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Home EJIL Book Discussion Vaughan Lowe on Marko Milanovic’s Book

Vaughan Lowe on Marko Milanovic’s Book

Published on December 2, 2011        Author: 

Vaughan Lowe is Chichele Professor of International Law at the University of Oxford and Fellow of All Souls College, Oxford

In his perceptive and incisive analysis, Dr Milanovic argues that the concept of jurisdiction in the European Convention on Human Rights is not the same as the concept of jurisdiction in general international law. Specifically, he argues that the State obligation to respect human rights is not limited territorially but that the obligation to secure or ensure human rights is limited to those areas that are under a State’s effective overall control. The analysis is convincing, and the approach gives a robust and powerful tool for determining the scope of human rights obligations.  Applauding that achievement, I wonder if there is not also room for an equally fundamental challenge, arguing that the concept of ‘rights’ in human rights conventions is not the same as the concept of ‘rights’ in general international law.

In an article in the 2006 British Yearbook of International Law, Lea Brilmayer argued that human rights treaties should be seen as pledges rather than contracts, so that analyses based upon reciprocal rights and obligations, of the kind that characterise the traditional discussions of treaties, should not be thought to be necessarily appropriate to discussions of human rights treaties. A comparable shift in perspective would see the commitments in human rights treaties not as reciprocal agreements between States Parties or even as agreements to confer rights upon individuals, but rather as limitations upon the legal power (or at least upon the authority) of governments. There would, in short, be some things that States bind themselves not to do, anywhere.

 Those limitations would limit the power of governments and constrain its exercise, no matter what the particular geographical destination of the government action might be. States Parties to human rights treaties would not be seen as agreeing between themselves that they will not arbitrarily deprive human beings of liberty; rather, governments would commit themselves to the principle that no State has the legal power or authority arbitrarily to deprive a human being of liberty, and would agree that in all circumstances in which a determination of the legality of their action is in question their conduct should be appraised by reference to that and other principles set out in human rights treaties.

On this basis, it would not matter where the act had occurred: the question would be simply whether conduct attributable to the State was or was not consistent with the principles which the State had committed itself to observe. That, surely, is more in harmony with the notion of human rights as intransgressible norms than is the view that one has to be standing in a particular place in order to benefit from human rights.

This is the result that Dr Milanovic achieves by his distinction between the obligation to respect human rights and the obligation to secure or ensure them. But the route to that result is slightly different. Concentration on ‘human rights as pledges’ would enable arguments to be built upon a wider range of materials than treaties that have entered into force with the State concerned; and on some accounts of the principle of good faith (such as that in Bin Cheng’s enduring classic, General Principles of International Law) would also entail legal constraints upon the abandonment of the pledge. It would also attach the obligation firmly to the substantive rule governing State behaviour, and avoid any temptation to confine the obligation to a particular system for the handling of complaints that the State has violated its duties.

The questions would not, of course, end there. It would be necessary to go on to ask what consequences flow from conduct that is not consistent with the applicable principles of human rights law. But that approach may itself carry benefits. Action by a victim of a human rights violation would follow the forms of action in national law – actions for assault or trespass to the person or whatever. The point would be that the State lacks the legal power to authorize the injurious conduct.

Marko Milanovic has described a powerful and innovative approach to the conceptualisation of human rights norms, and it is a project which deserves not only the closest attention but also the most vigorous pursuit.

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7 Responses

  1. ==governments would commit themselves to the principle that no State has the legal power or authority arbitrarily to deprive a human being of liberty==

    Instead of saying that the states commit themselves, I would say that they merely become ‘aware’ that they don’t have those powers, as judge Weeramantry has put it:

    “Moreover, a State, in becoming party to the Convention, does not give away any of its rights to its subjects. It does not burden itself with any new liability. It merely confirms its subjects in the enjoyment of those rights which are theirs by virtue of their humanity. Human rights are never a gift from the State and hence the State, in recognizing them, is not imposing any burden upon itself. We have long passed the historical stage when a sovereign, granting to his subjects what we would today call a human right, could claim their gratitude for surrendering to them what was then considered to be a part of his absolute and undoubted right as sovereign. Human rights treaties are no more than a formal recognition by the sovereign of rights which already belong to each of the sovereign’s subjects. Far from being largesse extended to them by their sovereign, they represent the entitlement to which they are born.” Christopher Weeramantry Separate Opinion in Bosnia and Herzegovina v Yugoslavia, I.C.J Reports, 1996 (II), p. 595 at 640

  2. This seems to be a naturalist conception of rights that, in terms of human international law, must be based in customary international law rather than treaty law as such?

  3. @Professor Paust
    If anybody asked me, I would ground the human rights in naturalistic premisses. See for instance: Mikhail, J. (2011). “Moral Grammar and Human Rights: Some Reflections on Cognitive Science and Enlightenment Rationalism.” In UNDERSTANDING SOCIAL ACTION, PROMOTING HUMAN RIGHTS, Ryan Goodman, Derek Jinks, & Andrew K. Woods, eds., Oxford University Press, 2012

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1924915

    We all have some fundamental biological and psychological needs, resulting from our survival instinct. Nobody wants to be killed, driven in slavery, tortured, robbed, lied to. Everybody demands that others respect their contracts and promises, etc. The other human rights that are not directed related to survival, are rights that enable the survival. For instance the right to fair trial.

  4. JordanPaust

    I agree that human rights do not “come” from “the state,” since international law has never been merely state-to-state and there have been several formal actors other than the state for the last few hundred years as well as numerous informal actors who participate in various ways in the international legal process. See http://ssrn.com/abstract=1701992.
    And, yes, there have been references to inherent and inalienable human rights, but from my perspective they are part of dynamic human law resting upon generally shared patterns of legal expectation or opinio juris and general patterns of practice.

  5. @Professor Paust

    Well I kind of know your position on human rights, cause I wrote my master thesis on the role of the individuals in IL, claiming that individuals should be able to sue states at international courts, like the Europeans can at ECtHR. This is what I wrote about you in my thesis:

    “Professor Paust assures us that customary international human rights law (CIHRL) is rich in individual participation. Each of us can initiate a change, ‘reaffirm its validity’ and terminate it. At least the jus cogens norms are the result of collective hope, demand and expectations, and we all participate in a ‘dynamic process of acceptance or expectation which leads to patterns of opinio juris, measurable at various moments.’ Individuals also participate in the ‘shaping of attitudes’ even though they may be unaware of it. Individuals are involved in sanctions to promote human rights which use diplomatic, ideological, economic and military strategies. Human rights groups use diplomacy, education, media, and networking, they disseminate information, lobby, advise, draft, testify, investigate, invocate and ‘mobilize shame.’”, J.J. Paust, “The Complex Nature, Sources and Evidences of Customary Human Rights,” 25 Ga. J. Int’l & Comp. L. 147 (1995).

  6. yes, thanks, from a realist perspective. Has your thesis been published?

  7. One can download the thesis from here.
    http://igitur-archive.library.uu.nl/student-theses/2011-0525-200455/UUindex.html

    Probably you’ll have to add a .pdf to the downloaded document.