Interpreting international human rights: A test case for law-as-integrity.

摘要

The dissertation advocates a "constructive" conception of legal interpretation as a way of making sense of judicial recognition of the emerging international law of human rights. A centerpiece of the study consists of cases in which United States courts recognize human rights such as freedom from torture and genocide as universalizable norms backed by a consensus of the world community. Emphasis is given to analyzing competing interpretations of jurisdiction, international custom, signatory intent, and the concept of universality in connection with the application of generalizable provisions from treaties, conventions, and declarations.; Today the dominant paradigms for rights interpretation are positivism, realism, and law-as-integrity. Positivism recognizes as valid only those rights which are identifiable as a matter of plain fact based on actual conventions and practices of a determinate community. As such positivism presupposes a "scientific" conception of human rights interpretation. Realism views rights as useful social/political fictions at best. Thus, realism finds judicial interpretations of rights to be ultimately subjective or arbitrary. This amounts to a "creative" or "rhetorical" conception of human rights interpretation. Law-as-integrity mediates these extreme positions by identifying interpretations of legal rights with normative theories which seek to take rights seriously through constructing the best possible justifications for settled law. A principle advantage of law-as-integrity over positivism and realism is that it enables disputes surrounding the legality of human rights at general as well as specific levels to remain cogent and fertile. From the perspective of law-as-integrity disagreement about interpretations and applications of human rights centers around competing interpretive claims of justifying theories instead of as exaggerated ideological opposition between "skeptical" and "optimistic" philosophies of international law.; Ultimately the dissertation demonstrates how abstracting and universalizing central tenets of law-as-integrity's conception of rights interpretation from its domestic origins to international contexts yields a cogent philosophical basis for human rights adjudication.