A Foundation for Transnational Obligations
Human rights have, over the last fifty years, risen to the forefront of foreign relations. Whereas Marx could refer them as the “so-called human rights,” few today would be so bold as to question the cogency of the category itself. Despite this pervasive influence, the concept of human rights sits uneasily with other deeply-entrenched categories, not least being the sovereign state. Without some ethical reconciliation between these two, enforcement of these rights will remain opportunistic.
Some will argue that, just as the rights are predicated on the universal concept of the human, the mechanisms for their enforcement should also be universal, leading to considerations of the possibility of the eventual formation of one world-state. The greater part of this essay, however, has been to demonstrate that that outcome is precluded on theoretical grounds. Any State intending to be more than an organization for the exercise of power, one that instead aims toward the realization of right and freedom, requires self-consciousness and a political identity grounded in those rights and freedoms, both of which necessarily out of contrast and recognition by contrastive others. States organized in these terms are therefore several if they exist at all.
A different solution to human rights enforcement can be found, however, in that same need for mutual recognition. States as states immediately acquire rights and obligations that can be used to regulate behaviors between states. Moreover, the correlative duties that go along with those rights justify the enforcement of human rights (which impose duties upon all) even when doing so involves crossing national borders.
Critical to the success of this project is the principled disentanglement of the human from the civil rights. This project can be intimidating. As one example, while Winfield would be expected to include among the fundamental human rights that of political participate, Jean Cohen would not:
"To construe popular sovereignty or democracy as a human right is to make a category mistake: it collapses political into moral categories, reducing the citizen to “person…. Popular sovereignty is a regulative principle, not an individual right."
Clearly, there remains much work to be done.
James M. Donovan. 2007. "A Foundation for Transnational Obligations" The SelectedWorks of James M. Donovan
Available at: http://works.bepress.com/james_donovan/46