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

The role of the moral obligation of States, or how States ought to behave, in international law is a source of significant controversy. The dominant 20th Century positivist paradigm of international lawmaking gave short shrift to moral obligation. This account of international lawmaking holds that there is a separation between law and morality (“Separation Thesis”), with the latter outside the bounds of international law. Such an approach is defended as necessary to overcome disagreement on conceptions of justice and respect pluralism, given the heterogeneity of the international community. A separation of law and morality is also thought to foster greater predictability regarding the content of law, critical to avoiding fragmentation in a legal regime without an organized settlement system. While many non-positivist international scholars have challenged this understanding of law, positivists have largely adhered to a strict view of the Separation Thesis.