory States to exercise their sovereign powers in certain
ways and not others and in relation to certain matters and not others, and a failure
by a signatory State to comply with the terms of a treaty constitutes a violation of
international law.
Many of the international organizations that currently play a major role in man-
aging and coordinating relations between and among States, such as the United
Nations, the World Bank, and the International Monetary Fund, owe their
Charles R. Beitz, The Idea of Human Rights 129 (2009).

20
Id.
21
international legal existence to a raft of multilateral treaties resulting from an

unprecedented burst of international cooperation after the Second World War. Not
all international organizations owe their origins to this period. The International
Labour Organization, created in 1919 as part of the Versailles peace negotiations,
has a longer institutional pedigree, and the World Trade Organization was estab-
lished much more recently in 1995. These international organizations give institu-
tional voice and legal effect to a vast array of international interactions between
and among sovereign States by subjecting States to various forms and degrees of
international legal authority, including legislative, regulatory, and adjudicative
authority, the monitoring and enforcement of treaty obligations, agenda setting and
norm production, research and advice, and policy implementation. 22 If established
by treaty, these arrangements are typically binding in international law, but their
institutional design and their distributional consequences remain beyond the nor-
mative purview of an account of international human rights defined as instruments
that seek to regulate the relationship between the individual and the State in order
to protect interests that we all share as humans.
The limited normative reach of standard moral accounts of international human
rights law reveals itself in the context of contemporary bilateral and multilat-
eral agreements that mandate reciprocal tariff reductions and the elimination of
non-tariff import barriers by signatory States. Such agreements typically are pre-
mised on the assumption that regional and international liberalization of trade,
services, and investment enhances global productivity by enabling economic actors
to compete on the basis of comparative advantage, that is, the capacity to produce a
product at a comparatively lower cost than other economic actors because of partic-
ular resource or regulatory endowments associated with the national economies in
which production occurs. Because international law stipulates that a State possesses
the legal capacity to create mutually binding rights and obligations by entering into
a treaty with another State or group of States, these agreements legally structure
economic relations among States by imposing legal obligations on States to exercise
their sovereign power in particular ways and, in some cases, by establishing organi-
zations that possess the legal authority to interpret and enforce their terms.23
22
This list is adapted from Curtis A. Bradley & Judith G. Kelley, The Concept of International Delegation, 71
L. & Contemp. Probs. 1 (2008).
23
For the view that international economic law is constraining the capacity of States to exercise inter-
nal sovereignty in ways that challenge key tenets of neoliberalism, see David Schneiderman,
Constitutionalizing Economic Globalization: Investment Rules and Democracy’s
Promise (2008).
Such is the case with the World Trade Organization. The WTO is the legal
foundation of the world trading system: it establishes and enforces rules that fos-
ter liberalization of trade, services, and investment. WTO members meet periodi-
cally to attempt to reach agreement on the reciprocal reduction of import tariffs. To
ensure that States do not attempt to establish protective measures through means
other than tariffs, WTO members also undertake three standard sets of obligations
whose purpose is nondiscriminatory treatment of products by States in each other’s
markets. First, the principle of most-favored nation treatment requires a member
State to accord the same favorable treatment to the import of like products from
all member States that it accords to one member State. Second, the principle of
national treatment provides that a country cannot discriminate against like prod-
ucts imported from another State in ways that benefit national producers. Third,
the WTO requires all countries to eliminate quantitative restrictions, such as quo-
tas or embargoes, against goods imported from other States. Together with periodic
reciprocal tariff reductions, these requirements enable foreign producers to compete
more fairly with domestic producers in the markets of member States. 24
When a State exercises its sovereign power in international arenas, whether it is in
the WTO or some other international institution or setting, it has the capacity to
participate in the production of international legal norms that lead to adverse con-
sequences for individuals and groups both within and beyond its territory. In addi-
tion to checking the exercise of internal sovereign power, international human rights
operate to mitigate certain consequences associated with the fact that international
law vests in States the authority to exercise external sovereign power. Chapter 4
advances the view, for example, that international labor rights not only stipulate
that a State cannot wield its sovereign power domestically in ways that compromise
or threaten interests they seek to protect. They also guard against the possibility
that States, when exercising their sovereign power on the international stage, might
establish legal norms that validate the exercise of economic and political power that
harms workers. In a similar vein, Chapter 8 argues that the right to development
imposes a negative obligation on States when exercising sovereign power in the
international arena not to fashion rules and policies in ways that exacerbate global
poverty.25 But whether a State exercises internal or external sovereignty, the reasons
international human rights hold States to account are internal to the structure and
24
This description of the “three pillars” of the system is adapted from Arthur E. Appleton, The World Trade
Organization: Implications for Human Rights and Democracy, 19 Thesaurus Acroasium 415 (1998).
25
Chapter 8 engages the work of Thomas Pogge to advance this claim. See Thomas Pogge, World
Poverty and Human Rights (2002) (arguing that global justice imposes a negative obligation on inter-
national legal actors—including States—to not act in ways that exacerbate global poverty).
operation of international law. They represent normative judgments that interna-

tional law’s creation and distribution of spaces known as sovereign States produce
adverse consequences that require rectification in the form of human rights.
Between the National and Inter national
Some argue that the way in which international law conceives of these legal spaces
has evolved from an absolute to a conditional conception of sovereignty and
that this evolution is critical to understanding its function in international law.
In the afterword to the second edition of his influential book, Basic Rights,
published in 1996, Henry Shue argued for “building a general, global consen-
sus that state sovereignty is conditional upon the protection of at least basic
rights and that the international community not only may but ought to step in
when the failures of states to protect rights becomes egregious.”26 That same
year, drawing on the work of Frances Deng,27 the Report of the International
Commission on Intervention and State Sovereignty noted that the reality
of global interdependence has steadily eroded international law’s traditional
understanding of State sovereignty as an absolute sphere of power limited only
by international law itself.28 Its authors argued that absolute sovereignty yielded
a principle of nonintervention that underpins international law’s traditional
reluctance to countenance humanitarian intervention. Gradually replacing
this absolute conception is a more conditional understanding of sovereignty
that generates a principle of responsibility. Under this conditional concep-
tion, international law vests sovereignty in a State to enable it to protect its
people. If a State fails to meet this duty, according to the ICISS, and its popu-
lation is suffering serious harm in the form of gross human rights abuses,29 the
principle of nonintervention yields to an international responsibility to protect
that population from harm by, if necessary, military intervention.30 The U.N.
26
Henry Shue, Basic Rights 174 (2d ed. 1996).
27
Francis Deng, Sovereignty as Responsibility: Conflict Management in Africa (1996).
28
Report of the International Commission on Intervention & State Sovereignty, The Responsibility to Protect
(Dec. 2001).
29
According to the ICISS, military intervention is justified to halt or avert: (a) “large scale loss of life, actual
or apprehended, with genocidal intent or not, which is the product either of deliberate state action, or state
neglect or inability to act, or a failed state situation;” or (b) “large scale ‘ethnic cleansing,’ actual or appre-
hended, whether carried out by killing, forced expulsion, acts of terror or rape.” Id. at 32.
30
The ICISS states that the relevant principles to assess the necessity of force are: right authority, just cause,
right intention, last resort, proportional means, and reasonable prospects. Id. at 32. For the view that the
concept of humanitarian intervention should be reframed in terms of the responsibility to protect, see
Gareth Evans & Mohamed Sahnoun, The Responsibility to Protect, 81(6) Foreign Aff. 99 (Nov./Dec.
General Assembly subsequently endorsed the “responsibility-to-protect” doctrine

in its 2005 World Summit Outcome,31 as did the Security Council in resolutions
authorizing the use of force in Libya in 2011.32
Others have taken the concept of conditional sovereignty to another level by
characterizing international law as exhibiting properties of “global constitutional-
ism”33 and by linking the international legal order and domestic legal orders much
more closely than contemplated by the “responsibility-to-protect” doctrine. In addi-
tion to affirming the emergence of the concept of conditional sovereignty in inter-
national law, Anne Peters, for example, conceives of global constitutionalism as a
means of combating what she refers to as “anti-constitutional trends” occurring in
domestic legal orders by providing norms beyond the State that shore up domestic
commitments to key elements of constitutionalism, including respect for the rule
of law and human rights.34 Part of the project, too, is to imagine the international
legal order as a global constitutional order, one that does not mimic the structure
of domestic constitutional regimes but instead, through its own unique structural
arrangements, displays commitments associated with constitutionalism and the
rule of law, thereby imbuing the international legal order with a measure of norma-
tive legitimacy.
One illuminating consequence of comprehending the international legal order
through the lens of constitutionalism is that it opens the door to seeing the relation-
ship between national and international law in new ways. Mattius Kumm, for exam-
ple, writes that this relationship reveals itself to be one of “mutual dependence.”35
“The constitutional legitimacy of national law depends, in part, on being adequately
integrated into an appropriately structured international legal system,” according to
Kumm, “[a]‌nd the legitimacy of the international legal system depends, in part, on
states having an adequate constitutional structure.”36 For Peters, international and
domestic legal orders work together to ensure respect for human rights and princi-
ples of constitutionalism.37 For Evan Fox-Decent and Evan Criddle, the relationship
2002); for an analysis of the responsibility to protect in the context of U.N. peacekeeping, see Susan Breau,
The Impact of the Responsibility to Protect on Peacekeeping, 11 J. Conflict & Sec. L. 429 (2006).
31
2005 World Summit Outlook, G.A. Res. 60/1, A/Res/60/1, paras. 138–139 (Oct. 24, 2005).
32
S.C. Res. 1970, S/Res/1970, 26 (Feb. 2011); S.C. Res. 1973, S/Res/1973 Mar. 17, 2011).
33
See generally Jan Klabbers et al., The Constitutionalization of International Law (2009).
For an insightful overview of the literature and its normative limits and possibilities, see Mattias Kumm,
Global Constitutionalism and the Cosmopolitan State: An Integrated Conception of Public Law, 20 Ind.
J. Global Legal Stud. 605 (2013).
34
See Anne Peters, Humanity as the A and Ω of Sovereignty, 20 Eur. J. Int’l L. 513 (2009).
35
Kumm, supra note 33, at 612.
36
Id.
37
Peters, supra note 34. See also Anne Peters, Compensatory Constitutionalism: The Function and Potential of
Fundamental International Norms and Structures, 19 Leiden J. Int’l L. 579 (2006).
between international and domestic legal orders is a fiduciary one: “international

law entrusts sovereign powers to states, subject to concomitant duties to advance the
human rights of their own people and respect the fundamental rights of foreign nation-
als beyond their borders.”38
Jean Cohen conceives of the relationship between domestic legal orders and the
international legal order in dualistic terms, with relatively autonomous sovereign States
embedded in a relatively autonomous international legal order that manifests rudi-
mentary attributes associated with constitutionalism. She identifies the need for the
advancement of the rule of law in international law in ways that protect both the sov-
ereign equality of States and human rights. Unlike most proponents and opponents of
global constitutionalism, however, Cohen argues that this project must be approached
on terms that shift the dualism of the present to what she terms a “constitutional plural-
ism” of the future. Constitutional pluralism, for Cohen, involves “a complex of political
communities within an overarching political association of communities each of which
has its own legal order of constitutional quality.”39
Any constitutional pluralism immanent in the international realm is the product
of international law’s deployment of sovereignty as a legal entitlement to structure
global politics into an international legal order. And how international law conceives of
sovereignty—as absolute or conditional—is not as relevant to the structure that it lends
to the international legal order as the fact that sovereignty itself is an international legal
entitlement. If sovereignty was absolute before, it was because of international law, and
if sovereignty is conditional now, this too is because of international law. The absolute
nature of sovereignty in international law, if it ever existed,40 never lay beyond interna-
tional law; it was an international legal product. And even if it did exist, it was absolute
38
Evan Criddle & Evan Fox-Decent, International Law’s Fiduciary Constitution of
Sovereignty ch. 1 (forthcoming).
39
Cohen, supra note 4, at 70 (emphasis omitted). More technically, Cohen defines constitutional pluralism
as follows:
Constitutional pluralism refers to a plurality of constitutional sources of authority and competing

claims to jurisdictional supremacy by autonomous, interacting, and overlapping public (state and
supranational) legal orders, whose relationship must also be characterized as hierarchical and which
creates a potential for constitutional conflicts that have to be solved in a non-hierarchical manner.
… The core claim is that interrelations between the constitutional legal orders of states with that
of the overarching political community of which they are members, can be characterized as legal,
even constitutional, without pre-emptive closure, imposition of hierarchy, leveling unity, or final
resolution of ultimate supremacy claims.
Id. (footnote omitted).

40
See Luke Glanville, Sovereignty & the Responsibility to Protect: A New History (2014)
(sovereign authority has been subject to varied and evolving responsibilities since its genesis in the sixteenth
and seventeenth centuries).
only in the sense that it was not subject to the authority of another State.41 It was and
is subject to international law.42 Human rights operate in international law to secure a
measure of legitimacy for the role that sovereignty plays in constituting the structure of
the international legal order. The sovereignty to which international human rights law
gives rise—the sovereignty of human rights—is one that is tempered to address adverse
consequences that flow from its deployment.
Moreover, to the extent we can speak of sovereignty as though it were absolute, it
was absolute with expiry dates. International law has recalibrated the distribution of
sovereignty that it performs countless times throughout history. If the scope of the
legal spaces that international law treated as sovereignty was wider than it is now,
the consequences that it produced were arguably more unjust than its consequences
today. Note that it is the distribution and the authority to exercise powers associated
with the legal entitlement of sovereignty, not variations in definitions of the entitle-
ment itself, that engage questions relating to the legitimacy of the international legal
order. Note also that these questions of legitimacy are internal to the field, and, to
this extent, they possess legal significance distinct from whatever moral significance
that might be attached to them. They speak to injustices produced by the field itself,
not to abstract wrongs such as those contemplated by moral conceptions of human
rights.
That international law confers sovereign power on legal actors it recognizes as
States does not mean that a national legal order will construe sovereignty in the
same terms.43 We could imagine a national legal order wedded to the proposition
that the legal source of its sovereign power lies in international law. According to
Hans Kelsen, this is the way we should imagine the relationship between national
and international law. For Kelsen, the legality of domestic law ultimately rests
on international legal norms that validate claims by States to sovereign authority
over persons and territory.44 Regardless of the merits of Kelsen’s theoretical claim,
most national legal orders do not in fact or law ground their sovereignty in the
41
Even this formulation is misleading. See Cohen, supra note 4, at 67 (“sovereignty is a relational concept
involving mutual construction and containment within a system (and international society) of sovereign
states”).
42
See Hans Kelsen, The Principle of the Sovereign Equality of States as a Basis for International Organization,
53 Yale L.J. 207, 208 (1944).
43
H.L.A. Hart, Kelsen’s Doctrine of the Unity of Law, in Essays on Jurisprudence and Philosophy
319 (1983) (critiquing Kelsen for assuming that sovereignty in domestic law is the same as sovereignty in
international law).
44
More precisely, Kelsen argued that choosing to view sovereignty as emanating from international law is a
political, not a legal, decision, but he seemed to lean in favor of this view by associating its opposite with
“the political ideology of imperialism.” Hans Kelsen, Pure Theory of Law 346 (trans. Max Knight,
2d ed. 2005).
international legal order; instead, they locate it elsewhere. In liberal democratic

States, sovereignty typically is said to flow from the will of the people, from the bot-
tom up, so to speak. Chief Justice Taney of the United States Supreme Court, for
example, wrote that “[t]‌he words ‘the people of the United States’ … describe the
political body who, according to our republican traditions, form the sovereignty,
and who hold the power and conduct the Government through their representa-
tives.”45 The Supreme Court of Canada has held that the Canadian “Constitution
is the expression of the sovereignty of the people of Canada.”46 Other jurisdictions
treat sovereignty as the inherent power of a monarch or an institution, such as a
parliament. But international law comprehends sovereignty in a radically different
way. Sovereignty, in the international legal imagination, comes from above, from
international law itself.47
That international law confers sovereign power on legal actors it recognizes as
States also does not mean that international law doesn’t come from sovereign States.
Much of international law—including what it says about what sovereign States are
entitled to do and not do with their sovereignty—is the product of treaties among
States or customary practices of States. International rules governing the exercise
of sovereign power are the product of treaty and custom, including those that
require respect for the territorial integrity of existing States. The U.N. Declaration
on Friendly Relations in 1970, for example, provides extensive detail on principles
commonly understood to be foundational to the international legal order, includ-
ing the duty not to intervene in the domestic jurisdiction of any State, the prin-
ciple of the sovereign equality of States, and the principle of self-determination.48
Saying that international law authorizes the exercise of sovereign power means that
international legal norms shape global economic and political life into an interna-
tional legal order by determining the legality of multiple claims of sovereign power.
That States participate in the production of these norms does not strip these norms
of their legal effect, which is that claims by collectivities that international law
45
Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 404 (1856).
46
Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at para. 85 (Can.).
47
Roth, supra note 2, at 55 (“state sovereignty, far from being a status that conceptually precedes inter-
national legal order, is itself a creature of that order”); Hedley Bull, Justice in International
Relations: The 1983–1984 Lectures 11–12 (1984) (“The idea of sovereign rights existing apart from
the rules laid down by international society itself and enjoyed without qualification has to be rejected in
principle”).
48
Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among
States in Accordance with the Charter of the United Nations, G.A. Res. 2625, U.N. GAOR, 25th Sess.,
Supp. No. 28, U.N. Doc. A/8028 (1970).
recognizes as States to extensive coercive power over people and territory possess
international legal validity.
A more formidable challenge to the concept of sovereignty in international law rests
on a skeptical understanding of international law as a mere repository of delegated
national authority, and therefore subordinate to the sovereign power of States. On this
view, to the extent that sovereignty is an international legal entitlement, it is a proxy
for, and does not ultimately limit, the authority of a State to rule people and territory.
This view has a rich history and many variants. Some trace it to the emergence of a
particular form of international legal positivism predicated on the assumption that
States choose to participate in the international system, and, as such, international
law simply is a matter of consent.49 Others link it to classical liberal scholarship on the
normative legitimacy of domestic political authority.50 Carl Schmitt, an opponent of
liberalism, invoked a version of this perspective when he wrote that the international
legal community exists only as a “reflection” of coexisting autonomous political enti-
ties.51 Jack Goldsmith and Eric Posner offer a contemporary variant steeped in ratio-
nal choice theory. They argue that “international law emerges from states’ pursuit of
self-interested policies on the international stage.”52 For them, international law “is
not a check on state self-interest; it is a product of state self-interest.”53 They model cus-
tomary and conventional international law as reflecting “behavioral regularities that
emerge when states pursue their interests” in international arenas, relating to practices
aimed at coordination, cooperation, and coercion by States.54
To claim that international law is a mere repository of delegated national author-
ity is not the same as claiming that sovereignty assumes a different meaning in
domestic legal orders than in international law. Nor is it the same as claiming that
States participate in the establishment of international legal norms. It is an account
of international law as delegated domestic legal authority, legally binding on States
only to the extent that they consent to be bound by its terms. It claims that inter-
national law is really only domestic law with international legal consequences, and
49
See International Law: Chiefly as Interpreted and Applied in Canada 4 (Hugh M. Kindred
& Phillip M. Saunders eds., 7th ed., 2006).
50
For discussion and critique, see Martti Koskenniemi, From Apology to Utopia: The Structure
of International Legal Argument 325–33 (2d ed. 2006). See also Antony Carty, Convergences and
Divergences in European International Law Traditions, 11 Eur. J. Int’l L. 713 (2000).
51
Carl Schmitt, Constitutional Theory 123 (Jeffrey Seitzer ed., 2007).
52
Jack L. Goldsmith & Eric A. Posner, The Limits of International Law 13 (2005).
53
Id.
54
Goldsmith and Posner add a fourth behavioral regularity, a coincidence of interest, where “a pattern of
behavior, say, two states respecting a border, results from each state acting in its own self-interest without
any regard to the action of the other state.” Id. at 12.
sovereignty in international law is really only a projection of its domestic legal mean-
ing. If this is the case, then it makes little sense to speak of international law as a
legal order that regulates national legal orders, let alone to inquire into the legiti-
macy of such an order.55
Whether this is the case rests on the merits of characterizing international law by
means of a definition of sovereignty that international law must necessarily eschew
to organize global politics into an international legal order. Comprehending sov-
ereignty in international law as delegated national authority assumes what it pur-
ports to prove: that there is no law in international law other than domestic law
and therefore that international law is not law. There are many reasons to question
the empirical validity of this assumption.56 Kumm puts it this way: “[t]‌hink of the
spreading and increasing power of international institutions, the softening up of the
requirements for state practice for the identification of customary law, the emerging
of a plethora of courts and tribunals with the jurisdiction to adjudicate questions of
international law, and the increasing tendency of international human rights law to
circumscribe how states should relate to their citizens.”57 To this one might add the
legal existence of peremptory or jus cogens norms subject neither to persistent objec-
tion nor to derogation,58 the growth of international individual criminal liability
even if unincorporated into or contradicted by domestic law,59 the proliferation of
assertions of universal jurisdiction,60 the third-party effects of treaties,61 and the
U.N. Security Council’s increasing penchant to legislate, enacting resolutions lack-
ing any explicit or implicit time limitation and imposing permanent and binding
international legal obligations on all States.62
55
Michael Blake stakes out this position, arguing that international law, because it rests on State consent, is
not a coercive legal order and therefore cannot cause legal harms that it should seek to rectify in the name
of international distributive justice. See Michael Blake, Distributive Justice, State Coercion, and Autonomy,
30 Phil. & Pub. Aff. 257 (2001).
56
For insightful theorizing of these empirical developments, see Jacob Katz Cogan, The Regulatory Turn in
International Law, 52 Harv. Int’l L.J. 321 (2011).
57
Kumm, supra note 33, at 608.
58
For discussion, see Jonathan Charny, The Persistent Objector Rule and the Development of Customary
International Law, 56 Brit. Y.B. Int’l L. 1 (1986).
59
For discussion, see Kenneth Anderson, The Rise of International Criminal Law: Intended and Unintended
Consequences, 20 Eur. J. Int’l L. 331 (2009); Theodor Meron, Is International Law Moving Towards
Criminalization?, 9 Eur. J. Int’l L. 18 (1998).
60
For discussion, see Cogan, supra note 56.
61
For discussion, see Peters, Compensatory Constitutionalism, supra note 37, at 587–88.
62
See, e.g., U.N. Doc. S/RES/1373 (2001) (on the financing of terrorism). For critiques of this develop-
ment, see Cohen, supra note 4, at 272–77; Kim Schepple, The Migration of Anti-Constitutional Ideas: The
Post-9/11 Globalization of Public Law and the International State of Emergency, in The Migration
of Constitutional Ideas (Sujit Choudhry ed., 2006); José Alvarez, Hegemonic International Law
Revisited, 97 Am. J. Int’l L. 873 (2003).
But the relevant question ultimately is not an empirical but a theoretical one. What
definition of sovereignty best enables the conceptual organization of international
political life into an international legal order? What definition best makes legal sense
of global politics? Defining sovereignty in terms that preclude an understanding of
international law as constituting a relatively independent international legal order
may yield a measure of internal legal coherence to the domestic political reality of a
given State. It may also provide domestic legal justification for coercive action in the
international political arena. But it does so by denying ex ante international law the
very status it requires to be understood as bringing legal order to the international
economic and political realities that States produce through their mutual interaction.
Martti Koskenniemi has advanced a more nuanced claim. In his view, interna-
tional law comprehends sovereignty simultaneously as authority delegated to States
by international law and as authority delegated to international law by States. As a
result, for Koskenniemi, international law is shot through with legal indeterminacy
and thus is a thoroughly political enterprise.63 Koskenniemi is not alone in pointing
out that the legal boundary between the national and international is much more
porous than traditional understandings of either field of law.64 But it is one thing
to claim that domestic law influences international legal outcomes and vice versa. It
is another to claim that domestic law constitutes international law. Koskenniemi’s
characterization ultimately suffers from the same flaw, albeit in gradated form, as
its more skeptical cousin who sees international law as the repository of delegated
national authority. The more the international is constituted by the national, the
less sense it makes to speak of international law as a legal order relatively distinct
from national legal orders. That international law aims to regulate national legal
orders does not necessarily mean that national legal orders accept how they are con-
ceptualized in international law, but it does require conceptualizing sovereignty as
an international legal entitlement that international law distributes and regulates.
To the extent that this conception’s opposite—sovereignty as delegated national
authority—finds expression in international legal argument, this is a reflection of
63
Koskenniemi, supra note 50, at 58–67. In another work, The Gentle Civilizer of Nations: The
Rise and Fall of International Law, 1870–1960, at 500 (2002), Koskenniemi argues that interna-
tional law stands to promote formalism, which embodies a “culture of resistance to power, a social prac-
tice of accountability, openness and equality whose status cannot be reduced to the political positions of
any one of the parties whose claims are treated within it.” For a thoughtful extension of Koskenniemi’s
thesis to international human rights law, see Frédéric Mégret, The Apology of Utopia; Some Thoughts of
Koskenniemian Themes with Particular Emphasis on Massively Institutionalized Human Rights Law, 27
Temple Int’l & Comp. L.J. 455 (2013).
64
See, e.g., Karen Knop, Here and There: International Law in Domestic Courts, 32 N.Y.U. J. Int’l L. & Pol.
501 (2000).
the ability of national legal orders to dominate international law and impair its con-
ceptual capacity to independently organize global economic and political life into a
distinct legal order.
Sover eignty and Its Distr ibution
Recall that, according to Charles Beitz, the purpose of “modern human rights doc-
trine” is to “address pathologies of a global political structure that concentrates
power at dispersed locations not subject to higher-level control.”65 Beitz’s insight
captures the first contribution made by the concept of sovereignty to the structure
of international law that this chapter is seeking to highlight. The concentration of
power to which Beitz is referring is sovereignty, and the fact that sovereignty is “not
subject to higher-level control” creates a risk that sovereigns will exercise their power
in ways that adversely affect individuals and groups subject to their jurisdiction.
Human rights operate to address the pathologies that would flow if sovereigns were
relatively free to exercise their sovereign power in ways they saw fit. Where Beitz’s
political account differs from the legal account advanced here, as mentioned, is in
relation to the normative question of why human rights ought to perform this func-
tion. Beitz answers this question in terms external to international law by specifying
conditions extrapolated from practice that a human rights claim must meet in order
to possess normative legitimacy. The account offered here answers this question
in terms internal to international law, by conceiving of the normative purchase of
human rights in terms of their capacity to mitigate adverse consequences that arise
from the structure and operation of international law itself.
There is an additional important difference between these two accounts. Perhaps
because of their focus on practice, political accounts understate the systemic and
dynamic role that sovereignty performs in international law. International law
brings legal order to global politics not simply by legally authorizing the exercise
of sovereign power by collectivities it recognizes as States. By authorizing the exer-
cise of sovereign power by all sovereign States in the world, international law also
produces a systemic distribution of sovereign power. By specifying rules that enable
the reallocation of sovereignty, international law produces a dynamic distribution
of sovereign power. The systemic and dynamic nature of the distribution of sov-
ereignty in international law produces pathologies relatively distinct from those
associated with international law’s authorization of the exercise of sovereign power.
65
Human rights in international law speak not only to adverse consequences of the
exercise of sovereign power. They also speak to adverse consequences of the distribu-
tion of sovereign power.
International law performs its distribution of sovereign power by a set of rules
and principles that relate to the acquisition and maintenance of State sovereignty.
Claims of sovereign power possess legal validity in international law only under
certain conditions and in certain circumstances. International law provides that a
State whose government represents the whole of its population within its territory,
consistent with principles of equality, nondiscrimination, and self-determination,
is entitled to maintain its territorial integrity under international law and to have
its territorial integrity respected by other States.66 But international legal rules also
determine which collectivities are entitled to exercise sovereign authority and over
which territories and people such authority operates. The field entitles a collectiv-
ity to form a State and wield sovereign power if it constitutes a “people” and has
experienced severe and ongoing injustices such as colonial rule or alien subjugation,
domination, or exploitation.67 Finally, international law also confers legal valid-
ity on a claim to sovereignty by a collectivity if it manifests certain properties that
international law stipulates as conditions of acquiring statehood.68
These avenues of obtaining and maintaining sovereign statehood are the means by
which the international legal order distinguishes between legal and illegal claims to
sovereign power. International law sorts the countless claims of sovereign power that
have defined global politics for centuries according to a binary opposition between
legal and illegal claims. In doing so, international law effectively performs an ongoing
distribution of sovereignty among certain collectivities throughout the world. By and
with this distribution, international law organizes global politics into a legal order in
which certain collectivities possess legal authority to rule people and territory.
International law has processed the countless claims of sovereign power that have
punctuated international politics for centuries. This has had the effect of legally
66
See, e.g., U.N. General Assembly, Declaration on the Occasion of the Fiftieth Anniversary of the United
Nations, GA Res. 50/6 (1995) (the right of self-determination “shall not be construed as authorizing or
encouraging any action that would dismember or impair, totally or in part, the territorial integrity or politi-
cal unity of sovereign and independent States conducting themselves in compliance with the principle of
equal rights and self-determination of peoples and thus possessed of a Government representing the whole
people belonging to the territory without distinction of any kind”).
67
According to some formulations, international law also entitles a people to form a State and assume sover-
eign power if it is denied any meaningful exercise of its right to self-determination within the State of which
it forms a part. See, e.g., Reference re Secession of Quebec, [1998] 2 S.C.R. 217 (Can.).
68
Article 1 of the Montevideo Convention on Rights and Duties of States, 165 L.N.T.S. 19 (Dec. 26, 1933), for
example, lists the following criteria of statehood: a permanent population, a defined territory, a system of
government, and a capacity to enter into relations with other states.
including certain political communities, and legally excluding others, in a dynamic

and systemic distribution of sovereign authority. Its dynamic nature arises from the
fact that it is an ongoing enterprise that projects into the future rules and principles
that authorize reallocations of sovereignty occasioned by the demise of existing
States and the creation of new States by right or recognition. These rules and prin-
ciples render the distribution of sovereignty capable of recalibration and realign-
ment in light of new political developments deemed to possess international legal
significance. Its systemic nature is a function of the fact that its distributional reach
envelops all States in its structure and operation, treating all as formal equals in
terms of the legal nature and scope of their sovereign power.
The dynamic and systemic dimensions of the distribution of sovereignty in interna-
tional law enable us to ask questions about the ways it organizes global politics into a
legal order, how and under what conditions it vests certain political projects with inter-
national legal significance, and the distributive outcomes that it produces. What are
the rules and principles that determine which communities are entitled to participate
in the distribution of sovereignty that international law performs? What values are pro-
moted, and what values are compromised, by an international legal order that concep-
tualizes the power to rule people and territory as a legal entitlement that vests in certain
geographically concentrated communities in the various regions of the world? To what
extent can we speak of a just or unjust distribution of sovereign power? What varieties
of inequalities are produced—and what varieties of inequalities are addressed—by an
international legal architecture built on the foundation of sovereign equality?
The dynamism that new political developments, deemed to possess international
legal significance, impart to the distribution of sovereignty is the backdrop to the
role that minority rights play in international law. This is partly a function of the
fact that international treaties episodically modify the distribution of sovereignty
by transferring sovereign authority over territory and people from one sovereign
actor to another. In so doing, they create majorities and minorities. Minorities exist
in relation to majorities, and majorities exist because international law distributes
sovereign authority over territory and people to certain collectivities and not oth-
ers.69 Comprehending minority rights claims in terms of the role they can play in
Compare Hans Kelsen:

69
[T]‌he concept of a majority assumes by definition the existence of a minority, and thus the right of
the majority presupposes the right of the minority to exist. From this arises perhaps not the neces-
sity, but certainly the possibility, of protecting the minority from the majority. This protection of
minorities is the essential function of the so-called basic rights and rights of freedom, or human and
civil rights guaranteed by all modern constitutions of parliamentary democracies.
Hans Kelsen, On the Essence and Value of Democracy, in Weimar: A Jurisprudence of Crisis 100
(Arthur J. Jacobson & Bernard Schlink eds., 2000) (emphasis in original).
monitoring the legitimacy of the distribution of sovereign power reveals that their
normative status lies in the fact that they serve as instruments to mitigate injustices
associated with the kinds of recalibrations of sovereign power that international law
treats as possessing international legal force.
The dynamic nature of the distribution of sovereign power is also partly a func-
tion of the fact that international law includes certain collectivities and excludes
others from its distribution. International law excluded indigenous peoples, for
example, from the outset from its distribution of sovereign power and included
them within the sovereign power of States established on the territories they inhab-
ited since time immemorial. This process of exclusion and inclusion is an ongoing
one. International law continues to exclude and include indigenous peoples in its
distribution of sovereign authority by refusing to recognize that they possess a
right of self-determination entitling them to acquire sovereign statehood. Instead,
indigenous peoples have rights of internal self-determination, which entitle them to
extensive protection associated with their identities, cultures, territories, and forms
of governance. Indigenous rights in international law speak to some of the adverse
consequences of international law’s exclusion of indigenous peoples from its distri-
bution of sovereign authority.
The dynamic nature of the distribution is also due to the fact that the criteria
for inclusion and exclusion can change. Take international law’s relationship with
colonialism. For centuries, international law authorized the colonization of peoples
by sovereign States. It did so by comprehending the territory of a sovereign State as
including the territory of any and all colonies under its imperial control.70 A State’s
sovereignty thus extended to its colonial territories and the peoples that it colo-
nized. Any attempt by a colonial population to free itself of its colonial status was
comprehended as a threat to the territorial integrity of its colonizing master and,
accordingly, an international illegality. International law’s distribution of sover-
eignty displayed its dynamism when it reversed itself in the middle of the previous
century and came to comprehend colonialism as an international illegality. As a
result, colonized peoples acquired sovereign independence from their colonial mas-
ters and thus now participate in the distribution of sovereignty by virtue of their
right of self-determination.
Moreover, States acquire sovereignty at different times. One important con-
sequence of the dramatic international legalization of decolonization was that
ex-colonies only acquired the incidents of sovereignty when they acquired sov-
ereignty itself. Before they achieved sovereign recognition, control over natural
70
Case Concerning Right of Passage over Indian Territory (Portugal v. India), 1960 I.C.J. 6 (Apr. 12).
resources vested in their colonial masters, as did all other incidents of international
sovereign power. In other words, before colonies participated in the distribution
of sovereignty, international law vested the legal power to exploit their natural
resources in colonial powers, and when colonies became subjects in the distribution,
international law vested them with power only over those resources that remained
at the date that they achieved sovereign statehood.71 This temporal dimension to
the acquisition of sovereignty in international law has the effect of privileging States
with a history of colonizing others over States with a history of being colonized,
thereby contributing to the disparity of resources that exists between developed and
developing States.
The systemic nature of the distribution of sovereignty is a function of the fact that
its distributional reach envelops all States, treating all as formal equals in terms of
the legal nature and scope of their sovereign authority. A sovereign State is one of
many participating in a distribution of sovereignty by an international legal order
committed to the principle of the formal equality of sovereign States. International
law treats States as juridically equal legal actors, in possession of the same rights
in international law, and equal in their formal capacity to exercise these rights.72
This commitment is also a critical feature of how international law organizes global
politics into an international legal order. The principle of the formal equality of sov-
ereign States, in Benedict Kingsbury’s words, “has attained an almost ontological
position in the structure of the international legal system.” 73 The normative value of
this principle should not be overstated, but nor should it be understated. It enables
economically, politically, and militarily weak States to exercise the same formal
legal authority as powerful States, revealing the international legal order’s capacity
to check, in particular institutional settings, the very real power imbalances that
exist among States.
One of the consequences of international law’s foundational commitment to for-
mal equality of States, however, is that substantive equality of States plays a marginal
role in the normative architecture of the international legal order. International
law domesticates questions of substantive equality, treating its potential normative
significance as a domestic question of distributive justice among citizens, subject
71
See generally Antony Anghie, Imperialism, Sovereignty and the Making of International
Law (2004).
72
See, e.g., United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, art. 2(1): “The
Organization is based on the principle of the sovereign equality of all its Members”; Montevideo
Convention, supra note 68, at art. 4: “States are juridically equal, enjoy the same rights, and have equal
capacity in their exercise. The rights of each one do not depend upon the power which it possesses to assure
its exercise, but on the simple fact of its existence as a person under international law.”
73
Benedict Kingsbury, Sovereignty and Inequality, 9 Eur. J. Int’l L. 559, 600 (1998).
to the vagaries of domestic political contestation. However valuable international

law’s commitment to the formal equality of States, its banishment of substantive
equality to the domestic realm further implicates the structure of the international
legal order in the natural, geographical, and social contingencies that contribute to
global poverty. Deploying sovereignty to organize global politics into an interna-
tional legal order has the effect of extending international legal validity to certain
natural, geographical, and social contingencies into which we are born. The capacity
of a sovereign State to address poverty in its midst is in no small measure a function
of its location, boundaries, and resources—variables whose limits and possibilities
are determined by the nature and scope of that State’s sovereign authority.
International law thus sorts claims of economic and political power made
throughout the world by validating some such claims as endowed with sovereign
authority and rejecting others as international illegalities. As subsequent chapters
bear out, the consequences of legally organizing global economic and political reali-
ties in these ways are manifold. Our international legal order vests sovereign legal
authority in some collectivities and not others. It has validated the sovereign power
of some collectivities for centuries; it has recognized the sovereignty of other col-
lectivities only recently. It extended international legal validity to colonialism by
extending a State’s sovereignty to its colonial territories and colonized peoples. It
episodically recalibrates the distribution of sovereign power that it performs, trans-
ferring peoples and territories from some sovereign legal actors to others.
Not only does international law validate an international distribution of sover-
eign power, it also validates countless ways in which sovereignty can be and is exer-
cised. It confers on States broad powers to exercise sovereign power in ways that can
both benefit and harm their populations. By geographically dividing the globe into
a finite set of sovereign States and legally recognizing sovereignty as including exclu-
sive rights to a State’s territory and resources, international law also determines what
belongs to whom and thus validates a global distribution of wealth and resources.
And by empowering sovereign States to establish international instruments and
institutions that legalize certain economic and social relations at the expense of
others, it provides international legal validity to myriad processes of economic and
social globalization that dramatically affect the nature and levels of poverty and
inequality throughout the world. It is these consequences to which human rights,
in international law, seek to attend.
3
H U M A N R IG H T S: T H R EE G EN ER AT IO N S O R O N E ?
in 1977, the UNESCO Courier published a slender essay by Karel Vasak, a

Czech-born, French jurist and director of UNESCO’s Division of Human Rights
and Peace. Entitled “A Thirty-Year Struggle,” Vasak’s essay characterized human
rights in international law in terms of “three generations.”1 The first generation,
he wrote, refers to civil and political rights, specifically those enshrined in the
International Covenant on Civil and Political Rights, such as freedom of expression
and the right to vote. The second generation concerns economic, social, and cultural
rights, specifically those enshrined in the International Covenant on Economic,
Social, and Cultural Rights, such as rights to housing and to form a trade union.
The third generation, which Vasak characterized as one that “the international com-
munity is now embarking on,” refers to what he called “solidarity rights,” which
include the right to development, the right to self-determination, minority rights,
the right to a healthy environment, the right to peace, and the right to ownership of
the common heritage of mankind.2
Vasak’s metaphorical generations have come to assume an intellectual prominence
far greater than where they first appeared in print. Classifications that comprehend
human rights in terms of generations are now legion in international legal scholar-
ship. Institutions specialize in them, judges invoke them, scholars and practitioners
rely on them, and students learn them when they learn about international human
Karel Vasak, “Human Rights: A Thirty-Year Struggle,” 30 UNESCO Courier 11, 29 (1977).

1
Id.
2
51
rights. Less common are explanations of what actually is meant when we speak of
human rights in generational terms. Do “generations” refer to temporal differences
concerning the emergence of different human rights in international law? Do they
refer to distinctive properties that some rights share with others or analytical differ-
ences among rights? Or do they refer to the possibility that the protection of certain
kinds of rights is conceptually prior to the protection of other kinds of rights?
This chapter argues that understanding human rights in international law in
terms of generations is historically inaccurate, analytically unhelpful, and con-
ceptually misguided. The chronologies suggested by generational conceptions of
human rights do not correspond to the history of human rights in international
law. The analytical categories into which generational conceptions sort human
rights do not capture their legal nature and character. And generational concep-
tions of human rights, by highlighting differences that allegedly exist among differ-
ent types of human rights, fail to appreciate what is common to all human rights in
international law.
Different human rights seek to protect different kinds of interests, and the nature
of these interests will require different means of protection. Whether chronological
or analytical, generational conceptions that stylize these differences distract from
the function that human rights play in international law by portraying them as
belonging to different generations of discovered moral truths. Specifically, genera-
tional conceptions miss the fact that, despite the diverse sets of interests they seek
to protect, human rights in international law share a common purpose, which is
to mitigate injustices produced by the ways in which international law brings legal
order to global politics. In this sense, civil and political rights and social, economic,
and cultural rights, as well those thought of as third-generation rights, comprise but
one generation: a single population of entitlements, speaking to different features of
the structure and operation of international law.
Gener ations as Chronological Categor ies
Vasak’s metaphor of generations fails to capture the nature of human rights in at

least one respect: classes of human rights, unlike generations in life, do not replace
each other sequentially over time.3 Carl Wellman puts it bluntly: “[g]‌enerations
succeed one another, not only in that the members of one generation are born
See Philip Alston, A Third Generation of Solidarity Rights: Progressive Development or Obfuscation of
3
International Human Rights Law?, 29 Neth. Int’l L. Rev. 307, 316 (1982). See also Carl Wellman,
Solidarity, the Individual and Human Rights, 22 Hum. Rts. Q. 639, 641 (2000).
Human Rights 53
before those of the next generation, but also in that parents tend to die before their
children.”4 Nonetheless, some see merit in Vasak’s metaphor because it highlights
important chronological facts about human rights. In another essay published a few
years after his contribution to the UNESCO Courier, Vasak himself intimated that
a generational conception of human rights captures how human rights came into
existence in different “waves” throughout history. The first wave, which accompa-
nied the French revolution, gave rise to the generation of civil and political rights.
With the second wave, after the Russian revolution of 1917, economic, social, and
cultural rights gained universal recognition. The third wave accompanied “the
emancipation of colonized and dominated peoples” in the middle of the twentieth
century.5
Others draw chronological insight into the relationship between first and second
generation rights from the work on citizenship by T.H. Marshall. Writing in 1949,
Marshall conceived of citizenship as consisting of three elements—civil, political,
and social—each of which emerged and gave shape to the concept in a chronologi-
cal manner during and after the industrial revolution in England. Civil rights, such
as the rights to own property and enter into contracts, the right to sue and be sued,
and rights associated with access to the judiciary, conferred legal personality on
individuals and were primarily the work of courts. Political rights, such as the right
to vote and hold office, were primarily the work of legislatures. And social rights,
which range from “the right to a modicum of economic welfare and security to the
right to share to the full in the social heritage and to live the life of a civilized being
according to the standards prevailing in society,” were primarily the responsibility
of the administrative State and educational systems.6 In Marshall’s words, “it is pos-
sible, without doing too much violence to historical accuracy, to assign the forma-
tive period in the life of each to a different century—civil rights to the eighteenth,
political to the nineteenth and social to the twentieth.” 7
However accurate such chronological accounts of human rights may be, they say
little that is meaningful about human rights in international law, which are of a
4
Id. at 641.
5
Karel Vasak, Pour une troisième generation des droits de l’ homme, in Studies and Essays on
International Humanitarian Law and Red Cross Principles 837 (Christophe Swinarski, ed.,
1984) (quoted in P.H. Kooijmans, Human Rights—Universal Panacea? Some Reflections on the So-called
Human Rights of the Third Generation, 37 Neth. Int’l L. Rev. 315 (1990)).
6
T.H. Marshall, Citizenship and Social Class, in T.H. Marshall & T. Bottomore, Citizenship and
Social Class 8 (reprint 1992) (1949).
7
Id. at 10. For illuminating accounts linking Marshall’s work to the role that social rights play in a global-
ized economy, see Judy Fudge, The New Discourse of Labor Rights: From Social to Fundamental Rights?, 29
Comp. Lab. Law & Pol’y J. 29 (2007–2008), and Simon Deakin, Social Rights in a Globalized Economy, in
Labour Rights as Human Rights 25–60 (Philip Alston, ed., 2005).
much more recent vintage than, say, rights that surfaced in British common law
during the industrial revolution. Before the turn of the twentieth century, positive
international law referred to human rights at best obliquely. Samuel Moyn argues
that international human rights emerged “seemingly out of nowhere” and acquired
political and legal salience only recently, in the 1970s.”8 Others take a longer view,
tracing the ancestry of the field to diverse historical events and epochs, including
the British movement to abolish the transatlantic slave trade,9 the European renais-
sance and reformation,10 and the cultural and literary milieu of the enlightenment.11
Accounting for international human rights in terms of generations, however, is not
the same as determining their origins or antecedents. A generational account typi-
cally assumes their formal international legal existence and, at least from a chrono-
logical perspective, classifies them in terms of when they surfaced in international
law. Relying on events or periods prior to the twentieth century to identify a chro-
nology of international human rights confuses the origins or antecedents of human
rights with their international legal existence.12
The lack of fit between the periods to which generations of human rights are
often assigned and their comparatively youthful existence in positive international
law does not foreclose the possibility of a chronological account of their interna-
tional legal status. Human rights in international law are often portrayed by legal
scholars as possessing a unique chronology of their own, one that commences in
the aftermath of the Second World War and that continues through the latter half
of the twentieth century to the present day.13 Vasak alluded to such a conception
when he characterized the international community, in 1979, as “embarking on a
third generation of human rights” in what has been “a thirty-year struggle.”14 On
this conception, first-generation civil and political rights initially received recogni-
tion, second-generation social and economic rights subsequently received recognition,
8
Samuel Moyn, The Last Utopia: Human Rights in History 3 (2010). See also Stefan-Ludwig
Hoffmann, Introduction, in Human Rights in the Twentieth Century (S.-L. Hoffmann,
ed., 2010).
9
Jenny S. Martinez, The Slave Trade and the Origins of International Human Rights
Law (2012).
10
John M. Headley, The Europeanization of the World (2008).
11
Lynn Hunt, Inventing Human Rights (2007). For an insightful review and critique of the historiog-
raphy of human rights, see Philip Alston, Does the Past Matter? On the Origins of Human Rights, 126 Harv.
L. Rev. 2043 (2013).
12
Daniel Whelan makes the additional point that “[t]‌he problem with the generations approach is that it per-
manently categorizes rights, not only by fixing the categories in history but also by finding within each gen-
eration incompatible philosophical sources of inspiration.” Daniel J. Whelan, Indivisible Human
Rights: A History 210 (2010) (emphasis in original).
13
See, e.g., Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal
Declaration of Human Rights (2002).
14
Vasak, supra note 1, at 29.
Human Rights 55
and third-generation solidarity rights are in the process of receiving recognition in

international law.
If we relax the positivistic premise that human rights received formal legal expres-
sion only as of 1948 with the adoption of the Universal Declaration and engage
with developments earlier in the twentieth century, any chronology that might
exist in the resulting expanded time frame belies the one suggested by Vasak. Philip
Alston notes that human rights first emerged in international law when interna-
tional labor rights, which Marshall conceived of as a subset of social rights, made
their first appearance after World War I—with the creation of the International
Labour Organization and the various treaties that emerged soon thereafter protect-
ing the rights of workers.15 Asbjørn Eide traces the genesis of labor rights in interna-
tional law even further back in time, to conferences convened by Swiss authorities in
1905 and 1906, which adopted conventions based on the work of the International
Association for the Legal Protection of Workers in 1900, building on a set of recom-
mendations generated by a conference convened in Germany in 1890.16 According
to Eide, the main contribution that the 1948 Universal Declaration made to inter-
national human rights law was to extend the field beyond social and economic
rights to include civil and political rights. From this vantage point, whether the
chronology commences at the end of the nineteenth century or the beginning of
the twentieth century, social and economic rights are first-generation rights, and
civil and political rights are their relatively youthful second-generational relatives.17
In fact, from this perspective, the emergence of what we understand to be
third-generation rights occurred before civil and political rights received formal
expression in international law. As discussed in more detail in Chapter 5, with the
1648 Treaty of Westphalia guaranteeing religious freedom for minority commu-
nities, minority rights received international recognition at the very moment that
international law began to conceive of States as sovereign legal actors. While it rec-
ognized the sovereign right of princes to determine the religion of their own States,
the Treaty of Westphalia also guaranteed Lutherans and Calvinists in specified
regions the right to practice their faith in public and private realms.18
Minority rights also rose to international legal prominence after World War
I with the adoption of a raft of multilateral and bilateral treaties, monitored by the
15
Alston, supra note 3, at 317.
16
Asbjørn Eide, Economic, Social and Cultural Rights as Human Rights, in Economic, Social, and
Cultural Rights: A Textbook 15 (Asbjørn Eide, Catarina Krause, & Allan Rosas, eds., 1995).
17
Id. at 17 (the Universal Declaration’s “great contribution is that it extended the human rights platform to
embrace the whole field—civil, political, economic, social and cultural, and made the different rights inter-
related and mutually reinforcing”).
18
Article 27 of the Treaty, for example, stipulated that “those of the Confession of Augsburg, and particu-
larly the Inhabitants of Oppenheim, shall be put in possession again of their Churches, and Ecclesiastical
League of Nations, which provided protection to populations displaced or adversely

affected by the war and the subsequent redrawing of territorial boundaries in
Europe. Although minority rights were not thought of in universal terms during
this period, they shared common features. The relevant legal instruments contained
stipulations regarding the acquisition of nationality of the newly created or enlarged
State, the right to equal treatment, rights against nondiscrimination, and the pro-
tection of ethnic, religious, or linguistic identity, including the rights of minorities
to officially use their mother tongue, to have their own schools, and to practice their
religion.19
Indigenous rights, too, do not track the common chronological account of Vasak’s
three generations of human rights in international law. As described in more detail
in Chapter 6, soon after its inception in 1919, the ILO sought to extend its supervi-
sory authority to working conditions in colonies and dependent territories. The ILO
undertook studies in 1921 on the working conditions in these jurisdictions, estab-
lishing a Committee of Experts on Native Labour to formulate labor standards for
what it termed “indigenous” workers in these regions in 1926, and enshrining these
standards in seven Conventions that came into force between 1930 and 1955. These
Conventions set out relatively weak labor standards for the protection of workers
in colonies and dependent territories. They included obligations to phase out the
use of forced labor; regulations governing the recruitment of workers that sought to
minimize the impact of the demand for labor on the political and social organiza-
tion of the population; requirements that employers enter into written contracts
with employees and bear certain costs associated with relocation and transportation
of workers; obligations to phase out, “progressively and as soon as possible,” penal
sanctions for breach of contract; provisions specifying the maximum length or
term of employment contracts; and regulations governing the use of migrant work-
ers.20 Despite their weaknesses, indigenous civil and social rights nonetheless found
Estates, as they were in the Year 1624. And also that all others of the said Confession of Augsburg, who
shall demand it, shall have the free Exercise of their Religion, as well in publick Churches at the appointed
Hours, as in private in their own Houses, or in others chosen for this purpose by their Ministers, or by those
of their Neighbours, preaching the Word of God.” Treaty of Westphalia, 1 Parry 271 (1648).
19
Article 7 of the Polish Minority Treaty, for example, stated that “[d]‌i fferences of religion, creed, or confes-
sion shall not prejudice any Polish national in matters relating to the enjoyment of civil or political rights,
as for instance the admission to public employments, functions and honors, or the exercise of professions
and industries.” Treaty between the Principal Allied and Associated Powers and Poland (June 28, 1919).
20
See respectively Convention concerning Forced Labour of 1930 (No. 29); Convention concerning the
Recruiting of Indigenous Workers of 1936 (No. 50); Convention concerning the Contracts of Employment
(Indigenous Workers) of 1939 (No. 64); Convention concerning Penal Sanctions (Indigenous Workers) of
1939 (No. 65); Convention concerning Contracts of Employment of 1947 (No. 86); and Convention con-
cerning the Migration for Employment of 1949 (revised as No. 97). Penal sanctions for breach of contract
were finally abolished in 1955: see Convention concerning the Abolition of Penal Sanctions for Breaches of
Human Rights 57
formal expression in international law well before the adoption of the Universal
Declaration and the entrenchment of so-called first- and second-generation rights
in 1948.
In Vasak’s defense, social rights and minority rights typically were not cast in uni-
versal terms in international law before the adoption of the International Covenant
on Civil and Political Rights. They vested in some people and not others and were
tailored to the contingent circumstances of the communities they purportedly pro-
tected. And characterizations of indigenous rights as instruments that protect inter-
ests associated with the right to self-determination—a right that is said to vest in all
of us by virtue of our common humanity21—surfaced even more recently. If human
rights, understood as universal entitlements, first surfaced in international law with
the adoption of the 1948 Universal Declaration, then minority and indigenous rights
plausibly could be characterized chronologically as third-generation rights, arguably
emerging in universal terms in 1976 and 1989, respectively.22 But if the chronology
commences in 1948, then civil and political rights appear in international law at
the same time as the appearance of social, economic, and cultural rights.23 The 1948
Universal Declaration enshrines both sets of rights, rendering suspect the claim
that first-generation rights chronologically preceded second-generation rights in
international legal history.
If instead we tighten the positivistic premise that human rights first appear in
international law when they receive formal legal expression, and commence the
chronology in 1976 when the International Covenant on Civil and Political Rights
and the International Covenant on Economic, Social, and Cultural Rights entered
into force, then a chronological account of the three classes of rights is even more
historically inaccurate. Under this tighter premise, both first and second gen-
erations of human rights came into international legal existence simultaneously,
as did minority rights understood as universal entitlements. And the right of
self-determination—a so-called third-generation right—was formally recognized
as a human right by the International Court of Justice one year before the coming
into force of the two Covenants.24 Characterizing human rights in chronological
terms, whatever the commencement date, fails to adequately describe the timing
Contract of Employment by Indigenous Workers of 1955 (No. 104). Forced labor was abolished in 1957: see
Convention concerning the Abolition of Forced Labour, 1957 (No. 105).
21
See S. James Anaya, Indigenous Peoples in International Law (2d ed. 2004), for an account of
international indigenous rights in these terms.
22
The International Covenant on Civil and Political Rights, enshrining minority rights, came into force in
1976, and the ILO Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO
No. 169), 1650 U.N.T.S., referring to universal nondiscrimination guarantees, came into force in 1989.
23
See also Alston, supra note 3, at 317.
24
Western Sahara (Advisory Opinion), 1975 I.C.J. 1 (Oct. 16).
of their actual emergence in international law. If we are to ascribe a chronology to

these events, it is a much more complex one than what is offered by generational
accounts of human rights.
Gener ations as Analytical Categor ies
Another way of understanding human rights in generational terms is to treat Vasak’s

three generations as analytical instead of chronological categories. Approached
analytically, a human right belongs to a particular generation of rights because of
distinctive properties that it possesses. Vasak himself alluded to this approach by
distinguishing the three generations of rights in terms of the obligations they gen-
erate and on whom their obligations fall. Civil and political rights, he wrote, are
“negative rights, in the sense that their respect requires that the state do nothing to
interfere with individual liberties.”25 Social, economic, and cultural rights, in con-
trast, require “positive action by the state to be implemented.”26 Third-generation
rights, for Vasak, are distinctive not because of the nature of the obligations
they impose but because of the actors who bear these obligations. Unlike first-
and second-generation rights, which impose obligations only on governments,
third-generation rights, because they “reflect a certain conception of community
life, … can only be implemented by the combined efforts of everyone: individuals,
states and other bodies, as well as public and private institutions.”27
Critiques of accounts that characterize civil and political rights as negative rights
and social and economic rights as positive rights are well known, and there is no
need to rehearse their arguments in detail here.28 It suffices to say that, contrary
to Vasak, who insisted on a sharp divide between positive and negative rights, all
25
26
Id.
27
Id. Although critical of generational approaches, Whelan offers this analytical version:
First-generation rights view the state as the primary violator of rights. Second generation rights
seek to combat the power of the market. Third generation rights are anti-colonial, and in a sense are
linked to second-generation rights in terms of the globalization of markets.
Whelan, supra note 12, at 210.

28
For a sampling, see Sandra Fredman, Human Rights Transformed: Positive Rights and
Positive Duties (2008); Amartya Sen, The Idea of Justice (2009); Cécile Fabre, Social
Rights and the Constitution: Government and the Decent Life (2004); Stephen
Holmes & Cass R. Sunstein, The Cost of Rights: Why Liberty Depends on Taxes (1999);
Henry Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy (2d ed. 1996);
Craig Scott & Patrick Macklem, Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in a
New South African Constitution, 141 U. Pa. L. Rev. 1 (1992).
Human Rights 59
rights—whether civil, political, social, or economic—give rise to both positive and

negative governmental obligations calibrated to protect certain interests and not
others. The right to property, for example, classically conceived of as a negative civil
right that requires government to refrain from interfering with its exercise, requires
extensive governmental action—legislative, judicial, and administrative—for its
protection. Zoning legislation, criminal law, the common law of property and tort,
and environmental agencies and police forces serve to protect the value of one’s
property from the actions of others. “The protection of property,” in Neil Komesar’s
words, “needs both protection from and the protection of the government.”29
Social and economic rights, too, can be cast in either positive or negative terms,
depending on how one characterizes the governmental obligations to which they
give rise. State abolition of social assistance, for example, implicates a negative
right to minimal subsistence insofar as a State subject to such a right cannot deny a
person the minimal subsistence to which she is entitled. But it also implicates a
positive right to minimal subsistence insofar as the right obligates a State to secure
minimal subsistence to each individual. Similarly, a right to shelter contemplates a
negative obligation on government not to demolish one’s housing as well as, under
some formulations, an obligation to provide housing to those in need.
So-called third-generation rights also possess negative and positive dimensions. The
right to development, as we will see, imposes internal obligations on States that are
both negative and positive in nature. A State’s negative obligations require it to not
act in ways that interfere with the exercise of the right to development. A State’s posi-
tive obligations require it to enable its population to participate in and benefit from
economic, social, cultural, and political development. It imposes additional external
obligations on international legal actors that are also negative and positive in nature.
Its negative dimensions require States and international institutions to fashion rules
and policies governing the global economy in ways that do not exacerbate global pov-
erty. Its positive dimensions require States and international institutions to provide
assistance to developing States in the form of development aid and debt relief.
Given that all rights—regardless of which generation they are said to belong
to—give rise to positive and negative State obligations, the key task is not to deter-
mine whether any given human right is positive or negative. It is instead to iden-
tify, in specific contexts, the particular configuration of State obligations—positive
and negative—to which it gives rise. This configuration is itself dependent on the
nature of the interests that the right is deemed to protect, and the extent to which it
29
Neil Komesar, Imperfect Alternatives: Choosing Institutions in Law, Economics, and
Public Policy 235 (1994) (emphasis in original).
contains positive obligations will depend, in part, on how much value those specify-
ing its terms place on State intervention or market ordering.
Vasak alluded to a conception of human rights that classifies them in terms
of the interests they seek to protect by grandly suggesting that the three genera-
tions of human rights correspond, respectively, to the three ideals of the French
revolution: liberty, equality, and fraternity.30 In his view, liberty corresponds to
first-generation rights because they protect fundamental freedoms such as free-
dom of expression and religion. Equality corresponds to second-generation rights
because they are aimed at the amelioration of social and economic inequalities.31
Fraternity—or what Vasak also referred to as solidarity—underpins third-generation
rights in the sense that it promotes the social solidarity necessary for individuals to
develop their full human potential.32
Vasak argued that third-generation rights were necessary to address two defi-
ciencies associated with first- and second-generation rights. The first is that a
culture of rights promotes a culture of individualism, resulting in the social iso-
lation of individuals, which solidarity rights seek to overcome. Second, writing in
1984, Vasak presciently foresaw that processes of economic globalization render
it increasingly difficult for States, acting independently, to address problems that
second-generation rights were designed to address. Vasak saw third-generation
rights as instruments that, because they require cooperative action at the interna-
tional level, enable a global coordinated response to the social isolation produced by
a culture of individualism.33
Equating the three generations of rights with the three ideals of liberty, equality,
and fraternity, however, merely underscores the fact that different rights protect dif-
ferent interests and that these interests can be grouped into larger normative catego-
ries that speak to different dimensions of the human condition. Conveying this fact
by way of a metaphor of generations risks mystifying this simple, albeit important,
insight. More important, it obscures what is common to all human rights in inter-
national law, despite the diverse sets of interests that they seek to protect.
30
31
But see Charles Beitz, The Idea of Human Rights 161 (2009) (social rights “establish
non-comparative standards of well-being” and in this respect they “differ from various other human rights
that import equality as a value directly into human rights doctrine”).
32
Wellman, supra note 3, at 642. René Cassin, a French delegate instrumental in the drafting of the 1948
Universal Declaration of Human Rights, wrote that his draft of Art. 1 of the Universal Declaration, which
states that “all human beings are born free and equal in dignity and rights” and that “they are endowed
with reason and conscience and should act towards one another in a spirit of brotherhood,” was meant to
allude “to the three fundamental principles of liberty, equality, and fraternity.” AC.1/SR.8/p.2 (quoted in
Johannes Morsink, The Universal Declaration of Human Rights 38 (1999).
33
Vasak, supra note 5 (cited in Wellman, supra note 3, at 642).
Human Rights 61
Another way of understanding generations in analytical terms is to treat them as

highlighting a conceptual sequencing of types of human rights. Civil and political
rights can be thought of as conceptually prior to, and therefore belonging to a gen-
eration “older than,” social and economic rights. This is because civil and political
rights establish the legal and political standing of those entitled to exercise and enjoy
social and economic rights. And the protection of both sets of rights is necessary to
the effective enjoyment of a third generation of human rights, such as the right of
self-determination. If one is not vested with civil, political, social, and economic
rights, then one cannot be said to be capable of freely determining one’s political
status and freely pursuing one’s economic, social, and cultural development.
With generations as proxies for conceptual sequences, however, it is not clear in
which direction the sequences run. Social and economic rights can just as easily
be comprehended as conceptually prior to civil and political rights for the simple
reason that the vesting of civil and political rights is practically meaningless if an
individual is incapable of satisfying his or her most basic needs in life. The right to
vote means little to someone who is starving. Or, as Jeremy Waldron more elegantly
put it, “if one is really concerned to secure civil or political liberty for a person, that
commitment should be accompanied by a further concern about the conditions of
the person’s life that make it possible for him to enjoy and exercise that liberty.”34
Others locate third-generation rights at the start of the sequence. Advocates
of third-generation rights often argue that they are necessary for the full realiza-
tion of first- and second-generation rights. Jamil Baroody, who represented Saudi
Arabia when the United Nations turned its attention to the international legality of
colonialism in the 1950s, for example, was successful in his efforts to amend a draft
1952 U.N. resolution on self-determination to proclaim that “[t]‌he right of peoples
and nations to self-determination is a prerequisite to the full enjoyment of all fun-
damental human rights.”35 Similarly, the Indonesian delegate at the time, Nazir
Pamontjak, characterized the right of self-determination as “a conditio sine qua non
of individual human rights.”36
Henry Shue has offered what is perhaps the most sophisticated account of
human rights in terms of their sequential importance. In his book, Basic Rights,
Shue predicates U.S. foreign policy on a commitment to rights that he referred to
34
Jeremy Waldron, Liberal Rights: Collected Papers 1981–1991 7 (1993). See also Rhoda Howard,
The Full-Belly Thesis: Should Economic Rights Take Priority over Civil and Political Rights? Evidence from
Sub-Saharan Africa, 5 Hum. Rts. Q. 467 (1983).
35
G.A. Res. 637 (VII), U.N. Doc. A/C.3/L.296 (Dec. 16, 1952).
36
Summary Records of the Third Committee, 401st meeting, Jan. 24, 1952, A/C.3/SR.401, para. 45 (Jan.
24, 1952).
as economic subsistence rights—a small set of rights that has priority over other
human rights.37 Building on Rawls’ notion of “primary goods,” Shue specified a set
of what he called “basic rights,” which, in his view, have the highest priority among
human rights in terms of the need for their realization. Basic rights, for Shue, are
not intrinsically more valuable than other rights. Their status lies in the functional
need for their realization in order to secure other, “non-basic,” rights. “When a right
is genuinely basic,” Shue wrote, “any attempt to enjoy any other right by sacrific-
ing the basic right would be quite literally self-defeating, cutting the ground from
beneath itself.”38
Shue’s basic rights include rights associated with physical security, such as rights
that protect individuals from physical harm, like the right not to be tortured and
rights not to be assaulted.39 They also include those rights that Shue identified as
economic subsistence rights around which he sought to reorient U.S. foreign pol-
icy. Subsistence rights include many of the rights associated with the International
Covenant on Economic, Social, and Cultural Rights, including the rights to food,
shelter, and healthcare.40 Basic rights, for Shue, additionally include a few rights
that are associated with liberty, including freedom of physical movement and rights
associated with political participation.41 Together, this set of basic rights, in Shue’s
words, is “the morality of the depths. They specify the line beneath which no one is
to be allowed to sink.”42
For present purposes, what is noteworthy is that Shue’s conception of basic rights
as analytically prior to other human rights in terms of their realization is that they
include both social and economic rights and civil and political rights. Although
he was no doubt familiar with generational accounts of human rights, and even
sought to problematize efforts to distinguish negative rights from positive rights,43
he did not describe the relationship between basic and non-basic rights in genera-
tional terms. But Shue does comprehend human rights in sequential terms, with
basic rights commencing the sequence. Given that, for Shue, basic rights include
some civil and political rights as well as some social and economic rights, this way of
sequencing further undermines any analytical priority that a generational account
might impose on the different types of human rights in international law.
37
Shue, supra note 28.
38
Id. at 19.
39
Id. at 20–22.
40
Id. at 22–29.
41
Id. at 67–82.
42
Id. at 18.
43
Id. at 35–40.
Human Rights 63
Understanding classes of rights as conceptual sequences must confront not only

the uncomfortable fact that they can be logically sequenced in a number of differ-
ent ways. It must also confront a foundational commitment in international human
rights law to the concept of indivisibility. References to the concept of indivisibility
are almost as legion as references to human rights as generations. The seeds of the
concept were planted in debates in the 1950s surrounding the inclusion of a right of
self-determination in the two Covenants,44 as illustrated by Baroody’s understand-
ing of self-determination as a “prerequisite” of all human rights.45 The concept first
explicitly surfaced in the Proclamation of Tehran, issued at an international confer-
ence held in 1968.46 The U.N. General Assembly subsequently endorsed the idea
that human rights in international law are indivisible, a position that has since been
affirmed by the U.N.’s Office of the Commissioner for Human Rights.47 In recent
years, the United Nations has gone so far as to declare that the indivisibility, inter-
dependency, and interrelatedness of human rights is “beyond dispute.”48
In international legal discourse on human rights, indivisibility is often joined
with the concepts of interdependency and interrelatedness. Although precise defi-
nitions vary, Daniel Whelan defines interdependency as meaning “the enjoyment
of any right or group of rights requires enjoyment of others,” interrelatedness as
“mutual relationship or connectedness,” and indivisibility as akin to inseparability.
Together, they convey the idea—signified by the term “indivisibility” re-enlisted
here by Whelan as an umbrella term—that all human rights are equal in terms of
their status and importance and that the content of each intrinsically relates to and
mutually reinforces all other human rights on the international legal register. In
contemporary discourse, the concept of indivisibility participates in what Whelan
has characterized as “a rhetoric of restoration of the spirit of the fundamental unity
(or some might say, organic unity) of the rights contained in the 1948 Universal
Declaration of Human Rights.”49
If, as the U.N. claims, it is “beyond dispute” that human rights are indivisible, then
dividing them into generations to capture analytical priorities that some allegedly
enjoy over others misconstrues their nature.50 As an umbrella concept, indivisibility
44
45
U.N. Doc. A/C.3/L.296.
46
Proclamation of Tehran, International Conference on Human Rights, 13, U.N. Doc. A/CONF.32/41, 13
(Apr. 2–May 13, 1968).
47
See James W. Nickel, Rethinking Indivisibility: Towards a Theory of Mutually Supporting Relations between
Human Rights, 30 Hum. Rts. Q. 985 (2008).
48
49
Id. at 2.
50
Id. at 211 (“If we subscribe to the idea that (something about) human rights is truly indivisible, the genera-
tions approach confronts us with significant contradictions”).
suggests that the realization of each right is necessary to the realization of all others,
not that the realization of some is a precondition of the realization of others. And,
views held at the U.N. notwithstanding, the indivisibility of human rights is in dis-
pute, as the work of Shue and others illustrates. But what this dispute reveals is not
that human rights can be classified by generations to capture the idea that civil and
political rights are necessary preconditions of social and economic rights, and that
social and economic rights are necessary preconditions of third-generation rights. It
reveals instead that relationships between and among rights are far more complex
than the portrayals offered by generational accounts. The implementation of some
rights might be necessary for the effective enjoyment of other rights. Rights relat-
ing to physical security, for example, are necessary to effectively exercise freedom of
assembly. Other rights might have bilateral or reciprocal relationships. For Shue, the
relationship between security and subsistence rights is of this nature. Some rights
might bear a strong connection to other rights, whereas others might manifest a
weaker connection.51 The right to access to healthcare is closely connected to the
right to security of the person, for example, whereas the right to education is loosely
connected to the right to a fair trial.52 The complexity of relations among rights that
protect different sets of interests makes generational conceptions of human rights
ill-suited to the task of classification. Moreover, it risks glossing over commonalities
that, as the remainder of this chapter seeks to explain, all human rights in interna-
tional law share.
Civil and Political R ights as Monitors

of Sover eignty’s Exercise
The central thesis of this book is that human rights in international law address
pathologies produced by how international law brings legal order to global politics.
This account finds its clearest expression in the role that civil and political rights
play in international law. Civil and political rights speak to the fact that interna-
tional law entitles States to exercise sovereign power internally, in relation to people
and resources on their territory in ways that harm interests that civil and political
rights seek to protect. Civil and political rights in international law do not align
neatly with the classes of rights identified as civil and political by T.H. Marshall. For
Marshall, they include rights to own property and to enter into contracts, the right
51
See Nickel, supra note 47 (distinguishing between weak and strong “supporting relations” among human
rights).
52
The latter example is Nickel’s, supra note 47, at 998.
Human Rights 65
to sue and be sued, and rights associated with access to the judiciary. Civil and polit-
ical rights in international law are generally thought to include rights that protect
life, liberty, and security of the person; that prohibit various forms of inequalities,
including discrimination on grounds such as race, gender, national origin, color,
sexual orientation, ethnicity, religion, and disability, and that protect privacy, free-
dom of thought and conscience, speech and expression, religion, the press, assembly,
and movement. They also include rights that relate more to the legal and politi-
cal standing of individuals, such as those that secure procedural fairness in legal
proceedings, including the right to a fair trial, due process rights, the right to seek
redress or a legal remedy, as well as rights of participation in civil society and politics
such as freedom of association, the right to assemble, the right to petition, and rights
to vote and run for political office.
The role that civil and political rights play in international law is to mitigate the
harm that States can cause to their underlying interests in the exercise of sovereign
power that international law vests in collectivities it recognizes as States. What
these interests are and what their corresponding rights require of States in the exer-
cise of sovereign power are matters of deep contestation that arise in the context
of particular disputes that frame them in continually new and unpredictable ways.
Questions about the content of civil and political rights form a large part of the
ongoing interpretive enterprise that is international human rights law. While their
content is constantly open to contestation, the function of civil and political rights
in international law is to address the fact that international law authorizes States to
exercise sovereign power in ways that threaten the interests that such rights seek to
protect.
On the conception offered here, civil and political rights thus derive their nor-
mative value in international law from their capacity to control and restrict the
exercise of sovereign power that international law vests in States, not from any uni-
versal or moral attributes they might possess. Whether civil and political rights, and
the interests that underlie them, relate to essential features of what it means to be
human and therefore exemplify moral conceptions of human rights thus has little to
do with their function in international law. It may be that some of those responsible
for their entrance onto the international legal stage viewed civil and political rights
in universal terms.53 It may be that others viewed civil and political rights in less
than universal terms, perhaps as key elements of a superior form of political com-
munity, and saw their international legality as an effective means of popularizing
Johannes Morsink, the author of an authoritative history of the drafting of the Universal Declaration, is of
53
this view. See Morsink, supra note 32, at 295 (“[t]‌he drafters believed that people start life already possess-
ing certain moral rights, the right to life being one of them”).
its merits.54 Others may have sought their elevation to the status of international
human rights as an effective means of combatting the spread of communism.55 The
politics behind their international legal production, in other words, may or may not
have been consistent with moral accounts of why human rights merit international
protection. But moral conceptions of the purpose of civil and political rights have
little to do with a legal conception of their role in international law, which relates
to pathologies associated with the structure and operation of the international legal
order and not the demands of abstract morality.
This is not to say that the content of civil and political rights is completely
divorced from moral considerations. The terms of human rights instruments often
rely on concepts and principles charged with normative significance, like dignity, for
example, in their specification of the rights and obligations that they enshrine. The
international legal validity of these rights and obligations is not in doubt. Their legal
effect, however, rests on how we understand their nature and scope, which invari-
ably requires interpreting the moral concepts and principles to which they refer and
which in turn leads those responsible for their interpretation to venture—explicitly
or implicitly—into the realm of moral theory.
Article 10(1) of the International Covenant on Civil and Political Rights, for
example, provides that “all persons deprived of their liberty shall be treated with
humanity and with respect for the inherent dignity of the human person.”56 Some
insight into the meaning of article 10(1) can be gleaned from the fact that it goes on
to specify that accused persons shall, except in exceptional circumstances, be segre-
gated from convicted persons, and accused juvenile persons shall be separated from
adults, and that penitentiary systems should strive to reform and rehabilitate pris-
oners. The text of article 10 thus suggests that “liberty” and “dignity” are values that
ought to inform the design of prison systems and correctional institutions—values
that are often said to be universal features of what it means to be human.
These terms invite inquiry into the moral principles to which they refer in dis-
putes where the meaning of article 10 is not clear. For example, is a person deprived
of her liberty when involuntarily committed to a psychiatric hospital? Are the
requirements of humane treatment and respect for the inherent dignity the same for
all States, or do they vary depending on the material resources available to States?
54
For a contemporary defense of human rights in these terms, see Headley, supra note 10.
55
For the view that the founding of the International Labour Organization and the international labor
rights that it spawned were partly aimed at addressing the “Bolshevist threat,” see François Maupain, New
Foundation or New Façade? The ILO and the 2008 Declaration on Social Justice for a Fair Globalization, 20
Eur. J. Int’l L. 823, 832 (2009).
56
International Covenant on Civil and Political Rights, Dec. 16, 1996, S. Treaty Doc. No. 95-20, 6 I.L.M 368
(1967), 999 U.N.T.S. 171, art. 1 (entered into force 1976).
Human Rights 67
Suggesting that liberty means more than freedom from arbitrary arrest and punish-
ment, the Human Rights Committee has stated that article 10(1) extends beyond
the criminal justice system to involuntary detention “elsewhere,” including hospi-
tals, psychiatric hospitals and detention camps.57 It has also stated that “treating
all persons deprived of their liberty with humanity and with respect for their dig-
nity is a fundamentally and universally applicable rule.”58 As a result, the minimum
requirements of article 10(1) do not vary depending on the “material resources avail-
able” in any given State. What the Committee’s views illustrate is that the scope and
content of article 10(1) cannot be determined solely by reference to the form and
manner in which it holds itself out to be a legal rule. They turn, in part at least, on
the meaning of the values that article 10(1) enshrines, which makes separating ques-
tions of law from questions of morality a delicate task.
One of the effects of article 10 thus may well be to protect universal features
of what it means to be human, depending on one’s understanding of liberty and
dignity. Article 10’s presence on the international legal register may also represent
a major moral victory, depending on one’s morality. It certainly was a significant
political victory for those responsible for its international legal existence, because
they succeeded in codifying its constituent norms in the form of an international
human right. But its legal purpose—the reason it is a human right in international
law—is not to protect universal features of our common humanity. Nor is it reduc-
ible to the intent of those responsible for its international legal existence. Its legal
purpose is to render illegal actions otherwise authorized by international law that
have the potential to harm interests that underlie it. As is the case with all civil and
political rights—indeed, all human rights—in international law, article 10 is not
so much a legal expression of the demands of abstract morality or the politics of its
production as it is an instrument that aims to do justice in the actual international
legal order in which we live.
Social and Economic R ights as Monitors

of Sover eignty’s Exercise
With the adoption of the International Covenant on Economic, Social, and

Cultural Rights in 1976, the pantheon of international human rights law opened its
CCPR General Comment No. 21, art. 10, para. 2, Oct. 4, 1992.
57
Id. For more detail on the Committee’s jurisprudence on article 10, see Alex Conte, Security of the Person, in
58
Defining Civil and Political Rights: The Jurisprudence of the United Nations Human
Rights Committee 106–10 (Alex Conte, Scott Davidson & Richard Burchill eds., 2004).
august doors to a broad set of social and economic rights that guarantee individuals
access to a set of basic social resources—such as food, housing, an adequate standard
of living, and healthcare—binding on States party to the Covenant’s terms.59 It con-
ceives of these rights as imposing obligations on States to take measures to secure
their protection.60 Many States appeared to quickly follow suit. The constitutions of
States drafted or amended after 1976 overwhelmingly contain at least some of the
set of social rights enshrined in the International Covenant. Social rights are now
so ubiquitous that they are a defining feature of the contemporary constitutional
order.61
It is tempting to understand the relationship between these international and
comparative domestic developments in causal terms. But if part of the project of
constitutional design is to protect a political community from its worst fears,62 then
different States entrench social rights for different reasons. Whereas drafters of the
Constitution of South Africa strove to ensure a parting of ways with the injustices
of apartheid, for example, central and eastern European States drafted constitutions
as projects of economic, social, and political transition from communism to market
economies. Social and economic rights in South Africa arguably seek to break with
the past,63 whereas social and economic rights in some central and eastern European
constitutions seek to maintain a link to the past.64 Although international human
rights instruments may have provided a common lexicon for their domestic
entrenchment, the presence of social and economic rights in any given domestic
constitutional order is more likely the function of its unique constitutional past and
projected future than of lofty developments in international human rights law.
Moreover, social and economic rights in constitutional orders have a more
secure footing in terms of legitimacy than their international legal counterparts.
Constitutional rights need not wear the mantle of universality to acquire legiti-
macy in domestic legal orders. They acquire a measure of legitimacy domestically
59
Adopted Dec. 16, 1966, 993 U.N.T.S. 3 (entered into force Jan. 3, 1976), arts. 11 (food, housing, adequate
standard of living), 12 (health), 13 (education).
60
Id. at art. 2. See also Report of the Fifth Session, General Comment No. 3 in U.N. ESCOR, 5th Sess., Supp.
No. 3, Annex 3, U.N. Doc. E/1991/23. E/C.12/1990/8 (1990).
61
See Courtney Jung, Ran Hirschl, & Evan Rosevear, Economic and Social Rights in National Constitutions,
62 Am. J. Comp. L. (2014).
62
Compare Cass Sunstein, Against Social Rights, 2 E. Eur. Const. Rev. 35, 36 (1993) (“constitutions
should … work against a nation’s most threatening tendencies”).
63
See generally Sandra Leibenberg, Socio-Economic Rights: Adjudication under a
Transformative Constitution (2010).
64
For some, this link is too strong. See András Sajó, How the Rule of Law Killed Hungarian Welfare Reform,
5 E. Eur. Const. Rev. 31 (1996); Wiktor Osiatynski, Social and Economic Rights in a New Constitution for
Poland, in Western Rights? Post-Communist Application 233–72 (András Sajó, ed., 1996).
Human Rights 69
to the extent they represent instruments that secure whatever particular vision of
social justice citizens wish to strive for as a defining feature of their political com-
munity. Different political communities opt for different visions of social justice,
and their constitutions accordingly vary in terms of their commitments to social
and economic rights. In H.L.A. Hart’s terms, social and economic rights in domes-
tic constitutions are “special rights” that “arise out of special transactions between
individuals or out of some special relationship in which they stand to each other.”65
In contrast, the dominant account of human rights in international law portrays
them, in Hart’s terms, as “general rights” that vest in men “qua men and not only
if they are members of some society or stand in some special relationship to each
other.”66 This account is a moral one, where the legitimacy of a human right rests on
its capacity to protect an essential and universal feature of our common humanity.
To the extent that they resemble special rights, social and economic rights thus
fit awkwardly into moral conceptions of human rights. As discussed in more detail
in the next chapter, the allegedly universal status of social and economic rights is
further compromised by the fact that some protect only some individuals and not
others, and make more sense in some national economies than others. Social and
economic rights also give rise to duties not easily assimilated by universal accounts
in that they often require States to legislate for their protection and do not rest on a
pre-institutional conception of what it means to be human. To the extent that they
are comprehended in universal terms, the positive obligations to which they give
rise typically end at State boundaries, whereas moral accounts tend to assume that
obligations that attach to human rights are universal in nature. And social and eco-
nomic rights, generally speaking, are understood as generating positive obligations
on States to secure access to such resources for their own citizens, and many moral
accounts falter when providing an explanation about why this should be so as a mat-
ter of international as opposed to domestic law.
These features of social and economic rights, as we have seen, also serve as reasons
why, for some, social rights belong to a different generation than civil and political
rights. But if one stops attempting to force the round peg of social and economic
rights into the square hole of universalism in an attempt to garner a modicum of
legitimacy for their presence on the international stage, the salience of their dif-
ferences with civil and political rights dissolves. In other words, if one sees short-
comings associated with the lack of fit between social and economic rights and
universalism not as revealing deficiencies in framing social and economic rights as
65
H.L.A. Hart, Are There any Natural Rights?, 64 Phil. Rev. 175, 183 (1955).
66
Id. at 188.
human rights but instead deficiencies in framing human rights as universal rights,
then what comes into stark relief is what these two classes of rights share. Social
and economic rights, like civil and political rights, mitigate the harm that States
can cause to the interests that underlie them in the exercise of sovereign power that
international law vests in collectivities it recognizes as States.
To be sure, the interests protected by social and economic rights are different
than those protected by civil and political rights. Social and economic rights pur-
port to provide individuals with access to resources. Civil and political rights speak
to the legal and political standing of individuals and their dignity, autonomy, and
equality. As a result, civil, political, social, and economic rights manifest distinctive
features. And the interests to which these features relate can be grouped into larger
normative categories that speak to different dimensions of the human condition.
But, as stated, conveying this fact by way of a metaphor of generations risks mystify-
ing this simple, albeit important, insight. More important, it fails to appreciate what
is common to both classes of rights, which is that their function in international law
is to address the fact that international law authorizes States to exercise sovereign
power in ways that threaten interests associated with both sets of rights.
Social and economic rights also fit awkwardly into political conceptions of human
rights. Recall that Charles Beitz offers a political conception of human rights
derived from the practice of human rights in global politics. Some social rights do
not fit that comfortably with such an account, given that practice, for Beitz, reveals
that human rights protect urgent individual interests against certain predictable
dangers associated with the exercise of sovereign power.67 Most, if not all, interna-
tional labor rights plausibly can be said to protect important interests, but not all of
these interests necessarily carry the sense of urgency that political accounts tend to
ascribe to human rights. The capacity to bargain collectively with one’s employer is
an important interest, but it is a stretch to characterize it as urgent.
This is not to discount the role that politics plays in the elevation of social and
economic rights to the status of international legal norms. Their presence in inter-
national law as human rights is the product of successful international political
projects. Social and economic rights enshrined in the Universal Declaration and
subsequently rendered binding in the International Covenant on Economic, Social,
and Cultural Rights are political achievements, not—as moral theorists would have
it—legal markers of moral theory working itself pure on the international stage. In
the words of Kerry Rittich, “[s]‌ocial rights are … artefacts of political struggles,
the product of a time- and place-specific consensus about the requirements of social
67
Beitz, supra note 31, at 102–17.
Human Rights 71
peace and economic progress.”68 And practices associated with international social
and economic rights, such as the monitoring of State compliance performed by the
U.N. Committee on Economic, Social, and Cultural Rights and regional bodies
such as the European Committee of Social Rights, confirm political conceptions of
social and economic rights as reasons for the international community to interfere
with the internal affairs of a State.
But the practices of legal and political actors in international economic institu-
tions like the International Monetary Fund and the World Bank also suggest an
increasingly marginal role for social and economic rights as instruments that aim
to secure access to basic goods. Current practice in these and related institutions
manifests what Rittich refers to as “a new regulatory consensus” in international
economic circles on the need to “increase the extent to which economic and social
status tracks market measures, market incentives and market success.”69 To the
extent that this consensus contemplates a role for social and economic rights, it is
one that merely secures access to social resources for only the least well-off in society
and on a temporary basis.70
If, as political accounts claim, we are to draw out the normative dimensions of
human rights from the practice of international political and legal actors, then this
consensus suggests a very limited normative role for social and economic rights in
international legal arenas. And to comprehend social and economic rights in this
way vests with normative significance the very regulatory consensus that social and
economic rights ought to monitor, and drains them of their capacity to critique
existing practices. The normative role that social and economic rights plays in inter-
national law is more than what practice reveals to be their discursive function in
international economic and political arenas.71 Their normative significance, like
that of civil and political rights, lies in the fact that they monitor the exercise of
sovereign power that international law otherwise vests with legal validity.
With labor rights serving as illustrations, the next chapter seeks to account
for social and economic rights in international law as instruments that miti-
gate the harm that States can cause to the bearers of such rights in the exercise of
68
Kerry Rittich, Social Rights and Social Policy: Transformations on the International Landscape, in
Exploring Social Rights: Between Theory and Practice 112 (Daphne Barak-Erez & Aeyal
M. Gross, eds., 2007).
69
Id. at 131, 133, respectively.
70
Id.
71
Compare Colm O’Cinneade, Bringing Socio-economic Rights Back within the Mainstream, 13 Revista
Europea de Derechos Fundamentales 259 (2009) (noting that both the European Committee of
Social Rights and the European Court of Human Rights do not consider that the existing state of State
practice shapes the content of the socioeconomic rights set out in the European Social Charter and the
European Convention on Human Rights, respectively).
sovereign power that international law vests in collectivities it recognizes as States.

International social and economic rights have both internal and external dimen-
sions. Internally, they reiterate some of the reasons the international legal order val-
ues sovereignty as a good that it distributes among the variety of legal actors that
it recognizes as States. Legally organizing political communities by vesting them
with sovereign power enables such communities to establish durable institutional
arrangements—markets, administrative agencies, wealth and income redistribution
mechanisms, social services, schools, and the like—to distribute basic social goods
to their members. International social and economic rights call on States to exercise
their sovereign power in ways that do not violate the social and economic rights of
their citizens.
Externally, international social and economic rights monitor the establishment
and operation of international institutions, such as the World Trade Organization
and the World Bank, and international instruments, such as multilateral and bilat-
eral trade and investment agreements, which determine the international legality of
domestic and transnational economic activities. In these contexts, social and eco-
nomic rights attend to the specific risks that processes of economic globalization
will threaten access to goods that satisfy a person’s basic needs, such as food and
shelter. Understood in external terms, international social and economic rights are
instruments that monitor these risks. The external obligations to which they give
rise obligate States, acting on the international stage, to minimize the chances of
these risks becoming realities. They call on States as international actors to design
international legal arrangements in ways that promote interests associated with the
social and economic rights of all.
4
IN T ER N AT IO N A L L AW AT WO R K
international law has long recognized that human rights vest in peo-
ple who work. Many point to the 1919 Treaty of Versailles, which established the
International Labour Organization (ILO), as the genesis of this tradition.1 The
Treaty of Versailles called for domestic protection of the right of association, rea-
sonable wages, an eight-hour day and a forty-eight-hour week, equal remuneration
for men and women, equal rights for migrant workers, and a prohibition against
child labor. To date, the ILO has adopted more than 180 conventions, more than
190 recommendations, and numerous resolutions articulating labor standards on,
for example, minimum wages, maternity leave, protection of agricultural workers,
social security, health and safety, and freedom of association. Two of its most promi-
nent conventions, Conventions 87 and 98, set out detailed requirements addressing,
respectively, the right to form a union and the right to bargain collectively.2
International labor rights received additional attention after the Second World
War. The Universal Declaration of Human Rights prohibits discrimination and
1
Treaty of Versailles, 225 Parry 188, pt. XIII (1919). For antecedents of ILO regulation, see Michael
Huberman, International Labor Standards and Market Integration before 1913: A Race to the Top? (unpub-
lished paper presented to the Conference on the Political Economy of Globalization: Can the Past
Inform the Present?, Trinity College, Dublin, Aug. 29–31, 2002) (on file with author); John Follows,
Antecedents of the International Labour Organization (1951).
2
ILO, Convention concerning Freedom of Association and Protection of the Right to Organise (entered
into force July, 4, 1950); ILO, Convention concerning the Application of the Principles of the Right to
Organise and to Bargain Collectively (No. 87) (entered into force July, 18, 1951).
73
slavery and enshrines a host of procedural and substantive rights that protect work-
ers from the arbitrary exercise of power at work. The International Covenant on
Civil and Political Rights guarantees the right to freedom of association, including
the right to form and join a trade union, and also prohibits slavery and discrimi-
nation.3 The International Covenant on Economic, Social and Cultural Rights
enshrines a wide range of labor rights, including rights to work, fair wages and equal
remuneration for work of equal value, safe and healthy working conditions, as well as
rights to join a trade union, bargain collectively, and strike. It also obligates States to
provide technical and vocational guidance and training programs to workers.4 The
Convention on the Elimination of All Forms of Discrimination Against Women
obligates States to take measures to eliminate discrimination against women in
employment.5 The Convention on the Rights of the Child obligates States to enact
minimum age legislation and to provide for appropriate regulation of the hours and
conditions of employment to protect children from economic exploitation.6
Regional initiatives provide labor rights with an additional level of international
legal protection. The European Social Charter enshrines a wide range of labor stan-
dards with which all EU countries must comply.7 Within the European Union, the
Charter of Fundamental Rights enshrines freedom of assembly, including rights
to form a trade union, to bargain collectively, and to strike,8 and the European
Commission possesses the authority to issue directives on labor standards appli-
cable to all member countries.9 European trade liberalization and integration occur
hand-in-hand with harmonization of social policies, including labor standards,
but the EU also involves certain redistributive mechanisms between countries. In
North America, although the North American Free Trade Agreement10 does not
call for regional harmonization of labor standards, it does have a side agreement
3
International Covenant on Civil and Political Rights, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered
into force Mar. 23, 1976).
4
International Covenant on Economic, Social and Cultural Rights, U.N. Doc. A/6316 (1966), 993 U.N.T.S.
3 (entered into force Jan. 3, 1976).
5
Convention on the Elimination of All Forms of Discrimination against Women, U.N. Doc. A/34/46
(1979), 1249 U.N.T.S. 14 (entered into force Sept. 3, 1981).
6
Convention on the Rights of the Child, U.N. Doc. A/44/49 (1989), 1577 U.N.T.S. 43 (entered into force
Sept. 2, 1990).
7
European Social Charter (Revised), E.T.S. 163, (entered into force July 1, 1999).
8
European Union, Charter of Fundamental Rights of the European Union, Oct. 26, 2012, 2012/C 326/02,
arts. 12, 27 and 28. For a thorough account of the origins of these provisions, see Bernard Ryan, The
Charter and Collective Labour Law, in Economic and Social Rights under the EU Charter of
Fundamental Rights 67–90 (T.K. Hervey & J. Kenner eds., 2003).
9
For detail, see Anne Davies, Should the EU Have the Power to Set Minimum Standards for Collective Labour
Rights in the Member States?, in Labour Rights as Human Rights 177–213 (Philip Alston ed., 2005).
10
North American Free Trade Agreement, 32 I.L.M. 289, 605 (1993).
International Law at Work 75
on labor that calls on parties to enforce existing domestic labor laws, and provides
for a dispute resolution mechanism for persistent patterns of abuse in the areas of
occupational health and safety, child labor, and minimum wage.11
Given that labor rights receive so much international legal attention, it is worth
asking why. At the risk of reducing the rich diversity of perspectives on this ques-
tion, scholarship reveals two dominant ways of answering it, their difference marked
by the way they link international legal protection of labor rights to their status in
domestic legal orders. The first holds that international labor rights are necessary to
advance the goals of domestic labor law. Accounts of the goals of domestic labor law
abound, grounded in procedural and substantive values as diverse as efficiency, dem-
ocratic self-government, human dignity, equality, and fairness in the institution of
work. From this perspective, international labor rights provide a floor of protection
that prevents international competition from undermining the goals that domestic
labor law seeks to advance. Grounded in a political conception of human rights,
this approach notes that the founding of the ILO was fueled in part by concerns of
States that domestic labor market regulation would increase the costs of production
and create competitive disadvantages as against States that chose not to protect the
rights of workers. International protection of labor rights, on this view, is instru-
mental to the successful operation of domestic labor law regimes.
The second approach sees labor rights as specific instantiations or derivative of
more general human rights, which in turn speak to and protect universal features of
our common humanity. Although what labor rights might entail in terms of labor
market regulation might vary from State to State depending on the nature of their
national economies, at a certain level of abstraction, they possesses universal value as
instruments that protect essential features of what it means to be human. This view,
grounded in a moral conception of human rights, also sees the relationship between
domestic and international labor rights in instrumental terms. But whereas the first
claims that international protection is necessary to ensure domestic protection, the
second claims the inverse, namely, that domestic protection is necessary to ensure
international protection. On this approach, domestic labor rights, not their inter-
national counterparts, are understood in instrumental terms, as necessary to tailor
what international labor rights, understood in intrinsic and universal terms, require
in different domestic contexts.
Both approaches capture important truths about the relationship between
domestic and international protection of labor rights. However, this chapter argues
that both fail to grasp the legal significance of international labor rights. The first
11
North American Agreement on Labor Cooperation, 32 I.L.M. 1499, art. 27 (1993).
wrongly presupposes the existence of an international economic order made up of

nationally bounded economies primarily dedicated to the mass production of goods
and services, and it falters in the face of allegations of protectionism. The second
approach fails to provide a persuasive account that the actual content of interna-
tional labor rights relates to universal features of what it means to be human. Both
miss the true normative significance of international labor rights, which lies in their
capacity to monitor the structure and operation of the international legal order.
Labor R ights as Instrumental R ights
Labor law, in countless domestic contexts, has long sought to promote just condi-
tions of employment through a combination of rules premised on freedom of con-
tract and general legislative imperatives. Rules premised on freedom of contract
enable employers and employees, acting either individually or collectively, to negoti-
ate the terms and conditions of employment. General legislative imperatives, such as
minimum wage legislation, seek to guarantee a basic set of entitlements to employ-
ees regardless of the respective bargaining power of the parties. While their relative
influence varies dramatically from country to country, the combination of contrac-
tual freedom and a minimum floor of worker entitlements amounts to much of
what constitutes domestic labor law in most, if not all, jurisdictions in the world.12
Labor law also tends to imagine employers and employees as occupying radi-
cally distinct roles in processes of production. Employers are treated as legal actors
responsible for the allocation of capital and labor. Employees are held responsible
for supplying the labor necessary for production to occur. In light of this rough
division of responsibilities, labor law seeks to enable the parties themselves to deter-
mine the terms and conditions of their ongoing relationship against a differentiated
background set of general legal entitlements. Employers tend to benefit from a back-
ground set of proprietary and managerial entitlements, whereas employees typically
enjoy a set of legislative entitlements relatively immune from employers’ superior
bargaining power.
Confronted by the sheer economic and political power of labor movements, States
became increasingly committed to this form of domestic labor market regulation
Compare Otto Kahn-Freund, A Note on Status and Contract in British Labour Law, 30 Mod. L. Rev. 635,
12
640 (1967) (“the labour law of Great Britain shares with that of the other nations in our orbit of civilisation
two essential jurisprudential features: it is based on the contractual foundation of the obligation to work
and of the obligation to pay wages, and it is at the same time permeated by a tendency to formulate and to
enforce an evergrowing number of imperative norms for the protection of the worker”).
after the First World War. The Russian revolution of 1917 marked the beginning of
the spread of communism in the twentieth century. Economic and political elites
in numerous European and North American jurisdictions moved quickly to rein in
the radical potential of labor movements in their midst. States enacted legislation
protecting workers from the superior bargaining power of their employers by guar-
anteeing workers certain rights, addressing matters such as minimum wages and
maximum hours and rights to form a union, bargain collectively, and strike in order
to improve their terms and conditions of work.
Some argue that domestic protection of labor rights was a preemptive strategy
by capital and States to blunt the threat of communism.13 A related view is that
domestic protection enabled States to coopt the power of labor by channeling its
political force into regularized, rule-governed patterns.14 Other accounts assume a
normative stance by either ascribing an altruistic agenda to those responsible for
reform or implicitly if not explicitly disputing the proposition that legislative intent
exhausts the normative significance of domestic labor rights. Such accounts char-
acteristically focus on how labor rights promote procedural and substantive values
such as democratic self-government,15 human dignity,16 equality,17 and fairness18 in
the institution of work. Still others claim that at least certain kinds of labor market
regulation promote economic efficiency by correcting market failures and reducing
transaction costs.19
13
See, e.g., Roy J. Adams, Industrial Relations Under Liberal Democracy: North America
in Comparative Perspective 21 (1995) (attributing labor law reforms in part to the fact that “[b]y the
turn of the twentieth century, it was no longer entirely improbable that the rising labor movement would
sweep away capitalism”).
14
See, e.g., Gabriel Kolko, The Triumph of Conservatism 3 (1963) (most labor law reforms were sup-
ported by major corporate interests because they were necessary to “rationalize … the economy and the
larger political and social spheres in a manner that … allow[ed] corporations to function in a predictable
and secure environment permitting reasonable profits over the long run”).
15
See, e.g., Karl E. Klare, Workplace Democracy & Market Reconstruction: An Agenda for Legal Reform, 38
Cath. U. L. Rev. 1, 3 (1988–1989) (“the preeminent role and guiding principle of labor law should be to
expand and enhance democracy at every level of the experience and organization of work”).
16
See, e.g., David M. Beatty, Labour is not a Commodity, in Studies in Contract Law 318–26 (B. Reiter
& J. Swan eds., 1980) (defending labor market regulation because of the central role employment plays in
securing “our self-respect and self-esteem”).
17
See, e.g., Kahn-Freund’s Labour and the Law 18–27 (Paul Davies & Mark Freedland eds., 3d
ed. 1983) (labor law redresses the inequality of bargaining power between employers and employees at
common law).
18
See, e.g., Paul C. Weiler, Reconcilable Differences: New Directions in Canadian Labour
Law 30 (1980) (“collective bargaining tries to subject the employment relationship to ‘the rule of law’ ”).
19
See, e.g., R.B. Freeman & J.L. Medoff, What Do Unions Do? 3–25 (1984) (detailing how mandated
collective bargaining overcomes a host of market failure and transaction cost problems).
The key point here, however, is not why States were committed to the domestic
protection of labor rights but instead that, whatever the goals of domestic labor
law were, they were the reasons why States sought international protection of labor
rights. Without international protection, domestic protection would fail. Capital
would relocate to jurisdictions that offered more labor market flexibility, and not
invest in jurisdictions that required extensive worker protection. Races to the bot-
tom would ensue as States would engage in regulatory competition to attract capi-
tal, direct investment, and employment opportunities. If labor costs were included
in the range of factors that comprise a State’s competitive advantage in international
regulatory competition, there would be relentless pressure to relax domestic protec-
tion of workers’ rights, which would undermine the fragile truces between labor
and capital that domestic protection possessed the potential to produce.
Moreover, it is now commonplace to note that processes associated with eco-
nomic globalization—the strengthening of international economic interde-
pendence associated with enhanced technological, commercial, and financial
integration of national economies—is redefining traditional geographical and
political barriers to the production, placement, and sale of goods and services.
With States gradually dismantling tariff barriers and actively seeking new forms
of direct foreign investment, corporations are said to enjoy an unparalleled degree
of capital mobility. According to some, the “exit options of capital have increased
strongly and global competition has emerged, making state power over national
production and finance correspondingly weaker.”20 In such an environment, the
traditional model of domestic labor law that weds individual or collective contrac-
tual freedom with a minimum floor of worker entitlements increasingly appears to
create incentives on firms to reduce labor costs by relocating to jurisdictions with
less protective labor regulation.
The normative significance of international labor rights, from this perspective,
lies in their capacity to protect the domestic rights of workers from international
competition. International labor rights remove competition over labor costs from
the regulatory and managerial calculus. In an ideal world of universal State compli-
ance, firms would not be able to reduce labor costs by investing in or relocating to
jurisdictions with relatively lower labor costs than others. By establishing a floor
set of entitlements, international labor rights constitute “between employers and
countries, a code of fair competition.”21 International protection of labor rights, on
this view, is instrumental to the successful operation of domestic labor law regimes.
20
Jonathan Perraton, David Goldblatt, David Held & Anthony McGrew, The Globalization of Economic
Activity, 2 New Pol. Econ. 257 (1997).
21
N. Valticos & G. von Potobsky, International Labour Law para. 10 (2d ed. 1995).
This understanding of the relationship between international and domes-

tic labor rights helps to explain the motivations of States in the establishment of
the International Labour Organization in 1919. First established by the Treaty of
Versailles as a parallel organization to the League of Nations, then as a specialized
agency affiliated with the United Nations, the ILO has been the preeminent inter-
national body concerned with the promotion and enforcement of international
labor rights and standards. It operates through tripartite mechanisms that include
State and non-State actors in the formulation of international law and that encour-
age transnational alliances among workers and firms. It identifies international
labor rights and standards by enacting recommendations, resolutions, declara-
tions, and conventions. Recommendations and resolutions typically are aspirational
in that they set standards to which States ought to adhere as a matter of interna-
tional and domestic law. A declaration is a “formal and solemn instrument suitable
for rare occasions when principles of lasting importance are being enunciated.”22
Conventions are binding at international law on those States that have ratified their
terms; as is the case with all international law, whether conventions are domestically
binding depends on the domestic law of individual States.
In addition to confronting “the risk of revolutionary agitation and contagion”
created by “the Bolshevist threat,”23 the founding of the ILO was a response to con-
cerns by States that domestic protection of labor rights would increase the price of
production and create competitive disadvantages as against States that chose not
to legislate to protect the interests of workers. Having accepted—in some if not all
cases, grudgingly—the social justice of domestic labor standards and collective bar-
gaining law, States looked to the ILO to ensure that domestic protection of work-
ers did not produce international competitive disadvantage. 24 The Constitution of
the ILO gives voice to this expectation, declaring that “the failure of any nation to
22
Memorandum of the U.N. Office of Legal Affairs, E/CN.4/L610 (1962).
23
Francois Maupain, New Foundation or New Façade? The ILO and the 2008 Declaration on Social Justice for a
Fair Globalization, 20 Eur. J. Int’l L. 823, 832 (2009). See also Robert W. Cox, ILO: Limited Monarchy, in
The Anatomy of Influence: Decision Making in International Organization 103 (Robert
W. Cox, Harold K. Jackson et al. eds., 1973) (“The ILO was Versailles’s answer to Bolshevism”).
24
Ernest B. Haas, Beyond the Nation-State: Functionalism and International
Organization 142 (1964). See also Paul O’Higgins, citing Follows, Antecedents of the ILO,
supra note 1, who points to “fear of social disorder and revolution” as another reason for the adop-
tion of international labor standards. Paul O’Higgins, The Interaction of the ILO, the Council of Europe
and European Union Labour Standards, in Social and Labour Rights in a Global Context
56 (B. Hepple ed., 2002). See also Louis Henkin, International Law: Politics, Values and Functions, 216
Collected Courses of the Hague Academy of International Law 13, 208 (vol. 4, 1989) (stat-
ing that international labor rights initially stood as “capitalism’s defence against the spectre of spreading
socialism” and that they protected the interests of States “in the conditions of labour in countries with
which they competed in a common international market”).
adopt human conditions of labor is an obstacle in the way of other nations which
desire to improve the conditions in their own country.”25
The ILO Constitution further calls on member States to commit themselves to
various forms of domestic protection of workers’ rights, including the establishment
of a maximum working day and week; regulation of labor supply; the prevention of
unemployment and provision of an adequate living wage; the protection of workers
against sickness, disease, and injury arising out of employment; the protection of
children, young persons, and women; provision for old age and injury; the protec-
tion of workers when employed in countries other than their own; the principle of
equal remuneration for work of equal value; recognition of the principle of freedom
of association; and the organization of vocational and technical education.26 Failure
to do so would “produce unrest so great that the peace and harmony of the world
are imperiled.”27
Although it is relatively clear that those responsible for the creation of the ILO
viewed international labor rights, in part at least, 28 as instruments necessary to shield
domestic protection of workers from international competition, conceiving of them
in these terms today suffers from several flaws. First, it presupposes an international
economic order comprised of nationally bounded economies primarily dedicated
to the mass production of goods and services. This was, in fact, the international
economic order that existed when the ILO was created—at least among most States
responsible for its creation. It was a time of rising unionism, standardized employ-
ment relations, direct State involvement in a wide range of economic activities, and
various forms of social corporatism. Mass production was the dominant form of
productive relations under the sovereign power of States responsible for the estab-
lishment of the ILO.29
Mass production typically requires a centralized, hierarchical, and vertically inte-
grated firm that enables the separation of management and execution of production,
the disaggregation of work into specific components and fragmented tasks, and
the establishment and maintenance of a workforce governed by narrowly defined
job classifications.30 On this model, to retain workers and minimize training and
25
ILO Constitution, adopted by the Peace Conference Apr. 1919, 15 U.N.T.S. 40, third preambular paragraph.
26
ILO Constitution, second preambular paragraph.
27
28
See Brian Langille, What Is International Labor Law For?, 3 L. & Ethics Hum. Rts. 47 (2009) (advancing
an alternative account of the ILO’s mission grounded in the statement in its Constitution that “universal
and lasting peace can be established only if it is based on social justice”).
29
Haas, supra note 29, at 369.
30
For insightful discussions of this model of production, known as fordism, see David Harvey, The
Condition of Post-Modernity: An Inquiry into the Origins of Cultural Change 125–72
(1989); Charles F. Sabel, Work and Politics: The Division of Labor in Industry 31–77 (1982).
monitoring costs, employers establish internal labor markets in which seniority pro-
vides advancement and offer deferred compensation schemes by which workers earn
less than their marginal product early in their careers and more later on in their
careers.
In such an environment, domestic protection establishes a floor of entitlements
by general legislative imperative and authorizes the parties, either individually or
collectively, to jointly determine the remaining detailed rules governing their ongo-
ing relationship against a background distribution of property and contractual
rights. Conceiving of the legal significance of international labor rights in terms of
their capacity to protect these forms of domestic regulatory initiatives thus presup-
poses a model of labor market regulation that operated or plausibly could operate
in certain national economies and not others. It requires industrialized States to
maintain domestic protection of worker rights to offset domestic injustices primar-
ily associated with mass production, and requires industrializing States to introduce
similar measures for similar reasons.
It is one thing for a State to commit to international standards that approximate
its domestic regulatory commitments to workers. It is another for a State to commit
to international standards that approximate the domestic regulatory commitments
of other States. To require developing countries, newly developed countries, coun-
tries with inconsistent records of development, and countries marred by civil and
political strife to provide legal and political resources that match the domestic regu-
latory commitments to workers in developed States to protect such commitments
from international competition is to veer uncomfortably close to protectionism.
Given the increase of the costs of production associated with such reform, it would
have the effect of protecting markets in developed States from foreign competition
from developing States.
This conception of international labor rights tempers its protectionist implica-
tions by implying that races to the bottom will adversely affect all States because
they threaten international peace and security. The ILO’s Constitution itself
warned that if States fail to protect workers, this will result in “injustice, hardship
and privation to large numbers of people as to produce unrest so great that the peace
and harmony of the world are imperilled.”31 Like all races, however, where you end
up depends in part on where you start, and a deregulatory race to the bottom has
more of a negative impact on employers and employees in industrialized States
than those in non-industrialized States. Were such races to occur, labor standards
in industrialized States would fall, whereas labor standards in non-industrialized

31
States would simply not rise. Capital relocating from the former to the latter would
cause economic dislocation in industrialized States but generate economic growth
in industrializing States.
Second, evidence suggests that firms simply do not behave in ways that this
account of international labor rights assumes. The extent to which capital actually
enjoys enhanced geographical mobility in light of economic globalization varies dra-
matically across firms, industries, regions, and States. In the words of Colin Crouch,
“the mobility of productive capital in the sense of factories, distribution chains and
points of service delivery is in practice far more restricted than the theoretical con-
cept of unrestricted capital movements implies.”32 Labor costs are but one of many
factors that firms take into account when making decisions about where to engage
in production. As a result, States with lax labor standards do not necessarily gain
a competitive advantage against States with robust worker protection laws. Brian
Langille puts it bluntly: “there is no evidence of gains in either trade performance or
in foreign direct investment associated with lower labor rights.”33
Third, not only does this account of labor rights not speak adequately to the needs
and interests of workers in non-industrial contexts, but it also is increasingly out of
step with the economies from which it was forged. The national economies that
it presupposes have undergone dramatic transformations in recent years. Through
teamwork, participatory production, and atypical forms of employment, flexible
forms of production are emerging in industrialized economies that tend to blur
boundaries within firms, producing new kinds of workers not easily comprehended
by traditional legal categories, including those who benefit from flexibility, those
for whom flexibility means disposability, and those who do not possess the requisite
skills or opportunities to participate in the opportunities that flexible production
provides.34 Through contracting, subcontracting, outsourcing, and other forms of
32
Colin Crouch, The Globalized Economy: An End to the Age of Industrial Citizenship?, in Advancing
Theory in Labour Law and Industrial Relations in a Global Context 155 (Tom Wilthagen
ed., 1998).
33
Langille, supra note 28, at 70. See also Robert J. Flanagan, Labor Standards and International Competitive
Advantage, in International Labor Standards: Globalization, Trade and Public Policy 17
(Robert J. Flanagan & William B. Gould eds., 2003) (there is “no evidence that countries with lower labor
standards gain competitive advantage in international markets”). In support of this conclusion, Langille
cites two studies by the Organisation for Economic Cooperation: OECD, Trade, Employment and
Labour Standards: A Study of Core Workers’ Rights and International Trade (1996)
and OECD, International Trade and Core Labour Standards (2000). He also cites extensive
scholarship in support of this proposition. Langille, supra note 28, at 70 n.45.
34
See Kerry Rittich, Feminization and Contingency: Regulating the Stakes of Work for Women, in Labour
Law in an Era of Globalization: Transformative Practices & Possibilities 117–36 (Joanne
Conaghan, Michael Fischl & Karl Klare eds., 2002) (theorizing the effects of globalization and contingency
on women workers).
corporate and institutional collaboration, flexible production also decentralizes

decision-making and often blurs boundaries between firms, giving rise to entities
designed to be easily redesigned.35
As a result, firms are promoting employment relations and transforming into
entities that confound the application of legal categories, such as employer and
employee, that are essential to the successful application of domestic labor law
regimes. In the words of Manuel Castells, who “are the owners, who the producers,
who the managers, and who the servants, becomes increasingly blurred in a pro-
duction system of variable geometry, of teamwork, of networking, outsourcing, and
subcontracting.”36 Flexible forms of production simultaneously destabilize labor
law’s capacity to attach rights and responsibilities to employers and employees while
generating distributional consequences that pose dramatic challenges to the capac-
ity of labor law to promote justice at work. Characterizing the legal significance of
international labor rights in terms of their instrumental relationship to traditional
forms of domestic labor law risks grounding them in potentially anachronistic and
ineffectual forms of domestic labor market regulation.
Finally, if the purpose of international labor rights is to protect domestic forms
of labor market regulation from the corrosive effects of international competi-
tion, then their normative significance lies simply in their instrumental capacity to
secure just relationships between employers and employees in a domestic context.
On this account, domestic labor law does the heavy normative lifting by regulat-
ing labor markets to protect certain interests of workers from the power of capital.
International labor rights merely provide a backstop by making it difficult for States
to engage in regulatory competition and for corporations to obtain a competitive
advantage from the cost of labor in another jurisdiction. The structure and opera-
tion of the international legal order, as opposed to the structure and operation of
domestic legal arrangements, on this account, are not relevant to the nature and
purpose of international labor rights. What this approach fails to grasp is that the
international legal order itself produces certain kinds of injustices that cannot be
mitigated simply by international affirmations of domestic initiatives that require
employers to treat its employees within a given jurisdiction more fairly.
35
See generally Charles Sabel, Moebius-Strip Organizations and Open Labor Markets: Some Consequences of
the Reintegration of Conception and Execution in a Volatile Economy, in SocialTheory for a Changing
Society 25 (Pierre Bourdieu & James S. Coleman eds., 1991). On the rise of decentralized decision-making,
see Susan Helper, John Paul MacDuffie & Charles Sabel, Pragmatic Collaborations: Advancing Knowledge
While Controlling Opportunism, 9 Indus. & Corp. Change 443 (2000). For skepticism about a
shift from fordism to post-fordism, see Andrew Sayer & Richard Walker, The New Social
Economy: Reworking the Division of Labor 191–223 (1992).
36
Manuel Castells, The Information Age, 1 The Rise of the Network Society 475 (1996).
Labor R ights as Universal R ights
Vying with the view that the international protection of labor rights is necessary
to ensure domestic social justice is an alternative conception of international labor
rights that defines their international significance in universal terms. Toward
the end of the Second World War, ILO delegates issued the 1944 Declaration of
Philadelphia, which restated the aims and the objectives of the ILO in universal
terms. It declared that “all human beings, irrespective of race, creed or sex, have the
right to pursue both their material well-being and their spiritual development in
conditions of freedom and dignity, of economic security and equal opportunity.”
It also stated that “the attainment of the conditions in which this shall be possible
must constitute the central aim of national and international policy,” and concluded
that “the principles set forth in this Declaration are fully applicable to all peoples
everywhere.” The 1944 Declaration was “subsequently incorporated as the central
article of faith in the amended ILO Constitution.”37
The conception of international labor rights at the heart of the 1944 Declaration,
labor rights as specific instantiations of universal human rights, set the stage for
their inclusion in the broader register of civil, political, social, and economic rights
protected and promoted by international and regional human rights institutions.
From its post-war, formal inception as a distinct field of law, international human
rights law has regarded labor rights as human rights that merit international legal
protection. The architects of the field regarded labor rights as protecting univer-
sal elements of what it means to be a human being in the face of sovereign power.
This vision of labor rights differs from the conception of labor rights that initially
launched their international protection under the auspices of the ILO. Originally
understood, international labor rights operated primarily in instrumental terms,
working to protect the domestic rights of workers from international competition.
On a universal account, the normative significance of international labor rights lies
in the universality of the interests they seek to protect.
At the heart of this idea of labor rights is the Universal Declaration of Human
Rights of 1948, a unanimous resolution of the U.N. General Assembly in December
of the same year. The Universal Declaration enshrines freedom of association; rights
to work, form a union, and bargain collectively; just and favorable conditions of
work; protection against unemployment; equal pay for equal work; just and favor-
able remuneration; reasonable limitation of working hours and periodic holidays
with pay; and an adequate standard of living. The ILO’s Committee of Experts
Haas, supra note 24, at 155.

37
regards ILO Conventions as instruments that elaborate and translate into binding
terms the nature and scope of freedom of association as guaranteed by the Universal
Declaration of Human Rights. In the words of the Committee of Experts, “the
ILO’s standards on human rights along with the instruments adopted in the UN
and in other international organizations give practical application to the general
expression of human aspirations made in the Universal Declaration, and have trans-
lated into binding terms the principles of that noble document.”38
Many if not all of the rights enshrined in the Universal Declaration are also
rendered binding in conventional international law through and by several trea-
ties overseen and monitored by United Nations institutions. Each of these treaties
establishes a specialized body charged with the oversight of treaty performance,
and imposes regular reporting obligations on States parties to promote a dialogue
between each State and the relevant treaty body, in the expectation that such mea-
sures will lead to progressive improvements in compliance. Some of these treaties
allow for individual complaints to be heard by a treaty-monitoring body that pos-
sesses the authority to express its views on whether a State is in breach of its treaty
obligations.39
Of these U.N. treaties, two specify in greater detail what freedom of
association—a right that is said to vest in all of us—requires in the context of work.
The first, the International Covenant on Economic, Social, and Cultural Rights,
came into force in 1976. In addition to enshrining rights to work, fair wages and
equal remuneration for work of equal value, and safe and healthy working condi-
tions, and obligating States to provide technical and vocational guidance and train-
ing programs to workers, the ICESCR enshrines rights to form a union, bargain
collectively, and strike. Article 8(1)(a) of the ICESCR protects the right of workers
to form and join trade unions for the promotion and protection of their economic
and social interests. Article 8(1)(b) provides that trade unions have the right to form
national or international federations. Article 8(1)(c) enshrines the right of trade
unions to function freely. Article 8(1)(d) guarantees the right to strike. In recent
years, the Committee on Economic, Social, and Cultural Rights has consistently
held that the right of a trade union to function freely, as guaranteed by article 8(1)(c),
includes a right to bargain collectively. In its 2001 Concluding Comment on Korea,
for example, the CESCR reminded Korea that “the provisions of article 8 guarantee
38
ILO, Report of the Committee of Experts on the Application of Conventions and Recommendations:
General Report and Observations Concerning Particular Countries, Report III (Part 1A), International
Labour Conference, 86th Sess., Geneva, at 17, para. 18 (1998).
39
See generally The Future of UN Human Rights Treaty Monitoring (Philip Alston & James
Crawford eds., 2000).
for all persons the right to freely form and join trade unions, the right to engage
in collective bargaining through trade unions for the promotion and protection of
their economic and social interests, as well as the right to strike.”40 Similarly, in its
2001 Concluding Comment on France, the CESCR called on France to ensure that
its requirement that trade unions demonstrate “representativity” does “not impede
the right of trade unions to participate freely in processes such as collective bargain-
ing, irrespective of their size, in accordance with article 8(c) of the Covenant.”41
The second U.N. treaty of relevance is the International Covenant on Civil
and Political Rights.42 The ICCPR is accompanied by a Protocol that autho-
rizes the U.N. Human Rights Committee to hear complaints from individuals
or governments regarding the failure of signatory States to effectively protect the
rights enshrined in the Covenant. Article 22(1) of the ICCPR provides that
“[e]‌veryone shall have the right to freedom of association with others, including the
right to form and join trade unions for the protection of his interests.” The armed
forces and police are not protected by this provision. Restrictions of freedom of
association may be imposed for reasons of “national security or public safety, public
order, the protection of public health or morals or the protection of the rights and
freedoms of others.”
Whether due to reluctance or a lack of opportunity, the Human Rights
Committee initially had little to say about freedom of association in the context of
work. In 1986, in JB v. Canada, the Human Rights Committee assessed whether a
legislative prohibition on striking public employees constitutes a breach of article
22 of the ICCPR. In its decision, the Committee expressed no view on whether
article 22 protects the right to bargain collectively, but it stated that article 22 does
not protect a right to strike.43 Its reasons were sparse. The Committee subsequently
reversed itself and concluded that article 22 does protect a right to strike. In its 1999
40
E/C.12/1/Add.59 (09-05-2001), para. 39.
41
E/C.12/1/Add.72, para. 29. See also Concluding Comment on Ireland, E/C.12/1/Add.77 (10-05-2002),
para. 29 (“The Committee recommends that the State party adequately protect in law and practice trade
unions’ rights to conduct collective bargaining”); Concluding Comment on Zimbabwe, E/C.12/1/Add.12
(15-05-1997), para. 20 (“The Committee recommends that a constitutional reform be undertaken to allow
public servants, teachers and nurses to organize in unions, in keeping with article 8 of the Covenant, and
to enable them to bargain collectively and to strike”); Concluding Comment on Libyan Arab Jamahiriya,
E/C.12/1/Add.15 (16-05-1997), para. 22 (recommending the protection of “the right to strike and the right
to free collective bargaining”); Concluding Comment on Portugal, Macau, E/C.12/1/Add.9, (06-12-1996)
para. 20 (“The Committee urges the Portuguese Administration to promote appropriate policies which
would facilitate the right to form labour unions, the right to engage in collective bargaining and the right
to strike”).
42
There are currently 148 States parties to the ICCPR.
43
J.B. et al. v. Canada, Communication No. 118/1982, U.N. Doc. Supp. 40 (A/41/40) at 151, CCPR/C/
D/R.26/118, Decision of July 18, 1986.
Concluding Comment on Chile’s periodic report on compliance with the ICCPR,

for example, it expressed “serious concerns” over a Chilean law that imposed a gen-
eral prohibition on “the right of civil servants to organize a trade union and bargain
collectively, as well as their right to strike, … under article 22 of the Covenant.”44
The Human Rights Committee has also recently made it clear that article 22 pro-
tects the right to bargain collectively. In its 1999 Concluding Comment on Chile,
for example, the Committee advised Chile to “review the relevant provisions of laws
and decrees in order to guarantee to civil servants the rights to join trade unions
and to bargain collectively, guaranteed under article 22 of the Covenant.”45 In its
1999 Concluding Comment on Costa Rica, the Committee noted “with concern
that freedom of association, including the right to collective bargaining, is not
adequately respected in conformity with article 22 of the Covenant.”46 In its 1999
Concluding Comment on Canada, the Committee stated that Canada “has not
secured throughout its territory freedom of association,” noting in particular that
Ontario’s “workfare” program, which prohibits participants “from joining unions
and bargaining collectively, affects implementation of article 22.”47
Like the conception of labor rights that underpinned their emergence in interna-
tional law, universal accounts of labor rights also posit an instrumental relationship
between their international and domestic protection. But whereas the first account
sees international labor rights as necessary to secure their domestic counterparts
44
CCPR/C/79/Add.104. (30-03-1999), para. 25. See also CCPR/CO/80/LTU (01-04-2004) (Lithuania),
para. 18 (expressing concern that Lithuania’s new collective bargaining regime “is too restrictive in pro-
viding, inter alia, for the prohibition of strikes in services which cannot be considered as essential, and
the requirement of a two thirds majority to call a strike, which may amount to a violation of article 22”);
CCPR/C/79/Add.73 (07-11-1996) (Germany) (“The Committee is concerned that there is an absolute ban
on strikes by public servants who are not exercising authority in the name of the State and are not engaged
in essential services, which may violate article 22 of the Covenant”). Article 22(4), preventing States from
relying on the guarantee of freedom of association to prejudice rights enshrined in ILO Convention No.
87, also suggests that JB v. Canada no longer is a valid interpretation of article 22. Before 1986, the ILO
had intimated that Convention No. 87 protects a right to strike as an incident of freedom of association.
See ILO, General Survey, 1994 (a “general prohibition of strikes constitutes a considerable restriction of the
opportunities open to trade unions for furthering and defending the interests of its members (article 10 of
Convention No. 87) and of the right of trade unions to organize their activities”). After 1986, its position
became clearer. See, e.g., General Survey, 1994, para. 179 (“the right to strike is an intrinsic corollary of the
right of association protected by Convention No. 87”).
45
CCPR/C/79/Add.104. (30-03-1999), para. 25.
46
CCPR/C/79/Add.107, para. 17. Although it has not been noted expressly by the HRC, article 22(4), to
the extent it supports an interpretation of article 22 that is not inconsistent with rights guaranteed by ILO
Convention No. 87, also supports the conclusion that article 22 protects collective bargaining. As noted,
the ILO Committee of Freedom of Association has held that freedom of association as guaranteed by
Convention No. 87 protects a right to bargain collectively.
47
CCPR/C/79/Add.105 (06-04-1999), para. 17.
from international competition, the second suggests the inverse, that domestic pro-
tection is necessary to ensure international protection. On this approach, domestic
procedural rights to form a union, bargain collectively, and strike are necessary to
secure freedom of association for all workers, and domestic substantive rights, such
as a right to a minimum wage and maximum hours, are linked to other universal
norms, such as freedom and equality. This approach explains the existence of some
international labor rights, like those that vest in public sector workers, in ways that
an instrumental conception—one that comprehends them as instruments that pro-
tect the domestic rights of workers from international competition—cannot.
This approach possesses the capacity to address charges of protectionism by
recasting the normative significance of international labor rights in universal terms.
The reason labor rights possess international legal significance is because they
instantiate what universal norms require in the context of work, and the reason
these universal norms possess international legal significance is because they speak
to intrinsic features of our common humanity. Universal value, not domestic stabil-
ity, provides the normative justification for international protection of labor rights.
The fact that there is greater domestic protection of labor rights in industrialized
contexts than in non-industrialized contexts simply means that some States comply
more fully with the demands of universalism than others.
This approach also possesses the capacity to address concerns that international
labor rights correspond to an increasingly anachronistic model of labor market reg-
ulation and assume an international economic order that no longer squares with
international economic reality. A universal account imposes obligations on States
to protect the human rights of individuals who fall under their sovereign authority
from injustices that occur within the context of work—whether work is organized
in terms of domestic mass production or transnational flexible production. Human
rights protect interests thought as essential to our common humanity and thus are
normatively prior to contingent developments in the organization of domestic and
international economic life. They stand fast in the face of global economic change,
enabling us to measure the justice of transformations in the world of work wrought
by globalization.
Whether this approach successfully addresses these concerns rests on the strength
of reasons it offers in defense of the proposition that the rights they invoke possess
universal value. Moral and political theorists offer many reasons to see intrinsic
value in, for example, freedom of association.48 Our relations with others—whether
in love, in friendship, at work, or in social and political life—are the source and
See generally Freedom of Association (Amy Gutmann ed., 1998).

48
shape of much of life itself. Some associational ties, like love and friendship, have
value in themselves. Others, like those forged at work or in political life, pos-
sess value of a more instrumental nature. They enable individuals to pursue ends,
objectives, and aspirations in concert with others. The freedom to form associative
ties—to the extent we possess it—enables us to make ourselves who we are. A State
that secures freedom of association for individuals within its sovereign territory and
resists global trends that undermine the capacity of its citizens to form and main-
tain associational ties is a State that respects the demands of universalism.
Deflecting these concerns does not end the story, however. A universal account
of international labor rights raises additional concerns. What freedom of
association—one of the universals to which moral theorists often appeal—actually
entails in the context of work is far from clear. Labor rights do not fit neatly into
universal accounts. On such accounts, human rights protect essential characteristics
or features that all of us share despite the innumerable historical, geographical, cul-
tural, communal, and other contingencies that shape our lives and our relations with
others in unique ways. They give rise to specifiable duties that we all owe each other
in ethical recognition of what it means to be human. But labor rights do not vest
in all of us. They vest in workers. And some labor rights only vest in some workers.
The right to bargain collectively, for example, does not typically vest in workers who
belong to management and certain professions, and the right to strike often cannot
be exercised by workers in essential sectors, such as hospitals and law enforcement.
Labor rights also create a different and stricter set of legal obligations and tend to
invite a different form of adjudication than what are contemplated by other human
rights that fit more easily on a universal register. A right to bargain collectively, for
example, characteristically conjures up a complex legal code regulating the relation-
ship between labor and capital, the contours of which will vary dramatically from
jurisdiction to jurisdiction and which may require constant monitoring and adjust-
ment. Labor rights also typically impose positive obligations on others to secure
their realization, make more sense in some national economies than others,49 and
are tied to the international legality of processes of economic and social globaliza-
tion in ways that moral accounts fail to grasp. In the words of Hugh Collins, “con-
trasts between universal human rights and labor rights with respect to the moral
weight of the claims, their universal application, the strictness of the standards, and
See Kerry Rittich, Social Rights and Social Policy: Transformations on the International Landscape, in
49
Exploring Social Rights: Between Theory and Practice 114 (Daphne Barak-Erez & Aeyal
M. Gross eds., 2007) (“In the industrialised world, broad segments of the citizenry normally have access to
[labor rights], while in the developing world, they may be much thinner in content and typically reach only
a narrow segment of the citizenry, for example, workers in the formal labour market”).
their variability over time, create a significant doubt whether labor rights are prop-
erly classified as universal human rights.”50 The many contingencies they display
invite questions about whether it is appropriate to comprehend international labor
rights as protecting essential features of what it means to be human.51
The ILO has begun to address the gap between universal principle and the actual
content of international labor rights by actively encouraging States to respect labor
rights enshrined in seven “fundamental” ILO Conventions.52 These Conventions
define and elaborate four basic principles: freedom of association and the effective
right of collective bargaining; the prohibition of forced or compulsory labor; the
effective abolition of child labor; and the elimination of discrimination in respect
of employment or occupation. The principles together constitute what has been
referred to as a set of “core labour rights.”53 In 1998, the ILO enacted a Declaration
on core labor rights stipulating that even States that have not ratified the seven “fun-
damental” conventions “have an obligation … to respect, to promote and to realize,
in good faith” their terms.54 The articulation of a core set of labor rights is designed
to pave the way for the argument that all countries, regardless of their stage of devel-
opment, ought to respect this core.55 The 1998 Declaration was drafted in such a way
that all ILO member States are automatically committed to its provisions simply by
virtue of membership.56
50
Hugh Collins, Theories of Rights as Justifications for Labour Law, in The Idea of Labour Law 143
(Guy Davidov & Brian Langille eds., 2011).
51
For an account that specifies some but not all international labor rights as human rights by their connection
or lack thereof to universal norms, see Mattias Risse, On Global Justice ch. 13 (2012).
52
Forced Labour Convention (No. 29); Freedom of Association and Protection of the Right to Collective
Bargaining Convention (No. 98); Equal Remuneration Convention (No. 100); Abolition of Forced Labour
Convention (No. 105); Discrimination (Employment and Occupation) Convention (No. 111); Minimum
Age Convention (No. 138).
53
See generally OECD, Trade, Employment and Labour Standards: A Study of Core Workers’
Rights and International Trade (1996) (articulating five core labor standards, separating freedom
of association from the right to organize and bargain collectively).
54
ILO, Declaration on Fundamental Principles and Rights at Work and Its Follow-Up (1998), International
Labour Conference, 86th Session, para 2. See generally Janice R. Bellace, The ILO Declaration of
Fundamental Principles and Rights at Work, 17 Int’l J. Comp. Lab. L. & Indus. Rel. 269 (2001); Hilary
Kellerson, The ILO Declaration of 1998 on Fundamental Principles and Rights: A Challenge for the Future,
137 Int’l Lab. Rev. 223 (1998).
55
Some States, notably China and the United States, refuse to ratify even these. To date, the United States
has only ratified one of these seven Conventions: the abolition of forced labor. See generally Justine Nolan &
Michael Posner, International Standards to Promote Labor Rights: The Role of the United States Government,
2 Colum. Bus. L. Rev. 529 (2000).
56
1998 ILO Declaration, supra note 54, at para. A.2 (“all Members, even if they have not ratified the
Conventions in question, have an obligation arising from the very fact of membership in the Organization,
to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles
concerning the fundamental rights which are the subject of those conventions”).
The strategy embraced by the 1998 Declaration of promoting core labor rights has
drawn criticism from several quarters. Some fear that the ILO’s relatively successful
traditional approach toward the protection of labor standards—one that includes
an open legislative process, clearly defined standards, and a respected system of over-
sight and compliance—is being eclipsed by a diffuse political strategy of uncertain
legal effect.57 Others question why, as a matter of principle, some issues fall within
and others outside of the core.58 Lance Compa, for example, questions why worker
health and safety rights are not within the core given that they relate to the life and
health of a worker. In his words, “[w]‌orking conditions free of grave risk of injury or
illness seems as fundamental a right as working without discrimination.”59 Nor is it
clear why the core includes a right to bargain collectively but excludes a minimum
wage or maximum hours, given that collective bargaining appears ill-suited to new,
atypical forms of employment associated with flexible production.
In addition, although the Declaration speaks of an obligation to respect, pro-
tect, and promote their terms, Guy Mundlak notes that the rights included within
the core risk being construed as merely requiring others to refrain from interfering
with their exercise as opposed to requiring the introduction of positive measures
promoting their realization.60 The Declaration’s simple prohibition on child labor,
for example, addresses a mere symptom of “deeply structured social and economic
problems” in various States where this practice occurs.61 In the absence of positive
steps to promote, say, educational opportunities and access to health care, a prohibi-
tion on child labor may exacerbate what it seeks to cure. The definition of core labor
57
Philip Alston & James Heenan, The Role of International Labor Standards within the Trade Debate: The
Need to Return to Fundamentals (European University Institute Discussion Paper: May 23, 2002). But
see Brian Langille, Core Labour Rights—The True Story, 16 Eur. J. Int’l L. 409 (2005) for the contrary
view that the 1998 Declaration is a key international instrument to assist States in maximizing their own
self-interest.
58
See, e.g., Robert M. Stern, Labor Standards and Trade, in New Directions in International
Economic Law: Essays in Honour of John H. Jackson 426 (Marco Bronckers & Richard Quick
eds., 2000) (consensus on a core does not eliminate difficulties in “interpreting and implementing core
standards and distinguishing between core and other standards”).
59
Lance Compa, Promise and Peril: Core Labor Rights in Global Trade and Investment, in International
Human Rights: A Half Century after the Universal Declaration 8 (George Andreopoulos
ed., 2002). See also Gary Fields, International Labour Standards and Economic Interdependence, 49 Indus.
& Lab. Rel. Rev. 571, 572 (1996); Bob Hepple, New Approaches to International Labour Regulation, 26
Indus. L J. 353, 358 (1998).
60
Guy Mundlak, The Transformative Weakness of Core Labour Rights in Changing Welfare Regimes, in The
Welfare State, Globalization, and International Law 231–69 (E. Benvenisti and G. Nolte
eds., 2003); Kerry Rittich, Core Labor Rights and Labor Market Flexibility: Two Paths Entwined?, in Labor
Law Beyond Borders: ADR and the Internationalization of Labor Dispute Settlement
157–208 (International Bureau of the Permanent Court of Arbitration ed., 2003).
61
Mundlak, supra note 60, at 241.
rights and their negative character were critical to achieving an international con-
sensus on the 1998 Declaration. But the partial and negative nature of these rights
limits the Declaration’s transformative potential to address some of the deeper
causes of injustice at work.
These critiques notwithstanding, the 1998 Declaration presents a way of com-
prehending international labor rights in terms of a set of universal principles that
can assume different institutional form in different national economic contexts.
The Declaration, Kevin Kolben writes, “was an attempt, in part, to achieve a degree
of moral, political and legal consensus on what constitutes universally recognized
labor rights.”62 To many, the core standards enshrined in the 1998 Declaration are
“equivalent to human rights.”63 The Declaration itself speaks of “the immutable
nature of the fundamental principles and rights embodied in the Constitution of
the Organisation” and “the need to promote their universal application.”64 From
this perspective, domestic labor rights, not their international counterparts, are
understood in instrumental terms as necessary to tailor what freedom of association
and equality, cast in intrinsic and universal terms, requires in different domestic
contexts.
But understanding international labor rights in this way leaves out much of what
positive international law is committed to in the context of work. In the words of
Judy Fudge, “the rights listed in the Declaration are regarded as core because they
are essential to engage freely in the market, and they are procedural rather than
substantive in that they restrict the nature of contracting but they do not dictate
outcomes.65 This strategy “marks a significant shift from the priority given in ear-
lier ILO Conventions to matters which were believed to have a direct effect on
economic competitiveness such as hours of work, night work, unemployment and
minimum wage.”66 It also marks a significant shift from the priorities of the ILO
Constitution itself, which calls on member States to commit themselves to a much
62
Kevin Kolben, Labor Rights as Human Rights?, 50 Va. J. Int’l L. 449, 454 (2010).
63
Hans-Michael Wolffgang & Wolfram Peuerhake, Core Labour Standards in World Trade Law: The Necessity
for Incorporation of Core Labour Standards in the World Trade Organization, 36 J. World Trade 883, 890
(2002). See also Judy Fudge, The New Discourse of Labor Rights: From Social to Fundamental Rights?, 29
Comp. Lab. L. & Pol’y J. 29, 39 (2007–2008); Eddie Lee, Globalization and Labour Standards: A Review
of the Issues, 136 Int’l Lab. Rev. 173, 181 (1997); Tonia Novitz, International and European
Protection of the Right to Strike: A Comparative Study of Standards Set by the
International Labour Organization, the Council of Europe and the European Union
105 (2003).
64
Supra note 54, preamble.
65
Fudge, supra note 63, at 39–40 (citing Francis Maupain, Revitalization not Retreat: The Real Potential of the
1998 ILO Declaration for the Universal Protection of Workers’ Rights, 16 Eur. J. Int’l L. 439 (2005).
66
Bob Hepple, Labour Laws and Global Trade 59 (2004).
richer set of labor rights and standards, including, as stated, the regulation of hours of
work; the regulation of labor supply; the prevention of unemployment and provision of
an adequate living wage; the protection of workers against sickness, disease, and injury;
the protection of children, young persons, and women; the provision for old age and
injury; the protection of the interests of workers employed in countries other than their
own; the principle of equal remuneration for work of equal value; and the organization
of vocational and technical education.
The 1998 Declaration also pivots away from labor rights enshrined in U.N. instru-
ments. As previously noted, the Universal Declaration of Human Rights enshrines
rights to work, just and favorable conditions of work, protection against unemploy-
ment, equal pay for equal work, just and favorable remuneration, reasonable limitation
of working hours and periodic holidays with pay, and an adequate standard of living.
The International Covenant on Economic, Social, and Cultural Rights enshrines
rights to work, fair wages and equal remuneration for work of equal value, and safe
and healthy working conditions, and obligates States to provide technical and voca-
tional guidance and training programs to workers.67 The Convention on the Rights of
the Child calls for the abolition of child labor but also obligates States to provide for
appropriate regulation of the hours and conditions of employment in order to protect
children from economic exploitation.68
Some defend the promotion of the rights listed in the 1998 Declaration on the basis
that they dovetail with the goal of economic prosperity. Brian Langille, for example,
enlisting Amartya Sen’s conception of freedom as “the real capacity for human beings
to lead lives which we have reason to value,” argues that core labor rights, far from being
impediments to market freedom and economic prosperity, are essential to successful
economies.69 For Langille, “the legal project is not one of legally coercing states to aban-
don their self-interest,” and “the model of law appropriate to that sort of enterprise is, in
spite of its popularity and dominance, inappropriate to our true challenges.”70 Instead,
the project embedded in the 1998 Declaration “is to lead member states to pursue their
self-interest” by promoting labor rights that secure “social policies which are part of
the complex and mutually supporting aspects of human freedom” integral to market
freedom and economic prosperity.71
67
International Covenant on Economic, Social and Cultural Rights, U.N. Doc. A/6316 (1966), 993 U.N.T.S.
3 (entered into force Jan. 3, 1976).
68
Convention on the Rights of the Child, U.N. Doc. A/44/49 (1989), 1577 U.N.T.S. 43 (entered into force
Sept. 2, 1990).
69
Langille, supra note 57, at 432, drawing on Amartya Sen, Development and Freedom (1999).
70
Langille, supra note 28, at 75.
71
Id. at 76. Simon Deakin and Brian Wilkinson also rely on Sen’s work to illuminate labor law. See Simon
Deakin & Frank Wilkinson, The Law of the Labour Market: Industrialization,
For present purposes, that international labor rights might be better understood
as instruments necessary to the pursuit of market freedom and economic prosper-
ity is not the point.72 It is, instead, the simple positivistic fact that international
human rights law conceives of far more labor rights as human rights than those
listed in the 1998 Declaration, and many of the rights it deems to be human rights
are not easily described in procedural and facilitative terms. This fact likely is of
little concern to those who comprehend core labor rights and economic prosperity
as mutually reinforcing, if their project simply relates to the normative project of the
1998 Declaration and the normative mission of the ILO and not to why labor rights
are human rights in international law. But it does pose problems to an account of
international labor rights as instruments that protect essential features of what it
means to be human and thus possess universal value. Such an account may well be
a compelling way of comprehending labor rights as human rights in moral theory.
As a legal theory, however, it loses sight of many of the objects it seeks to describe,
namely, those labor rights enshrined in international law that do not fit this picture.
A universal account of international labor rights also only speaks to the relation-
ship between individuals and the State. It stipulates that a State cannot wield its
sovereign power in ways that compromise or threaten the freedom of association of
individuals on its territory. It does not interrogate how a State exercises its sovereign
power in other ways. Specifically, it does not regulate how States structure their
relations among themselves. States enter into numerous international institutional
arrangements to manage and coordinate various dimensions of their relations with
other States. Through such processes, States participate in the broader project of
international law itself, that of organizing global politics into an international legal
order. International labor rights possess the potential to monitor the justice of this
broader project, but their capacity to do so is hampered by locating their normative
significance solely in terms of the relationship between a State and its citizens. The
universal account obligates a State to respect the labor rights of individuals under its
sovereign power. It does not obligate a State to ensure that the structure and opera-
tion of the international legal order respect the labor rights of individuals under the
sovereign power of other States. For international labor rights to play this role, their
normative significance must be tied much more closely to how international law
organizes global politics into an international legal system.
Employment, and Legal Evolution (2005). See also the essays collected in Europe and the
Politics of Capabilities (Robert Salais & Robert Villeneuve eds., 2004).
72
For critique, see Philip Alston, “Core Labour Standards” and the Transformation of the International
Labour Rights Regime, 13 Eur. J. Int’l L. 457 (2004); Fudge, supra note 63.
Labor R ights and the Structur e of Inter national Law
In contrast to instrumental and universal accounts, 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. International law legally organizes political com-
munities into States by extending legal validity to their claims of sovereign power.
Legally organizing political communities into States by vesting them with sovereign
power entitles them, relatively free of external interference, to regulate and promote
economic activity on their territory, establish wealth and income redistribution
mechanisms, and impose a host of legal rights and obligations on their citizens.
International labor rights, like other social and economic rights, are instruments
that address the fact that international law authorizes States to exercise sovereign
power in ways that threaten the interests that such rights seek to protect. In so
doing, they bring a measure of legitimacy to the distribution of sovereignty that
international law performs by extending legal validity to claims of sovereign power.
However, international labor rights do more than check the exercise of internal
sovereign power to protect workers. They also check the exercise of State actions on
the international stage to which sovereignty, as an international legal entitlement,
extends legal validity. The external dimensions of international labor rights reveal
themselves in the context of contemporary bilateral and multilateral agreements
negotiated under the auspices of the World Trade Organization that mandate recip-
rocal tariff reductions and the elimination of non-tariff import barriers by signa-
tory States. As described in more detail in Chapter 2, such agreements typically are
premised on the assumption that regional and international liberalization of trade,
services, and investment enhances global productivity by enabling economic actors
to compete on the basis of comparative advantage, that is, the capacity to produce a
product at a comparatively lower cost than another economic actor because of par-
ticular resource or regulatory endowments associated with the national economies
in which production occurs.
Contemporary multilateral agreements monitored by the WTO, as well as the
many bilateral investment agreements in existence, are the product of States exercis-
ing their sovereign authority on the international stage. They represent some of the
ways in which international economic law makes legal sense of countless forms of
economic and political activity by means of a binary opposition between legality
and illegality, conferring international legal authority on some claims of economic
and political power and rejecting others as illegalities. Multilateral and bilateral
agreements promoting regional and international liberalization of trade, services,
and investment—and the institutions that oversee them—purport to perform this

function in the name of enhanced global productivity and thus global prosperity.
In this context, international labor rights not only stipulate that a State cannot
wield its sovereign power internally in ways that compromise or threaten interests
they seek to protect. They also guard against the possibility that States, when exer-
cising their sovereign power beyond their borders, might establish international
legal norms validating processes of economic globalization in ways that harm work-
ers. One way this might occur lies in the effect such processes have on the power of
capital. Much ink has been spilled on the ways economic globalization increases
the power and managerial freedom of capital. Import competition, for example,
has been found to adversely affect the bargaining power of unions in some indus-
tries, especially when there is increased competition from low-wage jurisdictions.73
International labor rights—specifically, rights to organize, bargain collectively, and
strike—enable employees to offset some of the inequality of bargaining power they
experience in the workplace as a result of the enhanced power and managerial free-
dom of capital produced by international legal validation of processes of economic
globalization.
Another way in which international economic norms might harm workers is by
restricting a State’s regulatory capacity to protect them for fear of capital flight.
Although the data suggest that enhanced worker protection does not produce races
to the bottom, international labor rights hedge the risk that the data might not
tell the whole story, or that States will nonetheless deregulate in efforts to attract
foreign direct investment regardless of what the data say. By restricting the exercise
of sovereign power in these ways, international labor rights mitigate some of the
adverse consequences that flow, or might flow, to workers from the participation of
international economic law in facilitating regional and international liberalization
of trade, services, and investment.
Work done under the auspices of the ILO supports this conception of interna-
tional labor rights. The 1998 Declaration itself links the promotion of core labor
rights to economic globalization, noting that it is “urgent, in a situation of growing
economic interdependence, to reaffirm the immutable nature of the Organization
and to promote their universal application.” The World Commission on the Social
Dimension of Globalization, established by the ILO, reported in 2004 that “increas-
ing globalization has generated a need for better global governance and that core
73
Michel Dumont, Glenn Rayp, & Peter Williemé, Ménage à Trois in a Globalizing World: Bargaining
between Firms, Low-Skilled and High Skilled Workers (Univ. of Ghent, Working Paper No. 2010/687,
2010–2011); Filip Abraham, Jozef Konings & Stijn Vanormelinger, The Effect of Globalization on Union
Bargaining and Price-Cost Margins of Firms, 145 Rev. World Econ. 13 (2009).
labour standards, including the right to bargain collectively, must be a component

of the reform of global governance.” 74 More recently, the ILO adopted the 2008
Declaration on Social Justice for a Fair Globalization, expressly confirming that the
promotion of both the fundamental rights enshrined in the 1998 Declaration and,
more generally, the international labor standards is necessary because of the adverse
distributional consequences of economic globalization.75
Other international institutions have also called on States to promote core labor
rights in the face of economic globalization. The U.N. Committee on Economic,
Social, and Cultural Rights, for example, has stated that “the right to form and join
trade unions may be threatened by restrictions upon freedom of association, restric-
tions claimed to be ‘necessary’ in a global economy, or by the effective exclusion of
possibilities for collective bargaining, or by restricting the right to strike for various
occupational and other groups.” 76 The OECD, the WTO, the United Nations, the
Council of Europe, and the European Union have also accepted the idea—if not the
reality—of core labor rights as appropriate international legal monitors of processes
of economic globalization.77
The link between international legal norms validating economic globalization
and international labor rights is illustrated by their inclusion in numerous bilat-
eral trade agreements that increasingly structure State-to-State economic relations.
Beginning in 1995, when the WTO was established, several western States, notably
France and the United States, sought explicit incorporation of labor rights in WTO
rules prohibiting domestic discrimination against foreign products.78 Their agenda
was to create an institutional alliance between the ILO and the WTO, append a
“social clause” to the General Agreement on Tariffs and Trade (GATT),79 and have
74
World Commission on the Social Dimension of Globalization, A Fair
Globalization: Creating Opportunities for All (2004), at paras. 336, 414–442.
75
ILO, Declaration on Social Justice for a Fair Globalization, International Labour Conference, 97th Sess.
(2008). See generally Francois Maupain, supra note 23.
76
CESCR, Statement on Globalization and Economic, Social and Cultural Rights (1998).
77
See OECD, Trade, Employment and Labour Standards, supra note 53; World Bank, “Workers in a Changing
World, in World Development Report (1995); WTO, Singapore Ministerial Declaration (1996);
U.N., Global Compact (2000).
78
For capsule histories of the debate, see Christopher McCrudden & Anne Davies, International Trade Law
and Labour Rights, in Sustainable Development in World Trade Law 107–27 (M. Gehring and
M. Cordonier Segger eds., 2005); Steve Charnovitz, The Influence of International Labour Standards on the
World Trading Regime: A Historical Overview, 126 Int’l Lab. Rev. 565 (1987); Robert Howse, The World
Trade Organization and the Protection of Workers’ Rights, 3 J. Small & Emerging Bus. L. 131 (1999).
79
For scholarship on this reform possibility, see Paul Waer, Social Clauses in International Trade: The Debate
in the European Union, 30 J. World Trade 25, 27–28 (1996); Erica de Wet, Labor Standards in the
Globalized Economy: The Inclusion of a Social Clause in the General Agreement on Tariffs and Trade/World
Trade Organization, 17 Hum. Rts. Q. 443 (1995).
the ILO “provide the normative structure for a system of global labor standards”
enforced through trade sanctions.80 The proposed social clause contained reference
to a few core labor rights and lacked strong enforcement measures but nonetheless
was still met with opposition from developing States.
At a 1996 WTO meeting in Singapore, parties rejected the inclusion of a social
clause. Instead, they expressed a “commitment to the observance of internation-
ally recognized core labour standards,” claiming that “the International Labour
Organization is the competent body to set and deal with these standards.” The par-
ties added that they “reject the use of labour standards for protectionist purposes,
and agree that the comparative advantage of countries, particularly low-wage devel-
oping countries, must in no way be put into question.”81 In light of unsuccessful
efforts to append a social clause to the GATT, States began to include labor rights
in bilateral and regional trade agreements.
Of the approximately 190 States with bilateral trade agreements, approximately
120 are party to agreements that contain labor provisions. The majority of these
agreements contain provisions that are aspirational in nature, focusing on coopera-
tion and monitoring of working conditions, but approximately two-fifths also link
compliance with labor standards to economic consequences in the form of sanctions
or, less frequently, incentives, which relate to trade or other benefits, including tech-
nical cooperation.82 The 2012 free trade agreement between the United States and
Colombia, for example, commits parties to adopt and maintain in their laws and
practice respect for core labor rights, as set out in the 1998 ILO Declaration. The
agreement subjects labor obligations to the same dispute settlement and enforce-
ment mechanisms as commercial obligations. In addition, Colombia was required
to and has passed laws that criminalize interference in the exercise of labor rights; to
establish a separate labor ministry; to impose severe fines for maintaining employ-
ment relationships that undermine worker rights; to double the size of its labor
inspectorate; to improve its protection programs for union members; and to reform
procedures to enable effective prosecution of cases of unionist homicides.83
The link between international legal norms validating economic globaliza-
tion and international labor rights is also illustrated in international agreements
that promote regional economic integration. The North American Free Trade
80
David M. Trubek et al., Transnationalism in the Regulation of Labor Relations: International Regimes and
Transnational Advocacy, 15 L. & Soc. Inquiry 1187, 1193 (2000).
81
WTO, Ministerial Declaration (1996), para 4.
82
For an extensive examination of these agreements, see ILO, Social Dimensions of Free Trade
Agreements (2013).
83
Press Release, Office of the U.S. Trade Representative, The Colombian Labor Action Plan: Three Years Later
(Apr. 7, 2014).
Agreement refers to the core labor rights identified by the 1998 ILO Declaration
and allows for fines in the event of nonapplication of domestic labor laws concern-
ing child labor, occupational health and safety, and minimum wages. Several com-
plaints have been filed against companies pursuant to these provisions, resulting, in
some cases, in changes in domestic legal norms in favor of workers. In a case involv-
ing migrant workers in Washington State’s apple industry, for example, Mexico
alleged numerous inadequacies, including exclusion of agricultural workers from
labor laws and numerous violations of the right to organize. The complaint resulted
in several reforms conducive to agricultural workers, including union recognition in
two major companies in the industry.84
Similarly, the European Union’s Generalized Schemes of Preferences, an incentive
arrangement for sustainable development and good governance, provides additional
benefits for countries that ensure respect for the ILO’s core labor rights, render-
ing them eligible for additional trade preferences. In June 2007, the EU decided
to withdraw GSP benefits from Belarus in response to that country’s violation of
freedom of association and collective bargaining rights. In 2006, El Salvador was
granted GSP benefits once it had ratified ILO Conventions 87 and 98.85 In Latin
America, Argentina, Brazil, Paraguay, and Uruguay have committed to respecting
core labor rights in the Social and Labour Declaration of the Common Market of
the Southern Cone. The Declaration recalls the States parties’ membership of the
ILO and their ratification of its principal Conventions guaranteeing the fundamen-
tal rights of workers. It also reaffirms their commitment to respect, promote, and
implement the rights and obligations set out in the 1998 ILO Declaration.86
In addition, international development finance institutions increasingly require
borrowers to comply with international labor rights. In 2006, the International
Finance Corporation (IFC) of the World Bank Group, which focuses on develop-
ment of the private sector, revised its lending policy, aligning its lending practices
with ILO Conventions 87 and 98. The IFC now requires its clients not to discour-
age workers from forming or joining workers’ organizations of their choosing or
from bargaining collectively, and not to discriminate or retaliate against workers
who participate, or seek to participate, in such organizations and bargain collec-
tively. It also requires clients to respect existing collective bargaining agreements
or, where such agreements do not exist, recommends that they provide reasonable
working conditions and terms of employment which, at the very least, comply with
84
For discussion, see Robert Finbow, The Limits of Regionalism: NAFTA’s Labour Accord
144–53 (2006).
85
For discussion, see ILO, Freedom of Association in Practice: Lessons Learned 39 (2008).
86
Id.
national law.87 In 2007, the World Bank expanded the conditions in its procure-
ment rules to include, for the first time, requirements on freedom of association and
the right to collective bargaining.88
The role that labor rights play in the international legal order as revealed by these
developments bears some similarities to the ILO’s original instrumental concep-
tion of labor rights. On the instrumental account, labor rights merit international
legal protection because of the need to prevent States seeking to attract foreign
direct investment from abandoning their domestic commitments to just relations
at work. Comprehending labor rights in terms of the structure and operation of
the international legal order also treats them as mechanisms that possess the capac-
ity to regulate international competition. But these accounts differ in one critical
respect. On the instrumental account, labor rights received international legal pro-
tection because of the normative importance of their domestic legal counterparts.
Domestic collective bargaining regimes, regarded as essential to a just domestic legal
order, required protection from international competition. On the account offered
here, labor rights merit international legal protection because they mitigate adverse
outcomes produced or authorized by the international legal order itself.
Because the purpose of international labor rights relates to the legitimacy of the
international, not the domestic, legal order, they do not merely obligate a State,
when exercising the sovereign power conferred on it by international law, to respect
the rights of workers who live and work in its jurisdiction. They also obligate inter-
national legal actors—for the most part, but not exclusively, States—to respect the
rights of workers in all jurisdictions. They require States, when exercising sovereign
power, to do so in ways that enhance the capacity of all States to protect workers
from exploitation. They also entail that when a State participates in the production
of international economic law, it is obligated to do so in ways that promote labor
rights globally.
Labor rights thus possess international legal significance not because they are for-
mal expressions of what justice requires as a matter of abstract morality but because
they are legal instruments that take account of the actual international legal order
in which we live. They serve as mechanisms or instruments that mitigate some of
the adverse consequences of how international law organizes global politics into
an international legal system. They monitor the ways in which international law
participates in processes of economic globalization. They offset or mitigate some
harms produced by how international law gives institutional voice and legal effect
87
Int’l Fin. Corp., Performance Standard 2, Labor and Working Conditions (Apr. 2006).
88
World Bank, Procurement of Works & User’s Guide (2007).
to increasingly dense and integrated economic relations typically associated with

processes of economic globalization between and among State and non-State actors.
As such, international labor rights are truly international in nature and scope.
They interrogate not simply the justice of domestic measures that regulate relations
between employers and employees in a given jurisdiction but also the legitimacy of
international legal arrangements that potentially authorize a State to adopt mea-
sures that adversely affect the interests of workers inside and outside its jurisdic-
tion. They require States, when participating in the formation of such international
arrangements, to take into account the labor rights of all individuals and not simply
the rights of individuals under their domestic sovereign power. They require inter-
national institutions to exercise international legal authority in ways that respect the
interests of workers. And they require States, when exercising domestic regulatory
authority, to legislate in ways that respect the rights of workers at home and abroad.
In this way, international labor rights vest the international legal order—and the
sovereign power on which the international legal order confers legal validity—with
a measure of normative legitimacy.
5
T H E A M B IGU O U S A P P E A L O F M IN O R I T Y R IG H T S
in a kaleidoscopic redistribution of sovereign power after the First World

War, the once-great Ottoman Empire ceased to exist, and its territory was divided,
partitioned, and reallocated to friends and enemies alike. France received mandates
from the League of Nations to govern Syria and Lebanon. The United Kingdom
received mandates to govern Iraq, Palestine, and what eventually became Israel and
Jordan. Turkish nationals repelled Allied forces occupying their country and estab-
lished the Republic of Turkey. Huge swaths of the Arabian Peninsula became parts
of modern-day Saudi Arabia and Yemen.
The legal instruments that invested these political developments with interna-
tional legal validity dramatically reshaped the structure of the international legal
order. The 1923 Treaty of Lausanne, for example, delineated the territorial sover-
eignty of the new Republic of Turkey, replacing the 1920 Treaty of Sèvres, which
had been negotiated but never ratified by the Ottoman Parliament. In doing so,
the Treaty of Lausanne restored Turkey’s previous boundary with Bulgaria and
Western Thrace, annulled the transfer of Smyrna to Greece, and relieved Turkey of
post-war obligations to compensate Allied civilian nationals for wartime losses. It
also provided for an extensive population exchange between Turkey and Greece and
repudiated Turkey’s previous commitment to recognize an independent Armenia
and ultimately an independent Kurdistan.1
For a comparison of the Treaty of Sèvres and the Treaty of Lausanne, see Philip Marshall Brown, From
1
Sèvres to Lausanne, 18 Am. J. Int’l L. 113–16 (1923).

103
The Treaty of Lausanne modified the distribution of sovereign power in Europe

by transferring sovereignty over territory and people from some sovereign actors to
others. It—and other treaties like it—illustrates how international legal arrange-
ments operate to impose legal order on global politics by specifying the territory
over which States can exercise sovereign authority. It also illustrates how interna-
tional law participates in the creation of national, cultural, religious, and linguistic
minority communities, such as Greek nationals living in Turkey, the Muslim popu-
lation in Greece, and the Kurdish population in southeastern Turkey and neighbor-
ing Syria, Iraq, and Iran.
This chapter explores the nature and purpose of minority rights in international
law.2 Why should international human rights law vest members of a minority
community—either individually or collectively—with rights that secure a measure
of autonomy from the State in which they are located? To the extent that interna-
tional law offers normative answers to this question, it does so through the prism of
a commitment to the protection of certain universal attributes of human identity
from the exercise of sovereign power. It protects minority rights on the assump-
tion that religious, cultural, and linguistic affiliations are essential features of what
it means to be a human being. But its acceptance of this assumption is wary and
partial. Minority rights might protect key features of human identity, but they pos-
sess the capacity to divide people into different communities, create insiders and
outsiders, pit ethnicity against ethnicity, and threaten the universal aspirations that
inform dominant moral conceptions of the mission of the field.
This chapter offers an alternative explanation of why minority rights possess
international legal significance, one that trades less on the currency of religion, cul-
ture, and language and more on the relationship between international law and dis-
tributive justice. On this conception, international minority rights speak to adverse
consequences that international law itself produces by distributing sovereignty to
collectivities that it recognizes as States. This account reveals itself most clearly in
the way international political developments surrounding the dissolution of the
Ottoman Empire at the end of the First World War were vested with international
legal validity. But it also serves as the basis of a more general theory of the normative
significance of international minority rights regardless of contingent political con-
ditions that lead to their formal legal entrenchment. This account avoids the nor-
mative instabilities of attaching universal value to religious, cultural, and linguistic
For a comprehensive analysis of this topic, see Gaetano Pentassuglia, Minority Groups and
2
Judicial Discourse in International Law: A Comparative Perspective (2009).

The Ambiguous Appeal of Minority Rights 105
affiliation and instead challenges the international legal order to remedy patholo-
gies of its own making.
The Mor al Ambiguities of Minor ity R ights
Two seemingly contradictory commitments structure our international legal order.

The first is to the sovereignty of States. States possess international legal author-
ity to rule their territory and populations, rendering them sovereign legal actors
in the global political arena. The second is to human rights. Individuals and col-
lectivities not necessarily coextensive with the populations of States possess human
rights in international law, which place limits on the exercise of sovereign power.
These commitments appear contradictory to the extent that either is imagined in
absolute terms. If sovereign power is absolute, then human rights cannot constrain
it. If human rights are absolute, then sovereign power cannot interfere with their
exercise. International law, of course, treats neither in absolute terms. It restrains
sovereign power in the name of human rights, and it allows sovereign States to
restrict human rights in certain circumstances. Sovereignty and human rights in
international law are in a “recursive relationship.”3 How and why international law
restrains sovereignty, and how and why it authorizes States to restrict human rights,
are questions that fuel the international legal enterprise as it seeks to bring legal
order to the global politics that is its genesis.
One way of focusing these questions is to begin with the kinds of human rights
to which our international legal order pays homage. What interests underlie inter-
national human rights, and why do these interests merit protection in the face of
sovereign power? The standard moral conception of international human rights is
that they protect interests that are universal in nature. Human rights protect essen-
tial characteristics or features that all of us share despite the innumerable historical,
geographical, cultural, communal, and other contingencies that shape our lives and
our relations with others in unique ways. They give rise to duties that we owe each
other in ethical recognition of what it means to be human.
This account runs aground, however, when it is deployed to explain the interna-
tional legal presence of some rights that protect interests that have less to do with
Jean L. Cohen, Globalization and Sovereignty: Rethinking Legality, Legitimacy, and
3
Constitutionalism 163 (2012). Compare Frédéric Mégret, The Apology of Utopia: Some Thoughts on
Koskenniemian Themes with Particular Emphasis on Massively Institutionalized International Human
Rights Law, 27 Temple Int’l & Comp. L.J. 455, 466 (2013) (“neither international legal rules nor, perhaps
more surprisingly, human rights principles are ever absolutes”).
essential features of our common humanity and more to do with the contingen-
cies of geography, history, and culture. Belonging to a minority is not something
we all share; it is a function of history and circumstance. International minority
rights protect interests associated with belonging to one’s culture, and the culture
to which one belongs is, of course, contingent on where, when, and to whom one
is born. Moreover, cultures develop and change over time. Some cultures are tra-
ditional. Others are modern. Some seek to exemplify the moral universe that the
standard account of international human rights valorizes. Others are downright
toxic in this respect.
The claim that a minority population possesses rights that shield it from assimila-
tive tendencies of a majority population thus fits uncomfortably with a conception
of international human rights law as a field devoted to the protection of essential
features of what it means to be a human being. Being a member of a minority may
well mean that one’s civil and political freedom is more likely to be interfered with
than the freedom of a member of a majority, and therefore the field is attentive to
the various forms of discrimination and marginalization that minorities unjustly
experience because of their minority status. Thus understood, minority rights, as
James Nickel delicately put it, “spell out the implications of universal rights for
people who face distinctive problems.”4 Beyond this level of protection, however,
minority rights seem to run counter to the aspiration of international human rights
law to protect universal, not contingent, features of human identity.
This is not to say that minority rights cannot be comprehended in terms that are
consistent with universal accounts of human rights. Much of contemporary politi-
cal theory on multiculturalism devotes itself to this theoretical challenge. Some argue
that cultural protection is warranted because cultural affiliation is central to human
identity.5 Others say that all of us benefit from cultural diversity, and for this reason,
too, cultural protection is warranted.6 Still others are skeptical of attributing universal
value to the fact of cultural difference.7 But rarely does what international law actu-
ally say about cultural protection seem to matter in these debates. They turn more
on complex moral disagreements about the universal significance of cultural identity.
They tend to treat law as a relatively crude reflection of deeply contested moral claims
and not as an active participant in the production of cultural identity itself.
4
James W. Nickel, Making Sense of Human Rights 163 (2d ed. 2009).
5
Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (1995).
6
Charles Taylor, The Politics of Recognition, in Multiculturalism: Examining the Politics of
Recognition 25 (A. Gutman ed., 1994).
7
Brian Barry, Culture and Equality: An Egalitarian Critique of Multiculturalism
(2000).
The protection that international human rights law accords to minority popula-
tions reflects this tenuous relationship between minority membership and universal
value.8 International human rights law comprises a variety of sources and instru-
ments, including the United Nations Universal Declaration of Human Rights, vari-
ous international and regional treaties, principles of customary international law,
and general principles of international law. These sources and instruments provide
minorities with several avenues for challenging the exercise of sovereign power, but
these avenues have come to be understood in terms that display deep ambivalence
about the international legal significance of minority status.
This ambivalence reveals itself in several ways. First, minority interests deemed
to merit legal protection typically are those that can be said to constitute universal
features of human identity, such as freedom of expression and association and, more
contentiously, cultural, religious, and linguistic affiliation. Second, minority rights
that protect such interests tend to vest in individuals who claim such affiliations as
opposed to the communities to which they belong. Third, conditioned by univer-
sal and individualistic premises, minority rights nonetheless protect some activi-
ties that possess non-universal and collective dimensions. Fourth, civil and political
rights that fit more comfortably with a universal account of the field occasionally
protect interests characteristically associated with minority status. Finally, the field
offers little concrete guidance on what international minority rights require States
to do in order to secure their protection.
The Universal Declaration of Human Rights, for example, makes no explicit
mention of minority rights. A preliminary draft of the Declaration proposed
enshrining rights to minority educational, religious, and cultural institutions as
well as minority linguistic protection but, due to political opposition from many
States, these provisions were omitted from the final version adopted by the U.N.
General Assembly in 1948.9 Instead, the General Assembly transferred the matter of
The ambiguous relationship between minority protection and universalism was presciently grasped by Pablo
8
de Azcárate, then Deputy Secretary-General of the League of Nations, in a 1946 essay:
Protection of national minorities is a question limited in time and space, and essentially relative;
its solution depends on concrete historical circumstances subject to constant shift and change.
Guarantee of human rights is an absolute, general question as wide as humanity. They may or may
not be set up. But if they are set up, the ideal would be to establish them in the most absolute and
universal form possible. To that end, any attempt to make one institution approximate to the other
will only prejudice both.
Pablo de Azcárate, Protection of Minorities and Human Rights, 246 Annals Am. Acad. Pol. & Soc.
Sci. 124, 127 (1946).
9
G.A. Res. 217A(III), U.N. Doc. A/RES/217(III) (Dec. 10, 1948).
minority protection to the Sub-Commission on Prevention of Discrimination and

Protection of Minorities, instructing it to undertake “a thorough study of the prob-
lem of minorities.”10 In the words of Peter Hilpold, the General Assembly’s “reluc-
tance to act coupled with a request for more knowledge was a characterizing trait of
the entire development of minority rights within the UN system.”11
The Universal Declaration does affirm the significance of culture. Article 27 of
the Declaration enshrines the right to participate in cultural life.12 First proposed
by UNESCO, article 27 was relied on by the United States, Canada, and Latin
American countries to fend off proposals that the Declaration contain a provision
explicitly devoted to minority protection. The United States, squaring off against the
USSR, several eastern European countries, Lebanon, and India, argued that article
27, together with article 1, which contains a commitment to non-discrimination,
would suffice to protect minority cultures and that, in any event, minority protec-
tion was a “European issue”13 not worthy of universal treatment.
Australia argued more bluntly that the principle of assimilation should inform
the terms of the Declaration. The USSR delegation, seeking unsuccessfully to gen-
erate support for minority protection from developing countries, caustically noted
that “Australia had carried out a policy of forceful elimination of its aboriginal
groups and … the North American Indian had almost ceased to exist in the United
States.”14 Article 27 was also relied on to block efforts to include cultural genocide
in the definition of the Genocide Convention, which was being drafted simultane-
ously by another committee of the U.N. General Assembly. Cultural protection, it
was argued, should be advanced under the auspices of the Universal Declaration,
not by means of the Genocide Convention, as it would risk less interference with
the domestic jurisdiction of States. The final wording of article 27 of the Declaration
favored cultural homogeneity over cultural diversity by enshrining “the right freely
to participate in the cultural life of the community.”15
Despite its silence on minority protection, by guaranteeing freedom of expres-
sion, freedom of religion, rights of cultural and political participation, and equal-
ity rights to “everyone,” the Declaration nonetheless guarantees equal citizenship
10
The Fate of Minorities, G.A. Res. 217C(III), at 77, U.N. GAOR, 3d Sess. 1st plen. Mtg., U.N. Doc. A/810
(Dec. 12, 1948).
11
Peter Hilpold, UN Standard-Setting in the Field of Minority Rights, 14 Int’l J. Minority & Group Rts.
181, 183 (2007).
12
For this history, see Elsa Stamatopoulou, Cultural Rights in International Law 11 (2007).
13
Id. at 13.
14
Id. at 14 n.4 (quoting Johannes Morsink, The Universal Declaration of Human Rights 277
(1999)).
15
Stamatopoulou, supra note 12, at 15 (emphasis in original).
to members of minorities and protects them from the discriminatory exercise of

State power. It protects interests that members of minority communities share with
members of the majority as opposed to interests that distinguish minorities from
majority populations. Protecting interests that minorities and majorities share, such
as freedom of expression and religion, fits comfortably with a conception of interna-
tional human rights law as a field devoted to shielding essential features of what it
means to be human from the exercise of sovereign power.
Disagreement over the role that minority rights should play in the post-war
international legal order also partly accounts for the political and institutional
maneuverings that led to the splitting of the Universal Declaration’s united reg-
ister of human rights into two separate sets of rights entrenched, respectively, in
the International Covenant on Civil and Political Rights and the International
Covenant on Economic, Social, and Cultural Rights. The primary source of con-
troversy was whether to include quasi-judicial supervisory machinery to oversee
States’ obligations and, if so, whether all Declaration rights could be subject to such
machinery. On its surface, the debate was about justiciability, with proponents of
division, led by the United States and Great Britain, arguing that, because they con-
templated positive obligations on States, social, economic, and cultural rights were
incapable of legal resolution and therefore should not be included in a unified docu-
ment implementing the Universal Declaration. The Soviet bloc, for its part, was in
favor of enshrining social, economic, and cultural rights but resisted quasi-judicial
oversight of both categories of rights.16
But no doubt beneath the surface of these debates lay deep ideological disagree-
ments about the respective roles of the State and market in protecting social, eco-
nomic, and cultural interests. The upshot was that the International Covenant
on Civil and Political Rights provided for the creation of the Human Rights
Committee to review State compliance, and an Optional Protocol empowered it
to deal with individual complaints of violations of Covenant rights by States also
party to the Optional Protocol. The International Covenant on Economic, Social,
and Cultural Rights, in contrast, provided no equivalent right of individual petition
and limited its monitoring mechanism to State reporting procedures.
Not only was the common register of human rights in the Universal Declaration
split into two separate Covenants. The right to participate in cultural life in article
27 of the Universal Declaration itself was split in two. Article 15 of the International
Covenant on Economic, Social, and Cultural Rights entrenches “the right of
16
Farrokh Jhabvala, The Soviet-Bloc’s View of the Implementation of Human Rights Accords, 7 Hum. Rts. Q.
461 (1985).
every one to take part in cultural life.” At the behest of the Sub-Commission, the
International Covenant on Civil and Political Rights contains article 27, which
awkwardly affirms that persons belonging to ethnic, religious, or linguistic minori-
ties “shall not be denied the right, in community with other members of their group,
to enjoy their own culture, to profess and practice their own religion, or to use their
own language.” On the one hand, article 27 of the International Covenant on Civil
and Political Rights represented the political success of those who sought, unsuc-
cessfully, to have minority protection enshrined in the Universal Declaration. On
the other hand, the text of article 27 suggests that minority rights are individual
rights to engage in particular activities in community with others, not collective
rights of a minority population to a measure of autonomy from the broader society
in which it is located.17 And article 15 of the International Covenant on Economic,
Social, and Cultural Rights appeared to continue in the tradition of the Universal
Declaration of favoring cultural homogeneity over cultural diversity.18
The individualistic thrust of article 27 is underscored by the fact that it can be
made the basis of a complaint before the Covenant’s supervisory body, the Human
Rights Committee, which is empowered to hear only individual, not collective,
claims. This is in contrast to article 1 of the Covenant, which guarantees a right of
self-determination to all “peoples,” which, due to its collective nature, cannot form
the basis of such a complaint. On the one hand, the Covenant affords minorities a
valuable avenue of international legal redress by empowering the Human Rights
Committee to interpret the nature and scope of article 27 protection in the context
of specific disputes. On the other hand, because the Human Rights Committee
has held that it cannot hear complaints that allege violations of the right of
self-determination, it has blunted the capacity of the Covenant to provide an insti-
tutional site for the adjudication and elaboration of the collective rights of minority
populations in international law.19
17
See Patrick Thornberry, The UN Declaration on the Rights of Persons Belonging to National or Ethnic,
Religious and Linguistic Minorities, in Universal Minority Rights 23 (Alan Phillips & Allan Rosas
eds., 1995). For the view that religious minority rights enshrined in article 27 are collective in nature, see
Yoram Dinstein, Freedom of Religion and the Protection of Religious Minorities, 20 Israel Y.B. Hum. Rts.
155 (1990).
18
Notwithstanding its origins, article 15 of the International Covenant on Economic, Social, and Cultural
Rights has come to contemplate protection of cultural diversity. For detail, see Stamatopoulou,
supra note 12, at 185. See also Athanasios Yupsanis, The Meaning of “Culture” in Article 15(1)(a) of the
ICESCR—Positive Aspects of CESCR’s General Comment No. 21 for the Safeguarding of Minority Cultures,
55 Ger. Y.B. of Int’l L. 345 (2012).
19
See Lubicon Lake v. Canada, CCPR/C/38/D/167/1984 (Mar. 26, 1990), paras. 31.1, 32.2 (“the author,
as an individual, cannot claim under the Optional Protocol to be a victim of a violation of the right to
self-determination enshrined in article 1 of the Covenant, which deals with rights conferred on peoples as
such”). The Committee, however, has also held that article 1 “may be relevant in the interpretation of other
Not only are the rights enshrined in article 27 framed in individualistic terms.
The interests they aspire to protect can be comprehended in universal terms, as fea-
tures of existence essential to what it means to be a human being. The capacity to
participate in one’s culture, to hold and exercise spiritual beliefs, and to speak to
others in a common language all plausibly possess universal value. That is, cultural,
religious, and linguistic affiliations help to shape who all of us are. They constitute
important features of what it means to be human. 20 Article 27 thus protects inter-
ests that are relevant to all in circumstances where they are likely to be threatened,
namely, when a majority seeks to impose its cultural, religious, and linguistic beliefs
and preferences on a minority whose members hold different beliefs. The U.N.
Declaration on the Rights of Persons Belonging to National or Ethnic, Religious
and Linguistic Minorities, proclaimed by the General Assembly in 1992, exhibits
similar tendencies. According to its Preamble, the 1992 Declaration was “inspired
by the provisions of article 27” of the Covenant. It declares that minorities possess
rights to enjoy their own culture, to practice their own religion, and to use their
own language; to participate in cultural, religious, social, economic, and public life;
to participate in decisions on the national and, where appropriate, regional level;
and to associate with other members of their group and with persons belonging to
other minorities. But, like article 27 of the International Covenant, the Declaration
casts these rights in individualistic terms, vesting in “persons belonging to minori-
ties.” And the interests that the 1992 Declaration seeks to protect—cultural,
religious, and linguistic affiliation, political participation, and freedom of
association—are the same as those underlying article 27. Universal in significance,
they are constituent features of human identity shared by members of majorities and
minorities alike.21
rights protected by the Covenant.” J.G.A. Diergaart v. Namibia, CCPR/C/69/D/760/1996 (July 25, 2000),
para. 10.3; Gillot v. France, CCPR/C/75/D/932/2000 (July 15, 2002), para. 13.4. For an insightful review of
the Committee’s views on article 27, see Gaetano Pentassuglia, Minorities in International
Law 97 (2002).
20
See, e.g., Kymlicka, supra note 5, and Taylor, supra note 6. For Kymlicka, minority cultural protection is
warranted because cultural affiliation is central to human identity, whereas Taylor sees all individuals
as beneficiaries of minority cultures, and, for this reason, too, cultural protection is warranted. But see
Courtney Jung, The Moral Force of Indigenous Politics (2008) (cultural identity is a political
accomplishment).
21
Other U.N. instruments that extend minority rights protection include the 1951 Convention on the
Prevention and Punishment of the Crime of Genocide; the 1960 UNESCO Convention Against
Discrimination in Education; and the 1989 Convention on the Rights of the Child (1989), 1577 U.N.T.S. 43
(entered into force 1990). See also the 1993 Vienna Declaration and Programme of Action A/CONF.157/23
(July 12, 1993).
Within this universal and individualistic framework, however, the Human

Rights Committee has manifested a willingness to interpret article 27 to protect
some activities that possess non-universal and collective dimensions. Several of its
decisions contemplate the idea that the right to enjoy one’s culture includes rights
to engage in economic activities essential to cultural reproduction. In Ivan Kitok
v. Sweden,22 for example, under Swedish law, an ethnic Sami was denied rights to
herd reindeer. Kitok was a Sami living in Sami territory and had a herd of reindeer,
but he was not a Sami village member. Under Swedish law, a Sami village member
possesses rights to hunt and fish on a large part of the territory. It also authorizes
members’ reindeer herds to graze on public and private lands. The purpose of the
restrictions is to ensure the future of reindeer breeding and the livelihood of those
engaged in it. The village allowed, not as of right, Kitok to hunt and fish, and to be
present when calves were marked and herds rounded up and reassigned to owners,
in order to safeguard his interests.
The Committee held that “reindeer husbandry is so closely connected to the Sami
culture that it must be considered part of the Sami culture itself,” and where eco-
nomic activity is “an essential element in the culture of an ethnic community,” it
falls under the protection of the Covenant. 23 It saw the purpose of the Swedish law
as twofold: to restrict the number of reindeer breeders for economic and ecological
reasons and to secure the preservation of the Sami minority. It held this dual pur-
pose to be valid, but it expressed “grave concerns” that the means chosen was not
proportionate to its objective, because it failed to deploy “objective ethnic criteria
in determining membership in a minority.”24 Despite this disproportionality, the
Committee held Sweden not to be in violation of the Covenant because the law in
question was enacted to protect the rights of the minority as a whole, possessed a
reasonable and objective justification, and was necessary for the community’s con-
tinued viability and welfare.
Similarly, in Ángela Poma Poma v. Peru, an indigenous farming community’s
pastureland had been severely degraded, and much of their livestock had died, as a
result of a government-authorized water diversion project. The Committee defined
the scope of article 27 in terms similar to Kitok, as protecting against State measures
that “substantially compromise or interfere with the culturally significant economic
activities of a minority or indigenous community.”25 It added, moreover, that State
22
Communication 197/1988. Official Records of the Human Rights Committee 1987/88, vol. II, p. 442. U.N.
Doc. A/43/40 (1988).
23
Id. at para. 9.2.
24
Id. at para. 9.7.
25
Ángela Poma Poma v. Peru, Communication No. 1457/2006, U.N. Doc. CCPR/C/95/D/1457/2006, 95th
sess., Mar. 27, 2009 (2009), para. 7.6.
measures of this sort require “not mere consultation but the free, prior and informed
consent of the members of the community.”26
Other cases suggest that other civil and political rights contained in the
International Covenant of Civil and Political Rights protect minority interests in
relation to territory. In Hopu and Bessert v. France, the Human Rights Committee
heard a complaint by indigenous Polynesians who claimed to be the lawful own-
ers of land in Tahiti where the French Polynesian authorities were constructing a
resort.27 The resort was being built on an indigenous historical burial ground and
around a lagoon that was still used by thirty indigenous families for subsistence
fishing. The Covenant does not enshrine a right to property, and article 27 was not
available to the petitioners because France had made a reservation against its appli-
cation. Instead, at issue were articles 17 and 23 of the Covenant, which enshrine,
respectively, rights to privacy and to a family life.
With respect to the right to a family life, the Committee ruled that the term
family “is to be given a broad interpretation so as to include all those comprising
the family as understood in the society in question,” stating that “[i]‌t follows that
cultural traditions should be taken into account when defining the term ‘family’
in a specific situation.”28 It also noted that “the relationship to their ancestors [is]
an essential element of their identity” and plays “an important role in their family
life.” The Committee concluded that the State, by authorizing third-party use of
indigenous territory, was in violation of the right to a family life as guaranteed by
the Covenant.29 It reached a similar conclusion with respect to the right to privacy.30
Hopu and Bessert is also significant in what it contributes to debates between uni-
versalism and relativism. Moral conceptions of human rights conceive of univer-
sal norms as constituting the normative sphere of international human rights law.
Beyond this sphere lie non-universal, culturally relative norms whose legality turns
on domestic law. When such norms are vested with domestic legal validity, from this
perspective, international human rights monitor their legal consequences to ensure
that they do not compromise essential features of what it means to be human. As
26
Id.
27
Francis Hopu and Tepoaitu Bessert v. France, Communication No. 549/193, U.N. Doc. CCPR/
C/60/D/549/1993, at 217–222, views of the Human Rights Committee, July 29, 1997.
28
Id. at para. 10.3.
29
Id. For commentary, see Martin Scheinin, The Right to Enjoy a Distinct Culture: Indigenous and Competing
Uses of Land, in The Jurisprudence of Human Rights Law: A Comparative Interpretive
Approach 159 (Theodore S. Orlin, Allan Rosas & Martin Scheinin eds., 2000).
30
For more discussion of international human rights protection of indigenous territorial interests, see
Gaetano Pentasssuglia, Towards a Jurisprudential Articulation of Indigenous Land Rights, 22 Eur. J. Int’l
L. 165 (2011).
is well known, critics of such conceptions allege that universal accounts of human
rights fail to grasp that at least some moral standards are relative to specific cultural
and historical contexts and that there are no universal means of judging the merits
of culturally specific ways of life. Cultural relativists argue that universalism masks
the imposition of culturally specific beliefs on communities that possess different
inner logics, whereas universalists in turn charge that relativists authorize violations
of human rights in the name of cultural difference.
Debates between universalism and relativism, from a moral perspective, thus are
debates about whether a legal norm possesses universal value and therefore belongs
within international law, or whether it is specific to the culture from which it ema-
nates and therefore lies outside of, but subject to, international law. In Hope and
Bessert, the Human Rights Committee interpreted article 23 to protect interests that
speak to non-universal and collective dimensions of indigenous Polynesian identity.
What Hopu and Bessert reveals is that, contrary to moral perspectives, legal debates
between universalism and relativism are not debates about international law. They
occur in the context of determining the nature and scope of international human
rights and their justifiable limits. They are not debates about what is inside—and
what is outside—the field. They are debates within international law.
What international minority rights require States to do or not do is also deeply
ambiguous. It is a truism of minority protection that it requires the prohibition
of discrimination against minorities and positive measures that protect minorities
from assimilation. This truism predated contemporary international legal instru-
ments providing for minority protection. In a 1935 advisory opinion, for example,
the Permanent Court of International Justice held that Albania violated the minor-
ity rights of Greek nationals by abolishing Greek private schools, stating that “there
would be no true equality between a majority and a minority if the latter were
deprived of their own institutions, and were consequently compelled to renounce
that which constitutes the very essence of its being a minority.”31 But this truism
also informs more contemporary understandings of minority protection. The “thor-
ough study of the problem of minorities” called for by the General Assembly in
1948 was finally commissioned in 1971. This resulted in the influential 1979 report
by U.N. Special Raporteur Francesco Capotorti on the rights of persons belonging
to ethnic, religious, and linguistic minorities. In his report, Capotorti characterizes
minority protection as requiring both equal treatment and positive measures.32
Minority Schools in Albania, Advisory Opinion, 1935 P.C.I.J. (ser. A/B) No. 64 (Apr. 6).
31
U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, Special Rapporteur

32
Francesco Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic
Minorities, U.N. Doc. No. E/CN.4/Sub.2/384/Rev.1. 1979 (1979), para. 242.
This characterization finds textual support from the presence of equality rights
and minority rights in both the 1992 Declaration and the ICCPR. If minority pro-
tection was simply a matter of equality, there would be no need for additional provi-
sions extending rights to minorities. The fact that there are minority rights in these
two instruments suggests that they require States to employ positive measures to
protect minority communities. But what the 1992 Declaration requires in terms of
positive measures is far from clear. It calls on States to “protect the existence and
the national or ethnic, cultural, religious and linguistic identities of minorities”
but requires States simply to “adopt appropriate legislative and other measures to
achieve those ends.”
Similar ambiguities plague article 27 of the Covenant. On the one hand, its draft-
ers, and States party to its terms, assumed that it obligates States to allow minor-
ity members to engage in religious, cultural, and linguistic practices but also that
it does not require States to adopt positive measures to facilitate such practices.33
This explains the negative phrasing of article 27, which provides that members of
a minority “shall not be denied the right” to enjoy their culture, practice their reli-
gion, or use their language.34 On the other hand, international legal actors and insti-
tutions have begun to comprehend article 27 in a more positive light. The 1979 U.N.
Report by the Special Rapporteur, for example, argued that the implementation of
article 27 rights “calls for active and sustained intervention by states.”35 The Human
Rights Committee has followed suit, stating that minority rights in article 27 should
not be merely equated with equality rights, and that “positive measures by States
may … be necessary to protect the identity of a minority and the rights of its mem-
bers to enjoy and develop their culture and language and to practice their religion.”36
But the Committee has also held that an official language in the public sphere does
not violate the Covenant.37 It has also held that, although equality requires a State
to not discriminate between religions, the right of minority members to profess and
practice their religions does not impose an obligation on the State to fund private
religious schools.38 The Committee occasionally requests States to adopt positive
33
Id. at paras. 211–212.
34
Id. at para. 587. See generally Ryszard Cholewinski, State Duty towards Ethnic Minorities: Positive or
Negative?, 10 Hum. Rts. Q. 344 (1998).
35
Capotorti, supra note 32, at para. 217.
36
Human Rights Committee, General Comment 23: The Rights of Minorities (Art. 27), CCPR/C/21/Rev.1/
Add.5 (Apr. 8, 1994).
37
Ballantyne et al. v. Canada, Communication Nos. 359/1989 and 385/1985, para. 11.4 (“A State may choose
one or more official languages, but it may not exclude, outside the spheres of public life, the freedom to
express oneself in a language of one’s choice”).
38
Waldman v. Canada, Communication No. 694/1996.
measures to protect minority communities, but such requests are typically phrased
in general terms, providing little insight on the precise positive obligations that arti-
cle 27 imposes on States.39
The Sub-Commission commissioned another study, in 1990, on “peaceful and
constructive solutions to situations involving minorities,” which resulted in a call
to States to adopt comprehensive strategies to address minority concerns by guar-
anteeing equal treatment and by promoting linguistic, educational, and cultural
pluralism, territorial decentralization, and effective political participation.40 It also
recommended the establishment of a Working Group on Minorities, which has since
met annually.41 In 2005, the High Commissioner for Human Rights appointed an
Independent Expert on Minority Issues, who subsequently identified four broad
areas of concern in relation to minority protection: protecting the existence of a
minority; protecting the right of minorities to enjoy their cultural identities and
to reject forced assimilation; ensuring effective nondiscrimination and equality;
and ensuring effective participation of members of minorities in public life.42 The
Independent Expert also called for increased attention to minority communities in
the context of poverty-reduction strategies and in the promotion of political and
social stability.43
While these initiatives suggest that issues surrounding minority protection pos-
sess greater visibility in the United Nations than previously, the field continues to
display deep ambivalence about what minority rights require States to do to secure
their protection. This ambivalence is a function of a broader international legal
project that comprehends human rights as instruments that protect individual
interests of universal value. For minority rights to fit into this project, the interests
they protect must be capable of being construed as fundamental features of what it
means to be a human being. Religious, cultural, and linguistic affiliations plausibly
39
See, e.g., Concluding Observations of the Human Rights Committee, Guatemala, U.N. Doc. CCPR/
CO/72/GTM, para. 29 (Aug. 27, 2001) (asking Guatemala to adopt “comprehensive legislation” that
“guarantees the enjoyment of all the rights guaranteed by article 27” and to ensure that “implementation
of this legislation improves the situation of members of indigenous communities in practice and not on
paper”). For the view that the Human Rights Committee, in the context of minority language protection,
only requests positive measures to protect minority languages en route to assimilation into the dominant
language and culture of the State, see Moira Paz, The Tower of Babel: Human Rights and the Paradox of
Language, 25 Eur. J. Int’l L. 473 (2014).
40
U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, Special Rapporteur
Asbjørn Eide, Study on Peaceful and Constructive Solutions to Situations Involving Minorities, U.N. Doc. e/
CN.4/Sub.2/1993/34 and Add. 1–4 (1990).
41
For analysis, see Tom Hadden, The United Nations Working Group on Minorities, 14 Int’l J. Minority &
Group Rts. 285 (2007).
42
U.N. Doc. E/CN.4/2006/74.
43
U.N. Doc. A/HRC/4/9.
possess universal value, and so it is no surprise that these interests are those that
dominate international minority protection. These interests receive protection as
of right from the assimilative tendencies of the broader political community in
which a minority finds itself. At a minimum, this protection requires a State to not
discriminate against members of minorities. More substantive protection requires
positive measures that treat members of minorities differently than members of the
majority in relation to religious, cultural, and linguistic matters. But greater protec-
tion attenuates the normative basis of the universalism on which this conception of
minority rights rests, which explains at least part of the institutional reluctance to
specify the positive obligations that such rights impose on States.
The Political Ambiguities of Minor ity R ights
The tenuous normative relationship between minority membership and universal

value is not the only reason international law displays ambivalence about the legal
significance of minority status. Robust minority protection was left off the interna-
tional legal register after the Second World War less for pristine theoretical reasons
of universalism and more for pragmatic considerations of international peace and
security. Minority protection possesses the potential to produce political discord
by hardening differences into rights and by empowering political actors to capital-
ize on national, ethnic, religious, and linguistic differences to gain political power.
Those responsible for the post-war international legal architecture eschewed minor-
ity protection because of fears that it produces forms of ethnic politics that threaten
the political stability and territorial integrity of States. Minority protection was also
seen as producing divisive consequences between and among States to the extent
that it compromised the formal equality of States by imposing international obliga-
tions on only those States with significant minority populations.44
The post-war concern that minority rights might threaten international peace
and security has gradually been supplemented by an equally pragmatic but more
nuanced view, one that also accepts that a failure to protect minority rights might
exacerbate ethnic and cultural tensions between majorities and minorities and lead
to the splintering of political communities. More visibly in some contexts than
44
See David Wippman, The Evolution and Implementation of Minority Rights, 66 Fordham L. Rev. 597,
603 (1997) (the drafters of the U.N. Charter and the post-war human rights instruments “hoped that an
approach applicable to all individuals and all countries would avoid the internally divisive effects of confer-
ring special rights on minority group members, and of singling out particular countries on which to impose
obligations concerning the conduct of their domestic affairs not generally demanded of all states”).
others, minority protection in international law displays what Jacob Levy has theo-
rized as a “multiculturalism of fear.” It values minority protection not only for rea-
sons of universal value but also because it mitigates “dangers of violence, cruelty,
and political humiliation [that] so often accompany ethnic pluralism and ethnic
politics.”45
Concerns that minority rights possess the potential to both aggravate and allevi-
ate ethnic conflict are especially prevalent in European human rights law. Numerous
legal instruments and institutions in Europe engage questions of minority protec-
tion from several different regulatory vantage points. Like their United Nations
counterparts, these instruments and institutions comprehend minority rights in
primarily universal and individualistic terms. Minority interests also receive occa-
sional protection in the form of civil and political rights. What minority protec-
tion requires of States in terms of positive measures is similarly ambiguous. What
distinguishes European from international initiatives is the relative visibility of the
stance affirming that the legitimacy of minority rights derives from their capacity to
promote political stability in the region.
The European Convention on Human Rights, perhaps the most significant
regional human rights instrument in Europe, does not expressly enshrine minority
rights. Its text is thoroughly individualistic in nature and devoted overwhelmingly
to the protection of civil and political rights. At the time it came into force, minor-
ity rights were not part of the post-war vision of a future Europe; the Convention
was drafted in light of wartime atrocities primarily, if not exclusively, as an instru-
ment that would safeguard interests associated with civil and political rights from
the raw exercise of collective political power. The sole express exception to its focus
on civil and political rights lies in its equality guarantee, which refers to minority
membership, but its only explicit protection in this regard concerns the right of an
individual not to be discriminated against as a member of a minority defined by
language, religion, or national origin.46
The fact that the European Convention does not expressly enshrine minority
rights does not mean that it offers no minority protection whatsoever. Several if not
all civil and political rights, such as freedom of religion, expression, and association,
as well as the right to a family life, the Convention’s equality guarantee, and the right
to free elections, are all textually capable of protecting various interests of a minority
community.47 Several decisions of the European Court of Human Rights—the pri-
mary judicial body responsible for interpreting the European Convention—open
45
Jacob T. Levy, The Multiculturalism of Fear 12 (2000).
46
Art. 14.
47
Arts. 10, 11, 9, 8, and 14, and Art. 3, Protocol 1, respectively.
this jurisprudential door, suggesting that certain civil and political rights protect
interests associated with minority status. Such interests merit protection because of
their universal value, but only in circumstances where they will not lead to political
instability and conflict in the region.48
For example, in Serif v. Greece, at issue was the conviction of a Muslim religious
leader for officially representing a Muslim community in Greece without being des-
ignated as such by the Greek State. The European Court held the conviction to
be an interference with the applicant’s freedom of religion. It noted that divisions
within religious communities create “tensions,” but it held that “[t]‌he role of the
authorities in such circumstances is not to remove the cause of tension by elimi-
nating pluralism, but to ensure that the competing groups tolerate each other.”49
It noted further that Greece had not adduced any evidence to suggest that such
tension had led to “disturbances” within the Muslim population, and that the risk
of such tension beyond the Muslim community to affect relations between the
Muslim and Greek populations, or between Greece and Turkey, was nothing more
than “a remote possibility.”50
Similarly, in Socialist Party v. Turkey, at issue was the nature and scope of the
Convention’s guarantee of freedom of association in the wake of a decision by the
Turkish Constitutional Court to ban a political party. The party’s political platform
claimed that members of the Kurdish minority in Turkey constitute a nation, that
they possess a right of national self-determination, and that this right entitles them
to an independent State if they so choose.51 Instead of secession, however, the party
advocated a peaceful, constitutional transformation of Turkey into a bilingual,
binational, federal republic in which the Kurdish population would possess territo-
rial and jurisdictional autonomy. Its platform promised that “the freedom and right
of each nation and each national or religious minority to develop its language and
48
In addition to Serif v. Greece, 31 E.H.R.R. 56 (1999); Case of Socialist Party and others v. Turkey, App.
No. 20/1997/804/1007, 27 Eur. H.R. Rep. 51 (1998); and Thlimmenos v. Greece App. No. 34369/97, 31
E.H.R.R. 411 (2000), discussed below, see Belgian Linguistic Case, 1 E.H.R.R. 241 and 252 (1967 and 1968);
G. and E. v. Norway, App. Nos. 9278/81 and 9415/81, DR 35, 1985 at 30 EComm HR; S. v. Sweden, App,
No. 16226/90, Report of Sept. 2, 1991 EComm HR; Sürek v. Turkey (No.1), App. No. 26682/95 (1999);
Könkämä and 38 other Saami Villages v. Sweden, App. No. 27033/95 (1996); Buckley v. United Kingdom, 23
E.H.R.R. 101 (1996); Hasan and Chaush v. Bulgaria, App. No. 30985/96 (2000). For a detailed review of the
Court’s jurisprudence, see Fernand de Varennes, Using the European Court of Human Rights to Protect the
Rights of Minorities, in Mechanisms for the Implementation of Minority Rights 83 (Council
of Europe ed., 2004).
49
Serif v. Greece, para. 53.
50
Id.
51
Case of Socialist Party and Others v. Turkey, App. No. 20/1997/804/1007, 27 Eur. H.R. Rep. 51 (1998).
culture and to pursue political and associative activities will be guaranteed.”52 The
European Court held that the ban violated the Convention’s guarantee of freedom
of association, stating that “it is the essence of democracy to allow diverse political
programs to be proposed and debated, even those that call into question the way
a State is currently organised, provided that they do not harm democracy itself.”53
The European Court’s case law on the equality guarantee in article 14 of the
European Convention on Human Rights enables it to determine whether minority
protection is necessary in a manner that is sensitive to the particular circumstances
of minority communities. In Thlimmenos v. Greece, the Court, for the first time,
expressly held that nondiscrimination in certain circumstances requires the differ-
ential treatment of “persons who are significantly different.”54 Thlimmenos was a
Jehovah’s Witness who had been convicted of insubordination for refusing to enlist
in the military for religious reasons. He was subsequently barred from registering
as a chartered accountant according to a Greek law preventing registration of per-
sons convicted of a serious crime. Greece was held to have violated article 14 of the
Convention for failing to introduce appropriate exceptions to the bar on registra-
tion. Thlimmenos effectively introduces the concept of indirect discrimination to
Convention equality jurisprudence. It suggests that the equality guarantee, in cer-
tain circumstances, imposes positive obligations on the State to treat some members
of society, in that case, members of a religious minority, differently than others.55
There are other regional institutions that address minority concerns more directly,
most notably the Organisation on Security and Cooperation in Europe. As its name
suggests, the OSCE is an organization that is concerned with regional security, spe-
cifically, conflict prevention, crisis management, and post-conflict rehabilitation.
That the OSCE monitors the treatment of minorities in the region is an indication
of how European law and policy comprehends minority rights as potentially both
stabilizing and destabilizing to the region. The OSCE has assumed this role under
the auspices of the Office of the High Commission on National Minorities, estab-
lished in 1992 to identify and seek early resolution of ethnic tensions that might
endanger peace, stability, or friendly relations between States. The OSCE also has
52
Id. at para. 13. It also affirmed that “no Turk will be entitled to enter paradise if a single Kurd remains
in hell.”
53
Id. at para. 47. For more discussion of this issue, see Patrick Macklem, Militant Democracy, Legal Pluralism,
and the Paradox of Self-Determination, 4 Int’l J. Const. L. 488 (2006).
54
Thlimmenos v. Greece, App. No. 34369/97, 31 E.H.R.R. 411, para. 44 (2000).
55
For commentary on Thlimmenos in the context of minority protection, see Sia Spiliopoulou Ǻkermark,
The Limits of Pluralism—Recent Jurisprudence of the European Court of Human Rights with Regard to
Minorities: Does the Prohibition of Discrimination Add Anything?, 3 J. Ethnopolitics & Minority
Issues in Europe 1 (2002).
in place what is known as the “human dimension mechanism,” which involves an

intergovernmental complaints procedure that can be activated in crisis situations to
bring regional scrutiny to bear on ethnic conflict.56
Other European institutions that oversee minority protection include the
Council of Europe, which adopted the 1992 Framework Convention on the
Protection of National Minorities and monitors the extent to which States party
to the Convention comply with its terms.57 The Framework Convention provides
a rich description of its ideological origins, noting that “the upheavals of European
history have shown that the protection of national minorities is essential to stability,
democratic security and peace,” and that toleration and dialogue are necessary to
enable “cultural diversity” to be a source of “enrichment” as opposed to “division.”
Like the ICCPR and the U.N. Declaration, the Framework Convention refers to
the rights of persons belonging to national minorities, suggesting an emphasis on
individual as opposed to collective interests. This represents a significant departure
from the recommendations of the Council of Europe’s Parliamentary Assembly
of four years earlier, which had proposed the entrenchment of rights of national
minorities to be recognized as such by the States in which they are located, to main-
tain their own cultural, educational, and religious institutions, and to participate in
decisions about matters that affected their identities.58
The Framework Convention also narrows the scope of protection to national
minorities in contrast to the 1992 U.N. Declaration, which also provides protection
to ethnic, religious, and linguistic minorities.59 It emphatically asserts that mem-
bers of national minorities possess equality rights and freedom of assembly, associa-
tion, expression, thought, conscience, and religion. It also specifies that members
of minorities have the right to learn their minority language, operate their own
private school systems, and to use minority languages in public and private, in sur-
names and first names, in local names, signs, and inscriptions, and in contacts with
56
See generally Jennifer Jackson Preece, National Minorities and the European
Nation-States System (1998).
57
Framework Convention for the Protection of National Minorities, C.E.T.S. No. 157, opened for signature
on Feb. 1, 1995 (entered into force Feb. 1, 1998). See generally Geoff Gilbert, The Council of Europe and
Minority Rights, 18 Hum. Rts. Q. 160 (1996). For the view that the Framework Convention extends the
scope of minority protection beyond enabling members of minorities to preserve their distinctive cultures
to include the aim of fostering cross-cultural interactions and cultural pluralism, see Julie Ringelheim,
Minority Rights in a Time of Multiculturalism—The Evolving Scope of the Framework Convention on the
Protection of National Minorities, 10 Hum. Rts. Q. 99 (2010).
58
Council of Europe, Parliamentary Assembly Recommendation 1134 on the Rights of Minorities (1990).
59
Despite its references to “national” minorities, some of its provisions may protect other kinds of minorities.
See Rainer Hoffman, Protecting the Rights of National Minorities in Europe, 44 Ger. Y.B. Int’l L. 237
(2001).
administrative bodies and courts whenever possible. As a framework agreement, the

instrument is not directly applicable in the domestic legal orders of the member
States, but is intended to be implemented through national legislation and appro-
priate governmental policies.
The 1992 European Charter for Regional or Minority Languages, also a
product of the Council of Europe, reaches further into the public sphere than the
Framework Convention.60 Despite the provocative claim in its preamble that the
use of a regional or minority language is an “inalienable right,” however, the 1992
Charter seeks to protect regional and minority languages, not linguistic minori-
ties. It does not enshrine any individual or collective rights for the speakers of these
languages. It lists several principles and objectives, such as the promotion of mutual
respect and understanding between linguistic groups, the establishment of bodies
to represent the interests of regional or minority languages, and the need for positive
action for the benefit of regional or minority languages, which apply to all regional
or minority languages. It then contains a series of more specific provisions concern-
ing the place of regional or minority languages in the context of education, the legal
sphere, public administration, the media, cultural activities and facilities, the mar-
ket, and international exchanges. Individual States are free, within certain limits,
to determine which of these provisions will apply to each of the languages spoken
within their boundaries.
A concern that lack of minority protection threatens international and regional
stability also informs the criteria of membership in the European Union and NATO.
Candidate countries must comply with the “Copenhagen criteria” for admission to
EU membership set out by the European Council in 1993. These criteria include
requirements that candidate countries have achieved “stability of institutions guar-
anteeing democracy, the rule of law, human rights and respect for and protection
of minorities.”61 A functioning democratic political system, including respect for
persons belonging to minorities in accordance with OSCE standards, is also one of
the political criteria of NATO membership.62
Reforms in Turkey provide a vivid illustration of Copenhagen criteria compli-
ance.63 Turkey was declared a candidate State destined to join the European Union
60
European Charter for Regional or Minority Languages, C.E.T.S. No. 148, opened for signature Nov. 5,
1992 (entered into force Mar. 1, 1998).
61
Bulletin of the European Community, 6/1993, at I.13. See generally, Gaetano Pentassuglia, The EU and
the Protection of Minorities: The Case of Eastern Europe, 12 Eur. J. Int’l L. 3 (2001); Martin Brusis, The
European Union and Interethnic Power-Sharing Arrangements in Accession Countries, 1 J. Ethnopolitics
& Minority Issues in Eur. (2003).
62
See, e.g., NATO Public Diplomacy Division, NATO Transformed 21 (June 2004).
63
Scholars debate the salience of domestic political factors as intervening variables when assessing the
impact of the Copenhagen criteria on domestic reforms. See Norms and Nannies: The Impact
conditional on Copenhagen criteria compliance in 1999.64 Turkey responded with

an extensive set of reforms designed to harmonize its domestic legal order with
European standards. These reforms included enhanced protection of certain human
rights, including freedom of expression, association and assembly, abolition of the
death penalty, and the criminalization of genocide and crimes against human-
ity. They also included media and educational rights designed to benefit Turkey’s
Kurdish minority population.
Conditioning prospective membership in the EU and NATO on adequate pro-
tection of minorities in candidate States does not, however, entail a review of how
existing member States treat their minority populations. This has led some to claim
that a double standard exists between existing and new members, or between old
and new Europe.65 But whether requiring candidate countries to provide adequate
minority protection constitutes a double standard depends on the reason for the
requirement. If the sole reason for the requirement is because there are aspects of
minority membership that merit protection because they are intimately connected
to human identity, then it is difficult to see why minority protection matters in
Ankara but not in Amsterdam. The requirement of minority protection, however,
can be understood instead, as Levy suggests, as reflecting the fear that economic and
political integration without minority protection is likely to foster ethnic unrest in
candidate countries but not in member countries. On this view, minority rights are
to be promoted where they will minimize ethnic conflict and to be avoided where
they will exacerbate ethnic conflict.
Pragmatic considerations about how to minimize the potential of ethnic con-
flict lie at the heart of this political conception of minority rights. Understood this
way, minority rights signal that the prevention of ethnic conflict is a valid reason to
interfere in the internal affairs of a State and that States should be required, in those
instances where it would effectively minimize ethnic conflict, to protect them.
Pragmatic considerations, however, are not the entire story of minority protection,
even if they inform more of that story at the European than at the international
level.66 But do these pragmatic considerations exhaust the normative significance of
of International Organizations on the Central and East European States (Ronald

H. Linden ed., 2002).
64
Helsinki European Council, Presidency Conclusions (Dec. 1999).
65
Milada Anna Vachudova, Europe Undivided: Democracy, Leverage, and Integration
after Communism 121 (2005).
66
Compare Will Kymlicka, Multicultural Odysseys: Navigating the New International
Politics of Diversity 9 (2007) (“international organizations alternate between these two approaches
[of the fear of ethnic violence and the hope of liberal multiculturalism], as indeed is appropriate, since both
perspectives identify aspects of the complex reality of contemporary ethnic politics”).
minority rights? Are minority rights simply a necessary international evil, or do they
possess positive normative value such that they can be comprehended as legitimate
entitlements in our international legal order? Political accounts risk reducing their
normativity to pragmatic considerations, which seem ill-suited to the discourse of
rights. Moral conceptions of minority rights remain steeped in universalism, but, as
we have seen, the relationship between minority membership and universal value
is tenuous at best. If the various instruments and institutions devoted to the pro-
tection of minority rights in international human rights law fit awkwardly within
political and moral conceptions of human rights, this raises an obvious question. Is
there another account that makes better normative sense of international minority
rights than one that grounds their legitimacy in universalism or pragmatism?
The Inter dependence of Sover eignty and Minor ity Protection
If moral theorists can be faulted for paying relatively little attention to international
legal developments when reflecting on the nature and significance of cultural iden-
tity, legal scholars have tended to shy away from exploring minority rights when
reflecting on the nature of international human rights law. Elsa Stamatopolou offers
several reasons that legal scholars have tended to neglect the role that minority
rights play in international law.67 One reason lies in definitional difficulties. Given
the fluidity of cultures, it is difficult to pin down essential features that merit pro-
tection in the form of rights.68 International legal scholars are also wary of minority
rights to the extent that they serve as proxies for transformative political projects
that exacerbate ethnic tensions and ultimately threaten international legal commit-
ments to State sovereignty.69 But Stamatopoulou also points to the “delicate and
fragile universality concept that has been painstakingly woven” into international
human rights law “over the last five decades.” 70 Discussions of culture threaten to
unleash relativist critiques of universalism, which paint commitments to interna-
tional rights as disguised forms of moral imperialism. Instead of building a case
for international minority rights from claims about the moral significance of cul-
tural interests—claims that might trigger relativist backlash—legal scholars retreat
67
Stamatopoulou, supra note 12, at 4.
68
Id. But see Timo Makkonen, Minorities’ Rights to Maintain and Develop Their Culture, in Cultural Human
Rights 193 (F. Francioni & M. Scheinin eds., 2008) (drawing on social science scholarship to rebut claims
that the concept of culture is too elusive to be the subject of juridification).
69
Stamatopoulou, Cultural Rights, supra note 12, 4–6, 245.
70
Id. at 4.
to more formal justifications of international cultural rights that rest on the fact
that they are entrenched in treaties to which States are party. State consent, not
contested claims about the universal significance of cultural identity, thus becomes
the basis of international legal obligations to respect, protect, and promote cultural
rights.
The lack of attention shown to minority rights by international legal scholars is
especially striking given that protection of cultural practices—at least those imbued
with religious significance—has formed part of the international legal order since its
very inception. The two peace treaties of Osnabrück and Münster of 1648, known
collectively as the Treaty of Westphalia, ended both the Thirty Years’ War in the
Holy Roman Empire and the Eighty Years’ War between Spain and the Republic
of the Seven United Netherlands. Participants included the Holy Roman Emperor,
Ferdinand III, and the Kingdoms of France, Spain, and Sweden, the Netherlands,
and their respective allies among the princes and the republican imperial States
of the Holy Roman Empire. Embracing the concept of State sovereignty perhaps
for the first time in international politics by affirming the political independence
and coordinating the territorial claims of its participants, the Treaty of Westphalia
is also known for its guarantees of religious freedom for minority communities.
While it recognized the sovereign right of princes to determine the religion of their
own States, it also guaranteed to minority communities the right to practice their
faith in public and private realms. The Treaty of Westphalia underscores the deep
historical foundation of an international legal order organized around the twin
principles of State sovereignty and legal protection of minority cultures.71 It also
suggests, however, that sovereign statehood and political demands for cultural pro-
tection are mutually constitutive. What the Treaty of Westphalia illustrates is the
possibility that sovereignty and minority protection depend on each other for their
legal existence.72
71
For more discussion of Westphalia and minorities, see Daniel Philpott, Religious Freedom and the Undoing
of the Westphalian State, 25 Mich. J. Int’l L. 981 (2004); Andreas Osiander, Sovereignty, International
Relations, and the Westphalian Myth, 55 Int’l Org. 251 (2001); Stéphane Beaulac, The Westphalian Legal
Orthodoxy—Myth or Reality?, 2 J. Hist. Int’l L. 148 (2000); Stephen Krasner & Daniel Froats, Minority
Rights and the Westphalian Model, in The International Spread of Ethnic Conflict: Fear,
Diffusion, and Escalation 227 (D. Lake & D. Rothchild eds., 1998). Janne Nijman describes the his-
tory of minorities and majorities in international law in more ancient terms, as having clear roots in periods
before 1648, in 4th—6th-century Asia Minor. Janne Nijman, Majorities and Minorities, in The Oxford
Handbook of the History of International Law 100, 102–03 (Bardo Fassbinder & Anne Peters
eds., 2012).
72
Compare William K. Barth, Cultural Rights: A Necessary Corrective to the Nation State, in Cultural
Human Rights 79 (F. Francioni & M. Scheinin eds., 2008). Barth also alludes to the possibility of a
mutually constitutive relationship between sovereign statehood and minority cultural protection. He
links the history of cultural rights in international law to the central role that State sovereignty plays in
Efforts by the major powers to address some of the consequences of the dramatic
redistribution of sovereign power at the end of the First World War also display
this intimate interdependence of sovereignty and minority protection. Their efforts
generated an additional web of multilateral and bilateral treaties, monitored by the
League of Nations, which provided protection to populations displaced or adversely
affected by the war and its distributional consequences. Although protection was
tailored to particular circumstances, there were common features. The relevant
instruments contained stipulations regarding the acquisition of the nationality of
the newly created or enlarged State, the right to equal treatment, rights against non-
discrimination, and the protection of ethnic, religious, or linguistic identity, includ-
ing the right of minorities to officially use their mother tongue, to have their own
schools, and to practice their religion. The League of Nations assumed the authority
to agree to changes to these provisions and the power to intervene in the event of
an infraction, taking such action as was appropriate to each case. In addition, the
Permanent Court of International Justice, the League’s judicial body, was vested
with compulsory jurisdiction to resolve certain cases involving disputes between
minorities and the States in which they were located.73
This system of minority protection was not a universal one; it governed only cer-
tain States and not others within Europe and surrounding areas. States defeated
in the war, with the exception of Germany, had been compelled to agree to special
minority provisions. New States, as well as those reconstituted by the inclusion of
additional territory and a minority population—with the exception of Belgium,
Denmark, France, and Italy—were required to sign separate treaties providing
for minority protection. It also governed some minorities and not others within
particular States. The Treaty of Lausanne, for example, required Turkey to respect
minority rights of non-Muslim minority communities in its territory, a provision
that Turkey interpreted as not requiring it to recognize any minority rights of its
promoting national identities. In his view, “normative discussions generally resist the challenge to analyse
multiculturalism as a question about the structure of states.” Id. at 88. Quoting Hobsbawm to the contrary,
Barth argues that the “nation state, nation, nationality, and minority are all ‘intertwined and sides of the
same coin.’ ” Id. at 84–85 (quoting Eric Hobsbawm, Nations and Nationalism Since 1780 9 (1990).
Minority cultural rights challenge “the tendency to accept the nation state’s structure as a given.” Barth,
supra at 88. In so doing, they operate “as a corrective to the record of atrocity caused by state coercive assimi-
lation campaigns inspired by the ideology of nationalism.” Id. at 87. For Barth, filling the formal container
of the sovereign State with substantive nationalist aspirations produces a normative need for minority cul-
tural protection.
73
For an illuminating account of minority protection under the League of Nations, see Peter Hilpold, The
League of Nations and the Protection of Minorities—Rediscovering a Great Experiment, 17 Max Planck
Y.B. of U.N. L. 87 (2013).
Kurdish population.74 It also required Greece to recognize the rights of its Muslim
population, a provision that Greece interpreted as not requiring it to recognize
any minority rights protecting Turkish national interests, as opposed to Muslim
religious interests.75 Although the Assembly of the League of Nations adopted a
resolution calling on all member States to observe the standards embodied in the
minority treaties, it fell on deaf ears.76 Majoritarian resentment led States subject to
minority treaties to ignore their provisions. The system’s shortcomings were but one
of the many complex variables that led to the demise of the League of Nations and
the onset of the Second World War.
But to portray the interwar system of minority protection as an institutional fail-
ure obscures how the reasons for its establishment point the way to an alternative
conception of international minority rights, one that seeks to locate their interna-
tional legal significance less in universal elements of human identity and more in the
structure and operation of the international legal order itself. The interwar system
of minority protection was established in direct response to the extensive redistribu-
tion of sovereign power that occurred immediately after World War I, and sought
to mitigate some of its adverse distributional consequences. Regardless of its insti-
tutional shortcomings, the interwar minority protection system suggests a different
normative logic to the legitimacy of minority rights in international human rights
law. On this alternative conception, minority rights monitor the justice of the dis-
tribution of sovereign power that international law performs to bring legal order to
global politics.
To see why this is so, it is necessary to stand back from legal detail and grasp the
nature of sovereign power in international law. As detailed in Chapter 2, by legally
validating some claims of sovereign power and refusing to validate others, interna-
tional law organizes global politics into a legal order in which certain collectivities
74
Turkey continues to claim that the Kurdish population does not possess international minority rights,
because Turkey has reserved the right to interpret and apply the provisions of article 27 of the International
Covenant on Civil and Political Rights in accordance with its Constitution and the Treaty of Lausanne.
Some have argued that the possibility of EU accession is softening Turkey’s resistance to recognizing the
minority status of its Kurdish population. See Ayşe Betûl Ĉelik, Transnationalization of Human Rights
Norms and Its Impact on Internally Displaced Kurds, 27 Hum. Rts. Q. 969 (2005).
75
The European Court of Human Rights recently rebuffed Greece’s claim that by virtue of the Treaty of
Lausanne, only a Muslim minority and not a Turkish minority exists in the region of Western Thrace. See
Emin et al. v. Greece, App. No. 34144/05 Eur. Ct. H.R. at para. 30 (2008) (“freedom of association involved
the right of everyone to express, in a lawful context, their beliefs about their ethnic identity” and “however
shocking and unacceptable certain views or words used might appear to the authorities, their dissemination
should not automatically be regarded as a threat to public policy or to the territorial integrity of a country”).
76
For a contemporaneous introduction to the “generalization” debate, see Howard B. Calderwood, The
Proposed Generalization of the Minorities Regime, 26 Am. Pol. Sci. Rev. 1088 (1934).
possess legal authority to rule people and territory. International legal rules deter-
mine which collectivities are entitled to exercise sovereign authority and over which
territory and people such authority operates. In doing so, international law effec-
tively performs an ongoing distribution of sovereignty among certain collectivities
throughout the world.
Treaties, like the Treaty of Lausanne of 1923, possess the capacity to modify
the distribution of sovereign power by transferring sovereignty over territory and
people from one sovereign actor to another. In so doing, they create majorities and
minorities, such as those created and validated by the Treaty of Lausanne in Greece
and Turkey. Minorities exist in relation to majorities, and majorities exist because
international law distributes sovereign power over territory and people to certain
collectivities and not others.77 In Jennifer Jackson Preece’s words, minority rights
mitigate the consequences of “those moments when the spatial framework of the
states system is modified and new anomalies between the pattern of human com-
munities and international boundaries—insiders and outsiders—are created.” 78
Comprehending minority rights claims in distributive terms, that is, in terms of the
role they can play in monitoring the justice of the distribution of sovereign author-
ity, reveals that their normative status rests not on whether they protect universal
human values but whether they promote a just distribution of sovereign authority
in international law by addressing “new anomalies” that arise upon sovereignty’s
redistribution. Seen in this light, minority rights serve as instruments to mitigate
injustices associated with the kinds of recalibrations of sovereign power exemplified
by the Treaty of Lausanne that international law treats as possessing international
legal force.
This approach validates the extension of different forms of minority protection
to different minorities by clarifying why the scope of protection might vary depend-
ing on the minority in question. Article 27 of the International Covenant on Civil
and Political Rights, for example, has been characterized by Will Kymlicka as a
“universal and portable cultural right that applies to all individuals, even migrants
77
Compare Hans Kelsen:
[T]‌he concept of a majority assumes by definition the existence of a minority, and thus the right of
the majority presupposes the right of the minority to exist. From this arises perhaps not the neces-
sity, but certainly the possibility, of protecting the minority from the majority. This protection of
minorities is the essential function of the so-called basic rights and rights of freedom, or human and
civil rights guaranteed by all modern constitutions of parliamentary democracies.
Hans Kelsen, On the Essence and Value of Democracy, in Weimar: A Jurisprudence of

Crisis 100 (Arthur J. Jacobson & Bernard Schlink eds., 2000) (emphasis in original).
78
Jennifer Jackson Preece, Minority Rights in Europe: From Westphalia to Helsinki, 33 Rev. Int’l Stud. 75
(1997).
and visitors.” 79 The contrast of this form of minority protection with the interwar
system—which extended to some minorities and not others, some States and not
others, and only to Europe and some of its immediate neighbors—could not be
more striking. One should not overstate the universalization of minority protec-
tion. Article 27 rights vest only in individuals who belong to a minority, and only
membership in ethnic, religious, and linguistic minorities counts for the purposes
of its protection. But one should not understate it either. Article 27 takes minority
protection global. Minority protection is no longer tied to a particular region, his-
tory, or territory. The only remaining contingency is minority membership itself.
Kymlicka accordingly argues that this renders article 27 a “generic right,” one that
“precludes claims that flow from the facts of historic settlement or territorial con-
centration.”80 But what prevents article 27 from differentiating between and among
minorities on the basis of historical and geographical contingencies is not that it is
inherently generic. It is instead the compulsion to interpret article 27 in universal
terms, as protecting essential features of our common humanity and not protecting
contingent features of our diverse identities. In contrast, if the structure and opera-
tion of international law underpins minority protection, then such protection can
and should take into account the fact that the structure and operation of interna-
tional law affects different minorities differently, and thus can and should be tai-
lored to speak to their different circumstances.81
This justification focuses the normative spotlight not on the legitimacy of minor-
ity rights but on the legitimacy of the boundaries of the broader political commu-
nity in which—and against which—such rights are asserted. It reveals that the
relevant normative question relates to the legitimacy of the assertion of State sov-
ereignty over people who possess little affiliation to the broader political commu-
nity in which they find themselves. Whether minority rights, from this perspective,
merit international legal protection turns on the legitimacy of the boundaries of the
political community of which the State is a formal manifestation. To what extent
did the minority community in question participate in the establishment of the
majority political community in which it finds itself? What modes of acquisition of
territorial authority—discovery, conquest, settlement, adverse possession—are con-
sistent with ideals associated with a just international legal order? Did the minority
79
Kymlicka, supra note 66, at 202.
80
Id.
81
Compare Miriam J. Aukerman, Definitions and Justifications: Minority and Indigenous Rights in a Central/
Eastern European Context, 22 Hum. Rts. Q. 1011, 1048 (2000) (“one must think of group-differentiated
rights which draw on international standards to define protections for particular people in terms of the
specific justifications of need, history, and culture applicable in a particular case”).
community accede to the norms by which sovereignty vested in its parent State?
Were the preexisting entitlements of the minority community respected in the pro-
cess by which the State assumed sovereign authority over its members?
Focusing on injustices produced by the structure and operation of the interna-
tional legal order as opposed to abstract conceptions of universal right thus yields
a more refined approach to minority protection. The standard universal account of
the field fails to address the deep diversity of claims by minority communities that
they are entitled to a certain measure of autonomy or protection from assimilative
tendencies of the broader political community in which they are located.82 Some of
these communities, like indigenous peoples in the Americas and elsewhere, claim
ancestral relations to territories that long predate the establishment of States in
which they find themselves. Some share an ethnic kinship with a State other than
the one in which they are located. Some simply share common cultural traditions
that they regard as defining features of their collective identities. Some define them-
selves in terms of religious identities not shared by the majority of members of the
political community in which they are located. The standard account of the field
forces us to inquire into what all of diverse claims might share, and then determine
whether this feature or set of features possesses universal value and therefore merits
international protection.83
The account offered here, in contrast, facilitates differentiation among minor-
ity claims by locating their international legal significance in relation to the legiti-
macy of the sovereign power that they challenge, which in turn rests on the way
that international law participates in the formation of minorities by distributing
and redistributing sovereign power among States. National minority rights claims
speak to different distributive injustices caused by how international law organized
and continues to organize global politics into a legal order. Claims based on reli-
gious and cultural difference challenge the limits of sovereign power more than its
sources. International indigenous rights speak to the distributional consequences of
an international legal validation of morally suspect colonization projects. Instead of
seeking commonalities among minorities from the vast diversity of their religious,
cultural, linguistic, and national identities, this alternative approach distinguishes
82
Compare Kymlicka, supra note 66, at 202 (arguing that article 27 embodies a generic approach to minor-
ity protection, articulating a “universal and portable cultural right that applies to all individuals”). For
Kymlicka, European minority protection is abandoning a “targeted” approach to national minorities
and shifting to a more generic strategy. Id. at 205–31. See also Will Kymlicka, The Internationalization of
Minority Rights, 6 Int’l J. Const. L. 1 (2008).
83
Contemporary legal and political theory typically identifies cultural difference to be the unifying feature
of these kinds of diverse political claims and either defends or critiques its protection. See Courtney Jung,
Why Liberals Should Value “Identity Politics,” 135 Daedalus 32 (2006).
among the myriad claims for minority protection vying for international legal
recognition—by specifying their legal relevance in terms that relate to the struc-
ture and operation of international law. Differentiation along these lines does not
resolve the contentious ethical, political, and legal issues associated with interna-
tional minority rights. But it clarifies why some minorities and not others might
merit international legal protection.
6
IN T ER N AT IO N A L IN DIG EN O U S R ECO G N I T IO N
at the height of the Second World War, Hans Kelsen, a leading proponent of
the view that there exists a sharp distinction between politics and law, published
an essay entitled Recognition in International Law: Theoretical Observations.1 What
Kelsen meant by “recognition” was the recognition of a State in international law.
In classic Kelsenian fashion, he argued that “the term ‘recognition’ may be said to
be comprised of two quite distinct acts: a political act and a legal act.”2 Political
recognition, such as the establishment of diplomatic relations, means that the rec-
ognizing State is willing to enter into a political relationship with the recognized
community. But this willingness, even if reciprocal, does not turn the community
in question into a State in international law. In contrast, legal recognition is con-
stitutive of statehood. It is a legal conclusion—Kelsen calls it “the establishment of
a fact”3—that a community meets international legal requirements of statehood.
According to Kelsen, “by the legal act of recognition the recognized community is
1
Hans Kelsen, Recognition in International Law: Theoretical Observations, 35 Am. J. Int’l L. 605 (1941).
Kelsen’s article sparked a lively debate. See Herbert W. Briggs, Recognition of States, Some Reflections on
Doctrine and Practice, 43 Am. J. Int’l L. 113 (1949); Philip Marshall Brown, The Effects of Recognition, 36
Am. J. Int’l L. 106 (1942); Edwin Borchard, Recognition and Non-Recognition, 36 Am. J. Int’l L. 108
(1942).
2
Kelsen, supra note 1, 605.
3
Id. at 607.
133
brought into legal existence in relation to the recognizing state, and thereby interna-
tional law becomes applicable to the relations between these states.”4
Contemporary accounts of recognition in international law treat recognition in
declaratory terms, as an act by one State that affirms the legal existence of another
State.5 On a declaratory account, whether a State exists in international law does not
turn on whether other States recognize it as a State; instead, it turns on whether it
possesses the objective attributes of a State. Despite their differences, what declara-
tory and constitutive accounts of recognition share is the insight, eloquently articu-
lated by Kelsen in 1941, that international law confers legal validity on a claim of
sovereignty if it manifests properties that international law stipulates as conditions
of acquiring statehood.
This insight assumes renewed relevance in light of the fact that international law
increasingly structures and regulates relations between States and non-State actors.
Numerous international legal instruments assume that individuals belong to cer-
tain communities of value. In some circumstances, communities themselves exist in
international law—not as States but as international legal actors in their own right.6
In Kelsenian terms, what criteria does international law provide to determine the
legal existence of a community that is legally distinct from the State in which it is
located?
This chapter addresses this question in the context of the evolving status of indig-
enous peoples in international law. International law historically did not recognize
indigenous peoples as sovereign legal actors, but international instruments now
vest rights in indigenous peoples and establish indigenous peoples as international
legal actors to whom States and other international legal actors owe legal duties
and obligations. These developments began between the First and Second World
Wars, when the International Labour Organization began to supervise indigenous
4
Id. at 609. In 1948, Hersch Lauterpacht argued that the constitutive account yields recognitional rights and
duties. See Hersch Lauterpacht, Recognition in International Law (1948). For a contempo-
raneous critique of Lauterpacht’s thesis, see Josef L. Kunz, Critical Remarks on Lauterpacht’s “Recognition
in International Law,” 44 Am. J. Int’l L. 713 (1950). For a declaratory account that includes recognitional
rights and duties, see Ti-Chiang Chen, The International Law of Recognition ( L.C. Green
ed. 1951).
5
See, e.g., Opinion No. 1 of the Arbitration Commission of the Peace Conference on Yugoslavia, 31 I.L.M.
1494 (1992) (“the existence or disappearance of the State is a question of fact; the effects of recognition by
other States are purely declaratory”). For a comprehensive overview of this debate, see James Crawford,
The Creation of States in International Law 1 (2d ed. 2006).
6
International organizations also possess the capacity to acquire international legal personality. See
Reparation for Injuries Suffered in the Service of the United Nations, 1949 I.C.J. 174, 1949 WL 3 (Apr.
11) (the United Nations “is a subject of international law and capable of possessing international rights and
duties, and … it has capacity to maintain its rights by bringing international claims”).
International Indigenous Recognition 135
working conditions in colonies. They continued after the Second World War with
ILO Conventions 107 and 169, which vested rights in indigenous populations
located in States party to their terms.
More recently, the U.N. General Assembly enacted the Declaration on the
Rights of Indigenous Peoples,7 which declares that indigenous peoples possess a
wide array of rights, including the right of self-determination. It affirms the inter-
national legal existence of indigenous peoples by recognizing them as legal subjects,
and it renders international law applicable to their relations with States. Some of
these international instruments, such as conventions adopted by the International
Labour Organization legally bind States party to their terms. Others, like the U.N.
Declaration do not, strictly speaking, legally bind international legal actors, but
they nonetheless have diffuse legal consequences for the development of both inter-
national and domestic law.8
If recognition may be said to be “comprised of two quite distinct acts: a politi-
cal act and a legal act,”9 what legal act of recognition brings indigenous peoples
into existence in international law? What criteria does international law provide
to determine the international legal existence of indigenous peoples? Some interna-
tional legal instruments provide guidance on what constitutes an indigenous popu-
lation or people, but they are not explicit about what constitutes its international
legal status. Others, such as the U.N. Declaration on the Rights of Indigenous
Peoples, specify no criteria for determining whether a community constitutes an
indigenous people in international law. In this chapter, I argue that questions about
indigenous recognition in international law ought to be approached in light of the
nature and purpose of international indigenous rights. Indigenous rights in inter-
national law mitigate some of the adverse consequences of how the international
legal order continues to validate what were morally suspect colonization projects
by imperial powers. Indigenous peoples in international law are communities that
manifest historical continuity with societies that occupied and governed territories
prior to European contact and colonization. They are located in States whose claims
of sovereign power possess legal validity because of an international legal refusal to
recognize these peoples and their ancestors as sovereign actors. What constitutes
indigenous peoples as international legal actors, in other words, is the structure and
operation of international law itself.
7
A/Res/61/295 Ann. 1 (Sept. 13, 2007).
8
For a sampling of some of these diverse legal consequences, see Stephen Allen, The UN Declaration on the
Rights of Indigenous Peoples: Towards a Global Legal Order on Indigenous Rights?, in Theorizing the
Global Legal Order 187 (Andrew Halpern & Volker Roebens eds., 2009).
9
Kelsen, supra note 1, at 605.
This way of understanding the status of indigenous peoples in international law

explains why they possess human rights that international law does not extend to
other minorities. International indigenous rights speak to adverse consequences of
the structure and operation of international law that are relatively distinct from
those with which international minority rights engage. Whereas minority rights
speak to the fact that the deployment of sovereignty as a legal entitlement to struc-
ture global politics produces minority communities in States and authorizes States
to act in ways harmful to those communities, indigenous rights in international law
recognize differences, partly denied and partly produced by the international distri-
bution of territorial sovereignty initiated by colonization, that exist between indig-
enous and nonindigenous peoples. The morally suspect foundations of the sovereign
power that a State exercises over indigenous peoples residing on its territory are why
indigenous rights merit recognition on the international legal register.
This chapter develops these claims by engaging with several issues raised by
indigenous recognition in international law. What legal conclusions did inter-
national law draw from the “political fact” of indigenous peoples in the past?
What is the relationship between legal recognition of States and legal recogni-
tion of indigenous peoples? What are the legal forms of indigenous recognition,
and what ends do they serve in international law? What role does indigenous
legal recognition play in the structure and operation of the international legal
order? The chapter first heuristically locates Kelsen’s description of the role of
recognition in a broader account of international legal rules and principles gov-
erning the acquisition and distribution of sovereign authority, and recounts how
international law validated claims of sovereign power over indigenous peoples
and their territories. It then describes developments in the International Labour
Organization that led to the gradual emergence of indigenous populations as
legal actors in international law. It also addresses developments in the United
Nations, culminating in the recent adoption of the U.N. Declaration on the
Rights of Indigenous Peoples. Finally, it offers some theoretical observations on
the legal requirements of indigenous recognition in international law, the rela-
tion between legal recognition of States and legal recognition of indigenous peo-
ples, and the nature and purpose of international indigenous rights.
Indigenous Territories and the Acquisition of Sovereignty
When Kelsen wrote that, “by the legal act of recognition the recognized com-
munity is brought into legal existence,” what he meant by “legal existence” is
international legal recognition.10 That is, the recognized community acquires

international legal status as a legal actor vested with sovereign authority over its
territory and population. It does so by manifesting attributes that international
law requires of States as legal subjects. This is not to say that the community pos-
sesses no legal existence before or in the absence of international legal recognition.
A community could possess a legal existence by virtue of its own legal system. It
could also possess legal status by virtue of the domestic law of the State in which it
is located. What Kelsen had in mind was legal status in international law. The legal
act of recognition of a community as a State brings that community into interna-
tional legal existence as a State. It possesses legal rights not simply by virtue of its
own laws or the laws of the State in which it is located. It is no longer “located”
within a State. It becomes a State unto itself in international law, a subject of inter-
national law, governed by international law itself, with its own juridical location in
the international legal order.
Kelsen was aware of the objection that, given it is States themselves who are in
the business of recognizing the existence of other States, who has sovereignty and
who does not in international law looks suspiciously more political than legal. His
response was that international law provides the criteria by which a State can be
said to exist and empowers States to decide whether these criteria are met. It does
not empower States to determine the criteria themselves. For Kelsen, “a community
which is to be regarded as a state in an international law sense” must be “constituted
by a coercive, relatively centralized legal order;” it must manifest “a power or author-
ity capable of enforcing the enduring obedience of the individuals living within a
certain territory;” and it must be “be independent, i.e., it must not be under the legal
control of another community, equally qualified as a state.”11 When States establish
that “a certain community fulfills these required conditions” of statehood, they per-
form “the legal act of recognition.”12
Kelsen enlisted States as legal authorities empowered to ascertain whether a com-
munity possesses the attributes of statehood because, for Kelsen, facts become law
when they are held as such by a competent legal authority in a legally prescribed
procedure.13 The value of Kelsen’s contribution lies not in which authority he
regarded as performing legal recognition—a view rightly discounted by contempo-
rary accounts of recognition that emphasize that the existence of a State as a subject
10
Id. at 609.
11
Id. at 607–08.
12
Id. at 609.
13
See Hans Kelsen, Pure Theory of Law (trans. Max Knight, 2d ed. 2005).
of international law is not dependent on recognition by other States.14 It lies instead

in the insight that the legal existence of a State is a conclusion that the community
in question possesses the attributes that international law requires of States as legal
subjects.15
Although Kelsen did not use the term, what a community acquires when it is
“brought into” international legal existence as a State is international legal author-
ity to exercise sovereign power over persons and territory. International law distin-
guishes between legal and illegal claims of sovereign power made by communities
seeking international legal status as States. Kelsen’s characterization of how a politi-
cal community becomes a State in the eyes of international law sheds light on the
nature of the field itself. By legally validating some claims of sovereign power and
refusing to validate others, international law organizes global politics into a legal
order in which certain collectivities possess legal authority to rule people and ter-
ritory. It conceptualizes certain claims of political power as legally valid claims of
sovereign authority, legally entitling those entities—States—to govern people and
territory.
International law began to validate claims of sovereign power, and thereby began
to constitute global politics into a legal order, when European States launched ambi-
tious plans of imperial expansion and began to establish overseas colonies. Each col-
onizing power viewed itself and others as entitled to claim sovereignty to territory if
it could establish a valid claim according to doctrines that governed European impe-
rial practice at the time. Some of these doctrines, such as cession, were antecedents
of contemporary international legal principles that regulate the acquisition of sover-
eignty, but others, such as the doctrines of discovery and conquest, no longer form
part of contemporary international law.16
According to the doctrine of discovery, sovereignty could be acquired by an
imperial power over unoccupied territory by discovery. If the territory in question
was occupied, then conquest or cession was necessary to transfer sovereign power
from its inhabitants to an imperial power. However, European claims of sovereign
authority over indigenous peoples and territory came to be understood as grounded
14
See sources cited supra, note 5.
15
This insight is also present in Kelsen’s earlier writings that display more of a declaratory flavor on the topic.
See Hans Kelsen, Das Problem der Souveränität (1921), cited and discussed in Kunz, Critical
Remarks, supra note 4, at 714.
16
This is not to suggest that international law, or at least the principles governing the acquisition of terri-
tory, predated the colonial encounter. See Antony Anghie, Imperialism, Sovereignty and the
Making of International Law 7 (2004), for an extended argument that international rules deciding
which entities were sovereign, and the powers and limits of sovereignty, were “generated by problems relat-
ing to colonial order.”
in a legal fiction that indigenous territory was unoccupied, or terra nullius, for the
purposes of acquiring sovereign power. In Kelsenian terms, the political fact of
indigenous peoples possessed no international legal consequences. The doctrine of
terra nullius represented the legal conclusion that indigenous peoples possessed no
international legal existence. International law deemed their lands to be vacant, and
neither conquest nor cession was necessary to acquire the sovereign power to rule
indigenous people and territory.
International law deemed indigenous territory to be terra nullius because
European powers viewed indigenous peoples as insufficiently similar to themselves.
In Kelsenian terms, indigenous peoples did not meet the criteria by which a State
can be said to exist—criteria which, at the time, emphasized civilization and reli-
gion. European powers viewed indigenous peoples to be insufficiently Christian or
civilized to merit recognizing them as sovereign powers.17 In the caustic words of
Chief Justice John Marshall of the United States Supreme Court, “the character
and religion of [North America’s] inhabitants afforded an apology for considering
them a people over whom the superior genius of Europe might claim an ascendancy.
The potentates of the old world found no difficulty in convincing themselves that
they made ample compensation to the new, by bestowing on them civilization and
Christianity, in exchange for unlimited independence.”18
Imperial powers did not always treat indigenous peoples and territory in this way.
Early colonial encounters yielded treaties between indigenous peoples and impe-
rial powers in many parts of the world, which continue to structure legal relations
between indigenous peoples and States in which they are located. Throughout most
of the period of imperial expansion and colonization, however, these treaties did
not possess international legal force. International law stipulates that only an agree-
ment between “two independent powers” constitutes a treaty binding on the parties
to its terms.19 The possibility that treaties between imperial powers and indigenous
peoples might nonetheless affect the international legal validity of imperial claims
of sovereign authority over indigenous peoples and territory was eclipsed in any
17
See, e.g., John Westlake, Chapters on Principles of International Law 136–38, 141–43
(1894) (drawing a distinction between “civilization” and “want of it”); William C. Hall, A Treatise
on International Law 47 (8th ed. 1924) (international law only governs States that are “inheritors of
that civilization”); Lassa Oppenheim, International Law: A Treatise 126 (2d ed. 1912) (the law
of nations does not apply to “organized wandering tribes”); Charles C. Hyde, International Law
Chiefly as Interpreted and Applied by the United States 164 (1922) (“native inhabitants pos-
sessed no rights of territorial control which the European explorer or his monarch was bound to respect”).
18
Johnson v. M’Intosh, 21 U.S. 543, 573 (1823).
19
See, e.g., Ian Brownlie, Principles of Public International Law 58 (5th ed. 1998). See also
Crawford, supra note 5, at 268–70. For a similar, more contemporaneous formulation, see Oppenheim,
supra note 17, at 285–86 (a treaty between a native tribe and a State is not binding in international law).
event by the emergence of the international legal fiction that indigenous territory
constituted terra nullius. Regardless of whether imperial powers had entered into
treaties with indigenous populations, international law began to validate imperial
claims of sovereign power over indigenous peoples and territories on the basis that
indigenous peoples were insufficiently civilized to merit legal recognition as sover-
eign legal actors.
This mode of validating imperial claims of sovereign power achieved greatest
prominence in international legal circles at the turn of the twentieth century, 20 and
its acceptance operated to legitimate international law’s distribution of sovereign
power retrospectively. It has since been repudiated as a justifiable basis for the asser-
tion of sovereign power over indigenous peoples and their lands.21 But its effect was
to exclude indigenous peoples from international law’s distribution of sovereignty
and include them under imperial sovereign power. This process of indigenous exclu-
sion and inclusion vested States with international legal authority for the colonizing
projects that they began centuries earlier. The adverse consequences of these proj-
ects, which included genocide, forced relocation, and territorial dispossession, are
well known and need not be cataloged here. Nor is it necessary to turn a blind eye
to the many potential benefits of an international legal order that treats sovereignty
as a legal entitlement that it distributes among collectivities it recognizes as States.
The important point is that this process of sovereign exclusion and inclusion was
not a one-shot affair, occurring sometime in the distant past when international
law accepted the proposition that indigenous territory constituted terra nullius. It
is an ongoing process of exclusion and inclusion to the extent that it continues to
subsume indigenous populations under the sovereign power of States not of their
making.
That the international legal order continues to exclude indigenous peoples
from its distribution of sovereign power is underscored by the role and function
of the right of self-determination in international law. Although the right of
self-determination extended legal validity to claims of sovereign independence by
colonized populations, it only validated such claims made in relation to territories
geographically separate from a colonizing power. Claims made in relation to part
of the territory of a sovereign State violated international legal commitments to the
20
See supra note 17 for references to Westlake, Hall, Oppenheim, and Hyde. For an analysis of ear-
lier manifestations, see Robert A. Williams, Jr., The American Indian in Western Legal
Thought: The Discourses of Conquest (1990).
21
See especially Western Sahara (Advisory Opinion), 1975 I.C.J. 1, at 12, 39, para. 80 (Oct. 16) (“Whatever
differences there may have been among jurists, the State practice of the relevant period indicates that ter-
ritories inhabited by tribes or peoples having a social and political organization were not regarded as terrae
nullius”). See generally Crawford, supra note 5, at 257–74.
“territorial integrity” of that State.22 In 1970, the U.N. General Assembly elimi-
nated any doubt that decolonization threatened the territorial integrity of a State
by declaring that the territory of a colony has “a status separate and distinct from
the territory of the state administering it.”23 Known as the “blue water doctrine”
because of its implication that the right to sovereign independence vests only in
colonized populations separated by water from their parent colonial State, this geo-
graphical condition prevented indigenous peoples located in sovereign States from
acquiring sovereign independence. International law not only excluded indigenous
peoples from the international distribution of sovereignty and included them under
the sovereign power of States not of their making, but it also restricted the legal
capacity to acquire sovereign independence by right to populations not located in
sovereign States.
Indigenous R ecognition and the Inter national

Labor Organization
Although international law excludes indigenous peoples from its distribution

of sovereign authority and renders them subject to the sovereign power of the
States in which they live, international law also purports to protect indigenous
peoples from the exercise of sovereign authority. Contemporary international
legal protection of indigenous populations formally emerged at the first Berlin
Conference on Africa, initiated by France and Germany in an effort to stem
mounting tensions over competing imperial claims of sovereignty to various
regions of Africa. At the Conference, imperial powers divided up Africa for
the purposes of establishing and maintaining colonial territories, and mutually
recognized their claims of sovereign power to large swathes of the continent.
Conference participants also undertook to “watch over the preservation of the
native tribes, and to care for the improvement of the conditions of their moral
22
See, e.g., Art. 1, Declaration on the Granting of Independence to Colonial Countries and Peoples, G.A.
Res. 1514, U.N. GAOR, 15th Sess., Supp. No. 15, U.N. Doc. A/4654 (1960). See also U.N. General Assembly,
Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among
Supp. No. 28, at 121, U.N. Doc. A/8028, Annex at 122 (1970).
23
See G.A. Res. 2625, id. (“The territory of a colony or other non-self-governing territory has, under the
Charter, a status separate and distinct from the territory of the State administering it; and such separate
and distinct status under the Charter shall exist until the people of the colony or non-self-governing terri-
tory have exercised their right of self-determination”).
and material well-being.” 24 As a result of the Berlin Conference, what was a jus-
tification for excluding indigenous peoples from the distribution of sovereign
power—their perceived lack of civilization—began to also form the basis of an
international legal duty borne by imperial powers to exercise their sovereign
authority in ways that improve moral and material conditions in colonies under
their control. 25
This duty of protection was subsequently embodied in the Covenant of the
League of Nations. Members of the League undertook “to secure just treatment of
the native inhabitants of territories under their control.”26 It also received limited
institutional form in the League’s mandates system, which applied to territories that
had been annexed or colonized by Germany and the Ottoman Empire before World
War I. The League’s Covenant declared that these territories, “inhabited by peoples
not yet able to stand by themselves under the strenuous conditions of the mod-
ern world,” were to be administered by “mandatories”—sovereign States—whose
administration in turn was supervised by the League Council and the Permanent
Mandates Commission.27 Mandates were grouped into three categories depend-
ing on the degree of their “development,” which determined the extent to which
they enjoyed political autonomy from their mandatory powers. 28 Mandatories were
responsible for the “tutelage” of peoples inhabiting mandates in accordance with
“the principle that the well-being and development of such peoples form a sacred
trust of civilization.”29
International indigenous protection during this period, however, received the
most attention from the International Labour Organization. Soon after its incep-
tion in 1919, the ILO sought to extend its supervisory authority to working condi-
tions in colonies. This initiative was met with widespread opposition from imperial
powers, despite their pledge to “secure just treatment of the native inhabitants of
territories under their control.”30 The Constitution of the ILO specified that mem-
ber States undertake to apply ILO Conventions to which they are party “to the
non-metropolitan territories for whose international relations they are responsible,
24
General Act of the Conference of Berlin, art. VI.
25
For a diplomatic history of the Berlin Conference, see Sybil E. Crowe, The Berlin West African
Conference, 1884–1885 (1942).
26
Art. 23.
27
Art. 22.
28
Group A was comprised of territories in the Middle East, Group B was comprised of territories in Central
Africa, and Group C was comprised of territories in South-West Africa and the Pacific. Article 22 explicitly
refers to peoples in Group C as “indigenous” populations.
29
Art. 22. For a contemporaneous analysis of the mandates system, see Quincy Wright, Mandates
Under the League of Nations (1930). For a modern analysis, see Anghie, supra note 16, at 115–95.
30
Art. 23, Covenant of the League of Nations.
including any trust territories for which they are the administering authority.”31 The
Constitution, however, goes on to relieve member States of this obligation “where
the subject-matter of the Convention is within the self-governing powers of the ter-
ritory or the Convention is inapplicable owing to the local conditions or subject
to such modifications as may be necessary to adapt the Convention to local condi-
tions.”32 Imperial powers quickly relied on these exceptions to avoid ILO scrutiny of
working conditions in their colonies and in territories under their trusteeship. The
ILO responded by undertaking studies in 1921 on the working conditions in colonies
and dependent territories, establishing a Committee of Experts on Native Labour
to formulate labor standards for workers in these regions in 1926, and enshrining
these standards in seven Conventions that came into force between 1930 and 1955.33
Unlike other ILO Conventions during this period that called for robust domes-
tic protection of international labor rights, the seven interwar Conventions aimed
at indigenous workers set out relatively weak labor standards for the protection of
workers in colonies and dependent territories. They included obligations to phase
out the use of forced labor; regulations governing the recruitment of workers that
sought to minimize the impact of the demand for labor on the political and social
organization of the population; requirements that employers enter into written
contracts with employees and bear certain costs associated with relocation and
transportation of workers; obligations to phase out, “progressively and as soon as
possible,” penal sanctions for breach of contract; provisions specifying the maxi-
mum length or term of employment contracts; and regulations governing the use of
migrant workers.34 Meager as they were, the actual impact of these Conventions on
colonial working conditions was negligible. Only one colonial power, Great Britain,
ratified all of them before World War II, and other colonial powers either failed to
ratify any or ratified only a few after significant delay.35
31
ILO Constitution, art. 35.
32
Id.
33
For a detailed account of this history, see Luis Rodríguez-Piñero, Indigenous Peoples,
Postcolonialism, and International Law: The ILO Regime (1919–1989) (2005). For a history of
these developments focusing specifically on attempts to abolish forced labor in colonies, see Daniel Maul,
The International Labour Organization and the Struggle Against Forced Labour, 48 Lab. Hist. 277 (2007).
34
See, respectively, Convention concerning Forced Labour of 1930 (No. 29); Convention concerning the
Recruiting of Indigenous Workers of 1936 (No. 50); Convention concerning the Contracts of Employment
(Indigenous Workers) of 1939 (No. 64); Convention concerning Penal Sanctions (Indigenous Workers) of
1939 (No. 65); Convention concerning Contracts of Employment of 1947 (No. 86); and Convention con-
cerning the Migration for Employment of 1949 (revised as No. 97). Penal sanctions for breach of contract
were finally abolished in 1955. See Convention concerning the Abolition of Penal Sanctions for Breaches of
Contract of Employment by Indigenous Workers of 1955 (No. 104). Forced labor was abolished in 1957. See
Convention concerning the Abolition of Forced Labour, 1957 (No. 105).
35
Rodríguez-Piñero, supra note 33, at 36 n.104.
Who constituted indigenous workers for the purposes of these interwar

Conventions had little to do with the fact that their ancestors inhabited territory
prior to colonization and imperial expansion. Each Convention defined an indig-
enous worker as “a worker belonging to or assimilated to the indigenous popula-
tion of a non-metropolitan territory” or “dependent territory.”36 Indigenous status
was conditional on the legal nature of the jurisdiction in which the population in
question was located. International indigenous protection between the two World
Wars extended to “populations living under a legal status of dependency in condi-
tions of formal colonialism.”37 It did not extend to indigenous populations living in
independent States. In the words of Luis Rodríguez-Piñero, “the category of ‘indig-
enous’ served as a device for the regulation of the relations between the colonizer
and the colonized.”38
The distinctly colonial conception of indigenous rights that informed interna-
tional legal protection under the auspices of the ILO in the inter-war period shifted
dramatically after World War II. In 1957, the ILO adopted the Indigenous and
Tribal Populations Convention (No. 107).39 Convention 107 was the culmination
of a series of initiatives within the ILO begun shortly after the end of the War that
sought to expand and deepen its policies with respect to indigenous populations.40
Convention 107 defines two “tribal and semi-tribal” populations that benefit from
its protection. The first are comprised of people “whose social and economic condi-
tions are at a less advanced stage” than those enjoyed by “the other sections of the
national community and whose status is regulated wholly or partially by their own
customs and traditions or by special laws.”41 By including this category, Convention
107 extended its protection to socially and economically disadvantaged populations
that were “segregated culturally or legally from national society, whether or not this
had arisen from the historical circumstances of colonization.”42 The second category
of tribal populations are those comprised of people “who are regarded as indigenous
on account of their descent from the populations which inhabited the country, or a
geographical region to which the country belongs, at the time of conquest or coloni-
sation.”43 Such people must “live more in conformity with the social, economic and
36
See, e.g., Conventions No. 64 and 86, respectively.
37
Rodríguez-Piñero, supra note 33, at 36.
38
Id. at 47.
39
Convention concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal
Populations in Independent Countries, ILO No. 107, 40th sess., 328 U.N.T.S. 247 (June 26, 1957) (entered
into force June 2, 1959).
40
For a detailed account of these initiatives, see Rodríguez-Piñero, supra note 33.
41
Convention 107, supra note 39, at art. 1(1)(a).
42
Russel Lawrence Barsh, Revision of ILO Convention No. 107, 81 Am. J. Int’l L. 756, 757 (1987).
43
Convention 107, supra note 39, at art. 1(1)(b).
cultural institutions of that time than with the institutions of the nation to which
they belong.”44 This second category conceptualized an indigenous population as
a particular type of tribal population, distinguished by its ancestral connection to
conquest or colonization. In other words, all indigenous populations are tribal pop-
ulations, but not all tribal populations are indigenous populations.45 What makes a
tribal population indigenous, according to Convention 107, is a history of conquest
or colonization.
Not only did Convention 107 conceptualize an indigenous population as a
tribal population with a history of conquest or colonization, but it also dramati-
cally reconceived indigenous populations as populations located in “independent
countries.”46 Before Convention 107, only members of indigenous populations in
colonies possessed international indigenous rights. The ILO interwar Conventions
provided protection to colonial populations because the jurisdictions in which they
were located did not constitute sovereign States and instead fell under the sovereign
authority of foreign colonizing powers. After Convention 107, indigenous popula-
tions were no longer coextensive with colonial populations. Only people who live
in independent States, who “live more in conformity with the social, economic and
cultural institutions of that time than with the institutions of the nation to which
they belong,”47 and whose ancestors experienced colonization or conquest, possess
international indigenous rights. Convention 107 reoriented the focus of interna-
tional legal scrutiny of the conditions confronting indigenous peoples from the
formal colonial context to those confronting indigenous peoples in independent
States.
Convention 107’s dramatic reconceptualization of an indigenous population in
international law occurred against the backdrop of fundamental changes in interna-
tional legal relations between colonies and imperial powers. After World War II, the
League of Nations’ mandate system was replaced by the U.N. Trusteeship Council,
which was empowered to oversee the eventual decolonization of dependent terri-
tories that were under mandatory supervision prior to the War.48 The Trusteeship
44
Id.
45
Erica-Irene A. Daes, Chairperson-Rapporteur, Standard-Setting Activities: Evolution of Standards
Concerning the Rights of Indigenous People (Working Paper, E/CN.4/Sub.2/AC.4/1996/2 at para. 22). Daes
notes that Convention 107 “guarantees both categories of people exactly the same rights” and therefore the
distinction “is of no practical consequence.” Id. But the legal consequences are significant. Convention 107
defines an indigenous population as a tribal population that has experienced conquest or colonization in
the past.
46
Convention 107, supra note 39, at art. 1(1).
47
Id. at art. 1(1)(b).
48
U.N. Charter, arts. 75–91.
Council did not possess supervisory authority over colonial territories outside the
trusteeship system, but the U.N. Charter did establish the principle that member
States were to administer such territories in conformity with the best interests of
their inhabitants.49 As described in more detail in the next chapter, colonial popu-
lations both inside and outside of the trusteeship system became entitled to exer-
cise their right of self-determination to achieve sovereign independence. Reframing
indigenous populations in international law as collectivities in independent States
as opposed to collectivities in colonies thus resulted in two regimes of international
legal protection. The first, governing colonized populations, entitled such popula-
tions to acquire sovereign independence as of right. The second, governing indig-
enous populations, only entitled such populations to protection internal to and
compatible with the sovereign authority of the State in which they were located.50
Within this framework, Convention 107 significantly expanded the scope of
international legal protection of indigenous populations beyond what existed in
the interwar period. While interwar protection represented efforts by the ILO to
assert its jurisdiction to working conditions in colonies and dependent territories,
Convention 107 had a very different orientation. Although it expressed concern
about conditions of employment and required States to prevent various forms of
discrimination in the context of work,51 its scope was much more ambitious than
labor market regulation. Grounded in universal claims that “all human beings have
the right to pursue both their material well-being and their spiritual development
in conditions of freedom and dignity,”52 Convention 107 also reached much deeper
into the social, economic, and political life of indigenous peoples. It enshrined a
right of indigenous “ownership” of traditional territories,53 it called for the recogni-
tion of indigenous legal and cultural traditions,54 and it required governments to
provide indigenous populations with social security, adequate health services, and
educational opportunities,55 and to respect indigenous customs, institutions, lan-
guages, and cultural differences.56
49
U.N. Charter, art. 73.
50
See Rodríguez-Piñero, supra note 33, at 142 (“Convention No. 107 contributed to sanction the breach
between the international legal regime applying to peoples in conditions of classic colonialism and that
applying to indigenous groups living within independent states, as promoted by the Blue Water Doctrine”).
51
See art. 15 (recruitment and conditions of employment) and arts. 16–18 (vocational training, handicrafts,
and rural industries).
52
Preamble.
53
Art. 11.
54
Art. 7.
55
See arts. 19 and 20 (social security and health), and arts. 21 and 22 (education).
56
Arts. 7, 8, 23, 26.
Four features of Convention 107, however, constrained these provisions. First,

the rights and obligations enshrined in Convention 107 allowed for exceptions,
limitations, and qualifications. As a result, member States had extensive flexibil-
ity in meeting its terms. For example, indigenous populations are allowed to retain
their own customs and institutions, but only to the extent that they “are not incom-
patible with the national legal system.”57 Indigenous rights of ownership of land
are to be respected “within the framework of national laws and regulations.”58
Special measures are to be enacted to ensure the effective protection of conditions
of employment—again “within the framework of national laws and regulations.”59
Social security and educational opportunities are to be extended “where practica-
ble.”60 The Convention stipulated more generally that the nature and scope of the
measures to be taken to give effect to its terms “shall be determined in a flexible
manner, having regard to the conditions characteristic of each country.”61
Second, Convention 107 cast indigenous protection primarily in terms of nondis-
crimination. Although some of its measures required States to provide indigenous
populations with a measure of territorial and political autonomy from the broader
population, its primary thrust was the elimination of discrimination against mem-
bers of indigenous populations. It referred to the social, economic, and cultural
circumstances of indigenous populations as hindering them “from benefiting fully
from the rights and advantages enjoyed by other elements of the population” and
“from sharing fully in the progress of the national community” of which they are
a part.62 It called for “national agrarian programmes” to secure “treatment equiva-
lent to that accorded to other sections of the national community” with respect to
the provision of land and means required to promote development.63 It required
all member States to “do everything possible to prevent all discrimination between
workers belonging to the populations concerned and other workers.”64 It proscribed
forced labor, “except in cases prescribed by law for all citizens.”65 It required mea-
sures to ensure that indigenous people “have the same opportunity to acquire edu-
cation at all levels on an equal footing with the rest of the national community.”66
57
Art. 7(2). See also Athanasios Yupsanis, The International Labour Organization and Its Contribution to the
Protection of the Rights of Indigenous Peoples, 49 Can. Y.B. Int’l L. 117, 124 (2011).
58
Art. 13(1).
59
Art. 15(1).
60
Arts. 19 and 23.
61
Art. 28.
62
Preamble.
63
Art. 14.
64
Art. 15.
65
Art. 9.
66
Art. 21.
These and other provisions suggest that Convention 107 was meant more to address
discrimination between indigenous and nonindigenous people within independent
States than to secure a modicum of indigenous autonomy from independent States.
Third, Convention 107 housed both forms of indigenous protection—
anti-discrimination and autonomy—in an overarching objective of “integration.”
The measures it demands of government were to protect indigenous people in “their
progressive integration into the life of their respective countries.”67 Integration
is to occur based on respect for “the cultural and religious values” of indigenous
people, in recognition of “the danger of disrupting the value and institutions” of
indigenous populations without replacing them with “appropriate” and acceptable
“substitutes”.68 In this respect, the Convention distinguishes between integration
and assimilation, stipulating that integration is not to occur by “force or coercion”
or by means of “measures tending towards the artificial assimilation” of indigenous
people.69 Beyond these provisions, the text offers little insight into the meaning of
integration. But the concept of integration during this period possessed broader
currency in anthropology and the social sciences, as well as in the ILO itself. The
terms of Convention 107 were consistent with a conception of integration as an
enlightened process of cultural adjustment designed to foster economic and social
development in ways that reinforce the legitimacy and effectiveness of the national
institutions of a State.70
Fourth, Convention 107 comprehends international indigenous protection in
temporal and transitional terms. It conceives of tribal, semi-tribal, and indigenous
populations as communities that, because of social and economic conditions, cul-
tural differences, distinctive legal identities, and historical circumstances, have yet
to become integrated into the life of their respective countries. International indige-
nous protection, on this view, enables or facilitates a transition from non-integration
to integration. For example, the Convention defines the term “semi-tribal” as
including “groups and persons who, although they are in the process of losing
their tribal characteristics, are not yet integrated into the national community.” 71
Measures that provide indigenous protection are not to be “used as a means of cre-
ating or prolonging a state of segregation” and “will be continued only so long as
there is need for special protection and only to the extent that such protection is
67
Art. 2(1).
68
Art. 4.
69
Arts. 2(4), 2(2)(c).
70
For an extensive analysis of the meaning of integration in Convention 107, see Rodríguez-Piñero, supra
note 33.
71
Art. 1(2).
necessary.” 72 Such measures should also include “policies aimed at mitigating the
difficulties experienced by these populations in adjusting themselves to new con-
ditions of life and work.” 73 They should protect indigenous institutions, persons,
property, and labor “so long as the social, economic and cultural conditions of the
populations concerned prevent them from enjoying the benefits of the general laws
of the country to which they belong.” 74
In 1989, the ILO adopted a revision of Convention 107, entitled the Indigenous
and Tribal Peoples Convention No. 169.75 Convention 169, in the words of James
Anaya, “is a central feature of international law’s contemporary treatment of indig-
enous peoples’ demands.” 76 Much of its prominence is due to the degree to which it
departs from the orientation and commitments of Convention 107.77 Absent from
Convention 169 is any reference to “integration” as an objective of international
indigenous protection. Also absent is any intimation that the rights and obliga-
tions it enshrines are temporary measures whose significance wanes as the social,
economic, and political conditions of indigenous people improve over time. Some of
the rights and obligations contained in Convention 107 are reiterated in Convention
169, but they are worded more strongly and contain fewer and narrower exceptions,
limitations, and qualifications. For example, whereas Convention 107 “allowed”
indigenous populations to “retain their own customs and institutions where these
are not incompatible with the national legal system,” 78 Convention 169 declares that
indigenous peoples “shall have the right to retain their own customs and institu-
tions, where these are not incompatible with fundamental rights defined by the
national legal system and with internationally recognized human rights.” 79 It also
recharacterizes indigenous rights as vesting in “indigenous peoples” in contrast to
Convention 107’s emphasis on “members of indigenous populations.”80 It reiterates
72
Arts. 3(2)(a), 3(2)(b).
73
Art. 4(c).
74
Art. 3(1).
75
ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries, ILO No. 169,
72 ILO Official Bulletin 59, concluded 27 June 1989 (entered into force Sept. 5, 1991). For a contempo-
raneous account of the revision of Convention 107, see Lee Swepston, Indigenous and Tribal Peoples and
International Law: Recent Developments, 30 Current Anthropology 259 (1989).
76
S. James Anaya, Indigenous Peoples in International Law 58 (2d ed. 2004), 58. For a comprehen-
sive assessment of Convention 169 and attendant scholarship, see Anthanasios Yupsanis, ILO Convention
No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries 1989–2009: An Overview, 79
Nordic J. Int’l L. 433 (2010).
77
See Siegfried Wiessner, Rights and Status of Indigenous Peoples: A Global Comparative and International
Legal Analysis, 12 Harv. Hum. Rts. J. 57, 100 (1999).
78
Convention 107, art. 7(2).
79
80
For an analysis of debates during the drafting process on this issue, see Karen Knop, Diversity and
Self-Determination in International Law 237 (2002).
Convention 107’s affirmation of indigenous ownership and possession of traditional

lands,81 but it does so in collective terms, as vesting in “peoples.” It also specifies that
such lands “shall include the concept of territories, which covers the total environ-
ment of the areas which the peoples concerned occupy or otherwise use.”82
In addition, whereas Convention 107 conceived of indigenous protection pri-
marily in terms of nondiscrimination, Convention 169 strikes a very different bal-
ance between nondiscrimination and autonomy. It does so by placing additional
indigenous rights and State obligations on the international legal scale. It provides
that indigenous peoples “shall have the right to decide their own priorities for the
process of development as it affects their lives, beliefs, institutions and spiritual
well-being and the lands they occupy or otherwise use.”83 It states that “the rights
of the peoples concerned to the natural resources pertaining to their lands shall be
specially safeguarded,” including the “right of these peoples to participate in the
use, management and conservation of these resources.”84 It requires governments to
consult with indigenous peoples “through appropriate procedures and in particu-
lar through their representative institutions, whenever consideration is being given
to legislative or administrative measures which may affect them directly.”85 It also
requires governments to “establish means for the full development of these peoples’
own institutions and initiatives, and in appropriate cases provide the resources nec-
essary for this purpose.”86
Convention 169 also introduces the concept of “self-identification” to the field of
international indigenous protection. It states that “self-identification as indigenous
or tribal shall be regarded as a fundamental criterion for determining the groups to
which the provisions of this Convention apply.”87 Self-identification as a criterion
of application prevents States from claiming that the Convention does not apply to
indigenous peoples within their midst because they have not been identified as such
by State law or policy. If self-identification were the sole criterion of application, then
the Convention would vest indigenous rights in all peoples claiming indigenous
status located in States party to its terms. But self-identification is specified as “a
81
Convention 107, art. 11.
82
83
84
Art. 15(1). For commentary, see Annika Tahvanainen, The Treaty Making Capacity of Indigenous Peoples, 12
Int’l J. Minority & Group Rts. 397, 414 (2005).
85
Art. 6(1)(a).
86
Art. 6(1)(c).
87
Art. 1(2). See Willem van Genugten & Camilo Perez-Bustillo, The Emerging International Architecture
of Indigenous Rights: The Interaction between Global, Regional, and National Dimensions, 11 Int’l
J. Minority & Group Rts. 379, 388–89 (2004).
fundamental criterion,” not a sole criterion, which suggests that there are additional
international legal requirements of indigenous recognition in international law. 88
Convention 169’s provisions addressing this question are similar, but not identi-
cal, to those contained in Convention 107. When specifying to whom it applies,
Convention 169 refers to “peoples” and not to “populations.” It refers to “tribal peo-
ples” but not to “semi-tribal” peoples. It no longer identifies such peoples in terms
of “social and economic conditions” that are at “a less advanced stage” than other
sections of the national community but instead in terms of social and economic
conditions that “distinguish them” from other sections of the national community.
Despite these differences, Convention 169 affirms what Convention 107 declared so
strikingly thirty-two years earlier. International indigenous rights attach to peoples
located in “independent countries.” Like Convention 107, it states that it applies to
“tribal” and “indigenous” communities.89 But, for both Conventions, an indigenous
community possesses international indigenous rights because of its historic connec-
tion to territory that now falls under the sovereign authority of an independent
State. Like Convention 107, Convention 169 conditions international recognition
of an indigenous community on international recognition of the sovereign status of
the jurisdiction in which that community is located.
Convention 169 accordingly comprehends international indigenous protection
as measures internal to and compatible with the sovereign authority of the State in
which they are located. These internal measures are no longer to be designed to pro-
mote integration; they entitle indigenous peoples to differential treatment to protect
their languages, cultures, and institutions. But they do assume that indigenous people
belong to a broader political community and that they share common citizenship
with its other members. And, despite the frequent reference to indigenous peoples,
Convention 169 makes no reference to a right of self-determination, which, according
to the International Covenant on Civil and Political Rights90 and the International
88
But see Jeff J. Corntassel, Who Is Indigenous? ‘Peoplehood’ and Ethnonationalist Approaches to Rearticulating
Indigenous Identity, 9 Nationalism & Ethnic Pol. 75 (2003).
89
Unlike Convention 107, Convention 169 provides that indigenous peoples include those whose ancestors
inhabited the territory “at the time of … the establishment of present State boundaries” as well as “at the
time of conquest or colonization.” This addition broadens the ancestral links required of an indigenous
community and blurs the distinction, otherwise maintained by the Convention, between indigenous and
tribal peoples. For discussion, see Knop, supra note 80, at 244–45 (“whereas conquest and colonization
encode the wrong central to a historical argument for the rights of indigenous peoples, the phrase ‘establish-
ment of present state boundaries’ is more neutral and could be seen as diminishing the normative power of
the other two”).
90
International Covenant on Civil and Political Rights, art. 1, opened for signature Dec. 19, 1966, 999 U.N.T.S.
171 (entered into force Mar. 23, 1976). Article 1 of the International Covenant on Economic, Social and
Cultural Rights, opened for signature Dec. 19, 1966, 993 U.N.T.S. 3 (entered into force Jan. 3, 1976), contains
identical language.
Court of Justice,91 vests in all peoples. To foreclose the argument that its reference
to “peoples” links an indigenous population to the right of self-determination, the
Convention stipulates that “the use of the term ‘peoples’ … shall not be construed
as having any implications as regards the rights which may attach to the term under
international law.”92 Thus Convention 169 continues the trend, begun thirty-two years
earlier by Convention 107, of enhancing international indigenous protection within
existing States while shielding the international distribution of sovereign power
among States from the redistributive potential of the right of self-determination.
Indigenous R ecognition and the United Nations
In contrast to the ILO, the United Nations turned its attention to international
indigenous rights relatively recently. In 1971, the U.N. Sub-Commission on
Prevention of Discrimination and Protection of Minorities commissioned a study
on “discrimination against indigenous populations.”93 The resolution commission-
ing the study, Resolution 1589, echoed the philosophy of integration at the heart of
ILO Convention 107. It noted that “indigenous populations often encounter racial
prejudice and discrimination,” but it also noted that policies designed to protect
indigenous cultures and identities “may, with the passage of time, become unneces-
sary or excessive and therefore may also become discriminatory in character.”94 It
recommended that States review existing legislation providing indigenous protec-
tion to determine whether protective measures are discriminatory, and called on all
States to take appropriate measures to eliminate discrimination against indigenous
populations.95 Such measures should not promote either “segregation” or “assimila-
tion;” instead, they should promote the “integration of indigenous populations in
the national community.”96 “Integration,” according to Resolution 1589, is “the most
appropriate means of eliminating discrimination against those populations.”97
The study authorized by Resolution 1589 took twelve years to complete. Informally
named after its author, the Martínez Cobo Report provided a comprehensive analy-
sis of the economic, social, cultural, political, and legal circumstances of indigenous
peoples. It reviewed the merits and demerits of past and existing measures that States
91
Namibia, 1971 I.C.J. 16, at 31; Western Sahara, 1975 I.C.J. 12, at 31.
92
Art. 1(3).
93
ECOSOC Resolution 1589 (L) of 21 May 1971.
94
ECOSOC Resolution 1589 (L) preamble, para. 1 (May 21, 1971).
95
Id. at para. 4.
96
Id. at preamble, para. 3.
97
Id. at preamble, para. 3.
have introduced to protect indigenous populations in their midst, and it made exten-
sive recommendations in relation to health, housing, education, languages, culture,
land, and political, religious, and equality rights of indigenous peoples.
Three features of the Martínez Cobo Report stand out. First, it proposed dis-
tinguishing between indigenous and nonindigenous communities on the basis of
historical continuity with pre-invasion and precolonial times. It offered a “working
definition” of “indigenous communities, peoples and nations” as “those which, hav-
ing a historical continuity with pre-invasion and pre-colonial societies that devel-
oped on their territories, consider themselves distinct from other sectors of the
societies now prevailing in those territories, or parts of them.”98 Second, notwith-
standing Resolution 1589’s commitment to integration, the Martínez Cobo Report
rejected integration as an overarching objective of international indigenous protec-
tion. It noted “the widespread and open rejection by indigenous peoples of the con-
cept of integration,”99 and argued that “self-determination, in its many forms, must
be recognized as the basic precondition for the enjoyment by indigenous peoples
of their fundamental rights and the determination of their own future.”100 Third,
it recommended the adoption of a U.N. Declaration on indigenous rights as an
interim step to the adoption of an international Convention on the topic.101
The Sub-Commission responded to the Martínez Cobo Report by establish-
ing a Working Group on Indigenous Populations, which began work on a draft
Declaration on the Rights of Indigenous Peoples in 1985. After extensive consulta-
tion and discussion in annual public meetings, the Working Group submitted a draft
to the Sub-Commission eight years later.102 Another Working Group eventually pro-
duced a subsequent draft that met with the approval of the Human Rights Council
in 2006. After some skirmishes, the Declaration on the Rights of Indigenous Peoples
was adopted by the U.N. General Assembly in September 2007.103
98
Id. at paras. 364, 379–380. The definition also described indigenous communities, peoples, and nations as
“non-dominant sectors of society” determined to maintain and reproduce their cultures, institutions, and
legal systems. It also listed criteria for determining historical continuity, including occupation of ancestral
lands, common ancestry, culture, language, and residence.
99
U.N. Doc. E/CN.4/Sub.2/1983/21/Add.1, para. 67.
100
U.N. Doc. E/CN.4/Sub.2/1983/21/Add.8, para. 580.
101
Id. at para. 312.
102
U.N. Doc. E/CN.4/1993/29, Annex 1.
103
One hundred and forty-three countries initially voted in favor of the Declaration, four voted against,
eleven abstained, and thirty-four States were absent from the vote. The four States that voted against
were Australia, Canada, New Zealand, and the United States. Abstaining countries were Azerbaijan,
Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russian Federation, Samoa, and
Ukraine. Australia, Canada, New Zealand, and the United States have subsequently endorsed the
Declaration. For commentary, see Jérémy Gilbert, Indigenous Rights in the Making: The United Nations
Declaration on the Rights of Indigenous Peoples, 14 Int’l J. Minority & Group Rts. 207 (2007).
True to the Report that recommended its adoption some twenty-four years ear-
lier, the Declaration on the Rights of Indigenous Peoples enshrines the right of
self-determination as its overarching normative commitment.104 In distinct contrast
with Conventions 107 and 169, which were conspicuously silent on the subject, the
Declaration declares that “indigenous peoples have the right of self-determination”
and states that “by virtue of that right they freely determine their political status and
freely pursue their economic, social and cultural development.”105 It also guarantees
numerous, more concrete rights that effectively elaborate the content of indigenous
self-determination.106 It enshrines rights of autonomy or self-government in matters
relating to indigenous peoples’ internal affairs,107 including the right to maintain
and develop their political, economic, and social systems or institutions108 and the
right to maintain and develop their distinct political, economic, social, and cultural
identities and characteristics as well as their legal systems and to participate fully, “if
they so choose,” in the political, economic, social, and cultural life of the State.109 It
calls on States to recognize, observe, and enforce treaties they have entered into with
indigenous peoples.110
In addition, the Declaration enshrines the right of indigenous peoples to
own, develop, control, and use the lands and territories that they have tradition-
ally owned or otherwise occupied and used, including the right to restitution of
lands confiscated, occupied, or otherwise taken without their free and informed
consent, with the option of providing just and fair compensation wherever such
return is not possible.111 It also guarantees indigenous peoples the right not to be
subjected to genocide and the right not to be subjected to forced assimilation or
destruction of their cultures, which it suggests includes any action that deprives
them of their integrity as distinct peoples or their cultural values and identities, or
dispossesses them of their lands, territories, or resources.112 Also enshrined in the
104
But see Siegfried Wiessner, The Cultural Rights of Indigenous Peoples: Achievements and Continuing
Challenges, 22 Eur. J. Int’l L. 121, 131 (2011), (“the effective protection of indigenous culture” is the “fun-
damental policy goal” of the U.N. Declaration on the Rights of Indigenous Peoples).
105
Art. 3, A/Res/61/295 Ann. 1 (Sept. 13, 2007). For analysis of debates on this issue during the drafting pro-
cess, see Knop, supra note 80, at 255–61, 263–71.
106
For a similar formulation not restricted to the U.N. Declaration, see Anaya, supra note 76, at 129 (“the
principle of self-determination and related human rights precepts undergird more particularized norms
concerning indigenous peoples”). See also Alexandra Xanthaki, Indigenous Rights and
United Nations Standards: Self-Determination, Culture and Land (2007) (“central to the
draft Declaration is the right of self-determination”).
107
Art. 4.
108
Art. 20(1).
109
Art. 5.
110
Art. 37.
111
Arts. 26, 28.
112
Arts. 7(1), 8.
Declaration are the right to observe, teach, and practice tribal spiritual and reli-
gious traditions;113 the right to maintain and protect historical sites, artifacts, and
other manifestations of their cultures;114 the right to restitution of spiritual prop-
erty taken without free and informed consent, including the right to repatriate
Indian human remains;115 and the right to protection of sacred places and burial
sites. In addition, it lists rights to belong to an indigenous nation,116 to maintain
and use tribal languages and transmit their oral histories and traditions,117 to be
educated in their language, and to control their own educational systems.118 It also
vests extensive rights to human and genetic resources, seeds, medicines, and intel-
lectual property.119
With its extensive catalog of indigenous rights and overarching commitment to
indigenous self-determination, the Declaration reorients international indigenous
protection from the relatively even balance between the principles of nondiscrimi-
nation and autonomy struck by Convention 169 to one weighted decidedly in favor
of autonomy. It does contain provisions that require States to eliminate discrimina-
tory measures that disadvantage indigenous peoples. It declares, for example, that
“indigenous peoples have the right, without discrimination, to the improvement
of their social and economic conditions.”120 It also calls for interpretation of its
terms in accordance with “international human rights obligations” and “principles
of justice, democracy, respect for human rights, equality, non-discrimination, good
governance and good faith.”121 But the real counterweight to indigenous autonomy
in the Declaration is not the principle of nondiscrimination; it is the territorial
integrity of States. Reiterating the principle that validates the status quo distribu-
tion of sovereign power, the Declaration precludes an interpretation of its terms
that would authorize or encourage “any action which would dismember or impair,
totally or in part, the territorial integrity or political unity of sovereign and inde-
pendent States.”122
113
Art. 12
114
Art. 11(1).
115
Art. 12(2).
116
Art. 9.
117
Art. 13.
118
Art. 14.
119
Art. 31.
120
Art. 21.
121
Art. 46(3). For the view that these provisions “offer states a way to define certain indigenous claims out
of these categories, and to deny them accordingly,” see Karen Engle, On Fragile Architecture: The UN
Declaration on the Rights of Indigenous Peoples in the Context of Human Rights, 22 Eur. J. Int’l L. 141, 155
(2011).
122
Art. 46(1).
The Declaration thus holds fast to the existing distribution of sovereignty in

international law and vests indigenous rights in indigenous peoples in light of its
effects. It declares the existence of international indigenous rights, including the
right of indigenous peoples to self-determination and, in so doing, comprehends
indigenous peoples as international legal actors. But indigenous peoples as inter-
national legal actors do not occupy the same international legal plane as sovereign
States. When a community is brought into international legal existence as a State,
Kelsen reminds us, it becomes formally equal to all other States in terms of the
legal nature and scope of its sovereign power. When indigenous communities are
brought into international legal existence as indigenous peoples, they hold rights
that ground obligations which attach primarily to the States where they live. The
indigenous rights enshrined in the Declaration, like those in Conventions 107 and
169, presuppose complex and extensive relations between indigenous peoples and
the States in which they are located.123 They do not entitle indigenous peoples to
acquire sovereign power as of right. They do not vest sovereignty in indigenous peo-
ples, as sovereignty is understood in international law. Instead, international indig-
enous rights vest in indigenous peoples because international law vests sovereignty
in States.
The Pur pose of Inter national Indigenous R ights
Unlike Conventions 107 and 169, the U.N. Declaration on the Rights of Indigenous
Peoples does not provide an explicit definition of “indigenous peoples.” Its silence
on criteria for determining in whom it vests rights is to be contrasted with the pro-
liferation of communities who, since the United Nation turned its attention to the
subject in the 1970s, have politically constituted themselves as indigenous peoples
and who participate in an increasingly influential international indigenous political
movement.124 The deep cultural, geographic, and historical diversities of commu-
nities that identify themselves as indigenous peoples and that structure transnational
indigenous politics partly explain why drafters of the U.N. Declaration on the Rights
123
Compare Benedict Kingsbury, Reconciling Five Competing Conceptual Structures of Indigenous Peoples’
Claims in International and Comparative Law, 34 N.Y.U. J. Int’l L. & Pol. 189, 225 (2001–2002) (the
1993 U.N. Draft Declaration presupposes “extensive relations between the autonomous [indigenous] insti-
tutions and other government institutions of the state and between indigenous people and other people
within or outside the autonomous area”).
124
On the contemporary formation of indigenous political identities, see Courtney Jung, The Moral
Force of Indigenous Politics (2008) (indigenous identity is a political achievement).
of Indigenous Peoples opted not to provide a definition.125 A definition, it was feared,

would also result in the “dilution of the issue, thus harming the true beneficiaries of the
rights of the declaration.”126 But the absence of a definition in the Declaration, com-
bined with its extensive set of rights, creates strong incentives on communities to adopt
indigenous political identities in order to benefit from its terms.127
Which communities should be recognized as indigenous peoples for the
purposes of the Declaration? There are two common, not mutually exclusive,
approaches to this question. The first is to rely on self-identification. A commu-
nity that identifies itself as an indigenous people brings itself into legal existence
as such in international law. Recall ILO Convention 169, which provides that
“self-identification as indigenous or tribal shall be regarded as a fundamental cri-
terion for determining the groups to which the provisions of this Convention
apply.”128 An earlier draft of the Declaration specified that indigenous peoples
“have the right to identify themselves as indigenous and the right to be recognized
as such.”129 But States relied on this provision to propose a strict definition of
indigenous peoples, which indigenous participants rejected as under-inclusive.130
As a result, all that remains of self-identification in the text of the Declaration is
the right of indigenous peoples “to determine their own identity or membership
in accordance with their customs and traditions.”131
Another approach is to rely on recognition by States that populations within their
midst constitute indigenous peoples in international law. On this approach, States
are responsible for determining the international legal existence of indigenous com-
munities. During the drafting of the Declaration, for example, China called for
not only the Declaration to contain a definition of indigenous peoples but also a
requirement that indigenous peoples be recognized as such by the States in which
they reside.132 Recall the distinction between constitutive and declaratory theories
125
See generally Benedict Kingsbury, “Indigenous Peoples” in International Law: A Constructivist Approach to
the Asian Controversy, 92 Am. J. Int’l L. 414 (1998).
126
Working Group on the Draft Declaration, Report on the First Session, U.N. Doc. E/CN.4/1996/84,
at 7.
127
See Will Kymlicka, Multicultural Odysseys: Navigating the New International
Politics of Diversity 286 (2007) (“today it is politically advantageous for substate nationalist groups
to adopt the label and rhetoric of indigenous peoples”).
128
Art. 1(2). See supra text accompanying notes 87–88.
129
Res. 1995/32, Draft Declaration on the Rights of Indigenous Peoples as Contained in the 1994
Sub-Commission Annual Report, U.N. Doc. E/CN.4/Sub.2/1994/56, art. 8.
130
For discussion of this drafting history, see Gilbert, supra note 103, at 216–17.
131
Art. 33.
132
Report of the Working Group Established in Accordance with Commission on Human Rights Resolution
1995/2.E/CN.4/1998/106, para. 37.
of recognition in international law.133 A constitutive theory holds that a State exists

in international law when other States recognize it as such, whereas a declaratory
theory stipulates that a State’s international legal existence is conditional on its pos-
session of the objective attributes of a State. Treating States as responsible for the
international legal existence of indigenous peoples transposes a constitutive account
of State recognition to the context of indigenous recognition in international law.
It calls on States to both define and apply criteria to determine the international
legal existence of indigenous peoples. A community is not an indigenous people in
international law until a State or group of States recognizes it as such.
Both of these approaches rely on sources other than international law to deter-
mine whether politically constituted indigenous communities possess international
legal existence. The first approach relies on indigenous communities themselves;
the second relies on States. Both fail to contemplate the possibility that interna-
tional recognition of indigenous peoples, in Kelsen’s words, is “comprised on two
quite distinct acts: a political act and a legal act.”134 While Kelsen remained influ-
enced by a constitutive understanding of State recognition, he insisted that legal
recognition requires international law itself to supply the criteria for determining
the legal status of a collectivity. By surrendering the task of defining the criteria of
international indigenous recognition to a domain beyond international law, these
approaches—like those under Kelsen’s critical gaze—confuse international law
with the political projects that it mediates.
It is one thing for international law to empower States or indigenous peoples
to decide whether international legal requirements are met in any given case. This
suggests that international law supplies the criteria of indigenous legal recognition
and empowers specific legal actors to determine whether these criteria are met. It
is another to hold that they possess the power to determine the nature of these
requirements. This suggests that international law does not regulate international
legal recognition at all—either because States determine the criteria by which indig-
enous peoples assume international legal existence or because indigenous peoples
themselves determine their own international legal status. If there is a difference
between international legal and political recognition, it lies in the capacity of inter-
national law itself to supply the criteria by which to determine the international
legal existence of both States and indigenous peoples.135
133
See supra text accompanying notes 1–5.
134
Kelsen, supra note 1, at 605.
135
Compare Kelsen, supra note 1, at 610 (“If it were correct that general international law does not itself
directly determine the concept of a “state” but rather leaves the determination to those states competent to
recognize a community as a state in a given case, then the recognition of states would not be regulated by
any norm of international law and hence would not be a possible subject for codification”).
Benedict Kingsbury offers a third approach, which is to resolve conceptual

problems surrounding international legal recognition of indigenous peoples “in
accordance with processes and criteria that vary among different societies and insti-
tutions.”136 To strive for a precise definition of “indigenous peoples” that will deter-
mine which collectivities possess international indigenous rights will do violence
to “the fluidity and dynamism of social life.”137 The fact that indigenous peoples
possess international legal status “holds great normative power” for many commu-
nities around the world.138 Determining whether particular communities possess
such status and specifying the nature and scope of their rights, however, “can be
resolved only through specific contextual decisions, often referring to detailed func-
tional definitions, that are influenced by, and influence, the more general abstract
global concept.”139 Kingsbury points out that indigenous populations in east, south-
eastern, and south Asian countries, and to a lesser extent African countries, have
become active in international indigenous politics. States in which such populations
are located challenge their status as indigenous peoples in international law on the
basis that their historical experiences of colonization and conquest were radically
different than those of indigenous populations in the Americas and elsewhere in
the world.
Kingsbury is right to point out the risks of requiring a precise definition of indig-
enous peoples to sort the legal validity of the political claims of international indig-
enous status made by diverse communities around the world. It would be impossible
to generate a definition “that is workable and not grossly under- or over-inclusive” or
which “is likely to incorporate justifications and referents that make sense in some
societies but not in others.”140 In place of an overarching definition, Kingsbury
offers four factors as criteria for international legal recognition of indigenous peo-
ples: self-identification as an indigenous population; an experience of severe disrup-
tion, dislocation or exploitation; a long connection to the region; and the wish to
maintain a distinct identity.141 This approach enables “dynamic processes of nego-
tiation, politics, legal analysis, institutional decision making and social interaction”
to render the “concept” of indigenous peoples “germane to the enormous variety of
local self-conceptions and political contexts to which its relevance is asserted.”142
136
Kingsbury, supra note 123, at 415.
137
Id. at 414.
138
Id. at 415.
139
Id. at 415, 416.
140
Id. at 414.
141
Id. at 453.
142
Id. at 457.
It is difficult to contest that a community merits international legal attention

when it has an abiding connection to the territory in which it resides, wishes to
maintain its distinctive identity, and is experiencing severe disruption, dislocation
or exploitation. What is needed is an explanation as to why international legal atten-
tion to these attributes and conditions should assume the legal form of indigenous
rights as opposed to more generic human rights, such as minority rights and rights
to cultural protection as well as those that protect civil, political, social, and eco-
nomic interests. That the community identifies itself as an indigenous population
does not provide a sufficient explanation of why international law should recognize
it in these terms. Kingsbury’s approach, unless supplemented by an explanation
of the normative significance of international indigenous rights, risks conflating
different forms of international legal protection into an undifferentiated concern
about the disruption or exploitation of diverse communities of value. Numerical
minorities, cultural minorities, national minorities, religious communities, linguis-
tic communities, impoverished majorities—are we all indigenous peoples now?
Determining the criteria for legal recognition of indigenous peoples requires tak-
ing an interpretive stand on the nature and purpose of international indigenous
rights themselves. Indigenous rights in international legal instruments are some-
times interpreted in moral terms, as concrete expressions of universal rights that
inhere in all individuals. Indigenous rights enable indigenous peoples to effectively
enjoy human rights that protect features that all of us share. Some of these rights
are civil and political in nature. Others are social, economic, and cultural in nature.
Debates within the ILO during the drafting of Convention 107 and its text, for
example, manifest an understanding of indigenous rights as instruments that would
enable indigenous people to benefit “fully from the rights and advantages enjoyed
by other members of the population.”143 As the U.N. Declaration suggests, inter-
national indigenous rights can also be construed as concrete expressions of a more
general right of self-determination that inheres in all people.144 From this univer-
sal perspective, the legal significance of the political fact of indigenous peoples lies
in their experience of discriminatory practices that structure their relations with
the broader political communities in which they are located. Understanding the
nature and purpose of international indigenous rights in universal terms yields cri-
teria for international indigenous recognition that focus primarily on the barriers
Convention 107, Recommendation No. 104, preamble para. 5.

143
See Anaya, supra note 76, at 99 (“the principle of self-determination arises within international law’s
144
human rights frame and hence benefits human beings as human beings” and is “presumptively universal in
scope and thus must be assumed to benefit all segments of humanity”) (emphasis in original).
that indigenous peoples face in the effective enjoyment of universal human rights,
including the right of self-determination.145
But this universal approach risks losing sight of the international legal instru-
ments that it seeks to vest with normative significance. What the legal history of
international indigenous protection reveals is that indigenous rights in interna-
tional law are differentiated rights that recognize differences—partly denied and
partly produced by the international distribution of territorial sovereignty initi-
ated by colonization—that exist between indigenous and nonindigenous peoples.
International indigenous rights speak to the consequences of organizing global
politics, including indigenous politics, into a legal system that vests sovereign power
in certain collectivities and not others. Not only does this mode of legal organiza-
tion exclude indigenous peoples from participating in the distribution of sovereign
power that it performs, but it also authorizes legal actors to whom it distributes
sovereign power—States—to exercise such power over indigenous peoples and ter-
ritory to their detriment. The morally suspect foundations of these baseline legal
entitlements are why indigenous rights merit recognition on the international legal
register. A failure to respect international indigenous rights, in the words of Michael
Reisman, “reenacts the tragedy of colonialism.”146
International indigenous rights possess normative significance not because they
transcend the contingencies of history and protect universal features of humanity.
Their significance lies instead in the contingencies of history itself, namely, in the
ways international law has organized global politics into a legal order. Their inter-
national legal existence is conditional on the formal legal status of the jurisdic-
tion in which they are located—a legal fact underscored by ILO Convention 107.
Before Convention 107, only colonial populations were recognized as indigenous
populations. The colonial legal status of the jurisdiction in which a population
was located determined its international legal existence as an indigenous popula-
tion. After Convention 107, only members of indigenous populations of indepen-
dent States possess international indigenous rights—entitlements subsequently
extended to indigenous peoples by Convention 169 and the U.N. Declaration. The
sovereign legal status of the jurisdiction in which indigenous peoples are located
now determines their entitlement to international protection. On either formula-
tion, indigenous recognition in international law is predicated on the legal nature of
145
But see Kingsbury, supra note 123, at 190 (human rights and nondiscrimination claims and self-
determination claims differ in terms of “style of argument, historical account and canon, patterns of legiti-
mation and delegitimation, institutional adherents, discursive community, and boundary markers”).
146
W. Michael Reisman, Protecting Indigenous Rights in International Arbitration, 89 Am. J. Int’l L. 350, 359
(1995).
the broader political community where indigenous peoples are located. Indigenous
peoples in international law are a function of the structure and operation of the
international legal order.
International law, absent exceptional circumstances, does not stipulate that the
right of self-determination authorizes an indigenous people to assert sovereign
independence from a State in which it is located. Nor does it authorize indigenous
peoples to challenge the international legal validity of the sovereign power to which
they are subject on the basis of its morally suspect origins.147 But, as a result, inter-
national indigenous rights mitigate some of the adverse consequences of how inter-
national law validates morally suspect colonization projects that participated in the
production of the existing distribution of sovereign power. The twentieth-century
legal history of international indigenous rights, from their origins in international
protection of indigenous workers in colonies to their contemporary expression in
the U.N. Declaration on the Rights of Indigenous Peoples, demonstrates that their
purpose is to mitigate injustices produced by the way the international legal order
conceives of sovereignty as a legal entitlement that it distributes among collectivi-
ties it recognizes as States. Indigenous peoples in international law are collectivities
for which States must adopt appropriate domestic measures to vest contemporary
claims of sovereign authority with a modicum of normative legitimacy.
Interpreting the nature and purpose of international indigenous rights in these
terms sheds light on questions surrounding the criteria for legal recognition of indig-
enous peoples. The criteria by which indigenous peoples can be said to exist in inter-
national law relate to their historic exclusion from the distribution of sovereignty
that lies at the heart of the international legal order. This does not exclude additional
criteria that condition recognition on distinctive collective identities, experiences of
exclusion, dislocation or exploitation, and self-identification. Nor does it necessarily
preclude international law from recognizing indigenous peoples in Africa or Asia. It
stipulates that international legal status of indigenous peoples turns in part on the
normative grounds of the sovereign power of the States in which they are located.
It requires of indigenous peoples claiming international legal recognition that the
sovereign power of the States in which they are located is grounded in international
law’s refusal to recognize their ancestors as sovereign legal actors.
147
Island of Palmas Case (Perm. Ct. Arb. 1928), 2 U.N. Rep. Intl. Arb. Awards 829, 845 (“a juridical fact must
be appreciated in the light of the law contemporary with it”).
7
S EL F - D E T ER M IN AT IO N IN T H R EE M OV EM EN T S
when ar ab, asian, and Latin American delegations began to press the United
Nations in the early 1950s to recognize a human right of self-determination, European
officials expressed alarm, seeing their campaign as “a mere pretext for attacks on the
colonial powers.”1 The upstart delegations had succeeded in blocking an effort to exempt
colonies from the application of the draft covenant intended to transform the Universal
Declaration on Human Rights into a legally binding treaty, and now they were setting
their sights higher.2 Especially exercised by these developments was a Belgian delegate,
Fernand Dehousse, who decried that “[c]‌ertain delegations which had spoken in favour
of the self-determination clause did not seem to be sufficiently interested in the solution
of the question, but appeared to regard the clause in the negative sense, as a weapon for
use against the colonial Powers.”3 His protests fell on deaf ears. In 1966, the right of
self-determination was enshrined in the International Covenant on Civil and Political
Rights and the International Covenant on Economic, Social, and Cultural Rights.4
1
A.W. Brian Simpson, Human Rights and the End of Empire: Britain and the Genesis of
the European Convention 814 (2004).
2
For an illuminating account, see Roland Burke, Decolonization and the Evolution of
International Human Rights (2010). See also Samuel Moyn, The Last Utopia: Human
Rights in History 84 (2010).
3
Summary Records of the Third Committee, 361st meeting, A/C.3/SR. 361, paras. 11–12 (Dec. 7, 1951) (quoted
in Burke, supra note 2, at 158 n.40).
4
International Covenant on Civil and Political Rights, art. 1, opened for signature Dec. 19, 1966, 999 U.N.T.S.
171 (entered into force Mar. 23, 1976); International Covenant on Economic, Social, and Cultural Rights,
art. 1, opened for signature Dec. 19, 1966, 993 U.N.T.S. 3 (entered into force Jan. 3, 1976).
163
Opponents were right to see the campaign to recognize self-determination as a

human right as an attack on colonialism. In fact, it is illustrative of a deeper role
that the right of self-determination plays in the international legal order. The right
of self-determination has become an instrument whose purpose is to promote a
just distribution of sovereign power in the international legal order. It has come
to assume this task because of three conceptual movements it underwent in the
twentieth century that dramatically transformed its legal scope and content. The
first had its origins in events surrounding the Paris peace process in 1919, where
self-determination’s class of beneficiaries moved from the population of an existing
State to also include populations within and across State boundaries. The second, a
movement in legal status, from a principle to a right, coincided with international
law’s engagement with the dramatic decolonization projects that took root after
the Second World War. The third movement is best understood in the context of
self-determination’s awkward relationship to central tenets of both public inter-
national law and international human rights law. It is a movement between legal
orders, from its engagement with the international realm to an additional engage-
ment with the domestic realm, and from an entitlement that had the capacity to
protect existing States or produce new States to one that also validates domestic
constitutional reorganization of a political community. As a result of these three
movements, the right of self-determination authorizes the formation of a new State
by a colonized population and, more controversially, when an existing State fails to
secure effective measures of political representation—what international law refers
to as “internal self-determination”—for a people in its midst.
While these movements have been enlisted by others in support of distinctive
claims about the contemporary legal salience of the right of self-determination,5 less
has been written about their cumulative effect on the normative role that the right
plays in the international legal order.6 This chapter proposes that these three move-
ments yield a new purpose for self-determination in international law. Its new pur-
pose is to mitigate adverse effects associated with how international law distributes
sovereignty around the globe and how it authorizes its exercise by sovereign States.
The right of self-determination is an instrument that stands to produce a more just
5
See, e.g., Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal (1995);
James Crawford, The Creation of States in International Law 107 (2d ed. 2006). For an anal-
ysis of the problems posed by cultural and gender differences to the interpretation of self-determination, see
Karen Knop, Diversity and Self-Determination in International Law (2002). For a literary
portrait of self-determination, see Edward Morgan, The Imagery and Meaning of Self-Determination, 20
N.Y.U. J. Int’l Law & Pol. 355 (1988).
6
A notable exception is the work of Allen Buchanan. See Allen Buchanan, Justice, Legitimacy, and
Self-Determination: Moral Foundations for International Law (2004).
Self-Determination in Three Movements 165
distribution of sovereign power among collectivities that international law recog-

nizes as States. The right of self-determination thus acts as an important conceptual
bridge between the structure and operation of international law and international
distributive justice. Finally, this chapter offers some reflections on some of the impli-
cations of this role, on what it means to speak of the distribution of sovereignty in
international law, and on what it means to speak of self-determination as bridging
international law and distributive justice.
Self-Deter mination and the Legality of Colonialism
References to self-determination include the Charter of the United Nations,

which lists the principle of self-determination as one of the purposes of the United
Nations.7 The Charter also calls for the promotion of a number of social and eco-
nomic goals “with a view to the creation of conditions of stability and well-being
which are necessary for peaceful and friendly relations among nations based on
respect for the principle of equal rights and self-determination of peoples.”8 In
addition, both the International Covenant on Civil and Political Rights and the
International Covenant on Economic, Social, and Cultural Rights provide that “all
peoples have the right of self-determination [and to] freely determine their political
status and freely pursue their economic, social and cultural development.”9
Notwithstanding its present status as a human right, before the First World War,
the concept of self-determination—to the extent it received legal recognition—simply
reinforced the then existing distribution of sovereignty in the international legal
order. In the words of Diane Orentlicher, “if international law enforced any concep-
tion of self-determination, it meant one thing: established states had a right to be
left alone by other states.”10 The field traditionally understood self-determination as
vesting in the entire population of an existing State, coextensive with sovereignty
itself. Its object of attention was the constituted power of a State and its autonomy
and independence on the international stage.
International law’s equation of self-determination with sovereignty existed at a
time when international law extended legal validity to the colonizing projects of
imperial powers. Although colonialism now undoubtedly constitutes a violation of
7
U.N. Charter, art. 1(2), 1 U.N.T.S. XVI (Oct. 24, 1945).
8
Id. at art. 55.
9
Supra note 4.
10
Diane Orentlicher, Separation Anxiety: International Responses to Ethno-Separatist Claims, 23 Yale L.J. 1,
22 (1998).
a people’s right of self-determination, for centuries, international law authorized the

colonization of peoples by sovereign States. It did so by comprehending the territory
of a sovereign State as including the territory of any and all colonies under its impe-
rial control.11 A State’s sovereignty thus extended to its colonial territories and colo-
nized peoples. Any attempt by a colonial population to free itself of its colonial status
was comprehended as a threat to the territorial integrity of its colonizing master and
an international illegality. Sovereignty, and its latent synonym, self-determination,
in other words, extended international legal validity to colonialism.
After the First World War, self-determination surfaced in international legal dis-
course as a principle relatively autonomous from the concept of sovereignty. It did so
in discourse that justified the liberation of Eastern European nations under the yoke
of foreign domination. The Paris peace process and its aftermath saw the creation of
Finland, Estonia, Latvia, Lithuania, Poland, Bulgaria, Yugoslavia, Czechoslovakia,
and Turkey, and the splitting of Austria-Hungary into two separate countries. The
ultimately futile geopolitical goal of creating buffer zones to restrain a resurgent
Germany no doubt drove the politics of these acts of liberation. The most visible
manifestation of this goal was the decision to establish joint occupation of the
Rhineland for fifteen years in return for France abandoning its claim for a “free
Rhine state.”12 Nonetheless, the principle that State boundaries should respect the
self-determining identities of nations was what Woodrow Wilson unevenly relied
on to justify, in normative terms, this radical political redistribution of sovereign
power.13 In fact, one of Wilson’s advisers, Isaiah Bowman, envisioned the main
function of the League of Nations to be the guarantor of “territorial integrity” of
the nations of Europe, vested with the power to alter boundaries “if it could be
shown that injustice had been done or that conditions had changed.”14
11
Case Concerning Right of Passage over Indian Territory (Portugal v. India), 1960 I.C.J. 6 (Apr. 12). With
respect to mandated and trust territories, sovereignty was not viewed as vested in the administering power.
Where it did vest, if it vested at all, was the subject of a debate whose “results, the luxuriance and variety
of which are almost baffling.” Quincy Wright, Mandates under the League of Nations 90
(1930). See also Michael D. Callahan, A Sacred Trust: The League of Nations and Africa,
1929–1946 (2004). For more discussion, see Crawford, supra note 5, at 568–69.
12
For discussion, see Patrick O. Cohrs, The Unfinished Peace after World War I: America,
Britain and the Stabilisation of Europe, 1919–1932, at 57 (2008).
13
The normative and the geopolitical accounts may not be that far apart. See Zoran Oklopcic, A
Farewell to Rhetorical Arms: Unravelling the Self-Determination of Peoples, in Recognition and
Self-Determination 110 (Andrée Boisselle, Glen Coulthard, Avigail Eisenberg & Jeremy Webber eds.,
2014) (“self-determination may be a battle cry for political emancipation, but it is, moreover, a rhetorical
tool deployed by great powers through which they enlist select populations for the political projects that
perpetuate their dominance”).
14
Memorandum by Isaiah Bowman (Dec. 10, 1918), quoted in Cohrs, supra note 12, at 64.
During this period, self-determination served to legitimate the creation of States,

and thus began to mean something more than a principle justifying the existing
distribution of sovereignty. By regarding populations in addition to those of exist-
ing States as “self-determining,” self-determination began its first movement, from
a normative feature of the population of an existing State to one that can also char-
acterize populations within and across State boundaries. Its object of attention now
extended beyond constituted power to include constituent power—the power of a
people to form a political community. In so doing, it began to assume the role of legit-
imating recalibrations of the distribution of sovereign power in international law.
Self-determination did not perform this role in universal terms. Its relevance was
primarily restricted to Europe and to peoples that international law deemed to be
sufficiently developed to merit sovereign recognition. In 1919, the Covenant of the
League of Nations declared that territories that had been annexed or colonized by
Germany and the Ottoman Empire before the First World War were inhabited by
peoples “not yet able to stand by themselves under the strenuous conditions of the
modern world.”15 These territories were administered by “mandatories”—sovereign
States—whose administration in turn was supervised by the League Council and
the Permanent Mandates Commission. Mandates were grouped into three catego-
ries depending on the degree of their “development,” determining the extent to
which they enjoyed political autonomy from their mandatory powers.16 Mandatories
were responsible for the “tutelage” of peoples inhabiting mandates—in Woodrow
Wilson’s words, they were “tutors and advisors of these people”17—in accordance
with “the principle that the well-being and development of such peoples form a
sacred trust of civilization.”18
This conception of self-determination in international law—one that legally vali-
dated the establishment of nation-States in Europe and the colonization of peoples
elsewhere19—remained relatively constant until the aftermath of the Second World
War. At the time of its enactment in 1948, the Charter of the United Nations simul-
taneously reaffirmed the “principle” of self-determination and the international
15
League of Nations, Covenant of the League of Nations, art. 22 (Apr. 28, 1919). See generally Wright, supra
note 11 (providing a contemporaneous account of the mandates system).
16
Group A was comprised of territories in the Middle East, Group B was comprised of territories in Central
Africa, and Group C was comprised of territories in South-West Africa and the Pacific. Id.
17
Wilson Report to the Third Plenary Session of the Peace Conference, Foreign Office, Quai D’Orsay, PPW
55:176 (Feb. 14, 1919), quoted in Anna Su, Woodrow Wilson and the Origins of the International Law of
Religious Freedom,” 15 J. Hist. Int’l L. 235–67, 255 (2013).
18
Id. For more detail on the legal apparatus of the mandates system, see Crawford, supra note 5, at 565–601.
19
Compare Mark Mazower, No Enchanted Palace; The End of Empire and the Ideological
Origins of the United Nations 105 (2009) (“The 1919 settlement had barred the principle of national
self-determination from Africa and southeast Asia but extended it across Central and Eastern Europe”).
legality of colonialism. Chapter XII of the Charter established the trusteeship system,
a modified mandates system for the administration and supervision of remaining
mandate territories now deemed trust territories. Trust territories were not the only
colonies whose populations international law prevented from acquiring sovereign state-
hood. Chapter XI of the Charter governed “non-self-governing territories” over which
member States at the time of its enactment asserted sovereignty outside of the trustee-
ship system. Chapter XI implicitly affirmed the international legality of these colonial
relations by setting forth a “Declaration” by members who exercised imperial power
over colonies of this kind to act in the interests of the colonized populations in a variety
of different ways. In the words of Samuel Moyn, “the United Nations, far from being
the forum of a new and liberatory set of principles, appeared set at first on colluding in
the attempted reimposition of colonial rule after the war.”20
Soon after the U.N. Charter’s enactment, however, international law performed
a dramatic reversal on the international legality of colonialism. After a decade of
efforts by the African, Arab, Asian, and Latin American delegations to attempt
to persuade numerous U.N. bodies to recognize self-determination as a human
right, the U.N. General Assembly enacted the 1960 Declaration on the Granting
of Independence to Colonial Territories. Formally marking the beginning of
self-determination’s second movement, the 1960 Declaration, in the language of
universalism, declared self-determination to be a “right” that entitles “all peoples” to
“freely determine their political status and freely pursue their economic, social and
cultural development.”21 The 1960 Declaration also continued self-determination’s
first movement by affirming that the right of self-determination vests in colonized
peoples, populations that are not coextensive with the population of a State. It pro-
vided that the populations of trust territories and non-self-governing territories
are peoples, and that these populations are entitled to “complete independence,” or
what has become known as “external” self-determination.22
The 1960 Declaration thus treats the right of self-determination as an instru-
ment that addresses international law’s complicity with colonialism. “With the
official acceptance of the right to self-determination,” according to Roland Burke,
“the process of decolonization itself became a human right.”23 The elevation of
20
Moyn, supra note 2, at 93. See also Mazower, supra note 19 (arguing that the U.N.’s creators envisioned it
as an organization that would protect the interests of empire and that this vision was decisively reshaped by
postcolonial States).
21
Declaration on the Granting of Independence to Colonial Countries and Peoples, art. 1, G.A. Res. 1514,
U.N. GAOR 15th Sess., Supp. No. 15, U.N. Doc. A/4654 (1960).
22
Id. at art. 5.
23
Burke, supra note 2, at 37. Burke provides a detailed historical account of the changing impact of decolo-
nization on the U.N. human rights program. See also Jochen von Bernstorff, The Changing Fortunes of
self-determination to the status of a human right was a striking political achieve-

ment, one that underscored a dramatic transformation of the U.N.’s stance toward
colonialism. In Rupert Emerson’s words, “[t]‌he earlier assumption that each colo-
nial power should at its own discretion and in an unhurried way lead its dependent
peoples to well-being and self-government gave way to the proposition that colonial-
ism was an intolerable and illegitimate abuse to be done away with as speedily as pos-
sible by the international community.”24 The relationship between colonized and
colonizer was no longer shielded from international scrutiny as a matter “essentially
within the domestic jurisdiction” of a State.25 The elevation of self-determination to
the status of a human right dramatically transformed colonialism into a matter of
international concern.
Some have argued that self-determination’s engagement with decolonization
taints its normative status as an international human right. 26 Louis Henkin, for
example, argued that self-determination was placed on the register of international
human rights to be “used as a political weapon against colonialism or economic
imperialism, not to enhance the rights of all persons against all governments.”27
Henkin cautioned that “its injection into the human rights covenants could only
hamper progress on the covenants and reduce further the likelihood of adherence by
important nations.”28 Crawford Young characterized the right of self-determination
as an “instrumental norm for the anticolonial movement, a means to the transcen-
dent end of immediate independence.”29 In Young’s words, “the essential value” of
democracy and self-determination “was their utility in the combat against colonial
rule, rather than their intrinsic worth.”30
These concerns confuse the legal value of the right of self-determination
with the politics behind its legal production. What the history of the right of
self-determination during this period illustrates is that the international legality of
the Universal Declaration of Human Rights: Genesis and Symbolic Dimensions of the Turn to Rights in
International Law, 19 Eur. J. Int’l L. 903, 912 (2008) (“The new Southern majority within the UN advanced
the claims to liberation from racial discrimination and colonial rule in human rights terms; a political
strategy that ultimately led to the inclusion of a common Article 1 on the right to self-determination in the
two 1966 human rights covenants”). For a historical account from a British perspective of the anti-colonial
movement in the U.N. during this period, see Simpson, supra note 1, at 300–22.
24
Rupert Emerson, Colonialism, Political Development, and the UN, 19 Int’l Org. 484, 486 (1965).
25
U.N. Charter, art. 2(7).
26
This discussion of the relationship between self-determination and decolonization is indebted to Burke,
supra note 2, at 35–58.
27
Louis Henkin, The United Nations and Human Rights, 19 Int’l Org. 504, 513 (1965).
28
Id. at 513.
29
Crawford Young, African States and the Search for Freedom, in The Idea of Freedom in Asia and
Africa 32 (Robert H. Taylor ed., 2002).
30
Id.
human rights is the product of deep political contestation over the international
legal validity of the exercise of certain forms of power, not an inexorable step in
the process of moral theory working itself pure on the international stage. The
elevation of self-determination to the status of a human right was a spectacular
political accomplishment by the Arab, Asian, and Latin American delegations at
the United Nations. But the politics behind the legal production of the right of
self-determination in international law—however spectacular—does not deter-
mine the role it plays in the international legal order. The intent of those responsible
for its entrenchment is but one factor in characterizing the purpose of the right.
What this politics does suggest, however, is that the right of self-determination was
meant by at least some of those responsible for its international legal existence to
mitigate some of the adverse effects produced by how international law distributes
sovereignty around the globe and authorizes its exercise by sovereign States. The
right of self-determination assumed this role in the context of decolonization, by
the way it operated to redistribute sovereign power to redress international legal
complicity in the colonizing projects of imperial powers.
Partly because of its radical potential, the 1960 Declaration gave rise to more
questions than answers. For example, it stated that “[a]‌ny attempt aimed at the par-
tial or total disruption of the national unity and the territorial integrity of a coun-
try is incompatible with the Purposes and Principles of the Charter of the United
Nations.”31 So whereas the 1960 Declaration entitles colonized peoples to form their
own States, it also reaffirms the territorial integrity of all States. Nor did the 1960
Declaration take explicit issue with international law’s deep-rooted acceptance of
the proposition that colonized territory is the territory of the colonizer. But if a
State’s territory includes the territories of its colonies, how can independence be
achieved without disrupting the territorial integrity of colonizing powers?32
More important, if self-determination attaches to colonized peoples, then is it
no longer coextensive with the entire population of an existing State? That is, does
it have the potential to attach to some but not to all members of a State, to com-
munities within States and across States? The 1960 Declaration sets forth that all
peoples possess the right of self-determination. It also declares that “alien subju-
gation, domination and exploitation” constitute violations of fundamental human
rights. These forms of oppression presumably include colonization but reach beyond
the colonial context. But the 1960 Declaration does not specify that these forms of
oppression violate the right of self-determination. And it restricts its discussion of
Declaration on the Granting of Independence to Colonial Countries and Peoples, supra note 21, at art. 6.
31
To be precise, this question arose only with respect to non-self-governing territories. See note 11, supra. For
32
more discussion, see Crawford, supra note 5, at 568–69.

the acquisition of independence to colonies. Does the right entitle a non-colonized

people to sovereign statehood?
Some of these questions were clarified by the Declaration on Friendly Relations
in 1970.33 Partly the result of continued efforts by Arab, Asian, and African del-
egations to recast basic principles of international law, the 1970 Declaration pro-
vides extensive detail on principles commonly understood to be foundational to the
international legal order, such as the prohibition on the use of force, the duty not
to intervene in the domestic jurisdiction of any State, and the principle of sover-
eign equality of States. In its elaboration of the meaning of self-determination, the
1970 Declaration reaffirms the principle of territorial integrity but adds a crucial
qualification. The 1970 Declaration made clear that the territory of a colony has “a
status separate and distinct from the territory of the state administering it.”34 Thus,
while colonies possess separate territorial status, the territorial integrity of a colony
and of a State is inviolable. The acquisition of sovereign independence by a colony
via the right of self-determination, in other words, does not threaten the territorial
integrity of a State.
Moreover, like the 1960 Declaration, the 1970 Declaration also states that all peo-
ples, not simply colonized peoples, have the right of self-determination. It reiterates
the 1960 Declaration’s language of “alien subjugation, domination and exploitation”
and says that these conditions constitute a denial of fundamental human rights.35
But it also provides that these forms of oppression constitute a violation of the “prin-
ciple” of self-determination. Theoretically, this could cover a wide variety of circum-
stances. And the 1970 Declaration seems to qualify the commitment to territorial
integrity even more than treating the territory of a colony as distinct from the terri-
tory of the colonizing State. It says that “nothing in the foregoing paragraphs shall
be construed as authorising or encouraging any action which would dismember or
impair, totally or in part, the territorial integrity or political unity of sovereign and
independent states conducting themselves in compliance with the principle of equal
rights and self-determination … and thus possessed of a government representing
the whole people without distinction as to race, creed or colour.”36 This suggests
that the right can disrupt the territorial integrity of a State not “in compliance with
the principle of equal rights and self-determination” and thus not “possessed of a
33
Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among
Supp. No. 28, U.N. Doc. A/8028 (1970).
34
Id.
35
Id.
36
Id.
government representing the whole people without distinction as to race, creed or

colour.”37
Taken together, the two Declarations produced two specifications of the right of
self-determination. First, they treat the right as an instrument of acquiring state-
hood in a colonial context where the parent State is geographically separate from
the colony by deeming colonial territory to possess a legal status separate from the
territory of the State administering it. Second, the Declarations can plausibly be
construed as treating the right of self-determination as an instrument of acquir-
ing statehood, outside the colonial context, in cases of “alien subjugation, domi-
nation and exploitation,” or where a surrounding State is not “in compliance with
the principle of equal rights and self-determination” and thus not “possessed of a
government representing the whole people without distinction as to race, creed or
colour.”38
The first specification of the right of self-determination legitimated an impressive
record of decolonization. Between 1945 and 1970, seventy territories achieved inde-
pendence.39 Angola and Mozambique acquired independence in 1975, and Namibia,
a territory once held by South Africa under a League of Nations mandate, acquired
independence in 1990. And the United Nations has consistently applied the right of
self-determination to colonies seeking independence, typically organizing a referen-
dum before the accession to independence. But given that there are very few formal
colonies still remaining in the world,40 what is the future of the right in terms of its
second iteration, outside the colonial context?
While some applaud “the reluctant sunset of the concept of self-determination,”41
others, in Orentlicher’s words, are equally “reluctant to retire the right and have ear-
nestly sought to find it new work.”42 One context where it does some work is in the
context of foreign occupation of territory. In 1971, the International Court of Justice
upheld a resolution by the U.N. General Assembly revoking South Africa’s mandate
over Namibia after South Africa refused to hand over the territory to U.N. trust-
eeship authority.43 Part of the Court’s reasons for upholding the resolution rested
37
Id.
38
Id.
39
Cassese, supra note 5, at 74–76.
40
Cassese notes that the U.S. and British Virgin Islands, New Caledonia, Tokelau, Bermuda, and the
Falklands/Malvinas remain the “few unresolved problems,” but also notes that the populations of at least
some of these territories “do not want independence.” Antonio Cassese, International Law 286
(2001).
41
Oklopcic, supra note 13, at 102.
42
Orentlicher, supra note 10, at 44.
43
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa)
Notwithstanding Security Council Resolution 276 (1970) Advisory Opinion, 1971 I.C.J. 16 (June 21).
on the importance of the principle of self-determination. With the mandate termi-

nated, South Africa’s continued presence in Namibia amounted to a foreign occupa-
tion in violation of international law.
Another context where self-determination has some salience, at least politically,
is in relation to forced annexation of territory, as it did in the case of East Timor,
which was annexed by Indonesia in 1975 and not liberated from foreign occupation
until 1999. Immediately after annexation, the U.N. Security Council was quick to
enact a resolution calling “upon all states to respect the territorial integrity of East
Timor as well as the inalienable right of its people to self-determination” and call-
ing “upon the Government of Indonesia to withdraw all its forces from the territory
without delay.”44 Although the International Court of Justice followed suit with an
enthusiastic endorsement of the “irreproachable” right of self-determination of the
people of East Timor, it dismissed the claim on technical grounds.45
Yet another area where self-determination has some relevance is in relation to Israel
and Palestine. In an advisory opinion, the International Court of Justice held that
Palestinians constitute a people in international law, and that the wall constructed
by Israel around the occupied territories violates their right of self-determination.46
The Court, however, said little more about the right and what might constitute a
violation. The judgment alludes to territorial claims made by Israel to Jerusalem and
certain settlements, with an unstated implication that the wall includes land that
belongs to the Palestinians within Israeli territory.47 The judgment is “significant as
it demonstrated the judges’ willingness to develop a legal rule for the first time (the
existence of a non-colonial right of self-determination), and to apply it in a politi-
cally charged context.”48 But the Court does not address broader questions concern-
ing the right of self-determination and the Palestinians, leaving unclear the territory
to which the right refers and what else it might vest in the Palestinian people. As a
44
S.C. Res. 384, U.N. Doc. S/RES/384 (Dec. 22, 1975).
45
East Timor case (Portugal v. Australia), 1995 I.C.J. 90, para. 90. Specifically, the Court dismissed the claim
of Portugal against Australia for entering into an agreement with Indonesia that adversely affected the
rights of East Timor, because Indonesia was not party to the case.
46
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004 I.C.J. 136.
For commentary, see Frédéric Mégret, A Sacred Trust of Civilization, 1 J. Int’l L. & Int’l Rel. 305 (2005).
47
In this regard, the Court stated that the construction of the wall
gives expression in loco to the illegal measures taken by Israel with regard to Jerusalem and the settle-
ments, as deplored by the Security Council … . There is also a risk of further alterations to the demo-
graphic composition of the Occupied Palestinian Territory resulting from the construction of the
wall inasmuch as it is contributing … to the departure of Palestinian populations from certain areas.
Legal Consequences decision, id. at para. 122.

48
Milena Sterio, The Right to Self-Determination under International Law: “Selfistans,”
Secession, and the Rule of the Great Powers 94 (2013).
result, its judgment offers little insight on the relevance of self-determination to the
vast majority of contemporary disputes implicating the right of self-determination,
which center on the role that it plays in restructuring the relationship between a
State and two or more ethnic or religious or cultural communities in its midst.
The Many Par adoxes of Self-Deter mination
Given its commitment to State sovereignty, public international law bears an awk-
ward relation to the norm of self-determination. Despite—or perhaps because
of—its intimate relation to freedom, a paradox lies at its heart : it both legitimates
and challenges sovereign authority.49 On one hand, sovereignty is the formal
expression of the principle of self-determination in international law. Sovereignty
provides a shield that protects the capacity of a people to determine freely the
ways in which they wish to govern themselves, and authorizes State action to pro-
tect chosen arrangements from internal or external threat. On the other hand,
self-determination, understood in light of the three movements identified here,
threatens sovereignty to the extent that it acts as a justification for disrupting the
existing distribution of sovereignty around the world by conferring the right to
acquire sovereign independence—or external self-determination—on populations
other than those of existing States.
That self-determination simultaneously promotes and threatens sovereignty is
perhaps why international law is ambivalent about it. One can discern the ambiv-
alence toward the norm in the way it appears in the U.N. Charter. The Charter
does not specify what it means by self-determination. The Charter regards it only
as a “goal” of the United Nations.50 It does conceive of the right as an instrument
of State relations, as a means of “furthering the development of friendly relations
among States,”51 but it does not specify any State obligations it might engender
beyond, as Cassese notes, the signaling of “the maturing of the political postulate of
self-determination into a legal standard of behaviour.”52
But self-determination also has an ambiguous relationship to international human
rights law. On the one hand, it is consistent with the emphasis in international
49
This insight is Martti Koskenniemi’s. See Martti Koskenniemi, National Self-Determination
Today: Problems of Legal Theory and Practice, 43 Int’l & Comp. L. Q. 241, 245 (1994) (identifying the
“paradox” that national self-determination “both supports and challenges statehood”).
50
U.N. Charter, supra note 7, at art. 55.
51
Id.
52
Cassese, supra note 5, at 43.
human rights law on democratic governance.53 And its second movement from a
principle to a right was one to a human right, as expressed by the ICCPR and the
ICESCR and the 1960 Declaration. On the other hand, although one can still char-
acterize the right as a universal right in that everyone participates in communal
bonds of some sort,54 it challenges international human rights law’s emphasis on
the universality of human rights. To the extent that it vests governance rights in
communities defined by nation and ethnicity, it possesses the potential to divide
people into different communities, to create insiders and outsiders, and to distrib-
ute rights differentially among individuals. Insofar as self-determination discourse
aligns itself with these kinds of movements, it runs counter to universal principles
that are said to inhere in human rights.
This tension is revealed in hard cases where the logic of self-determination and
human rights “lead in different directions.”55 International human rights law his-
torically dealt with hard cases by avoiding them, limiting the ability of individu-
als and groups to assert a right of self-determination in a judicial or quasi-judicial
forum. The decision of the U.N. Human Rights Committee to interpret the right
as a collective right and thus not subject to the Optional Protocol of the ICCPR56
eliminated the possibility that individuals could file a communication alleging a
violation of the right. And, until recently, the 1960 and 1970 Declarations were
understood as affirming what is known as the “salt water thesis,” according to which
sovereign independence could be attained, under the banner of the right, only by a
geographically separate colonial population against its colonial master.57 The ICJ’s
advisory opinion addressing the international legality of Kosovo’s unilateral decla-
ration of independence takes international law’s avoidance of self-determination to
a new level by failing to say anything meaningful about the nature of the norm.58
53
See, e.g., Thomas Franck, The Emerging Right to Democratic Governance, 86 Am. J. Int’l L. 46 (1992).
54
S. James Anaya, Indigenous Peoples in International Law 5 (2d ed. 2004) (“self-determination
derives from common conceptions about the essential nature of human beings, and it accordingly applies
universally and equally to all members of humanity”).
55
Benedict Kingsbury, Restructuring Self-Determination: A Relational Approach, in Operationalizing the
Right of Indigenous Peoples to Self-Determination 29 (Pekka Aikio & Martin Scheinin eds., 2000).
56
See Lubicon Lake v. Canada, CCPR/C/38/167/1984 (Mar. 26, 1990), paras. 31.1, 32.2. Note that this is
merely a procedural conclusion regarding the enforceability of the right under the Optional Protocol. There
are other procedures under the Covenant that may implicate the right of self-determination. The right
is subject to the scrutiny of the Committee under the mandatory reporting procedure and the optional
procedure for interstate complaints. And a reporting procedure is also available under the Covenant on
Economic, Social, and Cultural Rights, which, as noted, also contains a right of self-determination.
57
See Cassese, supra note 5, at 59 for the view that that the drafting history supports this construction.
58
Advisory Opinion on the Accordance with International Law of the Unilateral Declaration of
Independence in Respect of Kosovo, 2010 I.C.J. 141 (July 22). For commentary, see Elena Circovic, An
Analysis of the ICJ Advisory Opinion on Kosovo’s Unilateral Declaration of Independence, 11 Ger. L.J. 895
(2010).
Perhaps partly in an effort to address this paradox, international law has ceased
to regard the right of self-determination in absolute terms, as solely authorizing
complete sovereign independence for a people subject to the sovereign authority of
a State that is not their own. Instead, with this movement, the right is migrating
from the international to the domestic realm, from an entitlement that only had the
capacity to protect existing States or produce new States to one that also validates
domestic constitutional reorganization of a political community. This movement
reconceptualizes self-determination as possessing internal as well as external dimen-
sions.59 External self-determination refers to a right of a people to acquire sovereign
independence. Internal self-determination refers to rights internal to a constitutional
order, best understood as harboring a spectrum of constitutional and institutional
possibilities that fall short of secession but which can nonetheless protect a people’s
identity, culture, territory, and self-governing capacity.60
The spectrum of institutional possibilities short of sovereign independence con-
templated by internal self-determination ranges from guaranteed representation in
central political institutions to constitutional or legislative arrangements that secure a
measure of autonomy for ethnic, cultural, and religious communities.61 It also contem-
plates social, economic, or cultural rights that recognize or provide a sphere of collec-
tive autonomy to a community critical to securing internal self-determination.62 This
59
Although it has acquired prominence recently, the distinction between internal and external
self-determination was present in the discourse of those advocating for its recognition as a human right as
early as 1952. See Burke, supra note 2, at 43 (quoting Summary Records of the Third Committee, 454th
meeting, A/C.3/SR. 454, paras. 25 and 32 (Nov. 24, 1952) (noting that Dmitrios Lambros, a Greek delegate,
“could not accept the subtle distinctions drawn by some representatives between individual and collective
human rights and between ‘internal’ and ‘external’ self-determination”)).
60
For an account of the emergence of conceptions of international law as an international legal order legiti-
mately capable of supervising the adequacy of systems of minority protection and more generally of inter-
vening in “matters concerning groups formerly invisible behind the veil of sovereignty,” see Nathaniel
Berman, But the Alternative is Despair: European Nationalism and the Modernist Renewal of International
Law, 106 Harv. L. Rev. 1792 (1993).
61
The African Commission on Human and Peoples’ Rights, in Katangese Peoples’ Congress v. Zaire, for exam-
ple, has ruled that article 20 of the African Charter on Human and Peoples Rights, which guarantees the
right of self-determination, can be exercised through a number of different internal arrangements. The
Commission listed independence, self-government, local government, federalism, confederalism, unitari-
anism, “or any other form of relations that accords with the wishes of the people but fully cognizant of other
recognized principles such as sovereignty and territorial integrity.” Katangese Peoples’ Congress v. Zaire,
Comm. No. 75/92 (1995). For a summary of this case, see Annex VI of Eighth Annual Activity Report of the
Commission on Human and Peoples’ Rights, 1994–1995, Thirty-first Ordinary Session June 26–28, 1995),
Addis Ababa, Ethiopia. For analysis, see Martin Scheinin, The Right to Enjoy a Distinct Culture: Indigenous
and Competing Uses of Land, in The Jurisprudence of Human Rights Law: A Comparative
Interpretive Approach 182–83 (Theodore S. Orlin, Alan Rosas & Martin Scheinin eds., 2000).
62
Cassese, supra note 5, at 348 (arguing that bridging this gulf is needed, and internal self-determination
is a concept that helps in this respect). Gnanapala Welhenggama, Minorities’ Claims: From
spectrum offers different forms of legal pluralism to a community seeking a measure of

autonomy from the State in which it is located. Establishing a plural legal order is no
mean feat, and often communities enlist the discourse of rights in support of such an
aspiration. Because it contemplates legal autonomy short of secession, a right of internal
self-determination is a natural organizing principle for transformative political agendas
aimed at introducing a plurality of legal orders.63
Internal self-determination’s spectrum of institutional possibilities shares impor-
tant conceptual affinities with the rights that minority communities possess in
international law. Except perhaps with respect to indigenous peoples, minority
rights typically are not understood as providing territorial or political autonomy
to minority communities. But they can be understood as occupying points on
internal self-determination’s spectrum of institutional possibilities that represent
less of a threat to the sovereignty of a State. Both self-determination and minor-
ity rights have been received in international law in different ways over time. But
they have not been received in international law in ways that affirm their conceptual
affinities.64 In the early twentieth century, when self-determination legitimated the
redrawing of the map of Europe, minority rights were the province of the League of
Nations. After the Second World War, when self-determination emerged as a right
exercisable by those subject to colonial occupation or foreign domination, minority
rights were contained by the paradigm of individual, and universal, rights. After
the end of the cold war, when self-determination revealed itself to possess internal
dimensions, minority rights are understood not as a subset of a more general right
of self-determination but as if they were distinct legal entitlements. Successfully
asserting minority rights in international law is difficult for the reasons advanced in
Chapter 5. Asserting the right of self-determination is an even more daunting chal-
lenge. The relative marginality of these two categories of human rights is inversely
related to the threat that each poses to the territorial integrity and sovereign author-
ity of States.
Redesigning and disaggregating the right of self-determination to accommo-
date diverse forms of internal self-determination displaces but does not eliminate
the paradox at its heart. In all of its manifestations, self-determination stands to
Autonomy to Secession 128 (2000) (“these two concepts, minority autonomy and internal
self-determination, are increasingly being seen as two sides of the same coin”); see also Frederik Harhoff,
Institutions of Autonomy, 55 Nordic J. Int’l L. 31 (1986) (exploring the link between “autonomy” and
“self-determination”).
63
This discussion draws from Patrick Macklem, Militant Democracy, Legal Pluralism, and the Paradox of
Self-Determination, 4 Int’l J. Const. L. 488, 502–03 (2006).
64
For this insight, see Ana Vrdoljak, “Self-Determination and Cultural Rights,” in F. Franconi & M.
Scheinin, eds., Cultural Human Rights 41 (Leiden: Martinus Nijhoff, 2008), 41–78.
legitimate and challenge sovereign authority. A form of internal self-determination

can secure a measure of freedom for a people to determine its own future, yet its
implementation often renders insecure the freedom of the broader population to
protect chosen constitutional arrangements from transformation. There is no way
of knowing in theory whether the recognition or establishment of a form of internal
self-determination will produce stable or unstable forms of government. Will estab-
lishment or recognition promote intercultural harmony, or will it harden collective
identities, deepen divisions, and embolden a minority community to demand more
and more concessions from the center? The right of internal self-determination,
beyond vesting in a people a right to a form of autonomy short of secession, provides
little guidance on which form is appropriate in any given context.65
Yet a wholly contextual determination of the appropriate form of constitu-
tional arrangements that internal self-determination should assume in any given
State threatens to undermine this goal. How can human rights law subject ethnic,
religious, cultural, or national conflict to the rule of law if it cannot identify, in
advance and with a certain degree of specificity, a legal framework in which contex-
tual considerations can be brought to bear to assess whether a community is legally
justified in seeking a measure of legal pluralism? Absent some kind of framework
to assist in this task, the content of the right of internal self-determination remains
unclear. Equally uncertain is the definition of “peoples” who are capable of asserting
the right in either its external or more controversial internal form.66 Nor is there
anything approaching a consensus that international human rights law which do
receive unambiguous international legal recognition, such as civil and political and
social and economic rights, possess collective dimensions that provide disaggregated
protection to the various dimensions of the right to internal self-determination.67
The indeterminacy surrounding the right to self-determination has led James
Crawford to identify another paradox at its heart: “that the international law of
self-determination both exists and is obscure.”68
65
See Cassese, supra note 5, at 332 (“both customary and treaty law on internal self-determination … do not
furnish workable standards concerning some possible forms of realizing internal self-determination, such
as devolution, autonomy, or ‘regional’ self-government”).
66
See Knop, supra note 5, at 51–65, for a discussion of debates in the field concerning definitions of “peoples”
(contrasting approaches that utilize categories from those that seek coherence).
67
See Allan Rosas, Internal Self-Determination, in The Modern Law of Self-Determination 225
(Christian Tomuschat ed., 1993), for discussion of debates in the field concerning the legal status of internal
self-determination.
68
James Crawford, The Right of Self-Determination in International Law: Its Development and Future, in
Peoples’ Rights 10 (P. Alston ed., 2001).
Despite its indeterminacy, the emergence of a right of internal self-determination

provided an opportunity to extend external self-determination’s reach beyond the colo-
nial context. While politically expedient, stopping self-determination’s first movement
by restricting the right to overseas colonies is difficult to justify on principled grounds.
In part, this is because the extension to the colonial context changed the conceptual
structure of the right by adding contingency as one of its properties. As a result of the
Declarations, whether a people other than the population of an existing State possessed
the right of external self-determination became contingent on their status as a colo-
nized people. As a contingent right, external self-determination attaches as a matter
of circumstance not as a matter of inherent right, rendering it more capable of migra-
tion among right-holders who are subject to roughly similar circumstances. It is also
partly because of the wording of the 1970 Declaration, which deems “alien subjuga-
tion, domination and exploitation” to constitute a violation of self-determination and
which makes respect for territorial integrity contingent on the presence of a “govern-
ment representing the whole of a people.”69 But it is mostly because, normatively speak-
ing, geographic location has little to do with why a colonized people possesses a right
of external self-determination and therefore should have little to do with why other
peoples might possess a similar right.
This has led some to attempt to specify the conditions under which a people out-
side of the context of colonialism might be entitled to exercise a right of external
self-determination to acquire sovereign statehood. Christian Tomuschat, for exam-
ple, offers a relatively narrow interpretation of the 1970 Declaration. Tomuschat
argues that when a State engages in the genocide of a minority population, when it
“turns itself into an apparatus of terror which persecutes specific groups of the pop-
ulation, those groups cannot be obligated to remain loyally under the jurisdiction
of that State.” 70 According to this line of thought, systematic and brutal persecution
of a minority population disentitles the State from relying on its sovereign status
and territorial integrity to prevent secession by that population.71 Hurst Hannum
interprets the 1970 Declaration more broadly, as stating that a State will not be
considered representative “if it formally excludes a particular group from participa-
tion in the political process.” 72 According to Hannum, however, a State that has a
69
1970 Declaration, supra note 33.
70
Christian Tomuschat, Self-Determination in a Post-Colonial World, in The Modern Law of
Self-Determination 9 (C. Tomuschat ed., 1993).
71
For a theoretical defense of this position, see Allen Buchanan, Justice, Legitimacy, and
Self-Determination: Moral Foundations for International Law 331 (2004).
72
Hurst Hannum, Rethinking Self-Determination, 34 Va. J. Int’l L. 1, 17 (1993). Later in his article, Hannum
makes it clear that he is not of the view that the presence of such conditions would be a sufficient trigger for
the right of external self-determination.
democratic, nondiscriminatory voting system but whose whole political life is domi-
nated by an ethnic majority would not be unrepresentative within the meaning of the
Declaration.
Whether one takes a narrow or broad view is less important than the structural rela-
tionship between internal and external determination ushered in by self-determination’s
third movement. This relationship, which sees an external right triggered by a viola-
tion of the internal right, builds on the contingent nature of the right first introduced
by the text of the two Declarations. Internal self-determination is an inherent right, a
universal minimum core of entitlements that flow from the fact of communal bonds
and communal identity, which entitles “a people to choose its political allegiance, to
influence the political order in which it lives and to preserve its cultural, ethnic, his-
torical or territorial identity.”73 A right of external self-determination is a contingent
right—contingent on the failure of the State in which a people lives to accommodate
its aspirations for internal self-determination. In this light, Frederic Kirgis, Jr. speaks of
“degrees of self-determination, with the legitimacy of each tied to the degree of repre-
sentative government in the state.”74 In his words,
The relationship is inverse between the degree of representative government,

on the one hand, and the extent of destabilization that the international com-
munity will tolerate in a self-determination claim, on the other. If a govern-
ment is at the high end of democracy, the only self-determination claims that
will be given international credence are those with minimal destabilizing
effect. If a government is extremely unrepresentative, much more destabilizing
self-determination claims may well be recognized.75
An alternative way of characterizing this relationship is to regard internal

self-determination as demanding an ongoing relationship with the State from which
the group seeks a measure of distance, and therefore internal self-determination
identifies rights and duties that articulate the terms and conditions of this relation-
ship. In contrast, external self-determination entails the dismantling of existing
relationships that exist between a people and the State in which it finds itself.76
73
Morton H. Halperin & David Scheffer, Self-Determination in the New World Order
147 (1992).
74
Frederic Kirgis, Jr., The Degrees of Self-Determination in the United Nations Era, 88 Am. J. Int’l L. 304, 306
(1994).
75
Id.
76
This is Benedict Kingsbury’s idea, although he speaks of a distinction between relational and end-state
approaches to self-determination, and does not explicitly equate this distinction with the distinction
between internal and external self-determination. See Kingsbury, supra note 55, at 119–37.
The relationship between internal and external self-determination was publicized

by the Supreme Court of Canada’s judgment in the Secession Reference.77 At issue
was whether there was a legal basis for the province of Quebec to unilaterally secede
from Canada. In its reasons, the Court characterized the right of self-determination
in international law as not including a right of secession except “in only the most
extreme of cases and, even then, under carefully defined circumstances.” 78 Echoing
the text of the 1970 Declaration, it stated that “a state whose government represents
the whole of the people or peoples resident within its territory, on a basis of equality
and without discrimination, and respects the principles of self-determination in its
own internal arrangements, is entitled to the protection under international law of
its territorial integrity.” 79
The Court also drew a distinction between external and internal self-
determination, specifying that external self-determination is available where a col-
ony wishes to break free of its colonial status, and “where a people is subject to alien
subjugation, domination or exploitation outside a colonial context.”80 It suggested
that external self-determination may also be available, as a last resort, where a people
is blocked from the meaningful exercise of its right to internal self-determination,
although it did note that “it remains unclear whether this third proposition actually
reflects an established international law standard.”81
77
Reference re Secession of Quebec, [1998] 2 S.C.R. 217 (Can.).
78
Id. at para. 129. See also Committee on the Elimination of Racial Discrimination, General Recommendation
XXI(48), U.N. doc. A/51/18, pp. 125–26, para. 6 (“In the view of the Committee, international law has not
recognized a general right of peoples unilaterally to declare secession from a State”).
79
Reference re Secession of Quebec, supra note 77, at para. 130.
80
Id. at para. 133.
81
Id. at paras. 134, 135. Rainer Bauböck argues that the Court reached this (tentative) conclusion by misread-
ing the 1993 Vienna Declaration on Human Rights, which contains language similar to that in the 1970
Declaration referring to “the whole people without distinction of any kind.” Rainer Bauböck, Paradoxes
of Self-Determination and the Right to Self-Government, in Global Justice and the Bulwarks of
Localism 100 (András Sajó ed., 2005). Although he defends a conclusion similar to that reached by the
Court on normative grounds, Bauböck argues that “a right to internal self-determination for a particular
group within a larger state obviously presupposes some distinction for a particular group from ‘the whole
people belonging to the territory,’ ” and “if internal self-identification is interpreted as a right to political
autonomy, then a positive identification of the group and of the territory within which the group enjoys
self-government is needed.” Id. at 111. Thus, for Bauböck, the term “people” in international law, with
the exception of colonial populations and foreign occupation, still only refers to the entire population of
a State.
An alternative reading of this phase, however, is that it is referring to the entire population of a State
but that “people” in international law can additionally refer to populations not coextensive with a State’s
population, as in the case of a people whose internal self-determination is being denied by the State in which
it is located. Compare Crawford, supra note 68, at 59–60 (construing the Court’s position as consistent
with “both the view that self-determination applies to peoples in the ordinary sense of the term and is not
confined to the whole population of existing states, and the view that several peoples may coexist in relation
to a particular territory”).
For present purposes, what is important is not whether international law now
accepts that self-determination includes internal rights that, when violated, give
rise to a right of external self-determination. It is instead that it is moving from an
entitlement that only had the capacity to protect existing States or produce new
States to one that also validates domestic constitutional reorganization of a political
community. This movement, together with the right’s previous movements from
a principle that refers to the population of an existing State to one that refers to
populations within and across State boundaries, and from a principle to a right, has
changed the normative role that self-determination plays in the international legal
order. As the following seeks to explain, self-determination now mitigates adverse
effects produced by how international law distributes sovereignty around the globe
and authorizes its exercise by sovereign States. Self-determination, in other words, is
an important bridge between the structure and operation of international law and
distributive justice.
Br idging Inter national Law and Distr ibutive Justice
As anyone from a State with an active secessionist movement will attest, not all
claims of sovereignty possess international legal validity. As addressed in more
detail in Chapter 2, international law sorts claims of economic and political power
made throughout the world by legally validating some claims of sovereign authority
and rejecting others as international illegalities. By legally validating some claims
of sovereign authority and refusing to validate others, international law organizes
global politics into a legal order in which certain collectivities possess legal authority
to rule people and territory. Sovereignty, in international law, is a legal entitlement
to rule people and territory that the field confers on the multitude of legal actors
that it recognizes as States. International legal rules determine which collectivities
are entitled to exercise sovereign authority and over which territory and people such
authority operates. International law thus effectively performs an ongoing distribu-
tion of sovereignty among certain collectivities throughout the world.
What does it mean to speak of self-determination as mitigating some of the
adverse effects of international law’s distribution of sovereignty? As a result of the
three movements it experienced, the right of self-determination engages with the
distribution of sovereign power in the following ways. In its external manifestation,
it operates as a mechanism that has the potential to rearrange the distribution of
sovereignty that international law performs by specifying the legal conditions under
which a particular collectivity—as of right—is entitled to claim sovereign indepen-
dence. Granted, its specifications remain unclear outside the context of colonization.
There does not appear to be a consensus that a right of external self-determination arises in
the context of violations of internal self-determination. Nor does international law offer
much specificity as to the content of self-determination or the nature of violations that
would trigger external self-determination. Nonetheless, the right, as a legal mechanism,
has the capacity to alter the distribution of sovereignty in the world. Self-determination
also engages with another basic feature of the structure of international law. It autho-
rizes the exercise of sovereign power by legal actors it recognizes as States. In its internal
manifestation, the right provides a frame of reference for comprehending certain limits
on the exercise of sovereign power by requiring domestic constitutional arrangements to
internally respect the self-determination of peoples within their midst.
What does it mean to speak of self-determination as a bridge between the struc-
ture and operation of international law and distributive justice? Implicit in the per-
formance of self-determination’s functions are normative claims that relate to the
justice of the international legal order. The movement from a principle that refers
to the population of an existing State to one that potentially refers to populations
within and across State boundaries reflects a critique of the distribution of sover-
eignty relating to the class of beneficiaries in whom it vests. The movement from
principle to right represents the field’s acknowledgement that there are questions of
justice surrounding how sovereignty is acquired and how it is justified and exercised,
and these questions should be asked through the juridical prism of a right. The
movement from an external conception to one that also possesses internal dimen-
sions identifies normative concerns with the fact that international law otherwise
vests in sovereign powers the capacity to organize their domestic constitutional
arrangements free from external interference.
The content of the right provides insight into the nature and thrust of these
normative claims. By specifying that colonized peoples have a right to external
self-determination and sovereign independence, self-determination rights the
wrong, so to speak, of the fact that colonialism possessed international legal valid-
ity. It deems this particular feature of international law to be unjust and seeks to
mitigate its adverse effects. More controversially, it tentatively specifies that a people
whose internal self-determination is being systematically violated possesses a right
to acquire sovereign independence. What is controversial is not that the system-
atic violation of internal self-determination is unjust. It is what the right holds
out as remedy: sovereign independence. In both iterations, the right of external
self-determination operates an instrument whose purpose is to promote a more just
distribution of sovereignty in the international legal order. In contrast, the right of
internal self-determination operates as an instrument that promotes the just exercise
of sovereign power by States by requiring them to respect the rights of ethnic and
cultural minorities within their midst.
Comprehending the right of self-determination in international law in these

terms challenges traditional accounts of the role of human rights in international
law, namely, that they protect universal features of what it means to be human. On
the account offered here, the right of self-determination is not so much a formal
expression of what justice requires as a matter of abstract morality as it is a legal
instrument that seeks to do justice in the world in which we live. The current sta-
tus of the right of self-determination law underscores the fact that human rights in
international law have less to do with essential features of our common humanity
and more to do with how international law organizes global politics into an inter-
national legal order.
8
G LO B A L P OV ER T Y A N D T H E R IG H T T O D E V EL O P M EN T
although experts dispute precise figures, more than 1 billion people—

virtually all of whom live in developing countries—live on less than one dollar a
day.1 Close to 3 billion—more than 40 percent of the world’s population—live
on less than two dollars a day.2 The top 5 percent of the world’s population receive
about one-third of total world income; the top 10 percent receive one-half of total
world income. The bottom 5 and 10 percent of the world’s population receive 0.2
and 0.7 percent of the total world income respectively. The richest people earn in
about forty–eight hours as much as the poorest people earn in a year.3
International law, traditionally understood, has little to say about global poverty.
It imposes legal obligations on States to provide their citizens with access to a set of
basic social resources, such as food, shelter, a basic income, healthcare, and educa-
tion. In the name of poverty reduction, most, if not all, developed States also pro-
vide assistance in the form of bilateral loans, grants, and debt relief to developing
1
Francisco H.G. Ferreira & Martin Ravallion, Global Poverty and Inequality: A Review of the Evidence (World
Bank Policy Research Working Paper No. 4623, 2008); see also Shaohua Chen & Martin Ravallion, Absolute
Poverty Measures for the Developing World, 1981–2004, 104/43 Proceedings of the Nat’l Acad. Sci.
of the United States of America 16757 (2007).
2
These data are available on PovcalNet, an online tool for poverty measurement developed by the
Development Research Group of the World Bank. For discussion of global poverty trends, see U.N.
General Assembly, Rethinking Poverty: Report on the World Social Situation, ST/
ESA/324 (2010).
3
Branko Milanovic, Global Income Inequality: What It Is And Why It Matters (DESA Working Paper No. 26,
ST/ESAl2006IDWP/26, Aug. 2006), at 9.
185
States, and make contributions to multilateral institutions such as the World Bank
and regional development banks, which in turn provide various forms of financial
assistance to recipient States. But international law typically is not understood as
requiring a State to address poverty beyond its borders. It comprehends bilateral
and multilateral financial assistance in charitable terms. Global—as opposed to
domestic—poverty historically has been seen as possessing no international legal
significance.
The international legal insignificance of global poverty rests on two dominant
and interlocking assumptions about the nature of our international legal order. The
first relates to the role of human rights in international law. To the extent inter-
national law protects human rights, it does so under the sway of a conception of
human rights as corresponding to obligations that individuals owe to all in ethi-
cal recognition of universal features of what it means to be a human being. This
conception struggles with accepting the legitimacy of the proposition that human
rights generate duties to assist others in need. The second relates to the role of sover-
eignty in international law. To the extent international law protects the sovereignty
of States, it does so on the premise that sovereignty imposes no legal obligations
on wealthy States to provide financial assistance to poorer States. Sovereignty in
international law imposes obligations on States not to interfere with the sovereignty
of other States, but it does not legally obligate States to take positive measures to
alleviate adverse social and economic conditions around the world.
Contrary to both assumptions, this chapter argues that the right to development
vests global poverty with international legal significance. It challenges the assump-
tion that human rights and their corresponding obligations in international law
should be understood in universal terms. This assumption underpins what this
book has referred to as a moral conception of human rights, which conceives of
international human rights as legal instruments that impose obligations on all of us
to protect essential characteristics or features that all of us share. On this concep-
tion, human rights do not speak to global poverty. This is because, although the
meeting of certain basic needs, such as food, water, and shelter, is essential to the
ability of all of us to survive, these needs do not generate universal and identifiable
obligations on all of us to meet them. In the absence of such obligations, it is a cat-
egory mistake to refer to human needs as human rights. While international and
domestic legal orders might entrench obligations to assist others in need, they are
not obligations we owe to all in ethical recognition of what it means to be human,
and therefore the rights to which they correspond are not, according to this concep-
tion, human rights.
This chapter also challenges the second assumption about the nature of our
international legal order, namely, that sovereignty in international law does not
Global Poverty and the Right to Development 187
obligate States to take measures to alleviate global poverty. The challenge is not
to the truth of this proposition but, instead, to the commitment to sovereignty
that lies behind it. Global poverty is, in part, a consequence of the terms by
which international law aspires to bring legal order to global politics. It is pre-
cisely because sovereignty is an essential feature of the structure and operation
of international law that the right to development generates international legal
obligations to alleviate global poverty.
This chapter identifies two features of the structure and operation of interna-
tional law that provide a normative basis for comprehending the right to devel-
opment in these terms. The first refers to the way in which international law
extends legal validity to processes of economic globalization and integration that
have dramatically transformed relations between and among States in recent
years—processes that possess at least the potential to exacerbate global inequal-
ity. The second is the set of rules governing the incorporation of colonized peo-
ples as sovereign legal actors. To be sure, these two features of our international
legal order are not the only causes of global poverty. But they participate in its
production and persistence, and the purpose of the right to development is to
mitigate their contribution to the disparity of wealth and resources that exists
between developed and developing States.
The chapter first details the legal emergence of the right to development in
international law, culminating in the 1986 U.N. Declaration on the Right to
Development. It argues that criticism of the Declaration rests on a moral con-
ception of human rights, and that understanding the right in legal terms brings
interpretive coherence to the Declaration’s terms. It then details subsequent
initiatives by a variety of international legal actors to affirm, elaborate, and
implement the right to development that answer many of the questions sur-
rounding the content of the right left open by the Declaration. Some of these
initiatives, such as those developed by the U.N. Working Group on the Right to
Development and the World Bank and the International Monetary Fund, help
to clarify internal obligations that a State owes to its own population. Other
initiatives, such as the U.N. Millennium Development Goals, provide content to
external obligations that the right imposes on developed States and international
legal organizations to assist developing States in poverty reduction. What these
initiatives do not provide is a normative account of why the right to develop-
ment gives rise to internal and external obligations on States and international
legal actors. Both drawing on and departing from debates about global justice in
contemporary political theory, this chapter seeks to answer this question by link-
ing the purpose of the right to international law’s engagements with economic
globalization and colonialism.
The Emergence of the R ight
Global poverty was not among the primary factors behind the establishment of the
United Nations in 1945. Article 55 of the U.N. Charter calls on the United Nations
to promote higher standards of living, conditions of economic and social progress
and development, and solutions to international economic, social, and health-related
problems.4 Article 56 of the Charter further stipulates that member States “pledge
themselves to take joint and separate action in cooperation with the Organization
for the achievement of these purposes.” The Universal Declaration of Human
Rights, adopted in 1948, enshrines rights to social security, work, an adequate
standard of living, and education.5 But, despite these social and economic commit-
ments, the original organizational thrust of the United Nations was to structure the
international legal order around an inclusive commitment to the sovereign equality
of States—albeit one weighted in favor of the great powers—to minimize threats to
international peace and security.6
Not long after the creation of the United Nations, however, the General Assembly,
under the auspices of articles 55 and 56 of the Charter, began to turn its attention to
some of the proximate causes of global poverty. In 1952, galvanized by decolonized
member States concerned about their economic independence, the General Assembly
adopted a Resolution on a right to exploit freely natural wealth and resources.7 The 1952
Resolution referred to “a right of peoples freely to use and exploit their natural wealth
and resources wherever deemed desirable by them for their own progress and economic
development.”8 It stated that such a right of peoples is “inherent in their sovereignty” and
recommended that all States “refrain from acts, direct or indirect, designed to impede
the exercise of the sovereignty of any State over its natural resources.”9 In 1958, the
General Assembly established a Commission on Permanent Sovereignty over Natural
Resources and instructed it to conduct a survey on the status of permanent sovereignty
over natural wealth and resources as an element of the right of self-determination.10
4
Charter of the United Nations, 59 Stat. 1031, T.S. 993, 3 Bevans 1153 (June 26, 1945) (entered into force Oct.
24, 1945), art. 55.
5
G.A. Res. 217(III), U.N. GAOR, 3d Sess., Supp. No. 13, U.N. Doc. A/810 (1948) 71, arts. 22, 23, 25, and 26,
respectively.
6
See Mark Mazower, No Enchanted Palace: The End of Empire and the Ideological
Origins of the United Nations 198 (2009) (the U.N.’s “relaxed criteria for entry were designed to
encourage universality of membership precisely to avoid the creation of international factions and rival
alliances outside the world body”).
7
G.A. Res. 626 (VII) (Dec. 21, 1952).
8
Id. at third preambular paragraph.
9
Id. at art. 1.
10
G.A. Res. 1315 (XIII) (Dec. 12, 1958).
This in turn prompted a 1962 General Assembly Resolution on Permanent Sovereignty

over Natural Resources (Resolution 1803), which reaffirmed the “right of peoples and
nations to permanent sovereignty over their natural wealth and resources.”11 It also
called for international cooperation in the economic development of developing coun-
tries. Such cooperation, “whether in the form of public or private capital investments,
exchange of goods and services, technical assistance, or exchange of scientific informa-
tion,” must “further their independent national development” and “be based upon
respect for their sovereignty over their natural resources.”12
These developments were precursors of a bolder set of international initiatives
introduced in the 1970s by developing States seeking to reshape the international
legal order in ways that would address economic and political inequalities between
the developed and developing worlds. In 1974, the General Assembly adopted a
Declaration and Programme of Action on a New International Economic Order.13
The 1974 Declaration called for an international order that would “correct inequali-
ties and redress existing injustices, making it possible to eliminate the widening gap
between the developed and the developing countries.”14 It was accompanied by a
Charter of Economic Rights and Duties of States that stipulated that all States were
under a responsibility to promote economic, social, and cultural development for all
people everywhere.15
Three years later, the U.N. Human Rights Commission recommended that
the Secretary General undertake a study of “the international dimensions of
the right to development as a human right” in light of “the requirements of the
New International Economic Order.”16 The ensuing Report led the U.N. General
Assembly to affirm the existence of the right to development in 1979,17 and a Working
Group of Governmental Experts on the Right to Development was established in
1981. Assigned the task of drafting a declaration on the right to development, the
11
G.A. Res. 1803 (XVII) (Dec. 14, 1962), art. 1.
12
Id. at art. 6.
13
Declaration on the Establishment of a New International Economic Order, G.A. Res. 3201 (S-VI), U.N.
GAOR, 6th Special Sess., Agenda Item 6, 2229th Plen. Mtg. at 1, U.N. Doc. A/RES/3201 (S-VI) (1974). See
generally Gabe S. Varges, The New International Economic Order Legal Debate (1983).
14
Id. at third preambular paragraph.
15
G.A. Res. 3281 (XXIX), U.N. GAOR, 2d Comm., 29th Sess., Agenda Item 48, arts. 7 & 9, U.N. Doc. A/
RES/3281 (XXIX) (1975).
16
Commission on Human Rights, Report on the Thirty-Third Session, 62 U.N. ESCOR Supp. (No. 6), U.N.
Doc. E/5927 (1978), Res. 4, para. 6.
17
U.N. Doc. a/C.3/34/SR.24-30, 33-38, 41. The right to development had first surfaced in international law,
five years earlier, in the 1981 African Charter on Human and Peoples’ Rights, adopted by the Organization
of African Unity in 1981 (entered into force Oct. 21, 1986). Article 22 of the African Charter states that “[a]‌
people have the right to their economic, social and cultural development,” and imposes on states “the duty,
individually or collectively, to ensure the exercise of the right to development.”
Working Group reported regularly on its progress.18 These initiatives eventually cul-
minated in the adoption by the General Assembly of the Declaration on the Right
to Development in 1986.19
The Declaration is not, in itself, a legally binding instrument. 20 Its preamble,
however, expressly refers to the purposes and principles of the U.N. Charter, and
thus it may be regarded as an authoritative interpretation of the Charter. 21 It also
contains a series of principles and rights that are based on human rights standards
enshrined in other international instruments that are legally binding—such as
the International Covenant on Civil and Political Rights 22 and the International
Covenant on Economic, Cultural and Social Rights 23 The ICESCR enshrines
more specific rights to international cooperation and assistance that are con-
tained in the Declaration. Both the ICCPR and the ICESCR enshrine the right
of self-determination and specify that self-determination entitles “[a]‌ll peoples” to
“freely pursue their economic, social and cultural development.”24
The Declaration on the Right to Development refers to the right to development
as “an inalienable human right by virtue of which every human person and all peo-
ples are entitled to participate in, contribute to, and enjoy economic, social, cultural
and political development, in which all human rights and fundamental freedoms
can be fully realized.”25 It defines the right as an entitlement to “a comprehensive
18
U.N. Doc. E/CN.4/1489, U.N. Doc. E/CN.4/1983/11; U.N. Doc. E/CN.4/1984/14.
19
U.N. Doc. A/RES/41/128 (1986). The Resolution passed by a recorded vote of 146 in favor, 1 against (United
States), and 8 abstentions.
20
But see Rosalyn Higgins, The Development of International Law Through the Political
Organs of the United Nations (1963) (arguing that the General Assembly can enact legally binding
declarations). For a refutation of this view, see Stephen M. Schwebel, Book Review, 75 Yale L.J. 677 (1966).
General Assembly declarations can participate in the formation of customary international law by standing
as evidence of the opinio juris of States. See Marko Divac Öberg, The Legal Effects of Resolutions of the UN
Security Council and General Assembly in the Jurisprudence of the ICJ, 16 Eur. J .Int’l. L. 879 (2006). For
the view that declarations participate in the formation of customary international law by standing as evi-
dence of state practice, see H.C.M. Charlesworth, Customary International Law and the Nicaragua Case, 11
Australian Y.B. Int’l L. 1, 24 (1984–1987). For the contrary view, see Jonathan I. Charney, Customary
International Law in the Nicaragua Case Judgment on the Merits, 1 Hague Y.B. Int’l L. 16, 22 (1988).
21
Brownlie’s Principles of Public International Law 311 (James Crawford, ed., 8th ed. 2012),
311 (“[w]‌hen a resolution of the General Assembly touches on subjects dealt with in the United Nations
Charter, it may be regarded as an authoritative interpretation of the Charter”).
22
Adopted Dec. 19, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976).
23
993 U.N.T.S. 3 (1966) (entered into force 1976).
24
Art. 1, ICCPR; Art. 1, ICESCR.
25
U.N. GAOR, 41st Sess., Annex, Agenda Item 101; U.N. Doc. A/RES/41/128 (1987). The following dis-
cussion is indebted to the work of Margot E. Salomon and Stephen P. Marks, two leading scholars
on the right to development. For a sampling of their many publications, see Margot E. Salomon,
Global Responsibility for Human Rights: World Poverty and the Development
of International Law (2007); Development as a Human Right: Legal, Political and
Economic Dimensions (Bård Anders Andreassen & Stephen P. Marks eds., 2006).
economic, social, cultural and political process.” It comprehends the alleviation of

poverty as an objective of development, by referring to development as aiming “at
the constant improvement of the well-being of the entire population and of all indi-
viduals on the basis of their active, free and meaningful participation in develop-
ment and in the fair distribution of benefits resulting therefrom.”26
It further comprehends the right to development as imposing negative and posi-
tive obligations on both the internal and external exercise of sovereign power.27 The
internal dimensions of the right require States to exercise their sovereign power
over resources and revenues in ways that promote development for the benefit of
their populations. Article 2(3) of the Declaration imposes on States “the duty to
formulate appropriate national development policies.”28 Article 8 requires States
to undertake “at the national level all necessary measures for the realization of the
right to development.”29 The external dimensions of the right speak to the exercise
of sovereign power in the international arena. Article 3(1) imposes positive obliga-
tions on States to create “international conditions favourable to the realization of
the right to development.”30 Article 4(1) provides that States are under an individual
and collective obligation “to formulate international development policies with a
view to facilitating the full realization of the right to development.”31 Other articles
refer to duties of international cooperation and assistance, further specifying the
external dimensions of the right.32
The Declaration on the Right to Development thus verifies the international legal
existence of the right to development and validates its international legal character
as a human right. The Declaration defines development in comprehensive and par-
ticipatory terms and comprehends development as requiring the alleviation of pov-
erty. It imposes internal obligations on all States to promote development for the
benefit of their respective populations, and imposes external obligations on States
to facilitate development beyond their borders.
Enshrining the right to development in the pantheon of international human
rights law was not without its skeptics. In a famously scathing critique, Jack
26
Second preambular paragraph.
27
Margot E. Salomon, Legal Cosmopolitanism and the Normative Contribution of the Right to Development,
in Implementing the Right to Development: The Role of International Law 17 (Stephen
P. Marks ed., 2008).
28
Art. 2(3).
29
Art. 8.
30
Art. 3(1).
31
Art. 4(1).
32
Arts. 3(3), 4(2). For a similar, more detailed, interpretation of the Declaration, see Anne Orford,
Globalization and the Right to Development, in Peoples’ Rights 135–45 (Philip Alston ed., 2001).
Donnelly argued that proponents of the Declaration failed to adequately specify the
legal actors in whom the right to development vests.33 Some proponents formulated
the right in collective terms. Some envisioned the right-holder to be people.34 For
others, it was the State.35 Other proponents saw the right as vesting in individuals.36
Still others treated the right as vesting in both collectivities and individuals.37 Lack
of specificity on this front produced ambiguities on another front. It is said that all
legal rights create legal duties.38 But who are the legal actors who bear duties created
by the right to development? In Donnelly’s words, “if the right to development is
primarily a right of States, it would be held primarily in relation to other States,
while as a right of peoples it would be held against States (one’s own or others), and
perhaps even individuals as well.”39 If it is an individual right, then, according to
Donnelly, it generates duties on the State in which the individual is located.40
The text of the Declaration, for Donnelly, does little to resolve these questions.41
Article 1 states that “every human person” and “all peoples” possess the right to
development, suggesting that it vests in both individuals and peoples. Article 2(1),
however, states that “[t]‌he human person is the central subject of development and
should be the active participant and beneficiary of the right to development,”42
implying that any collective dimensions of the right are secondary to its individual
dimensions. Article 2(2) complicates matters further by declaring that “States have
the right … to formulate appropriate national development policies that aim at the
constant improvement of the well-being of the entire population and of all indi-
viduals.”43 The Declaration, in other words, appears to contemplate that the right to
development vests in individuals, peoples, and States.
33
Jack Donnelly, In Search of the Unicorn: The Jurisprudence and Politics of the Right to Development, 15 Cal.
W. Int’l L.J. 473 (1985).
34
See Georges Abi-Saab, The Legal Formulation of a Right to Development, in The Right to Development
at the International Level 159 (Rene-Jean Dupuy ed., 1980).
35
Zalmai Haquani, Le droit au developpement: fondements et sources, in Le Droit du Developpement au
Plan International 31 (R.-J. Dupuy ed., 1979).
36
Jennifer Myers, Human Rights and Development: Using Advanced Technology to Promote Human Rights in
Sub-Saharan Africa, 30 Case W. Res. J. Int’l L. 343 (1998).
37
Keba M’Baye, Le Droit au developpement, in Le Droit du Developpement, supra note 35, at 74. See also
Isabella D. Dunn, The Right to Development: Implications for International Economic Law, 15 Am. Univ.
Int’l L. Rev. 1425, 1446 (2000) (“[w]‌hile the human being is the primary subject and beneficiary of the
right to development, the right also holds a societal dimension in its application to peoples”).
38
See Wesley Hohfeld, Fundamental Legal Conceptions (1919).
39
Donnelly, supra note 33, at 501 n.107.
40
Id.
41
Yash Gai, Whose Human Right to Development?, Human Rights Unit Occasional Paper 5-6, 12
(Nov. 1989) (“In the case of the right to development, it is not clear who are the right and duty bearers”).
42
Art. 2(1).
43
Art. 2(2).
It is less ambiguous about who bears duties created by the right. Although article
2(2) declares that “[a]‌ll human beings have a responsibility for development,”44 sug-
gesting that the right creates duties in individuals, the Declaration speaks primarily
of duties that the right imposes on States. Article 2(3) provides that States have not
only the “right” but also “the duty to formulate appropriate national development
policies.”45 Article 3(1) stipulates a duty of States to create “international conditions
favourable to the realization of the right to development.”46 Article 3(3) refers to a
duty of States “to co-operate with each other in ensuring development and elimi-
nating obstacles to development.”47 Article 4 provides that “[s]tates have the duty
to take steps, individually and collectively, to formulate international development
policies with a view to facilitating the full realization of the right to development.”48
Least convincing, for Donnelly, are accounts of the right’s relationship to other
international human rights and what it actually protects. Mohammed Bedjaoui,
one of the first legal scholars to engage these questions, wrote prosaically of the
right to development as the “alpha and omega of human rights, the first and last
human right, the beginning and the end, the means and the goal of human rights,
in short it is the core right from which all others stem.”49 Others regarded the right
to development as intimately related to the right to self-determination. Some saw
self-determination as an element of the right to development; others saw the right to
development as an element of the right of self-determination.50 Still others saw the
right as a composite of social and economic rights. Abi-Saab, for example, suggested
that the right to development is an aggregation of the social, economic, and cultural
rights of all individuals in a political community.51 Philip Alston presented the right
as “a synthesis of existing rights” that emphasizes “the interdependence and indivis-
ibility” of social and economic rights and civil and political rights.”52
44
Art. 2(2).
45
Art. 2(3).
46
Art. 3(1).
47
Art. 3(3).
48
Art. 4.
49
Mohammed Bedjaoui, The Right to Development, in International Law: Achievements and
Prospects 1182 (M. Bedjaoui ed., 1991).
50
For the first view, see Ruth L. Gana, Which “Self ”? Race and Gender in the Right to Self-Determination as a
Prerequisite to the Right to Development, 14 Wisc. Int’l L.J. 133 (1995); for the second, see Abi-Saab, supra
note 34, at 163.
51
Id.
52
Philip Alston, Development and the Rule of Law: Prevention versus Cure as a Human Rights Strategy, in
Development, Human Rights and the Rule of Law 102, 107 (Conference Report, Int’l Comm’n
of Jurists ed., Apr. 27–May 1, 1981) (cited in Donnelly, supra note 33, at 501 n.108).
Each of these formulations has textual support in the Declaration itself. The
Preamble and article 1(1) speak of development as a “comprehensive economic,
social, cultural and political process.”53 Article 1(2) states that the right to develop-
ment “implies the full realization of the right of peoples to self-determination.”54
Article 8 specifically identifies social and economic interests, including equal access
to basic resources, education, health services, food, housing, employment, and the
fair distribution of income, as necessary measures for the realization of the right to
development.55 Article 6 affirms that “[a]‌ll human rights and fundamental freedoms
are indivisible and interdependent,” and calls for “the implementation, promotion
and protection of civil, political, economic, social and cultural rights.”56
Such formulations treat development either as a valuable consequence or as a
necessary condition of protecting human rights that are more firmly grounded in
international human rights law, such as economic, social, and cultural rights, civil
and political rights, the right to self-determination, or some combination thereof.
For Donnelly, however, neither approach justifies treating development itself as a
right. The first approach wrongly conceptualizes an outcome of a right’s protec-
tion as a right itself as opposed to simply an outcome. The second wrongly assumes
that because development is necessary to the full enjoyment of other rights, devel-
opment itself is a right. In Donnelly’s words, “the instrumental necessity of x for
the enjoyment of A’s right r simply does not establish that A has a right to x.”57
Both approaches incorrectly assume that the aggregation of certain human rights
into a more general right to development will result in greater protection than their
disaggregation. Since neither development as a consequence nor development as a
necessary condition actually performs this function, the right to development, in
Donnelley’s words, is a “mythical creature.”58
Donnelly is making a deeper claim about the right to development than one of
analytic confusion. His critique ultimately rests on a universal conception of human
rights that draws a sharp distinction between moral obligation and human right.
Human rights give rise to certain obligations, but not all moral obligations pos-
sess a counterpart in the form of a human right. “In a just world,” Donnelly writes,
“underdevelopment would not be permitted; morality and justice demand devel-
opment.”59 But human rights are not coextensive with morality and justice; for
53
Second preambular paragraph, art. 1(1).
54
Art. 1(2).
55
Art. 8.
56
Art. 6.
57
Donnelly, supra note 33, at 485.
58
Specifically, “a run-down horse with a plastic horn glued to its head.” Id. at 508.
59
Id. at 490.
Donnelly, they protect essential features of what it means to be a human being. “[I]‌t
is logically and phenomenologically quite possible,” he writes, “to be a human being,
and thus possessed of human rights, without perceiving oneself or being considered
by others to be a member of the international community, and thus a beneficiary of
rights or duties of solidarity.”60 The source of an obligation to assist others in need
“reflects special bonds between members of a community, which establish recipro-
cal obligations of assistance owed by each member to any other member in special
need.”61 It does not correlate with a right that vests in all of us by virtue of our com-
mon humanity.
Donnelly’s point is not that such communal bonds are present only at the
national level; he is open to the possibility that international bonds of solidar-
ity ground moral obligations that transcend one’s own political community. It is
instead that such bonds—whether national or international in nature—establish,
at best, “a moral obligation to act to promote development.”62 A human right to
development, for Donnelly, is nothing more than an individual “right to pursue full
personal development along all major dimensions of human life;” it thus “stands as a
summary of traditional rights.”63 The obligations to which it gives rise call on others
to not interfere with its exercise and to perhaps promote its realization. They do not
amount to anything more than the sum of obligations that correspond to the more
specific human rights that comprise the canon of international human rights law.
Most important, they do not include international legal obligations to assist strang-
ers in need or, more generally, to take positive measures to address global poverty.
Such obligations might be required as a matter of morality and justice, but they are
not owed as of human right.
Donnelly’s distinction between obligations that correspond to human rights and
those that reflect special bonds of solidarity echoes a distinction, introduced in pre-
vious chapters, more formally drawn by H.L.A. Hart between general and special
rights. For Hart, general rights are rights that vest in men “qua men and not only if
they are members of some society or stand in some special relation to each other”64
whereas special rights are “rights that arise out of special transactions between
60
Id. at 493.
61
Id. at 491.
62
Id. at 491.
63
Id. at 501. Compare Peter Uvin, Human Rights and Development 43 (2004) (affirming that “all
people have the RTD, and that … development consists of and is realized through the realization of every
existing right category of human rights, adds nothing to our knowledge. … It adds only verbiage”).
64
Id. at 175. Beitz makes the same point about Hart’s distinction. See Charles Beitz, “Human Rights and
the Law of Peoples,” in D.K. Chatterjee, ed., The Ethics of Assistance: Morality and the Distant Needy
(Cambridge: Cambridge University Press, 2004), 193-214 at 199.
individuals or out of some special relationship in which they stand to each other.”65
General rights impose obligations on “everyone” whereas special rights impose obli-
gations only on “parties to the special transaction or relationship.”66
Donnelly treats human rights as general rights. They arise from the fact of human-
ity, they can be claimed by all, and they impose obligations on all. Human rights are
not special rights. They do not reflect special bonds that exist among members of
particular communities, they do not vest in some people and not others, and they
do not require us to be partial to some at the expense of others. To speak of a right
to development as a human right must mean something other than what justice
requires in the context of contingent relationships in which we find ourselves. It
must mean an entitlement grounded in a universal feature of what it means to be
human, regardless of the diverse circumstances that define our places in the world.
This account, focused on conditioning the existence of rights on abstract moral
duties we owe others directly, offers little reason to comprehend the right to devel-
opment as yielding positive duties on all of us to improve the social and economic
condition of impoverished people around the world. To the extent that it accepts
that the right to development is a human right, it comprehends it as vesting in indi-
viduals and as an aggregate of more specific civil, political, social, economic, and
cultural rights. The duties that it imposes on others are primarily negative in nature.
The possibility that the right to development yields positive duties beyond voluntary
measures to address global poverty quickly becomes subsumed in a larger debate
within classical political theory about the nature of one’s moral obligations to assist
strangers in need.
Contrary to Donnelly’s universal perspective, the right to development is far
from mythical in legal terms. The Declaration affirms the right to development as
a human right in international law and specifies internal obligations on all States
to promote development for the benefit of their respective populations and exter-
nal obligations on States to facilitate development beyond their borders. It takes its
place in a panoply of established international legal instruments that promote devel-
opment. The International Covenant on Economic, Social, and Cultural Rights, for
example, is binding on the more than 150 States party to its terms, and it imposes
obligations on States “to take steps, individually and through international assis-
tance and co-operation,” to protect social, economic and cultural rights enshrined
in the Covenant.67 The Economic, Social, and Cultural Rights Committee has
stated that these obligations give rise to “international responsibilities for developed
65
H.L.A. Hart, Are There Any Natural Rights?, 64 Phil. Rev. 175, 188, 183 (1955).
66
Id. at 183.
67
Art. 2(1).
States” to address global poverty.”68 And both International Covenants stipulate

that, by virtue of the right of self-determination, “all peoples … freely pursue their
economic, social and cultural development.”69 From the perspective of positive
international law, the relevant questions concerning the right to development relate
not to its existence as a human right but instead to its content. In whom does the
right to development vest? What does development mean? What does the right pro-
tect? And what are the nature and scope of obligations it imposes on international
legal actors?
The legal existence of a right to development does not foreclose construing its
content in universal terms as protecting certain features that we all share as human
beings. But, as Donnelly convincingly argues, this would mean that the right to
development performs no independent legal function at all, rendering it legally
meaningless. The common features of humanity that it could plausibly be inter-
preted to protect already receive legal protection as a result of other, more specific
human rights that comprise the field. If a universal account renders the right unin-
telligible, then it is not at all clear why it should be construed in universal terms.
Unintelligibility does not inhere in the text of the Declaration; the text is unintel-
ligible only if the yardstick of intelligibility is a universal conception of the right. If
the text does not cohere with a universal conception, then universalism is the wrong
frame of reference by which to comprehend the nature and scope of the right.
Freed from the conceptual constraints of universalism, the text of the Declaration
becomes much less ambiguous than Donnelly’s account of it suggests. The right to
development enshrined in the Declaration promotes “the constant improvement of
the well-being of the entire population” of a State.70 It does so by protecting the
capacity of a State’s population to “participate in, contribute to, and enjoy economic,
social, cultural and political development.” 71 It provides this protection by impos-
ing negative and positive obligations on both the internal and external exercise of
sovereign power.72 The internal dimensions of the right to development police the
relationship between a State and its citizens by imposing obligations on States to
exercise their sovereign power over resources and revenues in ways that promote
development for the benefit of its population. The external dimensions of the right
speak to the exercise of sovereign power in the international arena.
68
CESCR, Substantive Issues Arising in the Implementation of the International Covenant on Economic,
Social and Cultural Rights: Poverty and the International Covenant on Economic, Social and Cultural
Rights, E/C.12/2001/10, para. 16.
69
Art. 1, ICCPR; Art. 1, ICESCR.
70
Second preambular paragraph.
71
Art. 1.
72
Salomon, supra note 27.
Understanding the content of the right to development as including obligations

on States to promote development at home and abroad is also consistent with the
intent of the drafters of the Declaration. One of the reasons the United States voted
against the Declaration—and why eight other States abstained from voting—was
precisely because of fears that it imposes positive obligations on developed States
to assist developing States in promoting development.73 But the United States
was the only State that voted against the Declaration, which suggests that the 148
States that voted in favor of its adoption did so on the understanding that the right
imposes positive obligations on States to promote development at home and abroad.
Textual considerations and the intent of those responsible for its drafting do
not end interpretive ambiguities over the content of the right. These sources fail to
specify in sufficient detail its meaning , its relationship to the alleviation of poverty,
and, most important, the precise nature of the obligations that the right to develop-
ment imposes on States in the exercise of internal and external sovereign power. The
Declaration makes it clear that a State is under an obligation to exercise its sovereign
power in ways that promote development for the benefit of its population, and that
a State’s actions in the international arena must aim to realize the right to develop-
ment, but what do these internal and external obligations actually require of States?
The text of the Declaration does not answer this question. Nor are answers readily
available from the intent of its framers. And no doubt a multiplicity of intentions
motivated those responsible for its drafting, making intent an unreliable guide to
ascertaining the content of the right. As demonstrated in the next part of this chap-
ter, many of the questions surrounding the content of the right to development left
open by the Declaration have been resolved by efforts by a variety of international
legal actors to affirm, elaborate, and implement the right to development subsequent
to its formal entrance onto the international stage as a human right.
Implementing the R ight
After an initial wave of academic interest in the right to development, there was
a flurry of activity within the United Nations devoted to its affirmation, elabora-
tion, and implementation. Most if not all of the efforts to affirm and elaborate the
right to development emphasize its procedural and participatory dimensions and
seek to demonstrate that it possesses meaning above and beyond the civil, political,
73
See Stephen Marks, The Human Right to Development: Between Rhetoric and Reality, 17 Harv. Hum. Rts.
L.J. 137 (2004), for an overview of initial and ongoing objections raised by the United States to the right to
development.
social, economic, and cultural rights that are said to form its constituent compo-
nents. Measures to implement the right to development have been proposed and
introduced in several international and regional institutions involved in develop-
ment projects. Framed in procedural and participatory terms, the right to develop-
ment has, in varying degrees, been internalized by the practice of international legal
actors involved in concessional aid, debt relief, and poverty reduction. These various
efforts to affirm, elaborate, and implement the right to development illuminate the
internal dimensions of the right to development, which require States to promote
development at home and abroad in ways that address global poverty. They also sug-
gest what the right to development might also require of States in the external exer-
cise of sovereign power.
Initial steps to affirm, elaborate, and implement the Declaration on the Right to
Development yielded little concrete guidance on the content of its terms. They began
with a request by the U.N. Commission on Human Rights to a working group of
governmental experts responsible for initiating the Declaration that it clarify the
right to development and its implications. After three sessions between 1986 and
1989, the Working Group was unsuccessful in generating concrete recommendations
for the implementation of the right.74 As a result, the U.N. Commission on Human
Rights asked the Secretary General to organize a “global consultation” on the issue,
involving experts, U.N. representatives, regional intergovernmental organizations,
and relevant nongovernmental organizations.75 Participants produced a report that
echoed most, if not all, of the provisions of the Declaration, but it focused on the
operational activities of the U.N. and, perhaps more than the Declaration itself,
underlined participation as the principal means of implementing the right.76 It
emphasized the need for indicators to monitor the form, quality, democratic nature,
and effectiveness of participatory processes in development initiatives. In particular,
it called for the democratization of decision-making in international institutions
dealing with trade, monetary policy, and development assistance. The Commission
also established a second working group in 1993 for a period of three years to report
on obstacles to implementation of the right.77
74
The Working Group published its last report in 1989. Report of the Working Group of Governmental
Experts on the Right to Development, U.N. Doc. E/CN.4/1989/10 (1989).
75
Commission Res. 1989/45 (1989).
76
See Global Consultation on the Realization of the Right to Development as a Human Right, U.N.
Commission on Human Rights, 46th Sess., Agenda Item 8, U.N. Doc. E/CN.4/1990/9/Rev.1. (1990).
See generally Russel Lawrence Barsh, The Right to Development as a Human Right: Results of the Global
Consultation, 13 Hum. Rts. Q. 322 (1991).
77
The three reports of the 1993 Working Group identified the main obstacles to implementation to be global-
ization, the debt burdens of developing States, development assistance conditionality, and decreasing levels
of development assistance. See E/CN.4/1994/21; E/CN.4/1995/11; E/CN.4/1996/10.
These recommendations had no immediate effect on international institutions,

and the right to development received little attention at the international level
until the Vienna World Conference on Human Rights in 1993. One hundred and
seventy-one States unanimously approved the Vienna Declaration and Programme
of Action, which affirmed the right to development as “a universal and inalienable
right and an integral part of fundamental human rights.” 78 The Vienna Declaration
called on States to cooperate with each other in ensuring development and elimi-
nating obstacles to development, and called for “effective international cooperation
for the realization of the right to development.” 79 It also called on the international
community to help alleviate the external debt burden of developing countries and
declared that “extreme poverty and social exclusion constitute a violation of human
dignity,” noting that some of the causes of extreme poverty relate to “the problem
of development.”80
At the conclusion of the 1995 World Summit for Social Development, partici-
pating States issued the Copenhagen Declaration on Social Development and a
Programme of Action.81 The Copenhagen Declaration called for sustainable and
equitable development, defined as a process that respected and promoted democ-
racy, social justice, environmental protection, accountable governance, and human
rights.82 It called on other members of the international community, including
specialized agencies of the United Nations, to support developing countries in
their efforts to achieve sustainable development. It was only after the Copenhagen
Declaration that efforts to affirm, elaborate, and implement the Declaration on the
Right to Development began to bear fruit.
In the wake of the Copenhagen Declaration, the U.N. established a second work-
ing group on the right to development in 1996 with a two-year mandate, which
made a series of recommendations, including an increase in the amount of develop-
ment assistance from developed countries to 0.7 percent of GDP, and the “main-
streaming” of the right to development in the policies of international financial
institutions, such as the World Bank and the IMF.83 In 1998, the working group
78
See Vienna Declaration on Human Rights, U.N. World Conference on Human Rights, U.N. GAOR, at
23-24, U.N. Doc. A/CONF.157/24 (Part I) (1993).
79
Art. 10.
80
Arts. 14, 25.
81
Copenhagen Declaration on Social Development, in Report of the U.N. World Summit for
Social Development, U.N. Doc. A/CONF.166/9 (1995); Programme of Action of the World Summit
for Social Development, in Report of the U.N. World Summit for Social Development, U.N.
Doc. A/CONF.166/9 (1995).
82
Id. at para. 26.
83
E/CN.4/1997/22
was made open-ended and was provided with an independent expert who would
prepare a series of reports to focus discussion.84 The first independent expert, Arjun
Sengupta, wrote a series of reports on the topic, which provide greater clarity on the
nature and scope of the right.85
In his reports, Sengupta characterizes the Declaration on the Right to
Development as an instrument that bridges the divide between civil and political
rights and social and economic rights. In his words, these two categories of rights
“have to be fulfilled together and the violation of one would be as offensive as the
other.”86 This is because “[t]‌he right to development unifies civil and political rights
with economic, social and cultural rights into an indivisible and interdependent set
of human rights and fundamental freedoms, to be enjoyed by all human beings.”87
Affirming the view that there is value in comprehending the right in aggregate
terms, Sengupta speaks of the right to development as a “vector” that consists of
“a large number of elements such as income, employment, health, education or
opportunities in general which include all forms of freedoms.”88 Aggregating these
freedoms in a single overarching right underscores his view that their cumulative
realization is development.
Sengupta’s conception of the right to development as an aggregation of civil and
political, social, and economic rights is a juridical formulation of Amartya Sen’s
theory of development. According to Sen, freedom is both the end and the means of
development. Freedom is the end of development because development means the
protection and enhancement of “elementary capabilities” of individuals to be free
to avoid certain “deprivations,” such as starvation and premature mortality, and be
able to enrich their lives by exercising civil and political freedom.89 Freedom is also
the means of development because “different kinds of freedom interrelate with one
84
The U.N. Human Rights Commission also asked the U.N. High Commissioner for Human Rights to
report to the Working Group on the activities of her office and other U.N. agencies. For her report, see
A/55/302.
85
First report: E/CN.4/1999/WG.18/2; second report: A/55/306; third report: E/CN.4/2001/WG.18/2;
fourth report: E/CN.4/2002/WG.18/2; fifth report: E/CN.4/2002/WG.18/6 and E/CN.4/2003/
WG.18/2; sixth report: E/CN.4/2004/WG.18/2. In 2004, the Commission established a High-Level
Task Force on the Right to Development and requested analysis and recommendations on the relation-
ship between the Millennium Development Goals and the right to development; social impact assessment
in the areas of trade and development; and best practices in the implementation of the right to develop-
ment: 2004/49. For commentary on the first Task Force Report, see Margot E. Salomon, Towards a Just
Institutional Order: A Commentary on the First Session of the UN Task Force on the Right to Development, 23
Netherlands Q. Hum. Rts. 409 (2005).
86
First Report, E/CN.4/1999/WG.1/2, para. 13.
87
Id. at para. 11.
88
Id. at para. 67.
89
Amartya Sen, Development as Freedom 36 (1999).
another, and freedom of one type may greatly help in advancing freedom of other
kinds,” which both constitutes and facilitates development.90
Enlisting Sen’s theory of development, Sengupta casts development as a process
in which all are entitled to participate as of right, one that promotes human devel-
opment in terms that extend “well beyond the conventional notions of economic
growth to the expansion of opportunities and capabilities to enjoy those opportuni-
ties.”91 As a result, development policies should not be focused solely on maximiz-
ing gross domestic product, industrialization, technological change, and aggregate
consumption; instead they should make considerations of equity and justice “the
primary determinants of development” and shape development by these determi-
nants.92 The right to development, for Sengupta, guarantees a process that enables
individual participation at all stages of decision-making, and it protects civil and
political rights as well as social, economic, and cultural rights, equal opportunity
of access to resources, and a fair distribution of the benefits of development and of
income; finally, it calls for international cooperation to achieve these ends.
Sengupta builds on his procedural, participatory conception of the right to devel-
opment by combining it with the idea of a “development compact” as a mechanism
for implementing the right.93 If a country finds itself unable, because of a lack of
resources, to pursue rights-based development that includes provisioning for public
goods and public participation, it should be free to enter a development compact
with relevant U.N. institutions, bilateral donors, and international financial institu-
tions to seek assistance in meeting its goals. For Sengupta, a compact is essentially
the acceptance of a mutual obligation. If developing countries comply with specified
obligations geared toward realizing the right to development in accordance with
arrangements worked out with their consent, then the international community,
donors, and financial institutions promise to provide the necessary financial, tech-
nical, and other assistance.94
Multilateral lending practices with developing countries developed by the
International Monetary Fund and the World Bank help to further clarify the inter-
nal obligations that a State might owe to its citizens by virtue of the right to devel-
opment. The IMF and the World Bank rely on development compacts similar to
90
Id. at 37.
91
First Report, supra note 86, at para. 47.
92
Id. at para. 53.
93
Compare Thorvald Stoltenberg, Towards a World Development Strategy, in One World or Several
(Louis Emmerij ed., 1989) (development contracts as comprehensive long-term commitments by indus-
trial countries for development assistance to implement long-term development plans of third-world
countries).
94
Fifth Report, supra note 85, at para. 74.
those proposed by Sengupta. Both institutions provide development assistance to

developing countries in the form of concessional financing and debt relief. Both
attach conditions to the receipt of development assistance that generally require
recipient States to make structural adjustments to their economic and regulatory
environments deemed necessary by the IMF and the World Bank to foster develop-
ment. Neither institution has openly acknowledged the fact that structural adjust-
ment policies designed to promote development might actually limit a population’s
capacity to freely pursue their economic, social, and cultural development.95 Both,
however, have begun to promote development compacts as mechanisms that pro-
mote a participatory approach to development that is consistent with, although not
referenced to, the internal dimensions of the right to development.
Known as Poverty Reduction Strategy Papers (PRSPs), these instruments incor-
porate a set of policies that aim to reduce poverty in countries that qualify for devel-
opment assistance from the World Bank and the IMF. First introduced in 1999,
PRSPs have become central features of the provision of multilateral development
assistance to countries in need. A PRSP is a document in which a State seeking mul-
tilateral development assistance details the measures it undertakes to introduce to
address poverty within its midst over a three-year period. It provides a comprehen-
sive, country-specific analysis of poverty, including macroeconomic and structural
impediments to poverty reduction. A PRSP is expected to be the result of a par-
ticipatory process, where the recipient government engages the active participation
of the population as well as relevant governmental officials, ministries, and agen-
cies. It aims to “reflect the multidimensional nature of poverty, identifying not just
the economic but also the social, political, and cultural constraints that need to be
overcome” to reduce poverty in the country.96 Finally, it presents a detailed plan to
reduce poverty that links inputs to outputs, sets intermediate and long-term tar-
gets, and identifies indicators of progress to enable monitoring of implementation
of its terms.
PRSPs do not appear to protect a population’s capacity to choose a model of
development at variance with the conditions that the IMF and the World Bank
typically attach to the provision of development assistance. And the extent to
which they promote the more modest goal of ensuring the active participation of
its citizens in the formulation and implementation of policies designed to promote
95
See Orford, supra note 32, for an extended analysis of the ways in which the structural adjustment policies
of the IMF and the World Bank violate the right to development.
96
Gobind Nankani, John Page, & Lindsay Judge, Human Rights and Poverty Reduction: Moving Towards
Convergence?, in Human Rights and Development: Towards Mutual Reinforcement 489
(Philip Alston & Mary Robinson eds., 2005).
development turns on a host of factors, such as who is involved in participation, how

participation is organized, and the policy choices that participation is designed to
engage.97 One would also expect their success to turn on a plethora of variables that
are country-specific, such as the extent of political instability in any given State.98
Nor do they refer to participation as an incident of the right to development, and
there remains significant resistance to transforming PRSPs into human rights
instruments.99 However, they are nonetheless consistent with a conception of the
right to development that requires States to take measures to ensure that its citizens
have the capacity to actively participate in the formulation and implementation of
development policy.
While the rise of PRSPs is consistent with a conception of the right to devel-
opment that possesses internal dimensions, the formulation of the Millennium
Development Goals (MDGs), and the monitoring mechanisms in place to chart
progress toward their realization, help to clarify some of the right’s external dimen-
sions. Established in 2000 at the U.N. Millennium Summit and affirmed at the
2002 International Conference on Financing for Development in Monterrey,
Mexico, the eight MDGs call for the eradication of extreme poverty and hunger,
the achievement of universal primary education, the promotion of gender equality
and the empowerment of women, the reduction of child mortality, the improve-
ment of maternal health, the combat of HIV/AIDS, malaria, and other diseases,
environmental sustainability, and the development of a global partnership for devel-
opment.100 Participants at the Millennium Summit and the Monterrey Conference
agreed to achieve the MDGs by 2015.101 The World Bank and the IMF issue annual
Global Monitoring Reports that monitor progress to this end. These reports provide
detailed assessments of the contributions of developing countries, developed coun-
tries, and international financial institutions toward meeting development commit-
ments, and propose specific recommendations to achieve greater compliance.
The 2006 Global Monitoring Report, for example, details the fact that many
countries are off track in meeting the MDGs, particularly in Africa and South Asia,
97
For an assessment of these factors, see Frances Stewart & Michael Wang, Poverty Reduction Strategy Papers
within the Human Rights Perspective, in Human Rights and Development, supra note 96, at 447–74.
98
Id. at 461 (“participation may be less in countries with unstable and fractionalized polities than in more
stable and unified countries”).
99
See Laure-Helene Piron, Are ‘Development Compacts’ Required to Realise the Right to Development?,
in The Right to Development Book: Reflections on the First Four Reports of the
Independent Expert on the Right to Development 46 (2004).
100
U.N. Millennium Development Goals.
101
The U.N. is currently establishing a new set of Sustainable Development Goals to complement or replace
the MDGs with a target date of 2030.
but provides evidence that higher quality aid and better policy environments are
accelerating progress in some countries, and that the benefits of this progress are
reaching poor families. It also argues that sustained monitoring is needed to ensure
continued progress and to prevent the cycle of accumulating unsustainable debt
from repeating itself. It argues further that international financial institutions, for
their part, need to focus on development outcomes rather than on inputs, and sup-
port the efforts of developing countries to strengthen their statistical and institu-
tional capacities.102
Whether development will occur anytime soon on the scale imagined by the
Millennium Summit will depend on the willingness and capacity of developing
countries to formulate and execute poverty reduction strategies that increase pub-
lic investments, strengthen governance, promote human rights, and engage their
respective civil societies and private sectors. It will also, of course, depend on the
willingness of developed countries to provide extensive debt relief and increase their
official development assistance to developing countries.103 The participatory concep-
tion of development informing the project improves conditions for the receipt of
assistance; it is much less ambitious in addressing conditions for the provision of
assistance. Development assistance overall has fallen dramatically from the early
1980s, when it constituted .36 percent of gross domestic product of all donors, to
2004, when it constituted .25 of gross domestic product of all donors.104 One esti-
mate suggests that, for the MDGs to be realized, each developed country will need
to increase its official development assistance to developing countries to 0.7 percent
of its gross domestic product. To date, only five countries—Denmark, Luxembourg,
Netherlands, Norway, and Sweden—have met or surpassed this target. Only six
others—Belgium, Finland, France, Ireland, Spain, and the United Kingdom—have
committed themselves to specific timetables to achieve this target.105
Regardless of the accuracy of predictions about their success, the Millennium
Development Goals promote a conception of development that does not sacrifice
human rights in the name of economic growth and industrialization—a conception
shared by the right to development as enshrined in the Declaration on the Right to
Development. Moreover, the eighth MDG—the establishment of a global partner-
ship for development—includes numerous measures that can be said to clarify the
102
World Bank & International Monetary Fund, Global Monitoring Report on
the Millennium Development Goals; Mutual Accountability—Aid, Trade and
Governance (Apr. 20, 2006).
103
For a detailed assessment, see U.N. Millennium Project, Investing in Development: A
Practical Plan to Achieve the Millennium Development Goals (2005).
104
U.N. General Assembly, Report on the World Social Situation, 2005, A/60/117, para. 362 (July 13, 2005).
105
Id.
content of the right. It calls for the development of a trading and financial system
that is committed to development and poverty reduction, tariff- and quota-free
access for the exports of least developed countries, enhanced debt relief for heavily
indebted countries, cancellation of official bilateral debt, and more generous devel-
opment assistance for countries committed to poverty reduction.106
The objectives of the Millennium Summit, like the PRSPs employed by the
World Bank and the IMF, however, are voluntary initiatives that tackle global pov-
erty. They do not mandate development assistance; they identify obligations that
attach to donor States that voluntarily agree to provide development assistance. In
the eyes of the World Bank and the IMF, recipient States should adopt measures
to promote development, and they require international assistance to do so. But
neither institution envisions development in terms that generate legal obligations
on donor States or the international community to provide international financial
assistance. Similarly, although Sengupta speaks of development as a participatory
right, the process in which the right-holder is entitled to participate is a voluntary
one—in his terms, a “development compact.”
What these various initiatives to implement the right to development nonethe-
less offer is clarification of what the right to development requires of States in the
internal exercise of sovereign power. The Millennium Summit initiative also sug-
gests what the right to development might require of States in the external exercise
of sovereign power. What it does not offer is a normative account of why the right
to development should impose external obligations on developed States to alleviate
global poverty. By drawing on and departing from debates about global justice in
contemporary political theory, the next part of this chapter seeks to provide such an
account in light of the right to development’s role in the structure and operation of
the international legal order.
From Global Poverty to Inter national Law
The obligations enshrined in the Declaration on the Right to Development become

less ambiguous when understood in light of its basic thrust, which is to call for a
new international economic order that would benefit populations in the developing
See Salomon, supra note 27, at 24 (“The Global Partnership for Development, envisioned under Millennium
106
Development Goal 8, reflects [the right to development’s] current expression”). For a detailed exploration
of the MDGs and international human rights, including but not restricted to the right to development, see
Philip Alston, Ships Passing in the Night: The Current State of the Human Rights and Development Debate
Seen Through the Lens of the Millennium Development Goals, 27 Hum. Rts. Q. 755 (2005).
world. The Declaration emerged out of a belief by many developing countries that
the international legal commitment to the formal sovereign equality of States
needs to be supplemented with a more equitable distribution of the world’s eco-
nomic resources. Its preamble speaks of the human rights of “peoples and individu-
als affected by colonialism, neo-colonialism, apartheid, and all forms of racism and
racial discrimination.”107 Article 4 declares that “as a complement to the efforts of
developing countries, effective international cooperation is essential in providing
these countries with appropriate means and facilities to foster their comprehensive
development.”108 Understood as an instrument that promotes international distrib-
utive justice, the right to development, in the words of Bedjaoui, is a right “to an
equitable share in the economic and social well-being of the world.”109
But what constitutes an equitable share, who might justifiably claim one, and why
is attending to global poverty required as a matter of global justice? In recent years,
there has been an explosion of scholarship in political theory exploring the thesis
that distributive justice is not a matter to be determined within the boundaries of
States. Instead, what constitutes a just distribution of wealth and resources should
be determined globally. Political theorists engaging questions of global justice offer
different accounts of what constitutes a globally just distribution. Charles Beitz has
argued that distributive justice requires that global socioeconomic inequalities be
arranged to the greatest benefit of the least advantaged.110 Simon Caney defends a
similar egalitarian global distributive vision, one that includes “subsistence rights, a
principle of global equality of opportunity, rules of fair play, and a commitment to
prioritizing the least advantaged.”111 Hillel Steiner goes further, arguing that global
justice mandates an equal portion of the world’s natural resources to all.112
Theorists also offer different accounts of among whom global justice is to be
sought. Building on a cosmopolitan ideal that individuals are the ultimate unit of
moral concern, some argue that global justice requires a just distribution of resources
among citizens of the world.113 Others treat nations or peoples as the subjects of
107
Supra note 19, at ninth preambular paragraph.
108
Art. 4.
109
Bedjaoui, supra note 49, at 181.
110
Charles Beitz, Political Theory and International Relations (2d ed. 1999); Thomas
Pogge, World Poverty and Human Rights (2002); see also Kok-Chor Tan, Justice Without
Borders: Cosmopolitanism, Nationalism and Patriotism 60 (2004) (“a just global distributive
scheme would be one that meets [Rawls’] second principle of justice—equality of opportunity and the
regulation of global equality by the difference principle” and which “would keep the plight of the worst-off
individuals (globally situated) firmly in its sight”).
111
Simon Caney, Justice Beyond Borders: A Global Political Theory 264 (2005).
112
Hillel Steiner, An Essay on Rights (1994).
113
See Beitz, supra note 110; Thomas Pogge, Realizing Rawls (1999); Caney, supra note 111; Darrel
Moellendorf, Cosmopolitan Justice (2002); For an illuminating analysis of how international
global justice.114 Still others see States as the subjects of global justice, maintain that
States are not wholly responsible for the poverty within their midst, and argue for
global redistributive measures to reduce the disparity of wealth and resources that
exists among States.115
Notwithstanding differences among scholars over the proper subjects of global
justice, most of the reasons they offer to explain why global justice requires attend-
ing to global poverty build on the proposition that natural, geographical, and social
contingencies that contribute to global poverty—such as the State into which one is
born, its location, and its resources—are morally arbitrary determinants of one’s sta-
tion in life.116 The fact that one individual is born into a poverty-stricken country in
Africa and another is born into a developed State in Western Europe, for example,
may explain but does not justify the poverty that the former endures and the benefits
that the latter enjoys.117 The geographical distribution of natural resources around
the world means that some regions are resource-rich and others are resource-poor
for reasons that are morally arbitrary. The distribution itself is not unjust; questions
of justice enter the picture because the fact that a country is arbitrarily resource-rich
does not provide a normative justification for entitling it to exclude others from its
resources.118
The normative force of this claim is grounded in “luck egalitarianism,” a term
coined by Elizabeth Anderson119 in critique of an account of distributive justice that
identifies its relevance in the proposition that “there is injustice in distribution when
the inequality of goods reflects not such things as differences in the arduousness of
different people’s labors or people’s different preferences and choices with respect
to income and leisure, but myriad forms of lucky and unlucky circumstances.”120
Ronald Dworkin has refined this claim with a distinction between “option luck,” “a
matter of how deliberate and calculated gambles turn out,” and “brute luck,” which
happens independently of choice, treating only the latter as a matter of distributive
legal scholarship and political theorists conceptualize cosmopolitanism, see Başak Çali, On Legal
Cosmopolitanism: Divergences in Political Theory and International Law, 19 Leiden J. Int’l L. 1149
(2006).
114
John Rawls, The Law of Peoples (1999).
115
Brian Barry, Do Countries Have Moral Obligations: The Case of World Poverty, in The Tanner Lectures
on Human Values, vol. II (Sterling McMurrin ed., 1981).
116
See Robert Goodin, What Is So Special about Our Fellow Countrymen?, 98 Ethics 663 (1988).
117
See David A.J. Richards, International Distributive Justice, in Ethics, Economics, and the Law (J.R.
Pennock & J.W. Chapman eds., 1982).
118
See Beitz, supra note 110, 136–43. For discussion, see Álvaro de Vita, Inequality and Poverty in Global
Perspective, in Freedom from Poverty as a Human Right 120 (Thomas Pogge ed., 2007).
119
Elizabeth Anderson, What Is the Point of Equality?, 109 Ethics 287 (1999).
120
G.A. Cohen, If You’re an Egalitarian, How Come You’re So Rich? 130 (2000).
justice.121 Within this school of thought, “there is no consensus as to the precise cut
between what is luck and what is choice, or between brute luck and option luck, and
there is a lively ongoing debate on what luck is, and how to place the cut between
luck and choice.”122
Others extend reasons for addressing poverty in the domestic sphere to the global
arena, arguing that “the two realms are sufficiently similar that whatever princi-
ples of justice we are prepared to acknowledge in the domestic case, we should be
prepared to acknowledge in the international case as well.”123 There are, of course,
conceptions of justice that reject attending to poverty and economic inequality in
domestic political communities.124 But some have argued that principles of justice
that ground obligations to attend to poverty within a political community also
ground obligations to attend to global poverty. If justice requires attending to eco-
nomic inequalities in a political community because, in the words of John Rawls,
a political community is “a system of cooperation designed to advance the good of
those taking part in it,”125 then justice requires addressing global poverty because
similar relations of mutual reciprocity and social cooperation exist at the global
level. Rawls himself did not believe that the international community manifests
the requisite degree of social cooperation to ground an obligation to address global
poverty. He locates “a duty of assistance” instead in the need to ensure that States
possess the capacity to operate in accordance with a public conception of justice.126
But this has not stopped others from relying on Rawls’ work to comprehend the
demands of global distributive justice.127
The challenge confronting such calls for global wealth redistribution is twofold.
First, in the words of Kok-Chor Tan, they need “to show how the aspiration for jus-
tice without borders can be reconciled with what seems to be a basic moral fact that
people may, and are indeed obliged to, give special concern to their compatriots.”128
121
Ronald Dworkin, Sovereign Virtue 73 (2000).
122
Kok-Chor Tan, Justice, Institutions & Luck: The Site, Ground, and Scope of Equality 95
(2012).
123
124
Robert Nozick, Anarchy, State, and Utopia (1974).
125
John Rawls, A Theory of Justice (1971).
126
See John Rawls, The Law of Peoples (1999). See also Joshua Cohen & Charles Sabel, Extra
Rempublicam Nulla Justitia?, 34 Phil. & Pub. Aff. 147 (2006) (the existence of common institutions and
collective interdependence across State borders calls for a weak form of international distributive justice).
127
See, e.g., Beitz, supra note 110.
128
Tan, supra note 110. Tan advances a version of cosmopolitan distributive justice that accommodates but
limits patriotic concerns. Compare Samuel Scheffler, Boundaries and Allegiances 111 (2001)
(distinguishing between cosmopolitanism as a “doctrine about culture” and cosmopolitanism as a “doc-
trine about justice”). Scheffler seeks to defend a theory of cosmopolitanism that takes seriously the particu-
lar ties and associative relationships that arise in particular communities of value.
This challenge recalls Hart’s distinction between general rights, “which all men
capable of choice have,” and special rights, which “arise out of special transactions
between individuals or out of some special relationship which they have to each
other.”129 Critics argue that an aspiration for global justice cannot be reconciled
with the fact that we owe special obligations to members of our own political com-
munity, because the conditions that give rise to these special obligations simply do
not exist in the international realm.
Thomas Nagel, for example, conceding that we are under a duty to provide
humanitarian assistance to those in dire need in other countries, argues that any
additional obligations that promote distributive justice should vest in, and be owed
to, members of political communities constituted as States. For Nagel, it is the fact
that “we are both putative joint authors of the coercively imposed system, and sub-
ject to its norms … that creates the special presumption against arbitrary inequali-
ties in our treatment by the system.”130 Nagel argues that international institutions
do not possess coercive power delegated by individuals whose lives they affect; “the
responsibility of those institutions towards individuals is filtered through the states
that represent and bear primary responsibility for those individuals.”131
Andrea Sangiovanni makes a different claim, pointing not to the coercive nature
of the State but to the reciprocity that exists among citizens of a State in “the mutual
provision of collective goods necessary to protect us from physical attack and to
maintain and reproduce a stable system of property rights and entitlements.”132 For
Sangiovanni, “we owe obligations of egalitarian reciprocity to fellow citizens and
residents in the state, who provide us with the basic conditions and guarantees nec-
essary to develop and act on a plan of life but not to noncitizens, who do not.”133
Institutionally mediated relationships of reciprocity do exist at the global level,
but their nature and character yield different principles of justice “in both form
and content than those at the domestic level.”134 For Sangiovanni, international
129
Hart, supra note 65, at 188, 183.
130
Thomas Nagel, The Problem of Global Justice, 33 Phil. & Pub. Aff. 113, 128–29 (2005). For Michael Blake,
it is the fact that the State restricts the autonomy of citizens that generates a concern for distributive justice.
See Michael Blake, Distributive Justice, State Coercion, and Autonomy, 30 Phil. & Pub. Aff. 257 (2001).
For critique, see Arash Abizadeh, Cooperation, Persuasive Impact, and Coercion: On the Scope (not Site) of
Distributive Justice, 35 Phil & Pub. Aff. 318, 348–50 (2007); A.J. Julius, Nagel’s Atlas, 34 Phil. & Pub.
Aff. 176 (2006); Chris Armstrong, Coercion, Reciprocity and Equality beyond the State, 40 J. Soc. Phil.
297 (2009).
131
Nagel, supra note 130, at 138.
132
Andrea Sangiovanni, Global Justice, Reciprocity, and the State, 35 Phil. & Pub. Aff. 3, 19–20 (2007).
133
Id. at 19. See also Brian Barry, 2 Liberty and Justice: Essays in Political Theory 182 (1991).
134
Sangiovanni, supra note 132, at 35. For critique, see Abizadeh, supra note 130, at 336–37; Armstrong, supra
note 130.
reciprocal relationships cannot plausibly ground an obligation to address global

economic inequality.
What both advocates and critics of global wealth redistribution overlook is the
structure and operation of the international legal order in which global poverty is
situated. Political theorists who advocate global wealth distribution tend to miss the
normative significance of the relationship between the legal structure of our inter-
national order and the distributive injustice of global poverty.135 It is no doubt true
that the natural, geographical, and social contingencies that contribute to global
poverty—such as the State into which one is born, its location, and its resources—are
morally arbitrary determinants of one’s station in life. But the poverty experienced
by a person born in, say, Chad, is not simply a matter of natural, geographical, and
social contingency. That person is born into a legal jurisdiction recognized by the
international legal order as vested with sovereignty over its people and territory.
The prominence of sovereignty as a legal entitlement that international law relies
on to bring legal order to global politics has been defended in terms of a need “for
a presumptive monopoly of the last word on public order in any given territory.”136
And sovereignty in international law possesses a measure of normative purchase
to the extent that people can and do flourish by being organized into particular
political communities and, in doing so, generate a complex set of interests that merit
protection.137 One of the consequences of deploying sovereignty to organize global
politics into an international legal order, however, is that it extends legal validity to
certain natural, geographical, and social contingencies into which we are born. The
capacity of a sovereign State to address poverty in its midst is in no small measure a
function of its location, boundaries, and resources—variables whose limits and pos-
sibilities are determined by the nature and extent of that State’s sovereign powers.
135
One significant exception is found in the work of Kok-Chor Tan, who weds an international institutional
approach to distributive justice with luck egalitarianism, rendering morally relevant the fact “that there is
a global social arrangement—consisting of specific institutional entities, and institutionally entrenched
or enforced social and legal norms and expectations—that has the effect of rendering random facts about
persons and the natural world into actual social inequalities.” Tan, supra note 122, at 158. Tan focuses spe-
cifically on “global norms such as those governing sovereignty, resource ownership, territorial rights, eco-
nomic practices (such as trade laws, intellectual property rights laws), and international laws and principles
(such as those regulating movement of persons across borders).” Tan, id. at 151–58. Another exception is
the work of Thomas Pogge. See discussion surrounding infra note 145.
136
Brad R. Roth, Sovereign Equality and Moral Disagreement: Premises of a Pluralist
International Legal Order 7 (2011).
137
Compare Rogers M. Smith, Stories of Peoplehood: The Politics and Morals of Political
Membership 64 (2003) (because humanity has yet to devise ways that people can flourish without being
organized into particular political communities, we should attach moral weight to what is essential for
particular communities to survive).
Moreover, as discussed in Chapter 2, international law treats States as juridically

equal legal actors, in possession of the same rights in international law and equal in
their formal capacity to exercise these rights.138 One of the consequences of inter-
national law’s foundational commitment to the formal equality of States is that the
substantive equality of States plays a marginal role in the normative architecture of
the international legal order. International law domesticates questions of substan-
tive equality, treating its potential normative significance as a domestic question
of distributive justice among citizens, subject to the vagaries of domestic political
contestation. International law’s relegation of substantive equality norms to the
domestic realm further implicates the structure of the international legal order in
the natural, geographical, and social contingencies that contribute to global pov-
erty. International law conceives of the people of Chad as constituting a sovereign
State, materially vesting in them only the meager resources within their territory,
preventing them from accessing resources elsewhere, and imposing stiff barriers to
those seeking to emigrate to escape the conditions of poverty in which they find
themselves.139
As for those skeptical of treating global wealth distribution as mandated by dis-
tributive justice, it may well be the case that international institutions do not wield
anything akin to the coercive power of a State or generate reciprocal relations of
the kind that exist within domestic political communities. But the skeptics miss
the normative significance of the relationship between the operation of the interna-
tional legal order and global poverty. Many of the international organizations that
currently play a major role in managing and coordinating relations between and
among States, such as the United Nations, the World Bank, and the International
Monetary Fund, owe their international legal existence to a suite of multilateral
138
See, e.g., U.N. Charter, supra note 4, at art. 2(1) (“The Organization is based on the principle of the sover-
eign equality of all its Members”); Montevideo Convention on the Rights and Duties of States, adopted
Dec. 26, 1933, 165 L.N.T.S. 19; 49 Stat. 3097 (entered into force Dec. 26, 1934), art. 4 (“States are juridically
equal, enjoy the same rights, and have equal capacity in their exercise. The rights of each one do not depend
upon the power which it possesses to assure its exercise, but on the simple fact of its existence as a person
under international law”).
139
Compare Joseph Carens, The Ethics of Immigration 196 (2013)196:
The modern state system organizes the world so that all of the inhabited land is divided up among
(putatively) sovereign states who possess exclusive authority over what goes on within the territories
they govern, including the right to control and limit entry to their territories … because the state
system assigns people to states, states have a responsibility to help those for whom this assignment
is disastrous.
Carens argues that more porous borders would mitigate some of these morally arbitrary determinants. See
also Joseph Carens, Aliens and Citizens: The Case for Open Borders, in Theorizing Citizenship 229
(R. Beiner ed., 1995).
treaties resulting from an unprecedented burst of international cooperation after

the Second World War.140 We saw in Chapter 2 that such institutions give institu-
tional voice and legal effect to a dense network of international interactions between
and among sovereign States by subjecting States to various forms and degrees of
international legal authority, including legislative, regulatory, and adjudicative
authority, monitoring and enforcement of treaty obligations, agenda setting and
norm production, research and advice, and policy implementation.
Proponents of these various institutions, arenas, principles, and rules that States
have created to promote the liberalization of trade, services, and investment argue
that they will ultimately work to reduce global poverty by improving the social and
economic conditions of all. Opponents argue that the legal norms and institutions
that facilitate economic globalization will exacerbate global poverty. Despite their
opposite predictions, what both share is the insight that international economic
law has distributive consequences for the global poor.141 A conception of the right
to development that imposes negative external obligations on States, when partici-
pating in the international realm, to address global poverty is one that holds inter-
national economic law accountable for its potential to exacerbate global poverty.
Given that both the structure and operation of international law are implicated
in the fact, if not the reproduction, of global poverty, the right to development
imposes negative obligations on States and international legal institutions to
fashion rules and policies governing the global economy in ways that prevent its
exacerbation.142
The work of Thomas Pogge is illuminating in this respect.143 Pogge argues that
human rights, properly conceived, should focus less on “perfect” or abstract duties
that we owe others directly and more on what justice requires of the establish-
ment and operation of institutional orders that govern our lives. Those respon-
sible for the establishment of international order (for Pogge, this means all of
us) confront an array of possible institutional options, and respect for human
rights requires certain institutional choices over others when constructing and
operating institutions to govern global matters. He refers specifically to the struc-
ture and operation of international institutions, such as the WTO, which, he
140
Not all international organizations owe their origins to this period—the International Labour
Organization, created in 1919 as part of peace negotiations, has a longer institutional pedigree, and the
World Trade Organization was established much more recently in 1995.
141
Compare Seyla Benhabib, The Rights of Others: Aliens, Residents and Citizens 103 (2004)
(“The world economy, while falling short of being a system of cooperation, is one of significant interdepen-
dences with non-negligible distributive consequences for the players involved”).
142
For a similar, more detailed view, see Salomon, supra note 25.
143
Thomas Pogge, World Poverty and Human Rights (2002).
argues, enable economically powerful States to secure “the lion’s share of the
benefits of global economic growth.”144 Pogge argues that global justice requires
institutional choices that decrease rather than increase world poverty. This require-
ment is not a positive obligation to share one’s wealth or resources with strang-
ers in need. It is a negative obligation on international legal actors—including
States—to not fashion international economic rules and policies that exacerbate
global poverty.
Although Pogge does not address the nature and scope of the right to develop-
ment, his analysis sheds light on some of its role in the international legal order.
As noted previously, the right to development, as enshrined in the Declaration,
promotes “the constant improvement of the well-being of the entire population” of
a State.145 It does so by protecting the capacity of a State’s population to “partici-
pate in, contribute to, and enjoy economic, social, cultural and political develop-
ment.”146 It provides this protection by imposing negative and positive obligations
on both the internal and external exercise of sovereign power.147 While its inter-
nal dimensions police the relationship between a State and its own citizens, its
external dimensions speak to the exercise of sovereign power in the international
arena. It obligates States and other international legal actors—when participating
in the formulation of international legal norms governing global markets in labor
and capital, trade and investment, and monetary policy—to protect the capacity of
developing States to promote development in order to address poverty within their
borders.148 The right to development, in other words, imposes a negative obliga-
tion on States, when exercising sovereign power in the international arena, not to
fashion rules and policies governing the global economy in ways that exacerbate
global poverty.
Compliance with the right’s negative obligations thus requires changes to the
ways that international financial institutions formulate international economic
law and policy. As detailed previously, the U.N. Millennium Development Goal
8 outlines some of the changes required by the right. It calls for the development
of a trading and financial system that is committed to development and poverty
reduction; tariff- and quota-free access for the exports of least developed countries;
enhanced debt relief for heavily indebted countries; cancellation of official bilateral
144
Id. at 20.
145
Supra note 19, at second preambular paragraph.
146
Art. 1.
147
Salomon, supra note 27.
148
See Orford, “supra note 32, at 157–70 (detailing how trade and investment liberalization limits the capacity
of people to participate, control, and share in the benefits of development).
debt; and more generous development assistance for countries committed to pov-
erty reduction.149
In this vein, Robert Howse has argued that, in the context of the WTO, the
right to development also requires “a different methodology for determining what
policies and laws ought to be on the negotiating agenda, how they might be crafted,
what goals they are to be interpreted as aiming at, and how their effects might be
predicted ex ante, as well as evaluated ex post.”150 Howse suggests that such a meth-
odology entails the exploration of policies that enable the mutual reinforcement of
economic growth and human rights protection, more open consultation with civil
society, direct citizen access to WTO policy-making processes, and greater coor-
dination between the WTO, the Office of the High Commissioner on Human
Rights, and other relevant international institutions in the implementation of the
right to development.151 Similarly, the U.N. Working Group has proposed that
States assess the impact of proposed trade agreements on the right to development
in all relevant international trade forums.152
In the context of the World Bank and the IMF, Anne Orford argues that institu-
tional reform is also necessary to ensure that their decision-making processes enable
“the people of target states to determine the nature of the economic, and thus the
political, system in which they live.”153 While both the World Bank and, to a lesser
extent, the IMF, have taken some steps in this direction by their engagement with a
participatory conception of development as illustrated by their reliance on PRSPs,
Orford argues that both institutions rely on processes and practices that fail to guar-
antee equitable and fair access to the benefits of development.154 Moreover, both
institutions now acknowledge that development involves the promotion of not sim-
ply economic growth but also human freedom, and that the protection of human
rights is a means and end of development. But they continue to privilege civil and
149
See text accompanying note 100, supra.
150
Robert Howse, Mainstreaming the Right to Development into International Trade Law and Policy at the
World Health Organization, U.N. Doc. E/CN.4/Sub.2/2004/17, at para. 15.
151
Id. at paras. 14–24. Isabella Dunn suggests that international economic law should attend to the right
to development by continuing to affirm the principle of special and differential treatment for develop-
ing States in ways that provide a lower level of obligations; more flexible implementation timetables; a
lower level of “best endeavor” commitments; greater technical assistance; assurance that the agriculture,
textiles, and clothing sectors be brought into WTO disciplines; reduction of tariff and non-tariff barri-
ers in developed States; and monitoring of intellectual property rights policy in light of increased costs
and reduced access to technology transfers faced by developing States. Isabella D. Dunn, The Right to
Development: Implications for International Economic Law, 15 Am. U. Int’l L. Rev. 1425, 1464–65 (2000).
152
Report of the Working Group on the Right to Development, 6th sess., U.N. Doc. E/CN.4/2005/25,
para. 54(e).
153
Orford, supra note 32, at 152.
154
Id. at 152–57.
political rights at the expense of social and economic rights and actively resist a con-
ception of the right to development that would subject their policies and initiatives
to human rights scrutiny.155
Conceiving of the right to development as an instrument that mitigates some of
the adverse consequences of international economic law thus explains why the right
entails a negative obligation on States and international financial institutions to not
formulate rules that further diminish the capacity of developing States to address
poverty within their midst. But does this account explain why the right to develop-
ment imposes positive, external obligations on developed States to provide develop-
ment assistance in the form of bilateral loans, grants, and debt relief to developing
States and make contributions to multilateral institutions, and requires multilateral
institutions to provide development assistance to recipient States?
Some have rested the case for positive obligations of this kind on the ways inter-
national legal norms governing global markets in labor and capital, trade and
investment, monetary policy, and other components of international economic law
possess the potential to exacerbate global poverty. Margot Salomon, for example,
argues that the right to development imposes obligations on donor States to provide
assistance to developing States because our “skewed international economic envi-
ronment … by definition undermines the ability of less commanding states to give
effect to human rights.”156
Others conceptualize a duty to provide financial assistance in less systemic terms.
Charles Beitz argues that “members of affluent societies are likely to have some rea-
son to act to reduce poverty or to mitigate its effects in most poor countries with
which they interact, but … these reasons will vary in strength.”157 He points to
bilateral relationships between rich and poor countries that render poor States
worse off than they would have been absent the relationship; past relationships that
place a poor State in a position worse than it would have been had these relation-
ships not occurred; relationships in which a poor State’s gain is less than its fair
share of the social product of its relationship with a wealthy State; and relationships
the termination of which would be asymmetrically costly for the poor State.158 Beitz
adds that a more systemic reason for positive, external obligations of financial assis-
tance might present itself to the extent that international economic law facilitates
these kinds of relations between and among States, but such obligations will arise in
155
See Kerry Rittich, The Future of Law and Development: Second Generation Reforms and the Incorporation
of the Social, 26 Mich. J. Int’l L. 199 (2004).
156
Salomon, supra note 27, at 22.
157
Charles Beitz, The Idea of Human Rights 172 (2009).
158
Id. at 171.
any event only when poor States cannot live up to their own internal obligations, and
their content will depend on features specific to the case at hand.159
Grounding a positive obligation to provide financial assistance to developing States
in the structure of international economic law, however, requires assuming—if not
proving—that the rules and institutions that constitute our international economic
order contribute to global poverty. It is an open question whether this assumption,
on its own, can ground a positive obligation on developed States to provide financial
assistance to developing States in the name of global poverty alleviation—especially
in light of ongoing debates about the relationship between globalization and poverty
in the global south that show no sign of abating in the near or even distant future.
International economic law, however, operates against the backdrop of another set of
international legal norms that speak more directly to the distribution and exercise of
sovereign power. As suggested below, an additional normative foundation of a positive
obligation on developed States to share some of their wealth and resources with devel-
oping States to reduce global poverty lies in the international legal history of the rise
and fall of colonialism.
The R ight to Development and the R ise and Fall

of Colonialism
Positive obligations associated with the right to development in international law

receive greater normative clarity when one begins to delve more deeply into the pos-
sible ways the international legal order has contributed to the production and reproduc-
tion of global poverty. The international legal commitment to the formal equality of
States and its concomitant consignment of substantive equality to the domestic realm
implicates the structure of the international legal order in the natural, geographical,
and social contingencies that contribute to global poverty. And behind this commit-
ment are three background legal norms that structure the capacity of communities to
participate as States in the international legal order. First, international law provides
that existing States, generally speaking, are entitled to have their territorial integrity
respected by other States.160 Second. international law also confers legal validity on a
159
Id. at 172–73.
160
U.N. General Assembly, Declaration on the Granting of Independence to Colonial Countries and Peoples,
G.A. Res. 1514, U.N. GAOR, 15th Sess., Supp. No. 16, U.N. Doc. A/4684 (1960), para. 6 (“[a]‌ny attempt
aimed at the partial or total disruption of the national unity and the territorial integrity of a country
is incompatible with the Purposes and Principles of the Charter of the United Nations”). See also U.N.
General Assembly, Declaration on Principles of International Law Concerning Friendly Relations and
Co-Operation Among States in Accordance with the Charter of the United Nations, G.A. Res. 2625, U.N.
GAOR, 25th Sess., Supp. No. 28, at 121, U.N. Doc. A/8018 (1970), Annex, at 122.
claim of sovereignty by a community if it meets the criteria that it supplies to deter-

mine whether it constitutes a State.161 Third, international law vests the right of
self-determination in peoples, entitling colonized peoples, who did not otherwise meet
the criteria of statehood, to acquire sovereign independence. These norms determine
the legality of countless claims of sovereign power and authorize the reallocation of
sovereignty in international law occasioned by the demise of existing States and the
creation of new States by recognition or right.
Recall, too, that, until the end of the First World War, “if international law
enforced any conception of self-determination, it meant one thing: established
states had a right to be left alone by other states.”162 The field traditionally under-
stood self-determination as vesting in the entire population of an existing State,
coextensive with sovereignty itself, and the territory of a State extended to the terri-
tory of any and all colonies under its imperial control. As a result, international law
conferred legal validity on colonialism. Any attempt by a colonial population to free
itself of its colonial status was comprehended as a threat to the territorial integrity of
its colonizing master and an international illegality.
While self-determination began to take on a modicum of meaning beyond that
of sovereignty itself after the First World War, international law only began to
comprehend it as a right vesting in a collectivity that does not necessarily consti-
tute the whole of a State’s population after the Second World War. It did so as a
means of managing and legitimating the legal transformation of colonial territo-
ries in Africa and elsewhere into sovereign States. In 1960, The General Assembly
enacted the Declaration on the Granting of Independence to Colonial Countries
and Peoples, proclaiming that colonial populations constitute peoples entitled to
exercise the right of self-determination and acquire sovereign independence.163 In
1970, the General Assembly enacted the Declaration on Friendly Relations, clarify-
ing the relationship between the right of self-determination and the principle of
territorial integrity of States.164 The 1970 Declaration specified that the territory of a
colony has “a status separate and distinct from the territory of the state administer-
ing it,” thereby providing a formal explanation as to why the acquisition of sovereign
161
For a classic formulation of this principle, see Hans Kelsen, Recognition in International Law: Theoretical
Observations, 35 Am. J. Int’l L. 605 (1941).
162
Diane Orentlicher, Separation Anxiety: International Responses to Ethno-Separatist Claims, 23 Yale
J. Int’l L. 1, 22 (1998).
163
GA Res. 1514 (XV), 15 U.N. GAOR Supp. (No. 16) at 66, U.N. Doc. A/4684 (1961).
164
Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among
States in Accordance with the Charter of the United Nations, U.N. G.A. Res. 2625 (XXV), U.N. GAOR,
25th Sess., Supp. No. 28, at 121, U.N. Doc. A/8028 (1971) (adopted by consensus Oct. 24, 1970).
independence by a colonial population does not interfere with the sovereign integ-
rity of its parent State.
One important consequence of this dramatic international legalization of decol-
onization was that ex-colonies only acquired the incidents of sovereignty when
they acquired sovereignty itself. Before they achieved sovereign recognition, con-
trol over natural resources vested in their colonial masters, as did all other inci-
dents of international sovereign power. International law could have governed the
transition from colony to sovereign State differently. This is partly what develop-
ing countries sought to achieve in their push for a new international economic
order. Antony Anghie points out that the U.N.’s 1962 Resolution on Permanent
Sovereignty Over Natural Resources165 vests a right to sovereignty over natural
resources in peoples and nations, suggesting “that even colonized peoples who had
not yet become independent were granted certain rights that could protect their
resources.”166 Moreover, the right is to “permanent” sovereignty, which also sug-
gests that it always vests—and more important, always vested—in a people, regard-
less of when they achieve complete sovereign independence in international law.
In Anghie’s words, “the wording of the 1962 Resolution could have been used as a
basis for peoples seeking compensation for colonial exploitation upon becoming
independent, sovereign peoples.”167
But developing countries were unsuccessful in their efforts to change the ground
rules governing the acquisition of sovereignty beyond the incorporation of a right of
self-determination validating their quests for sovereign independence. When inter-
national law extended its distribution of sovereignty to include colonies that had
achieved sovereign independence, it vested ex-colonies with the incidents of sover-
eignty only at the moment of their independence. In the words of the Permanent
Court of International Justice, sovereign independence means “a separate State with
sole right of decision in all matters economic, political, financial or other with the
result that that independence is violated, as soon as there is any violation thereof,
either in the economic, political, or any other field, these different aspects of inde-
pendence being in practice one and indivisible.”168 But States acquire “the sole right
of decision in all matters economic, political, financial or other” only when they
become States. Whether an ex-colony is resource-rich or resource-poor turns in part
165
G.A. Res. 1803, 17 GAOR, Supp. 17, U.N. Doc. A/5217.
166
Antony Anghie, Imperialism, Sovereignty and the Making of International Law 218
(2004).
167
Id.
168
Advisory Opinion No. 41, Customs Régime Between Germany and Austria, 1931 P.C.I.L. (ser. A/B) No.
41 (Sept. 5).
on what resources were left by colonial authorities when international law vested it
with sovereign power.
As Anghie has pointed out, additional international legal doctrines also shaped
the extent of resources available to third-world States at the moment of their inclu-
sion in the international distribution of sovereign power. The doctrine of State suc-
cession holds that rights granted by a sovereign power to a private entity are to be
respected by the successor sovereign.169 In the context of decolonization, the prede-
cessor sovereigns were, of course, colonial powers. Some colonial powers also entered
into agreements with their colonies shortly before sovereign independence in which
the colony undertook to protect all territorial rights acquired by achieving inde-
pendence.170 Before colonies participated in the distribution of sovereignty, in other
words, international law vested the legal power to exploit their natural resources in
colonial powers. “Indeed, the entire point of colonization,” in the words of Arthur
Ripstein, “was precisely to acquire territory, natural resources, workers, and markets
in ways that worked to the advantage of the conquering country.”171 And when colo-
nies became subjects in the distribution, international law vested them with power
only over those resources that remained at the date they achieved sovereign state-
hood. This temporal dimension to the acquisition of sovereignty in international
law has the effect of privileging States with a history of colonizing others over States
with a history of being colonized, thereby contributing to the disparity of resources
that exists between developed and developing States.
International law thus withheld sovereignty from colonized populations and pre-
vented them from exercising control over the natural resources of their territories by
conferring international legal validity on colonialism, thereby preventing develop-
ment from occurring in a manner that would benefit the populations of colonies. It
authorized colonizing powers to treat the natural resources of their colonies as their
own. And when international law finally—and, in many cases, belatedly—extended
legal validity to decolonization projects, it vested in newly decolonized States sover-
eign power over only those resources that remained when they acquired sovereignty,
and it held them to contractual obligations undertaken by their colonial prede-
cessors. Conceiving of the right to development as imposing a positive obligation
on developed States to attend to global poverty thus constitutes a legal means of
169
For a contemporaneous theoretical engagement with the law of State succession, see Lucius Caflisch, The
Law of State Succession: Theoretical Observations, 10 Neth. Int’l L. Rev. 337 (1963).
170
Anghie, supra note 167, at 214–16. See also Okon Udokang, Succession of New States to
International Treaties (1972).
171
Arthur Ripstein, Kant’s Juridical Theory of Colonialism, in Kant and Colonialism: Historical
and Critical Perspectives 147 (Katrin Flikschuh & Lea Ypi eds., 2015).
addressing adverse distributional consequences caused by the ways in which inter-

national law excluded—and belatedly included—collectivities subject to colonial
rule into its distribution of sovereign power.
This conception need not lead to the conclusion that positive obligations only fall
on developed States with a history of colonizing others, although it might justify
more stringent positive obligations on such States to the extent that their level of
development is a function of the sovereignty they historically possessed over their
colonial subjects. It supports the imposition of positive obligations on all developed
States to come to the aid of poor States because all States participated in the for-
mation of international legal norms that vested colonizing projects with a veneer
of international legality—colonizing projects that contributed to global poverty.
These norms not only include those that authorized colonization itself—norms
that refused to recognize extant political communities as possessing sovereignty
over their members and territories. They also include norms that rendered lawful
whatever colonizing powers saw fit to do with the natural resources of their colonial
territories. And they include legal norms that governed the transition from colony
to sovereign statehood. One would be hard-pressed to argue that these features of
the structure and operation of international law have not contributed to the fact of
global poverty, and the right to development thus stands as a means of mitigating
their contribution.
Determining the extent to which these international legal norms have contrib-
uted to global poverty turns on the significance we attribute to the operation of the
international legal order and how much can be attributed to other factors, such as
geography, climate, and disease, as well as the failure of poorer States to take advan-
tage of the resources over which they exercise sovereign power. But this question of
attribution is a normative matter, not a matter of financial accounting.172 Conceiving
of the right to development in distributive terms yields normative reasons to inter-
pret it as mandating global wealth redistribution. The obligations corresponding
to this interpretation of the right to development do not necessarily correspond to
abstract duties that we owe each other by virtue of our common humanity. Instead,
these obligations lend legitimacy to an international distribution of sovereign power
tainted by the ways the developing world was unjustly excluded from international
law’s distribution of sovereignty and subsequently legally disadvantaged in the pro-
cess of its incorporation in the international legal order.
It is a normative matter that Tan, as stated, would likely describe as raising questions about “the precise cut
172
between what is luck and what is choice, … between brute luck and option luck, … what luck is, and how
to place the cut between luck and choice.” Tan, supra note 122, at 95.
This account of the right to development comprehends bilateral and multilateral

participation in global redistributive projects in compulsory terms. It entails treating
development assistance levels as required as a matter of international human right,
setting contribution levels in light of available data and revising levels as new data
emerge. It also entails revising and, if necessary, replacing such projects with alterna-
tive strategies if monitoring reveals deficiencies and reform possibilities. Alternative
strategies include taxes on currency transactions, arms sales, and consumption of
fuels producing greenhouse gases, as well as special drawing rights in times of cri-
sis to provide emergency financing.173 Whatever the means used to implement the
right, their effectiveness will depend on sufficient funds flowing from rich to poor
countries, from contributors who are richer than beneficiaries, and from contribu-
tors who are relatively rich in their own country to beneficiaries who are relatively
poor in their country. Otherwise, transfers will end up in the hands of the rich elite
in poor countries because they contemplate the possibility that contributors might
be relatively poor people in a rich country, and beneficiaries might be relatively rich
people in a poor country.174
The right to development thus speaks to how the structure and operation of
international law participates in the production of global poverty. Despite tex-
tual ambiguities in the various instruments in which it finds expression, the right
vests in individuals and communities who have yet to benefit from development. It
imposes internal obligations on the States in which they live to address conditions
that contribute to their plight. Internal obligations are both negative and positive in
nature. A State’s negative obligations require it to not act in ways that interfere with
the exercise of the right to development. A State’s positive obligations require it to
enable its population to participate in and benefit from economic, social, cultural,
and political development.
The right to development also imposes external obligations on international
legal actors—including developed States and international organizations—to
assist developing States in poverty reduction. The external obligations associated
with the right to development are also negative and positive in nature. Its negative
173
For analyses of these and other alternatives, see New Sources of Development Finance (A.B.
Atkinson ed., 2004). For a defense of a “birthright citizenship tax” that would “distribute the social ben-
efits that derive from membership in well-off polities across borders to those who are left outside for reason
other than their station of birth,” see Ayelet Shachar, The Birthright Lottery: Citizenship
and Global Inequality (2009). For a defense of redistributing the right to tax in favor of develop-
ing countries as a preferred means of international distributive justice, see Ilan Benshalom, How to
Redistribute? A Critical Examination of Mechanisms to Promote Global Wealth Redistribution, 63 U.
Toronto L.J. 317 (2014).
174
Milanovic, supra note 3, at 14–15.
dimensions require States and international institutions to fashion rules and poli-
cies governing the global economy that do not exacerbate global poverty. Its posi-
tive dimensions require States and international institutions to provide assistance to
developing States in the form of development aid and debt relief.
This account of the right to development both draws on and departs from con-
ceptions of international distributive justice in contemporary international political
theory. It adopts a narrower focus than such conceptions by attending to the effects
of how and when international law distinguishes between valid and invalid claims
of sovereign power. It works with the existing international legal order, including
its commitment to sovereignty. It treats sovereignty as a good that international law
distributes among a variety of legal actors for reasons that relate to the nature of sov-
ereignty itself, including the fact that it protects associative relationships in political
communities. Yet legal norms that instantiate international law’s commitment to
sovereignty also participate in the production and reproduction of global poverty.
On the account offered here, the right to development serves as a legal instrument
to mitigate some of the adverse distributional consequences produced by these legal
norms. In doing so, it—like all human rights in international law—seeks to do jus-
tice in an international legal order that protects, by its foundational commitment to
State sovereignty, a plurality of political communities and the multiple associative
ties and obligations that they engender.
Bibliography
Abi-Saab, Georges, “The Legal Formulation of a Right to Development,” in Rene-Jean Dupuy,

ed., The Right to Development at the International Level (Alphen aan den Rijn: Sithoff and
Noordhoff, 1980), 159–75
Abizadeh, Arash, “Cooperation, Persuasive Impact, and Coercion: On the Scope (not Site) of
Distributive Justice,” 35 Philosophy & Public Affairs 318 (2007)
Abraham, Filip, Konings, Jozef & Vanormelinger, Stijn, “The Effect of Globalization on Union
Bargaining and Price-Cost Margins of Firms,” 145 Review of World Economics 13 (2009)
Ackerly, Brooke A., Universal Human Rights in a World of Difference (Cambridge: Cambridge
University Press, 2008)
Adams, Roy J., Industrial Relations Under Liberal Democracy: North America in Comparative
Perspective (Columbia: University of South Carolina Press, 1995)
Åkermark, Sia Spiliopoulou, “The Limits of Pluralism—Recent Jurisprudence of the European
Court of Human Rights with Regard to Minorities: Does the Prohibition of Discrimination
Add Anything?,” 3 J. Ethnopolitics & Minority Issues in Europe 1 (2002)
Allen, Stephen, “The UN Declaration on the Rights of Indigenous Peoples: Towards a Global
Legal Order on Indigenous Rights?,” in Andrew Halpern & Volker Roebens, eds., Theorizing
the Global Legal Order (Oxford: Hart Publishing, 2009), 187–208
Alston, Philip, “Does the Past Matter? On the Origins of Human Rights,” 126 Harvard Law
Review 2043 (2013)
——— , “Ships Passing in the Night: The Current State of the Human Rights and Development
Debate Seen Through the Lens of the Millennium Development Goals,” 27 Human Rights
Quarterly 755 (2005)
———, “ ‘Core Labour Standards’ and the Transformation of the International Labour Rights
Regime,” 13 European Journal of International Law 457 (2004)
225
226 Bibliography
——— , “Conjuring Up New Human Rights: A Proposal for Quality Control,” 78 American
Journal of International Law 607 (1984)
———, “A Third Generation of Solidarity Rights: Progressive Development or Obfuscation
of International Human Rights Law?,” 29 Netherlands International Law Review
307 (1982)
——— , “Development and the Rule of Law: Prevention versus Cure as a Human Rights
Strategy,” in International Commission of Jurists, ed., Development, Human Rights and the
Rule of Law (Conference Report, Apr. 27–May 1, 1981)
——— & Heenan, James, “The Role of International Labor Standards within the Trade
Debate: The Need to Return to Fundamentals” (European University Institute Discussion
Paper: 23 May, 2002)
——— & Crawford, James, eds., The Future of UN Human Rights Treaty Monitoring
(Cambridge: Cambridge University Press, 2000)
——— & Quinn, Gerard, “The Nature and Scope of States Parties’ Obligations under the
International Covenant on Economic, Social, and Cultural Rights,” 9 Human Rights
Alvarez, José, “Hegemonic International Law Revisited,” 97 American Journal of International
Law 873 (2003)
Anaya, S. James, Indigenous Peoples in International Law, 2d ed. (New York: Oxford University
Press, 2004)
Anderson, Elizabeth, “What Is the Point of Equality?,” 109 Ethics 287 (1999)
Anderson, Kenneth, “The Rise of International Criminal Law: Intended and Unintended
Consequences,” 20 European Journal of International Law 331 (2009)
Andreassen, Bård Anders & Marks, Stephen P., eds., Development as a Human Right: Legal,
Political and Economic Dimensions (Cambridge: Harvard University Press, 2006)
Anghie, Antony, Imperialism, Sovereignty and the Making of International Law
Appleton, Arthur E., “The World Trade Organization: Implications for Human Rights and
Democracy,” 19 Thesaurus Acroasium 415 (1998)
Armstrong, Chris, “Coercion, Reciprocity and Equality beyond the State,” 40 Journal of Social
Philosophy 297 (2009)
Atkinson, A.B., ed., New Sources of Development Finance (New York: Oxford University
Press, 2004)
Aukerman, Miriam J., “Definitions and Justifications: Minority and Indigenous Rights in a
Central/Eastern European Context,” 22 Human Rights Quarterly 1011 (2000)
Austin, John L., The Province of Jurisprudence Determined, Wilfred E. Rumble ed.,
Azcárate, Pablo de, “Protection of Minorities and Human Rights,” 246 Annals of the American
Academy of Political and Social Science 124 (1946)
Barry, Brian, Culture and Equality: An Egalitarian Critique of Multiculturalism (Cambridge:
Polity Press, 2000)
———, Liberty and Justice: Essays in Political Theory (Oxford: Oxford University Press, 1991)
——— , “Do Countries Have Moral Obligations: The Case of World Poverty,” in Sterling
McMurrin, ed., The Tanner Lectures on Human Values, vol. II (Salt Lake City: University of
Utah Press, 1981)
Bibliography 227
Barsh, Russel Lawrence, “The Right to Development as a Human Right: Results of the Global
Consultation,” 13 Human Rights Quarterly 322 (1991)
———, “Revision of ILO Convention No. 107,” 81 The American Journal of International Law
756 (1987)
Barth, William K., “Cultural Rights: A Necessary Corrective to the Nation State,” in F. Francioni
& M. Scheinin, eds., Cultural Human Rights (Leiden: Martinus Nijhoff, 2008), 79–90
Bauböck, Rainer, “Paradoxes of Self-Determination and the Right to Self-Government,” in
András Sajó, ed., Global Justice and the Bulwarks of Localism (Leiden: Brill, 2005), 100–27
Baynes, Kenneth, “Toward a Political Conception of Human Rights,” 35 Philosophy & Social
Criticism 371 (2009)
Beatty, David M., “Labour is not a Commodity,” in B. Reiter & J. Swan, eds., Studies in Contract
Law (Toronto: Butterworths, 1980), 318–26
Beaulac, Stéphane, “The Westphalian Legal Orthodoxy—Myth or Reality?,” 2 Journal of the
History of International Law 148 (2000)
Bedjaoui, Mohammed, “The Right to Development,” in M. Bedjaoui, ed., International
Law: Achievements and Prospects (Dordrecht: Martinus Nijhoff, 1991)
Beitz, Charles, The Idea of Human Rights (Oxford: Oxford University Press, 2009)
——— , “Human Rights and the Law of Peoples,” in D.K. Chatterjee, ed., The Ethics of
Assistance: Morality and the Distant Needy (Cambridge: Cambridge University Press, 2004),
193–214
———, Political Theory and International Relations, 2d ed. (Princeton: Princeton University
Press, 1999)
Bellace, Janice R., “The ILO Declaration of Fundamental Principles and Rights at Work,” 17
International Journal of Comparative Labour Law and Industrial Relations 269 (2001)
Bellamy, Richard, “Sovereignty, Post-Sovereignty, Pre-Sovereignty: Three Models of the State,
Democracy and Rights within the EU,” in Neil Walker, ed., Sovereignty in Transition
(Oxford: Hart, 2003)
Benedict, Ruth, Patterns of Culture (Boston: Houghton Mifflin, 1934)
Benhabib, Seyla, The Rights of Others: Aliens, Residents and Citizens (Cambridge: Cambridge
Benshalom, Ilan, “How to Redistribute? A Critical Examination of Mechanisms to Promote
Global Wealth Redistribution,” 63 University of Toledo Law Journal 317 (2014)
Berman, Nathaniel, “But the Alternative is Despair: European Nationalism and the Modernist
Renewal of International Law,” 106 Harvard Law Review 1792 (1993)
Bianchi, Andrea, “Textual Interpretation and (International) Law Reading; The Myth of (in)
Determinacy and the Genealogy of Meaning,” in P. Bekker, ed., Making Transnational Law
Work in the Global Economy—Essays in Honour of Detlev Vagts (Cambridge: Cambridge
Bilder, Richard, “Rethinking International Human Rights: Some Basic Questions,” Wisconsin
Law Review 171 (1969)
Blake, Michael, “Distributive Justice, State Coercion, and Autonomy,” 30 Philosophy and Public
Affairs 257 (2001)
Bloed, Arie & Dijk, Pieter van, eds., Protection of Minority Rights Through Bilateral Treaties: The
Case of Central and Eastern Europe (The Hague: Kluwer, 1999)
Bodin, Jean, Les Six Livres de la République (Paris: Librairie Générale Français, 1999)
228 Bibliography
Borchard, Edwin, “Recognition and Non-Recognition,” 36 American Journal of International
Law 108 (1942)
Bradley, Curtis A. & Kelley, Judith G., “The Concept of International Delegation,” 71 Law and
Contemporary Problems 1 (2008)
Breau, Susan, “The Impact of the Responsibility to Protect on Peacekeeping,” 11 Journal of
Conflict and Security Law 429 (2006)
Brierly, J.L., The Law of Nations: An Introduction to the International Law of Peace, 4th ed.
(Oxford: Clarendon Press, 1949)
Briggs, Herbert W., “Recognition of States, Some Reflections on Doctrine and Practice,” 43
American Journal of International Law 113 (1949)
Brown, Philip Marshall, “The Effects of Recognition,” 36 American Journal of International
Law 106 (1942)
———, “From Sèvres to Lausanne,” 18 American Journal of International Law 113 (1923)
Brownlie, Ian, Principles of Public International Law, 5th ed. (Oxford: Clarendon Press, 1998)
Brusis, Martin, “The European Union and Interethnic Power-Sharing Arrangements in
Accession Countries,” 1 Journal of Ethnopolitics & Minority Issues in Europe (2003)
Buchanan, Allen, The Heart of Human Rights (Oxford: Oxford University Press, 2013)
——— , Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law
(Oxford: Oxford University Press, 2004)
Bull, Hedley, Justice in International Relations: The 1983–1984 Lectures (Waterloo: University of
Waterloo Press, 1984)
Burke, Roland, Decolonization and the Evolution of International Human Rights
(Philadelphia: University of Pennsylvania Press, 2010)
Caflisch, Lucius, “The Law of State Succession: Theoretical Observations,” 10 Netherlands
International Law Review 337 (1963)
Calderwood, Howard B., “The Proposed Generalization of the Minorities Regime,” 26
American Political Science Review 1088 (1934)
Çali, Başak, “On Legal Cosmopolitanism: Divergences in Political Theory and International
Law,” 19 Leiden Journal of International Law 1149 (2006)
Callahan, Michael D., A Sacred Trust: The League of Nations and Africa, 1929–1946
(Brighton: Sussex Academic Press, 2004)
Caney, Simon, Justice Beyond Borders: A Global Political Theory (Oxford: Oxford University
Press, 2005)
Carens, Joseph, The Ethics of Immigration (Oxford: Oxford University Press, 2013)
——— , “Aliens and Citizens: The Case for Open Borders,” in R. Beiner, ed., Theorizing
Citizenship (Albany: SUNY Press, 1995), 229–55
Carty, Antony, “Convergences and Divergences in European International Law Traditions,” 11
European Journal of International Law 713 (2000)
Cassese, Antonio, International Law (Oxford: Oxford University Press, 2001)
———, Self-Determination of Peoples: A Legal Reappraisal (Cambridge: Cambridge University
Press, 1995)
Castells, Manuel, The Information Age, vol. 1: The Rise of the Network Society (Oxford:
Blackwell, 1996)
Ĉelik, Ayşe Betûl, “Transnationalization of Human Rights Norms and Its Impact on Internally
Displaced Kurds,” 27 Human Rights Quarterly 969 (2005)
Bibliography 229
Charlesworth, H.C.M., “Customary International Law and the Nicaragua Case,” 11 Australian
Yearbook of International Law 1 (1984–1987)
Charney, Jonathan, “Customary International Law in the Nicaragua Case Judgment on the
Merits,” 1 Hague Yearbook of International Law 16 (1988)
———, “The Persistent Objector Rule and the Development of Customary International Law,”
56 British Yearbook of International Law 1 (1986)
Charnovitz, Steve, “The Influence of International Labour Standards on the World Trading
Regime: A Historical Overview,” 126 International Labour Review 565 (1987)
Chen, Shaohua & Ravallion, Martin, “Absolute Poverty Measures for the Developing World,
1981–2004,” 104/43 Proceedings of the National Academy of Sciences of the United States of
America 16757 (2007)
Chen, Ti-Chiang, The International Law of Recognition, L.C. Green, ed. (New York: Frederick
A. Praeger, 1951)
Cholewinski, Ryszard, “State Duty towards Ethnic Minorities: Positive or Negative?,” 10
Human Rights Quarterly 344 (1998)
Choudhry, Sujit, ed., The Migration of Constitutional Ideas (Cambridge: Cambridge University
Press, 2006)
Circovic, Elena, “An Analysis of the ICJ Advisory Opinion on Kosovo’s Unilateral Declaration
of Independence,” 11 German Law Journal 895 (2010)
Cogan, Jacob Katz, “The Regulatory Turn in International Law,” 52 Harvard International Law
Journal 321 (2011)
Cohen, G.A., If You’re an Egalitarian, How Come You’re So Rich? (Cambridge: Harvard
Cohen, Jean L., Globalization and Sovereignty: Rethinking Legality, Legitimacy, and
Constitutionalism (Cambridge: Cambridge University Press, 2012)
Cohen, Joshua, “Is There a Human Right to Democracy?,” in Christine Sypnowich, ed., The
Egalitarian Conscience: Essays in Honour of G.A. Cohen (Oxford: Oxford University Press,
2006), 226–50
——— , “Minimalism about Human Rights: The Most We Can Hope For?,” 12 Journal of
Political Philosophy 190 (2004)
——— & Sabel, Charles, “Extra Rempublicam Nulla Justitia?,” 34 Philosophy and Public Affairs
147 (2006)
Cohrs, Patrick O., The Unfinished Peace after World War I: America, Britain and the Stabilisation
of Europe, 1919–1932 (Cambridge: Cambridge University Press, 2008)
Collins, Hugh, “Theories of Rights as Justifications for Labour Law,” in Guy Davidov & Brian
Langille, eds., The Idea of Labour Law (Oxford: Oxford University Press, 2011), 138–55
Compa, Lance, “Promise and Peril: Core Labor Rights in Global Trade and Investment,” in
George Andreopoulos, ed., International Human Rights: A half Century after the Universal
Declaration (New York: Peter Lang Publishing, 2002)
Conte, Alex, “Security of the Person,” in Alex Conte, Scott Davidson & Richard Burchill, eds.,
Defining Civil and Political Rights: The Jurisprudence of the United Nations Human Rights
Committee (Aldershot: Ashgate, 2004), 85–166
Copenhagen Declaration on Social Development, in Report of the UN World Summit for Social
Development, UN Doc. A/CONF166/9 (New York: United Nations, 1995)
230 Bibliography
Corntassel, Jeff J., “Who Is Indigenous? ‘Peoplehood’ and Ethnonationalist Approaches to
Rearticulating Indigenous Identity,” 9 Nationalism & Ethnic Politics 75 (2003)
Cox, Robert W., “ILO: Limited Monarchy,” in Robert W. Cox & Harold K. Jackson et al., eds.,
The Anatomy of Influence: Decision Making in International Organization (New Haven: Yale
University Press, 1973), 102–38
Crawford, James, ed., Brownlie’s Principles of Public International Law, 8th ed. (Oxford:
Clarendon Press, 2012)
———, The Creation of States in International Law, 2d ed. (Oxford: Oxford University
Press, 2006)
———, “The Right of Self-Determination in International Law: Its Development and Future,”
in P. Alston, ed., Peoples’ Rights (Oxford: Oxford University Press, 2001), 10–67
———, “The UN Human Rights Treaty System: A System in Crisis?” in Philip Alston & James
Crawford, eds., The Future of UN Human Rights Treaty Monitoring (Cambridge: Cambridge
Criddle, Evan & Fox-Decent, Evan, International Law’s Fiduciary Constitution of Sovereignty
(New York: Oxford University Press, forthcoming)
Crouch, Colin, “The Globalized Economy: An End to the Age of Industrial Citizenship?,” in
Tom Wilthagen, ed., Advancing Theory in Labour Law and Industrial Relations in a Global
Context (North-Holland: Royal Netherlands Academy of Arts and Science, 1998), 151–64
Crowe, Sybil E., The Berlin West African Conference, 1884–1885 (London: Longmans, 1942)
Daes, Erica-Irene A., Chairperson-Rapporteur, Standard-Setting Activities: Evolution of
Standards Concerning the Rights of Indigenous People (Working Paper, E/CN.4/Sub.2/
AC.4/1996/2), para. 22)
Davies, Anne, “Should the EU Have the Power to Set Minimum Standards for Collective
Labour Rights in the Member States?,” in Philip Alston, ed., Labour Rights as Human Rights
(Oxford: Oxford University Press, 2005), 177–213
Davies, Paul & Freedland, Mark, eds., Kahn-Freund’s Labour and the Law, 3d ed. (Sydney: Law
Book, 1983)
de Varennes, Fernand, “Using the European Court of Human Rights to Protect the Rights of
Minorities,” in Council of Europe, ed., Mechanisms for the Implementation of Minority Rights
(Strasbourg: Council of Europe Publishing, 2004), 83–108
de Vita, Álvaro, “Inequality and Poverty in Global Perspective,” in Thomas Pogge, ed., Freedom
from Poverty as a Human Right (Oxford: Oxford University Press, 2007)
de Wet, Erica, “Labor Standards in the Globalized Economy: The Inclusion of a Social Clause in
the General Agreement on Tariffs and Trade/World Trade Organization,” 17 Human Rights
De Witte, Bruno, “Sovereignty and European Integration: The Weight of Legal Tradition,” in
Anne Marie Slaughter, Alec Stone Sweet, & Joseph H. Weiler, eds., The European Courts and
National Courts: Doctrine and Jurisprudence (Oxford: Hart, 1998)
Deakin, Simon, “Social Rights in a Globalized Economy,” in Philip Alston, ed., Labour Rights
as Human Rights (Oxford: Oxford University Press, 2005), 25–60
——— & Wilkinson, Frank, The Law of the Labour Market: Industrialization, Employment,
and Legal Evolution (Oxford: Oxford University Press, 2005)
Deng, Francis, Sovereignty as Responsibility: Conflict Management in Africa (Washington,
D.C.: Brookings, 1996)
Bibliography 231
Dinstein, Yoram, “Freedom of Religion and the Protection of Religious Minorities,” 20 Israel
Yearbook on Human Rights 155 (1990)
Donnelly, Jack, Universal Human Rights in Theory and Practice, 2d ed., (Ithaca: Cornell
———, “In Search of the Unicorn: The Jurisprudence and Politics of the Right to Development,”
15 California Western International Law Journal 473 (1985)
Donoho, Douglas Lee, “Relativism Versus Universalism in Human Rights: The Search for
Meaningful Standards,” 27 Stanford Journal of International Law 345 (1991)
Dumont, Michel, Rayp, Glenn & Williemé, Peter, “Ménage-à-Trois in a Globalizing
World: Bargaining between Firms, Low-Skilled and High Skilled Workers” (Working Paper
2010/687: University of Ghent)
Dunn, Isabella D., “The Right to Development: Implications for International Economic Law,”
15 American University International Law Review 1425 (2000)
Dworkin, Ronald, Justice in Robes (Cambridge: Harvard University Press, 2006)
———, Sovereign Virtue (Cambridge: Cambridge University Press, 2000)
Eide, Asbjørn, “Economic, Social and Cultural Rights as Human Rights,” in Asbjørn Eide,
Catarina Krause, & Allan Rosas, eds., Economic, Social, and Cultural Rights: A Textbook
(Dordrecht: M. Nijhoff, 1995), 9–36
Emerson, Rupert, “Colonialism, Political Development, and the UN,” 19 International
Organization 484 (1965)
Engle, Karen, “On Fragile Architecture: The UN Declaration on the Rights of Indigenous
Peoples in the Context of Human Rights,” 22 European Journal of International Law
141 (2011)
Evans, Gareth & Sahnoun, Mohamed, “The Responsibility to Protect,” 81(6) Foreign Affairs 99
(Nov./Dec. 2002)
Fabre, Cécile, Social Rights and the Constitution: Government and the Decent Life (Oxford:
Oxford University Press, 2004)
Fassbender, Bruno, “Sovereignty and Cosmopolitanism in International Law,” in Neil
Walker, ed., Sovereignty in Transition: Essays in European Law (Oxford: Hart Publishing,
2003), 115–44
Ferreira, Francisco H.G. & Ravallion, Martin, “Global Poverty and Inequality: A Review of the
Evidence,” World Bank Policy Research Working Paper 4623 (2008)
Fields, Gary, “International Labour Standards and Economic Interdependence,” 49 Industrial
and Labor Relations Review 571 (1996)
Finbow, Robert, The Limits of Regionalism: NAFTA’s Labour Accord (Aldershot: Ashgate, 2006)
Fitzmaurice, G.G., “The Law and Procedure of the International Court of Justice: Treaty
Interpretation and Certain Other Treaty Points,” 28 British Yearbook of International Law
1 (1951)
Flanagan, Robert J., “Labor Standards and International Competitive Advantage,” in Robert
J. Flanagan & William B. Gould, eds., International Labor Standards: Globalization, Trade
and Public Policy (Stanford: Stanford University Press, 2003), 15–60
Follows, John, Antecedents of the International Labour Organization (Oxford: Oxford
Franck, Thomas, “The Emerging Right to Democratic Governance,” 86 American Journal of
International Law 46 (1992)
232 Bibliography
Frankena, William K., Ethics (Englewood Cliffs: Prentice-Hall, 1973)
Fredman, Sandra, Human Rights Transformed: Positive Rights and Positive Duties (Oxford:
Freeman, R.B. & Medoff, J.L., What Do Unions Do? (New York: Basic Books, 1984)
Fudge, Judy, “The New Discourse of Labor Rights: From Social to Fundamental Rights?,” 29
Comparative Labor Law & Policy Journal 29 (2007–2008)
Gai, Yash, “Whose Human Right to Development?,” Human Rights Unit Occasional Paper,
5–6 (Commonwealth Secretariat, Nov. 1989)
Gana, Ruth L., “Which ‘Self ’? Race and Gender in the Right to Self-Determination as a
Prerequisite to the Right to Development,” 14 Wisconsin International Law Journal 133 (1995)
Gewirth, Alan, Human Rights (Chicago: University of Chicago Press, 1982)
Gilabert, Pablo, “Humanist and Political Perspectives on Human Rights,” 39 Political Theory
439 (2011)
Gilbert, Geoff, “The Council of Europe and Minority Rights,” 18 Human Rights Quarterly
160 (1996)
Gilbert, Jérémy, “Indigenous Rights in the Making: The United Nations Declaration on
the Rights of Indigenous Peoples,” 14 International Journal of Minority & Group Rights
207 (2007)
Glanville, Luke, Sovereignty & the Responsibility to Protect: A New History (Chicago: University
of Chicago Press, 2014)
Glendon, Mary Ann, A World Made New: Eleanor Roosevelt and the Universal Declaration of
Human Rights (New York: Random House, 2002)
Goldsmith, Jack L. & Posner, Eric A., The Limits of International Law (New York: Oxford
Goodin, Robert, “What Is so Special About our Fellow Countrymen?,” 98 Ethics 663 (1988)
Griffin, James, On Human Rights (Oxford: Oxford University Press, 2008)
Gutmann, Amy, ed., Freedom of Association (Princeton: Princeton University Press, 1998)
Haas, Ernest B., Beyond the Nation-State: Functionalism and International Organization
(Stanford: Stanford University Press, 1964)
Hadden, Tom, “The United Nations Working Group on Minorities,” 14 International Journal
of Minority & Group Rights 285 (2007)
Hall, William C., A Treatise on International Law, 8th ed. (Oxford: Clarendon Press, 1924)
Halperin, Morton H. & Scheffer, David, Self-Determination in the New World Order
(Washington, D.C.: Carnegie Endowment for International Peace, 1992)
Hannum, Hurst, “Rethinking Self-Determination,” 34 Virginia Journal of International Law
1 (1993)
Haquani, Zalmai, “Le droit au developpement: fondements et sources,” in R.-J. Dupuy, ed.,
Le Droit du Developpement au Plan International (Academie de Droit International de la
Haye: Colloque, 1979)
Harhoff, Frederik, “Institutions of Autonomy,” 55 Nordic Journal of International Law 31 (1986)
Harman, Gilbert, “Moral Relativism,” in G. Harman & J.J. Thompson, eds., Moral Relativism
and Moral Objectivity (Cambridge: Blackwell, 1996)
Hart, H.L.A., The Concept of Law (Oxford: Oxford University Press, 1961)
Hart, H.L.A., “Kelsen’s Doctrine of the Unity of Law,” in Essays on Jurisprudence and Philosophy
(Oxford: Oxford University Press, 1983), 309–43
Bibliography 233
———, “Are There any Natural Rights?,” 64 Philosophical Review 175 (1955)
Harvey, David, The Condition of Post-Modernity: An Inquiry Into the Origins of Cultural Change
(Oxford: Basil Blackwell, 1989)
Headley, John M., The Europeanization of the World (Princeton: Princeton University
Press, 2008)
Helper, Susan, MacDuffie, John Paul & Sabel, Charles, “Pragmatic Collaborations: Advancing
Knowledge While Controlling Opportunism,” 9 Industrial and Corporate Change
443 (2000)
Henkin, Louis, “International Law: Politics, Values and Functions,” 216 Collected Courses of the
Hague Academy of International Law 13 (vol. 4, 1989)
———, “The United Nations and Human Rights,” 19 International Organization 504 (1965)
Hepple, Bob, Labour Laws and Global Trade (Oxford: Hart Publishing, 2004)
——— , “New Approaches to International Labour Regulation,” 26 Industrial Law Journal
353 (1998)
Higgins, Rosalyn, The Development of International Law Through the Political Organs of the
United Nations (Oxford: Oxford University Press, 1963)
Hilpold, Peter, “The League of Nations and the Protection of Minorities—Rediscovering a
Great Experiment,” 17 Max Planck Yearbook of United Nations Law 87 (2013)
——— , “UN Standard-Setting in the Field of Minority Rights,” 14 International Journal on
Minority and Group Rights 181 (2007)
Hobbes, Thomas, Leviathan, R. Tuck, ed. (Cambridge: Cambridge University Press, 1999)
Hobsbawm, Eric, Nations and Nationalism Since 1780 (Cambridge: Cambridge University
Press, 1990)
Hoffman, Rainer, “Protecting the Rights of National Minorities in Europe,” 44 German
Yearbook of International Law 237 (2001)
Hoffmann, Stefan-Ludwig, “Introduction,” in S.-L. Hoffmann, ed., Human Rights in the
Twentieth Century (Cambridge: Cambridge University Press, 2010)
Hohfeld, Wesley, Fundamental Legal Conceptions (New Haven: Yale University Press, 1919)
Holmes, Stephen & Sunstein, Cass R., The Cost of Rights: Why Liberty Depends on Taxes
(New York: W.W. Norton, 1999)
Howard, Rhoda, “The Full-Belly Thesis: Should Economic Rights Take Priority over Civil and
Political Rights? Evidence from Sub-Saharan Africa,” 5 Human Rights Quarterly 467 (1983)
Howse, Robert, “Mainstreaming the Right to Development into International Trade Law and
Policy at the World Health Organization,” UN Doc. E/CN.4/Sub.2/2004/17
——— , “The World Trade Organization and the Protection of Workers’ Rights,” 3 Journal of
Small & Emerging Business Law 131 (1999)
Huberman, Michael, “International Labor Standards and Market Integration before 1913: A
Race to the Top?” (unpublished conference paper)
Hunt, Lynn, Inventing Human Rights (New York: W.W. Norton, 2007)
Hyde, Charles C., International Law Chiefly as Interpreted and Applied by the United States
(Boston: Little Brown, 1922)
Ignatieff, Michael, Human Rights as Politics and Idolatry (Princeton: Princeton University
Press, 2001)
International Labour Organization, Social Dimensions of Free Trade Agreements (Geneva:
ILO, 2013)
234 Bibliography
———, Freedom of Association in Practice: Lessons Learned (Geneva: ILO, 2008)
——— , Report of the Committee of Experts on the Application of Conventions and
Recommendations: General Report and Observations concerning Particular Countries
(International Labour Conference, 86th Session, Geneva: ILO, 1998).
Jackson, Robert H., Quasi-States: Sovereignty, International Relations, and the Third World
Jhabvala, Farrokh, “The Soviet-Bloc’s View of the Implementation of Human Rights Accords,”
7 Human Rights Quarterly 461 (1985)
Julius, A.J., “Nagel’s Atlas,” 34 Philosophy & Public Affairs 176 (2006)
Jung, Courtney, The Moral Force of Indigenous Politics (Cambridge: Cambridge University
Press, 2008)
———, “Why Liberals Should Value ‘Identity Politics,’ ” 135 Daedalus 32 (2006)
———, Hirschl, Ran & Rosevear, Evan, “Economic and Social Rights in National Constitutions,”
62 American Journal of Comparative Law (2014)
Kahn, Paul, The Cultural Study of Law: Reconstructing Legal Scholarship (Chicago: University
of Chicago Press, 1999)
Kahn-Freund, Otto, “A Note on Status and Contract in British Labour Law,” 30 Modern Law
Review 635 (1967)
Kalmo, Hent & Skinner, Quentin, eds., Sovereignty in Fragments: The Past, Present and Future
of a Contested Concept (Cambridge: Cambridge University Press, 2011)
Kant, Immanuel, The Metaphysics of Morals, trans. and ed. Mary Gregor in Practical Philosophy
Karp, David Jason, “The Location of International Practices: What Is Human Rights Practice?,”
39 Review of International Studies 969 (2013)
Kellerson, Hilary, “The ILO Declaration of 1998 on Fundamental Principles and
Rights: A Challenge for the Future,” 137 International Labour Review 223 (1998)
Kelsen, Hans, Pure Theory of Law, trans. Max Knight, 2d ed. (Clark, NJ: Lawbook
Exchange, 2005)
———, “On the Essence and Value of Democracy,” in Arthur J. Jacobson & Bernard Schlink, eds.,
Weimar: A Jurisprudence of Crisis (Berkeley: University of California Press, 2000), 84–109
——— , General Theory of Law and State, trans. Anders Wedberg (Clark, NJ: Lawbook
Exchange, 1999)
———, Introduction to Problems of Legal Theory, trans. Bonnie Litschewski Paulson & Stanley
L. Paulson (Oxford: Oxford University Press, 1992)
———, “The Principle of the Sovereign Equality of States as a Basis for International
Organization,” 53 Yale Law Journal 207 (1944)
——— , “Recognition in International Law: Theoretical Observations,” 35 American Journal of
Kindred, Hugh M. & Saunders, Phillip M., eds., International Law: Chiefly as Interpreted and
Applied in Canada, 7th ed. (Toronto: Emond Montgomery, 2006)
Kingsbury, Benedict, “Legal Positivism as Normative Politics: International Society, Balance
of Power and Lassa Oppenheim’s Positive International Law,” 13 European Journal of
Bibliography 235
———, “Reconciling Five Competing Conceptual Structures of Indigenous Peoples’ Claims in
International and Comparative Law,” 34 New York University Journal of International Law
and Politics 189 (2001–2002)
———, “Restructuring Self-Determination: A Relational Approach,” in Pekka Aikio & Martin
Scheinin, eds., Operationalizing the Right of Indigenous Peoples to Self-Determination
(Turku: Åbo Akademi, 2000), 19–38
——— , “ ‘Indigenous Peoples’ in International Law: A Constructivist Approach to the Asian
Controversy,” 92 American Journal of International Law 414 (1998)
———, “Sovereignty and Inequality,” 9 European Journal of International Law 559 (1998)
Kirgis, Jr., Frederic, “The Degrees of Self-Determination in the United Nations Era,” 88
Klabbers, Jan, et al., The Constitutionalization of International Law (Oxford: Oxford University
Press, 2009)
Klare, Karl E., “Workplace Democracy & Market Reconstruction: An Agenda for Legal
Reform,” 38 Catholic University Law Review 1 (1988–1989)
Knop, Karen, Diversity and Self-Determination in International Law (Cambridge: Cambridge
——— , “Here and There: International Law in Domestic Courts,” 32 New York University
Journal of International Law & Politics 501 (2000)
Kolben, Kevin, “Labor Rights as Human Rights?,” 50 Virginia Journal of International Law
449 (2010)
Kolko, Gabriel, The Triumph of Conservatism (New York: The Free Press, 1963)
Komesar, Neil, Imperfect Alternatives: Choosing Institutions in Law, Economics, and Public
Policy (Chicago: University of Chicago Press, 1994)
Kooijmans, P.H., “Human Rights—Universal Panacea? Some Reflections on the So-Called
Human Rights of the Third Generation,” 37 Netherlands International Law Review 315 (1990)
Koskenniemi, Martti, From Apology to Utopia: The Structure of International Legal Argument,
2d ed. (Cambridge: Cambridge University Press, 2006)
——— , The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960
——— , “National Self-Determination Today: Problems of Legal Theory and Practice,” 43
International & Comparative Law Quarterly 241 (1994)
Kostakopoulou, Dora, “Floating Sovereignty: A Pathology or Necessary Means of State
Evolution?,” 22 Oxford Journal of Legal Studies 135 (2002)
Krasner, Stephen D., Sovereignty: Organized Hypocrisy (Princeton: Princeton University
Press, 1999)
——— & Froats, Daniel, “Minority Rights and the Westphalian Model,” in D. Lake & D.
Rothchild, eds., The International Spread of Ethnic Conflict: Fear, Diffusion, and Escalation
(Princeton: Princeton University Press, 1998), 227–50
Kumm, Mattias, “Global Constitutionalism and the Cosmopolitan State: An Integrated
Conception of Public Law,” 20 Indiana Journal of Global Legal Studies 605 (2013)
Kunz, Josef L., “Critical Remarks on Lauterpacht’s ‘Recognition in International Law,’ ” 44
236 Bibliography
Kymlicka, Will, “The Internationalization of Minority Rights,” 6 International Journal of
Constitutional Law 1 (2008)
——— , Multicultural Odysseys: Navigating the New International Politics of Diversity
(Oxford: Oxford University Press, 2007)
——— , Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford: Oxford
Langille, Brian, “What Is International Labor Law For?,” 3 Law & Ethics of Human Rights
47 (2009)
——— , “Core Labour Rights—The True Story,” 16 European Journal of International Law
409 (2005)
Langlois, Anthony J., The Politics of Justice and Human Rights: Southeast Asia and Universalist
Theory (Cambridge: Cambridge University Press, 2001)
Lauterpacht, Hersch, Recognition in International Law (Cambridge: Cambridge University
Press, 1948)
Lee, Eddie, “Globalization and Labour Standards: A Review of the Issues,” 136 International
Labour Review 173 (1997)
Leibenberg, Sandra, Socio-Economic Rights: Adjudication under a Transformative Constitution
(Claremont: Juta & Co., 2010)
Levy, Jacob T., The Multiculturalism of Fear (Oxford: Oxford University Press, 2000)
Linden, Ronald H., ed., Norms and Nannies: The Impact of International Organizations on the
Central and East European States (Lanham, Md.: Rowman & Littlefield, 2002)
Lukes, Steven, Moral Relativism (New York: Picador, 2008)
Macklem, Patrick, “Militant Democracy, Legal Pluralism, and the Paradox of
Self-Determination,” 4 International Journal of Constitutional Law 488 (2006)
Makkonen, Timo, “Minorities’ Rights to Maintain and Develop Their Culture,” in F. Francioni
& M. Scheinin, eds., Cultural Human Rights (Leiden: Martinus Nijhoff, 2008), 193–206
Maritain, Jacques, “Introduction,” in UNESCO, ed., Human Rights: Comments and
Interpretations (London: Allan Wingate, 1949)
Marks, Stephen, “The Human Right to Development: Between Rhetoric and Reality,” 17
Harvard Human Rights Law Journal 137 (2004)
Marshall, T.H., “Citizenship and Social Class,” reprinted in T.H. Marshall & T. Bottomore,
Citizenship and Social Class (London: Pluto Press, 1992)
Martinez, Jenny S., The Slave Trade and the Origins of International Human Rights Law
(New York: Oxford University Press, 2012)
Maul, Daniel, “The International Labour Organization and the Struggle Against Forced
Labour,” 48 Labour History 277 (2007)
Maupain, François, “New Foundation or New Façade? The ILO and the 2008 Declaration on
Social Justice for a Fair Globalization,” 20 European Journal of International Law 823 (2009)
———, “Revitalization not Retreat: The Real Potential of the 1998 ILO Declaration for the
Universal Protection of Workers’ Rights,” 16 European Journal of International Law
439 (2005)
Mazower, Mark, No Enchanted Palace: The End of Empire and the Ideological Origins of the
United Nations (Princeton: Princeton University Press, 2009)
M’Baye, Keba, “Le Droit au developpement, in R.-J. Dupuy, ed., Le Droit du Developpement au
Plan International (Academie de Droit International de la Haye: Colloque, 1979)
Bibliography 237
McCrudden, Christopher, “Human Rights, Southern Voices, and ‘Traditional Values’ at the
United Nations” (unpublished)
———, “A Common Law of Human Rights? Transnational Judicial Conversations on
Constitutional Rights,” 20 Oxford Journal of Legal Studies 499 (2000)
McCrudden, Christopher & Davies, Anne, “International Trade Law and Labour Rights,” in
M. Gehring and M. Cordonier Segger, eds., Sustainable Development in World Trade Law
(The Hague: Kluwer Law International, 2005) 107–27
Meckled-García, Saladin & Çali, Başak, “Lost in Translation: The Human Rights Ideal and
International Human Rights Law,” in Başak Çali & Saladin Meckled-García, eds., The
Legalization of Human Rights: Multi-Disciplinary Perspectives on Human Rights and Human
Rights Law (London: Routledge, 2006), 11–31
Mégret, Frédéric, “The Apology of Utopia; Some Thoughts of Koskenniemian Themes with
Particular Emphasis on Massively Institutionalized Human Rights Law,” 27 Temple
International & Comparative Law Journal 455 (2013)
——— , “A Sacred Trust of Civilization,” 1 Journal of International Law & International
Relations 305 (2005)
Meron, Theodor, “Is International Law Moving Towards Criminalization?,” 9 European Journal
of International Law 18 (1998)
Milanovic, Branko, “Global Income Inequality: What It Is And Why It Matters,” DESA
Working Paper No. 26, ST/ESAl2006IDWP/26 (August 2006)
Moellendorf, Darrel, Cosmopolitan Justice (Boulder: Westview Press, 2002)
Morgan, Edward, “The Imagery and Meaning of Self-Determination,” 20 New York University
Journal of International Law & Politics 355 (1988)
Morsink, Johannes, The Universal Declaration of Human Rights (Philadelphia: University of
Pennsylvania Press, 1999)
Moyn, Samuel, The Last Utopia: Human Rights in History (Cambridge: Harvard University
Press, 2010)
Mundlak, Guy, “The Transformative Weakness of Core Labour Rights in Changing Welfare
Regimes,” in E. Benvenisti and G. Nolte, eds., The Welfare State, Globalization, and
International Law (Springer Academic Press, 2003), 231–69
Myers, Jennifer, “Human Rights and Development: Using Advanced Technology to Promote
Human Rights in Sub-Saharan Africa,” 30 Case Western Reserve Journal of International
Law 343 (1998)
Nagel, Thomas, “The Problem of Global Justice,” 33 Philosophy & Public Affairs 113 (2005)
Nankani, Gobind, Page, John & Judge, Lindsay, “Human Rights and Poverty Reduction: Moving
Towards Convergence?,” in Philip Alston & Mary Robinson, eds., Human Rights
and Development: Towards Mutual Reinforcement (Oxford: Oxford University Press,
2005), 475–97
NATO Public Diplomacy Division, NATO Transformed (June 2004)
Nickel, James W., Making Sense of Human Rights, 2d ed. (Oxford: Blackwell, 2009)
——— , “Rethinking Indivisibility: Towards a Theory of Mutually Supporting Relations
between Human Rights,” 30 Human Rights Quarterly 985 (2008)
Nijman, Janne, “Majorities and Minorities,” in Bardo Fassbender & Anne Peters, eds., The
Oxford Handbook of the History of International Law (Oxford: Oxford University Press,
2012), 95–119
238 Bibliography
Nolan, Justine & Posner, Michael, “International Standards to Promote Labor Rights: The Role
of the United States Government,” 2 Columbia Business Law Review 529 (2000)
Novitz, Tonia, International and European Protection of the Right to Strike: A Comparative
Study of Standards Set by the International Labour Organization, the Council of Europe and
the European Union (Oxford: Oxford University Press, 2003)
Nozick, Robert, Anarchy, State, and Utopia (Oxford: Blackwell, 1974)
Nussbaum, Martha, Frontiers of Justice: Disability, Nationality, Species Membership
(Cambridge: Harvard University Press, 2006)
———, Women and Human Development: The Capabilities Approach (Cambridge: Cambridge
Öberg, Marko Divac, “The Legal Effects of Resolutions of the UN Security Council and
General Assembly in the Jurisprudence of the ICJ,” 16 European Journal of International Law
879 (2006)
O’Cinneade, Colm, “Bringing Socio-economic Rights Back within the Mainstream,” 13 Revista
Europea de Derechos Fundamentales 259 (2009)
O’Higgins, Paul, “The Interaction of the ILO, the Council of Europe and European Union
Labour Standards,” in B. Hepple, ed., Social and Labour Rights in a Global Context
(Cambridge: Cambridge University Press, 2002), 55–69
Oklopcic, Zoran, “A Farewell to Rhetorical Arms: Unravelling the Self-Determination of
Peoples,” in Andrée Boisselle, Glen Coulthard, Avigail Eisenberg & Jeremy Webber, eds.,
Recognition and Self-Determination (Vancouver: University of British Columbia Press,
2014), 101–24
O’Neill, Onara, “The Dark Side of Human Rights,” 81 International Affairs 427 (2005)
Oppenheim, Lassa, International Law: A Treatise, 2d ed. (London: Longmans, Green & Co., 1912)
Orentlicher, Diane, “Separation Anxiety: International Responses to Ethno-Separatist Claims,”
23 Yale Journal of International Law 1 (1998)
Orford, Anne, “Globalization and the Right to Development,” in Philip Alston, ed., Peoples’
Rights (Oxford: Oxford University Press, 2001), 127–84
Osiander, Andreas, “Sovereignty, International Relations, and the Westphalian Myth,” 55
International Organization 251 (2001)
Osiatynski, Wiktor, “Social and Economic Rights in a New Constitution for Poland,” in András
Sajó, ed., Western Rights? Post-Communist Application (The Hague: Kluwer, 1996), 233–72
Paz, Moira, “The Tower of Babel: Human Rights and the Paradox of Language,” 25 European
Pentasssuglia, Gaetano, “Towards a Jurisprudential Articulation of Indigenous Land Rights,”
22 European Journal of International Law 165 (2011)
———, Minority Groups and Judicial Discourse in International Law: A Comparative Perspective
(Leiden: Martinus Nijhoff, 2009)
———, Minorities in International Law (Strasbourg: ECMI, 2002)
——— , “The EU and the Protection of Minorities: The Case of Eastern Europe,” 12 European
Perraton, Jonathan et al., “The Globalization of Economic Activity,” 2 New Political Economy
257 (1997)
Peters, Anne, “Humanity as the A and Ω of Sovereignty,” 20 European Journal of International
Law 513 (2009)
Bibliography 239
——— , “Compensatory Constitutionalism: The Function and Potential of Fundamental
International Norms and Structures,” 19 Leiden Journal of International Law 579 (2006)
Philpott, Daniel, “Religious Freedom and the Undoing of the Westphalian State,” 25 Michigan
Piron, Laure-Helene, “Are ‘Development Compacts’ Required to Realise the Right to
Development?,” in The Right to Development Book: Reflections on the First Four Reports of
the Independent Expert on the Right to Development (Geneva: Franciscans International,
2004), 46–61
Pogge, Thomas, World Poverty and Human Rights (Cambridge: Polity, 2002)
———, Realizing Rawls (Ithaca: Cornell University Press, 1999)
Preece, Jennifer Jackson, National Minorities and the European Nation-States System
(Oxford: Clarendon Press, 1998)
———, “Minority Rights in Europe: From Westphalia to Helsinki,” 33 Review of International
Studies 75 (1997)
Quane, Helen, “Legal Pluralism and International Human Rights Law: Inherently
Incompatible, Mutually Reinforcing or Something in Between?,” 33 Oxford Journal of Legal
Studies 675 (2013)
Rawls, John, The Law of Peoples (Cambridge: Harvard University Press, 1999)
———, A Theory of Justice (Cambridge: Harvard University Press, 1971)
Raz, Joseph, “Human Rights without Foundations,” in Samantha Besson & John Tasioulas,
eds., The Philosophy of International Law (Oxford: Clarendon Press, 2010)
———, The Morality of Freedom (Oxford: Oxford University Press, 1988)
———, The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press, 1979)
Reisman, W. Michael, “Protecting Indigenous Rights in International Arbitration,” 89
Renteln, Alison Dundes, International Human Rights: Universalism versus Relativism
(Newbury Park: Sage Publications, 1990)
Richards, David A.J., “International Distributive Justice,” in J.R. Pennock & J.W. Chapman,
eds., Ethics, Economics, and the Law (New York: New York University Press, 1982)
Ringelheim, Julie, “Minority Rights in a Time of Multiculturalism—The Evolving Scope of
the Framework Convention on the Protection of National Minorities,” 10 Human Rights
Quarterly 99 (2010)
Ripstein, Arthur, “Kant’s Juridical Theory of Colonialism,” in Katrin Flikschuh & Lea Ypi, eds.,
Kant and Colonialism: Historical and Critical Perspectives (Oxford: Oxford University Press,
2015), 145–69
———, Force and Freedom: Kant’s Legal and Political Philosophy (Cambridge: Harvard
Risse, Mattias, On Global Justice (Princeton: Princeton University Press, 2012)
Rittich, Kerry, “Social Rights and Social Policy: Transformations on the International
Landscape,” in Daphne Barak-Erez & Aeyal M. Gross, eds., Exploring Social Rights: Between
Theory and Practice (Oxford: Hart Publishing, 2007), 107–34
——— , “The Future of Law and Development: Second Generation Reforms and the
Incorporation of the Social,” 26 Michigan Journal of International Law 199 (2004)
——— , “Core Labor Rights and Labor Market Flexibility: Two Paths Entwined?,” in
International Bureau of the Permanent Court of Arbitration, ed., Labor Law Beyond
240 Bibliography
Borders: ADR and the Internationalization of Labor Dispute Settlement (Kluwer Law, 2003),
157–208.
——— , “Feminization and Contingency: Regulating the Stakes of Work for Women,”
in Joanne Conaghan, Michael Fischl & Karl Klare, eds., Labour Law in an Era of
Globalization: Transformative Practices & Possibilities (Oxford: Oxford University Press,
2002), 117–36
Rodríguez-Piñero, Luis, Indigenous Peoples, Postcolonialism, and International Law: The ILO
Regime (1919–1989) (Oxford: Oxford University Press, 2005)
Rosas, Allan, “Internal Self-Determination,” in Christian Tomuschat, ed., The Modern Law of
Self-Determination (Dordrecht: Martinus Nijhoff, 1993), 225–52
Roth, Brad R., Sovereign Equality and Moral Disagreement: Premises of a Pluralist International
Legal Order (Oxford: Oxford University Press, 2011)
Rousseau, Jean-Jacques, The Social Contract, trans. M. Cranston (London: Penguin, 1968)
Ryan, Bernard, “The Charter and Collective Labour Law,” in T.K. Hervey & J. Kenner, eds.,
Economic and Social Rights under the EU Charter of Fundamental Rights (Oxford: Hart
Publishing, 2003), 67–90
Sabel, Charles, “Moebius-Strip Organizations and Open Labor Markets: Some Consequences
of the Reintegration of Conception and Execution in a Volatile Economy,” in Pierre Bourdieu
& James S. Coleman, eds., Social Theory for a Changing Society (Boulder: Westview Press,
1991), 23–54
———, Work and Politics: The Division of Labor in Industry (Cambridge: Cambridge University
Press, 1982)
Sajó, András, “How the Rule of Law Killed Hungarian Welfare Reform,” 5 East European
Constitutional Review 31 (1996)
Salais, Robert & Villeneuve, Robert, eds., Europe and the Politics of Capabilities (Cambridge:
Cambridge University Press, 2004)
Salomon, Margot E., “Legal Cosmopolitanism and the Normative Contribution of the Right to
Development,” in Stephen P. Marks, ed., Implementing the Right to Development: The Role of
International Law (Geneva: Friedrich-Ebert-Stiftung, 2008), 17–26
——— , Global Responsibility for Human Rights: World Poverty and the Development of
International Law (Oxford: Oxford University Press, 2007)
———, “Towards a Just Institutional Order: A Commentary on the First Session of the UN Task
Force on the Right to Development,” 23 Netherlands Quarterly of Human Rights 409 (2005)
Sangiovanni, Andrea, “Justice and the Priority of Politics to Morality,” 16 Journal of Political
Philosophy 137 (2008)
———, “Global Justice, Reciprocity, and the State,” 35 Philosophy & Public Affairs 3 (2007)
Sayer, Andrew & Walker, Richard, The New Social Economy: Reworking the Division of Labor
(Cambridge: Blackwell, 1992)
Scheffler, Samuel, Boundaries and Allegiances (New York: Oxford University Press, 2001)
Scheinin, Martin, “The Right to Enjoy a Distinct Culture: Indigenous and Competing Uses of
Land,” in Theodore S. Orlin, Allan Rosas & Martin Scheinin, eds., The Jurisprudence of Human
Rights Law: A Comparative Interpretive Approach (Turku: Abo Akademi, 2000), 159–222
Schepple, Kim, “The Migration of Anti-Constitutional Ideas: The Post-9/11 Globalization of
Public Law and the International State of Emergency,” in Sujit Choudhry, ed., The Migration
of Constitutional Ideas (Cambridge: Cambridge University Press, 2006)
Bibliography 241
Schmidt, Paul F., “Some Criticisms of Cultural Relativism,” 70 Journal of Philosophy 780 (1955)
Schmitt, Carl, Constitutional Theory, Jeffrey Seitzer, ed. (Durham: Duke University Press, 2007)
Schneiderman, David, Constitutionalizing Economic Globalization: Investment Rules and
Democracy’s Promise (Cambridge: Cambridge University Press, 2008)
Schwebel, Stephen M., “Book Review,” 75 Yale Law Journal 677 (1966)
Scott, Craig & Macklem, Patrick, “Constitutional Ropes of Sand or Justiciable Guarantees?
Social Rights in a New South African Constitution,” 141 University of Pennsylvania Law
Review 1 (1992)
Sen, Amartya, The Idea of Justice (Cambridge: Harvard University Press, 2009)
———, Development as Freedom (New York: Anchor Books, 1999)
Shachar, Ayelet, The Birthright Lottery: Citizenship and Global Inequality (Harvard: Harvard
Shue, Henry, Basic Rights, 2d ed. (Princeton: Princeton University Press, 1996)
Simmonds, A. John, Justification and Legitimacy: Essays on Rights and Obligation
Simpson, A.W. Brian, Human Rights and the End of Empire: Britain and the Genesis of the
European Convention (Oxford: Oxford University Press, 2004)
Smith, Rogers M., Stories of Peoplehood: The Politics and Morals of Political Membership
(New York: Cambridge University Press, 2003)
Spiro, Melford, “Cultural Relativism and the Future of Anthropology,” 1 Cultural Anthropology
259 (1986)
Stamatopoulou, Elsa, Cultural Rights in International Law (Leiden: Martinus Nijhoff, 2007)
Steiner, Hillel, An Essay on Rights (Oxford: Blackwell, 1994)
Sterio, Milena, The Right to Self-Determination under International Law: “Selfistans,” Secession,
and the Rule of the Great Powers (London: Routledge, 2013)
Stern, Robert M., “Labor Standards and Trade,” in Marco Bronckers & Richard Quick, eds.,
New Directions in International Economic Law: Essays in Honour of John H. Jackson (The
Hague: Kluwer Law International, 2000), 425–38
Stewart, Frances & Wang, Michael, “Poverty Reduction Strategy Papers within the Human
Rights Perspective,” in Philip Alston & Mary Robinson, eds., Human Rights and Development:
Towards Mutual Reinforcement (Oxford: Oxford University Press, 2005), 447–74
Stoltenberg, Thorvald, “Towards a World Development Strategy,” in Louis Emmerij, ed., One
World or Several (Paris: OECD, 1989)
Su, Anna, “Woodrow Wilson and the Origins of the International Law of Religious Freedom,”
15 Journal of the History of International Law 235 (2013)
Sunstein, Cass, “Against Social Rights,” 2 East European Constitutional Rev. 35 (1993)
Swepston, Lee, “Indigenous and Tribal Peoples and International Law: Recent Developments,”
30 Current Anthropology 259 (1989)
Tahvanainen, Annika, “The Treaty Making Capacity of Indigenous Peoples,” 12 International
Journal of Minority & Group Rights 397 (2005)
Tan, Kok-Chor, Justice, Institutions & Luck: The Site, Ground, and Scope of Equality (Oxford:
——— , Justice Without Borders: Cosmopolitanism, Nationalism and Patriotism (Cambridge:
Cambridge University Press, 2004)
242 Bibliography
Tasioulas, John, “The Moral Reality of Human Rights,” in Thomas Pogge, ed., Freedom from
Poverty as a Human Right: Who Owes What to the Very Poor? (Oxford: Oxford University
Press, 2007), 75–101
Taylor, Charles, “The Politics of Recognition,” in A. Gutman, ed., Multiculturalism: Examining
the Politics of Recognition (Princeton: Princeton University Press, 1994), 25–73
Thornberry, Patrick, “The UN Declaration on the Rights of Persons Belonging to National or
Ethnic, Religious and Linguistic Minorities,” in Alan Phillips & Allan Rosas, eds., Universal
Minority Rights (Turku and London: Abo Akademi, 1995)
Tomuschat, Christian, “Self-Determination in a Post-Colonial World,” in C. Tomuschat, ed.,
The Modern Law of Self-Determination (Dordrecht: Martinus Nijhoff, 1993)
Trubek, David M., Mosher, Jim & Rothstein, Jeffrey S., Trubek et al., “Transnationalism in the
Regulation of Labor Relations: International Regimes and Transnational Advocacy,” 15 Law
& Social Inquiry 1187 (2000).
Udokang, Okon, Succession of New States to International Treaties (New York: Oceana
Publications, 1972)
United Nations Commission on Economic, Social and Cultural Rights, Substantive Issues
Arising in the Implementation of the International Covenant on Economic, Social and Cultural
Rights: Poverty and the International Covenant on Economic, Social and Cultural Rights, UN
Doc. E/C12/2001/10 (New York: United Nations, 2001)
——— , Report of the Fifth Session, UN Doc. E/1991/23. E/C.12/1990/8 (New York: United
Nations, 1990)
——— , “General Comment No 3,” UN Doc. E/1991/23 E/C12/1990/8 (New York: United
Nations, 1990)
United Nations Commission on Human Rights, Report of the Working Group on the Right to
Development, UN Doc. E/CN4/2005/25 (New York: United Nations, 2005)
———, Review of Progress and Obstacles in the Promotion, Implementation, Operationalization,
and Enjoyment of the Right to Development, UN Doc. E/CN4/2004/WG18/2
(New York: United Nations, 2004)
———, Preliminary Study of the Independent Expert on the Right to Development on the Impact
of International Economic and Financial Issues on the Enjoyment of Human Rights, UN Doc.
E/CN4/2003/WG18/2 (New York: United Nations, 2003)
———, Report of the High-Level Task Force on the Implementation of the Right to Development
on its Second Meeting, UN Doc. E/CN4/2005/WG18/TF/3 (New York: United
Nations, 2002)
——— , Fifth Report of the Independent Expert on the Right to Development, UN Doc. E/
CN4/2002/WG18/6 (New York: United Nations, 2002)
——— ¸ Fourth Report of the Independent Expert on the Right to Development, UN Doc. E/
——— , The Right to Development: Third Report of the Independent Expert, UN Doc. E/
———, Study on the Current State of Progress in the Implementation of the Right to Development,
UN Doc. E/CN4/1999/WG18/2 (New York: United Nations, 1999)
———, Progress Report of the Intergovernmental Group of Experts on the Right to Development,
UN Doc. E/CN4/1997/22 (New York: United Nations, 1997)
Bibliography 243
———, Report of the Working Group on the Right to Development on its Fourth Session, UN Doc.
E/CN4/1996/10 (New York: United Nations, 1996)
———, Report of the Working Group on the Right to Development on its Second Session, UN Doc.
E/CN4/1995/11 (New York: United Nations, 1995)
———, Report of the Working Group on the Right to Development on its First Session, UN Doc. E/
CN4/1994/21 (New York: United Nations, 1994)
——— , Global Consultation on the Realization of the Right to Development as a Human
Right, 46th Sess., Agenda Item 8, UN Doc. E/CN4/1990/9/Rev1 (New York: United
Nations, 1990)
———, Report of the Working Group of Governmental Experts on the Right to Development, UN
Doc. E/CN4/1989/10 (New York: United Nations, 1989)
Doc. E/CN4/1489 (New York: United Nations, 1982)
———, Report on the Thirty-Third Session, 62 UN ESCOR Supp. (No. 6), UN Doc. E/5927
United Nations General Assembly, Rethinking Poverty: Report on the World Social Situation,
UN Doc. ST/ESA/324 (New York: United Nations, 2010)
——— , Report on the World Social Situation, UN Doc. A/60/117 (New York: United
Nations, 2005)
United Nations Millennium Project, Investing in Development: A Practical Plan to Achieve the
Millennium Development Goals (New York: United Nations, 2005)
United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities,
Special Rapporteur Asbjørn Eide, Study on Peaceful and Constructive Solutions to Situations
Involving Minorities, UN Doc. e/CN.4/Sub.2/1993/34 and Add. 1-4 (New York: United
Nations, 1990)
——— , Capotorti, Francesco, Special Rapporteur, Study on the Rights of Persons Belonging
to Ethnic, Religious and Linguistic Minorities, UN Doc. E/CN.4/Sub.2/384/Rev.1. 1979
Uvin, Peter, Human Rights and Development (West Hatford: Kumerian Press, 2004)
Vachudova, Milada Anna, Europe Undivided: Democracy, Leverage, and Integration After
Communism (Oxford: Oxford University Press, 2005)
Valentini, Laura, “Human Rights, Freedom, and Political Authority,” 40 Political Theory
573 (2012)
Valticos, N. & von Potobsky, G., International Labour Law, 2d ed. (Deventer and Boston:
Kluwer, 1995)
van Genugten, Willem, & Camilo, Perez-Bustillo, “The Emerging International Architecture of
Indigenous Rights: The Interaction between Global, Regional, and National Dimensions,” 11
International Journal of Minority & Group Rights 379 (2004)
Varges, Gabe S., The New International Economic Order Legal Debate (Frankfurt: P.
Lang, 1983)
244 Bibliography
Vasak, Karel, “Pour une troisième generation des droits de l’homme,” in Christophe Swinarski,
ed., Studies and Essays on International Humanitarian Law and Red Cross Principles (The
Hague: International Committee of the Red Cross & Nijhoff, 1984)
———, “Human Rights: A Thirty-Year Struggle: The Sustained Efforts to Give Force of Law to
the Universal Declaration of Human Rights,” 30 UNESCO Courier 11 (1977)
von Bernstorff, Jochen, “The Changing Fortunes of the Universal Declaration of Human
Rights: Genesis and Symbolic Dimensions of the Turn to Rights in International Law,” 19
European Journal of International Law 903 (2008)
Vrdoljak, Ana, “Self-Determination and Cultural Rights,” in F. Franconi & M. Scheinin, eds.,
Cultural Human Rights (Leiden: Martinus Nijhoff, 2008), 41–78
Waer, Paul, “Social Clauses in International Trade: The Debate in the European Union,” 30
Journal of World Trade 25 (1996)
Waldron, Jeremy, Liberal Rights: Collected Papers 1981–1991 (Cambridge: Cambridge University
Press, 1993)
Weiler, Paul C., Reconcilable Differences: New Directions in Canadian Labour Law (Toronto:
Carswell, 1980)
Welhenggama, Gnanapala, Minorities’ Claims: From Autonomy to Secession (Aldershot:
Ashgate, 2000)
Wellman, Carl, “Solidarity, the Individual and Human Rights,” 22 Human Rights Quarterly
639 (2000)
———, Welfare Rights (Totawa: Rowman and Allanheld, 1982)
Westlake, John, Chapters on Principles of International Law (Cambridge: Cambridge University
Press, 1894)
Whelan, Daniel J., Indivisible Human Rights: A History (Philadelphia: University of
Pennsylvania Press, 2010)
Wiessner, Siegfried, “The Cultural Rights of Indigenous Peoples: Achievements and Continuing
Challenges,” 22 European Journal of International Law 121 (2011)
———, “Rights and Status of Indigenous Peoples: A Global Comparative and International
Legal Analysis,” 12 Harvard Human Rights Journal 57 (1999)
Williams, Jr., Robert A., The American Indian in Western Legal Thought: The Discourses of
Conquest (New York: Oxford University Press, 1990)
Wippman, David, “The Evolution and Implementation of Minority Rights,” 66 Fordham Law
Review 597 (1997)
Wolffgang, Hans-Michael & Peuerhake, Wolfram, “Core Labour Standards in World Trade
Law: The Necessity for Incorporation of Core Labour Standards in the World Trade
Organization,” 36 Journal of World Trade 883 (2002)
World Bank, Procurement of Works & User’s Guide (Washington: World Bank, 2007)
World Bank & the International Monetary Fund, Global Monitoring Report on the
Millennium Development Goals: Mutual Accountability—Aid, Trade and Governance
(Washington: World Bank, 2006)
Wright, Quincy, Mandates Under the League of Nations (Chicago: University of Chicago
Press, 1930)
Xanthaki, Alexandra, Indigenous Rights and United Nations Standards: Self-Determination,
Culture and Land (Cambridge: Cambridge University Press, 2007)
Bibliography 245
Young, Crawford, “African States and the Search for Freedom,” in Robert H. Taylor, ed., The
Idea of Freedom in Asia and Africa (Stanford: Stanford University Press, 2002), 9–39
Yupsanis, Athanasios, “The Meaning of ‘Culture’ in Article 15(1)(a) of the ICESCR—Positive
Aspects of CESCR’s General Comment No. 21 for the Safeguarding of Minority Cultures,”
55 German Yearbook of International Law 345 (2012)
———, “The International Labour Organization and Its Contribution to the Protection of the
Rights of Indigenous Peoples,” 49 Canadian Yearbook of International Law 117 (2011)
———, “ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent
Countries 1989–2009: An Overview,” 79 Nordic Journal of International Law 433 (2010)
Index
Abi-Saab, Georges, 193 Baroody, Jamil, 61, 63

Abstract morality, 22 Barth, William K., 125n72, 127n72
Access to courts, 65 Basic needs, 8, 61, 72, 186
Accountability, 44n63 Basic rights, 37, 47n69, 62, 128n77
African Charter on Human and Peoples’ Basic Rights (Shue), 37
Rights (1981), 5, 5n8, 189n17 Bauböck, Rainer, 181n81
African Commission on Human and Peoples’ Bedjaoui, Mohammed, 193, 207
Rights, 176n61 Beitz, Charles, 7n19, 14–17, 17n50, 33–34, 45,
African mandated territories after World War I. 60n31, 70, 207, 216
See League of Nations Belarus, 99
Alston, Philip, 55, 193 Benedict, Ruth, 12n36
American Anthropological Association, 12n37 Berlin Conference on Africa
American Convention on Human Rights (1884–1885), 142
(1992), 5n8, 10n31 Bilateral treaties. See also Treaties,
Anaya, James, 149, 175n54 effect of
Anderson, Elizabeth, 208 protecting minority rights, 10
Anghie, Antony, 219 trade and investment
Anti-constitutional trends, 38 agreements, 72, 95, 98
Appleton, Arthur E., 36n24 Blake, Michael, 43n55, 210n130
Argentina, 99 Blue water doctrine, 141, 146n50
Assimilation, 10, 69, 106, 108, 114, 116–117, Bodin, Jean, 31
116n39, 126n72, 130, 148, 152, 154 Bowman, Isaiah, 166
Australia, 108 Brazil, 99
Autonomy, 19–20, 39, 154, 155, 156n123, 178, Brierly, J.L., 32
210n130 Buchanan, Allen, 18n54, 24, 25, 164n6
Azcárate, Pablo de, 107n8 Burke, Roland, 168, 168n23
247
248 Index
Canada transformation in U.N. stance on, 169
Constitution, 41 workers’ rights and, 56
right to cultural life vs. minority rights, Commission on Permanent Sovereignty over
protection of, 108 Natural Resources (U.N.), 188
Secession Reference (1998), 181 Committee Against Torture (CAT), 4nn5–6, 5
workfare program’s anti-union animus, 87 Committee of Experts on Native Labour (ILO),
Capitalism, 77n13, 79n24 56, 84–85, 143
Capotorti, Francesco, 114 Committee on Economic, Social, and Cultural
Carens, Joseph, 212n139 Rights (ECOSOC), 11n35, 71, 85, 97, 196
Cassese, Antonio, 172n40, 174, 175n57, Concluding Comment on Korea, 85–86
176n62, 178n65 Resolution 1589, 152
Cassin, René, 60n32 Committee on Migrant Workers
Castells, Manuel, 83 (CMW), 4n6
Cession, 138–139 Committee on the Elimination of Discrimination
Charter of Economic Rights and Duties of Against Women (CEDAW), 4nn5–6
States (U.N. 1974), 189 Committee on the Elimination of Racial
Charter of Fundamental Rights of the Discrimination (CERD), 4n5, 5n7
European Union (2012), 74 Common Market of the Southern Cone’s Social
Child labor, 73, 75, 90, 91, 93, 99 and Labour Declaration, 99
China Communism, 66, 66n55, 77, 79
on definition of indigenous peoples, 157 Compa, Lance, 91
ILO conventions, limited ratification of, 90n55 Constitutionalism, 38
Citizenship, 53, 108, 151, 222n173 Constitutional pluralism, 39, 39n39
Civil and political rights. See also International Constitutional rights, 68–69. See also Freedom
Covenant on Civil and Political Rights of association; Freedom of expression
(ICCPR 1976) Contestation over international legal rights,
as first-generation rights, 7n20, 51 20–21, 25, 26
formal legal expression of, 55 Convention Against Torture and Other, Cruel,
judicial realm and, 53, 65 Inhuman or Degrading Treatment or
legislative realm and, 53 Punishment (1984), 4
as monitors of sovereignty’s exercise, 64–67 Conventionalism, 16
as negative rights, 58 Convention concerning Contracts of
privileging of, 11 Employment (ILO 1947), 56n20
protection of minority interests, 10, 65, 107 Convention concerning Forced Labour (ILO
Cohen, Jean, 15–16n44, 39 1930), 56n20
Cohen, Joshua, 17 Convention Concerning Indigenous and Tribal
Collective bargaining, 73, 74, 77n19, 85, 86, Peoples in Independent Countries (ILO
86n41, 87n44, 87n46, 88, 89, 99, 100 1989). See Indigenous and Tribal Peoples
Collins, Hugh, 89 Convention (ILO No. 169)
Colombia, 98 Convention concerning Penal Sanctions
Colonialism. See also Decolonization and (Indigenous Workers) (ILO 1939), 56n20
sovereign rights of ex-colonies Convention concerning the Abolition of Forced
international human rights law’s role and, 2 Labour (ILO 1957), 57n20
international law’s role and, 48–49, 138 Convention concerning the Abolition of Penal
legality of, 61, 130, 168 Sanctions for Breaches of Contract of
reenacted by failure to respect international Employment by Indigenous Workers
indigenous rights, 161 (ILO 1955), 56–57n21
right to development and, 217–223 Convention concerning the Contracts of
self-determination and, 164, 165–174, Employment (Indigenous Workers) (ILO
166n13, 218 1939), 56n20
Index 249
Convention concerning the Migration for Declaration on the Right to Development
Employment (ILO 1949), 56n20 (U.N. 1986), 187, 190–198, 214
Convention concerning the Recruiting of ambiguity of intent, 198, 206
Indigenous Workers (ILO 1936), 56n20 distributive justice and, 207
Convention on Migrant Workers (U.N. emergence of the right, 188–198
1990), 4 implementation of the right, 198–206
Convention on the Elimination of All Forms Decolonization and sovereign rights of
of Discrimination Against Women (U.N. ex-colonies, 48, 141, 164, 168–172,
1979), 4, 74 219–220
Convention on the Rights of the Child (U.N. Dehousse, Fernand, 163
1989), 4, 74, 93, 111n31 Deng, Frances, 37
Copenhagen Declaration on Social Descriptive relativism, 12n36
Development (1995), 200 Developing countries, 81, 108, 189, 219.
Council of Europe, 97, 121–122 See also Millennium Development
Crawford, James, 178, 181n81 Goals (MDGs)
Criddle, Evan, 38 Development, right to, 28. See also Declaration
Criminal law, 43 on the Right to Development (U.N.
Croatia, 10n29 1986); Poverty
Crouch, Colin, 82 colonialism and, 217–223
Cultural relativism, 12, 12n36, 23, 114 definition of, 190–191
Culture. See Minority rights; Social, economic, development compacts with
and cultural rights; Universal recognition U.N. institutions, bilateral donors, and
of economic, social, and cultural rights international financial institutions,
Customary international law, 42, 43, 85, 202–203, 202n93, 206
107, 190n20 emergence of the right, 188–198
international economic law and, 215n151
Daes, Erica-Irene A., 145n45 in international law, 18, 21
Debt relief, 59, 185, 199, 203, 205, 216 official development assistance, 205, 215
for heavily indebted countries, 206, 214 self-determination and, 193
Declaration and Programme of Action on a Sen’s theory of, 201–202
New International Economic Order sovereignty and, 36
(U.N. 1974), 189 as third-generation right, 7n20, 51
Declaration of Philadelphia (ILO 1944), 84 as universal aspiration, 8, 195n63
Declaration on Friendly Relations (U.N. 1970), Diplomatic relations, establishment of, 133
41, 171–172, 179, 218 Discovery, doctrine of, 138–139
Declaration on Fundamental Principles and Discrimination. See Equality; Indigenous
Rights at Work (ILO 1998), 27, 90, 91n57, rights; Minority rights
92, 96, 98–99 Distributive justice, 182–184, 207–210,
Declaration on Social Justice for a Fair 207n110, 209n126, 210n130, 211n135,
Globalization (ILO 2008), 97 214, 222n173
Declaration on the Granting of Independence Domestic legal sphere’s relationship to
to Colonial Territories (U.N. 1960), 168, international sphere, 5, 39, 42–43
170–172, 217n160, 218 Donnelly, Jack, 191–197
Declaration on the Rights of Indigenous Dunn, Isabella, 215n151
Peoples (U.N. 2007), 135, 153–157, 153n103, Dworkin, Ronald, 208
155n121, 160–162
Declaration on the Rights of Persons East Timor, 173, 173n45
Belonging to National or Ethnic, Economic, Social, and Cultural Rights
Religious and Linguistic Minorities Committee. See Committee on
(U.N. 1992), 111 Economic, Social, and Cultural Rights
250 Index
Economic globalization. See Globalization European Social Charter (1999), 71n71, 74
Economic relations, 35, 35n23, 60, 97. See Europe/European Union
also Trade Copenhagen criteria for EU membership in,
Economic rights. See Committee on 122–123, 122n63
Economic, Social, and Cultural Rights; ethnic conflict in, 118
Development, right to; International Generalized Schemes of Preferences (GSP), 99
Covenant on Economic, Social, and human rights treaties in, 5
Cultural Rights (ICESCR 1976); Social, labor rights in, 97
economic, and cultural rights renaissance and reformation in, 54
Economic subsistence rights, 61, 62 self-determination for States of, 167, 177
Education, right to, 64 External self-determination, 168, 174, 176,
Eide, Asbjørn, 55 176n59, 178–183
Elite capture, 222
El Salvador, 99 Fairness. See also Equality; Justice
Emerson, Rupert, 169 labor rights and, 77, 78
Employer-employee relationship. See in legal proceedings, 65
International Labour Organization Family life, right to, 10n31
(ILO); Labor rights Feminism and human rights, 16n44
Equality First-generation rights, defined, 7n20, 51. See
Committee on the Elimination of also Civil and political rights
Discrimination Against Women Food, right to, 18
(CEDAW), 4nn5–6 Forced labor, abolition of, 56–57n20, 143, 147
Committee on the Elimination of Racial Fordism and post-fordism, 83n35
Discrimination (CERD), 4n5, 5n7 Foreign direct investment, 82, 96, 100
labor rights and, 77 Formalism, 44n63, 57
prohibition of inequality and Fox-Decent, Evan, 38
discrimination, 65 Framework Convention on the Protection of
religious practices, 115 National Minorities (Council of Europe
right to development and, 202, 207 1992), 121–122, 121n57
as second-generation right, 60 France
of States, 49, 212n138 mandates to govern Middle East
Universal Declaration and, 108 territories, 103
Ethics, 6, 19, 186. See also Morality minority interests in French territory, 113
Ethnic cleansing and violence, 37n29, 123n66. official development assistance from, 205
See also Genocide Rhineland occupation post-World War
Ethnicity. See Minority rights I and, 166
European Charter for Regional or Minority Frederic Kirgis, Jr., 180
Languages (1992), 122 Freedom of association, 65, 73, 86, 87, 87n44,
European Commission, 74 88, 89, 94, 100, 107
European Committee of Social Rights, 71n71 Freedom of expression, 65, 107, 108–109
European Convention for the Protection French revolution, 53, 60
of Human Rights and Fundamental Fudge, Judy, 92
Freedoms (1950), 5n8, 71n71, 118, 120
European Court of Human Rights, General Agreement on Tariffs and Trade
71n71, 127n75 (GATT), 97, 98
Serif v. Greece (1999), 119 General Assembly (U.N.). See also headings
Socialist Party v. Turkey (1998), 119 starting Resolution
Thlimmenos v. Greece (2000), 120 customary international law and, 190n20
Index 251
Declaration and Programme of Action on Human dimension mechanism, 121
a New International Economic Order Humanitarian intervention, 15n44, 37,
(1974), 189 37n30, 210
decolonization and sovereign rights of Human rights. See also Basic rights;
ex-colonies, 141 International human rights law
human rights indivisible in international determining existence of, 5
law, 63 development assistance levels and, 222
human rights proclaimed by, 18, 18n57 equality of all types of, 63
minority rights and, 107–108 General Assembly’s authority to proclaim,
responsibility-to-protect doctrine and, 38 18, 18n57
General vs. special rights, 7, 9, 9n24, 11, 69, as general rights, 196
196, 210 international law’s definition of, 25
Generational conceptions of human international law’s origin of, 54, 55
rights, 51–72 legal theory of, 1, 18–26
generations as analytical categories, 58–64 as moral concepts, 1, 3–13, 66
generations as chronological as political concepts, 2–3, 13–18
categories, 52–58 poverty and, 186
use in international legal scholarship, 51 Rawls vs. Beitz on, 14n40
criticism of, 52, 54n12, 63n50, 64 selection criteria for justifying claims of,
overview of types of generations, 51–52 16–18, 17n50
Genocide, 37n29, 179 Human Rights Commission, 189, 199, 201n84
Genocide Convention, 108, 111n31 Human Rights Committee, 4, 67, 86, 87, 109,
Global constitutionalism, 38, 39 112–115, 116n39, 175
Globalization, 2, 60, 78, 82n34, 88, 96–97, 187, Human Rights Council, 4n6, 153
199n77, 213, 217 Hungary, 10n29
Global justice, 206–211 See also Distributive
justice ICCPR. See International Covenant on Civil
Global Monitoring Reports on MDGs, 204 and Political Rights
Goldsmith, Jack, 42, 42n54 ICESCR. See International Covenant
Greece and freedom of religion, 119, on Economic, Social, and Cultural
127–128, 127n75 Rights
Griffin, James, 6, 9, 10n27, 16n45 ICISS (International Commission on
Guatemala, 116n39 Intervention and State Sovereignty), 37,
37nn29–30
Hannum, Hurst, 179–180, 179n72 ICJ. See International Court of Justice
Hart, H.L.A., 7, 69, 195–196, 210 IFC (International Finance Corporation), 99
Health care, right to, 62, 64 Ignatieff, Michael, 17
Healthy environment, right to, 7n20, 51 ILO. See International Labour Organization
Henkin, Louis, 169 IMF. See International Monetary Fund
High Commissioner for Human Rights Imperialism, 40n44, 124, 138–140, 143, 168
(U.N.), 4, 116 Independent Expert on Minority Issues
High-Level Task Force on the Right to (U.N.), 116
Development (U.N.), 201n85 Indigenous and Tribal Peoples Convention
Hilpold, Peter, 108 (ILO No. 169), 57n22, 149, 151–152,
Hobbes, Thomas, 31 151n89, 154, 157
Hobsbawm, Eric, 127n72 Indigenous and Tribal Populations Convention
Hopu and Bessert v. France (1993), 113–114 (ILO No. 107), 144–150, 145n45, 146n50,
Howse, Robert, 215 154, 160, 161
252 Index
Indigenous rights, 133–162 International Court of Justice (ICJ), 5n6, 57,
autonomy and, 154, 155 151–152, 172–173, 175
Committee of Experts on Native Labour, 56, International Covenant on Civil and Political
84–85, 143 Rights (ICCPR 1976), 4, 51, 57, 57n22, 74
family life, right to, 10n31 art. 1, 110, 110n19
generational concept of human rights art. 10(1), 66–67
and, 56 art. 22, 86, 87
indigenous peoples not defined in U.N. art. 23, 10n31
Declaration on the Rights of Indigenous art. 27, 10n30, 110–115, 116n39, 127n74,
Peoples, 156–157 128–129
indigenous worker, definition of, 144 Concluding Comment on Canada, 87
International Labour Organization and, Concluding Comment on Chile, 86–87
141–152 Concluding Comment on Costa Rica, 87
international law and, 48, 134n6, 162 Declaration on the Right to Development
Martínez Cobo Report’s definition of and, 190
indigenous peoples, 153, 153n98 labor rights and, 86
nondiscrimination and, 147–148, 152 minority rights and, 109, 113
purpose of determining and defining, 156–162 Optional Protocol, 175, 175n56
recognition of indigenous people by State right to development and, 197
required for, 158 self-determination right and, 151–152, 163,
self-determination and, 30, 48, 151–152, 154, 165, 175, 197
154n106, 156, 160–162, 160n144 International Covenant on Economic, Social,
self-identification and, 150–151, 159 and Cultural Rights (ICESCR 1976), 4, 7,
semi-tribal peoples, 148, 151 10n28, 57, 62, 67–68, 70, 74
vs. sovereign States, 156 art. 15, 109–110
specific vs. general rights, 11 Declaration on the Right to Development
territorial interests, 112–113, 130, 136–141, and, 190
147, 154 food, right to, 18, 62
United Nations and, 152–156 labor rights and, 85, 93
Indivisibility, 11, 63–64 minority rights and, 109
Indonesia’s annexation of East Timor, Optional Protocol, 11n35
173, 173n45 right to development and, 196–197
Industrialized economies, transformation of, 82 second-generation rights and, 51
Industrial revolution (England), 53, 54 self-determination right and, 163, 165, 175,
Interdependence sovereignty, 32 175n56, 197
Interdependency, 63 International economic law, 35–36, 35n23,
Internal self-determination, 164, 176–182, 95–96, 214–215
176n59, 181n81 International Finance Corporation (IFC), 99
International Association for the Legal International human rights law
Protection of Workers, 55 communal bonds and, 195
International Commission on Intervention distribution and exercise of sovereign power
and State Sovereignty (ICISS), 37, and, 26
37nn29–30 harms of international law ameliorated
International Conference on Financing for by, 22–25
Development in Monterrey, Mexico minority rights and, 124, 127
(2002), 204 recognition of, 178
International Convention on the Elimination right to development and, 191, 194
of All Forms of Racial Discrimination self-determination’s relationship to, 164,
(1969), 4 174–175
Index 253
International Labour Organization (ILO) separate from justice or morality, 20
authority in colonies and dependent sovereignty and. See Sovereignty
territories, 56 territorial integrity and, 217
China’s limited ratification, 90n55 universalism vs. relativism in, 23
commitment of members to core labor International Monetary Fund (IMF), 34, 71,
rights, 90, 90n56 187, 200, 202–203, 212–213
Committee of Experts, 56, 84–85, 143 Global Monitoring Reports, 204
Communism and, 66n55 Poverty Reduction Strategy Papers (PRSPs),
Constitution of, 79–80, 80n28, 81, 84, 203–204, 206, 215
142–143 International organizations, 34–35, 134n6
core labor rights in ILO Conventions, Interpretive judgments about international
56n20, 57n22, 73, 90, 92, 143. See also human rights, 25
headings starting with “Convention” Interrelatedness, 63
Declaration (1998). See Declaration on Israeli wall around Palestinian territories,
Fundamental Principles and Rights 173, 173n47
at Work Italy, 10n29
domestic labor market regulation and,
75, 80, 88 JB v. Canada (1986), 86, 87n44
human rights of workers and, 73 Jus cogens norms, 43
indigenous rights and, 28, 134–135, 141–152 Justice. See also Distributive justice
indigenous worker, definition of, 144 global justice in contemporary political
origin of, 35, 55, 75, 79, 213n160 theory, 187
strike, right to, 87n44 international law and, 19
United States’ limited ratification, 90n55 labor regulation and, 83, 101
universal human rights and, 84 minority rights and, 127, 128, 130
International law. See also Customary negative obligation imposed on international
international law legal actors, 36
autonomy and, 19–20, 39 right to development and, 194, 202
colonialism and, 48–49, 138
consent of State and, 43n55 Kahn, Paul, 33
contestation over human rights Kahn-Freund, Otto, 76n12
obligations, 20–21 Kant, Immanuel, 6
as delegated domestic legal authority, 42–43 Katangese Peoples’ Congress v. Zaire
distributive justice and, 211 (1995), 176n61
global politics and, 29 Kelsen, Hans, 19–20, 40, 40nn43–44, 47n69,
harms produced by, ameliorated by 128n77, 133–134, 136–139, 138n15, 156, 158,
international human rights law, 22–25, 52, 158n135
127–128. See also Sovereignty Kingsbury, Benedict, 49, 159–160, 180n76
indigenous rights and, 48, 134n6, 162 Kirgis, Frederic, Jr., 180
international politics and, 24 Kitok v. Sweden (1988), 113
interpretive judgments about international Knop, Karen, 5, 164n5, 178n66
human rights, 25 Kolben, Kevin, 92
justice and, 19 Komesar, Neil, 59
legal aspects of human rights, 18–26 Koskenniemi, Martti, 44, 44n63, 174n49
legality and, 24 Kosovo’s declaration of independence, 175
positivism and, 18–19, 54 Krasner, Stephen, 32, 32n37, 33
poverty and. See Poverty Kumm, Mattius, 38, 43
self-determination and, 218 Kurdish minority in Turkey, 119, 126–127, 127n74
self-interest of State and, 42, 42n54 Kymlicka, Will, 111n30, 128–129, 130n82
254 Index
Labor rights, 73–101. See also Collective MDGs. See Millennium Development Goals
bargaining; Union, right to form; Wages Meta-ethical relativism, 12n36
and hours Middle East territories after World War I,
domestic protection of, 77–78, 80, 83, 88 103, 142n28
evaluation of urgency of, 70 Migrant workers, rights of, 4, 4n6,
as instrumental rights, 76–83 56n20, 73, 99
international human rights law’s role and, 2, Military intervention, 37n29
55, 88, 100–101 Millennium Development Goals (MDGs), 187,
international law and, 95, 100. See also 201n85, 204–206, 214
International Labour Organization (ILO) Global Monitoring Reports, 204–205
lower labor standards, effect of, 81–82, 82n33 Sustainable Development Goals to replace,
mass production and, 80–81 204n101
sovereignty and, 36 Millennium Summit (U.N. 2000), 204, 206
as third-generation right, 8 Minority rights, 103–131
as universal rights, 8, 84–94 adverse consequences of international law
Lambros, Dmitrios, 176n59 and, 104
Langille, Brian, 82, 93 bilateral treaties protecting, 10
Language rights, 115n37 concept of majority inferring existence of
Latin America minority, 47, 47n69, 128n7
labor rights in, 99 interdependence of sovereignty
right to cultural life vs. minority rights, and, 124–131
protection of, 108 international human rights law’s role and, 2,
Lauterpacht, Hersch, 134n4 25, 107, 176n60
League of Nations, 56, 103, 126–127 meaning of, 104
Covenant of, 142, 167 moral ambiguities of, 105–117, 107n8
mandatories of, 142, 142n28, 145, 167, political ambiguities of, 117–124
167n16 post-World War I, 103, 126–127
minority rights and, 177 prohibition of discrimination, 114
purpose of, 166 prohibition of inequality and discrimination,
Legal norms, 2, 19, 20, 22, 28, 29, 30, 32n37, 40 65, 117
Legal pluralism, 23n66, 177 religious freedom for minorities, 55
Legal positivism, 18–19, 18n58, 42 scope of, 10–11, 56
Legal rights of persons, 64–65 self-determination and, 177
Levy, Jacob T., 118, 123 as third-generation right, 51
Liberty. See also Freedom of association; Treaty of Westphalia and, 125
Freedom of expression Monetary policy, 199, 214, 216
as basic right, 62 Monterrey Conference (2002), 204
as first-generation right, 60 Montevideo Convention on Rights and Duties
ICCPR, art. 10(1) on, 66–67 of States (1933), 46n68, 212n138
Libya, 38 Morality
Life, right to, 8–9 global justice and, 207
Luck egalitarianism, 208, 211n135, 221n172 human rights as moral concepts, 1, 3–13, 66
minority rights, moral ambiguities of,
Maritain, Jacques, 15n43 105–117, 107n8
Marks, Stephen P., 190n25 norms of, 19
Marshall, John, 139 of political membership, 211n137
Marshall, T.H., 53, 55, 64 right to development and, 194, 196
Martínez Cobo Report, 152–153 special vs. general rights, 7, 9, 9n24, 11
Mass production, 80–81 universalism and, 8–12, 113
Index 255
Moral theorists, 2, 6, 8, 9, 13, 16, 22, 70, 88, 89, Original intent, 21
124, 170 Originalism, 15, 16
Morsink, Johannes, 65n53 Ottoman Empire dissolution, 104, 167
Most-favored nation status, 36 Outsourcing, 82–83
Moyn, Samuel, 54, 168
Multiculturalism Pacta sunt servanda, 18
of fear, 118 Palestinian right of self-determination,
international organizations desiring, 123n66 173, 173n47
political theory on, 106 Pamontjak, Nazir, 61
Multilateral lending. See International Paraguay, 99
Monetary Fund; World Bank Peace, right to
Mundlak, Guy, 91 minority rights and, 117
as third-generation right, 51
Nagel, Thomas, 210 Permanent Court of International Justice,
Namibia achieving independence from South 126, 219
Africa, 29, 172–173 Permanent Mandates Commission, 167
NATO, 122, 123 Personhood, protection of, 6
Natural law tradition, 15 Peters, Anne, 38
Natural wealth and resources, right to exploit Pogge, Thomas, 36n25, 213–214
and use, 188–189, 219 Polish Minority Treaty, 10n29, 56n19
Negative governmental obligations, 58–59, 197, Political theorists, 13, 21, 88, 106, 130n83, 196,
214, 222–223 207, 211, 223
Nickel, James, 106 Politics. See also Civil and political rights
Nijman, Janne, 125n71 human rights as political concepts, 2–3,
Non-State actors, regulation of, 134 13–18, 24
Normative relativism, 12n36 international legal vs. political recognition of
Normativity, 16–18, 16n44, 23, 34, 71. See also indigenous peoples, 158
Legal norms sovereignty as organizing principle in global
colonialism and, 221 politics, 46
distributive justice and, 211n135 Poma Poma v. Peru (2009), 113
indigenous rights and, 161 Positive obligations on State actors and
labor rights and, 94–95 institutions, 8–9, 10, 12, 17–19, 22, 58–59,
minority rights and, 104 124, 197–198, 216–217, 220–223
sovereignty and, 42, 48 Posner, Eric, 42, 42n54
North American Free Trade Agreement, Poverty, 185–223. See also Declaration on the
74, 98–99 Right to Development (U.N. 1986);
Nussbaum, Martha, 6, 6n15 Development, right to
colonialism’s rise and fall and, 217–223
O’Cinneade, Colm, 71n71 freedom from poverty as right, 9
Office of the High Commissioner on Human international law and, 50, 185–186,
Rights, 215 206–217, 222
Office of the High Commission on National minority rights and, 116
Minorities, 120 positive dimension of third-generation rights
Orentlicher, Diane, 165, 172 and, 59
Orford, Anne, 215 Poverty Reduction Strategy Papers (PRSPs),
Organisation on Security and Cooperation in 203–204, 215
Europe (OSCE), 120–121 poverty statistics, 185, 185n2
Organization of African Unity (1963, now as result of State into which one is
African Union), 5n8, 189n17 born, 208
256 Index
Poverty Reduction Strategy Papers (PRSPs), Security Council (U.N.), 38, 43, 173
203–204, 206, 215 Security of the person, right to, 64, 65
Preece, Jennifer Jackson, 128 Self-determination, 28, 163–184
Prison systems, 66 bridging international law and distributive
Proclamation of Tehran (1968), 63 justice, 182–184
Property, right to, 59, 64, 113 colonialism and, 61, 164, 165–174, 166n13
Protectionism, 76, 88, 98 degrees of, 180
development right related to, 193
Rational choice theory, 42 European nations and peoples deemed
Rawls, John, 14n40, 23n65, 62, 207n110, 209 sufficiently developed to merit,
Raz, Joseph, 17, 24n67 167, 167n19
Recognition in International Law: Theoretical external, 168, 174, 176, 176n59, 178–183
Observations (Kelsen), 133 independence achieved by territories
Reisman, Michael, 161 (1945–1970), 172
Relativism, 12–13, 12n36, 16n47, 23 indigenous people and, 30, 48, 151–152, 154,
vs. universalism, 113–114 154n106, 156, 160–162, 160n144
Religious freedom, 55, 65, 108–109, 115, 119, 125, internal, 164, 176–182, 176n59, 181n81
127, 130. See also Minority rights international human rights law and, 2,
Report of the International Commission 174–175
on Intervention and State Sovereignty international law and, 218
(ICISS), 37 minority rights and, 177
Resolution on Permanent Sovereignty over movement within U.N. to recognize, 163,
Natural Resources (Resolution 1803), 168–170
189, 219 paradoxes of, 174–182
Responsibility to protect, 37–38, 37n30 as prerequisite of all human rights,
Rhineland, occupation of post-World 63, 175n54
War I, 166 pre-World War I, 218
Ripstein, Arthur, 220 sovereignty and, 46n66
Rittich, Kerry, 70, 71 as third-generation right, 7n20, 51, 57, 61
Rodríguez-Piñero, Luis, 144, 146n50 U.N. Charter and, 165, 167–168, 174
Romania, 10n29 U.N. resolution on, 61
Roth, Brad, 32n34 universality of right of, 11, 41
Rousseau, Jean-Jacques, 31 Self-identification, 150–151, 159, 181n81
Rule of law, 24n67, 38, 39, 122 Self-interest of State, 42, 42n54
Russia, and human rights as traditional Sen, Amartya, 93, 201–202
values, 12n37 Sengupta, Arjun, 201–203, 206
Russian Revolution of 1917, 53, 77 Serif v. Greece (1999), 119
Shelter, right to, 62
Salomon, Margot E., 190n25, 216 Shue, Henry, 37, 61–62, 64
Salt water thesis, 175 Simmonds, John, 6
Sangiovanni, Andrea, 210–211 Slave trade, abolition of, 54
Scheffler, Samuel, 209n128 Social, economic, and cultural rights.
Schmitt, Carl, 42 See also International Covenant on
Second-generation rights, 7–8. See also Social, Economic, Social, and Cultural Rights
economic, and cultural rights (ICESCR 1976)
defined, 7n20, 51 administrative State and educational
obligations not to interfere with rights of system’s realm of social rights, 53
others, 12 Declaration on the Right to Development
scope of, 8–9 and, 194
Index 257
indigenous rights and, 147, 154 State actors and institutions
international human rights law’s role and, 2 defective when failing to protect human
minority rights and, 109 rights, 14
as monitor of sovereignty’s exercise, 67–72 positive obligations on, 8–9, 10, 12, 17–19, 22
as positive rights, 58 Statehood, criteria for, 46–47, 46n68, 49,
second-generation, 7–8 133–134, 137–138, 183
U.N. Charter on, 165 Steiner, Hillel, 207
Socialist Party v. Turkey (1998), 119 Strike, right to, 86–87, 87n44, 88
Social justice, 8, 69, 79, 80n28, 84 Sub-Commission on Prevention of
Copenhagen Declaration (1995), 200 Discrimination and Protection of
Declaration on Social Justice for a Fair Minorities (U.N.), 108, 110, 116, 152, 153
Globalization (ILO 2008), 97 Subcontracting, 82–83
Solidarity rights, 7, 51, 60, 195 Subsistence rights, 61, 62
South Africa Succession, doctrine of, 220
Constitution of, 68 Sustainable Development Goals (U.N.), 204n101
mandate revoked over Namibia, 172–173 Sweden, 113, 205
Sovereignty, 29–50
civil and political rights as monitors Tan, Kok-Chor, 209, 209n128, 211n135, 221n172
of, 64–67 Taney, Chief Justice, 41
contributions to international law, 30 Tariff reductions, 36, 78, 206, 214
definition of, 37–45 Tasioulas, John, 6, 9
distribution of, 30, 40, 45–50 Taylor, Charles, 111n30
equality of States and, 49, 212n138 Teleological approach to treaty
exercise of, 14, 31–37 interpretation, 21n64
Fassbender on, 32n36 Terra nullius, doctrine of, 139, 140, 140n21
human rights law’s role and, 2, 24, 26, 46 Third-generation rights. See also
indigenous interests and, 136–141, 156 Solidarity rights
international law as check on, 30, 33, 36, 40, compared to first- and second-generation
45, 95, 127–128, 182, 212, 220 rights, 58
labor rights and, 100 defined, 7n20, 51
as legal entitlement, 39–40, 42 as necessary to realize first- and
in liberal democratic States, 41 second-generation rights, 61
minority rights and, 25, 124–131 negative and positive dimensions of, 59
national vs. international authority for, obligations not to interfere with rights of
37–45, 40n43 others, 12
normative purchase of, 30 in process of gaining recognition, 55
recognition of, by international scope of, 8
law, 29, 33, 41 “A Thirty-Year Struggle” (Vasak), 51
as relational concept, 40n41 Thlimmenos v. Greece (2000), 120
Roth on, 32n34 Tomuschat, Christian, 179
territories comprehended in, 166 Torture, 4, 4nn5–6, 5
treaties, effect of, 34–35, 41 Trade, 36, 74, 199, 206, 214. See also World
Treaty of Lausanne (1923) and, 128 Trade Organization
Treaty of Westphalia (1648) and, 55 Treaties, effect of, 34–35, 41
as will of the people, 41, 46, 46n67 between indigenous peoples and imperial
Special Rapporteur Report (1979), 114–115 powers, 139–140
Special vs. general rights, 7, 9, 9n24, 11, 69, post-World War I, 55–56
196, 210 Treaty of Lausanne (1923), 103–104, 126,
Stamatopolou, Elsa, 124 127nn74–75, 128
258 Index
Treaty of Sèvres (1920), 103 purpose of, 212–213
Treaty of Versailles (1919), 73, 79 role of, 34
Treaty of Westphalia (1648), 29, 55, Sub-Commission on Prevention of
55–56n18, 125 Discrimination and Protection of
Turkey, 103, 119, 122–123, 126–128, 127n74 Minorities, 108, 110, 116, 152, 153
Sustainable Development Goals,
UNESCO, 108 204n101
Convention Against Discrimination in Trusteeship Council, 145–146, 168
Education, 111n31 United Nations Charter (1948)
UNESCO Courier (1977), 51 economic development and reduction of
Union, right to form, 85, 86–87, 86n41, 88, 99. global poverty, 188, 190
See also Collective bargaining General Assembly resolutions related to
United Kingdom subjects of, 190n20
mandates to govern Middle East non-self-governing territories, 168, 170n32
territories, 103 recognition of equality of all States, 49,
official development assistance from, 205 212n138
ratification of ILO Conventions, 143 self-determination, 165, 167–168, 174
on social, economic, and cultural rights, 109 territorial administration, 146
territories of, 172n40 treatment of minority rights, 117n44
United Nations. See also General Assembly; trusteeship system, 168
Security Council; United Nations United States
Charter Declaration on the Right to Development
affiliation with International Labour (U.N. 1986), opposition to, 198
Organization, 79 ILO conventions, limited ratification
capacity to bring international of, 90n55
claims, 134n6 on social, economic, and cultural
colonialism and, 168 rights, 109
Commission on Human Rights, 4, 12n37 right to cultural life vs. minority rights,
Declaration on Friendly Relations (1970), 41, protection of, 108
171–172, 179 territories of, 172n40
development compacts with institutions of, Universal Declaration of Human Rights (1948),
202, 206 3, 12n37, 15, 15n43, 55, 55n17, 60n32, 63,
High Commissioner for Human 65n53, 70, 73, 84–85
Rights, 4, 116 art. 27, 109, 110
Human Rights Commission, 189, economic development and reduction of
199, 201n84 global poverty, 188
Human Rights Committee, 4, 67, 86, 87, labor rights and, 93
109, 112–115, 116n39, 175 minority rights and, 107, 108
Human Rights Council (HRC), 4n6, 153 self-determination and, 163
indigenous rights and, 152–156 Universalism, 6, 8–12, 16, 16n45, 23
labor rights and, 97 vs. relativism, 113–114
membership criteria, 188n6 Universal jurisdiction, 43
Millennium Development Goals. See Universal recognition of economic, social, and
Millennium Development Goals (MDGs) cultural rights, 53, 69–70, 84, 105
Millennium Summit (2000), 204, 206 Uruguay, 99
Office of the Commissioner for Human USSR on minority protection, 108
Rights, 63
Office of the High Commission on National Validity of laws, 19n58
Minorities, 120 Vasak, Karel, 51–58, 60
Index 259
Vienna Convention on the Law of Treaties Global Monitoring Reports, 204
(1969), 21n62 Poverty Reduction Strategy Papers
Vienna Declaration and Programme of Action (PRSPs), 203–204, 206, 215
(1993), 11n34, 200 World Commission on the Social Dimension of
Vienna World Conference on Human Rights Globalization, 96–97
(1993), 200 World Summit for Social Development
(1995), 200
Wages and hours, 73, 75, 80, 99 World Summit Outcome (2005), 38
Waldron, Jeremy, 61 World Trade Organization (WTO), 35, 36, 72,
Wellman, Carl, 52–53 95, 97–98, 214–215
Westphalian sovereignty, 32 origin of, 213n160
Whelan, Daniel, 54n12, 58n27, 63 social clause rejected by, 98
Will of the people, 41, 46, 46n67 World War I
Wilson, Woodrow, 166, 167 mandated territories after, 103, 142n28
Women minority rights after, 103, 126–127
Committee on the Elimination of origins of international human rights law
Discrimination Against Women after, 55
(CEDAW), 4nn5–6 Paris peace process after, 166
as workers, 82n34 treaties after, 55–56
Working Group on Indigenous Populations World War II, origins of international
(U.N.), 153 human rights law after, 54, 73,
Working Group on Minorities (U.N.), 116 212–213
Working Group on the Right to Development Wright, Quincy, 166n11
(U.N.), 187, 189, 199, 215 WTO. See World Trade Organization
World Bank, 34, 71, 72, 100, 186, 187, 200,
202–203, 212–213 Young, Crawford, 169

The Sovereignty of Human Rights

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

The Sovereignty of Human Rights

Uploaded by

Copyright:

Available Formats

The Sover eignty of Human R ights

The Sovereignty of Human Rights

Library of Congress Cataloging-in-Publication Data

(Based on the Declaration of Principles jointly adopted by a Committee of the

2. Sovereignty and Structure 29

3. Human Rights: Three Generations or One? 51

4. International Law at Work 73

5. The Ambiguous Appeal of Minority Rights 103

6. International Indigenous Recognition 133

7. Self-Determination in Three Movements 163

8. Global Poverty and the Right to Development 185

This way of speaking of international human rights law is a marked departure

function in global political discourse. Human rights, according to political concep-

Human R ights as Mor al Concepts

This project gathered momentum when the U.N. Commission on Human

healthcare, and education.21 It conceives of these rights as imposing obligations on

indigenous peoples are located.32 Indigenous rights can be understood as specific

But this prominence is also a function of the influence of universalism in norma-

Human R ights as Political Concepts

In recent years, political accounts of international human rights have garnered

Putting aside challenges associated with relying on originalism in international

Human R ights as Legal Concepts

on international legal norms, which validates claims by States of sovereign authority

obligations—these and other questions typically remain open to legal interpreta-

Unlike moral conceptions of human rights, political conceptions link human

Specifically, human rights in international law tend to be defined in terms of the

entitlement, to organize global economic and political realities into an international

The Plan of the Book

international law conceptually brings legal order to international

Sover eignty and Its Exercise

Charles R. Beitz, The Idea of Human Rights 129 (2009).

international legal existence to a raft of multilateral treaties resulting from an

operation of international law. They represent normative judgments that interna-

Between the National and Inter national

General Assembly subsequently endorsed the “responsibility-to-protect” doctrine

between international and domestic legal orders is a fiduciary one: “international

Constitutional pluralism refers to a plurality of constitutional sources of authority and competing

Id. (footnote omitted).

international legal order; instead, they locate it elsewhere. In liberal democratic

Sover eignty and Its Distr ibution

including certain political communities, and legally excluding others, in a dynamic

Compare Hans Kelsen:

to the vagaries of domestic political contestation. However valuable international

in 1977, the UNESCO Courier published a slender essay by Karel Vasak, a

Karel Vasak, “Human Rights: A Thirty-Year Struggle,” 30 UNESCO Courier 11, 29 (1977).

Gener ations as Chronological Categor ies

Vasak’s metaphor of generations fails to capture the nature of human rights in at

and third-generation solidarity rights are in the process of receiving recognition in

League of Nations, which provided protection to populations displaced or adversely

of their actual emergence in international law. If we are to ascribe a chronology to

Gener ations as Analytical Categor ies

Another way of understanding human rights in generational terms is to treat Vasak’s

Whelan, supra note 12, at 210.

rights—whether civil, political, social, or economic—give rise to both positive and

Another way of understanding generations in analytical terms is to treat them as

Understanding classes of rights as conceptual sequences must confront not only

Civil and Political R ights as Monitors

Social and Economic R ights as Monitors

With the adoption of the International Covenant on Economic, Social, and

sovereign power that international law vests in collectivities it recognizes as States.

wrongly presupposes the existence of an international economic order made up of

Labor R ights as Instrumental R ights

This understanding of the relationship between international and domes-