Carl Wellman - The Moral Dimensions of Human Rights

The Moral Dimensions of Human Rights
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The Moral Dimensions
of Human Rights
Carl Wellman
2011
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Library of Congress Cataloging-in-Publication Data

Wellman, Carl.
The moral dimensions of human rights / by Carl Wellman.
p. cm.
ISBN 978-0-19-974478-7
1. Human rightsMoral and ethical aspects. I. Title.
JC571.W387 2010
172.1dc22 2010000430
9 8 7 6 5 4 3 2 1
Printed in the United States of America
on acid-free paper
Preface
The purpose of this book is to identify and explain the most important
moral dimensions of human rights. I shall argue that one of these is fun-
damental moral rights that one possesses as a human being. But both in-
ternational law and most contemporary national legal systems confer
human rights as well. Although some of these legal human rights are ana-
logues of and justified as protections for noninstitutional moral human
rights, others reflect and are justified by other purposes of international or
national law. In fact, there is a complex interplay between the various
moral dimensions of moral, international, and national human rights. I
hope to clarify these relationships and thereby contribute to our under-
standing and evaluation of human rights.
When I began thinking seriously about human rights, the available the-
ories of moral human rights were seriously defective. Human rights were
identified by labels, such as the right to life, that do not specify their
content with any precision. Hence, one cannot know what obligations or
duties they imply. Does the human right to life require others to provide
the means to sustain ones life or only to refrain from taking ones life?
Presumably, the answer to this and similar questions depends upon the
grounds of moral human rights, but the literature of that time provided
no convincing theory of the grounds of human rights.
Although I recognized that what was most needed was an understand-
ing of the moral reasons that ground human rights, I believed that one
could not know what evidence was required to establish the reality of any
human right until one knows what it means to assert that it exists. There-
fore, I proposed a new conceptual analysis of moral human rights. First,
one should take legal rights as models of all species of rights, including
moral rights. Second, one should analyze the content of any human right
in terms of Hohfelds fundamental legal conceptions or their moral ana-
logues. Then, and only then, could one identify the grounds of any human
right. I assumed that knowing the grounds of any right would enable one
to define its specific content and that that in turn would enable one to
know what duties it imposes upon second parties.
Carrying out this project has taken three decades and resulted in sev-
eral books, especially A Theory of Rights, 1985, and Real Rights, 1995. The
focus of this book is both broader and narrower than that of my previous
vi Preface
publications. It is broader because it deals with human rights in interna-

tional law and national legal systems as well as moral human rights. It is
narrower because it concerns primarily the moral dimensions of human
rights and says little about other aspects of their theoretical analysis and
practical application.
Acknowledgments
This book was conceived in Iran. I had long known that the theory of
moral human rights was a disaster area. There was no plausible explana-
tion of the grounds of moral human rights and therefore no convincing
refutation of skepticism regarding their existence. In fact, there was no
clear and precise analysis of their nature, should they exist. But I had not
realized until I participated in an international conference on human
rights organized by Mofid University in Qom that the lack of any ade-
quate theory of human rights in international law seriously handicapped
the practical resolution of urgent human rights issues throughout the
world. Therefore, I decided to develop an account of human rights, both
moral and legal, that would be theoretically illuminating and useful in
practice.
I owe a debt of gratitude to those who read one or more chapters of my
projected book as I struggled with the philosophical problems concerning
human rights. These include James Griffin, Larry May, Rex Martin, James
Nickel, George Rainbolt, William Twining, and Christopher Heath Well-
man. My philosophical and legal colleagues who stimulated and corrected
my thinking by discussing my tentative views with me are too numerous
to mention, but no less deserving of my appreciation. I am especially
grateful to two anonymous reviewers for Oxford University Press who
insisted that my original manuscript was far too ambitious and that I
ought to ignore issues beyond my competence. Hence, I now focus on the
moral dimensions of human rights where I am most at home.
I am also grateful for permission to reprint material from the following
publications:
Charles Beitz, What Human Rights Mean, Daedalus 132:1 (Winter
2003), pp. 3646. Copyright 2003 by the American Academy of Arts
and Sciences. Reprinted by permission of the MIT Press.
Antonio Cassese, The General Assembly: Historical Perspectives
19451989, in The United Nations and Human Rights: A Critical
Appraisal, ed. Philip Alston (Oxford: Clarendon Press). Copyright
1992 by Oxford University Press. Reprinted by permission of Oxford
University Press.
Johannes Morsink, The Universal Declaration of Human Rights: Origins,
Drafting and Intent (Philadelphia: University of Pennsylvania Press),
viii Acknowledgments
p. 281. Copyright 1999 by the University of Pennsylvania Press. Reprinted

with permission of the University of Pennsylvania Press.
Gerald L. Neuman, Human Rights and Constitutional Rights: Harmony
and Dissonance, Stanford Law Review 55 (2003). Copyright 2003
by the School of Law, Stanford University. Reprinted by permission of
the publisher.
Adamantia Pollis and Peter Schwab, Human Rights: A Cultural Con-
struct with Limited Applicability, in Human Rights: Cultural and Ideolog-
ical Perspectives, ed. Adamantia Pollis and Peter Schwab (New York:
Praeger Publishers). Copyright 1980 by Praeger Publishers. Reprou-
duced with permission of ABC-CLIO, LLC, Santa Barbara, CA.
Jeremy Waldron, A Right-Based Critique of Constitutional Rights,
Oxford Journal of Legal Studies 13 (Spring 1993), pp. 1318. Copyright
by Oxford University Press. Reprinted by permission of Oxford University
Press.
Contents
1 An Approach to Human Rights, 3

2 The Nature of Moral Human Rights, 17
3 Grounds of Moral Human Rights, 41
4 Moral Dimensions of Human Rights Documents, 53
5 The Nature of International Human Rights, 71
6 Grounds of International Human Rights, 85
7 International Rights versus National Sovereignty, 101
8 Constitutional Rights, 127
9 Judicial Recognition of Human Rights, 145
10 Legislative Recognition and Implementation, 165
11 Recognition and Implementation of Treaty Rights, 179
12 Moral Dimensions, 197
Cases Cited, 211

Notes, 213
References, 227
Index, 235
The Moral Dimensions of Human Rights
1
An Approach to Human Rights
One can quite properly and very usefully approach human rights as a
lawyer, political scientist, or human rights activist. However, my compe-
tence is primarily in ethical theory and moral philosophy. Hence, I shall
begin my approach to an understanding of human rights with a philo-
sophical analysis of moral human rights. Although there are those who
insist that rights are by their very nature institutional, I do not find their
arguments convincing. I believe that one species of human rights consists
of fundamental moral rights that are natural rather than artificial so that
their existence and nature does not depend upon any legal system or
social moral code. This is, or course, an ancient and now somewhat
unfashionable view. Whether it can lead to any new and illuminating con-
clusions remains to be seen.
1. THE NATURAL RIGHTS TRADITION
The contemporary idea of human rights is a descendant of, but by no

means the same as, the eighteenth-century idea of natural rights. In a
chapter entitled The First Two Hundred Years of an Idea, Louis Henkin
reports: Immediately, human rights derive from natural rights flowing
from natural law. . . . The American and French revolutions, and the dec-
larations that expressed the principles that inspired them, took natural
rights and made them secular, rational, universal, individual, democratic
and radical.1 Although the details of the history of the idea of human
rights are controversial, its general trajectory is clear.
It began with the idea of natural law in the moral and political theory
of Stoicism and was articulated more fully in the philosophy of Saint
Thomas Aquinas. This is the idea of a moral law or code of moral rules
knowable by reason prior to and independent of man-made law. However,
this was originally thought to prescribe right conduct and to prohibit
wrongdoing, but not to confer rights upon individual persons. Subse-
quently several medieval philosophers, most notably William of Occam,
developed the view that the natural law confers natural rights, moral
powers or liberties of acting rightly, upon individual human beings. Hugo
3
4 The Moral Dimensions of Human Rights
Grotius then argued that these natural rights enable one to determine the
morally justified principles of international law. And John Locke main-
tained that the primary purpose of national governments is or ought to be
to protect the natural rights of its citizens.
This traditional idea of natural rights has given birth to two legal off-
spring. First is the inclusion of a bill of rights in national constitutions.
What springs to my mind are the first ten amendments to the United
States Constitution reflecting a Lockean theory of natural rights presup-
posed by the American Declaration of Independence and the Preamble to
the French Constitution of 1946 that affirmed the Declaration of the
Rights of Man and the Citizen of 1789. Today many if not most national
constitutions include a bill of rights derived directly or indirectly from the
traditional idea of natural rights.
Second is the introduction of human rights into international law.
Antonio Cassese observes:
Today the doctrine of human rights forces States to give account of how they
treat their nationals, administer justice, run prisons, and so on. . . . On the whole,
one can say that within the international community this doctrine has acquired
the value and significance which, within the context of domestic systems, was
accorded to Lockes theory of social contract, Montesquieus concept of the
separation of powers, and Rousseaus theory of the sovereignty of the people.2
It is no accident that the language of the Universal Declaration of Human

Rights of 1948 echoes that of the American and French declarations.
Neither is it an inevitable consequence of the natural rights tradition.
Traditional theories of natural rights fell out of favor with both moral phi-
losophers and jurists after the eighteenth century. The most influential of
these theories assumed that natural rights are conferred by the natural law
consisting of dictates of God known by the natural light of human reason.
With the notable exception of those who carried on the philosophy of
Saint Thomas Aquinas, such as Jacques Maritain, most moral and political
philosophers became skeptical of the existence of any divine lawgiver and,
except for Kantians, rejected the epistemological assumption that funda-
mental moral principles can be known by pure reason. The dominant
moral theory became utilitarianism. This theory finds it difficult to explain
the moral rights of individual persons because it holds that the ultimate
moral standard is the greatest total value for everyone concerned and that
the interests of any one individual ought to be sacrificed when this is
necessary to promote the greater good of others. At the same time, most
jurists rejected the view that law is by its very nature moral together with
the implication that an unjust law is not real law. They tended to adopt a
legal positivism insisting that the law is whatever is posited by the officials
who are in power in a nation-state. Hence, there is a conceptual separation
of law and morals so that what the law ought to be is logically irrelevant
to what the law actually is. Because all that concerns lawyers in their pro-
fessional capacity is the latter, legal theory needs no moral dimension.
An Approach to Human Rights 5
Although neglected in moral, legal, and political theory, the idea of

natural rights, more often referred to as human rights or les droits de
lhomme, became politically important during and after the Second
World War. They served the Allied nations as a justification for the loss of
life, limb, and property inflicted upon Germany, Italy, and Japan by their
armed forces and after the war for the Nuremberg trials of Nazi officials
and others accused of war crimes and crimes against humanity. One of the
primary objectives of the United States, Great Britain, China, and the
Soviet Union became to build a new world order to preserve peace and to
prevent any gross violations of human rights similar to those inflicted by
Nazi Germany and Japan.
Accordingly, one of the purposes of the United Nations is To achieve
international co-operation . . . in promoting and encouraging respect for
human rights and for fundamental freedoms of all.3 The United Nations
Charter presupposes that these human rights and freedoms are preexist-
ing moral human rights and freedoms. Although the framers of this docu-
ment did not share any articulate theory of the nature of human rights,
neither did they assume that they were creating entirely new rights in
international law ex nihilo. The text of the charter begins: WE THE
PEOPLES OF THE UNITED NATIONS DETERMINED . . . to reaffirm
faith in fundamental human rights, in the dignity and worth of the human
person, in the equal rights of men and women and of nations large and
small. Thus, they were reaffirming the existence of some sort of preexist-
ing fundamental rights. Obviously these rights were not universally recog-
nized and respected in the moral codes of every society or in the legal
systems of every nation-state. Had this been so, the recent atrocities that
preceded and continued during the Second World War would not have
occurred. Hence, the United Nations Charter presupposes the existence
of fundamental rights that are grounded on the dignity and worth of the
human person rather than on any social institution or set of institutions.
In that sense, and that sense only, they are natural rather than artificial
rights.
However, this does not imply that the charter presupposes any tradi-
tional natural rights theory. It is a political and legal document rather than
an essay in moral or political philosophy. It need not assume the existence
of any natural law, whether consisting of the commands of God or the
dictates of Reason, or that the existence and content of human rights can
be known either by intuition or by deduction from self-evident premises.
What it does presuppose is the existence of certain fundamental rights
that all persons possess as human beings and that are conferred neither by
the mores of ones society nor by any system of national or international
law. Because their existence is not dependent upon social institutions,
they must be some sort of moral rights. But the precise nature of these
moral human rights is left open to interpretation.
In 1947 while the Human Rights Commission was preparing the text
of the Universal Declaration of Human Rights, UNESCO invited various
expert thinkers and writers from both Western and non-Western member
states to respond to a series of questions concerning the interpretation
and justification of those rights of the individual that society must respect.
The replies of thirty-one experts together with an introduction by Jacques
Maritain were published in 1949, one year after the General Assembly
issued the Universal Declaration.4
Subsequently political and moral philosophers continued the examina-
tion and explanation of these fundamental moral human rights. One sec-
tion of the Sixth World Congress of the International Political Science
Association held at Geneva in 1964 was a discussion of human rights. It
was divided into two sessions, the first on natural rights in Hobbes and
Locke, and the second on the modern conception of human rights as set
out in the Universal Declaration of Human Rights. These papers were
published in Political Theory and the Rights of Man, edited by D. D.
Raphael.5 The most influential contributions were by Maurice Cranston
and Raphael.
Theories of human rights also emerged in the United States, in part
reflecting the moral debates and political confrontations concerning social
justice and the rights of black Americans. Philosophers such as Gregory
Vlastos and Richard Wasserstrom believed that philosophical analysis
could eradicate some of the confusion and help to resolve the issues
dividing American citizens and leading to the civil disobedience of
the civil rights movement and even interracial violence.6 A philosopher
whose analysis of the idea of human rights has been very influential is Joel
Feinberg:
I shall define human rights to be generically moral rights of a fundamentally
important kind held equally by all human beings, unconditionally and unalter-
ably. . . . All of the rights that have been characterized as natural rights in the
leading manifestoes can also be called human rights, but, as I shall be using the
terms, not all human rights are also by definition natural rights. The theory of
natural rights asserts not only that there are certain human rights, but also that
these rights have certain further epistemic properties and a certain metaphysi-
cal status. In respect to questions of moral ontology and moral epistemology,
the theory of human rights is neutral.7
Although none of these political and moral philosophers assumed any
natural law dictated by God and known by pure reason, they were rein-
terpreting the concept of natural rights because they all believed that the
human rights they were explaining were moral rather than legal rights.
In their survey article, Recent Work on the Concept of Rights, Rex
Martin and James W. Nickel report that
One finds general agreement among philosophers that human rights are moral
rights, but the implications of this characterization are not always clear. . . . The
word moral seems to be doing much of the same work in this context that
natural used to do. Describing rights as natural implied that they were not
conventional or artificial in the sense that legal rights are, and the same is
implied by describing human rights as moral rights. The vocabulary of moral

rights has the advantage over the vocabulary of natural rights of not commit-
ting one to the view that human rights norms are somehow built into human
nature or the universe.8
I also believe in the existence of moral human rights that are independent
of any positive law or conventional morality. Therefore in the following
chapters, I will explain how these moral human rights constitute one, but
only one, of the moral dimensions of human rights in international law
and national legal systems.
However, there are those who believe that my philosophical approach
to human rights is misguided, or at least outdated. In what is probably the
best introduction to the theory of human rights James W. Nickel asserts:
Human rights, as we know them today, are the rights of lawyers, not the rights
of philosophers. Human rights is not just another label for historic ideas of
natural rights. Instead, the term is typically used to describe the specific norms
that emerged from a political project initially undertaken after World War I in
the minority rights treaties and then continued on a larger scale after World
War II. This political project, embodied in the contemporary human rights
movement, aspires to formulate and enforce international norms that will pre-
vent governments from doing horrible things to their people and thereby pro-
mote international peace and security.9
Now I agree that the term human rights is most often used today to
refer to the rights that emerged from the political project that Nickel
describes. Indeed, I have just explained how recent philosophical analyses
of human rights were responses to this international project together with
civil rights conflict in the United States. Nevertheless, I believe that one
cannot fully understand either the reaffirmation of human rights in the
United Nations Charter or the continuing human rights movement with-
out examining the relevance of philosophical theories of noninstitutional
moral human rights.
2. ALTERNATIVE APPROACHES
Several important philosophers reject my kind of approach to human

rights and advocate very different approaches. Joseph Raz contrasts the
traditional approach with a political conception of human rights:
Some theories (I will say that they manifest the traditional approach) offer
a way of understanding their nature which is so remote from the practice of
human rights as to be irrelevant to it. They take human rights to be those
important rights which are grounded in our humanity.10
The task of a theory of human rights is (a) to establish the essential features
which contemporary human rights practice attributes to the rights it
acknowledges to be human rights; and (b) to identify the moral standards
which qualify anything to be so acknowledged. I will say that accounts

which understand their task in that way manifest a political conception of
human rights.11
I have chosen the traditional approach by defining human rights as rights

one possesses simply as a human being.
One should not assume that the essential features of moral human
rights are the same as the essential features of human rights in interna-
tional law or in national legal systems. In fact, they differ in significant
respects. But my traditional approach does not assume that. What I do
hope to show is that moral human rights constitute one of the moral
standards which qualify anything to be acknowledged as an international
or national human right. And presumably in choosing ones conception of
moral human rights one should seek a preliminary definition that points
to and clarifies what is most important in the moral theory of human
rights, not what those engaged in the contemporary practices of the
human rights movement take to be of greatest political importance.
To be sure, if ones theory of moral human rights turns out to be so
remote from the practice of human rights as to be irrelevant to it, then
no jurist or political philosopher will have any reason to take it seriously.
But by his criticisms of the theories of Alan Gewirth and James Griffin,
only two possible versions of the traditional approach to human rights,
Raz has not shown that their mistake was in conceiving of human rights
as rights one possesses by virtue of ones humanity. As Raz himself admits,
exposing the flaws in traditional theories of human rights calls for detailed
examination of each of them,12 for the defects of one such theory may not
be the same as those of a different traditional theory. He has, however,
indicated an important task facing anyone who adopts the traditional
approach to human rights. If one does not adopt a political conception of
human rights, then one does need to explain how and why they are rele-
vant to political practices including the practices of international law and
municipal legal systems.
Moreover, it seems to me that Raz pays too high a price by abandoning
the traditional conception of moral human rights as moral rights one pos-
sesses simply as a human being. He recognizes that One immediate con-
sequence of the political conception is that human rights need not be
universal or fundamental. Quite true. If human rights are not rights one
possesses simply as a human being, then there is nothing in their very
nature that implies that they are possessed by every human being. But it is
this universality that explains their moral relevance to and political impor-
tance for the human rights movements that have insisted that women
ought to have equal social and political rights with men, that blacks have
the same moral rights to liberty and education as whites, and that subju-
gated colonial peoples have the human right to self-determination just as
the colonial powers have. This universality of moral human rights is pre-
supposed, perhaps too uncritically, by the Universal Declaration of Human
Rights and by the subsequent attempts of the United Nations to protect

the human rights of all persons in every nation throughout the world.
Joseph Raz adopts a modified version of the political conception of
human rights that John Rawls employs, for a different reason, in The Law
of Peoples. But Rawls needs a political conception because he intends to
extend his liberal conception of justice to a society of peoples, to the
international community:13
I suggest that we leave aside how peoples comprehensive doctrines connect

with the content of the political conception of justice and, instead, regard that
content as arising from the various fundamental ideas drawn from the public
political culture of a democratic society. Putting peoples comprehensive doc-
trines behind a veil of ignorance enables us to find a political conception of
justice that can be the focus of an overlapping consensus and thereby serve as
a public basis of justification in a society marked by the fact of reasonable
pluralism.14
A liberal conception of justice justified by a hypothetical social contract

must be political in this way in order that people with very different
metaphysical and moral philosophies can agree to base their shared social
institutions upon it.
Whatever may be the merits of this approach to political philosophy, it
should not be applied to moral philosophy or ethical theory. Someone
attempting to develop a theory of moral human rights cannot remain
neutral regarding the different moral theories that might explain their
nature and grounds. Nor should one prejudge their political relevance by
assuming that political liberalism is the only or best justified political
theory. Granted the fact of reasonable disagreement about comprehen-
sive doctrines, this poses a challenge to be overcome by the method of
reflective equilibrium that Rawls himself proposes, not an irresolvable
dilemma to be evaded.
It remains true, as Rex Martin reminds us, that the great human rights
documents, like the French Declaration of the Rights of Man and the
Citizen and the United Nations Universal Declaration of Human Rights,
are addressed primarily to governments15 and that the human rights they
proclaim are to goods, like a fair trial or social security, that human beings
can obtain and enjoy only in a society.16 These facts do suggest that the
concept of human rights is an essentially political conception. But these
human rights documents seem to presuppose the traditional conception
of human rights as rights one possesses simply as a human being. And they
may have selected the human rights they proclaim from a larger array of
human rights, not all of which were relevant to their political purposes.
Although it is also true that we would tend not to call the universal moral
rights not to be lied to and to have promises kept human rights,17 this may
be merely because they have not been involved in the historically impor-
tant political debates over human rights. For the purposes of clarifying the
nature of the paradigm examples of human rights that are relevant to law
and politics, it may be valuable to recognize that as universal moral human

rights they are essentially similar to these nonparadigmatic human rights.
And for this reason, among others, one should adopt the traditional
approach to human rights.
A second theoretically important choice is between a noninstitutional
and a social practice conception of moral human rights. Wayne Sumner
argues that moral rights cannot be natural rights, rights that exist indepen-
dently of social practices. This is so both because rights presuppose the
rules that confer them and because rights impose duties and include
powers, but there can be no natural moral rules capable of grounding the
normative force of duties or conferring normative powers.18 Although
legal rights may presuppose legal rules that confer them, I maintain that
moral rights are grounded on moral reasons, not on moral rules or general
principles. And I have explained how some kinds of moral reasons can
impose moral duties and other sorts of moral reasons confer moral
powers.19 I distinguish between morality rights that are conferred by the
moral code of ones society and moral rights that are grounded on moral
reasons. Thus, I conceive of moral human rights as natural rather than
artificial rights. They are natural not because they are grounded on any
natural law or because they are known by the natural light of reason but
because their existence depends only upon morally relevant facts about
human lives and the world in which they are lived.
Rex Martin appeals to three related considerations to defend his social
practice conception of human rights.
1. Any real human right imposes one or more duties. But without social
recognition, no member of a society would have any moral duty to respect
an alleged human right. This is because no one can have a moral duty of
which one cannot be aware. If the unrecognized human right is grounded
on an ideal morality unknown in ones society, then one will not know
what it requires and cannot be aware of any duty that human right might
be said to imply. And even if one is aware of some moral reason to act as
that human right requires, ones awareness of a duty to do so may be
blocked by a conflicting consideration that is recognized in the moral
code of ones society.20
One should, I believe, accept the Kantian dictum that ought implies
can. But the problem lies in interpreting precisely what sort of ability is
presupposed in this moral principle. On my conception of moral rights,
they are grounded on morally relevant factual reasons. Presumably any
normal human being has the ability to come to know the sorts of facts
that ground most or all human rights. Whether that individual will be
able to recognize their moral relevance is less clear. But it seems to me
that we all have some moral obligations of which we are unaware, and
that the increasing recognition of human rights in our society and others,
often initiated by a few individuals before becoming widespread, indi-
cates that we can become aware of moral duties not yet socially recog-
nized or even inconsistent with the moral codes of our societies.
Therefore, I believe that Martin has misinterpreted the sense of can in

which ought implies can.
2. Martin also argues that any real human right involves social promo-
tion and maintenance. Were it not promoted and enforced, it would be
deficient as a right. It might be a right, but it would be a merely nominal
right rather than a real human right. That is, it would not provide any kind
of guarantee to the benefits that can reasonably be expected to accrue to
the right-holders.21 But why should one assume that any reasonable
expectation of benefiting from ones rights is built into the very concept
of a moral right? One might reasonably hope that one would benefit from
ones moral rights, for why else would moral rights be important? But to
expect this always and necessarily to be so is unrealistic and unreasonable.
One should not deny the existence of a moral right merely because it is
totally ignored or even systematically violated. Indeed, moral human
rights are often of greatest value in promoting moral reform when they
are almost totally ignored or even widely violated in a society. To be sure,
not every alleged moral human right is real. But what establishes the
reality of a human right is the existence of moral reasons sufficient to
ground it, not its social implementation.
3. Martin reminds us that social recognition and maintenance are
necessary conditions for the existence of any legal right and suggests that
it would be a theoretical advantage to have a conception of moral rights
in which they are rights in the same sense as legal rights.22 He concludes
that one should conceive of moral rights as presupposing social recogni-
tion and maintenance. I agree with both of these premises, but I do not
believe that they imply his conclusion. Social recognition and mainte-
nance are necessary conditions for the existence of legal rights because
they are necessary conditions for real law, not because they are implicit in
the concept of a right.
Even if Rex Martins arguments are inconclusive, there would be two
advantages to his social practice conception of human rights over my nat-
ural rights conception. It would be far easier to distinguish between real
and unreal human rights by looking for social recognition and mainte-
nance than by any appeal to factual reasons whose moral relevance is
often unrecognized or controversial. And the practical value of socially
recognized and maintained human rights would be much more secure
than the importance in practice of natural human rights that will often be
ineffective or violated in ones society. Why, then, should one adopt a
natural rights conception of human rights? One reason, and the one of
greatest relevance to human rights practices, is that it is the independence
of human rights from social practices that enables a social reformer to
appeal to them to criticize the law and the other social institutions of any
society.
Derrick Darby recognizes that this is the strongest appeal of a natural
rights theory of moral human rights. But he agrees with the critical social
theorists who argue that in practice the appeal to natural rights often
serves to justify the oppression of women or blacks or those in poverty.

And if social recognition is not what makes a moral right real, then no
social reform can confer new moral rights upon those who are oppressed.
But on his social practice conception of moral rights, a moral reformer
might be able to improve the moral situation by establishing a new moral
right for those who are oppressed. He illustrates his thesis by applying it
to the notorious Dred Scott case.23
I do not find his argument for rejecting the natural rights conception of
moral human rights convincing. To be sure, to effectively combat social
oppression one must reform social institutions so as to establish legal or
other institutional rights that are socially recognized and implemented.
As long as moral human rights are not established in social practices they
will do nothing to eliminate or even reduce social oppression. And a social
reformer could appeal to moral considerations other than natural moral
rights to argue for establishing new social practice rights. But one kind of
especially appealing argument for social reform is the appeal to moral
human rights. And this sort of argument will have very limited applica-
bility unless moral human rights can and do exist independently of any
and all social institutions.
A third alternative one must consider when developing a theory of
moral human rights is to choose between an interactional and an institu-
tional conception. Thomas Pogge cites as paradigm examples of the inter-
actional conception of rights the analyses of Wesley Newcomb Hohfeld
and Carl Wellman.24 There seem to be three defining features to an inter-
actional conception of human rights. Human rights establish a moral rela-
tion of claimant and duty-bearer. The content of the duty or duties they
impose corresponds to the content of the right. And a human right of any
person directly imposes corresponding duties upon all others, including
all other individual human beings.25
Pogge rejects this interactional conception of human rights and advo-
cates an institutional conception. According to this conception, human
rights are claims upon the organization of ones society. What they require
is that the institutions of ones society provide secure access to the con-
tent of each human right. And they directly impose duties upon the
public officials of ones society but only indirectly upon other individual
members of ones society.26
This conception of human rights would be appealing to anyone, like
Pogge, concerned with the injustice of world poverty, for it transcends the
debate about whether economic and social rights, like the right to an
adequate standard of living or to education, are genuine human rights.
Libertarians deny that they can be real rights because if they were, they
would impose positive duties, but by their very nature rights can imply
only negative duties. On the other hand, many liberals and communitar-
ians defend the existence of positive rights that impose positive duties. By
adopting the institutional conception of human rights one can agree with
the libertarians that moral rights impose only negative duties without
denying the reality of economic and social rights.27 However, since there
is nothing in my conception of moral rights that would imply their
inability to impose positive duties, I have no need to transcend the debate
between libertarians and their opponents.
Another advantage that Pogge sees in his institutional conception of
human rights is that it fits better than the interactional conception with
the nature of international human rights. The international human right to
life is not considered violated in a society in which some individuals mur-
der others, but it is violated when the government arbitrarily executes
political opponents who have not been duly convicted of any serious
crimes. Again, a woman may enjoy freedom from bodily assault but be
insecure in her possession of bodily integrity because others women are
frequently beaten or threatened with bodily injury. Conversely, a wife
may be beaten by her husband or partner in a society in which the right
to personal security is legally recognized and generally but not in every
case effectively protected. The former situation constitutes a human rights
problem, but not the latter.28 I would agree that for international law and
its implementation, a human rights problem exists only in a society where
there is widespread insecurity in the exercise or enjoyment of human
rights. But it does not follow that respect for or the violation of moral
human rights ought to be measured by the same criterion. Because moral
human rights are rights of individual persons as human beings, whether
ones human rights are respected or violated depends upon facts about
how one is treated, not about the treatment of others in that society.
Thomas Pogges most serious criticism of the interactional conception
of moral human rights is that it misrepresents the moral responsibilities of
individual persons. This is most obvious regarding economic or social
rights On the interactional conception, a human right directly imposes
obligations upon all humans in a position to effect the right.29 On this
conception, the human right to an adequate standard of living implies that
if someone in deepest Africa is starving, then I have an obligation to do
what I can to provide food for that person. And if millions are starving
around the world, then I have a duty to contribute large sums to alleviate
world poverty. It is not merely that this is an overly demanding moral
requirement. It fails to recognize that the nation-state is and for the fore-
seeable future will remain the basic unit in the international community
and that human rights primarily impose duties upon those that govern in
any society. The responsibility of individuals regarding the human right to
an adequate standard of living is to work to the extent of their political
power to ensure that the institutions of their own society secure as far as
practicable an adequate standard of living for all of its citizens and perhaps
to modify its foreign affairs policies to alleviate poverty in other nations.30
I believe that economic and social human rights directly impose both the
duty to work politically within ones society to create and maintain institu-
tions to secure them and duties to respect and fulfill them oneself upon
individual persons. However, these are only prima facie duties and one
must balance them against ones other moral obligations so as to do as little

violence to all of ones responsibilities as possible. And practical consider-
ations enter into ones moral decisions. For example, in most cases one can
be more effective in devoting ones energies to the rights of others in ones
own society than to the human rights of those in distant lands. And all
moral human rights can be securely exercised or enjoyed only when they
are recognized and implemented in the institutions of the society in which
the right-holder lives. This suggests, but it does not justify adopting, an
institutional conception of human rights. What requires an interactional
conception is the fact that human rights are the rights of individual persons
simply as human beings, not rights they possess as members of some society.
But Charles R. Beitz presents an even more serious challenge for me.
He distinguishes between the orthodox conception of human rights and
the practical view, and argues that orthodox views mislead one about the
nature of international human rights:
According to the orthodox view, human rightsthat it, the underlying

moral values that international human rights seek to expressshare several
distinguishing characteristics with natural rights. First, human rights are
pre-institutionalthat is, they are rights one would have in a pre-political
state of nature. Second, human rights belong to people solely in virtue of
their common humanity. They are grounded on characteristics that people
might be said to possess when they are considered in abstraction from any
social situation; therefore the reasons why we should care about them must
not refer to aspects of peoples merely contingent social relationships. Finally,
human rights are timelessall human beings at all times and places would
be justified in claiming them.31
I do share this orthodox view to the extent that I shall argue that one of
the underlying moral values that international human rights seek to
express consists of moral human rights with these characteristics.
Beitz argues that orthodox conceptions tend to distort rather than illu-
minate international human rights practice. How might an orthodox view
of moral human rights mislead? First, it might lead to an undue skepticism
about the existence of international human rights, for it seems to imply that
many of the human rights in international law are not really human rights
at all. For example, the rights to an impartial trial, to take part in the govern-
ment of ones country, or to free elementary education could not be prein-
stitutional.32 And one cannot ground economic human rights, such as the
right to an adequate standard of living, solely upon our common humanity
because their moral basis includes certain features of peoples social rela-
tions.33 Finally many of the rights proclaimed in the Universal Declaration
of Human Rights, such as the rights to just compensation or to form labor
unions, cannot be timeless because they would be inapplicable to the
ancient Greeks or to China in the Chin Dynasty.34 But to hold that these
paradigm examples of international human rights are not really human
rights because they lack the distinctive features of natural rights is false.
I agree that any such skeptical conclusion is mistaken. However, Beitz

himself explains why my moderately orthodox conception of moral
human rights does not imply this false conclusion: Perhaps there are
objects of the kind that orthodoxy considers to be human rights, but
these objects, if they exist, are to be distinguished from the objects
referred to in international doctrine and practice as human rights.35
International human rights are legal rights, not to be identified with moral
human rights. Therefore, a conception like mine of moral human rights as
natural rights does not imply that real international human rights do or
should share the features of these fundamental moral rights.
Second, the orthodox view of moral human rights might suggest that
many of the existing international human rights are without any moral
basis. Beitz goes onto explain how the orthodox view does indeed lead to
this conclusion:
The distinguishing feature of this conception is the idea that human rights have
an existence in the moral order that is independent of their expression in inter-
national doctrine. . . . On such views, international human rightsthat is, the
rights of the declarations and covenantsderive their authority, to whatever
extent they have authority, from these underlying values that constitute their
foundations. The task of the theorist of international human rights doctrine is
to describe or discover these objects properly called human rights and then to
say which of the entitlements alleged to be human rights in international doc-
trine pass muster.36
Hence, presumably any international human rights that are not justified
as protections of one or more moral human rights have no moral basis and
therefore lack moral authority.
Now I do assume that moral human rights have an existence in the
moral order that is independent of their expression in international doc-
trine. But I do not believe that only moral human rights are properly
called human rights. The label human rights is quite properly applied to
the rights conferred by the international law of human rights. More to the
point, I do not believe that the only moral foundation for these interna-
tional human rights must be one or more moral human rights. It is entirely
possible, indeed probable, that another moral justification for many inter-
national human rights is, as Beitz proposes, social justice.37 All I shall try
to show is that one important, but not the only, moral justification for
many international human rights is that they recognize and protect some
noninstitutional moral human right.
3. CONCLUSION
I think and write primarily as a moral philosopher, only secondarily as a

political philosopher, and do not pretend to be a lawyer. Accordingly, my
purpose in this book is primarily to identify and explain the most important
moral dimensions of human rights. Because I believe in the existence of

noninstitutional moral human rights, it is appropriate that I begin with a
consideration of moral human rights. How, if at all, these are relevant to
human rights in international law and national legal systems remains to be
seen. I cannot, of course, assume that moral human rights, even if they are
real, do serve as one of the moral dimensions of legal human rights. There-
fore, I must examine both international and national law in some detail.
Whether my interpretation of the legal sources of human rights is accurate
must be judged in the end by lawyers rather than moral or political philos-
ophers. But it is my hope that my approach via moral human rights will
prove useful for lawyers and those concerned with practical politics as well
as illuminating to my philosophical colleagues.
However, let me be clear. I do not believe that my approach to human
rights theory is the only useful approach or even the most illuminating
approach. Although I have attempted to rebut the criticisms of those who
advocate alternative approaches, I have not argued and do not believe that
their approaches are mistaken or less valuable than mine. The theory of
human rights is and ought to be interdisciplinary. Any adequate under-
standing of human rights requires contributions by lawyers and political
scientists as well as moral, political, and legal philosophers. My only hope
is that my project will illuminate the moral dimensions of human rights.
This is not everything one might wish, but it is at least something of
interest to anyone who believes that human rights really matter in the
lives of human beings.
2
The Nature of Moral Human Rights
I believe and will attempt to demonstrate that one moral dimension of

the human rights in international law and national legal systems depends
upon the existence of, or at least the belief in, moral human rights. If this
is true, then any complete theory of human rights must include some
account of the nature of these rights. The language of rights is both vague
and ambiguous so that lexical definitions of the expression rights are for
the most part unhelpful for theoretical purposes. Even more awkward for
present purposes is the fact that philosophers and jurists disagree radically
about the nature of moral and legal rights, not to mention human rights.
Since I have spelled out and defended my conceptual analysis of rights at
length elsewhere, here I will apply my theory of rights with only minimal
explanation in the hope that it will help to clarify the moral issues rele-
vant to my present project.
1. RIGHTS
I suggest that we should take legal rights as our paradigm examples of

rights more generally. Even those who deny the existence of moral rights
admit the reality of legal rights, and noncontroversial examples of legal
rights are not hard to find. A creditor has a legal right to repayment, per-
haps with interest. An owner has a legal right to plant flowers on his or
her land if he or she wishes, and has a legal right that others not trespass
on that land to pick the flowers. An employee has a legal right to be paid
at the agreed rate. And in a democracy, a citizen normally has a right to
vote. It is generally agreed that rights such as these are legal advantages of
some sort.
Wesley Newcomb Hohfeld identified four very different legal advan-
tages.1 By an examination of the writings of judges and jurists, he showed
that they have used the expression a right to refer indiscriminately to a
legal claim, liberty, power, or immunity. Although he believed that these
fundamental legal conceptions are indefinable, he held that each has a
logical correlative because each refers to a legal relation between two
persons under the law. Thus, X has a legal claim against Y that Y do act A
if and only if Y has a legal duty to X to do A. X has a legal liberty in face
17
of Y to do A if and only if X has a no-claim against X that X not do A. X

has a legal power over Y to bring about some legal consequence C for Y if
and only if Y has a legal liability in face of X that Y bring about this legal
consequence C. And X has a legal immunity against Ys bringing about
some legal consequence C for X if and only if Y has a legal disability in
face of X to bring about this legal consequence.
I suggest that one can best analyze legal rights in terms of these funda-
mental legal conceptions. The language of rights is typically inadequate
for both theoretical and practical purposes because it usually describes
the content of any right with a brief opaque label, for example the right
to life or the right to freedom of speech. But does the former impose
any duty to provide the means to sustain life for those who are starving,
and does the latter render it permissible for one to make misleading claims
about ones merchandise? The standard labels are of no help at all in
answering questions such as these about the content of any right. How-
ever, if the content of any legal right is spelled out in Hohfeldian terms,
then its real legal significance will be made explicit and considerably more
precise. Also, defining rights in Hohfeldian terms will avoid confusing
claim-rights with liberty-rights or liberty-rights with power-rights.
Hohfeld taught us how often these confusions have led to logical fallacies
in the publications of jurists and even in judicial reasoning.
I do not, however, agree with Hohfeld that strictly speaking a legal
right consists of a single legal claim. Were the creditors legal right to
repayment nothing more than ones legal claim against the debtor, it
would not be a real legal advantage. It holds fast against a recalcitrant
debtor only because it also includes additional Hohfeldian positions, such
as the creditors legal power to sue for repayment in the event that the
debtor fails or refuses to repay the loan and the legal liberty to exercise
this legal power. Most important of all, one has a legal immunity against
the debtors extinguishing ones legal claim to repayment by the debtors
action of confronting one and saying I hereby cancel my debt to you. As
an American Legal Realist, Hohfeld should have recognized that any real
right consists of a number of fundamental legal relations.
Accordingly, I conceive of any legal right as a complex of Hohfeldian
legal positions. At its core is a single legal claim, liberty, power, immunity,
or even liability. This core defines the essential content of the right. It also
unifies the complex because all the associated legal positions are tied to
this core by the ways in which, if respected, they confer freedom or con-
trol over this core upon the right-holder. For example, the creditors legal
powers to sue for repayment or cancel the debt give one control over
ones core legal claim against the debtor. And ones legal liberty of exer-
cising or not exercising these powers gives one freedom regarding ones
claim. Together these associated legal positions confer upon the creditor
a unified freedom-control that I call dominion. Thus, I analyze any legal
right as a complex structure of Hohfeldian positions consisting of a
defining core together with associated positions that together confer some
The Nature of Moral Human Rights 19
defined sphere of dominion upon the right-holder in face of one or more

second parties.
Because I believe that legal rights are our paradigms of rights in gen-
eral, I take my conception of a legal right as a model for the conceptual
analysis of other species of rights. Its applicability to nonlegal institutional
rights such as the right of an enrolled student to use the university library
under the regulations of that academic institution or the right conferred
by the rules of a country club upon a member to use its golf course is
relatively unproblematic. More controversially, I believe that my model of
rights also applies to moral rights.
2. MORAL RIGHTS
Taking legal rights as my model, I conceive of a moral right as a complex

of moral positions that together confer a limited sphere of dominion upon
the right-holder. Its structure is just like that of any legal right. It consists
of a defining core moral position and several associated moral positions,
each of which, if respected, confers freedom or control over this core
upon the right-holder. A few illustrations might help to clarify this con-
ception of a moral right.
Everyone has a moral right not to be assaulted. Whatever one may
think about verbal assaults, if there are any moral rights at all, an uncon-
troversial example is the moral right not to be subjected to a violent phys-
ical attack. The defining core of this right is presumably the moral claim
against all others that they not assault ones person. But this could consti-
tute a real moral right only if it includes a number of associated moral
positions sufficient to confer dominion over this core claim upon the
right-holder. One probably also has the moral power to waive this claim,
as when one agrees to engage in a boxing match. One presumably has the
moral liberties of either exercising or not exercising ones power to claim
performance of the duty of another not to assault one and the power to
cancel that duty. Crucially, one must have a moral immunity against
having ones moral claim not to be assaulted extinguished by any action
of some second party.
A different kind of a moral right is the moral right of a parent to disci-
pline that parents child. The defining core of this right is the moral lib-
erty of the parent to punish or not punish the child in order to maintain
control over or correct the misbehavior of the child. Although whether
this renders it permissible for the parent to spank the child is contested,
that some such moral right exists is relatively uncontroversial. Associated
elements presumably include at least a moral claim against others that
they not hinder or prevent a parent from exercising his or her core liberty
and an immunity against having another extinguish this bilateral liberty.
In addition to moral claim-rights and liberty-rights, there are moral
power-rights. An illuminating example is the right of a parent to appoint
a babysitter. The core of this right is the moral power of a parent to dele-
gate a portion of the duty of child care to a willing second party. By the
exercise of this moral power, the parent cancels for a few hours or longer
some portions of the duty of child care, perhaps to feed the child and put
the child safely to bed, and imposes these duties upon a willing second
party for the agreed period of time. Presumably the parent thereby also
confers upon the babysitter the moral liberty to perform these delegated
duties. Associated moral positions include the moral liberty of exercising
or not exercising this core moral power and a moral immunity against
having this power extinguished by any act of another.
There are even immunity moral rights. For example, one has a moral
right that others not make promises on ones behalf. Its defining core is
the moral immunity against being morally bound by any act of another
that, without ones authorization, purports to constitute ones promise.
Thus, if someone organizing a conference says, Carl Wellman hereby
promises to present a paper at this conference, no promise by me has
been made. However, one can waive this immunity against some second
party by appointing that person as ones agent in charge of ones lecture
schedule. And one has the moral liberty to waive or not waive ones core
immunity against being bound by the act of that party purporting to
make a promise on ones behalf. Finally, one has a moral immunity against
having the defining core of this moral right extinguished by another.
Moral positions, and consequently the complex moral rights that they
constitute, are grounded upon moral reasons.2 Moral reasons are one spe-
cies of practical reasons, reasons for acting or not acting in some specific
way, but quite different from prudential reasons. Thus, a moral reason
why one ought not to strike another in anger is that this might injure that
person; a prudential reason not to strike out in anger is that the annoying
person is bigger and stronger than one and would probably retaliate. A
moral reason for a professor to prepare carefully for each class is that this
would benefit the professors students, but a prudential reason would be
that a good student evaluation might well lead to an increased salary. A
moral reason to inform the police about a suspect is that this might lead
to a conviction and thus prevent another harmful criminal act; a pruden-
tial reason would be to receive the announced reward. Not every kind
of moral reason could ground a moral right, and only very special moral
reasons could ground a moral human right. What these are will be the
subject of the following chapter.
On this conception of moral rights, moral rights are, to use the tradi-
tional language, natural rather than artificial. Because they are ultimately
grounded on objective factual considerations rather than any social insti-
tution or set of moral beliefs, they are not the products of individual or
social human design. At the same time, this is not a natural law concep-
tion of moral rights. They do not presuppose the existence of a code of
moral rules or principles, whether commands of God or dictates of pure
reason, independent of but applying to human action.3 To avoid any
misunderstanding, in my thinking and writing I replace the natural versus

artificial dichotomy with the distinction between moral and institutional
rights. However, one must qualify this difference and recognize that moral
rights are ultimately, but not completely, noninstitutional. Thus, the fact
that one has promised to do something is a moral reason for doing as one
has promised. Although this moral reason does presuppose the social
institution of promising, the act of promising imposes a moral obligation
upon one only because there is some independent moral reason to keep
ones promises, perhaps that promising invites reliance and that betraying
that reliance normally harms the promisee.
3. HUMAN RIGHTS
Moral human rights are moral rights of a very special kind. Most of ones
moral rights one possesses by virtue of some special status. As a promisee,
one has a moral right that the promisor perform the promised act. As a
parent, one has a moral right to discipline ones child. As someone who
has been wrongfully injured, one has a moral right to a remedy. But one
needs no special standing to possess human rights; human rights are rights
one possesses as a human being.
What is the significance of that little word as? It indicates the status
required for the possession of the specified right. The status required for
the possession of any right consists in the property or set of properties
that are necessary and sufficient to qualify one to be a holder of that right.
And ones status qualifies one for possession because it makes the relevant
normative considerations applicable to one. For example, the moral right
of the promisee is grounded at least in part upon the fact that by the act
of promising the promisor has invited one to rely upon him or her to act
as promised. Thus, being the promisee makes the morally relevant consid-
eration of invited reliance applicable to one. Hence, being the promisee
is both necessary and sufficient for one to possess the right that the
promisor keep his or her promise to one.
Similarly, being human is both necessary and sufficient for one to pos-
sess any moral human right. But precisely how does being human explain
ones possession of moral human rights? Normal adult human beings
differ from all the other beings known to us in a way that commands our
respect. There is something about human nature, often called human dig-
nity, that confers upon human beings a very special moral status. Imman-
uel Kant identified this with practical reason or the capacity for moral
action. And I would agree that practical reason is a necessary condition for
the possession of any moral human right. Indeed, only a being capable of
moral action could possibly possess any moral right, whether a special
right or a human right.4 This is because a moral right confers a limited
sphere of moral dominion upon its possessor. Since dominion confers
freedom and control, both of which can be exercised only by acting, it
would be idle and misleading to ascribe moral rights to any being inca-
pable of action. Therefore, a necessary condition for the possession of any
moral human right is the capacity for moral action of any normal adult
human being.
But some biological human beings, especially neonates and the irre-
versibly comatose, are incapable of acting in any morally relevant sense.
Therefore, it is only beings that possess the normal human capacities for
acting who could possibly possess any moral human right. It may seem
monstrous to deny that infants can have any moral human rights. But no
moral philosopher, and certainly no parent, imagines that a suckling babe
has a moral duty not to inflict pain upon its mother by biting her breast
or that a very young child has a moral obligation to refrain from throwing
disliked food onto the floor. We all realize that children acquire moral
obligations gradually as they grow to become responsible moral agents.
Why not recognize that similarly infants acquire their moral rights only as
they develop their capacities for moral agency?5 This is not a morally
objectionable conclusion because it does not imply that it is morally per-
missible to mistreat infants. Because not all duties are imposed by corre-
sponding rights, we can and do have moral duties not to harm infants in
any serious manner. Accordingly, one can and should accept the conclu-
sion that only human beings defined not as members of a biological spe-
cies but in the morally relevant sense as persons with the normal human
capacities for moral action could possess any moral human right.
However, I do not agree with Kant that practical reason or the capacity
for moral action is a sufficient condition for the possession of moral
human rights. To my mind, human dignity requires a much broader range
of characteristically human capacities. To qualify for the possession of the
full range of moral human rights, one must also have additional human
capacities such as imagination, creativity, the ability to communicate and
interact with others, and a concern for their well-being or suffering. Espe-
cially relevant is the fact that human beings have normal human interests
that can be advanced by the actions of others and are vulnerable to human
actions and social institutions that damage these interests. Therefore, a
much richer conception of human nature is presupposed by the principle
that being human is the status that is both necessary and sufficient for the
possession of moral human rights. This conclusion depends upon the
nature of the grounds of moral human rights, the subject of the next
chapter.
4. MODALITY
Most lawyers and many moral philosophers assume that all human rights,
even moral human rights, are claim-rights. Very often this is because they
have been convinced by the reasoning of Wesley Newcomb Hohfeld or
Joel Feinberg. Although Hohfeld distinguishes between legal claims,
liberties, powers, and immunities, he holds that in the strict sense only
legal claims are legal rights.6 Feinberg generalizes this thesis when he
explains that to have a right, whether legal or moral, is to have a claim
against someone whose recognition as valid is called for by some set of
governing rules or moral principles.7 This analysis of rights has been
widely influential. For example, both Henry Shue and Jack Donnelly, two
of the most important human rights theorists, cite Feinberg when they
explain how claiming is essential to moral human rights.8
I believe, on the contrary, that not all moral human rights are claim-
rights. The modality of any right is determined by the modality of its
defining core. Now it is true that the defining core of many moral human
rights is a moral claim. For example, the defining core of the moral human
right not to be tortured is the moral claim of any human being not to be
subjected to torture by others. And the defining core of the moral human
right to physical security is at least the moral claim that others not forc-
ibly assault one in any potentially injurious manner. Hence, these and
many other paradigmatic moral human rights are claim-rights.
However, there are other important moral human rights that are not
claim-rights. For example, the moral human right to liberty is, as its name
suggests, a liberty-right. Its defining core is the general moral liberty of
acting as one chooses as long as so acting does not violate any contrary
moral obligation. Although it also contains a moral duty of others not to
hinder or prevent one from acting freely without strong justification, it is
a misinterpretation to reduce the moral human right to liberty to this
negative duty. This duty serves to protect the core moral liberty of this
right, not to define its essential content.
A very different moral human right is the right to enter into agreements,
for example to make a promise. This is neither a claim-right nor a liberty-
right but a power-right. Its defining core is the moral power of entering
into agreements, and this is a power rather than a liberty because entering
into an agreement changes the moral relations between the participants.
It creates new moral obligations and rights. For example, making a prom-
ise imposes an obligation to do as promised upon the promisor and con-
fers a right to performance upon the promisee. However, this moral
human right also contains a moral liberty of exercising its defining moral
power and a general moral claim against interference with this exercise by
others.
Finally, there is a moral human immunity-right that one not have any
of ones moral human rights extinguished by any act of legislation. To be
sure, a legislature could, and some have, enacted statutes that imposed
slavery upon certain classes of human beings. Although they have thereby
extinguished the legal right to liberty of the enslaved human beings, they
have not taken away their moral human right to liberty. This is what the
French Declaration of the Rights of Man and the Citizen means when it
describes these rights as imprescriptible. It is possible, of course, that I
have misinterpreted one or more of these rights. But I am confident that
careful reflection upon the moral import of these and other moral human
rights will show that not all of them are claim-rights. There are moral
human rights with a variety of modalities, probably at least as many as
Hohfeld distinguished.
5. ADVERSARIAL NATURE OF RIGHTS
The insight misrepresented by the belief that all real rights are claim-
rights is that rights are by their very nature adversarial. Rights are essen-
tially relational so that any real right holds against one or more second
parties. One way, and perhaps the most common way in the law, for a
right to hold against another is for a claim-right to impose a correlative
obligation upon some second party. But even here the claim of the right-
holder holds fast against the duty-bearer only if the duty-bearer cannot
extinguish or cancel the claim at will. Thus, a right can hold against some
second party by virtue of some immunity, either the core position in an
immunity-right or a protective immunity in a right with some other
modality. Similarly, many liberty-rights are protected liberties, liberties
protected by associated duties of second parties not to interfere with the
right-holders exercise of the core liberty of action. Also, some rights hold
fast against second parties by including a liberty of the right-holder to
resist any potential violation, for example the liberty to use proportionate
force against anyone who assaults or threatens to assault one.
Accordingly, any adequate description of the nature of moral human
rights must identify their second parties, those against whom they hold.
Some authorities on human rights insist that moral human rights hold
primarily or even exclusively against states, primarily the government of
ones own society. For example, Louis Henkin asserts, Human rights, I
stress, are rights against society as represented by government and its offi-
cials.9 And Jack Donnelly concludes his exposition of the concept of
human rights by asserting, Finally, human rights are conceived as being
held primarily in relation to society and particularly to society in the form
of the state.10 In fact, I once defended this thesis myself.11 There are two
plausible arguments often used to support this conclusion. One is that the
historically important natural rights documents, from which the contem-
porary concept of human rights is derived, are essentially political decla-
rations concerning the moral relation between human beings and their
governments. Thus the American Declaration of Independence asserts,
We hold these truths to be self-evident, that all Men are created equal,
that they are endowed by their Creator with certain unalienable rights. . . .
That to secure these rights governments are instituted among men. And
Article 2 of the French Declaration of the Rights of Man and the Citizen
reads, The aim of all political association is the preservation of the natural
and imprescriptible rights of man. Nevertheless, the fact that these doc-
uments are essentially political does not presuppose that only states are
the primary, much less the only, second parties to all moral human rights.
Precisely because their primary purpose is to resist the oppression of indi-
vidual persons by their governments, these historical documents empha-
size those aspects of natural rights that restrict morally permissible state
action. But that the purpose of these documents is limited to political
aims does not imply that their conception of natural rights is similarly
limited.
On the contrary, these documents conceive of the rights of man as
primarily imposing moral duties upon other human beings and only sec-
ondarily upon state officials. Thus, the French declaration begins
The representatives of the French people, organized as a National Assembly,
believing that the ignorance, neglect, or contempt of the rights of man are the
sole cause of public calamities and of the corruption of governments, have
determined to set forth in a solemn declaration the natural, unalienable, and
sacred rights of man, in order that this declaration, being constantly before all
the members of the Social body, shall remind them continually of their rights
and duties.
Notice that the first purpose of this historic document is to remind the
members of society of their rights and duties.
And the political philosophy of John Locke, implicit in the Declaration
of Independence, clearly maintains that the natural rights of man impose
moral duties upon all individual human beings whether or not any gov-
ernment exists:
The State of Nature has a Law of Nature to govern it, which obliges every
one. . . .
And that all Men may be restrained from invading others Rights, and
from doing hurt to one another, and the Law of Nature be observed, which
willeth the Peace and Preservation of all Mankind, the Execution of the Law
of Nature is in that State, put into every Mans hands, whereby every one has
a right to punish the transgressors of that Law to such a Degree, as may
hinder its Violation.12
And it is precisely because this nongovernmental protection of individual

persons from violations of their rights by other individual persons is often
unequal and ineffective that governments are instituted among human
beings to better secure their natural rights.
It is true that many of the natural rights these documents declare do
hold primarily against nation-states or their governing officials. Obvious
examples are the rights not to be taxed without consent, to be presumed
innocent until pronounced guilty, and to the equal protection of the law.
However, most if not all of these essentially political moral human rights
are derived from more fundamental basal rights. What I call a basal moral
human right lies at the base of the system of moral human rights because
it is not grounded upon any other human right and serves as a base for
other human rights that it grounds.13 A derived moral human right is
grounded on some presupposed right, either a basal or another derived
moral human right. For example, the moral human right to equal protec-
tion of the law is a special form of the basal moral human right to equi-
table treatment and the moral human right to be presumed innocent until
pronounced guilty is probably a form of protection conducive for the
secure enjoyment of the basal moral human rights to life, liberty, and
property. Therefore, the fact that some of the rights asserted in these tra-
ditional declarations hold primarily against states is not evidence that the
second parties to all human rights are equally limited. It does nothing to
refute the view that basal moral human rights hold against all other indi-
viduals, nation-states, and nongovernmental organizations, nor does the
fact that some derived moral human rights hold primarily against
nation-states show that they do not also hold against private persons and
nongovernmental organizations as well. Thus, the basal moral human
right to personal security surely implies the derived right not to be sub-
jected to torture, and this derived moral human right presumably imposes
a duty upon other individuals and nongovernmental organizations as well
as governments not to torture any human being.
The second very plausible argument for the thesis that moral human
rights hold primarily or even exclusively against societies, and in partic-
ular upon the government of ones state, assumes that human rights are
essentially social. For example, Rex Martin begins by observing that
human rights are typically not claims made on men in general. Therefore,
he rejects my view that moral human rights are essentially general rights,
moral rights of all human beings holding against all human beings. Instead,
they are one sort of special rights, rights that impose duties upon only
those who stand in some special relation to the right-holder.14 This is the
relation of individual human beings to their society, and especially offi-
cials in the governments of their society.
But why build this restricted range of second parties into the concep-
tion of human rights?
There is an important reason, which needs bringing out, for precisely this
restriction. It is assumed in talk of human rights that men live in societies.
Many of the goods identified in claims-to are goods obtained and enjoyed in
a social setting. Here claims against others are for the most part addressed
not to individuals as such but, rather, to individuals insofar as they exercise
the powers of some assigned agency in that particular social setting. Such
claims-against hold not against everyone individually but against an organ-
ized society; and it is of its institutionsagenciesof that society that
satisfaction is expected.15
Presumably, the primary agency of any politically organized society is its

government.
I heartily agree that moral human rights are essentially social. Indeed, I
would go further and insist that all moral rights are essentially social. This
is because moral rights are ultimately grounded on specifically moral
reasons and moral reasons are essentially social reasons. They are reasons
both for any agent to act in some manner and for those in society with that
agent to react positively or negatively depending upon whether the agent
does or does not act accordingly.16 I also agree that many human rights are
rights to goods, such as a fair trial or social security, that human beings can
enjoy only in an organized society. But these are derived human rights
rather than the basal moral human rights that I believe to be general moral
rights. Finally, I suggest that ones social life includes ones interactions
with other private individuals as well as ones relations to those who hold
official positions in the government of ones society. Therefore, the social
nature of moral human rights is no reason to deny that basal moral human
rights hold against all other human beings, whether acting in their private
or their official capacities.
6. UNIVERSALITY
Most moral philosophers and political theorists maintain that moral

human rights are universal with respect to their possessors. Thus, Joel
Feinberg defines moral human rights as generically moral rights of a fun-
damentally important kind held equally by all human beings, uncondi-
tionally and unalterably.17 And in the introduction to his widely respected
Universal Human Rights in Theory and Practice, Jack Donnelly explains
that The universality of human rights is the central theme of this vol-
ume.18 In this respect they continue the natural rights tradition. The
American Declaration of Independence proclaims: We hold these truths
to be self-evident, that all Men are created equal, that they are endowed
by their Creator with certain unalienable rights, that among these are
Life, Liberty, and the Pursuit of Happiness. Although the Universal Dec-
laration of Human Rights does not presuppose any traditional theory of
natural rights, it echoes this tradition when it begins: Whereas recogni-
tion 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. Because I define a moral human right as a moral right
one possesses as a human being, it seems that they must be held univer-
sally by all human beings at all times, in all places, and whatever the
circumstances.
However, I would clarify this conclusion with the qualification that
moral human rights are possessed by human beings in the morally rele-
vant sense. Hence, it is not true that all members of the biological species
of human organisms possess moral human rights. Because only a being
capable of moral action could possess a moral right, neonates and the
irreversibly comatose are incapable of holding any moral human right.
And at some stage in the development of dementia, those suffering from
Alzheimers disease lose the human rights they once possessed. Although
this limitation seems counterintuitive, it is not morally subversive, for it
does not imply that it is morally permissible to mistreat neonates or those
suffering from extreme dementia. We can and do have duties not to treat
such individuals in morally objectionable ways because to do so would be
to violate moral duties not imposed by rights.
Charles Beitz rejects any natural rights theory that insists that the uni-
versality of human rights extends to all times and all places:
The framers of the Declaration could not have intended that the doctrine of
human rights apply, for example, to the ancient Greeks or to China in the
Chin Dynasty or to European societies in the Middle Ages. International
human rights, to judge by the contents of the Declaration and covenants, are
suited to play a role in a certain range of societies. Roughly speaking, these
are societies that have at least some of the defining features of moderniza-
tion: a reasonably well-developed legal system (including a capability for
enforcement), an economy with some significant portion of employment in
industry rather than agriculture, and a public institutional capacity to raise
revenue and provide essential collective goods. It is hard to imagine any
interesting sense in which a doctrine of human rights pertaining principally
to societies meeting these conditions could be said to be timeless.19
I agree that international human rights, the human rights that are recog-
nized in international law by human rights covenants, are not possessed
by all human beings at all times. Because they are conferred upon human
beings by treaties sponsored by the United Nations, they could not have
been possessed before these covenants were ratified.
However, moral human rights exist independently of any legal institu-
tions. Therefore, human beings could have possessed them in ancient
Greeece or even long before the Greek city states were founded. Still, one
must confront Beitzs challenge of explaining some interesting sense in
which moral human rights could be timeless. And one must concede that
many of the human rights in the Universal Declaration of Human Rights,
such as the right to join a labor union or the right to social security, are
applicable only within modern societies. It would seem that one must
either deny that there can be any such moral human rights or restrict the
universality of moral human rights to modern times.
I believe that one should accept neither horn of this dilemma. One can
and should escape between its horns by distinguishing between the pos-
session of a human right and its applicability. This distinction is nicely
illustrated by the human right to security asserted in Article 25.1 of the
Universal Declaration, which reads in part: Everyone has . . . the right to
security in the event of unemployment, sickness, disability, widowhood,
old age or other lack of livelihood in circumstances beyond his control.
Notice that this is a right of everyone, but it is applicable only when one
lacks a livelihood in circumstances beyond ones control. Thus, it is a uni-
versal conditional right, a right that everyone possesses but that becomes
applicable only under special circumstances. Now this and other moral
human rights that presuppose the circumstances of modern societies are
derived moral human rights. Because their derivation presupposes special
conditions, they are conditional rights. And because they are derived from
basal moral human rights that one possesses simply as a human being, one
also possesses them as a human being. Hence, they are universal moral
human rights that are applicable only under whatever conditions are pre-
supposed by their derivation. Therefore, the fact that they would have
been inapplicable in ancient societies, or indeed in some societies today
that lack these conditions, does not undermine their possession at all
times and in all places.
However, there are some human rights that are not universally pos-
sessed by all human beings. For example, women have a moral human
right to special care during pregnancy. Although this is a contingent
human right, a right to special care if a women becomes pregnant, this
does not preserve its universality. It is not a moral right of everyone, male
or female, to special care if one becomes pregnant, for it is impossible for
a male to become pregnant. Hence, this is a womans right, a moral right
one possesses as a woman. How, then, could it be a human right, a right
one possesses as a human being? It can be because it is a derived human
right, a right derived by subsumption from the basal moral human right
to be rescued from potential harm. And because this basal moral human
right is a right one possesses simply as a human being, any right derived
from it is also possessed as a human being. Another example of a special
human right, a right possessed by only some human beings, is a childs
right to special protection. Because children are vulnerable to serious
harms in ways and to a degree that normal adults are not, the basal moral
human right to be rescued from potential harm implies that they have a
derived right to special protection. Once more, although this moral
human right lacks full universality, it is a genuine human right because it
is derived from a right that is possessed by all human beings at all times
and in all places. Thus, the universality of moral human rights is real, but
subject to two qualifications. It is only human beings in the morally rele-
vant sense, members of the human species with the capacities required
for moral choice and action, that possess moral human rights. And some
derived moral human rights are possessed only by members of some spe-
cial class of human beings.
Any theory that maintains the universality of moral human rights must
face an even more formidable challenge, for it seems to some theorists
incompatible with at least four kinds of relativity.
1. The relativity of morality might imply that there can be no universal
moral human rights. The Executive Board of the American Anthropolog-
ical Association (AAA) summarized some of the findings of the sciences
that deal with the study of human culture, most notably: Standards and
values are relative to the culture from which they derive so that any
attempt to formulate postulates that grow out of the beliefs or moral
codes of one culture must to that extent detract from the applicability of
any Declaration of Human Rights to mankind as a whole.20 Thus, because
the moral standards that are applicable to anyone, including standards of
moral rights, are defined by the culture of ones society and these standards
differ from society to society, there can be no moral human rights pos-
sessed by all individuals in all societies. This ethical relativism is plausible
and suggested by the scientific fact that no technique of qualitatively
evaluating cultures has been discovered.21 However, what is relevant is
not whether there is any technique for evaluating cultures but whether
there is any way of establishing judgments about moral rights by objective
moral reasoning; and whether there is any way of doing the latter is a
matter to be decided by moral theory, not any empirical science.
I have maintained that the existence of moral rights, including moral
human rights, can be established by an appeal to moral reasons, morally
relevant facts. How this is so is the subject of the next chapter. If my view
is correct, then ethical relativism is either false or irrelevant. It is false if it
denies that there are moral standards of any kind that are not relative to
culture; it is irrelevant if it denies only that the moral code accepted in
any society is relative to the culture of that society. It is essential to distin-
guish between two very different sorts of moral standards. Positive
morality, or what I call simply morality, consists of those moral standards
generally accepted and sanctioned in any society; critical morality, or what
I call morals, consists of morally relevant reasons that may or may not be
recognized as such by the members of a society.22 It is the latter and not
the former that could serve as the grounds of moral human rights as I
conceive of moral rights. Whether this theory of moral epistemology is
valid is a question too large to be settled here. However, if this or any
similar theory is correct, then there could be universal moral human
rights in spite of the existence of diverse moral codes in different societies.
2. Conceptual relativity suggests that the concept of human rights is
not universally applicable. Adamantia Pollis and Peter Schwab argue that
our concept of human rights is a Western construct inapplicable to many
non-Western societies: From the seventeenth to the twentieth centuries
in England, France, and the United States, the legal and political roots of
human rights were formulated. Through the philosophic and legal writ-
ings of Grotius, Locke, Montesquieu, and Jefferson a new conception of
popular sovereignty and individual rights was conceived.23 And even Jack
Donnelly, a defender of the universality of human rights, argues that the
concept of human rights is an artifact of modern Western civilization
lacking in most non-Western cultural traditions.24
No one can plausibly deny that the language anyone speaks and the
concepts it expresses are parts of the culture of ones society. And the fact
that some individuals travel from society to society and learn to speak and
think in several languages does not disprove the fact that any concept is
relative to the culture or cultures that embody it. Nor would I deny that
the concept of moral human rights is a cultural product of the philosoph-
ical and legal traditions of modern Western societies. What I do deny is
that this proves that it is inapplicable to other societies, even those that
lack any conception of human rights. Many, perhaps most, of the concepts
of the natural sciences originated in and were developed within Europe.
But this does not imply that physics, chemistry and biology are inappli-
cable in distant lands where most of the inhabitants lack any real under-
standing of the natural sciences. In fact, when I was an undergraduate, I
had to enroll in a simplified course in physics because I lacked the
advanced mathematics required to understand the concepts used in mod-
ern physical theory. But this did not exempt me from the laws of physics.
Although the social sciences are different from the natural sciences in
important ways, they also apply to societies in which most if not all of the
inhabitants lack the concepts used in the monetary theory of banking or
the game theoretic analysis of political coalitions.
More crucially, the fact that the concept of moral human rights is a
product of Western cultures and that concepts are culturally relative does
not undermine the universality of moral human rights because these facts
are irrelevant to who does or does not possess them. The status that is
necessary and sufficient for the possession of any basal moral human right
is being human in the morally relevant sense. This consists in being a
member of the biological species of human beings and being capable of
moral action. One is not required to understand or even be vaguely aware
that one satisfies these requirements and thereby possesses moral human
rights in order to possess them. Thus, in a society in which the practice of
slavery is unquestioned, even those slaves who believe that their subservi-
ence is morally justified have a moral human right to liberty of which
they are unaware.
3. The relativity of human nature casts doubt upon the universality of
moral human rights. One does not need any special status, such as being a
parent or a promisee, in order to possess human rights because a human
right is by definition a right that one possesses simply as a human being.
But do human beings share any universal human nature? The Executive
Board of the AAA denies this: We thus come to the first proposition that
the study of human psychology and culture dictates as essential in drawing
up a Bill of Human Rights in terms of existing knowledge: 1. The indi-
vidual realizes his personality through his culture, hence respect for individual
differences entails a respect for cultural differences.25 Jack Donnelly develops
this same insight as follows:
In any particular case, human naturethe realized nature of real human

beingsis a social as well as a natural product. Whether we conceive of
this process as involving cultural variation around an unalterable core or as
cultural variation largely within a physiologically fixed free range, there is a
social side to human nature that cannot be denied, at least insofar as that
nature is expressed. Human nature is a range of possibilities varying, in
part in response to culture, within certain psychobiological limits; it is as
much a project and in individual and social discovery as it is a given.26
This variation in the nature of individual human beings suggests that

there is no universal human nature to serve as the status that confers uni-
versal human rights.
However, Donnelly recognizes that there are limits to this cultural var-
iability of human nature. What I would suggest is that the complex con-
cept of being a member of the biological human species with the capacity
for moral action imposes limits on the variability of being human in the
morally relevant sense. Thus the universality of human nature required
for the universality of basal moral human rights is implied by the gener-
ality of the concept of being human in the morally relevant sense.
But the properties that constitute human nature in this sense will
probably be some lowest common denominator of the very different
natures of individual human beings. Will these be morally relevant and, if
so, will they be sufficient to confer moral human rights? Well, the status
required for the possession of any right confers this right because it makes
the grounds of that right relevant to the right-holder. Thus, whether the
universal human nature implicit in the concept of being human in the
morally relevant sense does actually confer any moral human rights
depends upon the nature of the grounds of moral human rights. In the
next chapter I will show how this is possible.
4. The most serious threat to the universality of moral human rights is
the relativity of circumstances. Although human rights are rights of indi-
vidual human beings, no individual lives or could long survive in complete
isolation. Individuals live in societies that occupy distinct territories and
have developed various social institutions to solve the problems that con-
front any group of human beings. The AAA Statement on Human Rights
reminds us that
Over the past fifty years, the many ways in which man resolves the prob-
lems of subsistence, of social living, of political regulation of group life, of
reaching accord with the Universe and satisfying his aesthetic drives has
been widely documented by the researches of anthropologists among peo-
ple living in all parts of the world. All peoples do achieve these ends. No
two of them, however, do so in exactly the same way, and some of them
employ means that differ, often strikingly, from one to another.27
Even if there is a universal human nature, any moral rights it could confer
must vary according to the variable natural and social circumstances in
which individuals live. Therefore, it would seem that there can be no uni-
versal moral human rights.
Pollis and Schwab apply this reasoning to explain why the human
rights asserted in the Universal Declaration of Human Rights cannot be
universally valid:
It is important to note that the philosophic and ideological revolution of

the seventeenth and eighteenth centuries regarding the nature of man and
his inalienable rights was accompanied by radical socioeconomic transfor-
mations and changing societal values. In Western Europe the communal
bonds of feudalism had collapsed and extended family ties were disrupted
by the Industrial Revolutionby urbanization and the factory. A capitalist
system came into existence and a new industrial class rebelled against the
constraints of government, demanding political participation and political

freedoms and arguing the ethics of social contract.28
One should add the emergence of the nation-state that transformed inter-
national relations and often threatened the freedom and well-being of
individual citizens. These social circumstances explain the validity and
relevance of civil and political rights in modern Europe.
But Pollis and Schwab argue that many of these human rights were
inapplicable to other parts of the world in more recent times because the
social circumstances were very different:
The new African states were inadequate in infrastructure, had little capital
for development, had extraordinarily high rates of unemployment and
underdevelopment, were basically one-crop economies at the mercy of
Western capital, and had a history of oppression through the slave trade.
Colonialism left them bereft of viable political and economic structures,
concurrently disrupting and distorting traditional institutions. Toure and
Nkrumah saw little choice but to make the state or party the instrument of
change, and economic development the primary goal. Freedom from want,
from hunger, and from economic deprivation necessitated limiting political
liberties that could destroy the party or state in its initial stages.29
Hence, the civil and political rights in the Universal Declaration have only
limited applicability and are not universal moral human rights.
I admit, indeed I insist, that the applicability of any moral human right
is relative to the circumstances. Nevertheless, I would argue that there are
some circumstances of life that are shared by all human beings. These
include the limited availability of the resources needed to sustain ones
life, the threat of violent attacks that endanger life or limb, the need to
coordinate ones activities with those of others in order to live in society
with them. In the following chapter I will explain how these impose
common human needs that are sufficient to ground a small number of
universal basal moral human rights.
7. POLITICAL IMPORT
Earlier in this chapter I rejected the view that moral human rights are
essentially political, that they hold exclusively or primarily against
nation-states. I argued that basal moral human rights, those that stand at
the base of the system of moral human rights and from which more spe-
cific human rights are derived, hold primarily against all other persons,
whether acting in their private or official capacities.
At the same time, one must recognize that moral human rights have
been historically and remain today of great political importance. To
explain their political relevance one must understand that there are three
kinds of parties to any right. Rights are essentially adversarial; they are
relevant to some potential conflict of wills between the right-holder and
some person or organization that might attempt to hinder or prevent the

possessor from exercising or enjoying that right. A second party is any
such potential adversary against whom the right holds. A third party is
any person or organization in a position to intervene and side with one of
the principal parties in any confrontation. For example, if Jane loans John
twenty dollars, then as creditor she has a right that he repay the loan on
or before the agreed date. John as debtor has a corresponding duty to
repay the borrowed amount to Jane. Here Jane is a first party and John a
second party to Janes right. Tom, who could loan John ten dollars to
enable him to repay the loan, Dick, who could try to dissuade John from
repaying the loan, and Harry, who could prevent John from fulfilling his
duty of repayment by stealing his wallet, are all third parties to Janes
right to be repaid by John. The political import of moral human rights
consists in the fact that nation-states and international institutions are
second and third parties to them.
As a second party, ones own state might violate the moral human right
to life of its citizens by executing them without a fair trial or by unofficial
disappearances by the secret police. On a much larger scale, a state
might violate the rights to life of many of those it kills in an unjust war.
Again, a state could, and some do, fail to respect the moral human right to
liberty by imprisoning those charged with crimes of which they have not
been convicted or by detaining suspects indefinitely without indictment
as enemy combatants. Although these basal moral human rights hold
also against private individuals, states have the ability to violate them on
a much larger scale than even serial murderers or kidnappers. And there
are many derived moral human rights, such as the right to equal protec-
tion of the law or to freedom of speech, that hold primarily against ones
own government. Any state is in a position to violate these rights by
denying females equal political rights with males or enacting legislation
prohibiting any public criticism of governmental policies.
Even more important is the fact that states are third parties in moral
human rights. Paradoxically, states are both the most serious violators of
moral human rights and at the same time the most effective protectors of
these same rights. This is possible because a nation-state can act only
through the actions of its state officials, and there is a division of powers
between these officials. Thus, some members of a government can violate
human rights while at the same time other governmental officials can act
to prevent or punish such violations. For example, the legislature can
enact statutes prohibiting specified administrative officials from perform-
ing actions that would violate one or more human rights, and judges
together with other administrative officials can act to prevent or punish
such administrative misconduct. Also, the courts can declare some enacted
statute that threatens the exercise or enjoyment of one or more moral
human rights invalid, either as unconstitutional or as contrary to the
common law. Clearly the state has far more legal authority and available
resources to protect the rights of its residents than any private person or
group. For example, a state is in a better position to intervene to protect

the right to life of those subject to its jurisdiction against potential mur-
derers or to protect the right to own private property of its citizens against
thieves than individual citizens or even groups of vigilantes.
International institutions are also second and third parties to moral
human rights. Because of the very limited power of international institu-
tions and their indirect impact on the lives of individual persons, their
importance as second parties is relatively unimportant. And although the
institutions of the international community are also third parties to moral
human rights, hence the appropriateness of recognizing human rights in
international law, their ability to intervene to protect individuals whose
moral human rights are threatened is restricted both by the sovereignty of
nation-states and by their very limited power in comparison with the
military and political power of states.
Accordingly, the political import of moral human rights lies in the fact
that nation-states and international institutions are both second and third
parties in moral human rights. In both roles, however, the actions or fail-
ures to act of nation-states are of far greater importance than any interna-
tional action or inaction.
8. INALIENABILITY
Although my conception of a human right is formulated in language

derived from contemporary analytic moral philosophy, it has several tra-
ditional implications. One of these is that moral human rights are neces-
sarily inalienable. In the strictest sense, derived from the law of property,
to alienate a right is to transfer it to another as one can transfer ones
property right in ones watch by selling it to a willing buyer. And in a
broader but related sense, to alienate a right is either to transfer it to
another or to divest oneself of that right as one can divest oneself of ones
ownership of ones watch by throwing it out with the trash.30 But if one
possesses human rights simply as a human being, then one cannot give
away or give up any of ones human rights because as long as one remains
oneself, among other things a human being, ones human nature will
qualify one for the possession of any and all human rights. Therefore, a
wife cannot transfer her moral human right to participate in the govern-
ment of her society to her husband in order to give him two such rights
and escape the responsibilities of political participation. Nor can a candi-
date for public office renounce his moral human right to freedom of
speech in order to become an administrator in a government that insists
on censoring its public officials.
But is it true that there is no voluntary act by which one can divest
oneself of ones moral human rights? One can, of course, commit suicide.
One then no longer possesses any moral human rights simply because one
no longer exists. Or one could consent to radical surgery to remove a very
large malignant tumor from ones brain. If one thereby were to become
incapable of moral action, one would no longer be a human being in the
morally relevant sense. Although one would still exist, and perhaps even
be the same person one used to be in some sense, one would no longer
possess any moral human rights because one would now lack the status
required to confer these rights. However, actions such as these do not
demonstrate any power to alienate ones rights. This is because they are
not normally performed with the intention of extinguishing ones rights.31
This restriction on the concept of the power to alienate to actions with
some such intention is not an arbitrary limitation, for it exists in the law of
property from which the concept of alienating a moral right is derived. If
I abandon my watch because I feel that to wear a Rolex is too ostentatious,
then I cease to own it and anyone who finds it in my trash has the legal
power to claim it as his or her own. But if I lose my watch, perhaps by
carelessly leaving it on a table in a library where I have been doing research,
I retain my ownership and anyone who finds it has a legal obligation to
make every reasonable effort to find its owner and return it to me.
It is possible, however, to waive some of ones moral human rights. For
example, one can waive ones moral human right not to be assaulted by
consenting to engage in a boxing match against a designated opponent.
But by waiving ones right not to be assaulted by this opponent one does
not alienate this right, for one still possesses it as is shown by the fact that
it still holds against all others with whom one has not consented to box.
Whether one can waive ones moral human right to life, perhaps by con-
senting to euthanasia when one is terminally ill and suffering excruciating
pain, is controversial.
9. IMPORTANCE
There are, however, other aspects of traditional theories of moral human

rights that are not implied by my conception of them. Moral human rights
are generally assumed to be the most important of all our moral rights.
Jack Donnelly begins his explication of the concept of human rights much
as I have by defining them as rights one has because one is a human per-
son.32 He then reports: There is also a strong and quite essential implica-
tion that human rights, as a particularly important class of rights, take
priority over all but the most serious non-rights demands. If rights in gen-
eral are trumps, human rights are the honor cards in the suit.33 But my
conception of moral human rights does not imply nor do I believe that
they are necessarily of great importance.
It is not true in general that rights are trumps. This popular slogan
was coined by Ronald Dworkin in his interpretation of the role that
constitutional rights play, especially in United States law. It may be true
that moral and constitutional rights of this sort do trump social goals in
the justification of political action. However, it is not true of moral rights
in general that they trump all other personal and social values. The prom-
isee has a moral right that the promisor act as promised. But if I have
promised to meet a colleague during our office hours to discuss a philo-
sophical problem, it would not take more than serious inconvenience to
justify my infringement of my colleaguess right. Again, one has a moral
right that others not defame one, that they not intentionally bring one
into undeserved disrepute by making written or spoken false statements.
But if a jealous colleague repeatedly alleges that I prefer Budweiser to fine
wines, the damage to my reputation at high table in Saint Johns College
would be trivial at worst. On the other hand, some promises ought to be
taken very seriously, and slander or libel sometimes does seriously damage
ones reputation. In short, the importance of any of these moral rights will
vary from occasion to occasion.
I believe that the same is true of moral human rights. But human rights
have traditionally been thought to be much more important than lesser
kinds of moral rights, perhaps because historically they have been asserted
in very important political documents such as the American Declaration of
Independence and the French Declaration of the Rights of Man and the
Citizen. And many of the human rights asserted in these documents are of
the very highest importance. But this is not something one should build
into ones definition of a human right. In this respect, the structure of the
Universal Declaration of Human Rights is instructive. Article 3 reads,
Everyone has the right to life, liberty and security of person. Although
ones moral right to life may always be of paramount importance, the
moral human right to liberty is not. Ones basal moral right to liberty
embraces such trivial liberties as the moral liberty to scratch ones head
when it itches or to drink beer rather than wine if one prefers. But at the
other end of the spectrum it implies the right not to be held in slavery or
servitude asserted in Article 4 and the right not to be subjected to arbitrary
arrest, detention, or exile asserted in Article 9. It is instructive to note that
the Universal Declaration seems to restrict the human right to liberty to
the right not to be confined without ones consent. This is a derived moral
human right implied by the basal human right to liberty in general. Simi-
larly, ones human right to security of person presumably includes the
moral right not to be hurt, the right not to be caused to experience unnec-
essary pain, discomfort, or distress. Although this implies trivial rights like
the right not to be caused to feel distress by a malicious review of ones
recent book, it also implies the right not to be subjected to torture or cruel,
inhuman, or degrading treatment or punishment asserted in Article 5. To
my mind, this suggests that although the most general moral human rights
are not necessarily very important, they often imply more specific rights
that are of the greatest importance.
In assessing the importance of any moral human right one must con-
sider the various persons for whom the right has value and the circum-
stances upon which this value depends. Thus, the moral human right to
freedom from racial discrimination may be very important in a racially
mixed society but relatively unimportant in a racially homogeneous

society. In a society with one or more large racial minorities, the right to
freedom from racial discrimination will often be important for members
of a racial minority by protecting them from discrimination regarding
education or economic opportunity, for the members of their families,
and for the members of the society as a whole by reducing social tensions
that hinder social cooperation and even cause interracial violence. The
moral human right to freedom of expression is normally of great value to
those right-holders who are deeply committed to scientific research or to
intellectual thought or to political causes, but of little importance to the
majority of right-holders. However, it could be of great value to society as
a whole because the lack of a moral human right to freedom of expression
might reduce interaction within the scientific and intellectual commu-
nities, thereby limiting their contributions to the well-being of the mem-
bers of the society, and might restrict criticism of public institutions,
thereby enabling misguided or corrupt officials to govern in ways that
would be harmful to most citizens. Conversely, the moral human right
not to be married without ones consent will be of great importance to
any right-holder living in a society where arranged marriages are the rule,
and probably to other members of their families, but perhaps not very
important to society as a whole.
One must also, as Henry Shue does, distinguish between a right and the
substance of that right, whatever the right is a right to.34 He then goes
on to argue:
Being socially guaranteed is probably the single most important aspect of a

standard right, because it is the aspect that necessitates correlative duties. A
right is ordinarily a justified demand that some other people make some
arrangements so that one will still be able to enjoy the substance of the right
even ifactually, especially ifit is not within ones power to arrange on
ones own to enjoy the substance of the right.35
And this will depend upon whether there are persistent threats to its
enjoyment or exercise.36
Hence, the importance of any moral human right will vary depending
upon both the value of its substance and the seriousness of the threats to
the right-holders exercise or enjoyment of that substance. Although it is
extremely important to me that I not be enslaved, my moral human right
not to be enslaved is not important because there is virtually no chance
that anyone will attempt to, much less succeed in, enslaving me in either
the United States or when I travel abroad. Although not being subjected
to racial discrimination in employment is much less important than not
being enslaved, to an African-American the importance of the right to the
former is considerable today because it remains under serious threat, but
the value of the right to the latter is now negligible because slavery has
been eliminated as an American social institution. Once more we see that
the importance of moral human rights varies greatly from one right to
another and depending upon the circumstances. Although it is not true

that moral human rights are important by their very nature, they can be
and often are of the highest importance.
10. CONCLUSION
Any moral human right consists of a complex of moral positions analogous

to the fundamental legal positions identified by Wesley Newcomb Hohfeld.
These include a core moral position that defines the essential content of
the right together with a number of associated moral positions that confer
dominion over this core upon the right-holder. Because this core is some-
times a moral liberty or power or immunity, not all moral human rights are
claim-rights. Moral human rights are one species of moral rights, rights
conferred by specifically moral reasons. What differentiates them from
other species of moral rights is the status that qualifies one to possess
them, being human in the morally relevant sense, that is, being a member
of the biological species of human organisms and being capable of moral
action. Because one cannot alienate ones human nature and ones human
nature confers human rights, moral human rights are inalienable.
A basal moral human right stands at the base of the system of moral
human rights because it is not derived from any prior moral human right;
a derived moral human right is one that can be grounded upon some
independently grounded moral human right. Basal moral human rights
hold against all other persons whether they are acting in their private or
official capacities, but many derived moral human rights hold primarily or
even exclusively against governments. Although moral human rights are
not necessarily political in nature, most of them do have political import
because nation-states and international institutions are both in a position
to violate them and in a position to intervene to aid and abet in their vio-
lation or to protect them from violation.
Moral human rights have a qualified universality regarding their posses-
sors. Because they are moral rights one possesses simply as a human being, it
would seem that they must be universally possessed by all human beings.
But basal moral human rights are universally possessed by all human
beings in the morally relevant sense; only those biological human beings
who are capable of moral action could possess any moral human right. And
some derived moral human rights are universally possessed only by mem-
bers of some special class of human beings. This universality is not under-
mined by the relativity of morality, concepts, human nature, or circumstances.
It is not true that moral human rights are by their very nature the most
important species of moral rights. Like ordinary moral rights, they have a
variable importance for the individual right-holder, other individuals, and
society in general. The importance of any moral human right depends
both upon its substance, that to which it is a right, and the circumstances,
especially whether it is seriously threatened.
3
Grounds of Moral Human Rights
How can one identify the grounds of any moral human right? The most
reliable method, in fact the only practicable one, is the method of wide
reflective equilibrium. Specifically, one should begin by interpreting the
content of some plausible example of a moral human right in terms of
ones conception of the nature of rights. Then try to think of moral rea-
sons that would be relevant to this right. These moral reasons should,
presumably, be considerations that one takes to be specifically moral
because of ones conception of morals. Reflect upon whether these rea-
sons would be sufficient to justify the assertion that this human right
exists. If they would be sufficient, one might well repeat this process to try
to identify additional grounds of the human right, for any human right
may be overdetermined. If they are not sufficient, one should either try to
identify alternative moral reasons that would be sufficient or reinterpret
the content of the human right so that its assertion can be justified by the
available moral reasons, or both. When eventually one achieves a reflec-
tive equilibrium, one will be in a position to make a reliable judgment
either that one has identified the grounds of a genuine moral human right
or that what one originally accepted as a plausible example is not a real
moral human right.
1. BASAL RIGHTS
A basal moral human right is one that is grounded upon moral reasons
other than some prior moral right but that might ground one or more
derived moral human rights. Moral philosophers have typically assumed
that all human rights are claim-rights.1 This would explain how it is that
moral human rights imply correlative moral duties upon either other
human beings or the state or both. In fact, I probably shared this assump-
tion when I first began to think seriously about human rights.2 However,
I now believe that there are also other kinds of moral human rights
including at least liberty-rights and power-rights and even immunity-
rights. This means that moral liberties, powers, and perhaps immunities as
well as moral claims can constitute the defining cores of human rights.
41
Moreover, on my conception of a right, any moral human right must also

include a variety of associated Hohfeldian moral positions that confer
dominion over its core upon the right-holder. This is important for the
identification of the grounds of human rights because these fundamen-
tally different moral positions require different kinds of grounds. A few
examples will illustrate this variety in the grounds of moral human rights,
a complication usually ignored in other theories of human rights.
1. One of the basal human rights is usually assumed to be the right to
life. However, this is really a rights-package consisting of a number of
distinct rights concerning ones life.3 The least controversial of these is the
human right not to be killed. Its defining core is the moral claim of a
human being not to be killed by another. Like any claim, this consists of a
duty of others together with the power of the right-holder to claim per-
formance of this duty.4
What, then, is the ground of the duty of others not to kill one? Under
normal circumstances, it is primarily the grievous harm inflicted upon one
by being killed. Death robs one of the many enjoyments and satisfactions
one would have experienced had ones life continued. Even more impor-
tant is the way in which death interrupts the ongoing projects that would
have given greater meaning to ones life. If very premature, death prevents
one from embarking upon most of those long-term enterprises without
which ones life lacks significance for oneself and perhaps even for others.
These harms lie in cutting short a conscious human life. The fact that they
are caused by ending the biological life of a human organism matters only
because ones biological life is a necessary condition for having a life of
ones own. Justice Stevens recognizes this clearly:
Nancy Cruzan is obviously alive in a physiological sense. But for patients
like Nancy Cruzan, who has no consciousness and no chance of recovery,
there is a serious question as to whether the mere persistence of their bod-
ies is life as that word is commonly understood, or as it is used in both the
Constitution and the Declaration of Independence. . . . Life, particularly
human life, is not commonly thought of as a merely physiological condition
or function. Its sanctity is often thought to derive from the impossibility of
any such reduction. When people speak of life, they often mean to describe
the experiences that comprise a persons history, as when it is said that
somebody led a good life.5
The serious harm caused to the life of the person being killed is a moral
duty-imposing reason because it is both a reason for any moral agent not
to kill a human being and a reason for those in society with a killer to
react negatively to that killer. It is a reason to react negatively to an agent
who kills a human being because it shows the agent to be dangerous and
either malicious or at least callous.
A secondary ground of the duty not to kill a human being is the harm
ones death normally causes to others. Those who care for the victim
suffer the loss of a loved one. Those who depend upon the victim for
income or personal services are deprived of these benefits. And more
Grounds of Moral Human Rights 43
generally those in society with the victim are made more insecure by the
presence of a killer in their midst.
A moral claim consists of a moral duty of one or more second parties
together with the moral power of the first party to claim performance of
this duty. What grounds the power of a human being to claim the duty of
others not to kill that person? It is the way in which demanding that
another person not kill one together with indicating the ground of this
duty changes the relationship between the right-holder and duty-bearer.
It makes explicit the desire of the potential victim to continue living and
reminds the potential killer of the moral reason why one ought to respect
the right-holders wishes. If in spite of this one persists in killing the vic-
tim, one will have shown oneself to be not merely dangerous and callous
but highly dangerous, definitely malicious, and unconscionable. Hence,
those in society with one have an even stronger reason to react negatively
to ones violation of the victims right to life.
Under normal circumstances, indeed in almost all cases, the act of killing
a human being is extremely harmful to the victim and his or her associates.
But there do seem to be exceptional circumstances. Suppose that being
killed does not harm one, either because ones future life would have been
on balance of little value to one or, in extreme cases, would have consisted
in intolerable suffering ending in an undignified death. Would one still have
a moral right not to be killed? One would because that right is a general
right grounded on the harms that killing a human being normally causes.
However, the moral human right not to be killed imposes only a prima
facie duty not to kill someone, and this duty may be overridden in some
cases. Not necessarily in every or even in most cases when killing one will
not cause one grievous harm because it may still harm others. Moreover,
any such limit to the moral human right not to be killed does not imply
that the morally justified legal right to life ought to be similarly limited.
In addition to its defining core, the moral human right not to be killed
includes several associated Hohfeldian positions that together confer
dominion over this core upon its possessor. The most important of these
is the moral immunity of the right-holder against having the holders core
claim extinguished by any act of another. If one did not possess this
immunity, ones moral claim-right would not hold firm against any second
party determined to kill one. The logical correlative of ones immunity is
the disability of all others to extinguish ones moral claim not to be killed.
What is the ground of ones immunity? In other words, why do all others
lack the power to extinguish ones claim? It is simply because nothing
that any other party could do would eliminate or even significantly reduce
the grounds of ones core claim. That is, no action of any other person, or
even of the state, would remove or diminish the harm that killing one
would do to ones life or to the lives of those who care for one or are
dependent upon one. Although any real right must include several addi-
tional associated positions, for present purposes we can simplify our
investigation by ignoring them.
2. A second basal moral human right is the right to liberty. Although

this is one of the traditional natural rights that was once accepted without
question, today its content and even its existence is controversial.6 I sug-
gest that its defining core is the moral liberty to do any act that one has,
everything considered, no moral duty to refrain from doing. That every
moral agent has this moral liberty cannot be doubted. This is analytically
true because a liberty is by definition simply the absence of a contrary
duty. However, one must distinguish between innocent and suspect moral
liberties. An innocent moral liberty is a liberty to do some action that one
has not even a prima facie moral duty not to do. Hence, it needs no posi-
tive grounds; it is grounded simply upon the absence of any contrary
moral-duty-imposing reasons. A suspect moral liberty is a liberty to do
some action that one does have a prima facie moral duty not to do. It
requires some positive ground, either an overriding moral reason or some
reason that cancels or undermines the duty not to act in this manner.7
What can be doubted or denied is that this moral liberty is the core of a
moral right, that any normal human being also has a variety of associated
moral positions sufficient to confer dominion over this liberty.
If there really is any such moral human right to liberty, it must be at the
very least a protected liberty, a core liberty protected by a moral duty of
others not to prevent or hinder one from exercising this liberty. This duty
is one aspect of the more general moral duty to respect the rational agency
of any moral agent, the duty to defer to ones judgment by allowing one
to act as one chooses. This moral duty is grounded upon the harm that the
duty-bearer normally inflicts upon any human being by failing or refusing
to respect that persons practical rationality. Rational agency involves
choosing ones goals, selecting the best means to achieve them, and ulti-
mately integrating means and ends into a more or less coherent life. But
when others prevent or hinder one from acting as one thinks best, one is
handicapped in or even prevented from pursuing ones projects, projects
that contribute highly to the value of ones life by giving it that shape and
meaning without which it would be merely a succession of trivial experi-
ences. Moreover, the respect of others is a necessary condition of main-
taining ones own self-respect. If others do not defer to ones practical
judgments, then one tends to lose confidence in ones ability to deliberate,
choose, and act rationally. This in turn reduces the initiative, creativity,
persistence, and self-reliance one needs to live a rewarding life and to
contribute to the lives of others. These harms are reasons both for others
to respect the rational agency of every normal human being and for those
in society with anyone who fails to respect that agency to react negatively.
Thus, they constitute moral-duty-imposing reasons sufficient to ground a
moral duty that gives normative protection to the defining core of the
moral human right to liberty.8
Two qualifications may help to meet skeptical challenges to my con-
ception of the moral human right to liberty. For one thing, it does not
imply that one is always morally justified in exercising this right. Although
its defining liberty is very broad and limited only by contrary duties, there
may be other sorts of moral reasons that render its exercise immoral. For
example, it might be selfish of me, and thus morally evil, to spend so
much of my income on luxuries and to give so little to those in need even
though I may have no duty to give any determinate amount to charitable
causes. For another thing, the moral duty of others not to interfere with
the liberty of action of any human being is only a prima facie duty. Under
some circumstances, ones duty to respect the rationality of another may
be outweighed by some conflicting moral consideration. Thus, one might
be permitted to force someone to postpone a hasty decision that one
knows, on the basis of confidential information, someone would subse-
quently regret.
3. A third basal moral human right is the right to associate. Although
this is not one of the traditional natural rights, the derived rights to join a
labor union and to marry are recognized in many contemporary human
rights documents. The defining core of this basal human right is the moral
power to associate with others, to join or to form an association. The
Oxford English Dictionary defines an association as a body of people orga-
nized for a common purpose; a society. This can be either a formal orga-
nization constituted by a set of rules, like a university, or an informal
group united by a shared understanding, like several friends who meet
every Friday to play poker. The right to associate is a power-right because
the act of joining or forming an association changes the moral relation-
ships between the parties. For example, by joining a group of poker-playing
friends, one imposes upon oneself a moral duty to meet with them most
Fridays and to play poker on those occasions, a duty that did not exist
before one exercised ones power to associate. Similarly by exchanging
marital vows, two human beings bring into existence a new set of moral
rights and obligations regarding each other.
What are the grounds of the moral power to associate? By exercising
ones power to join or form an association one imposes moral duties upon
oneself and confers corresponding moral rights upon ones associates.
Thus, the power to associate presupposes the moral power to make com-
mitments, to morally bind oneself to future action. The power to promise
is another and more often recognized species of a moral power. Why do
acts of promising or associating create morally binding duties to future
action? It is primarily because they create reasonable expectations and
invite others to rely upon one to act in the expected ways. If one subse-
quently fails or refuses to abide by ones commitments, then others who
have relied upon one will normally be harmed. Here as elsewhere, prob-
able harm is a direct moral duty-imposing reason. Hence, it indirectly
grounds the power to commit oneself, including the moral power to asso-
ciate, because acting in any way that invites reliance brings into existence
moral duties and rights grounded on probable harm.
One would have no real moral human right to associate were it always
or even usually morally impermissible to exercise ones power to associate.
Hence, in addition to its core moral power, the human right to associate
must include the associated moral liberty to join or form associations. This
moral liberty is not unlimited, for presumably one has a moral duty not to
associate with others for immoral purposes. Thus, one has no moral lib-
erty to join the Mafia in order to exploit the powerless by violence or to
join in with a crowd intent on lynching a suspected pedophile or child
molester. Whether one has the moral liberty to join a liberation move-
ment intent on revolution will depend upon the circumstances, primarily
how unjust the existing government is and how likely the liberation
movement is to bring into existence a more just government without
imposing excessive suffering upon the general population.
Suppose that you are an accountant who conspires with several other
corporate executives to defraud the stockholders. Have you exercised
your moral human right to associate? This depends upon whether by con-
spiring with others you have created an association and thereby imposed
moral duties upon yourself and conferred moral rights upon your asso-
ciates. Some moral philosophers would insist that you have attempted
but failed to form a conspiracy because your moral power to associate is
limited to associating for morally permissible purposes. However, I believe
that you have exercised, but abused, your moral right to associate. This is
because you have invited your associates to rely upon your cooperation in
the joint fraudulent enterprise, and they will very probably be seriously
harmed if you fail to fulfil your commitments to them. Therefore, you
have the moral power to enter into a conspiracy, although you do not
have the moral liberty of doing so. What limits your moral power to asso-
ciate is not the morality of your purpose but your lack of the qualifica-
tions required for its possession. For another example, if two children
exchange would-be marital vows, they have not associated themselves in
marriage. This is not because they have acted immorally, but because they
lack the capacity to undertake the commitments essential to any genuine
marriage.
4. Finally, a fourth basal moral human right is the immunity-right not
to be committed by others. The defining core of this human right is the
moral immunity from being bound by promises or other acts of others
that purport to undertake obligations on ones behalf. If I exercise my
moral power to join a group of friends to play poker Fridays, then I impose
upon myself a prima facie moral duty to play poker with my friends most
Fridays. But if my wife signs me up to play poker with the group, hoping
to reduce the number of hours I watch sports on television, I am not mor-
ally bound to spend my Friday evenings as my wife has promised that I
would because she lacks any moral power to make commitments on my
behalf. Similarly, two children subjected by their parents to an arranged
married are not, morally speaking, associated in marriage. The ground of
ones moral immunity against alien commitments is simply the absence of
any moral reasons sufficient to confer on others the moral power to make
commitments on ones behalf. However, one can sometimes remove this
immunity by delegating some of ones moral power of committing oneself

to another person. For example, I have asked my wife to accept or decline
invitations to dinner or cocktail parties extended to us as a couple. There-
fore, her action of accepting such an invitation commits me to attend the
event with her. But in general any human being is morally immune from
purported commitments made by others in his or her name.
An important associated position in this human right is the moral duty
of third parties not to recognize or enforce alien commitments. That is,
others ought morally to refrain from forcing one to carry out any alleged
commitments that one has not undertaken oneself. Thus, my friends
ought not to put pressure upon me to play poker with them regularly as
my wife promised that I would do. And the law ought not to require that
a couple live together as man and wife without their consent merely
because they were subjected to an arranged marriage. This moral duty,
like the duty not to prevent or hinder one from exercising ones human
right to liberty, is grounded on the harm one normally does to a human
being by failing or refusing to respect his or her rational agency.
If these examples are typical of moral human rights in general and if I
have identified some of their grounds correctly, harm is central to the
grounds of any moral human right. Therefore, moral human rights pre-
suppose that certain interests are built into normal human nature because
harm consists in some setback or adverse effect on one or more interests.
But it would be a mistake to imagine that each important human interest
grounds a human right to its realization, for what grounds a human right
is not the satisfaction of one or more interests but the harm resulting from
their nonrealization. It is not a mistake to hold that moral human rights
presuppose the existence of basic human needs, things, or conditions such
that if a normal human being lacks them, she or he will be harmed. But
the logic of human rights is not as simple as there is a human need for X,
therefore, there is a human right to X.9 This is partly because harm can
ground a moral human right only in combination with other factors and
also because harm can serve as a ground in very different ways.
For example, one of the moral human rights to life is the moral claim-
right not to be killed by another. The logical correlative of its defining
moral claim is the relative moral duty of others not to kill one. One moral
reason not to kill a human being is that normally one harms that person
grievously by killing her. This is a reason for a moral agent not to kill a
human being because the harmfulness of an action is a reason not to do
that action. But a moral duty-imposing reason must be a dual-aspect rea-
son, both a reason for an agent to act or refrain from acting in some
manner and for those in society with that agent to react negatively in the
event that he acts contrary to that reason. And others have a reason to
react negatively to anyone who harms another because by so acting he has
normally shown himself to be at least callous and probably malicious.
Thus, harm can ground a duty only in combination with sociability factors
such as callousness or malice.
Moreover, the duty that is logically correlative to the moral claim not
to be killed is a relative duty, a duty owed to the right-holder. Therefore,
it consists of the moral duty not to kill together with the moral power of
the right-holder to claim performance of this duty. And this moral power
is grounded on the way in which the act of claiming performance of this
duty changes the sociability factors it presupposes, not in its impact on
the harmfulness of killing.
Or to take another example, the defining core of the moral human
right to liberty is the liberty of acting in any way that on balance does not
violate any of ones moral duties. Although the associated duty that pro-
tects this liberty is grounded on the harm of preventing or hindering its
exercise, the core liberty itself is not grounded on harm but on the absence
of any duty-imposing harm, the fact that one does not normally cause
serious harm to others by exercising ones right to liberty.
The defining core of the human right to associate is the power to form
or enter into an association, itself a species of the power to make commit-
ments. And the way in which harm enters into the grounds of this power
is neither that preventing its exercise does harm the right-holder nor that
exercising it does not harm others. It is that the act of making a commit-
ment invites others to rely upon one so that were one to fail to act on
ones commitment, others will probably suffer harm.
The only safe generalization seems to be that if my Hohfeldian concep-
tion of moral human rights is correct, then their grounds are much more
complex than other moral philosophers recognize. And although harm is
an essential part of the grounds of any moral human right, it can serve as
a moral reason that grounds this right in a variety of different ways and
only in combination with other morally relevant considerations.
2. DERIVED RIGHTS
A basal moral human right often grounds one or more derived moral
human rights. These in turn sometimes ground other derived rights. There
are at least three sorts of moral reasoning by which one human right can
ground another human right.
1. The most obvious and least controversial kind of derivation is by
subsumption. For example, the basal moral human right to liberty, to do
any act that does not violate a moral duty, grounds a derived moral human
right to liberty of movement because going where one chooses is in gen-
eral a specific way of acting as one chooses. Again, the basal moral human
right to associate grounds a derived moral human right to join a labor
union or professional organization because any such act of joining is a
special sort of associating.
However, it is important to recognize that only a right that is itself
independently grounded can ground a derived right by subsumption. This
is because, as Joseph Raz explains, derivation is a form of justification.10 In
the examples above, each basal human right is sufficient to ground a

derived human right because the moral reasons that ground it also apply
to the more specific derived moral human right. Some such transitivity of
moral reasons is presupposed in the derivation of any moral right. How-
ever, transitivity exists in at least two other kinds of derivation.
2. A moral right can also ground a derived moral right when the
defining content of the latter is a necessary condition of the defining con-
tent of the former. Thus, the derived moral human right to liberty of
movement can serve as a ground, not necessarily the only ground, of the
derived moral human right not to be imprisoned because one cannot
exercise ones right to go where one chooses if one is imprisoned. (Because
the moral human right to liberty of movement is a prima facie right,
human rights documents typically recognize only the human right not to
be arbitrarily imprisoned.) Similarly, the basal moral human right not
to be committed by another can ground a derived moral human right not to
be married without ones consent because, for example, to be subjected to
an arranged marriage to which one has not consented is to be committed
without ones consent. These examples illustrate how the grounds of a
moral right are also sufficient to ground a moral right to anything that is
necessary for the exercise or enjoyment of the grounding right.
3. Finally, one moral right can ground a second moral right when the
latter protects the secure exercise or enjoyment of the former right. This
is because in addition to its defining core, any real right includes associ-
ated elements conferring dominion over this core upon the right-holder
and any moral reasons sufficient to justify the right-holders dominion
will imply that this dominion ought to be secure. For example, the basal
moral human right not to be killed implies the derived moral human right
to self-defense, for without this liberty of defending ones life, ones enjoy-
ment of the moral human right not to be killed would be less secure. To
be sure, one might be lucky so that no one would try to kill one or should
anyone attack one with lethal force, others might intervene to save ones
life. But at best, ones enjoyment of ones right not to be killed would be
insecure without the added protection of the moral right to self-defense.
What is presupposed in this sort of derivation is a contributory, not a suf-
ficient, condition of the secure exercise or enjoyment of the grounding
moral right.11 Similarly, the basal moral human right to liberty can ground
a derived moral human right to be presumed innocent until proven guilty
because were one to lack this right one could be arbitrarily prevented or
hindered from exercising ones moral human right to liberty by others
justifying their punishment or restraint by merely alleging ones conduct
to be immoral or illegal.
Henry Shue uses a similar but much more ambitious argument for a
very different purpose in his important book Basic Rights. Whereas I
appeal to this sort of moral reasoning to explain how a derived right can
be grounded upon fundamental moral reasons indirectly via some inde-
pendently grounded moral right, Shue uses it to prove that none of the
basic rights, indeed no moral rights at all, could be securely enjoyed by

one who lacked any of the basic moral rights to security, subsistence, and
liberty. He explains his reasoning in somewhat different terms: 1. Every-
one has a right to something. 2. Some other things are necessary for enjoy-
ing the first thing as a right, whatever the first thing is. 3. Therefore,
everyone has rights to the other things that are necessary for enjoying the
first as a right.12 What shows the similarity between his reasoning and
mine is his second premise requiring that other things be necessary for
enjoying the first thing as a right. That what he means by this qualifica-
tion is that one enjoys the first thing securely is indicated by his concep-
tion of moral rights. A moral right provides (1) the rational basis for a
justified demand (2) that the actual enjoyment of a substance be socially
guaranteed against standard threats.13 Thus, one can enjoy something as
a right only when there are in place social guarantees to secure its enjoy-
ment against the most persistent and probable threats.
Although his reasoning is similar to mine, it is not the same because his
conception of a moral right is different from mine. Accordingly, his basic
rights are rights that are mutually necessary for the secure enjoyment of
any right, while my basal moral rights are rights that are grounded directly
upon moral reasons other than any prior moral right but that can in turn
ground derived moral rights.
Often a derived moral right can be derived in different ways from more
than one prior moral right. For example, the human right not to be tor-
tured by a public official can be derived from the basal human right to
personal security by subsumption, for torturing a person is one way of
infringing her or his right to the security of her or his person. But it can
also be derived from the human right to liberty, and probably other
human rights as well, as a protection for its secure exercise, for one cannot
be secure in ones exercise of ones human right to liberty if government
officials are morally permitted to torture one merely because they find
ones action objectionable.
3. CONCLUSION
The ultimate grounds of basal moral human rights are specifically moral
reasons other than any prior moral right. These moral reasons are dual-
aspect practical reasons, facts that are both reasons for a moral agent to
act or refrain from acting in some manner and for those in society with
that moral agent to react positively or negatively depending upon whether
he does or does not act according to these reasons. The moral reasons that
ground moral human rights involve harm to human beings. Hence, they
presuppose the existence of general human needs, needs common to all
normal human beings. But moral human rights involve harms in a wide
variety of ways because moral human rights consist of liberties, powers,
and immunities as well as duty-imposing claims.
Basal moral human rights are directly grounded on these ultimate

moral reasons. However, a basal moral human right often grounds one or
more derived moral human rights, and a derived moral human right some-
times grounds one or more additional derived moral human rights. Thus,
derived moral human rights are indirectly grounded upon the specifically
moral reasons that ground basal moral human rights. One right can ground
another right when the derived right can be subsumed under it, when the
content of the derived right is a necessary condition for its exercise or
enjoyment, or when the derived right is a protection of its secure exercise
or enjoyment. These modes of derivation are possible because they pre-
serve the transitivity of the ultimate grounds of basal moral human rights.
Recognizing that many moral human rights are derived from indepen-
dently grounded rights is useful in two ways. For one thing, it clarifies the
various ways in which abstract basal moral human rights defined in very
general terms are applicable to the different concrete circumstances of par-
ticular cases. For another, it explains how specifically defined moral human
rights that are not universally possessed, such as womens human rights,
can still be rights one possesses as a human being because they are grounded
on basal moral human rights one possesses simply as a human being.
4
Moral Dimensions of Human

Rights Documents
United Nations General Assembly declarations proclaim many human

rights that presumably ought to be incorporated into international law,
and conventions sponsored by the United Nations or other international
organizations confer real human rights under international treaty law.
Although these international human rights are distinct from moral human
rights, this does not imply that they are completely unrelated. Hence, it is
possible that an orthodox conception of moral human rights could be
useful for the interpretation and criticism of international human rights
doctrine. To see whether this is so, I will examine some of the most impor-
tant contemporary human rights documents in the light of my conception
of moral human rights.1
1. DECLARATIONS
One class of human rights documents consists of declarations adopted by

the General Assembly of the United Nations. The most important of
these, of course, is the Universal Declaration of Human Rights of 1948. It
has two distinct but related purposes. First, it is intended to set standards
of achievement or goals to be achieved by national and international
organizations. These include increased education to promote respect for
human rights and the introduction of more effective measures to recog-
nize and secure them. Second, although it is not intended to be a legally
binding document, it proclaims general principles to be incorporated into
both national and international law. For this purpose, it assumes that the
general principles of the declaration will be reformulated in more specific
terms to render them applicable to particular cases so as to impose defi-
nite legal obligations.
The Universal Declaration presupposes that it is proclaiming preexist-
ing moral human rights. The language of its Preamble makes this clear:
Whereas recognition of the inherent dignity and of the equal and inaliena-
ble rights of all members of the human family. . . .
53
Whereas disregard and contempt for human rights have resulted in bar-
barous acts which have outraged the conscience of mankind. . . .
Whereas it is essential, if man is not to be compelled to have recourse, as
a last resort, to rebellion against tyranny and oppression, that human rights
should be protected by the rule of law.
If what is needed is the recognition of the equal and inalienable rights

grounded on the inherent dignity of all human beings, then these must
be, or be essentially similar to, the traditional natural rights presupposed
by the American Declaration of Independence and the French Declara-
tion of the Rights of Man and the Citizen. If disregard and contempt for
human rights have resulted in the past, especially in Nazi Germany and
the Second World War, in barbarous acts that have outraged the con-
science of mankind, then these human rights must be preexisting moral
rights. And if it is essential that human rights should be protected by law,
then one function of national and international law ought to be not to
create legal human rights ex nihilo but to recognize and protect preexist-
ing natural or moral rights.
Johannes Morsink substantiates this conclusion by his detailed analysis
of the drafting of the document:
These opening linguistic similarities create the presumption that the drafters
of the Universal Declaration had an Enlightenment view of human or natural
rights as somehow located in human beings simply by virtue of their own
humanity and for no other extraneous reason, such as social conventions, acts
of governments, or decisions of parliaments or courts. Just before final passage,
the French representative, Ren Cassin, confirmed this suspicion when he told
the General Assembly that in common with the 1798 Declaration, [the Uni-
versal Declaration] was founded upon the great principles of liberty, equality,
and fraternity. During the Third Committee debates Peng-chun Chang, the
Chinese delegate, thanked Cassin for having so ably exposed French doctrines
of the eighteenth-century. Chang himself also used Enlightenment terminol-
ogy when it helped him to make his point. Addressing the Third Committee,
he argued that the right to freedom of thought and religion was one of the
most important principles in the Declaration because from the eighteenth
century, when the idea of human rights was born in Western Europe, freedom
of thought had figured among the essential human freedoms.2
The influence of traditional natural rights theories upon the Universal

Declaration is clear.
Nevertheless, it would be a misinterpretation to read the theological
assumptions of these theories into this document:
In a bargain to avoid any reference to God in the Declaration the drafters
deleted a reference to nature that had been part of Article 1 until almost the
end. Thus, instead of the Enlightenment God-and-Nature we were given a
Declaration with a reference to neither one nor the other. . . . Since the
drafters did not expressly use either the word nature or the phrase human
nature as the foundation of the rights in the Declaration the label and title
Moral Dimensions of Human Rights Documents 55
of human rights fits the text and the debates much better than the classi-
cal designation of natural rights. The new phrase makes all the same points
without any of the extra metaphysical baggage that has come to be attached
to natural rights talk.3
Thus, drafters with very different religious convictions and ethical beliefs
could agree that human rights are fundamental moral rights without com-
mitting themselves to any explicit or implicit theory of their foundations.
Because this document presupposes the preexistence of the human
rights it proclaims, it would be legitimate to consider the nature and con-
tent of these moral rights when one is interpreting the meaning of the
language in which it describes the declared human rights. Would my
conception of moral human rights be useful for this purpose? Obviously
the authors of the Universal Declaration did not have my view in mind
when they formulated this document. However, my orthodox conception
is likely to be closer to their presuppositions than more newfangled views
such as political or institutional or practical conceptions that reflect sub-
sequent developments in human rights practices.
Suppose that on the basis of ones theory of moral human rights, one
concludes that there is no moral human right with the same or similar
content to one proclaimed in the Universal Declaration. Is this any reason
to criticize that document? Well, one can and should judge that proclaim-
ing a human right that does not correspond to a real moral human right
cannot be justified by the United Nations purpose to reaffirm faith in
fundamental human rights. But the United Nations has other purposes
such as promoting social progress and better standards of life in larger
freedom.4 Therefore, the Universal Declaration would be justified in
proclaiming morally imperative human goals as well as moral human
rights, especially if these goals could be advanced by the recognition and
implementation of rights in international or national law.
Indeed, were one to insist that international human rights declarations
ought to limit themselves to declaring independently existing moral
human rights, one would be doubly mistaken. As Charles Beitz rightly
observes, this diminishes and distorts the aspirations of international
human rights doctrine because human rights politics seeks to propagate
ideals and motivate social change.5 And as he suggests, international
human rights could well be morally justified as requirements of global
social justice.6 There are a variety of moral dimensions relevant to the
interpretation and criticism of international human rights.
Similar principles of interpretation and criticism apply to other decla-
rations of the General Assembly such as the Declaration on the Granting
of Independence to Colonial Countries and Peoples of 1960 and the
Declaration on the Rights of Persons Belonging to National or Ethnic,
Religious and Linguistic Minorities of 1992. Their language suggests that
they also presuppose the existence of moral human rights of the sorts
they reaffirm. However, this presupposition probably becomes less central
to the purpose of General Assembly declarations as the various practical
purposes of international human rights become more clearly defined.

Accordingly, the usefulness of my theory of the nature and grounds of
moral human rights for the interpretation and criticism of human rights
declarations becomes considerably less for the later declarations.
2. TREATIES
Another class of international documents that affirm human rights is

human rights conventions sponsored by the United Nations. The most
important of these on a global level are the International Covenant on
Civil and Political Rights and the International Covenant on Economic,
Social, and Cultural Rights, both of 1966. Because these are treaties to
which many nation-states are parties and because treaties are one of the
primary sources of international law, these and similar documents do con-
fer real international human rights.
Like the Universal Declaration of Human Rights, both treaties presup-
pose the existence of moral human rights analogous to the legal human
rights they define. This shared presupposition is unmistakable in identical
passages in their respective preambles:
Considering that, in accordance with the principles proclaimed in the Char-

ter of the United Nations, recognition of the inherent dignity and of the
equal and inalienable rights of all members of the human family is the foun-
dation of freedom, justice and peace in the world, . . .
Recognizing that these rights derive from the inherent dignity of the human
person, . . .
The expressions inherent dignity and inalienable rights echo the tradi-
tional language of natural rights theories. And that these rights are derived
from the inherent dignity of the human person implies that they exist
prior to and independent of these legal documents or any social institu-
tions. Thus, a primary purpose of both covenants is to incorporate moral
human rights into international law.
How should one interpret the expression the right in the covenants?
Many moral philosophers and jurists have asserted that in many contexts,
especially in the International Covenant on Economic, Social, and Cul-
tural Rights, it is used in a loose sense to assert mere goals or social ideals
rather than genuine rights. James Nickel has argued that the purposes of
the human rights movement are not well served by being forced into a
narrow conceptual framework and that one should interpret international
human rights as rights in a fairly loose sense.7 My own view is that although
this might be true of the Universal Declaration, it misreads the two cove-
nants. The purpose of both of these documents is to confer universal
human rights in international law, rights that are legally binding in that
they impose definite legal obligations. Hence, one should interpret the
right in these documents in a strict sense. On the other hand, the authors
of these documents were lawyers and political leaders, not analytic philos-
ophers. Therefore, one should not assume that they presupposed my con-
ception of rights or that of any other jurist or philosopher of law.
How should one interpret the imperatives in the two covenants? For
example, Article 8 of the International Covenant on Civil and Political
Rights begins: 1. No one shall be held in slavery; slavery and the slave-
trade in all their forms shall be prohibited. 2. No one shall be held in
servitude. 3. No one shall be required to perform forced or compulsory
labour. The obvious way to read this passage is as specifying duties or
obligations that are implied by the human right to liberty, a human right
asserted in the first sentence of Article 9 that follows immediately. How-
ever, the authors of the covenant certainly assumed that any effective
human right must impose obligations and may have assumed the logical
correlativity of rights and duties. If so, these imperatives could be read as
both conferring human rights, such as the right not to be held in slavery,
and imposing correlative duties, in this instance the duty of every indi-
vidual and organization not to hold anyone in slavery and the obligation
of every nation-state to prohibit slavery. My guess is that the imperatives
in the two covenants are ambiguous and only subsequent legal docu-
ments, including court opinions, could give them a determinate meaning
in international law.
Is my distinction between basal and derived moral human rights pre-
supposed by the two covenants? That it might be implicit in them is sug-
gested by the structure of these documents. For example, Article 9 of the
International Covenant on Civil and Political Rights begins: Everyone has
the right to liberty and security of person. The remainder of this article
and the following four articles could be read as asserting claim-rights
derived from the basal right to liberty. On this reading, these would
include the right not to be subjected to arbitrary arrest or detention; the
right, if arrested, to be informed of the reasons for ones arrest and the
charges against one; the right, if charged with a crime, to a trial or a release
within a reasonable time; a right, if a victim of unlawful arrest or deten-
tion, to compensation; and a number of other derived human rights
implied by the basic human right to liberty. However, the distinction
between basal rights and derived rights is neither explicit in the natural
law tradition nor drawn in most recent theories of moral rights. Therefore,
the structure of these documents probably reflects the recognition of an
especially important human right together with a variety of measures
designed to implement it rather than the distinction between basal and
derived moral human rights.
Even if the distinction between basal and derived moral human rights
is not implicit in the covenants, they do incorporate both into interna-
tional law. Is the inclusion of derived human rights appropriate in docu-
ments intended for global application? Some derived moral human rights
can and should be universally applied, but others should not. Article 9.1 of
the International Covenant on Civil and Political Rights legalizes the basal
moral right to liberty. This is a general human right, universally possessed
by all normal adult human beings and holding generally against all others
who could violate it. Then Article 9.5 adds the human right to compensa-
tion for unlawful arrest or detention, a right derived from the basal right
to liberty as conducive to the security of its possession. This is an appro-
priate addition in a global document, for it is universally applicable, at least
if compensation need not consist of monetary payment. Article 6.1 of
the International Covenant on Economic, Social, and Cultural Rights
incorporates the basal moral human right to work. However, this is a uni-
versally applicable right only if work need not consist of paid employment,
for there are many forms of unpaid work and some simple agricultural or
hunting societies do not have the economic institutions of employers and
employed workers. Article 8.1(a) then affirms the human right to join the
trade union of ones choice. Although this might well be a moral human
right derived from the basal moral human right to work, given the relevant
circumstances, it presupposes an economic system in which trade unions
exist or at least economic institutions within which they would be of some
use to their members or the society as a whole. Most derived moral human
rights that presuppose social institutions or special conditions lacking in
many societies ought not to be included in global human rights treaties.
Some moral philosophers might argue that it is justified to include
derived moral human rights that presuppose the social institutions of eco-
nomically developed liberal democratic nations in global human rights
treaties as goals or social ideals even if they can become universal legal
rights only gradually. If it is appropriate for the Universal Declaration to
have more than one function, to set standards of achievement and to pro-
claim principles to be incorporated into law, why is it not appropriate for
the two covenants to include morally desirable goals as well as to incorpo-
rate moral human rights? I admit that it might be useful to proclaim insti-
tutional goals or social ideals in the preambles to international human
rights treaties. But while the Universal Declaration was not intended to be
a legally binding document, human rights treaties are a primary source of
international law and are intended to confer real human rights that imply
definite legal obligations upon second parties. To include provisions that
purport to confer global legal human rights when in fact these provisions
are not universally applicable will at best tempt legal officials and the
wider public to read those provisions that are universally applicable as
mere goals that do not impose any binding legal obligations and more
generally to weaken respect for human rights. At worst, it will cause offi-
cials and others to try to enforce these derived human rights of limited
applicability under circumstances where their attempted implementation
would either waste legal resources or lead to disruptive resistance against
the international law of human rights.
One primary function, although not the only one, of the two inter-
national covenants as well as most global human rights treaties is to
incorporate moral human rights into international law. Can the recogni-
tion and implementation of international legal human rights be justified
as a protection of analogous moral human rights? Often this will be the
case. But this kind of justification fails when there is no analogous moral
human right, or the legal human right is defined too broadly or too nar-
rowly to secure an analogous moral right. There are four additional con-
siderations relevant to the justified legalization of moral human rights. A
moral human right ought to be incorporated into international law only
when there is some substantial threat to its exercise or enjoyment, it is
important enough to justify the required use of legal resources, incorpo-
ration will be a reasonably effective means of protecting it, and this will
not have very harmful side effects. Because each of these four factors may
change over time, it is entirely possible that although it would be unjusti-
fied to incorporate some moral human right in international law now, it
might become justified at another time when, for example, it becomes
more seriously threatened or new international institutions increase the
effectiveness of its protection. Although this is not the place to consider
every international human right, it may be illuminating to discuss an
example or two of each of the main kinds of human rights asserted in the
two covenants and other more specialized human rights treaties.
3. SECURITY RIGHTS
The International Covenant on Civil and Political Rights includes a

number of security rights that are, or might be, justified by an appeal to
the basal moral human right to personal security. Probably the right to
security of person (Article 9.1) is the core of this group of international
human rights. Its incorporation into international law would seem to be
justified because it is one of the most important of all moral human rights,
both in itself and as a conducive condition for the secure exercise or
enjoyment of other human rights, and is seriously threatened in many
parts of the world and in many ways. Although there are several general
problems with the implementation of human rights in international law,
there seem to be no special reasons to consider them especially difficult
regarding this right.
The most important of the specific rights subsumed under the generic
moral human right to personal security is the moral human right to life. It
is very frequently violated or threatened with violation by individuals,
governments, and even some nongovernmental organizations such as
street gangs or drug cartels. Hence, its legalization by Article 6.1 would
seem to be fully justified. However, it is not clear whether the sentence
No one shall be arbitrarily deprived of his life is intended to be a defini-
tion of this right or a negative duty it implies. And the remainder of Article
6 specifies only the implications of the right to life for the imposition of
the death penalty. Why are the derived human rights not to be murdered
and not to be killed by reckless or negligent action not even mentioned in

the International Covenant on Civil and Political Rights?8 Probably
because all modern national legal systems already prohibit their violation
so that adding these rights to international law would do little or nothing
to increase their legal protection. To my mind, these omissions are prob-
ably justified by the need to conserve scarce legal resources.
Article 7 of the International Covenant on Civil and Political Rights
reads in part: No one shall be subjected to torture or to cruel, inhuman
or degrading treatment of punishment. Although this formulation does
not make it clear whether it is intended to confer one very complex or
two distinct international human rights, subsequent developments have
distinguished the human right not to be tortured from the human right
not to be subjected to cruel, inhuman or degrading treatment.9 The former
has become firmly established in international law. This development is
justified as a useful protection of the derived moral human right not to be
tortured. This moral right is of great importance to individual right-holders
and is far too often violated by governments and individuals. Moreover, its
implementation in international law has already contributed to and will
continue to increase its secure enjoyment.
Whether the international legalization of any right not to be subjected
to cruel, inhuman, or degrading treatment can be justified by any analo-
gous moral human right is less clear. There may well be a moral human
right not to be subjected to cruel, inhuman, or degrading treatment, or
more likely two distinct rights subsumed under this complex labela
right not to be subjected to cruel treatment and a right not to be sub-
jected to inhuman or degrading treatment. But cruelty admits of degrees
such that severe cruelty is already encompassed by the right not to be
tortured and lesser degrees of cruelty are either not important enough to
be prohibited by international law or not such as to be effectively reduced
by its cumbersome mechanisms. However, the terms inhuman and
degrading do add a new moral consideration so that a moral human right
not to be subjected to inhuman or degrading treatment might justify an
analogous international human right if international courts or other
agencies of international law interpret it to apply to only the most severe
mistreatments of this sort.
4. RIGHTS TO LIBERTY
The International Covenant on Civil and Political Rights also includes sev-
eral rights the incorporation of which might be justified by the basal moral
human right to liberty. The defining core of this right is the moral liberty
of every normal adult human being to act or refrain from acting in any way
that does not, everything considered, violate a contrary moral duty. This
definition is not as empty as the notion that one has a moral right
to do anything that is not morally wrong because there are considerations
that make an action wrong other than those that ground a moral duty in
the strict sense. Hence, one can have, although one ought not to exercise,
a moral liberty-right to do what is morally wrong. The most important
associated moral position in this right is the moral claim that others not
interfere with ones exercise of this core liberty without sufficient justifi-
cation. This claim is grounded on the harm one normally, but not always,
does by preventing or hindering a moral agent from acting as the right-
holder chooses.10
The most obvious example of an international legal human right that
might be justified by an appeal to this basal moral human right is the right
to liberty asserted in the first sentence of Article 9.1 that reads Everyone
has the right to liberty and security of person. However, one might deny
that the incorporation of any general right to liberty is justified because
many acts of exercising ones moral human right to liberty are relatively
trivial. Although the covenant does not contain any explicit definition of
this right that would limit it to the most important liberties, the next
sentence (No one shall be subjected to arbitrary arrest or detention) and
the following provisions suggest that it might be primarily the human
right to liberty of movement. Ought there to be a clear and precise spec-
ification of the content of the asserted human right to liberty? Probably
this is not necessary or even desirable. It is not necessary both because this
human rights document is to be read in the light of the natural rights
tradition together with the incorporation of a right to liberty in many
national legal systems and because the covenant does specify in consider-
able detail the most important rights to liberty and the obligations that
they entail. Moreover, it might not be desirable to define the limits of the
general right to liberty in clear and precise language because this would
prejudice, that is prejudge, its proper application to particular cases arising
under unpredictable circumstances.
One might well question whether the inclusion of Article 12.1, Every-
one lawfully within the territory of a State shall, within that territory,
have the right to liberty of movement and freedom to choose his resi-
dence, is justified. Indeed, James Griffin denies that any such broad right
can be morally justified as a human right and suggests that at best a much
more narrowly defined right might be recognized as an international legal
human right.11 Admittedly, any completely unrestricted liberty-right to
move about ones country or to choose ones place of residence cannot be
justified by the basal moral human right to liberty. But surely the authors
of this provision did not mean to imply that prohibiting tourists from
entering military bases or denying citizens the liberty to move into homes
owned by others in order to establish residency there would be violations
of this right. They assumed that international and national courts as well
as other agencies applying human rights law would gradually define its
limits appropriately. The crucial worries are whether this right is seriously
and widely threatened and whether in all societies it is important enough
to be incorporated into global international law. On both counts, there is
doubt about whether this provision can be justified by an appeal to the

moral human right to liberty or any other moral human right.
The International Covenant on Civil and Political Rights incorporates
several of the liberties usually recognized in liberal democracies into
international human rights law. The clearest examples are the right to
freedom of religion (Article 18.1), the right to freedom of expression
(Article 19.2), the right of peaceful assembly (Article 21), and the right
to freedom of association (Article 22.1). Granted that these are all encom-
passed within the scope of the general moral human right to liberty, is the
selection of these particular rights for legalization in international law
justified? I believe that it is. These rights are typically not recognized, or if
recognized not protected, in undemocratic regimes, and even in demo-
cratic nations that usually respect human rights they are often denied
during times of crisis or to minorities by an intolerant majority. Yet they
are among the most important liberties, both because of the great harm
their denial does to the lives of individual persons and because of their
contributions to social peace and progress.12 Finally, their implementation
in international law can be at least moderately effective in encouraging
their introduction and protection in national legal systems.
5. EQUALITY RIGHTS
The International Covenant on Civil and Political Rights includes several

rights that could be intended to protect the basal moral human right to
equitable treatment. The defining core of this human right is the moral
claim against all others that they not treat one worse than others who are
similarly situated without a justicizing or just-making reason. Not every
justifying reason is a consideration that makes the treatment just. Although
a parent might be justified in giving an obstreperous son a larger allow-
ance than his more cooperative brother in order to preserve family har-
mony, this would not make this unequal treatment just. However, the fact
that one son needs a larger amount to purchase textbooks than his brother
would be a just-making reason. What defines the relevant comparison
class, the class of those who are similarly situated, is having the same
moral claim to the benefit or burden that is being distributed by the eq-
uitable or inequitable treatment. However, equitable treatment need not
be equal treatment or being treated in the same manner. It is not inequi-
table to treat someone worse than others who are similarly situated pro-
vided one has a justicizing or just-making reason for doing so. For example,
it would not be inequitable to condemn criminal Jones to a longer prison
sentence than criminal Smith provided that Jones had been convicted of
a more serious crime.13 This moral human right is partially grounded on
the special harm one inflicts by not only treating someone worse than
others but also in a way that degrades that persons humanity by ignoring
his or her equal moral claim upon one.
Examples of equality rights that could be justified by an appeal to the

basal moral human right to equitable treatment include the right to be
equal before the courts and tribunals (Article 14.1), the right to the equal
protection of the law (Article 26), and the right not to be discriminated
against on any ground such as race, color, sex, language, religion, political
or other opinion, national or social origin, property, birth, or other status
(Article 26). These are certainly very important rights that are subject to
widespread and serious threats. And there is no special reason to believe
that their implementation in international law could not be reasonably
effective in protecting the basal moral right to equitable treatment.
The Convention on the Political Rights of Women of 1953 specifies
several additional equality rights. The first three articles incorporate the
human rights of women to vote on equal terms with men, to be eligible
for election to all publicly elected bodies on equal terms with men, and to
hold public office and exercise all public functions on equal terms with
men. As the text makes clear, the central purpose of this convention is to
eliminate political discrimination against women.
Can the incorporation of these derived womens moral human rights
into international law be completely justified as measures to protect the
basal moral human right to equitable treatment? Not all by itself. As the
introductory words Recognizing that everyone has the right to take part in
the government of his country, directly or indirectly through freely cho-
sen representatives, and has the right to equal access to public service in
his country make clear, this document presupposes the existence of
political human rights. The incorporation of these would require some
other ground. What the basal moral human right to equitable treatment
can justify is the insistence that these universal political rights belong to
women on an equal basis with men and ought to be protected against
discrimination on the basis of sex.
6. WELFARE RIGHTS
The International Covenant on Economic, Social, and Cultural Rights

asserts several welfare rights. These include the rights to work (Article 6),
to social security (Article 9), to an adequate standard of living (Article
11), to the highest attainable standard of health (Article 12) and to edu-
cation (Article 13). These are properly classified as welfare rights because
they are all rights to welfare benefits, rights to forms of assistance provided
to an individual in need. To be in need in the relevant sense is to require
help in order to avoid or escape from serious harm.14 The covenant
describes these welfare rights as rights of the individual human being
holding primarily against ones government but secondarily against the
international community of nation-states.
The incorporation of these welfare rights into international law might
be justified as partial protections of the basal moral human right to be
rescued from serious peril. This is a general moral right of every human
being holding against all othersother individual persons, governments,
and nongovernmental organizations. Its defining core consists of a moral
duty of others to rescue, grounded upon the harm one would suffer were
one not rescued, together with a moral power to claim performance of
this duty, grounded upon the way in which claiming changes the relation-
ship between claimant and duty-bearer. However, it is doubly conditional.
It imposes a duty to rescue only if the right-holder is in serious peril,
exposed or vulnerable to great harm, and only if the second party is in a
position to save that person from the threatened harm without undue
sacrifice. Surely being without work, being insecure in ones old age,
having a standard of living inadequate to provide food or shelter, suffering
ill health, or being completely uneducated constitute grave harms to any
normal human being. Therefore, the basal moral human right to be res-
cued seems to imply derived human rights to the kinds of assistance
necessary to rescue one from these harms.15 Because these harms are so
serious, the rights to be rescued from them are very important rights.
Moreover, they are widely and seriously threatened. And incorporating
them in international law could help significantly in increasing their
secure enjoyment in many parts of the world today and in the future.
Finally, it seems justified to confer legal rights holding primarily against
ones government because only governments are normally in a position to
rescue their citizens from these sorts of harm.
However, the appeal to the presupposed moral human rights can jus-
tify the incorporation of international welfare human rights only if these
rights are defined, or at least interpreted, in appropriate ways. Thus, the
international human right to an adequate standard of living should not be
interpreted as simply a claim against ones government that it provide one
with adequate food, clothing, shelter, and so forth. A legal human right to
an adequate standard of living justified by a moral human right to be res-
cued from serious peril must be a claim that ones government provide
assistance only if needed to rescue one from the threat or lack of adequate
food, clothing, shelter, and so forth. A government could respect this
moral human right in a variety of ways. For example, it could establish a
communistic economic system in which the state manages all production
and distributes basic goods and services to all citizens. Or the government
could maintain a capitalistic economic system and policies that ensure
full employment, ensuring incomes sufficient to provide for the basic
needs of all or almost all citizens, perhaps supplemented with some pro-
visions for those who are unemployed and not supported by any bread-
winner. Or the society could have a very simple economic system and the
government could sustain social institutions including extended families
and private charities sufficient to ensure that no one lacks an adequate
standard of living.
Again, the formulation of Article 12.1 of the International Covenant
on Economic, Social, and Cultural Rights is probably misguided. At least
the international human right to the enjoyment of the highest attainable

standard of physical and mental health cannot be justified as a protection
for any comparable moral human right. Minor injuries or illnesses do not
constitute serious harms so that the threat of suffering them would not
qualify as serious peril. Hence, a legal human right thus conceived could
not be justified by an appeal to the basal moral human right to be rescued.
Here the covenant seems to have asserted a social ideal, not a morally
justified legal welfare human right.
7. DUE PROCESS RIGHTS
The International Covenant on Civil and Political Rights incorporates sev-

eral due process rights, mostly those common in national legal systems,
into international human rights law. Among these are the right to be
informed at the time of arrest of the reasons for ones arrest and to be
promptly informed of any charges against one (Article 9.2), the right if
arrested or detained to be brought promptly before a judge or other judi-
cial official and to a trial within a reasonable time or to release (Article
9.3), the right in the determination of any criminal charge to a fair and
public hearing by a competent, independent and impartial tribunal estab-
lished by law (Article 14.1), and the right not to be held guilty of any
criminal offense on account of any act or omission that did not constitute
a criminal offense under national or international law at the time when it
was committed (Article 15.1).
Although some might attempt to justify these and similar international
rights by an appeal to a basal moral right to due process, I propose another
sort of justification. After describing the absolute rights of persons, Wil-
liam Blackstone writes:
But in vain would these rights be declared, ascertained, and protected by

the dead letter of the laws, if the constitution had provided no other method
to secure their actual enjoyment. It has therefore established certain other
auxiliary subordinate rights of the subject, which serve principally as out-
works or barriers to protect and maintain inviolate the three great and pri-
mary rights, of personal security, personal liberty, and private property.16
I suggest that the legalization of due process human rights can best be
justified indirectly as derived rights conducive to the protection of the
primary international human rights that are in turn justified by appeals to
basal moral human rights. In fact, this seems to be the way in which the
authors of the Universal Declaration of Human Rights thought of their
justification as the strongest protection against systematic human rights
violations.17
On this suggested indirect justification, the incorporation of the pri-
mary human rights into international law would be justified by several
considerations relevant to the legalization of moral human rights. They
would be among the most important moral rights that are seriously threat-
ened and that could be protected reasonably effectively by international
law without unacceptable consequences. The legalization of due process
human rights would then be justified by the ways in which they could
increase the effectiveness of international law in the protection of primary
human rights. The record of due process rights in municipal legal systems
shows that the sorts of due process rights asserted in the International
Covenant on Civil and Political Rights could serve this function well.
8. POLITICAL RIGHTS
Article 26 of the International Covenant on Civil and Political Rights

asserts the central political rights:
(a) To take part in the conduct of public affairs, directly or through
freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which
shall be by universal and equal suffrage and shall be held by secret
ballot, guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his
country.
However, it is important to recognize that the kinds of international

human rights as I have classified them overlap. Thus, several of the rights
to liberties are also political rights. For example, the right to freedom of
expression (Article 19.2) protects the liberty to speak freely when cam-
paigning for public office or objecting to some governmental action or
policy, and the right to freedom of association (Article 22.1) permits
groups of individuals to form political parties.
With some trepidation, I suggest that the incorporation of these and any
similar political rights could be justified indirectly in the same way as the
due process rights. These should be interpreted as derived human rights
serving to make more secure the various presupposed moral human rights.18
Tyranny, oppression, and discrimination that deny human rights will be at
least more difficult and in some cases impossible when all those subject to
the law have and can exercise these political rights. After all, todays human
rights are the descendants of the traditional natural rights, and the Ameri-
can and French declarations appealed to these fundamental moral rights to
reject and resist governments they considered unjust because these govern-
ments failed in their proper function of protecting natural rights.
9. GROUP RIGHTS
Although the rights asserted in international human rights documents are

for the most part rights possessed by individual persons as human beings,
a few seem to be collective rights possessed by groups as groups. Arguably

the first of these group rights is conferred by the Convention on the Pre-
vention and Punishment of the Crime of Genocide of 1948. After making
genocide a crime under international law in Article 1, Article 2 defines
genocide in the following manner:
In the present Convention, genocide means any of the following acts com-
mitted with intent to destroy, in whole or in part, a national, ethnical, racial
or religious group, as such:
(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part.
These provisions seem to confer upon national, ethnical, racial, or reli-

gious groups a right that others not act in ways intended to destroy them.
The clearest example of a group right in international human rights
law is found in Article 1 of both covenants of 1966.
1. All peoples have the right of self-determination. By virtue of that
right they freely determine their political status and freely pursue
their economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of their natural
wealth and resources without any prejudice to any obligations
arising out of international economic co-operation, based upon the
principle of mutual benefit, and international law. In no case may a
people be deprived of its own means of subsistence.
This would seem to be a right that could be possessed and exercised only
by a people collectively as a group.
How should one interpret references to group rights in international
human rights documents? Some analyses of the language of rights would
take them at face value as identifying rights of groups as groups while
others would deny that groups as such are capable of possessing rights. I
have argued that on the most adequate conception of rights, unorganized
groups are not possible right-holders. This is because the action of groups
consists in the actions of their members, and when there are no organiza-
tional rules, the actions of its members do not constitute actions of the
group as such.19 Paradoxical as it may seem, I do not deny that in fact
some groups do possess legal rights. Because the law is a text-centered
institution, when some authoritative legal text ascribes a right to some
group, then that group does possess that right. However, although a lawyer
ought to accept the existence of group rights, a philosopher of law should
recognize that assertions of group rights misrepresent the way in which
the law actually functions. To clarify the legal reality one should analyze
any legal group right into legal positions of individuals under the law. For
example, the right of a people to self-determination asserted in the two
covenants of 1966 consists, among other legal positions, of the liberty-rights
of individual members of a people to resist alien domination, to appeal to

others to join them in resistance, and to associate with others to achieve
or maintain the self-determination of the group.
Are the group rights asserted in international human rights documents
really human rights? Most jurists describe the relatively few group rights
identified in human rights documents as simply another class of human
rights. But how could group rights be human rights? A human right is a
right that one possesses as a human being, but neither a people nor a
racial or ethnical minority is a human being. The Organization of African
Unitys African Charter on Human and Peoples Rights recognizes this
fact and distinguishes between the human rights of individual persons,
asserted in Articles 2 through 18, and the rights of peoples, asserted in
Articles 19 through 24. Clearly, group rights cannot be human rights in
the usual primary sense. Although groups are composed of human beings,
no group could possess any right as a human being. However, group rights
might be human rights in a secondary sense, rights conferred upon groups
by the international law of human rights. This would be so if the rights of
groups such as peoples, indigenous tribes, and racial or cultural minorities
could be derived from the human rights of individual persons. The most
promising derivations would begin with the human rights to liberty, to
the equal protection of the laws, to education, and to take part in cultural
life. Still, international law would not be radically altered if it turned out
that the group rights asserted in human rights documents were human
rights in name only. They would still be legally valid group rights.
For present purposes, the crucial question is whether the incorporation
of group rights into international law could be justified as protections of
moral human rights. If peoples rights can be derived from legal human
rights, then their incorporation is justified to the extent that the incorpo-
ration of the rights from which they are derived is justified. At least, their
embodiment is justified provided the introduction of these group rights
introduces no additional unacceptable consequences such as the unjusti-
fied violation of the sovereignty of nation-states. The kinds of group rights
asserted in human rights documents could probably be defined or inter-
preted to permit only justified limitations of national sovereignty.
If, on the other hand, the incorporation of group rights cannot be justi-
fied by derivation from the human rights of individual persons under
international law, then perhaps their embodiment could be justified more
directly as protections of moral human rights. Presumably, different group
rights should be understood to protect different clusters of moral human
rights. Consider, for example, a passage from the Declaration on the
Granting of Independence to Colonial Countries and Peoples of 1960:
The General Assembly . . . Declares that: (1) The subjugation of peoples to
alien subjugation, domination, and exploitation constitutes a denial of
fundamental human rights, is contrary to the Charter of the United
Nations and is an impediment to the promotion of World Peace and
co-operation. This suggests that the legalization of the right of peoples to
self-determination serves to protect the moral human rights to liberty and

equitable treatment of individual persons. However, the right of national,
ethnical, racial, or religious groups not to be destroyed more likely pro-
tects a rather different set of moral human rights. The Convention on the
Prevention and Punishment of the Crime of Genocide of 1948 defines
genocide in terms of five kinds of acts such as killing members of the
group or causing serious bodily or mental harm to members of the group.
Presumably, then, this group right is intended to protect the moral human
rights to life and personal security of the individual members of the spec-
ified groups. On either justification, group rights would constitute
auxiliary human rights serving to protect the primary moral human rights
of individual persons.
10. CONCLUSION
The global human rights documents examined here presuppose the exis-
tence of prior and independent moral human rights and the need to
achieve international respect for them. Hence, moral human rights can be
used to a limited extent to interpret the human rights they declare or
recognize, and one obvious justification for incorporating human rights
into global international law would be to secure and protect these preex-
isting moral human rights. I have suggested how the incorporation of a
variety of the human rights asserted in these documents could be justified
by an appeal to one or more moral human rights. However, my sugges-
tions are tentative because I have merely sketched the required justifica-
tions, not explained them in sufficient detail to render them cogent.
Although the distinction between basal and derived human rights is
not assumed in the major human rights documents, these do incorporate
both basal and derived moral human rights into international law. The
incorporation of derived human rights in global international law may be
justified when they are universally applicable, but it is not appropriate
when a derived human right presupposes specific conditions or circum-
stances that render it inapplicable in many societies.
Blackstones distinction between primary and auxiliary rights in the
English common law is applicable to the international law of human
rights. Primary legal human rights can be justified directly as protections
of one or more moral human rights. This sort of justification presupposes,
of course, the existence of the moral human rights assumed in the justifi-
catory reasoning. Because the existence and definition of moral human
rights is extremely controversial, any such justification, including the ones
I have suggested here, can and should be subjected to critical examina-
tion, Although I cannot guarantee that all the moral human rights to
which I have appealed are real moral rights, I firmly believe that most of
them are genuine and that there are other moral human rights that might
well serve to justify the legalization of primary human rights. Auxiliary
human rights can be justified indirectly as derived human rights that pro-
tect primary human rights in international law. This is most clearly true of
due process rights and may be true of most of the usual political human
rights.
The most problematic rights asserted in the global human rights docu-
ments are group rights such as the right to self-determination of a people
or the right of a racial or ethnic group not to be destroyed. Because all
basal moral human rights are rights of individual persons, not groups as
such, the incorporation of any group human rights could be justified only
as a protection of a derived moral human right implied by one or more
basal moral human rights or as an auxiliary human right protecting one or
more human rights independently established in international law.
One moral dimension of international human rights documents, and
the one I have chosen to emphasize, is the moral human rights they pre-
suppose and help to protect. Suppose that the incorporation of some of
the rights recognized in documents such as conventions sponsored by the
United Nations cannot be justified as protections of moral human rights.
Does this imply that the embodiment of these rights is unjustified? Not
at all. There are other justifications for recognizing and implementing
human rights in international law. Some of these are made explicit in
United Nations documents. For example, the Preamble to the General
Assemblys Declaration on the Elimination of All Forms of Intolerance
and of Discrimination Based on Religion or Belief reads in part: Con-
vinced that freedom of religion and belief should also contribute to the
attainment of the goals of world peace, social justice and friendship among
peoples and to the elimination of ideologies or practices of colonialism
and racial discrimination. Because these are also appropriate moral values
for international law to serve, they could also justify the recognition and
implementation of international human rights.
5
The Nature of International

Human Rights
Most authorities on international human rights would grant that the

authors of the global human rights documents I have examined did pre-
suppose the existence of prior and independent moral human rights.
However, many would deny my conclusion that moral human rights may
properly be used to interpret and justify the human rights these docu-
ments declare and recognize. They would argue, first, that moral human
rights are essentially different in nature from the human rights conferred
by international law. The former are natural and noninstitutional but the
latter are artificial creations of the legal institutions of the international
community. They would also insist that the grounds of moral human
rights are radically different from the grounds of international human
rights. The former are grounded on moral reasons, morally relevant facts
that exist independently of our moral beliefs or practices, but interna-
tional human rights are grounded on legal sources posited by human pro-
cedures such as the ratification of a treaty or the general practice of
nation-states and accepted as authoritative by the officials of the interna-
tional legal system. Let us examine each of these challenges in turn.
1. RIGHTS
If moral human rights and international human rights are really rights in
the same sense, then they do share at least the properties implicit in the
general concept of a right. However, although most jurists believe that civil
and political human rights are rights in the strict sense, many deny that
what are called economic, social, and cultural rights can, strictly speaking,
be rights in international law. This is because a real right imposes definite
obligations upon some second party, but the International Covenant on
Economic, Social, and Cultural Rights commits state parties only to take
steps to achieve progressively the goals it affirms. This seems to give unlim-
ited discretion to state parties as to what steps they will take and when they
will take them so that the so-called economic, social, and cultural rights are
really social goals or moral ideals rather than legally binding rights.
71
Whether such discretion is limited by any legal obligation is the issue

in The Government of the Republic of South Africa et al. v. Grootboom.1
Although this case concerns the right of access to housing in a national
legal system, the South African Constitution requires a court to consider
international law when interpreting its Bill of Rights. In this case, the Con-
stitutional Court cites the International Covenant on Economic, Social,
and Cultural Rights and the General Comment 3 issued by the United
Nations Committee on Economic, Social and Cultural Rights, which
insists that economic and social human rights do impose definite obliga-
tions. On this basis, it rules that the existing programs of the South Afri-
can government to promote access to housing for the hundreds of
thousands of people living in deplorable conditions throughout the coun-
try do not meet its legal obligations. Regarding the governments obliga-
tions to provide access to housing, health care, sufficient food and water,
and social security and the corresponding rights, Justice Yacoob, delivering
the opinion of the court, insisted in his summary and conclusion:
I am conscious that it is an extremely difficult task for the state to meet
these obligations in the conditions that prevail in our country. This is recog-
nized by the constitution which expressly provides that the state is not
obliged to go beyond available resources or to realize these rights immedi-
ately. I stress however, that despite all these qualifications, these are rights,
and the Constitution obliges the state to give effect to them. This is an obli-
gation that the court can, and in appropriate circumstances, must enforce.2
Thus, there is nothing in the nature of economic, social, and cultural

rights, even though qualified in ways that civil and political rights are not,
that prevents then from being justiciable and legally binding rights in the
strict sense.
Nevertheless James Nickel believes that my approach misrepresents
the general idea of human rights.
One approach that should be avoided puts a lot of weight on whether the
norm in question really is, or could be, a right in a strict sense. . . . This
approach begs the question of whether human rights are rights in a strict
sense rather than a fairly loose one. The human rights movement and its
purposes are not well served by being forced into a narrow conceptual
framework. The most basic idea of the human rights movement is not that
of a right, but the idea of regulating the behavior of governments through
international norms. And when we look at human rights documents we find
that they use a variety of normative concepts.3
He insists that human rights are rights, but not necessarily in a strict sense,
and suggests that one might well interpret economic and social human
rights as right-goal mixtures.4
Nickel is correct when he argues that insisting upon interpreting the
expression human rights in the strict sense would distort the meaning of
the literature of the human rights movement and even the documents
that recognize human rights in international law. Because the human
The Nature of International Human Rights 73
rights movement does have many purposes, its advocates use the language
of human rights in a broader sense or range of senses, and to a lesser
degree this is true of the documents that recognize international human
rights.
But as Nickel himself reminds us, we find that human rights docu-
ments use a variety of normative concepts. This is precisely why one
should not ignore the differences between these various concepts and not
confuse the concept of a legal right in a strict sense with the very different
concepts of a social goal or a moral ideal. What one should do is to distin-
guish between real international legal rights that impose binding obliga-
tions and goals or ideals proclaimed in human rights documents that are
not really legally binding rights. It would be a mistake to jump to the
conclusion that international law does not recognize and implement
many genuine human rights.
2. MODALITY
The majority of jurists and philosophers of law believe that human rights
are claim-rights imposing corresponding duties primarily if not exclu-
sively upon nation-states. For example, Richard Wasserstrom argues that
human rights must be claim-rights because they are rights and To have a
right to anything is, in short, to have a very strong moral or legal claim
upon it.5 But is it true that all international human rights are claim-
rights? Or are they similar to moral human rights by having various
modalities?
No doubt some, and probably most, international human rights are
claim-rights. Article 5 of the Universal Declaration of Human Rights
reads: No one shall be subjected to torture or to cruel, inhuman or
degrading treatment of punishment. And this human right is conferred in
the same language by both the International Covenant on Civil and Polit-
ical Rights (Article 7) and the Council of Europes European Convention
for the Protection of Human Rights and Fundamental Freedoms (Article
3). That this international human right seems to function as a claim-right
is illustrated by the case of Ireland v. the United Kingdom, in which the
European Court of Human Rights ruled in favor of the applicant govern-
ment, Ireland, claiming that the United Kingdom had violated its correla-
tive obligation under the European Convention not to subject numerous
persons in Northern Ireland arrested and taken to interrogation centers to
inhuman and degrading treatment.6
However, not all international human rights are claim-rights. The Inter-
national Covenant on Civil and Political Rights describes the right of
peaceful assembly in Article 21 as follows:
The right of peaceful assembly shall be recognized. No restrictions may be
placed on the exercise of this right other than those imposed in conformity
with the law and which are necessary in a democratic society in the interests of
national security or public safety, public order (ordre public), the protection of
public health or morals or the protection of the rights and freedoms of others.
Admittedly, the first sentence confers a claim-right against each state

party to the covenant that the right of peaceful assembly be recognized
in its municipal legal system and that its legal system place only a limited
range of restrictions on the exercise of this right. But this cannot be the
whole story, for the human right to be recognized by each state party is
the presupposed right of peaceful assembly and only restrictions on the
exercise of this right justified by specified purposes are permissible. Pre-
sumably the human right to peaceful assembly itself is a liberty-right that
a human being exercises, not by claiming legal recognition for it, but by
assembling peacefully.
The European Court of Human Rights clearly agrees with this inter-
pretation of the human right to peaceful assembly as a liberty-right in the
following passage:
The Commission has already stated that the right of peaceful assembly recog-
nized in Article 11 is a fundamental right in a democratic society and, like the
right to freedom of expression, is one of the foundations of such a society. This
right is exercised in particular by persons taking part in public processions. . . .
The Commission therefore recognizes that the applicant was exercising his
freedom of peaceful assembly when he joined the demonstration.7
Thus, the human right to peaceful assembly is primarily a liberty-right

defined by the core liberty to act in a specified manner, to assemble peace-
fully. This defining legal liberty is protected at least by the obligation of
state parties not to restrict its exercise except on the basis of the specified
justifying reasons.
There are also international human power-rights. Article 2 of the
Optional Protocol to the International Covenant on Civil and Political
Rights of 1966 reads as follows: Subject to the provisions of Article 1,
individuals who claim that any of their rights enumerated in the Cove-
nant have been violated and who have exhausted all available domestic
remedies may submit a written communication to the Committee for
consideration. This confers upon citizens of those state parties that have
ratified this protocol the legal power of submitting a written communi-
cation to the United Nations Human Rights Committee claiming a
violation of any of their civil or political human rights and requesting a
remedy thereof. Individuals who are citizens of nation-states that have
not ratified this protocol lack standing to exercise this power.
More than a legal power is required to constitute a legal right. There
must also exist associated legal positions sufficient to confer upon the
holder of this power dominion over its exercise in any confrontation with
a second party intent on preventing its exercise. I believe, however, that
the optional protocol also confers a liberty to exercise the power to submit
a communication to the Human Rights Committee when it specifies that
individuals . . . may submit a written communication. This is standard
language for conferring a legal permission, but here a permission to exer-

cise a legal power. In addition, I infer that international law includes an
obligation of any State Party to the protocol not to prevent or hinder its
exercise. This presumably follows from Article 26 of the Vienna Conven-
tion on the Law of Treaties regarding the observance of treaties: Every
treaty in force is binding upon the parties to it and must be performed by
them in good faith. Any state party to the optional protocol would not be
performing in good faith its obligations under Article 2 were it to attempt
to undermine or deny the legal power that article confers upon its indi-
vidual citizens. Thus, there is an international human power-right to sub-
mit written communications to the Human Rights Committee consisting
of at least the core power to submit a communication, the liberty to exer-
cise this power, and the protective obligation of state parties not to inter-
fere with its exercise.
The International Covenant on Civil and Political Rights recognizes
the right against double jeopardy as a human right in Article 14.7, which
reads: No one shall be liable to be tried or punished again for an offence
for which he has already been finally convicted or acquitted in accor-
dance with the law and penal procedure of each country. The obvious
interpretation of this passage is that it confers an international human
claim-right against double jeopardy in national legal systems. This inter-
pretation has been accepted by the Human Rights Committee in a
number of cases.8 Here, then, is an international claim-right to a national
immunity-right.
However, international law also confers a human immunity-right
against double jeopardy. The principle non bis in idem has long been rec-
ognized in public international law. More recently, it has been included in
Article 10.2 of the United Nations Statute of the International Tribunal
for the Prosecution of Persons Responsible for Serious Violations of Inter-
national Humanitarian Law Committed in the Territory of the Former
Yugoslavia since 1991 as follows:
A person who has been tried by a national court for acts constituting serious
violations of international humanitarian law may be subsequently tried by the
International Tribunal only if:
(a) the act for which he or she was tried was characterized as an ordi-
nary crime; or
(b) the national court proceedings were not impartial or independent,
were designed to shield the accused from international criminal
responsibility, or the case was not diligently prosecuted.
Similarly Article 20.1 of the Rome Statute of the International Criminal

Court specifies that Except as provided in this Statute, no person shall be
tried before the Court with respect to conduct which formed the basis of
crimes for which the person has been convicted or acquitted by the
Court. Thus international law confers upon individuals both a human
claim-right against double jeopardy in national legal systems and a human

immunity-right against double jeopardy in the international legal system
itself. It is clear that international human rights are similar to moral human
rights insofar as they both admit to various modalities, specifically being
claim-rights, liberty-rights, power-rights, or immunity-rights.
3. ADVERSARIAL NATURE OF RIGHTS
Because rights are essentially adversarial, every right has three parties or
kinds of party. A first party is a party who possesses the right, a right-
holder. A second party is a potential adversary in any confrontation to
which the right is relevant, a party against whom the right holds. A third
party is a party in a position to intervene either on the side of the right-
holder or to aid or abet a second party intent on violating or denying the
right.9 Although Hohfeld wrote as though rights constituted two-term
legal relations, his version of American Legal Realism presupposes a
third party, a judge or other legal official applying the law to the first and
second parties subject to it. Hence, the parties to any international
human right can best be found in the functioning of some law-applying
institution.
Who, then, are the first parties to the rights conferred by the interna-
tional law of human rights? The possessor of a liberty-right, like the
human right to peaceful assembly, is the party in a position to exercise the
liberty that constitutes its defining core legal position. As the European
Court of Human Rights recognized, this right is exercised by individual
human beings, persons who assembly peacefully. Similarly, the possessor
of a power-right, like the human power-right to submit a written commu-
nication to the Human Rights Committee, is any individual citizen of a
nation-state that has ratified the first Optional Protocol to the Interna-
tional Covenant on Civil and Political Rights. Thus, the possessors of at
least these international human rights are, as one would expect, human
beings.
The first party to an immunity-right is the party immune to having her
or his relevant legal position changed by some second party. In the case of
the human immunity-right against double jeopardy, it is the person
already convicted or punished who cannot be legally convicted or pun-
ished a second time for the same offense. Here, also, the possessor of this
human right is an individual human being.
The possessor of a claim-right is the party with the power to claim
performance of the corresponding duty owed by the second party to the
right-holder. In the cases of Juan Fernando Teran Jijon v. Ecuador and Rob-
ert Faurisson v. France the Human Rights Committee recognized the
power of the two individual plaintiffs to claim respect for their human
claim-right against double jeopardy. Accordingly, it is individual human
beings who are the first parties to this human claim-right.
However, the international law of human rights is more complicated

than one might expect. At first glance, the human right not to be sub-
jected to torture or to cruel, inhuman, or degrading treatment or punish-
ment seems like a paradigm example of a claim-right. But in the case
of Ireland v. the United Kingdom, it was Ireland, not any or all of the
numerous persons allegedly subjected to inhuman and degrading treat-
ment, that exercised the power to claim that their human rights had been
violated. Does this show that what seems to be a right of individual
human beings is really a right of state parties to the European Convention
for the Protection of Human Rights and Fundamental Freedoms? In 1978,
when this case was decided, individuals had no power to claim the right
not to be subjected to torture or to cruel, inhuman or degrading treat-
ment or punishment under the European Convention. But after 1998,
when Protocol No. 11 went into effect, they have had this power. On a
Hohfeldian realistic conception of rights like mine, this implies that only
after 1998 have individual human beings possessed this right in European
international law.
On this conception of rights, what right was Ireland claiming in 1978?
It was its right as a state party to the European Convention that all other
state parties respect the human rights and fundamental freedoms of its
citizens. However, this right does not rule out the existence of other rights,
international human rights of its individual citizens. And that one purpose
of the European Convention is to confer such rights is implied by
the words for the Protection of in its full title. Hence, I suggest that
this document is intended to fulfill at least two legal functions, both to
recognize human rights of individual persons and to secure these rights
by conferring protective rights upon the state parties to the European
Convention.
Turning to global human rights law, Article 7 of the International Cov-
enant on Civil and Political Rights also recognizes the human right not to
be subjected to torture or to cruel, inhuman or degrading treatment or
punishment. That the first parties of this and the other human rights
specified in this document are individual human beings is evident from
the use of expressions such as no one shall or everyone has as well as
Article 2, which reads: Each State Party to the present Covenant under-
takes to respect and to ensure to all individuals within its territory and
subject to its jurisdiction the rights recognized in the present Covenant.
Although there is no international court of human rights before which
individuals can claim performance of their right not to be subjected to
torture or to cruel, inhuman, or degrading treatment or punishment, per-
sons subject to the jurisdiction of state parties to the first optional proto-
col have the power to submit written communications to the Human
Rights Committee. In the event that the committee finds in their favor,
the committee will forward its views to the state party concerned and to
the individual. It could also include its findings in its report to the General
Assembly. Thus, the human claim-rights recognized in the International
Covenant are probably real claim-rights of individual persons in interna-

tional law. In addition, Article 41 confers on state parties the power to
submit to the committee claims that another state party is not respecting
the human rights of its individual citizens. The first parties of this protec-
tive claim-right are nation-states rather than individual persons. Similarly,
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment of 1984 recognizes both a human claim-right
of individual persons and a protective claim-right of state parties.
This procedure of implementation is not limited to the human right
not to be subjected to torture or to cruel, inhuman, or degrading treat-
ment or punishment. The European Convention and the International
Covenant on Civil and Political Rights function as a rule both to recognize
human rights of individual persons and to confer protective rights of state
parties. Hence, one can and should generalize beyond this sample right in
two respects. First, the provisions concerning other civil or political claim-
rights also confer both international human claim-rights of individual
human beings and protective rights of state parties. Second, the provisions
concerning civil or political liberty-rights, power-rights, or immunity-
rights both recognize these human rights of individuals and confer rights
upon state parties to protect these rights on behalf of their nationals.
Whether one can generalize further to international economic, social,
or cultural rights is doubtful. Article 8.1(a) of the International Covenant
on Economic, Social, and Cultural Rights recognizes the right of every-
one to form trade unions and join the trade union of his choice. This is
probably intended to confer a power-right, or pair of liberty-rights, upon
all individuals. But most of the human rights recognized in this document,
such as the rights to just and favorable conditions of work, to social secu-
rity, or to an adequate standard of living are presumably intended to be
claim-rights of individuals. However, this covenant does not confer upon
individuals any power to claim these or any other specified rights, and
there is no protocol that confers this power either. Therefore, the eco-
nomic, social, or cultural rights recognized in this document cannot func-
tion in international law as real claim-rights of individual human beings.
Nor do state parties have any power to claim these rights on their behalf.
To be sure, there do exist procedures for implementing these rights by a
system of reports to be reviewed by the Committee on Economic, Social
and Cultural Rights, but these do not confer any power to claim perfor-
mance of these rights upon their intended right-holders, and to date the
efforts to draft an acceptable optional protocol for the consideration of
communications concerning noncompliance have been in vain. Until
some such efforts bear fruit, there will remain a mismatch between the
recognition of economic, social, and cultural human rights and the protec-
tive procedures that could transform them into real claim-rights of indi-
vidual human beings.
There is a considerable body of philosophical literature that takes the
moral rights of cultural minorities as paradigm examples of group rights.
But global international law recognizes and protects these as rights of

individual members of minorities, not as collective rights of minorities as
groups. Article 27 of the International Covenant on Civil and Political
Rights reads: In those States in which ethnic, religious or linguistic
minorities exist, persons belonging to such minorities shall not be denied
the right, in community with the other members of the group, to enjoy
their own culture, to profess and practice their own religion, or to use
their own language. Paragraph 3.1 of the General Comment 23 of the
Human Rights Committee clearly and unambiguously supports the inter-
pretation of minority rights as rights of individual persons.
The Covenant draws a distinction between the right to self-determination

and the rights to be protected under article 27. The former is expressed to
be a right belonging to peoples and is dealt with in a separate part (Part I)
of the Covenant. Self-determination is not a right cognisable under the
Optional Protocol. Article 27, on the other hand, relates to rights conferred
on individuals as such and is included, like the articles relating to other
personal rights conferred on individuals, in Part III of the Covenant and is
cognisable under the Optional Protocol.
Thus, groups as such are not first parties to minority rights in global inter-
national law.
I conclude that the first parties to the human rights recognized in the
legally authoritative international documents are intended to be indi-
vidual human beings. However, not all of these recognized human rights
are implemented in such a way as to make them real rights of their
intended first parties in international law. In addition, these documents
recognize international human rights of nation-states to protect the
human rights of their nationals. These protective rights enable nation-states
to act as third parties to the human rights of the individual persons over
whom they have jurisdiction.
Who are the second parties to international human rights? Against
whom do they hold? There can be no doubt that primarily and as a gen-
eral rule, nation-states are the second parties to human rights in interna-
tional law. Part 2 of both the International Covenant on Economic, Social,
and Cultural Rights and the International Covenant on Civil and Political
Rights specify the obligations of the state parties to these human rights
treaties. And the cases considered by the Human Rights Committee
involve communications alleging that some nation-state has violated one
or more of the rights recognized in the latter document. The same is true
of cases decided by the European Court of Human Rights or the Inter-
American Court of Human Rights.
This is no accident. The two primary sources of international human
rights law are treaties and customary state practice. The two international
covenants as well as both the European and American conventions are
implemented primarily by some state party taking action against another
state party that it alleges has violated one or more human rights of its
nationals. And the same is true of the enforcement of customary human

rights law. In addition, it is possible for individuals to initiate proceedings
to claim their human rights. But Article 1 of the first Optional Protocol to
the International Covenant on Civil and Political Rights, Article 34 to the
European Convention for the Protection of Human Rights and Funda-
mental Freedoms, and Article 44 of the Organization of American States
American Convention on Human Rights all limit this power to individ-
uals who claim to be victims of a violation by a state party.
But surely a murderer violates the victims human right to live and a
kidnapper someones human right to liberty. But murder and kidnapping
are crimes in most national legal systems, not in international law. The
most likely place to find individual responsibility for the violation of
human rights in international law is the law defining and punishing crimes
against humanity.
Article 5 of the Rome Statute of the International Criminal Court lists
crimes against humanity as one class of crimes within the jurisdiction of
the court. Article 7 then defines crimes against humanity for the pur-
poses of this statute by enumeration. Most of the crimes listed would
seem to be violations of human rights recognized in the International
Covenant on Civil and Political Rights. But these crimes against humanity
are defined by the nature of the act performed, not as violations of the
corresponding human right. And they constitute crimes against humanity
only when committed as part of a widespread or systematic attack.
Therefore, the obligation of individuals not to commit crimes against
humanity is not evidence that individual persons as well as nation-states
are second parties to international human rights.
There are, however, international human rights documents that ascribe
duties or responsibilities regarding human rights to individual persons as
well as other nonstate actors. An obvious example is the Declaration on
the Right and Responsibility of Individuals, Groups and Organs of Society
to Promote and Protect Universally Recognized Human Rights and Fun-
damental Freedoms adopted by the General Assembly in 1998. Article 16
reads:
Individuals, non-governmental organizations and relevant institutions have

an important role to play in contributing to making the public more aware
of questions relating to all human rights and fundamental freedoms through
activities such as education, training and research in those areas to strengthen
further, inter alia, understanding, tolerance, peace and friendly relations
among nations and among all racial and religious groups, bearing in mind
the various backgrounds of the societies and communities in which they
carry out their activities.
Presumably, I am playing this role by writing and publishing my theory of

human rights. But even if I have an obligation to play this role, it is a very
different and more general obligation than any that would be correlative
with the specific human rights recognized in international law. Therefore,
this document does not demonstrate that individuals or other nonstate

agents are second parties to international human rights. Article 16 and again
Article 18 should be interpreted as describing moral responsibilities, not
legal obligations, regarding human rights. I conclude that nation-states and
only nation-states are second parties to human rights in international law.
4. UNIVERSALITY
Are international human rights really universal? That is, do all human
beings possess all international human rights? The Preamble to the Uni-
versal Declaration of Human Rights begins as follows: Whereas recogni-
tion of the inherent dignity and of the equal and inalienable rights of all
members of the human family. . . . This certainly suggests that human
rights are possessed by all human beings. Although this might be true of
moral human rights because they might be grounded on the inherent
dignity of every human being, it does not necessarily follow that it is also
true of the human rights conferred by international law.
To determine whether all human beings possess international human
rights one would need some criterion or criteria for the identification of a
human being. As far as I know, international law has left the concept of a
human being undefined. Article 4 of the American Convention on Human
Rights specifying the right to life reads in part: Every person has the right
to have his life respected. This right shall be protected by law and, in gen-
eral, from the moment of conception. This suggests that human fetuses
possess human rights, or at least the human right to life. But other human
rights treaties do not include any such suggestion, nor has it been gener-
ally accepted in the international implementation of the human right to
life. Whether irreversibly comatose human beings or individuals with se-
rious brain damage qualify for the possession of international human
rights also remains undecided. Still one can ask whether all human beings,
however that class of entity may be defined, are first parties to human
rights in international law.
Because resolutions of the General Assembly are not an independent
source of international law, the general principles of the Universal Decla-
ration were subsequently defined more specifically in the International
Covenant on Civil and Political Rights and the International Covenant on
Economic, Social, and Cultural Rights. And because one of the primary
sources of international law consists of international treaties, these docu-
ments do confer a wide range of human rights upon individual human
beings. Although they purport to confer international human rights upon
all human beings, neither covenant creates any procedures to make these
real rights in international law. And Article 1 of the Optional Protocol to
the International Covenant on Civil and Political Rights of 1966 recog-
nizes only the competence of the Human Rights Committee to receive
and consider communications from individuals subject to its jurisdiction
who claim to be victims of a violation by that State Party of any right set
forth in the Covenant. Not all the members of the United Nations have
ratified these treaties, and a treaty is binding only upon those nation-states
that are parties to it. Accordingly, it is doubtful that these covenants or
similar international treaties confer real legal rights upon all human
beings, including those subject to the jurisdiction of states that have not
ratified the relevant treaty.
However, another primary source of international law is international
custom consisting of a general, uniform, consistent, and settled state prac-
tice together with opinion juris, evidence that this practice is rendered
obligatory by the existence of a rule of law requiring it.10 Unlike treaty
law, customary law is normally binding upon all nation-states. The legal
presumption is that even those nation-states that have not expressly
affirmed the customary international rule acquiesce in it, with the pos-
sible exception of those that have persistently objected to it. No subject
of international law can evade its obligations under customary interna-
tional law by repudiating a customary rule on only one or a few occasions.
Hence, it would seem that those human rights that have been recognized
in international customary law would be possessed by all, or almost all,
individual persons. Unfortunately, jurists disagree about how many human
rights have been recognized in customary law. Although some argue that
all the rights and freedoms in the Universal Declaration have become in-
ternational customary law through state practice and opinion juris, others
believe that far fewer have as yet acquired this status.11 Therefore, one
cannot conclude with any confidence that all human beings are first
parties to most of the human rights recognized in international law.
Moreover, international human rights law is a relatively recent devel-
opment. Although it can be argued that basal moral human rights are
possessed by all human individuals, wherever and whenever they may
live, because they are grounded on a shared unchanging human nature,
international human rights are conferred by international law that comes
into being and is developed rule by rule and at various times. Hence,
whatever may be true of the geographical universality of the possessors of
international human rights, no human individual can possess an interna-
tional human right before it has become recognized and implemented in
the institutions of the international legal system.
Therefore, the universality of international human rights is much more
limited than that of moral human rights. No human being can possess an
international human right before it has been recognized in international
law. Probably only human beings subject to the jurisdiction of a state that
has ratified a human rights treaty possess the rights it recognizes. But
when a human right becomes established in customary international law,
every human being then alive does possess this right, at least as long as the
relevant international custom persists.
Limited as it is, this universality is legally and morally important. It
implies that no ratifying nation may discriminate against one segment of
its population by failing or refusing to respect its treaty human rights.

And every nation-state now has an obligation to respect those human
rights that have become established in contemporary customary inter-
national law.
5. CONCLUSION
I argued in the previous chapter that because the most important interna-
tional human rights documents presuppose the existence of moral human
rights, moral human rights are relevant to the justification of and interpre-
tation of international human rights. Some jurists would object that moral
human rights cannot be relevant in these ways because they are essen-
tially different from the human rights conferred by international law.
Moral human rights are noninstitutional and exist independently of any
human practice, but international human rights are creatures of the legal
institutions of the international community and are valid only because
they are accepted in the practices of the officials of these institution.
It is true that moral human rights and institutional human rights differ
in these respects and that these are very substantial differences. However,
because they are both rights in the same sense, they share the generic
characteristics of rights. They both occur in various modalities, specifically
as claim-rights, liberty-rights, power-rights, or immunity-rights. And they
are both essentially adversarial. They are possessed by individual human
beings and hold against second parties in some potential confrontation.
And although the universality of international human rights is more
limited than that of moral human rights, each does possess a degree of
universality sufficient to render many forms of discrimination impermis-
sible. Therefore, I would argue that because the nature of moral human
rights is similar in essential respects to the nature of international human
rights, the former can be relevant to the justification and interpretation of
the latter.
6
Grounds of International Human Rights
There is a second and more serious challenge to my thesis that moral

human rights are relevant to the justification and interpretation of inter-
national human rights. Many jurists would object that even if moral
human rights are relevant to the moral justification of international
human rights, they cannot be relevant to either their existence or inter-
pretation in international law because the grounds of these two kinds of
rights are completely different. The grounds of moral human rights, as I
conceive of them, are morally relevant facts that exist independently of
our social practices or moral convictions; but the grounds of international
human rights are created by specific legal practices and are legally valid
only because these sources are accepted as authoritative by those who
apply them in the legal institutions of the international community.
In a national legal system like that of the United States, there are three
main classes of legal rights. The ultimate source of a constitutional right is
a written constitution. The primary source of a statutory right is an act of
a legislature. And the standard source of a common law right is a set of
judicial decisions by courts that accept the principle of stare decisis. But
there is no written constitution of international law, no global legislature,
and no international set of courts that accept the principle of stare decisis.
How, then, can international human rights be real legal rights?
Like any national legal system, the international legal system consists
of an interlocking set of lawmaking and law-applying institutions. The
primary institutions, some insist the only institutions, that make interna-
tional law are the several nation-states. The processes by which they
create legally valid rules or principles of international law are primarily by
consenting to a treaty or by engaging in a customary international practice
recognized as legally obligatory.
The international legal norms thus brought into existence are for the
most part formulated in written texts supplemented with unwritten law
including customary practices. These are the material sources of interna-
tional law. As Hugh Thirlway explains:
In relation to a particular rule which is alleged to be a rule of international law,

the material source is simply the placenormally a document of some kind
in which the terms of the rule are set out. This may be a treaty, a resolution of
85
the UN General Assembly, a proposal of the UN International Law Commis-

sion, a judicial decision, a restatement by a learned body, or even a statement
in a textbook.1
Material sources such as these define the content of any rule of interna-
tional law.
However, the legal validity of any such rule or principle is determined
by its formal sources. These are specified in Article 38 of the Statute of
the International Court of Justice:
(a) international conventions, whether general or particular, establishing
rules expressly recognized by the contesting States;
(b) international custom, as evidence of general practice accepted as
law;
(c) the general principles of law recognized by civilized nations;
(d) subject to the provisions of Article 59, judicial decisions and the
teachings of the most qualified publicists of the various nations, as
subsidiary means for the determination of rules of law.
Thus, any real international human right must have one or more material
sources to specify its content and the authority of its material sources
must be derived from the formal sources of international law. Therefore,
let us examine the credentials of the most plausible material sources of
human rights in international law.
1. THE CHARTER OF THE UNITED NATIONS
There can be no doubt that the Charter of the United Nations is valid
international law. It is a treaty to which almost all contemporary
nation-states are parties, and one of the primary formal sources of inter-
national law is treaty making. This makes it a promising material source
for international human rights. The most pertinent passages are found in
Articles 55 and 56:
With a view to the creation of conditions of stability and well-being which
are necessary for peaceful and friendly relations among nations based on
respect for the principle of equal rights and self-determination of peoples,
the United Nations shall promote . . . (c) universal respect for, and observ-
ance of, human rights and fundamental freedoms for all without discrimina-
tion as to race, sex, language, or religion.
[And]
All members pledge themselves to take joint and separate action in
co-operation with the Organization for the achievement of the purposes set
forth in Article 55.
Taken together these two authoritative texts seem to recognize the full
range of human rights in international law and to impose the obligations
to promote both respect for and observance of these human rights upon
all member states.
Grounds of International Human Rights 87
Although Justice Tanaka recognizes that there are difficulties in holding

that the Charter of the United Nations imposes any legal obligation with
regard to human rights, he suggests that one should not ignore the enor-
mous importance that it attaches to their realization. Therefore, he pre-
sents two arguments to show that the charter does create human rights in
international law. First,
Well, those who pledge themselves to take action in co-operation with the
United Nations in respect of the promotion of universal respect for, and
observance of, human rights and fundamental freedoms, cannot violate, with-
out contradiction, these rights and freedoms. How can one, on the one hand,
preach respect for human rights to others and, on the other hand, disclaim for
oneself the obligation to respect them? From the provisions of the Charter
referring to the human rights and fundamental freedoms it can be inferred
that the legal obligation to respect human rights and fundamental freedoms
is imposed on member states.2
Even if one grants that the charter imposes a legal obligation upon mem-
ber states to respect human rights, this may amount only to an obligation
to take future action to introduce them into international law and their
respective legal systems. But until the member states have done so, there
need not be any real international human rights.
Justice Tanakas second argument that the charter creates human rights
in international law appeals to their prior existence in natural law:
But there is little doubt of the existence of human rights and freedoms; if not,
respect for these is logically inconceivable; the Charter presupposes the exist-
ence of human rights and freedoms which should be respected; the existence
of such rights and freedoms is unthinkable without corresponding obligations
of persons concerned and a legal norm underlying them. Furthermore, there
is no doubt that these obligations are not only moral ones, and that they also
have a legal character by the very nature of the subject-matter.3
Although I agree that the charter presupposes the prior existence of

human rights and could even presuppose a natural law theory of the
moral law, this does not remove all doubt concerning their existence in
international law. Neither legal positivism nor my legal realism justifies
any inference from the existence of a moral right, even a fundamental
human right, to the existence of an analogous legal right.
Articles 55 and 56 and the other relevant passages in the charter nei-
ther identify any of the human rights to which they refer collectively nor
define the content of any human right specifically enough to establish the
existence of any applicable right in international law. Therefore, the char-
ter can at best be an incomplete source of human rights, a source of any
international human right only when taken together with one or more
additional legally valid texts. More generally, it is very probable that the
material source of any real human right in international law will be a
coherent set of legal texts.
2. CONVENTIONS SPONSORED BY THE UNITED NATIONS
In a variety of human rights conventions, the United Nations has attempted

to give legal reality to the human rights presupposed in its charter by
defining their content with some precision and specifying the legal obli-
gations they impose. The most important of these conventions are the
International Covenant on Civil and Political Rights and the International
Covenant on Economic, Social, and Cultural Rights. Each of these asserts
and defines a number of specific human rights and each is an international
treaty to which well over one hundred nation-states are parties. Because
international treaties are the least controversial source of international
law, presumably these along with other human rights conventions in force
are material sources of international human rights.
That the former document is a recognized source of human rights is
confirmed by four leading cases concerning the human rights to freedom
from torture and freedom from inhuman treatment conferred by Articles
7 and 10.4 In these four cases decided by the Human Rights Committee,
Juan Fernando Teran Jijon, George Osbourne, Errol Johnson, and Charles
Chitat Ng each alleged violations of their human rights to freedom from
torture or freedom from inhuman treatment. Significantly, none of the
defendant states (Ecuador, Jamaica, or Canada) either questioned the
legal validity of Articles 7 and 10 of the International Covenant on Civil
and Political Rights or denied the existence of the human rights at issue.
Instead, they all challenged the factual allegations of the claimants and
denied that the claimed human rights had in fact been violated by their
respective state actions.
That the latter document is a comparable material source of interna-
tional human rights is recognized in the general observations of the Lim-
burg Principles:
1. Economic, social and cultural rights are an integral part of
international human rights law. They are the subject of specific
treaty obligations in various international instruments, notably the
International Covenant on Economic, Social and Cultural Rights.
2. The International Covenant on Economic, Social and Cultural
Rights, together with the International Covenant on Civil and
Political Rights and the Optional Protocol, entered into force in
1976. The Covenants serve to elaborate the Universal Declaration of
Human Rights: these instruments constitute the International Bill of
Human Rights.5
The comparison with bills of rights in the constitutions of many
nation-states is implicit in the language chosen. If this is an apt analogy,
these covenants confer human rights in international law much as the
various national bills of rights confer constitutional rights in national legal
systems. Whether these human rights have a status in international law
comparable to the status of constitutional rights in national law will be
discussed in the next chapter.
The Limburg Principles, originally published as United Nations Docu-

ment E/CN.44/1987/17, Annex, were drafted by a conference of experts
on international law and, with the exception of a few recommendations,
report the current state of the relevant international law. What they
address at greatest length is the interpretive principles applicable to the
International Covenant on Economic, Social, and Cultural Rights. For the
most part, these concern the nature of the state obligations imposed by
economic, social, and cultural human rights. Until one can specify these,
one does not know what these human rights amount to in real law. This
suggests once more that any complete material source of a specific human
right will probably consist not in any single text but in a coherent set of
legally valid texts.
The supplementary documents most obviously relevant to the inter-
pretation of any of the human rights asserted in these two covenants are
other conventions sponsored by the United Nations. Some of these, such
as the Convention on the Prevention and Punishment of the Crime of
Genocide or the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, deal with violations of human
rights within some limited area of human life. Others specify the human
rights of special categories of persons, for example the Convention
Relating to the Status of Refugees and the Convention on the Political
Rights of Women. These and similar conventions are treaties to which the
majority of nation-states are parties and, consequently, recognized sources
of international human rights law.
3. GENERAL ASSEMBLY RESOLUTIONS
The United Nations began the process of identifying the human rights
implicit in its charter in the Universal Declaration of Human Rights.
Whether this resolution is a material source of international human rights
remains controversial. There is, however, general agreement that it cannot
be an independent source that in and of itself establishes the legal reality
of any of the human rights it declares. The United Nations Charter autho-
rizes the General Assembly only to initiate studies and make recommen-
dations for the purposes of encouraging the progressive development of
international law and its codification and assisting in the realization of
human rights and fundamental freedoms for all without distinction as to
race, sex, language, or religion.6 This clearly falls short of granting any
legislative power to the General Assembly. Hence, its resolutions could be
material sources of international human rights only in combination with
one or more of the other recognized sources of international law.
One way to explain how the Universal Declaration is a material source
of international human rights is to assert that it is an authoritative inter-
pretation of the human rights provisions in international treaties. This line
of reasoning is suggested, for example, by Justice Tanaka in his dissenting
opinion in the South West Africa Cases (Second Phase): Furthermore,

the Universal Declaration of Human Rights adopted by the General
Assembly in 1948, although not binding in itself, constitutes evidence of
the interpretation and application of the relevant Charter Provisions.7 If
this reasoning is cogent, the Universal Declaration taken together with
the charter is a material source of international human rights.
It is probably true that the Universal Declaration is intended to iden-
tify and describe in general terms the human rights to which the charter
refers only collectively. Both documents assume that human rights have
some sort of prior and independent existence as moral human rights. One
of the ends announced in the Preamble of the latter document is to reaf-
firm faith in fundamental human rights, and the Preamble of the former
asserts that disregard and contempt for human rights have resulted in
barbarous acts. However, the General Assembly did not intend the Uni-
versal Declaration to constitute a legally binding text. It was meant to
provide guidance in formulating one or more international treaties that
would define human rights with sufficient precision to render them appli-
cable in international law and to encourage nation-states to incorporate
them into their municipal legal systems. Arguably, the Universal Declara-
tion could have subsequently become a legally authoritative interpreta-
tion of the human rights provisions of the charter had it been recognized
as such by international and national courts, United Nations agencies, and
customary state practices. Because I can find no evidence that this has
taken place with any regularity, I do not find this version of the reasoning
persuasive.
However, I do believe that the Universal Declaration is probably an
authoritative, although not exclusive, evidence of the proper interpreta-
tion of most of the international human rights specified in the Interna-
tional Covenant on Economic, Social, and Cultural Rights and the
International Covenant on Civil and Political Rights because both treaties
were intended to redefine the human rights previously proclaimed in the
Universal Declaration specifically enough to be legally binding. Similarly,
some other General Assembly resolutions are probably authoritative
sources for the interpretation of human rights in these and other human
rights treaties.
Another way to explain how the Universal Declaration is a source of
international human rights is to assert that it has become evidence of inter-
national human rights in subsequent customary international law. There is
no doubt that this document has greatly influenced the practices of
nation-states in the decades since it was promulgated. Hence, one can argue
that it is today credible evidence of international human rights customs.
Justice Tanaka reasons in this manner to justify his recognition of General
Assembly resolutions as one of the material sources of international law:
Of course, we cannot admit that individual resolutions, declarations, judgments,

decisions, etc., have binding force upon the members of the organization. What
is required for customary international law is the repetition of the same prac-
tice; accordingly, in this case resolutions, declarations, etc., on the same matter
in the same, or diverse, organizations must take place repeatedly. . . . In short,
the accumulation of authoritative pronouncements such as resolutions, decla-
rations, decisions, etc., concerning the interpretation of the Charter by the
competent organs of the international community can be characterized as evi-
dence of the international custom referred to in Article 38, paragraph 1 (b).8
This strikes me as a cogent argument for recognizing the Universal Dec-

laration as a secondary material source of international human rights.
Although it is not an independent source of international human rights
law, it is evidence for the proper interpretation of human rights conferred
by customary international law. Its weight as evidence will depend upon
its coherence with other evidence of customary international law. And the
same argument will apply to other human rights resolutions of the Gen-
eral Assembly. Thus, Circuit Judge Kaufman, writing the opinion of the
Second Circuit United States Court of Appeals in the case of Filartiga v.
Pena-Irala, recognized the Universal Declaration as evidence of the inter-
national human right not to be tortured in conjunction with the Declara-
tion on the Protection of All Persons from Being Subjected to Torture and
other evidence.9 Therefore, as relevant to the interpretation of the few
human rights in subsequent international customary law, General As-
sembly resolutions are one material source of international human rights.
4. REPORTS OF HUMAN RIGHTS COMMITTEES
The United Nations has created a number of committees responsible for

improving, in various ways, the respect for international human rights.
Chapter 10 of the United Nations Charter authorizes the creation of the
Economic and Social Council with several functions including making rec-
ommendations for the purpose of promoting respect for, and observance
of, human rights and fundamental freedoms for all. This body has in turn
created the Commission on Human Rights and subsequently the Com-
mittee on Economic, Social and Cultural Rights. Finally, the Human Rights
Committee was established pursuant to the International Covenant on
Civil and Political Rights. All of these committees submit general reports
concerning the observance, or lack of it, of human rights to the General
Assembly. Some of them also report concerning alleged violations of
human rights in particular cases. They often find it necessary to interpret
the precise content of this or that human right in order to carry out these
responsibilities. Accordingly, their reports often serve as material sources
of human rights, texts that define the content of various human rights.
They are not, of course, independent sources of human rights. Reports
of these sorts are not listed among the formal sources of international law
in Article 38 of the Statute of the International Court of Justice. They
derive their legal authority indirectly from the United Nations Charter
and, for the Human Rights Committee, the International Covenant on

Civil and Political Rights. These reports also gain enhanced authority if
they are approved by the General Assembly. Because they play only a
subsidiary role as material sources of human rights, they show once more
how it is that any real international human rights is grounded upon a
coherent set of material sources.
5. EVIDENCES OF CUSTOMARY INTERNATIONAL LAW
One of the primary formal sources of international law is general practice

accepted as law. This consists of customary state practice, a consistent
pattern of state acts engaged in by most nation-states and undertaken
with the belief that they are required by some rule of international law. As
the International Court of Justice has explained:
Not only must the acts concerned amount to a settled practice, but they must
also be such, or be carried out in such a way, as to be evidence of a belief that
this practice is rendered obligatory by the existence of a rule of law requiring
it. The need for such a belief, i.e., the existence of a subjective element, is
implicit in the very notion of the opinio juris sive necessitatis.10
Accordingly, evidences of customary human rights practices are material

sources of international human rights because they are places, normally
documents of some kind, in which the terms of the human rights rules of
customary international law are set out.11
The American Law Institute Restatement of the Law Third contains a
useful description of the relevant state acts:
Practice accepted as building customary human rights law includes: virtually
universal adherence to the United Nations Charter and its human rights provi-
sions, and virtually universal and frequently reiterated acceptance of the Uni-
versal Declaration of Human rights even if only in principle, virtually universal
participation of states in the preparation and adoption of international agree-
ments recognizing human rights principles generally, or particular rights; the
adoption of human rights principles by states in regional organizations in
Europe, Latin America, and Africa . . . ; general support by states for United
Nations resolutions declaring, recognizing, invoking, and applying international
human rights principles in international law; action by states to conform their
national law or practice to standards or principles declared by international
bodies, and the incorporation of human rights provisions, directly or by refer-
ence, in national constitutions and laws; invocation of human rights principles
in national policy, in diplomatic practice, in international organization activities
and actions; and other diplomatic communications or action by states reflecting
the view that certain practices violate international human rights law, including
condemnation and other adverse reactions to violations by other states.12
Although each of these consists of some sort of act or activity, most of

them include verbal components, written or oral, that would constitute a
legally relevant text. Only many of these texts together could spell out
the definitions of specific international human rights.
J. Shand Watson is highly critical of the description of state practice in
the Restatement: The missing element in this list is, of course, state prac-
tice. No reference is made to what states actually do, whether they com-
ply with the listed written material. In plain terms, the list of examples of
state practice simply does not include the practice of states.13 Taken liter-
ally, this criticism is false. The passage to which Watson refers lists adher-
ence to the United Nations Charter, acceptance of the Universal
Declaration, participation in the preparation and adoption of interna-
tional agreements, condemnation and other adverse reactions, and so on.
All of these are kinds of state acts that, if widespread and consistent,
would constitute state practice.
However, Watson does present a serious challenge to anyone who
would find human rights in customary international law. What is the
scope of the relevant state practice? Watson seems to assume that it can
consist only in acts of complying with human rights norms or, on the con-
trary, violating these norms. But I would argue that it should include any
and all acts of recognizing or applying human rights norms, for example
ratifying a human rights treaty or condemning a violation of such a norm.
Hence, I would accept the passage that Watson rejects as at least in prin-
ciple correct. Nevertheless, Watson might insist that he has identified the
core of relevant state practice and that actions of conforming to or vio-
lating human rights norms should carry more weight than peripheral state
acts concerning human rights. This may well be true. But an alleged viola-
tion of some human right norm should be discounted in cases where the
state attempts to explain why its act is, in spite of appearances, legally
justified.
Jack L. Goldsmith and Eric A. Posner present a much more radical
challenge to the customary international law of human rights. They deny
its very existence. In addition to human rights treaties, there is said to be
a large body of human rights customary international law. We say said to
be because the customary international law of human rights does not
reflect a general and consistent state practice followed from a sense of
legal obligation.14 They assume that any genuine customary international
law of human rights must consist of customary state practice from, moti-
vated by, a sense of legal obligation:
Customary international law is typically defined as the general and consistent
practices of states that they follow from a sense of legal obligation (Restatement
1987, 102[2]). This definition contains two elements: there must be a wide-
spread and uniform practice of states, and states much engage in the practice
out of a sense of legal obligation. This second requirement, often referred to as
opinio juris, is the central concept of customary international law.15
It is true that the Restatement does assert that Customary international

law results from a general and consistent practice of states followed by
them from a sense of legal obligation.16 But this is not the way in which
international customary law is generally defined. Ian Brownlie does not
define it in this way, nor do either J. L Brierly or Manley O. Hudson, to
whom he refers in his classic description of customary international law.17
More to the point, the most authoritative sources for the definition of
customary international law do not require that customary state practices
be motivated by the sense of legal obligation.
Article 38 of the Statute of the International Court is recognized by
almost all jurists as an authoritative specification of the sources of inter-
national law. The relevant provision reads in English: international cus-
tom, as evidence of a general practice accepted as law and in French la
coutume internationale comme prevue dune pratique gnrale accepte
comme tant le droit. What is necessary for some state act to belong to a
general practice that constitutes international custom is that the state
accept that practice as being required by law, not that its act be motivated
by any sense of legal obligation. It might well act in a manner that it
accepts as being required by international law simply to avoid adverse
reactions contrary to its interests.
The most authoritative description of the necessary conditions for the
existence of customary international law is the decision of the Interna-
tional Court of Justice in the North Sea Continental Shelf Cases. The cru-
cial passage reads:
Not only must the acts concerned amount to a settled practice, but they must
also be such, or be carried out in such a way, as to be evidence of a belief that
this practice is rendered obligatory by the existence of a rule requiring it. The
need for such a belief, i.e., the evidence of a subjective element, is implicit in
the very notion of the opinio juris sive necessitates. The States concerned must
therefore feel that they are conforming to what amounts to a legal obligation.18
Clearly, the essential condition for opinio juris is merely the belief (la con-
viction) that the state action is required by a rule of international law, not
that the state be motivated by that rule. This is precisely what one would
expect since the standard translation of opinio is belief. Therefore, the
argument of Goldsmith and Posner that widespread general state prac-
tices arise simply as a result of states maximizing their interests without
being motivated by any sense of legal obligation does not discredit the
view that one source of international human rights is international cus-
tomary law.
However, it does present a problem for anyone attempting to ground
any international human right on international custom. What evidence
could prove that states engage in some practice with, not necessarily from,
the belief that it is required by law? As the International Court of Justice
insists, it cannot be merely that they consistently conform to this practice.
There must be independent evidence that they also believe that this prac-
tice is legally required. This is why the issue of the scope of state practice
is crucial. The evidence must include, for example, diplomatic protests
when some other state fails or refuses to follow the practice or attempts
by a state itself to justify some apparent deviation from some human
rights practice that it recognizes as legally binding. And this sort of evi-
dence must be available on many occasions for it to establish opinio juris
for any state practice. This is why the Restatement lists so few international
human rights as grounded on international customary law.
6. JUDICIAL DECISIONS
Article 38 of the Statute of the International Court of Justice lists judicial

decisions and the teaching of the most highly qualified publicists as
subsidiary means for the determination of rules of law. However, the
court may avail itself of this means only subject to the provisions of
Article 59 specifying that The decision of the Court has no binding
force except between the parties and in respect of that particular case.
Hugh Thirlway describes the legal import of these provisions very clearly:
The judge, or the author of the textbook, will not assert that the rule stated is
law because he has stated it; he will state it because he considers it derived from
one of the three principal sources indicated in paragraphs (a) to (c) of Article
38. The first three sources of Article 38 are formal sources; those of paragraph
(d) are material rather than formal sources, but material sources having a spe-
cial degree of authority.19
Because judicial decisions now play a more important role in interna-

tional law than the teachings of publicists, I will limit my consideration to
them.
If judicial decisions are not binding precedents in international law,
how could they serve as material sources of international human rights?
There are two different ways in which judicial decisions do function as
material sources of international law. First, a judicial decision can refor-
mulate a rule of international law contained in a coherent set of texts that
use a variety of linguistic expressions. For example:
The cardinal principles contained in the texts constituting the fabric of human-
itarian law are the following. The first is aimed at the protection of the civilian
population and civilian objects and establishes the distinction between com-
batants and non-combatants; States must never make civilians the object of
attack and must consequently never use weapons that are incapable of distin-
guishing between civilian and military targets. According to the second princi-
ple, it is prohibited to cause unnecessary suffering to combatants: it is
accordingly prohibited to use weapons causing them such harm or uselessly
aggravating their suffering.20
Similarly, a judicial decision could reformulate or restate a rule of inter-

national law contained in a variety of texts of human rights law.
Second, a judicial decision sometimes derives a rule of international
law implied by, but not stated in, a prior recognized source of law. Thus:
It is undoubtedly because a great many rules of humanitarian law applicable to

armed conflict are so fundamental to the respect of the human person and
elementary considerations of humanity as the Court put it in its Judgment of
9 April 1949 in the Corfu Channel case . . . , that the Hague and Geneva Con-
ventions have enjoyed a broad accession. Further these fundamental rules are
to be observed by all States whether or not they have ratified the conventions
that contain them, because they constitute intransgressible principles of inter-
national customary law.21
In this passage, the court derives the rule that fundamental rules of
humanitarian law are to be observed by all states, not only those that have
ratified the relevant conventions, from their previously recognized
grounding on the elementary considerations of humanity implicit in
respect of the human person. The same sort of judicial reasoning is clearly
applicable to human rights law. Indeed, some jurists would include
humanitarian law as one part of the international law of human rights.
The derived principle just cited reflects two important recent develop-
ments in international law. One is the recognition that some international
principles are so fundamental that they are peremptory (intransgressible)
norms of general international law, principles jus cogens. The other is that
some fundamental principles of international law impose obligations erga
omnes, obligations to the international community as a whole and binding
upon all nation-states. Each of these developments calls for examination.
When it was drafting the articles on the law of treaties, the Interna-
tional Law Commission reported that
The emergence of rules having the character of jus cogens is comparatively
recent, while international law is in process of rapid development. The Com-
mission considered the right course to be to provide in general terms that a
treaty is void if it conflicts with a rule of jus cogens and to leave the full content
of this rule to be worked out in State practice and in the jurisprudence of inter-
national tribunals.22
Among the examples suggested during the drafting process were treaties
violating human rights.23
Thus the most authoritative source for the doctrine of jus cogens is
Article 53 of the Vienna Convention on the Law of Treaties, which reads:
Treaties conflicting with a peremptory norm of general international

law (jus cogens)
A treaty is void if, at the time of its conclusion, it conflicts with a peremptory
norm of general international law. For the purposes of the present Conven-
tion, a peremptory norm of general international law is a norm accepted and
recognized by the international community of States as a whole as a norm
from which no derogation is permitted and which can be modified only by a
subsequent norm of general international law of the same character.
A. J. J. de Hoogh explains that To state that a norm is peremptory means

that it is binding on all States alike, whether they are opposed to it or not.24
The proper interpretation of this article has been and remains contro-
versial for reasons suggested by the International Law Commission:
The formulation of the article is not free from difficulty, since there is no sim-
ple criterion by which to identify a general rule of international law as having
the character of jus cogens. . . . It is not the form of a general rule of international
law but the particular nature of the subject-matter with which it deals that
may, in the opinion of the Commission, give it the character of jus cogens.25
What kind of subject matter could give a rule of international law the
character of jus cogens? Could one or more human rights do so?
Perhaps an examination of the other relevant development in interna-
tional law will provide the answers to these questions. The most authori-
tative source of obligations erga omnes is the Barcelona Traction case. The
relevant paragraphs read:
33. When a State admits into its territory foreign investments or foreign
nationals, whether natural or juristic persons, it is bound to extend to them
the protection of the law and assumes obligations concerning the treatment
to be afforded them. These obligations, however, are neither absolute nor
unqualified. In particular, an essential distinction should be drawn between
the obligations of a State towards the international community as a whole,
and those arising vis- -vis another State in the field of diplomatic protec-
tion. By their very nature the former are the concern of all States. In view of
the importance of the rights involved, all States can be held to have a legal
interest in their protection; they are obligations erga omnes.
34. Such obligations derive, for example, in contemporary international
law, from the outlawing of acts of aggression, and of genocide, as also from
the principles and rules concerning the basic rights of the human person,
including protection from slavery and racial discrimination. Some of the
corresponding rights of protection have entered into the body of general
international law (Reservations to the Convention on the Prevention and
Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951,
p. 23); others are conferred by international instruments of a universal
or quasi-universal character.26
These are very rich and complex paragraphs and correspondingly difficult
to interpret with any confidence.
One can find some guidance concerning the nature of obligations erga
omnes in the comments on these paragraphs by the International Law
Commission:
In the Courts opinion, there are in fact a number, albeit a small one,
of international obligations which, by reason of the importance of their
subject-matter for the international community as a whole, areunlike the
othersobligations in whose fulfillment all States have a legal interest. It
follows, according to the Court, that the responsibilities engaged by the
breach of these obligations is engaged not only in regard to the State which
was the direct victim of the breach; it is also engaged in regard to all the
other members of the international community, so that, in the event of a
breach of these obligations, every State must be considered justified in
invokingprobably through judicial channelsthe responsibility of the

State committing the internationally wrongful act.27
The commission here confirms the fact that obligations erga omnes are, as
the Latin expression implies, obligations owed to all members of the in-
ternational community and explains that the reason they are obligations
to all states is their importance for the international community.
However, they are not obligations in contemporary international law
simply because of their importance for the international community.
What makes them legal obligations is some established source of interna-
tional law such as the international custom outlawing aggression or the
Slavery Convention of 1926. But what makes them erga omnes, what
qualifies them as obligations against all states, is their importance for the
international community as a whole.
Among the relevant legal sources are principles and rules concerning
the basic rights of the human person. There has been much speculation
about the meaning of the words the basic rights of the human person.
Does the court mean to distinguish between two classes of human rights,
some of which are more basic or fundamental than others? This seems
inconsistent with the well-established use of the expression fundamental
human rights applied to all sets of human rights. Are not all human rights
grounded on their fundamental importance to the human beings who
possess them?
Fortunately, the court gives us an indication of its meaning by its exam-
ples of the basic rights of the human person, including protection from
slavery and racial discrimination. Why does it select these two examples?
It is not because they are more valuable than other human rights to the
individuals who possess them but because of the international impact of
their violation. Both the human right not to be enslaved that has been and
still is implicated in the slave trade and the human right not to be sub-
jected to racial discrimination implicated in colonialism severely damage
friendly relations among nation-states and sometimes even lead to war.
Thus, the court does not intend to assert that some human rights are more
fundamental than others as human rights, but to point out that some are
of greater importance to international relations than others. And it is this
kind of importance than makes them grounds of obligations erga omnes.
Presumably the moral grounds of human rights that are basic in this
sense are relevant to their importance for the international community as
a whole. This is strongly suggested by the International Court of Justice in
the Reservations to the Convention on the Prevention and Punishment of
the Crime of Genocide case:
The objects of such a convention must also be considered. The Convention was
manifestly adopted for a purely humanitarian and civilizing purpose. It is
indeed difficult to imagine a convention that might have this dual character to
a greater degree, since its object on the one hand is to safeguard the very exist-
ence of certain human groups and on the other to confirm and endorse the
most elementary principles of morality. In such a convention the contracting

States do not have any interests of their own; they merely have, one and all, a
common interest, namely, the accomplishment of those high purposes which
are the raison dtre of the convention.28
Since a primary purpose of most legal rules or principles concerning inter-

national human rights will be to protect the presupposed moral human
rights, these moral grounds would be relevant to the interpretation and
importance of these rules.
Although the contribution of judicial decisions to the international law
of human rights on a global level has until now been limited by the small
number of human rights cases decided by the International Court of Jus-
tice, its potential is considerably greater because of the variety of judicial
decisions that could constitute material sources of international human
rights. Decisions of the International Court of Justice would probably be
the most authoritative, but decisions of the new International Criminal
Court and of several international tribunals would also be material sources
of international human rights. The possibility of a much greater contribu-
tion to the international law of human rights is shown by the decisions of
the Inter-American Court of Human rights and especially the European
Court of Human Rights.
7. CONCLUSION
Although international law has no written constitution, legislature, or

common law, there are authoritative sources of international law suffi-
cient to establish human rights. The primary material sources of interna-
tional human rights are human rights treaties, international human rights
customs, and perhaps general principles of law recognized by civilized
nations. Judicial decisions are a subsidiary means for determining the rules
of international law. Because these are recognized as formal sources of law
in the Statute of the International Court of Justice, they have indepen-
dent legal authority. Therefore, they can and often do establish the legal
validity of the international human rights they recognize.
Of these sources, by far the most important are treaties and interna-
tional customs, each of which presupposes a fundamental moral principle.
Article 26 of the Vienna Convention on the Law of Treaties of 1969
quotes the traditional principle pacta sunt servanda, asserting that
agreements must be performed. This is the moral principle that anyone
who makes a promise or enters into an agreement has a moral obligation
to act as she has promised. Most jurists believe that this moral principle
had become a rule of international customary law long before Article 26
of the Vienna Convention asserted Every treaty in force is binding upon
the parties to it and must be performed by them in good faith. Similarly,
customary international law presupposes the ancient moral principle con-
suetudo est servanda, asserting that custom is to be observed. Many jurists
believe that this has become the fundamental principle of international

customary law requiring nation-states to adhere to or abide by interna-
tional customs. Here are two more moral dimensions of international
human rights.
Although these primary material sources of human rights are sufficient
to establish the existence of many human rights, they are seldom suffi-
cient to define their content with enough precision to enable these sources
to be applied to particular cases by international legal institutions. Here
supplementary material sources of human rights, especially resolutions of
the General Assembly or decisions of United Nations human rights com-
mittees, are required in order to fully ground an international human
right. These qualify as valid sources of human rights because they derive
their authority not directly from the formal sources of international law
but from their relevance to the interpretation of the primary material
sources of international human rights. Accordingly, any international
human right is normally grounded upon a coherent set of material sources,
not any single source no matter how legally authoritative it may be.
Some, but not all, of the material sources of international human rights
presuppose the existence of analogous moral human rights. This is cer-
tainly true of the International Covenant on Civil and Political Rights and
the International Covenant on Economic, Social, and Cultural Rights and
is probably true of several more specific treaties such as the International
Convention on the Elimination of All Forms of Racial Discrimination of
1966 and the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment of 1984. Thus moral human rights
are relevant to the interpretation of the legal human rights they recognize.
And probably the belief in moral human rights contributes to the opinion
juris essential to those international customs that establish a limited
number of human rights in international law. Hence, moral human rights
are also relevant to the interpretation of some of these international
human rights. Finally, the judicial decisions in the Barcelona Traction case
and the Reservations to the Convention on Genocide case strongly sug-
gest that moral human rights are relevant to the basic international human
rights that make the obligations they impose obligations erga omnes.
Therefore, the fact that the grounds of moral human rights are essentially
different from the grounds of international human rights does not imply
that moral human rights are legally irrelevant to international human
rights.
7
International Rights versus

National Sovereignty
The Universal Declaration of Human Rights was intended to identify

those moral human rights that ought to be recognized and implemented
in every national legal system and in international law. It proclaimed as a
common standard of achievement for all peoples and all nations . . . their
universal and effective recognition and observance. Its Preamble recog-
nizes a fundamental paradox in the realities of international politics:
nation-states are both the most serious violators of moral human rights
and the most effective protectors of them. Because history has shown that
disregard and contempt for human rights have resulted in barbarous acts
that have outraged the conscience of mankind, the member states of the
United Nations have pledged themselves to achieve, in cooperation with
the United Nations, the promotion of universal respect for and obser-
vance of human rights and fundamental freedoms.
This pledge was to be carried out primarily by bills of rights in national
constitutions and in national legislation. But it would be unrealistic to
imagine that this ideal of the universal and effective recognition and
observance of human rights would be achieved merely by the indepen-
dent actions of every nation-state. Hence, the Universal Declaration was
intended also to be a standard for an international bill of rights, one or
more treaties that would establish human rights in international law. In
due course, these consisted primarily of the International Covenant on
Civil and Political Rights and the International Covenant on Economic,
Social, and Economic Rights. The former imposed obligations upon each
state party to respect and ensure to all individuals within its territory and
subject to its jurisdiction the rights recognized in the present Covenant,
and the latter upon each state party the obligation to take steps . . . with
a view to achieving progressively the full realization of the rights recog-
nized in the present Covenant. But it would be nave to believe that
nation-states would universally and effectively fulfill these obligations
merely because they are recognized in two conventions. These human
rights need to be implemented as well as recognized in international law.
At this point, the United Nations faces a dilemma. One of its primary pur-
poses is to promote universal respect for human rights. But the fundamental
101
principles of traditional international law seem at first glance to rule out

effective implementation of human rights. The law of nations is predom-
inantly that, the law governing the relations between nation-states. Its
most fundamental principle is the sovereign equality of all states. Presum-
ably, no sovereign state can be legally bound without its own consent. And
even when bound by international law, its sovereign independence implies
that no other state or alliance of states has any right to force it to act or
refrain from acting as it thinks best. Hence, another principle of interna-
tional law is the nonintervention in the internal or external affairs of other
states.1 But this seems to leave each nation-state entirely free to refuse to
fulfill its obligations under the international law of human rights. How
ought the international community to resolve this dilemma, this incom-
patibility of its commitment to international human rights with its tradi-
tional principles of national sovereignty?
1. UNITED NATIONS CHARTER
Any contemporary resolution of this dilemma must take account of the

Charter of the United Nations. On first reading, this document firmly
entrenches this dilemma. Article 1.3 lists one of the basic purposes of the
United Nations as: To achieve international co-operation in solving inter-
national problems of an economic, social, cultural or humanitarian char-
acter, and in promoting and encouraging respect for human rights and
fundamental freedoms for all without distinction as to race, sex, language
or religion. This commitment to international human rights is reiterated
or reflected in Articles 13(b), 55(c), 62(2), 68, and 76(c). On the other
hand, Article 2 requires that
The Organization and its Members, in pursuit of the purposes stated in
Article 1, shall act in accordance with the following principles:
1. The Organization is based on the principle of the sovereign equality
of all its Members. . . .
7. Nothing contained in the present Charter shall authorize the United
Nations to intervene in matters which are essentially within the domestic
jurisdiction of any State or shall require the Members to submit such mat-
ters to settlement under the present Charter.
These principles of national sovereignty would seem to prohibit the United
Nations from pursuing its purpose of promoting respect for moral human
rights by implementing them firmly as human rights in international law.
But the real meaning and legal implications of these principles today
may not be what they seem to be. Each principle must be interpreted in
the light of other provisions in the charter, subsequent elucidations by
resolutions of the General Assembly, the accepted practices of the United
Nations, and more recent developments in international law. Let us begin
with an examination of these principles in their textual context.
International Rights versus National Sovereignty 103
Clearly Article 2.1 asserts the sovereignty of each member state. This is
merely an application of the traditional doctrine that by its very nature
international law governs the relations between sovereign states. But what
is meant by sovereignty? According to a widely shared view, sovereignty
has two complementary and mutually dependent dimensions: within a
State, a sovereign power makes law with the assertion that this law is
supreme and ultimate, i.e., that its validity does not depend on the will of
any other, or higher, authority. Externally, a sovereign power obeys no
other authority.2 This external dimension of sovereignty accepted in in-
ternational law presumably implies the general principle of noninterven-
tion by one state in the affairs of any other state.
Why, then, does the charter explicitly assert in Article 2.7 what might
seem to be a redundant principle of nonintervention? It is because a sov-
ereign state can render intervention by another state permissible, as for
example when it ratifies a treaty permitting one country to station troops
within its territory and even to subject these troops to the law of their
home country rather than that of the nation-state where they are sta-
tioned. Hence, the principle of nonintervention by the United Nations in
the domestic affairs of any state is added to make it clear that this treaty
does not create any broad exception to the general principle of noninter-
vention. It remains possible, however, that other provisions of the charter
permit some limited forms of intervention under special circumstances.
In fact, Article 2.7 itself contains one clear exception to the duty of the
United Nations not to intervene in the affairs of states. It includes in its
principle of nonintervention the qualification, but this principle shall not
prejudice the application of enforcement measures under Chapter VII.
The provisions of Chapter 7 most relevant to the effective promotion
of human rights are as follows:
Article 39. The Security Council shall determine the existence of any threat
to the peace, breach of the peace, or act of aggression and shall make recom-
mendations, or decide what measures shall be taken in accordance with Arti-
cles 41 and 42, to maintain or restore international peace and security. . . .
Article 41. The Security Council may decide what measures not involv-
ing the use of armed force are to be employed to give effect to its decision,
and it may call upon the Members of the United Nations to apply such
measures. These may include complete or partial interruption of economic
relations and of rail, sea, air, postal, telegraphic, radio, and other means of
communication, and the severance of diplomatic relations.
Article 42. Should the Security Council consider that measures provided
for in Article 41 would be inadequate or have proved to be inadequate, it
may take such action by air, sea, or land forces as may be necessary to main-
tain or restore international peace and security. Such action may include
demonstrations, blockade, and other operations by air, sea, or land forces of
Members of the United Nations.
If, as seems entirely possible, the Security Council should determine
under the power conferred upon it by Article 39 that some very serious
violation of human rights by a member state constitutes a threat to the

peace, it would be empowered by Articles 41 and 42 to protect the human
rights of those subject to the jurisdiction of this member state by any of a
wide variety of actions. This limited authority to intervene in the affairs of
a state need not be considered a violation of its sovereignty because each
member state has consented to these sorts of intervention by ratifying the
charter, an act of exercising its sovereignty.
How might the Security Council justify intervening in the affairs of a
nonmember state to protect the human rights of individuals subject to its
jurisdiction by a decision that this is necessary to prevent a breach of the
peace? It might claim that since the Peace of Westphalia and especially
after the creation of the League of Nations there has gradually developed
an international custom permitting international organizations instituted
for that purpose to intervene to preserve the peace. Or it might claim that
the right of a state or group of states to defend themselves is established
in international law and that this includes the right to defend themselves
against any threat to their security implicit in a threat to the peace. On
either ground, this sort of intervention by the Security Council would be
legally permissible. Alternatively, it might argue that the two world wars
of the twentieth century have shown that any breach of the peace
threatens the security of the international community. Because security is
necessary for the welfare, even the continued existence, of every sovereign
state, the Security Council is justified in intervening to halt or prevent any
violation of human rights that threatens the peace. But this would appear
to be a moral rather than a legal justification of this sort of intervention.
In any event, the problem of extending a rule or principle of international
law to any sovereign state that has not consented to it is a continuing
problem that will reappear later in this chapter.
Article 2.7 prohibits the intervention by the United Nations in mat-
ters which are essentially within the domestic jurisdiction of any State.
One could argue that other principles of the charter remove the respect
for international human rights from the domestic jurisdiction of the
member states. Consider two of the principles asserted in Article 2:
2. All Members, in order to ensure to all of them the rights and benefits
resulting from membership, shall fulfill in good faith the obligations
assumed by them in accordance with the present Charter.
5. All Members shall give the United Nations every assistance in any
action it takes in accordance with the present Charter, and shall refrain from
giving assistance to any State against which the United Nations is taking
preventive enforcement action.
Hence, when the United Nations has taken action to promote the respect
for human rights by the member states, each member state will have an
obligation under international treaty law to assist in these actions and
certainly to refrain from resisting them. And presumably the duty to ful-
fill this obligation is a matter of international law, not of the domestic
jurisdiction of the member state. It would seem, then, that Article 2.7 of
the charter would be inapplicable to actions taken by the United Nations
to implement human rights.
Moreover, there are several provisions of the charter that explicitly
authorize the United Nations to take action to promote the respect for
human rights. Article 10 authorizes the General Assembly to discuss any
questions or matters within the scope of the present Charter. And Article
13 requires it to initiate studies and make recommendations for the pur-
pose of . . . assisting in the realization of human rights and fundamental
freedoms. Article 62.2 authorizes the Economic and Social Council to
make recommendations for the purpose of promoting respect for, and
observance of, human rights and freedoms for all. Article 62.3 authorizes
it to prepare draft conventions for submission to the General Assembly,
and by implication authorizes the General Assembly to act on these draft
conventions. Finally, Article 68 requires the Economic and Social Council
to set up commissions in economic and social fields and for the promo-
tion of human rights. Presumably, any actions the United Nations might
take pursuant to these provisions would be legally permissible.
However, Article 2.7 requires that in carrying out the purposes of the
United Nations, it must act in accordance with the principle of noninter-
vention. Would making recommendations for promoting respect for
human rights or other actions for the promotion of human rights consti-
tute intervention? Fernando R. Tesn suggests that it would.
As a preliminary matter, it is necessary to distinguish between three different
meanings of intervention, according to the degree of coercion utilized in the
attempts to influence other states. The first is the sense in which the word is
used in article 2(7). In this sense, intervention means simply discussion, exam-
ination, and recommendatory action: this I will call soft intervention. The second
meaning of the word intervention refers to the adoption of measures that
(unlike soft intervention) are coercive but do not involve the use of force, such
as economic and other kinds of sanctions: this I will refer to as hard intervention.
And finally, the word intervention is often used to refer to acts involving the
use of force (as in humanitarian intervention): this I call forcible intervention.3
It is debatable, however, that what Tesn calls soft intervention is really
prohibited by Article 2.7. Therefore, one should consider elucidations by
the General Assembly of this and other principles asserted in the Charter
of the United Nations.
2. GENERAL ASSEMBLY RESOLUTIONS
There are two resolutions of the General Assembly of special relevance to

the dilemma posed by the way in which the principles of state sover-
eignty and nonintervention seem to prohibit the United Nations from
pursuing its purpose of promoting respect for human rights. These are the
Declaration on the Inadmissibility of Intervention in the Domestic Affairs

of States and Protection of Their Independence and Sovereignty, adopted
on 21 December 1965, and the Declaration on Principles of International
Law concerning Friendly Relations and Co-operation among States in
Accordance with the Charter of the United Nations, adopted on 24
October 1970.
Precisely how is the Declaration on the Inadmissibility of Intervention
relevant to the principle of nonintervention asserted in the Charter of the
United Nations? It asserts that no state has the right to intervene, while
Article 2.7 asserts only that nothing in the charter authorizes the United
Nations to intervene. Thus the declaration asserts the general principle of
nonintervention established in customary international law, while Article
2.7 asserts only that the charter does not create an exception to this prin-
ciple in international treaty law. That is, the charter recognizes that the
general principle of nonintervention applies to the United Nations.4
The declaration asserts a very broad principle of nonintervention: No
State has the right to intervene, directly or indirectly, for any reason what-
soever, in the internal or external affairs of any other State. But what
constitutes intervention? It mentions first armed intervention, followed
by the use of economic, political or any other type of measures to coerce
another State. This suggests that prohibited intervention consists of coer-
cive interference in the affairs of another state. If this is so, then what
Tesn calls soft intervention might not be impermissible under customary
international law or Article 2.7 of the charter. Although he believes that
it is softly coercive, others could challenge the notion of soft coercion and
argue that it is not really coercive at all.
What is the scope of impermissible intervention? The general principle
asserted in the declaration prohibits intervention in the internal or exter-
nal affairs of any other State. Article 2.7 of the charter prohibits interfer-
ence in matters which are essentially within the domestic jurisdiction of
any State. I doubt that this different terminology indicates any significant
difference in the scope of these two principles. Recall that the text under
consideration is entitled Declaration on the Inadmissibility of Interven-
tion in the Domestic Affairs of States and Protection of Their Indepen-
dence and Sovereignty. This implies that the document equates the
domestic affairs of a state with the internal and external affairs of a state.
It also suggests that what defines the scope of the protected affairs is that
they are included within the independent sovereignty of a state. This is
confirmed by the declaration that No State may use or encourage the use
of economic, political or any other type of measures to coerce another
State in order to obtain from it the subordination of the exercise of its
sovereign rights.
Therefore, both the general principle of nonintervention asserted in
the declaration and the more limited principle of nonintervention asserted
in Article 2.7 of the charter should be interpreted to prohibit coercive
interference in the affairs of a state lying within its sphere of sovereignty.
The Encyclopedia of Public International Law also adopts this interpreta-

tion. According to most authors intervention means an act of interfer-
ence by one State with the internal or external affairs of another state in
order to induce a certain behavior of the latter, whereby the intervening
State employs coercion and violates the sovereign will of its victim.5
However, it does not define the scope of the sovereign will of a state.
Does the Declaration on Principles of International Law Concerning
Friendly Relations add anything to our understanding of the dilemma
facing the United Nations? It does not improve our interpretation of Ar-
ticle 2.7 in the charter. It repeats the general principle of nonintervention
as formulated in the Declaration on the Impermissibility of Intervention,
merely making explicit that it applies to both individual states and groups
of states. Then it cites verbatim four of the six explanatory paragraphs in
that previous document.
However, it does contribute significantly to the interpretation of Ar-
ticle 2.1 of the charter. It analyzes the principle of sovereign equality into
six elements:
(a) States are juridically equal;
(b) Each State enjoys the rights inherent in full sovereignty;
(c) Each State has the duty to respect the personality of other States;
(d) The territorial integrity and political independence of the State are
inviolable;
(e) Each State has the right freely to choose and develop its political,
social, economic and cultural systems;
(f) Each State has the duty to comply fully and in good faith with its
international obligations and to live in peace with other States.
What can one learn from a consideration of these elements individually

and in relation to one another?
Element (b) tells one that sovereignty is a rights-package, a number of
distinct rights relating to the authority and independence of each state.
Although elements (c), (d), and (e) indicate three of these rights, the dec-
laration does not identify all of the rights included in full sovereignty.
However, Antonio Cassese explains that sovereignty includes the fol-
lowing powers and rights:
(1) The power to wield authority over all the individuals living in the
territory.
(2) The power to freely use and dispose of the territory under the
States jurisdiction and perform all activities deemed necessary or
beneficial to the population living there.
(3) The right that no other State intrude in the States territory.
(4) The right to immunity for State representatives acting in their
official capacity.
(5) The right to immunity from the jurisdiction of foreign courts for
acts or actions performed by the State in its sovereign capacity,
and for execution measures taken against the use or planned use of
public property or assets for the discharge of public functions.
(6) The right to respect for the life and property of the States nationals
and State officials abroad.6
Element (b) confirms that some such conception of sovereignty is implicit

in Article 2.1 of the charter.
Elements (c) and (d) are two specific principles implied by the general
principle of nonintervention. The fact that they are elements in the prin-
ciple of sovereign equality shows that the principle of nonintervention is
grounded on the sovereignty of the state. Thus, the general principle of
nonintervention is implicit in the traditional nature of international law as
the law governing the relations between sovereign states.
Element (f) requires that each state comply fully and in good faith
with its international obligations. Human rights treaties impose interna-
tional obligations upon state parties and customary international law also
imposes a few human rights obligations. But what follows in the event
that a state fails or refuses to fulfill its human rights obligations? The
inclusion of (f) in the analysis of the principle of sovereign equality implies
that the sovereignty of each state is limited by its international duties.
Does it therefore qualify the principle of nonintervention so that it would
be permissible for the United Nations to intervene to coerce a recalcitrant
state to comply fully with its international human rights obligations? This
is a possible reading of the Declaration concerning Friendly Relations, but
its very broad formulation of the principle of nonintervention suggests
otherwise. This ambiguity makes the relevance of this document to the
dilemma facing the United Nations less clear than one would wish. Per-
haps the human rights practices of the United Nations have clarified this
crucial issue in international law.
3. UNITED NATIONS PRACTICES
The dilemma facing the United Nations presents the theoretical problem
of explaining how the commitment to the promotion of human rights in
its charter can be consistent with the limitations on its implementation in
the principles of the equal sovereignty of all states and noninterference in
the domestic affairs of any state. And as Antonio Cassese observes, it also
poses a practical problem of finding permissible means of promoting
respect for human rights:
This clause [Article 2.7], in providing for protection of States domestic jurisdic-
tion, objectively constituted a huge stumbling block to any incisive action by the
UN in the field of human rights. It substantially barred the Organization from
taking any step other than general recommendations (that is, recommendations
addressed to all States), general studies or reports, and draft conventions.7
Let us see how the various United Nations institutions have attempted to
solve both the theoretical and the practical problems in justifying the
steps they have taken to promote human rights.
The Charter of the United Nations authorizes the General Assembly

to discuss any matter within its scope, to initiate studies and make recom-
mendations to assist in the realization of human rights, and to act on draft
conventions. It has frequently exercised its authority to engage in all of
these activities. But has it in doing so infringed the principle of noninter-
vention asserted in Article 2.7 of the charter? Adopting the Universal
Declaration of Human Rights could not be thought to be objectionable
because it is not in and of itself binding upon any state. Nor could spon-
soring the two covenants and other human rights conventions constitute
impermissible intervention because this leaves each state free to accept or
reject any such convention.
The General Assembly decided very early in its practice to expand its
activities in the promotion of human rights by overruling objections based
on the notion of domestic jurisdiction:
It did so, however, by adding a qualification based on the concept of these

rights upheld in the Charter, namely that human rights must be respected as a
means of safeguarding international peace. Starting from this assumption, the
Assembly took the view that whenever an issue concerning human rights
amounted to a situation likely to impair friendly relations among States, it was
authorized to intervene. A second justification for the Assemblys authority to
pass judgment on matters relating to human rights was found in the possible
existence of an international treaty (be it bilateral or multilateral) or at any rate
an international legal obligation on the matter.8
The General Assembly upheld this doctrine in a number of resolutions

such as the case of the treatment of Indians in the Union of South Africa
in 1946, the case of the Russian wives in 1948, and the question concern-
ing the observance of human rights in Bulgaria, Hungary, and Romania in
1949.
In the period from the late 1950s to 1974, the General Assembly advanced
a new justification for adopting resolutions condemning individual states
for the violation of human rights:
In this second stage the Assembly first took up the trend that had previously
emerged as regards domestic jurisdiction, then gradually dropped the two con-
ditions on which it had rested its authority to intervene (existence of an inter-
national treaty or some legally binding rule; or the likelihood of the situation to
impair the friendly relations of States), and turned to the view whereby large-
scale and massive violations of human rights justified its dealing with them,
whereas isolated instances of infringements of such rights did not warrant its
intervention. This gradual evolution appears clearly in the question of apart-
heid in South Africa. For some years the Assembly continued to affirm that its
authority to discuss and pass resolutions condemning South Africa derived
from the fact that the situation constituted a serious danger to international
peace and security. Then the Assembly began to label apartheid a crime against
humanity and no longer rested its authority on the dangerous character of
apartheid for international peace, but rather on its being an international crime,
i.e., a most egregious violation of the basic tenets of humanity.9
Underlying all three of these justifications is the presupposition that the

domestic jurisdiction, hence the sovereignty, of states is limited by inter-
national law.
The Charter of the United Nations authorizes the Economic and Social
Council to make recommendations for the purpose of promoting respect
for and observance of human rights, to prepare draft conventions for sub-
mission to the General Assembly, and to call conferences on matters
falling within its competence. Over the years it has exercised these powers
to a very limited extent and almost never in any way that could be thought
to violate the principle of noninterference. However, the charter also
requires it to set up commissions for the promotion of human rights. In
practice, the council has done so and merely supported the activities of
the subsidiary institutions it has created.
The most important of these has been the Commission on Human
Rights, now replaced by the Human Rights Council. For some time it was
careful not to engage in any practices that might violate Article 2.7 of the
charter. Later the commission revised its interpretation of its mandate, or
perhaps received a new mandate, regarding its authority to promote
respect for human rights and established its procedure under Resolution
1235 of the Economic and Social Council:
First, the Sub-Commission would examine all communications with a view to

identifying consistent patterns of violations. Secondly, the Commission would
then investigate any such situations referred to it and, in the third phase, could
report its findings and recommendations to the Council. With the passage of
time the separation of the phases has become thoroughly blurred and the key
parts of the resulting mandate on which the Commission continues to draw are
its authority: (1) to hold an annual public debate; and (2) to study and investi-
gate situations, by whatever means the Commission may deem appropriate.10
These means of investigation usually involve working groups, rapporteurs,

envoys, or independent experts. Because these procedures begin with
communications alleging violations of human rights by individual states
and culminate in a public report that may condemn those states, they
might be construed as impermissible interventions in the domestic affairs
of sovereign states. Presumably, the commission would respond to any
such claim by appealing to the reasons given by the General Assembly to
justify its own resolutions and to the fact that it had requested the com-
mission to consider ways and means of putting a stop to violations of
human rights or alternatively by reference to the authority of the Eco-
nomic and Social Council and its Resolution 1235.
The commission has also developed various thematic procedures to
investigate and report on general human rights problems. At first glance,
these would seem to be unobjectionable because they are not country-
specific and are designed to be more cooperative than adversarial. How-
ever, in practice these procedures can serve as means of putting pressure
on governments ranging from a request for information or an on-site
country visit to a request that immediate steps be taken to protect the

human rights of some specified group of individuals.11 On balance, these
should not be taken to constitute coercive intervention because in them-
selves they put relatively little pressure upon any recalcitrant state and
the commission has no power to enforce its requests or suggestions.
Soon after the International Covenant on Economic, Social, and Cul-
tural Rights entered into force in 1976, the Economic and Social Council
considered how to best carry out the implementation procedures in Arti-
cles 1623. It decided not to involve the Commission on Human Rights
but to establish a Sessional Working Group of the council to assist it in
considering the reports due under the covenant. When this had proven
ineffective, it established the Committee on Economic, Social and Cul-
tural Rights in 1985. This committee serves to clarify the norms con-
tained in the covenant, expand the information base relevant for its work,
and monitor the performance of states regarding economic, social, and
cultural rights. Only the last of these might seem to intervene in the
domestic affairs of states in any impermissible manner. In practice, how-
ever, this aims at a constructive dialogue that avoids intervention to pro-
tect the human rights of those subject to the jurisdiction of the states
monitored.
The Human Rights Committee was established in 1976 under the In-
ternational Covenant on Civil and Political Rights. Article 40 authorizes
it to study and submit comments on reports from the state parties and
Article 41 authorizes it to receive, consider, and act on complaints by a
state party that another state party is not fulfilling its obligations under
the covenant. Because the former has been exercised with restraint and
the latter has seldom if ever been exercised, these functions pose no threat
to the domestic jurisdiction of any state. More controversial is the practice
of the committee under the Optional Protocol to the International Cove-
nant on Civil and Political Rights that authorizes it to receive and con-
sider communications from individuals claiming to be victims of violations
of any of the rights set forth in the covenant. Although the consideration
of communications takes place in closed meetings and the records of the
committees deliberations are kept confidential, it does publish its views
regarding each admissible case that has been considered on its merits. The
committee has reached substantive conclusions on a large number of
cases, often unfavorable to state parties, and has often added its opinion as
to actions state parties ought to take to provide individual reparation or
prevent future violations.12 These practices might be thought to consti-
tute impermissible intervention in the domestic affairs of the states sub-
jected to criticism and requested to mend their ways. The most plausible
rebuttal is that these actions may be and in fact are taken only against
states that have ratified the Optional Protocol, thereby consenting to these
forms of intervention.
The Charter of the United Nations authorizes the Security Council
to determine the existence of any threat to the peace and to make
recommendations or decide what measures shall be taken to maintain or

restore international peace and security. These measures include military
actions by air, sea, or land forces or nonmilitary measures such as interrup-
tion of economic relations or means of communication or even the
severance of diplomatic relations. Although the Security Council has no
explicit authority to protect human rights, its practices have often presup-
posed that this is implicit in its authority to maintain or restore inter-
national peace and security. For example, the issue of Portugals African
territories was raised in the Security Council in 1961, and six resolutions
were approved between 1961 and 1972. Although there were only a few
references in the debates to violations of international human rights, four
of its resolutions affirmed the goal of self-determination, two asked states
to refrain from assisting in Portugals repressive measures, and two called
for free political activityall human rights issues.13
Coercion was even more evident in the actions taken by the Security
Council against the racial policies and practices of South Africa within its
own borders:
The Council decided in 1960 that the situation, if continued, might endanger
international peace and security; in 1963, that it was then seriously disturbing
international peace and security; in 1964, that it was continuing seriously to
disturb peace and security; and in 1977, that violations of the arms embargo
constituted a threat to peace and security. The Council deplored, strongly
deprecated, condemned, and strongly condemned the policy of apartheid and
South Africas refusal to comply with the Councils decisions. States were
called upon to take coercive measures against South Africa, including a recom-
mended ban and later a mandatory ban on the supply of arms; and States
violating the arms embargo were condemned.14
Although these actions were taken on the basis of its authority to main-
tain or restore peace and security, the Security Council also described
apartheid as a crime against the conscience of mankind and a violation of
the Universal Declaration of Human Rights.
Clearly Articles 39 and 41 of the charter do authorize the Security
Council to determine the existence of any threat to the peace and to take
the measures imposed upon Portugal and South Africa in these situations.
But precisely how, if at all, does this relate to the principle of noninterven-
tion? It cannot be said to make this principle irrelevant because Article 24.2
requires that in maintaining international peace and security, the Security
Council shall act in accordance with the principles of the United Nations.
However, Article 24.1 reads: In order to ensure prompt and effective ac-
tion by the United Nations, its Members confer on the Security Council
primary responsibility for the maintenance of international peace and secu-
rity, and agree that in carrying out its duties under this responsibility the
Security Council acts on their behalf. Therefore, in taking coercive actions
against Portugal and South Africa, the Security Council can claim that it is
acting as an agent of Portugal and South Africa, both members of the
United Nations, not imposing some external authority upon them against
their sovereign wills. But whether this means that by their consent the
members of the United Nations have removed the maintenance of interna-
tional peace and security from their domestic jurisdiction or have made an
exception to the general principle that all intervention in their domestic
jurisdiction is prohibited by international law remains unclear.
4. INTERNATIONAL COURT CASES
The authors of the Charter of the United Nations did not create the prin-
ciples of equal sovereignty and nonintervention ex nihilo. The former
reaffirms a general principle of international law, and the latter is an
application of the previously established general principle of noninterven-
tion to the United Nations itself. Therefore, Articles 2.1 and 2.7 ought to
be read, at least as originally intended, in the light of the pre-1945 sources
of international law, including opinions of the Permanent Court of Inter-
national Justice. There are at least two of these of significance for the
dilemma of how the United Nations can pursue its purpose of promoting
human rights without infringing the principle of nonintervention.
In the Nationality Decrees case, the Permanent Court of International
Justice was requested to interpret the limits, by international law, of mat-
ters solely within the domestic jurisdiction of a state. Its explanation is as
follows:
The question whether a certain matter is or is not solely within the jurisdiction
of a State is an essentially relative question; it depends upon the development
of international relations. Thus, in the present state of international law, ques-
tions of nationality are, in the opinion of the Court, in principle within the
reserved domain. For the purpose of the present opinion, it is enough to
observe that it may well happen that, in a matter which, like that of nationality,
is not, in principle, regulated by international law, the right of a State to use its
discretion is nevertheless restricted by obligations which it may have under-
taken towards other States. In such a case, jurisdiction which, in principle,
belongs solely to the State, is limited by rules of international law.15
Thus by international law, the domestic jurisdiction of a state is limited
both by the general principles of international law and by any additional
international legal obligations the state may have chosen to undertake.
Presumably it would follow that the choice of most states whether to
fulfill their obligations under international human rights law would not
fall within their domestic jurisdictions. If so, then intervention by the
United Nations to promote respect for human rights would not violate
Article 2.7 of the charter.
In the Case of the S.S. Lotus, the Permanent Court of International
Justice made an influential statement on the nature and existing condi-
tions of international law:
International law governs relations between independent States. The rules

of law binding upon States therefore emanate from their own free will as
expressed in conventions or by usages generally accepted as expressing prin-
ciples of law and established in order to regulate the relations between
these co-existing independent communities or with the view to the achieve-
ment of common aims. Restrictions upon the independence of States can-
not therefore be presumed.
Now the first and foremost restriction imposed by international law
upon a State is thatfailing the existence of a permissive rule to the con-
traryit may not exercise its power in any form in the territory of another
State. In this sense jurisdiction is certainly territorial; it cannot be exercised
by a State outside its territory except by virtue of a permissive rule derived
from international custom or from a convention.
It does not, however, follow that international law prohibits a State from
exercising jurisdiction in its own territory, in respect of any case which
relates to acts which have taken place abroad, and in which it cannot rely on
some permissive rule of international law. Such a view would only be tena-
ble if international law contained a general prohibition on States to extend
the application of their laws and the jurisdiction of their courts to persons,
property and acts outside their territory, and if, as an exception to this gen-
eral prohibition, it allowed States to do so in certain specific cases. But this
is certainly not the case under international law as it stands at present.16
This opinion is relevant to the dilemma facing the United Nations in two
ways. First, it suggests that the principle of territorial nonintervention is
implicit in the very nature of international law as rules governing the
relations between independent sovereign states. Hence, any territorial
intervention to protect human rights would be permissible only after a
change in the nature of international law. However, under international
law as it stood when the opinion was delivered, it would seem to be per-
missible for the member states of the United Nations to take coercive
actions within their own territories, such as prohibiting trade with or
travel to another state that is violating human rights.
There are also two cases decided by the International Court of Justice
subsequent to the ratification of the Charter of the United Nations that
have implications for the permissibility of interventions to protect human
rights. In the Corfu Channel Case, the court explained the legal responsi-
bility of Albania for damage to British warships as follows:
The obligations incumbent upon the Albanian authorities consisted in notify-

ing, for the benefit of shipping in general, the existence of a minefield in Alba-
nian territorial waters, and in warning the approaching British warships of the
imminent danger to which the minefields exposed them. Such obligations are
based, not on the Hague Convention of 1907, No. VIII, which is applicable in
time of war, but on certain general and well-recognized principles, namely:
elementary considerations of humanity, even more exacting in peace than in
war; the principle of freedom of maritime communication; and every States
obligation not to allow knowingly its territory to be used for acts contrary to
the rights of other States.17
Although the court did not specify the principle or principles concerning
elementary considerations of humanity, one could argue that they include
at least the most widely recognized human rights principles. If so, they
might well render actions of the United Nations to promote the respect
for human rights permissible under international law.
A more recent and more clearly relevant case is the Barcelona Traction
case of 1970, in which the International Court of Justice recognized the
existence of legal obligations erga omnes:
In particular, an essential distinction should be drawn between the obligations

of a State towards the international community as a whole, and those rising
vis--vis another State in the field of diplomatic protection. By their very nature
the former are the concern of all States. In view of the importance of the rights
involved, all States can be held to have a legal interest in their protection; they
are obligations erga omnes. . . . Such obligations derive, for example, in contem-
porary international law, from the outlawing of acts of aggression, and of geno-
cide, as also from the principles and rules concerning the basic rights of the
human person, including protection from slavery and racial discrimination.18
Thus, the most basic human rights impose legal obligations owed to the
international community as a whole, not merely to one or several sover-
eign states. Arguably, this would render it permissible for the United
Nations, acting on behalf of the entire international community, to inter-
vene to protect these human rights when they are violated or threatened
with violation by any state. However, the logic of this argument has not
yet been unambiguously and consistently recognized in international law.
5. UNRESOLVED LEGAL ISSUES
The United Nations Charter asserts that one of the primary purposes of
the organization is to promote the universal respect for and observance of
human rights. At the same time, Article 2 requires that it do so in accor-
dance with the principle of the equal sovereignty of all nation-states and
the principle of nonintervention in their domestic affairs. Thus, the char-
ter seems to pose a very serious dilemma for the United Nations. How can
it effectively implement international human rights on occasions when
they are violated by nation-states without intervening in their domestic
affairs? Antonio Cassese reminds us of the original force of this dilemma:
In 1945 the international community still lacked an internationally agreed list

of human rights to be respected by States and an internationally agreed defini-
tion of those rights. This is one of the reasons why it was still inconceivable that
an international body could limit States sovereignty by intruding in their inter-
nal affairs and making comments or recommendations on governments inter-
nal structure or the relations between the State authorities and individuals.
Therefore it was only natural for States to introduce Article 2.7 into the Char-
ter. This clause, in providing for protection of States domestic jurisdiction,
objectively constituted a huge stumbling block to any incisive action by the

UN in the field of human rights.19
Consequently, early attempts by the United Nations to implement human

rights were sporadic and ineffective.
Fortunately, subsequent developments in international law have sig-
nificantly reduced the seriousness of this dilemma. First, the use by the
Security Council of its authority to decide what measures shall be taken
to maintain or restore international peace and security to protect human
rights from gross abuses is now generally accepted by nation-states
as legally permissible. Second, the principle that the obligations of a
nation-state under international law, including its obligations to protect
and promote human rights, are not matters of domestic jurisdiction is
recognized in international law. Hence, the implementation of human
rights by international organizations is not necessarily prohibited by the
principle of nonintervention. Third, the practices of the United Nations
Commission on Human Rights and the Human Rights Committee to
implement human rights are generally accepted as legally permissible.
This may be because they are considered by nation-states to be noncoer-
cive and presumably only coercive intervention is prohibited by the prin-
ciple of nonintervention in the domestic affairs of nation-states. Finally,
the establishment of two ad hoc criminal tribunals and now the Interna-
tional Criminal Court has created new instruments for the implementa-
tion of international human rights.
Unfortunately, these legal developments still leave several relevant
legal issues unresolved. First, what distinguishes permissible from imper-
missible actions by the United Nations in the protection of human rights?
The authority of the Security Council to decide measures to preserve or
restore international peace and security, including interventions to pre-
vent the widespread and systematic or gross violation of human rights, is
now clearly recognized. But there are no established criteria of how wide-
spread or systematic such violations must be to constitute a threat to
peace. And one might argue that any serious violations of human rights,
whether or not gross, threaten international peace and security. The line
between permissible and impermissible actions by organs of the United
Nations other than the Security Council is even more unclear. Although
the General Assembly Declaration on the Inadmissibility of Intervention
suggests that all coercive actions, except those decided by the Security
Council, are impermissible, it does not state this explicitly and unequivo-
cally. And given the fact that the General Assembly has no legislative
power, it is not clear that the declaration draws the line between permis-
sible and impermissible interventions in an authoritative manner.
Second, are individual states or coalitions of states legally permitted to
intervene with military force to stop or prevent the massive violations of
human rights without authorization by the Security Council?20 In the
light of recent developments in international law, Francis Kofi Abiew con-
cludes that this is permissible:
Thus, individual states may undertake humanitarian interventions, for there

exists a coordinate responsibility for the active protection of human rights:
members may act jointly with the Organization . . . or singly or collectively.
Were this not the case, as McDougal and Reisman contend, it would be suicid-
ally destructive of the explicit purposes for which the United Nations was
established.21
Antonio Cassese disagrees, for he argues that the use of armed violence by
the NATO countries against the Federal Republic of Yugoslavia was illegal
because those countries acted without any authorization of the Security
Council and could not justify their action as collective self-defense. How-
ever, he suggests that international law may be moving toward legiti-
mation of such actions by citing a number of recent developments.22
The third and most fundamental unresolved issue is whether interna-
tional law is based exclusively on the consent of states so that no state can
be bound by any international obligation that it has not accepted. The
traditional doctrine is that this must be so simply because the subjects of
international law are sovereign states. The classic formulation of this doc-
trine is found in the Lotus case. However, a passage in the Barcelona
Traction case suggests to many international lawyers that this is not always
true. Here it seems to be the importance of the rights involved, not uni-
versal consent, that imposes obligations on all members of the interna-
tional community. The International Court of Justice includes the basic
rights of the human person among those that impose obligations erga
omnes.23 But it does not explicitly repudiate or modify the traditional
doctrine of the nature of international law. Hence, this issue also remains
unresolved.
6. JUST RESOLUTIONS
How ought these issues in international law to be resolved? Let us begin

by considering the third and most fundamental of the issues described
above. Ought international law to be based exclusively on the consent of
states? One of the principles of international law, a principle that many
believe defines its very nature, is the sovereign equality of states. Does the
sovereignty of every state imply that it can be bound by international law
only by its own consent? This obviously depends upon the nature and
limits, if any, of sovereignty.
It is states and only states that possess equal sovereignty in interna-
tional law. What, then, is a state? Article 1 of the Montevideo Convention
on Rights and Duties of States from the seventh international conference
of American states provides: The State as a person of international law
should possess the following qualifications: (a) a permanent population;
(b) a defined territory; (c) government; and (d) capacity to enter into re-
lations with other states. Ian Brownlie explains that the criteria of a per-
manent population and a defined territory are intended to be taken
together and connote a stable community. The best evidence of a stable

community is the existence of an effective government with centralized
legislative and administrative functions. And the capacity to enter into
relations with other states represents independence, held by many jurists
to be the decisive criterion of statehood.24 Because stable political com-
munities can be independent to a greater or lesser degree, there are bor-
derline cases of statehood.
In international law the principle of equal sovereignty confers sover-
eignty upon every state. Although sovereignty is a complex of rights,25 for
present purposes the more simple analysis into internal and external sov-
ereignty will suffice. This distinction is central to the international law of
cooperation:
According to a widely shared view, sovereignty has two complementary and

mutually dependent dimensions: within a State, a sovereign power makes law
with the assertion that this law is supreme and ultimate, i.e., that its validity
does not depend on the will of any other, or higher, authority. Externally, a
sovereign power obeys no other authority.26
It is external sovereignty that might seem to imply that states could be

bound by international law only by their own consent.
Whether states are in fact bound by international law only when they
have consented to that law remains undecided. But the question before
the house is not whether sovereignty does now imply that international
law is based only upon consent, but whether morally justified sovereignty
would imply that only consent can impose international obligations upon
a state. What, then, would justify external sovereignty in international
law? External sovereignty is a claim-right of each state holding against all
other states and coalitions of states that they not attempt to control that
states internal or external affairs. As a claim-right it imposes duties of
noninterference upon all other states. What reasons are there for interna-
tional law to impose these duties?
Three reasons spring to mind. (1) Attempts by one state or a group of
states to control the affairs of some other state are incompatible with in-
ternational peace and friendly relations. Forcible intervention or even the
threat of military action often leads to war, and lesser forms of unwelcome
interference with the affairs of a state damage the friendly relations that
sustain international peace. (2) One of the purposes of international law
is to enable independent nation-states to cooperate for shared purposes.
The opinion in the Lotus case affirms that by its very nature, interna-
tional law regulates the relations between independent states in part with
the view to the achievement of common aims.27 Because there is no
world government and no single state or coalition of states with the power
to control all or even most other states, the coordination necessary for the
effective solution of international problems, such as threats to the envi-
ronment or hindrances to international trade, require the willing cooper-
ation of all or most states. Their wholehearted participation in cooperative
projects is diminished or even destroyed by attempted coercion. (3) Non-

interference in the domestic affairs of a state is a necessary condition for
the secure exercise of its rights to internal sovereignty. No state can effec-
tively govern its population or exploit its natural resources if other states
attempt to control its actions. Interference by another state will disrupt its
pursuit of long-range projects and threaten the legal certainty of its
municipal legal system. Thus, there are at least three reasons that justify
international law in conferring external sovereignty upon states.
Presumably this third reason justifies external sovereignty only if inter-
nal sovereignty is itself justified. While external sovereignty is a negative
claim-right imposing duties upon other states not to threaten the inde-
pendence of each state, internal sovereignty consists of a cluster of posi-
tive rights, such as the liberty-right of a state to enact and enforce laws to
govern its population, the liberty-right to interact with other states diplo-
matically or in other ways, and the power-right to enter into treaties with
other states.
There are at least three reasons for international law to confer internal
sovereignty upon each state. (1) Any effective system of international law
must identify those subject to it, and therefore responsible for their
actions, and those possessing legal powers within that legal system. As
Michael Ross Fowler and Julie Marie Bunck argue:
To promote orderly relations among states, the international community must

somehow separate what states rightfully view as their own business from that
of their neighbors and that of the international community. Supplying this
delineation is sovereigntys most useful and prominent function. A cardinal
virtue of the concept is that it allocates responsibility as well as authority.28
(2) A state by definition is constituted by a relatively independent and

effective government over a stable population and a defined territory. To
deny internal sovereignty to a state would be to weaken its position in
international law and, given the absence of any world government, endorse
the only available alternativea population living in a territory with no
effective government at all. The internal sovereignty of a state is justified
in part by the fact that it protects its population from the harms they
would suffer in a Hobbesian state of nature.29 (3) A state ought to possess
internal sovereignty in order to legitimize its protection of the human
rights of its population. To be sure, states are Janus-faced in this regard.
They are both the most serious violators of human rights and yet, given
their independent national legal systems, the only institutions with the
rightful power to protect them effectively. Therefore, international law
ought to legitimize their power to protect human rights by giving them
internal sovereignty, but at the same time restrain their ability to violate
human rights by whatever ways are permitted in international law.30
What do these reasons for conferring internal and external sovereignty
imply about the extent of justified sovereignty in international law? The
internal sovereignty of a state consists in a cluster of liberty-rights and
power-rights. One reason for conferring these rights upon each state is
that they allocate responsibility and authority in international law. Obvi-
ously this cannot confer unlimited liberty of action upon states because
this would rule out state responsibility for wrongful action. And the equal
sovereignty of states excludes giving unlimited legal powers to any state.
However, this reason does not in and of itself define the limits of the var-
ious rights that make up internal sovereignty. Another reason for internal
sovereignty is to permit states to govern their subjects and thereby to
rescue them from the harms they would suffer in a state of nature. But
this would not justify subjecting the members of a society to harms even
worse than those they would suffer were they not governed by its munic-
ipal legal system. A third reason to confer internal sovereignty is to permit
states to protect the human rights of its population. Obviously this could
not confer any justified liberty to violate the human rights of those sub-
ject to its government. Although this reasoning does not draw any clear
limits to justified internal sovereignty, it does show that unless there is
some other justification, it does not confer any liberty-right to impose
massive harms upon its subjects or to violate their human rights.
External sovereignty is a claim-right that other states, individually or
collectively, not subvert the independence of a state. What do the reasons
for conferring external sovereignty imply about the justified extent of this
claim-right? One justifying reason is that external sovereignty is a
necessary condition for the effective exercise of the rights that constitute
internal sovereignty. But the grounds of internal sovereignty justify no
right of a state to cause immense harm to its population or to violate the
human rights of those subject to its jurisdiction. Hence, this first reason
can justify no claim-right against interference to prevent such abuses of
justified internal sovereignty. A second reason for conferring external sov-
ereignty is that interference in the internal or external affairs of a state
tends to undermine its willingness to cooperate fully to achieve the
common ends of the international community. But a state can maintain
its independence in the face of many attempts to exert unwelcome pres-
sure upon it, for it can choose whether or not to give in to the interference
of another state or coalition of states. And if a state recognizes that inter-
ference is intended to advance international goals that it accepts, it may
be willing to cooperate with other states even to the extent of sacrificing
some of its own nonvital interests. The third, and most widely accepted,
reason to confer external sovereignty is that any attempt by one state to
subvert the independence of another state can and not infrequently does
lead to war and at best undermines the friendly relations between inde-
pendent states upon which international peace and, given the absence of
any centralized police force, the adherence to international law depend.
But this reason does not justify any claim-right against interference to
prevent war or to preserve the peace. And if, as is often asserted, the mas-
sive violation of human rights threatens peace and security, this would
include humanitarian intervention. However, to say that justified external
sovereignty does not necessarily rule out humanitarian intervention is not

to imply that such intervention is always justified. In some and probably
most cases, such intervention would be unjustified for other reasons.
This line of reasoning does not define the limits of justified sovereignty
with any precision. But it does show that justified sovereignty, both inter-
nal and external, in international law is not unlimited. Thus, it implies that
any claim to absolute sovereignty under international law is not morally
justified. And it is the assertion of absolute sovereignty that would imply
that international law must depend exclusively upon the consent of states.
Hence, one can accept the principle of equal sovereignty as fundamental
to international law without admitting that a nation-state can be legally
bound only by its own consent.
Nevertheless, one could argue that for other reasons states ought to be
legally bound only by their own consent. For example, Prosper Weil insists
that without this principle international law could not perform its essen-
tial functions of enabling heterogeneous and equal states to establish
orderly and peaceful relations and pursue their common interests.31
Let us grant for the sake of the argument that the two essential func-
tions of international law are to establish orderly and, when possible,
peaceful relations between sovereign states and to enable them to coop-
erate in the pursuit of their common interests. Whatever may have been
true when modern international law first arose in Western Europe, I do
not believe that it can adequately perform these functions in todays
global international community without the recognition of legal obliga-
tions erga omnes, defined by Ian Brownlie as obligations Opposable to,
valid against, all the world, i.e. all other legal persons, irrespective of the
consent on the part of those thus affected.32
The reasons for this conclusion are suggested, but not explained, by the
examples given by the International Court of Justice in the Barcelona
Traction case.33 Obviously any nation that performs a serious act of aggres-
sion threatens international peace, and one that engages in genocide at
least weakens the peaceful relations between nation-states. Also, wide-
spread violations of the most basic human rights, for example by permit-
ting slavery or instituting a policy of racial discrimination such as apartheid,
even if they do not lead to war, threaten the orderly relations between
independent states by causing refugees to flee from persecution and to
seek asylum in other countries, often in overwhelming numbers. And in
the contemporary global economy with international communications
that create rising expectation in the populations of most states, even the
denial of basic economic or social human rights can and sometimes does
produce floods of asylum seekers that undermine orderly relations
between nation-states. Finally, in spite of their diversity, all nation-states
share common interests in facilitating economically productive interna-
tional commerce and protecting the global environment, among others,
that cannot be achieved by the uncoordinated efforts of even the most
powerful states. To retain the principle that no state can be legally bound
without its consent would be to permit one or a few recalcitrant states to

limit the reach of international law in ways that would prevent it from
fulfilling its functions of establishing orderly and peaceful relations
between independent states or enabling them to cooperate successfully in
achieving their common interests.
Admittedly there are, as Weil and others remind us, potential dangers
in admitting obligations erga omnes into international law. Given the het-
erogeneity of nation-states, international law cannot carry out its function
of coordination unless it is neutral.34 But because the obligations erga
omnes are identified by their content, the importance of the rights
involved, there is a danger that states will allege obligations erga omnes
motivated by partisan ideological reasons or crass self-interest. Hence,
there are the twin dangers that the most powerful states will impose un-
justified legal norms on weaker nations35 and that individual states or co-
alitions of states will abuse their power to intervene to enforce some
alleged obligation erga omnes.36 These are very real practical dangers in the
international politics that frequently pleads international law to justify
questionable state actions. Although international law lacks the central-
ized legal institutions to eliminate these dangers, it could reduce them by
defining a limited number of obligations erga omnes with precision. Pro-
vided that this project is undertaken, I propose that international law
ought to reject the principle that a state can be legally bound only by its
own consent and ought to recognize a limited number of international
obligations erga omnes.
Another but related unresolved issue in international law is whether
individual states or coalitions of states are legally permitted to intervene
by the use of military force without authorization by the Security Coun-
cil to stop or prevent massive violations of human rights. The recognition
of obligations erga omnes might seem to imply that they are permitted to
do so. In its Barcelona Traction judgment, the International Court of Jus-
tice contrasted the obligations concerning diplomacy where in order to
bring a claim in respect of the breach of such an obligation, a state must
first establish its right to do so with obligations erga omnes where in view
of the importance of the rights involved, all States can be held to have a
legal interest in their protection.37 However, the International Law Com-
mission interpreted this to imply only that in the event of a breach of
these obligations, every State must be considered justified in invoking
probably through judicial channelsthe responsibility of the State com-
mitting the internationally wrongful act.38 This falls markedly short of
justifying any resort to unauthorized military force.
How, then, ought this legal issue to be resolved? In principle, the mas-
sive violation of human rights, at least of the most basic rights of the
human person, is so great a threat to the interests of the international
community that any state or group of states ought to be legally permitted
to stop or prevent it with proportionate military force. But as Ian Brown-
lie observes, The ultimate question in such crises, as in the crisis relating
to Iraq in 2003, is not whether the use of force may be justified beyond
the cases provided for in the Charter, but who makes the determination
that such action is necessary.39 I believe that in practice it would be too
dangerous to confer upon individual states or groups of states the legal
right to use military force without the authorization of the Security
Council. Nation-states will too often be motivated by self-serving polit-
ical reasons to abuse any such right or even when intervening with the
best humanitarian motives to overestimate the seriousness of the actual
or potential violation of human rights and underestimate the devastating
effects of their often futile efforts to protect victims within the territorial
jurisdiction of another state. Recent experiences in Somalia, Iraq, and
even Kosovo are not reassuring. To be sure, the danger of possible abuse is
too often used as an excuse for refusing to permit morally justified prac-
tices such as the medical use of marijuana or physician-assisted suicide.
But most national legal systems possess institutions capable of minimizing
abuses of legal rights. International law, on the other hand, lacks any strong
centralized machinery to restrain the misuse by nation-states of what they
claim to be their international rights.
Unfortunately, resolving the legal issue in the manner I propose, by
refusing to permit individual states or groups of states to intervene by the
use of military force to stop or prevent the abuse of human rights without
authorization of the Security Council, would often leave the important
interest of the international community in the protection of basic human
rights in jeopardy. Far too often the Security Council will be unable to
respond to a humanitarian crisis because of a political disagreement
among its members or the threat of a veto by one of its permanent mem-
bers or simply because the member states of the United Nations are un-
willing to commit military forces sufficient for carrying out any action the
council might wish to take. Given the realities of the international com-
munity today, this is the lesser of two evils. If any practical solution to this
dilemma is possible, a matter on which a political scientist rather than a
moral philosopher is competent to judge, it will probably be by amending
the United Nations Charter to reform the Security Council rather than by
permitting the unauthorized use of military force by individual states or
even coalitions of states.
A third unresolved issue in international law is what distinguishes per-
missible from impermissible intervention by the United Nations for the
protection of human rights. Because there are many organs of the United
Nations that serve to implement international human rights in various
ways, the task of defining the proper roles of each is too complex to at-
tempt here. However, controversy centers primarily on two relevant dis-
tinctions, the distinction between forcible and nonforcible measures and
the distinction between coercive and noncoercive measures. How ought
these lines to be drawn in the international law of human rights?
I have argued that the use of military force ought to be legally permis-
sible only when authorized by the Security Council. But ought the power
of the Security Council to authorize the use of military force to protect

human rights to be limited in some way? It derives this power from Chap-
ter 7 of the United Nations Charter concerning Action with Respect to
Threats to the Peace, Breaches of the Peace, and Acts of Aggression.
Although human rights are nowhere mentioned in this chapter, jurists
now generally agree that Chapter 7 does empower the Security Council
to decide that military force ought to be used to suppress gross and sys-
tematic violations of human rights in some cases. But how broadly ought
this provision of the charter to be interpreted? Ought there to be a pre-
sumption that any serious violation of human rights endangers interna-
tional peace and security or ought the power of the Security Council to
intervene for the protection of human rights be limited to cases in which
there is credible evidence that international peace actually is threatened?
Given the importance of the protection of the basic rights of the human
person to the international community, I would prefer the former alterna-
tive. However, it would be desirable for international courts to draw some
line between the basic rights of the human person and other human rights
and another line between gross and systematic violations and lesser viola-
tions that would not justify action by the Security Council.
Article 41 of the charter provides that the Security Council may autho-
rize coercive measures short of the use of military force including com-
plete or partial interruption of economic relations and the severance of
diplomatic relations. Surely this is justified. But should other organs of the
United Nations be permitted to act to impose coercive measures for the
protection of human rights? Given the frequency with which action by
the Security Council is blocked by one or a few of its members, it seems
desirable that the General Assembly, which can adopt resolutions or take
other actions by a simple majority, ought to be empowered to do so. In
fact, it has on several occasions assumed this authority, for example in
Resolution 1761 (XVII), The Policies of Apartheid of the Government of the
Republic of South Africa, adopted in 1962 concerning South Africas apart-
heid policies. In paragraph 4 the General Assembly
Requests Member States to take the following measures, separately or collec-
tively, in conformity with the Charter, to bring about the abandonment of
those policies: (a) Breaking off diplomatic relations with the Government of
the Republic of South Africa or refraining from establishing such relations; (b)
Closing their ports to all vessels flying the South African flag; (c) Enacting
legislation prohibiting their ships from entering South African ports; (d) Boy-
cotting all South African goods and refraining from exporting goods, including
all arms and ammunition, to South Africa; (e) refusing landing and passage
facilities to all aircraft belonging to the Government of South Africa and com-
panies registered under the laws of South Africa.
Not everyone accepted the authority of the General Assembly to request

member states to take coercive measures. The representative of Colombia
suggested that it would be useful to refer the question of whether the
principle of noninterference in the domestic jurisdiction of states took
precedence over the obligation to comply with resolutions relating to the

charter provisions concerning human rights. And the Guatemalan repre-
sentative felt that the General Assembly was not empowered to impose
sanctions on the South African government. But if international law is to
perform its essential functions adequately, I suggest that this legal issue
ought to be resolved in favor of the General Assembly and that its requests
that member states take coercive measures to protect human rights or to
enforce other international obligations erga omnes ought to constitute
authorization for them to conform to such requests.
7. CONCLUSION
When the United Nations came into existence in 1945, the principle of
the equal sovereignty of all its members and the implied principle of non-
intervention in the domestic affairs of any state, principles of international
law reaffirmed in its charter, seriously hindered its pursuit of its declared
purpose of promoting and encouraging respect for the human rights and
fundamental freedoms for all. Subsequent developments in international
law, especially the recognition that the performance of human rights ob-
ligations are not domestic affairs and that the Security Council has the
authority to decide to intervene with forcible or other coercive measures
to stop or prevent the most serious violations of human rights, have
greatly reduced the dilemma presented by the need to respect national
sovereignty while implementing international rights. If the three unre-
solved legal issues were to be resolved in the ways that I have proposed,
this dilemma would be reduced even more.
I have justified my proposals by an analysis of the moral grounds for
recognizing the external and internal sovereignty of nation-states in inter-
national law. Two basic purposes of international law are to preserve inter-
national peace and friendly relations and to promote cooperation for the
shared purposes of states. These are deeply moral purposes, for war or an-
tagonistic relations cause severe harm to many victims and with increasing
globalization interstate cooperation is essential both to prevent global
disasters and to facilitate improved conditions for mankind. A third justi-
fication for external sovereignty is that this is a necessary condition for a
nation-state to exercise its internal sovereignty effectively. Internal sover-
eignty is in turn morally justified because it is required for any government
to protect its population from the harms they would suffer in anything
approaching a Hobbesian state of nature and to protect their human rights
from violation by other persons, nongovernmental groups, and even, para-
doxically, public officials. Here, then, are several moral dimensions of in-
ternational human rights. They are relevant both because they limit the
justifiable intervention to protect the human rights of citizens of a na-
tion-state and because they limit the justifiable claim-right of nation-states
against the implementation of human rights by international law.
Still, serious impediments to the effective implementation of interna-

tional human rights in an international community of sovereign states
would remain. Although further modification of international law might
be useful, the source of these impediments lies primarily in the nature of
the international legal system rather than in the content of its specific
legal rules or general principles. It is necessarily a system of law made by
and implemented by independent states directly or through organizations
they have created and over which they retain control. It has no global
legislature, only a fragmentary set of courts, and no police force other than
that volunteered on a case-by-case basis by its member states. In the end,
therefore, the protection of moral human rights will for the foreseeable
future depend much less on their protection by international law than on
their effective implementation in national legal systems.
8
Constitutional Rights
Because the surface of our planet is divided into territories governed by

nation-states, all human beings are subjects of national legal systems. And
because nation-states are sovereign, it is national law that has the primary
and most effective impact upon human lives. Consequently, violations of
human rights almost always1 take place within the jurisdiction of
nation-states and, because of the brute force at their disposal, the most
systematic and gross violators of human rights are national governments.
This explains why those who value human rights wish to have them
securely recognized and implemented in national law.
There are four distinct, but related, ways in which human rights can
be and in practice have been recognized in national legal systems. To a
citizen of the United States, the obvious way is to include them in a
written constitution. But human rights can also be recognized in the first
instance by judicial decisions as the right to privacy was introduced into
United States law by the decision of the Supreme Court in Griswold v.
Connecticut. Or human rights can be and often are legally recognized
in legislation, for example the Canadian Act for the Recognition and
Protection of Human Rights and Fundamental Freedoms of 1960,
referred to as the bill of rights, or the United Kingdom Human Rights
Act of 1998. Finally, human rights can enter into municipal law when a
nation-state adopts a treaty such as the International Covenant on Civil
and Political Rights.
Constitutional law need not be based upon a written document as it is
in the United States. The constitution of the United Kingdom is estab-
lished primarily, although not exclusively, in the common law. Thus,
whatever contemporary legal authority the English Bill of Rights of 1689
has is derived from its current application in the English courts. However,
the practice of recognizing human rights in a written constitution, often
in a separate section usually called a bill of rights, raises special philosoph-
ical problems and deserves separate consideration. Hence, the subject of
this chapter will be whether human rights ought to be recognized in a
written constitution and, if so, whether they should be entrenched as
human rights.
127
1. CONSTITUTIONAL RECOGNITION
Ought human rights to be recognized in a written constitution? If one

conceives of moral human rights as broadly as I do, then it is obvious that
not all human rights ought to become constitutional rights in national
legal systems. The serious question is whether the most important and
most threatened human rights of the sorts that could be effectively imple-
mented in national law ought to be recognized in a written constitution.
1. One reason for an affirmative answer to this question is that a written
constitution is the most fundamental ground of law in a national system.
Constitutional law is by definition the law that constitutes the legal
system of a nation-state. It does this primarily by specifying the qualifica-
tions and powers of the executive, legislative, and judicial branches of
government. Hence, it is necessarily foundational because any law created
by executive, legislative, or judicial action beyond the constitutional limits
of these defined powers is ultra vires and consequently lacking in legal
validity. Presumably to add human rights to a written constitution is to
make them fundamental in the legal system and thereby to afford them a
secure legal protection.
2. Another reason to write human rights into constitutional law is that
this provides a legally recognized and publicly recognizable label for these
human rights. These labels serve to guide, ground, and limit the applica-
tion of the law by public officials when human rights are at stake and
might be violated. Written constitutions, even when not entrenched or
only lightly entrenched, tend to be relatively stable documents not often
rewritten. This gives human rights recognized in them a firmness that,
especially when judges adopt a relatively strict interpretation of the con-
stitutional text, enhances the strength and reliability of the legal protec-
tion of human rights. More broadly, the public can rally around these
constitutional labels in support of human rights, and individuals can use
them in appealing against any actual or threatened violation of their
rights.
However, this advantage brings with it the potential for verbal rigidity.
As Jeremy Waldron observes:
A legal right that finds protection in a Bill of Rights finds it under the auspices
of some canonical form of words in which the provisions of the charter are
enunciated. One lesson of American constitutional experience is that the
words of each provision in the Bill of Rights tend to take on a life of their own,
becoming the obsessive catch-phrase for expressing everything one might want
to say about the right in question.2
Thus constitutional labels can impose both a verbal straitjacket that pre-
vents the application of established human rights to changing circum-
stances and an overly simple formula that eliminates consideration of the
variety of human interests at stake in human rights cases. Although these
dangers are genuine and too often realized, they are reduced to tolerable
Constitutional Rights 129
proportions by two related facts. The language in which a human right is

recognized in a written constitution is inevitably very general and abstract.
Therefore, the constitutional label can be applied to individual cases only
as it is interpreted by the courts. Hence, the real legal meaning of these
labels lies in judicial decisions that can and typically do take account of a
wide range of relevant interests and develop as the social circumstances
change.
3. Human rights ought to be recognized in a written constitution
because this gives the courts the power to declare legislation that
violates human rights to be without legal validity on the ground of
unconstitutionality. Because constitutional law defines the executive,
legislative, and judicial powers of governmental officials, it thereby
limits the authority of the legislature. Thus it implicitly confers the
power of judicial review upon the courts. This is desirable insofar as it
helps to reduce the threat to human rights by national legislatures. Even
if constitutional rights are not entrenched, judicial review can cause the
legislature to reconsider its previous legislation. Thus, Section 4 of the
United Kingdom Human Rights Act of 1998 empowers a court to
declare that some statute is incompatible with a human right recog-
nized in that act. Although this does not affect the constitutional
supremacy of Parliament because it does not render the statute uncon-
stitutional, it can motivate Parliament to modify the statute to render it
compatible with the Human Rights Act. Moreover, a declaration of
incompatibility might stimulate the public to political action in defense
of human rights.
There are those who consider judicial review undesirable because it
politicizes the judges. Also, because judges are inherently conservative, it
leads to regressive outcomes.3 However, when human rights are defined
in a written constitution, the canonical formulas limit the ability of judges
to substitute their personal political views for the established interpreta-
tions of the language of the constitution. And writing human rights into
the constitution does more to reduce than to increase regressive judicial
decisions. To be sure, constitutional litigation is very expensive and could
clog the courts.4 But the expense helps to ensure that only the most
important cases are appealed, and the courts can be and in practice are
very selective in accepting jurisdiction over cases that raise constitutional
issues. On balance, it seems to me that the modest disadvantages of judi-
cial review are more than outweighed by its ability to render human
rights more secure.
4. A fourth reason for recognizing human rights in a constitution is
that this promotes the knowledge of and respect for human rights in the
legal profession and the wider public. Citizens of the United States often
imagine that a bill of rights in a written constitution is necessarily the best
protection for their exercise and enjoyment. But as I reminded my audi-
ence at a time when the nations in Eastern Europe were revising their
constitutional law:
The recent history of all too many other legal systems reveals written constitu-
tions specifying many fundamental rights that have been of no legal effect
whatsoever because they have not been applied in the administrative or judi-
cial practices of those countries. Constitutional rights distance issues from ordi-
nary politics only when they are real rather than merely paper rights, that is,
only when they are embodied in the actual practices of a legal system.5
Although this suggests that writing human rights into a constitutional

document is a futile gesture, precisely the opposite is true. A written con-
stitution in which rights are defined in canonical formulations is a more
effective way to educate the public about the nature, identity, and impor-
tance of human rights than recognizing them in the more scattered and
less well known judicial decisions, legislative acts, or ratifications of
treaties.
This value of adding human rights to a written constitution is con-
firmed by the recent experience of Canada after the adoption of its Char-
ter of Rights and Freedoms. Although Canada enacted a statutory bill of
rights in 1960, Robert J. Sharpe reports that
The amendment of the Canadian Constitution in 1982 to include the Charter

of Rights and Freedoms brought about a fundamental change to Canadian law
and politics. Many important public issues formerly within the exclusive pre-
serve of legislative authority are now subject to judicial review. Constitutional
litigation has become an important tool used by interest groups to advance
their political ends. Canadian courts now play a central role in deciding how
the law should deal with such intractable issues as abortion, mandatory retire-
ment, the legitimacy of laws restricting pornography and hate propaganda, and
the definition of what may properly constitute a criminal offence.6
It has also done much to foster a culture of liberty and respect for human
rights in Canada.7 And this rights consciousness is essential in any society
in which human rights are to be firmly embodied in legal and more gen-
eral cultural practices.
There are those who believe that the experience of the United States
demonstrates that a culture of rights is harmful. They argue that it moti-
vates individuals to promote their self-interest at the expense of the
public welfare, leads to the neglect of moral and civic duties, and creates
a litigious society in which the adversarial force of law intrudes into areas
that ought to be managed with private negotiation and compromise.
However, the mutual respect for the human rights of all persons, the
rights of others as well as ones own, need not have these harmful conse-
quences and is more likely to produce more cooperation among citizens
who recognize each others equality and human dignity. Everything con-
sidered, although human rights can be secure without a written constitu-
tion, as they are in the United Kingdom, the four reasons listed here
explain why in most nation-states it is desirable to recognize human rights
in a written constitution.
2. ENTRENCHMENT
Ought the human rights recognized in a constitution to be entrenched?

One might imagine that any debate about the entrenchment of constitu-
tional rights has been settled once judicial review is accepted, but this is
not so. A constitution can include both judicial review and legislative
supremacy as in the United Kingdom. Even its Human Rights Act of 1998
is formulated very carefully as an Act to give further effect to rights and
freedoms in order to preserve the constitutional supremacy of the legis-
lature. And Section 33 of the Canadian Charter of Rights and Freedoms
empowers the legislature to override a judgment of unconstitutionality by
reaffirming its legislative act. Because entrenchment in the relevant
sense refers to some limitation on the legislative power to amend or over-
ride a right-conferring clause in a constitution, the question of whether
constitutionally recognized human rights ought to be entrenched remains
open.
One strong reason to entrench constitutional rights is to balance the
executive, legislative, and judicial powers. The most obvious, but not the
only, reason for including human rights in a written constitution is to pro-
tect individuals from mistreatment by governmental officials. Tradition-
ally, the best protection against the abuse of governmental power has
been thought to be the division of powers in a legal system with checks
and balances. In creating the proper balance, one must consider the rela-
tive threat to human rights posed by each branch of the legal system.
Historically the greatest threat has come from administrative actions of
the executive, especially the police, military, and paramilitary forces, and
the first line of defense has been the legislature. Unfortunately, legisla-
tures have often failed to restrain administrative violations of human
rights and have even authorized such actions. Judicial review is almost
powerless to protect human rights in such cases when the constitution
confers legislative supremacy. Therefore, human rights need to be consti-
tutionally entrenched in order to strengthen the power of the judiciary in
the face of the legislature to provide the optimum balance between the
executive, legislative, and judicial powers.
However, this form of protection brings with it another danger.
The stronger the entrenchment of human rights is the greater is the
inflexibility of constitutional law. This might be an advantage were the
entrenched rights wisely selected and ideally defined, but Jeremy
Waldron reminds us that this may not be the case. Those entrusted
with writing a constitution or citizens satisfied with their existing consti-
tutional document ought not to ignore the disagreements about human
rights that persist unresolved among philosophers and jurists or to forget
the heated political debates about vehemently asserted or denied right in
their nation-states. Those who think it possible that they are mistaken
should be less inclined to cast their conclusions in stone, and more open
to the possibility that debate among their fellow citizens will from time
to time produce conclusions that are better than theirs.8 Hence, Waldron
criticizes the entrenchment of human rights because it makes it more
difficult for the democratic processes to correct moral prejudices and
unjustified conclusions about rights written into constitutional law.
Waldron is surely correct that there is a price to be paid for the
entrenchment of human rights in a written constitution. But is this price
unacceptable? I believe that in most nation-states the threat to human
rights is great enough to justify their entrenchment. However, they ought
not to be so firmly entrenched that established constitutional rights
cannot in practice be redefined and new human rights recognized or old
constitutional rights eliminated in the light of the experience of a national
legal system. It may well be that the United States Constitution makes
amendment so difficult that democratic moral reform is in practice almost
never possible. Because it is so difficult to get a two-thirds vote in both
houses of Congress and ratification by three-fourths of the states for any
proposed amendment, constitutional change takes place in the United
States primarily by decisions of the Supreme Court, a process still tied to
the text of the constitution.
However, it is easier to amend the constitutions of some other
nation-states. For example, the constitution of Japan can be amended by
a two-thirds vote of the members of each house of the Diet together with
a majority of the votes in a special referendum submitted to the people.
It requires only a majority vote in both houses of the Oireachtas and a
majority vote in a referendum to amend the constitution of Ireland. And
the Basic Law of Germany can be amended by a two-thirds vote in the
Bundestag and a two-thirds vote in the Bundesrat without any refer-
endum.
Finally, Section 33 of the Canadian Charter of Rights and Freedoms of
1982 permits Parliament or a provincial legislature to declare that a legis-
lative provision shall operate notwithstanding a violation of specified con-
stitutional rights. However, this override clause is limited in several ways.
Several rights are exempted and cannot be overridden. Any such declara-
tion ceases to have effect after five years, although it may be renewed.
And this clause cannot be applied retroactively.9 Sharpe describes the
impact of this clause as follows:
Despite this highly deferential judicial approach, with the exception of Que-
becs sign law, . . . there has been no rush by Parliament or the provinces to
resort to the override power. . . . Perhaps the most significant constraint on use
of the clause is political: as resort to the override provision is bound to be con-
troversial, few Governments will risk the political price that might have to be
paid.10
This shows that even weakly entrenched constitutional rights can be

secure in a society with a culture of respect for human rights.
The most common objection to the entrenchment of human rights in
constitutional law is that this is undemocratic:
As suggested earlier, the cornerstone of objections based on democratic theory

is that an entrenched bill of rights places power in the hands of an unelected,
unaccountable, unrepresentative and elite group of people (i.e., judges), who
are empowered to overturn Acts of Parliament, which reflect the values deter-
mined by the duly elected representatives of the people, to the extent that any
inconsistency with the bill of rights is identified by the judge.11
Unfortunately, experience has shown that even democratically elected

legislatures can and sometimes do violate the human rights of those sub-
ject to its statutes.
Jeremy Waldron is well aware of this sad fact, but insists that it is no
reason to entrench constitutional rights:
American-style judicial review is often defended by pointing to the possibility

that democratic majoritarian procedures may yield unjust or tyrannical out-
comes. And so they may. But so may any procedure that purports to solve the
problem of social choice in the face of disagreements about what counts as
injustice or what counts as tyranny. The rule that the Supreme Court should
make the final decision (by majority voting among its members) on issues of
fundamental rights is just such a procedural rule. It too may (and sometimes
has) yielded egregiously unjust decisions.12
This is true, but Waldron ignores the need for the division of powers and
a constitutional system of checks and balances in order to restrain the
abuse of governmental power. No one is suggesting a constitution that
confers all the powers concerning human rights upon the judicial branch
of government. The legislature should have the power to enact statutes to
implement constitutional rights, and the executive must by necessity have
the power to administer any such implementation. When one recognizes
that of these three branches of government the judiciary poses the least
threat to human rights and that the legislature alone is not a sufficient
guarantee of their exercise or enjoyment, it is reasonable to conclude that
human rights ought to be entrenched in order to provide the most desir-
able balance between the legislature and the courts.
One could advocate the entrenchment of human rights in a written
constitution in a democratic manner. For example, although the Irish
Constitution cannot be amended simply by the legislature acting alone, it
can be amended by the normal legislative procedure followed by a pop-
ular referendum. However, this method of entrenching constitutional
rights is probably not strong enough to protect human rights in
nation-states that lack a widespread and deep respect for them. Daphne
Barak-Erez suggests that
The question is not how judicial review can avoid obstructing the will of the
majority but rather why it is justified in doing so. The answer to this question
derives from the recognition of human rights as a moral value, deserving of
protection. The democratic rule of the people is a highly regarded value, but the
rights of the individual are also highly regarded, and not of lesser importance.13
Why might any undemocratic entrenchment of human rights be thought

objectionable? One justification of majoritarian democratic procedures is
that they are more likely than any alternative political procedures to sus-
tain and contribute to the value of human lives. But as Barak-Erez reminds
us, the protection of human rights is also valuable because their violation
severely harms human beings. Therefore, some moderate limitation
upon democracy is justified in order to balance one set of values against
the other.
I doubt that Jeremy Waldron would be satisfied with my proposal to
limit the protection of democratic political rights in the hope of enhancing
the protection of other human rights:
This attitude of mistrust of ones fellow citizens does not sit particularly well
with the aura of respect for their autonomy and responsibility that is conveyed
by the substance of the rights that are being entrenched in this way. The sub-
stantive importance of a given right may well be based on the view of the
individual person as essentially a thinking agent, endowed with an ability to
deliberate morally and to transcend a preoccupation with her own particular or
sectional interests.14
In short, there is a moral contradiction in my attempt to justify the sacri-

fice of some human rights by an appeal to other human rights because
this fails to respect the aspects of human nature, such as rationality and a
concern for others, that qualify human beings for the possession of human
rights:
If we are going to defend the idea of an entrenched Bill of Rights put effectively
beyond revision by anyone other than the judges, we should try and think what
we might say to some public-spirited citizen who wishes to launch a campaign
to lobby her MP on some issue of rights about which she feels strongly and on
which she has done her best to arrive at a considered and impartial view. . . . In
defending a Bill of Rights, we have to imagine ourselves saying to her: You may
write to the newspaper and get up a petition and organize a pressure group to
lobby Parliament. But even if you succeed, beyond your wildest dreams, and
orchestrate the support of a large number of like-minded men and women, and
manage to prevail in the legislature, your measure may be challenged and
struck down because your view of what rights we have does not accord with
the judges view. When their votes differ from yours, theirs are the votes that
will prevail.15
Presumably, this is to say to ones fellow citizens that when human rights
are at issue, they ought not to have any effective voice in their interpreta-
tion or implementation. And this is an unjustified affront to the human
dignity upon which human rights are based.
But does entrusting the interpretation and implementation of human
rights to an unfettered legislature give all or even most of ones fellow
citizens an effective voice in deciding human rights issues? Mac Darrow
and Philip Alston remind us that legislatures protect only the loudest and
most powerful voices and that many important causes that are not vote
winners are neglected in practical democratic politics.16 Recall also that

human rights are rights of individual persons. What will Waldron say to
those individuals whose views about human rights are not effectively rep-
resented in the legislature and especially those individual human beings
whose rights are violated by majoritarian legislation? I am not advocating
the complete abandonment of political democracy. I am proposing mul-
tiple venues for deliberation concerning human rights, both legislative
and judicial, in order that an individual whose vote is powerless to affect
legislation in the slightest degree can, if that person believes that her or
his human rights are violated, appeal to the courts where her or his voice
may at least be heard even if it does not inevitably prevail.
Everything considered, I believe that human rights ought to be
entrenched in written constitutions firmly enough to give reliable protec-
tion under normal circumstances, but not so inflexibly that constitutional
rights cannot be modified to apply to changing circumstances or by
requiring amendment procedures that unnecessarily replace democratic
political procedures. Presumably different methods of entrenchment will
be best suited to meet the various conditions of different societies. Ideally
there should be stable democratic institutions, an established tradition of
judicial review, and a robust human rights culture. Then I would think
that amendment of the constitution should be possible by the normal
legislative action approved by a popular referendum. But if any of the
above conditions is lacking or weak, the threat to human rights will prob-
ably be greater and a stronger entrenchment will be needed. One might,
for example, require a two-thirds vote in the legislature reaffirmed after
at least one year followed by a popular referendum. No doubt other forms
of entrenchment will be more appropriate to legal systems with which I
am unfamiliar. On this score, experts in constitutional law can give better
advice than I. However, I can and do advocate amendment procedures
designed to meet the kinds and degrees of threat to constitutionally rec-
ognized human rights with the least possible abridgement of democratic
institutions.
3. RECOGNITION AS HUMAN RIGHTS?
Ought the human rights recognized in a written constitution to be recog-

nized as human rights? That is, should they have both the status of con-
stitutional rights in a national legal system and the status of moral or
international human rights? A constitution can explicitly recognize some
of the rights it confers by using the label human rights or some cognate
term. For example Section 8 of the Constitution of Latvia is entitled
Fundamental Human Rights, and its introductory paragraph reads: The
State shall recognize and protect fundamental human rights in accor-
dance with this Constitution, laws and international agreements binding
upon Latvia. Similarly, Article 11 in the Japanese bill of rights asserts:
The people shall not be prevented from enjoying any of the fundamental
human rights. These fundamental human rights guaranteed to the people
by this Constitution shall be conferred upon the people of this and future
generations as eternal and inviolate rights. Thus, these and many other
written constitutions explicitly recognize human rights as human rights.
Several other constitutions implicitly recognize them as human rights
by the language they use to describe them. For example, Article 5 of the
Constitution of Chile reads in part: The exercise of sovereignty recog-
nizes as a limitation the respect of essential rights emanating from human
nature. The organs of the State must respect and promote such rights,
guaranteed by this Constitution, as well as by the international treaties
that are ratified by Chile and that are in force. By implication, the words
emanating from human nature recognize the constitutional rights spec-
ified in the following articles as moral human rights, and the words as
well as by the international treaties that are ratified by Chile and that are
in force as international human rights.
However, it is possible for a written constitution to recognize human
rights without recognizing them as human rights. Several of the rights
included in the United States Bill of Rights are also included among the
human rights under international human rights law, and the rights to life,
liberty, and property guaranteed by the Fourteenth Amendment are the
three fundamental individual rights of traditional Lockean natural rights
theory, one of the ancestors of the contemporary idea of human rights.
Still, one can ask whether the United States Constitution ought to recog-
nize these constitutional rights as human rights. This could be done either
by an explicit constitutional amendment or by authoritative judicial
interpretation, especially of the Supreme Court, to that effect.17
Whether our constitution and other similar municipal constitutions
ought to recognize the constitutional rights of individual persons
as human rights probably depends upon whether they recognize them as
moral human rights or international human rights. Let us consider these
two options in turn. One reason to recognize constitutional rights
as moral human rights is that this would make explicit their relevance to
specifying the moral limits to the legal authority of public officials. This
might well enhance the moral respect in which these officials are held if,
but only if, they in turn respect the human rights of those subject to their
authority.
Another reason to recognize the constitutional rights of individuals as
moral human rights is that this would imply their universal applicability.
Because basal moral human rights are moral rights one possesses simply as
a human being, they are possessed by all normal adult human beings.
Recognizing this universality would imply that the constitutional rights
conferred upon the citizens of the nation-state are possessed also by all
those subject to its national legal system, even illegal immigrants and sus-
pected terrorists held in places such as Guatanamo Bay. This would tend
to prevent the grave injustices often associated with the discriminatory
treatment of those who are considered outsiders and therefore not

deserving of equal treatment under the law.
However, the primary reason to recognize the constitutional rights of
individual persons as moral human rights is that this would render moral
considerations legally relevant to their interpretation. This would make it
possible for the courts to introduce moral reforms into the legal system
whenever this becomes necessary by changing circumstances and politi-
cally possible because of a more enlightened public conscience. To be
sure, moral reform might be accomplished either by formal amendments
to the text of the constitution or by new legislation to implement old
constitutional rights. But the more difficult these processes are to accom-
plish in any political system, the more need there is to introduce a moral
dimension into the interpretation of the canonical formulae that specify
constitutional rights and the statutes that implement them in the legal
system.
Unfortunately the explicit recognition of a moral dimension in consti-
tutional rights comes at a price. First, it threatens the loss of legal cer-
tainty. Jeremy Waldron is surely correct when he rejects the assumption
that the appeal to moral rights provides a simple and conclusive basis for
moral reasoning. The sad fact is, however, that this simplicity and moral
certainty is simply unavailable. No one now believes that the truth about
rights is self-evident or that, if two people disagree about rights, one of
them at least must be either corrupt or morally blind.18 As a consequence,
if constitutional rights are recognized as moral human rights, judges will
have no firm basis upon which to ground either their interpretations of
their defining content or their implications for particular cases before the
courts. This will render judicial decisions unpredictable and uncertain.
And to impose upon those subject to the law legal consequences that they
could not reasonably expect is necessarily unjust.
Second, lacking any generally accepted moral basis for the interpreta-
tion and application of constitutional rights, judges might be tempted to
impose their subjective personal values upon those subject to the courts.
This replaces the rule of law with the rule of men and is especially dan-
gerous in a pluralistic society in which judges typically belong to the more
privileged groups. Hence, to recognize constitutional rights as moral
human rights may well undermine the fundamental moral right to the
equal protection of the law.
A third potential defect of any legal system that recognizes constitu-
tional rights as moral human rights is that it invites the use of religious
dogmas in the interpretation and application of individual rights. Thus, in
Ryan v. Attorney General, a decision subsequently reaffirmed by the Irish
Supreme Court, Justice Kenny wrote: I think that the personal rights
which may be invoked to invalidate legislation are not confined to those
specified in Article 40 but include all those rights which result from the
Christian and democratic nature of the state.19 And the Constitution of
Iran provides more generally that All civil, penal, financial, economic,
administrative, cultural, military, political and other laws and regulations

must be based on Islamic criteria.20 Any such appeal to the tenets of one
particular religion is doubly defective from a moral point of view. Given
the disagreements between the followers of each organized religion, it
reintroduces the lack of legal certainty and the judicial application of sub-
jective judgments under the guise of what present themselves as objective
standards. Moreover, it violates the moral right to religious freedom of all
those subjects who do not accept the religious dogmas used in the inter-
pretation and application of their constitutional rights. To my mind, these
defects are so serious that they far outweigh the advantages of recognizing
the constitutional rights of individuals as moral human rights.
What, then, of the other option? Ought a constitution to recognize
human rights as human rights in international law? The established legal
sources of international human rights presuppose the existence of moral
human rights. Therefore, the constitutional recognition of human rights as
international human rights would tend to preserve their moral dimension
but introduce it indirectly filtered through the relevant international legal
documents. This would be safer than recognizing moral human rights
directly because it would deny unlimited discretion to those who apply
these constitutional human rights. Also by appealing to the conscience of
mankind, it would introduce a demand for universality incompatible
with the use of the dogmas of any religion that ascribes an inferior status
to infidels in the interpretation of the moral dimension of constitutional
human rights.
I am suggesting that there would be advantages in incorporating moral
human rights in constitutional law indirectly via their incorporation in
international law. But Gerald L. Neuman has identified a potentially
serious disadvantage in any such dual positivization:
The international human rights regime and the national constitutional regimes
each maintains legal claims to obedience, and each asserts authority to expound
the fundamental rights of individuals. Their elaborations of those rights, how-
ever, may diverge because of their separate bases of legitimacy and the poten-
tially contrary interpretive influences exerted by the three aspects. The result
may be dissonance in the articulation of fundamental values, or unresolvable
conflict between norms that deny each others validity.21
These three aspects of fundamental rights are the consensual, the suprar-
positive, and the institutional.
Neuman defines these three aspects as follows:
The consensual aspect. Positive fundamental rights normally derive their posi-
tive force from some political act that expresses the consent of relevant politi-
cal actors, or of peoples.22
The suprapositive aspect. All constitutional norms and treaty norms claim con-
sensual bases, but fundamental rights norms have another aspect. Positive fun-
damental rights embodied in a legal system are often conceived as reflections
of nonlegal principles that have normative force independent of their embodi-

ments in law, or even superior to the positive legal system (hence the adjective
suprapositive).23
The institutional aspect. Positive fundamental rights are also legal rules that may
be designed in a manner that facilitates compliance by the holders of the cor-
responding duties and that facilitates effective oversight of compliance by the
organs that have oversight responsibilities.24
Conflicting interpretations of constitutional rights can arise within each

of these aspects and between them.
For the option of incorporating moral human rights indirectly via inter-
national human rights, it is the suprapositive aspect that is most relevant.
Neuman describes the potential dissonance in these words.
A national constitutional right and a similarly phrased international human
right may rest on entirely different kinds of normative foundations, or they may
simply diverge in their conceptions of the right. For example, particular
national constitutional provisions may reflect a specific religious tradition or a
specific secular philosophy of freedom, or they may bracket internal disagree-
ment on foundational issues and express value commitments grounded on
national experience. The global human rights regime has sought to bridge over
widely varying value systems (including Marxism) and still articulate common
aspirations.25
Where suprapositive norms assist (expressly or implicitly) in the interpretation

of international human rights norms, they may differ from the suprapositive
conceptions employed at the national level in a particular constitutional sys-
tem. . . . The arguments of each are potentially persuasive critiques of the posi-
tion of the other. Conscientious dialogue may bring about normative agreement.
But given the range of compatible philosophies that the human rights regime
attempts to embrace, the two sides may rest on irreconcilable foundations, and
the normative disagreements may ultimately be unresolvable. That may per-
suade one side to drop its insistence on enforcing its own view, or it might lead
to a legal impasse.26
But any such normative disagreement that might lead to a legal impasse
might take place at two very different levels.
In this passage, Neuman has in mind a normative disagreement between
the institutions of international law and the government of some
nation-state. This is not a merely potential danger. Recent history has
demonstrated both its frequency and its tendency to lead to political con-
flict and even terrorism or military action. But impasses of this sort are
seldom if ever the result of incorporating international human rights into
constitutional law. They are the product of an independent normative
disagreement underlying and presupposed by the two legal systems, inter-
national and national.
More relevant to the option of recognizing international human rights
in constitutional law is whether this would result in unresolvable conflicts
in the interpretation of constitutional rights within a national legal system.
I believe that although the recognition of international human rights in

constitutional law would often suggest conflicting interpretations of con-
stitutional rights, these normative disagreements would almost never lead
to a legal impasse. Neuman himself describes a number of methods for
reducing dissonance between international human rights and constitu-
tional rights.27 And if dissonance remains regarding the interpretation of
some constitutional right, although it will persist in national politics, it
will be resolved one way or another when this right is at issue because
national courts are normally required to decide cases over which they
have jurisdiction.
In fact, any dissonance between the normative presuppositions of
international human rights and constitutional rights will often be more of
an opportunity than a danger. As Neuman observes:
There remains the strategy of examining the reasoning in international elabora-

tions of human rights for the functional or normative insight that they contain.
United States courts may benefit from the practical experience of other tribu-
nals that have already confronted human rights violations newly occurring, or
newly perceived in the United States. And to the extent that constitutional
adjudication in the United States has any suprapositive component, and does
not consist simply in replicating governmental usages of the eighteenth cen-
tury, the normative arguments of international human rights tribunals are at
least potentially relevant.28
Thus, recognizing international human rights in constitutional law would

enable officials in national legal systems to learn from the experiences and
wisdom of those who formulated the international human rights declara-
tions and conventions as well as the reasoning of international courts in
human rights cases.
This is not to say that there would be no serious disadvantages in rec-
ognizing international human rights as constitutional rights. International
law will reflect the conditions and interests of many foreign nations, con-
ditions and interests that may be quite different from those of the state to
which the constitution applies. This danger can be reduced, although not
entirely eliminated, because international law would become relevant
only to the interpretation and application of the constitutional human
rights recognized in that legal system. Therefore, a legislature could tailor
its implementing statutes to the most pressing needs of the nation, a na-
tional court could distinguish the case under consideration from many
cases decided by international courts, and administrators could adjust
their policies of applying constitutionally recognized human rights to fit
local circumstances.
Also, because international human rights declarations and conventions
are the product of political negotiations between nation-states, either
their content is defined in terms of the lowest common denominator
together with generous provisions for derogation and limitation to preserve
state sovereignty or they are defined in terms of the social institutions and
cultural values of the most powerful nations so that they fail to apply
equitably to some less powerful societies. The former alternative suggests
to me that constitutional rights that protect moral human rights ought
not to be recognized as international human rights in any nation-state
that already has a strong culture of respect for human rights. These
nation-states will probably define constitutional rights to protect moral
human rights relatively broadly and their legal officials will interpret
them in ways that will provide stronger and more reliable protection for
moral human rights. But nations that lack a strong tradition of respect for
moral human rights probably ought to recognize some, but not all, inter-
national human rights as such in their written constitutions. This will tend
both to create a culture of respect for human rights and to reinforce that
respect by strengthening the force of international human rights law
within their national legal systems. However, the latter alternative sug-
gests that it would be a mistake to give constitutional recognition to any
of the international human rights that are defined in terms inappropriate
to the social institutions and special circumstances of the nation-state.
This does not imply that a national legal system should support unjust
social institutions. What it does mean is that any constitutional rights rec-
ognized in order to protect moral human rights need to be defined in
terms that apply to the social institutions of the society in such a way that
they ensure that these institutions will secure the human rights of the
individuals affected by them or that they will require the moral reform of
these institutions.
4. CONCLUSION
At the beginning of this chapter I announced The subject of this chapter

will be the desirability of recognizing human rights in a written constitu-
tion. However, the previous section reminds one that this formulation is
ambiguous, for a constitution might recognize moral human rights or
international human rights or both. Moreover, some written constitutions
like that of the United States recognize constitutional rights analogous to
human rights, such as the rights to life, liberty, and property, but not as
human rights. It is misleading to describe these as human rights, strictly
speaking, because their content is somewhat different from the moral or
international human rights with the same names. Also, they are not rights
of all human beings simply as human beings but only legal rights of those
persons subject to the legal system of the nation-state that had adopted
this or that particular constitution. Let us, therefore, reformulate the sub-
ject of this chapter as the moral justifiability of explicitly recognizing
human rights or analogous rights in a written constitution.
I have argued that most national legal systems ought to recognize some
but not all human rights or analogous rights in a written constitution. The
most obvious advantage of doing so is that this empowers the courts to
declare statutes inconsistent with human rights unconstitutional.

Although this would render such statutes null and void only in constitu-
tions that entrench rights, it would to some extent restrain such legisla-
tion through political pressure even in municipal legal systems that do not
entrench constitutional rights. However, the most important reason to
write human rights or analogous rights into a constitution is that this is a
relatively effective way to create and sustain a respect for human rights in
the officials of a nation-state and more generally in its population.
I have also argued that constitutional rights that protect moral or inter-
national human rights ought to be entrenched so that they cannot be
eliminated or unduly limited merely by the usual legislative procedures.
Although the primary threat to human rights arises from the abuse of
power by administrative officials and the primary defense against the
abuse of their power is a legislature that respects the fundamental rights
of individual human beings, legislatures do not always enact statutes to
restrain the abuse of power by the executive branch of government and
sometimes even authorize it. Hence, a constitution needs to entrench
constitutional rights in order to strengthen the legal power of the judicial
branch of government to create a balance of the executive, legislative, and
judicial powers better able to secure the human rights of all those subject
to its jurisdiction.
It does not follow, however, that a written constitution should recog-
nize human rights or analogous individual rights as human rights. To rec-
ognize them as natural rights or moral human rights threatens either to
undermine legal certainty and empower judges to decide cases by appeal
to their subjective moral values or, on the other hand, to substitute reli-
gious dogmas or conventional moral codes for an objective consideration
of genuine moral values. Recognizing constitutional rights as human rights
in international law is less dangerous because the appeal to moral human
rights is limited by international declarations and conventions together
with the opinions of international courts that have decided human rights
cases. My conclusion is that nation-states without any long and robust
tradition of respect for human rights should recognize some international
human rights as such in their written constitutions, but that nation-states
that have a vigorous respect for individual rights will probably be able to
recognize and implement constitutional rights that offer a stronger and
more reliable protection for moral human rights by recognizing analogous
rights.
None of the reasons for recognizing and entrenching human rights or
analogous individual rights in a written constitution entails or even sug-
gests that they ought not also to be recognized in judicial decisions, legis-
lation, and treaties. As Darrow and Alston observe:
In the first place, it is apparent that bills of rights cannot be viewed as a separate
or self-sufficient dimension of a states constitutional apparatus. Rather, they
must be seen as a central part of an overall constitutional process, looked at in
its political, social, cultural and (importantly) institutional dimensions. . . . An

exploration of text, in the absence of any deeper exploration or analysis of the
prevailing system of government, of the role played by the legal system, and of
the de facto significance attributed to constitutional norms, inevitably provides
only a very limited, detached and potentially misleading view of the overall
situation in any given country.29
Only if constitutional rights designed to protect moral human rights are

also implemented by legislation, recognized by judicial decisions, enforced
by the police, and respected by administrative agencies will their recogni-
tion in a written constitution be anything more than an empty gesture.
Moreover some derived human rights applicable to changing circum-
stances might be more appropriately recognized by the legislature or the
courts.
9
Judicial Recognition of Human Rights
Just as the United States provides a clear and influential example of a

national legal system that entrenches rights in a written constitution, so
the United Kingdom serves as the best example of a legal system with an
unwritten constitution that nevertheless protects the fundamental rights
of individuals very effectively. To be sure, this protection can be traced
back in part to documents such as the Magna Carta and the Bill of Rights
of 1689. But these written texts have contemporary legal authority only
as they are recognized and applied in judicial decisions. Hence, human
rights are recognized in the United Kingdom primarily by the common
law, the rules and principles that derive their legal authority from ancient
usages and customs and the judgments of the courts recognizing the
unwritten law of England. Because one of these principles is the su-
premacy of Parliament, common law rights are sometimes supplemented
and implemented by statutes, and the courts lack the authority to declare
statutes that arguably infringe human rights unconstitutional. Still, it is
the courts that play the central role in protecting human rights in the
United Kingdom. There are many jurists who argue that this kind of
common law recognition is preferable to the recognition of individual
rights in a written constitution.
1. ADVANTAGES
There are several important advantages in a national legal system with an

unwritten constitution that recognizes human rights primarily by judicial
decisions in the common law instead of by recognition in a written con-
stitution.
1. The common law is more flexible than a written constitution, espe-
cially one that entrenches constitutional rights. This argument appeared in
the debate over whether to introduce a constitutional bill of rights into
the legal system of Israel, which had adopted the English common law.
The development of an unwritten constitution in Israel raised the ques-
tion whether a written constitution was really necessary. It was even pos-
sible to identify some seeming advantages of an unwritten constitutionit
145
is not imprisoned by textual definitions and therefore can preserve the

spirit of constitutional rights in changing times.1 Because the conditions
of human life and social circumstances are constantly changing, it is clearly
desirable that any national legal system be able to reinterpret and redefine
the legal rights that serve to protect moral human rights. This can be
accomplished more easily by the common law than by courts bound by
the canonical formulations in the text of a written constitution.
To be sure, any written constitution will provide for change by means
of formal amendment. But when constitutional rights are entrenched, as
is usually the case, then amending the text is often politically difficult as
the experience of the United States demonstrates. Moreover, any amend-
ment will normally be formulated in very general terms that may have
very undesirable or unjust consequences when applied to unanticipated
cases. Better the gradual piecemeal modification of rights by a series of
judicial decisions where each small step can be reconsidered and, if
necessary corrected, by subsequent judicial decisions.
2. Another advantage of recognizing human rights primarily by means
of the common law rather than by a written constitution entrenching
rights is that judicial decisions recognize more determinate legal rights
because they define them in specific terms applied to concrete cases
rather than in the abstract language of a constitutional bill of rights. The
debate over whether to incorporate the European Convention for the
Protection of Human Rights and Fundamental Freedoms into United
Kingdom law raised an issue even more applicable to the comparative
merits of the common law and a written constitution: Yet another issue
to be considered with regard to incorporation of the Convention is
whether it would introduce an unacceptable level of uncertainty into the
law of the United Kingdom in view of the broad general language of the
Conventions guarantees.2 Legal uncertainty is undesirable because it
invites frivolous lawsuits on the off chance of a desired outcome, confers
undue power upon judges to impose arbitrarily their personal values upon
those who appear before their courts, and makes it difficult for those sub-
ject to the law to plan their affairs and act with reasonable expectations
concerning their potential legal liability for their conduct.
3. Another advantage of recognizing human rights in a legal system
with an unwritten constitution is that this preserves the supremacy of the
legislature. Those opposed to adopting a bill of rights in the United King-
dom typically argued that Parliament should retain its power to make any
change whatsoever in the law by a majority vote and should not be
restricted by entrenched constitutional provisions.3 Lloyd of Hampstead
represents this view most emphatically:
My final point is that I do not relish the prospect of the judiciary being invested
with the ultimate power to declare invalid the laws emanating from the will of
Parliament on any subject at all and certainly not on human rights. Do we
really desire to confer on our judges the power to declare the Race Relations
Judicial Recognition of Human Rights 147
Act void, wholly or in part, because for instance it is held to infringe the funda-
mental right of free speech? Or to hold that the Public Order Act violates the
constitutional protection of the laws in favour of free speech or free assembly?
Or that the supreme penalty of capital punishment is or is not constitutionally
permissible by reason of judicial interpretation of a provision in the Bill of
Rights?4
In a footnote he explains that this would be both inexpedient and diffi-

cult to reconcile with democracy. It would be inexpedient because cases
involving human rights raise issues of public policy that judges are not
competent to decide. It would be undemocratic because it would confer
upon judges, who are normally not elected and not subject to recall, the
power to overrule the will of the people enacted by a majority of those
they have elected to represent them in the legislature.
Others might add that the supremacy of the legislature is essential to
preserving the rule of law and that the rule of law has historically proven to
be the most reliable protection for the fundamental rights of the individual.
A. V. Dicey suggests the way in which liberty is implicit in the rule of law:
It means, in the first place, the absolute supremacy or predominance of regular

law as opposed to the influence of arbitrary power, and excludes the existence
of arbitrariness, of prerogative, or even of wide discretionary authority on the
part of the government. Englishmen are ruled by the law, and by the law alone;
a man may with us be punished for a breach of law, but he can be punished for
nothing else.5
Thus, one advantage of an unwritten constitution over one that entrenches

rights in a written document is allegedly that it retains the supremacy of
the legislature and thereby preserves both full democracy and the rule of
law, two essential protections of human rights.
4. A national legal system that recognizes rights primarily by means of
the common law preserves the proper role of judges. Lloyd of Hampstead
explains this advantage clearly and in some detail. He observes that the
introduction of a constitutional bill of rights confers upon judges the task
of determining the operative values of society and invalidating legislation
that in their opinion violates those values. He then argues:
The judges are not particularly well-equipped to arrive at fundamental

policy decisions of this character. Their background and training naturally
tend to render them cautious and timid rather than imaginative and even at
the present day they tend to lead rather sheltered lives which do not bring
them into close contact with the feelings and attitudes of large sections of
our society. . . .
Judges are appointed because of their known capacity for rigorous
inquiry into disputed sets of facts and for preserving their impartiality in
deciding between conflicting claims of those who appear before them. But
decisions resolving the scope and limits of human values are not such mat-
ters which call for impartial scrutiny as for moral and political convictions.6
In short, one advantage of an unwritten constitution that recognizes

human rights primarily through the common law over a written constitu-
tion that entrenches rights is that it does not require judges to decide
issues of public policy, a task for which the legislature is much better
qualified. It confines judges to the task of deciding how the law applies to
particular cases involving conflicting legal claims, the role for which
judges are trained, selected, and best suited.
5. The common law gives real protection to human rights, not mere
words in a constitutional document that may have little or nothing to do
with the actual functioning of the law. Blackstone explained the importance
of the common law in protecting the fundamental rights of the individual:
In the three preceding articles we have taken a short view of the principal
absolute rights which pertain to every Englishman. But in vain would these
rights be declared, ascertained, and protected by the dead letter of the laws, if
the constitution had provided no other method to secure their actual enjoy-
ment. It has therefore established certain other auxiliary subordinate rights of
the subject, which serve principally as outworks or barriers to protect and
maintain inviolate the three great and primary rights, of personal security,
personal liberty, and private property. These are, 1. The constitution, powers,
and privileges of parliament. . . . 2. The limitation of the kings prerogative. . . .
3. A third subordinate right of every Englishman is that of applying to the
courts of justice for redress of injuries. Since the law is in England the supreme
arbiter of every mans life, liberty, and property, courts of justice must at all
times be open to the subject, and the law be duly administered therein.7
In other words, a national legal system protects human rights only insofar
as these rights have legal force in the everyday functioning of a legal
system, and it is the courts rather than what is written in some constitu-
tional bill of rights that constitutes the real law of any nation-state.
All too often this traditional view of English jurists has been confirmed
in history by the violation of human rights proclaimed in written consti-
tutions. As A. W. Brian Simpson reminds us:
Neither the USA, nor France, appeared, for much of their history, to take their
supposed commitment to liberty particularly seriously. British lawyers tended
to think of a constitution in Blackstonian terms, as comprising the general
arrangements under which a state was in fact governed. Viewed in this light the
connection between the French Declaration and the French constitution in
the Blackstonian sense was, for many periods in French history, tenuous; it was,
for example, wholly ineffective in restraining the excesses of the French revolu-
tion. So far as the USA was concerned the federal constitution, for much of
US history, was nothing to be proud about. It protected slavery, and long con-
tributed virtually nothing to the protection of individual rights. Even after the
Civil War Amendments the American constitution involved gross forms of
institutionalized racial discrimination.8
Thus, both the English theory of the role of the common law in an unwrit-
ten constitution and the failure of the French and American bills of rights
to protect the fundamental rights of individuals seem to indicate that

there is a real advantage in the common law protection of human rights.
2. DISADVANTAGES
On the other hand, there are several serious disadvantages to any national
legal system that recognizes human rights primarily by means of judicial
decisions rather than a written constitution with a bill of rights.
1. The common law tends to lag behind the conscience of mankind as
expressed in the international human rights declarations and conventions.
Because the common law develops the legal traditions of a nation and its
courts are bound by legal precedent, its judicial decisions are often pro-
vincial and provide only an incomplete protection of contemporary
human rights. Even the law of the United Kingdom illustrates this defi-
ciency.
Assuming arguendo that the Convention is a fair representation of the contem-
porary view of appropriate standards, then one may conclude that the deci-
sions of the Courts in cases involving the UK indicate that its law does not
come up to the marks in several respects. At the end of 1981 eight cases against
the UK had been decided, and in seven of these the Court found violations of
the Convention.9
Had the European Convention on Human Rights been incorporated into

a written constitution, the judges would have been bound to apply it to
both administrative acts and legislation in the United Kingdom.
2. In a national legal system without a constitutional bill of rights, the
protection of human rights is weakened by the excessive judicial
restraint of the courts. This was true in Israel, as noted a nation that had
adopted the English common law. The legislative supremacy of the
Knesset (in the absence of a formal constitution of superior normative
status) and its inactivity in the area of individual freedoms, along with
the sporadic manifestations of exaggerated judicial restraint on the part
of the Court itself, have contributed towards the evolution of a defen-
sive shield that is breachable.10 Conversely, the introduction of the
Canadian Charter of Rights and Freedoms resulted in a stronger protec-
tion of human rights in the courts. I would argue that overall, the Char-
ter had had a beneficial impact upon Canadian law and politics.
Fundamental human rights are properly at the forefront of public
debate, and the claims of those often forgotten in the cut and thrust of
day-to-day politics can no longer be ignored.11 Thus, judges in a common
law system tend to refrain from providing as strong a protection of
human rights as judges in a national legal system with a written bill of
rights.
3. The common law in a national legal system with no written consti-
tution that recognizes rights often fails to protect human rights in times
of crisis. In the opinion of Lord Scarman: When times are normal and
fear is not stalking the land, English law sturdily protects the freedom of
the individual and respects human personality. But when times are abnor-
mally alive with fear and prejudice, the common law is at a disadvantage;
it cannot resist the will, however frightened and prejudiced it may be, of
Parliament.12 Lord Scarman pointed to the 1942 case of Liversidge v.
Anderson concerning the secretary of states abuse of his power to detain
persons he had reasonable cause to believe to be members of hostile asso-
ciations. More current examples are the indefinite detention and some-
times deportation from the United Kingdom of persons suspected of
being associated with terrorists in some way.
4. From an international perspective, the greatest disadvantage of the
common law protection of human rights is that it presupposes a strong
tradition of respect for the rights of individuals lacking in many
nation-states. Gideon Hausner reminds us that although the common law
is capable of protecting human rights effectively, it does so in only a few
countries:
Great Britain is a notable example. New Zealand is another. Israel is a third in
this exclusive company. In these countries it falls to the Courts, fortified as they
are by the traditions of the Common law, to be the mainstay of the liberties of
the individual. The English Common law, however, is just like an English oak.
You cannot transplant it to (another) continent and expect it to retain the
tough character which it has in England. It will flourish indeed but it needs
careful tending.13
And where the respect for individual rights is not deeply embedded in the
conscience of the general population, and especially in the legal profes-
sion, the common law will not receive the tending it requires to survive as
a protection of human rights.
3. APPRAISAL ON BALANCE
In order to appraise the common law as an institution to protect human

rights, one must weigh its advantages against its disadvantages. One advan-
tage of the common law over a written constitution with a bill of rights is
that it is more flexible and thus can recognize new rights and redefine old
rights to meet changing circumstances. On the other hand, even in the
United Kingdom, it has lagged behind the conscience of mankind as
expressed in international declarations and conventions. This seems to be
a disadvantage when it comes to the protection of human rights.
A constitutional bill of rights would not be behind the times on the
date when it was adopted by some nation-state, at least if it recognized
the human rights most recently introduced into international law. But if
it entrenched constitutional rights, then it would be less flexible than
the common law and so might gradually lag even further behind the
conscience of mankind. Also, the international human rights documents

are far from perfect, either as declarations of moral human rights or as
instruments to protect them effectively. They probably reflect interna-
tional power politics more than any enlightened conscience of mankind.
The common law influenced by the conscience of a people with a long
tradition of respect for human rights might well be a more accurate
expression of and protection for human rights than a written constitu-
tional bill of rights. This suggests that although the common law is a better
instrument for protecting human rights in a democratic society with a
wide and deep respect for human rights, it will be much less effective in
many other societies.
Another alleged advantage of the common law is that it preserves the
proper role of judges; an alleged disadvantage is that in a national legal
system without a constitutional bill of rights, judges practice excessive
judicial restraint. Whether these are real or merely alleged advantages or
disadvantages depends upon how one defines the proper role of judges.
Advocates of the common law argue that judges ought to apply the law
but not invalidate statutes that in their personal opinions violate the basic
values of the society. Judges are trained and selected for performing the
former task but unqualified to determine what the values of a society are
or ought to be. Advocates of a constitutional bill of rights respond that in
order to apply the law a judge must interpret it, whether it is found in an
act of the legislature or in judicial precedents, and that to interpret the
law one must understand its purpose, that is, the social values it is meant
to serve. Hence the role of the judge must include some consideration of
values. Moreover, if the values at stake are human rights, judges will be
better able to protect them if these rights are declared and defined in a
written constitution than if there is no explicit legal source to which
judges can appeal. In my estimation, although there are disadvantages in
empowering judges to declare statutes unconstitutional, in societies
where human rights are most seriously threatened, they need a stronger
protection than would be provided by the common law.
Another advantage of protecting human rights primarily by the
common law rather than by a written constitution with entrenched rights
is that this preserves the supremacy of the legislature and thereby main-
tains full democracy. Disadvantages are that this gives the courts no power
to protect rights against the legislature in times of emergency or to inval-
idate statutes that infringe human rights in normal times. Dicey suggests
that although a right is capable of being suspended or taken away, where
it is inherent in the ordinary law of the land, the common law, the right
can hardly be destroyed without a thorough revolution in the institu-
tions and manners of the nation.14 Dicey probably underestimates the
political forces inimical to human rights.
How one should balance these considerations varies from one nation-
state to another. Which human rights need protection and how they can
be best protected depends upon the social and political forces that
threaten them. In countries with a strong tradition of respect for the

fundamental rights of individuals, the legislature will tend to refrain from
enacting statutes that violate them and will even be proactive in imple-
menting the rights implicit in the common law. Unfortunately, in coun-
tries with undemocratic regimes or without a deep public respect for
individual rights, the legislature will often enact statutes that unjustifiably
deny human rights and almost never act to implement them adequately.
Moreover, even in countries like the United Kingdom and the United
States, where the public does care deeply about individual rights, the leg-
islature often fails to restrain and sometimes even authorizes administra-
tive acts that violate human rights. Precisely how one should weigh the
value of full democracy against the values of human rights will vary from
one nation-state to another, but where the legislature has proven to be a
serious threat to individual rights, the common law alone will be unable
to protect human rights adequately.
For any national legal system that does not already have a flourishing
common law practice, the most serious disadvantage of relying on the
common law to protect human rights is that it is very difficult to trans-
plant this very English practice to alien environments. It is not merely that
many legal systems have adopted practices derived from the Napoleonic
Code and the civil law tradition. The common law derives its authority
from the ancient usages and legal history of a people, and therefore can
protect human rights only when entrenched in the traditions and ethos of
the general population, and especially the legal profession, is a deep
respect for human rights. Still, where this respect is lacking, a written
constitution that formally entrenches individual rights may well also be
ineffective in protecting them in practice. The best that can be said for a
formal bill of rights is that it can educate the public about the nature and
importance of human rights so that it may be a useful step in creating or
strengthening the public respect necessary to give them security within
the legal system.
There remain two alleged advantages of the common law over a written
bill of rights that one must weigh in the balance. The judicial decisions
that constitute the common law recognize more determinate legal rights
because they define them in specific terms applicable to particular cases,
and the common law gives real protection to human rights, not empty
words in a written document that may have very little to do with the
actual functioning of the legal system. If one must choose between paper
rights in a written constitution and real rights applied in the courts, then
clearly one would choose to protect human rights by adopting the English
system of an unwritten constitution and the common law. But given the
difficulty of transplanting the common law to alien cultures and the
imperfect record of even the United Kingdom in protecting human rights,
one would prefer not to have to choose between a written bill of rights
and the common law. Ideally, one would try to combine the advantages of
the common law and a written constitution that recognizes entrenched
rights. Would a national legal system in which judicial decisions supple-

ment the rights recognized in a written constitution be preferable to
either one that protects them primarily by the common law or primarily
by a written bill of rights?
The qualification primarily is essential in understanding the options
under consideration. Although the United Kingdom is usually said to have
an unwritten constitution, Dicey reminds us that it is partly unwritten
and partly written.15 For example, it includes the Magna Carta and the
Bill of Rights of 1689. On the other hand, none of those who advocate
incorporating a bill of rights in a written constitution imagine that consti-
tutional rights will not be protected by judicial decisions. They assume,
sometimes too optimistically, that the courts will apply the rights recog-
nized in the constitution to the cases over which they have jurisdiction.
Thus the third option is a national legal system with a written constitu-
tion that recognizes rights but empowers its courts to supplement these
rights.
There are three ways in which judicial decisions might go beyond
merely applying the rights recognized in the text of the constitution. They
might redefine the rights specified in the constitution. They might derive
more specific rights from these previously recognized rights. Or they
might recognize rights that are neither designated in the constitution nor
derived from those enumerated rights. Let us consider the desirability of
each of these three types of judicial supplementation in turn.
4. REDEFINING CONSTITUTIONAL RIGHTS
One way in which judicial decisions can supplement a written constitu-

tion is to redefine rights recognized in the text of that document. For
example, the United States Constitution recognizes the rights to free
speech and freedom of the press in the First Amendment, which reads in
part: Congress shall make no law . . . abridging the freedom of speech, or
of the press. But what is the proper definition of the freedom of speech,
that is, what, if any, are the constitutionally permitted limitations on
speaking whatever one wishes? And are presses free to publish anything
that may sell, even instructions on how to construct bombs to destroy
military facilities? In order to decide cases where the language of the First
Amendment is indeterminate, the courts have gradually redefined the
constitutional rights to free speech and freedom of the press.
In Joseph Burstyn, Inc. v. Wilson the appellant was a corporation engaged
in the business of distributing motion pictures. When its license to exhibit
a film entitled The Miracle was denied pursuant to a New York statute,
it claimed that this statute was an unconstitutional abridgement of its
rights to free speech and a free press.16 The first question that springs
to mind is whether motion pictures are speech or the companies that
produce and distribute them are presses. Justice Clark, in the opinion of
the Supreme Court, argued that they were:
It cannot be doubted that motion pictures are a significant medium for the
communication of ideas. They may affect public attitudes and behavior in a
variety of ways, ranging from direct espousal of a political of social doctrine to
the subtle shaping of thought which characterizes all artistic expression. The
importance of motion pictures as an organ of public opinion is not lessened by
the fact that they are designed to entertain as well as to inform.17
To the objection that the motion picture industry is merely a commercial
enterprise, Justice Clark replied: That books, newspapers, and magazines
are published and sold for profit does not prevent them from being a form
of expression whose liberty is safeguarded by the First Amendment. We
fail to see why operation for profit should have any different effect in the
case of motion pictures.18 Hence, motions pictures are one kind of speech
and motion picture companies are comparable to conventional presses.
However, not all forms of speech are protected by the First Amend-
ment. Libel is clearly speech, but it is not protected by the constitutional
right to free speech. Thus the question remains as to whether motion
pictures are protected speech:
It is further urged that motion pictures possess a greater capacity for evil, par-
ticularly among the youth of a community, than other modes of expression.
Even if one were to accept this hypothesis, it does not follow that motion pic-
tures should be disqualified from First Amendment protection. If there be
capacity for evil it may be relevant in determining the permissible scope of
community control, but it does not authorize substantially unbridled censor-
ship such as we have here.19
Therefore, motion pictures as a rule, but not in every case, are one species
of constitutionally protected free speech.
Probably the best-known limitation on the right to free speech was
introduced into United States constitutional law in Schenck v. United
States. Charles Schenck was convicted under the Espionage Act for par-
ticipating in the printing and distribution of documents urging those sub-
ject to the draft during the First World War to obstruct the recruitment
and conscription of persons for military service. In an opinion of the
Supreme Court upholding the conviction, Justice Holmes argued:
The most stringent protection of free speech would not protect a man in falsely
shouting fire in a theater and causing a panic. It does not even protect a man
from an injunction against uttering words that may have all the effect of
force. . . . The question in every case is whether the words used are used in such
circumstances and are of such a nature as to create a clear and present danger
that they will bring about the substantive evils that Congress has a right to
prevent.20
The clear and present danger doctrine introduced by this judicial decision
has served over the years to define one important limit to the constitu-
tional right to free speech.
The text of the United States Constitution recognizes the rights to the
freedom of speech, [and] of the press. Subsequently these and similar
judicial decisions have interpreted this language and explained what kinds
of expression constitute speech, in the relevant sense, and what forms of
speech are protected by the constitutionally recognized rights. By explain-
ing the language of the Constitution in much more specific terms, they in
effect redefine the rights originally recognized in that document. In doing
so, these judicial decisions go beyond and supplement, not merely apply,
the text of the Constitution.
Why do the courts need to redefine the rights recognized in the Con-
stitution? It is necessary in order to apply the very general and abstract
language of the text to the concrete facts of particular cases over which
they have jurisdiction. They must, for example, decide which specific
kinds of expression are and which are not protected by the freedom of
speech. In a judicial system, like that of the United States, that has
adopted the common law principle of stare decisis, deciding cases under
the First Amendment will necessarily result in redefining First Amend-
ment rights.
Justice Black objects to any such judicial redefinition of rights recog-
nized in the United States Constitution:
One of the most effective ways of diluting or expanding a constitutionally
guaranteed right is to substitute for the crucial word or words of a constitu-
tional guarantee another word or words, more of less flexible and more or less
restricted in meaning. . . . I have expressed the view many times that First
Amendment freedoms, for example, have suffered from a failure of the courts
to stick to the simple language of the First Amendment in constructing it,
instead of invoking multitudes of words substituted for those the Framers
used.21
The danger in redefining constitutional rights in words that are flexible is

that they can then be reinterpreted with a more restricted meaning so as
to deny rights guaranteed in absolute terms by the text of the Constitution.
But is it possible for the courts to stick to the simple language of the
First Amendment in constructing it? It recognizes the right to free speech
in the words Congress shall make no law . . . abridging the freedom of
speech. Black reminds us that The phrase Congress shall make no law
is composed of plain words, easily understood.22 True enough, but the
same cannot be said of the freedom of speech. Is burning an American
flag to protest the Vietnam War a form of speech? And is inciting citizens
to obstruct the draft during wartime a freedom protected by the Consti-
tution? Judges must do more than stick to the language of the Constitu-
tion to decide First Amendment cases.
Worse yet, the language of some amendments, such as the Fifth and
Fourteenth, does not even seem to be simple and easily understood:
There has been much controversy about the meaning of due process of law.
Whatever its meaning, however, there can be no doubt that it must be granted.
Moreover, few doubt that it has an historical meaning which denies Govern-
ment the right to take away life, liberty, or property without trials properly
conducted according to the Constitution and laws validly made in accordance
with it. This, at least, was the meaning of due process of law when used in
Magna Carta and other old English Statutes where it was referred to as the law
of the land.23
Black here argues that there is no need for the courts to redefine consti-
tutional rights because the language of the Constitution can be inter-
preted in the light of its historical meaning for those who wrote and
ratified it.
I doubt that this will always be sufficient to enable the courts to decide
hard cases. Justice Black points out that the Fourth Amendment prohibits
only unreasonable searches and seizures and that there may be much
difference of opinion about whether a particular search of seizure is
unreasonable.24 As the courts gradually overcome such differences of
opinion in deciding cases, they will need to distinguish between reason-
able and unreasonable searches and seizures and thereby in effect redefine
this constitutional right.
Herbert Wechsler proposes flexible standards of judicial review in
cases where the constitutionality of some statute is at issue:
So far as possible, to finish my point, I argue that we should prefer to see the
other clauses of the Bill of Rights read as an affirmation of the special values
they embody rather than as statements of a finite rule of law, its limits fixed by
the consensus of a century long past, with problems very different from our
own. To read them in the former way is to leave room for adaptation and
adjustment if and when competing values, also having constitutional dimen-
sions, enter on the scene.25
Thus constitutional law can remain applicable to changing circumstances

only if cases raising new legal issues are decided by an appeal to neutral
principles expressing constitutional values rather than by restricting
judges to outdated finite rules of law.
The trick, of course, is to find these values in the text of the Constitu-
tion. But if this is possible, then the courts can be justified in redefining
constitutional rights so that they remain applicable to changing social cir-
cumstances. And it often will be possible because the right to be redefined
is explicitly named in the text of the Constitution and judges can appeal
to other passages and the overall structure of the text to identify the
implicit constitutional purpose of incorporating this right.
5. DERIVING RIGHTS
A second way in which judicial decisions can supplement a written con-

stitution is by deriving specific rights from the more general rights recog-
nized in the text. Thus, in Meyer v. Nebraska the United States Supreme
Court derived the constitutional right of the parent to control the educa-
tion of his or her child from the right to liberty recognized in the Four-
teenth Amendment.26 Justice McReynolds, delivering the opinion of the
court, reasoned as follows:
While this court has not attempted to define with exactness the liberty thus
guaranteed, the term has received much consideration, and some of the
included things have been definitely stated. Without doubt, it denotes not
merely freedom from bodily restraint, but also the right of an individual to
contract, to engage in any of the common occupations of life, to acquire useful
knowledge, to marry, to establish a home and to bring up children, to worship
God according to the dictates of his own conscience, and, generally, to enjoy
those privileges long recognized at common law as essential to the orderly
pursuit of happiness by free men.27
Notice that this judicial decision is not attempting to redefine, to define

with exactness, the right to liberty recognized in the Fourteenth Amend-
ment. Instead, it lists more specific rights to liberty that have been derived
from it in previous judicial decisions. Among these is the right to bring
up children that in turn implies the right to control their education. And
what justifies deriving these specific rights from the more general abstract
right to liberty is that these are privileges long recognized at common
law.
If this derivation were challenged, Justice McReynolds could point out
that the American legal tradition has adopted the common law during the
colonial period, throughout the Confederation, and after the adoption of
the United States Constitution, and that the Seventh Amendment recog-
nizes common law suits as an essential part of United States law.
Brown v. Board of Education illustrates a different way of deriving a
specific right from a more general right recognized in the text of the Con-
stitution. Chief Justice Warren, in the opinion of the Court, also begins
with an appeal to the Fourteenth Amendment, but this time to the equal
protection clause. He applies the constitutional right to equal protection
to educational opportunity: In these days, it is doubtful that any child
may reasonably be expected to succeed in life if he is denied the opportu-
nity of an education. Such an opportunity, where the state has undertaken
to provide it, is a right which must be made available to all on equal
terms.28 After considering the psychological effects of segregation upon
black Americans, he concludes that in the field of public education the
doctrine of separate but equal has no place. Separate educational facil-
ities are inherently unequal.29 By this reasoning, Chief Justice Warren
derives the constitutional right of minors of the Negro race to obtain
admission to the public schools of their community on a nonsegregated
basis.30 Thus, while Meyer v. Nebraska derives the specific right of a
parent to control the education of his or her child from the general right
to liberty via the common law, Brown v. Board of Education derives the
specific right of blacks to obtain admission to nonsegregated public
schools from the general right to equal protection by considering what

equal protection requires given the specific facts concerning public edu-
cation. More explicitly, because racially segregated schools discriminate
against blacks in comparison with whites, they can enjoy their constitu-
tional right to equal protection of the law only if the law requires public
schools to be nonsegregated.
Robert H. Bork argues that both of these derivations are illegitimate.
He starts by accepting Herbert Wechslers argument that in order to avoid
the courts being a naked power organ, judicial decisions must be con-
trolled by principles.31
The requirement that the court be principled arises from the resolution of the
seeming anomaly of judicial supremacy in a democratic society. If the judiciary
really is supreme, able to rule when and as it sees fit, the society is not demo-
cratic. The anomaly is dissipated, however, by the model of government
embodied in the structure of the Constitution, a model upon which popular
consent to limited government by the Supreme Court also rests.32
Bork, like Wechsler, recognizes that legal principles embody value choices.
Therefore, this justification for judicial review in a democratic society
requires that these value choices be found in the Constitution.
This is true. But to recognize that what judges need to find in the Con-
stitution are values gives the game away. To be sure, there must be some-
thing in the text of this document from which the courts reason. But
finding the value implicit in this provision or set of provisions in this text
requires interpreting these words not simply in terms of their literal
meaning but in terms of the purpose or purposes they could and should
serve in the actual functioning of the national legal system. And arguably
Justices Douglas and Warren have done precisely this in the arguments by
which they derive more specific rights from the constitutional rights to
liberty and equal protection respectively. If they have failed to do so, it is
not because they have derived specific rights from more general rights but
because of some non sequitur in their reasoning.
6. RECOGNIZING ADDITIONAL RIGHTS
A third way in which judicial decisions can supplement a written consti-

tution is by recognizing additional rights. This is a more radical form of
supplementation because it is not merely deducing a more specific
instance of a general right explicitly recognized in the constitution.
Although a judicial opinion that recognizes any additional right must, of
course, ground its reasoning upon one or more clauses in the text of the
constitution, its reasoning must go beyond subsuming the case before the
court under these clauses.
The classic case in which the United States Supreme Court recog-
nized an additional right is Griswold v. Connecticut. Justice Douglas
delivered the opinion of the Court in a case that declared a Connecticut

statute prohibiting the use of contraceptives by married couples uncon-
stitutional. After citing a number of previous decisions, he continued as
follows:
The foregoing cases suggest that specific guarantees in the Bill of Rights have
penumbras, formed by emanations from those guarantees that help give them
life and substance. . . . Various guarantees create zones of privacy. The right of
association contained in the penumbra of the First Amendment is one, as we
have seen. The Third Amendment in its prohibition against the quartering of
soldiers in any house in time of peace without the consent of the owner is
another facet of that privacy. The Fourth Amendment explicitly affirms the
right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures. The Fifth Amendment in its Self-
Incrimination Clause enables the citizen to create a zone of privacy which
government may not force him to surrender to his detriment. The Ninth
Amendment provides: The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained by the people.33
He then argues that The present case, then, concerns a relationship lying
within the zone of privacy created by several fundamental constitutional
guarantees. And it concerns a law which, in forbidding the use of contra-
ceptives rather than regulating their manufacture or sale, seeks to achieve
its goals by means having a maximum destructive impact upon that rela-
tionship.34 And in the end he combines these various zones of privacy
into a single general constitutional right to privacy. We deal with a right
of privacy older than the Bill of Rightsolder than our political parties,
older than our school system. Marriage is a coming together for better or
for worse, hopefully enduring and intimate to the degree of being sacred.35
Justice Douglas thereby recognizes an additional constitutional right, the
right to privacy, neither recognized in the text of the Constitution nor
derived from it as a more specific right implied by a single general right
recognized in that document.36
Justice Goldberg, with whom the chief justice and Justice Brennan
joined, concurred in the opinion of the court, but wrote a separate opin-
ion to explain more fully the relevance of the Ninth Amendment:
Although I have not accepted the view that due process as used in the Four-
teenth Amendment incorporates all of the first eight Amendments . . . , I do
agree that the concept of liberty protects those personal rights that are funda-
mental, and is not confined to the specific terms of the Bill of Rights. My
conclusion that the concept of liberty is not so restricted and that it embraces
the right of marital privacy though that right is not mentioned explicitly in the
Constitution is supported both by numerous decisions of this Court, referred
to in the Courts opinion, and by the language and history of the Ninth
Amendment.37
He goes on to explain how both of these support the judgment of the

Court:
This Court, in a series of decisions, has held that the Fourteenth Amendment
absorbs and applies to the States those specifics of the first eight amendments
which express fundamental personal rights. The language and history of the
Ninth Amendment reveal that the Framers of the constitution believed that
there are additional fundamental rights, protected from governmental infringe-
ment, which exist alongside those fundamental rights specifically mentioned in
the first eight constitutional amendments.38
Combining these two supports, linked by the concept of fundamental

rights, he asserts: To hold that a right so basic and fundamental and so
deep-rooted in our society as the right of privacy in marriage may be
infringed because that right is not guaranteed in so many words by the
first eight amendments to the Constitution is to ignore the Ninth Amend-
ment and to give it no effect whatsoever.39 Therefore, the Connecticut
statute that infringes the right to privacy is unconstitutional.
Justice Harlan concurred in the judgment of the Court, but not in the
reasoning of its opinion:
In my view, the proper constitutional inquiry in this case is whether this Con-
necticut statute infringes the Due Process Clause of the Fourteenth Amend-
ment because the enactment violates basic values implicit in the concept of
ordered liberty. Palko v. Connecticut, 302U.S. 319, 325. For reasons stated at
length in my dissenting opinion in Poe v. Ullman, supra, I believe that it does.
While the relevant inquiry may be aided by resort to one or more of the provi-
sions of the Bill of Rights, it is not dependent on them or any of their radiations.
The Due Process Clause of the Fourteenth Amendment stands, in my opinion,
on its own bottom.40
Although Harlan does not use the word privacy in his opinion, his rea-
soning has been taken to be an alternative method of recognizing the con-
stitutional right to privacy. In fact, as Justice Kennedy shows by citing the
subsequent line of privacy cases in Lawrence et al. v. Texas, it is Harlans
reasoning, rather than that of Douglas, that is today accepted by the courts.41
Similarly, Justice White concurred in the judgment of reversal, but not
in the opinion of the Court:
It would be unduly repetitious, and belaboring the obvious, to expound on the
impact of this statute on the liberty guaranteed by the Fourteenth Amendment
against arbitrary or capricious denials or on the nature of this liberty. Suffice it
to say that this is not the first time this Court has had occasion to articulate that
the liberty entitled to protection under the Fourteenth Amendment includes
the right to marry, establish a home and bring up children, Meyer v. Nebraska,
262 U. S. 390, 399, and the liberty . . . to direct the upbringing and education
of children, Pierce v. Society of Sisters, 268 U. S. 510, 534535, and that these
are among the basic civil rights of man. Skinner v. Oklahoma, 316 U. S. 535,
541. These decisions affirm that there is a realm of family life which the state
cannot enter without substantial justification. Prince v. Massachusetts, 321
U. S. 158, 166.42
White appeals merely to previous judicial decisions to establish the con-
stitutional right to privacy of family life.
Justices Black and Stewart dissented to the judgment of reversal

and criticized the several opinions that reached it. They object, not
merely to this or that part of the arguments for recognizing the right
to privacy, but to the recognition of any additional constitutional right.
Each points out that the alleged constitutional right to privacy is a
right neither recognized in the written constitution nor derived as a
specific right implied by one of the recognized rights. Justice Black
observes:
The Court talks about a constitutional right of privacy as though there is

some constitutional provision or provisions forbidding any law ever to be
passed which might abridge the privacy of individuals. But there is not. There
are, of course, guarantees in certain specific constitutional provisions which are
designed in part to protect privacy at certain times and places with respect to
certain activities.43
But these various specific protections of privacy do not constitute any

protection of privacy in general and in all its forms.
Justice Stewart asserts the same reason for dissenting from both the
judgment and the opinion of the Court. What provision of the Constitu-
tion, then, does make this state law invalid? The Court says it is the right
of privacy created by several fundamental constitutional guarantees.
With all deference, I can find no such general right of privacy in the Bill
of Rights, in any other part of the Constitution, or in any cases ever before
decided by this Court.44 Granted that no general right to privacy is
explicitly recognized in the text of the Constitution and that it is not a
specific right implied by some other general right enumerated in that
document, what could justify a court in recognizing this or any other
additional constitutional right?
One of the limitations in any written constitution that recognizes
rights is that it cannot, and probably should not, include every human
right. One of the dangers in any such document is that the mention of
some fundamental rights might be taken to imply that those not men-
tioned remain unprotected by constitutional law. This objection to a bill
of rights was often made during the debates over ratification of the United
States Constitution. After quoting James Madison and Joseph Story con-
cerning this objection, Justice Goldberg asserted: These statements of
Madison and Story make clear that the Framers did not intend that the
first eight amendments be construed to exhaust the basic and fundamen-
tal rights which the Constitution guaranteed to the people.45 Just as the
need to protect unenumerated rights served as a reason to include the
Ninth Amendment in the United States Constitution, so it might justify
the judicial recognition of additional rights.
But what are these additional rights? If judges are free to recognize
rights they cannot find in the language of the written constitution, then
they might be empowered to declare statutes unconstitutional arbitrarily
and with no constitutional ground at all. As Black objects:
My point is that there is no provision of the Constitution which either expressly

or impliedly vests power in this Court to sit as a supervisory agency over acts of
duly constituted legislative bodies and set aside their laws because of the
Courts belief that the legislative policies are unreasonable, unwise, arbitrary,
capricious or irrational. The adoption of such a loose, flexible, uncontrolled
standard for holding laws unconstitutional, if ever it is finally achieved, will
amount to a great unconstitutional shift of power to the courts which I believe
and am constrained to say will be bad for the courts and worse for the country.46
Presumably, it will be bad for the courts because it will undermine their
credibility as judges of the law and bad for the country because it will
empower them to engage in arbitrary undemocratic legislation.
Justice Black regards any judicial recognition of unenumerated rights as
natural law reasoning, reasoning merely from the existence of a natural
right to the existence of a legal right with the same content. But to pass
upon the constitutionality of statutes by looking to the particular stan-
dards enumerated in the Bill of Rights and other parts of the Constitution
is one thing; to invalidate statutes because of application of natural law
deemed to be above and undefined by the Constitution is another.47 But
this vastly oversimplifies the reasoning by which Justices Douglas, Gold-
berg, and Harlan recognized the constitutional right to privacy. Each of
them cited passages in the United States Constitution as premises from
which they reasoned. To be sure, they did include moral elements in their
reasoning, but they argued in detail that these moral considerations were
implicit in the textual passages from which they reasoned. Thus, their
reasoning presupposed a soft legal positivism rather than a natural law
theory. That is, they assumed that moral considerations are legally relevant
when, but only when, they are implicit in some source of law, such as a
written constitution or an enacted statute, recognized in the legal system.
This is not the place to resolve the theoretical disagreements between
natural law theorists and legal positivists or even those between the advocates
of soft versus hard positivism. But it is clear that Justice Black is mistaken
when he condemns the judicial recognition of any unenumerated constitu-
tional right as simply natural law reasoning, for it must be firmly grounded
upon the text of the constitution. Moreover, he has given no reply to those
who, like me, believe that constitutional law can best combine the flexibility
it needs to apply to changing circumstances with the moral basis it must have
in order to be justifiably enforced only if its courts presuppose some version
of soft legal positivism, some view that permits judges to appeal to moral
considerations, including but not limited to unenumerated human rights,
when they can show that these are implicit in the established sources of law.
7. CONCLUSION
If a nation-state had to choose between protecting human rights by judi-

cial decisions or a written constitution, it ought to opt for a common law
system to protect human rights. In a nation such as the United Kingdom

that has a deep legal and social commitment to the fundamental rights of
individuals, the common law creates and maintain real rights, rights that
effectively protect individuals through the actual functioning of the legal
system. On the other hand, experience shows that a written constitution
that recognizes human rights but is not consistently applied in the courts,
respected by administrative agencies, and enforced by the police creates
merely paper rights but not real rights.
Fortunately, nation-states need not choose between adopting a written
constitution and protecting human rights in the courts. The United States
and now Canada protect many human rights by a constitutional bill of
rights together with the common law they have inherited from England.
However, many nations lack a strong commitment to human rights and
not all legal systems have inherited the English common law. Hence, for
the majority of national legal systems, the most reliable protection of
human rights would come from a written constitution combined with
judicial enforcement of these constitutional rights. And because of the
importance of moral human rights for the value of human lives, any na-
tional legal system ought morally to protect most of them as effectively as
possible. Still, how securely these national legal systems will protect
human rights will vary considerably depending primarily upon the
strength of the commitment to human rights in the popular culture and
in the legal profession.
How should the courts apply the constitutional rights recognized in
the legal system? If judges practice the most strict interpretation of the
language of the constitution, then the courts may be unable to apply con-
stitutional rights defined in very general terms to the facts of some partic-
ular cases or to adjust constitutional law to changing social circumstances.
Ideally, this disadvantage can be overcome by a legal system in which
judicial decisions supplement the text of the constitution. The least prob-
lematic ways of doing this are by the judicial redefinition of rights recog-
nized in the written constitution and by the derivation of specific rights
from the very general and abstract rights in that document. However, the
judicial recognition of additional rights may be useful when previously
unrecognized human rights become threatened by social change, and it
would be legitimate if these rights can be shown to be implicit in the
established sources of constitutional law, primarily in the text of the
written constitution.
10
Legislative Recognition and

Implementation
The two previous chapters have assessed the relative merits of recog-
nizing human rights by a bill of rights in a written constitution like that
of the United States or by judicial decisions in the common law like the
mostly unwritten constitution of the United Kingdom. I have argued that
for the majority of national legal systems, the best alternative is recogni-
tion by a constitutional bill of rights supplemented by judicial decisions
that redefine abstract constitutional rights, derive more specific rights,
and even introduce new constitutional rights. However, there are those
who maintain that a statutory bill of rights is preferable to a constitu-
tional bill of rights. Here, then, is a third alternative, the legislative recog-
nition of human rights. The most illuminating examples of this alternative
are the Canadian Act for the Recognition and Protection of Human
Rights and Fundamental Freedoms of 1960, the New Zealand Bill of
Rights Act of 1990, and the United Kingdom Human Rights Act of 1998.
Presumably the value of any bill of rights should be judged in large
measure by how well it protects both moral human rights and interna-
tional human rights. Would the recognition of human rights in a statutory
bill of rights serve these purposes better than recognition in a constitu-
tional bill of rights?
1. DISADVANTAGES OF LEGISLATIVE RECOGNITION
The reasons already given for writing fundamental human rights into a
constitution suggest that there are several disadvantages to recognizing
them in legislation.
1. Because statutory rights are not entrenched in the way that consti-
tutional rights usually are, the legislature can repeal or, more often, limit
them to a degree that excessively reduces their protection. Even in Eng-
land, where there is a very strong tradition of respect for the fundamental
rights of individual persons, the courts lack the authority to restrict the
unjustified tendency of the legislature to limit or eliminate statutory
rights in troubled times.
165
2. The recognition of a human right by the legislature does not empower

the courts to strike down legislation that is inconsistent with it in the way
that a constitutional right does. Mark Freeman and Gibran van Ert believe
that this was one of the defects in the Canadian bill of rights of 1960. As
an act of Parliament rather than a constitutional enactment, the Bills
power to set aside the doctrine of implied repeal and render inoperative
legislation that conflicted with it was a matter of continued uncertainty.1
Although related, this is not quite the same disadvantage as the previous
one. There the problem is that when the legislature recognizes a human
right in some statute, it retains the power to repeal or revise that statute.
Here the problem is that the legislature has the power to enact some
additional statute that may, if not overruled by the courts, indirectly
undermine or deny that statutory right.
3. Although a constitutional right takes priority over both federal and
provincial or state law, provincial or state legislation is often independent
of federal legislation. In a federal municipal legal system, therefore, it
would require the recognition of a human right in the legislature of every
province or state as well as in the national legislature to provide as broad
protection as would its recognition in a written constitution. According to
Robert J. Sharpe, the Canadian bill of rights applied only to federal laws
and did not reach the laws of the provinces.2 He regarded this as one of
its main weaknesses, and I would agree.
All three of these disadvantages are serious, even though the last applies
only to federal jurisdictions. To my mind, they are serious enough so that,
other things being equal, human rights are much better protected by rec-
ognition in a written constitution than in legislation. Of course, other
things are very seldom equal. Therefore, one should compare these disad-
vantages with the advantages of legislative recognition before rejecting it
out of hand.
2. ADVANTAGES OF LEGISLATIVE RECOGNITION
What are the advantages of recognizing a human right by legislation

rather than in a written constitution?
1. Statutory rights are more flexible than constitutional rights. A bill of
rights enacted by legislation can be modified by amendment to redefine
recognized rights or even eliminate a right or introduce a new right much
more easily than a bill of rights in a written constitution, especially one
that entrenches rights. This is an advantage in the protection of moral
human rights when the best definition of the protecting right is specula-
tive because of the lack of relevant past experience or when that right will
be applied to rapidly changing circumstances as is increasingly the case in
modern societies.
2. The flexibility of statutory rights is also useful for the protection of
human rights in international law. These will change as new human rights
Legislative Recognition and Implementation 167
treaties come into force and perhaps as new human rights are recognized
in customary international law. A constitutional bill of rights entrenched
strongly enough to provide reliable protection for the rights it recognizes
may not be able to be amended to protect new international human rights
or to reflect new interpretations of them in international law. In this
respect, the problem of dissonance introduced by dual positivization is
much less when human rights are recognized by legislation.
3. Legislation typically defines rights more specifically than a constitu-
tion. A constitution is intended to be and should be a relatively enduring
legal document that will provide a stable structure for a national legal
system. Because it can endure only if its language is abstract enough to
apply to changing concrete circumstances, constitutional rights are defined
in very general terms. But this renders judicial and administrative applica-
tion indeterminate. The gap between the abstract definition of fundamen-
tal human rights and their application to concrete cases calls for the
recognition of more specific derived human rights, and this is often best
done by legislation. Mona Ressaissi argues that in some societies the human
right to an adequate standard of living implies a right to a minimum wage.3
But it is far better to enact this derived human right in legislation, where
it can be defined with precision and changed from time to time, rather
than in the more abstract and permanent language of constitutional law.
4. The recognition of especially controversial human rights is usually
more practicable by legislation than by writing them into the constitu-
tion. It is normally relatively difficult to amend a written constitution, for
this requires more than the usual legislative action. But a human right
could be recognized by a simple majority in the legislature. When there is
little or no hope of writing a threatened human right into the constitution
of a municipal legal system, it is often more feasible to recognize it by
legislation.
5. Recognition of human rights in legislation is less likely to hamper
necessary measures to meet an emergency than their recognition as con-
stitutional rights. As Lord Diplock observed, human rights defined in rel-
atively absolute terms can restrict actions necessary in a democratic
society in the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the rights and free-
doms of others.4
6. The recognition of human rights by legislative action is more demo-
cratic than recognition in a written constitution. Legislators, at least in a
democratic society, are elected by the people and can be voted out of
office by the people, normally by a majority vote. Similarly, these elected
representatives of the people enact statutes by a simple majority vote,
although sometimes such action is required in two houses of the legisla-
ture. Thus, this process for the recognition of human rights is much more
responsive to the will of the people than the adoption or amendment of
a written constitution that usually cannot be accomplished by a majority
vote in a referendum or a majority vote of representatives chosen by the

people for a constitutional convention. There are many reasons why
democracy is important, but the most relevant here is that historically,
moral human rights have been asserted primarily to protect individual
persons from mistreatment by governmental officials. Hence, it is the
people who are in the best position to know when one of their human
rights is threatened and who have the strongest interest in seeing that it is
recognized in the law.
Although these are all real advantages of legislative recognition, their
import varies. When it really is politically impossible for a nation-state to
adopt or amend a constitutional bill of rights, as was the case in Israel after
it declared its independence,5 then legislative recognition of at least the
most fundamental human rights is the best alternative. I admit that the
recognition of a human right by legislative action is less likely to restrict
permissible measures to meet an emergency than recognition in a written
constitution and that it is more democratic. But I would discount these
two advantages. For one thing, entrenched constitutional rights serve to
protect the human rights of vulnerable persons when emergency situa-
tions tempt legislators to deny or limit them unnecessarily. And the firm
protection of human rights tends to preserve the conditions necessary for
democratic institutions to survive in the long run. However, the other
three advantages require me to qualify my advocacy of a constitutional
bill of rights. When a human right is to be applied to rapidly changing
circumstances, a relatively flexible statutory right may be preferable to an
entrenched constitutional right. Most very specific derived human rights
should be recognized in the more precise and concrete language of legis-
lation rather than in the very general and abstract language of a written
constitution. And new international human rights are best recognized by
the ratification of a human rights treaty, perhaps supplemented by legisla-
tive implementation, rather than introduced into an entrenched constitu-
tional bill of rights.
3. WHICH RIGHTS?
Ideally most national legal systems will have a written constitution that
entrenches some of the most fundamental moral human rights. Usually
there will be advantages to recognizing some additional human rights by
legislation. It would be a mistake to try to identify any particular human
rights that should become statutory rights in every legal system because
that will depend on a number of circumstances that vary from nation-state
to nation-state. But perhaps one can generalize about the kinds of human
rights that should be recognized by legislation.
Ought they to be moral human rights or international human rights?
The most important, although not the only, purpose of recognizing any
human rights would be to protect the moral human rights of those
subject to the legal system. Hence, for the most part, it is moral human
rights not already written into the constitution that ought to be recog-
nized by legislation. But they ought not to be recognized as moral human
rights because this would undermine the legal certainty of the system.
There is widespread doubt about the existence of moral human rights
and debate about their nature if indeed they do exist. Even granted the
existence and value of moral human rights, people disagree about which
rights are real and about how to define the content of those that do exist.
Consequently, when a human right is recognized by legislation, it should
be recognized as a right of all persons subject to the legal system, not as
a moral human.
Sometimes international human rights ought also to be recognized by
legislation. The obvious examples would be in municipal legal systems
where ratified human rights conventions are not self-executing. Here leg-
islative recognition may be necessary to give legal effect to these human
rights in that nation-state. Presumably, they should then be recognized as
such, as human rights established in international law. Also in any na-
tion-state lacking a strong tradition of respect for the moral rights of in-
dividual persons, it might be advantageous to recognize many international
human rights as such in order to enable administrators, judges, and citi-
zens to appeal to their international status to strengthen the case for re-
specting them within the nation and the relevant international
jurisprudence to define their content and legal implications. This is most
likely to be true when these international human rights are morally jus-
tified, under threat within the nation-state, and appropriate to the local
conditions.
Thus, the human rights that ought to be recognized by legislative
action are, with some exceptions, moral human rights. Ought they to be
basal or derived human rights? In most cases, they ought not to be basal
moral human rights because these can be protected more reliably when
recognized in a written constitution. Also, the very general content of
basal moral human rights makes them appropriate for the relatively
abstract language of constitutional law. It is for the most part derived
moral human rights that ought to be recognized in legislation. Their rela-
tively specific content required to make them applicable to variable local
circumstances in a determinate fashion can best be formulated in the
more concrete language of legislation. And the flexibility of statutory
rights makes it possible to modify derived human rights if and when con-
ditions in the nation-state change. A couple of examples might usefully
illustrate my reasoning.
In my analysis of moral human rights, I argued that there is a basal
moral human right to freedom of association. This is a liberty-right either
to form or join an association or to refrain from doing so together with a
liberty-right to disassociate oneself from any association. Although the
content of this universal human right is general enough to be formulated
in the relatively abstract language of a written constitution, it may be so
very general that any such constitutional right would have few determinate
legal implications. In any event, this basal moral human right implies
derived human rights to freedom of association in marriage, labor unions,
business firms and corporations, political parties, religious organizations,
private clubs, and so forth. Whether any of these would be applicable to
a given nation-state or, if applicable, under threat in that state depends
upon the circumstances. When the local economy does not include firms
or corporations with large numbers of employees, the right to join or form
labor unions may be inapplicable. And where employees are free to orga-
nize or not organize and to join or refrain from joining labor unions, there
may be no need for any legal right to freedom of association regarding
labor unions. Where needed, any such right should be recognized by leg-
islation rather than in a written constitution because its content should be
defined in very specific terms and it may be necessary to redefine such a
right as conditions change.
I believe that there is also a basal moral human right to equitable treat-
ment.6 This is the right of an individual not to be treated worse than
comparably situated persons without some just-making reason. In most
national legal systems, there should be a constitutional right to the equal
protection of the law. This would recognize the legally relevant aspect of
this basal moral human right and provide a general protection from unjust
discrimination against those subject to that national legal system. But
unjust discrimination takes a wide variety of different forms. Human
beings are often subjected to racial, sexual, religious, or ethnic discrimina-
tion. And such discrimination may occur in education, employment,
voting, marriage, and so forth. What is needed in any legal system to pre-
vent or at least reduce these various forms of inequitable treatment will
be a variety of specific legal rights best recognized in legislation that can
be modified as experience shows the need for more determinate defini-
tion or for legislative reform to meet changing circumstances.
4. KINDS OF IMPLEMENTATION
Presumably any human right that ought to be recognized in a national

legal system ought to be implemented. Although the effective implemen-
tation of any recognized right requires the cooperative efforts of the
courts and various administrative agencies, the legislature can play an
important role in this endeavor. There are a number of ways in which
legislative action can implement any recognized human right.
1. It can impose legal liability for the infringement of this right. For
example, Section 6 of the United Kingdom Human Rights Act of 1998
reads in part: It is unlawful for a public authority to act in a way which is
incompatible with one or more of the Convention rights. This imposed
liability can take at least two forms. The United States Genocide [Con-
vention] Implementation Act of 1987 imposes criminal liability punishable
by a fine or imprisonment upon any person who engages in genocidal

action. On the other hand, the United States Torture Victim Protection
Act of 1991 imposes civil liability upon any person who under authority
or color of law subjects an individual to torture.
2. The legislature can give more precise definitions of vague or ambig-
uous terms to make the judicial and administrative application of the
recognized right more effective. For example, Title IV of the United States
Civil Rights Act of 1964, intended to implement the right to equal
protection of the law in public education, reads in part: Commissioner
means the Commissioner of Education. Desegregation means the
assignment of students to public schools and within such schools without
regard to their race, color, religion, or national origin, but desegregation
shall not mean the assignment of students to public schools in order to
overcome racial imbalance. Definitions such as these supplement the
other ways of implementing recognized rights by making their legal
implications more determinate and easier to carry out.
3. The legislature can confer jurisdiction over cases concerning recog-
nized rights upon specified courts or tribunals. Thus, Section 706 (f) of
the United States Civil Rights Act of 1964, concerning the prevention of
unlawful employment practices, reads: Each United States district court
and each United States court of a place subject to the jurisdiction of the
United States shall have jurisdiction of actions brought under this title.
Again, after authorizing the Human Rights Tribunal Panel to appoint a
human rights tribunal after a complaint has been filed, the Canadian
Human Rights Act of 197677 specifies that any such panel may inquire
into the complaint and may at the conclusion of its inquiry make
an order against the person found to be engaging or to have engaged in
discriminatory practice.7
4. The legislature can and normally will also empower specified private
persons or public officials to petition a court, tribunal, or human rights
commission regarding any alleged infringement of a recognized human
rights. For example Section 204 (a) of the United States Civil Rights Act
of 1964 reads:
Whenever any person has engaged or there are reasonable grounds to

believe that any person is about to engage in any act or practice prohibited
by section 203, a civil action for preventive relief . . . may be instituted by
the person aggrieved and, upon timely application, the court may, in its
discretion, permit the Attorney General to intervene in such civil action if
he certifies that the case is of general public importance.
Such petitions can and often do serve to protect human rights by initi-
ating procedures leading to remedial action.
5. The legislature can specify the remedial actions or punishments that
courts or other public bodies are authorized to order when an alleged
violation of a recognized human right has been established. Thus, Section
706(g) of the United States Civil Rights Act of 1964 provides that
If the court finds that the respondent has intentionally engaged in or is

intentionally engaging in an unlawful employment practice charged in the
complaint, the court may enjoin the respondent from engaging in such
unlawful employment practice, and order such affirmative action as may be
appropriate, which may include reinstatement or hiring of employees, with
or without back pay.
Provisions such as these insert teeth into the implementation of recog-
nized human rights and give it effective bite.
6. The legislature can constitute a human rights commission or compa-
rable public body. Thus, Section 101(a) of the United States Civil Rights
Act of 1957 creates a Commission on Civil Rights, and Section 104 (a)
provides that it shall investigate allegations that citizens are being deprived
of their right to vote, collect and study information concerning legal
developments constituting a denial of equal protection of the laws, and
appraise the laws and policies of the federal government with respect to
equal protection of the laws. Article 12 of the Indian Protection of Human
Rights Act of 1993 confers a much broader range of functions upon the
National Human Rights Commission constituted under section 3. In
addition to inquiring into complaints concerning a violation of human
rights or negligence in the prevention of such a violation by a public ser-
vant, these include visiting any jail or other institution under the control
of the state government where persons are detained, making recommen-
dations for the effective implementation of international instruments on
human rights, undertaking and promoting research in the field of human
rights, spreading human rights literacy among various sections of society,
and such other functions as it may consider necessary for the promotion
of human rights.
7. The legislature can require or authorize a public official to imple-
ment recognized human rights in specific ways. For example, Section 402
of the United States Civil Rights Act of 1964 reads as follows: The Com-
missioner [of Education] shall conduct a survey and make a report to the
President and the Congress . . . concerning the lack of availability of equal
educational opportunities for individuals by reason of race, color, religion,
or national origin in public educational institutions at all levels in the
United States, its territories and possessions, and the District of Colum-
bia. And Section 403 reads in part: The Commissioner is authorized,
upon the application of any school board, State, municipality, school dis-
trict, or other governmental unit legally responsible for operating a public
school or schools, to render technical assistance to such applicant in the
preparation, adoption and implementation of plans for the desegregation
of public schools. The variety of such requirements or authorizations is
considerable, but these suffice to illustrate this way of implementing rec-
ognized human rights.
8. The legislature can require judges and other public officials to inter-
pret and apply, as far as possible, all legislation so as to be consistent with
recognized human rights. Thus, Section 3(1) of the United Kingdom
Human Rights Act of 1998 reads: So far as it is possible to do so, primary

legislation and subordinate legislation must be read and given effect in a
way which is compatible with the Convention rights. Because of the
constitutional principle of parliamentary supremacy in this and similar
municipal legal systems, these requirements provide somewhat weak pro-
tection for human rights. Nevertheless, this requirement does give a kind
of priority to recognized human rights even in such legal systems.
9. The legislature can provide grants to enable administrative agencies
to meet the claims of eligible individuals for benefits implied by their
economic or social rights. For example, Section 3 of Title I of the United
States Social Security Act of 1935 reads in part:
(a) From the sums appropriated therefore, the Secretary of the Treasury
shall pay to each State which has an approved plan for old-age assistance,
for each quarter, beginning with the quarter commencing July 1, 1935,
(1) an amount which shall be used exclusively as old-age assistance,
equal to one-half of the total of the sums expended during such quarter as
old-age assistance under the State plan . . . , and
(2) 5 per centum of such amount, which shall be used for paying the
costs of administering the State plan or for old-age assistance, or both, and
for no other purpose.
In the United States federal legal system, social security programs are
funded jointly by the federal and state legislatures. In the unitary legal
system of the United Kingdom, the funding is more centralized. Its social
security benefits fall into two classes, contributory and noncontributory.
The former are paid out of the National Insurance Fund from various
sources including money provided by Parliament, and the latter are paid
out of the Social Fund, entirely dependent upon the Treasury.8 Both the
United States and the United Kingdom national legal systems illustrate the
fact that many human rights, especially economic and social rights, require
governmental programs that in turn require governmental funding.
10. The legislature can withhold or withdraw funding from administra-
tive agencies or programs that infringe recognized human rights. Section
602 of Title VI of the United States Civil Rights Act of 1964, concerning
nondiscrimination in federally assisted programs, reads in part: Compli-
ance with any requirement adopted pursuant to this section may be
effected (1) by the termination of or refusal to grant or to continue assis-
tance under such program or activity to any recipient as to whom there
has been an express finding on the record, after opportunity for hearing,
of a failure to comply with such requirement. Put metaphorically, both
economic carrots and sticks are needed for the implementation of many
recognized human rights.
Reflecting upon these various kinds of implementation, one can see at
once that it is a mistake to equate the implementation of recognized
human rights with enforcement. This is most obvious regarding the
functions of the Indian National Human Rights Commission to undertake
and promote research in the field of human rights or to spread human

rights literacy among various sections of society. But this is equally true
regarding requiring the United States commissioner of education to con-
duct a survey and make a report to the president and Congress concerning
the lack of equal educational opportunity or authorizing the commis-
sioner to render technical assistance to governmental units in the prepa-
ration, adoption, and implementation of plans for the desegregation of
public schools. What is not obvious is what kinds of implementation a
typical municipal legal system ought to establish.
5. WHICH KINDS?
There are several very general choices that a legislature must confront
when deciding which kinds of implementation to enact. Let us consider
only those that raise philosophically important issues.
1. Ought a legislature to establish coercive or noncoercive kinds of
implementation? Four kinds of implementationimposing liability, con-
ferring jurisdiction, conferring the power to petition or indict, and estab-
lishing remedies or punishmentscombine to enforce respect for human
rights. Together these create a process of compelling those subject to a
legal system to observe the law recognizing human rights. But coercion
might be thought to violate the human right to liberty and in any event it
seems to fail to respect the moral autonomy of the individual and there-
fore to be prima facie morally wrong. Given the several noncoercive ways
of implementing recognized human rights, is their coercive enforcement
morally justified?
If a legislature could provide for the effective implementation of
human rights by using only noncoercive kinds of implementation, it ought
not to employ coercive means. But in practice, public officials or private
citizens or both will too often not be deterred from violating the human
rights of their fellow citizens if they are not liable to legal sanctions for
their violations. Therefore, if the legal recognition of a human right is
justified by its importance and the reality of threats to its exercise or
enjoyment, then protecting it by coercive implementation is morally jus-
tified by the harms that those subject to the legal system would suffer
without such enforcement.
If a legislature has established a relatively effective system of enforcing
respect for recognized human rights, is there any reason to employ non-
coercive kinds of implementation also? This might seem a redundant and
wasteful use of scarce legal resources. However, it is not. For one thing,
several of these can indirectly render the protection of human rights
more effective. When a human rights commission or administrative offi-
cial conducts a survey or undertakes a study of the social conditions af-
fecting the exercise or enjoyment of human rights, the legislature can
then use the results to improve the enforcement of the human rights law
in the society. And efforts by a commission or administrative agency to

increase the understanding of the nature and value of human rights
among the general public can generate political support for measures to
enforce them more effectively. For another thing, often intervention by a
human rights commission or public official can resolve human rights
problems or rectify grievances without the need to employ less desirable
coercive measures. Finally, a legal system cannot employ any of these
coercive or noncoercive kinds of implementation without public fund-
ing, one of the noncoercive means of implementing recognized human
rights.
2. Ought a legislature to implement recognized human rights by con-
ferring auxiliary rights or by directly imposing civil, criminal, or adminis-
trative duties? An auxiliary right is a right that is designed to make the
exercise or enjoyment of a prior right more secure in the way in which
habeas corpus functions to protect the primary right to liberty. As I con-
ceive of a right, a right confers dominion over its defining core upon its
possessor. Hence, if respected, any real right gives its possessor various
sorts of freedom and control over its specific content.9 Accordingly, it
would seem that the most appropriate way to implement any recognized
human right would be to confer one or more auxiliary rights that would
confer related freedom and control upon the possessor of the prior human
right. Moreover, it would seem that doing so would be the most effective
way to protect the recognized human right. Presumably, the right-holder
is usually in the best position to know when his or her human right has
been or might soon be violated and to have the strongest motivation to
remedy or prevent any such violation. Therefore, the first and best choice
for a legislature is to implement a recognized human right by conferring
one or more auxiliary rights upon all persons subject to its national legal
system.
However, this kind of implementation is not always effective. Those
individuals whose human rights are most endangered are typically among
the most disadvantaged and powerless members of a society and thus are
in no position to take action to protect their rights. Also it is often the case
that violations of a recognized human right are widespread or systematic
in a society so that conferring freedom and control over a right upon
individual possessors will be at best a fragmentary and incomplete protec-
tion. In such cases, a legislature ought to confer an auxiliary right upon
one or more public officials in a position to intervene to help to protect
the human right of the entire class of possessors. As for example, Tltle IV
Section 407 of the United States Civil Rights Act of 1964 confers a right
upon the attorney general to institute a civil suit in a district court when
he or she believes that a complaint that a child or children are being
denied equal protection of the laws by a school board is meritorious and
that the signer or signers of the complaint of such complaint are, in his
judgment, unable to initiate and maintain appropriate legal proceedings
for relief.
Although any real right implies one or more duties, it is also possible
and usually desirable for a legislature to implement a recognized human
right by imposing additional criminal or administrative duties. The crim-
inal law of national legal systems typically prohibits murder, rape, and
theft and thereby partially protects the human rights to life, personal sec-
urity, and property. And Section 104 (a) of the United States Civil Rights
Act of 1964 imposes the duties to investigate allegations that citizens are
being deprived of their right to vote, to collect and study information
concerning the denial of the equal protection of the laws, and to appraise
the laws and policies of the federal government with respect to denials of
equal protection of the laws upon the Commission on Civil Rights. More
generally, Section 6 (1) of the United Kingdom Human Rights Act of
1998 provides that it is unlawful for a public authority to act in a way that
is incompatible with any convention right. Criminal and administrative
duties such as these can supplement the statutory rights that implement
prior recognized human rights.
6. CONCLUSION
A national legal system ought morally to recognize and implement funda-

mental human rights as effectively as possible in order to protect those
subject to its jurisdiction from the serious harms that result from their
violation. Ideally in most societies there will be a written constitution that
entrenches some of the most fundamental moral human rights. But more
specific moral human rights defined to fit the special circumstances of a
society, especially when these circumstances are subject to rapid or unex-
pected change, are much more appropriately recognized in legislation. In
addition, a legislature ought to recognize some international human rights.
If the society lacks a strong tradition of respect for the moral rights of
individuals, the recognition of human rights already defined and imple-
mented in international law will indirectly serve to protect moral human
rights that might well otherwise be ignored or flagrantly violated. And
even in societies that do on the whole respect moral human rights, it may
be necessary for a legislature to recognize some international human
rights when treaty rights are not self-executing in the municipal legal
system.
Recognized human rights are real legal rights only when they are
implemented in the legal system. A legislature can implement a recog-
nized right in at least ten distinct ways. In general, although noncoercive
kinds of implementation are preferable, in practice coercive kinds are also
necessary in order to effectively protect the exercise or enjoyment of rec-
ognized rights. The most appropriate way to implement a recognized
right is by conferring an auxiliary right upon the right-holders because
this tends to preserve the dominion, the freedom and control, essential to
a right. However, it will usually be necessary to supplement this ideal kind
of implementation by conferring one or more auxiliary rights upon public

officials and by directly imposing duties in the criminal and administrative
law of the municipal legal system. Finally the legislature ought to estab-
lish and fund administrative agencies and programs in order to secure
recognized civil and political human rights as well as a few economic and
social human rights.
11
Recognition and Implementation

of Treaty Rights
A fourth method by which nation-states recognize human rights is the

ratification of or agreement to an international human rights treaty.
Although no one suggests that this should be the primary way to incorpo-
rate human rights into a national legal system, most believe that it ought
to supplement the recognition of human rights in any constitutional or
statutory bill of rights and in the common law.
The noun treaty will be used here in the broad sense defined in Article
2.1 (a) of the Vienna Convention on the Law of Treaties: treaty means
an international agreement concluded between States in written form and
governed by international law, whether embodied in a single instrument
or in two or more related instruments and whatever its particular desig-
nation. Hence, the distinction that some national legal systems make
between treaties and other forms of international agreements, such as ex-
ecutive agreements, will be ignored, and the expression treaty rights will
refer to all the human rights recognized in any form of international
agreement governed by international law.
Although the United States has a strong tradition of respecting the
fundamental moral rights of the individual and has played a leading role
in drafting the most important human rights treaties, it has refused to
ratify the International Covenant on Economic, Social, and Cultural
Rights and most of the other human rights treaties. And when it has rati-
fied a human rights treaty, it has qualified its agreement with serious res-
ervations. On the other hand, there are nation-states that have ratified
almost all human rights treaties but failed to implement them at all ade-
quately. Both phenomena are deeply puzzling. One might well investigate
them as a social scientist and attempt to explain such apparently unrea-
sonable behavior. However, I will discuss them as a moral philosopher and
ask what policies a nation-state ought to adopt regarding the recognition
and implementation of human rights affirmed in international treaties.
1. WHEN TO AGREE?
When ought a nation-state to agree to a human rights treaty? Most human

rights advocates would probably assert that states ought always to agree
179
to human rights treaties, or at least all those sponsored by the United

Nations. But it would be premature to assume that there are no counter-
vailing considerations. Normally there will be reasons for and reasons
against recognizing any treaty right or set of treaty rights.
There are a number of reasons for a nation-state to agree to a human
rights treaty.
1. The most obvious reason to agree is to add to the protection of
important moral human rights within its national legal system. The Uni-
versal Declaration of Human Rights and most of the subsequent human
rights treaties presuppose that the international human rights they recog-
nize reflect and protect fundamental moral rights of individual persons. If
this is so, then presumably incorporating these treaty rights into a munic-
ipal legal system by agreeing to a human rights treaty would institute or
reinforce the protection of the moral human rights it presupposes. Since
any nation-state has a third-party moral obligation to protect those sub-
ject to its jurisdiction from violation of any important and politically rel-
evant moral human right, it has a strong moral reason to agree to any
morally justified human rights treaty.
2. Another reason for some nation-states to agree with one or more
human rights treaties is to normalize or improve their relations with
international organizations such as the United Nations. With the in-
creasing globalization and economic interdependence of the contempo-
rary world, isolation is no longer a viable foreign policy. A country with
a record of serious human rights violations may need to agree to the
most important human rights treaties in order to negotiate with the
World Bank. And with the establishment of regional organizations such
as the European Community, a nation-state may be required to agree to
human rights treaties before it will be admitted to full membership. The
strength of this reason will vary greatly from state to state and region to
region.
3. A related, but more universally applicable, reason for a nation-state
to agree to human rights treaties is to fulfill its international legal obliga-
tion to the United Nations. Article 55 of the United Nations Charter
reads in part:
With a view to the creation of conditions of stability and well-being which
are necessary for peaceful and friendly relations among nations based on
respect for the principle of equal rights and self-determination of peoples,
the United Nations shall promote: . . .
(c) universal respect for, and observance of, human rights and fundamental
freedoms for all without distinction as to race, sex, language, or religion.
Then in Article 56: All Members pledge themselves to take joint and
separate action in cooperation with the Organization for the achievement
of the purposes set forth in Article 55. Hence, by becoming a state party
to the charter, a nation-state has undertaken an obligation that arguably
requires it to agree to any human rights treaty sponsored by the United
Recognition and Implementation of Treaty Rights 181
Nations. And presumably every nation-state ought, in the absence of

some serious extenuating circumstance, to fulfill its obligations under
international law.
4. A nation-state ought to agree to a human rights treaty in order to
contribute to an international legal system that recognizes and imple-
ments human rights. To the extent that the agreed treaty rights corre-
spond to prior moral human rights, this contribution serves the moral
purpose of adding a second layer to the domestic protection of the funda-
mental moral rights of individual persons. And when the agreed treaty
rights require more just legal institutions both nationally and internation-
ally, agreement to the treaty promotes justice.
5. An additional reason for a nation-state to agree to a human rights
treaty is to promote the respect and observance of moral human rights in
other states. This reason presupposes that the international human rights
reflect prior moral human rights and that the implementation of treaty
rights is at least moderately effective. This will often, but not always, be
the case.
There are also reasons for some, perhaps all, nation-states not to agree
to a human rights treaty.
1. At first glance, the most compelling of these is that agreeing to a
human rights treaty might impair their constitutions. The terms of the
treaty might require unwise changes in a nations written constitution
or in practice modify its unwritten form of government. Because it is
the executive branch of government that agrees to an international
treaty and cases concerning human rights would be decided by the judi-
ciary, agreeing to a treaty might shift the balance of constitutional power
in a way that would weaken the legislature, the most democratic of the
three branches of government. And because human rights treaties
impose obligations concerning both the substance and the procedure of
criminal law, it might violate the constitutional rights of states or prov-
inces in a federal constitution with a division of powers for the central
government to agree to a human rights treaty without the consent of
the subdivisions.
Each of these dangers is genuine, but to my mind limited. Even in
jurisdictions where treaty law takes priority over statute law, and this is
not the case in a nation-state like the United Kingdom where legislative
supremacy is firmly established in its constitutional practice, it nor-
mally will not take precedence over constitutional law. Hence, this rea-
son not to agree to a human rights treaty will usually be inapplicable
and, when applicable, can be met by modest changes to the national
constitution.
2. A related reason not to agree to a human rights treaty is that it might
permit international law and foreign institutions to intrude into the
domestic jurisdiction of a nation-state. A human rights treaty might create
self-executing obligations, thus bypassing the normal national lawmaking
procedures, or require the legislature to repeal or modify important
domestic legislation. And external pressure might be imposed on states

that resisted the international imposition of such measures. Also, the pri-
mary purpose of human rights treaties is to protect individual persons
from mistreatment. But because how a government treats its nationals is
in most cases a matter of domestic jurisdiction, it might seem to be both
morally unjustified and contrary to Article 2.7 of the United Nations
Charter for the United Nations or its member states to attempt to imple-
ment a human rights treaty within any nation-state.
It is true that international organizations or foreign states might appeal
to a human rights treaty to intervene in the domestic jurisdiction of a
state that had agreed to that treaty. But how a national legal system treats
those subject to it, at least regarding international human rights, is no
longer a matter of domestic jurisdiction. Nor should it be. Moreover,
international law sets a high threshold of violation of human rights, mas-
sive and systematic violation, for humanitarian intervention. To be sure,
unjustified interventions excused as humanitarian interventions are pos-
sible; it may be that some have already taken place. But this danger is not
limited to states that have ratified human rights treaties and is probably
less intolerable than most violations that would precipitate unjustified
interventions.
3. A third reason not to agree to a human rights treaty is to avoid inter-
national legal obligations imposed by unjustified, inapplicable, or low-
priority human rights. Probably the international human right of everyone
to the enjoyment of the highest attainable standard of physical and men-
tal health1 is a morally unjustified claim-right that would impose exces-
sive demands upon any social system in pursuit of an unrealistic ideal. The
right of everyone to form trade unions and join the trade union of his
choice2 is inapplicable to any society in which persons do not acquire the
goods and services they require for an adequate standard of living by
earning their livelihood as employees of those who own (not necessarily
as private property) or manage the means of production. And many argue
that some of the civil and most of the political human rights are of lower
priority than economic human rights in an impoverished society and that
to implement them prematurely would slow down the rate of economic
development, causing morally unjustified human suffering on a massive
scale.
I believe that a few of the international treaty rights recognized in the
two international covenants are defined in ways that make them either
unjustified or inapplicable to some societies. But for this very reason these
treaties will seldom make any serious demands upon any nation-state that
agrees to them. And when so little will be lost by agreeing and there is
more to be gained by ratification, it seems to me that this is seldom if ever
a strong reason to refrain from agreeing to these or similar human rights
treaties. Although dictatorial regimes often argue that the recognition and
implementation of civil and political rights hinders economic develop-
ment, the evidence seems to support the opposite view. These human
rights tend to promote prosperity and to reduce the numbers of residents

who live below the poverty line.
4. A last reason not to agree to a human rights treaty is not to diminish
one or more human rights of those subject to the municipal legal system.
For example, Article 20.1 of the International Covenant on Civil and
Political Rights requires that Any propaganda for war shall be prohibited
by law. But this would restrict the protection that the United States con-
stitutional rights to freedom of speech and of the press give to the moral
human right to freedom of expression. Article 1.2 in both of the interna-
tional covenants asserts that All peoples may, for their own ends, freely
dispose of their natural wealth and resources. Arguably for a nation-state
to agree to these provisions would legitimate the expropriation of
national property abroad and thus infringe the human right to private
property of its citizens. More generally, human rights treaties are the
result of negotiations between the states parties and consequently tend to
define the rights they recognize in something like the lowest common
denominator. Hence, they may provide a narrower or weaker protection
for human rights than is provided by the national legal systems of those
nations with the strongest tradition of respect for the fundamental moral
rights of individual persons.
The fact that treaty rights may provide narrower or weaker protection
for many human rights than its national legal system is not a reason for a
nation-state to refrain from agreeing to any human rights treaty. There is
nothing in international law that prohibits a state party from providing
additional protection for any treaty right. However, when a human rights
treaty does require a narrower definition or might justify the infringement
of a moral human right recognized in a municipal legal system, this might
be a reason not to agree to that international treaty.
Although there are reasons both for and against a nation-state to agree
to a human rights treaty, they are not of equal weight. Considering only
the strongest reasons, when ought a nation-state to agree to a human
rights treaty? A state ought as a general rule to agree when a treaty is
sponsored by the United Nations. This is one way to fulfill its interna-
tional legal obligation to promote the respect and observance of human
rights under the United Nations Charter. However, there is considerable
discretion concerning how a nation-state fulfills this obligation so that it
does not require agreeing to every such human rights treaty.
Also a nation-state ought to agree to a human rights treaty when this
treaty would contribute significantly to an international legal system that
recognizes and implements human rights and thereby promotes respect
for and observance of human rights in other nation-states. Nation-states
probably have a moral obligation to promote just institutions for all
human beings, not only their own nationals. And because hostility and
especially war between and within nation-states is harmful to their self-
interests, they have a prudential reason to reduce this threat by promoting
human rights abroad. But as far as possible these treaties ought to be
formulated in terms that avoid imposing unjustified or inapplicable inter-

national human rights upon any nation.
The most important reason for a nation-state to agree to a human
rights treaty is to improve the protection of moral human rights within its
own national legal system. Because most of the human rights recognized
in human rights treaties sponsored by the United Nations or regional
organizations of nation-states are analogous to prior moral human rights
and defined in terms general enough to be universally applicable, every
nation-state has a strong reason to agree to most such treaties. This reason
is especially compelling when moral human rights are inadequately pro-
tected within a nation-state, but still of some weight for states with a
strong tradition of respect for the fundamental moral rights of individual
persons. Occasionally, one or more provisions of a human rights treaty
would require the unjustified infringement of some human right more
fully protected within a municipal legal system. On those occasions, a
nation-state normally ought to agree to the human rights treaty but enter
one or more reservations to avoid any reduction in its protection of the
human rights of those subject to its jurisdiction.
2. WHEN TO ENTER RESERVATIONS?
Article 19 of the Vienna Convention on the Law of Treaties concerning

the formulation of reservations reads as follows:
A State may, when signing, ratifying, accepting, approving or acceding to a
treaty, formulate a reservation unless:
(a) the reservation is prohibited by the treaty;

(b) the treaty provides that only specified reservations, which do not
include the reservation in question, may be made; or
(c) in cases not falling under the paragraphs (a) and (b), the reservation
is incompatible with the object and purpose of the treaty.
In all three of these cases, any purported reservation entered by a state

agreeing to a treaty is null and void and thus without any legal effect. This
leaves abundant room for a wide variety of other sorts of reservations.
When are reservations to a human rights treaty justified? A number of
plausible reasons for entering a reservation have been advanced.
1. One or more reservations are justified when they are necessary to
gain the political support required for agreement to the treaty. Better to
achieve the agreement of one more state, even with reservations, than
to have one fewer state party. This is probably true provided that the res-
ervation or reservations do not seriously undermine the substantive con-
tent of the treaty. However, this reasoning has been carried too far in the
United States. Many treaty supporters accepted strategic reservations,
and the executive branch often submitted human rights treaties to the
United States Senate with recommended reservations designed to fore-

stall opposition arguments and, they hoped, ease ratification.3 In the
United States, this strategy has often failed to achieve the ratification of
important human rights treaties, and when it has achieved ratification,
treaties have been ratified subject to questionable reservations. Usually it
will be better to confront the controversial issues directly and argue the
case for human rights as strongly as possible.
2. One could argue that reservations are sometimes necessary to limit
the competence of international courts. Article 9 of the Genocide Con-
vention specifies that disputes between contracting parties concerning the
interpretation, application, or fulfillment of the convention can be sub-
mitted to the International Court of Justice at the request of any party.
Nine states declare that the specific consent of all the states involved in a
dispute is required, and the United States and Malaysia stipulate that the
submission of a case to which they are a party requires their consent.4
Although a negative decision by the International Court of Justice prob-
ably has greater weight than criticism by a human rights committee, the
lack of any international enforcement agency still renders this an insuffi-
cient justification for limiting the competence of the court. Even with the
addition of the International Criminal Court, the international protection
of human rights is so weak that nation-states have little reason to fear it.
Hence, it is more important to support the international institutions that
implement human rights law than to evade them.
3. A reservation to a human rights treaty may be justified when it is
necessary to prevent conflict with religious law or doctrine. For example,
four states declared that Article 16 of the Convention on the Elimination
of All Forms of Discrimination against Women, which requires according
the same rights to men and women relating to marriage and the family, is
incompatible with Sharia and Islamic law. Egypt explained that Islamic
law confers equal but complementary rights on women and men.5 Con-
flicts may, of course, arise concerning human rights treaties and other reli-
gions.
A positive reason to justify some such reservations is that religion is not
a purely individual matter. There is a human right to religious freedom
because of the importance of religious belief and practice to most human
beings. However, ones religion is conditioned by ones culture and prac-
ticed within social institutions including temples, mosques, or churches.
And religion is only one of many important individual and social interests.
Therefore, some adjustment of the human rights of individuals to fit the
social institutions and morality within which these rights are enjoyed and
practiced is necessary.
To be sure, religious law and doctrine can and sometimes does prescribe
the violation of human rights. But religious law and doctrine are subject to
interpretation and are not frozen in time. Hence, when human rights in
general are accepted, religions can be reinterpreted to afford greater pro-
tection for previously denied or unjustly restricted human rights.
Still, not every reservation necessary to prevent conflict between a

human rights treaty and religious law or doctrine is justified. A reservation
that, given the local circumstances, might be used by a nation-state to
justify the widespread violation of human rights is presumably intoler-
able. Whether a reservation incompatible with the object and purpose of
only one or a few human rights among many recognized in a treaty is
justified is unclear. Although ideally one would wish to avoid substantial
reservations, it may be better to incorporate the majority of the human
rights recognized in a treaty than to insist upon all or nothing. In the
world of international politics, the practical must often take precedence
over the ideal.
4. A reservation may be justified when it is necessary to avoid revision
of domestic legislation. For example, Paragraph (7) of Article 14 of the
International Covenant on Civil and Political Rights requires that no one
is subject to trial or punishment for an offense for which he or she has
already been convicted. Iceland declared that it would not revise demo-
cratically determined procedures, and the Netherlands accepted the obli-
gation within the provisions of its existing Criminal Code.6 Article 8 of
the International Covenant on Economic, Social, and Cultural Rights pro-
vides the right of all to form trade unions for the protection of economic
and social interests. Algeria stated that it understands this to mean making
the domestic law the framework for action by the state with respect to
the organization and exercise of the right to organize.7 Reservations such
as these are probably justified provided that the legislation they preserve
is itself morally justified.
On the other hand, one can imagine clearly unjustified reservations.
When the United States Senate was debating the Genocide Convention,
many argued that it ought not to be ratified because it might be applied
to the lynching of Negroes in the South.8 Had the United States agreed to
the International Convention on the Elimination of All Forms of Racial
Discrimination soon after 1966 with a reservation to retain existing legis-
lation in force, this reservation would surely be unjustified even if it were
necessary to obtain the votes of southern senators needed for the advice
and consent of the Senate.
5. Reservations to a human rights treaty will more often be justified
when necessary to prevent conflict with the national constitution, whether
written or unwritten. For example, the United States ratifies human rights
treaties with a reservation containing a federalism clause indicating that
ratification does not alter the existing allocation of authority between the
federal government and the states regarding the subjects dealt with in the
treaty.9 This is regarded as necessary in order to protect the rights con-
ferred on the states under the Tenth Amendment to the United States
Constitution. The United States also stipulates that the substantive provi-
sions of any human rights treaty are not self-executing in order to pre-
serve the constitutional allocation of lawmaking powers in its national
legal system.10 To enable the executive branch of government to agree to
human rights treaties with self-executing provisions would be to permit

it to usurp the legislative powers conferred upon Congress and the state
legislatures by the Constitution. No nation-state ought to approve an
international treaty that imposes obligations inconsistent with its constit-
ution, although it ought to amend its constitution if the conflict arises
from some serious injustice in its own legal system.
6. A reservation to a human rights treaty may be justified when it is
necessary to prevent diminished protection of moral human rights. Para-
graph (1) of Article 14 of the International Covenant on Civil and Polit-
ical Rights includes the principle that, with some exceptions, trials are to
be open to the public and verdicts are to be made public. When it agreed
to this treaty, Belgium declared that there is to be no derogation from the
principle that judgments are to be made public.11 Article 20 of this cove-
nant prohibits propaganda advocating war and requires states to prohibit
by law any advocacy of national, racial, or religious hatred that constitutes
incitement to discrimination, hostility, or violence. Nine states asserted
that this article violated the principle of free expression.12 However, one
could argue that prohibiting the advocacy of racial, national, or religious
hatred constitutes a minor limitation of the right to freedom of expres-
sion and is essential for the protection of the human right to freedom
from discrimination. Because there is no mathematical formula for
resolving conflicts between human rights, one must judge each reserva-
tion of this sort on a case-by-case basis.
7. A reservation to a human rights treaty is sometimes justified when
necessary to reduce the obligations it imposes to fit the resources available
to the state party. Article 13 of the International Covenant on Economic,
Social, and Cultural Rights recognizes the right to an education for all.
Primary education is to be compulsory and free to all; education above
the primary level is to be made generally available and equally accessible
to all qualified persons. Four states stipulated that they would postpone
the implementation of this article until such time as economic conditions
allowed and according to their development plans. Three relatively
wealthy states declared that the right to free and compulsory primary
education should not detract from the provisions governing the access of
aliens or nonnationals to employment and social benefits.13 Thus, rela-
tively poor nation-states may be unable fully to secure the human right to
education, and even affluent states may lack the resources to secure this
right together with other economic and social human rights. A reservation
of this sort is not the same as one necessary to prevent diminished protec-
tion of human rights. When it really is necessary to reduce the obligations
to fit the resources of the agreeing nation-state, these rights could not be
protected in any event.
Although it is widely recognized that the obligations imposed by eco-
nomic or social human rights must be limited to the available resources, it
is less often admitted that this is also true of civil or political rights. Sub-
paragraph (3) (d) of Article 14 of the International Covenant on Civil and
Political Rights entitles a person to be represented by a counsel of his or

her choosing and to have counsel provided if the defendant is financially
unable to retain counsel. Barbados, Belize, and Gambia made derogations
from this principle because of a lack of resources. The United Kingdom
reserved the right not to apply this obligation in some territories because
too few legal practitioners were available.14 Paragraph (5) of this same
article requires that persons convicted of a crime shall have the right to
have their convictions and sentences reviewed by a higher court or tribu-
nal. Several states entered a reservation to this paragraph because in their
national legal systems there is no higher court or tribunal.15 Thus, the lack
of available resources may consist in too few competent personnel or legal
institutions rather than insufficient funding.
Thus, there are at least seven reasons that provide plausible justifica-
tions for a nation-state to enter one or more reservations when agreeing
to a human rights treaty. But these are not of equal weight. Two of these
to limit the competence of international courts and to avoid revision of
domestic legislationare typically weak. Although the need to gain polit-
ical support or to prevent conflict with religious law or doctrine can be a
strong justification, this reason is too often subject to abuse. The strongest
justifications for entering one or more reservations to a human rights
treaty are that this is necessary in order to prevent conflict with the na-
tional constitution, to prevent the diminished protection of moral human
rights, or to reduce the accepted obligations to fit the available resources.
In every case, however, it is important to insist that the alleged necessity
must be real; unnecessary reservations are never morally justified.
3. HOW TO IMPLEMENT?
Having agreed to a human rights treaty, a state party has an obligation

under international law, and presumably a moral obligation also, to imple-
ment in its municipal legal system the rights that treaty recognizes. Pacta
sunt servanda is both a rule of international law and a moral principle.
However, a state party has considerable discretion concerning how it
chooses to implement these human rights. As the Committee on Eco-
nomic, Social, and Cultural Rights asserts: The most appropriate feasible
measures to implement the right to health will vary significantly from one
State to another. Every State has a margin of discretion in assessing which
measures are most suitable to meet its specific circumstances.16 In fact, a
margin of discretion applies to all or almost all treaty rights.
This doctrine of a margin of discretion, or a margin of appreciation,
originated in the application of Article 15 of the European Convention
for the Protection of Human Rights and Fundamental Freedoms. Both the
European Commission of Human Rights and the European Court of
Human Rights first granted state parties a margin of appreciation in cases
concerning the permissible derogation from specified civil and political
rights. Later cases recognized that state parties have a measure of appre-
ciation in implementing civil and political rights more generally.17 The
United Nations Human Rights Committee first applied this principle of a
measure of appreciation to the International Covenant on Civil and Polit-
ical Rights in the case of Hertzberg and Others v. Finland.
Accordingly, it is clear that each state party has considerable choice in
how it should implement any treaty right. The choice of how to exercise
this discretion will and ought to be made by the executive, legislative, and
judicial officials in each municipal legal system. Given the wide variety of
local circumstances, generalizations about the best ways to implement
treaty rights are probably impossible. But a general question of philosoph-
ical importance is What considerations are relevant to how a state party
ought to implement the human rights recognized in any treaty to which
it has agreed?
1. The first and most clearly relevant consideration is the nature and
scope of the obligations a nation-state undertakes by agreeing to a
human rights treaty. When a state agrees to a human rights treaty, it
incurs obligations under international law to all other state parties. The
way it chooses to implement every treaty right ought, both legally and
morally, to fulfill these obligations. In general, these obligations are of
three kinds and require a variety of implementation measures. The Eco-
nomic, Social, and Cultural Rights Committee makes this clear in the
following statement:
The right to health, like all human rights, imposes three types or levels of obli-
gations on States parties: the obligations to respect, protect and fulfil. In turn, the
obligation to fulfil contains obligations to facilitate, provide and promote. The
obligation to respect requires States to refrain from interfering directly or indi-
rectly with the enjoyment of the right to health. The obligation to protect
requires States to take measures that prevent third parties from interfering
with article 12 guarantees. Finally, the obligation to fulfil requires States to
adopt appropriate legislative, administrative, budgetary, judicial, promotional
and other measures towards the full realization of the right to health.18
Notice that the committee asserts that all human rights, not merely eco-
nomic, social, and cultural rights, impose obligations to respect, protect,
and fulfill. Article 2.1 of the International Covenant on Civil and Political
Rights seems to confirm this assertion.
The committee also asserts that these three types of obligations require
a variety of measures to implement treaty rights, including legislative,
administrative, judicial, and others. But how is a state party to know pre-
cisely which measures are required by the obligations it has undertaken
under a human rights treaty to which it has agreed? A human rights treaty
often specifies requirements for the implementation of a right it recog-
nizes. For example, Article 12.1 of the International Covenant on Eco-
nomic, Social, and Cultural Rights recognizes the human right to health.
Article 12.2 then reads:
The steps to be taken by the States Parties to the present Covenant to achieve
the full realization of this right shall include those necessary for:
(a) The provision for the reduction of the stillbirth-rate and of infant
mortality and for the healthy development of the child;
(b) The improvement of all aspects of environmental and industrial
hygene;
(c) The prevention, treatment and control of epidemic, endemic,
occupational and other diseases;
(d) The creation of conditions which would assure to all medical service
and medical attention in the event of sickness.
Similarly, Article 14.3 of the International Covenant on Civil and Political

Rights describes the minimum, but only the minimum, guarantees
required to ensure the human right to a fair and public hearing in a crim-
inal trial. Although these requirements are very specific, they do not indi-
cate every requirement imposed by this human right upon a state party
that has agreed to the covenant.
Everything considered, a state partys obligations under a human rights
treaty are to take every measure necessary to respect, protect, and fulfill
each human right the treaty recognizes. And identifying which measures
are necessary in its legal system will require spelling out the content of
each human right in terms of its purpose, its relevance to the lives of the
human beings who possess it, and the kinds of threats to its exercise or
enjoyment that exist in the society.
2. A second relevant consideration is the nature of the state partys con-
stitution, whether written or unwritten. The fundamental principles of its
national legal system are relevant to how a state ought to implement a treaty
right in at least three ways. For one thing, they determine what measures are
necessary to implement a treaty right. For example, some constitutions pro-
vide that the ratification of a treaty automatically incorporates it into the
national legal system with full legal force. According to other constitutions,
additional measures may be required in order to implement it fully.
Although Article 6 of the United States Constitution specifies that
This Constitution, and the Laws of the United States which shall be
made in Pursuance thereof, and all Treaties made, or which shall be made,
under the Authority of the United States, shall be the Supreme Law of
the Land, many treaties, including most human rights treaties, require
legislative implementation to be applicable in the courts. As Chief Justice
Gibson of the Supreme Court of California explains in a case involving
the human rights provisions of the United Nations Charter:
A treaty, however, does not automatically supersede local laws which are
inconsistent with it unless the treaty provisions are self-executing. . . . In order
for a treaty provision to be operative without the aid of implementing legisla-
tion and to have the force and effect of a statute, it must appear that the fram-
ers of the treaty intended to prescribe a rule that, standing alone, would be
enforceable in the courts.19
If this requirement is not met, the treaty is non-self-executing and

without full legal force.
Similarly, although for a different reason, human rights treaties are not
applicable in United Kingdom courts without implementing legislation.
According to its unwritten constitution, the treaty-making power is
vested in the Crown, Her Majesty acting on the advice of her ministers,
as part of the royal prerogative. Hence, to give treaties full legal force
without further legislation would violate the constitutional principle of
the supremacy of Parliament. Although the United Kingdom was a state
party to the European Convention on Human Rights, for several years its
citizens who wished to petition for a remedy for an alleged violation of
some convention right had to appeal to the European Human Rights
Court in Strasbourg. Accordingly, the stated purpose of the United King-
dom Human Rights Act of 1998 is not to recognize any new human
rightsthese had been recognized when the European Convention was
ratifiedbut to give further effect to rights and freedoms guaranteed
under the European Convention on Human rights. Henceforth the
human rights in this treaty could be enforced in the judicial system of the
United Kingdom.
The states constitution also determines which kinds of implementa-
tion are possible. The fundamental principles of a legal system allocate
legal powers between and within the executive, legislative, and judicial
branches. The extent to which the courts could implement a human right
will depend upon whether judicial review is recognized and respected in
a municipal legal system. And in a federal system that reserves certain
powers to the states or provinces, the federal government alone may be
unable to fully implement the human rights in a treaty to which it has
agreed.
Finally, a states constitution will limit the legally permissible measures
to implement a human right. For example the Fourth Amendment to the
United States Constitution prohibits unreasonable searches and seizures.
This renders impermissible a variety of measures that the police might
otherwise take to protect the human rights to life, liberty, and property of
those subject to its jurisdiction.
Article 27 of the Vienna Convention on the Law of Treaties reads in
part, A party may not invoke the provisions of its internal law as justifi-
cation for its failure to perform a treaty. Does this imply that any consti-
tutional prohibitions of possible measures to implement a treaty right are
irrelevant? They are irrelevant to the state partys choice of whether to
fulfill its obligations under a human rights treaty, but they are not irrele-
vant to the choice of how to fulfill its obligations. It ought not to imple-
ment any treaty right by any measure that is constitutionally impermissible.
Suppose, however, that a constitution limits permissible measures so
severely that no effective implementation is permissible. Then a state
party has an obligation under international law to amend its constitution
to permit it to carry out its obligations under any human rights treaty to
which it has agreed. And presumably if the human rights recognized in

that treaty protect fundamental moral human rights, then constitutional
change is also morally required.
3. Another relevant consideration is the effectiveness of the available
means of implementation. When choosing how to implement any treaty
right, obviously a state party ought to choose more rather than less effec-
tive measures. Effectiveness is, of course, relative to the end or goal one is
attempting to achieve. In this context, what is relevant is the effectiveness
of any measure to fulfill the states treaty obligations to respect, protect,
and fulfill the rights recognized in the human rights treaty. Thus, it is not
a question of choosing the one and only most effective means of imple-
mentation. What a state party ought to do is to choose those combina-
tions of measures that together will best enable it to respect, protect, and
fulfill every treaty right.
Many lawyers assume that essential to any effective implementation of
a human right in a national legal system is rendering it justiciable. Their
reasoning is often pragmatic. Right-holders are in the best position to
know when one of their rights has been violated and have the strongest
motive to seek a remedy. Hence, giving them the legal power to petition a
court to enforce their right will be the most effective means of protecting
that right. An alternative is to confer the power to petition a court upon
some public official, but there may be a conflict of interest when it is the
state that is violating the rights of those subject to its jurisdiction. Either
option requires that the human right be justiciable, that some court be
empowered to hear and decide petitions concerning the right and that the
content of the right be defined with enough precision to enable a court to
reach determinate decisions in cases brought before it. However, whether
justiciability will in practice protect a human right effectively depends
upon whether the national legal system recognizes judicial review and has
a strong tradition of respecting judicial decisions. Without the former, the
legislature can override any court decision, and without the latter, the
administration can ignore any unfavorable ruling of the courts.
Moreover, even when measures to render a human right justiciable are
effective, they are not sufficient for the full implementation of that right.
This is obviously true of economic and social rights. To protect the human
right to health, state parties must today set standards to license medical
practitioners by legislation or administrative rules and to fulfill that right
for all they must create and fund a public health service or some form of
health insurance. To implement the right to education under modern con-
ditions requires the creation and funding of a system of public schools, at
least on the elementary level. But the same is true of civil and political
rights. Protecting the civil right to life requires a state party to pass legis-
lation making most forms of homicide crimes and providing a police force
with the resources to enforce this legislation. And to fulfill the political
right to vote a state must set up a system to register voters and provide
voting places and pay officials to oversee both registration and voting.
4. Hence, another relevant consideration is the available resources.

Although at any given time the bottom line is primarily a matter of cur-
rently available goods and services and the trained personnel to create and
deliver them, in the long run available resources also include the natural
resources and the technical expertise to expand goods and services. Both
the International Covenant on Economic, Social, and Cultural Rights and
the International Covenant on Civil and Political Rights recognize a
variety of human rights, each requiring considerable resources to be fully
implemented. A state party to either of these treaties must consider its
available resources in deciding how to fulfill its obligations to respect,
protect, and fulfill these rights; choices concerning how to implement
human rights will be doubly complicated for any state party to both
treaties. Nor does the obligation to implement human rights exhaust the
demands upon the resources available in any society. As the Constitu-
tional Court of South Africa observed: There are many pressing demands
on the public purse. As we said in Soobramoney: The State has to manage
its limited resources in order to address all these claims. There will be
times when this requires it to adopt a holistic approach to the larger needs
of society rather than to focus on the specific needs of particular individ-
uals within society.20 Thus, not all the resources available within a
society ought to be used to implement the human rights in any or all
human rights treaties to which a nation-state has agreed.
How should it determine the relative degree of implementation for
each treaty right? James W. Nickel hints at one possible answer: We can
think of the emergence of a human right as the coming together of the
recognition of a problem; the belief that the problem is very severe; and
optimism about the possibility of addressing it through social and polit-
ical action at national and international levels.21 Primarily, but not exclu-
sively, a relevant problem consists in the widespread violation of some
presupposed moral human right. Its severity is a matter of how much
harm these violations cause for the human beings who possess this right.
And for present purposes, how reasonable optimism about addressing this
problem through social and political action is depends upon how effec-
tive implementing an analogous treaty right would be. Therefore, in
choosing how to allocate scarce resources for the implementation of
treaty rights, a state party ought to allocate its available resources in pro-
portion to the degree of harm those subject to its jurisdiction are likely to
suffer from violations of this right and the relative effectiveness of allo-
cating certain resources for the implementation of this treaty right rather
than that of some other treaty right.
5. Finally, the presupposed moral human right or some comparable
moral value is relevant to how a state party ought to implement any treaty
right. Normally an international human right is instituted to secure some
analogous moral human right. For example, the civil right to life is
intended to protect the basal moral human right to life, and the economic
right to social security is designed to fulfill the derived moral right to
social security under the conditions of modern societies. Sometimes the

moral purpose of an international human right may be a different sort of
moral value such as distributive justice or peace. Thus, the implementa-
tion of human rights in a municipal legal system is ultimately a means
toward one or more presupposed moral ends. Therefore, in choosing how
to implement any treaty right, a state party ought to consider which
measures will be most effective in achieving this moral purpose.
4. CONCLUSION
A fourth way in which human rights are recognized in a national legal

system is by the ratification or acceptance of an international human
rights treaty. This option raises a number of moral questions. First, when
ought a state to agree to a human rights treaty? As a general rule, a state
ought to agree to a human rights treaty when it is sponsored by the United
Nations, when it would contribute significantly to an international legal
system that promotes respect for and observance of human rights, and
above all when it would improve the protection of human rights within
its own legal system. The reasons most often advanced against agreeing to
a human rights treaty are either relatively weak or can be met by entering
reservations to an agreed treaty.
Second, when is a state morally justified in entering reservations to an
international human rights treaty? Most often this is when some reserva-
tion is necessary in order to prevent conflict with the national constitu-
tion, or to prevent the diminished protection of one or more human rights
already established in that system, or to reduce the accepted obligations
to fit the available resources. Although it may sometimes be justified to
enter a reservation in order to reduce political opposition to ratification or
to eliminate conflict with religious law or doctrine, these reasons are often
subject to abuse. It is almost never justified to enter a reservation to limit
the competence of international courts or to avoid revision of domestic
legislation.
Third, how ought a state party to implement the human rights recog-
nized in a treaty to which it has agreed? Because the national constitution
will limit permissible kinds of implementation and the most effective
measures will vary from one state to another, no general, much less uni-
versal, answer to this question is justified. However, one can generalize
about the relevant considerations. These include the content of the inter-
national obligations a state has undertaken by agreeing to the treaty, the
nature of the states constitution, the relative effectiveness of the available
means of implementation, the amount and kind of available resources,
and any moral human right or comparable moral value presupposed by
the international human right to be implemented.
Let me emphasize two of the moral presuppositions implicit in the
reasoning by which I reached each of these sets of conclusions. First, moral
human rights often justify the recognition of the rights recognized in

human rights treaties. Because these treaty rights serve to reduce the
harm human beings would suffer from their violation, they ought to be
limited only when necessary for some important state purpose. Second,
the legal rule pacta sunt servanda is also a strongly justified moral prin-
ciple. Therefore, nation-states ought to implement effectively the rights
recognized in any human rights treaty to which they have agreed.
12
Moral Dimensions
The contemporary idea of human rights is a child of the traditional nat-

ural rights theories of Hugo Grotius, Thomas Hobbes, Samuel Pufendorf,
and John Locke. Although many authorities on human rights believe that
the child has completely shed its ancestry, I do not. Those who introduced
human rights into international law after the Second World War thought
that they were reaffirming and protecting preexisting moral rights, les
droits de lhomme. Although they did not necessarily presuppose that
these rights are conferred by any divine or purely rational natural law,
they did assume that they are natural rather than artificial, meaning that
they exist independently of any positive law or other social institutions.
And several national constitutions explicitly or implicitly recognize the
natural rights or fundamental moral rights of individual persons. Hence,
any complete theory of human rights must explain three kinds of human
rights: moral, international, and national. I have not attempted to present
a complete theory of human rights. Any such theory would also have to
be interdisciplinary. It would require the cooperative efforts of analytic
and moral philosophers, political scientists, lawyers, and intellectual histo-
rians. Since my expertise, such as it is, is limited to moral philosophy, I
have attempted only to identify and explain the most important moral
dimensions of each of the three kinds of human rights.
1. MORAL HUMAN RIGHTS
Like any real right, moral human rights are adversarial. This means that
their special moral relevance is to some potential confrontation between
a right-holder and one or more second parties against whom the right
holds. However, not all moral human rights are claim-rights and not all
second parties are bearers of corresponding moral duties. There are also
third parties in any moral human right, individuals or organizations in a
position to intervene in any conflict of wills between a right-holder and
some second party intent on violating his or her right. The political rele-
vance of moral human rights consists in the ways in which international
institutions and nation-states are both second and third parties in them.
197
Moral human rights determine the morally justified allocation of

dominion in any potential confrontation between right-holder and second
party. Each moral human right has a core moral position, typically a moral
liberty, claim, power, or immunity, that defines its essential content. But it
is a real right capable of holding against second parties only if it also
includes a number of associated moral positions that, if respected, confer
freedom and control over this defining core upon the right-holder in the
face of any second party that fails or refuses to respect his or her moral
right. Thus, essential to each moral human right is a sphere of dominion
or what H. L. A. Hart thought of as small-scale sovereignty.1
Basal moral human rights are universal because the status necessary
and sufficient for their possession is simply being human. Unlike special
rights that one possesses as a creditor or parent or citizen, one needs no
special status to possess basal moral human rights. However, it is necessary
that one be a human being in the morally relevant sense, a member of the
biological species of human beings who possesses the capacities for moral
action. The moral importance of this universality of moral human rights,
the fact that they are possessed equally by all classes of human beings, is
that they serve as moral reasons against discrimination on the grounds of
race, religion, nationality, or sex.
The grounds of moral human rights are the serious harms normally
inflicted upon the possessor by their violation. Thus, moral human rights
presuppose basic human needs, interests of all normal human beings such
that their setback seriously harms the right-holder. Basic human needs
concern only what is necessary to live a recognizably human life, not an
entirely or even overall satisfactory life. Because any moral right consists
in a complex of moral positions, a cluster of moral liberties, claims, powers,
and immunities, any moral human right must be grounded on a number
of harms that ground these different moral positions in various ways.
Finally, moral human rights are noninstitutional. Their existence
depends not upon any social institution or moral code but upon facts
about the ways that their violation normally inflicts serious harms upon
the right-holder. These facts are specifically moral reasons, reasons both
for second parties not to violate anyones moral human rights and for
those in society with any violator to react negatively to him or her. There-
fore, moral human rights are often reasons to justify recognizing and
implementing analogous rights in international and national law and
always reasons to demand the moral reform of any social institutions that
violate them.
2. INTERNATIONAL HUMAN RIGHTS
The Universal Declaration of Human Rights and many of the human

rights conventions that it spawned presuppose the existence of moral
human rights with a similar content. When there really is any such moral
Moral Dimensions 199
human right, it morally justifies recognizing and implementing a human

right in international law provided that this moral human right is seri-
ously threatened and that it can be implemented with reasonable effec-
tiveness without very harmful side effects.
There are, however, other moral justifications for incorporating some
human right in international law. These include, but are probably not
limited to, the prevention of war and the advancement of friendly rela-
tions between nation-states, preserving or increasing social justice in
international institutions, and eliminating racial, ethnic, religious, or sexual
discrimination. Because these are morally important goals and appro-
priate functions for international law, they can also justify recognizing and
implementing any international human right that contributes to their
achievement.
Most international human rights are recognized primarily in interna-
tional treaties. Treaties confer legal force upon these human rights because
treaties are one of the primary legal sources of international law. But
human rights treaties are also morally binding upon state parties because
pacta sunt servanda is a moral principle as well as a legally recognized rule.
A very few human rights are probably recognized in international cus-
tomary law. International customs are similarly morally binding because
consuetudo est servanda is also a morally justified principle.
The universality of moral human rights seems to imply that the inter-
national human rights that protect them ought to be equally universal.
Thus, because the General Assembly of the United Nations presupposed
the equal and inalienable rights of all members of the human family, it
proclaimed:
This Universal Declaration of Human Rights as a common standard of achieve-

ment for all peoples and all nations, to the end that every individual and every
organ of society, keeping this Declaration constantly in mind, shall strive by
teaching and education to promote respect for these rights and freedoms and
by progressive measures, national and international, to secure their universal
and effective recognition and observance, both among the peoples of the Mem-
ber States themselves and among the peoples of the territories under their
jurisdiction.2
However, one ought to distinguish between basal moral human rights that
are possessed by all normal human beings and derived human rights,
many of which are possessed only by a more limited range of individuals
living under the special circumstances that justify their derivation.
Accordingly, not all of the asserted international human rights ought to be
recognized and implemented in global international law.
A fundamental principle of international law reaffirmed in the United
Nations Charter is the equal sovereignty of all nation-states. I have
explained why this is also a morally justified principle. External sover-
eignty, freedom from interference in the domestic affairs of any state, is
justified as a condition for preserving peace and friendly relations between
states, as a means to promote cooperation for the shared purposes of

states, and as a necessary condition for the effective exercise of internal
sovereignty. Internal sovereignty, the right to make and enforce laws gov-
erning all persons within a states territory, is justified in order to enable
the state to protect those subject to its jurisdiction from the severe harms
they would suffer in anything approaching a state of nature and to protect
their moral human rights in a state of society. However, these justifica-
tions also imply certain limits upon national sovereignty. It ceases when a
nation-state is unable or unwilling to respect and protect the human
rights of its residents.
3. NATIONAL HUMAN RIGHTS
Just as a moral human right can justify the incorporation of a right with a
similar content in international law, so can it justify the incorporation of
an analogous right in a national legal system. This will be true when the
presupposed moral human right is very important, is under serious threat,
and can be effectively implemented without excessively harmful conse-
quences. The crucial consideration in choosing between alternative
methods of recognition and implementation is their relative effectiveness
in protecting the presupposed moral human right.
How ought a national legal system to recognize a moral human right?
I have argued that in most nation-states basal moral human rights and
some derived moral human rights ought to be recognized in a written
constitution. This is because they will then be incorporated into the most
fundamental law of the land and can be protected by judicial review.
Although recognition in the common law might be sufficient in a society
with a very strong respect for individual rights, even here they can be too
easily limited or denied in times of emergency. Still, judicial recognition
ought to supplement any written constitution by the redefinition of
abstract constitutional rights, the derivation of more specific rights, and
even the introduction of new rights. Very specific derived moral rights
ought to be recognized by legislation rather than written into a constitu-
tion, especially when they will be applied to rapidly changing circum-
stances. Finally, a nation-state ought to recognize many international
human rights by agreeing to human rights treaties, although sometimes
with reservations. Although the primary moral premise in my reasoning is
that many moral human rights ought to be legally protected, another is
the moral relevance of the circumstances of their application. These
matter, not only because they determine the effectiveness of any imple-
mentation, but also because the grounds of any moral human right reflect
the conditions of the lives of its possessors.
Another morally relevant consideration is the value of democracy, in
both ensuring the welfare of the members of a society and respecting
their moral human rights to political participation. I have argued against
those who reject recognizing moral human rights in a written constitu-

tion, by insisting that the value of democracy should be weighed against
other moral values, especially the strength of the protection given to a
wide range of moral human rights.
I have also argued that the constitutional rights that are designed to
protect moral human rights ought to be entrenched in order to protect
them from excessive limitation or even elimination. The strength of this
entrenchment ought to vary depending upon the strength of the respect
for moral human rights in the society but ought not to limit democratic
change more than absolutely necessary. My reasoning presupposes the
moral importance of the proper balance between the executive, legisla-
tive, and judicial powers in any national legal system. Because the greatest
threat to human rights comes from arbitrary actions of the administrative
agencies, the legislative power ought to be strong enough to ensure the
rule of law. However, because legislation often discriminates against
unpopular minorities or even caters to special interest groups inimical to
human rights, entrenchment is necessary to balance the power of the
judiciary, typically the weakest of the three branches of government,
against the legislature.
Finally, the recognition of moral human rights by the ratification of a
human rights treaty introduces another moral dimension, the moral obli-
gations of a nation-state to or regarding the international community. Pre-
sumably as a member of the United Nations, it ought ratify any human
rights treaty sponsored by the United Nations in order to fulfil its obliga-
tion to take joint and separate action in cooperation with the Organiza-
tion for the achievement of the purposes set forth in Article 55, including
promoting universal respect for, and observance of, human rights and
fundamental freedoms.3 It also ought to ratify most such treaties in order
to fulfil its moral obligations to contribute to an international legal system
that protects moral human rights and to promote respect for human
rights within other nation-states.
Although human rights can be recognized in any or all of four different
ways, they will be real rights, rights that actually have legal force in the
functioning of the national legal system, only if they are implemented.
Full implementation will involve application in the courts, the enactment
of implementing legislation, and administrative action. The primary con-
sideration here is to choose the means that will be most effective in pro-
tecting the moral human rights but has the least harmful side effects. My
many suggestions regarding implementation are highly speculative and
should be read with considerable skepticism. Lawyers and political scien-
tists are much better qualified than I regarding practical implementation.
My role is to point out that the ultimate moral reason to implement
human rights is to prevent the harms to individual persons that normally
arise from their violation.
The most appropriate way to implement any moral human right is to
confer upon the right-holder one or more auxiliary rights that would
enable him or her to enforce that right. This is because the essential func-
tion of any moral right is to determine how dominion, freedom and con-
trol over some defining core position, ought to be allocated. However, any
such auxiliary rights would need to be supplemented with a combination
of other methods of implementation to reliably protect the presupposed
moral human right.
There is one additional moral issue that calls for special consideration.
What is the proper role of judges in applying any human right or analo-
gous right recognized in a national legal system? I have argued that in
some cases judges ought to go beyond redefining human rights and
deriving more specific rights to introducing new rights and that they are
often justified in using the international law of human rights in interpret-
ing national human rights law. In this reasoning I have assumed that the
institutional role of a judge as a judge is defined by the customary prac-
tices of the legal system and that these sometimes justify these controver-
sial ways of applying recognized rights. Here, as in customary international
law, consuetudo est servanda is a morally justified principle.
4. A CASE STUDY
How are these moral dimensions relevant to the alleged use of torture by
the Bush administration in the interrogation of detainees to combat ter-
rorism? Any such torture of detainees would be at least an infringement
of and probably a violation of their moral human right not to be subjected
to public torture in interrogation. By public torture I mean torture by or
at the instigation of or with the acquiescence of one or more public offi-
cials. This is a moral human right derived by subsumption from the moral
human right not to be subjected to torture in general that is in turn
derived from the basal moral human right to personal security, for torture
is an extreme kind of psychological or physical attack upon anyone sub-
jected to it.
In addition, the moral human right not to be subjected to public tor-
ture in interrogation can be derived as a condition conducive to the secure
exercise or enjoyment of a number of other moral human rights. Among
the most salient of these are several specific moral human liberty-rights.
Public torture in interrogation can threaten, and historically has often
resulted in, the violation of a detainees moral human right to liberty of
movement, for it tends to extract a false confession that is then used to
imprison the detainee. For a Muslim, it might burden ones freedom of
religion, for manifesting ones Islamic faith might render one a terrorist
suspect. For anyone, it would threaten ones moral human right to free-
dom of expression because by criticizing the United States military
actions in Iraq and Afghanistan or its morally objectionable methods of
combating terrorism at home, even the most loyal citizen might well
become suspected of being a terrorist sympathizer. And it might make
someone afraid to join any group of which the Bush administration is

suspicious, thereby infringing ones moral human right to freedom of
association. To be sure, I have not established the existence of the moral
human rights to which I refer above, but they are among the most cred-
ible of what are usually taken to be moral human rights.
A supporter of the Bush administration might reply, correctly I believe,
that the moral human right not to be subjected to torture in public inter-
rogation is not absolute. That is, there could be and probably are some
circumstances under which it would not be morally wrong for a public
official to torture a detainee to obtain information necessary to prevent
imminent terrorism. The violent tactics of terrorists typically violate basal
moral human rights of those targeted, most obviously their rights to per-
sonal security, property, and even life. This tragic conflict of human rights
presents a hard choice to public officials, individuals acting for the na-
tion-state that has a moral obligation to protect the human rights of those
subject to its jurisdiction. Unfortunately, there is no easy way to resolve
conflicts between moral human rights. Because each moral human right
will have greater or lesser moral force depending upon the circumstances,
one cannot generalize to a hierarchy of human rights in which the most
important always take priority over others. Ultimately, one must discover
the morally relevant facts that ground the conflicting rights and balance
their respective weights for the choice at hand.
Any use of torture by the Bush administration in the interrogation of
detainees to combat terrorism would also be a clear violation of the inter-
national human right not to be subjected to public torture in interrogation.
Article 1 of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment reads in part:
For the purposes of this Convention, the term torture means any act by
which severe pain or suffering, whether physical or mental, is intentionally
inflicted on a person for such purposes as obtaining from him or a third person
information or a confession . . . when such pain or suffering is inflicted by or at
the instigation of or with the consent or acquiescence of a public official or
other person acting in an official capacity.
The Preface to this convention indicates that this is a more specific inter-
national human right than the general human right not to be subjected to
torture proclaimed in Article 5 of the Universal Declaration of Human
Rights and Article 7 of the International Covenant on Civil and Political
Rights.
The Convention against Torture imposes definite legal obligations
upon any nation-state that agrees to this international treaty. Positively, it
requires that Each State Party shall take effective legislative, administra-
tive, judicial or other measures to prevent acts of torture in any territory
under its jurisdiction.4 Negatively it requires that No State Party shall
expel, return (refouler) or extradite a person to another State where
there are substantial grounds for believing that he would be in danger of
being subjected to torture.5 Moreover, no exceptional circumstances may

be invoked to justify public torture.6 Accordingly, this international
human right not to be subjected to torture, unlike the moral human right
that it is intended to protect, is absolute, legally binding without excep-
tion.
Because pacta sunt servanda, a legal rule in customary international law
and one made explicit in the Vienna Convention on the Law of Treaties,
is also a moral principle requiring that agreements must be performed,
any nation-state that ratifies either the Convention against Torture or the
International Covenant on Civil and Political Rights has a moral obliga-
tion not to subject detainees to torture in public interrogation and not to
engage in rendition for that purpose. More than the moral human right
not to be tortured is at stake here, for this right is a derived right grounded
on several more fundamental moral human rights. The moral obligation of
a nation-state to respect human rights treaties is also strengthened by the
fact that serious violations of human rights tend to damage international
peace and security, both essential for the welfare of the entire interna-
tional community.
There is also a human right not to be subjected to torture established
in customary international law. After describing the development of the
international custom concerning torture, Antonio Cassese concludes: By
now a general rule has evolved in the international community, (i) prohib-
iting individuals from perpetrating torture, regardless of whether it is
committed on a large scale, and (ii) authorizing all States to prosecute and
punish the alleged author of such acts, irrespective of where the acts were
perpetrated and the nationality of the perpetrator or the victim.7 This
international human right is applicable to any public torture of detainees
in counterterrorism interrogation.8
It clearly imposes an obligation under international law upon all public
officials, whether or not their nation-states have ratified any treaties pro-
hibiting torture, not to engage in or instigate or acquiesce in torture.
Because consuetudo est servanda, custom is to be observed, is both a cus-
tomary rule of international law and a moral principle, all public officials
and the nation-states for whom they are acting have a moral obligation
not to resort to torture in interrogation. And if a nation-state does violate
the human rights of those subject to its jurisdiction, it undermines its
claim to sovereignty in international law. A crucial ground of its moral
right to sovereignty, including its right to make and enforce laws, is that
the state is necessary to protect the moral human rights of its subjects.
Thus, whenever it violates any of these moral human rights, it weakens
the moral justification for its exercise of national sovereignty. Finally,
because customary law is fundamental to the entire system of interna-
tional law and international law is necessary to enable nation-states to
coexist without war and to cooperate to promote their various purposes,
nation-states also have a moral obligation not to undermine international
law by refusing to abide by any established international custom.
The United States ratified the International Covenant on Civil and

Political Rights in 1992. Article 7 of this document recognizes a general
international human right not to be subjected to torture or to cruel,
inhuman, or degrading treatment or punishment clearly applicable to tor-
ture in public interrogation. And Article 2 imposes upon each state party
an obligation under international law to adopt such legislative or other
measures as may be necessary to give effect to the rights recognized in the
present Covenant. When the United States deposited its ratification at
the United Nations it added, among other qualifications, That the United
States declares that the provisions of Articles 1 through 27 of the Cove-
nant are not self-executing. According to its legal practices, this means
that none of the human rights it recognizes are justiciable until imple-
mented by legislation. As far as I have been able to ascertain, however,
there is no federal statute implementing Article 7 of this covenant. To my
mind, this is a violation of its legal obligation under Article 2 and a moral
failure to perform its agreement in good faith. In any event, it is a failure
to provide adequate legal protection to the presupposed general moral
human right not to be subjected to torture.
The United States has also ratified the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment. Article 1
of this treaty recognizes a more specific human right not to be subjected
to torture that explicitly includes torture for such purposes as obtaining
from him or a third person information . . . when such pain and suffering
is inflicted by or at the instigation of or with the consent or acquiescence
of a public official or other person acting in an official capacity. There can
be no doubt that this international human right would apply to any act
of torture in public interrogation carried out or authorized by the Bush
administration. However, when the Senate gave its advice and consent
it insisted on substantial reservations and understandings. Reservation
(1) reads:
That the United States considers itself bound by the obligation under Article
16 to prevent cruel, inhuman or degrading treatment or punishment, only
insofar as the term cruel, inhuman or degrading treatment or punishment
means the cruel, unusual and inhumane treatment or punishment prohibited
by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of
the United States.
Although this reservation probably narrows the intended meaning of

this term, it may well be morally justified in order to make it possible for
the United States to implement Article 16 without rendering its efforts
unconstitutional on grounds of vagueness.
But no such justification exists for the understanding (1)(a) applicable
to the obligations of the United States under this convention:
That with reference to Article 1, the United States understands that, in order
to constitute torture, an act must be specifically intended to inflict severe phys-
ical or mental pain or suffering and that mental pain or suffering refers to
prolonged mental harm caused by or resulting from: (1) the intentional inflic-
tion or threatened infliction of severe physical pain or suffering; (2) the admin-
istration or application, or threatened administration or application, of mind
altering substances or other procedures calculated to disrupt profoundly the
senses or the personality; (3) the threat of imminent death; or (4) the threat
that another person will imminently be subjected to death, severe physical pain
or suffering, or the administration or application of mind altering substances or
other procedures calculated to disrupt profoundly the senses or personality.
This understanding reinterprets the meaning of the term torture as

defined in the Convention against Torture in such a way that it unjustifi-
ably limits the obligation to protect the moral right not to be subject to
torture in public interrogation under United States law. And this limita-
tion is not required by any significant vagueness in the original definition.
As one would expect, this understanding is carried over to the defini-
tion of torture in the statute that implements, in part, the Convention
against Torture by making torture in public interrogation a criminal
offence.9 The Bush administration sought to evade even this limited stat-
utory protection against torture in public interrogation. In a memorandum
of August 1, 2002, entitled Standards of Conduct for Interrogation under
18 U.S.C. 23402340A, Jay S. Bybee, assistant attorney general, pre-
sented a number of arguments intended to undermine the legal restraints
on harsh interrogations outside the United States. (1) The definition of
severe pain in the statute under consideration should be interpreted in
the light of its definition in another statute with a different purpose to
limit it to pain that would place the health of the individual in serious
jeopardy, serious impairment of bodily functions, or serious dysfunction
of any bodily organ or part.10 (2) Only the prolonged mental harm caused
by one of the four acts enumerated in the statute constitutes severe men-
tal harm or suffering. Pain or suffering inflicted by any other kind of act is
not prohibited torture even though it results in prolonged mental harm.11
(3) Even if an interrogation method arguably were to violate Section
2340A, the statute would be unconstitutional if it impermissibly
encroached on the Presidents constitutional power to conduct a military
campaign. And because the presidents power as commander in chief is
virtually unlimited, Bush had almost unlimited discretion regarding
legally permissible methods of interrogation in the war against Al Qaeda.12
(4) Even if some method of harsh interrogation might arguably cross the
line and the application of the statute was not held unconstitutional, any
defendant indicted for acts of torture in public interrogation would have
the defenses of necessity and self-defense to eliminate criminal liability.13
Whatever might be said of the legal validity of these arguments, they are
surely attempts to evade the moral obligation of the United States to per-
form in good faith its obligations in international law under the Conven-
tion against Torture and its moral responsibility to protect the moral
human right not to be subjected to torture presupposed in that interna-
tional treaty.
The United States ratified the four Geneva Conventions for the Pro-
tection of Victims of War, the primary sources of international humani-
tarian law, in 1949. Article 17 of the Geneva Convention Relative to the
Treatment of Prisoners of War, Geneva Convention III, specifies that No
physical or mental torture, nor any other form of coercion, may be
inflicted on prisoners of war to secure from them information of any kind
whatever. Prisoners of war who refuse to answer may not be threatened,
insulted, or exposed to any unpleasant or disadvantageous treatment of
any kind. Presumably, then, any use of torture by the Bush administration
in the interrogation of those detained in the war against terrorism would
be a war crime under international law. And it would also seem to consti-
tute a war crime under United States law because the War Crimes Act
makes any act that is defined as a grave breach in any of the Geneva Con-
ventions a war crime.14 Article 130 of the Geneva Convention III defines
a grave breach to include any of the following acts, if committed against
persons or property protected by the Convention: willful killing, torture
or inhuman treatment, including biomedical experiments, willfully
causing great suffering or serious injury to body or health. The War
Crimes Act also defines as a war crime any act that constitutes a violation
of common Article 3 of the Geneva conventions. And common Article 3
prohibits, among other acts Violence to life and person, in particular
murder of all kinds, mutilation, cruel treatment and torture.15
Nevertheless, in a memorandum of January 22, 2002, Jay S. Bybee
advised the counsel to the president and the general counsel of the
Department of Defense that this is not so. Among other things, he argued
that the Geneva Convention III does not apply to Al Qaeda for three rea-
sons. It is a treaty between nation-states, and Al Qaeda is not a nation-state.
Al Qaeda members fail to satisfy the eligibility requirements for treatment
as prisoners of war as specified in the convention. And Geneva Conven-
tion III applies only to wars between nation-states and civil wars within a
single state, but Al Qaeda is not a nation-state and operates in many coun-
tries.16 Moreover, it need not be applied to any Taliban detainees. It is an
international treaty between nation-states, but Afghanistan under the Tal-
iban was a failed state even before the United States began military oper-
ations against the Taliban.17 President Bush had the constitutional authority
to suspend the Geneva Convention III if he judged that this was necessary
to carry out his duties as commander in chief.18 Even if he did not suspend
the convention, President Bush could justify deviations from the require-
ments of the convention by self-defense and feasibility.19 Finally, Taliban
detainees, like the members of Al Qaeda, do not fall into any of the cate-
gories that define prisoners of war under the Geneva Convention III.
Leaving aside the legal validity of these arguments to evade humanitarian
international law, they leave untouched the moral obligations imposed by
the humanitarian principles of morality, the principles that inflicting
unnecessary suffering is morally wrong and that moral human rights must
be respected.
In its restatement of the foreign relations law of the United States, the
American Law Institute summarizes the international law of human
rights. It reports that in addition to any human right not to be tortured
conferred by treaty, there is a human right not to be tortured in customary
international law.20 The international legal obligations imposed by this
right are both jus cogens, peremptory, and erga omnes, owed to all other
states.21 The American Law Institute cites the Barcelona Traction case,
explaining that basic human rights are of such importance to the interna-
tional community as a whole that all states have a legal interest in their
protection.22 It also asserts that the customary law of human rights is part
of the law of the United States.23 This implies that the customary interna-
tional law of human rights imposes an obligation under United States law
as well as under international law on the Bush administration not to use
torture in the public interrogation of detainees, an obligation independent
of and additional to the obligations imposed by ratified human rights
treaties.
Bybee rejects any such implication. He argues that the text of the
United States Constitution nowhere limits the presidential power by cus-
tomary international law,24 and that it is well-accepted legal doctrine that
the political branches of government are permitted to override customary
international law within their respective spheres of authority,25 and finally
that allowing the federal courts to rely upon international law to restrict
the presidents discretion to conduct war would raise deep structural
problems in constitutional law.26 Bybee concludes that customary interna-
tional law does not bind the president or the United States in their
decisions concerning the detention conditions of Al Qaeda and Taliban
prisoners.27 Even if these arguments were valid concerning United States
law, which I doubt, they do not respond in any way to the obligations of
the United States under international law. And because consuetudo est
servanda is a moral principle as well as a fundamental principle of cus-
tomary international law, they do nothing to rebut the moral obligation of
the United States not to subject detainees to torture in public interroga-
tion. Indeed, consuetudo est servanda is the most fundamental principle in
all international law. It is the principles of customary international law
that constitute its unwritten constitution, and all of these presuppose that
international customs are legally binding because custom is to be observed.
And because of the importance of international law for the peace and
security of all nation-states, the United States, like every other nation-state,
has a moral obligation not to weaken international law by failing or
refusing to observe its foundation, customary international law.
This case study illustrates how a variety of moral dimensions of human
rights are relevant to controversial issues such as whether it is ever legally
or morally permissible to use torture in public interrogation. Moral human
rights and the fundamental human needs upon which they are grounded
constitute a noninstitutional moral standard of individual action and
public policy. Because moral human rights are presupposed in many
international human rights treaties and some rights in national law, they
are also relevant to the legal permissibility of morally questionable
decisions. The legally and morally binding nature of human rights treaties
and customary international human rights rests on the legal and moral
principles pacta sunt servanda and consuetudo est servanda. Basic human
rights impose obligations erga omnes because of their importance for the
entire international community. Among the values that strengthen the
moral obligations imposed by international human rights and those
human rights incorporated into national law are international peace and
security together with the indispensability of international cooperation in
dealing with the global problems facing every nation-state and humanity
as a whole.
There are three kinds of human rightsmoral, international, and
national. Each has its own moral dimensions, but from a moral point of
view, it is moral human rights that are most fundamental. This is because
they are presupposed by much of the international law of human rights
and by many of the rights recognized in almost every modern national
legal system. Therefore, one cannot understand their incorporation in
international and national law or the political power of the human rights
movement without an understanding of moral human rights. To be sure,
this is only a small part of any complete theory of human rights, but it is
a part that is far too often neglected or even denied today. Let us not for-
get this aspect of the human rights tradition as we move forward to the
improved protection of moral human rights in the future.
Cases Cited
Barcelona Traction, Light and Power Company, Limited, Case, Judgment,

ICJ Reports, 1970, p. 3.
Brown et al. v. Board of Education of Topeka et al., 347 U.S. 483 (1954).
Case of the S.S. Lotus, PCIJ Reports, series A, number 10, 1927, p. 4.
Corfu Channel Case, ICJ Reports, 1949, p. 22.
Cruzan v. Director, MO Health Dept., 497 U.S. 261 (1990).
Ezelin v. France, 14 EHRR 362 (1991).
Filartiga v. Pena-Irala, 630 F.2nd 876 (1980).
Government of the Republic of South Africa et al v. Grootboom, Consti-
tutional Court of South Africa, Case CCT 11/00, Judgment of 4
October 2000, South African Law Reports 2001(1).
Griswold v. Connecticut, 381 U.S. 479 (1965).
Hertzberg and Others v. Finland, UN Human Rights Committee, Com-
munication No. 61/1979, 2 April 1982, CCPR/C/15/D/61/1979.
Ireland v. United Kingdom, A. 25 2 EHRR 25 (1978).
Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952).
Lawrence et al. v. Texas, 539 U.S. 558 (2003).
Meyer v. State of Nebraska, 262 U.S. 390 (1923).
Minister of Health et al. v. Treatment Action Campaign et al., Constitu-
tional Court of South Africa, Case CCT 8/02, Judgment of 5 July
2002.
Nationality Decrees in Tunesia and Morocco, PCIJ Reports, series B,
number 4, 1923, p. 24.
North Sea Continental Shelf, Judgment, ICJ Reports, 1969, p. 3.
Reservations to the Convention on the Prevention and Punishment of the
Crime of Genocide, ICJ Reports, 1951, p. 15.
Ryan v. Attorney General (1965), IR 294.
Schenck v. United States, 249 U.S. 47 (1919).
Sei Fujii v. State of California, 242 P.2nd 617 (1942).
Skinner v. Oklahoma, 316 U.S. 535 (1942).
South West Africa Cases (Second Phase), ICJ Reports, 1966, p. 6.
Threat of Use of Nuclear Weapons Cases (Advisory Opinion), ICJ Reports,
1996, p. 226.
211
Notes
Chapter 1
1. Louis Henkin, The Rights of Man Today (London: Stevens & Sons, 1978),
p. 5.
2. Antonio Cassese, International Law (Oxford: Oxford University Press,
2001), p. 349.
3. United Nations Charter (1945), Article 1.3.
4. Human Rights, Comments and Interpretations, edited by UNESCO (London:
Allan Wingate, 1949).
5. D. D. Raphael (ed.), Political Theory and the Rights of Man (Bloomington:
Indiana University Press, 1967).
6. See Gregory Vlastos, Justice and Equality, in Richard B. Brandt (ed.),
Social Justice (Englewood Cliffs, NJ: Prentice-Hall, 1962), pp. 3172; and Richard
Wasserstrom, Rights, Human Rights, and Racial Discrimination, Journal of
Philosophy 61 (1964), pp. 628641.
7. Joel Feinberg, Social Philosophy (Englewood Cliffs, NJ: Prentice-Hall,
1973), p. 85.
8. Rex Martin and James W. Nickel, Recent Work on the Concept of Rights,
American Philosophical Quarterly 17 (1980), p. 175.
9. James W. Nickel, Making Sense of Human Rights, 2nd ed. (Oxford:
Blackwell, 2007), p. 7.
10. Joseph Raz, Human Rights without Foundations, in S. Besson and
J. Tasioulas (eds.), The Philosophy of International Law (Oxford: Oxford University
Press, 2010), p. 323.
11. Ibid., p. 327.
12. Ibid., p. 323.
13. John Rawls, The Law of Peoples (Cambridge, MA: Harvard University Press,
1999), p. 9.
14. Ibid., p. 32.
15. Rex Martin, A System of Rights (Oxford: Clarendon Press, 1993), p. 88.
16. Ibid., p. 90.
17. Ibid., p. 89.
213
214 Notes to Pages 1021
18. L. W. Sumner, The Moral Foundation of Rights (Oxford: Clarendon Press,

1987), pp. 114118.
19. Carl Wellman, Real Rights (New York: Oxford University Press, 1995),
pp. 4959 and 6577.
20. Rex Martin, A System of Rights, pp. 7780, and Human Rights: Constitu-
tional and International, in David A Reidy and Mortimer N. S. Sellers (eds),
Universal Human Rights (Lanham, MD: Rowman & Littlefield, 2005), pp. 4143.
21. Martin, A System of Rights, pp. 8284, and Human Rights: Constitutional
and International, p. 40.
22. Martin, A System of Rights, 8487 and Human Rights: Constitutional and
International, p. 40.
23. Derrick Darby, Unnatural Rights, Canadian Journal of Philosophy
33 (2003), pp. 5265.
24. Thomas Pogge, World Poverty and Human Rights (Malden, MA: Polity Press,
2002), n. 97, p. 226.
25. Ibid., p. 64.
26. Ibid., pp. 6465.
27. Ibid., pp. 6466.
28. Ibid., p. 65.
29. Ibid., p. 64, quoting David Luban.
30. Ibid., pp. 6567.
31. Charles R. Beitz, Human Rights and the Law of Peoples, in Deen Chaterjee
(ed.), The Ethics of Assistance (Cambridge: Cambridge University Press, 2004),
p. 198.
32. Charles R. Beitz, What Human Rights Mean, Daedalus 132 (2003), p. 41.
33. Ibid., p. 42.
34. Ibid., p. 43.
35. Ibid., p. 198.
36. Beitz, Human Rights and the Law of Peoples, p. 196.
37. Beitz, What Human Rights Mean, p. 44.
Chapter 2
1. Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in
Judicial Reasoning (New Haven, CT: Yale University Press, 1919). What Hohfeld
labeled a privilege I have called a liberty because that is now the standard ter-
minology.
pp. 4978.
3. Carl Wellman, Human Rights and Natural Law, World Constitutional Law
Review 5 (2000), pp. 93111.
4. Wellman, Real Rights, pp. 105136.
Notes to Pages 2235 215
5. Carl Wellman, An Approach to Rights (Dordrecht: Kluwer Academic,

1997), pp. 127140.
6. Hohfeld, Fundamental Legal Conceptions, p. 38.
7. Joel Feinberg, Rights, Justice, and the Bounds of Liberty: Essays in Social Phi-
losophy (Princeton, NJ: Princeton University Press, 1980), p. 155.
8. Henry Shue, Basic Rights: Subsistence, Affluence, and U. S. Foreign Policy,
2nd ed. (Princeton, NJ: Princeton University Press, 1996), pp. 1415; and Jack
Donnelly, Universal Human Rights in Theory and Practice, 2nd ed. (Ithaca, NY:
Cornell University Press, 2003), p. 8.
9. Louis Henkin, The Rights of Man Today (London: Stevens & Sons, 1978), p. 2.
10. Jack Donnelly, Human Rights and Human Dignity: An Analytic Critique
of Non-Western Conceptions of Human Rights, American Political Science Review
76 (1982), p. 306.
11. Wellman, An Approach to Rights, pp. 8182.
12. John Locke, The Second Treatise of Government, in Two Treatises of Govern-
ment, ed. by Peter Laslett (Cambridge: Cambridge University Press, 1960), p. 271,
italics in original.
13. I originally called these rights basic rights, but I have abandoned this label
because it is misleading. Henry Shue has preempted this label and by suggesting
a minimal moral standard it is more appropriate for his purposes than for mine.
14. For the distinction between general and special rights, see H. L. A. Hart,
Are There Any Natural Rights? Philosophical Review 64 (1955), pp. 187188.
15. Rex Martin, Human Rights and Civil Rights, Philosophical Studies
37 (1980), p. 400.
16. Wellman, Real Rights, pp. 4148.
17. Feinberg, Rights, Justice and the Bounds of Liberty, p. 85.
18. Donnelly, Universal Human Rights in Theory and Practice, p. 1.
19. Charles Beitz, What Human Rights Mean, Daedalus, 132 (2003), p. 43.
20. American Anthropological Association (AAA), Statement on Human
Rights, American Anthropologist 49 (1947), p. 542.
21. Ibid.
22. Wellman, Real Rights, pp. 39 and 48.
23. Adamantia Pollis and Peter Schwab, Human Rights: A Western Construct
with Limited Applicability, in Adamantia Pollis and Peter Schwab (eds.), Human
Rights: Cultural and Ideological Perspectives(New York: Praeger, 1980), p. 2.
24. Donnelly, Human Rights and Human Dignity, p. 303.
25. AAA, Statement on Human Rights, p. 541, italics in original.
26. Donnelly, Universal Human Rights in Theory and Practice, p. 112 .
27. AAA, Statement on Human Rights, p. 540.
28. Pollis and Schwab, Human Rights, p. 3.
29. Ibid., p. 12.
30. Compare Wellman, An Approach to Rights, p. 248.
31. See Carl Wellman, A Theory of Rights: Persons under Laws, Institutions, and
Morals (Totowa, NJ: Rowman & Allanheld, 1985), pp. 147158.
32. Donnelly, Human Rights and Human Dignity, p. 304.
33. Ibid., p. 306.
34. Shue, Basic Rights, p. 15.
35. Ibid., p. 16, italics in original.
36. Ibid., pp. 17 and 3233.
Chapter 3
1. See D. D. Raphael (ed.), Political Theory and the Rights of Man (Bloom-
ington, IN: Indiana University Press, 1967), p. 57; Joel Feinberg, Social Philos-
ophy (Englewood Cliffs, NJ: Prentice-Hall, 1973), p. 85; Rex Martin, Human
Rights and Civil Rights, Philosophical Studies 37 (1980), pp. 394397; and
Alan Gewirth, Human Rights (Chicago: University of Chicago Press, 1982),
pp. 23.
2. Carl Wellman, A New Conception of Human Rights, in Eugene Kamenka
and Alice Erh-Soon Tay (eds.), Human Rights (New York: Saint Martins Press,
1978), pp. 5556.
3. Carl Wellman, An Approach to Rights (Dordrecht: Kluwer Academic,
1997), pp. 245247.
4. Carl Wellman, A Theory of Rights: Persons under Laws, Institutions, and
Morals (Totowa, NJ: Rowman & Allanheld, 1985), pp. 3542 and 143146.
5. Cruzan v. Director, MO. Health Dept., 497 US 261 (1990) at 345346,
6. See H. L. A. Hart, Are There Any Natural Rights? Philosophical Review 64
(1955), pp. 175191; and Ronald Dworkin, Taking Rights Seriously (Cambridge,
MA: Harvard University Press, 1977), pp. 266278.
pp. 5965.
8. For a somewhat fuller explanation, see Carl Wellman, Medical Law and
Moral Rights (Dordrecht: Springer, 2005), pp. 6667.
9. As suggested by Hugo Bedau, The Right to Life, Monist 52 (1968), p. 571;
and Susan Moller Okin, Liberty and Welfare: Some Issues in Human Rights
Theory, in J. Roland Pennock and John W. Chapman (eds.), Human Rights (New
York: New York University Press, 1981), p. 235.
10. Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986),
pp. 168170.
11. For an explanation of how a moral right can contribute to the security of a
moral right see Carl Wellman, The Social Protection of Moral Rights, forth-
coming.
12. Henry Shue, Basic Rights: Subsistence, Affluence, and U. S. Foreign Policy, 2nd
ed. (Princeton, NJ: Princeton University Press, 1996), p. 31.
13. Ibid., p. 13
Chapter 4
1. To simplify my discussion I will limit my examination to global human
rights documents. My reasoning will apply for the most part to regional human
rights documents as well.
2. Johannes Morsink, The Universal Declaration of Human Rights: Origins,
Drafting, and Intent (Philadelphia: University of Pennsylvania Press, 1999), p. 281,
references omitted.
3. Ibid., p. 283.
4. Preamble to the United Nations Charter (1945).
5. Charles Beitz, What Human Rights Mean, Daedalus 132 (2003), pp. 44
and 40.
6. Ibid., pp. 39 and 44.
7. James W. Nickel, Human Rights, in Stanford Encyclopedia of Philosophy,
revised 2006 (http://plato.stanford.edu/entries/human-rights/), p. 10.
8. However Article 2 (a) of the Convention on the Prevention and Punish-
ment of the Crime of Genocide (1948) does include killing members of the group.
9. See for example Ireland v. United Kingdom, A. 25 (1978) 2 EHRR 25.
10. See Carl Wellman, Medical Law and Moral Rights (Dordrecht: Springer,
2005), pp. 139141.
11. James Griffin, Discrepancies between the Best Philosophical Account of
Human Rights and the International Law of Human Rights, Proceedings of the
Aristotelian Society 101 (2001), pp. 1011.
12. For similar reasoning see Joseph Raz, The Morality of Freedom (Oxford:
Clarendon Press, 1986), pp. 250254.
13. Carl Wellman, Welfare Rights (Totowa, NJ: Rowman and Littlefield, 1982),
pp. 140146.
14. Ibid., pp. 2131.
15. See Carl Wellman, An Approach to Rights (Dordrecht: Kluwer Academic,
1997), pp. 105116, where I argue that welfare rights are not human rights but
civic rights, rights one possesses not as a human being but as a citizen. I now believe
that there are moral human rights to welfare as well as moral civic welfare rights.
16. William Blackstone, Commentaries on the Laws of England, ed. William
Draper Lewis (Philadelphia: Rees Welsh, 1902), pp. *140141.
17. Morsink, The Universal Declaration of Human Rights, p. 332.
18. For similar but not identical reasoning, see Rex Martin, A System of Rights
(Oxford: Clarendon Press, 1993), especially pp. 152184.
pp. 157176.
Chapter 5
1. Government of the Republic of South Africa et al. v. Grootboom, Constitu-
tional Court of South Africa, Case CCT 11/00, Judgment of 4 October 2000,
South African Law Reports 2001(1).
2. Ibid., at 86, my emphasis.

3. James W. Nickel, Human Rights, in Stanford Encyclopedia of Philosophy,
revised 2006 (http://plato.stanford.edu/entries/human-rights/), p. 11.
4. Ibid., pp. 3 and 18.
5. Richard Wasserstrom, Rights, Human Rights, and Racial Discrimination,
Journal of Philosophy 61 (1964), pp. 629630.
6. Ireland v. the United Kingdom, A. 25 (1978) 2 EHRR 25.
7. Ezelin v. France (1991), 14 EHRR 362 at 375.
8. See Communication No. 277/1988, Juan Fernando Teran Jijon v. Ecuador,
Report of the Human Rights Committee, GAOR, forty-seventh session, suppl. no.
40(A/47/40), pp. 269275; and Communication No. 550/1993, Robert Faurisson
v. France, Report of the Human Rights Committee, vol. 2, GAOR, fifty-second
session, suppl. no. 40 (A/52/40), pp. 84104.
9. See Carl Wellman, A Theory of Rights: Persons under Laws, Institutions, and
Morals (Totowa, NJ: Rowman & Allanheld, 1985), pp. 96102.
10. See North Sea Continental Shelf, Judgment, ICJ Reports, 1985, p. 13, para. 27.
11. Bruno Simma and Philip Alston, The Sources of Human Rights Law: Cus-
tom, Jus Cogens, and General Principles, Australian Yearbook of International Law
12 (1992), pp. 9094.
Chapter 6
1. Hugh Thirlway, The Sources of International Law, in Malcolm D. Evans
(ed.), International Law (Oxford: Oxford University Press, 2003), p. 118.
2. South West Africa Cases (Second Phase), ICJ Reports, 1966, p. 289.
3. Ibid., pp. 289290.
4. Raija Hanski and Martin Scheinin, Leading Cases of the Human Rights
Committee (Turku: Institute for Human Rights, 2003), pp. 6094.
5. International Commission of Jurists, The Limburg Principles on the
Implementation of the International Covenant on Economic, Social and Cultural
Rights, Human Rights Quarterly 9 (1987), p. 123.
6. United Nations Charter (1945), Article 13.
7. ICJ Reports, 1966 at 293.
8. South West Africa Cases (Second Phase), ICJ Reports, 1966, p. 292.
9. Filartiga v. Pena-Irala, 630 F.2nd 876 (1980) at 822.
10. North Sea Continental Shelf, Judgments, ICJ Reports, 1969, p. 45.
11. See Thirlway, The Sources of International Law, p. 118.
12. American Law Institute, Restatement of the Law Third: Foreign Relations
Law of the United States, vol. 2 (Saint Paul, MN: American Law Institute, 1987),
701, reporters notes, p. 154.
13. J. Shand Watson, Theory and Reality in the International Protection of Human
Rights (Ardsley, NY: Transnational, 1999), pp. 8586.
14. Jack L. Goldsmith and Eric A. Posner, The Limits of International Law
(Oxford: Oxford University Press, 2000), p. 132.
15. Ibid., p. 23.

16. American Law Institute, Restatement of the Law Third, vol. 2, 102 (2).
17. Ian Brownlie, Principles of Public International Law (Oxford: Clarendon
Press, 1979), pp. 48.
18. North Sea Continental Shelf, Judgment, ICJ Reports, 1969, p. 3 at para. 45.
19. Thirlway, The Sources of International Law, p. 132, italics in original.
20. Threat of Use of Nuclear Weapons Cases (Advisory Opinion), ICJ Reports
1996, para. 78.
21. Ibid., para. 79.
22. International Law Commission, Draft Articles on the Law of Treaties with
Commentaries, Yearbook of the International Law Commission, 1966 (New York:
United Nations, 1967), vol. 2, p. 248.
23. Ibid.
24. Andr J. J. de Hoogh, The Relationship between Jus Cogens, Obligations
Erga Omnes and International Crimes: Peremptory Norms in Perspective,
Austrian Journal of Public and International Law 42 (1991), p. 186
25. International Law Commission, Draft Articles on the Law of Treaties,
vol. 2, pp. 247248.
26. Barcelona Traction, Light and Power Company, Limited, Case, Judgment, ICJ
Reports, 1970, p. 32.
27. International Law Commission, Draft Articles on State Responsibility,
Yearbook of the International Law Commission, 1976 (New York: United Nations,
1977), vol. 2, part 2, p. 99.
28. Reservations to the Convention on the Prevention and Punishment of the
Crime of Genocide, ICJ Reports, 1951, p. 23.
Chapter 7
1. Antonio Cassese, International Law (Oxford: Oxford University Press,
2001), pp. 9899.
2. Bruno Simma et al. (eds.), The Charter of the United Nations: A Commen-
tary, 2nd ed. (Oxford: Oxford University Press, 2002), vol. 1, p. 70.
3. Fernando R. Tesn, Humanitarian Intervention: An Inquiry into Law and
Morality, 2nd ed. (Irvington-on-Hudson, NY: Transnational, 1997), p. 135.
4. See Simma et al, The Charter of the United Nations, vol. 1, p. 151.
5. Thomas Oppermann, Intervention, Encyclopedia of Public International
Law (Amsterdam: North-Holland, 1992), vol. 3, p. 233.
6. Cassese, International Law, pp. 8990.
7. Ibid., p. 289.
8. Antonio Cassese, The General Assembly: Historical Perspective
19451989, in Philip Alston (ed.), The United Nations and Human Rights: A Crit-
ical Appraisal (Oxford: Clarendon Press, 1992), p. 32.
9. Ibid., pp. 3738.
10. Philip Alston, The Commission on Human Rights, in Alston, The United
Nations and Human Rights, p. 156.
11. Ibid., pp. 177180.
12. Torkel Opsahl, The Human Rights Committee, in Alston, The United
Nations and Human Rights, pp. 421 and 427.
13. Sydney D. Bailey, The Security Council, in Alston, The United Nations
and Human Rights, pp. 306307.
14. Ibid., p. 313.
15. Nationality Decrees in Tunisia and Morocco, PCIJ Reports, series B, number
4 (1923), p. 24.
16. Case of the S.S. Lotus, PCIJ Reports, series A, number 10 (1927),
pp. 1819.
17. Corfu Channel Case, ICJ Reports, 1949, p. 22.
18. Barcelona Traction, Light and Power Company Case, Limited,Judgment, ICJ
Reports, 1970, p. 32.
20. See Christine Gray, The Use of Force and the International Legal Order,
in Malcolm D. Evans (ed.), International Law (Oxford: Oxford University Press,
2003), pp. 595597.
21. Francis Kofi Abiew, The Evolution of the Doctrine and Practice of Humani-
tarian Intervention (The Hague: Kluwer Law International, 1999), p. 102. The
quotations are from International Lawyer 3 (1969) at 444.
22. Antonio Cassese, Ex iniuria ius orbitur: Are We Moving towards Interna-
tional Legitimation of Forcible Humanitarian Countermeasures in the World Com-
munity? European Journal of International Law 10 (1999), pp. 2324 and 2627.
23. Ibid.
24. Ian Brownlie, Principles of Public International Law, 6th ed. (Oxford: Oxford
University Press, 2003), pp. 7072.
26. Simma et al., The Charter of the United Nations, vol. 1, p. 70.
27. Case of the S. S. Lotus, PCIJ Reports, series A, number 10 (1927), p. 18.
28. Michael Ross Fowler and Julie Marie Bunck, Law, Power, and the Sovereign
State: The Evolution and Application of the Concept of Sovereignty (University Park,
PA: Pennsylvania State University Press, 1954), p. 152.
29. For a different but related justification, see Christopher Heath Wellman,
A Theory of Secession: The Case for Political Self-Determination (Cambridge:
Cambridge University Press, 2005), pp. 1121.
30. For a similar, but not identical, line of reasoning, see Allen Buchanan,
Justice, Legitimacy and Self-Determination: Moral Foundations for International
Law (Oxford: Oxford University Press, 2004), pp. 266272.
31. Prosper Weil, Towards Relative Normativity in International Law?
American Journal of International Law 77 (1983), p. 420.
32. Brownlie, Principles of Public International Law, 6th ed., p. xli.

33. Barcelona Traction Case, p. 32.
34. Weil, Towards Relative Normativity in International Law, p. 420.
35. Ibid., p. 441.
36. Ibid., p. 431432.
37. Barcelona Traction Case, p. 32.
38. Quoted by Weil, Towards Relative Normativity in International Law,
p. 432.
39. Brownlie, Principles of Public International Law, 6th ed., p. 714.
Chapter 8
1. An exception would be acts of piracy on the high seas.
2. Jeremy Waldron, A Right-Based Critique of Constitutional Rights, Oxford
Journal of Legal Studies 13 (1993), p. 26.
3. Mac Darrow and Philip Alston, Bills of Rights in Comparative Perspec-
tive, in Philip Alston (ed.), Promoting Human Rights through Bills of Rights: Com-
parative Perspectives (Oxford: Oxford University Press, 1999), pp. 511517.
4. Ibid., pp. 517518.
5. Carl Wellman, An Approach To Rights (Dordrecht: Kluwer Academic,
1997), p. 221.
6. Robert J. Sharpe, The Impact of a Bill of Rights on the Role of the Judi-
ciary: A Canadian Perspective, in Alston, Promoting Human Rights through Bills
of Rights, p. 431.
7. Darrow and Alston, Bills of Rights in Comparative Perspective, pp.
486487.
8. Waldron, A Right-Based Critique of Constitutional Rights, pp. 2829.
9. Sharpe, The Impact of a Bill of Rights on the Role of the Judiciary,
pp. 449450.
10. Ibid., p. 450.
11. Darrow and Alston, Bills of Rights in Comparative Perspective, p. 498.
12. Waldron, A Right-Based Critique of Constitutional Rights, pp. 3334,
13. Daphne Barak-Erez, From an Unwritten to a Written Constitution: The
Israeli Challenge in American Perspective, Columbia Human Rights Law Review
26 (1995), pp. 347348.
14. Waldron, A Right-Based Critique of Constitutional Rights, p. 27.
15. Ibid., pp. 5051.
17. See the opening sentence in an opinion concerning the constitutional right
to procreate: This case touches a sensitive and important area of human rights.
Skinner v. Oklahoma, 316 U.S. 535 (1942) at 536.
18. Waldron, A Right-Based Critique of Constitutional Rights, p. 29.

19. Ryan v. Attorney General, 1965, IR 294.
20. Constitution of Iran, Article 4.
21. Gerald L. Neuman, Human Rights and Constitutional Rights: Harmony
and Dissonance, Stanford Law Review 55 (2003), pp. 18731874.
22. Ibid., p. 1866.
23. Ibid., p. 1868.
24. Ibid., p. 1869.
25. Ibid., p. 1876.
26. Ibid., p. 1877.
27. Ibid., pp. 18801899.
28. Ibid., p. 1899.
Chapter 9
1. Daphne Barak-Erez, From an Unwritten to a Written Constitution: The
Israeli challenge in American Perspective, Columbia Human Rights Review 26
(1995), p. 318.
2. M. Glenn Abernathy, Should the United Kingdom Adopt a Bill of Rights?
American Journal of Comparative Law 31 (1983), p. 465.
3. Ibid., p. 455.
4. Lloyd of Hampstead, Do We Need a Bill of Rights? Modern Law Review
39 (1976), p. 129.
5. A. V. Dicey, Introduction to the Study of the Law of the Constitution, 8th ed.
(London: Macmilllan. 1920), p. 198.
6. Lloyd of Hampstead, Do We Need a Bill of Rights? pp. 125126.
7. Sir William Blackstone, Commentaries on the Laws of England, ed. William
Draper Lewis (Philadelphia: Rees Welsh, 1902),* 140141.
8. A. W. Brian Simpson, Human Rights and the End of the Empire: Britain and the
Genesis of the European Convention (Oxford: Oxford University Press, 2001), p. 21.
9. Abernathy, Should the United Kingdom Adopt a Bill of Rights? p. 442.
10. Amos Shapira, The Status of Fundamental Individual Rights in the
Absence of a Written Constitution, Israel Law Review 9 (1974), p. 508.
ciary: A Canadian Perspective, in Philip Alston (ed.), Promoting Human Rights
through Bills of Rights: Comparative Perspectives (Oxford: Oxford University Press,
1999), p. 452.
12. Leslie Scarman, English Law: The New Dimension (London: Stevens, 1974),
p. 15.
13. Gideon Hausner, The Rights of the Individual in Court, Israel Law Review
9 (1974), p. 477, quoting Lord Justice Denning.
14. Dicey, Introduction to the Study of the Law of the Constitution, p. 197.
15. Ibid., p. 27.
16. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952) at 499.
17. Ibid., at 501.
18. Ibid., at 501502.
19. Ibid., p. 502.
20. Schenck v. United States, 249 U.S. 47 (1919) at 52.
21. Griswold v. Connecticut, 381 U.S. 479 (1965) at 509.
22. Hugo L. Black, The Bill of Rights, New York University Law Review 35
(1960), p. 874.
23. Ibid., p. 873.
24. Ibid.
25. Herbert Wechsler, Toward Neutral Principles of Constitutional Law,
Harvard Law Review 73 (1959), p. 19
26. Meyer v. State of Nebraska, 262 U.S. 390 (1923) at 400.
27. Ibid., at 399.
28. Brown et. al. v. Board of Education of Topeka et. al., 347 U.S. 483 (1954) at
493.
29. Ibid., at 495.
30. Ibid., at 487.
31. Robert H. Bork, Neutral Principles and Some First Amendment Prob-
lems, Indiana Law Journal 47 (1971), p. 2.
32. Ibid.
33. Griswold v. Connecticut, at 484.
34. Ibid., at 485.
35. Ibid., p. 486.
36. This kind of supplementation is not limited to the United States. In the
same year an Irish court held that there exist a number of personal rights not
specified in the Irish Constitution and recognized the right to bodily integrity. See
Ryan v. Attorney General (1965), IR 294.
37. Griswold v. Connecticut, at 486487.
38. Ibid., at 488.
39. Ibid., at 491.
40. Ibid., at 500.
41. Lawrence et al. v. Texas, 539 U.S.558 (2003) at 564566.
42. Giswold v. Connecticut, at 502, italics in original.
43. Ibid., at 508.
44. Ibid., at 530.
45. Ibid., at 490.
46. Ibid., at 520521.
47. Ibid., at 525526.
Chapter 10
1. Mark Freeman and Gibran van Ert, International Human Rights Law
(Toronto: Irwin Law, 2004), p. 205.
ciary: A Canadian Perspective, in Philip Alston (ed.), Promoting Human Rights
through Bills of Rights: Comparative Perspectives (Oxford: Oxford University Press,
1999), p. 434.
3. Mona Ressaissi, Minimum Wage Regulation: An Extension to the Right to
an Adequate Standard of Living, in Ineta Ziemele (ed.), Expanding the Horizons
of Human Rights Law (Leiden: Martinus Nijhoff, 2005), pp. 149162.
4. Quoted in M. Glenn Abernathy, Should the United Kingdom Adopt a Bill
of Rights? American Journal of Comparative Law 31 (1983), pp. 456457.
5. David Kretzmer, Basic Laws as a Surrogate Bill of Rights: The Case of
Israel, in Alston, Promoting Human Rights through Bills of Rights, p. 75.
6. Compare Carl Wellman, Welfare Rights (Totowa, NJ: Rowman and Little-
field, 1982), pp. 138147.
7. Canadian Human Rights Act of 197677, Articles 50(1) and 53(2).
8. Halsburys Laws of England, 4th ed. reissue (London: Butterworths, 1997),
vol. 44(2), para. 8, p. 17, and para. 11, pp. 2122.
9. See Carl Wellman, Real Right, (New York: Oxford University Press, 1995),
pp. 69.
Chapter 11
1. United Nations, International Covenant on Economic, Social, and Cultural
Rights (1966), Article 12.1.
2. Ibid., Article 8.1(a).
3. Natalie Hevener Kaufman, Human Rights Treaties and the Senate (Chapel
Hill: University of North Carolina Press, 1990), p. 149.
4. Ibid., pp. 135136.
5. Ibid., p. 127.
6. Ibid., p. 120.
7. Ibid., p. 121.
8. Ibid., pp. 5659.
9. Thomas Buergenthal, Dinah Shelton, and David P. Stewart, International
Human Rights in a Nutshell, 3rd ed. (Saint Paul, MN: West Group, 2002), p. 370.
10. Ibid., pp. 371.
11. Mark Sachleben, Human Rights: Considering Patterns of Participation,
19482000 (New York: Routledge, 2006), p. 115.
12. Ibid., p. 138.
13. Ibid., pp. 128129.
14. Ibid., p. 119.
15. Ibid.
16. UN Committee on Economic, Social, and Cultural Rights, The Right to the
Highest Attainable Standard of Health, General Comment no. 14, UN Doc. E/C.
12/2000/4 (11 Aug. 2000), para. 53.
17. See Howard Charles Yourow, The Margin of Appreciation Doctrine in the
Dynamics of European Human Rights Jurisprudence (The Hague: Kluwer Law
International, 1996).
18. Committee on Economic, Social, and Cultural Rights, The Right to the
Highest Attainable Standard of Health, para. 33.
19. Sei Fujii v. State of California, 242 P.2nd 617 at 620.
20. Minister of Health et al. v. Treatment Action Campaign et al., Constitutional
Court of South Africa, Case CCT 8/02, Judgment of 5 July 5 2002, para. 37.
21. James W. Nickel, Making Sense of Human Rights, 2nd ed. (Oxford:
Blackwell, 2007), p. 36.
Chapter 12
1. H. L. A. Hart, Essays on Bentham (Oxford: Clarendon Press, 1982), p. 183.
2. General Assembly, Preamble to the Universal Declaration of Human
Rights (1948).
3. United Nations Charter (1945), Articles 56 and 55 in part.
4. Ibid., Article 2.1.
7. Antonio Cassese, International Criminal Law (Oxford: Oxford University
Press, 2003), p. 119, italics in original.
8. Ibid., p. 118.
9. The convention is also implemented by the Torture Victim Protection Act
of 1991, which establishes a civil claim of action by any victim of torture.
10. Karen J. Greenberg and Joshua L. Dratel (eds.), The Torture Papers: The
Road to Abu Ghraib (Cambridge: Cambridge University Press, 2005), p. 176.
11. Ibid., p. 177.
12. Ibid., pp. 200202.
13. Ibid., pp. 207213.
14. 18 U.S.C. 2441(c)(1).
15. Ibid., 2441(c)(3).
16. Greenberg and Dratel, The Torture Papers, pp. 8990.
17. Ibid., pp. 91 and 95102.
18. Ibid., pp. 9195.
19. Ibid., pp. 107110.
20. American Law Institute, Restatement of the Law Third: Foreign Relations Law
of the United States (Saint Paul, MN: American Law Institute, 1987), vol. 2, p. 161.
226 Notes to Page 208
21. Ibid., pp. 167 and 176.

22. Ibid., p. 179.
23. Ibid., p. 163.
24. Greenberg & Dratel, The Torture Papers, pp. 112113.
25. Ibid., pp. 113115.
26. Ibid., pp. 115116.
27. Ibid., p. 116.
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Index
African Charter on Human and Peoples Constitution of the United States, see
Rights (1982), 68 United States Constitution
Alston, Philip, 134135, 142143 constitutional entrenchment of human
American Anthropological Association, rights,
2930, 31, 32 reasons for, 131135, 142, 168,
American Convention on Human Rights 200201
(1969), 7980 as undemocratic, 132135
American Declaration of Independence constitutional recognition of human rights,
(1776), 4, 2425, 27, 37, 54 as human rights, 135141
Aquinas, Saint Thomas, 3, 4 reasons for, 128130, 141142, 200
constitutional rights,
Barcelona Traction Case, 97, 100, 115, derivation of, 156158, 200
117, 121, 122, 208 judicial recognition of additional,
Beitz, Charles, 1415, 28, 55 158162, 200
Bill of Rights, English (1689), 145 redefining, 153156, 200
Blackstone, William, 65, 69, 148 consuetudo est servanda, 99, 199, 204,
Black, Justice Hugo, 155156, 161162 208, 209
Brown v. Board of Education, 157158 Convention on the Elimination of All
Brownlie, Ian, 94, 117118, 121, Forms of Discrimination against
122123 Women (1979), 185
Joseph Burstyn v. Wilson, 153 Convention on the Political Rights of
Bush, George W., administration of, 202, Women (1952), 63, 89
203, 205206, 207 Convention on the Prevention and
Bybee, Jay S., memoranda by, 206208 Punishment of the Crime of
Genocide (1948), 67, 89, 185, 186
Canadian Act for the Recognition and Convention Relating to the Status of
Protection of Human Rights and Refugees (1951), 89
Fundamental Freedoms of 1960, Convention against Torture and Other
165, 166 Cruel, Inhuman or Degrading
Canadian Charter of Rights and Treatment or Punishment (1984),
Freedoms (1982), 130, 131, 132, 89, 100, 203204, 205206
149 Corfu Channel Case, 114115
Canadian Human Rights Act of Cranston, Maurice, 6
197677, 171 customary international law, 9091,
Cassese, Antonio, 4, 108, 115116, 117, 9295, 204, 208
204
childrens rights, 29 Darby, Derrick, 1112
claim-rights, 19, 2223, 4243, 73, 76 Declaration on the Elimination of
Constitution of Chile, 136 All Forms of Intolerance and of
Constitution of Iran, 137138 Discrimination Based on Religion or
Constitution of Latvia, 135 Belief (1981), 70
235
236 Index
Declaration on the Granting of Grotius, Hugo, 34, 30, 197

Independence to Colonial Countries group rights, 6669, 7879
and Peoples (1960), 55, 6869
Declaration on the Inadmissibility of Harlan, Justice John Marshall, 160, 162
Intervention in the Domestic Hart, H. L. A., 198
Affairs of States and the Protection Hobbes, Thomas, 6, 197
of Their Independence and Hohfeld, Wesley Newcomb, 1718,
Sovereignty (1965), 106107 2223, 39, 76
Declaration on Principles of International human rights,
Law concerning Friendly Relations institutional conception of, 1214
(1970), 106, 107108 interactional conception of, 1214
Declaration on the Protection of All political conception of, 710
Persons from Being Subjected to practical conception of, 1415
Torture (1970), 91 social practice conception of, 1012
Declaration on the Right and human rights treaties,
Responsibility of Individuals, Groups how to implement, 188194
and Organs of Society to Promote reasons to enter reservations, 184188,
and Protect Universally Recognized 194
Human Rights and Fundamental reasons not to ratify, 181183, 195
Freedoms (1998), 80 reasons to ratify, 180181, 183184,
Declaration on the Rights of Persons 194, 201
Belonging to National or Ethnic,
Religious and Linguistic Minorities immunity-rights, 20, 23, 4647, 7576
(1992), 55 Indian Protection of Human Rights Act
Dicey, A.V., 147, 151, 153 of 1993, 172
derivation of rights, 4850 Inter-American Court of Human Rights,
Donnelly, Jack, 23, 24, 27, 30, 3132, 36 79, 99
Douglas, Justice William O., 158159, 162 International Convention on the
due process rights, 6566 Elimination of All Forms of Racial
Dworkin, Ronald, 36 Discrimination (1965), 100, 186
International Court of Justice, 91, 94, 98,
European Convention for the Protection 114115, 117, 122, 185
of Human Rights and Fundamental International Covenant on Civil and
Freedoms (1950), 73, 78, 7980, Political Rights (1966), 56, 63, 67,
146, 149, 188189, 191 7375, 7879, 81, 88, 90, 100101,
European Court of Human Rights, 111, 183, 186, 187, 193, 203, 205
7374, 79, 99, 188189, 191 International Covenant on Economic,
Social and Cultural Rights (1966),
Feinberg, Joel, 6, 2223 5659, 6365, 67, 7172, 78, 79,
Filartiga v. Pena-Irala, 91 81, 8889, 90, 100101, 111, 179,
French Declaration of the Rights of Man 186190, 193, 204
and the Citizen (1789), 4, 9, 23, International Criminal Court, 99, 116, 185
2425, 37, 54 international human rights,
first parties to, 7679
Geneva Convention Relative to the justifications for, 198199
Treatment of Prisoners of War modality of, 7376
(1949), 207 as rights, 7173
Gewirth, Alan, 8 second parties to, 7981
Goldberg, Justice Arthur Joseph, universality of, 8182, 199
159160, 161, 162 sources of, 82, 8586
Goldsmith, Jack L., 9394 International Law Commission, 96,
Government of the Republic of South 9798, 122
Africa et. al. v. Grootboom, 71 interrogation of detainees, use of torture
Griffin, James, 8, 61 in, 202208
Griswold v. Connecticut, 158161 Ireland v. United Kingdom, 73, 77
Index 237
Japanese Bill of Rights, 135136 New Zealand Bill of Rights Act of 1990,
Jefferson, Thomas, 30 165
judicial recognition of human rights, Nickel, James W., 67, 56, 7273, 193
advantages of, 145149, 150153, 200 nonintervention, principle of, 102, 105,
disadvantages of, 149150, 150153, 106108, 115, 116, 125
200 modified by United Nations practices,
jus cogens rules, 97, 208 108113, 116
North Sea Continental Shelf Judgments
Kant, Immanuel, 10, 2122 Case, 92, 94
Neuman, Gerald L., 138140
Lawrence et. al. v. Texas, 160 New Zealand Bill of Rights Act, 165
legislative implementation of human
rights, obligations erga omnes, 97, 100, 115,
kinds of, 170174 117, 121122, 208
optimum kinds of, 174177 Occam, William of, 3
legislative recognition of human rights, Optional Protocol to the International
advantages of, 166168, 176 Covenant on Civil and Political
disadvantages of, 165166 Rights (1966), 80, 8182, 88
which rights to recognize, 168170
liberty-rights, 19, 23, 4445, 7374, 76 pacta sunt servanda, 99, 195, 199, 204, 209
Limburg Principles, 8889 Permanent Court of International
Locke, John, 4, 6, 25, 30, 136, 197 Justice, 113
Lotus Case, 113114, 117, 118 Pogge, Thomas, 1214
Policies of Apartheid of the Government
Madison, James, 161 of the Republic of South Africa
Magna Carta (1689) (1962), 124
Maritain, Jacques, 4, 6 political rights, 66
Martin, Rex, 67, 911, 26 Posner, Eric A., 9394
Meyer v. Nebraska, 156157 power-rights, 1920, 23, 4546, 7475,
Montesquieu, Charles de Secondat, 78
Baron de, 30 Pufendorf, Samuel, 197
Montevideo Convention on Rights and
Duties of States (1933), 117 Rawls, John, 9
moral reasons, 2021, 30, 41, 5051 Raz, Joseph, 710, 48
moral human rights, relativity,
basal vs. derived, 2526, 2829, 39, of circumstances, 3233
57, 69, 169170, 199 conceptual, 3031
grounds of basal, 4148, 198 of human nature, 3132
grounds of derived, 4850 moral, 2930
importance of, 3639 Reservations to the Convention on the
inalienability of, 3536 Crime of Genocide Case, 9899, 100
political relevance of, 3335, 197 Restatement of the Law Third, 9294, 208
possession of, 2122, 2728, 29, 31, right, the,
198 to an adequate standard of living, 14,
second parties to, 2427, 3335, 197 63, 64, 167
third parties to, 3435, 197 to associate, 4546, 48, 62
universality of, 2733, 198 against double jeopardy, 75
moral rights, to education, 63, 187
nature of, 1921, 197198 to equitable treatment, 26, 6263, 170
as natural rights, 2021, 198 to equal protection of the law, 26, 63
to form labor unions, 14, 78, 182
national human rights, 200202 to freedom of association, 66,
Nationality Decrees Case, 113 169170, 202203
natural law, 3, 5, 20, 162, 197 to freedom from discrimination,
natural rights tradition, 37, 197 3738, 63
238 Index
right, the, (continued) South West Africa Cases, 87, 90

to freedom of expression, 38, 62, 66, sovereignty of states,
187, 202 justification of, 117121, 125,
to freedom of religion, 62, 202 199200, 204
to freedom of speech, 152155 limits to justified, 119121, 200
to health, 63, 6465, 182, 189190 principle of, 102, 103, 115, 118, 125,
to an impartial trial, 14 199
to join labor unions, 48, 58, 78, 182 Statute of the International Court of
to just compensation, 14 Justice (1945), 86, 95, 99
to liberty, 23, 26, 48, 49, 58, 6061 Statute of the International Tribunal for
grounds of, 4445 the Former Yugoslavia (1993), 75
to liberty of movement, 48, 49, 6162,
202 Tanaka, Justice Kotaro, 87, 8990
to life, 18, 26, 5960, 193, 203 Threat of Use of Nuclear Weapons
grounds of, 4243 Cases, 95, 98
to a minimum wage, 167
to not be committed by others, 4647 United Kingdom Human Rights Act of
to not be imprisoned, 49 1998, 129, 131, 165, 170, 172173,
to not be subjected to cruel, inhuman 176
or degrading treatment or United Nations Charter (1945), 5, 68,
punishment, 60, 73, 7778 8687, 89, 91, 102105, 109112,
to not be subjected to public torture 115, 124, 180183, 190, 199, 201
in interrogation, 202204 United States Civil Rights Act of 1957,
to not be tortured, 23, 60, 73, 7778, 172
202, 204 United States Civil Rights Act of 1964,
to peaceful assembly, 62, 7374 171173, 175176
to be presumed innocent, 49 United States Constitution,
to promise, 23 Article 6, 190
to property, 26, 203 Fifth Amendment, 159
to repayment, 1718 Fourteenth Amendment, 136, 157, 160
to be rescued, 6364 Fourth Amendment, 159, 191
to security of person, 23, 59, 202203 Ninth Amendment, 159161
to self-determination, 6768 Tenth Amendment, 186
to social security United States Genocide [Convention]
to work, 58, 63 Implementation Act of 1987,
rights, nature of, 1719. see also 170171
childrens rights, claim-rights, United States Social Security Act of
constitutional rights, due process 1935, 173
rights, group rights, human rights, United States Torture Victim Protection
immunity-rights, international Act of 1991, 171, 206
human rights, liberty-rights, United States War Crimes Act of 1996,
moral human rights, moral rights, 207
national human rights, natural Universal Declaration of Human Rights
rights, political rights, power-rights, (1948), 45, 89, 14, 2729, 32, 37,
womens rights 5356, 58, 73, 8182, 8991, 101,
Rome Statute of the International 109, 180, 198199, 203
Criminal Court (1998), 75
Ryan v. Attorney General, 137 Vienna Convention on the Law of
Treaties (1969), 75, 96, 99, 179,
Schenck v. United States, 154 184, 191, 204
Security Council, 103104, 111113, Vlastos, Gregory, 6
116117, 122124
self-executing obligations, 181182, Waldron, Jeremy, 128, 131135, 137
186187, 190191, 205 Wasserstrom, Richard, 6, 73
Shue, Henry, 23, 38, 4950 womens rights, 29, 63

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Auckland Cape Town Dar es Salaam Hong Kong Karachi

Copyright 2011 by Oxford University Press, Inc.

Published by Oxford University Press, Inc.

Library of Congress Cataloging-in-Publication Data

publications. It is broader because it deals with human rights in interna-

p. 281. Copyright 1999 by the University of Pennsylvania Press. Reprinted

1 An Approach to Human Rights, 3

Cases Cited, 211

An Approach to Human Rights

1. THE NATURAL RIGHTS TRADITION

The contemporary idea of human rights is a descendant of, but by no

It is no accident that the language of the Universal Declaration of Human

Although neglected in moral, legal, and political theory, the idea of

implied by describing human rights as moral rights. The vocabulary of moral

Several important philosophers reject my kind of approach to human

which qualify anything to be so acknowledged. I will say that accounts

I have chosen the traditional approach by defining human rights as rights

Rights and by the subsequent attempts of the United Nations to protect

I suggest that we leave aside how peoples comprehensive doctrines connect

A liberal conception of justice justified by a hypothetical social contract

and politics, it may be valuable to recognize that as universal moral human

Therefore, I believe that Martin has misinterpreted the sense of can in

serves to justify the oppression of women or blacks or those in poverty.

must balance them against ones other moral obligations so as to do as little

According to the orthodox view, human rightsthat it, the underlying

I agree that any such skeptical conclusion is mistaken. However, Beitz

I think and write primarily as a moral philosopher, only secondarily as a

moral dimensions of human rights. Because I believe in the existence of

The Nature of Moral Human Rights

I believe and will attempt to demonstrate that one moral dimension of

I suggest that we should take legal rights as our paradigm examples of

of Y to do A if and only if X has a no-claim against X that X not do A. X

defined sphere of dominion upon the right-holder in face of one or more

Taking legal rights as my model, I conceive of a moral right as a complex

misunderstanding, in my thinking and writing I replace the natural versus

5. ADVERSARIAL NATURE OF RIGHTS

And it is precisely because this nongovernmental protection of individual

Presumably, the primary agency of any politically organized society is its

Most moral philosophers and political theorists maintain that moral

In any particular case, human naturethe realized nature of real human

This variation in the nature of individual human beings suggests that

It is important to note that the philosophic and ideological revolution of

constraints of government, demanding political participation and political

some person or organization that might attempt to hinder or prevent the

group. For example, a state is in a better position to intervene to protect

Although my conception of a human right is formulated in language

There are, however, other aspects of traditional theories of moral human

mixed society but relatively unimportant in a racially homogeneous

Being socially guaranteed is probably the single most important aspect of a

another and depending upon the circumstances. Although it is not true

Any moral human right consists of a complex of moral positions analogous

Grounds of Moral Human Rights

Moreover, on my conception of a right, any moral human right must also

2. A second basal moral human right is the right to liberty. Although

immunity by delegating some of ones moral power of committing oneself

the examples above, each basal human right is sufficient to ground a

basic rights, indeed no moral rights at all, could be securely enjoyed by