The idea of the state of peace as one in which the political groups do not direct the solution of their conflicts by means of durable collective and organized violence, necessarily implies the promotion of the respect of human rights to prevent resorting to violence. In this sense, the concern for peace and the promotion of human rights are inseparable. The conception of peace cannot be measured solely by the absence of conventional war, but constructed upon foundations of justice. The lack of justice is the primary source of conflict. Where human rights are violated, there are threats to peace.

This conviction has been central to the evolution of the contemporary philosophy of international human rights. The two World Wars in the first half of the past century and the unimagined loss of human life led inevitably to the search for a new order in which armed conflict would never rise again. Thus, it was when the newly formed United Nations turned to consider the root causes of war and the construction of a peaceful society that it began to work on the Universal Declaration of Human Rights, adopted in 1948 in the belief that "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world."1

During the immediate period after the end of the Cold War, it was thought that democracy and peace were headed towards a stage of consolidation, especially after the defeat of its enemy and immediate threats, such as Nazism and Communism.

Nevertheless, the fall of the Soviet Union was followed by the proliferation of conflicts related to claims of supposed religious vindications and cultural identities, which have returned the discussion on war and the necessity to redouble efforts for peace to the forefront. Support for a comprehensive and necessary relationship between the cause of peace and the concern for human dignity as preconditions for a peaceful world must not be lost, particularly if in present times the global community has so developed that a violation of rights in one place is felt throughout the world. Therefore, the idea of a law of world citizenship should not be a high-flown or exaggerated notion.

This essay addresses the importance of promoting human rights for keeping world peace. In doing so, it emphasizes the relationship between peace and law by describing the international human rights movement´s contribution to solving the international conflicts shaped by the foremost world views, such as: Realism, Liberalism and the Clash of Civilizations. By comparing these forms of international and world order, the essay analyzes whether promoting human rights is compatible with the idea of world order as an international community of independent States or it is based on the assumption of a world government. This paper not only recommends a revaluation of the legal and institutional mechanisms that prevent violence and protect human rights, but also asks if the philosophical foundations of the international system correspond to the current human condition.


In the wake of the terrorist attacks of September 11, 2001 and the conflict in the Middle East, it seems to be generally accepted that the state of our world remains fragile. This situation has reminded us that our life is permanently threatened by misfortunes that might annihilate our most definite plans, our highest ambitions or our deepest afflictions. It is nonetheless terrifying that this tragic character of human life is due to, not only the fragility of our biological constitution and the instability of our physical environment, but also our own work. These misfortunes occur not only because of the scarcity of resources to satisfy interests, but also because of the social practice of using fellow humans as just another resource. This practice of using human beings as instruments is even more disastrous if it is carried out by the powerful who have access to weapons or other means for submitting other people to their will on a large scale.2

The artificial antidote men have created to neutralize this source of misfortune is precisely that constituted by recognizing human rights.3 This idea rests on two fundamental principles: that the mere will of the strong is not absolute justification for actions that affect the vital interests of individuals, and that the mere fact of being human is title enough for claiming goods that are necessary for an independent and dignified life.4 In that sense, human rights embrace both the positive and negative prerequisites to secure for individuals the necessary conditions required for human flourishing.5 On the one hand, human rights protect the core of negative freedom, freedom from abuse, oppression and cruelty; and on the other, they establish the necessary (but not sufficient) conditions for individuals to pursue their fundamental interests and foster their general capabilities.6

In that set of ideas, one possible definition of human rights could be conceived as those basic moral guarantees that people in all countries and cultures allegedly have simply because they are people. Recognizing such guar- antees as rights suggests that they are attached to particular individuals who can invoke them, that they are high priority, and that their compliance is mandatory rather than discretionary.7 Human rights are held to be universal in the sense that all people have and should enjoy them, and to be independent, in the sense that they exist and are standards of justification whether or not they are recognized or implemented by the legal system of a certain country.8 Consequently, the role of human rights could be defined as presenting an important shared set of values captured in international law that promote the decent treatment of people by governments, which can be held accountable for the treatment of their members, and hopes to thus establish a more stable and humane order.9 In other words, the elemental priority of all human rights activism is to "stop torture, beatings, killings, rape and assault to improve the protection of ordinary people"10 and thereby promote international peace and security. Reducing the likelihood of insecurity and war requires preventing severe and large-scale oppression within countries. As long as those, whose rights have been violated, feel a strong sense of resentment and have no means to remedy these injustices, their resentment simmers and could break out in what we identify as civil disorder, ethnic conflicts and wars.11 On the contrary, when the individual´s fundamental interests are satisfied, familiar motives for war will be absent: these people do not seek to convert others to their religions, or to conquer greater territory, or to wield political power over other people.12

As we have seen, an underlying aspiration of the doctrine of human rights is thought to precede considerations of strict national sovereignty by providing a set of legitimate criteria to which all nation-states should adhere. Nevertheless, the primary problem of human rights is not their justification, but their implementation. International human rights treaties create obligations for States to respect, protect, and implement the rights of their citizens. The Universal Declaration of Human Rights was formulated as "a standard of achievement," a set of inspirational norms that left States with full sovereign authority to implement human rights within their territory.13 The creation of these norms has been internationalized, but their implementation remains largely in the hands of sovereign states. In that sense, even though human rights constitute rights held by every person and have been internationalized, their execution remains largely national. However, it is important to note that the priority given to States as the near-exclusive instrument for implementing internationally recognized human rights relies on practical reasons rather than moral or theoretical ones.

This last consideration leads us to the relation between nation states and the international order, between rights protection and coercive action, and more importantly, between peace and law.


The law is fundamentally an order for promoting peace. Its primary purpose is to ensure peaceful interactions within a group of individuals in such a way that they have the possibility of settling their inevitable differences peacefully; that is, without the use of force in conformity with an order valid for all. This order is the law. The function of every social order is to "bring about a certain reciprocal behavior among individuals, to induce them to refrain from certain conduct which for one reason or another are deemed detrimental to society, and to engage in conduct that is for one reason or another regarded as useful to society."14 Attainment of this goal can be achieved in two fundamental ways: with or without the use of force. It is precisely in this that one can distinguish between imperfect and perfect legal norms where the former is characterized by its lack of force to implement the existing legal norms, and the latter, by its use of force to guarantee compliance to legal norms.15 In that sense, a social order that attempts to bring about a desired conduct of individuals by enacting sanctions is called a coercive order since it provides measures of coercion as sanctions. As such, the law stands in sharpest contrast to all other orders, which rest on voluntary obedience. Consequently, the law might be conceived as an organization of force as long as it attaches certain conditions to the use of force in relations among men. It authorizes the use of force only by certain individuals and only under certain circumstances. Therefore, one could affirm that the law makes the use of force a monopoly of the community, and precisely by doing so, the law ensures peace to the community.

Peace is a condition in which there is no use of force. Therefore, "the law only provides a relative peace," in that it deprives the individual of the right to employ force, but reserves it for the community. Hence, "the peace of the law is not one of absolute absence of force," a state of anarchy, but rather a state of a monopoly of force, a monopoly of force by the community.16 When preventing war or any use of force among states within the international community, one must consider the situation of the individual state, where the goal has been attained, at least in principle, in relations between its citizens. That is, except under certain conditions such as revolutions or civil wars, the use of force on a national level has been effectively eliminated from relations between citizens and reserved for a central organ authorized solely as a reaction against illegal acts.17

Considering the above, the ensuing question is whether international law conforms to such an order, and if not, then what adjustments have to be made in order for international law to be a workable order for promoting peace? In other words, to formulate the problem in a more realistic and less pretentious approach, how can an international community, embracing the greatest number of States possible, be organized within the limits of international law, and in accordance with the specific technique of this law, to form a community that really fosters peace?


A natural response could be formulated on the same terms employed to explain the rationale behind the formation of a nation-state, by uniting all individual States, or at least as many as possible, into one global-state and concentrating all their means of power and placing them at the exclusive disposal of a central government. In other words, to subject as many States as possible to a legal order that, as far as the degree of centralization is concerned, would be on a par with the legal order of the States themselves.18

In this regard, it is possible to consider the international legal system as a legal system like that of national law, for it appears as an ordering of the mutual conduct of States exhibiting the essential elements of a legal order. Any forcible interference by a subject in another subject´s sphere of interests is in principle forbidden, permitted only as a reaction against a violation of order, that is to say, only as a reaction of the community.19 International law can be conceived as a legal system shaped by perfect norms because it can be regarded as a coercive order, which reserves a legitimate monopoly of the use of force to the international community.

It is important to note that the international community differs from a national community in its degree of centralization.20 Therefore, a possible solution of the problem of peace within the framework of international law means solving it through an international organization whose centralization should not go so far as eliminating international law from relations between the States embraced by that organization. That is, a solution to the problem of peace should be by establishing a community of States without altering the law governing relations between these States to such an extent that this law ceases to be international and becomes national. If this degree of centralization is exceeded, the international community would override all existing national orders and would transform into a national community. A solution for world peace formulated under these terms constitutes a political task since it entails organizing a community of states through specific means offered by international law.

International affairs studies have long been focused on the role of international law in the organization of the international community. The reasons that drive governments to subject themselves to international rules and under what conditions they comply with these commitments is an issue rooted in the major disagreements between realist and internationalist theorists in international relations. The main issue at stake is whether sovereign behavior can be influenced by an international legal commitment to rules of conduct and to what extent. It is a problem of weighing power, a "struggle for the soul of the community of nations."21

In general terms, one may thus distinguish two competing principal hypotheses. The first one conceives international law as a tool of diplomacy; it envisions international order as a system of rules to be taken into account by governments when they decide, on a case by case basis, what strategy most likely advances their national interest.22 The power of the law to pull States towards compliance, in this analysis, derives solely from its occasionally coinciding with real motives, such as States´ perception of the advantages obtained from compliance, or the perceived costs of non-compliance.23 From that perspective, States never obey the law solely because of an inherent belief in the Rule of Law, per se. In this view, the law is not privileged and has no independent value. As Professors Goldsmith and Posner state, "international law does not pull states towards compliance contrary to their interests, and the possibilities of what international law can achieve are limited by the configurations of state interest and the distribution of state power."24

The counter-hypothesis, held by those who challenge the skeptical view of law beyond the nation-state, points out that at least some international norms and rules are complied with to an astonishingly high degree,25 as "almost all nations observe almost all principles of international law and all of their obligations almost all of the time."26 From this perspective, the role of coercive sanctions becomes relatively less important than other forms of compliance-generation, such as incentives, capacity-building, dispute settlement, legitimacy-building, shaming, the internalization of law and so on.27 Consequently, the real power of the law to secure systematic compliance rests not, primarily, on police enforcement, but rather on the general belief of those to whom the law is addressed that they have a stake in the rule of law.

To illustrate this point, one has to take into account that in any society, particularly at an international level, the compliance pull of the law is based on each agent´s expectation that most others will obey the law "most of the time" not only because of their immediate interests to do so, but because of the faith in the power of the law to restrain and channel behaviors and acts. Following Thomas Franck, the "law has an inherent capacity to generate compliance. It is a Grundnorm that is as fundamental to the state system as it is ephemeral. It cannot be proven by reference to some antecedent norm. It is an article of faith, yet one that underpins the verifiable reality of a world in which sovereign states interact in a structural system of rules and an expectation of compliance."28

In sum, the main problem at an international level arises from the fact that in international affairs, the Rule of Law has often been limited to equality of the States under international law and the right to be free from force. Due to the political realism (Realpolitik)29 of international relations, international law has been largely determined by world events and foreign self-interested policies of the great States and challenging alliances. In the view of many, international law is not really law at all because it has no legislature, has few courts, and has virtually no enforcement mechanism. International law has therefore been the poor cousin of the national system, and references to substantive principles may be a way to garner support for the legitimacy of the international system: to find common values and rules that define the terms of engagement for a global community.

Thus, one can conclude that the current paradigm established by international law has assimilated several of the basic premises of Realpolitik,30 such as the following: States are the primary actors in the world´s political system; States seek power as a means and an end to ensure their survival in an anarchical world; power is defined in terms of possessing resources and military forces; States are rational, egoistic actors insofar as they pursue solely what is in their best interests; and States´ interests are driven primarily by the need for national survival.


From the above, one could affirm that modern theory and the practice of international relations have been dominated by a political realistic approach. Its primary commitment to a unified view of power and national security as defining elements of the political world has come at a cost of increased human suffering, fear and depravation. Government policies, in particular those based on military operations intended to protect national integrity and power from threats from outside forces, have had a negative and systematic effect on individuals´ lives within States and increasingly, throughout regions and around the world. In order to understand the nature of international conflicts in the light of a realist theory, one has to analyze its perception of international relations, the State, and more importantly, human condition.

For a complete understanding of the analytical framework and essential characteristics of the realist´s conceptual universe, the relationship between war, peace and law from a realist point of view should be established. War, in absolute terms, is recognized as a non-legal condition. In other words, war can be primarily conceived as the denial of law. In contrast, law can be conceived as the affirmation of peace. The relationship between the state of war and the absence of effective laws on the one hand, and of the state of peace and the presence of binding laws on the other, is closely linked with the realist philosophy of the State. Thomas Hobbes, whose philosophy was the precursor of Realism, believed that the non-political condition is represented by a state of nature which entails a continuous warlike situation and state of anarchy, as long as it is absent from positive law. The state of nature assured men the free and equal exercise of their natural rights. However, those rights lacked protection by a common authority that could control competition for power and glory. As free and equal agents, each individual acted only in favor of his own self-interest, independently or in competition with the interest pursued or favored by others. The natural state entails not just individuals´ freedom; it also entails their vulnerability because every other separate individual is a source of danger and threat. We might assume that human beings, like other animals, fought for their survival in a world characterized by uncertainty and dissatisfaction. In that sense, political society came into existence when human beings came together in the state of nature and agreed to surrender to the civil state their natural right to punish those who infringed on his or her own natural rights. This civil state, to which power is handed, is an external and artificial force embodied by the Leviathan.31 In order to be defended from the invasion of foreigners and injuries from one another, human beings authorized a public authority to shape the boundaries of its members´ rights, thus limiting power and regulating the dominion of every part and member of the political society.

Realists often base their pessimistic view of inter-state relations on a similarly pessimistic vision of human nature. The egoism of nation-states is a reflection of individuals´ selfishness, characterized by self-interest based preferences. The corruption and wickedness of human nature, which makes conflict and insecurity inevitable features of human existence, finds expression in the supposedly anarchic structure of international relations. However, while the anarchy of the state of nature can be restrained by the establishment of a Leviathan, relations between Leviathans still take place in an anarchical international society due to the absence of an international superior authority.

In general, realists reject any positive concept of long-lasting peace mainly because of the circumstances of international relations that are seen as anarchic. The best possible scenario would be illustrated as a tenuous balance of power, that is, maintaining an "ordered" society of States through incessant contestation of opposing forces in world politics. In this system, each sovereign State is deemed both a guardian of security and a threat to security. This means that each State searching for protection from other States´ potential threats enhances its power and tries to expand its capabilities to dominate others. By doing so, it threatens other States, which results in a vicious cycle in which security and insecurity are locked together.32

The aim of a balance of power system is to secure the welfare of each state, as well as its sovereignty, territorial integrity, political independence and domestic order. Hence, realists claim that as long as the State is territorially secure, individuals living in that State are secure as well. Consequently, one can conclude that given the realist paradigm of international politics as a power struggle in which violence is built into the inner workings of the system, the traditional national security paradigm is inherently a deficient means for protecting individuals.33

Contrary to the realist´s position, which conceives of human beings as subjects who are used and wasted as mere objects to be manipulated at the State´s will, Kant conceptually anticipated the internationalization and protection of human rights as the core value of both national and international law. In Perpetual Peace, one of the most innovative contributions to international relations theory, Kant describes two traditional levels of the law: jus civitatis as the national legal order and jus gentium, which regulates the international relations between States. In addition to these two legal orders, he proposes the establishment of jus cosmopoliticum to regulate the interdependence between States and human beings as citizens of the world.34

Kant bases his interpretation of international order on the Hobbesian pessimistic postulation of the impossibility of reaching a state of peace between men in their natural state. From this perspective, the state of peace can only be the product of man´s artificial creation. In Kant´s view, this argument applies to both the national and international State. He affirmed that the fact that there is no international peace in reality does not mean that its existence is impossible. To the contrary, for Kant, the state of peace is a necessary condition dictated by the same moral imperative that guided men to overcome the uncertain and unsatisfactory state of nature by assembling into a political community.

When designing the perpetual peace, Kant distinguished between the necessary and sufficient conditions for establishing international peace. Based on the former, Kant suggested that an international order could be created if nations could meet the following requirements:

  1. Free nations should constrain their right to go to war or interfere in the national politics of other nations by signing non-aggression treaties.

  2. Nations should promote the progressive disarmament of their armies.

  3. Nations should renounce their right to make punitive war against others.

These preliminary articles clarify Kant´s absolute rejection of any kind of aggression in order to protect what he conceives as basic human condition, in that human beings are ends in themselves.

In addition to the necessary conditions for creating a state of peace, Kant proposed three definitive articles, which are sufficient and essential to his philosophy of international politics:

  1. The establishment of a republican Constitution for every State.

  2. The formation of a union of nations.

  3. The creation of a universal order of law under which every individual is recognized as a citizen of the world.

It is important to note that for Kant, a republican Constitution is a juridical form of government based on three principles: the freedom of its members as men; their dependence on a single legislation as subjects of law and their equality as citizens. Kant envisioned a political order in which citizens´ consent is required to determine whether or not there should be war, and he assumed that citizens would consider all the calamities and risks before going to war.35 Kant´s philosophy is thus considered the main precursor of one of the most debated hypotheses of contemporary International Relations theory, namely, that democracies do not fight against each other.

The connection between Kant´s ideas and the current debate on International Relations was emphasized more than a decade ago by Michael Doyle: "[Kant] predicts the ever-widening pacification of the liberal pacific union, explains the pacification, and at the same time suggests why liberal states are not pacific in their relations with nonliberal states."36 Since then, literature presents Kant as the main forerunner of the democratic peace hypothesis.37 From that perspective, war can only be overcome by a process of constitutional evolution of world politics in which emerging republics establish among themselves a state of peace. Kant did not promote an international state where nations would surrender their rights in favor of a common power (Leviathan), but suggested a non-aggression pact based on collaboration between states (pactum societatis).38

Kantian liberal internationalism has surely reduced the insecurity left by the Hobbesian anarchical state of international relations. However, it would be a mistake to affirm that Kantian liberal peace has placed us in perfect political equilibrium. The international system is constituted of a mix of hard choices among values where choosing one value entails leaving others aside. In order to have a better picture of this point, the political theorist Michael Walzer evaluated seven political conceptions as strategies for world order based on their capacity to promote peace, distributive justice, cultural pluralism and individual freedom.39 In that sense, Kant´s international liberalism and Hobbes´ realism were positioned at opposite ends of Walzer´s spectrum. On one hand, Kant´s conception of international politics is characterized by maximum centralization in which conventional warfare would be impossible given that its agents would have disappeared and none of the reasons for going to war could be applied. Additionally, since a centralized system is based on a single group of citizens with the same rights and obligations (as world citizens), individual autonomy would therefore be promoted, as well as their freedom to choose their own life plans. In contrast, cultural groups would be ignored by central authorities. Pluralistic tendencies would be overridden because the global State, even if tolerant, needs to command loyalty from its subjects and its power of accommodation is limited by the requirements of globalization. Finally, distributive justice would be felt more because the global authority would be able to transfer resources from the poor to the rich. On the other hand, the anarchistic conception as a realist conception of international politics is characterized by constant threat of war, inequality in each independent State´s capability development (that is, there is no distributive justice), freedom to be different, and promotion of cultural pluralism as a consequence of the State´s independence.

From the above, one can conclude that Michael Walzer´s message is that there is no "perfect equilibrium,"40 especially if we take into consideration that, in recent decades, international conflicts between States have shifted to conflicts without borders. Classical analytical frameworks focusing on relationships between States, military capacities and strategies, and international political economy have to be put aside.

    The years after 1989 saw more military operations in more parts of Europe, Asia and Africa than anyone could remember… since it was often unclear who was fighting for whom and why… these activities did not fit under any of the classic headings of war, international or civil… the century ended in a global disorder whose nature was unclear.41

At present, conflicts are not events with clear beginnings and ends, but instead elements of a broader process of social change that is turbulent, discontinuous and the result of contingent factors, such as global capitalism, the growth of supranational organizations, the intensified flow of peoples, weapons and culture across nations, the internationalization of telecommunications and media, and the rise of global terrorism. All of these factors have undermined claims that the nation-state alone is able to guarantee the physical security, order, and integrity of its territory and of the people that reside within it.

As a response to these current international conditions, two major theories have influenced recent foreign policy thinking in Western countries. One theory holds that the world is advancing to embrace several core values and the institutions that embody them, all of which the West possesses and include individual rights, democratic government and free markets. This position has been advanced by Francis Fukuyama in what he famously called the "end of history."42 Fukuyama recognizes that many nations are still in history, but since the collapse of the communist bloc, he views a trend toward an increasing and worldwide dominance of individualism. Fukuyama´s thesis is that the whole world is in the process of embracing Western values. Though these individualistic values are usually perceived as universal, non-Western societies were slower to recognize them and are now discovering that they are compelling in nature.

The other theory argued by Huntington holds that the world outside the West is largely governed by religious fundamentalists or other sets of values that are incompatible with the Western ones. Hence, these antithetical civilizations are bound to clash. Huntington argues:

    At a superficial level much of the Western culture has indeed permeated the rest of the world. At a more basic level, however, Western concepts differ fundamentally from those prevalent in other civilizations. Western ideas of individualism, liberalism, constitutionalism, human rights, equality, liberty, the rule of law, democracy, the free markets, the separation of church and state, often have little resonance in Islamic, Confucian, Japanese, Hindu, Buddhist or Orthodox cultures.43

One should notice that both viewpoints claim to being able to predict the direction in which the world is moving and prescribe the ways it ought to progress. They both imply that non-Western nations have little to contribute to the global development of political and economic institutions and to the values they embody since the ideas of individual rights, liberty and capitalism are Western contributions to the world.


From the above, one can conclude that world politics is mainly shaped by two antagonistic positions: the return to the most elemental and aggressive references based on ideology; and the intention of integrating the world under the cosmopolitan terms enunciated by Kant. In addition to this dichotomist concept of the world, we have been recently in the presence of global terrorism based on religious fundamentalism. In this regard, it is important to remark that the threat of death has undergone a qualitative change. While in the Cold War, the fear of death prevented both sides from causing a disastrous nuclear holocaust, in the terrorist attacks of September 11th, the element of fear from dying was absent. This was the true novelty in the subsequent phase from the Cold War and probably constituted the most influential factor in the social psyche: "In today´s wars, there are no morals. We do not have to differentiate between military or civilian. As far as we are concerned, infidels are all targets."44

Under such explicit statements, foreign policy theorists suggested two opposite courses of action: unilateralism and multilateralism; in other words, autocracy and democracy. It is evident that the autocratic course of action (which constitutes the prevailing trend of the present international relations) represents the continuance of war, among other reasons, because there is no State powerful enough to solve the problem typified by the presence of non-conventional subjects. The democratic alternative seems to be the only way to strengthen civilized bonds between cultures in times of anarchism and insecurity.

Hence, it seems imperative that all decisions should be adopted with as much consent and as little opposition possible from the affected societies to assure that all collective decisions are the result of political debate initiated and controlled by the international community. In this regard, no nation should be excluded from this debate. Assuming the above, every society could identify the expression of a non-imposed will in international decisions —even if they do not agree with them— provided that they all participated on equal conditions in the decision-making process.

One could affirm that attaining a peaceful world community lies on the basis of postulating the unity of the human species: a universal set of core values (human rights), a universal law of respect, tolerance and compromise, as well as a universal state of inclusion that builds solid normative unity.

However, in achieving this goal, the present state of international relations seems to evoke a rather obscure and uncertain future, particularly because of its failure to provide the ideal mechanisms to prevent resorting to violence and to protect human rights. Perhaps we should not only revaluate the legal and institutional instruments that abolish war, disarm States, attenuate political conflicts and overcome the immense economic and cultural disparities that cleave the planet; but we should also ask ourselves if the philosophical foundations of this system correspond to current human condition, which should be conceived not in terms of individual survival, but of peaceful coexistence.

This last consideration leads me to ask: is peace a valuable and attainable good? If so, are the main world views, such as Realism, Liberalism, and the Clash of Civilizations, accurate enough to define the shape of international conflicts? If not, should we look for new paradigms that redefine international coexistence based on human rights? Should we also redefine its philosophical foundations? Could we analyze the seeds of conflict between individuals and transplant them to the international realm? And taking the possible answers into consideration, should we conceive a new idea of the State?

* This article reproduces from my LLM paper submitted to the Columbia University, School of Law. I would like to thank all of those involved, especially my advisor Michael Doyle.
** Law Clerk at the Mexican Supreme Court for Elections (TEPJF).

1 See the Preamble of the Universal Declaration of Human Rights, December 10, 1948.
2 The grounding of human rights is based on what history tells us: "that human beings are at risk of their lives if they lack a basic measure of free agency; that agency itself requires protection through internationally agreed standards; that these standards should entitle individuals to oppose and resist unjust laws and orders within their own states; and, finally, that when all other remedies have been exhausted, these individuals have the rights to appeal to other peoples, nations, and international organizations for assistance in defending their rights." MICHAEL IGNATIEFF, HUMAN RIGHTS AS POLITICS AND IDOLATRY, 55 (Amy Gutmann ed., Princeton University Press, 2001).
3 Human rights are a product of human ingenuity, even though they might be based on natural facts. The conception of natural rights and human rights are fundamentally different. Many human rights enumerated in the Universal Declaration of Human Rights, such as the right to a fair hearing, have institutional presuppositions and, therefore, could not be conceived as human rights in a pre-institutional state of nature. The justification of human rights is rhetorical and not philosophical or political. In other words, a universal regime of human rights ought to be compatible with the idea of moral pluralism. Human rights as we know them today draw on historic ideas of justice and natural rights, but they are applications of those and other ideas in service of a political project undertaken after World War II. In international instruments, representatives of the states declare and recognize human rights, define their content, and ordain their consequences within political societies and in the system of nation-states. In that sense, human rights are derived from accepted principles, or are required by accepted societal ends, such as peace and justice, or by individual ends such as human dignity and happiness.
4 See Declaration of the Rights of Man and of Citizen, August 26, 1789. These core ideas of the conception of human rights can be derived from the content of the Declaration of the Rights of Man and of Citizen of 1789. One should note that human dignity is conceived to be a moral principle, based on the assumption that all human beings are equal regardless of achievement, rank or standing. The idea that a human being cannot be reduced to a value in terms of something else is derived from the essential nature of humankind itself. Human dignity in this sense means both the circumstance of possessing rights and the obligation to respect the fundamental rights of others. The key rationale for human dignity as a supreme moral principle is its universal validity. In Kantian ethics, the basis for human dignity is reason and, thus, the specifically human quality of acting and judging morally. Human dignity in this sense is the rational insight into the mutual obligation to treat other human beings "always as an end and never as a means only" (Kant 1789).
5 In Henry Shue´s words, the definition of human rights comprises three elements: first, there is the right to be free from government violation of the integrity of the person. Such violations include torture; cruel, inhumane or degrading treatment; arbitrary arrest or imprisonment. These violations all include the denial of fair public trial and invasion of home. Second, there is the right to fulfillment of such vital needs as food, shelter, health care and education. It is recognized that the fulfillment of these rights depends on a nation´s economic development. However, these rights can be violated by a government´s action or inaction, for example, through corrupt official processes that divert resources to an elite at the expense of the needy, or through indifference to the plight of the poor. Third, there is the right to enjoy civil and political liberties. In that sense, a moral right should provide "the rational basis for a justified demand and that the actual enjoyment of a substance be socially guaranteed against threats." HENRY SHUE, BASIC RIGHTS: SUBSISTENCE, AFFLUENCE, AND U.S. FOREIGN POLICY (Princeton University Press, 1996) (1980), p. 13.
6 Political freedoms, economic facilities, social opportunities, transparency guarantees and protective security constitute the distinct type of rights and opportunities that help in advancing the capabilities of a person. As Amartya Sen claims in Development as Freedom, "public policy to foster human capabilities and substantive freedoms in general can work through the promotion of these distinct but interrelated instrumental freedoms" —freedoms that depend on social and economic arrangements, as well as on the establishment of human rights. AMARTYA SEN, DEVELOPMENT AS FREEDOM (Anchor Books Edition 2000).
7 According to Jack Donnelly, "human rights are those rights held simply because one is a human being, goods, services, and opportunities to which everyone is entitled. Because one either is or is not a human being, human rights are held equally by all. Because one cannot stop being human, no matter how inhuman one´s behavior or the treatment one is forced to endure, they are inalienable rights." Jack Donnelly, The Universal Declaration Model: A Liberal Defense, in International Human Rights in the 21st Century: Protecting the Rights of Groups (Gene M. Lyons & James Mayall eds., Lanham, Rowman and Littlefield, 2001).
8 Public authorities, both national and international, are identified as those typically best placed to secure these conditions and thus, the doctrine of human rights has become, for many, an avenue for determining the basic moral guarantees all of us have a right to expect, both from one another but also, primarily, from those national and international institutions capable of directly affecting our most important interests.
9 In the language of the Universal Declaration of Human Rights, their role is viewed as "a common standard of achievement for all peoples and all nations." In that sense, the point of developing a concept of human rights, capable of being shared by adherents to different traditions, is to create agreement not on the basis of common speculative ideas, but on common practical ideas, not on the affirmation of one and the same concept of the world, of man, and of knowledge, but on the affirmation of a single body of beliefs for guidance on action. Universal Declaration of Human Rights, G.A. Res. 217a, at 71, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (December 12, 1948) [hereinafter Declaration of Human Rights].
10 IGNATIEFF, supra note 2, at 173.
11 Since government officials feel they must become increasingly repressive to hold down the potential violence in the society, it turns out to be a vicious circle leading in the end to a conflict between the oppressor and the oppressed.
12 See JOHN RAWLS, THE LAW OF PEOPLES: WITH THE IDEA OF PUBLIC REASON REVISITED 19 (Cambridge: Harvard University Press, 1997). One should note that although the implementation of human rights is a necessary condition to set up the basis for the realization of the people´s interests, they are not sufficient to accomplish that goal. Once human rights set up the foundation for humans to develop their capabilities, there are other factors that influence the possibility of reaching that goal.
13 Declaration of Human Rights, supra note 9. The Preamble of the Universal Declaration of Human Rights, which states: "Now, therefore the General Assembly proclaims this Universal Declaration of Human Rights as a common standard of achievement 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 Member States themselves and among the peoples of territories under their jurisdiction."
15 See HANS KELSEN, GENERAL THEORY OF LAW AND STATE (Cambridge: Harvard University Press, 1945).
16 HANS KELSEN, supra note 14, at 16.
17 It is important to note that contrary to this position, Inis Claude criticizes the idea that with a monopoly of power, an international government will achieve world peace because, she says, this has not been the case at a national level. Several examples of the failure of a State to maintain peace through a monopoly of power: "The proposition that the concentration of all or most of the coercive power of a society in an authoritative central institution is the solution to the problem of disorder at the national level is dubious." It is even more dubious a solution (says Claude) at the international level. See INIS CLAUDE, POWER AND INTERNATIONAL RELATIONS (Random House, N. Y. edition, 1988) (1962).
18 HANS KELSEN, supra note 14, 39.
19 Id., 17.
20 In that sense, one could affirm that: "The decentralized nature of international law is the inevitable result of the decentralized structure of international society". HANS MORGENTHAU & KENNETH THOMPSON, POLITICS AMONG NATIONS, THE STRUGGLE FOR POWER AND PEACE 295 (6th ed. 1985).
22 This perception, mostly shared by realist theorists, is based on the failure of the international order to fulfill the requirements set up by the law, mainly, a centralized coercion administered by an agent with superior resources that can take place only within an established national community. Otherwise, compliance with inconvenient commitments becomes a question of opportunism, a notion alien to any concept of law. Thus, it is the weakness of international law that makes it unreasonable for powerful States to obey it when it does not serve their interests.
23 Many authors doubt whether law is possible beyond the nation-state. Law requires that similar cases are treated in a similar manner. This, in turn, requires a high compliance rate for any given regulation, which seems to be the Achilles´ heel of international regulations.
25 In that sense, the most serious challenge has been to prove realists wrong by credibly showing that compliance is based on anything other than immediate State or government interests.
26 LOUIS HENKIN, HOW NATIONS BEHAVE 47 (2nd ed., Columbia University Press, 1979).
27 This perception of the law emphasizes on the softer means of inducing compliance based on rational consent and the link between legitimacy and compliance.
28 THOMAS FRANK, supra note 21, at 4.
30 THOMAS FRANK, supra note 21, at 4.
31 It is important to notice that Hobbes uses the concept of "natural state" as an analytical tool to understand the necessity of a civil state: if there is no civil state, there is no security, hence no society.
32 As explained in Politics Among Nations, individual nations´ aspirations for power can come into conflict with other nations in two different ways: through the pattern of direct opposition and through the pattern of competition HANS MORGENTHAU & KENNETH THOMPSON, supra note 20, at 192-197.
33 At least, one could affirm that as long as individuals are not conceived as the primary target of protection from a realist point of view, the possibility of human rights violations increases significantly.
34 See Declaration of Human Rights, supra note 9. While cosmopolitan law safeguards a State´s sovereignty vis-à-vis other States, it is an innovation that allows the international community to monitor the international affairs of its members. The concept can be seen as a blueprint of the Universal Declaration of Human Rights, sharing the idea that some rights have a universal value.
35 The existence of a Constitutional Republic is not a guarantee of peace "per se;" it is only a form of government that reduces the probability of going to war based on the political ambitions of the rulers.
36 Michael Doyle, Kant, Liberal Legacies, and Foreign Affairs, Part I, PHILOSOPHY AND PUBLIC AFFAIRS, Vol. 12, No. 3 225 (Summer 1983).
37 See BRUCE RUSSET, GRASPING THE DEMOCRATIC PEACE (Princeton University Press, 1993).
38 Nevertheless, Kant´s liberal republics remain in constant state of war with non-republics; they see themselves threatened by non-republics because they lack representation (which assures legal equality of citizens and separation of powers; hence stability).
39 Michael Walzer, Governing the Globe: What Is the Best We Can Do? , DISSENT, Fall, 2000.
40 Michael Doyle, The Liberal Peace and the Challenge of Globalization, 26 REVIEW OF INTERNATIONAL STUDIES 83 (2000).
43 Samuel P. Huntington, The Clash of Civilizations? , in FOREIGN AFFAIRS 40 (1993).
44 Lisa Beyer, The Most Wanted Man in the World, special issue Time 40-45 (September 24, 2001).


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