The Recognition Theory of Rights, Customary International Law and Human Rights

Abstract

This article addresses the most fundamental question in the philosophy of rights. If there are any moral rights, where do they come from and how do we acquire them? The difficulty of answering the question is compounded when asked in relation to universal rights and obligations where the international community in which they function is far less solidarist than at the domestic level. The suggestion is that while answers that presuppose something about the ontology of the person, such as an emphasis on basic needs, or inherent human dignity, are prevalent, they are a convenient fiction. It is contended that the rights recognition thesis, typically associated with British Idealism, is best exemplified with reference to common law theory, and customary international law, and provides a far more adequate account of what it means to have universal rights and obligations. It is suggested that customary international law functions in a similar way to how natural law used to function. The article concludes by emphasising the importance of customary international law in articulating the universal obligations of states and holding them to account for their actions. It addresses the question of what it means to have a universal right, and not what universal rights it is desirable to have.