HOHR18

Historical Origins of Human Rights: 

Historical Origins of Human Rights Lecture 18 The Dog that Did Not Bark: Human Rights in the Early Cold War November 10, 2005

outline: 

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?

some older trends continue: 

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

explaining an absence: 

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.”

the Council of Europe: 

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.

European human rights: 

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.

European Convention: 

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

European Court of Human Rights: 

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)

significance: 

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

the end of empire: 

the end of empire continued entanglement of Europe (esp. Britain and France) with colonial project derogations “human rights for export”

beyond Europe: inhibition: 

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 one’s values not all were going to be possible at once and with the same priority.

towards human rights: 

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)

significance: 

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

NGOs: 

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

Cold War dualism: 

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

communism as a humanism?: 

communism as a humanism? Maurice Merleau-Ponty, Humanism and Terror (1947) first argument (rooted in Marx’s 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.”

communist humanism, cont’d: 

communist humanism, cont’d 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.”

communist humanism, cont’d: 

communist humanism, cont’d 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 Robespierre’s 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 man’s exploitation of man. It is from the conservative West that communism received the notion of history and learned to relativize moral judgment.”

a world divided: 

a world divided in light of what’s 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

America: 

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

the Senate: 

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.”

American civil rights: 

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?

civil rights, cont’d: 

civil rights, cont’d “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 nation’s 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 nation’s 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).

Brown v. Board of Ed. (1954): 

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).

international law’s fortunes: 

international law’s 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)

Carl Schmitt: 

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.”

Hans Morgenthau (1904-80): 

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

conclusion: 

conclusion what starts the dominoes falling?