Separation Anxiety? Rethinking the Role of Morality in International Human Rights Lawmaking

The conventional accounts of international law do a poor job accounting for human rights. International legal positivists generally argue that there is a strict separation of law and morality, with no role for moral obligation in the validation of law. But human rights practice reveals many situations in which it appears that morality is validating legal obligation.  Process theorists recognize an intrinsic role for the values underlying international law in understanding its commands. But they embrace a vision of law as dialogue that fails to protect the right to self-determination that is a core value of human rights.

This Article argues that inclusive positivism provides the best model to understand international human rights law.  Unlike process theory, inclusive positivism accepts that law is a discrete object identified through application of validation criteria. This model allows states to retain control over the content of their legal obligations. Unlike conventional international legal positivism, inclusive positivism acknowledges that moral obligation plays a role in the validation of human rights law consistent with the practice of human rights actors.

This Article suggests hypotheses as to how the commonly accepted rules that define human rights law can be modified to account for the role moral obligation plays in human rights practice.

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