The Person within the State: How the Concept of Universal Human Rights are Translated through the...

Person within the State 1

The Person within the State: How

the Concept of Universal Human

Rights are Translated through the

State

Scottie Ehrhardt, Ph.D. Candidate

Union Institute and University

May 2014


The notion that human beings are born with a set of rights

that are predicated from Nature outside any social or

governmental structure has been a discussion since the

Declaration of Independence mentioned the idea of inalienable

rights. But for those rights to be fully recognized, and more

keenly – activated, there must be a structure that not only

grants the application of those rights but also protects those

rights from others who wish to take them away or disregard their

existence. The responsibility of garnering rights and protecting

said rights is the duty of the State, which is often formed for

the security and progression of its citizens. Even the most

recognized document when it comes to human rights, the Universal

Declaration of Human Rights by the United Nations, was

constructed and agreed upon by a governing state body (although

with questionable ability to enforce its statutes). Samuel Moyn


in his book, The Last Utopia: Human Rights in History, points to the

inclusion of the State within the human rights discourse when,

mentioning the birth of human rights thought, notes that “it was

universally agreed that those rights were to be achieved through

the construction of spaces of citizenship in which rights were

accorded and protected” (Moyn 134). So despite the focus of the

individual in modern society the fact remains for human rights to

be recognized they must also be enforced and protected by some

sort of sovereign power so as to have validity beyond mere

ideation.

In this paper I wish to lay out how the rights of the State,

and its ability to enforce and protect these rights, is a

prerequisite in the practical distribution of human rights.

Meaning that human rights cannot be inferred, especially when

that discussion is of what human beings are entitled to naturally

– as a result of their pure existence, but rather must be in

unison or at least with the recognition of those privileges the

State considers inalienable rights and what the State is willing

to sacrifice to ensure those benefits. Despite what high

thoughts we may garner about human rights “enforcement of


authoritative international human rights norms... is left almost

entirely to sovereign states” (Donnelly 283), thus requiring

their necessary involvement when developing ideas about how human

rights can be actuated. Even with the inclusion of the State it

will be possible to see how human rights agendas have made

traction worldwide and how that may be employed to further human

rights notions. Ultimately, this paper would like to present the

argument that if citizens work to convince State systems of what

is considered validated rights that those rights, in turn by

adoption from the State, can be guaranteed rather than merely

purposing that people have rights over the State.

Traditionally, advocates have framed “human rights as moral

rights that all individuals have by virtue being human.

Accordingly, human rights are universal and have unrestricted

validity, binding all individuals and societies whatever their

religion, tradition, or culture. Human rights are deemed to be

the most important among moral rights-articulating especially

valuable goods or interests, particularly weighty moral concerns

that all human beings have. They are ascribed to all individuals

equally. Indeed human rights are meant to protect the essential


and universal features of human personhood from abuse” (Cohen

581). Regardless of how we feel about the idea of the

universality of human rights the pragmatic reality is that the

world is partitioned up of various groups and nations, and it is

within these groups were the activation of any rights is decided,

for even “the statement on Human Rights of the American

Anthropological Association (AAA) put it, ‘man is free only when

he lives as his society defines freedom’” (Donnelly 294).

When looking at the interactions between the nations of the

world today, where a nation’s power is the preeminent concern,

one comes across the notion known as realism. Realism begins at

the point that human nature, at its core, is self-centered and

competitive being “primarily selfish and power seeking” (Mingst

63), or as Plato proclaimed - “States are as the men, they grow

out of human characters,” and as such “Hobbes maintained that

just as individuals …have the responsibility and the right to

preserve themselves, so too does each state in the international

system” (Mingst 65). The notion that nations operate in the same

guise as a person carries over to the macro by assuming that all

nation-states are, in a very Hobbesian way, self-seeking and


competitive as well. States are viewed to be, as Thucydides

pointed out in History of the Peloponnesian War, “the principle actor (sic)

in war and politics” and are “assumed to be a unitary actor”

(Mingst 64). Being the centric actor in the international realm,

states (or nation-states) have the ability “to take justice into

(their) own hands and to be the sole arbiter of the decision to

fight or not to fight,” leaving the world in a realm of anarchy

due to the fact that the “relations among states take(s) place in

the absence of a world government” (Griffiths 1-4). It is from

this chaos that realists “posit that anarchy perpetually commits

states to engage in self-help and survival-maximizing behavior”

(Thies 161). Due to the fact that sovereign states are the

primary actors in a realist world the capability to which

individuals (who are warrants of the state) and international

institutions (which are made up of states) have, as far as

influence or impact are concerned, is of little effect for “the

sovereign territorial state is morally important because it

remains the key locus within which a public, authoritative,

coercive legal order, a sine qua non for cooperation and

security, can be erected and enforced. To this Hobbesian


intuition one must add that it is only by virtue of a concrete

legal order that has direct effect on individuals, endowed with

actionable rights that their external liberty as well as their

security, the stability of their expectations, and the

preservation of their rights can be in principle guaranteed”

(Cohen 589).

By readily “accepting realist assumptions that states are

the principal actors, decision makers are basically rational,”

this is so that they can accomplish their own national security

and national interest goals (Mingst 67). Ultimately, though, the

goal that takes precedence is that of national security, leaving

items like human rights, which could infringe on state power, a

second-order discussion at best. It is the concept of power, via

military, economic or otherwise and its uneven distribution that

directs the actions of a state and why realist concepts are often

referred to as power politics. “Scholars who subscribe to realism in

international relations, particularly world system theorists,

emphasize coercion in explaining policy adoption. This line of

argument emphasizes the impact of powerful states' will on other

states' policy decisions. Powerful states tend to push their


ideology on the international scene, institutionalizing it as

international norms and pressuring other states to comply with

these norms. From this perspective, one can see global human

rights as an ideology of powerful core countries and

international human rights treaties as institutional expressions

of their ideology” (Wotipka and Tsutsui 734). The application

of morality into a realist line to encourage human rights turns

into the powerful guiding and procuring compliance from smaller

and weaker adversaries, not, from what is hoped, a universal

agreement on the state of personhood within the world. What

becomes important, then, is how the individual interacts with the

State, and how the State recognizes the individual.

One of the most pivotal thinkers when it comes to the

symbiotic relationship between individuals and the State is Jean

Jacques Rousseau whose concept of the social contract where the

individual “places his person and all his power in common under

the supreme direction of the general will” (Mingst 7), is still

discussed at length today. In Rousseau’s Discourse on Inequality, he

is quick to point out in the Dedication to Geneva that despite

how independent we think we might be that “peoples once


accustomed to masters are not in a condition to do without them”

(Rousseau 2). If, in the modern condition, we are accustomed to

having masters (read States) then there can be no real discussion

on the true state of man due to the fact that it would be

impossible to return to such a state, and that the establishment

of the State, despite what one might wish or think, is the format

that has been functionally agreed upon as modus operandi for the

world. Rousseau, himself, acknowledges this problem by stating

that, “…to distinguish properly between what is original and what

is artificial in the actual nature of man, or to form a true idea

of a state which no longer exists, perhaps never did exist, and

probably never will exist; and of which it is, nevertheless,

necessary to have true ideas, in order to form a proper judgment

of our present state” (Rousseau 7). So any discussion that we

have any natural or inherited rights, common to all, already

vested to us upon birth is an exercise in the purely theoretical

according to Rousseau.

In fact, Rousseau points out that “if we look at human

society with a calm and disinterested eye, it seems, at first, to

show us only the violence of the powerful and the oppression of


the weak” (Rousseau 8). This would validate that the ‘natural’

state is actually one of inequality and could be interpreted as

the reason why there are not common rights among different people

groups. Rousseau goes on to explain that “I conceive that there

are two kinds of inequality…one, which I call natural or

physical…and consists in a difference of age, health, bodily

strength, and the qualities of the mind or of the soul; and

another, which may be called moral or political inequality,

because it depends on a kind of convention, and is established,

or at least authorized by the consent of men” (Rousseau 9). So

when looking at the social contract that is established between

man and his government it becomes aware that the motivation to do

so is that “taught by experience that the love of well-being is

the sole motive of human actions…in which mutual interest might

justify him in relying upon the assistance of his fellow,” and

thus, in the end mankind, “found it…easier to assemble and resist

in common,” forming common bonds and finding ways to better

themselves through unity (Rousseau 25).

The necessity to form communities, each with its unique

makeup leads to “in every country arises a distinct nation,


united in character and manners, not by regulation or laws, but

by uniformity of life and food, and the common influence of

climate” (Rousseau 26). It is here that people would say that a

government does not exist, nor need to exist, for all are in

common, but that would be naïve for even in the best of family’s

rules are broken, so then a device must be created to balance

those powers, we would call them laws. “It must, in the first

place, be allowed that, the more violent the passions are, the

more are laws necessary to keep them under restraint” (Rousseau

21). The establishment of these laws begins a structure of

organization in which people can “in a word, instead of turning

our forces against ourselves, collect them in a supreme power

which may govern us by wise laws, protect and defend all members

of the association, repulse their common enemies, and maintain

eternal harmony among us” (Rousseau 30). So it is here we can

see progressive steps being undertaken to create the modern

State, over the individual but at the same time for the

individual. Rousseau even goes the extra length to establish

that mankind should not just flippantly create and change laws to

suit their needs by stating that “each man should not be at


liberty to propose new laws at pleasure; but that this right

should belong exclusively to the magistrates (read State)”

(Rousseau 2). In a pragmatic world there should not be a case

where a State should want to give up their power freely,

especially to an outside agent, that it has garnered from the

social contract for that would be an a disintegration of itself

and an abandonment of the people that are recognized within it.

What has gone against this trend is that there has been a

“growing commitment to global human rights by national

governments (which) is remarkable considering that these human

rights treaties essentially constrain their sovereign rights

while providing few tangible short-term benefits for them.

(Wotipka and Tsutsui 725).

If we are to take Hobbes at his word, then States should

never enter into agreements that might lessen their power but “it

is unmistakable…that a growing number of countries have ratified

(human rights) treaties, as almost 80% of country- treaty

combinations have been filled by 2001” (Wotipka and Tsutsui 728).

The fact that these human rights treaties are even being signed

is odd for “governments should be averse to ratifying human


rights treaties, as their main function is to monitor domestic

human rights practices, which inevitably undermines state

sovereignty” (Wotipka and Tsutsui 729), and the social trust

given to said authorities. These treaties that fixate on the

individual versus the State are “unlike international treaties on

security and trade, which regulate international military and

economic exchange and provide reciprocal benefits for the

parties, human rights treaties deal primarily with purely

domestic issues and do not offer any tangible incentives for

national governments to ratify them” (Wotipka and Tsutsui 728).

The adaptation of these types of treaties is a relatively

new event with “the International Covenant on Civil and Political

Rights and the International Covenant on Economic, Social and

Cultural Rights…were among the first inter-national human rights

treaties with binding power and monitoring mechanisms, along with

the International Convention on the Elimination of All Forms of

Racial Discrimination, which was adopted in 1965. Both treaties

referred to the Universal Declaration of Human Rights and

established that human rights are matters of international

concern and, therefore, that international society can intervene


in cases of human rights violations” (Wotipka and Tsutsui 731).

By agreeing to these treaties States were agreeing to notions

that restricted their power, so why would they agree to them in

the first place, for no one ever agrees to give up something they

already have for something less? Perhaps it is because these

agreements were designed and built around the concept that they

would be applied to interaction within States, which were

established with the individuals from whom they govern, and not

specifically for the individual themselves, or as Moyn puts it,

“the conceptual foundation of rights even before the Universal

Declaration may have been natural or even "human" for some

thinkers, especially at the high tide of Enlightenment

rationalism. But even then, it was universally agreed that those

rights were to be achieved through the construction of spaces of

citizenship in which rights were accorded and protected” (Moyn

140). So even at the onset of the concept of modern human rights

the catalyst for these rights being enacted was to come from the

State itself as part of the social contract concept that Rousseau

professed.


Another scholar who looked at this notion of how and why

nations exist and interact is John Locke who had ideas, although

somewhat similar to Rousseau, professed different motivations for

the cause. One of John Locke’s first points in the Second Treatise

is “that the power of a MAGISTRATE (sic) over a subject may be

distinguished from that of a FATHER (sic) over his children, a

MASTER (sic) over his servant, a HUSBAND (sic) over his wife, and

a LORD (sic) over his slave” (Locke 2). Even though the

magistrate, the master, and the lord examples seem very similar,

in Locke’s mind they are decidedly different. He clarifies the

distinction in political power by pointing out that, “POLITICAL

POWER (sic), then, I take to be a RIGHT (sic) of making laws with

penalties of death, and consequently all less penalties, for the

regulating and preserving of property, and of employing the force

of the community, in the execution of such laws, and in the

defense of the common-wealth from foreign injury; and all this

only for the public good” (Locke 3). Notice that one of the

primary purposes for the concept of the State is for the

preservation of property and that this should be for the benefit

and good of the public or community. Locke’s idea of the pure


state of man is that all people are equal and are able to guide

their actions while having no need of anyone else, and thus

having no more power than any other adding later “that being all

equal and independent, no one ought to harm another in his life,

health, liberty, or possessions…and being furnished with like

faculties, sharing all in one community of nature, there cannot

be supposed any such subordination among us, that may authorize

us to destroy one another… Every one, as he is bound to preserve

himself, and not to quit his station willfully” (Locke 4). Here

it is easy to see the human rights agenda where we are set up as

the overseers of ourselves, being that we are all equal and that

way of being was establish prior to that of the State. But Locke

does not necessarily agree to the assumption that all men are

equal and men alone without oversight are the ultimate decision

makers in matters of law for, “it is unreasonable for men to be

judges in their own cases, that self-love will make men partial

to themselves and their friends: and on the other side, that ill

nature, passion and revenge will carry them too far in punishing

others… and that therefore God hath certainly appointed

government to restrain the partiality and violence of men. I


easily grant, that civil government is the proper remedy for the

inconveniencies of the state of nature” (Locke 6).

So even from an early juncture Locke introduces political

power not to suppress but to referee and maintain civility. This

forming of societies and social groups is not only easily done,

but is a direct output of our selfish and tainted nature;

“therefore to supply those defects and imperfections which are in

us, as living single and solely by ourselves, we are naturally

induced to seek communion and fellowship with others: this was

the cause of men's uniting themselves at first in politic

societies” (Locke 6). On the heels of the power of the political

state, Locke reinforces the concept of property where he states

that, “it seems to some a very great difficulty, how any one

should ever come to have a property in any thing… God, who hath

given the world to men in common, hath also given them reason to

make use of it to the best advantage of life, and convenience,”

but it is by, “(t)he labour of his body, and the work of his

hands, we may say, are properly his. Whatsoever then he removes

out of the state that nature hath provided, and left it in, he

hath mixed his labour with, and joined to it something that is


his own, and thereby makes it his property” (Locke 10-11). Locke

uses the following description of the Native American he

encountered to demonstrate how property is developed through

labor: “There cannot be a clearer demonstration of anything, than

several nations of the Americans are of this, who are rich in

land, and poor in all the comforts of life; whom nature having

furnished as liberally as any other people, with the materials of

plenty, i.e. a fruitful soil, apt to produce in abundance, what

might serve for food, raiment, and delight; yet for want of

improving it by labour, have not one hundredth part of the

conveniences we enjoy: and a king of a large and fruitful

territory there, feeds, lodges, and is clad worse than a day-

labourer in England” (Locke 16). Where this matters in our

discussion it can be seen that the State is the harbinger of

property and thus is the ‘giver’ of things for which people can

feel entitled to possess and officially recognizing who owns what

and settling disputes while also establishing “the use of money,

some lasting thing that men might keep without spoiling, and that

by mutual consent men would take in exchange for the truly

useful, but perishable supports of life…And as different degrees


of industry were apt to give men possessions in different

proportions, so this invention of money gave them the opportunity

to continue and enlarge them” (Locke 18). So, even as Locke

starts out with talk of equality of man, and therefore modern

concepts of human rights, he quickly shows the reasons necessary

for the establishment of the State that of property ownership and

maintaining civil order, but he also shows that the condition of

mankind is not one of fairness but of inequality.

The establishment of rights, human or otherwise, had to

begin somewhere and somehow or else there would be no dialog on

human rights today. Even as Rousseau and Locke discuss how this

state of being came to exist and the function of government there

must be an understanding of the basic types of rights that States

and the individuals within them use, which are, plainly, positive

and negative rights. Starting with negative rights which are

those rights in which a government cannot take away or infringe

upon and it is on this concept that the U.S. Constitution is

built. In Article 1of the Bill of Rights, it proclaims that

“Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof; or abridging


the freedom of speech, or of the press; or the right of the

people peaceably to assemble, and to petition the Government for

a redress of grievances” (Bill of Rights). To be clear it says

that the (Federal) government cannot make a law prohibiting

freedom of speech, but it does not say that there will not be

consequences for things that a person may say, that is why there

exist slander and libel laws in the U.S..

The notion that people are wholly entitled to say anything

they want, anytime they want would be a better example of

positive rights – the idea that the government is responsible to

give an individual something. In the Bill of Rights one is only

protected from interference not the recipient of something but an

example of positive rights can be seen in the Universal

Declaration of Human Rights signed by the United Nations in 1948.

In Article 13 it reads that “(1) Everyone has the right to

freedom of movement and residence within the borders of each

state. (2) Everyone has the right to leave any country, including

his own, and to return to his country” (Universal Declaration of

Human Rights). Basically this article forces any State to allow


people to liberally leave that country and return at will despite

what the national laws dictate.

It is specifically the question of these positive rights

where human rights issues run into a problem, for the Soviet

Union, in its heyday – using the example above, did not allow the

free movement of its people regardless of what the Declaration of

Human Rights said thereby proving the power of the State versus

noble endeavors. It would not be a stretch of the imagination to

say that people that support the notion of human rights

presuppose that the rights of an individual supersede that of a

State, perhaps reflecting on Locke’s chronology, but looking at

the situation between State and man in a more practical and

real(ist) notion, the State’s power trumps because it can enforce

its stance where documents and good ideas cannot. As Cohen

points out, “Domestic jurisdiction, territorial integrity matter

because they help delimit the legal and political system of one

political community from another. The legal concept of

sovereignty constructs and protects the external autonomy of the

political community, as well as the internal supremacy of its

legal system and the autonomy of the ethical political practice


of the citizenry that shapes its political institutions and gives

content to the rights articulated in domestic laws and the

constitution” (Cohen 589).

What comes to the surface then is a case of citizenship, for

by belonging to one political state or another one inherits the

rights guaranteed by that state. If someone exists without

belonging to a State, one is basically power-less due to no

entity being able, or willing, to enforce that individual’s

position/standing. Despite the notion that “the conceptual

foundation of rights even before the Universal Declaration may

have been natural or even "human" for some thinkers, especially

at the high tide of Enlightenment rationalism. But even then, it

was universally agreed that those rights were to be achieved

through the construction of spaces of citizenship in which rights

were accorded and protected” (Moyn 140). So, for example,

“if a state engages in mass extermination, mass expulsion

(ethnic cleansing), massive crimes against humanity

including virtual exclusion/enslavement of particular

categories of its citizenry, it forfeits the claim to be

representing the groups it oppresses in these radical ways.


What these policies or laws "say" to the targeted group is

"you are not one of us, you are no longer a member of this

political/cultural community, you are the enemy, you as a

group have no right to exist, or you as a group are so

inferior that you have no right to have rights as members,

we can use you and your labor but you are not persons or

citizens under our (or any) law." These practices violate

individual moral rights but they must also be understood

politically as a politics of exclusion and of destruction of

the very condition of possibility of political agency of the

targeted groups to which the political conceptions of human

rights has a response.” (Cohen 587).

As long as the political exists the necessary function of

citizenship will continue to be maintained, and so “while moral

rights of victims are of course being violated, it is the

political project behind the violations and the political

prerogatives of sovereignty that must be addressed by human

rights discourses” (Cohen 588). To put the definition of what is

meant to be a citizen more precisely; “citizens are members of a

political community involved in a distinct set of political and


legal relationships with one another and with their government in

a discrete, bounded polity. The concept "people" refers to

citizens as legal subjects, as members (nationals of the polity),

potentially able to see themselves as "collective" authors of the

laws and political institutions under which they are governed.

Shaping these political and legal relationships involves

political processes that are and ought to be uniquely theirs”

(Cohen 589). To read in another way, as cultures vary one from

another, and as nations establish norms of different practice, it

becomes abundantly clear that any form of universalism within the

context of so much plurality becomes almost useless unless one

version of ‘rights’ is taken as the one and true version over all

others, leading to the notion that “human rights require local

contextualization, interpretation, and vernacularization by self-

governing peoples” (Benhabib 692).

The development of a more localized perception of human

rights does assume that “sovereignty is both outside and inside

law. On the one hand, it is the ability to found and suspend a

juridical order. To that extent sovereignty transcends the law,

its decisions seeming to come out of nowhere, like a ‘miracle’.


In saying this Schmitt emphasizes sovereignty's omnipotence, if

not to realize its intentions then at least to decide them”

(Wendt and Duvall 620). But the concept of sovereignty often

comes with a tainted notion that it is an agent that is above and

beyond that of society when actually it is a product of society,

especially because “sovereignty-both domestic and external-is

socially constructed as states interact with, imitate, and

conflict with one another. ‘Domestic order’ is thus premised on

‘external’ disorder and danger. In this understanding,

sovereignty is a social fact produced by the practices of states.

So, rather than emerging from the ‘state- of-nature’-the war of

all against all-that Thomas Hobbes used as the basis for positing

the origins of the state, sovereignty comes about as a result of

the ‘purposes’ of states in interaction and can involve a wide

range of actual practices and policies that change over time”

(Agnew 440).

These changes can have far-reaching effects depending how

citizens and States decide to interpret them. A clear example of

how far sovereignty can be extended can be seen in the “ Military

Order of 13 November 2001, President Bush gave himself the right


to detain any non- U.S. citizen anywhere in the world for as long

as he chose if there were suspicion of involvement in anti-U.S.

‘terrorist activity’. In the wake of so-called humanitarian

crises, as in Somalia, Bosnia and Kosovo, the U.S. and other

governments (sometimes under the mantle of the United Nations)

have also intervened militarily across the globe, even when the

states facing intervention have defended themselves against such

‘violations’ of territorial sovereign (Agnew 438). These kind of

patriarchal actions by more powerful states further imply realist

concepts of power when discussing intra-national interactions as

well as bring to the surface notions of colonization by these

more powerful countries.

When looking at the establishment of the modern concept of

human rights one can see that it is inexplicitly connected not

only to citizenship but also to decolonization, which was a major

topic directly after World War II. “When decolonization resulted

in enough new states to matter at the UN, the phrase "human

rights" itself came to be incorporated in the master principle of

collective self-determination” (Moyn 978). It is essential to

remember that even in the beginning of the human rights debate,


in the aftermath of the Holocaust that the State was not removed,

and could even be seen as paramount, in the discussion. By

establishing the firm “connection between rights and the state is

important because it also casts the common association of rights

with human universalism in a very different light” (Moyn 145),

for if the discussion was “appealed to international law, it was

one in which recognition of states, not the protection of

individuals, is what counted” (Moyn 966). Even Marxists, who

desired a universal society concept, like Ho Chi Minh “placed

popular liberation first, not individual human rights directly.

After citing the declaration's ‘immortal statement’, he

immediately continued: ‘In a broader sense, this now means: All

the peoples have a right to live, to be happy and free’. He could

not have been clearer: the utopia that still mattered most was

postcolonial, collective liberation from empire, not individual

rights canonized in international law” (Moyn 968).

Arriving to the point where we are today in which human

rights has almost nothing to do with self-determination, it must

be remembered that it “became a plausible doctrine after the mid-

1970s: an era in which collective self-determination, so


persuasive before, entered crisis” (Moyn 991). To be concise we

must acknowledge the chronological order of how the human rights

discussion became viable in modern society where “The detailed

history of wartime promises to the colonial world shows, in fact,

that human rights entered global rhetoric in a kind of hydraulic

relationship with self-determination: to the extent the one

appeared, and progressed, the other declined, or even

disappeared” (Moyn 1009). In fact, to call “the Atlantic Charter

a "human rights instrument," setting the terms for all the

generosity that followed, ignores that it did not include the

phrase "human rights"-the consecration of which in the 1940s

dropped the concept of self-determination that the charter did,

in fact, feature” (Moyn 1021).

The ability for people to collective gather and determine

for themselves laws and practices, thus becoming the State, is

the forerunner to any real discussion on human rights which is

“subordinate-if not equivalent-to self-determination” (Moyn

1100). Even the UN in its early years seemed to agree that human

rights and the formation of the State were inexplicitly

intertwined for “The General Assembly approved the directive to


include in the formulation of human rights covenants the article

that "All peoples shall have the right of self-determination." A

version of it remains there today; it is the very first right in

both the chief international legal document protecting civil and

political liberties and the one offering economic and social

protections. (Moyn 1126). By being a State people have the

ability to create and enforce what they see as right and just

which is why the UN named “the right to self-determination of

peoples as the very first of all human rights in those drafts

(Moyn 1102), this notion being enforced by Kolli Tamba of Liberia

who stated that “Self-determination…was an essential right and

stood above all other rights" (Moyn 1117). To put it simply,

without the establishment of a State to carry the responsibility

of maintaining individual rights there is no real way to ensure

that individuals will be able to continue the enjoyment of any

rights, thus self-determination became “the chief and threshold

right-"a prerequisite," as the Bandung Final Communique put it,

"of the full enjoyment of all fundamental Human Rights" (Moyn

1242).


If the foundation of human rights, that of citizenry and

self-determination is so plainly entrenched how did we arrive at

the individual-higher-than-the-State predicament we find

ourselves in today? Well, it so happened that “A number of

Anglo-American figures-Hersch Lauterpacht most famously-were

suggesting a turn to the individual not just as the subject of

international law, but as a new addressee and partisan. ‘[A]11

law and all government exist for the benefit of the individual

human being’" (Moyn 2077). This proposal was a far stretch from

the work that had been established and was widely decried for

“Stanley Hoffmann stated that ‘To press forward in the field of

universal definitions of human rights is an invitation to

hypocrisy and to heightening political tensions’” (Moyn 2178).

Steps continued forward to make human rights of the individual,

and not the act of self-determination, the goal causing Clyde

Eagleton, who was writing for Foreign Affairs, to fume that "the

arguments advanced and the action taken would seem to give each

individual human being a right to be an independent country....

It is sad that anti-colonial resentment should have distorted so

noble a principle." (Moyn 2281). Despite this critique of the


definition of human rights equaling universal individual rights,

not rights within a state, does not necessarily mean that the

concept is wrong or misguided.

In fact, it can be said that “The object of government is no

longer simply obedience to the king, but regulating the

conditions of life for subjects” (Wendt and Duvall 618). That

being the case it is possible to extend that the State can be an

overseer of individual rights as per the social contract so that

we can see that in modern government “the emergence of both

panoptic surveillance and numerous specialized discourses-of

education, political economy, demography, health, morality, and

others-the effect of which is to make populations knowable and

subject to the regularization that will make for the ‘happy

life’" (Wendt and Duvall 618). It is the move from security to

quality of life that the notion of rights shift from general to

individual and so “even if a particular polity does not guarantee

equal subjective rights to all members, it is within the

framework of an autonomous sovereign state as a distinct legal

order with domestic jurisdiction that such rights can be fought

for, acquired, and secured” (Cohen 590), meaning that even if


certain rights do not exist today, does not mean that they cannot

exist tomorrow. What is required is the means in which to

struggle.

"Seek ye first the political kingdom," in Nkrumah's famous

slogan, "and everything else shall be added unto you." (Moyn

1050). What is unique in the situation concerning sovereign

states is that people make up the state and thus are the means to

their own change. “If we see state sovereignty not only as a

fact of power but as a normative concept and as an international

legal entitlement to political autonomy, we can view the

discourse of human rights in a new way: as a mechanism to prevent

and correct injustices that may follow from the international

legal ascription and distribution of sovereign equality to

states” (Cohen 579). So instead of viewing the State as the

adversary but as either the means or the partner for which future

rights can be secured it can be presumed “Accordingly, (that)

human rights are the rights people have against the exercise of

coercive power by an official institutional order-the state and

government of their politically organized society-to whose

sovereign authority they are directly subject” (Cohen 582).


Barring any radical change in society “the state is still the

primary locus of legal personhood and of the construction of

external liberty because its laws have direct effect on

individuals” (Cohen 590), meaning that instead of trying to set

oneself above that of the state but instead working within the

boundaries of the society one finds themselves it can be possible

for change “even if a particular polity does not guarantee equal

subjective rights to all members, it is within the framework of

an autonomous sovereign state as a distinct legal order with

domestic jurisdiction that such rights can be fought for,

acquired, and secured” (Cohen 590). To put it concisely, as

Michael Walzer puts it, “the recognition of sovereignty is the

only way we have of establishing an arena within which freedom

can be fought for and sometimes won" (Cohen 591).

As a suggestion I would like to propose that human rights,

although a noble cause, is not feasible without interaction with

the state(s), so even “while moral rights of victims are of

course being violated, it is the political project behind the

violations and the political prerogatives of sovereignty that

must be addressed by human rights discourses” (Cohen 588). To


pursue after the golden chalice of individual preeminence it is

necessary to stay within realistic boundaries so as to function

for “H. G. Nicholas stated that ‘Nothing has done more harm to

the Organization in general and the [UN Economic and Social

Council] in particular than the great wild goose chase after

human rights. No country is innocent in this matter’” (Moyn

1480). What must be realized is that when the desire for

universal rights is done outside the structure of our given

global society it becomes difficult to readily apply all the

gifts of these freedoms equitably and without some form of neo-

colonialism. Henkin stated that "The principal hope for human

rights…lies in continuing international peace, in reduced

international tensions, in internal stability, in developing

political institutions, and in rising standards of living. For

the most part, human rights can only be promoted indirectly"

(Moyn 2225). Although this may seem as a step backward for some

enthusiasts it is actually a healthy step forward for when we

speak of the world and organizations like the United Nations one

must “recall that it is membership in a non-voluntary and


coercive public organization-a sovereign state-that is being

discussed” (Cohen 586).

Strong supporters for world-wide change, like Habermas, even

acknowledged that moving forward is not possible without the

State when he argued “that ‘today any conceptualization of a

juridification of world politics must take as its starting point

individuals and states as the two categories of founding subjects of a

world constitution (sic)” (Benhabib 695). Sovereignty, capitalized

within the state, does not necessarily mean the creation of an

entity that is tyrannical and seeks to imprison those in its

stead, but is more practical a sum of those who partake in it

meaning that as the general understanding of a given people

changes so does the development of the state, for “the concept of

sovereign equality articulates the ideal of political autonomy in

a double sense: it helps construct the external independence of

political and legal relationships within a polity by establishing

domestic jurisdiction and differentiating between distinct legal

and political systems, thereby securing the internal conditions

of possibility for self-determination and self-government under

law-i.e., for political freedom” (Cohen 589). It is by seeking


our political freedom, more so than the gaining of ideal positive

rights, that people can arrive at a place that allows for

expression, opportunity, and ability to maximize their standing.

It was “émigré international lawyer Josef Kunz, who taught at the

University of Toledo, assured his audience in 1951.”On the other

hand, we must approach the task as scholars, i.e., objectively

and critically. Beautiful words alone cannot solve difficult

problems" (Moyn 2142).

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