The standard normative account of international human rights law is that its overarching mission is to protect universal features of what it means to be a human being from the exercise of sovereign power. This article offers an alternative account of the field, one that locates its normative dimensions in its capacity to speak to distributive injustices produced by how international law brings legal order to international political reality. On this account, human rights possess international legal significance not because they correspond to abstract conceptions of what it means to be human but because they monitor the distributive justice of the structure and operation of the international legal order itself. This account both draws on and departs from cosmopolitan conceptions of distributive justice in contemporary international political theory. It sheds normative light on why some human rights merit international legal protection despite the fact that they might lack some of the properties required by a universal account of the field. It illustrates these claims by describing how indigenous rights, minority rights, and rights to international cooperation and assistance mitigate some of the adverse consequences of how international law distributes sovereign power among a variety of legal actors it recognizes as states.
Patrick Macklem is the William C. Graham Professor of Law at the University of Toronto. He holds law degrees from Harvard and Toronto, and an undergraduate degree in political science and philosophy from McGill. He served as Law Clerk for Chief Justice Brian Dickson of the Supreme Court of Canada and as a constitutional advisor to the Royal Commission on Aboriginal Peoples. He is a recurring Visiting Professor at Central European University. He has been a Visiting Scholar at Stanford Law School and UCLA School of Law. In 2003, he was selected as a Fulbright New Century Scholar, taught at the European University Institute, and was a Visiting Scholar at Harvard Law School. In 2006-2007, he was a Senior Global Research Fellow at the Center for Human Rights and Global Justice at NYU School of Law. In 2007-2008, he is a Member of the Institute for Advanced Study in Princeton, New Jersey.
Professor Macklem's teaching interests include constitutional law, international human rights law, indigenous peoples, ethnic and cultural minorities, and labour law and policy. He is the author of Indigenous Difference and the Constitution of Canada (2001) (awarded the Canadian Political Science Association 2002 Donald Smiley Prize for best book on Canadian governance and the Canadian Federation for the Humanities and Social Sciences 2002 Harold Innis Prize by for the best English-language book in the social sciences), co-editor of Canadian Constitutional Law (2003); The Security of Freedom: Essays on Canada's Anti-terrorism Bill (2001), and Labour and Employment Law (2004), and has published numerous articles on constitutional law, labour law, indigenous peoples and the law, and international human rights law. He is a Fellow of the Royal Society of Canada.