Legal capacity in international human rights law

Original and magisterial, Patrick Macklem’s The Sovereignty of Human Rights departs radically from the moral and political conceptions of international human rights law (IHRL) that dominate the literature. Rather than grounding human rights on features of our shared humanity (the moral, orthodox conception) or on their role in global politics (the political conception), Macklem claims that the point and purpose of IHRL is to mitigate the adverse effects produced by the structure and operation of international law itself, and in particular, the adverse effects of its distribution of sovereignty to some entities – states – and not others. In this review essay, I suggest that Macklem’s mitigation theory succeeds admirably in explaining various international human rights that moral and political theories are hard-pressed to explain, such as collective rights and labour rights. The great virtue of his theory is that it recognizes the potent abuses international law’s distribution of sovereignty makes possible, and then calls on IHRL to serve a remedial and legitimating function from within international law itself. Macklem, however, subscribes to a positivist legal theory that is closer to Austin’s command theory than Hart or Raz’s positivism. As a consequence, Macklem’s theory struggles to account for the authority of IHRL. In the final section of the paper I suggest a friendly amendment that would let Macklem’s theory account for IHRL’s authority. The way forward is through the development of a relational conception of IHRL. This conception trades on a criterion of legitimacy according to which IHRL’s authority is constituted by its capacity to empower legal institutions to speak in the name of or on behalf of whomever is subject to them.

International Human Rights Law, 2023

In order to meet the growing interest in the practical response of the most rapidly developing branch of international law – human rights – we share with you the book titled ‘International Human Rights Law’. Human rights are characterized by an increasing degree of concreteness and recognition of norms in the various international systems and increasingly influence the application of domestic law. International law becomes a fundamental part of national law through ratification by states. This happens at three levels of the application and enforcement of international law, not limited by the subject matter, at the international, regional and national levels. It is expressed through its sources: treaties, agreements between states, as well as in the norms of customary international human rights law. The authors aim to show how the legislators of international law were guided by the ideas of protecting, promoting and ensuring the fulfilment of human rights to their fullest extent. Human rights are deeply rooted both in the science of Polish law and in the normative sphere. Already at the time of drafting the Polish Constitution of 3 May 1791, which was the first on the European continent and the second in the world after the US Constitution, human rights had firmly established meanings. One of the co-authors of the Polish Constitution, Hugo Kołłątaj, creatively developing the thoughts of Thomas Paine, presented his concept of rights with such a high degree of generality and the highest power of influence that it determined the content of the constitution and laws.

2016

this paper discusses the global instrumentilisation of human rights through international some legal texts

Columbia Law Review, 1982

European Journal of International Law, 2017

In this paper, I claim that civil society groups have a right to participate in international law-making. Although I believe there are various paths that can be taken to defend this idea, in this paper I focus on only one: I hold that the right can be derived from article 25(a) of the International Covenant on Civil and Political Rights, which grants every citizen “the right and the opportunity (...) to take part in the conduct of public affairs, directly or through freely chosen representatives” . As opposed to most scholars, who consider that this article is only applicable to the domestic law-making sphere, I argue that this provision can be read as granting global citizens a right to take part in international law-making.

2013

After the establishment of the United Nations and the subsequent outgrowth of international and regional institutions, it has become obvious that international law is no longer centered exclusively on the rights and duties of States. It has recognized the independent existence of a variety of international organizations and, in a number of situations, has imposed obligations on and granted rights to individuals. This work discusses the broadening of the traditional doctrine to include individuals as subjects of international law. Their role is reviewed through the concepts of their rights and duties in international law. Subsequently, the book considers the role of the individuals in the United Nations System, in particular, in its human rights protection mechanisms. As analyzed in the book, the establishment of the Human Rights Council raises new hopes as to making the UN human rights protection system more effective and also poses some open questions to be answered. The publication is aimed to serve as a useful small introduction for international public law specialists, human rights lawyers and all those who are interested in exploring this topical issue