The Sovereignty of Human Rights by Macklem Patrick

The Sovereignty of Human Rights by Macklem Patrick

Author:Macklem, Patrick
Language: eng
Format: epub
Publisher: Oxford University Press
Published: 2015-03-13T16:00:00+00:00



AT THE HEIGHT of the Second World War, Hans Kelsen, a leading proponent of the view that there exists a sharp distinction between politics and law, published an essay entitled Recognition in International Law: Theoretical Observations.1 What Kelsen meant by “recognition” was the recognition of a State in international law. In classic Kelsenian fashion, he argued that “the term ‘recognition’ may be said to be comprised of two quite distinct acts: a political act and a legal act.”2 Political recognition, such as the establishment of diplomatic relations, means that the 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”3—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.”4

Contemporary accounts of recognition in international law treat recognition in declaratory terms, as an act by one State that affirms the legal existence of another State.5 On a declaratory account, whether a State exists in international law does not turn on whether other States recognize it as a State; instead, it turns on whether it possesses the objective attributes of a State. Despite their differences, what 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.6 In Kelsenian terms, what criteria does international law provide to determine the legal existence of a community that is legally distinct from the State in which it is located?

This chapter addresses this question in the context of the evolving status of 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,7 which


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