American Michael Fay was convicted by a Singaporean court of vandalising
hundreds of thousands of dollars’ worth of property. He was sentenced to three
months in jail, required to pay a fine and, most controversially, was condemned to
six strokes of the cane (the cane would leave permanent scars). There was
widespread condemnation in the United States. Donnelly tersely observes that
President Clinton, while condemning the sentence ‘failed to find it even notable that
in his own country people are being fried in the electric chair’ (2003: 99).
To sum up, Donnelly’s observations are interesting, but two points are
problematic. First, an intuition in favour of human rights at best indicates that there
may be something underlying those rights which is, in some sense, universal. But
if this is so then it should be possible to move beyond intuition and provide reasons
for respecting human rights. Second, the fact that stateshave signed up to human
rights conventions does not entail culturalagreement: human rights must be
recognised as valid by large parts of the populations of states, and not simply by
the leadership. In many states the governing elites are disconnected from their
peoples, and although states may be considered the main actors with regard to
human rights, respect for such rights does depend on popular recognition.Contractualism (Rawls)
The fact that increasing numbers of states are prepared to sign up to human rights
conventions does not in itself amount to an argument for the universality of human
rights, but it may provide an element in an argument. In Chapters 4 (Justice) and
8 (Liberalism) we discussed the idea of the social contract, which has been a device
used by liberal political theorists to justify state power. Our discussion focused on
the ‘domestic’ use of the contract: political theorists such as Hobbes, Locke,
Rousseau and Rawls were concerned with the relationship of the individual to the
state. This contrasts with an ‘international contract’, which is a contract not between
individual human beings but between states. We also made a distinction between
a quasi-historical contract, whereby we could imagine that people could have agreed
to create a state, and the hypothetical contract in which the contractors are ‘idealised’
and the ‘contract’ is a thought experiment rather than an imagined historical event.
Interestingly enough, whereas defenders of the historical contract do not claim
that there was actually an agreement to enter the state – they claim simply that it
was imaginable – international legal institutions can plausibly be described as the
product of agreements between the member states of the international community:
agreements to create international institutions. Of course, there is not a single
‘moment’ of agreement, for the ratification of a convention can take place over
decades. Furthermore, there has never been an international agreement to create a
single state; such an agreement would constitute the dissolution of all existing states.
The closest the international community has come to the creation of a single,
multinational global power has been the formation of the United Nations with
the commitment by member states to provide military personnel to enforce
international law.
The problem of enforcement may be thought a serious deficiency of international
law, and one that can only be remedied through the creation of a single state.412 Part 4 Contemporary ideas