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Were human rights a product of the 1940s or the 1970s?
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Introduction

In the Last Utopia, Samuel Moyn attempts historical revisionism of human rights by rejecting the conventional wisdom that human rights surfaced as a reaction to the horrors of World War II, instead insisting that the movement didn’t “truly” emerge until the 1970s or around Carter’s presidency.[1] He contests that the institutionalization of international human rights law in the 1940s was just a superficial act and it wasn’t until 1970s that a “genuine social movement around human rights [made] an experience”.[2] He continuously argues for the conceptual shifts in the understandings of human rights from 1940s till 1970s, by claiming that human rights aren't citizenship rights; they do not constitute the right to self determination and most importantly, human rights weren’t a response to the moralistic consciousness raised post Holocaust in the postwar era.[3] Given these strong influential assertions, I attempt to argue that Human Rights did in fact originate and were a product of the 1940s by using the parameters presented by Moyn in his discourse.

As Anderson notes, “Moyn wavers dramatically in his suggestions of what indicators would theoretically demonstrate the existence or emergence of human rights in a pre-1970s world.”[4] But there are three fundamental concepts which he applies while setting the benchmark for determining a viable human rights movement. For the purpose of this paper, we refer to the three principles as the three step test.[5] The first test, discusses the necessity of judicial enforcement of human rights, which he talks about(p 26, 79). The second test, discusses the widespread circulation of human rights rhetoric which symbolizes a potent movement (p 122). Finally, the last test is the universality test, i.e., determining the universal acceptance of international human rights law (p 79,129). Using these three tests, I will argue that Human Rights in fact were a product of 1940s and also highlight that if the absolute metric of these tests were to be used, Moyn would fail on his own claim of human rights originating in 1970s. Before I engage in this discourse, it is important for the reader to note the subtle difference between origin of a concept and the rapid development of the concept. By no means, does this paper contest the importance of 1970s in developing human rights, rather it merely questions the blanket premise of discrediting any contribution of 1940s. (This paper primarily focuses on the first test, since Judicial Enforcement on an international level is the reflections within the societal structure)
 

The First Test: Judicial Enforcement

In order to determine whether there was judicial enforcement of human rights during 1940s or post the codification of International Human Rights Law in documents like Universal Declaration of Human Rights, it first becomes important to understand the definition of Human Rights and then judge whether conceptually the characteristics within the definition were met during the time frame.

For the purpose of this paper, I resort to Moyn’s description of human rights: “When people hear the phrase ‘human rights,’ they think of the highest moral precepts and political ideals . . . . The phrase implies an agenda for improving the world, and bringing about a new one in which the dignity of each individual will enjoy secure international protection . . . . It promises to penetrate the impregnability of state borders, slowly replacing them with the authority of international law”.[6] An important part of this definition, is the focus on the word “individual”. Moyn throughout his paper, keeps highlighting the shift from communitarian rights to individual rights, due to the escalation of human rights in the 1970s. It is using this metric that he discredits the ideas of self-determination coming under human rights. He keeps arguing the necessity of focusing on the individual and away from the Sovereign, for human rights to exist. So it becomes to important to analyze whether there was a shift towards a more individual based justice while protecting human rights during 1940s.

Gerry Simpson on this front notes, that “the emergence of human rights as a field is directly linked to Nuremberg’s personalisation of international law through international criminal law.”[7] The Tribunal’s declaration that the barbarities of the Holocaust were committed “not by abstract entities but by men” becomes a revolutionary shift towards individual guilt and away from sovereignty in the international arena.[8] Simpson further explains, “punishing individuals through criminal sanction is important . . . because it links international law explicitly to international human rights law and anticipates the future enforceability of these norms . . . and because it contributes further to the recession of sovereignty.”[9] So then holding an individual responsible under International Criminal Law becomes a positive change towards enforcing International Human Rights Law.

This accountability under International Criminal Law can be seen explicitly by analyzing Principle IV of the Nuremberg principles which were recently highlighted by the International Law Commission. The Principle says, “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him”.[10] This principle shifts away from concepts of the Medina Standard, Command Responsibility or Superior Orders and instead begins to focus on the criminal liability of the individual himself from a moral stand point and hence as noted above, becomes a positive move towards enhancing International Human Rights Law.

This idea of individual prosecution becoming prominent majorly during Nuremberg Trials can be seen using Bass’s work Stay the Hand of Vengeance: The Politics of War Crime Tribunals; he argues, that the British wanted to try Napoleon in 1815 and there were attempts to try Kaiser Wilhelm in 1919 for war crimes. But Napoleon was shipped to Elba and the Dutch wouldn't extradite Kaiser, so both these cases make the point about the weakness of humanitarian and human rights law before 1940s. On the contrary, Nuremberg marked the first historical and successful war crimes trial.[11] Therefore, this gradual shift in focus on Human Rights being landmarked during Nuremberg Trials, proves the importance of development of Human Rights in the 1940s.

Moyn attempts to trivialize the contributions of the Nuremberg Trials, by claiming that Nuremberg was an extremely localized court and hence the judgements don’t contribute towards the development of Human Rights. There are two fundamental issues with this assertion.

The first contention being, that on Moyn's own metric, if universality of jurisdiction becomes a parameter of determining the validity in raising moral consciousness for Human Rights, then the 1990s should be the decade which can be attributed for promoting Human Rights as opposed to the 1970s as Moyn claims. Even in the 1970s, there were no emerging institutions which could call upon universal jurisdiction over most countries, rather it was in the 1990s that with the critical assistance of 135 NGOs (which play a huge rule in ‘activism), that the International Criminal Court came about.[12] Not to mention, that it was only under this decade that Tribunals such as International Criminal Tribunal for Yugoslavia and International Criminal Tribunal for Rwanda were set up by the international community. Hence by his metric, 1990s as a decade should be considered as the absolute pioneer of developing Human Rights.

Given that Moyn still recognizes the 1970s as an important decade, he implicitly recognises the importance of judicial contribution towards development of universality for human rights, rather than a binary understanding of universal jurisdiction itself. Consequently, it then becomes important to look at the significance of judicial rulings for developing customary international laws, especially the one’s which resonate with International Human Rights Law. Traditionally, it has been identified that Customary International Law is developed using Opinio Juris and State Practice majorly. Under Opinio Juris, it can be seen that most of the Nuremberg Principles have been used by the international community. For example, the idea of Individual Criminal Responsibility which was developed under Principle IV, can now be seen under various cases such as the Tadic Case of International Criminal Tribunal for Former Yugoslavia. Apart from this, the reflection of Nuremberg Principles including the ideas of preventing Crimes against Humanity and War Crimes, can be seen under both Rome Statute and Geneva Conventions (GCs have been recognized as Customary International Humanitarian Law). Not to mention, that various international lawyers, such as Malcom Shaw, consider some Nuremberg Principles to be a part of Customary International Law and hence an important part of International Humanitarian Law and International Human Rights Law. Thus, due to these major contributions, retrospectively, Nuremberg Trials become an important avenue for the development of Human Rights.

The second issue arises, when Moyn accepts the importance of localized courts such as European Court of Human Rights when he says, “newly prominent European Court in Strasbourg symbolizes the great strides a rhetoric of human dignity and rights made at every level of the continent’s affairs”, while questioning the same court in the context of 1950s by claiming “Geographical localization of human rights proved an alternative to their global universalization, not a step toward it.”.[13] So this convenient transition with regards to the importance of courts which act as a precedent within the different time frames, becomes a problematic issue.

Hence using the arguments presented above, it becomes evident that the 1940s did contribute towards the growing consciousness for valuing human rights by the virtue of the judicial executions and contributions seen through the decade. Even though Judicial Execution can itself become a testament to the claim that Human Rights were core to the 1940s, but for the sake of this discourse, let us analyse whether the second and third tests are also fulfilled within the above mentioned time frame.

Second and Third Test: Human Rights Activism and Universality

Moyn argues, that it was only during 1970s that any form of ‘true’ human rights activism came forward with the growing role of organizations like Amnesty International. This idea of human rights consciousness growing only post Carter’s speech which led to an increase in discourse, then becomes his metric of contesting the claim that Human Rights Originated during 1940s, since there were no ‘active’ participants in promoting them.

The fundamental issue with Moyn’s contention is with his treatment of Human Rights Activism in the 1940s. Even though it can be argued that there weren’t any aggressive Human Rights Activism in the 1940’s unlike the 1970s, but that still doesn't ridicule the contributions of 1940s as a decade, since this decade was responsible was institutionalizing the notions of Human Rights in itself. So unless, there is a fixed parameter of judging the way activism works (which there isn’t), then various international lawyers working on institutionalizing documents such as UN Charter, Universal Declaration of Human Rights, Genocide Convention, The 4 Geneva Conventions of 1949 and creation of organizations such as UNHCR, do act as a testament for growing activism for  human rights.

Samantha Power, provides the first glimpse of Raphael Lemkin's career in the 1940s.[14] Lemkin being the Polish Jew who coined the term "genocide" in 1944, drafted the UN Convention on Genocide two years later, and devoted enormous energy in the next decade to keeping the world focused on the subject. [15] Normand and Zaidi in Human Rights at the UN note, that US government supported powerful domestic organizations such as American Jewish Committee, which were willing to promote the concept of human rights. These organizations won public approval of the United Nations and the human rights concept.[16] Simultaneously, Mary Ann Glendon, accounts for the major contributions of Eleanor Roosevelt while drafting the Universal Declaration of Human Rights.[17]  Cmiel notes, that these accounts draw the first substantive portrait of human rights activism during the 1940s.[18] These accounts prove that various international lawyers were engaging in human rights discourse throughout the 1940’s and hence simultaneously were becoming a part of the growing activism. So even if, there were no ‘exponentially impacting’ human rights movements during 1940’s, but the growing discourse and active role being played by both international lawyers and elites can be seen as enough evidence to attribute at least the origin of Human Rights to the 1940s.

The final test, that can be seen as the benchmark for determining the validity of the claim, is the test of universality. For this test, I will not argue that there was universality in the 1940s for all existing Human Rights Documents, since such a blanket premise will be difficult to prove. Instead, I will argue that absolute universality shouldn't be seen as a reasonable metric, rather contribution towards universality should be recognised for establishing the decade to which the origins of human rights can be attribute towards. The reason for ignoring absolute universality as a metric is that even on Moyn’s own terms, international human rights documents such as International Covenant on Civil and Political Rights (which was implemented in 1970s), were still not ratified by a lot of countries until the 1980s. Hence, the contribution leading up to the growing consciousness of human rights needs to be recognized as well. If the contribution is recognised as an important metric, then it can be argued that 1940s laid down the foundations of Human Rights which led to the growth in universality during the 1970s.

Conclusion

As Anderson says, “In the end, “The Last Utopia’s” largest flaw is perhaps the scale of its ambition. If Moyn had staked out the more modest claim that the 1970s remain underrated by conventional human rights historians, the book may have achieved far greater purchase.” So buying Moyn’s assertion that 1940’s didn't have anything to do with the rise of human rights becomes a slippery slope. Through the course of this paper, I have argued that three benchmarks that Moyn lays down: Judicial Enforcement, Human Rights Activism and Universality, were all seen throughout the 1940s. This is not to contest that 1970s didn't play an important role in the growth of Human Rights as a concept throughout the world, but rather argue that the origin of Human Rights discourse can be attributed to the significant decade of 1940s.

Jibraan Mansoor is currently a sophomore at Ashoka University majoring in Political Science, Philosophy, Economics and minoring in International Relations. He has participated in various Model UN Conferences and won 18 Best Delegates in both international and national MUNs. Mr. Mansoor’s first paper was published in the Supreme Court based journal of India, Practical Lawyer. He was also the Head Boy of the student council in his high school and mentored teams for various debating and MUN based competitions. 

 


[1] Human Rights Reckoning, Caroline Anderson, Harvard Journal of International Law, Volume 53, Number 2, Summer 2012
Also, The Last Utopia: Human Rights in History. By Samuel Moyn. Cambridge, Mass.: The Belknap Press of Harvard University Press. 2010. Pp. 227.

[2] The Last Utopia: Human Rights in History. By Samuel Moyn. Cambridge, Mass.: The Belknap Press of Harvard University Press. 2010., p 7

[3] Human Rights Reckoning, Caroline Anderson, Harvard Journal of International Law, Volume 53, Number 2, Summer 2012

[4] id

[5] These tests haven’t been mentioned explicitly, but can implicitly be seen throughout by reading his book

[6] The Last Utopia: Human Rights in History. By Samuel Moyn. Cambridge, Mass.: The Belknap Press of Harvard University Press. 2010. p1

[7] Gerry Simpson, Law, War & Crime: War Crimes, Trials, and the Reinvention of Inter- national Law 57 (1st ed. 2007). Simpson further explains that “[t]he move from thinking of interna- tional law in terms of ‘abstract entities’ to conceiving of it as a legal order about individual human beings is invigorated at Nuremberg, and transforms the soul of international law.”

[8] Human Rights Reckoning, Caroline Anderson, Harvard Journal of International Law, Volume 53, Number 2, Summer 2012

[9] Gerry Simpson, Law, War & Crime: War Crimes, Trials, and the Reinvention of Inter- national Law 57 (1st ed. 2007).

[10] Nuremberg Principles, International Law Commission

[11] Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton, N.J., 2000);

[12] Human Rights Reckoning, Caroline Anderson, Harvard Journal of International Law, Volume 53, Number 2, Summer 2012

[13] The Last Utopia: Human Rights in History. By Samuel Moyn. Cambridge, Mass.: The Belknap Press of Harvard University Press. 2010. (p 191 and 218)

[14] Samantha Powers, Problem from Hell: America in the Age of Genocide

[15] Review Essay, The Recent History of Human Rights, Kennith Cmiel
URL: https://clas.uiowa.edu/sites/clas.uiowa.edu.history/files/'Recent%20History%20of%20Human%20Rights'%20AHR%20Feb04.pdf

[16] Normand and Zaidi, Human Rights at the UN (2008), p. 116.

[17] Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York, 2001), 9-10;

[18] Review Essay, The Recent History of Human Rights, Kennith Cmiel

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