Academic journal article American University International Law Review

The Global Status of Human Rights*

Academic journal article American University International Law Review

The Global Status of Human Rights*

Article excerpt

1

I feel very honored to have the opportunity to give the Grotius Lecture at this august forum. I cannot claim to be a legal scholar, with any expertise on international law, and I cannot hide my sense of inadequacy in giving this lecture in the name of one of the pioneering thinkers on law in general and international law in particular. But I take some encouragement from the fact that the great Hugo Grotius showed in his own trail-blazing work a deep interest in linking legal thinking to other disciplines of human thought. He was particularly partial to poetry, as Jean-Jacques Rousseau noted when comparing Grotius' ideas with those of Thomas Hobbes. In his book Emile, Rousseau even went on to say, -The truth is that their [Hobbes' and Grotius'] principles are exactly alike. They differ only in their manner of expression. They also differ in method. Hobbes bases himself on sophisms, and Grotius on poets. They have everything else in common."1

It can be argued that Grotius had a noticeable passion for linking up different disciplines of human reasoning, as many of his arguments make good use of what appears reasonable in common human thought. Indeed, the idea that the sea is a shared territory, which all are free to use-an idea that Grotius discussed in his book The Free Sea2 with powerful appeal to the common understanding of reasonableness-provides a general view of political normativity that is not parasitic on legislated law by one nation or another.

I intend to take that as a point of departure, since the idea of human rights makes a similar appeal to the political normativity of rights that all human beings are supposed to have. That, to be sure, is not Grotius' claim, but there is clearly a strong analogy here. At least one of the concepts of human rights-one which I would like to pursue in this lecture - shares with Grotius' ideas (including the argument for the shared freedom of the sea), the understanding that certain basic entitlements come not from specific national legislation, but from the recognition that these freedoms (to which people in general could be taken to be entitled) come from general appreciation of normativity, rather than any specific territorial legislation.

The global status of human rights can be seen in a similar normative perspective. There are still many issues to sort out in pursuing this line of thought, since it is a complicated claim, which can be resisted in many different ways. To defend that approach we have to address several points of reasoned resistance to the idea of human rights that have been quite powerful in practice, and they demand reasoned examination and scrutiny. To give the idea its due, we have to examine in particular what is entailed by the recognition that some specific claim should count as a human right.

But how should we think about the basis of human rights? What is the nature of the discipline of human rights, which can give the claims of these rights plausibility? These are questions that I want to address in this talk.3

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How, then, does the idea of human rights relate to law? It is not surprising that there is a strong temptation to link human rights to law. While the idea of human rights is of comparatively recent origin, the concept of legal rights is old, well established, and widely used. Also, the language of human rights is clearly influenced by legal terminology. Furthermore, those who fight for human rights work often enough to promote fresh legislation in that direction.

Before proceeding further, I must provide a clarification. The rhetoric of human rights is sometimes applied to particular legislation inspired by the idea of human rights. There is clearly no great difficulty in seeing the obvious juridical status of these already legalized entitlements. No matter what they are called (-human rights laws" or whatever), they stand shoulder-to-shoulder with other established legislation. There is nothing particularly complicated about this bit of understanding. …

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