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From constitutional to human rights: On the moral structure of international human rights

Published online by Cambridge University Press:  22 September 2014

KAI MÖLLER
KAI MÖLLER*
Affiliation:
Department of Law, London School of Economics and Political Science, Houghton Street, London, WC2A 2AE
*
*Email: K.Moller@lse.ac.uk
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Abstract

The paper presents a theory of the moral structure of international human rights. It proceeds by drawing on recent scholarship on the philosophy of national constitutional rights, which has shown that there is now an emerging global consensus on certain structural features of constitutional rights; in previous work I have summarized this under the label ‘the global model of constitutional rights’. Starting from the theory of rights underlying the global model, the paper asks what modifications, if any, are required to turn that theory into a suitable theory of international human rights. In particular, it examines the widely held view that international human rights are more minimalist than national constitutional rights. Discussing recent work by Ronald Dworkin (on political/constitutional versus human rights) and Joseph Raz (on legitimate authority versus national sovereignty), the paper concludes that it is not possible to make rights more minimalist than they already are under the global model. It follows that the moral structures of national constitutional rights and international human rights are identical. The final section of the paper examines some implications of this result, addressing the issues of the workability of the proposed conception of international human rights in practice, its point and purpose, and discussing the obligations of states to participate in international mechanisms for the protection of human rights.

Keywords

constitutional rightsglobal modelinternational human rightsnational sovereigntyproportionality
Type
Research Article
Information
Global Constitutionalism , Volume 3 , Issue 3 , November 2014 , pp. 373 - 403
Copyright
Copyright © Cambridge University Press 2014 

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References

1 See Buchanan, A, ‘The Egalitarianism of Human Rights’ (2010) 120 Ethics 679, 680–2.CrossRefGoogle Scholar

2 Griffin, J, On Human Rights (Oxford University Press, Oxford, 2008)CrossRefGoogle Scholar. See also Tasioulas, J, ‘Taking Rights out of Human Rights’ (2010) 120 Ethics 647.CrossRefGoogle Scholar

3 Raz, J, ‘Human Rights without Foundations’ in Besson, S and Tasioulas, J (eds), The Philosophy of International Law (Oxford University Press, Oxford, 2010) 321Google Scholar; Beitz, C, The Idea of Human Rights (Oxford University Press, Oxford, 2011).Google Scholar

4 On this issue, see also Gardbaum, S, ‘Human Rights as International Constitutional Rights’ (2008) 19 European Journal of International Law 749.CrossRefGoogle Scholar

5 UK Human Rights Act 1998.

6 Section 2(1) of the UK Human Rights Act 1998: ‘A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any (a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights ... whenever made or given.’

7 See in particular Alexy, R, A Theory of Constitutional Rights (Oxford University Press, Oxford, 2002)Google Scholar; Kumm, M, ‘The Idea of Socratic Contestation and the Right to Justification: The Point of Rights-Based Proportionality Review’ (2010) 4 Law and Ethics of Human Rights 141CrossRefGoogle Scholar; Kumm, M, ‘Political Liberalism and the Structure of Rights: On the Place and Limits of the Proportionality Requirement’ in Pavlakos, G (ed), Law, Rights and Discourse: The Legal Philosophy of Robert Alexy (Hart Publishing, Oxford, 2007) 131Google Scholar; Möller, K, The Global Model of Constitutional Rights (Oxford University Press, Oxford, 2012).CrossRefGoogle Scholar

8 And hence, it is possible to provide comprehensive theories of this global discourse; for a moral theory see my The Global Model of Constitutional Rights (n 7). For a formal theory, originally intended as explaining German constitutional rights law but in terms of its relevance and as evidenced by its success clearly of global relevance, see Alexy’s A Theory of Constitutional Rights (n 7).

9 An important exception is the US jurisprudence. On the issue of whether the US Supreme Court applies proportionality under a different name, see Yowell, P, ‘Proportionality in United States Constitutional Law’ in Lazarus, L, McCrudden, C and Bowles, N (eds), Reasoning Rights: Comparative Judicial Engagement (Hart Publishing, Oxford, 2014)Google Scholar. See also Möller (n 7) 17–20.

10 Canadian Charter of Rights and Freedoms 1982, section 1.

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12 This and the following section draw on ideas developed in greater depth in my book The Global Model of Constitutional Rights (n 7).

13 For a theoretical account of this development, see Fredman, S, Human Rights Transformed: Positive Rights and Positive Duties (Oxford University Press, Oxford, 2008) ch 1.CrossRefGoogle Scholar

14 Ronald Dworkin has defended this position throughout his career; see for example his ‘Rights as Trumps’ in Waldron, J (ed), Theories of Rights (Oxford University Press, Oxford, 1984)Google Scholar. For a more recent restatement see his Justice for Hedgehogs (Harvard University Press, Cambridge, MA, 2011) 329.

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19 BVerfGE 54, 143 (Pigeon-Feeding).

20 BVerfGE 80, 137 (Riding in the Woods).

21 To my knowledge, the first constitutional court to acknowledge positive obligations was the German FCC in its first abortion judgment; see BVerfGE 39, 1 (1975). One indicator of the global success of the doctrine is that the relatively young South African Constitution includes an explicit commitment to them in section 7(2): ‘The state must respect, protect, promote and fulfil the rights in the Bill of Rights.’ Here, ‘protect’ refers to positive obligations.

22 Sections 26, 27 and 29 of the South African Constitution.

23 BVerfGE 7, 198 (Lüth).

24 For a comprehensive overview see Oliver, D and Fedtke, J (eds), Human Rights and the Private Sphere: A Comparative Study (Routledge-Cavendish, London, 2007).Google Scholar

25 Retail, Wholesale & Dep’t Store Union v Dolphin Delivery Ltd (1986) 2 SCR 573, 605 (Canadian Supreme Court). The subsequent judgment in Hill v Church of Scientology of Toronto (1995) 2 SCR 1170 confirmed this approach and fleshed it out further.

26 Section 8(2) of the South African Constitution states in slightly awkward language: ‘A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.’

27 A Stone Sweet and J Mathews, ‘Proportionality Balancing and Global Constitutionalism’ (2008) 47 Columbia Journal of Transnational Law 72, 112.

28 This is captured in Robert Alexy’s theory of rights as principles and optimization requirements; see Alexy (n 7).

29 On the idea of a moral human right to a justification see Forst, R, ‘The Justification of Human Rights and the Basic Right to Justification: A Reflexive Approach’ (2010) 120 Ethics 711CrossRefGoogle Scholar. See further Kumm, M, ‘The Idea of Socratic Contestation and the Right to Justification: The Point of Rights-Based Proportionality Review’ (2010) 4 Law and Ethics of Human Rights 141.CrossRefGoogle Scholar

30 Kumm (n 29) 168–70.

31 Möller (n 7) 118.

32 R. v Edwards Books and Art (1986) SCR 713, 795.

33 See e.g. BVerfGE 65, 1, 54.

34 BVerfGE 76, 1, 51.

35 In addition to Joseph Raz and Ronald Dworkin, whose work I discuss in more detail below, the view that international human rights are minimalist in structure has been defended by Beitz, C, The Idea of Human Rights (Oxford University Press, Oxford, 2009)CrossRefGoogle Scholar; Cohen, J, ‘Minimalism about Human Rights: The Most We Can Hope For?’ (2004) 12 Journal of Political Philosophy 190CrossRefGoogle Scholar; Ignatieff, M, Human Rights as Politics and Idolatry (Princeton University Press, Princeton, NJ, 2003)Google Scholar; Nickel, J, Making Sense of Human Rights (2nd edn, Wiley-Blackwell, Oxford, 2006)Google Scholar; Rawls, J, The Law of Peoples (Harvard University Press, Cambridge, MA, 1999).Google Scholar

36 Dworkin, R, Justice for Hedgehogs (Harvard University Press, Cambridge, MA, 2011) 332.Google Scholar

37 Raz (n 3) 330.

38 See (n 29).

39 Griffin (n 2) 32–3. Griffin’s second point, omitted in the quote, is about ‘minimum provision’ of resources and capabilities that it takes to be an agent.

40 Ibid 167.

41 Ibid 234 (emphasis added).

42 Ibid 163 (emphasis added).

43 For a similar view, cf Raz (n 3) 326; Dworkin (n 36) 334–5, especially n 5.

44 Waldron, J, ‘The Core of the Case against Judicial Review’ (2006) 115 Yale Law Journal, 1346, 1386–95.CrossRefGoogle Scholar

45 Dworkin (n 36) 335–6 (original emphasis).

46 Raz (n 3) 331.

47 Section II.

48 Handyside v United Kingdom (1979–80) 1 EHRR 737, 753–4.

49 Refah Partisi (Welfare Party) and Others v Turkey (2002) 35 EHRR 3.

50 P Macklem, ‘Guarding the Perimeter: Militant Democracy and Religious Freedom in Europe’ (17 August 2010) available at SSRN <http://ssrn.com/abstract=1660649 or http://dx.doi.org/10.2139/ssrn.1660649>.

51 Hatton v United Kingdom (2003) 37 EHRR 28.

52 Letsas (n 17) 126.

53 See for example Hatton (n 51) para 98: ‘Whether the case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants’ rights under para. 1 of Art. 8 or in terms of an interference by a public authority to be justified in accordance with para. 2, the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention.’

54 Eweida v United Kingdom (App nos 48420/10, 59842/10, 51671/10 and 36516/10) judgment of 15 January 2013.

55 On a state’s obligation to improve its own legitimacy see Dworkin, R, ‘A New Philosophy for International Law’ (2013) Philosophy and Public Affairs 1, 17.Google Scholar

56 I leave open the further question of whether there are outcome-independent reasons (that is, reasons which do not rest on the assumed ability of international courts to improve the overall level of rights protection) which necessitate the existence of a right to a hearing before an international court. For the national context, such a claim has been made by Harel, A, Why Law Matters (Oxford University Press, Oxford, 2014) ch 6 and M Kumm (n 29) 170–1.CrossRefGoogle Scholar

57 Raz, J, The Morality of Freedom (Clarendon Press, Oxford, 1986) 166Google Scholar: ‘Definition: “X has a right” if and only if X can have rights, and, other things being equal, an aspect of X’s well-being (his interest) is a sufficient reason for holding some other person(s) to be under a duty.’