It is quite remarkable that the notion of human rights has played such a large role in western history, and now in international relations since 1945, and yet no one has been able to definitively settle questions about the origins and “true” nature of these rights. Despite continuing debate over such philosophical matters, the international community – mostly through the United Nations – has agreed on a modern version of human rights. States, the most important actors in that community, who supposedly follow “realist” principles of harsh self-interest, have used international law and organization to adopt “liberal” standards requiring attention to individual and collective human rights. Internationally recognized human rights, as social construct, are a fact of international relations.

A philosophy of rights?

We do not lack for differing theories about human rights. Even among western philosophers there is great variation. For Edmund Burke, the concept of human rights was a monstrous fiction. For Jeremy Bentham, it was absurd to base human rights on natural rights, because “Natural rights is simple nonsense … nonsense upon stilts.” The contemporary philosopher Alasdair MacIntyre tells us there are no such things as human rights; they are similar to witches and unicorns and other figments of the imagination. Karl Marx, for that matter, was not born in Beijing. He too was western, both by birth and by principal area of concern. At the risk of oversimplifying his many and not always consistent writings, one can say that he regarded many civil rights as inherently good and tactically helpful in achieving socialism, while regarding property rights as contributing to the social ills of the modern world.

John Locke has been subjected to many interpretations. In a dominant strain of western political philosophy, he seems to say that natural law provides human rights as property rights – owned by each individual. Human rights are moral rights that no public authority can transgress. Individuals, in his liberal view, are equal and autonomous beings whose natural rights predate national and international laws. A primary purpose of public authority is to secure these rights in legal practice.Attracta Ingram tells us, on the other hand, that human rights are not property rights that derive fromnatural law. They are constructed in a political process featuring self-government, not discovery of metaphysical principles. There are other constructivist or analytical theories of human rights.

Human rights are widely considered to be those fundamental moral rights of the person that are necessary for a life with human dignity. Human rights are thus means to a greater social end, and it is the legal system that tells us at any given point in time which rights are considered most fundamental in society. Even if human rights are thought to be inalienable, a moral attribute of persons that public authorities should not contravene, rights still have to be identified – that is, constructed – by human beings and codified in the legal system. While human rights have a long history in theory and even in spasmodic practice, it was the American and French revolutions of the eighteenth century that sought to create national polities based on broadly shared human rights. Despite the rhetoric of universality, however, human rights remained essentially a national matter, to be accepted or not, until 1945 when they were recognized in global international law.

This book is about the evolution and status of human rights in international relations at the start of the twenty-first century. Thus this extended essay is about the effort to liberalize international relations – to make international relations conform to the liberal prescription for the good society. In the classical liberal view, the good society is based on respect for the equality and autonomy of individuals, which is assured through the recognition and application of the fundamental legal rights of the person. In this book liberalism is a synonym for attention to personal rights. But in international relations it has been widely believed that the state, not the individual, is the basic unit. And the core principle has been said to be state sovereignty and non-interference in the domestic affairs of states. In this book realism is a synonym for attention to state interests – foremost among which is security – and state power. The subject of international human rights thus projects liberalism into a realist world – a world dominated for several centuries by states and their collective interests.

This book has clearly shown the extent to which human rights has become a routine part of international relations. Michael Ignatieff has captured the trend succinctly but brilliantly: “We are scarcely aware of the extent to which our moral imagination has been transformed since 1945 by the growth of a language and practice of moral universalism, expressed above all in a shared human rights culture.” The language and practice of universal human rights, and of its first cousin, regional human rights, has been a redeeming feature of a very bloody and harsh twentieth century.

But the journalist David Rieff reminds us of a more skeptical interpretation of universal human rights. “The universalizing impulse is an old tradition in the West, and, for all the condemnations that it routinely incurs today, particularly in the universities, it has probably done at least as much good as harm. But universalism easily declines into sentimentalism, into a tortured but useless distance from the particulars of human affairs.” Or, to drive the same point home with a more concrete example, whereas virtually all states formally endorse the abstract principles of human rights in peace and war, “Combatants are as likely to know as much about the laws of war as they do about quantum mechanics.”

The international law of human rights is based on liberalism, but the practice of human rights all too often reflects a realist world. A classical example was provided by the situation in Syria from 2011: the Assad security forces and their allies killed and otherwise repressed those demanding more human rights and democracy; and various states such as Israel, Turkey, and the United States were reluctant to get deeply involved, fearing a complicated quagmire. (In the midst of its bloody repression, Syria was at least blocked from sitting on the UN Human Rights Council.) State narrow interests rather than personal rights often prevail, interpersonal equality often gives way to disrespect for – if not hatred of – “others,” violent conflict is persistent, and weak international institutions are easily demonstrated.

It is a type of liberal progress in keeping with Ignatieff's view that we now recognize the enslavement and other exploitation of the persons in the Congo river basin between about 1460 and 1960 as a violation of their human rights.

In this chapter we examine more closely the evolving process for applying universal human rights standards on a global basis. We inquire whether there is now more commitment to liberalism, as shown through institutionalized procedures to protect human rights.

International law has traditionally been clearer about “What?” than “Who?” The law has emphasized what legal rules apply in different situations. It has frequently not explicitly addressed who is authorized to make authoritative judgments about legal compliance. By default this means that states remain judge and jury in conflicts involving themselves – a principle accepted by no well-ordered society. Certainly the global law on human rights and humanitarian affairs has traditionally been characterized by decentralized decision making leading to much ambiguity about compliance. As this author concluded some time ago, “Most states, in negotiating human rights agreements, do not want authoritative international means of protection.” Many states have asserted an apparently liberal commitment to internationally recognized human rights (including humanitarian law for armed conflicts). But states have often elevated national independence, particularly the supremacy of national policy making, over the realization of universal human rights. States have wanted to retain the authority to delay or opt out of human rights commitments, for whatever reason.

Is this conventional wisdom still valid? This chapter will show that, first, global enforcement of human rights, in the form of international court judgments and other forms of direct international responsibility for the application of human rights standards, is still a relatively rare event. Direct protection by international agencies exists, but not often. Neither the International Court of Justice, nor other international courts, nor the UN Security Council frequently assumes direct responsibility in seeing that universal human rights norms prevail over competing values. This is so especially outside Europe. There may be some change under way on this point in the early twenty-first century, particularly for smaller or weaker states. But the generalization still holds, especially for the more powerful. The global international community does not often frontally and flagrantly override state sovereignty in the name of human rights despite the 2005 norm of an international responsibility to protect (R2P).

At the same time, states generally find themselves enmeshed in global governance. By their own consent, they find themselves part of international legal regimes that generate diplomatic pressure to conform to human rights standards.

When it comes to the dissemination of news, traditionally one spoke of hot and cool media. That referred to televised and print journalism. In the past, such was the influence of the CBS evening news that President Lyndon Johnson supposedly said that when anchor Walter Cronkite became critical of US policies in Vietnam in 1968, he knew he had lost the support of Middle America. In contemporary times one has to also speak of social media in which every person might be considered a private journalist – choosing what to disseminate as newsworthy “fact” and to whom. In 2016, various individuals in Aleppo used social media to keep the world informed about conditions there in the midst of the bloody Syrian war. In 2009, various individuals in Iran kept the rest of the world informed about the Green Revolution which sought more democracy there, especially via Twitter, despite electronic jamming by the regime.

It was well known, witness the ample case law on the subject, that traditional media activity involved a host of human rights questions centered on freedom of belief and expression, and of privacy. The same now is true for social media. Indeed, individual use of the internet has expanded the list of thorny human rights questions not only for individuals, but also for those for-profit corporations like Facebook and Google who saw themselves initially not as members of the media, but as technology or software companies. They are at least quasi-media actors, however, because increasingly a high percentage of persons with internet access get their news, or fake news, from such electronic platforms – either singularly or in combination with television. What circulates on Facebook, Google, and Twitter – and similar media actors – reaches billions of persons, which is precisely why these actors are at the center of discussion, debate, and legal and political action about their policies. What they allow to circulate or block is enormously important. Whether they cooperate with governmental spying programs is also hugely important.

It was obviously the case that traditional media could be important in drawing attention to human rights violations. This occurred as far back as the nineteenth century, when print journalism helped push Britain and other Western governments into interventions in response to Balkan atrocities during Ottoman rule.

My preface to the third edition was written at the time of the Arab Spring, with its popular demand for more democracy and human rights, but before its widespread failure. One can note the reinstitution of military rule in Egypt, humanitarian disaster in Syria, and chaos in Libya. Five years after 2011, there are ample reasons to be cautious if not pessimistic about the future of human rights. This is not only because of developments in the Arab-Islamic world, but also because of clear repressive trends in important states like China and Russia. Even in the West, almost every democratic government was under pressure from nativist and xenophobic forces hostile to – or at the least indifferent to – the notion of universal human rights. Many persons felt threatened by international forces, often described as socio-economic globalization. In addition, the prevalence of terrorism in much of Asia, Africa, and the Middle East, and its occasional occurrence in the West, created a political climate conducive to violation of many human rights in the name of national security. Counter-terrorism policies led at times to enforced disappearances, torture, administrative detention, and trial in military commissions offering “rough justice.”

Broad feelings of alienation and insecurity are not conducive to protection of human rights. Yet defense of the individual, his integrity and her dignity, is most needed precisely in those times of stress. It is easy to be in favor of human rights in times of peace and prosperity. The challenge is to respect the fundamental dignity and autonomy of persons in times of violence and economic distress. This means finding some workable and relatively humane blend of national security, economic prosperity, sustainable development, and human rights. This is what international law requires and this is what many governments profess to endorse. But making the law on the books into the law in reality is no easy path – especially given the insecurities and competitions inherent in the nation-state system of world affairs.

The objective of the fourth edition is finding the right synthesis between positive and negative developments in the quest for a more rights-protective world. All governments go through the motions of paying lip service to this goal. All states have accepted the 1949 Geneva Conventions designed mainly to protect human dignity in war. At the United Nations, the acceptance rate of most human rights treaties is about 70 percent.

We saw in Chapter 7 that the international law of human rights was directed mainly to public authorities like states and their governments, but that private non-profit actors like human rights advocacy groups helped shape the rights discourse and action. In this chapter I will show that for-profit private actors like transnational corporations have a tremendous effect on persons in the modern world, for good or ill. For the first fifty years after the adoption of the United Nations Charter and Universal Declaration of Human Rights, these business enterprises mostly fell outside the mainstream debate about the promotion and protection of internationally recognized human rights. This was so despite the fact that the leaders of the German firm I. G. Farben and other business leaders had faced legal justice at the Nuremberg Trials (second round, US jurisdiction) for their role in criminal behavior.

This general situation was changing in the early twenty-first century. Attention to transnational corporations and human rights constitutes an important dimension in the international discourse on human rights. Non-profit human rights groups, along with the media and particularly consumer organizations and movements, are targeting the corporations. The result is renewed pressure on public authorities, especially states, to adopt norms and policies ensuring that business practices contribute to, rather than contradict, internationally recognized human rights. The corporations themselves are under considerable pressure to pay attention to human rights, although there remain formidable obstacles to a broad corporate social responsibility that includes human rights.

Enormous impact

It has been long recognized that business enterprises that operate across national boundaries have an enormous impact on the modern world. If we compare the revenues of the twenty-five largest transnational corporations (TNCs) with revenues of states, as in Table 8.1, we see that economic significance.

The world's 200 largest TNCs are incorporated in just ten states, as shown in Table 8.2, above all in the United States and Japan. This means, of course, that if one could affect the national policies of these TNCs in this small number of states, one could greatly affect TNCs’ global impact.

Beyond macro-statistics, it is clear that with regard to the internationally recognized right to health, and if we take the case of the HIV/AIDS pandemic in Africa and other places, the role of drug companies (often claiming intellectual property rights) is central.

After gross violations of human rights, what is one to do? This is the subject of transitional justice, a growth industry for intellectuals and policy makers after the Cold War. Should one prosecute individuals in international courts, or in hybrid or special courts, or in national courts? Should one avoid courts and rely on truth commissions, or bar violators from public office, or just move on to concentrate on building a rightsprotective state in the future rather than looking back via criminal prosecution? There are many complexities facing those interested in international criminal justice – meaning those interested in whether to prosecute individuals against the background of international human rights and humanitarian norms. Beyond punishment of evildoers, one needs to keep in mind other possible goals of transitional justice: deterring future atrocities, bringing psychological closure to victims and/or relatives, producing reconciliation among divided communities, building a rights-protective polity in the future, adjusting to the lingering power of elements of the old regime.

In the last decade of the twentieth century the United Nations created two international criminal courts, the first in almost fifty years. Moreover a new International Criminal Court (ICC) came into legal existence in July 2002. Furthermore, special courts were created in the aftermath of atrocities in Sierra Leone, East Timor, Kosovo, and Cambodia, while a new court was created by the interim government of Iraq after the US invasion and occupation of 2003 to try Saddam Hussein and his lieutenants. The United Kingdom agreed that the former dictator of Chile, Augusto Pinochet, could be extradited to Spain to stand trial there for torture. The Security Council authorized a special court in response to a political assassination in Lebanon, although that was more political theatre than expectation of effective criminal justice.

In the abstract it is hard to disagree with the proposition that those who commit gross violations of internationally recognized standards pertaining to genocide, war crimes, and crimes against humanity should face criminal justice. The principle of R2P, already noted as adopted by the UN in 2005, adds ethnic cleansing to this list of major violations (but without changing the subject matter jurisdiction of existing courts).