Historical Origins of Human Rights

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Historical Origins of Human Rights

• Lecture 18
• The Dog that Did Not Bark
• Human Rights
• in the Early Cold War
• November 10, 2005

2
outline

• older trends
• the early Cold War explaining an absence
• localized European law
• stymied global law
• Cold War dualism
• America and civil rights
• international relations
• conclusions what had to change?

3
some older trends continue

• the civilizing process example of corporal
  punishment, from the death penalty to hitting
  children
  
• technological change rise/transformation of
  medias (television)
  
• concluding argument of course geo-political
  transformation lead to shift in ideological
  plausibility of human rights

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explaining an absence

• Interlocutor Is there any other point to which
  you would wish to draw my attention?
  
• Sherlock Holmes To the curious incident of the
  dog in the night-time.
  
• Interlocutor The dog did nothing in the
  night-time.
  
• Holmes That was the curious incident.

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the Council of Europe

• Hersch Lauterpacht on UDHR The Delegates
  gloried in the profound significance of the
  achievement whereby the nations of the world
  agreed as to what are the obvious and inalienable
  rights of man but they declined to acknowledge
  them as part of the law binding upon the states
  and governments.
• the Brussels treaty (1948) the Western Union
• the Council of Europe emerged a year later, in
  1949, involving the U.K., Ireland, France, Italy,
  Denmark, Norway, Sweden, and the Benelux
  countries.

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European human rights

• Statute of the Council of Europe (1949)
• Western European political unity
• in original intent anticommunist to affirm
  shared values already in force
  
• Article 1 a The aim of the Council of Europe is
  to achieve a greater unity between its members
  for the purpose of safeguarding and realising the
  ideals and principles which are their common
  heritage and facilitating their economic and
  social progress.b This aim shall be pursued
  through the maintenance and further realisation
  of human rights and fundamental freedoms.

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European Convention

• The European Convention on Human Rights and
  Fundamental Freedoms (1950, entry into force
  1953) (current version)
  
• First Protocol to European Convention (1952,
  entry into force 1954)
  
• note restriction of human rights to so-called
  political and civil rights
  
• a convention only at the price of rights over
  which a genuine consensus had achieved more
  cultural plausibility localized where genuine
  consensus existed

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European Court of Human Rights

• origins of Convention idea in deliberations over
  UDHR in the later 1940s
  
• in exchange for narrowing of scope of right and
  geographical coverage, pioneering enforcement
  mechanisms
  
• set-up of court
• right of individual petition (originally via
  Commission, now directly to court)

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significance

• split between Western Europe and the rest of the
  word in particular, the United States, in
  allegiance to supranational norms and
  institutions began then
• but this would become clear only later that it
  might be over this controversial principle that
  Western Europe would strike out in a new
  direction
• Robert Kagan, Of Paradise and Power (2002)
• two ways to interpret 1) abrogation of state
  sovereignty, on the road to more full blown human
  rights culture, with Europe as first foothold of
  eventual global development 2) recognition of
  common European identity, and common (West)
  European values, restricted therefore to Europe

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the end of empire

• continued entanglement of Europe (esp. Britain
  and France) with colonial project
  
• derogations
• human rights for export

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beyond Europe inhibition

• success locally, stymied globally
• the division of the Declaration into two legally
  binding covenants reflected a choice of
  pragmatism
  
• also perhaps an acknowledgment that the United
  States and the Soviet Union had divided not just
  the world but also the set of possible values
  between them, and that before one chose sides in
  the Cold War one had first to rank ones values
• not all were going to be possible at once and
  with the same priority.

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towards human rights

• proliferation of human rights instruments
• International Convention on the Elimination of
  All Forms of Racial Discrimination (1965/1969)
  
• International Covenant on Civil and Political
  Rights (1966/1976)
  
• Optional Protocol 1 (enforcement mechanisms)
  (1966/1976)
  
• Optional Protocol 2 (abolition of death penalty)
  (1989)
  
• Covenant on Social, Economic, and Cultural Rights
  (1966/1976)
  
• Convention on the Elimination of All Forms of
  Discrimination Against Women (CEDAW) (1979/1981)
  
• Convention against Torture (1984/1987)
• Convention on the Rights of the Child (1989/1990)

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significance

• hypothesis if the norms already exist, and the
  project of legalization exists, the problem of
  explanation is no longer intellectual in nature
  some other kind of barrier had to drop for these
  projects to get going

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NGOs

• Save the Children (1919-)
• Eglantyne Jebb (1876-1928)
• OxFam (1946)
• Amnesty International (1961)

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Cold War dualism

• human rights were not up to a dualistic world
• they did not seem relevant in a world in which it
  was necessary to take sides
  
• collective commitment politics requires choice
• both sides struggle now, humanism later

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communism as a humanism?

• Maurice Merleau-Ponty, Humanism and Terror
  (1947)
  
• first argument (rooted in Marxs text) human
  rights are not humanistic enough, because they
  often or always work to advance the interests of
  part rather than all of humanity
• In its own eyes Western humanism appears as the
  love of humanity, but for the rest of men it is
  only the custom and institution of a group of
  men, their password and occasionally their battle
  cry.

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communist humanism, contd

• second argument the humanist rhetoric of the
  liberal side in the Cold War is humanism in
  words, while the violent actions of the communist
  side in the Cold War is humanism in deed
• It is not just a question of knowing what the
  liberals have in mind but what in reality is done
  by the liberal state within and beyond its
  frontiers. A regime that is nominally liberal
  can be oppressive in reality. A regime which
  acknowledges its violence might have in it more
  genuine humanity. To counter Marxism on this with
  ethical arguments is to ignore what Marxism has
  said with most truth and what has made its
  fortune in the world. Any serious discussion of
  communism must therefore post the problem in
  communist terms, that is to say, not on the
  ground of principles but on the ground of human
  relations.
• Within the U.S.S.R. violence and deception have
  official status while humanity is to be found in
  daily life. On the contrary, in the democracies
  the principles are humane but deception and
  violence rule daily life.

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communist humanism, contd

• third argument anyway, both sides in the Cold
  War conflict suspend the moralism that humanity
  demands now because they recognize that the
  institutionalization of their rival moralities in
  the future requires the suspension of these same
  moralities in the present
• put otherwise, humanism later requires terror now
  (recall Robespierres politics of pity) or
  breaking eggs to make an omelette
  
• If the reply is that their forces ie, Western
  forces are defending humanism, this implies a
  renunciation of absolute morality and entitles
  the Communists to say that their forces are
  defending an economic system which will put an
  end to mans exploitation of man. It is from the
  conservative West that communism received the
  notion of history and learned to relativize moral
  judgment.

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a world divided

• in light of whats now known about communist
  crime, such arguments are now seen as abhorrent,
  outrageous apologies for Soviet crime
  
• but why were they so popular in the colonies, so
  that campaigns of national liberation so often
  expressed themselves in theories that were less
  universalistic than human rights (nationalism) or
  more universalistic (communism)?
• why did so many people (especially
  opinion-makers) in the First World also adopt
  such arguments?
  
• hypothesis it was only when the Cold War came to
  be seen, by large numbers of people, as
  unwinnable that human rights could become a
  popular moral lexicon until then, the need to
  take sides trumped them

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America

• the American side did not (yet) advance its cause
  in terms of human rights
  
• Dwight Eisenhower and John Foster Dulles
• Dulles on human rights

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the Senate

• the Senate
• the UDHR as pink paper
• The Internationalists in this country and
  elsewhere really proposed to use the United
  Nations and the treaty process as a law-making
  process to change the domestic laws and even the
  Government of the United States and to establish
  a World Government along socialistic lines
  (Frank Holman).
• the Genocide Convention as false mask for other
  international purposes.
  
• the Bricker Amendment (1951 etc.)
• debating the Genocide Convention in the Cold War
  years
  
• --promoting world government, hence Soviet
  dominance
  
• --pre-empting American control of civil rights
  movement
  
• I leave to your imagination as to what would
  happen in the field of administration or
  municipal law if subversive elements should teach
  minorities that the field of civil rights and law
  had been removed to the field of international
  law.
• It is impossible not to recognize the heavy
  imprint of Eastern philosophy in the draft
  Covenant of Economic, Social, and Cultural
  Rights. As a matter of fact, Part III is nothing
  else but the perfect embodiment of the
  unadulterated welfare state and unmitigated
  socialism.

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American civil rights

• W.E.B. DuBois, NAACP
• Appeal to the World (1947)
• U.N. Commission on Human Rights
• Eleanor Roosevelt
• Soviet capture of international scene
• civil rights against human rights?

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civil rights, contd

• U.S. government officials realized that their
  ability to promote democracy among people of
  color around the world was seriously hampered by
  continuing racial injustice at home. In this
  context, efforts to promote civil rights within
  the United States were consistent with and
  important to the more central U.S. mission of
  fighting world communism. The need to address
  international criticism gave the federal
  government an incentive to promote social change
  at home. Yet the Cold War would frame and thereby
  limit the nations civil rights commitment. The
  primacy of anticommunism in postwar American
  politics and culture left a very narrow space for
  criticism of the status quo. By silencing certain
  voices and by promoting a particular vision of
  racial justice, the Cold War led to a narrowing
  of acceptable civil rights discourse. The narrow
  boundaries of Cold War-era civil rights politics
  kept discussions of broad-based social change, or
  a linking of race and class, off the agenda. In
  addition, to the extent that the nations
  commitment to social justice was motivated by a
  need to respond to foreign critics, civil rights
  reforms that made the nation look good might be
  sufficient. (Mary L. Dudziak, Cold War Civil
  Rights).

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Brown v. Board of Ed. (1954)

• communist charge of racism
• It is in the context of the present world
  struggle between freedom and tyranny that the
  problem of race discrimination must be viewed
  (Brown v. Board of Education brief).

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international laws fortunes

• dreamy idealism
• mastering power by law
• international law as the vehicle of a restrained,
  orderly, progressive, liberal idealism
  
• normativism against power politics
• long-term critique such idealism underestimates
  how conflict-ridden the world is, and the
  impossibility of a moral politics ever to arise
  except in appearance or on the books (never in
  the actual operation of the world)

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Carl Schmitt

• Of course, everyone is for law, morality,
  ethics, and peace no-one will want to commit
  injustice but in concreto the relevant question
  is always who shall decide what in this case is
  law, what counts as peace, what is a threat or
  disturbance of peace, with what means it shall be
  restored, when a situation has become normal or
  peaceful and so on.
• When a state fights its political enemy in the
  name of humanity, it is not a war for the sake of
  humanity, but a war wherein a particular state
  seeks to usurp a universal concept against its
  military opponent.
• To confiscate the word humanity, to invoke and
  monopolize such a term probably has certain
  incalculable effects, such as denying the enemy
  the quality of being human and declaring him to
  be an outlaw of humanity and war can thereby be
  driven to the most extreme inhumanity.

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Hans Morgenthau (1904-80)

• Morgenthau, In Defense of the National Interest
  (1951)
  
• The appeal to moral principles in the
  international sphere has no concrete universal
  meaning. It is either so vague as to have no
  concrete meaning that could provide rational
  guidance for political action, or it will be
  nothing but a reflection of the moral
  preconceptions of a particular national and will
  by the same token be unable to gain the universal
  recognition it pretends to deserve.
• what the moral law demands is by a felicitous
  coincidence always identical with what the
  national interest seems to require.
  
• The real relationship between international law
  and the actual behavior of states has been that
  between utopian ideology and reality. (John
  Herz).
• the displacement of international law by
  international relations

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conclusion

• what starts the dominoes falling?