A global conversation about rights

In terms of their potential geographical appeal, contemporary discussions about constitutional rights are global. Thus, it is emphatically not the case that the moral demands of constitutional rights are inextricably linked to and intertwined with a particular constitution with a particular interpretative history, adopted by a particular political community at a particular point in time. Rather, constitutional rights discourse is governed more by ‘free-standing’ moral argument about what rights and legitimacy require than by considerations relating to the history of a document or people. Constitutional rights discourse has gone global.^{Footnote 8}

A look at the structure of constitutional rights law helps explain why this is the case. Courts around the world employ a two-stage analysis when determining whether an act by a public authority violates constitutional rights. At the first stage, they ask whether the act interferes with (limits, restricts) a right. If so, the question at the second stage is whether the interference is justifiable. The test that is almost^{Footnote 9} globally employed at this second stage is the proportionality test, according to which an interference with a right is justifiable if it serves a legitimate goal and is proportionate to that goal. In judicial practice, the first stage has become less and less important, largely as a consequence of rights inflation, that is, the phenomenon that more and more interests are protected as rights. Thus, the focus of the analysis has shifted to the second stage, and the proportionality principle which dominates that stage has become the by far most important doctrinal principle of constitutional rights law around the world. Interestingly, national constitutions do not give courts any guidance as to how to conduct the proportionality test. Constitutions normally do not even mention the term ‘proportionality’. Instead, they use phrases similar to that employed by the Canadian Charter of Rights and Freedoms, which stipulates that rights are guaranteed ‘subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’.^{Footnote 10} The point of those rather vague phrases is to release judges from interpretative constraints;^{Footnote 11} thus, when courts apply proportionality analysis, they are not usually bound by textual subtleties, nor are they bound by the history of the particular constitution they are interpreting. Rather, they engage in free-standing moral reasoning about what rights require, largely unguided by the constitution which they interpret.

The global model of constitutional rights^{Footnote 12}

While it is to be expected that different courts will sometimes come to different conclusions when dealing with a particular rights issue – say, the question of whether or under what conditions hate speech may be prohibited, or whether assisted suicide must be permitted – at a more abstract level, a remarkable consensus about certain structural features of constitutional rights has emerged in recent decades. I have labelled this set of doctrines and phenomena ‘the global model of constitutional rights’; in this section I will briefly introduce its main features, which will pave the way for presenting, in the following section, a theory of constitutional rights which fits and justifies these features.

The global model of constitutional rights is best introduced and explained by contrasting it with what I call the ‘dominant narrative’ of the philosophy of fundamental rights. The dominant narrative holds (1) that rights cover only a limited domain by protecting only certain especially important interests of individuals; (2) that rights impose exclusively or primarily negative obligations on the state; (3) that rights operate only between a citizen and his government, not between private citizens; and (4) that rights enjoy a special normative force, which means that they can be outweighed, if at all, only under exceptional circumstances. Of these features of the dominant narrative, the general acceptance of the second – rights as imposing negative obligations on the state – has already eroded considerably, mainly because of the growing recognition of social and economic rights.^{Footnote 13} The third – limitation to the relationship between citizen and government, while generally held to be true, does not normally attract much attention by rights theorists. The first and the fourth features – special importance and special normative force, which are the most significant ones for my purposes in this paper, are still almost uncontroversial: philosophers of rights insist that not just any interest can be protected as a right, and that a crucial characteristic of rights is that they normally take priority over competing considerations. To name just the most famous examples of this theoretical approach: for Ronald Dworkin, rights operate as ‘trumps’ over competing policy concerns;^{Footnote 14} for Robert Nozick, they are ‘side constraints upon action’,^{Footnote 15} and for John Rawls, they take lexical priority.^{Footnote 16}

By way of contrast, under the global model of constitutional rights all four elements of this narrative have been given up – and often a long time ago. The doctrines and developments in constitutional rights law which have led to their erosion are rights inflation, positive obligations and socio-economic rights, horizontal effect, and balancing and proportionality.

Theorizing the global model: Between minimalism and maximalism

Limiting the range of interests protected as rights

I argued above that under the global model of constitutional rights, all of a person’s (autonomy) interests are protected as rights. Thus, to employ two famous German cases one last time, a person can successfully claim a right to feed birds in a park or to go riding in the woods. The underlying idea of this broad scope of rights is that every state action (and omission) which affects a person in a morally relevant way requires justification. To ‘translate’ this ‘right to justification’^{Footnote 38} into a theory of rights, it is necessary to protect all autonomy interests of a person at the prima facie stage, and to assess the justifiability of their limitation at the justification stage, using the proportionality test.

Now, an international human rights theorist might respond by arguing that while it may be appropriate to protect such a broad scope of rights in the context of national constitutional law, it would be inappropriate to do so at the international level. Thus, the range of interests protected as rights ought to be drawn more narrowly, introducing a threshold which distinguishes rights from mere interests.

For this idea to succeed, however, it must be possible to identify a threshold which points to a principled distinction between those interests which do and those which do not attract the protection of rights. A first approach could be to draw the line in a pragmatic way: we could argue that only interests of, say, ‘fundamental’ importance attract the protection of international human rights. But the problem with pragmatic approaches is precisely their pragmatic character, that is, the absence of principle. A second, more promising strategy could be to consider the existence of a qualitative difference between rights and mere interests. The most promising attempt in this direction has been made by James Griffin in his book On Human Rights. He argues that the threshold can be derived from the idea of personhood:

Griffin tells us more about how demanding the right to liberty is:

Griffin’s idea is that ‘personhood’ functions both as the basis of human rights and as a limitation on their scope: only those interests that are important for personhood are protected as human rights. However, this account does not work. Its failure is that the personhood approach does not offer a coherent way to delineate interests relevant for personhood from other interests. For Griffin, personhood requires autonomy and liberty (in my terminology, personal autonomy): basically, control over one’s life. But it requires only that kind of control over one’s life that is required by the value of personhood. This leaves open the question of what the test is for determining whether some instance of liberty (autonomy) is required for personhood. My suspicion is that it is simply ‘importance’. For example, Griffin explains that ‘the domain of liberty is limited to what is major enough to count as part of the pursuit of a worthwhile life’.^{Footnote 41} At another point, he defends a human right to gay marriage on the ground ‘of its centrality to characteristic human conceptions of a worthwhile life’.^{Footnote 42} Thus, it seems that the threshold of personhood simply refers back to a sliding scale of importance: an interest that is ‘major enough’ or ‘central’ will acquire the status of a human right. But such a sliding scale cannot, as explained above, do the moral work. The threshold would have to be between ‘not quite major enough’ and ‘barely major enough’ or ‘not quite central’ and ‘barely central’. Then, under Griffin’s model, all that separates a mere interest from a human right is a small difference in terms of importance or centrality. This small difference, however, cannot justify the great normative significance that for proponents of threshold models comes with one of them being a simple interest and the other a human right. I believe that this is a general problem of threshold theories that is not limited to Griffin’s account.^{Footnote 43} If that is true, then the only possible conclusions are that the threshold requirement should be dropped and that it should be acknowledged that the scope of international human rights, just as the scope of national constitutional rights, extends to everything that is in the interest of a person’s autonomy. However, this being so, we must abandon the idea that by reducing the scope of interests protected as rights we can make sense of the widespread intuition that there is a distance between the moral demands of national constitutional rights and international human rights.

Lowering the standard of justification

The second structural possibility to create a distance between national constitutional rights and international human rights is to relax the standard of justification. As explained above, under national constitutional rights, a policy limiting a right will be considered justified if it is reasonable (as opposed to correct). This means that to be constitutionally legitimate, the legislature does not have to find the best possible, or ‘one right’, answer to the social problem at hand; rather it acts legitimately if its answer is reasonable.

The importance of this point cannot be overstated. Much of the discussion about the justifiability of judicial review at the national level rests on the mistaken assumption that when courts adjudicate constitutional rights, they thereby remove the choice between different policies from the democratically elected legislature.^{Footnote 44} This view is, however, misleading: courts do not remove choice as such from the legislature; they remove only the possibility to choose an unreasonable – disproportionate – policy. The choice between all possible reasonable – proportionate – policies remains with the legislature. When a court declares that a policy respects constitutional rights, it says nothing more or less than that the policy under consideration is reasonable; it does not pass judgment on whether it is correct (this is simply not the court’s task). Conversely, where a court declares a policy a violation of constitutional rights, it decides that this particular policy is outside the scope of reasonable policies; but it leaves to the legislature the task of choosing a reasonable policy.

With this clarification in mind, let us turn to Dworkin’s proposal about how to delineate constitutional (political) from international human rights:

As the above quote shows, Dworkin must believe that in the domain of constitutional (political) rights, legitimacy requires that government get it right, i.e. that it find the one right answer to the rights issue at hand. This can be contrasted with the domain of human rights which, according to Dworkin, require only that government act in good faith. As Dworkin explains, the good faith requirement is not a subjective but an objective test: it requires that the respective policy be defensible under an intelligible conception of what dignity requires. In light of this, I believe it is fair to Dworkin’s intentions to equate ‘in good faith’ with ‘reasonable’: the function of the good faith requirement is to acknowledge a sphere of acceptable disagreement while nevertheless requiring that the policy at stake be objectively justifiable. This must in substance amount to a reasonableness standard: an unreasonable policy is not defensible as enacted in good faith or as intelligible, whereas a reasonable policy is defensible in this way.

Can we use Dworkin’s idea to create a distance between national constitutional rights and international human rights under the global model? I believe that we cannot. Dworkin can create this distance in his theory only because the standard of justification in his account of constitutional (political) rights is ‘correctness’. I cannot assess here whether this position is viable within Dworkin’s theory of rights (I have my doubts). But on the assumption that it is, it is indeed a structural possibility for Dworkin to then relax the correctness standard which he uses for constitutional rights and adopt a reasonableness (good faith) standard for international human rights. By way of contrast, in the theory of constitutional rights which underlies the global model, the standard of review is already ‘only’ a reasonableness standard anyway; therefore any further relaxation of this standard would imply that international human rights have no objection to policies which affect people’s rights and which are not even reasonable. ‘Reasonable’ means something like ‘supported by adequate reasons’. It is implausible to hold that a policy which limits a person’s human rights and which is not supported by adequate reasons nevertheless complies with human rights. In other words, we cannot go below the threshold of reasonableness, and given that this threshold is already employed by national constitutional rights, we cannot create a distance between national constitutional rights and international human rights by relaxing the standard of justification.

The above argument concerns itself with the relationship between national constitutional rights and international human rights. We can examine the same issue by looking at the relationship between constitutional legitimacy and national sovereignty. Remember Raz’s claim, quoted above, that the two refer to different standards, with national sovereignty being wider than what he calls legitimate authority, and what I call constitutional legitimacy. Why is this so, for Raz?

By Raz’s own admission, this is only the sketch of an argument. In what follows, I will unpack and interpret the statement, and I will again replace Raz’s term of ‘legitimate authority’ with ‘constitutional legitimacy’; so what follows is the critique of a position which Raz presumably holds only partially. There is a close connection between constitutional legitimacy and ‘the principles of justice that govern any individual society’. But those principles of justice will vary from society to society. This is not so because of moral relativism (which Raz rightly rejects), or because whatever principles a society happens to accept make those principles just. Rather, it is because of what Raz calls a ‘benign social relativism’, according to which the principles of justice will be sensitive to social facts. Certain practices will have developed within a society, and the principles of justice which are applicable to that society will or at least may be sensitive to those practices. Hence it is not possible to simply take one society’s principles of justice and apply them to another society with different practices and structures; and given the close connection between justice and constitutional legitimacy, it is not possible to equate national sovereignty with any given society’s standards for constitutional legitimacy. In light of this, caution is required when assessing questions of justice from the outside, and no ‘too close external scrutiny’ should be applied.

To illustrate this idea, let us take the example of the right to education, which Raz also considers in his paper, albeit in a different context. Let us say that in country A, people have a moral right against the state to be provided with education, but that in country B, people have no such moral right because, say, the social structures of that country are such that people can have a rewarding life without formal instruction, or because in that country education is provided by the family or clan and the state need not get involved. In short, in country A justice requires that the state provide education and in country B it does not. Thus, an international judge who is a citizen of country A and who is called upon to assess the human rights situation in country B could mistakenly believe that education is a human right (based on her experience at home); in order to avoid such mistakes she should adopt an attitude of caution, and additionally she should keep in mind the fact that societies need freedom to develop their own rights-affecting practices.

The first problem with this approach is the assumed link between constitutional legitimacy and justice. Constitutional legitimacy is not about securing justice. Rather, as explained above,^{Footnote 47} it is about whether a policy is supported by adequate reasons: we may say, it is about whether a policy relies on a reasonable, as opposed to the one correct, conception of justice. In other words, a policy may be unjust but nevertheless constitutionally legitimate. This must be true because if constitutional legitimacy required justice, then there would be no room for democratic disagreement about questions of justice – rather, only one, namely the one just, policy would be constitutionally legitimate; such an approach would be incompatible with the value of democracy which requires the people and their representatives to engage in discussions and controversies about and ultimately hold a vote on what justice requires. This means that constitutional legitimacy leaves states a considerable room for manoeuvre: all it insists on is that a policy be a reasonable attempt at justice. From the point of constitutional legitimacy, states have an enormous leeway in working out which conception of justice works best for them, and they may take their structure of social relation, history, and social practices into account when doing so. There is no moral need, nor is there the moral possibility, to make this leeway even wider in the context of national sovereignty because doing so would imply awarding the dignifying label of ‘falling into the sphere of national sovereignty’ to a policy which is not only unjust but which cannot even be defended as a reasonable attempt at justice. The pluralism and diversity which rightly ought to be cherished in the international arena must, to be morally defensible, be a diversity and pluralism of reasonable conceptions of justice, not one of unreasonable and therefore unjustifiable ones.

In light of this clarification, let us assess Raz’s two arguments about why for him, sovereignty is wider than constitutional legitimacy. One of his points is that societies need freedom to develop their own rights-affecting practices, and that therefore international supervision ought not to be too intrusive. This argument is unconvincing: the freedom to develop one’s rights-affecting practices is surely valuable when used to develop rights-respecting practices. But what if a society uses it to develop rights-violating practices? Societies do indeed need freedom to develop their own practices, but the only freedom they need is to choose between different reasonable conceptions of justice, not the freedom to choose unreasonable ones; and, as pointed out above, policies based on reasonable conceptions of justice do not violate rights and remain within the sphere of national sovereignty.

Raz’s second point is that there are certain difficulties with outsiders assessing the requirements of justice in a given society. As a preliminary point, these difficulties are reduced but do not entirely go away when we replace ‘justice’ with ‘constitutional legitimacy’: they are reduced because it will often be easier, especially for an outsider, to assess whether a policy is reasonable than to assess whether it is correct; however, the problems still persist to an extent because the reasonableness of a policy will still be sensitive to local contingencies to some extent.

I believe that Raz has a valid point here, albeit one which leads him to draw an unattractive conclusion. Let us take the example of an international judge. It is true that an international judge cannot simply rely on the conception of constitutional legitimacy adopted in his home country and apply it to the society from which the case on his desk originates. Rather, he must ask the question of whether the policy at stake is legitimate under the standards of legitimacy of the society whose policy it is; and establishing this may on occasion be difficult or even impossible for him. However, the proper response to this problem is not to loosen the moral requirements of sovereignty but rather to acknowledge that sometimes an outsider’s empirical and/or normative knowledge is limited, and therefore to show a degree of deference towards the original decision-maker.

Dealing with this kind of uncertainty is the daily business of international courts such as the ECtHR, which has developed strategies and doctrines to do so satisfactorily. Its judgments usually contain long sections setting out the domestic context of the rights issue at stake; this enables the Court to assess whether the policy is justifiable within that context. Furthermore and more importantly, the Court’s doctrine of the margin of appreciation acknowledges and provides a way of dealing with the specific institutional limitations under which it, as an international court, operates. The classic statement of the margin of appreciation was set out in the famous Handyside case:

The margin of appreciation doctrine enables the Court to defer to the national authorities of the respective member state in a situation where it has doubts about the justifiability of a policy but is simultaneously unable to convince itself of its unjustifiability (because of epistemic uncertainty). In such cases, the Court will often hold that the measure at stake lies within the margin of appreciation of the respective member state. It should be noted that the margin of appreciation doctrine is not only one of the cornerstones of European human rights law, but also one of the most difficult and controversial parts of it; and the Court is often rightly accused of taking recourse to it too lightly. So my goal here is not to wholeheartedly defend the Court’s approach; rather it is to make the more limited point that there are indeed cases where the doctrine is rightly invoked because of epistemic uncertainty.

To give an example of a scenario where it is difficult and maybe impossible for the Court to establish the right outcome, let us consider the Refah Party case.^{Footnote 49} Turkey banned the Refah Party which it considered extremist and a threat to Turkish democracy, in particular because of its right-wing Islamic agenda, which included, among other things, a proposal to introduce aspects of Sharia law. In a nutshell, one of the important issues at stake was whether Turkey was justified in taking a tough stance towards religious, in particular Islamic, parties, in order to protect its commitment to what has been labelled ‘militant secularism’,^{Footnote 50} which in turn was regarded by Turkey as a cornerstone of protecting its democracy from being undermined and eventually, to put it bluntly, slipping into an Islamic dictatorship. I regard this case as a paradigm example of the scenario Raz must have in mind, where it is extremely difficult if not impossible for an outsider such as an international judge to decide whether Turkey’s action of dissolving the Refah party was justified, and the reason for this difficulty lies in the fact that normative considerations about the legitimacy of banning a political party are inextricably bound up with questions relating to Turkey’s history, culture, and politics, which make it difficult if not impossible for an outsider to resolve the issue satisfactorily. So, to repeat, Raz has a point. But if I am given the task to resolve a mathematical puzzle which is too difficult for me, the response to my personal intellectual limitations cannot be to relax the standards of mathematical truth. Similarly, where an international court is unable to determine whether a country’s policy reflects a reasonable conception of justice, we should not respond by relaxing the moral requirements of sovereignty. Rather, we should acknowledge that the problem of epistemic uncertainty may on occasion lead international courts to defer to the respective national authorities – problematic and unsatisfactory as this may be, and at the same time insist that sovereignty can be invoked only in support of justifiable (reasonable) policies.

Conclusion

Both strategies of creating a distance between national constitutional rights and constitutional legitimacy on the one hand and international human rights and national sovereignty on the other failed. To the extent that constitutional rights are ‘maximalist’ in character by protecting all (autonomy) interests as rights, this cannot be abandoned without introducing arbitrariness, and to the extent that constitutional rights are ‘minimalist’ by insisting not on a correctness but only on a reasonableness standard of justification, a further lowering of the standard is neither necessary nor coherently possible. It follows that national constitutional rights and constitutional legitimacy on the one hand and international human rights and national sovereignty on the other have the same moral structure. The next section will flesh out some of the implications of this view.

An alternative explanation of international human rights minimalism, and its limits

Many believe that minimalism is built into the moral structure of international human rights. However, the only way in which international human rights may be defensibly minimalist is pragmatic and therefore external to the moral structure of international human rights. There are good reasons why much of international human rights practice focuses on preventing particularly egregious violations of human rights. But those reasons have nothing to do with the moral structure of international human rights; they simply reflect judgments about priorities.

While it is plausible to defend some form of minimalism on pragmatic grounds, we would however paint a one-sided picture of international human rights if we argued that all of it is or ought to be minimalist for pragmatic reasons. Pragmatic minimalism can be justified only to the extent that it is politically impossible or excessively costly to protect international human rights comprehensively. In other words, we should work towards a state of affairs where international human rights are comprehensively protected, and where it is not necessary to limit their practical reach to the prevention of only the worst human rights violations. In this sense the theory of international human rights proposed here is partly aspirational.

I say ‘partly’ because there exists already one instance of a legal institutionalization of human rights at the international level which broadly reflects the model I advocate: the ECHR. The jurisprudence of the ECtHR is structurally very similar to the global model of constitutional rights. First, we can identify rights inflation in the Court’s jurisprudence: it regularly reads the protection of relatively trivial interests into the Convention, most often into Article 8 (the right to respect for private and family life). To give just one example, in a case involving residents near Heathrow airport complaining about the noise caused by night flights, the Court held that Article 8 also covers the right not to be affected by aircraft noise^{Footnote 51} – dismissively dubbed ‘the human right to sleep well’^{Footnote 52} by George Letsas. Second, the Court protects negative as well as positive obligations – in fact, it has more or less dropped the distinction between the two.^{Footnote 53} (It admittedly does not, at least not comprehensively, protect socio-economic rights, which were deliberately left out of the Convention.) Third, the Court applies the proportionality test and, by and large, has no scruples about declaring a measure of a member state disproportionate and therefore in violation of human rights. To give, again, just one example: the Court recently ruled against the United Kingdom for failing to protect the right of an employee of British Airways to openly wear a small cross during work, arguing that BA’s interest in maintaining a certain corporate image was outweighed by the applicant’s right to manifest her religion.^{Footnote 54}

While a comprehensive analysis of the Court’s jurisprudence is beyond the scope of this paper, it is fair to say that its approach to human rights is structurally extremely close to that of national constitutional courts. This being so, it cannot be argued that because of its great scope of protection, the theory of rights which I propose in this paper is unworkable or unhelpful in the context of international human rights. It has already proven workable in practice, namely in the member states of the Council of Europe, and not only does it work somehow; rather, the jurisprudence of the ECtHR is widely and rightly regarded as the poster child of international human rights law.

The point of international human rights law

If, as I argue, the moral structures of national constitutional rights and international human rights are identical and we should work towards a state of affairs where the international order protects fundamental rights as well as some national constitutional courts already do, then this leads to the question of the point of this additional layer of rights protection. At first glance, an institutionalized mechanism for the protection of international human rights which relies on the same standards as those applied by national constitutional courts may seem odd and an unnecessary complication and duplication of responsibilities.

There is, however, nothing suspicious about the fact that under the model advocated here, national constitutional courts and international human rights courts apply the same standards of review. The international mechanisms for the protection of human rights will only kick in when something has gone wrong at the national level. Thus, if one were to adopt a minimalist approach to international human rights, then the international actors would only become active after the national level has failed to deliver even this minimum standard. In the model advocated here, the international actors would interfere when the respective national constitutional court made a mistake and accepted a policy as complying with the requirements of constitutional legitimacy when in reality it violated them and therefore fell outside the sphere of the state’s sovereignty. Thus, there is no deep problem here. The point of international human rights law is to police the boundaries of a state’s sovereignty.

The obligation of states to participate in international mechanisms for the protection of human rights

A further question is whether there is a moral obligation on states to promote the international protection of human rights by participating in legal mechanisms for their protection which bind themselves and all other participating states. I believe that there are, and I will provide two reasons for states to sign up to international human rights treaties and organizations. The first centres on each state’s duty to ensure and improve its own legitimacy in relation to its citizens.^{Footnote 55} One important aspect of its legitimacy is its respect for its citizens’ fundamental rights. There are good outcome-related reasons to hold that an adequate institutionalization of fundamental rights will provide not only a national level of constitutional protection but include an additional international layer as well.^{Footnote 56} First, the international layer may stabilize a country’s long-term commitment to the values of democracy, the rule of law, and fundamental rights, and may make it harder for forces seeking to undermine or destroy its democratic practices to succeed. In a national context, the integrity of a constitutional court is most under threat when the governing parties seek to undermine its work, for example, through the appointment of judges who support the government’s ideology, the tinkering with procedural rules, or constitutional amendments. While it is true that international courts, too, operate in an environment which involves political pressure (this is visible in the case of the ECtHR which occasionally backtracks from its own jurisprudence when faced with resistance from national governments), it will be impossible for anyone national government gone astray and acting in isolation to do serious damage to an international court. Second and independently, there is reason to assume that international courts will sometimes reach better outcomes compared to national constitutional courts. National and international courts have their respective weaknesses and strengths. Among the strengths of a well-designed national constitutional court is that its judges will have more adequate ways of acquiring the relevant empirical knowledge on which the correct outcome of legal cases, including constitutional and human rights cases, often depends, and that they will have a deeper understanding of the principles of justice applicable to their respective society. An international court will find it more difficult to access the relevant empirical data; and, as discussed above, will also on occasion find it more difficult to assess the justifiability of a state’s practices from the outside. In the case of the ECtHR, this often leads the Court to adopt a relatively high degree of deference towards the respective national authorities, which potentially leads to an under-protection of human rights. There are, however, also important ways in which an international court may be better placed to engage in judicial review: the human mind often leads us to trust what we are familiar with, and therefore in the case of a national constitutional court, the judges’ intimate knowledge of their own legal order may on occasion preclude a fresh and unbiased assessment of the law at stake. In such situations, an international court, as a body mostly made up of judges from other jurisdictions, may be in a better position, relatively speaking, to identify certain pathologies of the politics and policies of a national community.

The second reason for joining an international system for the protection of human rights can be derived from a state’s obligations to people living in other states and can be explained in the following way. Human rights flow from a fundamental status of human beings which they possess simply by virtue of their humanity; we may call this status ‘human dignity’. Violations of human dignity are a moral concern for everyone; this proposition is the basis of the view, assumed by this paper that the sovereignty defence does not hold in the case of a violation of human rights: a violating state cannot claim that its violation of human rights is not the business of other states. Thus, every state is under a moral obligation to take adequate steps in the international arena to ensure that the human dignity of people living in other states is respected. One important way of discharging this moral obligation is to participate in international systems of human rights protection that are likely to lead to an improvement in human rights compliance in those states. Thus, even a country whose democratic and rights-respecting culture is of such a high quality that in terms of improving its level of rights protection at home it has nothing to gain from joining an international system of rights protection will be under a moral obligation to participate if by doing so it contributes to a more effective protection of human rights abroad. For example, the current debate in the United Kingdom about whether the country should leave the Council of Europe centres almost exclusively on the question of what the UK may get out of staying or leaving, and usually neglects the fact that whatever the answer to that question may be, the more important consideration relates to the UK’s obligation to contribute to making the ECHR a success across Europe and improving human rights compliance in other member states with a less impressive democratic and rights-respecting culture than that of the UK.

Which steps are adequate and therefore morally required will of course be a difficult question, and resolving it will crucially involve strategic considerations as to the likely success of the scheme under consideration in improving human rights compliance in the long run. Assume that the measure under consideration is a regional human rights treaty which includes the right of individuals to petition an international court with the final authority on questions of interpretation – in other words, a scheme similar to the ECHR. Where the international situation is such that it can be expected that the newly created court will, on the whole, function well and improve compliance of the participating states with the demands of human dignity, a state will be under an obligation to participate in this scheme even if its rights situation at home does not need improvement and can be considered entirely stable even in the long run. It owes this duty not to its own citizens but to the people of other states whose dignity is not currently adequately respected, or who live in states whose democratic and rights-respecting culture is not sufficiently mature and needs the stabilizing effect of this treaty in order to keep the country on a dignity-respecting course. By way of contrast, where the international situation is such that it could be expected that the treaty under consideration would not contribute to more respect for dignity in the respective region – for example, because one would have to expect that many of the participating countries would send incompetent or corrupt judges to sit on the new court, or because there is no sufficient prospect of the new court’s judgments being obeyed – no such obligation would arise. (However, in such a situation, other obligations would of course exist, the crucial question being which steps are likely to improve compliance with human rights over time.) Thus, importantly, my argument is not that whatever the state of the world or the respective region, international human rights courts ought to be set up everywhere. Such courts are only one of a range of potential measures to stabilize a region’s respect for human rights in the long run, and they should only be used where there is a reasonable chance of them succeeding with their work. That said, where the conditions are sufficiently favourable, there is an obligation to introduce them, for the reasons given above.

The above argument claims that states have an obligation to take adequate steps to promote the protection of human rights inside as well as outside their own borders. The point can be pushed further: I will claim that the creation of an international court of human rights will, under certain conditions, itself be a matter of human rights. The argument to this effect proceeds in two steps and is structurally similar to, though substantively different from, establishing the existence of a moral right under Raz’s interest theory of rights. Raz has famously argued that a right exists where a person’s interest grounds duties in others.^{Footnote 57} In a structurally parallel way, I claim that a person has a right if someone else is under an obligation which is grounded in that person’s status; and this right will be a human right if the status under consideration is the status of human dignity. Thus, a person has a human right to the creation of an international human rights court if states are under an obligation to create such an institutional protection of human rights and if this obligation flows from that person’s human dignity. The obligation to create an international human rights court, where it exists, is, as argued above, grounded in the status of human dignity of especially those people whose human rights are at risk of not being adequately respected in their home states in the present or the future. This establishes the possibility of the existence of a human right to the creation of an international court of human rights.