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V. THE QUESTIONS REVISITED

Earlier we listed several questions that any credible theory of human rights and jus cogens must be able to address in a principled way. As noted, some of these questions are specific to human rights (including peremptory human rights), and others relate to the combined sets of human rights and jus cogens norms, whereas others still are specific to jus cogens norms (some but not all of which are also human rights). In some cases the argument can be just sketched or put by way of illustration, but the fiduciary theory yields principled guidance to all of them.

A. In What Sense Are Human Rights Rights?

The fiduciary theory views human rights as the consequence of persons' moral capacity as self-determining agents to place public institutions under legal obligations. Human rights protect individuals against state domination and instrumen- talization by entitling all persons to be treated in certain ways by public institutions as a matter of right. Human rights are thus claim-rights against public authorities. As a matter of international law, jus cogens norms are trumps, whereas derogable human rights have presumptive force in that an adequate public justification must be offered if a state wishes to restrict their exercise.

the limits of public deliberation and justification based on reasonable, public-regarding factors, thereby ensuring that citizens and noncitizens are not subject to domination.

  • 111. Buchanan, supra note 36, at 62.
  • 112. The fiduciary theory thus arguably supports efforts to synthesize substantive principles and deliberative procedure in democratic theory. See Amy Gutmann & Dennis Thompson, Why Deliberative Democracy? 95-124 (2004) (reviewing and challenging arguments for separating deliberative procedures from substantive principles).
 
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