 
# THE SOVEREIGNTY OF HUMAN RIGHTS

# The Sovereignty of Human Rights

Patrick Macklem

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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)

eISBN 978-0-19-026733-9

1. Human rights. 2. Civil rights. I. Title.

K3240.M3215 2015

342.08'5—dc23

2015006707

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## Contents

Acknowledgments

1. Field Missions

Human Rights as Moral Concepts

Human Rights as Political Concepts

Human Rights as Legal Concepts

The Plan of the Book

2. Sovereignty and Structure

Sovereignty and Its Exercise

Between the National and International

Sovereignty and Its Distribution

3. Human Rights: Three Generations or One?

Generations as Chronological Categories

Generations as Analytical Categories

Civil and Political Rights as Monitors of Sovereignty's Exercise

Social and Economic Rights as Monitors of Sovereignty's Exercise

4. International Law at Work

Labor Rights as Instrumental Rights

Labor Rights as Universal Rights

Labor Rights and the Structure of International Law

5. The Ambiguous Appeal of Minority Rights

The Moral Ambiguities of Minority Rights

The Political Ambiguities of Minority Rights

The Interdependence of Sovereignty and Minority Protection

6. International Indigenous Recognition

Indigenous Territories and the Acquisition of Sovereignty

Indigenous Recognition and the International Labor Organization

Indigenous Recognition and the United Nations

The Purpose of International Indigenous Rights

7. Self-Determination in Three Movements

Self-Determination and the Legality of Colonialism

The Many Paradoxes of Self-Determination

Bridging International Law and Distributive Justice

8. Global Poverty and the Right to Development

The Emergence of the Right

Implementing the Right

From Global Poverty to International Law

The Right to Development and the Rise and Fall of Colonialism

BIBLIOGRAPHY

INDEX

## 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 hospitality 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 institution 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 anonymous 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 grateful 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 providing me with valuable research funding.

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.

##

## FIELD MISSIONS

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 entitlements 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 international legal order to attend to pathologies of its own making. They monitor the distribution 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 perpetuation 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.

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, international 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 typically 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 international 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 distinctively 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 international legal order.

This role is not divorced from the demands of morality. Determining why certain 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 function in global political discourse. Human rights, according to political conceptions, are 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. 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 otherwise extends international legal validity. Thus, while human rights act as political reasons for international intervention and assistance in the practice of global politics, their international legal significance rests on their role as criteria for determining which of the countless claims and acts of power that constitute global politics can assume a mantle of international legal legitimacy.

### HUMAN RIGHTS AS MORAL CONCEPTS

Devoted to the protection and promotion of human rights deemed to possess international 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 customary 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. These include rights to property, life, liberty and security of the person; equal protection of the law; freedom of thought, opinion, expression, religion, assembly, and association; rights to social security, education, 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.

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. 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.

Each of these treaties establishes a monitoring body charged with overseeing State compliance. These treaty bodies provide specific comments on State reports as well as general comments on the legal nature and scope of relevant treaty provisions 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 alleging that their rights have been violated. Some are empowered to hear complaints by one State that another State is in violation of its treaty obligations. Some, like the Committee against Torture, may, on their own initiative, initiate inquiries if they have received reliable information about serious human rights violations.

Paralleling the international proliferation of human rights instruments and institutions 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. 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. 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."

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 nonexistence of a human right rests on abstract features of what it means to be human 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. Kant's conception of rights sweeps in much more of moral life than contemporary human rights law, but many contemporary moral accounts of human rights draw from the principle of universality on which it rests. James Griffin, for example, conceives of human rights as protections of "personhood" and argues that they "must be universal, because they are possessed by human agents simply in virtue of their normative agency." John Tasioulas defines human rights as "moral entitlements possessed by all simply in virtue of their humanity." 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." In a somewhat different—but equally universal—vein, human rights, according to Martha Nussbaum, protect "central human capabilities" that are fundamental to what it means to be truly human.

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 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. Rights and obligations 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 do not correspond to human rights and should not be identified as such by international 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." 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." Special rights, in contrast, arise from particular 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."

Moral accounts treat human rights as general rights. 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 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 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, regardless 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. 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, healthcare, and education. It conceives of these rights as imposing obligations on States to take measures to secure their protection. 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 common 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 obligations 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 protect 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 positive 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 political community may opt to entrench domestic rights protecting the welfare of its members by imposing positive obligations on State actors and institutions to provide, 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 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.

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 institution 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. Tasioulas has suggested 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 determining their existence. Tasioulas also takes issue with the requirement that correlative 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. 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 universality 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 the burden should not also be placed on a group of wealthy nations." 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.

Moral accounts of human rights cast in universal terms also struggle with international 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 affiliation. Some multilateral treaties also extend rights protection to various minority communities. 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.

In addition, recent developments at the regional and international levels signal a renewed commitment to rights that protect indigenous territories, cultures, and forms of governance from assimilative forces emanating from States in which indigenous peoples are located. 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 indigenous peoples. 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 geography 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 ethnicity 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 practice 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 assertions of a principle of indivisibility that holds all human rights to be interdependent and of equal value. 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. 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.

But this prominence is also a function of the influence of universalism in normative 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 culturally specific beliefs on communities that possess different inner logics, whereas universalists charge that relativists authorize violations of human rights in the name of cultural difference. Debates between universalism and relativism have long dominated moral inquiries into the nature of international human rights law. And so 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 assumption. 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 theorists "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." 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 RIGHTS 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.

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, presuppose 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 interests 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. "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."

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 discursive role in global politics. Ascribing meaning to such actions requires determinations 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 without a grasp of the intent behind it. The nature of the human rights that comprise the 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. The drafters 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."

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 interpretive enterprise that must specify a plausible method of discerning intent, distinguish 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 relation to the intentions of those whom they represent, and sift through countless, competing political motivations of a multiplicity of international actors.

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 international 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 conflating 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. 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.

Political conceptions of human rights rarely rest on crude versions of conventionalism, where what we do has normative value simply because we do it. 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 costs on those agents whose contributions the practice claims to exist." A second is how to generate "selection criteria for the substantive requirements of human rights." 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.

Other scholars conceive of selection criteria required of political conceptions of human rights in different terms. Joseph Raz argues that such criteria must be empirical 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 international legal order. 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." Michael Ignatieff offers a minimalist account of human rights, validating practices of intervention in the name of those human rights that relate to "the elemental 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." Selection criteria such as these provide political conceptions with critical distance from positive 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 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 determine 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 RIGHTS AS LEGAL CONCEPTS

Understanding international human rights as legal concepts starts with the premise that international law, not moral theory or political practice, determines their existence. An international human right to food, for example, exists because the International Covenant on Economic, Social, and Cultural Rights enshrines such a right. 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. Similarly, the right to development is a human right in international law because the U.N. General Assembly has declared its legal existence. 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, promulgation, or specification is in accordance with more general rules that international law lays down for the creation of specific legal rights and obligations.

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 formation 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 authorized 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 individuals, 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. Perhaps the most ambitious is Hans Kelsen's "pure theory of law," which epitomizes a positivist conception of international law. 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 creates 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 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 international 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 customary 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 international 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 international 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 participate 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." Such contestation does not cease upon the enactment of an international instrument 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 subsequently 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 establish 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 protects, the nature of the obligations to which it gives rise, the actors who bear these obligations—these and other questions typically remain open to legal interpretation. Various interpretive sources assist in resolving questions surrounding the content of an international human right, including the intent of those who participated in the politics that led to its legal existence. 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 determining the content of an international human right. Occasionally, a legal instrument 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 surrounding a human right useful. However, practice is not, as political theorists might propose, 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.

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 international 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 legal terms. For example, if the right to development imposes obligations on developed 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 justice 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 operation 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 similar 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 international 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 populations of States. They thus perform a distinct function in international law. They speak to adverse consequences of how international law deploys the concept of sovereignty 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 ameliorative role that it performs in relation to the structure and operation of international 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 law, then—depending on the nature of these harms and the ways in which international 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. 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 ongoing 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 universalism 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. Universalism does not determine the inside of international human rights law, and relativism does not determine its outside. By conceptualizing 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 universal 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.

Unlike moral conceptions of human rights, political conceptions link human rights to the function they perform in the broader global arena. Political conceptions treat international law as a subset of international politics. International law undoubtedly is the product of political projects. But international law also structures 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 political 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 associated with the ways in which international law constitutes global politics into an international legal order.

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 extensive latitude that the traditional international legal order conferred on States in the exercise of their sovereign authority. 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." 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 contestation over the scope and content of the various human rights that collectively constitute the field of international human rights law.

Specifically, human rights in international law tend to be defined in terms of the interests that they are designed to protect, 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 contestation 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 international 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 interpretive 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 interpretive 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 questions 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 operation of the international legal order. International human rights speak to distributional consequences of the fact that international law deploys sovereignty, as a legal entitlement, to organize global economic and political realities into an international legal order. International human rights monitor the distribution and exercise of sovereign 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 system 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 economic 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 international 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 international 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 comprehending 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 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 temporal emergence in international law. It then examines conceptions that treat generations 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 international labor rights from their origins as instruments that provided a floor of protection to shield worker protection regimes in domestic legal orders from international competition. It identifies a competing conception of the international legal significance 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 monitor 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, , and  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 validity. It identifies ambiguities associated with both moral and political conceptions of international minority rights and advances an alternative account of their normative significance in international law. On this account, international minority rights speak to wrongs that international law produces when it reallocates international 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 international 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 boundaries; and 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. 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 distribution 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 structure 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.

* * *

Universal Declaration of Human Rights, G.A. Res. 217A(III), U.N. Doc. A/RES/217(III) (Dec. 10, 1948).

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).

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).

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).

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 possess 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.

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 interpretation or application of the Convention to be resolved in the first instance by negotiation or, failing that, 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 procedure 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.

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.

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).

 _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").

Karen Knop, _Here and There: International Law in Domestic Courts_ , 32 N.Y.U. J. INT'L L. & POL. 501, 506 (2000).

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).

JAMES GRIFFIN, ON HUMAN RIGHTS 48 (2008).

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).

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).

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).

H.L.A. Hart, _Are There any Natural Rights?_ , 64 PHIL. REV. 175, 188, 183 (1955).

 _Id_. at 175.

 _Id_. at 183.

Charles Beitz also makes this connection. _See_ Charles Beitz, THE IDEA OF HUMAN RIGHTS 68 (2009).

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).

 _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).

 _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).

 _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).

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.").

TASIOULAS, _supra_ note 13, at 76.

 _Id_. at 77.

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 distribution of the burden would be." _Id._

 _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).

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).

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).

 _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).

 _See, e.g._ , Declaration on the Rights of Indigenous Peoples, A/RES/61/295 Ann. 1 (Sept. 13, 2007).

See S. James Anaya, INDIGENOUS PEOPLES IN INTERNATIONAL LAW (2d ed. 2004) for an account of international indigenous rights in these terms.

 _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).

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.

Cultural relativism is often broken down into a number of different versions. A common list includes descriptive 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 refinements 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 differing 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 cannot 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).

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, _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).

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).

 _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 Human Rights: The Most We Can Hope For?_ , 12 J. POL. PHIL. 190 (2004); JOHN RAWLS, THE LAW OF PEOPLES (1999).

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 assistance 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).

 _Id_. at 210.

BEITZ, _supra_ note 19, at 20–21.

 _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).

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 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 peoples 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).

It should be noted that Griffin argues that practice (in his words, "the human rights tradition") is consistent with and therefore supports conceiving of human rights in universal terms. GRIFFIN, _supra_ note 12, at 30–32.

 _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?").

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).

BEITZ, _supra_ note 19, at 126.

 _Id_., where Beitz also identifies the challenge of determining in whom obligations associated with human rights ought to vest.

According to Beitz ( _Id_. at 137), an argument for a justifying claim about "the content of human rights doctrine" 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.

Raz, _supra_ note 39, at 186.

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).

MICHAEL IGNATIEFF, HUMAN RIGHTS AS POLITICS AND IDOLATRY 173 (2001).

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).

ICESCR, _supra_ note 2, art. 11.

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).

 _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).

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 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 strategy 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).

See MARTTI KOSKENNIEMI, THE GENTLE CIVILIZER OF NATIONS: THE RISE AND FALL OF INTERNATIONAL LAW 1870–1960 (2001).

HANS KELSEN, INTRODUCTION TO PROBLEMS OF LEGAL THEORY (Bonnie Litschewski Paulson & Stanley L. Paulson trans., 1992).

COHEN, _supra_ note 44, at 170.

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 interpretation" 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."

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).

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).

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").

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).

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").

BUCHANAN, _supra_ note 54, at 125.

 _Id_.

For a theoretical defense of an interest-based view of rights, see RAZ, THE MORALITY OF FREEDOM (1986).

##

## SOVEREIGNTY AND STRUCTURE

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 international legal entitlement that vests in collectivities internationally recognized as States. International law confers legal validity on claims by States to extensive coercive power over people and territory by conceptualizing this power as State sovereignty. 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 collectivities possess international legal authority to govern people and territory.

International law shapes global politics into a legal order not only by legally validating some claims of sovereign power and refusing to validate others. International legal norms that perform this validating function also effectively produce an ongoing distribution of sovereign power among geographically concentrated collectivities 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 recognition of claims of sovereign power from other collectivities that it does not recognize as States. Although indigenous people now formally enjoy extensive rights of internal self-determination in international law, 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 realignment 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 collectivities it recognizes as States. This chapter examines in more detail these two contributions 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." 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. And, although it does not guarantee it, "sovereignty protects the normatively 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." Despite these and other values associated with the role that sovereignty 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 (Chapter 4); that international law episodically transfers the power to govern peoples and territories from some sovereign legal actors to others (Chapter 5); that some collectivities have their sovereignty legally recognized for centuries while, for others, international legal recognition is a recent phenomenon (Chapter 6); that sovereign 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).

### SOVEREIGNTY 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 different 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 limited only by the power of God. 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, 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. It can be indivisible, as in the case of a unitary State, or divisible, as in the case of a federal State. Sovereignty can be "pooled," "mixed," "pre-," "post-," even "floating." 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 normative terms, as a constellation of power that vests only in those entities that possess legitimate authority to rule people and territory; and in legal terms, as power that vests in an entity lawfully entitled to its exercise.

Cutting through some of this definitional maze, Stephen Krasner offers a fourfold typology of sovereignty's meaning. According to Krasner, sovereignty can refer to a State's international legal sovereignty, "Westphalian" sovereignty, domestic sovereignty, and interdependence sovereignty. 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 external 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 sovereignty 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 sovereignty. A State like Taiwan, he notes, "has Westphalian sovereignty but not international legal sovereignty."

For the purposes of understanding the structure that sovereignty lends to international law, the relevant question is not which, or which combination, of sovereignty'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 habitually make for themselves in their relations with other states." 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. Specifically, it refers to what international law recognizes as the legal 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 conceptualizing 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."

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 dizzying array of contexts, much of international law regulates the exercise of sovereign power by identifying its constituent elements and managing its limits. Does sovereignty 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 citizens? 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 international legal existence. Sovereignty in international law refers to what the international 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, transnational, and international legal authority in relation to matters that bear on its territory and population. As subsequent chapters seek to demonstrate, international human rights legally operate to mitigate some of the adverse consequences associated 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.

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 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." 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 concentrates power at dispersed locations not subject to higher-level control."

The legal account advanced in this book shares important affinities with political perspectives on human rights. It too requires international law to attend to pathologies 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 jurisdictional 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 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 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 established much more recently in 1995. These international organizations give institutional 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. If established by treaty, these arrangements are typically binding in international law, but their institutional design and their distributional consequences remain beyond the normative 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 multilateral agreements that mandate reciprocal tariff reductions and the elimination of non-tariff import barriers by signatory States. 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 other economic actors because of particular 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 organizations that possess the legal authority to interpret and enforce their terms.

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 foster liberalization of trade, services, and investment. WTO members meet periodically 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 products imported from another State in ways that benefit national producers. Third, the WTO requires all countries to eliminate quantitative restrictions, such as quotas 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.

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 consequences for individuals and groups both within and beyond its territory. In addition 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. But whether a State exercises internal or external sovereignty, the reasons international human rights hold States to account are internal to the structure and operation of international law. They represent normative judgments that international 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 INTERNATIONAL

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 consensus 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." That same year, drawing on the work of Frances Deng, 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. 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 conception, 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 population is suffering serious harm in the form of gross human rights abuses, the principle of nonintervention yields to an international responsibility to protect that population from harm by, if necessary, military intervention. The U.N. General Assembly subsequently endorsed the "responsibility-to-protect" doctrine in its 2005 World Summit Outcome, as did the Security Council in resolutions authorizing the use of force in Libya in 2011.

Others have taken the concept of conditional sovereignty to another level by characterizing international law as exhibiting properties of "global constitutionalism" and by linking the international legal order and domestic legal orders much more closely than contemplated by the "responsibility-to-protect" doctrine. In addition to affirming the emergence of the concept of conditional sovereignty in international 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. 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 normative legitimacy.

One illuminating consequence of comprehending the international legal order through the lens of constitutionalism is that it opens the door to seeing the relationship between national and international law in new ways. Mattius Kumm, for example, writes that this relationship reveals itself to be one of "mutual dependence." "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." For Peters, international and domestic legal orders work together to ensure respect for human rights and principles of constitutionalism. For Evan Fox-Decent and Evan Criddle, the relationship 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 nationals beyond their borders."

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 rudimentary 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 sovereign 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 pluralism" 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."

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, never lay beyond international law; it was an international legal product. And even if it did exist, it was absolute only in the sense that it was not subject to the authority of another State. It was and is subject to international law. 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 entitlement 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. 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. Regardless of the merits of Kelsen's theoretical claim, most national legal orders do not in fact or law ground their sovereignty in the 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 bottom 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 representatives." The Supreme Court of Canada has held that the Canadian "Constitution is the expression of the sovereignty of the people of Canada." 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.

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, including the duty not to intervene in the domestic jurisdiction of any State, the principle of the sovereign equality of States, and the principle of self-determination. Saying that international law authorizes the exercise of sovereign power means that international legal norms shape global economic and political life into an international 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 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. Others link it to classical liberal scholarship on the normative legitimacy of domestic political authority. 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 entities. Jack Goldsmith and Eric Posner offer a contemporary variant steeped in rational choice theory. They argue that "international law emerges from states' pursuit of self-interested policies on the international stage." For them, international law "is not a check on state self-interest; it is a product of state self-interest." They model customary 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.

To claim that international law is a mere repository of delegated national authority 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 international law is really only domestic law with international legal consequences, and sovereignty in international law is really only a projection of its domestic legal meaning. 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 legitimacy of such an order.

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 sovereignty in international law as delegated national authority assumes what it purports 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. 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." To this one might add the legal existence of peremptory or jus cogens norms subject neither to persistent objection nor to derogation, the growth of international individual criminal liability even if unincorporated into or contradicted by domestic law, the proliferation of assertions of universal jurisdiction, the third-party effects of treaties, and the U.N. Security Council's increasing penchant to legislate, enacting resolutions lacking any explicit or implicit time limitation and imposing permanent and binding international legal obligations on all States.

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, international 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. 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. 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 conceptualized 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 the ability of national legal orders to dominate international law and impair its conceptual capacity to independently organize global economic and political life into a distinct legal order.

### SOVEREIGNTY AND ITS DISTRIBUTION

Recall that, according to Charles Beitz, the purpose of "modern human rights doctrine" is to "address pathologies of a global political structure that concentrates power at dispersed locations not subject to higher-level control." 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 function. 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 exercise 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 sovereignty in international law produces pathologies relatively distinct from those associated with international law's authorization of the exercise of sovereign power. 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 distribution 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. 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 collectivity 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. Finally, international law also confers legal validity on a claim to sovereignty by a collectivity if it manifests certain properties that international law stipulates as conditions of acquiring statehood.

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 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 principles render the distribution of sovereignty capable of recalibration and realignment 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 international 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 international 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 promoted, and what values are compromised, by an international legal order that conceptualizes 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 others. Comprehending minority rights claims in terms of the role they can play in 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 function 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 inhabited 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 distribution 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. A State's sovereignty thus extended to its colonial territories and the peoples that it colonized. 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 sovereignty 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 masters 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 consequence of the dramatic international legalization of decolonization was that ex-colonies only acquired the incidents of sovereignty when they acquired sovereignty itself. Before they achieved sovereign recognition, control over natural 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. 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. 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 sovereign States, in Benedict Kingsbury's words, "has attained an almost ontological position in the structure of the international legal system." 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 formal 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 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 international 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 realities 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 collectivities 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, transferring peoples and territories from some sovereign legal actors to others.

Not only does international law validate an international distribution of sovereign power, it also validates countless ways in which sovereignty can be and is exercised. 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 exclusive 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.

* * *

See U.N. Declaration on the Rights of Indigenous Peoples, A/Res/61/295 Ann. 1 (Sept, 13, 2007).

BRAD R. ROTH, SOVEREIGN EQUALITY AND MORAL DISAGREEMENT: PREMISES OF A PLURALIST INTERNATIONAL LEGAL ORDER 7 (2011).

 _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).

JEAN L. COHEN, GLOBALIZATION AND SOVEREIGNTY: RETHINKING LEGALITY, LEGITIMACY, AND CONSTITUTIONALISM 78 (2012).

JEAN BODIN, LES SIX LIVRES DE LA RÉPUBLIQUE (1999).

JEAN-JACQUES ROUSSEAU, THE SOCIAL CONTRACT (trans. M. Cranston, 1968).

THOMAS HOBBES, LEVIATHAN (R. Tuck, ed., 1999).

 _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).

 _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).

 _Id_.

 _Id_.

See Dora Kostakopoulou, _Floating Sovereignty: A Pathology or Necessary Means of State Evolution?_ , 22 OXFORD J. LEG. STUD. 135 (2002).

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).

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).

STEPHEN D. KRASNER, SOVEREIGNTY: ORGANIZED HYPOCRISY (1999).

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.").

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.

PAUL KAHN, THE CULTURAL STUDY OF LAW: RECONSTRUCTING LEGAL SCHOLARSHIP 55–56 (1999).

For an early formulation of the distinction between internal and external sovereignty, see BODIN, _supra_ note 5, at Chapter IX.

CHARLES R. BEITZ, THE IDEA OF HUMAN RIGHTS 129 (2009).

 _Id._

This list is adapted from Curtis Curtis A. Bradley & Judith G. Kelley, _The Concept of International Delegation_ , 71 L. & CONTEMP. PROBS. 1 (2008).

For the view that international economic law is constraining the capacity of States to exercise internal sovereignty in ways that challenge key tenets of neoliberalism, see DAVID SCHNEIDERMAN, CONSTITUTIONALIZING ECONOMIC GLOBALIZATION: INVESTMENT RULES AND DEMOCRACY'S PROMISE (2008).

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).

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 international legal actors—including States—to not act in ways that exacerbate global poverty).

HENRY SHUE, BASIC RIGHTS 174 (2d ed. 1996).

FRANCIS DENG, SOVEREIGNTY AS RESPONSIBILITY: CONFLICT MANAGEMENT IN AFRICA (1996).

Report of the International Commission on Intervention & State Sovereignty, _The Responsibility to Protect_ (Dec. 2001).

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 apprehended, whether carried out by killing, forced expulsion, acts of terror or rape." _Id_. at 32.

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. 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).

2005 World Summit Outlook, G.A. Res. 60/1, A/Res/60/1, paras. 138–139 (Oct. 24, 2005).

S.C. Res. 1970, S/Res/1970, 26 (Feb. 2011); S.C. Res. 1973, S/Res/1973 Mar. 17, 2011).

 _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).

 _See_ Anne Peters, _Humanity as the A and Ω of Sovereignty_, 20 EUR. J. INT'L L. 513 (2009).

Kumm, _supra_ note 33, at 612.

 _Id_.

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).

EVAN CRIDDLE & EVAN FOX-DECENT, INTERNATIONAL LAW'S FIDUCIARY CONSTITUTION OF SOVEREIGNTY ch. 1 (forthcoming).

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).

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).

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").

See Hans Kelsen, _The Principle of the Sovereign Equality of States as a Basis for International Organization_ , 53 YALE L.J. 207, 208 (1944).

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).

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).

Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 404 (1856).

Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at para. 85 (Can.).

ROTH, _supra_ note 2, at 55 ("state sovereignty, far from being a status that conceptually precedes international 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").

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).

 _See_ INTERNATIONAL LAW: CHIEFLY AS INTERPRETED AND APPLIED IN CANADA 4 (Hugh M. Kindred & Phillip M. Saunders eds., 7th ed., 2006).

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).

CARL SCHMITT, CONSTITUTIONAL THEORY 123 (Jeffrey Seitzer ed., 2007).

JACK L. GOLDSMITH & ERIC A. POSNER, THE LIMITS OF INTERNATIONAL LAW 13 (2005).

 _Id_.

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.

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).

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).

Kumm, _supra_ note 33, at 608.

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).

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).

For discussion, see Cogan, _supra_ note 56.

For discussion, see Peters, _Compensatory Constitutionalism, supra_ note 37, at 587–88.

See, e.g., U.N. Doc. S/RES/1373 (2001) (on the financing of terrorism). For critiques of this development, 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).

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 international law stands to promote formalism, which embodies a "culture of resistance to power, a social practice 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).

 _See, e.g._ , Karen Knop, _Here and There: International Law in Domestic Courts_ , 32 N.Y.U. J. INT'L L. & POL. 501 (2000).

BEITZ, _supra_ note 20, at 129.

 _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 political 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").

According to some formulations, international law also entitles a people to form a State and assume sovereign 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.).

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.

 _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 necessity, 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).

Case Concerning Right of Passage over Indian Territory (Portugal v. India), 1960 I.C.J. 6 (Apr. 12).

 _See generally_ ANTONY ANGHIE, IMPERIALISM, SOVEREIGNTY AND THE MAKING OF INTERNATIONAL LAW (2004).

 _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."

Benedict Kingsbury, _Sovereignty and Inequality_ , 9 EUR. J. INT'L L. 559, 600 (1998).

##

## HUMAN RIGHTS: THREE GENERATIONS OR ONE?

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." 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 community 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.

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 scholarship. Institutions specialize in them, judges invoke them, scholars and practitioners rely on them, and students learn them when they learn about international human 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 differences 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 conceptually 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 conceptions of human rights, by highlighting differences that allegedly exist among different 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, generational 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.

### GENERATIONS AS CHRONOLOGICAL CATEGORIES

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. Carl Wellman puts it bluntly: "[g]‌enerations succeed one another, not only in that the members of one generation are born before those of the next generation, but also in that parents tend to die before their children." 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 accompanied 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.

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 chronological 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. In Marshall's words, "it is possible, without doing too much violence to historical accuracy, to assign the formative period in the life of each to a different century—civil rights to the eighteenth, political to the nineteenth and social to the twentieth."

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 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." 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, the European renaissance and reformation, and the cultural and literary milieu of the enlightenment. Accounting for international human rights in terms of generations, however, is not the same as determining their origins or antecedents. A generational account typically assumes their formal international legal existence and, at least from a chronological 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 chronology of international human rights confuses the origins or antecedents of human rights with their international legal existence.

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 international 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. 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." On this conception, first-generation civil and political rights initially received recognition, second-generation social and economic rights subsequently received recognition, 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 expression 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 international 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 protecting the rights of workers. Asbjørn Eide traces the genesis of labor rights in international 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 recommendations generated by a conference convened in Germany in 1890. According to Eide, the main contribution that the 1948 Universal Declaration made to international 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.

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 communities, minority rights received international recognition at the very moment that international law began to conceive of States as sovereign legal actors. While it recognized 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.

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 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 protection 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.

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 supervisory authority to working conditions in colonies and dependent territories. The ILO undertook studies in 1921 on the working conditions in these jurisdictions, establishing 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 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 maximum length or term of employment contracts; and regulations governing the use of migrant workers. Despite their weaknesses, indigenous civil and social rights nonetheless found 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 universal 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 protected. And characterizations of indigenous rights as instruments that protect interests associated with the right to self-determination—a right that is said to vest in all of us by virtue of our common humanity—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. 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. 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 generations 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. Characterizing human rights in chronological terms, whatever the commencement date, fails to adequately describe the timing 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.

### GENERATIONS AS ANALYTICAL CATEGORIES

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 generate 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." Social, economic, and cultural rights, in contrast, require "positive action by the state to be implemented." 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."

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. It suffices to say that, contrary to Vasak, who insisted on a sharp divide between positive and negative rights, all 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."

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 positive 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 poverty. 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 determine whether any given human right is positive or negative. It is instead to identify, 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 contains positive obligations will depend, in part, on how much value those specifying 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 generations of human rights correspond, respectively, to the three ideals of the French revolution: liberty, equality, and fraternity. In his view, liberty corresponds to first-generation rights because they protect fundamental freedoms such as freedom of expression and religion. Equality corresponds to second-generation rights because they are aimed at the amelioration of social and economic inequalities. 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.

Vasak argued that third-generation rights were necessary to address two deficiencies associated with first- and second-generation rights. The first is that a culture of rights promotes a culture of individualism, resulting in the social isolation 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 international level, enable a global coordinated response to the social isolation produced by a culture of individualism.

Equating the three generations of rights with the three ideals of liberty, equality, and fraternity, however, merely underscores the fact that different rights protect different interests and that these interests can be grouped into larger normative categories 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 international law, despite the diverse sets of interests that they seek to protect.

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 generation "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."

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 realization 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 fundamental human rights." 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."

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 as economic subsistence rights—a small set of rights that has priority over other human rights. 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 sacrificing the basic right would be quite literally self-defeating, cutting the ground from beneath itself."

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. They also include those rights that Shue identified as economic subsistence rights around which he sought to reorient U.S. foreign policy. 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. 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. 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."

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, he did not describe the relationship between basic and non-basic rights in generational 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.

Understanding classes of rights as conceptual sequences must confront not only the uncomfortable fact that they can be logically sequenced in a number of different 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, as illustrated by Baroody's understanding of self-determination as a "prerequisite" of all human rights. The concept first explicitly surfaced in the Proclamation of Tehran, issued at an international conference held in 1968. 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. In recent years, the United Nations has gone so far as to declare that the indivisibility, interdependency, and interrelatedness of human rights is "beyond dispute."

In international legal discourse on human rights, indivisibility is often joined with the concepts of interdependency and interrelatedness. Although precise definitions 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."

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. As an umbrella concept, indivisibility 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 dispute, 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 relating 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. 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. 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 international law share.

### CIVIL AND POLITICAL RIGHTS AS MONITORS OF SOVEREIGNTY'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 international 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 to sue and be sued, and rights associated with access to the judiciary. Civil and political 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, freedom of thought and conscience, speech and expression, religion, the press, assembly, and movement. They also include rights that relate more to the legal and political 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 exercise 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 normative 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 universal 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. 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 community, and saw their international legality as an effective means of popularizing its merits. Others may have sought their elevation to the status of international human rights as an effective means of combatting the spread of communism. 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 invariably 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." 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 segregated from convicted persons, and accused juvenile persons shall be separated from adults, and that penitentiary systems should strive to reform and rehabilitate prisoners. 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 disputes 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? Suggesting that liberty means more than freedom from arbitrary arrest and punishment, the Human Rights Committee has stated that article 10(1) extends beyond the criminal justice system to involuntary detention "elsewhere," including hospitals, psychiatric hospitals and detention camps. It has also stated that "treating all persons deprived of their liberty with humanity and with respect for their dignity is a fundamentally and universally applicable rule." As a result, the minimum requirements of article 10(1) do not vary depending on the "material resources available" 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 questions 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 reducible 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 RIGHTS AS MONITORS OF SOVEREIGNTY'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 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. It conceives of these rights as imposing obligations on States to take measures to secure their protection. 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.

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, 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, whereas social and economic rights in some central and eastern European constitutions seek to maintain a link to the past. 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 legitimacy in domestic legal orders. They acquire a measure of legitimacy domestically 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 community. 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 domestic 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." 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." 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 economic 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 matter 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 differences with civil and political rights dissolves. In other words, if one sees shortcomings associated with the lack of fit between social and economic rights and universalism not as revealing deficiencies in framing social and economic rights as 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 purport 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 mystifying 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. Most, if not all, international 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 international 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 peace and economic progress." 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 institutions 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." 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.

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 international law is more than what practice reveals to be their discursive function in international economic and political arenas. 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 mitigate the harm that States can cause to the bearers of such rights in the exercise of sovereign power that international law vests in collectivities it recognizes as States. International social and economic rights have both internal and external dimensions. Internally, they reiterate some of the reasons the international legal order values 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 bilateral trade and investment agreements, which determine the international legality of domestic and transnational economic activities. In these contexts, social and economic 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.

* * *

Karel Vasak, "Human Rights: A Thirty-Year Struggle," 30 _UNESCO Courier_ 11, 29 (1977).

 _Id_.

 _See_ Philip Alston, _A Third Generation of Solidarity Rights: Progressive Development or Obfuscation of 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).

 _Id_. at 641.

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)).

T.H. Marshall, _Citizenship and Social Class, in_ T.H. MARSHALL & T. BOTTOMORE, CITIZENSHIP AND SOCIAL CLASS 8 (reprint 1992) (1949).

 _Id_. at 10. For illuminating accounts linking Marshall's work to the role that social rights play in a globalized 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).

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).

JENNY S. MARTINEZ, THE SLAVE TRADE AND THE ORIGINS OF INTERNATIONAL HUMAN RIGHTS LAW (2012).

JOHN M. HEADLEY, THE EUROPEANIZATION OF THE WORLD (2008).

LYNN HUNT, INVENTING HUMAN RIGHTS (2007). For an insightful review and critique of the historiography of human rights, see Philip Alston, _Does the Past Matter? On the Origins of Human Rights_ , 126 HARV. L. REV. 2043 (2013).

Daniel Whelan makes the additional point that "[t]‌he problem with the generations approach is that it _permanently_ categorizes rights, not only by fixing the categories in history but also by finding within each generation incompatible philosophical sources of inspiration." DANIEL J. WHELAN, INDIVISIBLE HUMAN RIGHTS: A HISTORY 210 (2010) (emphasis in original).

 _See, e.g._ , MARY ANN GLENDON, A WORLD MADE NEW: ELEANOR ROOSEVELT AND THE UNIVERSAL DECLARATION OF HUMAN RIGHTS (2002).

Vasak, _supra_ note 1, at 29.

Alston, _supra_ note 3, at 317.

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).

 _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 interrelated and mutually reinforcing").

Article 27 of the Treaty, for example, stipulated that "those of the Confession of Augsburg, and particularly the Inhabitants of Oppenheim, shall be put in possession again of their Churches, and Ecclesiastical 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).

Article 7 of the Polish Minority Treaty, for example, stated that "[d]‌ifferences of religion, creed, or confession 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).

 _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 concerning 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).

See S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW (2d ed. 2004), for an account of international indigenous rights in these terms.

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.

 _See also_ Alston, _supra_ note 3, at 317.

Western Sahara (Advisory Opinion), 1975 I.C.J. 1 (Oct. 16).

Vasak, _supra_ note 1, at 29.

 _Id_.

 _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.

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).

NEIL KOMESAR, IMPERFECT ALTERNATIVES: CHOOSING INSTITUTIONS IN LAW, ECONOMICS, AND PUBLIC POLICY 235 (1994) (emphasis in original).

Vasak, _supra_ note 5, at 839.

 _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").

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).

Vasak, _supra_ note 5 (cited in Wellman, _supra_ note 3, at 642).

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).

G.A. Res. 637 (VII), U.N. Doc. A/C.3/L.296 (Dec. 16, 1952).

Summary Records of the Third Committee, 401st meeting, Jan. 24, 1952, A/C.3/SR.401, para. 45 (Jan. 24, 1952).

SHUE, _supra_ note 28.

 _Id_. at 19.

 _Id_.at 20–22.

 _Id_.at 22–29.

 _Id_.at 67–82.

 _Id_.at 18.

 _Id_.at 35–40.

WHELAN, _supra_ note 12, at 2.

U.N. Doc. A/C.3/L.296.

Proclamation of Tehran, International Conference on Human Rights, 13, U.N. Doc. A/CONF.32/41, 13 (Apr. 2–May 13, 1968).

 _See_ James W. Nickel, _Rethinking Indivisibility: Towards a Theory of Mutually Supporting Relations between Human Rights_ , 30 HUM. RTS. Q. 985 (2008).

WHELAN, _supra_ note 12, at 1.

 _Id_. at 2.

 _Id_. at 211 ("If we subscribe to the idea that (something about) human rights is truly indivisible, the generations approach confronts us with significant contradictions").

 _See_ Nickel, _supra_ note 47 (distinguishing between weak and strong "supporting relations" among human rights).

The latter example is Nickel's, _supra_ note 47, at 998.

Johannes Morsink, the author of an authoritative history of the drafting of the Universal Declaration, is of this view. See MORSINK, _supra_ note 32, at 295 ("[t]‌he drafters believed that people start life already possessing certain moral rights, the right to life being one of them").

For a contemporary defense of human rights in these terms, see HEADLEY, _supra_ note 10.

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).

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).

CCPR General Comment No. 21, art. 10, para. 2, Oct. 4, 1992.

 _Id_. For more detail on the Committee's jurisprudence on article 10, see Alex Conte, _Security of the Person, in_ DEFINING CIVIL AND POLITICAL RIGHTS: THE JURISPRUDENCE OF THE UNITED NATIONS HUMAN RIGHTS COMMITTEE 106–10 (Alex Conte, Scott Davidson & Richard Burchill eds., 2004).

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).

 _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).

 _See_ Courtney Jung, Ran Hirschl, & Evan Rosevear, _Economic and Social Rights in National Constitutions_ , 62 AM. J. COMP. L. (2014).

 _Compare_ Cass Sunstein, _Against Social Rights_ , 2 E. EUR. CONST. REV. 35, 36 (1993) ("constitutions should... work against a nation's most threatening tendencies").

 _See generally_ SANDRA LEIBENBERG, SOCIO-ECONOMIC RIGHTS: ADJUDICATION UNDER A TRANSFORMATIVE CONSTITUTION (2010).

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).

H.L.A. Hart, _Are There any Natural Rights?_ , 64 PHIL. REV. 175, 183 (1955).

 _Id_. at 188.

BEITZ, _supra_ note 31, at 102–17.

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).

 _Id_. at 131, 133, respectively.

 _Id_.

 _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).

##

## INTERNATIONAL LAW AT WORK

INTERNATIONAL LAW has long recognized that human rights vest in people who work. Many point to the 1919 Treaty of Versailles, which established the International Labour Organization (ILO), as the genesis of this tradition. The Treaty of Versailles called for domestic protection of the right of association, reasonable 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 prominent conventions, Conventions 87 and 98, set out detailed requirements addressing, respectively, the right to form a union and the right to bargain collectively.

International labor rights received additional attention after the Second World War. The Universal Declaration of Human Rights prohibits discrimination and slavery and enshrines a host of procedural and substantive rights that protect workers 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 discrimination. 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. The Convention on the Elimination of All Forms of Discrimination Against Women obligates States to take measures to eliminate discrimination against women in employment. 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.

Regional initiatives provide labor rights with an additional level of international legal protection. The European Social Charter enshrines a wide range of labor standards with which all EU countries must comply. 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, and the European Commission possesses the authority to issue directives on labor standards applicable to all member countries. 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 Agreement does not call for regional harmonization of labor standards, it does have a side agreement 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.

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 question, 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, democratic 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 instrumental 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 international 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 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 international 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 RIGHTS AS INSTRUMENTAL RIGHTS

Labor law, in countless domestic contexts, has long sought to promote just conditions of employment through a combination of rules premised on freedom of contract and general legislative imperatives. Rules premised on freedom of contract enable employers and employees, acting either individually or collectively, to negotiate the terms and conditions of employment. General legislative imperatives, such as minimum wage legislation, seek to guarantee a basic set of entitlements to employees regardless of the respective bargaining power of the parties. While their relative influence varies dramatically from country to country, the combination of contractual 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.

Labor law also tends to imagine employers and employees as occupying radically 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 determine the terms and conditions of their ongoing relationship against a differentiated background set of general legal entitlements. Employers tend to benefit from a background 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 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 guaranteeing 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. 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. 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 characteristically focus on how labor rights promote procedural and substantive values such as democratic self-government, human dignity, equality, and fairness 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.

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 bottom would ensue as States would engage in regulatory competition to attract capital, 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 protection 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 economic globalization—the strengthening of international economic interdependence 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." In such an environment, the traditional model of domestic labor law that weds individual or collective contractual 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 compliance, 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." International protection of labor rights, on this view, is instrumental to the successful operation of domestic labor law regimes.

This understanding of the relationship between international and domestic 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 international 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 encourage transnational alliances among workers and firms. It identifies international labor rights and standards by enacting recommendations, resolutions, declarations, and conventions. Recommendations and resolutions typically are aspirational in that they set standards to which States ought to adhere as a matter of international and domestic law. A declaration is a "formal and solemn instrument suitable for rare occasions when principles of lasting importance are being enunciated." 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," the founding of the ILO was a response to concerns 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 bargaining law, States looked to the ILO to ensure that domestic protection of workers did not produce international competitive disadvantage. The Constitution of the ILO gives voice to this expectation, declaring that "the failure of any nation to adopt human conditions of labor is an obstacle in the way of other nations which desire to improve the conditions in their own country."

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 protection 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. Failure to do so would "produce unrest so great that the peace and harmony of the world are imperiled."

Although it is relatively clear that those responsible for the creation of the ILO viewed international labor rights, in part at least, 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 employment 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 establishment of the ILO.

Mass production typically requires a centralized, hierarchical, and vertically integrated 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. On this model, to retain workers and minimize training and monitoring costs, employers establish internal labor markets in which seniority provides 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 ongoing 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 presupposes 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 primarily 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, countries with inconsistent records of development, and countries marred by civil and political strife to provide legal and political resources that match the domestic regulatory 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 implications 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." 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 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 dramatically 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 concept of unrestricted capital movements implies." 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."

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. Through contracting, subcontracting, outsourcing, and other forms of 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.

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 production system of variable geometry, of teamwork, of networking, outsourcing, and subcontracting." 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 capacity 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 competition, 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 regulating 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 operation 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.

### LABOR RIGHTS AS UNIVERSAL RIGHTS

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."

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 universal 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 favorable remuneration; reasonable limitation of working hours and periodic holidays with pay; and an adequate standard of living. The ILO's Committee of Experts 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 translated into binding terms the principles of that noble document."

Many if not all of the rights enshrined in the Universal Declaration are also rendered binding in conventional international law through and by several treaties 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 measures will lead to progressive improvements in compliance. Some of these treaties allow for individual complaints to be heard by a treaty-monitoring body that possesses the authority to express its views on whether a State is in breach of its treaty obligations.

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 conditions, and obligating States to provide technical and vocational guidance and training 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 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." 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 bargaining, irrespective of their size, in accordance with article 8(c) of the Covenant."

The second U.N. treaty of relevance is the International Covenant on Civil and Political Rights. The ICCPR is accompanied by a Protocol that authorizes 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. Its reasons were sparse. The Committee subsequently reversed itself and concluded that article 22 does protect a right to strike. In its 1999 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 general 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."

The Human Rights Committee has also recently made it clear that article 22 protects 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." 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." 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."

Like the conception of labor rights that underpinned their emergence in international 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 from international competition, the second suggests the inverse, that domestic protection 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 protect 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 stability, 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 regulation 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. Our relations with others—whether in love, in friendship, at work, or in social and political life—are the source and 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, possess 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 maintain 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, cultural, 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 relationship between labor and capital, the contours of which will vary dramatically from jurisdiction to jurisdiction and which may require constant monitoring and adjustment. Labor rights also typically impose positive obligations on others to secure their realization, make more sense in some national economies than others, and are tied to the international legality of processes of economic and social globalization in ways that moral accounts fail to grasp. In the words of Hugh Collins, "contrasts 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 their variability over time, create a significant doubt whether labor rights are properly classified as universal human rights." 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.

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. 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." In 1998, the ILO enacted a Declaration on core labor rights stipulating that even States that have not ratified the seven "fundamental" conventions "have an obligation... to respect, to promote and to realize, in good faith" their terms. 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 development, ought to respect this core. 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.

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 oversight and compliance—is being eclipsed by a diffuse political strategy of uncertain legal effect. Others question why, as a matter of principle, some issues fall within and others outside of the core. 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." 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, protect, 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. 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. In the absence of positive steps to promote, say, educational opportunities and access to health care, a prohibition on child labor may exacerbate what it seeks to cure. The definition of core labor rights and their negative character were critical to achieving an international consensus 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 comprehending 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." To many, the core standards enshrined in the 1998 Declaration are "equivalent to human rights." 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." 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. This strategy "marks a significant shift from the priority given in earlier 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." 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 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. instruments. As previously noted, the Universal Declaration of Human Rights enshrines rights to work, just and favorable conditions of work, protection against unemployment, 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 vocational guidance and training programs to workers. 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.

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. For Langille, "the legal project is not one of legally coercing states to abandon 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." 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.

For present purposes, that international labor rights might be better understood as instruments necessary to the pursuit of market freedom and economic prosperity is not the point. 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 relationship 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 operation 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.

### LABOR RIGHTS AND THE STRUCTURE OF INTERNATIONAL 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 communities 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 reciprocal tariff reductions and the elimination of non-tariff import barriers by signatory 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 particular 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 exercising 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 exercising their sovereign power beyond their borders, might establish international legal norms validating processes of economic globalization in ways that harm workers. 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 industries, especially when there is increased competition from low-wage jurisdictions. 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 freedom 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 international 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 "increasing globalization has generated a need for better global governance and that core labour standards, including the right to bargain collectively, must be a component of the reform of global governance." 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.

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, restrictions 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." 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.

The link between international legal norms validating economic globalization and international labor rights is illustrated by their inclusion in numerous bilateral 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. 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), and have the ILO "provide the normative structure for a system of global labor standards" enforced through trade sanctions. 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 internationally recognized core labour standards," claiming that "the International Labour Organization is the competent body to set and deal with these standards." The parties added that they "reject the use of labour standards for protectionist purposes, and agree that the comparative advantage of countries, particularly low-wage developing countries, must in no way be put into question." 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 cooperation 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 technical cooperation. 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 enforcement 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 employment 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.

The link between international legal norms validating economic globalization and international labor rights is also illustrated in international agreements that promote regional economic integration. The North American Free Trade 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 concerning child labor, occupational health and safety, and minimum wages. Several complaints 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 involving 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.

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, rendering 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. 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 fundamental rights of workers. It also reaffirms their commitment to respect, promote, and implement the rights and obligations set out in the 1998 ILO Declaration.

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 development 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 discourage 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 collectively. 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 national law. In 2007, the World Bank expanded the conditions in its procurement rules to include, for the first time, requirements on freedom of association and the right to collective bargaining.

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 conception 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 capacity to regulate international competition. But these accounts differ in one critical respect. On the instrumental account, labor rights received international legal protection 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 international 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 formal 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 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 measures that adversely affect the interests of workers inside and outside its jurisdiction. 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 international 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.

* * *

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?_ (unpublished 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).

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).

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).

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).

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 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).

European Social Charter (Revised), E.T.S. 163, (entered into force July 1, 1999).

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).

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).

North American Free Trade Agreement, 32 I.L.M. 289, 605 (1993).

North American Agreement on Labor Cooperation, 32 I.L.M. 1499, art. 27 (1993).

 _Compare_ Otto Kahn-Freund, _A Note on Status and Contract in British Labour Law_ , 30 MOD. L. REV. 635, 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").

 _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").

 _See, e.g._ , GABRIEL KOLKO, THE TRIUMPH OF CONSERVATISM 3 (1963) (most labor law reforms were supported 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").

 _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").

 _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").

 _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).

 _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' ").

 _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).

Jonathan Perraton, David Goldblatt, David Held & Anthony McGrew, _The Globalization of Economic Activity_ , 2 NEW POL. ECON. 257 (1997).

N. VALTICOS & G. VON POTOBSKY, INTERNATIONAL LABOUR LAW para. 10 (2d ed. 1995).

Memorandum of the U.N. Office of Legal Affairs, E/CN.4/L610 (1962).

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").

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 adoption 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) (stating 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").

ILO Constitution, adopted by the Peace Conference Apr. 1919, 15 U.N.T.S. 40, third preambular paragraph.

ILO Constitution, second preambular paragraph.

ILO Constitution, second preambular paragraph.

 _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").

Haas, _supra_ note 29, at 369.

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).

ILO Constitution, second preambular paragraph.

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).

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.

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).

 _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).

MANUEL CASTELLS, THE INFORMATION AGE, 1 _The Rise of the Network Society_ 475 (1996).

HAAS, _supra_ note 24, at 155.

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).

 _See generally_ THE FUTURE OF UN HUMAN RIGHTS TREATY MONITORING (Philip Alston & James Crawford eds., 2000).

E/C.12/1/Add.59 (09-05-2001), para. 39.

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").

There are currently 148 States parties to the ICCPR.

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.

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 providing, 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").

CCPR/C/79/Add.104. (30-03-1999), para. 25.

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.

CCPR/C/79/Add.105 (06-04-1999), para. 17.

 _See generally_ FREEDOM OF ASSOCIATION (Amy Gutmann ed., 1998).

 _See_ Kerry Rittich, _Social Rights and Social Policy: Transformations on the International Landscape, in_ 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").

HUGH COLLINS, _Theories of Rights as Justifications for Labour Law_ , IN THE IDEA OF LABOUR LAW 143 (Guy Davidov & Brian Langille eds., 2011).

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).

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).

 _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).

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).

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).

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").

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.

 _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").

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).

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).

Mundlak, _supra_ note 60, at 241.

Kevin Kolben, _Labor Rights as Human Rights?_ , 50 VA. J. INT'L L. 449, 454 (2010).

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).

 _Supra_ note 54, preamble.

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).

BOB HEPPLE, LABOUR LAWS AND GLOBAL TRADE 59 (2004).

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).

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).

Langille, _supra_ note 57, at 432, drawing on AMARTYA SEN, DEVELOPMENT AND FREEDOM (1999).

Langille, _supra_ note 28, at 75.

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, EMPLOYMENT, AND LEGAL EVOLUTION (2005). _See also_ the essays collected in EUROPE AND THE POLITICS OF CAPABILITIES (Robert Salais & Robert Villeneuve eds., 2004).

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.

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).

WORLD COMMISSION ON THE SOCIAL DIMENSION OF GLOBALIZATION, A FAIR GLOBALIZATION: CREATING OPPORTUNITIES FOR ALL (2004), at paras. 336, 414–442.

ILO, Declaration on Social Justice for a Fair Globalization, International Labour Conference, 97th Sess. (2008). _See generally_ Francois Maupain, _supra_ note 23.

CESCR, Statement on Globalization and Economic, Social and Cultural Rights (1998).

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).

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).

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).

David M. Trubek et al., _Transnationalism in the Regulation of Labor Relations: International Regimes and Transnational Advocacy_ , 15 L. & SOC. INQUIRY 1187, 1193 (2000).

WTO, Ministerial Declaration (1996), para 4.

For an extensive examination of these agreements, see ILO, SOCIAL DIMENSIONS OF FREE TRADE AGREEMENTS (2013).

Press Release, Office of the U.S. Trade Representative, _The Colombian Labor Action Plan: Three Years Later_ (Apr. 7, 2014).

For discussion, see ROBERT FINBOW, THE LIMITS OF REGIONALISM: NAFTA'S LABOUR ACCORD 144–53 (2006).

For discussion, see ILO, FREEDOM OF ASSOCIATION IN PRACTICE: LESSONS LEARNED 39 (2008).

 _Id_.

INT'L FIN. CORP., PERFORMANCE STANDARD 2, LABOR AND WORKING CONDITIONS (Apr. 2006).

WORLD BANK, PROCUREMENT OF WORKS & USER'S GUIDE (2007).

##

## THE AMBIGUOUS APPEAL OF MINORITY RIGHTS

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 established 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 international legal validity dramatically reshaped the structure of the international legal order. The 1923 Treaty of Lausanne, for example, delineated the territorial sovereignty 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.

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 arrangements operate to impose legal order on global politics by specifying the territory over which States can exercise sovereign authority. It also illustrates how international law participates in the creation of national, cultural, religious, and linguistic minority communities, such as Greek nationals living in Turkey, the Muslim population in Greece, and the Kurdish population in southeastern Turkey and neighboring Syria, Iraq, and Iran.

This chapter explores the nature and purpose of minority rights in international law. 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 international 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 assumption 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 possess 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, culture, and language and more on the relationship between international law and distributive 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 conditions that lead to their formal legal entrenchment. This account avoids the normative instabilities of attaching universal value to religious, cultural, and linguistic affiliation and instead challenges the international legal order to remedy pathologies of its own making.

### THE MORAL AMBIGUITIES OF MINORITY RIGHTS

Two seemingly contradictory commitments structure our international legal order. The first is to the sovereignty of States. States possess international legal authority to rule their territory and populations, rendering them sovereign legal actors in the global political arena. The second is to human rights. Individuals and collectivities 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." 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 international 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 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 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 international legal presence of some rights that protect interests that have less to do with essential features of our common humanity and more to do with the contingencies 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 traditional. 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 assimilative 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." 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 political theory on multiculturalism devotes itself to this theoretical challenge. Some argue that cultural protection is warranted because cultural affiliation is central to human identity. Others say that all of us benefit from cultural diversity, and for this reason, too, cultural protection is warranted. Still others are skeptical of attributing universal value to the fact of cultural difference. But rarely does what international law actually 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.

The protection that international human rights law accords to minority populations reflects this tenuous relationship between minority membership and universal value. 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 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 universal and individualistic premises, minority rights nonetheless protect some activities 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. Instead, the General Assembly transferred the matter of minority protection to the Sub-Commission on Prevention of Discrimination and Protection of Minorities, instructing it to undertake "a thorough study of the problem of minorities." In the words of Peter Hilpold, the General Assembly's "reluctance to act coupled with a request for more knowledge was a characterizing trait of the entire development of minority rights within the UN system."

The Universal Declaration does affirm the significance of culture. Article 27 of the Declaration enshrines the right to participate in cultural life. 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 protection was a "European issue" 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 generate 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." Article 27 was also relied on to block efforts to include cultural genocide in the definition of the Genocide Convention, which was being drafted simultaneously 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."

Despite its silence on minority protection, by guaranteeing freedom of expression, freedom of religion, rights of cultural and political participation, and equality rights to "everyone," the Declaration nonetheless guarantees equal citizenship 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 international 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 register 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 controversy 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 contemplated positive obligations on States, social, economic, and cultural rights were incapable of legal resolution and therefore should not be included in a unified document 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.

But no doubt beneath the surface of these debates lay deep ideological disagreements about the respective roles of the State and market in protecting social, economic, 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 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 minorities "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, unsuccessfully, 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. 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.

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 institutional site for the adjudication and elaboration of the collective rights of minority populations in international law.

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 features 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. Article 27 thus protects interests 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 minorities." 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.

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_ , 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 economic activity is "an essential element in the culture of an ethnic community," it falls under the protection of the Covenant. 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 purpose 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." 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 continued 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." It added, moreover, that State measures of this sort require "not mere consultation but the free, prior and informed consent of the members of the community."

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 owners of land in Tahiti where the French Polynesian authorities were constructing a resort. 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 application. 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." 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. It reached a similar conclusion with respect to the right to privacy.

_Hopu and Bessert_ is also significant in what it contributes to debates between universalism and relativism. Moral conceptions of human rights conceive of universal 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 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 emanates 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 instruments providing for minority protection. In a 1935 advisory opinion, for example, the Permanent Court of International Justice held that Albania violated the minority 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." But this truism also informs more contemporary understandings of minority protection. The "thorough 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.

This characterization finds textual support from the presence of equality rights and minority rights in both the 1992 Declaration and the ICCPR. If minority protection was simply a matter of equality, there would be no need for additional provisions 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 drafters, and States party to its terms, assumed that it obligates States to allow minority 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. 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 religion, or use their language. On the other hand, international legal actors and institutions 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." 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 members to enjoy and develop their culture and language and to practice their religion." But the Committee has also held that an official language in the public sphere does not violate the Covenant. 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. The Committee occasionally requests States to adopt positive measures to protect minority communities, but such requests are typically phrased in general terms, providing little insight on the precise positive obligations that article 27 imposes on States.

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 guaranteeing equal treatment and by promoting linguistic, educational, and cultural pluralism, territorial decentralization, and effective political participation. It also recommended the establishment of a Working Group on Minorities, which has since met annually. 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. 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.

While these initiatives suggest that issues surrounding minority protection possess 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 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 protection 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 MINORITY RIGHTS

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 international 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 capitalize on national, ethnic, religious, and linguistic differences to gain political power. Those responsible for the post-war international legal architecture eschewed minority 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 obligations on only those States with significant minority populations.

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 others, minority protection in international law displays what Jacob Levy has theorized as a "multiculturalism of fear." It values minority protection not only for reasons of universal value but also because it mitigates "dangers of violence, cruelty, and political humiliation [that] so often accompany ethnic pluralism and ethnic politics."

Concerns that minority rights possess the potential to both aggravate and alleviate ethnic conflict are especially prevalent in European human rights law. Numerous legal instruments and institutions in Europe engage questions of minority protection 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 occasional protection in the form of civil and political rights. What minority protection 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, minority 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 instrument 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.

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. Several decisions of the European Court of Human Rights—the primary judicial body responsible for interpreting the European Convention—open 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.

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 designated 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 eliminating pluralism, but to ensure that the competing groups tolerate each other." 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."

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. 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 territorial 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 culture and to pursue political and associative activities will be guaranteed." 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."

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 differential treatment of "persons who are significantly different." 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 persons 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 registration. _Thlimmenos_ effectively introduces the concept of indirect discrimination to Convention equality jurisprudence. It suggests that the equality guarantee, in certain circumstances, imposes positive obligations on the State to treat some members of society, in that case, members of a religious minority, differently than others.

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, specifically, 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, established 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 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.

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. 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 maintain their own cultural, educational, and religious institutions, and to participate in decisions about matters that affected their identities.

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. It emphatically asserts that members of national minorities possess equality rights and freedom of assembly, association, 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 surnames and first names, in local names, signs, and inscriptions, and in contacts with 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 appropriate 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. 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 minorities. 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 concerning the place of regional or minority languages in the context of education, the legal sphere, public administration, the media, cultural activities and facilities, the market, 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 guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities." 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.

Reforms in Turkey provide a vivid illustration of Copenhagen criteria compliance. Turkey was declared a candidate State destined to join the European Union conditional on Copenhagen criteria compliance in 1999. 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 humanity. 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 protection 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. 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 conflict 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. But do these pragmatic considerations exhaust the normative significance of 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 protection 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 INTERDEPENDENCE OF SOVEREIGNTY AND MINORITY 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 identity, 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. One reason lies in definitional difficulties. Given the fluidity of cultures, it is difficult to pin down essential features that merit protection in the form of rights. 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 commitments to State sovereignty. 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." Discussions of culture threaten to unleash relativist critiques of universalism, which paint commitments to international rights as disguised forms of moral imperialism. Instead of building a case for international minority rights from claims about the moral significance of cultural interests—claims that might trigger relativist backlash—legal scholars retreat 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. It also suggests, however, that sovereign statehood and political demands for cultural protection 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.

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 nondiscrimination, and the protection of ethnic, religious, or linguistic identity, including 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.

This system of minority protection was not a universal one; it governed only certain 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 Kurdish population. 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. 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. 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 failure obscures how the reasons for its establishment point the way to an alternative conception of international minority rights, one that seeks to locate their international 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 redistribution of sovereign power that occurred immediately after World War I, and sought to mitigate some of its adverse distributional consequences. Regardless of its institutional 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 distribution 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, international law organizes global politics into a legal order in which certain collectivities possess legal authority to rule people and territory. International legal rules determine which collectivities are entitled to exercise sovereign authority and over which territory and people such authority operates. In doing so, international law effectively 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. 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 communities and international boundaries—insiders and outsiders—are created." 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 authority, 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 depending 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 and visitors." 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 protection. 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, history, 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 concentration." 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 operation of international law underpins minority protection, then such protection can and should take into account the fact that the structure and operation of international law affects different minorities differently, and thus can and should be tailored to speak to their different circumstances.

This justification focuses the normative spotlight not on the legitimacy of minority rights but on the legitimacy of the boundaries of the broader political community 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 sovereignty over people who possess little affiliation to the broader political community 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 consistent with ideals associated with a just international legal order? Did the minority community accede to the norms by which sovereignty vested in its parent State? Were the preexisting entitlements of the minority community respected in the process by which the State assumed sovereign authority over its members?

Focusing on injustices produced by the structure and operation of the international 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. 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 themselves 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.

The account offered here, in contrast, facilitates differentiation among minority claims by locating their international legal significance in relation to the legitimacy 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 religious 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 among the myriad claims for minority protection vying for international legal recognition—by specifying their legal relevance in terms that relate to the structure and operation of international law. Differentiation along these lines does not resolve the contentious ethical, political, and legal issues associated with international minority rights. But it clarifies why some minorities and not others might merit international legal protection.

* * *

For a comparison of the Treaty of Sèvres and the Treaty of Lausanne, see Philip Marshall Brown, _From Sèvres to Lausanne_ , 18 AM. J. INT'L L. 113–16 (1923).

For a comprehensive analysis of this topic, see GAETANO PENTASSUGLIA, MINORITY GROUPS AND JUDICIAL DISCOURSE IN INTERNATIONAL LAW: A COMPARATIVE PERSPECTIVE (2009).

Jean L. Cohen, GLOBALIZATION AND SOVEREIGNTY: RETHINKING LEGALITY, LEGITIMACY, AND 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").

JAMES W. NICKEL, MAKING SENSE OF HUMAN RIGHTS 163 (2d ed. 2009).

WILL KYMLICKA, MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF MINORITY RIGHTS (1995).

Charles Taylor, _The Politics of Recognition, in_ MULTICULTURALISM: EXAMINING THE POLITICS OF RECOGNITION 25 (A. Gutman ed., 1994).

BRIAN BARRY, CULTURE AND EQUALITY: AN EGALITARIAN CRITIQUE OF MULTICULTURALISM (2000).

The ambiguous relationship between minority protection and universalism was presciently grasped by Pablo 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).

G.A. Res. 217A(III), U.N. Doc. A/RES/217(III) (Dec. 10, 1948).

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).

Peter Hilpold, _UN Standard-Setting in the Field of Minority Rights_ , 14 INT'L J. MINORITY & GROUP RTS. 181, 183 (2007).

For this history, see ELSA STAMATOPOULOU, CULTURAL RIGHTS IN INTERNATIONAL LAW 11 (2007).

 _Id_. at 13.

 _Id_. at 14 n.4 (quoting JOHANNES MORSINK, THE UNIVERSAL DECLARATION OF HUMAN RIGHTS 277 (1999)).

STAMATOPOULOU, _supra_ note 12, at 15 (emphasis in original).

Farrokh Jhabvala, _The Soviet-Bloc's View of the Implementation of Human Rights Accords_ , 7 HUM. RTS. Q. 461 (1985).

 _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).

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).

 _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 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).

 _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).

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).

Communication 197/1988. Official Records of the Human Rights Committee 1987/88, vol. II, p. 442. U.N. Doc. A/43/40 (1988).

 _Id_. at para. 9.2.

 _Id_. at para. 9.7.

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.

 _Id_.

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.

 _Id_. at para. 10.3.

 _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).

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).

Minority Schools in Albania, Advisory Opinion, 1935 P.C.I.J. (ser. A/B) No. 64 (Apr. 6).

U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, Special Rapporteur 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.

 _Id_. at paras. 211–212.

 _Id_. at para. 587. _See generally_ Ryszard Cholewinski, _State Duty towards Ethnic Minorities: Positive or Negative?_ , 10 HUM. RTS. Q. 344 (1998).

Capotorti, _supra_ note 32, at para. 217.

Human Rights Committee, General Comment 23: The Rights of Minorities (Art. 27), CCPR/C/21/Rev.1/Add.5 (Apr. 8, 1994).

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").

Waldman v. Canada, Communication No. 694/1996.

 _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).

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).

For analysis, see Tom Hadden, _The United Nations Working Group on Minorities_ , 14 INT'L J. MINORITY & GROUP RTS. 285 (2007).

U.N. Doc. E/CN.4/2006/74.

U.N. Doc. A/HRC/4/9.

 _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 conferring 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").

JACOB T. LEVY, THE MULTICULTURALISM OF FEAR 12 (2000).

Art. 14.

Arts. 10, 11, 9, 8, and 14, and Art. 3, Protocol 1, respectively.

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).

Serif v. Greece, para. 53.

 _Id_.

Case of Socialist Party and Others v. Turkey, App. No. 20/1997/804/1007, 27 Eur. H.R. Rep. 51 (1998).

 _Id_. at para. 13. It also affirmed that "no Turk will be entitled to enter paradise if a single Kurd remains in hell."

 _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).

Thlimmenos v. Greece, App. No. 34369/97, 31 E.H.R.R. 411, para. 44 (2000).

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).

 _See generally_ JENNIFER JACKSON PREECE, NATIONAL MINORITIES AND THE EUROPEAN NATION-STATES SYSTEM (1998).

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).

Council of Europe, Parliamentary Assembly Recommendation 1134 on the Rights of Minorities (1990).

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).

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).

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).

 _See, e.g._ , NATO PUBLIC DIPLOMACY DIVISION, NATO TRANSFORMED 21 (June 2004).

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 OF INTERNATIONAL ORGANIZATIONS ON THE CENTRAL AND EAST EUROPEAN STATES (Ronald H. Linden ed., 2002).

Helsinki European Council, Presidency Conclusions (Dec. 1999).

MILADA ANNA VACHUDOVA, EUROPE UNDIVIDED: DEMOCRACY, LEVERAGE, AND INTEGRATION AFTER COMMUNISM 121 (2005).

 _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").

STAMATOPOULOU, _supra_ note 12, at 4.

 _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).

Stamatopoulou, _Cultural Rights, supra_ note 12, 4–6, 245.

 _Id_. at 4.

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 history 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).

 _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 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 assimilation 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 cultural protection.

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).

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).

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").

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).

 _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 necessity, 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).

Jennifer Jackson Preece, _Minority Rights in Europe: From Westphalia to Helsinki_ , 33 REV. INT'L STUD. 75 (1997).

Kymlicka, _supra_ note 66, at 202.

 _Id_.

 _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").

 _Compare_ Kymlicka, _supra_ note 66, at 202 (arguing that article 27 embodies a generic approach to minority 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).

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).

##

## INTERNATIONAL INDIGENOUS RECOGNITION

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_. 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." Political recognition, such as the establishment of diplomatic relations, means that the recognizing 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 constitutive of statehood. It is a legal conclusion—Kelsen calls it "the establishment of a fact"—that a community meets international legal requirements of statehood. According to Kelsen, "by the legal act of recognition the recognized community is brought into legal existence in relation to the recognizing state, and thereby international law becomes applicable to the relations between these states."

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. 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 declaratory and constitutive accounts of recognition share is the insight, eloquently articulated 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 certain communities of value. In some circumstances, communities themselves exist in international law—not as States but as international legal actors in their own right. 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 indigenous 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 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, which declares that indigenous peoples possess a wide array of rights, including the right of self-determination. It affirms the international 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 international and domestic law.

If recognition may be said to be "comprised of two quite distinct acts: a political act and a legal act," 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 international legal instruments provide guidance on what constitutes an indigenous population 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 international 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.

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 structure 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 distribution of territorial sovereignty initiated by colonization, that exist between indigenous 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 international law draw from the "political fact" of indigenous peoples in the past? What is the relationship between legal recognition of States and legal recognition 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 governing 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 relation between legal recognition of States and legal recognition of indigenous peoples, 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 community is brought into legal existence," what he meant by "legal existence" is international legal recognition. 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 possesses 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 international 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 international 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 authority 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." When States establish that "a certain community fulfills these required conditions" of statehood, they perform "the legal act of recognition."

Kelsen enlisted States as legal authorities empowered to ascertain whether a community 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. The value of Kelsen's contribution lies not in which authority he regarded as performing legal recognition—a view rightly discounted by contemporary accounts of recognition that emphasize that the existence of a State as a subject of international law is not dependent on recognition by other States. 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.

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 authority to exercise sovereign power over persons and territory. International law distinguishes between legal and illegal claims of sovereign power made by communities seeking international legal status as States. Kelsen's characterization of how a political 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 territory. 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 ambitious plans of imperial expansion and began to establish overseas colonies. Each colonizing 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 imperial practice at the time. Some of these doctrines, such as cession, were antecedents of contemporary international legal principles that regulate the acquisition of sovereignty, but others, such as the doctrines of discovery and conquest, no longer form part of contemporary international law.

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 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 religion. European powers viewed indigenous peoples to be insufficiently Christian or civilized to merit recognizing them as sovereign powers. 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."

Imperial powers did not always treat indigenous peoples and territory in this way. Early colonial encounters yielded treaties between indigenous peoples and imperial 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 agreement between "two independent powers" constitutes a treaty binding on the parties to its terms. 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 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 sovereign 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, 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 assertion of sovereign power over indigenous peoples and their lands. 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 exclusion and inclusion vested States with international legal authority for the colonizing projects that they began centuries earlier. The adverse consequences of these projects, 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 "territorial integrity" of that State. In 1970, the U.N. General Assembly eliminated 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." 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 geographical 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 RECOGNITION AND THE INTERNATIONAL 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 and material well-being." As a result of the Berlin Conference, what was a justification 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.

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." 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 modern world," were to be 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 categories depending on the degree of their "development," which determined the extent to which they enjoyed political autonomy from their mandatory powers. 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."

International indigenous protection during this period, however, received the most attention from the International Labour Organization. Soon after its inception in 1919, the ILO sought to extend its supervisory authority to working conditions 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." The Constitution of the ILO specified that member States undertake to apply ILO Conventions to which they are party "to the non-metropolitan territories for whose international relations they are responsible, including any trust territories for which they are the administering authority." 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 territory 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 conditions." 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.

Unlike other ILO Conventions during this period that called for robust domestic 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 maximum length or term of employment contracts; and regulations governing the use of migrant workers. 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.

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 indigenous worker as "a worker belonging to or assimilated to the indigenous population of a non-metropolitan territory" or "dependent territory." 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 conditions of formal colonialism." It did not extend to indigenous populations living in independent States. In the words of Luis Rodríguez-Piñero, "the category of 'indigenous' served as a device for the regulation of the relations between the colonizer and the colonized."

The distinctly colonial conception of indigenous rights that informed international 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). 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. Convention 107 defines two "tribal and semi-tribal" populations that benefit from its protection. The first are comprised of people "whose social and economic conditions 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." 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." 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 colonisation." Such people must "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." 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 populations, but not all tribal populations are indigenous populations. 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 dramatically reconceived indigenous populations as populations located in "independent countries." 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 populations 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," and whose ancestors experienced colonization or conquest, possess international indigenous rights. Convention 107 reoriented the focus of international 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 international 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 territories that were under mandatory supervision prior to the War. The Trusteeship 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. As described in more detail in the next chapter, colonial populations both inside and outside of the trusteeship system became entitled to exercise 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 populations to acquire sovereign independence as of right. The second, governing indigenous populations, only entitled such populations to protection internal to and compatible with the sovereign authority of the State in which they were located.

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, 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," 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, it called for the recognition of indigenous legal and cultural traditions, and it required governments to provide indigenous populations with social security, adequate health services, and educational opportunities, and to respect indigenous customs, institutions, languages, and cultural differences.

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 flexibility 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 incompatible with the national legal system." Indigenous rights of ownership of land are to be respected "within the framework of national laws and regulations." Special measures are to be enacted to ensure the effective protection of conditions of employment—again "within the framework of national laws and regulations." Social security and educational opportunities are to be extended "where practicable." 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."

Second, Convention 107 cast indigenous protection primarily in terms of nondiscrimination. 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 members 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. It called for "national agrarian programmes" to secure "treatment equivalent to that accorded to other sections of the national community" with respect to the provision of land and means required to promote development. It required all member States to "do everything possible to prevent all discrimination between workers belonging to the populations concerned and other workers." It proscribed forced labor, "except in cases prescribed by law for all citizens." It required measures to ensure that indigenous people "have the same opportunity to acquire education at all levels on an equal footing with the rest of the national community."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." 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". 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. 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.

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, cultural differences, distinctive legal identities, and historical circumstances, have yet to become integrated into the life of their respective countries. International indigenous 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." Measures that provide indigenous protection are not to be "used as a means of creating 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 necessary." Such measures should also include "policies aimed at mitigating the difficulties experienced by these populations in adjusting themselves to new conditions of life and work." 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."

In 1989, the ILO adopted a revision of Convention 107, entitled the Indigenous and Tribal Peoples Convention No. 169. Convention 169, in the words of James Anaya, "is a central feature of international law's contemporary treatment of indigenous peoples' demands." Much of its prominence is due to the degree to which it departs from the orientation and commitments of Convention 107. 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 obligations 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," Convention 169 declares that indigenous peoples "shall have the right to retain their own customs and institutions, where these are not incompatible with fundamental rights defined by the national legal system and with internationally recognized human rights." It also recharacterizes indigenous rights as vesting in "indigenous peoples" in contrast to Convention 107's emphasis on "members of indigenous populations." It reiterates Convention 107's affirmation of indigenous ownership and possession of traditional lands, 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 environment of the areas which the peoples concerned occupy or otherwise use."

In addition, whereas Convention 107 conceived of indigenous protection primarily in terms of nondiscrimination, Convention 169 strikes a very different balance 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." 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." It requires governments to consult with indigenous peoples "through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly." 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 necessary for this purpose."

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." 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 fundamental criterion," not a sole criterion, which suggests that there are additional international legal requirements of indigenous recognition in international law.

Convention 169's provisions addressing this question are similar, but not identical, 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 peoples" 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. But, for both Conventions, an indigenous community possesses international indigenous rights because of its historic connection 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 promote 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 Rights and the International Court of Justice, 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." 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 RECOGNITION 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." The resolution commissioning 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 unnecessary or excessive and therefore may also become discriminatory in character." It recommended that States review existing legislation providing indigenous protection to determine whether protective measures are discriminatory, and called on all States to take appropriate measures to eliminate discrimination against indigenous populations. Such measures should not promote either "segregation" or "assimilation;" instead, they should promote the "integration of indigenous populations in the national community." "Integration," according to Resolution 1589, is "the most appropriate means of eliminating discrimination against those populations."

The study authorized by Resolution 1589 took twelve years to complete. Informally named after its author, the Martínez Cobo Report provided a comprehensive analysis 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 have introduced to protect indigenous populations in their midst, and it made extensive 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 distinguishing 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, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them." Second, notwithstanding Resolution 1589's commitment to integration, the Martínez Cobo Report rejected integration as an overarching objective of international indigenous protection. It noted "the widespread and open rejection by indigenous peoples of the concept of integration," 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." 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.

The Sub-Commission responded to the Martínez Cobo Report by establishing a Working Group on Indigenous Populations, which began work on a draft Declaration on the Rights of Indigenous Peoples in 1985. After extensive consultation and discussion in annual public meetings, the Working Group submitted a draft to the Sub-Commission eight years later. Another Working Group eventually produced 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.

True to the Report that recommended its adoption some twenty-four years earlier, the Declaration on the Rights of Indigenous Peoples enshrines the right of self-determination as its overarching normative commitment. 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." It also guarantees numerous, more concrete rights that effectively elaborate the content of indigenous self-determination. It enshrines rights of autonomy or self-government in matters relating to indigenous peoples' internal affairs, including the right to maintain and develop their political, economic, and social systems or institutions 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. It calls on States to recognize, observe, and enforce treaties they have entered into with indigenous peoples.

In addition, the Declaration enshrines the right of indigenous peoples to own, develop, control, and use the lands and territories that they have traditionally 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. 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. Also enshrined in the Declaration are the right to observe, teach, and practice tribal spiritual and religious traditions; the right to maintain and protect historical sites, artifacts, and other manifestations of their cultures; the right to restitution of spiritual property taken without free and informed consent, including the right to repatriate Indian human remains; and the right to protection of sacred places and burial sites. In addition, it lists rights to belong to an indigenous nation, to maintain and use tribal languages and transmit their oral histories and traditions, to be educated in their language, and to control their own educational systems. It also vests extensive rights to human and genetic resources, seeds, medicines, and intellectual property.

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 nondiscrimination and autonomy struck by Convention 169 to one weighted decidedly in favor of autonomy. It does contain provisions that require States to eliminate discriminatory 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." 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." 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 distribution 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 independent States."

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 international 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. They do not entitle indigenous peoples to acquire sovereign power as of right. They do not vest sovereignty in indigenous peoples, as sovereignty is understood in international law. Instead, international indigenous rights vest in indigenous peoples because international law vests sovereignty in States.

### THE PURPOSE OF INTERNATIONAL INDIGENOUS RIGHTS

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 proliferation 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. The deep cultural, geographic, and historical diversities of communities that identify themselves as indigenous peoples and that structure transnational indigenous politics partly explain why drafters of the U.N. Declaration on the Rights of Indigenous Peoples opted not to provide a definition. 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." But the absence of a definition in the Declaration, combined with its extensive set of rights, creates strong incentives on communities to adopt indigenous political identities in order to benefit from its terms.

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 community 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 criterion for determining the groups to which the provisions of this Convention apply." 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." But States relied on this provision to propose a strict definition of indigenous peoples, which indigenous participants rejected as under-inclusive. 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."

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 communities. 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. Recall the distinction between constitutive and declaratory theories of recognition in international law. 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 possession 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 determine 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 international recognition of indigenous peoples, in Kelsen's words, is "comprised on two quite distinct acts: a political act and a legal act." While Kelsen remained influenced 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 indigenous 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 international law itself to supply the criteria by which to determine the international legal existence of both States and indigenous peoples.

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 institutions." To strive for a precise definition of "indigenous peoples" that will determine which collectivities possess international indigenous rights will do violence to "the fluidity and dynamism of social life." The fact that indigenous peoples possess international legal status "holds great normative power" for many communities around the world. 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 functional definitions, that are influenced by, and influence, the more general abstract global concept." Kingsbury points out that indigenous populations in east, southeastern, 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 indigenous peoples to sort the legal validity of the political claims of international indigenous 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." In place of an overarching definition, Kingsbury offers four factors as criteria for international legal recognition of indigenous peoples: self-identification as an indigenous population; an experience of severe disruption, dislocation or exploitation; a long connection to the region; and the wish to maintain a distinct identity. This approach enables "dynamic processes of negotiation, 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."

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 attention 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 economic 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, linguistic communities, impoverished majorities—are we all indigenous peoples now?

Determining the criteria for legal recognition of indigenous peoples requires taking an interpretive stand on the nature and purpose of international indigenous rights themselves. Indigenous rights in international legal instruments are sometimes 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." As the U.N. Declaration suggests, international indigenous rights can also be construed as concrete expressions of a more general right of self-determination that inheres in all people. From this universal 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 criteria for international indigenous recognition that focus primarily on the barriers that indigenous peoples face in the effective enjoyment of universal human rights, including the right of self-determination.

But this universal approach risks losing sight of the international legal instruments that it seeks to vest with normative significance. What the legal history of international indigenous protection reveals is that indigenous rights in international law are differentiated rights that recognize differences—partly denied and partly produced by the international distribution of territorial sovereignty initiated 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 organization 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 territory 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."

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 international legal existence is conditional on the formal legal status of the jurisdiction 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 population. After Convention 107, only members of indigenous populations of independent 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 formulation, indigenous recognition in international law is predicated on the legal nature of 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. But, as a result, international indigenous rights mitigate some of the adverse consequences of how international 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 collectivities 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 indigenous peoples. The criteria by which indigenous peoples can be said to exist in international 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.

* * *

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).

Kelsen, _supra_ , 605.

 _Id_. at 607.

 _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 contemporaneous 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).

 _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).

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").

A/Res/61/295 Ann. 1 (Sept. 13, 2007).

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).

Kelsen, _supra_ note 1, at 605.

 _Id_. at 609.

 _Id_. at 607–08.

Id. at 609.

 _See_ HANS KELSEN, PURE THEORY OF LAW (trans. Max Knight, 2d ed. 2005).

See sources cited _supra_ , note 5.

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.

This is not to suggest that international law, or at least the principles governing the acquisition of territory, 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 relating to colonial order."

 _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 possessed no rights of territorial control which the European explorer or his monarch was bound to respect").

Johnson v. M'Intosh, 21 U.S. 543, 573 (1823).

 _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).

 _See supra_ note 17 for references to WESTLAKE, HALL, OPPENHEIM, AND HYDE. For an analysis of earlier manifestations, see ROBERT A. WILLIAMS, JR., THE AMERICAN INDIAN IN WESTERN LEGAL THOUGHT: THE DISCOURSES OF CONQUEST (1990).

 _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 territories 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.

 _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 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/8028, Annex at 122 (1970).

 _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 territory have exercised their right of self-determination").

General Act of the Conference of Berlin, art. VI.

For a diplomatic history of the Berlin Conference, see SYBIL E. CROWE, THE BERLIN WEST AFRICAN CONFERENCE, 1884–1885 (1942).

Art. 23.

Art. 22.

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.

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.

Art. 23, Covenant of the League of Nations.

ILO Constitution, art. 35.

 _Id_.

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).

 _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 concerning 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).

RODRÍGUEZ-PIÑERO, _supra_ note 33, at 36 n.104.

 _See, e.g._ , Conventions No. 64 and 86, respectively.

RODRÍGUEZ-PIÑERO, _supra_ note 33, at 36.

 _Id_. at 47.

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).

For a detailed account of these initiatives, see RODRÍGUEZ-PIÑERO, _supra_ note 33.

Convention 107, _supra_ note 39, at art. 1(1)(a).

Russel Lawrence Barsh, _Revision of ILO Convention No. 107_ , 81 AM. J. INT'L L. 756, 757 (1987).

Convention 107, _supra_ note 39, at art. 1(1)(b).

 _Id_.

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.

Convention 107, _supra_ note 39, at art. 1(1).

 _Id_. at art. 1(1)(b).

U.N. Charter, arts. 75–91.

U.N. Charter, art. 73.

 _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").

 _See_ art. 15 (recruitment and conditions of employment) and arts. 16–18 (vocational training, handicrafts, and rural industries).

Preamble.

Art. 11.

Art. 7.

See arts. 19 and 20 (social security and health), and arts. 21 and 22 (education).

Arts. 7, 8, 23, 26.

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).

Art. 13(1).

Art. 15(1).

Arts. 19 and 23.

Art. 28.

Preamble.

Art. 14.

Art. 15.

Art. 9.

Art. 21.

Art. 2(1).

Art. 4.

Arts. 2(4), 2(2)(c).

For an extensive analysis of the meaning of integration in Convention 107, see RODRÍGUEZ-PIÑERO, _supra_ note 33.

Art. 1(2).

Arts. 3(2)(a), 3(2)(b).

Art. 4(c).

Art. 3(1).

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 contemporaneous account of the revision of Convention 107, see Lee Swepston, _Indigenous and Tribal Peoples and International Law: Recent Developments_ , 30 CURRENT ANTHROPOLOGY 259 (1989).

S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW 58 (2d ed. 2004), 58. For a comprehensive 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).

 _See_ Siegfried Wiessner, _Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis_ , 12 HARV. HUM. RTS. J. 57, 100 (1999).

Convention 107, art. 7(2).

Convention 169, art. 8(2).

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, art. 11.

Convention 169, art. 13(2).

Convention 169, art. 7(1).

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).

Art. 6(1)(a).

Art. 6(1)(c).

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).

 _But see_ Jeff J. Corntassel, _Who Is Indigenous? 'Peoplehood' and Ethnonationalist Approaches to Rearticulating Indigenous Identity_ , 9 NATIONALISM & ETHNIC POL. 75 (2003).

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 'establishment of present state boundaries' is more neutral and could be seen as diminishing the normative power of the other two").

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.

Namibia, 1971 I.C.J. 16, at 31; Western Sahara, 1975 I.C.J. 12, at 31.

Art. 1(3).

ECOSOC Resolution 1589 (L) of 21 May 1971.

ECOSOC Resolution 1589 (L) preamble, para. 1 (May 21, 1971).

 _Id_. at para. 4.

 _Id_. at preamble, para. 3.

 _Id_. at preamble, para. 3.

 _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.

U.N. Doc. E/CN.4/Sub.2/1983/21/Add.1, para. 67.

U.N. Doc. E/CN.4/Sub.2/1983/21/Add.8, para. 580.

 _Id_. at para. 312.

U.N. Doc. E/CN.4/1993/29, Annex 1.

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).

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 "fundamental policy goal" of the U.N. Declaration on the Rights of Indigenous Peoples).

Art. 3, A/Res/61/295 Ann. 1 (Sept. 13, 2007). For analysis of debates on this issue during the drafting process, see KNOP, _supra_ note 80, at 255–61, 263–71.

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").

Art. 4.

Art. 20(1).

Art. 5.

Art. 37.

Arts. 26, 28.

Arts. 7(1), 8.

Art. 12

Art. 11(1).

Art. 12(2).

Art. 9.

Art. 13.

Art. 14.

Art. 31.

Art. 21.

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).

Art. 46(1).

 _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] institutions and other government institutions of the state and between indigenous people and other people within or outside the autonomous area").

On the contemporary formation of indigenous political identities, see COURTNEY JUNG, THE MORAL FORCE OF INDIGENOUS POLITICS (2008) (indigenous identity is a political achievement).

 _See generally_ Benedict Kingsbury, _"Indigenous Peoples" in International Law: A Constructivist Approach to the Asian Controversy_ , 92 AM. J. INT'L L. 414 (1998).

Working Group on the Draft Declaration, _Report on the First Session_ , U.N. Doc. E/CN.4/1996/84, at 7.

 _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").

Art. 1(2). See _supra_ text accompanying notes 87–88.

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.

For discussion of this drafting history, see Gilbert, _supra_ note 103, at 216–17.

Art. 33.

Report of the Working Group Established in Accordance with Commission on Human Rights Resolution 1995/2.E/CN.4/1998/106, para. 37.

See _supra_ text accompanying notes 1–5.

Kelsen, _supra_ note 1, at 605.

 _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").

Kingsbury, _supra_ note 123, at 415.

 _Id_. at 414.

 _Id_. at 415.

 _Id_. at 415, 416.

 _Id_. at 414.

 _Id_. at 453.

 _Id_. at 457.

Convention 107, Recommendation No. 104, preamble para. 5.

 _See_ ANAYA, _supra_ note 76, at 99 ("the principle of self-determination arises within international law's 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).

 _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 legitimation and delegitimation, institutional adherents, discursive community, and boundary markers").

W. Michael Reisman, _Protecting Indigenous Rights in International Arbitration_ , 89 AM. J. INT'L L. 350, 359 (1995).

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").

##

## SELF-DETERMINATION IN THREE MOVEMENTS

WHEN ARAB, 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." 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. 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." 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.

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 international law and international human rights law. It is a movement between legal orders, from its engagement with the international realm to an additional engagement 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, less has been written about their cumulative effect on the normative role that the right plays in the international legal order. This chapter proposes that these three movements yield a new purpose for self-determination in international law. Its new purpose 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 distribution of sovereign power among collectivities that international law recognizes 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 implications 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-DETERMINATION 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. The Charter also calls for the promotion of a number of social and economic 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." 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."

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 conception of self-determination, it meant one thing: established states had a right to be left alone by other states." 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 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 imperial control. A State's sovereignty thus extended to its colonial territories and colonized 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 discourse 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." 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. 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."

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 existing 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 characterize 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 legitimating 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." 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 categories depending on the degree of their "development," determining the extent to which they enjoyed political autonomy from their mandatory powers. Mandatories were responsible for the "tutelage" of peoples inhabiting mandates—in Woodrow Wilson's words, they were "tutors and advisors of these people"—in accordance with "the principle that the well-being and development of such peoples form a sacred trust of civilization."

This conception of self-determination in international law—one that legally validated the establishment of nation-States in Europe and the colonization of peoples elsewhere—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 simultaneously reaffirmed the "principle" of self-determination and the international 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 statehood. 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 trusteeship 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."

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." 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 provided 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.

The 1960 Declaration thus treats the right of self-determination as an instrument 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." The elevation of self-determination to the status of a human right was a striking political achievement, 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 colonial 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 colonialism was an intolerable and illegitimate abuse to be done away with as speedily as possible by the international community." The relationship between colonized and colonizer was no longer shielded from international scrutiny as a matter "essentially within the domestic jurisdiction" of a State. 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. 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." 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." Crawford Young characterized the right of self-determination as an "instrumental norm for the anticolonial movement, a means to the transcendent end of immediate independence." 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."

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 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 determine 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 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." 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?

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 communities within States and across States? The 1960 Declaration sets forth that all peoples possess the right of self-determination. It also declares that "alien subjugation, 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 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. Partly the result of continued efforts by Arab, Asian, and African delegations to recast basic principles of international law, the 1970 Declaration provides 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 sovereign 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." 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 peoples, 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. But it also provides that these forms of oppression constitute a violation of the "principle" of self-determination. Theoretically, this could cover a wide variety of circumstances. 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 territory 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." 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 government representing the whole people without distinction as to race, creed or colour."

Taken together, the two Declarations produced two specifications of the right of self-determination. First, they treat the right as an instrument of acquiring statehood 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 acquiring statehood, outside the colonial context, in cases of "alien subjugation, domination 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."

The first specification of the right of self-determination legitimated an impressive record of decolonization. Between 1945 and 1970, seventy territories achieved independence. 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 referendum before the accession to independence. But given that there are very few formal colonies still remaining in the world, 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," others, in Orentlicher's words, are equally "reluctant to retire the right and have earnestly sought to find it new work." 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. trusteeship authority. Part of the Court's reasons for upholding the resolution rested on the importance of the principle of self-determination. With the mandate terminated, South Africa's continued presence in Namibia amounted to a foreign occupation 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 calling "upon the Government of Indonesia to withdraw all its forces from the territory without delay." 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.

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. 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. 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 politically charged context." But the Court does not address broader questions concerning 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 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 PARADOXES OF SELF-DETERMINATION

Given its commitment to State sovereignty, public international law bears an awkward 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. 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 protect 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 ambivalence 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. It does conceive of the right as an instrument of State relations, as a means of "furthering the development of friendly relations among States," 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."

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 human rights law on democratic governance. 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 characterize the right as a universal right in that everyone participates in communal bonds of some sort, 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 distribute 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." International human rights law historically dealt with hard cases by avoiding them, limiting the ability of individuals 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 ICCPR 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. The ICJ's advisory opinion addressing the international legality of Kosovo's unilateral declaration 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.

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 dimensions. 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.

The spectrum of institutional possibilities short of sovereign independence contemplated 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. It also contemplates social, economic, or cultural rights that recognize or provide a sphere of collective autonomy to a community critical to securing internal self-determination. This 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.

Internal self-determination's spectrum of institutional possibilities shares important 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 minority 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. 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 challenge. 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 authority of States.

Redesigning and disaggregating the right of self-determination to accommodate 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 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 establishment 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.

Yet a wholly contextual determination of the appropriate form of constitutional 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 contextual 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. 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. 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."

Despite its indeterminacy, the emergence of a right of internal self-determination provided an opportunity to extend external self-determination's reach beyond the colonial 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 colonized 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 migration 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 subjugation, domination and exploitation" to constitute a violation of self-determination and which makes respect for territorial integrity contingent on the presence of a "government representing the whole of a people." But it is mostly because, normatively speaking, 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 outside of the context of colonialism might be entitled to exercise a right of external self-determination to acquire sovereign statehood. Christian Tomuschat, for example, 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 population, those groups cannot be obligated to remain loyally under the jurisdiction of that State." 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. 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 participation in the political process." According to Hannum, however, a State that has a democratic, nondiscriminatory voting system but whose whole political life is dominated 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 relationship between internal and external determination ushered in by self-determination's third movement. This relationship, which sees an external right triggered by a violation 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, historical or territorial identity." 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 representative government in the state." 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 community will tolerate in a self-determination claim, on the other. If a government 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.

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 relationship. In contrast, external self-determination entails the dismantling of existing relationships that exist between a people and the State in which it finds itself.

The relationship between internal and external self-determination was publicized by the Supreme Court of Canada's judgment in the _Secession Reference_. 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." 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."

The Court also drew a distinction between external and internal self-determination, specifying that external self-determination is available where a colony wishes to break free of its colonial status, and "where a people is subject to alien subjugation, domination or exploitation outside a colonial context." 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."

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.

### BRIDGING INTERNATIONAL LAW AND DISTRIBUTIVE 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 distribution 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 independence. 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 authorizes 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 structure and operation of international law and distributive justice? Implicit in the performance 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 sovereignty 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 dimensions 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 validity. 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 systematic 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 status 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 international legal order.

* * *

A.W. BRIAN SIMPSON, HUMAN RIGHTS AND THE END OF EMPIRE: BRITAIN AND THE GENESIS OF THE EUROPEAN CONVENTION 814 (2004).

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).

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).

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).

 _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 analysis 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).

A notable exception is the work of Allen Buchanan. _See_ ALLEN BUCHANAN, JUSTICE, LEGITIMACY, AND SELF-DETERMINATION: MORAL FOUNDATIONS FOR INTERNATIONAL LAW (2004).

U.N. Charter, art. 1(2), 1 U.N.T.S. XVI (Oct. 24, 1945).

 _Id_. at art. 55.

 _Supra_ note 4.

Diane Orentlicher, _Separation Anxiety: International Responses to Ethno-Separatist Claims_ , 23 YALE L.J. 1, 22 (1998).

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.

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).

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").

Memorandum by Isaiah Bowman (Dec. 10, 1918), quoted in COHRS, _supra_ note 12, at 64.

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).

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_.

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).

 _Id_. For more detail on the legal apparatus of the mandates system, see CRAWFORD, _supra_ note 5, at 565–601.

 _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").

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).

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).

 _Id_. at art. 5.

BURKE, _supra_ note 2, at 37. Burke provides a detailed historical account of the changing impact of decolonization on the U.N. human rights program. _See also_ Jochen von Bernstorff, _The Changing Fortunes 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.

Rupert Emerson, _Colonialism, Political Development, and the UN_ , 19 INT'L ORG. 484, 486 (1965).

U.N. Charter, art. 2(7).

This discussion of the relationship between self-determination and decolonization is indebted to BURKE, _supra_ note 2, at 35–58.

Louis Henkin, _The United Nations and Human Rights_ , 19 INT'L ORG. 504, 513 (1965).

 _Id_. at 513.

Crawford Young, _African States and the Search for Freedom, in_ THE IDEA OF FREEDOM IN ASIA AND AFRICA 32 (Robert H. Taylor ed., 2002).

 _Id_.

Declaration on the Granting of Independence to Colonial Countries and Peoples, _supra_ note 21, at art. 6.

To be precise, this question arose only with respect to non-self-governing territories. _See_ note 11, _supra._ For more discussion, see CRAWFORD, _supra_ note 5, at 568–69.

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).

 _Id_.

 _Id_.

 _Id_.

 _Id._

 _Id_.

CASSESE, _supra_ note 5, at 74–76.

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).

Oklopcic, _supra_ note 13, at 102.

Orentlicher, _supra_ note 10, at 44.

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).

S.C. Res. 384, U.N. Doc. S/RES/384 (Dec. 22, 1975).

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.

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).

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 settlements, as deplored by the Security Council.... There is also a risk of further alterations to the demographic 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.

MILENA STERIO, THE RIGHT TO SELF-DETERMINATION UNDER INTERNATIONAL LAW: "SELFISTANS," SECESSION, AND THE RULE OF THE GREAT POWERS 94 (2013).

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").

U.N. Charter, _supra_ note 7, at art. 55.

 _Id_.

CASSESE, _supra_ note 5, at 43.

 _See, e.g._ , Thomas Franck, _The Emerging Right to Democratic Governance_ , 86 AM. J. INT'L L. 46 (1992).

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").

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).

 _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.

 _See_ Cassese, _supra_ note 5, at 59 for the view that that the drafting history supports this construction.

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).

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")).

For an account of the emergence of conceptions of international law as an international legal order legitimately capable of supervising the adequacy of systems of minority protection and more generally of intervening 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).

The African Commission on Human and Peoples' Rights, in _Katangese Peoples' Congress v. Zaire_ , for example, 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, unitarianism, "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).

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 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").

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).

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.

 _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").

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).

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.

James Crawford, _The Right of Self-Determination in International Law: Its Development and Future, in_ PEOPLES' RIGHTS 10 (P. Alston ed., 2001).

1970 Declaration, s _upra_ note 33.

Christian Tomuschat, _Self-Determination in a Post-Colonial World, in_ THE MODERN LAW OF SELF-DETERMINATION 9 (C. Tomuschat ed., 1993).

For a theoretical defense of this position, see ALLEN BUCHANAN, JUSTICE, LEGITIMACY, AND SELF-DETERMINATION: MORAL FOUNDATIONS FOR INTERNATIONAL LAW 331 (2004).

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.

MORTON H. HALPERIN & DAVID SCHEFFER, SELF-DETERMINATION IN THE NEW WORLD ORDER 147 (1992).

Frederic Kirgis, Jr., _The Degrees of Self-Determination in the United Nations Era_ , 88 AM. J. INT'L L. 304, 306 (1994).

 _Id_.

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.

Reference re Secession of Quebec, [1998] 2 S.C.R. 217 (Can.).

 _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").

Reference re Secession of Quebec, _supra_ note 77, at para. 130.

 _Id_. at para. 133.

 _Id_. at paras. 134, 135. Rainer Bauböck argues that the Court reached this (tentative) conclusion by misreading 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").

##

## GLOBAL POVERTY AND THE RIGHT TO DEVELOPMENT

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. Close to 3 billion—more than 40 percent of the world's population—live on less than two dollars a day. 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.

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 education. In the name of poverty reduction, most, if not all, developed States also provide assistance in the form of bilateral loans, grants, and debt relief to developing 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 international 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 ethical 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 sovereignty 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 assumption 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 conception, 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 category 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 conception, 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 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 precisely 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 international law that provide a normative basis for comprehending the right to development 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 inequality. The second is the set of rules governing the incorporation of colonized peoples 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 conception 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 surrounding 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 development 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 linking the purpose of the right to international law's engagements with economic globalization and colonialism.

### THE EMERGENCE OF THE RIGHT

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. 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. But, despite these social and economic commitments, 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.

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. 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." 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." 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.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." It also called for international cooperation in the economic development of developing countries. Such cooperation, "whether in the form of public or private capital investments, exchange of goods and services, technical assistance, or exchange of scientific information," must "further their independent national development" and "be based upon respect for their sovereignty over their natural resources."

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. The 1974 Declaration called for an international order that would "correct inequalities and redress existing injustices, making it possible to eliminate the widening gap between the developed and the developing countries." 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.

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." The ensuing Report led the U.N. General Assembly to affirm the existence of the right to development in 1979, 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 Working Group reported regularly on its progress. These initiatives eventually culminated in the adoption by the General Assembly of the Declaration on the Right to Development in 1986.

The Declaration is not, in itself, a legally binding instrument. 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. 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  and the International Covenant on Economic, Cultural and Social Rights  The ICESCR enshrines more specific rights to international cooperation and assistance that are contained 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."

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 peoples 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." It defines the right as an entitlement to "a comprehensive 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 individuals on the basis of their active, free and meaningful participation in development and in the fair distribution of benefits resulting therefrom."

It further comprehends the right to development as imposing negative and positive obligations on both the internal and external exercise of sovereign power. 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." Article 8 requires States to undertake "at the national level all necessary measures for the realization of the right to development." The external dimensions of the right speak to the exercise of sovereign power in the international arena. Article 3(1) imposes positive obligations on States to create "international conditions favourable to the realization of the right to development." 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." Other articles refer to duties of international cooperation and assistance, further specifying the external dimensions of the right.

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 participatory terms and comprehends development as requiring the alleviation of poverty. 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 Donnelly argued that proponents of the Declaration failed to adequately specify the legal actors in whom the right to development vests. Some proponents formulated the right in collective terms. Some envisioned the right-holder to be people. For others, it was the State. Other proponents saw the right as vesting in individuals. Still others treated the right as vesting in both collectivities and individuals. Lack of specificity on this front produced ambiguities on another front. It is said that all legal rights create legal duties. 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." If it is an individual right, then, according to Donnelly, it generates duties on the State in which the individual is located.

The text of the Declaration, for Donnelly, does little to resolve these questions. 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," 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 individuals." The Declaration, in other words, appears to contemplate that the right to development vests in individuals, peoples, and States.

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," suggesting 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." Article 3(1) stipulates a duty of States to create "international conditions favourable to the realization of the right to development." Article 3(3) refers to a duty of States "to co-operate with each other in ensuring development and eliminating obstacles to development." 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."

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." 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. 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. Philip Alston presented the right as "a synthesis of existing rights" that emphasizes "the interdependence and indivisibility" of social and economic rights and civil and political rights."

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." Article 1(2) states that the right to development "implies the full realization of the right of peoples to self-determination." 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. 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."

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 protection 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, development 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_." 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."

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 possess a counterpart in the form of a human right. "In a just world," Donnelly writes, "underdevelopment would not be permitted; morality and justice demand development." But human rights are not coextensive with morality and justice; for 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." The source of an obligation to assist others in need "reflects special bonds between members of a community, which establish reciprocal obligations of assistance owed by each member to any other member in special need." It does not correlate with a right that vests in all of us by virtue of our common 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 solidarity 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." 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." 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 strangers 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 previous 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" 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." General rights impose obligations on "everyone" whereas special rights impose obligations only on "parties to the special transaction or relationship."

Donnelly treats human rights as general rights. 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 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 development 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 individuals 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 external obligations on States to facilitate development beyond their borders. It takes its place in a panoply of established international legal instruments that promote development. 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 assistance and co-operation," to protect social, economic and cultural rights enshrined in the Covenant. The Economic, Social, and Cultural Rights Committee has stated that these obligations give rise to "international responsibilities for developed States" to address global poverty." And both International Covenants stipulate that, by virtue of the right of self-determination, "all peoples... freely pursue their economic, social and cultural development." 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 protect? 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 interpreted 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 unintelligible, 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 unintelligible 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. 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." It provides this protection by imposing negative and positive obligations on both the internal and external exercise of sovereign power. 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.

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. 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 development 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 development, 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 chapter, 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 RIGHT

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, elaboration, 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, social, economic, and cultural rights that are said to form its constituent components. Measures to implement the right to development have been proposed and introduced in several international and regional institutions involved in development projects. Framed in procedural and participatory terms, the right to development 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 suggest what the right to development might also require of States in the external exercise 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. 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. 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. 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.

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." The Vienna Declaration called on States to cooperate with each other in ensuring development and eliminating obstacles to development, and called for "effective international cooperation for the realization of the right to development." 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."

At the conclusion of the 1995 World Summit for Social Development, participating States issued the Copenhagen Declaration on Social Development and a Programme of Action. The Copenhagen Declaration called for sustainable and equitable development, defined as a process that respected and promoted democracy, social justice, environmental protection, accountable governance, and human rights. 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 working 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 development assistance from developed countries to 0.7 percent of GDP, and the "mainstreaming" of the right to development in the policies of international financial institutions, such as the World Bank and the IMF. In 1998, the working group was made open-ended and was provided with an independent expert who would prepare a series of reports to focus discussion. 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.

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." 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." 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." 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. Freedom is also the means of development because "different kinds of freedom interrelate with one another, and freedom of one type may greatly help in advancing freedom of other kinds," which both constitutes and facilitates development.

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 development in terms that extend "well beyond the conventional notions of economic growth to the expansion of opportunities and capabilities to enjoy those opportunities." As a result, development policies should not be focused solely on maximizing 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 determinants. 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 development by combining it with the idea of a "development compact" as a mechanism for implementing the right. 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 institutions 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, technical, and other assistance.

Multilateral lending practices with developing countries developed by the International Monetary Fund and the World Bank help to further clarify the internal obligations that a State might owe to its citizens by virtue of the right to development. The IMF and the World Bank rely on development compacts similar to 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 development. Neither institution has openly acknowledged the fact that structural adjustment policies designed to promote development might actually limit a population's capacity to freely pursue their economic, social, and cultural development. Both, however, have begun to promote development compacts as mechanisms that promote 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 incorporate a set of policies that aim to reduce poverty in countries that qualify for development 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 multilateral development assistance details the measures it undertakes to introduce to address poverty within its midst over a three-year period. It provides a comprehensive, country-specific analysis of poverty, including macroeconomic and structural impediments to poverty reduction. A PRSP is expected to be the result of a participatory process, where the recipient government engages the active participation of the population as well as relevant governmental officials, ministries, and agencies. 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. Finally, it presents a detailed plan to reduce poverty that links inputs to outputs, sets intermediate and long-term targets, 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 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. 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. 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. 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 development 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 dimensions. 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 improvement of maternal health, the combat of HIV/AIDS, malaria, and other diseases, environmental sustainability, and the development of a global partnership for development. Participants at the Millennium Summit and the Monterrey Conference agreed to achieve the MDGs by 2015. 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 countries, and international financial institutions toward meeting development commitments, 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, 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 support the efforts of developing countries to strengthen their statistical and institutional capacities.

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 public 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. The participatory conception 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. One estimate 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.

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 partnership for development—includes numerous measures that can be said to clarify the 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 development assistance for countries committed to poverty reduction.

The objectives of the Millennium Summit, like the PRSPs employed by the World Bank and the IMF, however, are voluntary initiatives that tackle global poverty. 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 nonetheless offer is clarification of what the right to development requires of States in the internal exercise of sovereign power. The Millennium Summit initiative also suggests 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 INTERNATIONAL 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 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 economic resources. Its preamble speaks of the human rights of "peoples and individuals affected by colonialism, neo-colonialism, apartheid, and all forms of racism and racial discrimination." 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." Understood as an instrument that promotes international distributive 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."

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. 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." Hillel Steiner goes further, arguing that global justice mandates an equal portion of the world's natural resources to all.

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. Others treat nations or peoples as the subjects of global justice. 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.

Notwithstanding differences among scholars over the proper subjects of global justice, most of the reasons they offer to explain why global justice requires attending 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 station in life. 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. 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.

The normative force of this claim is grounded in "luck egalitarianism," a term coined by Elizabeth Anderson 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." 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 justice. 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."

Others extend reasons for addressing poverty in the domestic sphere to the global arena, arguing that "the two realms are sufficiently similar that whatever principles of justice we are prepared to acknowledge in the domestic case, we should be prepared to acknowledge in the international case as well." There are, of course, conceptions of justice that reject attending to poverty and economic inequality in domestic political communities. 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 economic 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," 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. But this has not stopped others from relying on Rawls' work to comprehend the demands of global distributive justice.

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 justice 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."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." 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 community, 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 subject to its norms... that creates the special presumption against arbitrary inequalities in our treatment by the system." 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."

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." 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 necessary to develop and act on a plan of life but not to noncitizens, who do not." 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." For Sangiovanni, international 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 international order and the distributive injustice of global poverty. 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." 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. 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 possibilities are determined by the nature and extent of that State's sovereign powers.

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. One of the consequences of international 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 substantive 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 poverty. 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.

As for those skeptical of treating global wealth distribution as mandated by distributive 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 international 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 treaties resulting from an unprecedented burst of international cooperation after the Second World War. We saw in Chapter 2 that such institutions give institutional 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. A conception of the right to development that imposes negative external obligations on States, when participating in the international realm, to address global poverty is one that holds international 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.

The work of Thomas Pogge is illuminating in this respect. 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 establishment and operation of institutional orders that govern our lives. Those responsible 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 structure and operation of international institutions, such as the WTO, which, he argues, enable economically powerful States to secure "the lion's share of the benefits of global economic growth." Pogge argues that global justice requires institutional choices that decrease rather than increase world poverty. This requirement is not a positive obligation to share one's wealth or resources with strangers 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 development, 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. 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." It provides this protection by imposing negative and positive obligations on both the internal and external exercise of sovereign power. While its internal 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. The right to development, in other words, imposes a negative obligation 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 debt; and more generous development assistance for countries committed to poverty reduction.

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." Howse suggests that such a methodology 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 coordination 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. 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.

In the context of the World Bank and the IMF, Anne Orford argues that institutional 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." 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 guarantee equitable and fair access to the benefits of development. Moreover, both institutions now acknowledge that development involves the promotion of not simply 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 political rights at the expense of social and economic rights and actively resist a conception of the right to development that would subject their policies and initiatives to human rights scrutiny.

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 development imposes positive, external obligations on developed States to provide development 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 international 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 environment... by definition undermines the ability of less commanding states to give effect to human rights."

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 reason 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." 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 relationships 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. Beitz adds that a more systemic reason for positive, external obligations of financial assistance 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 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.

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 developing States to reduce global poverty lies in the international legal history of the rise and fall of colonialism.

### THE RIGHT TO DEVELOPMENT AND THE RISE 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 possible ways the international legal order has contributed to the production and reproduction 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 commitment 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. Second. international law also confers legal validity on a claim of sovereignty by a community if it meets the criteria that it supplies to determine whether it constitutes a State. 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." The field traditionally understood 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 territory 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 constitute 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 territories 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. In 1970, the General Assembly enacted the Declaration on Friendly Relations, clarifying the relationship between the right of self-determination and the principle of territorial integrity of States. The 1970 Declaration specified that the territory of a colony has "a status separate and distinct from the territory of the state administering it," thereby providing a formal explanation as to why the acquisition of sovereign independence by a colonial population does not interfere with the sovereign integrity of its parent State.

One important consequence of this dramatic international legalization of decolonization was that ex-colonies only acquired the incidents of sovereignty when they acquired sovereignty itself. Before they achieved sovereign recognition, control over natural resources vested in their colonial masters, as did all other incidents of international sovereign power. International law could have governed the transition from colony to sovereign State differently. This is partly what developing 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 Resources 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." Moreover, the right is to "permanent" sovereignty, which also suggests that it always vests—and more important, always vested—in a people, regardless 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."

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 international law extended its distribution of sovereignty to include colonies that had achieved sovereign independence, it vested ex-colonies with the incidents of sovereignty 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 independence being in practice one and indivisible." 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 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 inclusion in the international distribution of sovereign power. The doctrine of State succession holds that rights granted by a sovereign power to a private entity are to be respected by the successor sovereign. In the context of decolonization, the predecessor 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 independence. 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." And when colonies became subjects in the distribution, international law vested them with power only over those resources that remained at the date they achieved sovereign statehood. 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 prevented them from exercising control over the natural resources of their territories by conferring international legal validity on colonialism, thereby preventing development 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 sovereign power over only those resources that remained when they acquired sovereignty, and it held them to contractual obligations undertaken by their colonial predecessors. 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 addressing adverse distributional consequences caused by the ways in which international 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 formation 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 contributed 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 advantage of the resources over which they exercise sovereign power. But this question of attribution is a normative matter, not a matter of financial accounting. Conceiving of the right to development in distributive terms yields normative reasons to interpret 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 process of its incorporation in the international legal order.

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 alternative 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 crisis to provide emergency financing. 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 contributors 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.

The right to development thus speaks to how the structure and operation of international law participates in the production of global poverty. Despite textual 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 dimensions require States and international institutions to fashion rules and policies governing the global economy that do not exacerbate global poverty. Its positive 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 conceptions 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 sovereignty 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 justice 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.

* * *

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).

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).

Branko Milanovic, _Global Income Inequality: What It Is And Why It Matters_ (DESA Working Paper No. 26, ST/ESAl2006IDWP/26, Aug. 2006), at 9.

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.

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.

 _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").

G.A. Res. 626 (VII) (Dec. 21, 1952).

 _Id_. at third preambular paragraph.

 _Id_. at art. 1.

G.A. Res. 1315 (XIII) (Dec. 12, 1958).

G.A. Res. 1803 (XVII) (Dec. 14, 1962), art. 1.

 _Id_. at art. 6.

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).

 _Id_. at third preambular paragraph.

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).

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.

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."

U.N. Doc. E/CN.4/1489, U.N. Doc. E/CN.4/1983/11; U.N. Doc. E/CN.4/1984/14.

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.

 _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 evidence 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).

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").

Adopted Dec. 19, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976).

993 U.N.T.S. 3 (1966) (entered into force 1976).

Art. 1, ICCPR; Art. 1, ICESCR.

U.N. GAOR, 41st Sess., Annex, Agenda Item 101; U.N. Doc. A/RES/41/128 (1987). The following discussion 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).

Second preambular paragraph.

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).

Art. 2(3).

Art. 8.

Art. 3(1).

Art. 4(1).

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).

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).

 _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).

Zalmai Haquani, _Le droit au developpement: fondements et sources, in_ LE DROIT DU DEVELOPPEMENT AU PLAN INTERNATIONAL 31 (R.-J. Dupuy ed., 1979).

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).

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").

 _See_ WESLEY HOHFELD, FUNDAMENTAL LEGAL CONCEPTIONS (1919).

Donnelly, _supra_ note 33, at 501 n.107.

 _Id_.

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").

Art. 2(1).

Art. 2(2).

Art. 2(2).

Art. 2(3).

Art. 3(1).

Art. 3(3).

Art. 4.

Mohammed Bedjaoui, _The Right to Development, in_ INTERNATIONAL LAW: ACHIEVEMENTS AND PROSPECTS 1182 (M. Bedjaoui ed., 1991).

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.

 _Id_.

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).

Second preambular paragraph, art. 1(1).

Art. 1(2).

Art. 8.

Art. 6.

Donnelly, _supra_ note 33, at 485.

Specifically, "a run-down horse with a plastic horn glued to its head." _Id_. at 508.

 _Id_. at 490.

 _Id_. at 493.

 _Id_. at 491.

 _Id_. at 491.

 _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").

 _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.

H.L.A. Hart, _Are There Any Natural Rights?_ , 64 PHIL. REV. 175, 188, 183 (1955).

 _Id_. at 183.

Art. 2(1).

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.

Art. 1, ICCPR; Art. 1, ICESCR.

Second preambular paragraph.

Art. 1.

Salomon, _supra_ note 27.

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.

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).

Commission Res. 1989/45 (1989).

 _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).

The three reports of the 1993 Working Group identified the main obstacles to implementation to be globalization, 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.

 _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).

Art. 10.

Arts. 14, 25.

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).

 _Id_. at para. 26.

E/CN.4/1997/22

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.

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 relationship 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 development: 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).

First Report, E/CN.4/1999/WG.1/2, para. 13.

 _Id_. at para. 11.

 _Id_. at para. 67.

AMARTYA SEN, DEVELOPMENT AS FREEDOM 36 (1999).

 _Id_. at 37.

First Report, _supra_ note 86, at para. 47.

 _Id_. at para. 53.

 _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 industrial countries for development assistance to implement long-term development plans of third-world countries).

Fifth Report, _supra_ note 85, at para. 74.

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.

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).

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.

 _Id_. at 461 ("participation may be less in countries with unstable and fractionalized polities than in more stable and unified countries").

 _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).

U.N. Millennium Development Goals.

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.

WORLD BANK & INTERNATIONAL MONETARY FUND, GLOBAL MONITORING REPORT ON THE MILLENNIUM DEVELOPMENT GOALS; MUTUAL ACCOUNTABILITY—AID, TRADE AND GOVERNANCE (Apr. 20, 2006).

For a detailed assessment, see U.N. MILLENNIUM PROJECT, INVESTING IN DEVELOPMENT: A PRACTICAL PLAN TO ACHIEVE THE MILLENNIUM DEVELOPMENT GOALS (2005).

U.N. General Assembly, Report on the World Social Situation, 2005, A/60/117, para. 362 (July 13, 2005).

 _Id_.

 _See_ Salomon, _supra_ note 27, at 24 ("The Global Partnership for Development, envisioned under Millennium 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).

 _Supra_ note 19, at ninth preambular paragraph.

Art. 4.

Bedjaoui, _supra_ note 49, at 181.

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").

SIMON CANEY, JUSTICE BEYOND BORDERS: A GLOBAL POLITICAL THEORY 264 (2005).

HILLEL STEINER, AN ESSAY ON RIGHTS (1994).

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 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).

JOHN RAWLS, THE LAW OF PEOPLES (1999).

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).

 _See_ Robert Goodin, _What Is So Special about Our Fellow Countrymen?_ , 98 ETHICS 663 (1988).

 _See_ David A.J. Richards, _International Distributive Justice, in_ ETHICS, ECONOMICS, AND THE LAW (J.R. Pennock & J.W. Chapman eds., 1982).

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).

Elizabeth Anderson, _What Is the Point of Equality?_ , 109 ETHICS 287 (1999).

G.A. COHEN, IF YOU'RE AN EGALITARIAN, HOW COME YOU'RE SO RICH? 130 (2000).

RONALD DWORKIN, SOVEREIGN VIRTUE 73 (2000).

KOK-CHOR TAN, JUSTICE, INSTITUTIONS & LUCK: THE SITE, GROUND, AND SCOPE OF EQUALITY 95 (2012).

BEITZ, _supra_ note 110, at 200.

ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA (1974).

JOHN RAWLS, A THEORY OF JUSTICE (1971).

 _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).

 _See, e.g._ , BEITZ, _supra_ note 110.

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 "doctrine about justice"). Scheffler seeks to defend a theory of cosmopolitanism that takes seriously the particular ties and associative relationships that arise in particular communities of value.

Hart, _supra_ note 65, at 188, 183.

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).

Nagel, _supra_ note 130, at 138.

Andrea Sangiovanni, _Global Justice, Reciprocity, and the State_ , 35 PHIL. & PUB. AFF. 3, 19–20 (2007).

 _Id_. at 19. _See also_ BRIAN BARRY, 2 LIBERTY AND JUSTICE: ESSAYS IN POLITICAL THEORY 182 (1991).

Sangiovanni, _supra_ note 132, at 35. For critique, see Abizadeh, _supra_ note 130, at 336–37; Armstrong, _supra_ note 130.

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 specifically on "global norms such as those governing sovereignty, resource ownership, territorial rights, economic 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.

BRAD R. ROTH, SOVEREIGN EQUALITY AND MORAL DISAGREEMENT: PREMISES OF A PLURALIST INTERNATIONAL LEGAL ORDER 7 (2011).

 _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).

 _See, e.g._ , U.N. Charter, _supra_ note 4, at art. 2(1) ("The Organization is based on the principle of the sovereign 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").

 _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).

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.

 _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 interdependences with non-negligible distributive consequences for the players involved").

For a similar, more detailed view, see SALOMON, _supra_ note 25.

THOMAS POGGE, WORLD POVERTY AND HUMAN RIGHTS (2002).

 _Id_. at 20.

 _Supra_ note 19, at second preambular paragraph.

Art. 1.

Salomon, _supra_ note 27.

 _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).

See text accompanying note 100, _supra_.

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.

 _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 developing 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 barriers 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).

Report of the Working Group on the Right to Development, 6th sess., U.N. Doc. E/CN.4/2005/25, para. 54(e).

Orford, _supra_ note 32, at 152.

 _Id_. at 152–57.

 _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).

Salomon, _supra_ note 27, at 22.

CHARLES BEITZ, THE IDEA OF HUMAN RIGHTS 172 (2009).

 _Id_. at 171.

 _Id_. at 172–73.

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.

For a classic formulation of this principle, see Hans Kelsen, _Recognition in International Law: Theoretical Observations_ , 35 AM. J. INT'L L. 605 (1941).

Diane Orentlicher, _Separation Anxiety: International Responses to Ethno-Separatist Claims_ , 23 YALE J. INT'L L. 1, 22 (1998).

GA Res. 1514 (XV), 15 U.N. GAOR Supp. (No. 16) at 66, U.N. Doc. A/4684 (1961).

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).

G.A. Res. 1803, 17 GAOR, Supp. 17, U.N. Doc. A/5217.

ANTONY ANGHIE, IMPERIALISM, SOVEREIGNTY AND THE MAKING OF INTERNATIONAL LAW 218 (2004).

 _Id_.

Advisory Opinion No. 41, Customs Régime Between Germany and Austria, 1931 P.C.I.L. (ser. A/B) No. 41 (Sept. 5).

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).

ANGHIE, _supra_ note 167, at 214–16. _See also_ OKON UDOKANG, SUCCESSION OF NEW STATES TO INTERNATIONAL TREATIES (1972).

Arthur Ripstein, _Kant's Juridical Theory of Colonialism, in_ KANT AND COLONIALISM: HISTORICAL AND CRITICAL PERSPECTIVES 147 (Katrin Flikschuh & Lea Ypi eds., 2015).

It is a normative matter that Tan, as stated, would likely describe as raising questions about "the precise cut 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.

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 benefits 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 developing 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).

Milanovic, _supra_ note 3, at 14–15.

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## Index

Abi-Saab, Georges,

Abstract morality,

Access to courts,

Accountability, 44n63

African Charter on Human and Peoples' Rights (1981), , 5n8, 189n17

African Commission on Human and Peoples' Rights, 176n61

African mandated territories after World War I. _See_ League of Nations

Alston, Philip, ,

American Anthropological Association, 12n37

American Convention on Human Rights (1992), 5n8, 10n31

Anaya, James, , 175n54

Anderson, Elizabeth,

Anghie, Antony,

Anti-constitutional trends,

Appleton, Arthur E., 36n24

Argentina,

Assimilation, , , , , , –, 116n39, 126n72, , , ,

Australia,

Autonomy, –, , , , 156n123, , 210n130

Azcárate, Pablo de, 107n8

Baroody, Jamil, ,

Barth, William K., 125n72, 127n72

Basic needs, , , ,

Basic rights, , 47n69, , 128n77

_Basic Rights_ (Shue),

Bauböck, Rainer, 181n81

Bedjaoui, Mohammed, ,

Beitz, Charles, 7n19, –, 17n50, –, , 60n31, , ,

Belarus,

Benedict, Ruth, 12n36

Berlin Conference on Africa (1884–1885),

Bilateral treaties. _See also_ Treaties, effect of

protecting minority rights,

trade and investment agreements, , ,

Blake, Michael, 43n55, 210n130

Blue water doctrine, , 146n50

Bodin, Jean,

Bowman, Isaiah,

Brazil,

Brierly, J.L.,

Buchanan, Allen, 18n54, , , 164n6

Burke, Roland, , 168n23

Canada

Constitution,

right to cultural life vs. minority rights, protection of,

_Secession Reference_ (1998),

workfare program's anti-union animus,

Capitalism, 77n13, 79n24

Capotorti, Francesco,

Carens, Joseph, 212n139

Cassese, Antonio, 172n40, , 175n57, 176n62, 178n65

Cassin, René, 60n32

Castells, Manuel,

Cession, –

Charter of Economic Rights and Duties of States (U.N. 1974),

Charter of Fundamental Rights of the European Union (2012),

Child labor, , , , , ,

China

on definition of indigenous peoples,

ILO conventions, limited ratification of, 90n55

Citizenship, , , , 222n173

Civil and political rights. _See also_ International Covenant on Civil and Political Rights (ICCPR 1976)

as first-generation rights, 7n20,

formal legal expression of,

judicial realm and, ,

legislative realm and,

as monitors of sovereignty's exercise, –

as negative rights,

privileging of,

protection of minority interests, , ,

Cohen, Jean, –n44,

Cohen, Joshua,

Collective bargaining, , , 77n19, , , 86n41, 87n44, 87n46, , , ,

Collins, Hugh,

Colombia,

Colonialism. _See also_ Decolonization and sovereign rights of ex-colonies

international human rights law's role and,

international law's role and, –,

legality of, , ,

reenacted by failure to respect international indigenous rights,

right to development and, –

self-determination and, , –, 166n13,

transformation in U.N. stance on,

workers' rights and,

Commission on Permanent Sovereignty over Natural Resources (U.N.),

Committee Against Torture (CAT), 4nn5–6,

Committee of Experts on Native Labour (ILO), , –,

Committee on Economic, Social, and Cultural Rights (ECOSOC), 11n35, , , ,

Concluding Comment on Korea, –

Resolution 1589,

Committee on Migrant Workers (CMW), 4n6

Committee on the Elimination of Discrimination Against Women (CEDAW), 4nn5–6

Committee on the Elimination of Racial Discrimination (CERD), 4n5, 5n7

Common Market of the Southern Cone's Social and Labour Declaration,

Communism, , 66n55, ,

Compa, Lance,

Constitutionalism,

Constitutional pluralism, , 39n39

Constitutional rights, –. _See also_ Freedom of association; Freedom of expression

Contestation over international legal rights, –, ,

Convention Against Torture and Other, Cruel, Inhuman or Degrading Treatment or Punishment (1984),

Conventionalism,

Convention concerning Contracts of Employment (ILO 1947), 56n20

Convention concerning Forced Labour (ILO 1930), 56n20

Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO 1989). _See_ Indigenous and Tribal Peoples Convention (ILO No. 169)

Convention concerning Penal Sanctions (Indigenous Workers) (ILO 1939), 56n20

Convention concerning the Abolition of Forced Labour (ILO 1957), 57n20

Convention concerning the Abolition of Penal Sanctions for Breaches of Contract of Employment by Indigenous Workers (ILO 1955), –n21

Convention concerning the Contracts of Employment (Indigenous Workers) (ILO 1939), 56n20

Convention concerning the Migration for Employment (ILO 1949), 56n20

Convention concerning the Recruiting of Indigenous Workers (ILO 1936), 56n20

Convention on Migrant Workers (U.N. 1990),

Convention on the Elimination of All Forms of Discrimination Against Women (U.N. 1979), ,

Convention on the Rights of the Child (U.N. 1989), , , , 111n31

Copenhagen Declaration on Social Development (1995),

Council of Europe, , –

Crawford, James, , 181n81

Criddle, Evan,

Criminal law,

Croatia, 10n29

Crouch, Colin,

Cultural relativism, , 12n36, ,

Culture. _See_ Minority rights; Social, economic, and cultural rights; Universal recognition of economic, social, and cultural rights

Customary international law, , , , , 190n20

Daes, Erica-Irene A., 145n45

Debt relief, , , , , ,

for heavily indebted countries, ,

Declaration and Programme of Action on a New International Economic Order (U.N. 1974),

Declaration of Philadelphia (ILO 1944),

Declaration on Friendly Relations (U.N. 1970), , –, ,

Declaration on Fundamental Principles and Rights at Work (ILO 1998), , , 91n57, , , –

Declaration on Social Justice for a Fair Globalization (ILO 2008),

Declaration on the Granting of Independence to Colonial Territories (U.N. 1960), , –, 217n160,

Declaration on the Rights of Indigenous Peoples (U.N. 2007), , –, 153n103, 155n121, –

Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (U.N. 1992),

Declaration on the Right to Development (U.N. 1986), , –,

ambiguity of intent, ,

distributive justice and,

emergence of the right, –

implementation of the right, –

Decolonization and sovereign rights of ex-colonies, , , , –, –

Dehousse, Fernand,

Deng, Frances,

Descriptive relativism, 12n36

Developing countries, , , , . _See also_ Millennium Development Goals (MDGs)

Development, right to, . _See also_ Declaration on the Right to Development (U.N. 1986); Poverty

colonialism and, –

definition of, –

development compacts with U.N. institutions, bilateral donors, and international financial institutions, –, 202n93,

emergence of the right, –

international economic law and, 215n151

in international law, ,

official development assistance, ,

self-determination and,

Sen's theory of, –

sovereignty and,

as third-generation right, 7n20,

as universal aspiration, , 195n63

Diplomatic relations, establishment of,

Discovery, doctrine of, –

Discrimination. _See_ Equality; Indigenous rights; Minority rights

Distributive justice, –, –, 207n110, 209n126, 210n130, 211n135, , 222n173

Domestic legal sphere's relationship to international sphere, , , –

Donnelly, Jack, –

Dunn, Isabella, 215n151

Dworkin, Ronald,

East Timor, , 173n45

Economic, Social, and Cultural Rights Committee. _See_ Committee on Economic, Social, and Cultural Rights

Economic globalization. _See_ Globalization

Economic relations, , 35n23, , . _See also_ Trade

Economic rights. _See_ Committee on Economic, Social, and Cultural Rights; Development, right to; International Covenant on Economic, Social, and Cultural Rights (ICESCR 1976); Social, economic, and cultural rights

Economic subsistence rights, ,

Education, right to,

Eide,Asbjørn,

Elite capture,

El Salvador,

Emerson, Rupert,

Employer-employee relationship. _See_ International Labour Organization (ILO); Labor rights

Equality

Committee on the Elimination of Discrimination Against Women (CEDAW), 4nn5–6

Committee on the Elimination of Racial Discrimination (CERD), 4n5, 5n7

labor rights and,

prohibition of inequality and discrimination,

religious practices,

right to development and, ,

as second-generation right,

of States, , 212n138

Universal Declaration and,

Ethics, , , . _See also_ Morality

Ethnic cleansing and violence, 37n29, 123n66. _See also_ Genocide

Ethnicity. _See_ Minority rights

European Charter for Regional or Minority Languages (1992),

European Commission,

European Committee of Social Rights, 71n71

European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), 5n8, 71n71, ,

European Court of Human Rights, 71n71, 127n75

_Serif v. Greece_ (1999),

_Socialist Party v. Turkey_ (1998),

_Thlimmenos v. Greece_ (2000),

European Social Charter (1999), 71n71,

Europe/European Union

Copenhagen criteria for EU membership in, –, 122n63

ethnic conflict in,

Generalized Schemes of Preferences (GSP),

human rights treaties in,

labor rights in,

renaissance and reformation in,

self-determination for States of, ,

External self-determination, , , , 176n59, –

Fairness. _See also_ Equality; Justice

labor rights and, ,

in legal proceedings,

Family life, right to, 10n31

Feminism and human rights, 16n44

First-generation rights, defined, 7n20, . _See also_ Civil and political rights

Food, right to,

Forced labor, abolition of, –n20, ,

Fordism and post-fordism, 83n35

Foreign direct investment, , ,

Formalism, 44n63,

Fox-Decent, Evan,

Framework Convention on the Protection of National Minorities (Council of Europe 1992), –, 121n57

France

mandates to govern Middle East territories,

minority interests in French territory,

official development assistance from,

Rhineland occupation post-World War I and,

Frederic Kirgis, Jr.,

Freedom of association, , , , , 87n44, , , , ,

Freedom of expression, , , –

French revolution, ,

Fudge, Judy,

General Agreement on Tariffs and Trade (GATT), ,

General Assembly (U.N.). _See also_ _headings starting Resolution_

customary international law and, 190n20

Declaration and Programme of Action on a New International Economic Order (1974),

decolonization and sovereign rights of ex-colonies,

human rights indivisible in international law,

human rights proclaimed by, , 18n57

minority rights and, –

responsibility-to-protect doctrine and,

General vs. special rights, , , 9n24, , , ,

Generational conceptions of human rights, –

generations as analytical categories, –

generations as chronological categories, –

use in international legal scholarship,

criticism of, , 54n12, 63n50,

overview of types of generations, –

Genocide, 37n29,

Genocide Convention, , 111n31

Global constitutionalism, ,

Globalization, , , , 82n34, , –, , 199n77, ,

Global justice, – _See also_ Distributive justice

Global Monitoring Reports on MDGs,

Goldsmith, Jack, , 42n54

Greece and freedom of religion, , –, 127n75

Griffin, James, , , 10n27, 16n45

Guatemala, 116n39

Hannum, Hurst, –, 179n72

Hart, H.L.A., , , –,

Health care, right to, ,

Healthy environment, right to, 7n20,

Henkin, Louis,

High Commissioner for Human Rights (U.N.), ,

High-Level Task Force on the Right to Development (U.N.), 201n85

Hilpold, Peter,

Hobbes, Thomas,

Hobsbawm, Eric, 127n72

_Hopu and Bessert v. France_ (1993), –

Howse, Robert,

Human dimension mechanism,

Humanitarian intervention, 15n44, , 37n30,

Human rights. _See also_ Basic rights; International human rights law

determining existence of,

development assistance levels and,

equality of all types of,

General Assembly's authority to proclaim, , 18n57

as general rights,

international law's definition of,

international law's origin of, ,

legal theory of, , –

as moral concepts, , –,

as political concepts, –, –

poverty and,

Rawls vs. Beitz on, 14n40

selection criteria for justifying claims of, –, 17n50

Human Rights Commission, , , 201n84

Human Rights Committee, , , , , , –, 116n39,

Human Rights Council, 4n6,

Hungary, 10n29

ICCPR. _See_ International Covenant on Civil and Political Rights

ICESCR. _See_ International Covenant on Economic, Social, and Cultural Rights

ICISS (International Commission on Intervention and State Sovereignty), , 37nn29–30

ICJ. _See_ International Court of Justice

IFC (International Finance Corporation),

Ignatieff, Michael,

ILO. _See_ International Labour Organization

IMF. _See_ International Monetary Fund

Imperialism, 40n44, , –, ,

Independent Expert on Minority Issues (U.N.),

Indigenous and Tribal Peoples Convention (ILO No. 169), 57n22, , –, 151n89, ,

Indigenous and Tribal Populations Convention (ILO No. 107), –, 145n45, 146n50, , ,

Indigenous rights, –

autonomy and, ,

Committee of Experts on Native Labour, , –,

family life, right to, 10n31

generational concept of human rights and,

indigenous peoples not defined in U.N. Declaration on the Rights of Indigenous Peoples, –

indigenous worker, definition of,

International Labour Organization and, –

international law and, , 134n6,

Martínez Cobo Report's definition of indigenous peoples, , 153n98

nondiscrimination and, –,

purpose of determining and defining, –

recognition of indigenous people by State required for,

self-determination and, , , –, , 154n106, , –, 160n144

self-identification and, –,

semi-tribal peoples, ,

vs. sovereign States,

specific vs. general rights,

territorial interests, –, , –, ,

United Nations and, –

Indivisibility, , –

Indonesia's annexation of East Timor, , 173n45

Industrialized economies, transformation of,

Industrial revolution (England), ,

Interdependence sovereignty,

Interdependency,

Internal self-determination, , –, 176n59, 181n81

International Association for the Legal Protection of Workers,

International Commission on Intervention and State Sovereignty (ICISS), , 37nn29–30

International Conference on Financing for Development in Monterrey, Mexico (2002),

International Convention on the Elimination of All Forms of Racial Discrimination (1969),

International Court of Justice (ICJ), 5n6, , –, –,

International Covenant on Civil and Political Rights (ICCPR 1976), , , , 57n22,

art. 1, , 110n19

art. 10(1), –

art. 22, ,

art. 23, 10n31

art. 27, 10n30, –, 116n39, 127n74, –

Concluding Comment on Canada,

Concluding Comment on Chile, –

Concluding Comment on Costa Rica,

Declaration on the Right to Development and,

labor rights and,

minority rights and, ,

Optional Protocol, , 175n56

right to development and,

self-determination right and, –, , , ,

International Covenant on Economic, Social, and Cultural Rights (ICESCR 1976), , , 10n28, , , –, ,

art. 15, –

Declaration on the Right to Development and,

food, right to, ,

labor rights and, ,

minority rights and,

Optional Protocol, 11n35

right to development and, –

second-generation rights and,

self-determination right and, , , , 175n56,

International economic law, –, 35n23, 95–>96, –

International Finance Corporation (IFC),

International human rights law

communal bonds and,

distribution and exercise of sovereign power and,

harms of international law ameliorated by, –

minority rights and, ,

recognition of,

right to development and, ,

self-determination's relationship to, , –

International Labour Organization (ILO)

authority in colonies and dependent territories,

China's limited ratification, 90n55

commitment of members to core labor rights, , 90n56

Committee of Experts, , –,

Communism and, 66n55

Constitution of, –, 80n28, , , –

core labor rights in ILO Conventions, 56n20, 57n22, , , , . _See also_ _headings starting with "Convention"_

Declaration (1998). _See_ Declaration on Fundamental Principles and Rights at Work

domestic labor market regulation and, , ,

human rights of workers and,

indigenous rights and, , –, –

indigenous worker, definition of,

origin of, , , , , 213n160

strike, right to, 87n44

United States' limited ratification, 90n55

universal human rights and,

International law. _See also_ Customary international law

autonomy and, –,

colonialism and, –,

consent of State and, 43n55

contestation over human rights obligations, –

as delegated domestic legal authority, –

distributive justice and,

global politics and,

harms produced by, ameliorated by international human rights law, –, , –. _See also_ Sovereignty

indigenous rights and, , 134n6,

international politics and,

interpretive judgments about international human rights,

justice and,

legal aspects of human rights, –

legality and,

positivism and, –,

poverty and. _See_ Poverty

self-determination and,

self-interest of State and, , 42n54

separate from justice or morality,

sovereignty and. _See_ Sovereignty

territorial integrity and,

universalism vs. relativism in,

International Monetary Fund (IMF), , , , , –, –

Global Monitoring Reports,

Poverty Reduction Strategy Papers (PRSPs), –, ,

International organizations, –, 134n6

Interpretive judgments about international human rights,

Interrelatedness,

Israeli wall around Palestinian territories, , 173n47

Italy, 10n29

_JB v. Canada_ (1986), , 87n44

_Jus cogens_ norms,

Justice. _See also_ Distributive justice

global justice in contemporary political theory,

international law and,

labor regulation and, ,

minority rights and, , ,

negative obligation imposed on international legal actors,

right to development and, ,

Kahn, Paul,

Kahn-Freund, Otto, 76n12

Kant, Immanuel,

_Katangese Peoples' Congress v. Zaire_ (1995), 176n61

Kelsen, Hans, –, , 40nn43–44, 47n69, 128n77, –, –, 138n15, , , 158n135

Kingsbury, Benedict, , –, 180n76

Kirgis, Frederic, Jr.,

_Kitok v. Sweden_ (1988),

Knop, Karen, , 164n5, 178n66

Kolben, Kevin,

Komesar, Neil,

Koskenniemi, Martti, , 44n63, 174n49

Kosovo's declaration of independence,

Krasner, Stephen, , 32n37,

Kumm, Mattius, ,

Kurdish minority in Turkey, , –, 127n74

Kymlicka, Will, 111n30, –, 130n82

Labor rights, –. _See also_ Collective bargaining; Union, right to form; Wages and hours

domestic protection of, –, , ,

evaluation of urgency of,

as instrumental rights, –

international human rights law's role and, , , , –

international law and, , . _See also_ International Labour Organization (ILO)

lower labor standards, effect of, –, 82n33

mass production and, –

sovereignty and,

as third-generation right,

as universal rights, , –

Lambros, Dmitrios, 176n59

Langille, Brian, ,

Language rights, 115n37

Latin America

labor rights in,

right to cultural life vs. minority rights, protection of,

Lauterpacht, Hersch, 134n4

League of Nations, , , –

Covenant of, ,

mandatories of, , 142n28, , , 167n16

minority rights and,

purpose of,

Legal norms, , , , , , , , 32n37,

Legal pluralism, 23n66,

Legal positivism, –, 18n58,

Legal rights of persons, –

Levy, Jacob T., ,

Liberty. _See also_ Freedom of association; Freedom of expression

as basic right,

as first-generation right,

ICCPR, art. 10(1) on, –

Libya,

Life, right to, –

Luck egalitarianism, , 211n135, 221n172

Maritain, Jacques, 15n43

Marks, Stephen P., 190n25

Marshall, John,

Marshall, T.H., , ,

Martínez Cobo Report, –

Mass production, –

MDGs. _See_ Millennium Development Goals

Meta-ethical relativism, 12n36

Middle East territories after World War I, , 142n28

Migrant workers, rights of, , 4n6, 56n20, ,

Military intervention, 37n29

Millennium Development Goals (MDGs), , 201n85, –,

Global Monitoring Reports, –

Sustainable Development Goals to replace, 204n101

Millennium Summit (U.N. 2000), ,

Minority rights, –

adverse consequences of international law and,

bilateral treaties protecting,

concept of majority inferring existence of minority, , 47n69, 128n7

interdependence of sovereignty and, –

international human rights law's role and, , , , 176n60

meaning of,

moral ambiguities of, –, 107n8

political ambiguities of, –

post-World War I, , –

prohibition of discrimination,

prohibition of inequality and discrimination, ,

religious freedom for minorities,

scope of, –,

self-determination and,

as third-generation right,

Treaty of Westphalia and,

Monetary policy, , ,

Monterrey Conference (2002),

Montevideo Convention on Rights and Duties of States (1933), 46n68, 212n138

Morality

global justice and,

human rights as moral concepts, , –,

minority rights, moral ambiguities of, –, 107n8

norms of,

of political membership, 211n137

right to development and, ,

special vs. general rights, , , 9n24,

universalism and, –,

Moral theorists, , , , , , , , , , , ,

Morsink, Johannes, 65n53

Most-favored nation status,

Moyn, Samuel, ,

Multiculturalism

of fear,

international organizations desiring, 123n66

political theory on,

Multilateral lending. _See_ International Monetary Fund; World Bank

Mundlak, Guy,

Nagel, Thomas,

Namibia achieving independence from South Africa, , –

NATO, ,

Natural law tradition,

Natural wealth and resources, right to exploit and use, –,

Negative governmental obligations, –, , , –

Nickel, James,

Nijman, Janne, 125n71

Non-State actors, regulation of,

Normative relativism, 12n36

Normativity, –, 16n44, , , . _See also_ Legal norms

colonialism and,

distributive justice and, 211n135

indigenous rights and,

labor rights and, –

minority rights and,

sovereignty and, ,

North American Free Trade Agreement, , –

Nussbaum, Martha, , 6n15

O'Cinneade, Colm, 71n71

Office of the High Commissioner on Human Rights,

Office of the High Commission on National Minorities,

Orentlicher, Diane, ,

Orford, Anne,

Organisation on Security and Cooperation in Europe (OSCE), –

Organization of African Unity (1963, now African Union), 5n8, 189n17

Original intent,

Originalism, ,

Ottoman Empire dissolution, ,

Outsourcing, –

_Pacta sunt servanda,_

Palestinian right of self-determination, , 173n47

Pamontjak, Nazir,

Paraguay,

Peace, right to

minority rights and,

as third-generation right,

Permanent Court of International Justice, ,

Permanent Mandates Commission,

Personhood, protection of,

Peters, Anne,

Pogge, Thomas, 36n25, –

Polish Minority Treaty, 10n29, 56n19

Political theorists, , , , , 130n83, , , ,

Politics. _See also_ Civil and political rights

human rights as political concepts, –, –,

international legal vs. political recognition of indigenous peoples,

sovereignty as organizing principle in global politics,

_Poma Poma v. Peru_ (2009),

Positive obligations on State actors and institutions, –, , , 17–>19, , 58–>59, , –, –, –

Posner, Eric, , 42n54

Poverty, –. _See also_ Declaration on the Right to Development (U.N. 1986); Development, right to

colonialism's rise and fall and, –

freedom from poverty as right,

international law and, , –, –,

minority rights and,

positive dimension of third-generation rights and,

Poverty Reduction Strategy Papers (PRSPs), –,

poverty statistics, , 185n2

as result of State into which one is born,

Poverty Reduction Strategy Papers (PRSPs), –, ,

Preece, Jennifer Jackson,

Prison systems,

Proclamation of Tehran (1968),

Property, right to, , ,

Protectionism, , ,

Rational choice theory,

Rawls, John, 14n40, 23n65, , 207n110,

Raz, Joseph, , 24n67

_Recognition in International Law: Theoretical Observations_ (Kelsen),

Reisman, Michael,

Relativism, –, 12n36, 16n47,

vs. universalism, –

Religious freedom, , , –, , , , , . _See also_ Minority rights

Report of the International Commission on Intervention and State Sovereignty (ICISS),

Resolution on Permanent Sovereignty over Natural Resources (Resolution 1803), ,

Responsibility to protect, –, 37n30

Rhineland, occupation of post-World War I,

Ripstein, Arthur,

Rittich, Kerry, ,

Rodríguez-Piñero, Luis, , 146n50

Romania, 10n29

Roth, Brad, 32n34

Rousseau, Jean-Jacques,

Rule of law, 24n67, , ,

Russia, and human rights as traditional values, 12n37

Russian Revolution of 1917, ,

Salomon, Margot E., 190n25,

Salt water thesis,

Sangiovanni, Andrea, –

Scheffler, Samuel, 209n128

Schmitt, Carl,

Second-generation rights, –. _See also_ Social, economic, and cultural rights

defined, 7n20,

obligations not to interfere with rights of others,

scope of, –

Security Council (U.N.), , ,

Security of the person, right to, ,

Self-determination, , –

bridging international law and distributive justice, –

colonialism and, , , –, 166n13

degrees of,

development right related to,

European nations and peoples deemed sufficiently developed to merit, , 167n19

external, , , , 176n59, –

independence achieved by territories (1945–1970),

indigenous people and, , , –, , 154n106, , –, 160n144

internal, , –, 176n59, 181n81

international human rights law and, , –

international law and,

minority rights and,

movement within U.N. to recognize, , –

paradoxes of, –

as prerequisite of all human rights, , 175n54

pre-World War I,

sovereignty and, 46n66

as third-generation right, 7n20, , ,

U.N. Charter and, , –,

U.N. resolution on,

universality of right of, ,

Self-identification, –, , 181n81

Self-interest of State, , 42n54

Sen, Amartya, , –

Sengupta, Arjun, –,

_Serif v. Greece_ (1999),

Shelter, right to,

Shue, Henry, , –,

Simmonds, John,

Slave trade, abolition of,

Social, economic, and cultural rights. _See also_ International Covenant on Economic, Social, and Cultural Rights (ICESCR 1976)

administrative State and educational system's realm of social rights,

Declaration on the Right to Development and,

indigenous rights and, ,

international human rights law's role and,

minority rights and,

as monitor of sovereignty's exercise, –

as positive rights,

second-generation, –

U.N. Charter on,

_Socialist Party v. Turkey_ (1998),

Social justice, , , , 80n28,

Copenhagen Declaration (1995),

Declaration on Social Justice for a Fair Globalization (ILO 2008),

Solidarity rights, , , ,

South Africa

Constitution of,

mandate revoked over Namibia, –

Sovereignty, –

civil and political rights as monitors of, –

contributions to international law,

definition of, –

distribution of, , , –

equality of States and, , 212n138

exercise of, , –

Fassbender on, 32n36

human rights law's role and, , , ,

indigenous interests and, –,

international law as check on, , , , , , , –, , ,

labor rights and,

as legal entitlement, –,

in liberal democratic States,

minority rights and, , –

national vs. international authority for, –, 40n43

normative purchase of,

recognition of, by international law, , ,

as relational concept, 40n41

Roth on, 32n34

territories comprehended in,

treaties, effect of, –,

Treaty of Lausanne (1923) and,

Treaty of Westphalia (1648) and,

as will of the people, , , 46n67

Special Rapporteur Report (1979), –

Special vs. general rights, , , 9n24, , , ,

Stamatopolou, Elsa,

State actors and institutions

defective when failing to protect human rights,

positive obligations on, –, , , 17–>19,

Statehood, criteria for, –, 46n68, , –, –,

Steiner, Hillel,

Strike, right to, –, 87n44,

Sub-Commission on Prevention of Discrimination and Protection of Minorities (U.N.), , , , ,

Subcontracting, –

Subsistence rights, ,

Succession, doctrine of,

Sustainable Development Goals (U.N.), 204n101

Sweden, ,

Tan, Kok-Chor, , 209n128, 211n135, 221n172

Taney, Chief Justice,

Tariff reductions, , , ,

Tasioulas, John, ,

Taylor, Charles, 111n30

Teleological approach to treaty interpretation, 21n64

_Terra nullius,_ doctrine of, , , 140n21

Third-generation rights. _See also_ Solidarity rights

compared to first- and second-generation rights,

defined, 7n20,

as necessary to realize first- and second-generation rights,

negative and positive dimensions of,

obligations not to interfere with rights of others,

in process of gaining recognition,

scope of,

"A Thirty-Year Struggle" (Vasak),

_Thlimmenos v. Greece_ (2000),

Tomuschat, Christian,

Torture, , 4nn5–6,

Trade, , , , , . _See also_ World Trade Organization

Treaties, effect of, –,

between indigenous peoples and imperial powers, –

post-World War I, –

Treaty of Lausanne (1923), –, , 127nn74–75,

Treaty of Sèvres (1920),

Treaty of Versailles (1919), ,

Treaty of Westphalia (1648), , , –n18,

Turkey, , , –, –, 127n74

UNESCO,

Convention Against Discrimination in Education, 111n31

_UNESCO Courier_ (1977),

Union, right to form, , –, 86n41, , . _See also_ Collective bargaining

United Kingdom

mandates to govern Middle East territories,

official development assistance from,

ratification of ILO Conventions,

on social, economic, and cultural rights,

territories of, 172n40

United Nations. _See also_ General Assembly; Security Council; United Nations Charter

affiliation with International Labour Organization,

capacity to bring international claims, 134n6

colonialism and,

Commission on Human Rights, , 12n37

Declaration on Friendly Relations (1970), , –,

development compacts with institutions of, ,

High Commissioner for Human Rights, ,

Human Rights Commission, , , 201n84

Human Rights Committee, , , , , , –, 116n39,

Human Rights Council (HRC), 4n6,

indigenous rights and, –

labor rights and,

membership criteria, 188n6

Millennium Development Goals. _See_ Millennium Development Goals (MDGs)

Millennium Summit (2000), ,

Office of the Commissioner for Human Rights,

Office of the High Commission on National Minorities,

purpose of, –

role of,

Sub-Commission on Prevention of Discrimination and Protection of Minorities, , , , ,

Sustainable Development Goals, 204n101

Trusteeship Council, –,

United Nations Charter (1948)

economic development and reduction of global poverty, ,

General Assembly resolutions related to subjects of, 190n20

non-self-governing territories, , 170n32

recognition of equality of all States, , 212n138

self-determination, , –,

territorial administration,

treatment of minority rights, 117n44

trusteeship system,

United States

Declaration on the Right to Development (U.N. 1986), opposition to,

ILO conventions, limited ratification of, 90n55

on social, economic, and cultural rights,

right to cultural life vs. minority rights, protection of,

territories of, 172n40

Universal Declaration of Human Rights (1948), , 12n37, , 15n43, , 55n17, 60n32, , 65n53, , , –

art. 27, ,

economic development and reduction of global poverty,

labor rights and,

minority rights and, ,

self-determination and,

Universalism, , –, , 16n45,

vs. relativism, –

Universal jurisdiction,

Universal recognition of economic, social, and cultural rights, , –, ,

Uruguay,

USSR on minority protection,

Validity of laws, 19n58

Vasak, Karel, –,

Vienna Convention on the Law of Treaties (1969), 21n62

Vienna Declaration and Programme of Action (1993), 11n34,

Vienna World Conference on Human Rights (1993),

Wages and hours, , , ,

Waldron, Jeremy,

Wellman, Carl, –

Westphalian sovereignty,

Whelan, Daniel, 54n12, 58n27,

Will of the people, , , 46n67

Wilson, Woodrow, ,

Women

Committee on the Elimination of Discrimination Against Women (CEDAW), 4nn5–6

as workers, 82n34

Working Group on Indigenous Populations (U.N.),

Working Group on Minorities (U.N.),

Working Group on the Right to Development (U.N.), , , ,

World Bank, , , , , , , , –, –

Global Monitoring Reports,

Poverty Reduction Strategy Papers (PRSPs), –, ,

World Commission on the Social Dimension of Globalization, –

World Summit for Social Development (1995),

World Summit Outcome (2005),

World Trade Organization (WTO), , , , , –, –

origin of, 213n160

social clause rejected by,

World War I

mandated territories after, , 142n28

minority rights after, , –

origins of international human rights law after,

Paris peace process after,

treaties after, –

World War II, origins of international human rights law after, , , –

Wright, Quincy, 166n11

WTO. _See_ World Trade Organization

Young, Crawford, 
  1. Title Page
  2. Copyright Page
  3. Dedication
  4. Contents
  5. Acknowledgments
  6. 1. Field Missions
    1. Human Rights as Moral Concepts
    2. Human Rights as Political Concepts
    3. Human Rights as Legal Concepts
    4. The Plan of the Book
  7. 2. Sovereignty and Structure
    1. Sovereignty and Its Exercise
    2. Between the National and International
    3. Sovereignty and Its Distribution
  8. 3. Human Rights: Three Generations or One?
    1. Generations as Chronological Categories
    2. Generations as Analytical Categories
    3. Civil and Political Rights as Monitors of Sovereignty's Exercise
    4. Social and Economic Rights as Monitors of Sovereignty's Exercise
  9. 4. International Law at Work
    1. Labor Rights as Instrumental Rights
    2. Labor Rights as Universal Rights
    3. Labor Rights and the Structure of International Law
  10. 5. The Ambiguous Appeal of Minority Rights
    1. The Moral Ambiguities of Minority Rights
    2. The Political Ambiguities of Minority Rights
    3. The Interdependence of Sovereignty and Minority Protection
  11. 6. International Indigenous Recognition
    1. Indigenous Territories and the Acquisition of Sovereignty
    2. Indigenous Recognition and the International Labor Organization
    3. Indigenous Recognition and the United Nations
    4. The Purpose of International Indigenous Rights
  12. 7. Self-Determination in Three Movements
    1. Self-Determination and the Legality of Colonialism
    2. The Many Paradoxes of Self-Determination
    3. Bridging International Law and Distributive Justice
  13. 8. Global Poverty and the Right to Development
    1. The Emergence of the Right
    2. Implementing the Right
    3. From Global Poverty to International Law
    4. The Right to Development and the Rise and Fall of Colonialism
  14. Bibliography
  15. Index

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  7. vii
  8. viii
  9. ix
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