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The theory of Human Right

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发表于 2/6/2018 22:38:45 | 显示全部楼层 |阅读模式
The theory of Human Right
Edited by Thomasgguo
Nazi death camps had operated entirely within the legal authority of the German state - a state at the very heart of western civilization.[1] Indeed, the leaders of National Socialism believed themselves to be agents of justice and civilization. As Hitler had said:
“Should the Government act shamefully, the law is in no position to prevent it ... If the Government of a State is composed of indifferent individuals, the Body Judicial can do nothing to correct the mistakes of the legislators; but when the reins are in the hands of an honest and capable legislator, the law can support him wholeheartedly in his task of strengthening the bonds of the national community, and of thus laying the ideal foundation on which a healthy and dignified constitution can be built”.[2]
To this end, such statutes as the Law for the Prevention of Progeny of the Genetically Unhealthy (1933), the Law for the Protection of German Blood and Honour (1935), and the Law for the Treatment of Community Aliens (1944) were created - developments that to many appeared the legislation of evil.[3] The world was thus confronted with hitherto inconceivable horrors, promulgated in the name of the law.
By a natural rights theory of justice, the aim of the Universal Declaration of Rights and Freedoms, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the various other specific[4] and regional[5] human rights conventions was to stand above the laws of individual states and prevent the recurrence of the sort of atrocities that were committed by Germany. The drafters of these instruments felt that only an appeal to transcendent and objective rights held by humans as humans could deter similar horrors. In this, the philosophical tradition of natural law played a crucial role.
As Jerome Shestack states: “Natural rights theory makes an important contribution to human rights. It affords an appeal from the realities of naked power to a higher authority which is asserted for the protection of human rights. It identifies with human freedom and equality from which other human rights easily flow. And it provides properties of dependability, security, and support for a human rights system both domestically and internationally.[6]
The preamble of the Universal Declaration is unambiguous on this point when it states that "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world."
The notion of human rights has grown from providing protection to the individual from the excesses of the organ of the state to providing positive conditions for the fulfillment of his needs and the realization of his personality.
Human rights are fundamental in nature and ontological in character. They are fundamental because they are essential to man's fulfillment as a social being. They are ontological in character because they have an essential structure.


[1]  As Ian Kershaw has indicated, the planning of the "Final Solution" at the Wansee Conference, Jan. 20, 1942, and during the preceding month involve  the very highest levels of the German state. "[I]t is clear that not only the SS leadership but also the Foreign Office, the Ministry for the Occupied Eastern Territories and the Chancellor of the Fuhrer were in the picture": The Nazi Dictatorship, 103 (London: Edward Arnold, 1985). See also Christopher Browning, The Final Solution and the German Foreign Office (New York: Macmillan, 1978).

[2] Hugh Trevor Roper (ed.), Hitler's Table-Talk, 643 (Oxford: Oxford University Press, 1988).

[3] The official aim of the Community Alien Law was the denial of all social services to  those of "deficiency of mind or character." As the explanatory text stated: "The National Socialist view of welfare is that it can only be granted to national comrades who both need it and are worthy of it. In the case of community aliens who are only a burden on the national community welfare is not necessary."  Cited in Jeremy Noakes, "Social Outcasts in the Third Reich" in Richard Bessel  (ed.), Life in the Third Reich, 92 (Oxford: Oxford University Press, 1987).

[4]  See e.g., Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277 (1948); Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly as an annex to resolution 39/46, UN GAOR, 39th Sess., 7o8 Plen. Mtg., UN Doc. A/39/7o8  (1984), text found at GAOR Supp. 51 at 197, UN Doc. E/CN.4/1984/72 (1984). In 1987 the Convention came into force. See also International Convention on the Elimination of All Forms of Racial Discrimination, 66o UNTS 195 (1966).

[5] See the European Convention for the Protection of Human Rights and Fundamental  Freedoms, 213 UNTS 221 (1948); American Convention on Human Rights, OASTS  No. 36 (1969); African Charter on Human and People s Rights, reprinted in 21 ILM  59 (1981).

[6] Shestack, "The Jurisprudence of Human Rights," in Theodor Meron (ed.), Human Rights in International Law: Law and Policy Issues, 78 (Oxford: Oxford University Press, 1984).



 楼主| 发表于 2/6/2018 22:59:33 | 显示全部楼层
Universal Human Rights A Generational History
By Eric Engle
Human rights are universal. Not in the sense of being the same positive
laws, at all times and places, but rather as being as irrational goals, at all
times and places, and also as containing core values which are indeed
universal, such as the right to life (no irrational deprivation of life). His-
tories of human rights usually propose that the concept has evolved
through at least three separate historical waves. This historical account,
while roughly accurate, must be clarified as a theoretical construction
which corresponds only partially to the historical reality: the rights of
women and of non-white persons, in fact, arose relatively late in history.
With that qualification, however, the historical description is roughly
accurate, and also explains why we can speak of human rights as "uni-
versal" in a meaningful sense. While human rights are a possible, and
not necessary, consequence of economic development, there is nothing
uniquely "western" about human rights. Indeed, all cultures aspire to
what Aristotle described as "the good life." At least in this sense, human
rights are universal as all humans are rational animals gifted with speech.

 楼主| 发表于 2/6/2018 23:02:04 | 显示全部楼层
I.   INTRODUCTION
The world has undergone a transformation of international systems, from
a Westphalian system of nation-states, to a post-Westphalian interna-
tional system based on transnational institutions. This post-Westphalian
system sees state power devolve to local, or even private, entities and
assigns rights and duties under international law to non-state actors.[1]
Because human rights law assigns legal rights and duties under interna-
tional law to non-state actors, it is a key feature of the post-Westphalian
system. In order to determine whether, and how, human rights serve as
an element in post-Westphalian global governance, we must examine
first whether human rights are universal. If human rights are, or can be,
universal then we must examine the historical development of human
rights.


Eric Engle , Universal Human Rights A Generational History,12 Ann. Surv. Int'l & Comp. L. ANNUAL SURVEY OF INT'L & COMP. LAW[Vol. XII at. (2006)  p, 219 to 268
*  J. D., University of Saint Louis; D.E.A., Paris X (Nanterre) and Paris II (Panthdon-Assas);
LL.M, M.Sc., Dr. Jur. (Bremen); Professor of European Law, University of Tartu, Estonia.
[1] .   The "shift in sovereignty accompanying globalisation has meant that non-state actors are
more involved than ever in issues relating to human rights." Dinah Shelton, Protecting Human
Rights In A Globalized World, 25 B.C. INT'L. Comp. L. REV. 273, 273 (2002) available at:



 楼主| 发表于 2/6/2018 23:31:06 | 显示全部楼层
II. THE PARADIGM SHIFT: FROM SOVEREIGN STATES TO INDIVIDUAL RIGHTS
The paradigm shift from a system which regarded only states as subjects
of international law,[1] enjoying absolute and inviolable power within their
own borders, to a system which constrained the absolute power of the
state, recognized non-state actors as having rights and duties under inter-
national law, and ultimately protected individuals against state and pri-
vate actors[2] by recognizing non-state actors as having both rights and
duties under international law,[3] occurred in several fields simultaneously.
As a result[4]of the horrors of the Second World War,[5] the second failure
of the Westphalian system to maintain global peace in as many genera-
tions, individuals and organisations were tried for crimes under interna-
tional law:[6] crimes against peace, crimes against humanity[7] and war
crimes[8] at the Nuremberg Trials.[9] The defences raised by the accused -
sovereign immunity, official immunity,[10] nullum crimen sine lege,[11] re-
spondeat superior,[12] compulsion[13] and one's duty to obey[14] the orders of a
lawfully appointed superior[15] - were all, for various reasons, rejected.
Knowingly or not, however, in assigning a legal duty to individuals to
obey certain norms entailing an obligation erga omnes[16] - to disobey,
under certain circumstances, the command of the sovereign - the Interna-
tional Military Tribunal broke from the Westphalian model.
Just as noteworthy as the break from the Westphalian system, the Tribu-
nal also was forced to recognize universal principles of natural justice.[17]
The non-retroactivity of law (no ex post facto criminal laws) was a prin-
ciple of law since at least the French Declaration des Droits de
l'Homme,[18] although Hobbes did mention the principle earlier.[19] These
breaches of the enlightenment principle of legality, crime would be de-
fined only prior to its commission, and the Westphalian principle of the
hermetic nature of sovereignty, might have been regarded as particular
exceptions resulting from unique circumstances. Philosophically how-
ever they could only be justified via a theory of natural law:[20] the war
crimes were such a basic, and self-evident, violation of the inherent dig-
nity of humans that they were implicitly prohibited under ius naturale.[21]
Thus, in order to escape accusations of violating the principle nullum
crimen, nulla poena, sine praevia lege,[22] the court had to acknowledge
arguments based on a theory of universal law - natural justice.
The courts at Nuremberg and in Eichmann thus could not escape from
the idea of morality. Nor could they escape from the idea that all that is
moral, is also lawful (and possibly even from the idea that all that is im-
moral, is also unlawful - because the defense of many of the criminals
was that they were following orders). And this, despite the fact that until
then the entire tendency of legal theory, at least since the year 1880,
tended toward positivism, with theories of natural law dismissed as pre-
scientific, wishful thinking or even naiveté. However, looking at legisla-
tion, clearly much immorality is perfectly legal. This aporime explains
why these cases are problematic, and why natural law will continue to
haunt positivism. The only way out of this dilemma is to recognize law
is about force; justice is about morality. Positivism and natural law can,
in fact, be linked (as Hobbes and Aristotle did)[23] by distinguishing natu-
ral law[24] from natural justice. Justice is about morality, and
an unjust law, while positively obligatory, is not legally binding - as
Cicero,[25] Aquinas,[26] and many others discussed. Only through distin-
guishing the two, can the supposed dichotomy between positivism and
natural law be resolved.[27]
Nuremberg was not only remarkable because it broke from the West-
phalian model and raised serious theoretical implications, it was also
problematic. The victorious powers had also committed acts of dubious
legality - mass aerial bombardment of civilian populations,[28] the use of
chemical weapons (specifically, white phosphorous) and even atomic
bombardment.[29] The shadow of Nuremberg points an accusing finger at
those who judged, but were not themselves judged.[30] Perhaps for this
reason (i.e. the need to provide legitimacy to the post-war order and the
decisions at Nuremberg), and certainly because of the depth of devasta-
tion, the international legal system was irrevocably changed through the
establishment of limitations on sovereign power: states would no longer
have the right to launch wars of aggression, and could only resort to
force in self-defense.[31] An international governing body, the United Na-
tions, with the power to approve or disapprove of the use of force,[32] arose
like a Phoenix out of the ashes of the failed League of Nations, and dev-
astated continents.
Ultimately the post-war system outlawed wars of aggression;[33] recog-
nized a right to humanitarian assistance[34] and a right of humanitarian
intervention;[35] accorded rights and duties to non-state actors, including
non-governmental organisations (NGOs);[36]recognized individual and
corporate liability in crime, or in tort, under international human rights
law; and guaranteed human rights in international declarations, resolu-
tions, and conventions. At the same time, universal[37] jurisdiction ex-
panded.[38] State powers at the national level have simultaneously 1) de-
volved "downward" to regional, provincial, and municipal entities; 2)
transferred "upward" to supra-national economic and political organisa-
tions; and 3) privatised "outward" to corporations. Meanwhile, individu-
als and other non-state actors increasingly are accorded rights and duties
under international law. All of these changes have imposed real limits
on, and expose the greatly reduced role of, the, formerly, absolute sover-
eign power of "The State."
Any of these facts alone might be seen as mere derogations from the
Westphalian system. But, taken together, it is similar to the problem of
the ship of Theseus: if enough planks are replaced in Theseus' ship (here
the Westphalian system), is it still his ship?[39] The author is of the opin-
ion that the rise of continental and global free-trading regimes such as
MERCOSUR, the E.U., the Andean Pact, NAFTA, ASEAN, coupled
with global trading regimes (WTO, GATS and TRIPS), each featuring
binding adjudication and governance mechanisms, implies the present
system is a post-Westphalian system. States are no longer primary ac-
tors, but rather one actor among many others. The post-Westphalian
system could be compared, speaking very approximately, to the Holy
Roman Empire or perhaps even the Austro-Hungarian Empire; several
different peoples and religions subject to nominal political entities (the
E.U., MERCOSUR, the U.N.) which guarantee liberal trade and protect
minorities. However, the contemporary multinational system is not
merely continental - it is global. Today, international law, led by the
U.N., recognizes, and to some extent even guarantees, human rights.
What caused this paradigm shift? How were these new rights - now
inherent in individuals and groups, not in states - grounded?


[1].   Individuals and non-state actors in the Westphalian system were considered mere "objects" of international law. ANTONIO CASSESE, HUMAN RIGHTS IN A CHANGING WORLD, 14 (Polity Press 1990).

[2].   International Human Rights protects individuals against state action and even against private action. THEODOR MERON, HUMAN RIGHTS AND HUMANARIAN NORMs AS CUSTOMARY LAW, 98 (Oxford: Clarendon 1989).

[3].   International Human Rights law assigns rights and even duties to individuals. Id. at 101.

[4].   Louis B. John, The New International Law: Protection Of The Rights Of Individuals Rather Than States, 32 AM. U. L. Rev. 1 (1982).

[5].   ANTONIO CASSESE, supra note 2, at 15 (arguing that the second world war inaugurated a radical reconceptualization of international law).

[6].  Robert D. Sloane, The Changing Face Of Recognition In International Law: A Case Study Of Tibet, 16 EMORY INT'L L. Rev. 107, 144 (2002) (human rights documents founded sprang from the ruins of the Second World War).

[7].   For a discussion of contemporary issues in crimes against humanity see: Simon Chester- man, An Altogether Different Order: Defining The Elements Of Crimes Against Humanity, 10 DUKE J. OF COMP. & INT'L L. 307 (2000) available at:

[8].   Louis B. Sohn, supra note 5, at 11.

[9] 10.  Charter Of The International Military Tribunal August 8, 1945, art. 6, [hereinafter IMT] available at: . Nuremberg in German is Nuremberg.

[10].  IMT art. 7.

[11] .  Paul Feuerbach, Lehrbuch des gemeinen in Deutschland gueltigen peinlichen Rechts (lst ed. 1801) cited in: The Trial of Adolf Eichmann, Defence Submission 2, available at: .

[12].  Jeanne L. Bakker, The Defense Of Obedience To Superior Orders: The Mens Rea Requirement, 17 AM. J. CRIM. L. 55, 57 (1989).

[13].  Id. at 62.

[14].  Id. at 58.

[15].  IMT art. 8. This is perhaps the most counterintuitive problem posed by the Nuremberg principles: the duty of an individual to disobey the sovereign under international law is incongruent with the rationale of the Westphalian system. Once a duty was imposed on individuals to disobey the orders of the sovereign, the argument that only the sovereign should be the intermediary of the individual in the international arena becomes illogical. How can one be required at once to disobey the sovereign and expected to rely on that sovereign for protection internationally? By implication, Nuremberg ended the monopoly of the state as representative of the individual internationally.

[16].  Alfred P. Rubin, Actio Popularis, Jus Cogens, and Offenses Erga Omnes, 35 N. ENG. LAW REV. 265, 267 (2001) available at: .

[17].  Nuremberg Trial Proceedings Vol. 19, One Hundred And Eighty-Seventh Day, Friday, 26 July 1946 available at: .

[18].   Declaration des droits de l'homme, art. 8.

[19] HOBBES, LEVIATHAN (1651), chs. XXVII-XXVIII.

[20].   "Lex mala, lex nulla" - an evil law is no law at all. THOMAS AQUINAS, SUMMA THEOLOGICA, (2d Ed., 1920) citing Augustine "that which is not just seems to be no law at all" (De Lib. Arb. i, 5) available at: .

[21].  For example, when Eichmann was tried for "crimes against the Jewish people," the trial court's judgement (not necessarily the appeal!) relies on Blackstone arguing that mala in se can be prohibited ex post, because they are violations of natural law and are attempts to make a question able distinction between ex post facto and retroactive laws. In contrast, the Appellate judgment relies on the positivist Kelsen. "There is no rule of general customary international law forbidding the enactment of norms with retrospective force, so called ex post facto law." HANS KELSEN, PEACE THROUGH LAW, 87 (1944). The judgement also relied on Stone, "[t]here is clearly no principle of international law embodying the maxim against retroactivity of criminal law." JULIUS STONE, LEGAL CONTROLS OF INTERNATIONAL CONFLICT, 369 (1959). The court even points out: "...it is hardly necessary to invoke natural law to condemn the mass slaughter of helpless human beings. Murder is generally taken to be a crime in positive international law." FRIEDMANN, LEGAL THEORY, 316 (Columbia University Press, 4th ed.). Despite these positivist references the Israeli supreme court still felt compelled to contradict its positivism and rely, finally, on: "universal moral values and humanitarian principles which are at the root of the systems of criminal law adopted by civilised nations."  Israel v. Eichmann, Criminal Case No. 40/61 (district court) available at: ; Israel v. Eichmann (S. Ct.) available at: .

[22].   James People, The Right to Protection from Retroactive Criminal Law, 13 CRIM. L. JNL. 4, 251-62 (1989); 2 AUSTRALASIAN LAW STUDENTS' ASSOCN J., 5-18 (1989) available at: .

[23].   ARISTOTLE, POLITICS, Book V.

[24].   HOBBES, LEVIATHAN, Ch. XIV, para. 3. Hobbes' lex naturalis is the law of self preservation, implicitly via the use of force if necessary.

[25].   CICERO, THE REPUBLIC at 111, XXII (Loeb Classical Library, 1950), available at:  (lat.).

[26].   THOMAS AQUINAS, SUMMA THEOLOGICA, SECUNDA SECUNDAE PARTIS §57 (Right), avail- able at: .

[27].   See, Eric Engle, Critical Legal Studies in America (2000) available at: .

[28].   The League of Nations had already condemned aerial bombardment of civilians: Protection of Civilian Populations Against Bombing From The Air In Case Of War, Unanimous resolution of the League of Nations Assembly, Sept. 30, 1938, available at: .

[29].   The use or threat to use nuclear weapons is probably a war crime and/or a crime against humanity. See, On the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, The Hague, 8 July 1996; Resolution On Nuclear Weapons United Nations, November 24, 1961, General Assembly Resolution 1653.

[30].   See, e.g., Alfred P. Rubin, supra note 17, at 280. "[N]o such tribunal existed outside of various victors' tribunals (like the post-WWn1 allied tribunals at Nuremberg, Tokyo and elsewhere), which did not apply the same 'law' to the victors' leaders that they applied to the leaders of the vanquished state or forces."

[31].   "Article 2(4) of the UN Charter comprehensively prohibits the use of force, thereby sur- passing the 1928 Kellogg-Briand Pact's prohibition of going to war as a political means." Jost Delbruck, A More Effective International Law Or A New "World Law"? - Some Aspects Of The Development Of International Law In A Changing International System, 68 IND. L.J. 705, 707-708 (1993).

[32].   Charter of the United Nations, ch. VII, art. 41, available at: .

[33].   Jost Delbruck argues that in the post-cold war era the definition of "aggression" is becoming broader. See, Jost Delbruck, supra note 32, at 708.

[34].   Humanitarian assistance appears undefined in international law. For attempts at definitions see,  Noelle Qu6nivet, Humanitarian assistance: a right or a policy?, J. Humanitarian ASSISTANCE (June, 2000), at:  and also, Songiee Song, NGOs and UN System in Humanitarian Assistance in War Zones: Focusing on Somalia and Rwanda, (M.A. thesis, 2000) at: . In the U.S., domestic law humanitarian assistance is defined (22 U.S.C. § 2296 (b)(2)) as "assistance to meet humanitarian needs, including needs for food, medicine, medical supplies and equipment, education, and clothing." Available at: .

[35].  "Humanitarian intervention is the threat or use of force by a state, group of states, or inter- national organisation primarily for the purpose of protecting the nationals of the target state from widespread deprivations of internationally recognized human rights." Tania Voon, Closing The Gap Between Legitimacy And Legality Of Humanitarian Intervention: Lessons From East Timor And Kosovo, 7 UCLA J. INT'L L. & FOREIGN AFF. 31, 34 (2002). Some historical precedents exist even prior to the world wars for the right of humanitarian intervention in order to protect human rights. See Louis B. Sohn, supra note 5, at 5.

[36].   The extent of NGO's appears to be growing, and NGOs are even implicated in the question of whether states have a right of intervention to provide humanitarian assistance. See C. STAHN, NGO's AND INTERNATIONAL PEACEKEEPING, 61 ZAORV 379 (2003).

[37].   William C. Plouffe, Sovereignty In The "New World Order": The Once And Future Position Of The United States, A Merlinesque Task Of Quasi-Legal Definition, 4 TULSA J. COMP. & INT'L L. 49, 54 (1996). Recognizing at least five bases for jurisdiction under international law "(1) the territorial principle, (2) the nationality principle, (3) the protective principle, (4) the passive personality principle, and (5) the universality principle."

[38].   But see: D. Bowett, Jurisdiction: Changing Patterns of Authority over Activities and Re- sources, in THE STRUCTURE AND PROCESS OF INTERNATIONAL LAW: ESSAYS IN LEGAL PHILOSOPHY DOCTRINE AND THEORY (R. Macdonald, D. Johnston eds., (1986)). Acknowledges the existence of universal jurisdiction under the passive and active personality principle and the protective principle (560-562), but argues that while universal jurisdiction exists in cases of piracy and air piracy, that (despite Eichmann and the 1949 Geneva Conventions!) universal jurisdiction does not, or should not, exist as to war crimes, terrorism, or apartheid (563-564).

[39].   The philosophical problem of the ship of Theseus is not "which ship belongs to Theseus." Instead it is, "what do we mean by identity?" (or even, "what do we mean by posession?"). See, e.g., Theseus, (2003) at: .



 楼主| 发表于 2/7/2018 00:05:15 | 显示全部楼层
A. ELABORATION OF GLOBAL HUMAN RIGHTS NORMS: OPINIO JURIS
Historically, the legal imputation to, and acquisition of rights by, indi-
viduals in the post-war world, can be analyzed as having been driven by
trans-national and conventional global systems.[1] Because human rights
claim to be universal, and because individual human rights most seri-
ously challenge the assumptions of the Westphalian system, our primary
focus will be on the discovery of individual rights at the global level. In
fact, trans-national efforts, such as the European Court of Human Rights,
have been even more successful at imputing rights to individuals than
global efforts. However, the claim that the post-Westphalian order im-
putes legal rights to individuals can be best demonstrated by analysing
the claim at its boldest, and weakest, point - the creation of weak, but
universal, human rights protections under the aegis of the U.N. and re-
gional convention systems.
One feature of the post-Westphalian world is the rise of a series of inter-
locking U.N. conventions based on universal norms,[2] which this author
refers to as "the U.N. convention system."[3] These conventions, which
can also be found at the regional level, whether continental[4] or hemi-
spheric,[5] are promulgated by international organizations seeking to pro-
tect human rights and guarantee freedom of commerce. These organiza-
tion promulgate these conventions because liberal economic theory pos-
tulates that free trade increases prosperity and reduces the likelihood of
war by de-linking economy and territory.
The transformation of the Westphalian system has occurred via a func-
tionalist proliferation of treaties,[6] which are either general or specific as
to their subject matter, are either regional[7] or global[8] in jurisdiction, and
which aspire to attract voluntary, universal membership.[9] The conven-
tion system is, in fact, widely adhered to: "three-quarters or more of
United Nations member states have ratified five of the six human rights
treaties."[10] These networks of norms have been constantly expanding and
are interlocking, i.e. they are mutually reinforcing.[11]
The various human rights treaties usually feature enforcement mecha-
nisms including, generally, an expert monitoring body with power to
hear petitions from state parties, and sometimes even from individuals[12]
or other non-state actors.[13] These usually include an obligation to submit
reports[14] to a committee,[15] and a right (sometimes optional)[16]of states
against other states and, possibly, individual rights of action. For exam-
ple, the Human Rights Committee[17], the Committee on the Elimination of
Racial Discrimination and the Committee against Torture, all offer indi-
vidual complaint procedures.  However, these conventions are often
subject to reservations.[18]
Nevertheless, this process can be properly called the constitutionalization
of a new body of international law, international human rights law, with
very different presumptions and goals than the now defunct Westphalian
system.[19] This system,[20] an interlocking network of conventions, thus
contributes to the post-Westphalian system of global governance.[21] For
example, the function of the International Bill of Rights - i.e. the UDHR,
the ICCPR and the CESCR - is to change the behavior of states.[22] The
supplementary treaties on race (Convention on the Elimination of Racial
Discrimination - CERD),[23] gender (Convention on the Elimination of All
Forms of Discrimination against Women - CEDAW)[24] and children,[25]
similarly seek to change the behavior of states. National courts regard
the decisions, for example of the HRC, as at least persuasive evidence[26]
of law,[27] and should, and sometimes do, interpret domestic law as neces-
sarily consistent with international obligations.[28]
Thus, the implementation of human rights[29] by the U.N. is one more
functionalist success story. Rather than trying to achieve the immedi-
ately unattainable, the U.N. has consistently, and practically, chosen to
achieve the possible - all the while seeking to expand the reach of the
laws it has sponsored[30] and to ultimately achieve goals which at the time
of promulgation were unattainable. Compare this aspect of functional-
ism to a ratchet: the U.N. has actively pushed incrementally in a single
direction to expand and extend human rights[31] while successfully resist-
ing any reversionary efforts to restrict or push back those human rights
protections already achieved. Thus, while human rights are still far from
secure, the, admittedly limited, protection human rights offer is con-
stantly, albeit gradually, expanding.[32]
While all the above is true, serious limitations to this system still exist.
For example, the conventions generally permit reservations[33] and en-
forcement protocols are usually optional.[34] There are practical reasons
for this, mainly to ensure that as many states as possible[35] will partici-
pate.[36] Permitting reservations and making enforcement protocols op-
tional is defensible because it permits the formation of the opinio juris[37]
needed to create customary[38] and binding international law,[39] of which
the conventions[40] are evidence.
In practical terms, how can the U.N. be said to have "ratcheted" human
rights up? To speak of the "crystallisation" of human rights law is to
describe this process. International human rights law often finds its ori-
gin as universal ideals - not as binding law. These ideals, however, are
expressed in non-binding, universal instruments.[41] This is not merely
hypocritical[42] whitewash of brutal realities: universal, non-binding in-
struments are promulgated in order to form the opinio juris of an interna-
tional custom,[43] which may then ripen into customary law.[44] Further, the
ideals presented in human rights declarations, resolutions and conven-
tions represent moral goals and standards which cannot be resisted be-
cause of their universal appeal and the legitimising power of democracy.
Democracy, or at least popular consent, is theoretically the legitimating
nor[45] sine qua non of almost all regimes. Even the undemocratic are
attracted to universalist human rights ideals. Thus, in practice, interna-
tional human rights norms, such as the Universal Declaration of Human
Rights, [46]are identified in hortatory declarations by the U.N. These hor-
tatory declarations "merely" identify goals - of the entire global commu-
nity.
Paradoxically, however, the non-binding human rights, goals and ideals
thus constitute opinio juris,[47] one element of customary law.[48]States
believe that they "ought" to observe human rights; creating the sense of
obligation required for the opinio juris needed to form customary inter-
national law,[49] which, in turn, is evidenced by states adhering or acceding
to the instruments, and even by their silence in the face of universal
adoption of such instruments.[50]
States at this stage could present objections to human rights. They could
present themselves as persistent objectors,[51]and thus avoid being the
subject of any customary law later developing out of those norms. How-
ever, to be persistent objectors, states must manifest dissent to the inter-
national custom openly, notoriously and objectively.[52] No state can do
this and retain credibility and legitimacy in the international arena. No
state wishes to go on record as favouring torture. No state wishes to af-
firm the inferior status of women. No state will admit to being racist -
because to do so would be to de-legitimate that state, both before its own
people, and before the international community. The idea of human
rights is, in fact, so attractive, that it is literally impossible for all but the
most tyrannical of states to deny their existence and retain credibility as
legitimate expressions of popular will.[53] Thus there are rarely, if ever,
persistent objectors to the normative goals of the hortatory declarations
of human rights.
Human rights are also attractive because of practical reasons. The even-
tuality that a binding norm might arise out of a non-binding one seems so
remote that states did not, and do not, object to hortatory, non-binding
human rights goals. Because states dare not call into question their own
legitimacy; because the remote prospect of future obligation is so slight
as compared to the cost of risking legitimacy; and even for reasons of
power politics, states cannot, and do not, attack the legitimacy of human
rights and thus rarely, if ever, can be seen as persistent objectors.
States support human rights not merely for defensive legitimation pur-
poses but also for the instrumentalist reasons of Realpolitik.[54] Human
rights can be an instrument of foreign policy.[55] The state that supports
human rights has a weapon. That weapon may be weak. It may be read-
ily discarded. However, the weapon of human rights can be wielded in
negotiations which appear, at first glance, to have nothing to do with
human rights or in surprising[56] contexts.[57]  The U.S.-Chinese trade rela-
tions is but one example where, even if human rights are only a pretext
for substantive goals, they are, nevertheless, supported and defended.[58]
No state wishes to renounce a potential tool in its diplomatic toolkit. The
cost of observing most human rights is relatively low. Consequently,
states observe human rights and even claim to promulgate them for rea-
sons of Realpolitik.[59]Conversely, states do not reject human rights
norms, at least as merely hortatory goals, because to do so would deny
them the ability to criticize other states credibly when those other states
violate human rights. However, the Realpolitik of human rights can only
partly validate the realist position because a realist analysis would have
to ignore the role of the U.N., ignoring the facts. Regardless of methodo-
logical disputes, human rights have acquired the opinio juris needed to
ripen into customary law for the above-mentioned reasons.[60] The first
step in the evolution of a binding legal norm from non-binding political
statements is the identification of a universal norm that, even if non-
binding, is universally recognized as a goal to be striven towards.


[1]. ANTONIO CASSESE, supra note 2, at 22.

[2] . Henry J. Steiner & Philip Alston, International Human Rights in Context: Law, Politics, Morals 69, 136 (Oxford Univ. Press, 2d ed., 2000).

[3]. Philip Alston, Final report on enhancing the long-term effectiveness of the United Nations human rights treaty system, Geneva: UN, (1997).

[4].  [European] Convention For The Protection Of Human Rights And Fundamental Freedoms, 213, available at: .

[5]. For example, the [Inter] American Convention on Human Rights, O.A.S. Treaty Series No. 36,  1144  U.N.T.S. 123, entered into force July  18, 1978, available at: .

[6].   Jose E. Alvarez, The New Treaty Makers, 25 B.C. INT'L & COMP. L. Rev. 213, 216-217 (2002) (notes proliferation in treaties and that the proliferation of treaties is accompanied by the rise in international organizations).

[7].   Id. at 217-218 (nearly half of all multilateral treaties developed by the U.N.).

[8].   Elsa Stamatopoulou, The Development Of United Nations Mechanisms For The Protection And Promotion Of Human Rights, 55 WASH. & LEE L. REV. 687, 688-689 (1998). Describes the global U.N. convention system - CEDAW, CAT, ICCPR, CESCR, and CERD.

[9].   Jose E. Alvarez, supra note 46, at 220 (describes formative processes of multilateral treaties).

[10].   Caroline Domrmen, The U.N. Human Rights Regime: Is It Effective? 91 AM. SOCY INT'L L. PROC. 460,466 (1997). (Remarks By Anne F. Bayefsky).

[11].   Id. at 462-463. (Remarks by Thomas Buergenthal, U.N. human rights system of web of treaties, meachanisms and instruments seeking to "ratchet-up" human rights).

[12].   The fact that individuals have rights and duties under international law is so clear that the more interesting question is whether such rights and duties can be implied in the treaty or must be expressly stated. See Jordan J. Paust, The Other Side Of Right: Private Duties Under Human Rights Law, 5 HARV. HUM. RTs. J. 51, 51-52 (1992). Given the state practice of recognizing rights and duties inhering in individuals, and the fact that treaties are to be construed liberally, the better argument is that it is possible to imply an individual right or duty in the terms of a treaty.

[13].   Monica Pinto, Fragmentation Or Unification Among International Institutions: Human Rights Tribunals, 31 N.Y.U. J. INT'L L. & POL. 833, 833 (1999).

[14] .   E.g., ICCPR, art. 40, available at: .

[15] .   E.g. ICCPR, art. 28, available at: .

[16] .   E.g., ICCPR, art. 41, available at: .

[17] .  Caroline Dommen, supra note 50, at 463. (Remarks by Thomas Buergenthal).

[18].  U.S. practice in making extensive reservations to treaties is often criticised. See, e.g., Frederic L. Kirgis, Reservations to Treaties and United States Practice, ASIL INSIGHTS (May, 2003) at: .

[19].  Nigel David White, The United Nations System: Conference, Contract Or Constitutional Order? 4 SING. J. INT'L & COMP. L. 281, 298 (2000).

[20] Claire Moore Dickerson, Human Rights: The Emerging Norm Of Corporate Social Responsibility, 76 Tul. L. Rev. 1431, 1449 (2002) (describes U.N. convention system as democratic global governance).

[21] .   Jose E. Alvarez, supra note 46, at 232-233 (describes world as evolving toward institutions and processes of global governance).

[22] Oona A. Hathaway, Do Human Rights Treaties Make A Difference?, 111 YALE L.J. 1935, 1957-1958 (2002) (describes processes of multilateral treaty making).

[23].   International Convention on the Elimination of All Forms of Racial Discrimination, Mar. 7, 1966, 660 U.N.T.S. 195; available at: .

[24].   Available at: .

[25] .   Deborah E. Anker, Refugee Law, Gender, And The Human Rights Paradigm, 15 HARV. HUM. RTS. J. 133, 134 (2002).

[26] .   E.C.H.R. cited by an Indian court as evidence of a general principle of law: Hussainara Khatoon and Others v. Home Secretary, State of Bihar (1980), 1 SCC 81 (Indian Supreme Court). But see, Jean v. Nelson, 727 F.2d 957 (11th Cir. 1984), aff'd on other grounds 105 S. Ct. 2992 (1985). (Custom not found in conventions, resolutions); Tel Oren v. Libyan Arab Republic, 726 F. 2d 774 (DC Cir. 1984), cert. denied, 470 U.S. 1003 (1985). Cf Fernandez Roque v. Smith, 622 F. Supp. 887 (ND Ga. 1985) modified sub nom. Femandez-Roque v. Meese, 781 F.2d. 1450 (11 th Cir. 1986). See also, Ishtyaq v. Nelson, 627 F. Supp. 13 (EDNY 1983) and Soroa-Gonzalez v.Civiletti, 515 F. Supp. 1049 (ND Ga. 1981); THEODOR MERON, supra note 3, at 126.

[27].   Caroline Dommen, supra note 50, at 463. (Remarks by Thomas Buergenthal).

[28].   See, e.g., Ram Chand Birdi v. Secretary of State for Home Affairs (1975) 61 INT'L L. REP. (UKCA) 250 (1981). Holding that courts must interpret national laws to be consistent with prior international laws because the national legislature is presumed to legislate with international obligations in mind.

[29].  Jennifer A. Downs, A Healthy And Ecologically Balanced Environment: An Argument For A Third Generation Right, 3 DUKE J. COMP. & INT'L L. 351, 361 (1993). Acceptance of human rights into international law occurred via acceptance of UDHR as customary international law, and the Covenant on Civil and Political Rights, and of the Covenant on Economic, Social, and Cultural Rights.

[30].  E.g., art. 2 of the ICESCR links human rights protection to economic development and imposes a duty on states to augment the protection of human rights as the state's economic capacity increases.  Each State Party to the present Covenant undertakes to take steps, individually and  through international assistance and co-operation, especially economic and technical, to  the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. Available at: .

[31].  E.g., art. 12 of the ICESCR states, "1. [t]he States Parties to the present Covenant recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health." Thus, as technology improves, so does the obligation of the state. Available at: .at 5, U.N. Doc. A/54/49 (Vol. 1) (2000).

[32].  The obligation of states under the conventions is clear - not merely guaranteeing existing human rights but also affirmatively seeking to augment the level of protection. E.g., art. 13 of the ICESCR mandates the progressive introduction of free public higher education, not merely primary and  secondary  education, but also university and technical training. Available at: .

[33].  With exceptions, e.g., the Optional Protocol to CEDAW specifically prohibits reservations to the protocol. Art. 17, CEDAW Op. Prot. (G.A. res. 54/4, annex, 54 U.N. GAOR Supp. (No.49)

[34].  See, e.g., International Covenant on Civil and Political Rights, Dec. 16, 1966, Optional
Protocol, 999 U.N.T.S. 302.

[35] .  Jennifer A. Downs, supra note 69 (ICESCR and ICCCPR are binding law).

[36].  Monica Pinto, supra note 53, at 836. adopted by such organisations, and in the consent of states to such instruments." THEODOR MERON, supra note 3, at 42, citing Nicaraguan (Nicaragua v. U.S.) merits, 1986 ICJ Rep. 14 (Judgement of 27 June).

[37].  Opinio juris is found in "verbal statements of governmental representatives to international organisations, in the content of [U.N.] resolutions, declarations, and other normative instruments

[38].  It must be remembered that customary law is binding upon states, even those states which regard treaties as non-self executing. Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.) supra note 77.

[39].  N.b.: customary international law is, unlike treaty law, regarded by the United States as self-executing. This also explains the vitality of customary international law even in this era of conventional systems such as the WTO and UN. Jordan J. Paust, Customary International Law And Human Rights Treaties Are Law Of The United States, 20 MICH. J. INT'L L. 301, 336 (1999).

[40].  Opinio juris can arise out of U.N. General Assembly resolutions and Conventions. MERON, supra note 3, at 86.

[41].  Thus the conventions are open to all U.N. member states, state parties to the statute of the
ICJ, and any other state the General Assembly of the U.N. invites. E.g. ICCPR, art. 48 and ICESCR, art. 26, available at: .

[42].  There is, of course, plenty of hypocrisy in international relations. See, e.g., GABE VARGES, THE NEW INTERNATIONAL ECONOMIC ORDER LEGAL DEBATE, 1 (Peter Lang, Frankfurt 1983).

[43] The North Sea Continental Shelf Cases (FRG/Den.; FRG Neth.), 1969 ICJ Rep. 3, 44
(Judgment of 20 Feb.) stated that international law defines custom as a universal or near universal state practice coupled with a sense of legal obligation.

[44] But Bin Cheng, argues against the transformationist thesis that international custom can be constituted from international conventions. Bin Cheng, Custom: The Future of General State Practice in a Divided World, in THE STRUCTURE AND PROCESS OF INTERNATIONAL LAW: ESSAYS IN LEGAL PHILOSOPHY DOCTRINE AND THEORY 515 (R. Macdonald, D. Johnston eds.,1986).

[45] The right to democracy is also guaranteed in the U.N. convention system. Thus, e.g. art. 21, art 25 (a) ICCPR, art. I ICESCR, art. 4 ICESCR.

[46] Richard Klein, Cultural Relativism, Economic Development And International Human Rights In The Asian Context, 9 TOURO INT'L L. REV. 1, 2 (2001) (rise of human rights a conscious rejection of the former state system due to world wars).

[47] Some argue, erroneously, that opinio is logically the only element needed to constitute international custom. See Bin Cheng, supra note 84, at 530-531.

[48] .   Other elements than opinio juris and practice may be needed to form customary international law. In describing national customary law, the eminent Judge Blackstone noted that custom must: "(1) have been 'used so long, that the memory of man runneth not to the contrary;' (2) be continued without interruption; (3) be peaceably acquiesced (4) be reasonable; (5) be certain in its terms; (6) be accepted as compulsory; and (7) be consistent with other customs." Jo Lynn Slama, Opinio Juris In Customary International Law, 15 OKLA. Crry U. L. Rev. 610 (1990).

[49] .   Ivan Poullaos, The Nature Of The Beast: Using The Alien Tort Claims Act To Combat International Human Rights Violations, 80 WASH. U. L.Q. 327, 333 (2002) (custom with opinion juris can ripen from mere practice into international customary law).

[50] Customary law can evolve "without express universal consent." Jo Lynn Slama, supra note 88, at 626.

[51] Custom may arise out of acquiescence by non-signatories, i.e. absence of objective objection. THEODOR MERON, supra note 3, at 89.

[52] The principle of the "persistent objector" in international law provides that a state is not
bound to a rule of customary law where it has expressly and persistently objected to that rule. Jo Lynn Slama, supra note 88, at 627.

[53] Paul W. Kahn, American Hegemony And International Law Speaking Law To Power:
Popular Sovereignty, Human Rights, And The New International Order, 1 CHI. J. INT'L L. 1, 12 (2000) (all modern states combine democracy and human rights).

[54] Daniel W. Drezner, On The Balance Between International Law And Democratic Sovereignty, 2 Cm. J. INT'L L. 321 (2001) (notes the Realpolitik nature of human rights law).

[55] For example, President James Carter made human rights a key plank in his foreign policy. Harlan Cleveland, Introduction: The Chain Reaction of Human Rights, in HUMAN DIGNITY: THE INTERNATIONALISATION OF HUMAN RIGHTs IX (Alice Henkin ed., 1979).

[56] William C. Plouffe, supra note 38, at 79; also see Lois E. Fielding, Taking The Next Step In The Development Of New Human Rights: The Emerging Right Of Humanitarian Assistance To Restore Democracy, 5 DUKE J. COMP. & INT'L L. 329 (1995) (supporting humanitarian intervention in Haiti).

[57] See, e.g., Lisa L. Bhansali, New Customary Law: Taking Human Rights Seriously? 87 AM. SOCY INT'L L. Proc. 229, 240 (1993) which discusses a case where two rival warlords in the horn of Africa were intent on mutual destruction without regard to civilian casualties until the reality that as a consequence whoever would win would have no credibility in the outside world.

[58] .  For a concise compelling account of the use of human rights in statecraft verifying the customary nature of international human rights instruments including the UDHR and the ICCPR, see Louis B. Sohn, supra note 5, at 16.

[59] Thus, for example, U.S. foreign policy is unilateralist only when unilateralism serves U.S. interests.

[60] Even the U.S. recognizes that non-binding norms may evolve into custom. "[N]orms ...
may ripen in the future into rules of customary international law." H.R. Rep. No. 102-367, at 4
(1991), reprinted in 1992 U.S. C.C.A.N. 84, 86.



 楼主| 发表于 2/7/2018 00:08:18 | 显示全部楼层
B. ENFORCEMENT OF GLOBAL NORMS: STATE PRACTICE
Opinio juris is, however, only one element of customary international
law. The other aspect is state practice. In order for a custom to become
binding law, it must, in practice, be obeyed and be considered obligatory.
At least within the developed world, the norms of international human
rights law are, generally, already observed in domestic law. Further, the
U.N. has created a series of conventions which also reflect an increasing
practice of states recognizing international human rights. The ICCRP[1]
and ICESCR,[2] as well as the CEDAW and CAT, include optional en-
forcement clauses or optional enforcement protocols. It is through these
conventions and the practice of national law that the praxis required to
support the finding of a customary law can be recognized.
This two-step approach to human rights shows why the U.N. conventions
can be seen as operating as a "ratchet." This approach also has the ad-
vantage that, over time, it may lead to the crystallisation of a customary
rule in international law, going further than that of the treaty norm to
bind non-parties, also.


[1] International Covenant on Civil and Political Rights, Dec. 16, 1966, Optional Protocol, 999 U.N.T.S. 302.

[2] International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966 993 U.N.T.S. 3.



 楼主| 发表于 2/7/2018 00:26:03 | 显示全部楼层
C. INDIVIDUAL RIGHTS
Determining who has a claim to a right, the state or an individual, is as
important in the genealogy of rights as determining the content of that
right. Further, in practice, the question "who has a right" is logically
antecedent to the question "what right exists." Sometimes the U.N. con-
ventions (ICCPR, ICESCR, CEDAW, CAT, CERD etc.) recognize rights
already inhering in individuals, which they may now enforce against
states, sometimes the conventions merely create duties on the part of
states toward each other.
The question whether, and when, individual legal rights or duties shall be
recognized turns on the goals of international law and whether such
rights and duties hinder or help achieve those goals. The primary goal of
international law is to impose order.[1] Order does not necessarily entail
justice. The primacy of legal order is generally justified for practical
reasons: without order there can be neither peace, nor justice. Conse-
quently, claims of individual justice are generally secondary in the inter-
national hierarchy of norms to claims of order. But is that view entirely
correct?
In fact, claims for justice may strengthen the international legal order.
That is, a claim for justice and a fact of order are generally mutually rein-
forcing. While it is true that order and peace are necessary prerequisites
to justice; peace and order are also consequences of justice. Thus, a just
system is also orderly, but an orderly system is not necessarily just. Fur-
thermore, a tyrannical order is inherently unstable. At some point, re-
pression gives way to resistance and rebellion. Thus, where claims of
justice and order are mutually reinforcing, the international legal system
will seek to impose not only order, but also justice.
This argument is based on the general principle that law is logically
structured (both by principles of hierarchy and symmetry); is guided by
practical reasoning; and follows a teleology favoring peace and prosper-
ity. Thus, the international legal system may even be said to defend jus-
tice when its defense does not hinder the maintenance of order. That
may be the case of humanitarian intervention or of the right to national
self-determination. Granting individuals a legal right to a remedy for
violations of human rights will discourage tyrannical orders from violat-
ing human rights, thereby assuring that the stability of the international
order is not founded on terror. Rather than insuring the false stability of
tyrannical orders, the international system protects individuals against
injustice by according them protections against the most egregious viola-
tions of international jus cogens norms. International law sees order as a
general precondition for peace and prosperity. However, this general
principle does admit some exceptions, and its telos, peace and prosperity,
explains the limits of the principle that the international system seeks to
create and maintain a stable, peaceful and prosperous world order.
Recognizing that individuals have rights and duties under international
law is not only contemporary practice, it is also logical. This transforma-
tion - from a system predicated on maintaining order prior to justice,
toward a system predicated on justice in order to preserve order - can be
seen in the third-generation rights[2] to democracy, peace and develop-
ment.[3] It can also be seen in the rights to humanitarian assistance[4] and
humanitarian intervention. It can even be seen in the right to national
self-determination.[5] While that transformation is far from complete, it
is clear that the international system is moving from a logic of "order
will ensure peace and eventually obtain justice" to a logic that "justice
will encourage peace." As the international system moves toward justice
as its primary goal, and away from order as its primary goal, any preten-
sions that the world is still Westphalian become increasingly untenable.
Recent case law is increasingly recognizing that both natural and legal
persons can owe duties under international law toward other individuals
(Flick;[6] Krupp), [7] or even have rights against individuals (Marcos[8];
Alien Tort Claims Act) which arise out of the law of nations, both in
civil (Kadic v Karadzic).[9] and penal law (Eichmann).[10] These cases
show the resolution of tension between state and individual claims and
the evolution of binding custom from non-binding hortatory declarations.
According rights and duties to individuals, with corresponding remedies,
will serve the goal of achieving and maintaining a just, and thus stable,
international order.
Despite limitations on the protection of human rights, the U.N. conven-
tion system does protect individual rights by granting a remedy to both
states and non-state actors. Note that these protections are constantly
expanding. The U.N. convention system constitutes part of an interna-
tional system of global governance[11] using functionalist methods, which
breaks from the Westphalian model of states as hermetic monopolists of
legitimate authority. For, under the Westphalian system, only states
could have rights and duties under international law, and could not be
held accountable for their acts vis-ai-vis their subjects within their bor-
ders. These treaties, in contrast, recognize rights inhering in individuals.
This constitutes more evidence of the fact that the international system
has definitively broken from the Westphalian system to create institu-
tions of global governance, a fact which is also proven by the prolifera-
tion of treaties by intergovernmental organizations changing inter-state
relations since 1945.[12]
The principle of sovereignty has declined at exactly the same moment as
the principle of human rights has risen. How do these facts influence our
theoretical perspective?


[1] T]he goal of international law-namely the achievement of a stable, just international order." Lucas W. Andrews, Sailing Around The Flat Earth: The International Tribunal For The Former Yugoslavia As A Failure Of Jurisprudential Theory, 11 EMORY INT'L L. REv. 471, 513 (1997).

[2] Gudmundur Alfredsson, The United Nations And Human Rights, 25 INT'L J. LEGAL INFO. 17,21 (1997).

[3] J. Oloka-Onyango, Human Rights And Sustainable Development In Contemporary Africa: A New Dawn, Or Retreating Horizons? 6 BUFF. HUM. RTS. L. Rev. 39, 43 (2000).

[4] The right to humanitarian intervention is attributed to Grotius and can be traced even further back to Suarez. "The 1579 Vindiciae Contra Tyrannos asserted that 'it is the right and duty of princes to interfere in behalf of neighbouring peoples who are oppressed on account of adherence to the true religion, or by any obvious tyranny,"' W. DUNNING, A HISTORY OF POLITICAL THEORIES FROM LUTHER To MONTESQUIEU, 55 (1905).

[5] U.N. Charter arts. 1, 2, 55.

[6] U.S. v. Flick and Others, 9 WAR CRIMES REPORTS 1.

[7] U.S. v. Krupp and Others, 10 WAR CRIMES REPORTS 69.

[8] .  In re Estate of Ferdinand E. Marcos Human Rts. Litia., 978 F.2d 493 (9th Cir. 1992).

[9] Kadic v. Karadzic (Part III: Justiciability) discusses in detail the requirements of the political question doctrine. Note that in Kadic no political question was found. Kadic v. Karadzic, 70 F.3d  232   (2d  Cir. 1996),  cert. denied 518  US    1005  (1996) available at:

[10] .  Interestingly, Eichmann is not the only case where a national was kidnapped in a foreign state by a prosecuting state but had no remedy because the remedy was held by the state where he was kidnapped. See Crim. 4 juin 1964, Argoud, JCP. 1964, II, 13806, rapport Comte (France: Cour de Cassation, Chambre Criminelle). See also, Brigette Belton Homrig, Abduction As An Alternative To Extradition--A Dangerous Method To Obtain Jurisdiction Over Criminal Defendants, 28 WAKE FOREST L. Rev. 671 (1993). Manuel Noriega also complained of abduction in U.S. v. Noriega, 117 F.3d 1206, 1222 (1 Ph Cir. 1997) - and just as unsuccessfully.

[11] Uhich K. Preuss, The Force, Frailty, And Future Of Human Rights Under Globalisation, I THEORETICAL INQUIRIES L. 283, 304 (2000) (argues that the international community is in transition from nation state to global community).

[12] Jose E. Alvarez, supra note 46 at 216, available at:



 楼主| 发表于 2/7/2018 00:39:57 | 显示全部楼层
III. THE UNIVERSALITY OF HUMAN RIGHTS[1]
The idea of human rights is, at first glance, a vague and ambiguous con-
cept.[2] For this very reason, though, the idea has a universal appeal,
being all things to all men. Though problematic,[3] the claim of human
rights to universalism is valid - and indeed globalism and universalism
can, in theory, be complementary movements and certainly correlate in
practice.[4] Humanists point to the common needs and aspirations of all
persons as evidence of a common humanity, which is the foundation of
universal rights. This humanist ideal has undergone much historical de-
velopment over time. Is the idea of human rights universal, and if so, in
what sense? If, and only if, human rights are universal, can they be a
pillar of the post-Westphalian order. Furthermore, because the historical
transformations in the conception of human rights influence the positive
law, they condition, limit, and even direct the content of the law.
The imputation of legal rights and duties to individuals under interna-
tional law often occurs via human rights. However, while human rights
are a key feature of the post-Westphalian state system, human rights will
only be a stable structural element of that system if they are, in fact, uni-
versal.[5] Despite theoretical confusion[6] and cultural clash,[7] which
obscure their sources,[8] resulting in difficulty in defining rights,[9] the
idea of human rights is indeed universal. Consequently, human rights
can impute rights and duties to non-state actors and will be a key feature
of the post-Westphalian order.[10]
Our first demonstration of the universality of human rights[11] is a nega-
tive proof. The universality of human rights is, in fact, demonstrated by
the very existence of these debates. Were human rights not an idea with
universal aspects, these debates would not exist. However, merely ac-
knowledging a universal concept of "human rights" does not help deter-
mine what that concept is, and whether that concept is also universal.
Fortunately, this negative proof[12] of the universality of human rights is
not the only one available. A more ambitious, affirmative demonstration
of the universality of human rights is also possible;[13] founded upon a
neo-Aristotelian understanding of human nature. This understanding
(unlike Aristotle), which posits a mutually reinforcing relationship be-
tween human rights and the rule of law,[14] also posits gender and racial
equality. But this relationship is not determined by the formal legalism
of the methods of the rule of law. Rather it is determined by the substan-
tive achievements of human rights - i.e. whether those rights function as
a means to obtain and secure what Aristotle termed "the good life.[15]
Human rights are, thus, a means to the end of political society, which
insure and obtain not merely life, but the good life, for the members of
the polity.[16] For this reason, human rights are universal.[17]All humans
have universally common capacities, needs, desires, and an interest in
prospering. Human rights are the means to a universally desired end.
While admitting variation for practical reasons, a common teleology en-
sures that certain core elements are universal.
Finally, a pragmatic argument for the universality of human rights is also
possible. Looking at positive law, the universality of human rights is a
legal fact recognized by international law.[18] This argument, like the first
argument that human rights must exist since everyone is talking about
them, is not, alone, particularly strong. Even tyrants assert the justice of
their tyranny. However, the negative argument and the practical argu-
ment complement and strengthen the teleological argument. This argu-
ment can be further strengthened by inquiring into the nature of rights.


[1] Some argue that the incoherence within human rights is inherent in the concept of human rights and not merely due to cultural splits. Ruti Teitel, Human Rights Genealogy, 66 FORDHAM L. REV. 301, 302 (1997) (arguing that the dualisms and ambiguity of international human rights law can be resolved via resort to history).

[2] John King Gamble, Teresa A. Bailey, Jared S. Hawk, Erin E. McCurdy, Human Rights Treaties: A Suggested Typology, An Historical Perspective, 7 BUFF. HUM. RTS. L. REV. 33, 34 (2001) (ineluctability of human rights).

[3] For a discussion of how human rights may be a tool of western imperialism see JOHAN GALTUNG, THE UNIVERSALITY OF HUMAN RIGHTS REVISITED: SOME LESS APPLAUDABLE CONSEQUENCES OF THE HUMAN RIGHTS TRADITION IN HUMAN RIGHTS IN PERSPECTIVE 152 (Asbjorn Eide, Bernt Hagtvet, eds. 1992) (arguing that human rights are not only a key to liberation but also a vector of state control).

[4] PETER FITZPATRICK, GLOBALISATION AND THE HUMANITY OF RIGHTS 2000 (1) Law, Social Justice and Global Development (LGD) at:  (arguing that globalism, like human rights, is a universalist ideology and, thus globalism permits human rights to escape the limits of the nation state).

[5] .  The universality debate has been presented as a "clash of civilisations" (describing the debates between the 'politics of universalism' and the 'politics of difference.' and 'identity politics' in international criminal law on the basis of group affiliation). Martha C. Nussbaum, In Defense Of Universal Value, 36 IDAHO L. REV. 379, 447 (2000).

[6] Brenda Cossman, Reform, Revolution, Or Retrenchment? International Human Rights In The Post-Cold War Era, 32 HARV. INT'L L.J. 339, 340 (1991) (rights are superior in the hierarchy of norms because they are universal in space and time).

[7] Jennifer Nedelsky, Communities Of Judgment And Human Rights, 1 THEORETICAL INQUIRIES L. 245 (2000) (universality debate must be seen as a discourse between different communities).

[8] Makau Wa Mutua, The Ideology Of Human Rights, 36 VA. J. INT'L L. 589, 589-590 (1996) (human rights are ambiguous as to their scope, content, and philosophical bases).

[9] John King Gamble, et al., supra note 116, at 34 (ineluctability of human rights).

[10] ANTONIO CASSESE, supra note 2 at 51 (argues that universality is a myth).

[11] The concept of the universality of human rights is based on the notion that: (a) there is a universal human nature; (b) this human nature is knowable; (c) it is knowable by reason; and (d) human nature is essentially different from other reality." Yash Gha, Universalism And Relativism: Human Rights As A Framework For Negotiating Interethnic Claims, 21 CARDOZO L. REV. 1094, 1096 (2000) available at: .

[12] Another negative proof is the fact that while the contents of the rights are disputed their existence is not. Some even go so far as to venture to isolate a "common core" of human rights at the global level reflected from national law. See L. Amede Obiora, Reconstituted Consonants: The Reach of A "Common Core" Analogy In Human Rights, 21 HASTINGS INT'L & COMP. L. REV. 921, 955 (1998).

[13] . ANTONIO CASSESE, supra note 2 at 64 (argues for the existence of a common core of human rights recognized globally).

[14] SAMUEL HUNTING, THE CLASH OF CMLIZATIONS AND THE REMAKING OF WORLD ORDER, 70 (Simon & Schuster 1996).

[15] E.g., Aristoteles, Nikomachische Ethik, Buch I, Kap. 2, 3, 5. Available at:

[16] ARISTOTLE, POLITICS (c. 350 b.c.) Book I, Part H, available at:

[17] It is also for this reason that human rights are inherently cosmopolitan and international. Robin West, Is The Rule Of Law Cosmopolitan?, 19 QLR 259 (2000).

[18] Elsa Stamatopoulou, supra note 48, at 692.



 楼主| 发表于 2/7/2018 01:14:01 | 显示全部楼层
Cicero,[1] and later Aquinas,[2] argues that, only laws which are founded in morality or rationality, are valid.

[1] CICERO, THE REPUBLIC at III, XXII (Loeb Classical Library, 1950)

[2] THOMAS AQUINAS, SUMMA THEOLOGICA, SECUNDA SECUNDAE PARTIS §57 (Right).



 楼主| 发表于 2/7/2018 01:51:45 | 显示全部楼层
A. RIGHTS AND Duties
Are human rights an inherent and inalienable consequence of humanity?
Or, are human rights essentially conditioned on acquiescence in, or per-
formance of societal duties? To some extent, this is a false dichotomy.
For every right, there is a corresponding duty.[1] If I have a right to life,
you have a duty not to kill me. Nonetheless, this debate persists. Be-
cause to say, simply, that rights and duties are two sides of the same
coin, does not tell us exactly what those rights and duties are. It also
does not tell us how to resolve doubtful cases where rights and duties are
in conflict. However, when questioning whether the third world believes
in human rights, it may help to remember that the third world sponsored
"New International Economic Order" (NIEO) by a resolution before the
U.N. General Assembly NIEO[2] in 1974,[3] proposing a charter of eco-
nomic rights and duties.[4] Third world scholars accept the idea of eco-
nomic development, one of the keystones of modernity, as the sine qua
non of existence.[5]
The question whether rights arise from duties reflects the north-south
debate. Representing the global south, Asian[6] schools of thought,[7]
whether Islamic[8] Hindu,[9] Confucian,[10] or Buddhist, [11] tend to see not
rights, but rather duties as primary, and to recognize rights only as a con-
sequence of duty fulfilled.[12] In contrast, western schools of thought,
notably ius naturale,[13] tend to see the foundation of human rights on
certain inalienable, inherent capacities of humans,[14] generally speaking
rationality, though Christian theologians[15] would combine that theory
with the idea that that rationality is a reflection of divine perfection.[16]
Ius naturale is generally contrasted with positivism,[17] not only in na-
tional law but also in international law.[18] That split can also be traced to
the treaty of Westphalia.[19] However, the opposition of positivism to
naturalism is usually inexact, and often leads to confusion.[20]
As Sohn concisely demonstrates, the split between positivism and natural
law is a false dichotomy. Positive law and natural law can be comple-
mentary.[21] Per Sohn, this is because natural law concerns those inalien-
able rights, whereas positive law concerns alienable rights.[22] Sohn fur-
ther draws the logical conclusion that those elements of international law
which are jus cogens are a reflection of natural law, whereas those hu-
man rights that are derogable are a reflection of positive law.[23] This, of
course, could be an extension of Aristotle. For Aristotle, nature (physis)
concerns that which is unchangeable (i.e. natural law), that which cannot
be otherwise; nature is to be contrasted, per Aristotle, from tekhne (gr.)
or arte (lat.), that which can be other than it is (i.e. man made, or positive
law). For Sohn, natural law concerns the unchangeable and positive law
that which is variable.
Rubin also accurately described the same splits[24] as Sohn. However,
unlike Sohn, Rubin does not appear to synthesize them. Whether Rubin
realises it or not, determining where one stands on these splits is a matter
of science, not opinion. A scientific position is an objective reflection of
material facts, not a subjective expression of feelings.
The science of law is sometimes challenged, though generally only im-
plicitly, by post-modem denials of the existence of objectivity, truth, and
in ultimo, western culture (its existence or values). Post-modernism can,
however, pose radical questions: such as, why roughly 80 percent of the
world controls roughly 20 percent of global resources, and whether war
is inevitable. However, in rejecting objectivity, and thus knowledge,
post-modernism throws out the good with the bad. Because of its pre-
sumptions, post-modernism cannot benefit from the earlier work of any
social theory. For the post-modernist, objectivity does not, and cannot,
exist. Taking the post-modernists seriously is difficult: their presump-
tions are contrary to common sense. However, one must take post-
modernism seriously, because the post-modernists' denial of basic pre-
sumptions of modernity such as objectivity, science, and progress, per-
mits them to pose serious questions. However, the rejection of the pre-
sumptions of modernity prevents post-modernists from formulating co-
herent answers to the fundamental questions posed.
Returning to the natural law/positivism dichotomy, the usual supposition,
of an opposition between positivism and naturalism, is also inapposite
for less brilliant reasons than Sohn provides. For example, a naturalist
theory, such as Hobbes' theory, proposes that natural law is nothing
other than the law of the jungle, that is, the law of the strong, survival of
the fittest.[25]An alternate school of ius naturale, put forward most fa-
mously by Cicero,[26] and later Aquinas,[27] argues that, only laws which
are founded in morality or rationality, are valid. The author regards the
former theory (Hobbes) as natural law (per Hobbes, lex naturale), and
the latter (Cicero and Aquinas) as natural justice. Both are branches of
ius non scripta.
Just as there is a descriptive and prescriptive theory of ius non scripta
(natural law and natural justice respectively) there are also descriptive
and prescriptive versions of positivism. Descriptive positivism limits
itself to describing law as it is. Prescriptive positivism does not prescribe
what the law should be; rather, it describes what it perceives as correct
methods of legal science. Kelsen,[28] following Weber[29] is an example of
a prescriptive positivist. Much of the supposed conflict between positiv-
ism and naturalism can be resolved by correctly understanding which
strand of theory is being considered. Prescriptive theories of natural law
are, necessarily, in conflict with prescriptive theories of positivism.
Purely descriptive theories however cannot be in conflict methodologi-
cally, since they only claim to describe reality as it is.
As Nigel Purvis notes, the claim that positivism is purely descriptive
explains some of its success in capturing the legal imagination.[30] Most
natural law theories, with the notable exception of Hobbes,[31] are, in fact,
theories of natural justice, and, as such, are prescriptive. However, Pur-
vis, like many others, may be underestimating the methodological diffi-
culties which plague naturalism due to an all too common failure among
natural law theorists to clearly distinguish prescription from description.
Since a descriptive positivism has a more limited task than a prescriptive
naturalism, it necessarily generates a simpler theory, which is less open
to criticism. However, this theory is descriptively incomplete (no cogni-
tion of whole entities, i.e. the sum is always equal and never greater than
its parts thus no synergies)[32] and is, essentially, powerless (except in its
implicit affirmation of the status quo) because it does not prescribe.
Positivism, like "realism," pursues a much less ambitious theoretical
objective than naturalism or holism, but for this very reason, it is also
less influential. In contrast, when naturalist and holist theories fail, their
failures tend to be glaringly obvious, even spectacular, due to "pure"
eidetic noesis, i.e. philosophical idealism divorced from material reality.
Positivist theories, in contrast, are confined to safer positions.[33]
Methodologically,[34] the split between positivism and naturalism tracks
and parallels the splits between materialism and idealism, between atom-
ism and holism, and between realism and transformationism. However,
though materialism, atomism, positivism and realism tend to be reinforc-
ing, and though historically holism and idealism are usually associated
with each other, the connection of these different theories to each other is
not a necessary one. This author, for example, takes a holistic, material-
istic view that compels him to a transformationist theory. Hobbes, in
contrast, is a materialist atomist who, however, takes a position of natural
law, though his "natural law" is in fact, the law of the jungle![35] Only by
expressing these theoretical differences, and clearly delineating them,
can post-Westphalian theorists hope to transcend the failures and limita-
tions of the Westphalian state theory.
This relationship between positivism and natural justice contextualizes
and guides this paper's theory of human rights. The rights and duties
theories appear at first to present a fundamentally irreconcilable duality.
However, though there are mutually exclusive dualities, there are also
dualities which are, in fact, not absolutely opposite and mutually exclu-
sive (discontinuous entities), but rather which are different, not in kind
but in degree. Such dualities are continuous entities.[36] Logically, a ma-
terialist atomist must believe that the universe is discontinuous, since
only discontinuous entities resolve into discrete elements. Similarly,
holists usually see the universe as a continuity, where each microcosm
reflects the macrocosm (the aporie of light as both a particle and wave
may be a useful analogy or model to understand this problem). How-
ever, for this reason atomists, perhaps unknowingly, reiterate Pythago-
rean theories which mathematics has long rejected. Suppose, however,
that mathematical representation is not an arbitrary, pure, formal system
(though that is in fact the assumption of contemporary mathematics).
Suppose, instead, that mathematical representation, rather than being an
arbitrary and purely formal system, is somehow a reflection of material
reality. Now, clearly irrational numbers such as radical two exist, the
ratio between a hypotenuse and one of the equilateral legs of a right equi-
lateral triangle is, in fact, radical two. However, the decimal representa-
tion of this ratio is non-terminating and non-repeating. This implies that
the holist representation of material reality is correct, and that the atomist
representation is incorrect, because, if a line segment could be split into
atoms, then ratios, such as radical two, could be represented as whole
numbers, or at least as whole fractions. The holist theory appears to be
more accurate here because it permits a representation of a ratio of two
wholes, which, though paradoxical, clearly exists. In contrast, the atom-
ist representation of discrete digital numbers cannot adequately describe
this ratio. A similar analysis also holds true for pi, namely the ratio of a
circumference of a circle and the radius of a circle. There, however, the
ratio is complicated by the fact that a circumference is a curve. There-
fore, the example of radical two is easier to illustrate the limitations of
atomistic thinking.
If ideas are merely a reflection of material reality, and not an abstract
model divorced from material reality, then the atomist model, that the
universe can be divided into ultimate discrete elements which cannot be
further subdivided, and which serve as the fundamental basis of analysis,
is incorrect. An ever-smaller point can always be imagined. This is why
geometry presumes that any line segment is made of an infinite number
of points. Atomists, in contrast, presume that the process of division
must end somewhere. But assuming the opposite position, that the uni-
verse is a discontinuous whole, presumably, as in integral calculus, the
possibility of an infinite series converging upon a limit. The presump-
tion of continuity, which, like radical two is paradoxical, is consistent
with holism, and leads to empirically verifiable, and useful, conclusions.
The presumption of discontinuity leads to contradiction. Consequently,
the holist position is again better able to represent reality and is probably
more correct than the atomist position. This argument, of course, relies
on the materialist presumption that ideas reflect material reality, and do
not exist independently of material reality. It also relies on the presump-
tion - which, again, is not the presumption of modem mathematics - that
mathematics, like any idea, is a reflection of material reality, and thus,
not a purely formal system.
Pointing out the mathematical deficiencies in atomism does not say there
is no place for analysis in scientific thought. It is intended, rather, to
temper the role that such analysis is given in a comprehensive theory.
Obviously, both continuity and discontinuity have their place in mathe-
matics. The fact that holism can consistently integrate atomism as a spe-
cial theory, and maintain the presumptions of holism as a general theory,
explains why it is the more powerful theory, despite the risks inherent
either in complex theorization or normative prescriptions. Those risks
are inevitable in law.
How is this understanding of continuity at the theoretical level pertinent?
The contradiction between rights theories ("western" theories) and duties
theories ("eastern" theories) of human rights is only apparent. Both
western and eastern schools of thought are elements in a continuity, as
both are linked by the common element, humanity. As expressions of
degrees of continuity, these apparent opposites are, in fact, reconcilable.
Looking at western thinkers, when exploring the thoughts of Plato, he
clearly postulates duties as primary in his Republic.[37] To the extent that
Aristotle acknowledges the idea of "right" (and thus of "rights"),[38]he
posits them as a consequence of human rationality.[39] But Aristotle's
conception of rights is balanced by his understanding of the inherently
social nature of humans. For Aristotle, like Rousseau,[40] the state finds
its origins in the family and it, unlike its individual members, the state
(an extended family) is self sufficient. Because the state is self-
sustaining, it has priority over any one of its members.[41] Thus, Aris-
totle's conception of rights, like Rousseau's, would necessarily contextu-
alize rights by the society in which they are found. Indeed, it is only
relatively late in western thought that Locke presented the possibility of
rights divorced from society. Locke's labor theory of value permits an a-
social man, because property, according to Locke, is not a social relation,
but the consequence of individual labor[42]- which is empirically defensi-
ble (as well as being the position of Karl Marx)[43] unlike the subjective
theories of value offered by Rothbard[44] and Mises[45] or the post-
modernists. Admittedly, roots of theoretical atomism can also be found
in Hobbes,[46] and even Rousseau.[47] But it is only with Locke that the
individual can be divorced from society, because property is now a prod-
uct, not a relation.[48] However for Aristotle[49] and Rousseau[50] the
autonomous, autarchic, and thus independent, human of the social con-
tract postulated by Hobbes[51] and Locke, in any of the various shades of
that theory, is simply impossible.[52]
Yet, though the social contract is not a historical fact, and the state of
nature[53]an impossible fiction. Social contract theory appears to have
influenced realist state theory. This theory sees the state as self-
sufficient, but living in the state of nature as to other states,[54] and, as
such, having only one law, the law of the strongest. This "vision"
(nightmare seems more exact) is every bit as unrealistic as the social
contract theory, which appears to have spawned it and, like social con-
tract theory, must be rejected for empirical reasons: it does not corre-
spond to material reality. Social contract theory and realist state theory
do not even have much heuristic utility, for the presumptions of these
theories are so contrary to fact that they cannot provide even an ap-
proximate or simplified view of how states are actually formed, or actu-
ally behave.[55]
A credible argument can be made that, in pursuing the autarchic indi-
vidualist ideal of enlightenment, western society sowed the seeds of its
own deracination and alienation, as Marx noted.[56] Still, while there are,
certainly, real points of divergence, even within western theories of
rights, the fact is both west and east see individual rights as a conse-
quence of rationality, and as implying, or even being grounded upon,
social duties i.e. as a consequence of a commonality and personhood.
Consequently, they can serve a key role in the post-Westphalian world.
Turning from legal theory to legal practice, again, western theory does
not ignore duties. For example, the first part of the state constitution of
the Free Hansa State Bremen is entitled "Fundamental rights and du-
ties.[57] The East German Constitution granted both a right and duty to
work.[58] Again, in the Swiss Federal Constitution, the duties are also
underlined.[59]This is not limited to the German-speaking world. The
French constitution also speaks of rights and duties as concomitant. [60]


[1] Mahatma Gandhi, from Yervada Mandir(1930), excerptat: ; H.R. Khanna, Rule of Law, 4 SCC JOUR. 7 (1977) available at: . This principle has also been recognized in the case law. See, e.g., Medical Review Committee v. Lim, 8 MAN. R. 2d 407 (Q.B. 1981). (Canada, province of Manitoba).

[2] GABE VARGES, supra note 82, at 5.

[3] CLAUDE NIGOUL, MAURICE TORRELLI, LES MYSTIFICATIONS DUNOUVEL ORDRE INTERNATIONAL, 105 (Paris: PUF 1982).

[4] See GABE VARGES, supra note 82 at 17.

[5] Tesfatsion Medhanie, Lomg: Can it help reverse Africa's marginalisation? 16 STAAT UND GESELLSCHAFT IN AFRIKA 397, 402 (1996).

[6] This view is not however without critique: See, e.g., Michael C. Davis, Constitutionalism And Political Culture: The Debate Over Human Rights And Asian Values, 11 HARV. HUM. RTS. J. 109, 147 (1998).

[7] ANTONIO CASSESE, supra note 2, at 53.

[8] There is no absence of Islamic scholarship in the west on this topic. Further the Islamic scholars do not question the idea of human rights as such but rather the western view of what those rights are. See, e.g., Ebrahim Moosa, The Dilemma Of Islamic Rights Schemes, 15 J.L. & RELIGION 185, 215 (2000); Ann Mayer, Universal Versus Islamic Human Rights: A Clash Of Cultures Or A Clash With A Construct?, 15 MICH. J. INT'L L. 307, 307 (1994); ABDULAZIZ OTHMAN ALTWAIJRI, HUMAN RIGHTS IN ISLAMIC TEACHINGS 4 (2000) available at:

[9] Editorial, Human Rights: Knots and Webs, Hinduism Today (1996) available at:

[10] Joseph Chan, Human Rights and Confucian Virtues, IV HARVARD ASIA QTLY. (2000) available at: .

[11] .  Damien Keown, Are There "Human Rights" in Buddhism? 2 J. BUDDHIST ETHICS (1995) available at: .

[12] See, e.g., Mahatma Gandhi, Letter to the Director General of UNESCO, 25 May 1947, IV Human Rights Teaching 4 (1985).

[13] See, e.g., Alfred Verdross and Heribert Franz Koeck Natural Law: The Tradition of Universal Reason and Authority in THE STRUCTURE AND PROCESS OF INTERNATIONAL LAW: ESSAYS IN LEGAL PHILOSOPHY DOCTRINE AND THEORY 17 (R. Macdonald, D. Johnston eds.,1986).

[14] See, e.g., South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), ICJ Reports 1966 250, 297 (1966) (dissenting opinion of Judge Tanaka). But see DR. H. AGARWAL, IMPLEMENTATION OF HUMAN RIGHTS COVENANTS WITH SPECIAL REFERENCE TO INDIA, 17-18 (1983) (arguing that human rights are universal because they arise out of the common equality of all persons).

[15] THOMAS AQUINAS, SUMMA THEOLOGICA, SECUNDA SECUNDAE PARTIS §57 (Right) available at: .

[16] Fr. Joseph M. de Torre, Human Rights, Natural Law, And Thomas Aquinas, VI Catholic
Social Scientist Review (2001) available at: .

[17] For a brief brilliant summary of the (only illusory) contradiction between natural law and positivism by the late Louis B. Sohn. See Louis B. Sohn, supra note 5, at 17.

[18] Nigel Purvis, Critical Legal Studies In Public International Law, 32 HARV. INT'L L.J. 94, 81-83, (1991) (describes "naturalist" "positivist" dichotomy in international law).

[19] Id. at 82-83 (describes the supposed decline of ius naturale theory).

[20] Unless the two schools of thought take a great deal of care to define their starting point, they find themselves talking about quite different things. Id. at 115.

[21] Louis B. Sohn, supra note 5, at 17.

[22] Id

[23] Id

[24] Alfred P. Rubin, Actio Popularis, Jus Cogens And Offenses Erga Omnes? 35 NEW ENG. L. REV. 265, 280, (2001).

[25] T]he condition of man (as hath been declared in the precedent chapter) is a condition of war of every one against every one, in which case every one is governed by his own reason, and there is nothing he can make use of that may not be a help unto him in preserving his life against his enemies." HOBBES, LEVIATHAN, Ch. XIV (1656). Hobbes also distinguishes between natural law and natural right.

[26] CICERO, THE REPUBLIC at III, XXII (Loeb Classical Library, 1950) available at:  (lat.).

[27] THOMAS AQUINAS, supra note 27.

[28] HANS KELSEN, ALLGEMEINE STAATSLEHRE (1925).

[29] MAX WEBER, DER SINN DER ,,WERTFREIHEIT" DER SOZIOLOGISCHEN UND OKONOMISCHEN WISSENSCHAFTEN (1917). In: Ders.: GesammelteAufsatze zur Wissenschaftslehre (Tuibingen 1988).

[30] Nigel Purvis, supra note 150, at 81-83 (1991) (describes the naturalist riposte to positivism).

[31] Hobbes clearly describes a natural law theory - but his natural law is the law of the jungle, which like Rousseau, must be escaped by a social contract, i.e. a positive law:
      The right of nature, which writers commonly call jus naturale, is the liberty each man hath to use his own power as he will himself for the preservation of his own nature; that is to say, of his own life; and consequently, of doing anything which, in his own judgement and reason, he shall conceive to be the aptest means thereunto. HOBBES, LEVIATHAN, Ch. XWV (1660) available at:The work of both Hobbes and Rousseau (and Locke for that matter) is, however, flawed because they presume an impossibility, namely the state of nature. Hobbes's theory of natural law - the law of the jungle, droit de plus fort, does however carefully distinguishes between natural law and natural right, and thus should be distinguished from other theories of natural law which usually do not make this distinction and thus confuse prescription and description.

[32] Perhaps the first and best-known example of a synergy arising, where a whole is greater than the sum of its parts, is Adam Smith's famous needle factory. Smith pointed out that a factory using laborers specialized in different tasks would be far more efficient at needle production than the same number of individuals working in isolation. ADAM SMITH, AN INQUIRY INTO THE NATURE AND CAUSES OF THE WEALTH OF NATIONS, B.L Ch.l, paragraph 1.1.3 (1776). Available at:

[33] See Purvis, supra note 150.

[34] For a good discussion of different methodologies see, Anne-Mare Slaughter, Steven R. Ratner, The Method Is The Message, 93 AM. J. INT'L L. 410 (1999).

[35] In fairness to Hobbes, we must note that his first natural law, the law of self preservation, by any means necessary, is only his point of departure. He goes on to develop other consequential rights which he considers just as "natural" as the right of self preservation. E.g., pacta sunt servanda (inter alia). HOBBES, LEVIATHAN, Ch. XV "Of Other Laws of Nature" (1660) available at:

[36] To understand the theoretical distinctions between analog and digital conceptualisation see GOTTRRIED LEIBNIZ, A NEW METHOD FOR MAXIMA AND MINIMA AS WELL AS TANGENTS, WHICH IS IMPEDED NEITHER BY FRACTIONAL NOR BY IRRATIONAL QUANTITIES, AND A REMARKABLE TYPE OF CALCULUS FOR THIS (1684); ISAAC NEWTON, FLUXIONS (1666 - then unpublished working paper, later published), ISAAC NEWTON, ANALYSIS WITH INFINITE SERIES (1711).

[37] PLATO, REPUBLIC, Book IV

[38] Aristotle does speak of "civil rights" i.e. Biirgerrechte; Aristotle, Athenian Constitution - Part 7, Sections 61 - 69 (translated by Sir Frederic G. Kenyon)

[39] This can be seen by the example of the slave: Aristotle regards the slave as only capable of apprehending but not forming ideas. ARISTOTLE, POLITICS, Book I, Part 5, Para. 3 (c. 350 b.c.) available at: . Consequently the slave has few rights. However the slave, like the drunkard, also has fewer duties, and for a similar reason - at least per Aristotle.

[40] "La plus ancienne de toutes les socidtds et la seule naturelle est celle de la famille ... La famille est donc si l'on veut le premier module des socidtds politiques" JEAN JACQUES ROUSSEAU, CONTRAT SOCIAL, Livre I, Ch. H (1762)

[41] ARISTOTLE, POLITICS, Book I, Part 11 (translated by Benjamin Jowett)

[42] JOHN LOCKE, Two TREATISES OF GOVERNMENT, Ch. V Sec. 28 (1698)

[43] KARL MARX, MORCEAUX Choisis 263 (Nizan, P. et Duret, J. eds., Paris: Librairie Gallimard, 1934) (citing the Karl Marx work, SALAIRES, PRIX ET PROFIT). Marx and Locke also agree on the distinction between use value and exchange value: JOHN LOCKE, OF CIVIL GOVERNMENT, Book H, Ch. V §46-51 eps. §50; KARL MARX, CONTRIBUTION A LA CRITIQUE DE L'ECONOMIE POLITIQUE (Paris, Editions Sociales); KARL MARX CAPITALE 40 (Paris: Presses Universitaires Franqais 1993).

[44] See e.g., MURRAY N. ROTHBARD, ED., THE LOGIC OF ACTION ONE 78-99 (Edward Elgar Publishing Ltd. 1997).

[45] See, e.g., LUDWIG MISES, MONEY, METHOD AND THE MARKET PROCESS, Ch. 3, "Epistemological Relativism in the Sciences of Human Action" (Richard M. Ebeling. ed., Amsterdam: Kluwer   Academic   Pubs.   1990)  (Article first  published in   1962)  

[46] Hobbes' natural law (the law of the jungle) is clearly atomist.
      The right of nature, which writers commonly call jus naturale, is the liberty each man
      hath to use his own power as he will himself for the preservation of his own nature; that
      is to say, of his own life; and consequently, of doing anything which, in his own judge-
      ment and reason, he shall conceive to be the aptest means thereunto. According to Hobbes, in the state of nature, "right" is equivalent to "power," irrespective of society or family. HOBBES, LEVIATHAN, Ch. XIV, Of The First And Second Natural Laws, And Of Contracts (1660)

[47] Only in so far as the pacte social constitutes society out of individuals, adhesion to the supposed contract. This, however, contradicts Rousseau's recognition that all states arise out of extended families. JEAN-JACQUES ROUSSEAU, DU PACTE SOCIAL, chs. 1l,VI (1762).

[48] JOHN LOCKE, TWO TREATISES OF GOVERNMENT, Ch. V, § 28 (1764) This is incidentally the alienation of which Marx speaks - our alienation from the product our labor; our commodification.

[49] "He who thus considers things in their first growth and origin, whether a state or anything else, will obtain the clearest view of them. In the first place there must be a union of those who cannot exist without each other; namely, of male and female... The family is the association established by nature for the supply of men's everyday wants... But when several families are united, and the association aims at something more than the supply of daily needs, the first society to be formed is the village.. .When several villages are united in a single complete community, large enough to be nearly or quite self-sufficing, the state comes into existence, originating in the bare needs of life, and continuing in existence for the sake of a good life." ARISTOTLE, POLITICS, supra note 173.

[50] « La plus ancienne de toutes les socidtds et la seule naturelle est celle de la famille. JEAN-JACQUES ROUSSEAU, Du CONTRAT SOCIAL OU PRINCIPES DU DROIT POLITIQUE, Livre 1, Ch. II (1762)

[51] "[T]he condition of man (as hath been declared in the precedent chapter) is a condition of war of every one against every one, in which case every one is governed by his own reason, and there is nothing he can make use of that may not be a help unto him in preserving his life against his enemies." HOBBES, LEVIATHAN, Ch. XIV, para. 4 (1660)

[52] The philosophers, who have examined the foundations of society, have, every one of them, perceived the necessity of tracing it back to a state of nature, but not one of them has ever arrived there." JEAN JACQUES ROUSSEAU (1712-1778), On the Inequality among Mankind Harvard Classics, 1909-14) .See also, Jiri Priban, Stealing the Natural Language: The Function of the Social Contract and Legality in the Light of Nietzche's Philosophy, 24 CARDOZO L.Rev. 663, 664 (2003)

[53] See, e.g., JOHN LOCKE, TWO TREATISES OF GOVERNMENT, Ch. RI (1764)

[54] KENNETH N. WALTZ, MAN, THE STATE, AND WAR (Columbia Univ. Press 1954).

[55] In contrast, the simplified model of the economy provided by the "homo economicus" does, roughly, approximate how economic actors in fact behave. Like the states in IR realism, economic actors are posited as rational maximisers of their utility. However, the economic game is positive sum, whereas IR theory generally proposes that IR is a zero sum game. In economic theory, altruists can be safely ignored as they are a distinct minority. In contrast, realist IR assumptions do not in fact reduce the variables which influence state behavior in a meaningful way because the variables eliminated (economic factors) are more relevant than the ones retained (military factors!).

[56] KARL MARX, ECONOMIC AND PHILOSOPHIC MANUSCRIPTS OF 1844, "The Alienation of Labour" (1844)

[57] Landesverfassung der Freien Hansestadt Bremen, Artikel 1 - 20, Erster Hauptteil: Grun- drechte und Grundpflichten

[58] Verfassung der DDR, Artikel 24(1)
      Jeder Biurger der Deutschen Demokratischen Republik hat das Recht auf Arbeit. Er
      hat das Recht auf einen Arbeitsplatz und dessen freie Wahl entsprechend den gesell-
      schaftlichen Erfordernissen und der personlichen Qualifikation. Er hat das Recht auf
      Lohn nach Qualitlit und Quantitift der Arbeit. Mann und Frau, Erwachsene und
      Jugendliche haben das Recht auf gleichen Lohn bei gleicher Arbeitsleistung.
      (2) Gesellschaftlich nfitzliche Tdtigkeit ist eine ehrenvolle Pflicht ftirjeden arbeitsfiihigen
      BUrger. Das Recht auf Arbeit und die Pflicht zur Arbeit bilden eine Einheit.

[59] Schweizerische Bundesverfassung, art. 6, Individuelle und gesellschaftliche Verantwortung:
      Jede Person nimmt Verantwortung ftir sich selber wahr und trtigt nach ihren Krtiften zur
      Bewdltigung der Aufgaben in Staat und Gesellschaft bei.

[60] Ddclaration Des Droits De L'homme Et Du Citoyen De 1789
      Les Reprfsentants du Peuple Franqais, constituds en Assembl&e Nationale, considdrant
      que l'ignorance, l'oubli ou le mepris des Droits de I'Homme sont les seules causes des
      malheurs publics et de la corruption des Gouvemements, ont rdsolu d'exposer, dans une
      Ddclaration solennelle, les droits naturels, inalidnables et sacrds de iHomme, afin que
      cette Dfclaration, constamment prdsente A tous les Membres du corps social, leur rappelle
      sans cesse leurs droits et leurs devoirs.



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