274 A Positive Century (1815–1914)
to the enjoyment of life, liberty and property.” Borchard readily conceded,
though, that this was “a somewhat indefi nite standard of treatment.”
General concepts of human rights began to take root in international
legal thought in this period in a more or less explicit way. Th e Rus sian (or
Estonian) lawyer Fedor Fedorovich Martens was not a partisan of liberal-
ism, but he clearly articulated the essential idea behind what would become
an international law of human rights. Th is was the thesis that the basic
rights of human beings are not creatures of legislation or treaty. “Th e rights,”
Martens contended, “fl ow from the nature and conditions of humanity and
therefore cannot be created by legislation. Th ey exist by themselves.” Th ese
fundamental rights were crisply summed up as being “the right to respect for
[the] person, to inviolability of... family and of... property.”
Perhaps the clearest outlining of a general law of human rights was ad-
vanced by the Italian lawyer Pasquale Fiore. Fiore’s original academic fi eld
was constitutional law, which he taught at various universities, principally at
the University of Naples. He also did major work in private international
law. Outside the academy, he served as a senator and adviser of the Italian
government. In an eloquent address to the American Society of International
Law in 1912, he maintained that, contrary to the prevailing positivist ortho-
doxy, international law does not apply exclusively to states. Individual per-
sons, he insisted, have “certain rights, which are in de pen dent of the state
and sometimes in opposition to the rights of sovereign power.” He helpfully
provided several specifi c examples: the illegality of the slave trade, the invio-
lability of personal property, liberty of conscience, and the right to emigrate.
Th ese “international rights of man” should be protected by international
law, along with the fundamental rights of states over which positivists were
so exercised.
Legitimacy of Governments
Another important item that liberals brought onto the agenda of inter-
national law was the legitimacy of governments. In national settings, this
was brought about by extension of the franchise, which made governments
(or some governments) increasingly responsive to the will of the persons
governed. In international law, it took the form of a policy of nonrecogni-
tion of governments that took power by irregular means. A proposal to this