The Idea of International Human Rights Law

Steven Wheatley

https://doi.org/10.1093/oso/9780198749844.001.0001
Published: 2019 Online ISBN: 9780191814174 Print ISBN: 9780198749844

CHAPTER

1 What We Mean When We Talk about ‘Human Rights’ 

Steven Wheatley

https://doi.org/10.1093/oso/9780198749844.003.0002 Pages 17–C1.N102

Published: January 2019

Downloaded from https://academic.oup.com/book/4999/chapter/147483091 by OP Jindal Global University user on 28 March 2023

Abstract
Chapter 1 examines the di erent ways the idea of ‘human rights’ is understood in the philosophical
literature: as a modern idiom for natural rights, establishing a moral code for the treatment of human
beings; as de ning the proper relationship between the state and the individual; as explaining the
circumstances when secondary agents of justice can intervene in the internal a airs of a state; and as a
discrete area of international law practice. Noting the lack of agreement on the meaning of the term
‘human rights’, the analysis here looks to develop a practice-based account, explaining the idea of
human rights by reference to the practice, which, in turn, creates its own vision of the value of the
human person in political societies.

Keywords: history, moral human rights, natural rights, natural law, John Locke, interventionist accounts,
practice-based methodology
Subject: Public International Law, Human Rights and Immigration

The purpose of this chapter is to review the literature on the idea of human rights in order to highlight the
di erences of opinion on the subject. It rst observes the debates on the history of human rights, noting
that the arguments are not really about the genesis of human rights practice, but the meaning we attach to
the term. Looking to philosophical writings, we see four main streams of thought. First, traditional, or
orthodox, explanations that understand human rights as a moral code that tells us how we should treat each
other—usually expressed in terms of natural rights. Second, accounts which see human rights as outlining
the proper relationship between the state and the individual, by de ning the objectives of good government
(seen in natural law theories) or placing limits on bad government (Lockean social contract theory). Third,
interventionist versions that focus on the function of human rights in the international community,
particularly in terms of justifying outside interest and intervention in the domestic a airs of a country.
Finally, work that highlights the importance of international law to any conceptualization of human rights.
The chapter concludes that the di erences of opinion on the subject of ‘human rights’ suggest we cannot
explain its meaning by looking to moral or political theory, and that we should instead look to develop a
practice-based account, on the conviction we can better make sense of the term ‘human rights’ by reference
to its use.
 The Debate on the History of Human Rights

The most energetic debate on human rights is taking place within the discipline of history, including work
1
on the history of international law. There is, in Phillip Alston’s words, ‘a struggle for the soul of the human
2
rights movement, and it is being waged in large part through the proxy of genealogy’. Until recently, the
p. 18 accepted narrative was that human rights developed in response to events in Nazi Germany between 1933
and 1945, speci cally the genocide of European Jews. Former UN Secretary General, Ko Anan has stated,
for example, that ‘the United Nations emerged from the ashes of the Holocaust … Worldwide revulsion at
3
this terrible genocide was the driving force behind the Universal Declaration of Human Rights’. This
position is widely shared. The historian, William Hitchcock, maintains that the reason human rights
4
emerged in the 1940s ‘would seem obvious. The slaughter of millions of people by a genocidal Nazi regime’.
5
Louis Henkin concurs: human rights were ‘born in, and out of, World War II’, with the post-War era
6
ushering in ‘the age of rights’. Thomas Buergenthal explains the point this way: ‘international human

Downloaded from https://academic.oup.com/book/4999/chapter/147483091 by OP Jindal Global University user on 28 March 2023

rights law is a post–World War II creation … The Holocaust and the many other monstrous violations of
human rights of the Hitler era provided the impetus for the development of an international system capable
7
of preventing the recurrence of similar human tragedies.’

The historian Daniel Cohen has, though, questioned whether the Jewish genocide did, in fact, provide the
motivation for the introduction of human rights in the 1940s, arguing that the central place of the
Holocaust in the origins story only emerged in the 1960s. He points out that a United Nations pamphlet
published in 1950 devoted only a few lines to Nazi anti-Semitic violence. The primary concern, the UN
Department of Public Information explained, was the ‘absolute power of the state’ and the disappearance of
8
political freedom under fascism and Nazism. The legal historian, Samuel Moyn, agrees, noting that ‘across
weeks of debate around the Universal Declaration [on Human Rights] in the UN General Assembly, the
9
genocide of the Jews went unmentioned’.

Moyn invigorated the genesis debate with his claim that human rights only emerged in the 1970s. His
argument is that when the term entered the English language in the 1940s, there was little clarity as to its
meaning, but that Western powers quickly succeeded in capturing the language of human rights for use in
their ideological battle against the Soviet Union. Human rights became associated with anti-communism,
speci cally with freedom of religion in communist countries. It also became a global social movement and
Amnesty International was central to this development with its approach of saving the world one person at
a time, allowing a focus on Soviet dissidents like Andrei Sakharov and Aleksandr Solzhenitsyn. Moyn claims
p. 19 that, in the 1970s, human rights nally replaced other transnational political utopias, such as anti-
colonialist nationalism and communism, to establish itself as the common vocabulary of global justice. The
human rights revolution was con rmed in the 1980s, ‘when a variety of groups around the world, and all
10
governments, learned to speak [its] language’.

Whilst Moyn insists that the idea of human rights is a recent invention, others look further back in time. The
British Museum, for example, describes the Cyrus Cylinder, an account of the conquest of Babylon by Cyrus
11
the Great in 539 BCE , as ‘the First Charter of Human Rights’. Others date the emergence of human rights to
12 13
the 1215 Magna Carta and the 1689 English Bill of Rights; the Haitian revolution of 1791; protests against
14
the mistreatment of religious minorities in the eighteenth and nineteenth centuries; the Latin American
15
practice of constitutional rights in the nineteenth century; developments in global communication
technologies in the late nineteenth century, which allowed knowledge of the su ering of others in distant
16
places; and the emergence of international laws protecting the human person around the turn of the
17
twentieth century and recognition of humanitarian rights.

The approval by the National Assembly of France of the Declaration of the Rights of Man and the Citizen on 26
18
August 1789 is often cited as a key moment in the story of human rights. The objective of the Declaration
was to explain the purpose and direction of the French Revolution, which saw the Monarchy replaced in a
popular uprising. Article 1 proclaimed that ‘Men are born and remain free and equal in rights’; Article 2 that
‘The aim of all political association is the preservation of the natural and imprescriptible rights of man.
19
These rights are liberty, property, security, and resistance to oppression.’ Responding to the Declaration,
the English philosopher and jurist, Jeremy Bentham, concluded that the idea of natural rights anterior to
p. 20 government was ‘rhetorical nonsense—nonsense upon stilts’. Rights, he contended, owed their
existence to government and without government there could be ‘no laws, and thence no such things as
20
rights—no security—no property’.
 The Declaration of the Rights of Man and the Citizen represented an important shift from the notion that
religion provided the basis for the right to rule, often expressed in terms of the Divine Right of Kings, with
scholars and activists in the eighteenth century increasingly turning to natural rights to explain the limits
on the power of the state. Particularly important was Jean-Jacques Rousseau’s The Social Contract [1762],
21
which opens with the line: ‘Man is born free, and everywhere he is in chains.’ Rousseau explained that the
political authority of the state was limited by those natural rights—such as freedom of conscience and
religion—which the individual retained in a civil society under sovereign authority.

The historian, Lynn Hunt, claims that rights-talk emerged around this time because individuals began to
develop a sense of sympathy with the victims of state power, speci cally in relation to torture. Judicially
supervised torture to extract confessions had been common in most European nations from the thirteenth
century, when it was reintroduced because of the revival of Roman law and the Catholic Inquisition, but
popular opinion turned against the practice in the 1760s, leading to its abolition in many countries. Hunt
links the abolitionist movement in France to the event of the stretching and waterboarding of the 64-year-

Downloaded from https://academic.oup.com/book/4999/chapter/147483091 by OP Jindal Global University user on 28 March 2023

old Jean Calas in the southern city of Toulouse in 1762. The a air gained notoriety when Voltaire published
his Treatise on Tolerance on the Occasion of the Death of Calas [1763]. Hunt argues that moves to abolish
torture were the result of the growth of empathy, as people began to put themselves in the place of the
torture victim and to imagine what they might feel. This followed the development of the notion of the
human person as an individual, whose bodily integrity had to be respected. Torture ended in Europe, Hunt
contends, because the traditional understanding of pain and personhood was replaced by a new conception
in which ‘individuals owned their bodies, had rights to their separateness and to bodily inviolability, and
22
recognised in other people the same passions, sentiments and sympathies as in themselves’.

After some initial enthusiasm for natural rights following the French and American revolutions in the late
eighteenth century and the romantic nationalist revolutions in France and Belgium in 1830, rights-talk was
replaced in European societies by the competing ideology of political self-determination and related notion
of constitutional rights. Each country could develop its own version of rights, but there were no generalized
23
arguments for the Rights of Man, or indeed Rights of Woman, and no rights-based justi cation for
individuals to take an interest in the su ering of fellow human beings across national borders.

p. 21 Rather than focus on the adoption of a Declaration or Bill of Rights, law professor Jenny Martinez argues
that we can see the rst manifestation of human rights in the moves by the British government against the
transatlantic slave trade, which involved e orts to improve the lives of individuals outside the jurisdiction
of the British state, along with the enforcement of humanitarian norms through international tribunals.
Following the abolition of slavery in the British Empire in 1807 and responding to civil society activists, the
British government made the abolition of the slave trade part of its foreign policy. It then persuaded other
governments to join a network of bilateral treaties banning the trade and created international courts to
enforce the agreements. This, Martinez contends, was the rst time international conventions had been
introduced for the protection of individuals on the basis that what was being done to them should not be
done to anyone, and that international courts were used to enforce such ideas. She concludes that the moves
to end the transatlantic slave trade contained the component elements of modern human rights:
transnational norms for the protection of the natural rights of individuals, and the enforcement of those
24
norms by formal institutions. But, as Philip Alston points out, it is not clear that the abolitionists used the
25
language of human rights or had the same idea in mind as contemporary activists. Moreover, the measures
introduced by the British government had a limited focus: they concerned the transatlantic slave trade
26
only, and it was not until the adoption of the 1926 Slavery Convention that states—and then only the
states parties—committed themselves to ‘bring about, progressively and as soon as possible, the complete
27
abolition of slavery in all its forms’.
 On the Meaning(s) of ʻHuman Rightsʼ

Until recently, then, the standard account located the genesis of human rights in the genocide of European
Jews by the Nazi regime in Germany. As the historian Micheline Ishay observes, the rallying cry after World
28
War II was ‘Auschwitz: Never Again!’ This narrative has though been challenged, with, for example,
Samuel Moyn holding that human rights only emerged in the 1970s, with the establishment of an e ective
social movement organized around this idea of global justice; Lynn Hunt arguing that human rights is about
empathy for the su ering of others and we see this rst in eighteenth-century France; and with Jenny
Martinez claiming the subject of human rights is concerned with the global regulation of avoidable
human su ering and this can be observed rst in the moves against the transatlantic slave trade.
p. 22
Whilst the arguments are all di erent, there is one thing they are agreed on: there is now something we can
call ‘human rights’. Historians de ne what they see as the core characteristics of the notion and then look

Downloaded from https://academic.oup.com/book/4999/chapter/147483091 by OP Jindal Global University user on 28 March 2023

for evidence of its earliest expression. The debate on the history of human rights is not, then, a debate about
history. None of the facts are disputed, nor is the timeline of events. This is a debate about the meaning of
the term ‘human rights’, whether we should conceptualize it as a global social movement, as empathy with
the avoidable su ering of others, or the transnational regulation of humanitarian concerns. But there is no
explanation in the writings on the history of human rights as to why one understanding should be preferred
29
to another. Rather than look to historical writings to clarify the notion, we might be better examining the
philosophical literature concerned with explaining the meaning of the term ‘human rights’.

Moral Human Rights

The traditional, or orthodox, way of thinking about human rights has been to develop a reasoned argument
30
to explain what rights we need in order to protect our most important interests as human beings, with
those interests often expressed in terms of our agency or capabilities, or the distinctive nature of human
existence. Once we are clear what rights we should have, we can then identify those actors with correlative
obligations, whether they are other individuals, the state, an international organization, or transnational
corporation. The moral code of human rights can then be expressed in terms that A has a human right to X
against B by virtue of her … ‘agency’, or ‘capabilities’, or simply ‘by virtue of being human’, etc.

The most important recent contribution along these lines can be found in James Gri n’s On Human Rights,
in which the moral philosopher argues that human rights should be understood as a secular expression of
natural rights. Gri n develops his conception from what he sees as the distinctive nature of human
existence (distinct from the lives of other animals), which ‘centres on our being agents—deliberating,
31
p. 23 assessing, choosing, and acting to make what we see as a good life for ourselves’. He expresses this
distinctive nature in terms of personhood, that is A has a human right to X against B, by virtue of their
personhood. Personhood is a synonym for meaningful agency, with Gri n concluding that, to be an agent,
an individual must not only choose her path through life (and therefore have the right to agency), but must
also enjoy the minimum provision of resources and capabilities necessary to allow her to act on those
choices (minimum welfare rights), and that others must not forcibly prevent her from pursuing what she
32
regards as a worthwhile life (the right to liberty). These foundational principles—autonomy, minimum
provision, and liberty—underpin his conception of human rights.

Gri n is not concerned whether human rights, as he understands them, are recognized in international
law, because moral rights do not depend for their existence or validity on the law-making activities of
states. Some human rights might be found in the Universal Declaration of Human Rights, but this does not,
he argues, make them human rights, properly so-called. Indeed, as Samantha Besson and Alain Zysset point
33
out, Gri n is not really interested in human rights, but in the Enlightenment conception of natural rights.

Arguments for natural rights invariably depend on a two-stage process of analytical reasoning. First, moral
philosophers explain what they see as the distinctive nature of human existence, often without reference to
insights from anthropology, biology, psychology or sociology, etc. Second, they proceed, by a process of
deductive reasoning, to explain the natural rights necessary to protect those essential qualities. The
problem is that either, or both, of these suppositions can be the subject of reasonable disagreement and in
the absence of consensus on the distinctive nature of human existence and the necessary measures to
 protect that characteristic nature, it is di cult to argue that we should prefer the position of one
philosopher to another, or the position of moral philosophy to the actual practice of human rights.

Gri n’s notion of human rights is a case in point, as it depends on his conceptualization of the distinctive
34
nature of human existence. By ‘human’, he means a functioning human agent, a de nition that necessary
excludes members of the species Homo sapiens who are not functioning agents, including babies, those with
dementia and people with profound learning impairments. These individuals do not enjoy the bene ts of
human rights—a point accepted by Gri n: ‘I am inclined to conclude that human rights should not be
extended to infants, to patients in an irreversible coma or with advanced dementia, or to the severely
35
mentally defective.’ But consider the practice of torturing an infant child in front of her parents. For
Gri n, the parent can be a victim of a human rights violation, but the uncomprehending child cannot, even
though she su ers.

The notion that the torture of babies, or mistreatment of those with dementia or profound learning

Downloaded from https://academic.oup.com/book/4999/chapter/147483091 by OP Jindal Global University user on 28 March 2023

impairments, cannot be a human rights violation because these individuals are not, in some way, fully
p. 24 human highlights the problems with the traditional, or orthodox, accounts that look to explain human
rights by reference to some rationalized conception of the distinctive nature of human existence. First, they
depend on the subjective opinion of this or that philosopher of what it means to be fully human; second, our
response to the torture of a child, or mistreatment of those with dementia or learning impairments, does
not always depend on rational consideration of the issue, but often an intuitive and essentially emotional
36
reaction to certain forms of avoidable su ering. In other words, we do not always see human rights as
37
propositions about philosophical truths, but as an argument for justice in the face of injustice.

The legal philosopher, Klaus Günther, expresses the di erence between the human rights tradition that
looks to rationality and the giving and testing of reasoned argument, and the one that refers to the need to
avoid pain and su ering in the following way: if you want to know what is meant by human rights, you can
look to learned writings on the subject, ‘or you can think of the German Gestapo torturing a political
38
opponent’. Günther prefers the latter approach, concluding that human rights discourse involves the
39
identi cation of pain and humiliation at the hands of the state as an injustice. Upendra Baxi expresses the
point this way: ‘I take it as axiomatic that the historic mission of “contemporary” human rights is to give
40
voice to human su ering.’

Writers that locate the ontological basis of human rights in the pain and su ering of others often look to the
work of the philosopher Emmanuel Lévinas, whose starting point is that the development of moral
obligations proceeds from the Other, with the objective of avoiding, what he regards as, the primary error of
Western philosophy, of conceptualizing the Other by reference to Self, an approach that leads to a human
rights grounded in empathy, but which proceeds from the assumption that the Other is basically like me.
But, as Lévinas points out, the Other is not necessarily like me and he argues that we owe an ethical duty to
the Other to take responsibility for their su ering, without the requirement to empathize—what he calls the
41
ethics of alterity.

p. 25 Costas Douzinas is the best known of the writers who look to Lévinas. Douzinas’ postmodern account holds
that natural human rights are mainly concerned with the denunciation of injustice, which is to forget that
humanity exists in the face of each person. The basis of human rights, he argues, is the ethical demands the
face of the Other places on me, including the demands of the face of the child whose back is burning from
napalm, that of the young man stood in front of a tank, or the face of a women with an emaciated body stood
behind the fence of a concentration camp. For Douzinas, the foundation of human rights is not reasoned
argument, but our emotional response to avoidable su ering and a commitment to recognize ‘the unique
42
needs of the concrete other’.
 The Political Conception of Human Rights I: The State and the
Individual

The traditional, or orthodox, approach to explaining the idea of human rights has been for scholars to
outline what they see as the distinctive nature of human existence and then work out what (natural) rights
are required to protect our humanity. The scholarly literature looks either to reasoned argument (as in the
case of James Gri n) or to our emotional responses to the su ering of others (Costas Douzinas). Whilst the
43
state often provides the context for discussion or constitutes the primary threat to individual well-being,
arguments for moral human rights do not see natural rights and the state as being conceptually conjoined.
Natural rights establish a code that applies to all of us individually, whether we are government o cials,
including judges and members of parliament, or not. If someone has a right not to be tortured, or a right to
food, then I have a moral obligation not to torture them, and to ensure they are fed, whether I am a
government minister, or a professor of international law.

Downloaded from https://academic.oup.com/book/4999/chapter/147483091 by OP Jindal Global University user on 28 March 2023

This is not the case with political conceptions of rights, which focus, in the rst instance, on the
44
relationship between the individual and the state. The objective is to explain the proper relationship
45
between the government and the individual in terms of rights. The literature can be divided into three:
human rights as limits on bad governments; as explaining the requirements of good government; or
detailing the obligations that ow from the fact of political association.

p. 26 Whilst the political conceptions focus on the relationship between the government and the individual, the
discussion often begins in the pre-political state of nature, those imagined conditions where there is no
state or other form of organized political community. The argument being that, if we enjoyed certain rights
in the state of nature, we should continue to enjoy those rights when subject to the coercive authority of the
state. The legal and political philosopher Norberto Bobbio contends, for example, that human rights
‘originated from the philosophy of natural law, based on the theory of a state of nature where human rights
46
were few and fundamental’. Natural rights are those freedoms that individuals should enjoy at all times,
and in all places. Consequently, whilst it might be possible to talk about the caveman’s natural right to life,
it makes no sense to talk about his right to a fair trial, with the consequence that, as the philosopher Rex
Martin points out, the concept has little in common with the Universal Declaration of Human Rights, which
47
contains ‘rights of persons in society, speci cally in organized societies’.

The argument that natural rights are those freedoms we would have enjoyed in the state of nature is a
central element in the social contract tradition, which sees fundamental rights in terms of inherent limits
on the political power of the state. During the seventeenth century, the right to rule in Western political
thought came to be understood almost exclusively in terms of sovereign authority, which was justi ed by
the exigencies of the human condition. Originally, so the social contract narrative goes, the species Homo
sapiens lived in a state of nature in which the natural condition was, in Thomas Hobbes’ memorable phrase,
48
a ‘Warre of every man against every man’. In the state of nature, individuals would enjoy the inherent
rights to life, physical integrity, freedom, and property, but they also accepted that their rational self-
interest required the establishment of a political community to protect those rights. Given that the authority
of the government depended on the consent of its subjects, it necessarily followed, John Locke argued, that
its power was limited by the purposes for which it was established, that is the preservation of property
49
rights, de ned broadly to include ‘Lives, Liberties and Estates’.

Whereas Thomas Hobbes’ Leviathan was the sole judge of the interests of the people, with that judgment
held to be infallible, Locke argued that it was for citizens to decide when the government had breached the
50
trust placed in it and they retained the right to repudiate the social contact. This idea can be seen in the
1776 Virginia Declaration of Rights, which established that ‘all men are by nature equally free and
independent, and have certain inherent rights [life and liberty, and the means of acquiring and possessing
property]’ (Section 1). The Virginia Declaration went on to a rm that where a government is found
‘inadequate or contrary to these purposes, a majority of the community hath [the] right to reform, alter, or
51
p. 27 abolish it’ (Section 3). The 1948 Universal Declaration of Human Rights, adopted some 250 years after
the rst publication of Locke’s Two Treatises of Government, contains the same ideas, with Article 1 providing
that ‘All human beings are born free and equal in dignity and rights’, whilst the preamble con rms that ‘it is
essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and
52
oppression, that human rights should be protected by the rule of law’.
 Under the Lockean social contract tradition, natural rights both justi ed the exercise of sovereign authority
and explained its limits. The tradition underpins, if only implicitly, the notion of human rights as a
constraint on the power of the state. As the political philosopher, Thomas Pogge, points out, when we talk
about rights, we tend to draw a distinction between the actions of the state and those of private individuals,
giving the example of the taking of a car: if the vehicle is removed by a private person, we label that theft; if
53
by a government o cial, we call it a violation of the right to property. Human rights are not, then, seen as
a moral code that explains the way we should treat each other, but as a body of rules that outlines the limits
54
of the coercive powers of the state in relation to the individual.

A second strand of the political conception, strongly in uenced by the Catholic natural law tradition, sees
human rights as a guide for good government. The approach is political because it is primarily focused on
the relationship between the state and the individual. The best-known contemporary version is found in the
work of the neo-Thomist, after Thomas Aquinas, John Finnis, who argues that all forms of law-making,
whether by legislative, judicial or other means, should be guided by our shared understanding of the

Downloaded from https://academic.oup.com/book/4999/chapter/147483091 by OP Jindal Global University user on 28 March 2023

requirements of the good society and that, by way of practical reasoning, we can work out the basic forms of
human good. Finnis sees human rights as a contemporary idiom for natural rights and the Universal
Declaration on Human Rights as an attempt to outline the idea of the common good for all political
55
communities. In developing his argument, as with many traditional, or orthodox, accounts, Finnis
contends that we must rst acknowledge there is something distinctive about the species Homo sapiens and
that all human animals share some basic conception of the good life. This conception then informs our
understanding of the function of government, which is to promote the basic forms of human good shared by
p. 28 all societies: life, which includes bodily health; knowledge; play; aesthetic experience; sociability;
religion; and practical reasonableness, that is being able to bring our intelligence to bear on the problems of
56
choosing our actions and lifestyle and shaping our character.

A third stream of the political conception understands rights to be a consequence of the fact of political
association. This can be seen as a modern variant of the Lockean social contract tradition, explaining the
legitimate political authority of the state. The political theorist, Joshua Cohen, contends, for example, that
57
failure to recognize and protect basic rights ‘is tantamount to treating [fellow citizens] as outsiders’, and
thus a violation of the obligations we owe each other as co-members of the political community.

The downside with this analysis is that we normally refer to the rights of individuals within the state as
constitutional rights, drawing a distinction between insiders and outsiders. Thus, the right to bear arms in
the Second Amendment of the United States Constitution is a domestic constitutional right, but not a global
human right; the same with the right to free health care in the United Kingdom. The philosopher, Thomas
Nagel, argues that the justi cation for constitutional rights lies in the fact of co-membership with the
consequence that citizens are, in theory, responsible for the outcomes of decision-making processes, and
therefore for any injustices committed in the name of the political community. Nagel maintains that these
circumstance do not exist at the global level, given the absence of world governmental institutions with
coercive powers, leading him to conclude that, whilst there might be minimum humanitarian demands that
govern our relations with all other human persons, these can only justify the most basic rights against
58
violence, enslavement and coercion, and not, for example, the range of socio-economic rights in the
Universal Declaration of Human Rights—and the correlative obligation on wealthy states to support poor
59
states. Others come to a di erent conclusion, with Thomas Pogge arguing that we are responsible for
injustices to the extent we are involved knowingly, or with passive compliance, in the conditions that result
in violations of rights and this will always be the case where we have the possibility of in uencing those
60
domestic and global institutions directly responsible for the su ering of others.

Global Rights as a Secondary Concern

The dominant themes in the philosophical literature see human rights as either a moral code that explains
how we should treat each other, expressed in the language of natural rights, or in terms of explaining the
p. 29 proper relationship between the state and the individual, often framed in terms of natural law, or
constitutional, or fundamental rights.

Hersch Lauterpacht is the best-known proponent of the view that international law should, and indeed
does, re ect the values of natural law. In his 1945 publication, An International Bill of the Rights of Man, he
claimed that ‘The rights of man cannot, in the long run, be e ectively secured except by the twin operation
 of the law of nature and the law of nations—both conceived as a power superior to the supreme power of the
61
State’. For Lauterpacht, the basis for the rights of man lay in the law of nature, which explained the
62
objectives of good government in terms of the protection of the individual, ‘the ultimate unit of all law’. In
his 1946 essay on the Grotian tradition, Lauterpacht maintained that, whilst international law was primarily
concerned with rules governing relations between states, this did not remove its moral content and he
regarded the law of nature as a distinct source of international law, concluding that ‘the development, the
well-being, and the dignity of the individual human being are a matter of direct concern to international
63
law’.

Most international lawyers are uncomfortable with the notion that the function of international law is to
64
give expression to antecedent moral values, not least because of the lack of consensus on the basis and
content of natural law and natural rights. For this reason, the political conception that frames human rights
in terms of the relationship between the state and the individual has found greater support within the
discipline. Louis Henkin, for example, argues that the function of human rights is to guarantee a minimum

Downloaded from https://academic.oup.com/book/4999/chapter/147483091 by OP Jindal Global University user on 28 March 2023

65
level of protection for constitutional rights, and that its content can be established by examining the
66
domestic practices of constitutional rights.

p. 30 The di culty with claims that human rights are the result of the globalization of natural law (Hersch
Lauterpacht) or a back-stop to domestic constitutional rights (Louis Henkin) is that the arguments are
parasitic on conceptions of rights developed at the level of the state and fail to capture a distinctive aspect of
the practice, which is that the victims of human rights violations may be inside my political community
(‘here’) or outside (‘there’), that is, it makes no di erence whether an act of torture is committed by a
police constable in my village in the United Kingdom or an o cer in another country.

An important body of work has emerged that shifts the focus of analysis from the state to the international
community, with its genesis traced back to the political philosopher John Rawls’ The Law of Peoples (1999),
in which he sought to develop an account of human rights that did not depend on ‘any particular
67
comprehensive religious doctrine or philosophical doctrine about human nature’. Rawls’ wider aim was to
outline a foreign policy for a reasonably just liberal people within the boundaries of reasonable pluralism
and he concluded that liberal states should not intervene militarily to improve the lives of people in non-
liberal states, except in cases of severe abuses, involving violations of the rights to life, liberty, property and
68
formal equality, and the protection of ethnic groups from mass murder and genocide. Whilst the book was
subject to unfavourable critical comment, Rawls’ focus on the function of human rights in international
relations prompted other scholars to think again about how we theorize the notion.

The Political Conception of Human Rights II: The State and Secondary
Agents of Justice

The legal philosopher Joseph Raz builds on Rawls’ insight to develop an empirical interventionist account of
human rights. He starts from the premise that human rights are ‘those rights respect for which can be
demanded by anyone’. It makes no di erence, then, whether a human rights violation is committed in this
state or another (‘here’ or ‘there’), and it is not, therefore, possible for a government to say to an outsider
69
‘this is none of your business’. Raz maintains that we should frame human rights as delimiting the
circumstances in which outsiders can take an interest in the domestic a airs of the state, disabling any
claim that the notion of sovereignty should protect those with political power from outside interest and
intervention. Human rights are not, though, to be confused with the notion of legitimate political authority
and there will be circumstances when outsiders are precluded from interfering in the internal a airs of the
70
p. 31 state, ‘even when the State is in the wrong’. In other words, not all injustices justify intervention,
because many of the important principles that govern social relations depend on contingent practices at the
level of the state, a fact that explains the value of sovereignty and the independence and autonomy of the
state.

But how do we tell what is a human rights issue and therefore the business of outsiders, and what remains
within the domestic a airs of the sovereign state? Raz concludes that we should de ne the idea of human
rights by looking at the practice of human rights intervention, in other words, human rights are those rights
71
‘whose violation is a reason for action against States in the international arena’. This represents an
important shift in the thinking on the philosophical notion, which is no longer de ned by some a priori
 conception of natural law or fundamental rights, but by the actual practice of intervention in the name of
human rights.

A more normative reading of the interventionist account is developed by the political theorist, Charles Beitz,
who argues that the objective of human rights is to protect urgent individual interests against certain
predictable dangers or standard threats that we are all vulnerable to in a world of sovereign states. An
urgent interest is de ned as one that would be recognized as important in most contemporary societies,
including our interests in personal security and liberty, adequate nutrition and some degree of protection
against the arbitrary use of power by the state. Beitz’s model operates at two levels: a set of norms that that
apply in the rst instance to states, and an international regime that establishes pro tanto reasons for
72
intervention where a country fails to comply with its obligations, or is incapable of doing so. States have
the primary responsibility for the protection of human rights, but where they are unwilling or unable to do
so, the international community can step in to ensure their guarantee. Beitz maintains that the fact that
external actors may have pro tanto reasons for intervention (pro tanto reasons are reasons for action, but

Downloaded from https://academic.oup.com/book/4999/chapter/147483091 by OP Jindal Global University user on 28 March 2023

they do not necessarily overwrite competing reasons) is ‘perhaps the most distinctive feature, of
73
contemporary human rights practice’.

The interventionist accounts represent a signi cant development in the theory of human rights, not least
because of the shift in focus from rights practice in the state to a more global context. There are, though,
several problems. First, intervention in the name of human rights must presume the prior existence of
something called human rights, otherwise why would countries say they were intervening in the name of
‘human rights’? Second, it is di cult to accept that we should de ne human rights by the practice of
intervention without reference to any normative standards and Raz accepts the need to develop ‘criteria by
74
which the practice should be judged’. Finally, intervention in the name of human rights is often conceived
75
p. 32 in terms of military intervention, and international law does not recognize a right of forcible human
rights intervention.

76
Under the United Nations Charter, unless a state is acting in self-defence, military action must be
authorized by the UN Security Council and the Council can only act where there is a threat to international
77
peace and security. Whilst violations of human rights may entail such a threat, they do not necessarily do
78
so, and the Security Council’s practice in this area has been somewhat inconsistent. The problem has not
79
been resolved by talk of a Responsibility to Protect, which establishes that the Council should take action
80
in cases of large scale loss of life or ethnic cleansing. Whilst some writers claim there is a right of
81
humanitarian intervention, there is no agreement as to when such a right would be triggered, with
82 83
scholars variously citing violations of the right to life, in particular where committed on a massive scale;
84 85
acts of genocide, slavery, or widespread torture; and the arbitrary and systematic abuse of rights. All
proponents of humanitarian intervention agree, however, that, if such a right existed, it would be limited to
the most serious cases. Simply put, if we de ne human rights by the practice of lawful military intervention
in the name of human rights, we would have to conclude there are no human rights or the notion is limited
to the most extreme violations of the physical integrity of the human person when committed on a massive
scale.

p. 33 The works of Joseph Raz and Charles Beitz represent valuable additions to the literature on human rights.
They take seriously the importance of sovereignty, which as Jean Cohen points out, protects the state from
foreign military intervention and the harm of paternalism, that is the denial of the right of the members of a
86
political community to decide for themselves on the requirements of justice. Most importantly, the
contributions introduce a third party into the hitherto dominant dyadic model, with the recognition of the
87
need for, what the philosopher Onora O’Neill calls, ‘secondary agents of justice’ to guarantee the
protection of human rights. The downside is the focus on the practice of intervention and by implication
forcible or military intervention, which is only one part of the picture.
 The Importance of International Law

Rather than focus on forcible interventions, other scholars contend that we should look to make sense of
human rights by reference to the legal practice. The most important of these contributions can be found in
88
Samantha Besson’s papers on the subject, and in the philosopher Allen Buchanan’s book, The Heart of
Human Rights, in which he argues: ‘International human rights law is central to human rights practice.
Therefore, any assessment of the moral status of human rights practice must acknowledge the importance
89
of international human rights law in the practice.’

Buchanan rejects, what he calls, the Mirroring View, the idea that legal human rights are the embodiments
of corresponding moral rights and that justifying human rights law involves showing there is a
corresponding moral human right. Rather, he concludes, legal human rights ‘are what they are: legal rights;
90
and legal rights need not be embodiments of corresponding moral rights’. Buchanan argues that the basic

Downloaded from https://academic.oup.com/book/4999/chapter/147483091 by OP Jindal Global University user on 28 March 2023

function of human rights law is ‘to provide universal standards for regulating the behavior of states toward
91
those under their jurisdiction, for the sake of those individuals themselves’. He follows Charles Beitz in
establishing a clear division of labour between the state and secondary agents of justice: legal human rights
are opposable to the state and it is only when a state is unable or unwilling to ful l its obligations that
external actors have some form of responsibility.

Buchanan’s reading of human rights law leads him to conclude that ‘most of the rights included in the
various treaties can be seen as either a rming and protecting equal basic status of all individuals, or as
92
p. 34 helping to ensure that all individuals have the opportunity to lead a minimally good or decent life’.
Buchanan maintains that these foundational moral principles underpin the existing international human
rights law system. His objective is to explain how the system that has actually emerged can be justi ed,
concluding that ‘existing international human rights practice … should be the focus of philosophical
93
theorizing’. Buchanan’s argument for human rights law rests on its bene ts for domestic constitutional
rights regimes, and the ways human rights legitimize sovereign and independent states and the
94
international law system itself.

Buchanan presents a convincing case that legal human rights are not de ned by posterior moral standards,
but he does not accept that anything is a human right simply because of its inclusion in the Universal
Declaration of Human Rights. Any account must, he argues, be in line with the foundational principles that,
in his view, underpin the extant system, that is the commitments to the equal basic moral status of all
individuals and to human well-being, which requires providing the protections and resources necessary to
allow each person to lead a minimally good or decent life. However, as the moral philosopher John Tasioulas
points out, by limiting the meaning of human rights to notions of equality and human well-being,
95
Buchanan imposes a moral conception of rights onto the legal practice. The primary objective of
Buchanan’s work is not, though, to explain the content of legal human rights, but to see whether ‘the
96
existing international legal human rights system, or something rather like it, is morally justi able’. But,
as Samantha Besson observes, the fact Buchanan’s objective is to develop a moral justi cation, means his
97
argument ‘remains largely moral and external to the law’.

Conclusion

This chapter has shown a lack of consensus on the term ‘human rights’. For some, it is a moral code, a
modern idiom for natural rights, that can be worked out by reasoned argument to explain the conditions of
justice. For others, the term ‘human rights’ gives a name to our emotional responses to avoidable su ering.
For many writers, the concept of human rights is necessarily political because it explains the proper
relationship between the state and the individual, either by detailing the nature and purpose of good
government or the limits on bad government. For interventionist scholars, the function of human rights is
p. 35 to justify and explain external interest and intervention in the domestic a airs of a state. More recently,
the centrality of international law to the moral concept of human rights has become a dominant theme in
the literature.

Reading the scholarly works, it seems that each of the contributions has something to o er, but none has
98
succeeded in providing a de nitive statement on how we should understand the idea of human rights. The
traditional, or orthodox, accounts explain that we have certain rights simply by virtue of being human, but
 the analysis seems unconnected to the actual practice. The dominant strands of the political conception
outline the ways human rights delimit the proper relationship between the state and the individual, and
between the state and secondary agents of justice, but fail to capture the full complexities of the practice.
The work on legal human rights argues that human rights law constrains the moral concept of human
rights, but without a close reading of the doctrine and practice, or explaining what the notion of ‘human
rights’ is, or where it comes from.

Rather than impose a subjective understanding on the term ‘human rights’, the argument here is that we
should look to explain its meaning by the way the expression is employed, speci cally its usage in
international law. The interventionist accounts of Joseph Raz and Charles Beitz showed that we can develop
a theory of human rights by examining the practice, in their case by de ning ‘human rights’ by the practice
of intervention in the name of human rights. By way of contrast, this work looks to the wider practice of
human rights in the United Nations, in the core human rights treaties, and in customary international law,
on the understanding, in the words of the analytical philosopher Paul Horwich, that a term means what it

Downloaded from https://academic.oup.com/book/4999/chapter/147483091 by OP Jindal Global University user on 28 March 2023

99
does ‘in virtue of its basic use’.

Drawing on Ludwig Wittgenstein’s Philosophical Investigations [1889], Horwich argues that a word or phrase
‘expresses a “concept”, an abstract entity from which beliefs, desires, and other states of mind are
100
composed’. Consequently, ‘when we specify the meaning of a word, we are claiming that someone’s use
101
of the word would provide a good reason to expect the occurrence in his mental state of a certain concept’.
The meaning of a word or phrase is the result of a shared understanding of its meaning in a language
community. When we use the expression ‘human rights’, then, we expect that others will have the same
concept in mind that we do. Given that ‘human rights’ is rst and foremost a term of art in international
p. 36 law, it falls primarily to international lawyers to explain its meaning by examining the communication
acts of states and non-state actors. By making sense of the patterns of international law communications on
human rights in international law, we can explain the idea of human rights, before going on to demonstrate
102
how this emergent abstract moral concept can in uence the legal practice of human rights.

Notes
1 For a good introduction, see Valentina Vadi, ʻInternational Law and Its Histories: Methodological Risks and Opportunitiesʼ
(2016) 58(2) Harvard International Law Journal 301.
2 Philip Alston, ʻDoes the Past Matter? On the Origins of Human Rightsʼ (2013) 126 Harvard Law Review 2043, 2077 (herea er
Alston, ʻDoes the Past Matter?ʼ).
3 UN Secretary-General, Kofi Annan, ʻOpening Remarks at the Department of Public Information (DPI) Seminar on Anti-
Semitismʼ, UN Doc. SG/SM/9375-HR/4774-PI/1590, 21 June 2004 http://www.un.org/press/en/2004/sgsm9375.doc.htm
accessed 20 February 2018 .
4 William I. Hitchcock, ʻThe Rise and Fall of Human Rights: Searching for a Narrative from the Cold War to the 9/11 Eraʼ
(2015) 37 Human Rights Quarterly 80, 87.
5 Louis Henkin, The Rights of Man Today (Westview 1978) 92.
6 Louis Henkin, ʻThe Universality of the Concept of Human Rightsʼ (1989) 506 Annals of the American Academy of Political
and Social Science 10, 13.
7 Thomas Buergenthal, ʻHuman Rightsʼ (2007) Max Planck Encyclopedia of Public International Law, para. 8
http://opil.ouplaw.com/home/EPIL, accessed 22 February 2018.
8 G. Daniel Cohen, ʻThe Holocaust and the “Human Rights Revolution” ʼ in Akira Iriye et al. (eds), The Human Rights
Revolution: An International History (OUP 2012) 53, 54.
9 Samuel Moyn, The Last Utopia: Human Rights in History (Belknap 2010) 82.
10 Ibid. 218.
11 The British Museum Collection, ʻThe Cyrus Cylinderʼ, Curatorʼs comments [online]. On human rights in early history, see
Paul Gordon Lauren, ʻThe Foundations of Justice and Human Rights in Early Legal Texts and Thoughtʼ in Dinah Shelton
(ed.), The Oxford Handbook of International Human Rights Law (OUP 2013) 163.
12 Francesca Klug, A Magna Carta for All Humanity: Homing in on Human Rights (Routledge 2015) 111.
13 Franklin W. Knight, ʻThe Haitian Revolution and the Notion of Human Rightsʼ (2005) V (3) The Journal of the Historical
Society 391, 410–11.
14 Antje von Ungern-Sternberg, ʻReligion and Religious Interventionʼ in Bardo Fassbender and Anne Peters (eds), The Oxford
Handbook of the History of International Law (OUP 2012) 294, 311.
15 Peter N. Stearns, Human Rights in World History (Taylor and Francis 2012) 91.
16 Paul Gordon Lauren, The Evolution of International Human Rights: Visions Seen (2nd edn, Pennsylvania UP 2003) 38.
17 Bruno Cabanes, The Great War and the Origins of Humanitarianism, 1918–1924 (CUP 2014) 6.
18 Maya Hertig Randall, ʻThe History of International Human Rights Lawʼ in Robert Kolb and Gloria Gaggioli (eds), Research
 Handbook on Human Rights and Humanitarian Law (Edward Elgar 2013) 3, 9.
19 Declaration of the Rights of Man and the Citizen, 1789 http://avalon.law.yale.edu/18th_century/rightsof.asp accessed 26
January 2018.
20 Jeremy Bentham, ʻAnarchical Fallaciesʼ in Jeremy Waldron (ed.), Nonsense upon Stilts: Bentham, Burke, and Marx on the
Rights of Man (Methuen 1987) 29, 53.
21 Jean-Jacques Rousseau, The Social Contract [1762], translated by H.J. Tozer (Wordsworth Editions 1998) 5.
22 Lynn Hunt, Inventing Human Rights: A History (Norton 2007) 112.
23 The playwright and political activist Olympe de Gouges issued her Declaration of the Rights of Women [1791] in response
to the Declaration of the Rights of Man and the Citizen www.britannica.com/topic/Declaration-of-the-Rights-of-Women
accessed 26 January 2018.
24 Jenny S. Martinez, The Slave Trade and the Origins of International Human Rights Law (OUP 2012) 134–5.
25 Alston, ʻDoes the Past Matter?ʼ (n. 2) 2049. See, also, Reza Afshari, ʻOn Historiography of Human Rights Reflections on Paul
Gordon Laurenʼs The Evolution of International Human Rights: Visions Seenʼ (2007) 29 Human Rights Quarterly 1, 12.
26 See L. Oppenheim, International Law: A Treatise, Vol. I. Peace [1st edn] (Longmans 1905) 608.
27 Article 2(b), Slavery Convention, International Convention to Suppress the Slave Trade and Slavery, 25 September 1926,

Downloaded from https://academic.oup.com/book/4999/chapter/147483091 by OP Jindal Global University user on 28 March 2023

46 Stat. 2183.
28 Micheline R. Ishay, The History of Human Rights from Ancient Times to the Globalization Era (California UP 2008) 218.
29 There are two main dangers in looking to explain the evolution of the history of human rights over time. First, whether the
di erent individuals speaking and writing about ʻhuman rightsʼ (or what we take to be an equivalent term) were really
talking about the same thing in the same way. See on this point, Quentin Skinner, ʻMeaning and Understanding in the
History of Ideasʼ (1969) 8 History and Theory 3, 38. Second, whether we can actually trace the evolution of an idea through
time. Michel Foucault, for example, cautions against any approach to history that ʻaims at dissolving a singular event into
an ideal continuity—as a teleological movement or a natural processʼ: Michel Foucault, ʻNietzsche, Genealogy, Historyʼ in
Paul Rabinow (ed.), The Foucault Reader (Penguin 1984) 76, 88.
37 Günter Frankenberg, ʻHuman Rights and the Belief in a Just Worldʼ (2014) 12 International Journal of Constitutional Law
35, 36. The political scientist Alison Brysk maintains, for example, that by narrating the concrete su ering of individuals,
human rights tells us what it means to be human: Alison Brysk, Speaking Rights to Power: Constructing Political Will (OUP
2013) 25. The philosopher Jean-François Lyotard observes a paradox in human rights, whereby rights follow situations of
not being treated like a fellow human; only then does an individual have rights, and only then are they treated by others as
being human: Jean-François Lyotard, ʻThe Otherʼs Rightsʼ in Stephen Shute and Susan Hurley (eds), On Human Rights (The
Oxford Amnesty Lectures 1993) 135, 136.
38 Klaus Günther, ʻThe Legacies of Injustice and Fear: A European Approach to Human Rights and their E ects on Political
Cultureʼ in Philip Alston et al. (eds), The EU and Human Rights (OUP 1999) 117, 126.
39 Ibid. 134.
40 Upendra Baxi, ʻVoices of Su ering and the Future of Human Rightsʼ (1998) 8 Transnational Law & Contemporary Problems
125, 127.
41 Emmanuel Lévinas, Totality and Infinity: An Essay on Exteriority, translated by Alphonso Lingis (Kluwer 1991) 199.
42 Costas Douzinas, The End of Human Rights: Critical Legal Thought at the Turn of the Century (Hart 2000) 351.
30 Margaret MacDonald, ʻNatural Rightsʼ in Jeremy Waldron (ed.), Theories of Rights (OUP 1984) 21, 25. (A common feature is
that natural rights follow the intrinsic or essential nature of man: ʻThus they are known by reason.ʼ)
31 James Gri in, On Human Rights (OUP 2008) 32 (herea er Gri in, On Human Rights).
32 Ibid. 33.
33 Samantha Besson and Alain Zysset, ʻHuman Rights History and Human Rights Theory: A Tale of Two Odd Bedfellowsʼ
(2012) Ancilla Juris (anci.ch) 204, 209, at https://www.anci.ch.
34 Gri in, On Human Rights (n. 31) 35.
35 Ibid. 95.
36 Human rights do not speak to the su ering caused by natural disasters, nor do they concern the humanitarian obligations
of charity. See, on this point, Allen Buchanan, ʻMoral Progress and Human Rightsʼ in David Reidy and Cindy Holder (eds),
Human Rights: The Hard Questions (CUP 2013) 399, 408.
43 The legal philosopher James Nickel develops a prudential argument that sees human rights protecting the individual from
the predictable threats that come from the state in the form of torture, arbitrary detention, etc.: James W. Nickel, Making
Sense of Human Rights (2nd edn, Blackwell 2007) 55.
44 Louis Henkin, ʻThe Universality of the Concept of Human Rightsʼ (1989) 506 Annals of the American Academy of Political
and Social Science 10, 11.
45 For a good introduction, see Kenneth Baynes, ʻDiscourse Ethics and the Political Conception of Human Rightsʼ (2009) 2(1)
Ethics & Global Politics 1; also, Laura Valentini, ʻIn What Sense are Human Rights Political? A Preliminary Explorationʼ
(2012) 60 Political Studies 180.
46 Norberto Bobbio, The Age of Rights (Polity 1996) 52.
47 Rex Martin, ʻAre Human Rights Universal?ʼ in David Reidy and Cindy Holder, Human Rights: The Hard Questions (CUP 2013)
59, 59.
48 Thomas Hobbes, Leviathan [1651], edited by C.B. MacPherson (Penguin 1968) 185.
49 John Locke, Two Treatises of Government [1689] edited with an introduction by Peter Laslett (CUP 1960) Bk. II § 123.
50 Ibid. Bk. II § 221.
51 Virginia Declaration of Rights, adopted 12 June 1776 by the Virginia Convention of Delegates
http://avalon.law.yale.edu/18th_century/virginia.asp accessed 26 January 20.
52 Universal Declaration of Human Rights, UNGA Res 217(III)A (10 Dec 1948).
53 Thomas Pogge, World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms (2nd edn, Polity 2008) 63.
54 Mark Goodale, ʻHuman Rights and the Politics of Contestationʼ in Mark Goodale (ed.), Human Rights at the Crossroads
(OUP 2012) 31, 37.
55 John Finnis, Natural Law and Natural Rights (2nd edn, OUP 2011) 214 (herea er Finnis, Natural Law). Finnis is not alone in
this conclusion. Jack Donnelly, for example, argues that the rights in the Universal Declaration ʻare conceptualized as
being universal and held equally by all; that is, as natural rights [to be enjoyed] without distinctions of any kind because
they are based on human natureʼ: Jack Donnelly, ʻHuman Rights as Natural Rightsʼ (1982) 4 Human Rights Quarterly 391,
401; Jacques Maritain also saw the 1948 Universal Declaration as a statement of the idea of natural rights today, reflecting
practical truths, grounded in rational justification and practical reasoning: Jacques Maritain, Man and the State (Chicago
UP 1951).
56 Finnis, Natural Law (n. 55) 86–9.
57 Joshua Cohen, ʻMinimalism about Human Rights: The Most We Can Hope for?ʼ (2004) 12 Journal of Political Philosophy
190, 198.
58 Thomas Nagel, ʻThe Problem of Global Justiceʼ (2005) 33 Philosophy and Public A airs 113, 131.

Downloaded from https://academic.oup.com/book/4999/chapter/147483091 by OP Jindal Global University user on 28 March 2023

59 Ibid. 140.
60 Thomas Pogge, ʻAre We Violating the Human Rights of the Worldʼs Poor?ʼ (2011) 14 Yale Human Rights & Development Law
Journal 1, 19.
61 Hersch Lauterpacht, An International Bill of the Rights of Man [1945] (OUP 2013) 28.
62 Ibid. 7.
63 H. Lauterpacht, ʻThe Grotian Tradition in International Lawʼ (1946) 23 British Year Book of International Law 1, 27. Grotius
is important to the natural law tradition for his rejection of the Aristotelian method that sought to develop a conception of
what is right based on a political or ethical conception of the good life. See Richard Tuck, Natural Rights Theories: Their
Origin and Development (CUP 1979) Chapter 3.
64 There are notable exceptions. Martti Koskenniemi, for example, argues that ʻthe certainty we have of the illegality of
genocide, or of torture … is by itself su icient reason to include those norms in international lawʼ: Martti Koskenniemi,
ʻThe Pull of the Mainstreamʼ (1990) 88 Michigan Law Review 1946, 1952 (emphasis in original). The International Court of
Justice came close to endorsing moral values in the Corfu Channel case, when it listed the ʻelementary considerations of
humanityʼ as one of the sources of international law: Corfu Channel Case (UK v Albania) (Merits) [1949] ICJ Rep 4, 22. In its
advisory opinion on Reservations to the Convention on Genocide, the Court concluded that the prohibition against
genocide was ʻbinding on States, even without any conventional obligationʼ: Reservations to the Convention on Genocide
[1951] ICJ Rep 15, 23. Whilst the passage is normally understood to refer to the obligations of states under customary
international law, Jan Klabbers argues that it ʻmakes a lot more sense as an a irmation by the Court that some things are
simply improper, regardless of whether or not a rule of law exists to that e ectʼ: Jan Klabbers, ʻThe Curious Condition of
Customʼ (2002) 8 International Legal Theory 29, 33.
65 Louis Henkin, The Rights of Man Today (Westview 1978) 95.
66 Louis Henkin, ʻHuman Rights and State “Sovereignty” ʼ (1995–6) 25 Georgia Journal of International and Comparative Law
31, 40. For a critical evaluation, see Anthony DʼAmato, ʻHuman Rights as Part of Customary International Law: A Plea for
Change of Paradigmsʼ (1995–6) 25 Georgia Journal of International and Comparative Law 47, 56.
67 John Rawls, The Law of Peoples (Harvard UP 1999) 68. See Charles R. Beitz, ʻRawlsʼs Law of Peoplesʼ (2000) 110 Ethics 669.
68 Ibid. 65 and 79.
69 Joseph Raz, ʻHuman Rights in the Emerging World Orderʼ (2010) 1 Transnational Legal Theory 31, 42.
70 Joseph Raz, ʻHuman Rights without Foundationsʼ in Samantha Besson and John Tasioulas (eds), The Philosophy of
International Law (OUP 2010) 321, 328.
71 Ibid. 329.
72 Charles R. Beitz, The Idea of Human Rights (OUP 2009) 109–10.
73 Ibid. 115.
74 Joseph Raz, ʻOn Waldronʼs Critique of Raz on Human Rightsʼ (2013) Oxford Legal Studies Research Paper No. 80/2013, 6
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2307471, accessed 20 February 2018.
75 Jeremy Waldron, ʻHuman Rights: A Critique of the Raz/Rawls Approachʼ (2013) NYU School of Law, Public Law Research
Paper No. 13-32, 4 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2272745, accessed 20 February 2018.
76 Article 51, Charter of the United Nations.
77 Article 39.
78 See Bruno Stagno Ugarte and Jared Genser, ʻEvolution of the Security Councilʼs Engagement on Human Rightsʼ in Jared
Genser and Bruno Stagno Ugarte (eds), The United Nations Security Council in the Age of Human Rights (CUP 2014) 3.
79 The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (Ottawa:
International Development Research Centre, 2001), paras 4.10 and 6.14. See generally Ramesh Thakur, ʻThe Use of
International Force to Prevent or Halt Atrocities: From Humanitarian Intervention to the Responsibility to Protectʼ in Dinah
Shelton (ed.), The Oxford Handbook of International Human Rights Law (OUP 2013) 815; also, Andreas S. Kolb, The UN
Security Council Membersʼ Responsibility to Protect: A Legal Analysis (Springer 2018).
80 The ʻResponsibility to Protectʼ doctrine has been approved by the UN Member States. See para. 139, ʻWorld Summit
Outcomeʼ, UNGA Res 60/1 (16 Sept 2005) (adopted without a vote): ʻThe international community, through the United
Nations, also has the responsibility … to help to protect populations from genocide, war crimes, ethnic cleansing and
crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner,
through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis.ʼ
81 See generally Vaughan Lowe and Antonios Tzanakopoulos, ʻHumanitarian Interventionʼ (2011), Max Planck Encyclopedia of
Public International Law http://opil.ouplaw.com/home/EPIL, accessed 22 February 2018. For my view, see Steven
Wheatley, ʻThe NATO Action Against the Federal Republic of Yugoslavia: Humanitarian Intervention in the Post-Cold War
Eraʼ (1999) 50 Northern Ireland Legal Quarterly 478.
82 Wil D. Verwey, ʻHumanitarian Interventionʼ in Antonio Cassese (ed.), The Current Regulation of the Use of Force (Martinus
Nijho 1986) 57, 59.
83 Michael J. Bazyler, ʻReexamining the Doctrine of Humanitarian Intervention in the Light of Atrocities in Kampuchea and
Ethiopiaʼ (1987) 23 Stanford Journal of International Law 547, 598–601.
84 Anthony DʼAmato, International Law: Process and Prospect (Transnational Publishers 1987) 351.
85 Jack Donnelly, ʻHuman Rights, Humanitarian Intervention and American Foreign Policyʼ (1984) 37 Journal of International
A airs 311, 313.
86 Jean L. Cohen, ʻRethinking Human Rights, Democracy, and Sovereignty in the Age of Globalizationʼ (2008) 36 Political
Theory 578, 591. Cohen argues that foreign military intervention should be limited to the most exceptional conditions of
ʻabsolute nonbelongingʼ, circumstances of mass extermination, expulsion, ethnic cleansing, and enslavement, when the
government abrogates the political relationship between the rulers and the ruled and says to a group that ʻyou are not

Downloaded from https://academic.oup.com/book/4999/chapter/147483091 by OP Jindal Global University user on 28 March 2023

one of us, you are no longer a member of this political/cultural communityʼ: ibid. 586–7.
87 Onora OʼNeill, ʻAgents of Justiceʼ (2001) 32 Metaphilosophy 180, 181.
88 See, for example, Samantha Besson, ʻThe Law in Human Rights Theoryʼ (2013) 7 Zeitschri für Menschenrechte [Journal for
Human Rights] 120.
89 Allen E. Buchanan, The Heart of Human Rights (OUP 2014) 3.
90 Ibid. 11.
91 Ibid. 27.
92 Ibid. 37.
93 Ibid. 81.
94 Ibid. 44. On the role of human rights in legitimating international law, see also Patrick Macklem, The Sovereignty of Human
Rights (OUP 2015) 65.
95 John Tasioulas, ʻExiting the Hall of Mirrors: Morality and Law in Human Rightsʼ (2017) Kingʼs College London Law School
Research Paper No. 2017-19 (SSRN) 18.
96 Allen Buchanan, ʻHuman Rights: A Plea for Taking the Law and Institutions Seriouslyʼ (2016) 30 Ethics & International
A airs 501, 508.
97 Samantha Besson, ʻLegal Human Rights Theoryʼ in Kasper Lippert-Rasmussen et al. (eds), A Companion to Applied
Philosophy (Wiley 2017) 328, 335.
98 John Tasioulas observes that philosophers of human rights o en succumb to the allure of ʻfoundationalism and
functionalismʼ. The allure of foundationalism is seen in attempts to establish the ontological basis of human rights in a
single idea, such as autonomy, dignity, or personhood, etc. The allure of functionalism is to explain human rights in terms
of their role in setting benchmarks of governmental legitimacy or triggering forcible intervention. Tasioulas concludes that
ʻLiberation is to be found in adopting a more pluralistic viewʼ: John Tasioulas, ʻTowards a Philosophy of Human Rightsʼ
(2012) 65 Current Legal Problems 1, 25–6.
99 Paul Horwich, ʻA Use Theory of Meaningʼ (2004) 68 Philosophy and Phenomenological Research 351, 355.
100 Paul Horwich, Meaning (OUP 1998) 44.
101 Ibid. 47.
102 The word ʻmoralʼ here is used in its ordinary sense of ʻrelating to human character or behaviour considered as good or
bad; of or relating to the distinction between right and wrongʼ. ʻmoral, adj.ʼ OED Online. Oxford University Press, June
2018.