I need a blog entry on the topic of Genealogies of Human Rights. This is no more than 1 page, and is supposed to be a summary and response to the extract provided in the link below. this piece is due

Stefan-Ludwig Hoffmann is Resea rch Di rec tor at the C enter for Resea rch in Contemporary History, Potsdam, Germany, and has been a visiting scholar at the University of California, Berkeley, and Stanford University.

He is the author of the prizewinning The Politics of Sociability:

Freemasonry and German Civil Society 1840 –1918 (2 0 0 7). Cu r rent ly, he is preparing a short history of human rights and a book on Berlin in the wake of the Second World War. 0003 0003 Human Rights in History Edited by Stefan-Ludwig Hoffmann , Zentrum für Zeithistorische Forschung Samuel Moyn, Columbia University This series showcases new scholarship exploring the backgrounds of human rights today. With an open-ended chronology and international perspective, the series seeks works attentive to the surprises and contingencies in the his- torical origins and legacies of human rights ideals and interventions. Books in the series will focus not only on the intellectual antecedents and foundations of human rights, but also on the incorporation of the concept by movements, nation-states, international governance, and transnational law. 0003 0003 Human Rights in the Twentieth Century Stefan-Ludwig Hoffmann Edited by 0003 ca\bbri\fge university press Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo, Delhi, Dubai, Tokyo, Mexico City Cambridge University Press 32 Avenue of the Americas, New York, ny 10013-2473, usa www.cambridge.org Information on this title: www.cambridge.org/9780521142571 © Cambridge University Press 2011 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2011 Printed in the United States of America A catalog record for this publication is available from the British Library. Library of Congress Cataloging in Publication data Human rights in the twentieth century / [edited by] Stefan-Ludwig Hoffma\gnn.

p. cm.

isbn 978-0-521-19426-6 \g(hardback) – isbn 978-0-521-14\g257-1 (pbk.) 1. Human rights. 2. Human rights – Cross-cultural studies. I. Hoffmann, Stefan-Ludwig. jc571.h76962 2010 323.09 ′04–dc22 2010031355 isbn 978-0-521-19426-6 Hardback isbn 978-0-521-14257-1 Paperback Cambridge University Press has no responsibility for the persistence or \g accuracy of urls for external or third-party Internet Web sites referred to in this publication and does not guarantee that any content on such Web sites is, or will remain, accurate or appropriate. 0003 vii Contents Notes on Contributors page ix Acknowledgments xiii Introduction: Genealogies of Human Rights 1 Stefan-Ludwig Hoffmann Part I the e\bergence of hu\ban rights regi\bes 1 The End of Civilization and the Rise of Human Rights:

The Mid-Twentieth-Century Disjuncture 29 Mark Mazower 2 The “Human Rights Revolution” at Work: Displaced Persons in Postwar Europe 45 G. Daniel Cohen 3 ‘Legal Diplomacy’ – Law, Politics and the Genesis of Postwar European Human Rights 62 Mikael Rask Madsen Pa rt I I post war universalis\b an\f legal theory 4 Personalism, Community, and the Origins of Human Rights 85 Samuel Moyn 5 René Cassin: Les droits de l’homme and the Universality of Human Rights, 1945–1966 107 Glenda Sluga 6 Rudolf Laun and the Human Rights of Germans in Occupied and Early West Germany 125 Lora Wildenthal 0003 viii Contents Part III hu\ban rights, state socialis\b, an\f \fissent 7 Embracing and Contesting: The Soviet Union and the Universal Declaration of Human Rights, 1948–1958 147 Jennifer Amos 8 Soviet Rights-Talk in the Post-Stalin Era 166 Benjamin Nathans 9 Charter 77 and the Roma: Human Rights and Dissent in Socialist Czechoslovakia 191 Celia Donert Pa rt I V genoci\fe, hu\banitarianis\b, an\f the li\bits of law 10 Toward World Law? Human Rights and the Failure of the Legalist Paradigm of War 215 Devin O. Pendas 11 “Source of Embarrassment”: Human Rights, State of Emergency, and the Wars of Decolonization 237 Fabian Klose 12 The United Nations, Humanitarianism, and Human Rights:

War Crimes/Genocide Trials for Pakistani Soldiers in Bangladesh, 1971–1974 258 A. Dirk Moses Part V hu\ban rights, sovereignty, an\f the global con\fition 13 African Nationalists and Human Rights, 1940s–1970s 283 Andreas Eckert 14 The International Labour Organization and the Globalization of Human Rights, 1944–1970 301 Daniel Roger Maul 15 “Under a Magnifying Glass”: The International Human Rights Campaign against Chile in the Seventies 321 Jan Eckel Index 343 0003 ix Notes on Contributors Jennifer Amos , PhD Candidate History, University of Chicago. She is preparing a dissertation on Soviet conceptions of human rights. G. Daniel Cohen , Associate Professor in the Department of History, Rice U n i v e r s i t y, H o u s t o n . H e i s t h e a u t h o r o f Europe’s Displaced Persons: Refugees in the Postwar Order (O x f o r d , f o r t h c o m i n g ) a n d o f s e v e r a l a r t i c l e s o n r e f u g e e s and human rights after World War II. Celia Donert , Post-doc at the Zentrum für Zeithistorische Forschung Potsdam.

She is currently working on the Gerda Henkel Stiftung–funded research project The Human Rights of Women in Postwar Europe and revising her dissertation for publication as The Rights of the Roma: Citizens of Gypsy Origin in Socialist Czechoslovakia . Jan Eckel , Assistant Professor in the Department of History, Albert-Ludwigs- Universität Freiburg. Major publications include Hans Rothfels. Eine intellektuelle Biographie im 20. Jahrhundert (Göt tingen, 2005); Geist der Zeit: Deutsche Geisteswissenschaften seit 1870 (Göt tingen, 2008); “Utopie der Moral, Kalkül der Macht. Menschenrechte in der globalen Politik seit 1945,” Archiv für Sozialgeschichte 49 (2009), 437–84; and (as co-editor) Neue Zugänge zur Geschichte der Geschichtswissenschaft (Göt tingen, 2007). He is currently preparing a book on the history of international human rights politics, 1945–1995. Andreas Eckert , Professor of African History, Humboldt-Universität zu Berlin, and Director of the Internationales Geisteswissenschaftliches Kolleg (IGK) “Work and Human Lifecycle in Global History.” Major publications include Grundbesitz, Landkon\b ikte und kolonialer Wandel. Douala 1880 – 1960 (Stuttgart, 1999); Herrschen und Verwalten. Afrikanische Bürokraten, staatliche Ordnung und Politik in Tansania, 1920 –1970 (Munich, 2007); and (as co-editor) Globalgeschichte. Theorien, Themen, Ansätze (Frankfurt, 2007); Vom Imperialismus zum Empire – Nicht-westliche Perspektiven auf 0003 Notes on Contributors x die Globalisierung (Frankfurt, 2008); and Journal of African History (si nce 2005). Currently he is preparing a history of Africa since 1850. Stefan-Ludwig Hoffmann , Research Director at the Zentrum für Zeithis- torische Forschung Potsdam. Major publications include Civil Society, 1750 –1914 (Basingstoke and New York, 2006); The Politics of Sociability:

Freemasonry and German Civil Society, 1840 –1918 (Ann Arbor, 2007); Geschichte der Menschenrechte (Munich, forthcoming); and (as co-editor) Demokratie im Schatten der Gewalt: Geschichten des Privaten im deutschen Nachkrieg (Göttingen, 2010). He is currently completing a book on Berlin under Allied occupation. Fabia n Klose , Lecturer in the Department of History, Ludwig-Maximilians- Universität Munich. His dissertation has been published as Menschenrechte im Schatten kolonialer Gewalt. Die Dekolonisierungskriege in Kenia und Algerien 1945–1962 (Munich, 2009). He is currently working on a history of humanitarian interventions in the nineteenth century. Mikael Rask Madsen , Professor of European Law and Integration and Director of the Centre for Studies in Legal Culture (CRS), Faculty of Law, University of Copenhagen. Major publications include L a g e n è s e d e l ’ E u r o p e des droits de l’homme: Enjeux juridiques et stratégies d’Etat (1945–1970 ) (Strasbourg, forthcoming) and (as co-editor) Paradoxes of European L egal Integration (London, 2008). He is currently completing a large research project on the rise and transformation of human rights in Europe since World Wa r I I . Daniel Roger Maul , Researcher in the Department of History, Justus-Liebig- Universität Gießen. Major publications include Menschenrechte, Entwicklung und Dekolonisation – Die Internationale Arbeitsorganisation (IAO) 1940 –1970 (Essen, 2007; in trans. London, 2011). He is currently working on a history of international relief in the twentieth century. Mark Mazower is Professor of History and Program Director of the Center for International History at Columbia University, New York. Major publications include Greece and the Inter-War Economic Crisis (Oxford, 1991); Inside Hitler’s Greece: The Experience of Occupation, 1941–1944 (New Haven, 1993); Dark Continent: Europe’s Twentieth Century (New York, 1998); Salonica, City of Ghosts: Christians, Muslims and Jews, 1430 –1950 (New Yo r k , 2 0 0 4) ; Hitler’s Empire: Nazi Rule in Occupied Europe (London, 2008); No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations (Princeton, 2009); and (as editor) The Policing of Politic s in Historical Perspective (London, 1997); After the War Was Over: Reconstructing the State, Family and the Law in Greece, 1943–1960 (Princeton, 2000); and N e t w o r k s o f P o w e r i n M o d e r n G r e e c e ( L o n d o n , 2 0 0 8) . H e i s c u r r e n t l y w o r k i n g on a history of ideas and institutions of international governance since 1815. 0003 Notes on Contributors xi A. Dirk Moses , Associate Professor in the Department of History, University of Sydney, and Professor of Global and Colonial History at the European University Institute, Florence. Major publications include German Intellectuals and the Nazi Past (New York, 2007); and (as editor) Genocide and Settler Society: Frontier Violence and Stolen Aboriginal Children in Australian History (New York, 2 0 04); Colonialism and Genocide (London, 2007, with Dan Stone); Empire, Colony, Genocide: Conquest, Occupation and Subaltern Resistance in World History (New York, 2008); and The Oxford Handbook of Genocide (Oxford, 2010, with Donald Bloxham).

He is preparing two books, Genocide and the Terror of History and The Diplomacy of Genocide . Samuel Moyn , Professor of History at Columbia University, New York. Major publications include Origins of the Other: Emmanuel Levinas between Revelation and Ethics (Ithaca, 2005); A Holocaust Controversy: The Trebl- inka Affair in Postwar France (Waltham, Mass., 2005); The Last Utopia:

Human Rights in History (Cambridge, Mass., 2010); and (as ed. with intro.) Pierre Rosanvallon, Democracy Past and Future (New York, 2006). He is currently in the process of writing a book, A New Theory of Politics: Claude Lefort and Company in Contemporary France . Benjamin Nathans , Ronald S. Lauder Endowed Term Associate Professor of History, University of Pennsylvania. Major publications include Beyond the Pale: The Jewish Encounter with Late Imperial Russia (Berkeley, 2002); and (as co-editor) Culture Front: Representing Jews in Eastern Europe (Philadelphia, 2008). He is currently preparing a book on human rights, legal thought, and dissent in the Soviet Union after Stalin, under contract with Princeton University Press. Devin O. Pendas , Associate Professor of History, Boston College. Major publications include The Frankfurt Auschwitz Trial, 1963–1965: Genocide, History and the Limits of the Law (Cambridge, 2006). He is currently preparing a book on Law and Democracy: Transitional Justice in German Courts, 1945–1955 (under contract with Cambridge University Press). Glenda Sluga , Professor of International History, Department of History, University of Sydney. Major publications include The Problem of Trieste and the Italo-Yugoslav Border: Difference, Identity and Sovereignty in Twentieth- Century Europe (Albany, 2001); The Nation, Psychology, and International Politic s , 1870 –1919 (Basingstoke, Palgrave Transnational History series, 2006); and (as co-author), Gendering European History (Leicester, 2000). She is currently working on two Australian Research Council–funded projects: a study of the twentieth century as the great age of internationalism, and a book and Web site on women, nationalism, and cosmopolitanism at the Congress of Vienna. 0003 Notes on Contributors xii Lora Wildenthal , Associate Professor of History, Rice University, Houston.

Major publications include German Women for Empire, 1884–1945 (Durham, 2001) and (as co-editor) Germany’s Colonial Pasts (Lincoln, Neb., 2005).

Currently she is preparing a study on the politics of human rights activism in We s t G er m a ny. 0003 xiii Acknowledgments The essays in this volume were initially presented at a conference held in Berlin in June 2008 entitled “Human Rights in the Twentieth Century: Concepts and Confl icts.” I had discussed the idea for such a conference two years ear- lier with Mark Mazower in Cambridge, Mass., and with Dieter Gosewinkel in Berlin, while I spent a research year away from teaching, thanks to a generous grant by the Fritz Thyssen Foundation. The conference and then this volume were made possible by the fi nancial support from the Fritz Thyssen Foundation, the Social Sciences Research Center Berlin, and the Center for Research in Contemporary History Potsdam. The Potsdam Center also pro- vided logistical support and, more generally, a research environment condu- cive to the project. I would also like to express my appreciation to Eric Crahan at Cambridge University Press for taking on this volume and for working so assiduously to see to its timely publication. Finally, I thank Tom Lampert for helping me with the translation, and Małgorzata Mazurek, Celia Donert, Willibald Steinmetz, Kathleen Canning, and Samuel Moyn for a careful reading of the introduction.

0003 0003 1 Introduction Genealogies of Human Rights Stefan-Ludwig Hoffmann How can we adjudge to summary and shameful death a fellow creature inno- cent before God, and whom we feel to be so? – Does that state it aright? You sign sad assent. Well, I too feel that, the full force of that. It is Nature. But do these buttons that we wear attest that our allegiance is to Nature? No, to the King. Though the ocean, which is inviolate Nature primeval, though this be the element where we move and have our being as sailors, yet as the King’s of \f cers lies our duty in a sphere correspondingly natural? So little is that true, that in receiving our commissions we in the most important regards ceased to be nat- ural free agents. Herman Melville , Billy Budd Who would not agree today with Hannah A r e n d t ’s f a m o u s d i c t u m t h a t t h e r e i s and always has been an inalienable “right to have rights” as part of the human condition? Human rights are the doxa of our time, belonging among those convictions of our society that are tacitly presumed to be self-evident truths and that defi ne the space of the conceivable and utterable. Anyone who voices doubt about human rights apparently moves beyond the accepted bounds of universal morality in a time of humanitarian and military interventions. The only issue still contested today is how human rights might be implemented on a global scale and how to reconcile, for example, sovereignty and human rights. Whether human rights in themselves represent a meaningful legal or moral category for political action in the fi rst place appears to be beyond question. The contributions to this volume seek to explain how human rights attained this self-evidence during the political crises and confl icts of the twen- tieth century. Implicit in this objective is the hypothesis that concepts of human rights changed in fundamental ways between the eighteenth and twentieth centu- ries. Like all legal norms, human rights are historical. Initially formulated in the revolutions of the late eighteenth century, they almost disappeared from political and legal discourse in the nineteenth century, while other concepts such as “civilization ,” “nation,” “race,” and “class” gained dominance. Only 0003 Stefan-Ludwig Hoffmann 2 in the second half of the twentieth century did human rights develop into a political and legal vocabulary for confronting abuses of disciplinary state power (of “governmentality” in the Foucauldian sense) 1 – a claim foreign to revolutionaries of the eighteenth century, who believed that the nation-state would guarantee civil and human rights and who simply assumed that those parts of the world not yet organized as nation-states were extra-legal territo- ries. One of the paradoxical results of the catastrophic experiences of the two world wars and the subsequent wars of decolonization was that the notions of global unity and the equality of rights became objects of international politics.

Our argument is that human rights achieved the status of doxa once they had provided a language for political claim making and counter-claims – liberal- democratic, but also socialist and postcolonial. It was not until the last two decades of the twentieth century that human rights developed into the “lin- gua franca of global moral thought.” 2 Only at this time were they invoked to legitimate humanitarian and military interventions , thereby serving as a hege- monic technique of international politics that presented particular interests as universal. 3 “Contemporary history begins,” as British historian Geoffrey Barraclough has famously stated, “when the problems which are actual in the world today fi rst take visible shape; it begins with the changes which enable, or rather compel, us to say we have moved into a new era.” 4 As a legal norm and moral-political doxa , human rights – conceived as inalienable rights accorded to every human being – are a fundamentally new phenomenon indicative of the beginning of a new era, indeed, so recent that historians have only just begun to write their history. The authoritative studies on human rights in international law and politics have not been written by historians. 5 A rapidly expanding literature on human rights has emerged (in the West) since the 1990s, particularly in the disciplines of political science, philosophy, and law.

Although scholars from these disciplines do occasionally argue historically, 1 Michel Foucault, “Face aux gouvernements, les droits de l’homme [1984],” In Dits et écrits , vol. 4: 1980 –1988 (Paris, 1994), 707–708. 2 Michael Ignatieff, Human Rights as Politics and Idolatry (Princeton, 2001), 53. 3 Martti Koskenniemi, “International Law and Hegemony. A Reconfi guration,” Cambridge Review of International Affairs , 17:2 (2004), 197–218; Tony Evans, The Politics of Human Rights. A Global Perspective (London, 2005). 4 Geoffrey Barraclough, An Introduction to Contemporary History (London, 1964), 12. 5 A. W. Brian Simpson, Human Rights and the End of Empire: Britain and the Genesis of the European Convention ( O x f o r d , 2 0 01) ; M a r t t i K o s k e n n i e m i , The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870 –1960 (Cambridge, 2002); Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge, 2005); Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting and Intent (Philadelphia, 1999); Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York, 2001); William A. Schabas, Genocide in International Law (Cambridge, 2000); Daniel Thomas, The Helsinki Effect: International Norms, Human Rights and the Demise of Communism (Princeton, 2001); Roger Normand and Sarah Zaidi, Human Rights at the U N: The Political History of Universal Justice (Bloomington, Ind., 2008). 0003 Genealogies of Human Rights 3 their primary objective has been to provide a normative and legal grounding for human rights in the present or to discuss the limits of humanitarian law.

In contrast, recent master narratives of nineteenth- and twentieth-century his- tory have tended to mention the issue of human rights only in passing (for example, C. A. Bayly’s Birth of the Modern World or Tony Judt’s Postwar ), although there have been notable exceptions (such as Mark Mazower’s Dark Continent ). The standard Cambridge History of Political Thought has no separate entry for human rights, while the article on human rights in the German conceptual-historical lexicon Geschichtliche Grundbegriffe does not move beyond the early nineteenth century. In short, there is an abundant lit- erature on how to make human rights work, but less on the actual workings of human rights in the past. This situation is beginning to change, as is demonstrated by Lynn Hunt’s recent study Inventing Human Rights . However, Hunt’s important account also makes clear how much this historical fi eld is still in the making, par- ticularly in regard to the question of presumed continuities in the history of human rights after 1800. 6 Recent histories of human rights, in most cases written by Anglophone scholars, have tended to provide a triumphalist and presentist account (“the rise and rise of human rights”), 7 thereby distorting past fi gures and institutions such as the anti-slavery movement, which did not employ rights-talk and had rather different objectives and accomplishments.

In contrast, our contention in the present volume is that human rights in their specifi c contemporary connotations are a relatively recent invention.

By focusing on the actual workings of human rights in the twentieth cen- tury, we hope to provide a more nuanced account of the emergence of human rights in global politics and to establish an alternative framework for analyz- ing the political and legal quandaries of that history. Most of the contributors are currently preparing or completing major studies on the history of human rights politics in the past century, with a particular emphasis on Europe in a global context. These studies focus on reconstructing cases of human rights “in action,” rather than engaging in normative theorizing about human rights.

In doing so, we seek to move beyond the false dichotomy in contemporary human rights scholarship between moral advocacy, on the one hand, and charges of political hypocrisy, on the other. 6 Lynn Hunt, Inventing Human Rights: A History (New York, 2007); similarly teleologi- cal are Paul Gordon Lauren, The Evolution of International Human Rights: Visions Seen (Philadelphia, 1998); Micheline R. Ishay, The History of Human Rights: From Ancient Times to the Globalization Era (Berkeley, 2004). For critical accounts of this narrative see Kenneth Cmiel, “The Recent History of Human Rights,” American Historical Review 109:1 (2004), 117–135; Reza Afshari, “On Historiography of Human Rights Refl ections on Paul Gordon Lauren’s The Evolution of International Human Rights: Visions Seen ,” Human Rights Quarterly , 29 (2007), 1–67; Samuel Moyn, “On the Genealogy of Morals,” The Nation , March 16, 2007; and, more generally, Moyn, The Last Utopia: Human Rights in History (Cambridge, Mass., 2010). 7 See the critique by Kirstin Sellars, The Rise and Rise of Human Rights (Stroud, 2002). 0003 Stefan-Ludwig Hoffmann 4 In contrast to the prevailing conception of a natural evolution of human rights, our aim is to understand human rights as a historically contingent object of politics that gained salience internationally since the 1940s – and globally since the 1970s – as a means of staking political claims and coun- terclaims. Only in the crises and confl icts of the second half of the twentieth century did a conceptual version of human rights emerge that corresponds to the current moral universalism. Thus in order to write a genealogy of human rights, this conceptual transformation – elicited by and formative of social and political events, movements, and structural changes – must be traced dia- chronically and transnationally. We seek to determine more precisely how historical confl icts about the universality of human rights were incorporated into their different meanings, and thus how the genesis and substance of legal norms were historically intertwined. Can we conceive of a genealogy of human rights that narrates their history not teleologically as the rise and rise of moral sensibilities, but rather as the unpredictable results of political contestations?

The Chimera of Origins Problems emerge at the start with the question of origins. Where should a history of human rights begin? With Roman law perhaps, where the concept ius humanum can indeed be historically documented, albeit not in the sense of subjective, natural rights for all humanity, but rather as rights created by humans and consequently subordinate to divine right? 8 Or with Calvinism, in particular with Calvin’s idea of the freedom of conscience and the covenant, as John Witte suggests? 9 Can we agree with Wolfgang Schmale that legal con- fl icts in French Burgundy and German Electoral Saxony in the sixteenth and seventeenth centuries were the precursors of the human rights declarations of the late eighteenth century? Is a basic human need articulated in these con- fl icts, one that exists independently of whether the concept of “human rights” was employed by contemporaries? 10 Or would the incorporation of all histori- cal struggles for concrete rights and privileges – which were not intended to be u n iver sa l , but rat her were st r ic t ly t ied to sp e ci fi c groups – amount to rewriting the entire legal history as a history of human rights? Even the most familiar account of the origins of human rights – that they emerged in eighteenth-century Europe – is historically contested. More than a hundred years ago, Georg Jellinek sought to tear human rights away from the French archenemy, in particular from Jean-Jacques Rousseau, and to antedate them to the German Reformation and the English legal tradition. 8 See, for example, Paul Veyne, “Humanitas: Romans and Non-Romans,” in A ndrea Giardina (ed.), The Romans (Chicago, 1993), 342–369; in contrast to Richard A. Baumann, Human Rights in Ancient Rome (London, 2000). 9 John Witte, Jr., The Reformation of Rights: Law, Religion and Human Rights in Early Modern Calvinism (Cambridge, 2007). 10 Wol f g a n g S c h m a le , Archäologie der Grund- und Menschenrechte in der Frühen Neuzeit. Ein deutsch-französisches Paradigma (Munich, 1997), 445. 0003 Genealogies of Human Rights 5 This “Germanic” tradition, according to Jellinek, gave rise to the Virginia Declaration of Rights (1776), which in turn provided a superior template for the Déclaration des Droits de l’Homme et du Citoyen of 1789. The emphatic rejection of this position from beyond the Rhine was hardly surprising. This controversy has continued in its basic form but with more nuanced arguments.

In fact, contemporary historiography has affi rmed many of Jellinek’s posi- tions as well as those of his French critic Émile Boutmy, even if no scholarly consensus has emerged as a result. 11 A different version of this genealogy can be found in the aforementioned synthesis Inventing Human Rights: A History by Lynn Hunt, an eminent scholar of French cult u ral histor y, in par ticular of the early modern period. I n order to elucidate the problems of a triumphalist history of human rights, it is worthwhile to review her argument in brief. Hunt, too, believes that human rights were an invention of the Enlightenment, but offers an unconventional explanation for this. Human rights gained currency in the eighteenth century, she argues, because they were based on new experiences and social practices, on a new emotional regime, with imagined empathy at its heart. 12 It is no coincidence, according to Hunt, that the three novels of this cen- tury that impressively invoked a new sentimental subjectivity – Richardson’s Pamel a (1740) and Clarissa (1747–1748) as well as Rousseau’s Julie (1761) – directly preceded in temporal terms a conceptual version of human rights.

Male and, in particular, female readers of these epistolary novels adopted a feeling of equality beyond traditional social boundaries. Epistolary novels tied readers’ emotional life to the suffering of others and in this way promoted a moralization of politics. A similar thesis about the politics of eighteenth- century moral and social practices can be found decades earlier in Reinhart Koselleck’s Critique and Crisis , although the latter was more skeptical toward the Enlightenment. 13 11 See, for example, Keith Michael Baker, “The Idea of a Declaration of Rights,“ in Gary Kates (ed.), The French Revolution: Recent Debates and New Controversies (London, 1998), 91–140; Marcel Gauchet, La Révolution des droits de l’homme (Paris, 1989); Knud Haakonssen and Michael J. Lacey (eds.), A Culture of Rights (New York, 1991); Michael P. Zuckert, Natural Rights and the New Republicanism (Princeton, 1994); Knud Haakonssen, Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment (Cambridge, 1996); Pauline Maier, American Scripture: Making the Declaration of Independence (New York, 1997). On Jellinek see Duncan Kelly, “Revisiting the Rights of Man. Georg Jellinek on Rights and the State,” Law and History Review , 22:3 (2004), 493–530. 12 Hunt, Inventing Human Rights , 32. The two classic accounts of the emergence of “humani- tarian sensibility” are Thomas L . Haskell, “Capitalism and the Origins of Humanitarian Sensibility,” American Historical Review , 90 (1985), 339 –361, 547–566; Thomas Laqueur, “Bodies, Details, and the Humanitarian Narrative,” in Lynn Hunt (ed.), The New Cultural History ( B e r k e l e y, 19 8 9) , 1 7 6 – 2 0 4 . S e e a l s o S a m u e l M o y n , “ E m p a t h y i n H i s t o r y, E m p a t h i z i n g with Humanity,” History and Theory , 45 (2006), 397–415. 13 Reinhart Koselleck, Critique and Crisis: Enlightenment and the Pathogenesis of Modern Society (Cambridge, Mass., 1988). On the post-Enlightenment politics of these moral and social practices see, for example, Stefan-Ludwig Hoffmann, Politics of Sociability: Freemasonry and German Civil Society 1840 –1918 , trans. Tom Lampert (Ann Arbor, Mich., 2007). 0003 Stefan-Ludwig Hoffmann 6 This emotional regime becomes even more apparent in the moral cam- paigns for the abolition of torture beginning in the 1760s. In particular the famous Calas affair connected the new emphasis on physical autonomy to this moral sensibility and empathy. 14 Torture could become a scandal in this case only because it was perceived as outdated. It was no longer regarded as a necessary means for publicly reconstructing the body politic. The audience now viewed only the pain and the suffering of individuals. Just six weeks after the Declaration of the Rights of Man and of the Citizen in 1789, the National A ssembly abolished tor t u re. T he decla rations of 1776 a nd 1789 t hus transformed into rights the antecedent evolution of new emotional regimes.

Reading accounts of torture or epistolary novels had physical effects that translated into “brain changes” and “came back out” as new concepts of human rights – this is how Hunt summarizes her argument. 15 Hunt omits the issue at the heart of the Jellinek controversy, whether the revolution of 1776 was perhaps more successful (in the sense of political legiti- macy) than that of 1789 because it tied a specifi c existing tradition (the Bill of Rights of 1688–1689, which defi ned the rights of Englishmen) to the uni- versal-revolutionary conception of rights. 16 The radical, cascade-like logic of human rights is, for Hunt, much more important. In the French Revolution, one social group after another demanded its rights and received them as well: fi rst the Protestants, then in 1791 the Jews , and following the suppres- sion of the Saint-Domingue rebellion the free blacks. Slavery was abolished in the French colonies in 1794 (but reintroduced by Napoleon several years later). Women remained the only group that was denied legal equality in the French Revolution. But the demand for human rights, once raised, could not be denied forever, even to women. Hunt insists that however restrictive the declarations of 1776 and 1789 may have been in practice, in the long term they opened up a political space in which new rights could be asserted: “The promise of those rights can be denied, suppressed, or just remain unfulfi lled, but it does not die.” 17 In the end, Hunt argues, human rights will be imple- mented because they accord with an emotional regime that, once in the world, will ensure through the force of its own logic the establishment of rights and justice, somehow, somewhere.

Rights, Nations, and Empires since 1800 The concept of the “rights of man” ( droits de l’homme, Menschenrechte ), however, essentially vanished from European politics in the epoch between the 14 Voltaire intervened for Jean Calas, who had allegedly driven his son to suicide because the latter wanted to convert to Catholicism. The son was buried as a Catholic martyr, while the father was killed by having his bones broken with an iron rod and his limbs pulled apart on a wheel, before fi nally being burned at the stake. 15 Hunt, Inventing Human Rights , 33. 16 See Michael Zuckert, “Natural Rights in the American Revolution: The American Amalgam,” in Jeffrey N. Wasserstrom et al. (eds.), Human Rights and Revolutions ( L a n h a m , M d . , 2 0 0 0), 59 – 76. 17 Hunt, Inventing Human Rights , 175. 0003 Genealogies of Human Rights 7 eighteenth-century revolutions and the world wars of the twentieth century, or was replaced (again) by (civil) liberties. Rights that were supposed to hold for all humankind were as rare in international law as they were in the consti- tutions of the era. Nor did the notion of human rights have great currency in nineteenth- and early-twentieth-century political thought. Tocqueville, Marx, and Weber all mentioned human rights only in passing and with palpable contempt. 18 In contrast to prevailing conceptions of a seamless evolution of human rights, it is therefore necessary to explicate more clearly their historical reconfi gurations and ruptures between 1800 and 1945.

Let us briefl y examine this issue in terms of the following four points: (1) Colonialism, international law, and humanitarianism were not mutually exclusive in the nineteenth century. Rather, those countries with liberal or republican legal traditions such as Great Britain and France engaged in par- ticularly expansive colonialism. The movement to abolish slavery perhaps had less to do with a new enlightened sensibility for the “rights of man” than with the colonial “civilizing mission.” (2) The struggle for civil and social rights, rather than human rights, was central for constitutions and politics in nine- teenth-century Europe; and those who claimed such rights had no diffi culty in withholding them from others. (3) Beginning in the 1860s international law did seek to delimit and “humanize” wars between states, but excluded the non-European world from this effort. (4) The homogeneous nation-state also served as the regulative idea guiding efforts to protect minorities both before and after the First World War. Genocide and expulsion were not impeded by such efforts, but instead became instruments of state population politics that aimed at an “ethnic cleansing” of the body politic. 1. Slavery, Humanitarianism, and Empire . The movement to abolish slav- ery began in England in 1787 with the Society for the Abolition of Slave Trade founded by the Quakers. Twenty years later parliament passed a related law.

In 1833 all slaves in the colonies of the empire were freed – the abolitionists had collected more than one million signatures for a petition to parliament.

France followed this example only in the course of the Revolution of 1848.

American plantation owners in the southern states were forced to free their slaves after the end of the American Civil War in 1865. Serfdom had already been abolished in Russia in 1861. By the end of the century slavery was also completely abolished in Central and South America. Can one conceive of a more apt example of the rise and rise of human rights? As Tocqueville had already noted in 1843, it was not the French radi- cal tradition of human rights that had engendered the moral campaigns to abolish slavery. 19 British abolitionists wanted to elevate the “humanity” of slaves to make them Christians. The success of the movement had less to do 18 See also Jeremy Waldon (ed.), ‘Nonsense Upon Stilts’: Bentham, Burke, and Marx on the Rights of Man (London, 1987), who shows that this disdain for human rights was popular among nineteenth-century liberals, conservatives, and socialists alike. 19 Alexis de Tocqueville, “The Emancipation of Slaves (1843),” in Tocqueville, Writings on Empire and Slavery , ed. and trans. Jennifer Pitts (Baltimore, 2001), 199–226, here 209. The 0003 Stefan-Ludwig Hoffmann 8 with a new humanitarian sensibility for the “rights of man” than with this new evangelicalism and the political crisis of the British Empire following military defeats overseas and the loss of the American colonies (1783). 20 In search of a moral legitimacy for the Empire, slavery and the slave trade were declared symbols of a colonial past. The reinvention of a specifi cally British, Protestant-colored idea of freedom provided the justifi cation for an imperial “civilizing mission” that not only aimed to free slaves and subjects in British colonies, but was also supposed to establish Britain’s moral primacy vis-à-vis other European powers. Later, in the era of colonial acquisition, the con- demnation of slavery was also a motif and pretext for “humanitarian” inter- ventions by European colonial powers. 21 French republicanism, for example, saw in the idea of its own mission civilisatrice the justifi cation for “freeing” Africans from “feudal” conditions under indigenous rulers. 22 The abolition of slavery was thus followed by a new European expansionism, justifi ed on humanitarian grounds, parallel and in contrast with the democratization of nineteenth-century European civil societies. As Max Weber noted in 1906, imperial expansion constituted the historical condition for the emergence of civil liberties in Europe. 23 2. Constitutionalism and Citizenship . In the long nineteenth century, European constitutions avoided references to natural rights or human rights, irrespective of whether they were republics, empires, and/or constitutional mon- archies. Human rights were no longer mentioned in the French Constitution example of Tocqueville can also be used to show how political liberalism of the nineteenth century could connect the moral condemnation of slavery to the justifi cation of imperial expansion, in this case the French colonization of Algeria. See Jennifer Pitts, A Turn to Empire. The Rise of Imperial Liberalism in Britain and France (Princeton, 2006), 204–239. 20 Christopher Leslie Brown, Moral Capital. Foundations of British Abolitionism (Chapel Hill, N.C., 2006). Adam Hochschild, who in his introduction declares the abolitionists to be “towering fi gures in the history of human rights,” later contradicts himself when he writes about the sentiments of the abolitionists toward the slaves: “The African may have been ‘a man and a brother,’ but he was defi nitely a younger and grateful brother, a kneeling one, not a rebellious one. At a time when members of the British upper class did not kneel even for prayer in church, the image of the pleading slave victim refl ected a crusade, whose leaders saw themselves as uplifting the downtrodden, not fi ghting for equal rights for all. … The upper- class Britons comprising that body might be moved by pity, but certainly not by a passion for equality.“ Hochschild, Bury the Chains: Prophets and Rebels in the Fight to Free an Empire’s Slaves (New York, 2005), 4, 133–134. 21 See Kevin Grant, A Civilized Savagery: Britain and the New Slaveries in Africa, 1884–1926 (New York, 2005); Grant, “Human Rights and Sovereign Abolitions of Slavery, c. 1885– 1956,” in Grant et al. (eds.), Beyond Sovereignty: Britain, Empire, and Transnationalism, c . 1880 –1950 (Basingstoke, 2007), 80 –102. 22 Alice L . Conklin, “Colonialism and Human Rights: A Contradiction in Terms? The Case of France and West Africa, 1895–1914,” American Historical Review , 103:2 (1998), 419–442; Conklin, A Mission to Civilize: The Republican Idea of Empire in France and West Africa, 1895–1930 (Stanford, Calif., 1997). 23 Max Weber, “Zur Lage der bürgerlichen Demokratie in Rußland,” in Zur Russischen Revolution von 1905: Schriften und Reden 1905–1912 , ed. Wolfgang J. Mommsen and Dittmar Dahlmann (Tübingen, 1996), 100. 0003 Genealogies of Human Rights 9 of 1799 (and resurfaced only in 1946.) This was true as well for the United States , where the Bill of Rights sank into insignifi cance after 1800 (and was not ratifi ed by the states of Massachusetts, Georgia, and Connecticut until 1939!). 24 Only the constitutions of the individual states were important for legal practice at the time. This situation did not change with the Fourteenth Amendment of 1868, which granted civil rights to everyone born in the United States, including black slaves. (Lincoln himself long favored the plan to deport the freed slaves to Africa.) 25 The legal situation in the respective states, rather than the Bill of Rights, continued to be decisive for the rights of individuals.

Only after the Second World War did the Supreme Court breathe new life into the Bill of Rights. The draft constitution of St. Paul’s Church in Frankfurt am Main in 1848 did include a catalog of “basic rights” ( Grundrechte ), as human rights were now called in German in order to provide distance from the radicalism of the French revolution. As with other constitutions of the era, however, these were civil rights tied to citizenship ( Grundrechte des deutschen Volkes ) and not universal rights. After the failed revolution, the state emerged as the guar- antor of rights, which were regulated by laws. Legal positivism rather than natural law became the prevailing doctrine for granting rights, and not only in Germany. The issue of human rights played no role at all in the constitutional confl icts of the 1860s. It was absent from the Constitution of the German Empire of 1871 not because the empire was particularly authoritarian, but because no party attributed any signifi cance to a declaration of basic rights.

Not until the Weimar Constitution of 1919 was a detailed catalog of basic rights and duties included. In the nineteenth century, lines of political confl ict within European civil societies were instead defi ned by the demand for social or political rights.

While early socialists did invoke the declarations of 1789 or 1793, the revolu- tions and civil wars in France of 1830, 1848, and 1871 emphasized collective rights (for example, of workers) or the droits des citoyens . Reference to the droits de l’homme reappeared only in the constitution of the Fourth Republic of 1946. 26 A just society, according to the socialist utopia, would arise only by transcending capitalism and “bourgeois” rule of law. The European Left emphasized not freedom from the state, but rather freedom in and through the state, over which they thus sought to gain control. Human rights were 24 Orlando Patterson, “Freedom, Slavery, and the Modern Construction of Rights,” in Olwen Hufton (ed.), Historical Change and Human Rights: The Oxford Amnesty Lectures 1994 (New York, 1995), 132–178, here 164. 25 See, for example, his “Speech in Springfi eld, Illinois, June 2, 1857,” in Henry Louis Gates Jr.

and Donald Yakovone (eds.), Lincoln on Race and Slavery (Princeton, 2009), 92–102. 26 Tony R. Judt, “Rights in France: Refl ections on the Etiolation of a Political Language,” To c q u e v i l l e Review , 14 (1993), 67–108. William H. Sewell has shown that French workers rarely employed the language of rights in the 1840s, instead formulating their claims in the corporate language of the ancien régime. Sewell, Work and Revolution in France (Cambridge, 1980). 0003 Stefan-Ludwig Hoffmann 10 therefore closely tied to the concept of the sovereignty of the people. 27 This presumed that only citizens incurred rights, not humanity in general, or, for instance, subjects in the colonies. 28 The same was true of the women’s move- ment, which was organized internationally but aimed above all at political and social rights within nation-states, for instance, women’s suffrage (paradoxi- cally this aim was often justifi ed by reference to the special place of women in society). 29 Only during the Dreyfus affair and the founding of the Ligue pour la Défense des Droits de l’Homme at the end of the century did socialists and republicans discover the value of individual rights vis-à-vis the state, a devel- opment that was curtailed with the explosion of nationalism during the First World Wa r. 30 3. The Meanings of International Law . For Europeans, the nineteenth- century world was divided: On the one hand were the “civilized” (Christian) states, in which fi erce confl icts for political participation took place, but whose legal principles (the right to property, security, religious freedom) were increasingly regulated through constitutions and laws, and in which an ever greater legal equality emerged, and on the other hand the remaining territo- ries and “uncivilized” (non-Christian) peoples outside Europe, whose legal status remained weakly defi ned. The most important function of the liberal international law that emerged in the 1860s lay in regulating confl icts among European powers in the absence of a world sovereign. Only when a people had become “civilized” to the degree that it possessed its own state was it accorded rights. “[B]arbarians,” as John Stuart Mill wrote in 1859, “have no rights as a nation, except a right to such treatment as may, at the earliest possible period, fi t them for becoming one.” 31 The international standard of civilization did follow its own logic of imperial integration, which Martti Koskenniemi describes as “exclusion in terms of a cultural argument about the otherness of the non-European that made it impossible to extend European rights to the native, inclusion in terms of the native’s similarity with the European, the native’s otherness having been erased by a universal humanitarianism under which international lawyers sought to replace native institutions by European 27 Alexander J. Schwitanski, Die Freiheit des Volksstaats. Die Entwicklung der Grund- und Menschenrechte und die deutsche Sozialdemokratie bis zum Ende der Weimarer Republik (Essen, 2008), 454–455. 28 Alice Bullard, “Paris 1871/ New Caledonia 1878: Human Rights and the Managerial State,” in Jeffrey N. Wasserstrom et al. (eds.), Human Rights and Revolutions ( L a n h a m , M d . , 2 0 0 0), 79 – 97. 29 See Leila J. Rupp, Worlds of Women: The Making of an International Women’s Movement (Princeton, 1997). 30 Emmanuel Naquet, “Entre justice et patrie. La ligue des droits de l’homme et la grande guerre,” Movement social , 183 (1998), 93–109; William Irvine, Between Justice and Politics: The Ligue des droits de l’homme, 1898–1945 (Stanford, Calif., 2007). 31 John Stuart Mill, “A Few Words on Non-Intervention,” [1859] in The Collected Works of John Stuart Mill , ed. John M. Robson, vol. 21: Essays on Equality, Law, and Education (Toronto, 1984). ht tp: //oll.liber t yfund.org /title /255/21666 . 0003 Genealogies of Human Rights 11 sovereignty.” 32 Thus in contrast to the constitutions of the era, natural rights arguments did still play a role in international law in a “civilizing” sense; however, t hey u lt i m ately ser ved Eu rop ea n imperialism in that sovereignty was tied to a (European) standard of civilization. In the nineteenth century, inter- national law continued to regard all territories of the world not controlled by sovereign states as terra nullius and thus as free to be occupied. 33 The attempts to “humanize” warfare also focused exclusively on confl icts among or within “civilized” states, and not, for example, on the suppression of revolts in the colonies, which assumed genocidal traits at the end of the century. 34 The wars of the 1860s in Europe and the American Civil War had become increasingly brutal through the mechanization and democratization of killing. Compulsory military service allowed for larger armies and thus deployments with signifi cantly higher casualties among soldiers. At the same time, media reports in the age of an expanding public sphere made the kill- ing more immediate. During the American Civil War, Prussian émigré and political philosopher Franz (Francis) Lieber was commissioned to draw up guidelines for dealing with the rebels. The Lieber Code, issued by Abraham Lincoln to the northern states in 1863, regulated the treatment of deserters and prisoners, regular troops, and partisans for the fi rst time in the history of modern warfare. The report by Swiss entrepreneur Henri Dunant about the bloody Battle of Solferino in June 1859 between the Austrian army and troops of Piedmont-Sardinia and France led to the founding of the Red Cross in 1863 and a year later to the Geneva Convention, which the majority of European states and the United States adopted by the end of the century. 35 Its provi- sions were expanded and elaborated at the Hague Peace Conferences of 1899 and 1907 encompassing, for instance, the protection of the civilian popula- tion during foreign occupation. This new humanitarian international law was only selectively observed in the two world wars of the twentieth century. The 32 Koskenniemi, Civilizer of Nations , 130. For a different account see Anthony Pagden, “Human Rights, Natural Rights, and Europe’s Imperial Legacy,” Politic al Theor y , 31:2 (2003), 171–199. 33 Jörg Fisch, Die europäische Expansion und das Völkerrecht (Stuttgart, 1984), 490; Fisch, “Internationalizing Civilization by Dissolving International Society: The Status of Non- European Territories in Nineteenth Century European Law,” in Martin H. Geyer and Johannes Paulmann (eds.), The Mechanics of Internationalism: Culture, Society, and Politics from the 1840s to the First World War (Oxford, 2001), 235–257; Fisch, “Africa as terra nullius: The Berlin Conference and International Law,” in Stig Förster et al. (eds.), Bismarck, Europe, and Africa: The Berlin Conference and the Onset of Partition (London, 1988), 437 –476; Fisch, Das Selbstbestimmungsrecht der Völker oder die Domestizierung einer Illusion. Eine Geschichte (Munich, forthcoming); Anghie, Imperialism . 34 Isabel V. Hull, Absolute Destruction: Military Culture and the Practices of War in Imperial Germany (Ithaca, N.Y., 2005). 35 Michael Ignatieff, The Warrior’s Honor: Ethnic War and the Modern Conscience (London, 1998); Ca roline Moorehead, Dunant’s Dream: War, Switzerland, and the History of the Red Cross (New York, 1998); John F. Hutchinson, Champions of Charity: War and the Rise of the Red Cross (Boulder, 1996). 0003 Stefan-Ludwig Hoffmann 12 juridifi cation of war around 1900 thus stands in awkward tension with the lawlessness of warfare in the twentieth century, in particular the systematic killings of enemy civilians. 4. Nation States, Minorities, and Genocide . The crisis of the multiethnic Ottoman, Habsburg, and Romanov Empires beginning in the late nineteenth century made nationalism appear to be the most likely path to political rights and state sovereignty. This was true for Turkey and the new nation-states of the Balkans before the First World War, as well as for those nation-states in Central and Eastern Europe that were established after 1918 and in the Middle East, Asia, and Africa after 1945. In all of these cases, the creation of sovereign nation-states led to problems with the treatment of ethnic minori- ties and consequently to a new politics of genocide and population transfer.

The collapse of the empires and the global expansion of the nation-state thus fundamentally altered international politics, from the traditional diplomacy of the great powers all the way to population policies or “bio-politics.” 36 The right to national self-determination propagated fi rst by Lenin and later by Woodrow Wilson at the end of the First World War solved old confl icts while engendering new ones. “Versailles had given sixty million people a state of their own, but it turned another twenty-fi ve million into minorities.” 37 Furthermore, after the First World War a completely new group of refugees emerged, stateless people, who as “foreign elements” or “the class enemy” had been stripped of their citizenship by one nation and forced to emigrate, but were unable to offi cially immigrate to the receiving nation (and apply for political asylum). This was particularly acute for Armenians and the millions of political refugees from the Russian Civil War (1917–1920) and beginning in 1933 a matter of life and death for German Jews. It was only with the dissolu- tion of older multiethnic empires and the reordering of the world into egoistic nation-states that ethnic homogenization and genocide emerged as political imperatives for bio-politics. National Socialism inverted nineteenth-century imperialism, as Afro- Martinican Francophone author Aimé Césaire wrote after the war, in that it treated Europeans like Africans – without rights and without states that could guarantee these rights. 38 Slavery also returned to Europe in the guise of forced labor. The nation-states of Central and Eastern Europe created in 1918–1919 were either completely annexed by Na zi G er ma ny or t u r ned i nto colon ia l pro - tectorates. The Generalplan Ost (General Plan East) included no sovereign state or civil rights for the occupied territories and the peoples of the Soviet Un ion. I n cont rast to n i ne te ent h- c ent u r y i mp er ia l ism , t he Na z i empi re d id not attempt to legitimate itself through an ostensible “civilizing” of the colonized. 36 Eric D. Weitz, “From the Vienna to the Paris System: International Politics and the Entangled Histories of Human Rights, Forced Deportations, and Civilizing Missions,” American Historical Review , 113:5 (2008), 1313–1343. 37 Mark Mazower, Dark Continent: Europe’s Twentieth Century (London, 1998), 42. 38 Aimé Césaire, Discourse on Colonialism [1950]. Translated by Robin D. G. Kelley (New York, 2000), 36. 0003 Genealogies of Human Rights 13 Exploitation and extermination were no longer the implicit consequences, but rather the declared objective of the subjugation. The League of Nations created in Versailles in 1919 failed to resolve the issue of minority rights despite its other accomplishments. 39 The League was supposed to monitor the observation of minority rights in the new states of Central and Eastern Europe; the democracies of the West (including defeated Germany) were excluded from this because they were regarded as suffi ciently “civilized” to ensure these rights themselves – irrespective of protests, for instance, by Poland. The exclusive standard of civilization thus did not disap- pear from international law during the First World War, but instead became the sole measuring stick for sovereignty, applied now also to the “immature” states of Central and Eastern Europe. A proposal by Japan to include the equality of all races in the articles of the League of Nations was rejected by the Western victorious powers, as were all attempts to extend the right to national self-determination to the colonies. Thus even the former German colonies in Africa and the Ottoman territories in the Middle East did not become inde- pendent states but mandate territories (similar to colonial protectorates) that were now directly administered by the victorious powers. After 1918–1919, the elites of the colonial world abandoned the idea of liberal reform within the British and French empires and embraced other ideologies, for instance, com- munism ( China). The anti-colonial nationalism of the “Third World” emerged at the end of the First World War from the disappointed expectations about a new and just international order. 40 Competing Universalisms since 1945 One of the results of the two world wars was not only the end of the Nazi racial empire in Europe, but the beginning of the disintegration of the colo- nial empires, in particular those of the victorious powers Great Britain and France. Only with the Universal Declaration of Human Rights of 1948 and the decolonization of the world did human rights become universal in the sense that they were not supposed to apply exclusively to Europeans. As Mark Mazower demonstrates in his contribution to this volume, in this process “human rights” (and later “development”) replaced the concept of civilization 39 See, for example, Susan Pedersen, “Back to the League of Nations,” American Historical Review , 112:4 (2007), 1091–1117; Carole Fink, “Minority Rights as an International Question,” Contemporary European History , 9 (2003), 385–400; Fink, Defending the Rights of Others: The Great Powers, the Jews, and International Minority Protection, 1878– 1938 (Cambridge, 2004); Donald Bloxham, The Great Game of Genocide. Imperialism, Nationalism, and the Destruction of the Ottoman Armenians (Oxford, 2005); Michael Marrus, The Unwanted: European Refugees in the Twentieth Century (Oxford, 1985). See also the classic critique of the interwar minority system by Hannah Arendt, The Origins of Totalitarianism [1951] (London, 1976), 267–303; on human rights and “bio-politics”: Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford, Calif., 1998), 126–135. 40 See Erez Manela, The Wilsonian Moment: Self-Determination and the International Origins of Anticolonial Nationalism (Oxford, 2007). 0003 Stefan-Ludwig Hoffmann 14 (and of “civilizing missions”) in international law and politics. In many ways, human rights acquired universality only after the demise of European interna- tional law and its exclusive standard of civilization. This emergence of human rights during the midcentury crisis as a normative concept that claimed authority even beyond state boundaries stood (and con- tinues to stand today) in tension with the principle of sovereignty. Like human rights, the global expansion of the nation-state as a model of political order is also a result of the cataclysmic history of the fi rst half of the twentieth century and the implosion of the colonial empires. The new international order was thus constructed around two often mutually exclusive principles: individual human rights, which could also be asserted vis-à-vis one’s own state; and the principle of state sovereignty, which – as new states from Israel to India and Pakistan were convinced – rendered the state solely capable of guaranteeing rights. The new intergovernmental organizations, declarations, and conventions, like international politics since 1945 in general, have thus been based on the principle of state sovereignty and have at the same time employed moral imperatives such as human rights that point beyond the nation-state. The second half of the twentieth century was defi ned by the global expansion of the nation-state and the increasing erosion of state sovereignty through (among other things) transnational legal norms such as human rights. Ideas about the equal sovereignty of states and of individuals emerged in tandem and in political tension with one another. This paradoxical constellation helps to explain the trajectories of human rights in the second half of the century, in particular the diffi culties involved in their political implementa- tion. Once again we can identify four sets of problems: (1) Cold War con- testations and (2) decolonization, both primarily from the late 1940s to the early 1960s; (3) the global campaign against pariah states such as Chile and South Africa and the new humanitarianism; and (4) the demise of commu- nism and the emergence of dissidence in Eastern Europe, both in the 1970s and 1980s. 1. Cold War Contestations . Human rights returned to the international arena during the Second World War as a unifying moral imperative for the states allied against Nazi Germany. Indeed, the war experience played a piv- otal role for the international constitutionalism of the late 1940s. However, the “strange triumph of human rights” in the 1940s was based as well on the geopolitical interests of the Allies. The (nonbinding) Universal Declaration of Human Rights of 1948 contained a strategic dimension in the sense that it pushed the rights of individuals to the fore for the fi rst time in international law while simultaneously ignoring the rights of minorities, lending the Allies a free hand for postwar population transfers, not least the expulsion of millions of Germans from East-Central Europe. 41 In their contributions to this volume, 41 Mark Mazower, “The Strange Triumph of Human Rights, 1933–1950,” Historical Journal , 47 (2004), 379–398; Mazower, “‘An International Civilisation?’ Empire, Internationalism, 0003 Genealogies of Human Rights 15 Dan Cohen examines the refugee crisis as an example for the postwar human rights revolution while Lora Wildenthal discusses the German case: The fact that postwar Germans were not included in the emerging international human rights regime confounded precisely those Germans who had not been Nazis, whereas Carl Schmitt, for instance, merely regarded his own views as con- fi rmed by this. 42 The consensus among the Allies quickly disintegrated as their interests diverged. During the Cold War the communist bloc and the decolonization movements insisted that a condemnation of racism and a guarantee of col- lective and social rights were essential dimensions of human rights, while the liberal democracies in the West emphasized individual and political rights, such as the right to free expression, that were already guaranteed in their constitutions. The substance of human rights, in other words, was historically contingent and politically contested. Again, this is a history marked more by ruptures than continuities. In the early 1950s, the United States and the Soviet Union partially withdrew from attempts to establish an international human rights regime – the United States was still a racially segregated soci- ety at this time, and the post-Stalinist Soviet Union had only then begun to eliminate forced labor. 43 Within the scope of the European Convention on Human Rights (1950), the post-Fascist democracies of Italy, France, Austria, and Germany were prepared to cede sovereignty rights, in part out of fear of a return of political extremism within their own societies. 44 This ceding of sovereignty rights by Western European nations would have been inconceiv- able without the constellation of the Cold War (and the demise of the colo- nial empires, an issue that will be addressed below). As Mikael Rask Madsen shows in his contribution, the new institutions of the European Court of Human Rights and the European Commission on Human Rights were not particularly signifi cant for jurisprudence in the fi rst two decades of their exis- tence (the court issued few judgments until the 1970s), but they did serve as instruments for the political unifi cation of the western half of the continent and the Crisis of the Mid-20th Century,” International Affairs , 82 (2006), 553–566. For a more sanguine view see Elizabeth Borgwardt, A New Deal for the World: America’s Vision for Human Rights (Cambridge, Mass., 2005). 42 See also Paul Betts, “Germany, International Justice and the 20th Century,” History and Memory , 17 (2005), 45–86. Schmitt wrote the following in a diary entry of December 6, 1949, expressing the prevailing sentiment among postwar Germans: “There are crimes against and for humanity. The crimes against humanity are committed by Germans. The crimes for humanity are committed on Germans.” Schmitt, Glossarium: Aufzeichnungen der Jahre 1947 –1951 (Berlin, 1991), 282. 43 Carol Anderson, Eyes off the Prize: The United Nations and the African American Struggle for Human Rights, 1944–55 (Cambridge, Mass., 2003); Mark Bradley, “The Ambiguities of Sovereignty: The United States and the Global Rights Cases of the 1940s and 1950s,” in Douglas Howland and Luise White (eds.), Art of the State: Sovereignty Past and Present (Bloomington, Ind., 2009), 124–147. 44 Andrew Moravcsik, “The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe,” International Organisation , 54 (2000), 217–252. 0003 Stefan-Ludwig Hoffmann 16 under conservative auspices in response to the challenge of communism . In the postwar era, anticommunism was more important for the emergence of a European human rights regime than the Holocaust. 45 As Samuel Moyn ’s e s s ay contends, within the liberal democracies of Western Europe after 1945 it was especially the Christian-Democratic parties that adopted the cause of human rights. Political Catholicism, which in the interwar period had still demonized the French Revolution, now discovered in human rights and the sacred con- cept of the person an effective strategy to conceal its own entanglement with the radical right and to infuse a religious dimension into the anti-totalitarian consensus of the West. 2. Decolonization and the Internationalization of Rights . After 1945 the new United Nations institutions resembled the League of Nations of the inter- war era in many ways, and it appeared initially as if the liberal international- ism that still worked in an imperial framework and had been animated by the legal traditions of the British Empire would continue after the war. 46 South African President Jan Smuts, the representative of a Commonwealth state based on racial segregation, composed the preamble to the United Nations Charter in 1945. It is hardly surprising that a condemnation of racism was absent from this document. In contrast to the interwar period, however, rep- resentatives of the colonies were no longer willing to be put off. Smuts became the object of attacks within the new international arena in 1946, in particular from Nehru and other Indian politicians, who now demanded recognition of the rights of the Indian minority in South Africa. This became something of a precedent for the aforementioned dilemma: to demand universal rights and nonetheless to respect sovereignty rights. Until the end of apartheid, South Africa remained a kind of pariah state within the international community, but was never subject to any direct military intervention. With the Cold War division into East and West and the wars of decoloniza- tion, human rights became a disputed domain in international politics in the 1950s. One of the many ironies of this process was the “boomerang effect” of the internationalization of human rights: The demise of French and British imperial power coincided with the internationalization of the greatest accom- plishments of their political and democratic cultures, that is, human rights.

As Glenda Sluga ’s contribution shows, questions of racial and sexual equalit y constituted the central focus for the human rights rhetoric of the postcolo- nial and communist states. 47 At the time, liberal-democratic, socialist, and 45 Marco Duranti, “Conservatism, Christian Democracy and the European Human Rights Project, 1945–50,” PhD diss., Yale University, 2009. 46 See Saul Dubow, “Smuts, the United Nations and the Rhetoric of Race and Rights,” Journal of Contemporary History , 43 (2008), 45–74; Mark Mazower, No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations (Princeton, 2009). 47 See also Sunil Amrith /Glenda Sluga, “New Histories of the United Nations,” Journal of World History , 19 (2008), 251–274. In the 1950s and 1960s it was primarily representatives of the postcolonial world who put women’s rights on the U N agenda. See Roland Burke, Decolonization and the Evolution of International Human Rights (Philadelphia, 2010), 121–129. 0003 Genealogies of Human Rights 17 postcolonial human rights norms competed in the international arena, and yet each claimed for itself moral universalism. Consequently the prevailing models for the history of human rights are hardly convincing. In 1949, at the height of the Labour government’s reform policies, British sociologist T. H.

Marshall proposed as a model for the historical development of citizenship a succession of civil, then political, and then social rights, which Italian phi- losopher Noberto Bobbio , for instance, subsequently adopted and applied to human rights. Karel Vasak, a legal expert from Czechoslovakia who had fl ed to France in 1968, developed a similar model containing three generations of rights: fi rst civil and political rights, followed by social and cultural rights, and fi nally in the twentieth century solidarity rights, such as the right to peace, development, and a healthy environment. 48 These different rights claims did not in fact follow one another as subsequent generations, but rather competed historically. Women’s suffrage was adopted in the European democracies only after the Great War, in France not until 1944 and in Switzerland not until 1971. The right to work had already appeared in Article 21 of the Declaration of Human Rights in the French Constitution of 1793 and was thus not an invention of the nineteenth or twentieth century. The United States did sign the International Covenant on Economic, Social, and Cultural Rights (1966) in 1977 at the beginning of the Carter administration, but is one of the few countries in the world that has not ratifi ed it even today, although during the Second World War social rights were a fi rm part of the Roosevelt administra- tion’s postwar agenda. 49 As British international legal expert A. W. Brian Simpson has argued, the decline of the colonial empires after 1945 can hardly be explained without the moral and political pressure of human rights. This is particularly clear in the revolts and wars in the 1950s against Great Britain and France , both of which had been weakened by the Second World War ; these two colonial powers participated in the establishment of a European human rights regime and yet were compelled at the same time to declare states of emergency in their own colonies, for instance, Kenya and Algeria , in order to suppress independence movements, as Fabian Klose makes clear in his contribution to this volume. 50 48 T. H. Marshall, “Citizenship and Social Class,” in Citizenship and Social Class and Other Essays (Cambridge, 1950), 1–85; Norberto Bobbio, “Human Rights Now and in the Future [1968],” in The Age of Rights (London, 1996); Karel Vasak, “Pour une Troisième Generation des Droits de l’homme,” in C. Swinarski (ed.), Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet (The Hague, l984), 837–845. 49 Martin H. Geyer, “Social Rights and Citizenship during World War II,” in Manfred Berg and Martin H. Geyer (eds.), Two Cultures of Rights: Germany and the United States (Cambridge, 2002), 143–166. 50 See also Simpson, Human Rights; Kenneth Cmiel, “Human Rights, Freedom of Information, and the Origins of Third World Solidarity,” in Mark Bradley and Patrice Petro (eds.), Tr u t h Claims: Representation and Human Rights (New Brunswick, N.J., 2002), 107–130; Mikael Rask Madsen, “France, the United Kingdom and the ‘Boomerang’ of the Internationalisation of Human Rights (1945–2000),” in Simon Halliday and Patrick Smith (eds.), Human Rights Brought Home. Socio-Legal Perspectives on Human Rights in the National Context (Oxford, 0003 Stefan-Ludwig Hoffmann 18 The fact that Great Britain initially insisted on excluding the subjects of its colonies from the European Convention on Human Rights and that France did not ratify the convention (until 1974) could hardly still be justifi ed in terms of “a civilizing mission .” As a result of decolonization, the institutions that liberal internationalism had created in the mid-1940s were now “globalized.” The new independent states of Africa and Asia increasingly gained in infl uence; since the early 1960s the countries of the “Third World” constituted a majority in purely numerical terms within the institutions of the United Nations . Cold War rivalries and the emergence of “Third World” sovereign states fostered a fundamental change in the constitution of international society, previously dominated by European colonial empires. Now postcolonial states could assert their own perspective on human rights within international organizations . In 1960 the post-colonial states (on the initiative of the Soviet Union and without votes from the West) were able to attain recognition of the right to national self-determination as Article 1 of the Declaration on the Granting of Independence to Colonial Countries and Peoples – and thereby as one of the U N Human Rights Norms. 51 At the fi rst International Human Rights Conference of the United Nations in Teheran in 1968, twenty years after the Universal Declaration, the states of the “Third World” – many of them now autocratic dictatorships such as the regime of Reza Shah Pahlavi in Iran – formulated a rejection of individ- ual rights and a (renewed) turn within the international community to social and collective rights. The socialist states and the new states of the postcolo- nial world frequently formed an anti-colonial bloc against the West within international organizations (U NO, U NESCO , ILO), although this invoca- tion of human rights had no consequences for jurisprudence within their own societies. 52 As Andreas Eckert argues in this volume, African political leaders invoked human rights in the 1950s primarily to expose the hypocrisy of the West. For anti-colonialist intellectuals such as Julius Nyerere , Frantz Fanon , or Léopold Senghor , the language of nationalism and revolutionary violence was more signifi cant than that of human rights. Whenever it appeared that the invo- cation of human rights might threaten the sovereign rights of recently inde- pendent nation-states, the former were summarily rejected, as Daniel Roger 2004), 57–86; Charles O. H. Parkinson, Bills of Rights and Decolonization: The Emergence of Domestic Human Rights Instruments in Britain’s Overseas Territories (Oxford, 2007); Bonny Ibhawoh, Imperialism and Human Rights: Colonial Discourses of Rights and Liberties in African History (New York, 2007); Burke , Decolonization . 51 See Burke , Decolonization , ch. 4. 52 See, for example, the ILO debates on forced labor between 1947 and 1960: Sandrine Kott, “Arbeit – ein transnationales Objekt? Die Frage der Zwangsarbeit im ‘Jahrzehnt der Menschenrechte,’” in Christina Benninghaus et al. (eds.), Unterwegs in Europa. Beiträge zu einer vergleichenden Sozial- und Kulturgeschichte (Frankfurt, 2008), 301–321; Daniel Roger Maul, Menschenrechte, Sozialpolitik und Dekolonisation. Die Internationale Arbeitsorganisation (IAO) 1940 –1970 (Essen, 2007). 0003 Genealogies of Human Rights 19 Maul ’s article here suggests. This, of course, was no different in the case of the superpowers, the United States and the Soviet Union . Thus from the perspec- tive of the postcolonial world, human rights have constituted both: a moral and political means of applying pressure upon the former colonial powers in the international arena, while at the same time representing a dangerous, modernized version of the nineteenth-century “standard of civilization” that further fostered the social and economic gap between the imperial metropolis and the periphery (or North and South, as it was termed by this time). Human rights thus became a language of international politics, although still without signifi cant consequences for national governance. International legal experts such as Paul Kahn have even argued that one reason for the rapid juridifi cation of the world (in different regional and international human rights regimes) was the fact that this emerging global law proved unenfor- cable. Torture, for instance, became a common practice in the dictatorships of Latin America at precisely the same time it was offi cially prohibited by the International Covenant on Civil and Political Rights (1966, in force since 1976). 53 3. Global Hegemony and the New Humanitarianism . The situation changed in the early 1970s, at the moment when human rights left the restricted space of international diplomacy and became a global concept for non-state actors such as Amnesty International and Médecins Sans Frontiéres , which began to demand the enforcement of human rights beyond national bor- ders. 54 Nongovernmental organizations (NGOs) dedicated to humanitarian issues have existed since the late eighteenth century. For example, the British Defence and Aid Fund , which assisted people persecuted by apartheid laws in South Africa , developed from the Treason Trial Defence Fund out of Christian Action , which had been established in the period after the Second World War and which in turn had its origins in the British Anti-Slavery Society . 55 Now, however, a variety of new organizations emerged that regarded the “global 53 Paul W. Kahn, Sacred Violence: Torture, Terror, and Sovereignty (A nn A rbor, M ich., 2008), 57–58. 54 See Akira Iriye, Global Community: The Role of International Organizations in the Making of the Contemporary World (Berkeley, 2002); Ann Marie Clark, Diplomacy of Conscience: Amnesty International and Changing Human Rights Norms (Princeton, 2001); Kenneth Cmiel, “The Emergence of Human Rights Politics in the United States,” Journal of American History , 86 (1999), 1231–1250; Tom Buchanan, “‘The truth will set you free’: The Making of Amnesty International,” Journal of Contemporary History , 37 (2002), 575–597; Buchanan, “Amnesty International in Crisis, 1966–7,” Twentieth Century British History , 15 (2004), 267–289; David Kennedy, The Dark Sides of Virtue. Reassessing International Humanitarianism (Princeton, 2005); Dominique Clement, Canada’s Rights Revolution.

Social Movement and Social Change 1937–1982 (Vancouver, 2008); Jean Quataert, Advo- cating Dignity: Human Rights Mobilizations and Global Politics (Philadelphia, 2009); Matthew Hilton, Prosperity for All: Consumer Activism in the Era of Globalization (Ithaca, N.Y., 2009). 55 Hakan Thörn, Anti-Apartheid and the Emergence of a Global Civil Society (Basingstoke, 2006), 6–7. 0003 Stefan-Ludwig Hoffmann 20 community” rather than national governments as the source of authority and the audience for their campaigns. This began with the Biafra crisis in the late 1960s, which triggered a wave of new humanitarian aid organizations in the We s t . Certainly one factor in this development was the political disillusionment of the radical Left in Western Europe after 1968, as well as what it regarded as the toothless internationalism of the U N human rights regime. Historians speak of a second globalization beginning in the early 1970s, which, for exam- ple, also gave rise to a new global media public and a sense, at least in affl uent Western societies, to share global concerns. The images of suffering children in Biafra evoked among Western viewers the feeling they had to act immedi- ately in order to end humanitarian emergencies in postcolonial crisis states – a politically double-edged form of empathy that bore similarities to the imperial humanitarianism of the early nineteenth century. Entirely new forms of media resonance have also been part of this constellation, for instance, the world- wide broadcasts of pop concerts, beginning with the Concert for Bangladesh in New York organized by Ravi Shankar and George Harrison (for ref ugees of the civil war), including Bob Geldorf’s Live Aid concerts for Africa in 1984 and 1985, and the Tribute to Nelson Mandela in London’s Wembley Stadium in 1988, which was watched by more than 60 million people on television.

Human rights became popular in the 1970s. They left the conference room of international organizations and became an issue for humanitarian engage- ment by individual groups, which used transnational organizational networks and media to mobilize a global audience. Only now did it appear that “the narrower or wider community of the peoples of the earth has developed so far that a violation of rights in one place is felt throughout the world,” as Kant had claimed in his foundations of a cosmopolitan law two hundred years earlier. 56 In the campaigns against individual states (for example, Chile and South Africa , but also the Soviet Union in the course of the Helsinki process), it became clear that both national and transnational actors could invoke human rights as moral and political leverage against individual states and their governments. Still, as Jan Eckel suggests in this volume for Chile, the global moral campaigns exerted pressure only on those states that wanted to be regarded internationally as democracies. The contributions by Devin O. Pendas and A. Dirk Moses point to the failure of the “legalist para- digm of war ,” according to which individual and state violations of human r ig ht s were to b e pro s e c ute d i nter n at ion a l ly a f ter 1945. T h i s pa rad ig m fa i le d because of the principle of nonintervention into the domestic affairs of sov- ereig n s t at e s , e ve n whe n gover ne d by br ut a l d ic t ator sh ip s . I nd e e d , t he c apac - ity of international law and politics to enforce the observation of rights was 56 Immanuel Kant, Pe r petu al Peac e [1795], ed. H. S. Reiss, trans. H. B. Nisbet (Cambridge, 1991), 23. 0003 Genealogies of Human Rights 21 actually weakened. The fact that the prosecution of genocide became a jus cogens of international law since 1945 has reduced neither state violence against ethnic minorities nor genocidal wars. Thus, for example, the fre- quent invocation of the genocide convention of 1948 in the civil wars of the 1960s and 1970s (Biafra , Bangladesh , or Cambodia ) never prompted U N military intervention. NGOs in the West did not undertake moral cam- paigns against the crimes committed in these states, which by far surpassed those in Chile or South Africa , because moral and political pressure could be exercised solely upon those regimes that sought membership in the “global community.” Western NGOs engaged in their work without state commission or dem- ocratic legitimation. The appeal of the humanitarian engagement of many NGOs lay precisely in their renunciation of traditional politics. These organi- zations testify less to the existence of a “global civil society” than to a grow- ing concern within the West in the late 1960s and early 1970s for the social and economic consequences of decolonization in the global south. 57 The debate about human rights politics now also resonated among governments and parliaments of Western states. Post-imperial states such as Canada and the Netherlands were especially active in human rights politics. Particularly signifi cant was the Carter administration’s abandonment in 1975–1976 of the Realpolitik of the Nixon-Kissinger era, internationally disavowed after the Vietnam War, as well as its rediscovery of human rights. Human rights not only continued to serve as an argument in the Cold War against the Soviet Union , but now fi gured as a moral imperative for the new political and economic hegemony of the United States in an era of the global integration of markets and spaces. Like the British Empire at the beginning of the nine- teenth century, the United States searched for new legitimacy in the world after its moral defeat in a war against insurgents. In addition to institutions such as the World Bank and the International Monetary Fund, which secured the leading economic position and interests of the United States, human rights became a central argument for the United States’ claims to political hegemony in the world. 58 This led to a reconfi guration of global politics that moved beyond the framework of the Cold War and ultimately paved the way for the preoccupation with human rights and humanitarian interventions since the 1990s, when the United States became the global hegemon. Western 57 See Giuliano Garavini, “The Colonies Strike Back: The Impact of the Third World on Western Europe, 1968–1975,” Contemporary European History , 16:3 (2007), 299–319. 58 See, for example, Charles Bright and Michael Geyer, “Where in the World Is America?

The History of the United States in the Global Age,” in Thomas Bender (ed.), Rethinking American History in a Global Age (Berkeley, 2002), 63–99; Bright and Geyer, The Global Condition in the Long Twentieth Century (Berkeley, forthcoming), and more specifi cally Daniel Jonathan Sargent, “From Internationalism to Globalism. The United States and the Transformation of International Politics in the 1970s,” PhD diss., Harvard University, 2008; Sarah Snyder, Human Rights Activism and the End of the Cold War: A Transnational History of the Helsinki Network (New York, forthcoming). 0003 Stefan-Ludwig Hoffmann 22 claims to political hegemony and the new humanitarianism have thus gone hand in hand, although human rights activists in NGOs have rarely recog- nized this connection. 59 4. The Demise of Communism . Beginning in the late 1940s the Soviet Union sought to promote their version of human rights within international politics, as Jennifer Amos demonstrates in her contribution. The Soviet Union took part in the Universal Declaration of Human Rights , the Genocide Convention, as well as the war crime tribunals in Nuremburg and Tokyo – a fact that was played down in the liberal democracies of the West during the Cold War and that has been forgotten since the end of Soviet-style socialism. 60 Precisely because human rights long served as a diplomatic code (or propaganda ploy) within the international arena, socialist countries had no diffi culties with par- ticipating in the U N human rights conventions and the Helsinki process in the 1960s and 1970s. This participation was motivated by hopes of international recognition of the socialist world and by trust – as it turned out, an outmoded trust – in the fact that the language of human rights would remain in the international arena (“covenants without the sword are but words,” as Hobbes wrote in Leviathan ). 61 Moreover, human rights could develop such a dynamic within the Eastern bloc only because of the Socialist rights talk that the domestic opposition was able to invoke. 62 There was no rule of law under Communist regimes, but there were laws and the promise of rights that the opposition could exploit. It is no coincidence that the only effective mass opposition move- ment in the Eastern bloc was Poland’s Solidarity, founded in 1980, a free trade union that demanded civil and social rights for workers. 63 “Socialist 59 Yves Dezalay and Bryant Garth, “Droits de l’homme et Philanthropie Hégémonique,” Actes de la recherche en sciences sociales , 121 (1998), 23–41. 60 Francine Hirsch, “The Soviets at Nuremberg: International Law, Propaganda, and the Making of the Postwar Order,” American Historical Review , 113:3 (2008), 701–730, here 710. See also, for example, Catriona Kelly, “Defending Children’s Rights, ‘In Defense of Peace’: Children and Soviet Cultural Diplomacy,” Kritika 9 (2008), 711–746, esp. 735–743. 61 Thomas Hobbes, Leviathan: The Matter, Form and Power of a Commonwealth Ecclesiastical and Civil [1651] (Oxford, 1929), p. 2, ch. 17, 128. 62 The Great Soviet Encyclopedia , for example, fi rst included an article on the Universal Declaration of Human Rights in its third edition (in the second edition of 1952 there was only on entry on the declaration of 1789, which emphasized its bourgeois “class basis”). The article in the third edition was quite positive, albeit with one restriction: “The declared rights and freedoms may be claimed by every human being, without distinction of race, skin color, sex, language, religion, political or other convictions, national or social origin, or property, birth, or other circumstances. The Soviet Union recognizes the Declaration of Human Rights as a progressive document, but refrained from voting for its passage because it contained no refer- ences to concrete measures to implement the declared rights and freedoms.” “Deklaracija prav c ˇeloveka OON Vseobšc ˇaja,” in Bol’šaja Sovetskaja E ˙ nciklopedija , 3rd ed., vol. 8 (Moscow, 1972), 47. See also “Pakty o pravah c ˇeloveka,” ibid., vol. 19 (Moscow, 1975), 93. 63 Stephen Kotkin, with a contribution by Jan T. Gross, Uncivil Society. 1989 and the Implosion of the Communist Establishment (New York, 2009), 9. 0003 Genealogies of Human Rights 23 legality” gained salience as a legal practice beginning in the early 1970s, when socialist states could no longer rely on terror and utopian promise alone. Human rights were thus not simply an invention of a small group of dissident intellectuals, as is usually assumed today. Rather, dissidents often merely took at face value (and much to the distress of authorities) the consti- tutions of state socialism or the international declarations and conventions signed by socialist countries, as the essays by Celia Donert and Benjamin Nathans argue. 64 Eastern European critics of state socialism such as Aleksandr Solzhenitsyn were long regarded in the West as antiquated representatives of Cold War anti-totalitarianism. This changed with the general disillusionment of the political Left after 1968, in particular in France . Put simply, in the 1970s the dissident replaced the revolutionary as the political paragon. 65 The fi gure of the “dissident” became an object of projection for the Western European Left, but also for conservatives and liberals: Each claimed the dissident and thus the language of human rights for their own political objectives. This distorted image of dissident intellectuals omitted (and continues to omit) many signifi cant dimensions. György Konrád’s Antipolitics of the 1980s, for example, was still skeptical about the selectivity of the moral rhetoric in both East and West and was thus aware of the competing universalisms of a liberal and a socialist human rights discourse. 66 In general, for East- Central European dissidents , human rights always remained tied to a return to national history. 67 For this reason, they never embraced the idea of a postnational “global civil society” propagated by left-liberal intellectuals of the West who in the 1990s retrospectively invoked dissidents and human rights. 68 Only in the last twenty years, in our current era of terror, humanitarian emergencies, and “global governance,” have human rights become a doxa (or secular religion, as Michael Ignatieff noted early on). 69 Nineteenth-century 64 See also Robert Horvath, The Legacy of Soviet Dissent: Dissidents, Democratisation and Radical Nationalism in Russia (London, 2005), ch. 3: “The Rights-Defenders”; Benjamin Nathans, “The Dictatorship of Reason: Aleksandr Vol’pin and the Idea of Rights under ‘Developed Socialism,’” Slavic Review , 66:4 (2007), 630 –663; Peter Bugge, “Normalization and the Limits of Law: The Case of the Czech Jazz Section,” East European Politics and Society , 22 (2008), 282–318. 65 Robert Horvath, “‘The Solzhenitsyn Effect’: East European Dissidents and the Demise of Revolutionary Privilege,” Human Rights Quarterly , 29:4 (2007), 879–907; Kristin Ross, “Ethics and the Rearmament of Imperialism: The French Case,” in Jeffrey Wasserstrom et al.

(eds.), Human Rights and Revolutions , 2nd ed. (Lanham, Md., 2007), 155–167. 66 Gyorgy Konrád, Antipolitics: An Essay (New York, 1984). 67 Michal Kopec ˇ ek, “Citizenship and Identity in the Post-Totalitarian Era: Czech Dissidence in Search of the Nation and its Future,” Tra n s i t O n l i n e . http://www.iwm.at/ . 68 Jürgen Habermas, The Postnational Constellation: Political Essays [1998], trans. Max Pensky (Cambridge, 2001); John Keane, Global Civil Society (Cambridge, 2003). 69 Ignatieff, Human Rights , 53 0003 Stefan-Ludwig Hoffmann 24 political models of empires and clashes of civilizations returned as did humani- tarian interventions. 70 H u m a n r i g h t s w e r e n o w f r e q u e n t l y g r o u n d e d o r r e j e c t e d in cultural rather than political terms, for instance, in the debate over Asian values in the early 1990s. 71 Cultural relativism, which colonial empires had invoked after 1945 in order to oppose the implementation of human rights in their colonies, was now taken up by postcolonial states against the hegemonic human rights claims of the West. Postcolonial legal scholars too regarded human rights now merely as an imperialist strategy of the West masked as universalism . 72 Conversely, attempts to locate human rights in the cultures of the world (for instance, in an African or Confucian human rights tradition) tended to obscure the fact that there had been political contestations between and among Western, socialist, and postcolonial human rights claims, through which human rights had become universalized in the fi rst place. Those soli- darity rights that were recognized by the UN over the past thirty years (in almost every case opposed by the United States ), for instance, the “right to development” outlined in the early 1970s by Senegalese international legal expert Kéba M’Baye and adopted in a U N declaration in 1986, have scarcely counted in the West as valid human rights norms. 73 Attempts by the UN to tie human rights regimes to development policies in order to respond to the social and economic consequences of globalization (for instance, at the Vienna Conference of 1993) have had little impact. Instead the global discrep- ancy between rich and poor has increased dramatically over the past decades, while visual representations of the “Third World” have shifted from develop- ing nations to suffering individuals, victims of natural or manmade disasters without political agency in the international arena. Contestations between different human rights norms continues to exist (the Chinese government, for example, has invoked solidarity rights since the 1990s, opposing them to the individual rights demanded by the West). 74 Nevertheless, the Western perspective on human rights and humanitarianism has gained hegemony on a global scale. Only now have enlightened experts 70 Samuel P. Huntington, “The Clash of Civilizations?” Foreign Affairs , 72:3 (1993), 22–49; Huntington, The Clash of Civilizations and the Remaking of World Order (New York, 1996). 71 On the rise of cultural relativism as an argument against human rights in the 1980s see Burke, Decolonization , ch. 5. On the Asian values debate see Joanne R. Bauer and Daniel A. Bell (eds.), The East Asian Challenge for Human Rights (Cambridge, 1999). 72 See, for example, Makau Mutua, Human Rights: A Political and Cultural Critique (Philadelphia, 2002); Anghie, Imperialism , chs. 5, 6. 73 For an eloquent defense of solidarity rights see Upendra Baxi, “The Development of the Right to Development,“ in Janus Symonides (ed.), Human Rights: New Dimensions and Challenges (Dartmouth, 1998), 99–116; Baxi, “Voices of Suffering, Fragmented Universality, and the Future of Human Rights,” in Burns H. Weston and Stephen P. Marks (eds.), The Future of International Human Rights (Ardsley, N.Y., 1999), 101–156. 74 Jeremy T. Paltiel, “Confucianism Contested: Human Rights and the Chinese Tradition in Contemporary Political Discourse,” in Wm. Theodore de Bary and T Weiming (eds.), Confucianism and Human Rights (New York, 1998), 270–296; Stephen C. Angle, Human 0003 Genealogies of Human Rights 25 and managers of the global – Western specialists in international law, social scientists, and NGOs – discovered human rights as their cause. And only now has this cosmopolitan elite begun to invent a history of human rights that extends back into antiquity and is supposed to demonstrate the evolution of universal morality.

Human Rights as History The doxa of a society, those convictions that are tacitly accepted as natu- rally given, can be recognized as such only in the moment that they lose their self-evidence, that is, when they become historical. Does approaching human rights as history implicitly call into question the universality of those rights?

For how can human rights be universal if they are – as the contributors of this volume argue – the product of a global history of violence and confl ict?

If we understand this history as one of “hegemonic contestations” (Martti Koskenniemi ) that possesses no telos and could also have occurred entirely differently, as it becomes clear that there was not one but several competing u n iver s a l i sm s , e ach able to i nvoke hu m a n r ig ht s? More over, t h i s c ont e nd s t h at the emergence of global law in the twentieth century went hand in hand with the fragmentation of the means for its enforcement. Should we thus agree with critics from Edmund Burke to H a n n a h A rendt who preferred the rights of citi- zens to human rights because only the state, and not “humanity,” represented a historically viable political entity that could guarantee concrete rights? Does the invocation of absolute morality (or moral emergencies) in politics ulti- mately lead to violence, as Arendt holds in her reading of the predicament of Captain Vere (of the ship Rights of Man ), in Melville’s Billy Budd , since politics is about confl ict and compromise and not about good and evil? 75 And yet it was Arendt who insisted, as quoted at the beginning of this introduction, that human beings have the right to have rights. According to Arendt, how- ever, this right should be derived not from the teleologically loaded laws of “history” or “nature,” but rather from concrete, contradictory human experi- ences and the unpredictable histories resulting from them. 76 Or as Edmund Burke wrote in a letter to a correspondent in Paris in November 1789: “You have t heories enoug h concer n i ng t he rig hts of ma n; it may not be a m iss to add a small degree of attention to their nature and disposition. It is with men in the concrete; it is with the common human life, and human actions, that you are to be concerned.” 77 Rights and Chinese Thought: A Cross- Cultural Analysis (Cambridge, 2002), 239–249; Mireille Delmas-Marty and Pierre-Étienne Will (eds.), La Chine et la démocratie (Paris, 2007). 75 Hannah Arendt, On Revolution (New York, 1963), 74–83. 76 See Stefan-Ludwig Hoffmann, “Koselleck, Arendt, and the Anthropology of Historical Experience,” History and Theory , 49 (May 2010), 212–236. 77 Letter to Charles-Jean-François Depont, in Edmund Burke, Further Re \b ections on the Revolution in France , ed. Daniel E . Ritchie (Indianapolis, 1992), 13. 0003 Stefan-Ludwig Hoffmann 26 In this respect, writing the history of human rights has only just begun.

Human rights as a history of political contestations, as proposed in this vol- ume, does not have to diminish our moral convictions about such rights. 78 On the contrary, by gaining an insight into the historical contingency of our normative concepts, their emergence from concrete experiences of violence and confl ict, we may comprehend better why the politics of human rights continues to fail in our time. 78 Similarly Thomas L. Haskell, “The Curious Persistence of Rights Talk in the ‘Age of Interpretation,’” Journal of American History , 74:3 (1987), 984–1012, here 985–86, as well as Hans Joas, “The Emergence of Universalism: An Affi rmative Genealogy,” in Peter Hedström and Björn Wittrock (eds.), Frontiers of Sociology (Leiden, 2009), 15–24. 0003 Pa rt I THE EMERGENCE OF HUMAN RIGHTS REGIMES 0003 0003 29 1 The End of Civilization and the Rise of Human Rights The Mid-Twentieth-Century Disjuncture * Mark Mazower The recent upsurge of interest in the history of human rights must surely be seen as one of the more productive intellectual consequences of the end- ing of the Cold War. The early 1990s spawned hopes for the emergence of a new world order in which the United Nations would be able to regain some of the lustre it had lost while sidelined over the preceding decades, and the sense of the start of a new historical epoch directed scholarly attention back toward the start of the previous one, in 1945. The increasingly grim spiral of events thereafter if anything confi rmed the importance of historicizing the human rights phenomenon: The war in the former Yugoslavia and genocide in Rwa nd a put in question the robustness of the human rights regime that had been established after the Second World War, while the advent of a unilater- alist American administration with a thinly veiled contempt for the U N has inspired several American historians to write accounts of the internationalism of earlier administrations in an effort to remind people of the alternatives. The year 1945 was not a Year Zero for internationalists: The roots of the U N were much more fi rmly embedded in the past than its founders felt it was expedient to admit. Nevertheless, in at least one crucial respect, 1945 did repre- sent a break with the past. It is commonplace to regard that year as the ‘end of the European era’, meaning the end of an era in which the European Powers effectively dominated world politics; but this collapse of European power car- ried with it something rather less discussed – the parallel erosion of Europe’s normative dominance of international affairs. Between 1815 and the war, a system of states had grown up that was based on the primacy of European power and values, and the rationalization of their imperial expansion in terms of the spreading of civilization and its accompanying rights. The First World Wa r had dented confi dence in the idea of Civilization (with a capital C), but it was, above all, the rise of Nazism that spelled its doom. The rise of a new order after 1945 was based on new, or at least, substantially adapted principles, and, * An earlier and shorter version of this essay was published in International Affairs , 82:3 (2 0 06), 553 – 56 6 . 0003 Mark Mazower 30 for perhaps the fi rst time, the question of rights was detached from the notion of civilization. This essay explores the rise and fall of the concept of civilization as an ordering principle for international politics, a concept bound up with the idea of freedom, humanity and rights, and one whose demise could not but affect the projection and political signifi cance of those values as well.

It is not only in our own day that the 1815 Congress of Vienna has been recog- nized as the inauguration, not merely of the post-Napoleonic settlement, but more generally, of a new era in international governance. After both the First and Second World Wars, we fi nd writers turning their attention back to 1815.

But one of the most striking interpretations of the Congress’s achievement was one of the earliest, and least known. I refer to a study (really an exercise in special pleading) that appeared in the same year as the Congress itself, a study that was penned by that extraordinary political chameleon the Abbe de Pradt . In his time, de Pradt had been a royalist, a counter-revolutionary and a confi dant of Napoleon . But he was also friendly with Benjamin Constant – the two men frequented the salon of Madame de Staël at the restoration – and it is Constant’s spirit that permeates Pradt’s book. In it, he disavows the defeated Emperor: Napoleon, he writes, has covered Europe with ‘wrecks and monuments’. The task of the victors was to eradi- cate ‘the military spirit’ and to return Europe to ‘its civil state’. He went on to say that this required them to recognize the ‘rise of a new power called opinion’ and what this power carried with it – civilization. It was civilization, he wrote, that ‘divinity’, that had emerged through commerce and communi- cation over the previous centu r y, delegitimizing despots, prompting belief in the idea of humanity, and bringing war into disrepute. ‘Nationality, truth, publicity – behold the three fl ags under which the world for the future is to march.… The people have acquired a knowledge of their rights and dignity’.

Europe had been military; now it would become commercial and constitu- tional. A colonial order would carry civilization and spread European tastes around the world; the process had already worked in Russia and North America, and had been started in Egypt. I t s hou ld b e appl i e d to t h e O t to m a n empire as well, through a ‘moral not a territorial conquest’. 1 The term ‘civilization’ itself had emerged in both Britain and France sev- eral decades earlier, around the middle of the eighteenth century. It connoted both the process by which humanity emerged from barbarity, and by exten- sion the condition of a civilized society, and in particular, the sense of ‘a cer- tain security of the person and property’. What is striking about the word’s development after Napoleon’s defeat is its increasingly programmatic politi- cal coloration. Civilization now conveyed – as in de Pradt’s account – a lib- eral program for Europe based on cooperation rather than conquest. Guizot’s History of Civilization in Modern Europe defi nes civilization as ‘the history of the progress of the human race toward realizing the idea of humanity’, and 1 Abbe de Pradt, The Congress of Vienna (Philadelphia, 1816), 32–42, 202–215. 0003 End of Civilization and the Rise of Human Rights 31 highlights the key themes for the future – the ‘expansion of mind’, the full and rational enjoyment of the human faculties, and the spread of rights. Guizot acknowledged that there had been other civilizations – in Egypt and India – in the past. But European civilization was superior because it combined cultural community with an acceptance of political diversity. J. S. Mill, perhaps infl u- enced by de Tocqueville, offered a gloomier assessment in his 1836 essay: It is true, he asserted, that the ‘present era is the era of civilization in the narrow sense’ (i.e., as the converse of barbarism), and that the elements of civilized life existed in modern Europe (and especially in Great Britain ) ‘in a more emi- nent degree and in a state of more rapid progression, than at any other place or time’. But Mill was not completely positive about this; civilization – he noted, striking a Tocquevillean note – meant that individuals mattered less, and masses more. It bred materialism and avarice, and popular literature that pandered to base sentiments rather than improving them. 2 These uncertainties did not vanish, and they were to reappear with a vengeance as we shall see (often inspired by the same force that had given de Tocqueville pause – the rise of the United States); but for the rest of the nineteenth century, it was the relatively sunny version that came to dominate thinking about international affairs. For Guizot, civilization had been what united the states of Europe. But what about Europe’s relations with the rest of the world? Here de Pradt’s formulation foreshadowed the tropes of the civilizing mission that emerged with the age of imperialism. If civilization was located in Europe, then Europe’s overseas expansion required deciding how far civilization was for export. One fertile intellectual elaboration of this belief emerged – as we have learned from the work of Martti Koskenniemi and Antony Anghie – through the new discipline of international law. 3 A rationalization of the values of the Concert of Europe, international law was designed as a moral-procedural aid to the preservation of order among sovereign states, and its principles were explicitly stated as applying only to civilized states much as Mill saw his principles of liberty as applying solely to members of ‘a civilized community’.

In 1845 the infl uential American international lawyer Henry Wheaton had actually talked in terms of the ‘international Law of Christianity’ versus ‘the law used by Mohammedan Powers’; but within twenty or thirty years, such pluralism had all but vanished. According to the late-nineteenth-century legal commentator W. E. Hall, international law ‘is a product of the special civi- lization of modern Europe and forms a highly artifi cial system of which the principles cannot be supposed to be understood or recognized by countries 2 F. Guizot, History of Civilization in Europe (Penguin, 1997), 15–31; J. S. Mill, ‘Essay on Civilization’ (1836); and M. Levin, Mill on Civilization and Barbarism (London, 2004). The classic study is E. Benveniste, ‘Civilization. Contribution a l’histoire du mot’, in his Problemes de linguistique generale , 2 vols. (Paris, 1971). 3 M. Koskenniemi, Gentle Civiliser of Nations: The Rise and Fall of International Law, 1870 –1960 (Cambridge, 2002); A. Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge, 2004). 0003 Mark Mazower 32 differently civilized.… Such states only can be presumed to be subject to it as are inheritors of that civilization’. 4 Thus conceived, international law defi ned the problem of global commu- nity in terms of the nature of the relationship between a civilized Christendom and the noncivilized but potentially civilizable non-European world. States could join the magic circle through the doctrine of international recognition, which took place when ‘a state is brought by increasing civilization within the realm of law’. 5 In the 1880s James Lorimer suggested there were three categories of humanity – civilized, barbaric and savage – and thus three cor- responding grades of recognition (plenary political; partial political; natural, or mere human). Most Victorian commentators believed that barbaric states might be admitted gradually or in part. Westlake proposed, for instance that ‘Our international society exercises the right of admitting outside states to parts of its international law without necessarily admitting them to the whole of it’. Others disagreed: Entry ‘into the circle of law-governed countries’ was a formal matter, and ‘full recognition’ all but impossible. 6 The case of the Ottoman empire exemplifi ed this ambivalent process.

European states had been making treaties with the sultans since the sixteenth century. But following the Crimean War the empire was declared as lying within the ‘Public Law of Europe’ (a term which some commentators then and now saw as the moment when international law ceased to apply only to Christian states but which in my opinion is better viewed as a warning to Russia to uphold the principles of collective consultation henceforth rather than trying to dictate unilaterally to the Turks). In fact, despite its internal reforms, the empire was never regarded in Europe as being fully civilized, the capitulations remained in force, and throughout the nineteenth century the chief justifi cation of the other powers for supporting fi rst autonomy and then independence for new Christian Balkan states was that removing them from Ottoman rule was the best means of civilizing them and securing property rights and freedom of worship.

In fact, the spread of rights could be tied directly to a willingness to over- ride the formal sovereignty of non-European powers, and law became a mech- anism for justifying differential policies toward the sovereignty of different types of states. After the Franco-Prussian War, international lawyers devised 4 H. McKinnon Wood, ‘The Treaty of Paris and Turkey’s Status in International Law’, American Journal of International Law , 37:2 (April 1943), 262–274; Hall quoted by Wight, ‘The Origins of Our States-System: Geographical Limits’, in his Systems of States , ed. Hedley Bull (Leicester, 1977), 115–116. See also Lydia Liu, “The Desire for the Sovereign and the Logic of Reciprocity in the Family of Nations,” Diacritics , 29:4 (1999), 150 –177. 5 W. E . Hall, A Treatise on International Law (1884) cited by A. Anghie, ‘Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law’, Harvard International Law Journal , 40:1 (1999), 1–80. 6 Lorimer in G. Gong, The Standard of ‘Civilization’ in International Society (Oxford, 1984), 49; Westlake in Anghie, ‘Finding the Peripheries’; Hall in Wight, ‘The Origins of Our States- System’, 115–116. 0003 End of Civilization and the Rise of Human Rights 33 the notion of belligerent occupation – a state of affairs in which a military occupant interfered as little as was compatible with military necessity in the internal affairs of the occupied country. This was so as not to prejudice the rights of the former ruler of that territory, who was regarded as remaining sovereign until a peace settlement might conclude otherwise. But belligerent occupation was a compact solely between so-called civilized states not to uni- laterally challenge each other’s legitimate right to rule. In the case of Ottoman territory, for instance, the powers felt no such inhibitions: The Russians in Bulgaria in 1877, the Habsburgs in Bosnia the following year, and the British in Egypt in 1882 all demonstrated through their extensive rearrangement of provincial administrations that, although they would allow the Ottoman sul- tan to retain a fi g leaf of formal sovereig nt y, in fact the new theor y of belliger- ent occupation did not apply in his lands. Thirty years later, the Austrians (in 1908) and the British (in 1914) went further: On both occasions they unilater- ally declared Ottoman sovereignty over the territories they were occupying at an end, suggesting that whatever had or had not been agreed at Paris in 1856, by the early twentieth century, the Ottoman Empire was regarded once again as lying outside the circle of civilization. (The fact that it was a Muslim power was certainly not irrelevant to this. In 1915, when the French and Russians prepared a diplomatic protest at the mass murder of Ottoman Armenians, their initial draft condemned the massacres as ‘crimes against Christendom’.

Only when the British mentioned that they were worried over the possible impact of such a formulation on Indian Muslim opinion was the wording changed to ‘crimes against humanity’.) If the Ottoman empire was, as it were, semicivilized, then sub-Saharan Africa – site of the main European land grab in the late nineteenth century – was savage. European and American lawyers extended the notion of the protectorate – originally employed for new European states such as Greece – to the new colonial situation, ostensibly as a way of shielding vulnerable non-European states from the depredations of other European powers, but really to avoid complications among the powers which might trigger further confl ict. In Africa itself, the spread of civilization was a useful liberal justifi ca- tion for expansion, and appeared prominently in France in particular, where the colonial lobby was fi ghting hard after 1871 to fi nd a reason to deploy the resources of the Third Republic overseas after the country’s humiliation in the Franco-Prussian War. Geographers, economists and administrators all stressed France’s obligation to ‘contribute to this work of civilization’: Such a contribution was now seen as a mark of national greatness. 7 Yet in the increas- ingly racialized worldview of late-nineteenth-century European imperialism, it was above all in Africa that the civilizing mission was put in question as 7 The French debate may be followed in A. Conklin, A Mission to Civilize: The Republican Idea of Empire in France and West Africa, 1895–1930 (Stanford, 1997), quote from p. 12; and J. P. Daughton, The Civilizing Mission: Missionaries, Colonialists and French Identity, 1880 –1914 (Berkeley, 2002). 0003 Mark Mazower 34 colonial experts cast doubt on Africans’ readiness to take advantage of what was being offered them. From such a perspective, protectorates might be a way of slowing down social transformation – in the interests of ‘native customs’ – as much as they were of introducing it. ‘Much interest attaches to legisla- tion for protectorates, in which the touch of civilization is cautiously applied to matters barbaric’, wrote a commentator in the Journal of the Society of Comparative Legislation in 1899. Yet the concept of civilization remained vital. The treaty that followed the Berlin Colonial Conference of 1884–1985, which marked the attempt to diplomatically manage the scramble for Africa, talked of the need ‘to initiate the indigenous populations into the advantages of civilization’. The Congo Free State was one disastrous outcome. 8 In this way, Victorian international law divided the world according to its standard of civilization. Inside Europe – and in other areas of the world colonized by Europeans – there was the sphere of civilized life: This meant – roughly – property rights; the rule of law on the basis (usually) of codes or constitutions; effective administration of its territory by a state; warfare conducted by a regular army; and freedom of conscience . The fundamental task of international law in this zone was to resolve confl icts between sover- eign states in the absence of an overarching sovereign. Outside this sphere, the task was to defi ne to terms upon which sovereignty – full or partial – might be bestowed. It was in the non-European world that the enormity of the task required in acquiring sovereignty could thus best be grasped. There, too, the potential costs – in terms of legalized violence – of failing to attain the stan- dard of civilization were most evident. Until well after the First World War, in fact, it was axiomatic that ‘interna- tional law is a product of the special civilization of modern Europe itself’. Siam was admitted to the Hague conferences as a mark of respect; but in China, where the Boxer Rebellion was put down with enormous violence – on the grounds that it was ‘an outrage against the comity of nations’ – the unequal treaties remained in force. It was only the Japanese who seriously challenged the nineteenth-century identifi cation of civilization with Christendom. Having adhered to several international conventions, and revised their civil and crimi- nal codes, they managed to negotiate the repeal of the unequal treaties from 1894 onwards, as well as to win back control over their tariffs, and their vic- tory over Russia in 1905 simply confi rmed their status as a major power. Not surprisingly, the Young Turks – desperate to repeal the humiliating capitula- tions – could not hear enough of the Japanese success. The Japanese achievement confi rmed that the standard of civilization being offered by the powers was capable of being met by non-Christian, non-Euro- pean states. But the Japanese achievement was also unique and precarious.

After the ending of the Russo-Japanese War, the Second Hague Conference of 1907 talked of ‘the interests of humanity, and the ever progressive needs of civ- ilization’. But could civilization (with a capital C) really ever be universalized? 8 A. Gray, ‘West Africa’, Journal of the Society of Comparative Legislation (189 9), 129. 0003 End of Civilization and the Rise of Human Rights 35 Doubts were growing. German and Italian jurists essentially ruled out any non-European power receiving full recognition; the prominent Russian jurist de Martens was equally emphatic. As for the empire builders, in Africa, in par- t ic u la r, as wel l as i n t he Paci fi c , m a ny l ib era ls a nd G lad ston ia n s c a me to ter m s with imperialism at century’s end – as Saul Dubow has recently reminded us – because they thought in terms of a kind of an imperial cosmopolitanism or commonwealth, in which individual peoples might preserve their own distinc- tive cultures. Where necessary, of course, civilized powers had to rule others to ensure this. 9 Although it inherited many of these ways of imagining the relationship between empire and sovereignty, the League of Nations, established at Versailles after the First World War, adapted and transformed the idea of international civilization. A permanent international organization whose members included Abyssinia, Siam, Iran and Turkey was already something with a very different global reach from the old European conference. That was chiefl y thanks to the Americans, not the British, whose schemes for a beefed-up version of the old Concert of Europe were shot down by the heavier fi repower of messianic Wilsonian liberalism; Whitehall’s idea for an interna- tional organization run by a small group of select powers lost out to his vision of ‘a general association of nations’.

Sovereignty was henceforth explicitly shaped by the doctrine of national self-determination in its most anti-autocratic and optimistic guise so that the task for the civilized nations became that of guiding the less, or uncivilized, into the way of national self-realization. ‘Imperialism’ was suddenly once more a term of rebuke, and trusteeship and mandates became – in the minds at least of some idealistic or self-deluded British civil servants – something entirely different from prewar empire building. 10 On the other hand, the new Society of Nations in Geneva still depended on the same civilizational hierarchies that had underpinned so much pre-1914 liberal thought: The peace settlement made this crystal clear. (Curzon was more honest than his colleagues when he remarked that the British were sup- porting the doctrine of self-determination because they believed they would benefi t more from it than anyone else.) In eastern Europe, the victors at Versailles bestowed sovereignty upon the so-called New States, but insisted upon instituting League oversight of their protection of the rights of their national minorities. Should the new minorities rights regime be imposed on established defeated states such as Germany? That was not deemed necessary, still less to universalize it to apply to Britain, France or the United States. 9 S. Dubow, ‘The New Age of Imperialism?’ Professorial lecture, Sussex, 19 Oct. 2004; see also R. Koebner and H. Dan Schmidt, Imperialism: The Story and Signi\f cance of a Political Word, 1840 –1960 (Cambridge, 1965). 10 A. Zimmern, The League of Nations and the Rule of Law, 1918–1935 (1936); James C.

Hales, ‘The Reform and Extension of the Mandate System’, Transactions of the Grotius Society (1940), 153–210; W. Roger Louis, ‘Great Britain and the African Peace Settlement of 1919’, American Historical Review , 71:3 (1966), 875–892, here 875. 0003 Mark Mazower 36 Minority rights were, in other words, a badge of the new states’ secondary and relatively uncivilized status, their need for tutelage in the exercise of their own sovereignty. This was bad enough for East European politicians, but it was considerably less humiliating than the fate assigned to those outside Europe.

In Egypt, which was not, of course, a mandate, the British imprisoned the leading Egyptian nationalists and made it clear that Wilson’s new dawn did not apply to them. Not surprisingly, what one historian calls ‘the Wilsonian moment’ was greeted with demonstrations and protests from North Africa to China. Even Japanese diplomats felt rebuffed when their proposed racial equality clause was summarily dismissed by the British and the Americans. 11 The other former Ottoman lands were brought within the new mandate system whose tripartite system classifi ed non-European societies on the basis of their likely proximity to ‘existence as independent nations’. The Arab prov- inces of the Middle East became Class A mandates – to the fury of their inhabitants, whereas former German colonial possessions in central Africa and elsewhere were placed in the B and C classes, to be administered as ‘a sacred trust for civilization’ until such time as, in the long-distance future, they might be fi t to govern themselves. Smuts, a powerful infl uence on the mandate system as a whole, and keen to see the dominions allowed to acquire colonial possessions themselves, thought the time was never: The B and C class colonies were ‘inhabited by barbarians, who not only cannot possibly govern themselves but to whom it would be impracticable to apply any ideas of political self-determination in the European sense’. 12 All of this was, for British liberal imperialists, at least, still entirely in har- mony with the idea of spreading civilization around the world. They hailed victory over the Germans in 1918 as confi rmation of the fundamental harmony between empire – at least in its British incarnation – and the spread of civi- lized values. The Round Table group offered Britain as a moral example for the world and saw empire as a way of defending the weak against the unscru- pulous. It was, essentially, an exercise in altruism. In his 1919 The Expansion of Europe , the ‘forgotten giant’ of interwar British liberalism, Ramsay Muir, described the empire as the ‘supreme expression of the very spirit of Liberalism’ and thought the British victory would allow ‘the victory of Western civiliza- tion’, by allowing that ‘extension of the infl uence of European civilization over the whole world’ that had been such a feature of the previous centuries. People wrongly dismissed this process, he went on, as ‘imperialism’ – a term suggesting ‘brute force, regardless of the rights of conquered peoples’. In fact, it was all for the best: ‘the civilization of Europe has been made into the civilization of the world’. The philosopher Alfred Whitehead was similarly optimistic. In his 1933 11 E . Manela, ‘The Wilsonian Moment and the Rise of Anticolonial Nationalism: The Case of Egypt’, Diplomacy and Statecraft , 12:4 (2001), 99–122; N. Shimazu, Japan, Race and Equality: The Racial Equality Proposal of 1919 (London, 1998). 12 A. W. Brian Simpson, Human Rights and the End of Empire: Britain and the Genesis of the European Convention (Oxford, 2001), 146. 0003 End of Civilization and the Rise of Human Rights 37 The Adventure of Ideas he depic ted t he r ise of t he We st i n ter m s of t he spre ad of rights and the idea of freedom: ‘The growth of the idea of the essential rights of human beings, arising from their sheer humanity affords a striking example in the history of ideas. Its formulation and its effective diffusion can be reckoned as a triumph – a chequered triumph – of the later phase of civilization’. 13 Such confi dence did not last long beyond Hitler’s triumph. But even before then others, less wedded to empire, were driven to doubt. Some followed Freud’s diagnosis: Civilization was a fragile crust barely covering harsher instincts shared by Europeans and non-Europeans alike. For others, the Bolshevik Revolution and the rise of socialism not only threatened bourgeois values, but could also be seen in racialized guise as the spearhead of an Asiatic threat to Europe. Meanwhile, Europe itself was tearing itself apart through political polarization, as the constitutional regimes established across the con- tinent after 1919 gave way to varieties of right-wing authoritarianism. The crisis of democracy in Europe made liberals conscious that their own values and hierarchies of rights required extensive revaluation – replacing the old bourgeois stress on protection under the law with a new recognition of the lower classes’ social and economic needs – if they were to compete in the mod- ern world against the temptations of Left and Right. To be civilized, in the old liberal sense, was not necessarily to be modern – quite the contrary: It was to prioritize a set of civil liberties which many Marxist and fascist political theorists dismissed as antiquated and self-serving. Fears of biological decline, intensifi ed by the bloodletting of the war, also merged with vitalist conceptions of history to reinforce fears about Europe’s waning position in the world. Spengler’s gloomy survey confi rmed the idea that its civilization faced inevitable organic decline. Race popularizers such as Lothrop Stoddard warned of the white man’s peril in the face of the teem- ing hordes of the coloured races and saw civilization as leading to a ‘growing underclass of individuals who cannot keep up’. Common to both was a deep anxiety about cultural and social mixing and a sense of foreboding as power shifted toward what the classicist and League activist Gilbert Murray called ‘the politically immature peoples of the world’. Like his friend Jan Smuts, Murray was deeply worried that ‘the domination of the white races was shaken’. Who else had the power or the essential fairness of mind to distribute the world’s territories fairly, to apportion the Middle East between Turks and Armenians, Jew and Arabs, so that each would have a national home where they might fl ourish and play their part in the ‘ultimate solidarity among the peoples of the world’. Paternalism and the language of humanity fused here so deeply as to be inextricable. 14 13 R. Muir, The Expansion of Europe (London, 1919), xi, 2; see also R. Grayson, Liberals, International Relations and Appeasement: The Liberal Party 1919 –1939 (London, 2001); Whitehead cited in C. Wilcox, Robert Red\f eld and the Development of American Anthropology (Lexington, Ky., 2004), 125–126. 14 J. Morefi eld, Covenants without Swords : Idealist Liberalism and the Spirit of Empire ( P r i nc e ton , 2 0 05), 106 –108. 0003 Mark Mazower 38 Rather different in spirit was the Spengler -inspired work of Gilbert Murray’s son-in-law, Arnold Toynbee. Toynbee too wanted to think through the impli- cations of the war, but he sought to make Europeans realize that their civiliza- tion was merely one among many and to accept the loss of their central place in the world. Having imbibed ancient Greek at school, he saw the tragic cycle of Hellenic civilization as foreshadowing the fate of all future civilizations. ‘I am conscious of having a certain “down” on Western civilization’, Toynbee wrote to his father-in-law in 1930, attributing it ‘partly to the effect of the War, which for anyone of my age, is bound to seem the chief expression of Western civilization, so far, in one’s own lifetime, and partly it is the effect of a classical education’. But unlike Spengler, Toynbee did not see civilizations as closed – he did not share Spengler’s Herderian conception of cultural unity – and he increasingly detected spiritual progress and meaning amid the collapse of defunct and exhausted civilizations. 15 A not dissimilar discourse of civilizational relativity was also emerging from outside Europe at this time. The war had accentuated long-standing criticisms by Muslim, Chinese and Japanese intellectuals of the pretensions of Western claims to civilizational supremacy and in the immediate aftermath of the ‘Wilsonian moment’ many talked about Asia as an alternative civiliza- tional force, one which – unlike the Europeans – would naturally fi ght for the ‘rights of nations’ around the globe. Tagore, for one, described the European confl ict as suicidal, the product of excessive competitiveness and a love of vio- lence fed by an addiction to industry and science. 16 But as the 1920s went on, such talk subsided, and in any case, most European liberals were sublimely indifferent to extra-European critiques of this kind.

They were, in this sense, Hegelians, uninterested in what one interwar histo- rian termed ‘all that human misery which prevails in the vast spaces of Asia, Africa and South America, where thousands of millions of men and women have lived, worked and died, leaving no memorial, contributing nothing to the future’ 17 . What did give these latter-day Victorians pause for refl ection was not Indian or Japanese criticism, nor even the rise of the USSR (hailed by the Webbs as a ‘new civilization’ ), but the Nazi seizure of power in 1933. It was this that really worried the British historian H. A. L. Fisher as he completed his best-selling history of Europe. Sounding like some latter-day de Pradt, he insisted Britain should not withdraw from the Continent if it wished peace to be preserved. Yet it was as though the era that de Pradt had heralded more than a century earlier was drawing to a close. Fisher saw unavoidable threats to peace and liberty in modern science, which allowed new despotisms to tyr- annize the masses – ‘the spiritual servitude of the totalitarian state’ – and per- mitted the destruction of entire cities by aerial bombing. His concluding plea that Europeans remember they were ‘trustees for the civilization of the world’ 15 W. McNeill, Arnold Toynbee: A Life (Oxford, 1989), 161. 16 Cemil Aydin, The Politics of Anti-Westernism in Asia: Visions of World Order in Pan-Islamic and Pan-Asian Thought (New York, 2007), 114. 17 H.A.L . Fisher, A History of Europe (London, 1935), 3 vols. vol. 3, 1219. 0003 End of Civilization and the Rise of Human Rights 39 sounds half-hearted and unconvinced. He was keenly aware that the peoples of the Continent had already once allowed their divisions to lead to confl ict and that this had had a dramatic impact on the ‘place of Europe in the world’ and destroyed its ‘moral unity’. Now, he wrote in 1935, it faced a choice: a new war which would lay ‘civilization in ruins’, or work toward a permanent organization of the peace, a new period of plenty and well-being. The latter meant continuing to have confi dence in the experiment of the League of Nations. But the expansion of the League had itself made it less acceptable to use the old Eurocentric language. In 1929, for instance, Sir John Fischer Williams confessed that ‘the concept of “civilized society” as a com- mu nit y of nations or States distinc t from the rest of the world no longer corre- sponds with the main facts of contemporary life’. According to a French jurist in 1930, ‘The family of nations is the totality of states [civilized and uncivi- lized] and other subjects of international public law’. Writing in The Listener , Prof. H. A. Smith of London University drew attention to some of the con- sequences; the age of what we would call humanitarian interventionism was over: ‘In practice, we no longer insist that States shall conform to any common standards of justice, religious toleration and internal government. Whatever atrocities may be committed in foreign countries, we now say that they are no concern of ours.… This means in effect that we have now abandoned the old distinction between civilized and uncivilized States’. 18 Nazism’s rise was particularly worrying because the Germans were among the most highly ‘civilized’ peoples of Europe, so civilized indeed that they had not been made subject to the minorities rights treaties at Versailles. The implications, therefore, of their rejection of the premises of international law were acute; the very foundations of the old system were being thrown into question from within Europe itself. ‘European civilization has shaped mod- ern International Law’, noted a London University professor in 1938. ‘But is European civilization still what it was, and if not, how do the changes affect international law?’ 19 ‘International law is seriously discredited and on the defensive’, commented another. Cordell Hull, the U.S. Secretary of State warned, in an address of June 1938, of a world ‘growing internationally more and more disordered and chaotic’. One of his assistants, Francis Sayre, fol- lowed a few days later: ‘The supreme question which we and all the world face today is whether or not we are to live henceforth in a world of law or a world of international anarchy’. 20 Of course, for many German jurists, this was a false dichotomy, or better, false consciousness. The world had always been shaped on the basis of power, and the language of international civilization and humanity had merely 18 G. Schwarzenberger, ‘The Rule of Law and the Disintegration of International Society’, Transactions of the Grotius Society , 22 (1937), 66. 19 Gong, Standard of ‘Civilization’ , 84–85; W. Friedmann, ‘The Disintegration of European Civilization and the Future of International Law’, Modern Law Review 194:2 (Dec. 1938), 194 – 214. 20 Gong, Standard of ‘Civilization’ , 57; Schwarzenberger, ‘The Rule of Law’, 66. 0003 Mark Mazower 40 masked the claim to power of the victors at Versailles. For Carl Schmitt, a state could try to identify itself with humanity ‘in the same way as one can misuse peace, justice, progress and civilization in order to claim these as one’s own and to deny the same to the enemy’. It was not just the Nazis’ indiffer- ence to the premises of interwar liberal jurisprudence that was so fatal to the continued faith in the power of international law; it was the way they subverted the traditional division of the world between (civilized) Europe and (non-civilized) Rest. This was clear from the spring of 1939. By creating a protectorate out of much of prewar Czechoslovakia, they brought a colonial constitutional institution to Europe itself, and made it clear that they would treat their racial inferiors as colonial subjects. Churchill and others pretended that what was happening in Europe had no obvious relevance to the fate of the empires; but others knew better. Europeans, wrote Aime Cesaire, were learning what it was like to be treated as colonial subjects. Suddenly they were discovering the value of human rights. But could they seriously main- tain the old dichotomy between the defence of rights at home and the depri- vation of rights abroad? 21 The short answer was: They could try. After the war, the United Nations committed itself to fi ghting for human rights, but it made no formal com- mitment to forcing imperial powers to disgorge their colonies. Empire, as Fred Cooper and Jane Burbank argue, was not doomed in 1945, or at least it did not seem so – and the new U N was certainly not initially an anti- imperial body. On the contrary, at San Francisco, the U.S. delegate Harold Stassen stated that it would be better for colonial peoples not to force issue of freedom: Better think about interdependence than independence. African and Asian journalists and commentators were deeply dismayed at the con- servatism of what emerged. As they understood, the founders of the UN were trying their hardest to keep the Victorian civilizational dichotomy intact. But by this point it had largely lost credibility. Few talked any longer as though there was a single civilization, let alone a single standard. International law, which had elaborated this, was in disarray; one of the conditions for the new international organization to work was its much weaker legal regime com- pared with its predecessor; far fewer legal shackles bound the Great Powers in particular in 1945 than had done so in 1919. It was the very opposite of what a latter-day Victorian such as international lawyer Hersch Lauterpacht had predicted or wanted; in his 1943 paper on the rights of man, he had argued that recognition of the fundamental rights of man had become a general constitu- tional principle of the law of ‘civilized states’. But this was perhaps to mistake the wish for the deed, for the enforceable rights regime that he had called for never came into existence. He and others (such as Quincy Wright) had hoped to see new the new international organization defending rights against tyrannical national states. Instead what they got was a body committed even more than its 21 Schmitt in Koskenniemi, Gentle Civiliser of Nations , 433. 0003 End of Civilization and the Rise of Human Rights 41 predecessor to the sanctity of state sovereignty – and this was not compatible with the sort of civilizational intervention that had been routine before 1914.

The 1948 Declaration on Human Rights, as Lauterpacht despondently noted, was little more than decoration – a substitute for a real legally binding commit- ment and a retreat from the minority rights regime of the interwar era. 22 Some commentators, such as Ian Brownlie, have recognized that the coll a- pse of the standard of civilization created a normative vacuum at the U N – for states were no longer united by virtue of regarding one another as ‘civilized’ members of the same moral community. On the contrary, the term in its orig- inal usage was denounced as insulting, and U N General Assembly resolutions specifi ed that claims about the level of civilizational backwardness could not be allowed to delay grants of independence. Brownlie argues that by the mid- 1960s at the latest, respect for human rights had come to serve as a successor norm for the international community. Indeed, one participant in the drafting of the Universal Declaration itself had segued neatly from one norm to the other, arguing that ‘civilized states’ were to be equated with respect for ‘fun- damental human rights’. 23 But this was to move too fast, for the concept of civilization itself was being transformed under the pressure of the Cold War; it was being used in a newly partial way, and increasingly relativized. Even before the war, as faith in the League of Nations and the rule of international law had waned, liberals using the language of civilization had cast it in increasingly spiritual terms. They had talked about the development of an ‘international mind’ as an emanation of the Spi r it b eyond t he st ate. Such t a l k b e c a me pa r t of t he We st ’s rei nvent ion of it s el f during the Cold War. In the crucial months of 1947 and 1948 that lay between the Truman Doctrine and the Treaty of Brussels, the idea that the United States and Western Europe were joined in some kind of a ‘spiritual union’ crept into speeches on either side of the Atlantic. Truman praised American ‘faith’ in the face of godless Bolshevism. In London Ernest Bevin talked up Britain as the bastion of Western civilization. Following the collapse of the London confer- ence of foreign ministers at the end of 1947, he told George Marshall that ‘he now felt that the spiritual consolidation of western civilization was possible’ and suggested a kind of ‘spiritual federation of the West’. 24 The Oxford historian Ernest Woodward echoed such thoughts in the lectures he gave at this juncture on ‘the heritage of Western civilization’. A western tradition, he reminded his audiences, had emerged relatively recently – perhaps only with what people just at this time starting to call the ‘scientifi c revolution’. But it was a religious tradition as well as a technological one, and it had to be defended against totalitarian materialism. America would have 22 I bid . , 391– 395. 23 Cited in Gong, Standard of Civilization , 90 –91. 24 Dianne Kirby, ‘Divinely Sanctioned: The Anglo-American Cold War Alliance and the Defence of Western Civilization and Christianity’, Journal of Contemporary History , 35:3 (July 2000), 385–412. 0003 Mark Mazower 42 to save Europe; for this was in its own interest and for the sake of the ‘good life’ of the entire world. 25 In this way, We s t e r n civilization – a term which asserted America’s role as heir to a fading Europe – became part of a beleaguered liberal tradition’s struggle against totalitarianism. American intellectuals were especially prone, naturally, to such a view, especially as they tended to worry about what one might call a spirituality defi cit in a culture increasingly defi ned for its techno- logical and especially industrial character. The United States could preserve European values and save its soul in the process. In 1941, perhaps the most prominent exponent of this view, the Chicago professor John Neff, founded the Committee on the Study of Civilization (note the singular). He had long been arguing that the United States had to save civilization as it collapsed in Europe, and that American universities in particular needed to act as agents of spiritual transformation, preaching truth and the universal values embod- ied in the Western canon. (Neff was persuaded to change the title to the more neutral Committee on Social Thought, in which form it su r vives to this day at the University of Chicago.) But others found this kind of moral absolutism anachronistic and paro- chial. The dominant paradigm in American international relations thought in the 1950s moved in an entirely different direction, toward the kind of Schmittian-infl ected cult of the national interest, of realism, propounded by Hans Morgenthau, Henry Kissinger and others. In realist thought there was little or no space for civilizational aspirations and the moral certainty that accompanied them. And even those who did take the idea of civilization seri- ously saw the postwar globalization of the idea of humanity – the extension of the idea of the Family of Man into the colonial Third World – as something which necessitated a much greater modesty about the pretensions of Western or European civilization itself. To y n b e e , for one, agreed that the world could not afford for European civilization to be ‘snuffed out’; but he was increasingly alarmed by the messi- anism he detected among the American enthusiasts for western civilization. ‘I suppose it is the fi rst phase of a coming American world empire’, he grumbled to Gilbert Murray at the time of the Truman Doctrine, which had been talked up in Time magazine – in an article on Toynbee – as ‘a crisis in Western civ- ilization itself’. Soon he was worrying about American belligerence, a much greater threat in his view than the Russians. By the time of his controver- sial 1952 Reith Lectures, Toynbee was portraying Russia as one among the many victims of western aggression and arguing that ‘Western imperialism, not Russian communism, is Enemy no.1 for the majority of the human race’.

Humanity had to place its faith, not in the United Nations – which he saw as a political association that would probably not outlast the breakup of the wartime alliance – but in the idea that ‘a unifi ed world gradually works its 25 E. L.Woodward, ‘The Heritage of Western Civilisation’, International Affairs , 25:2 (April 1949), 140 –145. 0003 End of Civilization and the Rise of Human Rights 43 way towards an equilibrium between its diverse component cultures’. This was a task that fell to academics who had to help people escape the ‘prison walls of the local and short-lived histories of our own countries and our own cultures’ and accustom them to ‘taking a synoptic view of history as a whole’.

Only in this way could one harness the ‘unprecedented degree of humanitar- ian feeling’ that had arisen, the ‘recognition of the human rights of people of all classes, nations and races’. After all, Western civilization might have uni- fi ed the world; but in this world, the eighteen non-Western civilizations that Toynbee had identifi ed (four living, fourteen extinct) ‘will assuredly reassert their infl uence’. 26 It was Neff’s Chicago colleague, the anthropologist Robert Redfi eld, who took up Toynbee’s challenge and tried to put the study of world civilizations on a scientifi c basis. Redfi eld had come to see that ‘folk cultures’ were them- selves worthy of study in the way they interacted with the forces of social and technical change to produce what he called ‘new moral orders’. Civilizational development did not lead to a single set of values – as Neff asserted – nor to disbelief, psychic disequilibrium and confusion, as the Freudians believed.

Rather, civilizations were multiple – formed out of the interaction of Western technology and moral belief systems. As an alternative to Neff’s Committee on Social Thought, Redfi eld founded a Comparative Civilizations project. Its purpose, or so he told his backers, was to ‘move towards a better understand- ing of that humanity which is widespread or universal, and on which a world community must rest’. Neff’s approach to civilization focused on European high culture; Redfi eld’s blurred the distinction between culture (from the bot- tom up, best studied in the village) and (urban) civilization, and redirected attention away from Europe, toward India, China and the Middle East in particular. 27 Inside the universities, this sort of approach fed into the devel- opment of area studies and courses on ‘non-Western civilizations’, while the moral certainties that had underpinned the old Victorian standard of civiliza- tion were now decried as unscientifi c idealism by a new generation of social scientists. Civilization met social science and dissolved increasingly into the more comfortable language of culture. 28 After 1945, therefore, claims to civilization were made in a very different, and much less propitious, context for interventionist policies than had been the case. The old standard of civilization had made being civilized the pre- condition for recognizing states as independent; now, during the Cold War, independence was granted in the context of a struggle between rival claim- ants to European civilizational superiority (the United States and the USSR ). 26 McNeill, Arnold Toynbee , 218–225; Toynbee, Civilisation on Trial: Essays (New York, 1948), 158. 27 Wilcox, Robert Red\f eld and the Development of American Anthropology , 139–140. 28 As it did in the 2001 UN International Conference on the Dialogue of Civilizations, which equated the concept of civilization with that of culture. 0003 Mark Mazower 44 Civilization – increasingly parsed in less morally loaded terms as the condition of being modern – was something to be attained with the help of technical and social scientifi c expertise after independence by a means of state policy and external assistance. But what did civilization in the new Cold War sense actu- ally mean? Rationality, the defence of property rights, to be sure; and liberty?

Initially yes, but as modernization theorists came to entertain doubts about the capacity of Third World countries to modernize under democratic leader- ship, the spread of liberty came to be equated with defence of property rights against communism and the leadership of army generals and dictators.

In this postwar world, law and claims of ethical superiority no longer offered justifi cations for intervention, least of all to defend rights. As the number of sovereign states mushroomed, pressure on states to expand the realm of rights d e p e n d e d m o r e t h a n e ve r o n pu b l i c o p i n io n – d o m e s t i c a n d f o r e i g n , s o m e t i m e s swept up into the offi cial policy of states, at others expressed through newly powerful NGOs such as Amnesty International. As international organiza- tions such as the U N backtracked from earlier more interventionist regimes where sovereignty was concerned, it was NGOs that acted as chief defenders of individuals and collective groups against their own states, but this was a much weaker kind of defence. In short, the collapse of the old civilizational certainties both fostered a more global sense of international community and simultaneously weakened the system’s capacity to force through observation of rights of various kinds. A combination of NGOs and rhetorical exhortation made little headway against the spread of sovereign states in the former colonial world. The European Convention showed that states could derogate powers to a genuinely enforce- able rights regime, but this regional arrangement was the exception, not the rule. Perhaps this brief sketch helps explain why, in the 1990s, with the re- emergence of genocide as an international problem, frustration with the U N’s inability to respond adequately fed calls for a new basis for intervention, new criticisms of the doctrine of sovereign sanctity, and calls for some kind of return to an idealized version of nineteenth-century liberal imperial crusades.

Currently one reads about demands to replace – or supplement (but doesn’t it come to the same thing?) – the U N with a ‘league of democracies’ that can act when state leaders sacrifi ce their right to rule by failing to respond to humanitarian crises. Here too the sovereignty criterion is under challenge. But that is not so surprising as the way proponents of such arrangements unprob- lematically return to the language of civilizational superiority in the name of defending rights. It is hard, I think, if the kind of conceptual trajectory I have outlined here has any validity, to avoid seeing such moves, for all their self-proclaimed practicality, as exercises in nostalgia for a world centred on Europe and ‘European values’ (whatever those may be thought to be) at the very moment when the world is moving in a different direction.

0003 45 2 The “Human Rights Revolution” at Work Displaced Persons in Postwar Europe G. Daniel Cohen “When this ghastly war ends,” gloomily predicted Franklin D. Roosevelt in October 1939, “there may be not one million but ten million or twenty million men, women and children belonging to many races … who will enter into the wide picture – the problem of the human refugee.” 1 Six and a half years later, Eleanor Roosevelt confi rmed the forecast of her then deceased husband. “A new type of political refugee is appearing,” she wrote in February 1946, “peo- ple who have been against the present governments and if they stay at home or go home will probably be killed.” 2 To be sure, these statements could have adequately described earlier instances of forced displacement, none the least the refugee exodus from the Reich of the late 1930s. But although continental Europe had been awash with stateless and exiled people from the end of the First World War to the advent of Nazism, the presidential couple envisioned “the problem of the human refugee” as an impending postwar crisis more than the continuation of an older phenomenon. Two decades of isolationism and restrictive immigration quotas may have blinded American eyes to the magnitude of European displacement prior to 1939. The prospect of renewed American engagement with the world, however, revived strong interest for “Europe on the move.” Observing this phenomenon at both ends of the con- fl ict, Franklin and Eleanor Roosevelt were undoubtedly right: the scale of the European refugee problem at the end of the Second World War went beyond anything seen before. Writing on the eve of Victory in Europe, Hannah Arendt similarly refl ected upon the impending refugee crisis. “It would be a good thing,” she observed in April 1945, “if it were generally admitted that the end of the war in Europe will not automatically return thirty to forty million exiles to their homes.” And then the former refugee from Nazi Germany divulged one of the greatest chal- lenges the authorities would face:“[A] very large proportion,” she warned, “will 1 The New York Times , October 18, 1939. 2 Quoted by Mary Ann Langdon, A World Made New. Eleanor Roosevelt and the Universal Declaration of Human Rights (New York, 2001), 29. 0003 G. Daniel Cohen 46 regard repatriation as deportation and will insist on retaining their stateless- ness.” Arendt had evidently in mind the yet unquantifi ed Jewish survivors of the Final Solution but also referred to other types of anti-Soviet Eastern European displaced persons (DPs). Altogether, she presciently pointed out, “the largest group of potentially stateless people is to be found in Germany itself.” 3 Contrary to the military and humanitarian focus on population man- agement, Arendt believed that the “DP problem” was fi rst and foremost polit- ical in nature. From 1946 to the end of the decade, the vocal and conspicuous “last million” of Europe’s DPs – a multinational group of Jewish and non- Jewish asylum seekers unwilling or unable to go home – amply corroborated her predictions. Indeed, the “DP story” comprised two distinct chronological sequences, one logistical and one more markedly political. It is generally assumed that at the end of the war there were approximately eight million civilians in Germany who qualifi ed as “displaced persons” under the United Nations Relief and Rehabilitation Administration (UNRRA, 1943–1947) and Allied military directives: foreign workers, slave laborers, prisoners of war, and lib- erated concentration camp inmates formed the bulk of this predominantly Eastern European population. Between the spring and the fall of 1945, six to seven million DPs were returned to their countries of origins – forcibly and often tragically in the case of Soviet nationals. Yet in September 1945, 1.2 mil- lion refugees still remained in Western Allied hands. As it became increasingly clear to humanitarian personnel and Allied military commanders at the start of 1946, return rates signifi cantly dwindled among the remaining DPs. Their refusal to go home, routinely analyzed by various surveys, was motivated by political, economic, or psychological factors. Combined with fresh arrivals from beyond the “iron curtain,” the diminishing appeal of repatriation facil- itated the long-term presence of one million DPs in occupied Germany (small numbers of refugees also lived in the DP camps of Austria and Italy). Brought to Germany by the Nazis as foreign workers and slave laborers, 400,000 Poles and Polish-Ukrainians amounted in March 1946 to nearly 50 percent of the DP population (Polish-Ukrainians were later independently classifi ed as “Ukrainians”). From 150,000 to 200,000 Estonians, Lithuanians, and Latvians formed a sizeable Baltic group, including former Wehrmacht con- scripts and volunteers, migrant workers, and slave laborers as well as civilians who fl ed the advance of the Red Army. In early 1946, Holocaust survivors represented less than 10 percent of the overall DP population. But to the small group of Jews liberated by the Allies in the spring of 1945 was gradually added a substantial number of postwar Jewish “infi ltrees,” predominantly of Polish origin: At the peak period of 1947–1948, approximately 200,000 Jewish refu- gees lived in the American occupation zone of Germany. Alongside these main groups whose size constantly evolved because of repatriation, emigration, 3 Hannah Arendt, “The Stateless People,” Contemporary Jewish Record , 8 (April 1945), 137 –153. 0003 The “Human Rights Revolution” at Work 47 and the entrance of newcomers, small numbers of anticommunist Yugoslavs, Slovaks, Hungarians, and other Eastern European nationals completed the demographic makeup of the “last million.” 4 Like many contemporary statistics documenting the DP world, this fi g- ure, if never far from the reality, was not always accurate. The International Refugee Organization (1946–1952), the agency created by the United Nations to care for the ever- fl uctuating “last million,” generally added prewar refugees and other European stateless persons situated outside of Germany in order to round up this tally. But without much empirical distortion, the IRO could safely advertise the DPs to the world as the “last million” of refugees from the Second World War desperately searching for asylum countries. Emblematic of the longer political sequence of postwar displacement, this expression essen- tially pertained to Holocaust survivors and non-Jewish anticommunist refu- gees, the two distinct components of a DP camp system that stretched from northern Germany to Sicily. The history of postwar refugees has been thoroughly documented by the offi cial historians of the humanitarian agencies in charge of the DPs. More recently, scholars have delved into the records of these organizations to cast new light on the DP experience in postwar Germany and Austria, whether by focusing on particular nationalities or by offering a more comprehensive view. 5 R e c e n t o r m o r e d a t e d , m o s t a c c o u n t s p r e d o m i n a n t l y c o n c e n t r a t e o n t h e humanitarian aspect of “relief and rehabilitation.” Undeniably, the diffi cult delivery of food rations, health care, or housing accommodations amid the material devastation of postwar Germany remained a daunting challenge for the charity organizations and international agencies entrusted with this mis- sion. “Surely in recorded history,” observed the head of U NRRA “Displaced Persons” division in 1947, “there has been no group of unwilling migrants that has posed such complex problems.” 6 But whereas the DP episode pro- vided the arena for the largest humanitarian intervention in the immedi- ate postwar years, it also informed the rise of the human rights movement characteristic of the 1940s. “Today,” Hannah Arendt observed in 1949, “the whole question of the Rights of Man has taken a new life and pertinence.” This new concern was partly due to the interwar “emergence of an entirely new category of human beings … who do not possess citizenship” but also to the “new millions of displaced persons” added by “the events of the forties.” The DPs, argued Arendt, propelled human rights to the center of postwar international politics: “[T]he problem of statelessness on so large a scale had the effect of confronting the nations of the world with an inescapable and perplexing question: whether or not there really exist such ‘human rights’ 4 George Woodbridge, U NR R A . The History of the United Nations Relief and Rehabilitation Administration , vol. 3 (New York, 1950), 423. 5 The most thorough overview to date is Mark Wyman, DPs: Europe’s Displaced Persons 1945–1951 , 2nd ed. (Ithaca, N.Y., 1998). 6 Fred Hoehler, “Displaced Persons,” in George B. Huszar (ed.), Persistent International Issues (New York, 1947), 10. 0003 G. Daniel Cohen 48 independent of all specifi c political status and deriving solely from the fact of being human?” 7 For contemporary international jurists, the “DP question” – namely, the fact that nearly a million people refused, for various reasons, to abide by the directives of their national government – refl ected one of the main features of the postwar human rights agenda: the curtailment of state sovereignty in favor of the rights of individuals. “Behind the affairs of people deported and exiled from their homes,” wrote a legal scholar in 1948, “there is the chief question of the relation of the individuals towards the interna- tional community.” 8 Although seldom used by the activists and political actors of the 1940s, the expression “human rights revolution” is commonly employed today to describe the advent of the human rights era in the aftermath of the Second World War. According to this widely held view, it was during this pivotal decade that a handful of dedicated “visionaries,” not all of them of Western origin, mounted a successful assault against the old concept of state sover- eignty : Following the “gathering storm” of the interwar years and the ideo- logical “crusade” of the wartime period, the “revolution” launched in 1945 challenged the “Leviathan-state” to curtail some of its traditional prerogatives in favor of the rights of individual citizens. 9 In this evolutionary narrative, the predominantly “juridical revolution” of the postwar years allegedly laid the groundwork for subsequent “advocacy” and “enforcement” phases in the last decades of the twentieth century. 10 The idealist celebration of human rights as the “idea of our time,” particularly prevalent in the West since the end of the Cold War, hinges therefore on a revolutionary reading of the 1940s: Against overwhelming odds and despite many contradictions (such as the persistence of racial segregation in the United States and of European rule in the colonial world), human rights became at that time a matter of international responsi- bility by challenging the nation-state’s monopoly on the conduct of interna- tional affairs. Realist-minded writers have recently cautioned against idealization and morality tales. The emergence of international human rights, they maintain, was not the sole product of tenacious visionaries bent on creating “fi re-walls against barbarism”; nor was it only spurred, as idealists contend, by a “war- weary generation’s refl ection on European nihilism and its consequences.” 11 The historian and legal scholar A. W. Brian Simpson, for instance, argued in a detailed study that the meteoric rise of human rights after 1945 primar- ily resulted from “complicated interrelationships between individuals and institutions, and governments, with their varied ideological commitments 7 Hannah Arendt, “‘The Rights of Man’. What Are They?” Modern Review , 3 (1949), 24–37. 8 Eduard Reut-Nicolussi, “Displaced Persons and International Law,” in Recueil de Cours .

Institut de droit international (Paris, 1948), 64. 9 Paul Gordon Lauren, The Evolution of International Human Rights (Philadelphia, 1998), 130 – 2 05. 10 Michael Ignatieff, Human Rights as Politics and Idolatry (Princeton, 2001), 5. 11 Ibid., 4. 0003 The “Human Rights Revolution” at Work 49 and perceptions of reality, history and self interest.” 12 For Mark Mazower, pragmatic calculations chiefl y accounted for the widespread preoccupation with human rights during and after the Second World War. Rather than a smiling revolution in moral standards, the dawn of the human rights age was a “strange triumph” largely made possible by the desire of the Great Powers and many small nations alike to fi nish off the moribund interwar system of minority rights in favor of more expedient individual rights, abstract enough to be safely embraced. Thus staunch advocates of mass expulsions of ethnic m i norit ies , such as t he Czechoslova k leader E dva rd B ene š, could at the same time ardently champion “a Charter of Human Rights throughout the world” for the postwar era. Seen in this light, the ideology of human rights para- doxically reinforced – as much as it sought to restrict – the supremacy of state interest. 13 Nonetheless, one common feature unites these diverging lines of inter- pretation: Whether critical or apologetic, assessments of the “revolution” primarily focus on the motivations of the drafters rather than on the actual enforcers of human rights. This imbalance is easily justifi able: As pointed out by most international jurists in the 1940s and 1950s, the international proclamation of human rights, resounding as it may have been, was notice- ably devoid of enforcement mechanisms. As the renowned international lawyer Hersch Lauterpacht pointed out in 1947, the cautious refusal of the United Nations Commission of Human Rights to recognize the right of individual citizens to petition the world organization against abusing states signifi cantly weakened the challenge against national sovereignty. 14 The French jurist René Cassin, and with him a substantial number of legal commentators, opposed this pessimism: “From one side of the world to the other and from the bottom to the top of the social ladder, workers on strike, victims of racial and religious discrimination, persecuted intel- lectuals … all invoke with great hope this Universal Declaration.” Yet Cassin readily admitted that this landmark document, as its preamble stated, set only “a common standard of achievement for all people and all nations” to be attained in the future. For the time being, he recognized, the Declaration – including its important provisions regarding refugees and political asylum – served only as “a magnet and a goal for the aspira- tions of mankind.” 15 Despite the efforts deployed by the United Nations to underscore the impact of the Universal Declaration and encourage the worldwide celebration of a newly created “Human Rights Day” (1949), t h e “revolution” of the 1940s was overwhelmingly perceived by its advocates 12 A. W. Brian Simpson, Human Rights and the End of Empire. Britain and the Genesis of the European Convention (New York, 2001), vii. 13 Mark Mazower, “The Strange Triumph of Human Rights, 1933–1950,” Historical Journal , 47 (2004), 379–398. 14 Herch Lauterpacht, International Law and Human Rights (London, 1950), 397. 15 René Cassin, “La déclaration universelle et la mise en oeuvre des droits de l’homme,” in Académie de droit international. Receuil de cours , vol. 2 (The Hague, 1951), 239–267. 0003 G. Daniel Cohen 50 and critics alike as being more declarative than legislative, more suggestive than binding. 16 The limited number of nongovernmental organizations (NGOs) specifi - cally concerned at the time with international human rights further pre- vented the “revolution” from being fully put into force. As opposed to the thousands of human rights NGOs operating in the world today, only a handful of such organizations were in existence in the mid-1940s. The most prominent among them, the New York–based International League for the Rights of Man and the Paris-based Fédération Internationale des Droits de l’Homme, epitomized the historical and geographical continuity uniting the “human rights revolution” of the 1940s with the “Atlantic revolutions” of the late eighteenth century. But like the more numerous (and predominantly American) civic, religious, labor, educational, or women’s organizations enlisted by the United Nations to participate in the drafting of human rights, their role remained essentially consultative. Indeed, as a study by William Korey indicates, the fi rst postwar NGOs saw standard setting as their main priority: namely, “the establishment of international norms by which the conduct of states can be measured or judged.” 17 As such, early NGOs may well have “revolutionized the language of international relations, which statesmen of an earlier era and even some of the recent period would have found strange and unacceptable.” 18 But until the later appearance of more militant watchdogs committed to fact -fi nding and implementation – such as Amnesty International after its creation in 1961 – the “enforcement revolu- tion,” facilitated by the détente era and the unraveling of the Cold War, still remained a fairly distant prospect. The history of DPs in postwar Europe, however, complicates this established chronology. As the following essay argues, the DP experience immediately put to test the language of human rights hammered out in the 1940s. Deemed by the Big Powers “the most important show on earth” despite the fact that from China to India /Pakistan and the Middle East mass displacement spanned a large part of the globe between 1945 and 1949, Europe’s DPs provided the fi rst concrete fi eld of experimentation for postwar human rights principles.

The international agencies in charge, alongside Allied military authorities, of the governance of European refugees in occupied Germany and Austria – including, during the peak period of 1947–1948, approximately 250,000 Jewish refugees and Holocaust survivors – enforced some of the most impor- tant rights forged and adopted by the United Nations . The right of everyone “to leave any country” (Article 13 of the 1948 Universal Declaration), “to seek and enjoy in other countries asylum from persecution”( Article 14), and “to a nationality”( Article 15) all directly pertained to the ongoing DP crisis; 16 U n i t e d N a t i o n s , D e p a r t m e n t o f S o c i a l A f f a i r s , The Impact of the Universal Declaration (New York, 1951). 17 William Korey, NGOs and the Universal Declaration of Human Rights (New York, 1998), 3. 18 Ibid. 0003 The “Human Rights Revolution” at Work 51 and so did newly proclaimed guarantees against arbitrary deprivation of citi- zenship and state interference with freedom of movement, opinion, and faith.

Displacement, in short, prominently loomed in the background of human rights activism; it also served as an important testing ground for the new prin- ciples set forth in the international arena. To make sense of the relationship between the “revolution” and this labora- tory phase of modern political asylum, I will examine how some of the main human rights principles discussed throughout the decade were implemented, or at times bypassed, in the Western management of forced displacement . The governance of DPs served as an immediate echo chamber for the language of human rights in the 1940s. The affi rmation of a new relationship between individuals and states, the universal scope of individual rights, and the lin- gering question of protection of minorities not only were issues debated by visionaries, drafters, and international delegates in lengthy deliberations, but also directly pertained to the lives of postwar European refugees. Individuals versus Nation-States The Second World War seriously challenged the idea that the normal place for citizens is within the territory of their state. The rough estimate of seven to eleven million DPs found by the Western Allies in the course of their push to Berlin was a vivid illustration of this new possibility. Postwar Germany, one historian observed, unexpectedly became the “unlikely host to hundreds of thousands of its former victims,” including Jews, concentration camps inmates, and forced laborers, mostly regrouped in the American and British occupation zones. 19 The nation-state order, however, was promptly reasserted: Most DPs voluntarily returned home in the summer and fall of 1945. For Soviet nation- als, unfortunate “pawns of Yalta,” return was compulsory. 20 Under U NRRA, a n a g e n c y c u rb e d to a l l i e d m i l it a r y c o nt rol , t h e ove r a l l p ol i c y wa s to r e p at r i at e all (non-Jewish) DPs to their country of origin as a means to swiftly eliminate the disrupting effects of the Second World War. Repatriation was supposed to be voluntary, but because of Grand Alliance considerations, Soviet nation- als (most of them liberated POWs) were initially targeted for forcible return “home,” where they more often than not faced execution, deportation, or ret- ribution. 21 The recognition of the individual’s rights against the omnipotence of the state –one of the key human rights principles of the postwar era – was therefore blatantly violated by Western powers despite the multiple references to human rights contained in the Charter of the United Nations adopted at 19 Atina Grossmann, “Victims, Villains, and Survivors: Gendered Perceptions and Self- Perceptions of Jewish Displaced Persons in Occupied Post-War Germany,” Journal of the History of Sexuality , 11 (2002), 291–318. 20 Mark R. Elliott, Pawns of Yalta. Soviet Refugees and America’s Role in Their Repatriation (Urbana, Ill., 1982). 21 Pavel Polian, Deportiert nach Hause. Sowjetische Kriegsgefangene im “Dritten Reich” und ihre Repatriierung (Munich, 2001). 0003 G. Daniel Cohen 52 the San Francisco Conference in June 1945. At the end of the Second World War, Allied repatriation policies still refl ected the enduring supremacy of state sovereignty in the emerging postwar order.

However, the policy of forcible return eventually subsided with the rise of Cold War tensions. In February 1946, a UN resolution stipulated that DPs who expressed “valid objections” to returning to Soviet bloc countries should not be compelled to do so: Repatriation was from then on a free offer to all DPs. Even if claimed by their countries of origin –for punishment and/or reconstruction purposes – DPs found in the network of U NRRA camps in Germany a protective environment. The pace of voluntary repatriation dra- matically dwindled in 1946, when it became clear that most of the remaining DPs refused to go home. As one of the fi rst historians of DPs pointed out, it then “dawned upon Allied authorities that repatriation would no longer be acceptable for this group.” 22 In December 1946, the International Refugee Organization (IRO) was created by the United Nations (without the support of the Soviet bloc) to fi nd resettlement solutions for the DPs. Free from mili- tary control, the IRO was a modern-type agency imbued with internationalist spirit. In Germany, the IRO became in charge of nearly a million refugees composed of Poles, Jews, Ukrainians, and nationals of the Baltic states who refused or were simply unable to return “home.” Many factors accounted for this refusal: for Jewish Holocaust survivors, the resurgence of anti-Semitism in Poland and a desire to “divorce Europe”; for Baltic and Ukrainian DPs, the fear of Soviet retribution and strong nationalism; for Poles, anti-communism as well as straightforward economic motives; and for all, the continuation of a century-old East–West migration trend. Placed under the Western guardianship of the IRO after 1947, the “last mil- lion” of the DPs experienced the advent of a new and more balanced relation- ship between individuals and states: With repatriation no longer an option, the DPs were indeed free to opt (if accepted by a host country) for citizenship elsewhere, Israel or the New World in most cases. As such, they became the fi rst group to concretely and simultaneously realize a possibility inscribed in Article 15 of the U N Declaration: “No one shall be denied the right to change his nationality.” The recognition of the right to secede from a state (“the right to leave a country” in the Declaration) refl ected the increasing Western awareness of the repressive nature of Soviet communism and of the desire of Holocaust survivors to leave Europe behind. But if postwar European refugees became subjects of international law, it is also because of a groundbreaking shift in internationalist politics: the collapse of minority rights into individual rights, one of the main staples of the “human rights revolution.” A predominant view in the scholarship of human rights history is that this shift occurred in the early 1940s, when Great Powers politicians and 22 Wolfgang Jacobmeyer, “The Displaced Persons Problem: Repatriation and Resettlement,” in Johannes-Dieter Steinert and Inge Weber-Newth (eds.), European Immigrants in Britain 1933–1950 (Munich, 2003), 137–149. 0003 The “Human Rights Revolution” at Work 53 “visionaries” alike seized upon the war to devise a different future by shy- ing away from the League of Nation’s failed system of minority protection. 23 Alongside philosophical idealism and a desire to demarcate the West from totalitarian tyranny, political pragmatism loomed large behind the wartime a c c e p t a n c e t o l e t t h e i n t e r w a r m i n o r i t y t r e a t i e s d i e a n u n l a m e n t e d d e a t h . S o m e wartime proponents of individual human rights, such as the Czech leader Eduard Beneš, w e r e at t h e s a m e t i m e p l a n n i n g t h e e v i c t i o n of e t h n i c m i n o r it i e s (in this case, ethnic German) after the defeat of Nazism. “Behind the smoke- screen of the rights of the individuals,” caustically writes Mark Mazower, “the corpse of the League’s minorities policy could be safely buried.” 24 It is signifi cant, however, that former political refugees stood among the most idealistic supporters of individual rights. To be sure, not all refugee law- yers, scholars, or activists were enthusiastic about the individualization of human rights. Raphael Lemkin’s intense preoccupation with genocide (wh ich the Polish refugee lawyer framed as the murder of a group , not of a mere aggregate of individuals ) was very much at odds, politically and culturally, with the individualist overtones of postwar human rights discourse. 25 But although Lemkin, the solitary crusader, sought to salvage part of the heri- tage of interwar minority protection in his plans for a Genocide Convention, others celebrated the Kantian promises of postwar individual rights. In exile in New Zealand during the war, the Austrian-born philosopher Karl Popper envisioned an “open society” in which “human individuals and not states or nations must be the ultimate concern not only of international organiza- tion, but of all politics, international as well as national and parochial.” 26 For the lesser known jurist Eduard Reut-Nicolossi, who fl ed Italian fascism in the 1930s, what broke down after the Second World War was no less than “Hegel’s apotheosis, the State is God on earth.” 27 The distinguished interna- tional lawyer Hersch Lauterpacht, the drafter of an infl uential “International Bill of the Rights of Man” in 1945, triumphantly hailed the dawn of a new era. “The individual,” Lauterpacht declared in 1950, “has now acquired a status and a stature which have transformed him from an object of interna- tional compassion into a subject of international right. The time is now ripe for assessing the signifi cance of these changes … in the functioning of inter- national society.” 28 One of these most immediate changes pertained to the governance of forced displacement in occupied Germany: The turn to individual rights concretely meant the abandonment of the League of Nation’s collective recognition of 23 Carole Fink, Defending the Rights of Others. The Great Powers, the Jews and International Minority Protection, 1878–1938 (Cambridge, Mass., 2004), 357–358. 24 Mazower, “The Strange Triumph of Human Rights,” 389. 25 John Cooper, Raphael Lemkin and the Struggle for the Genocide Convention (New York, 2008). 26 Karl Popper, The Open Society and Its Enemies (Princeton, 1950), 576. 27 Reut-Nicolussi, “Displaced Persons and International Law,” 65. 28 Lauterpacht, International Law and Human Rights , 4. 0003 G. Daniel Cohen 54 refugees in favor of individual eligibility. The fi rst international charter on the protection of refugees, the 1933 Geneva Convention, defi ned refugees accord- ing to the principle of national and ethnic origin: “any person who does not enjoy the protection of the Government of the USSR or the Turkish Republic.” White Russians and Armenians, the largest refugee groups of the post–World War I era, were the main clients of the Nansen humanitarian system. Under the auspices of the League of Nations (and in the interwar context of minority rights), it was theoretically enough to be a member of a designated group of displaced and stateless persons in order to have access to asylum protection (“Nansen passports”) and certain basic rights guaranteed by international con- vention. 29 After 1945, and especially so under the IRO (1947–1952), DPs were screened on an individual basis: The hundreds of personal fi les left in the IRO archives amply document the fascinating hearings and interviews conducted by “eligibility offi cers” in the DP camps. 30 Only Holocaust survivors, deemed ideal types of victims until communist dissidents supplanted them as the Cold War unfolded, entirely bypassed the individual screening process. 31 It has been recently proposed that “ideas of Germany as modernity’s consummate ‘rogue state’ have deeply colored twentieth-century views of international justice.” 32 Less noticed, however, is the role played by occupied Germany as a fi eld of experimentation in the individualization of international law. The Nuremberg Trial and the subsequent war crimes trials (1945–1949), with their emphasis of individual accountability over raison d’ét at (and their search for individ- ual guilt amid the trumpeting of German “collective guilt”), were one aspect of this process. Human rights legacies of Nuremberg, convincingly argues Elizabeth Borgwardt, “included legitimating the idea of individual responsi- bility against crimes against international law.” 33 The administration of refu- gees in occupied Germany illustrates another aspect of this individualization process: More than any other groups in the 1940s, the DPs epitomized the transition from collective to individual human rights.

Mirroring the individual turn of the “human rights revolution,” the aban- donment of the League’s policy of group acceptance in favor of individual selection was also triggered by more political motivations. “Who is a genuine, bona fi de refugee?” asked lengthy IRO “eligibility guidelines” designed to help screeners identify authentic victims among the masses of DPs. Being a Pole, a 29 Claudena Skran, Refugees in Interwar Europe: The Emergence of a Regime (New York, 1995). 30 G. Daniel Cohen, “Naissance d’une nation: les personnes déplacées de l’après-guerre 1945– 1951,” Genèses , 38 (2000), 56–78. 31 “Things began to run smoothly,” recalled the director of a Jewish refugee camp, “because an order was issued from above that every Jew for the very reason that he is a Jew is eligible for U NRR A assistance.” See Malcolm Proudfoot, European Refugees 1939 –52. A Study in Forced Population Movements (Evanston, Ill., 1956), 350. 32 Paul Betts, “Germany, International Justice, and the Twentieth Century,” History and Memory , 17 (2005), 45–86. 33 Elizabeth Borgwardt, A New Deal for the World. America’s Vision for Human Rights (Cambridge, Mass., 2005), 242. 0003 The “Human Rights Revolution” at Work 55 Ukrainian, or a citizen of one of the Baltic states was not technically enough to receive DP status. What mattered for the IRO and even more so today was the production by refugees of a persuasive narrative of political persecution, decipherable according to contextual human rights standards. In the postwar years, “anti-fascism” and later “anti-communism” were the political norms that came to defi ne political refugees in the eyes of the West. 34 The careful evaluation of individual refugee tales (a radical novelty in asylum policies) stemmed from both an inclusive and exclusive idea of rights. As persecuted people (or risking persecution if returned to their home country), the DPs were for all intents and purposes protected as refugees even if most of them were not technically “stateless” (many still carried identifi cation documents from their country of origin). The primacy of persecution over statelessness as a key identifi er of modern refugees had already been asserted by international- ist advocates in the 1930s: “[O]ther features of the existence of the refugee, such as the absence of national status, may be incidental but are not essential to his quality as refugee.” 35 This legal position was translated into a rigor- ous eligibility system after 1945. In the DP camps, the veracity of persecution claims was thoroughly reviewed by military offi cers and international civil servants trained to identify, among other potential intruders, former “collabo- rators,” “Quislings,” and “auxiliaries” of the Nazi order. As such, the shift from collective to individual rights – so crucial for the shaping of contempo- rary political asylum – also refl ected the broader context of denazifi cation and retribution across the European continent.

Universalism for the Happy Few?

One of the main features of the “human rights revolution” was its strong universalist outlook. From Franklin D. Roosevelt’s “supremacy of human rights everywhere” (1941) to the 1948 Universal Declaration of Human rights proclaimed “as a common standard of achievement for all peoples and all nations,” universalist rhetoric colored the human rights talk of the decade.

That this resuscitation of eighteenth-century natural rights was performed while Southern segregation and European colonialism were still solidly entrenched has been pointed out countless times, not the least by partici- pants in the Civil Rights and anti-colonial movements. The contradictions of human rights universalism, however, were also refl ected in the world of European mass displacement . The answer to the fundamental question “Who is a Refugee?” was grounded in the specifi c context of postwar Europe; yet it was ultimately couched in strong universal language in the 1951 Geneva Convention, a bill of rights for political refugees that crystallized in inter- national law the main legacies of the DP experience. In this document, still 34 Kim Solomon, Refugees in the Cold War: Towards a New International Refugee Regime in the Early Postwar Era (Lund, Sweden, 1991). 35 Sir John Hope Simpson, The Refugee Problem: Report of a Survey , (London, 1939), 4. 0003 G. Daniel Cohen 56 governing the attribution of refugee status today, a refugee is broadly defi ned as “any person … outside his country of origin” with a “well-founded fear of persecution.” In 1951, however, the universal language of the Geneva Convention was strongly curtailed by historical and geographical limitations inherited from the DP years: In order to seek a compromise and prompt rati- fi cation, delegates at Geneva decided that only “events occurring in Europe before 1 January 1951” should be considered for the future recognition of political refugees. 36 A few years after the Second World War and in the midst of the Cold War, the shadow of Hitler and Stalin signifi cantly weighed upon “universal” perceptions of political persecution. The universal impulse of international human rights was also cut short by the rigorous selection of DPs. A French international jurist compared this pol- icy to “picking and choosing.” The West, argued Roger Nathan-Chapotot in 1949, was now “fi shing chosen individuals among masses of refugees and dis- placed persons. This fi shnet bears the name Allies-United Nations.” 37 In post- war Europe, international humanitarianism did not encompass all the DPs and refugees who viewed themselves as such. The policy of U NRRA and the IRO, for instance, was to not include ethnic Germans expelled from Eastern Europe, even the very few who sought DP status instead of reintegration in We s t G er m a ny: Refugees with German-sounding family names were par- ticularly scrutinized in the interview process. Similarly, applicants suspected of collaboration with Nazi Germany were prevented admission into the DP community. Ukrainians and Baltic states’ nationals were especially targeted, despite their arguing, and at times proving, that their occasional enrollment in the Wehrmacht was coerced. This “atmosphere of perpetual screening” elic- ited bitterness and resentment. “Such screenings,” lamented American advo- cates of Ukrainian refugees, “bring real terror to displaced persons.” 38 Other observers of refugee hearings in the camps noted that “each and every ques- tion sets a trap.” 39 Clearly, the selection of DPs reproduced the norms of the victors’ justice: “How many DPs,” worried an IRO offi cial, “sought a shelter in our camps, merely to hide and escape retribution at home?” 40 The idea that refugees could now be divided between “true” and “false” – a dichotomy that would have made little sense for interwar humanitarians 36 United Nations Convention Relating to the Status of Refugees, 28 July 1951. The wording “in Europe or elsewhere” was offered as an option to the signatories, but was eventually rejected by the overwhelming majority of contracting states. The temporal and geographical limita- tions were eventually lifted from the Convention in 1967. 37 Roger Nathan-Chapotot, Les Nations-Unies et les réfugiés. Le maintien de la paix et le con- \b it des quali\f cations entre l’Ouest et l’Est (Paris, 1949). 38 Walter Dushnyck and William J. Gibbons, Refugees Are People. The Plight of Europe’s Displaced Persons (New York, 1947). 39 L é o n R i c h a r d , “ L e p r o b l è m e p e u t - i l ê t r e r é s o l u ? ” i n Chemins du Monde. Personnes Déplacées (Paris, 1948), 338. 40 René Ristelhueber, Au secours des réfugiés. L’oeuvre de l’Organisation Internationale des Réfugiés (Paris, 1951), 141. 0003 The “Human Rights Revolution” at Work 57 clinging to the collective approach – was reinforced with the arrival in Germany of the fi rst anticommunist dissidents following the 1948 Prague coup. Here the potential intruders were the “economic adventurers” seeking to emigrate to the West (preferably North America) under the disguise of political dissidence. The IRO swiftly adapted its methods to this new real- ity: “If a refugee comes from Eastern Europe, he is required to prove that the abandonment of his country of origin was forced upon him by the fear of racial, religious or political persecution.” Political refugees, in short, were not ordinary migrants. One important feature of contemporary political asylum was being created in the DP camps of occupied Germany: the obliga- tion for asylum seekers to bear the burden of proof in their claim of politi- cal persecution. Opposition to a regime had to be evidenced by religious or political persecution, or “by proven membership to a political party … known to be the subject of persecution.” 41 In the IRO archives, many per- sonal cases illustrate the process through which “true” political and “false” economic refugees were sorted out. A young Czech waiter, for example, said that he escaped to Germany “because his father, during a birthday celebra- tion, expressed anticommunist sentiments and was denounced. Two days later, he was informed that the police had sought him and fl ed to Germany.” His story was not considered convincing, primarily because he made the unfortunate mistake to admit “that his salary of 600 Kcs was insuffi cient for his needs.” 42 These practices of exclusion, justifi ed by a pervasive worry to provide DP status to “bona fi de applicants” only, should not be overstated. Refugees turned down by the IRO – less than 20 percent overall – were not forcibly returned to their countries but simply left to fend for themselves or handed over to West German welfare organizations. In the case of anti-communist dissidents, the qualms of U N agencies and NGOs about “false refugees” soon became irrel- evant when the United States tailored its immigration policies to receive a large number of “escapees” from the Soviet bloc. If anything, the exclusion of cer- tain categories of refugees was a reminder that in the modern era, political asylum is not a guaranteed human right, but merely “a right to have rights” (to use Hannah Arendt’s famous formulation). The Universal Declaration framed only “the right to seek and to enjoy in other countries asylum from persecu- tion” (art. 14), not the right to be automatically granted asylum. By considering the claims of all applicants to DP status and ensuring due process (including the possibility for DPs to appeal negative decisions), the international civil ser- vants in charge of the postwar refugee question in Europe were faithful to this agenda. In one area, however, the management of displacement did go beyond the scope of contemporary human rights standards: the tacit recognition of self-determination as a human right for Jewish victims of genocide. 41 National Archives (Paris), IRO Records (Paris, Archives Nationales), AJ43/141. 42 Ibid., Case 15 723. 0003 G. Daniel Cohen 58 Genocide and Self-Determination “The notion of self-determination,” wrote Ken Cmiel in an important review article, “was also part of the mid-century human rights debates. The trouble was, Westerners did not agree that this was a fundamental human right.” 43 We s t er n liberal thought, once mesmerized by the pacifying promise of self-determination, was now looking askance at “Wilson’s reactionary principle … inapplicable on this earth.” 44 The dwindling appeal of Wilsonian idealism was also felt at the level of international politics. Although in 1945, “self-determination” was briefl y mentioned in the fi rst article of the U N Charter, the Allies had clearly “lost their enthusiasm for it as anything approaching a panacea.” 45 Despite the mobilization of Asian and African anti-colonial activists, Latin American nations and Soviet- bloc countries, the Universal Declaration also fell short of equating self-deter- mination to a right. As an analyst of the deliberations observed, “the colonial peoples were put in the Declaration in more than one place, although not in as clear a manner as their defenders wished.” 46 Besides the uneasiness felt by repre- sentatives of European colonial powers regarding self-determination, the notion was also problematic because it referred to the entitlement of groups and not individuals, the new backbone of post-1945 human rights. Unsurprisingly, there- fore, “self-determination of peoples remained off the radar screen of Western NGOs,” even after two U N covenants declared it a right in 1966. 47 The place of Holocaust survivors in the postwar refugee system com- plicates this view. The approximately 20,000 Jewish concentration camp inmates found in Germany and Austria by the Western Allies in the spring of 1945 (later joined by nearly 200,000 Jewish refugees, predominantly Polish, who had survived the war in the USSR ) did not initially elicit overwhelming compassion. U.S. Army General George Patton, for instance, let it be known that the “Jewish type of DP is, in the majority of cases, a sub-human species,” “lower than animals.” 48 Yet from being handled by American authorities “just like Nazis treated Jews, except that we do not exterminate them” (to quote the scathing report written by Truman’s envoy Earl Harrison in the summer of 1945), Jews evolved into a protected refugee population accommodated in specifi c Jewish camps. The separation of DPs by nationality or ethnic groups rapidly became a main feature of the refugee universe: Touring Germany, the American journalist Janet Flanner reported in 1948 that “in order to main- tain peace and cut down the number of fi st fi ghts, the IRO tries to arrange 43 Kenneth Cmiel, “The Recent History of Human Rights,” American Historical Review , 109 (2004), 117–136. 44 Popper, The Open Society and Its Enemies , 662. 45 Rupert Emerson, The Right to Self-Assertion of Asian and African Peoples (Cambridge, Mass., 1964), 296. 46 Johannes Morsink, The Universal Declaration of Human Rights. Origins, Drafting and Intent (Philadelphia, 1999), 97. 47 Cmiel, “The Recent History of Human Rights,” 128. 48 Cited in Roger Daniels, Guarding the Golden Door. American Immigration Policy and Immigrants since 1882 (New York, 2004), 99. 0003 The “Human Rights Revolution” at Work 59 matters so that each camp houses only one religion or nationality.” 49 In the case of Holocaust survivors, however, the creation of separate Jewish camps had a broader signifi cance. It indicated that the remaining Eastern European Jews were not displaced citizens of their country of origin (Poland in most cases), but an acknowledged national entity. Jewish DPs, in short, amounted to a group anomaly in a new human rights regime increasingly geared toward individuals. They remained, even after 1945, an interwar national “minor- ity.” A prominent Zionist international lawyer from the Hebrew University in Jerusalem could therefore argue, not incidentally in 1948, that since the end of the First World War, “the Jewish question was raised to the level of a question involving a nation as a whole, an entity entitled to separate national existence and to the organization of its life within the framework of the State.” 50 The myriad of Jewish DP camps in the American and British occupation zones, with their vibrant Zionist politics, further reinforced the nationalization of Holocaust survivors. 51 They also refl ected the territoriali- zation of Jewish history: As the historian Dan Diner pointed out in relation to Jewish DP camps in Bavaria, “it is arguable that the immediate founding of the State of Israel had its beginnings in southern Germany.” 52 At a time where Western Jewish organizations believed, in the wake of the Second World War, that “being singled out as a minority was itself inviting trouble” 53 and preferred the framework of individual rights, the governance of DPs, just like the Zionist movement, viewed Holocaust survivors as a dis- tinct national group. Jewish demands for self-determination coincided with the d e c l a r e d g o a l o f t h e I RO : “ J e w i s h r e f u g e e s ,” s t a t e d i t s d i r e c t o r Donald Kingsley, were “one of the principal group for whose resettlement the Organization was established.” 54 With the door of the United States closed until the passing by Congress of the fi rst (and restrictive) DP Act in 1948, and with the scant interest in Jewish refugees shown by other potential host countries, the main resettle- ment destination was Palestine before May 1948, the State of Israel afterwards.

Following the Partition Plan of November 1947, the IRO granted governmen- tal status to the Jewish Agency for Palestine offi cially mandated to carry out “resettlement.” Later, the organization signed an offi cial agreement with the State of Israel formalizing their full collaboration in emigration matters. 55 49 Janet Flanner, “Letter from Aschaffenburg,” The New Yorker , 30 October 1948. 50 Nathan Feinberg, “The Recognition of the Jewish People in International Law,” Jewish Yearbook of International Law (1948), 1–26. 51 Zeev Mankowitz, Life between Memory and Hope. The Survivors of the Holocaust in Occupied Germany (Cambridge, Mass., 2002). 52 Dan Diner, “Elemente des Subjektwerdung: Jüdische DPs in historischem Kontext,” Jahrbuch zur Geschichte und Wirkung des Holocaust (1997), 229–248. 53 Mazower, “The Strange Triumph of Human Rights,” 388. 54 United Nations, Department of Public Information, “ Statement of J. Donald Kingsley, Director- General of IRO, before the Third Committee of the General Assembly ,” 10 November 1949 (in IRO Records, 43AJ –166). 55 Louise Holborn, The International Refugee Organization. A Specialized Agency of the United Nations (London, 1956), 677–679. 0003 G. Daniel Cohen 60 A lt hou g h d i r e c t ly i nvolve d w it h t h e m a s s e m i g r at io n of J e w i s h D P s to I s r ae l (between 120,000 and 180,000), the IRO refrained from taking a straightfor- ward political stance in favor of Jewish self-determination. Financially spon- sored by both pro- and anti-Zionist contributors (the United States and the United Kingdom), its offi cial line had to reconcile confl icting positions fol- lowing the outbreak of the Arab-Israeli war of 1948. Whereas the American delegate to the IRO maintained that former Jewish DPs in Israel worked only “in cooperatives and in areas where the Arabs have not lived,” the British rep- resentative argued that IRO-sponsored emigration of Jewish survivors was far f rom neut ra l: “W ho cou ld say t hat none of t hose ac t ua l persons helped i n t hat way would not occupy a refugee’s house or land or join a strategic colony?” 56 Compromise was eventually reached, because most national delegations at the IRO – such as the French – harbored sympathy for Jewish survivors with- out overlooking the material plight of displaced Palestinians. The IRO was to assist the humanitarian resettlement of Jews in Israel, but did not want “to become a contributor to the intensifi cation of the Arab refugee problem, or to the preemption of the return of the Arabs to their home.” It therefore legit- imized migration to Israel on technical “resettlement” grounds: The proven absorption and assimilation capacities of the new country provided suffi cient guarantees for what the agency called “fi rm-reestablishment.” Jewish pro- ponents of self-determination did not think otherwise: Nationhood, unani- mously claimed the political leaders of the “Surviving Remnant,” was indeed the most desirable humanitarian shelter.

Conclusion The “Human Rights Revolution” of the 1940s was for the most part non- binding. The limited declarative status of the 1948 Universal Declaration, in particular, was quickly underlined even by some of the most internationalist- minded lawyers of the time. 57 This helps partially explain why human rights gained astonishing prominence in the postwar international arena: They did not fundamentally challenge the nation-state order. The main achievement of the decade was the shaping of a promising vision for the future more than the creation of effective enforcement mechanisms. Yet Europe’s DPs already stood among the fi rst benefi ciaries of new inter- national protections. Indeed, the governance of “Europe on the Move” by humanitarian agencies put into practice a wide array of human rights norms enunciated or declared under the aegis of the United Nations.This comes, after all, hardly as a surprise. The American, British, and French enforcers of human rights in DP camps were kin to the Western instigators of the “revolu- tion” (even if Third World actors played a role in the drafting of the Universal 56 IRO Records, 43AJ-687. 57 Lauterpacht, International Law and Human Rights , 419; Paul Guggenheim, Tra i t é d e d r o i t international public , vol. 1 (Geneva, 1953), 303. 0003 The “Human Rights Revolution” at Work 61 Declaration). The displaced persons were also part of this extended family, as European victims of events directly related to the emergence of “the idea of our time”: the Second World War, the Holocaust, and the Cold War. As the scope and language of the 1951 Geneva Convention for Refugees clearly demonstrated, the fi rst human rights regime refl ected the historical experi- ences of wartime and postwar Europe. From 1945 to the early 1950s, the problem posed by non-German displaced persons and soon after, anticom- munist “escapees”, strongly impinged upon the formulation and enforcement of international protections. For Hannah Arendt, stateless refugees tragically symbolized the end of the “Rights of Man”; yet paradoxically, the postwar refugee question stood at the core of the frustrating, at times hypocritical yet path-breaking “human rights revolution.” 0003 62 3 ‘Legal Diplomacy’ – Law, Politics and the Genesis of Postwar European Human Rights Mikael Rask Madsen It is somewhat of a paradox that Europe was to become the avant-garde of the international protection of human rights following World War II. No continent had been more severely impacted by the hostilities and atrocities of World War II – and no continent was more to blame for the break out of the conflict. Yet, with the radical reconfiguration of Europe following the war – prompted particularly by the breakdown of empire and the rise of European integration in the context of Cold War politics – Europe was to become the bridgehead of the international protection of human rights.

The postwar legal and institutional setup dedicated to the protection of human rights in Europe, today, stands out as one of the most far- reaching and successful attempts at an international human rights protection regime. It has even become the de facto model for developing human rights elsewhere. 1 The original objective was, however, more specific and con- cerned with saving Europe from its own political and legal ills. It is clear from the debates and negotiations leading to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) that many regarded the Convention as part of a broader European integra- tion project in which human rights was to be a source of legitimacy and politico-moral commitment. 2 Despite these high ambitions in respect to European integration, the actual reality of the initial development of the ECHR is perhaps better described as the laying down of the cornerstones of what became eventually the much celebrated European human rights system. Certainly, as we now know, the two ‘Europes’ constructed during 1 See, for example, Andrew Moravcsik, ‘The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe’, International Organization , 54 (2000), 217–252, and Lawrence Helfer and Anne-Marie Slaughter, ‘Toward a Theory of Effective Supranational Adjudication’, Yale Law Journal , 107:2 (1997), 271–391. 2 See, for example, Consultative Assembly, Of\f cial Report of 7 September 1949, p. 127, and Documents of the Assembly (1949), Document 77, paras. 4–5. 0003 Legal Diplomacy 63 the postwar period – ‘Europe of the Market’ and ‘Europe of Human Rights’ – have only recently integrated. 3 It is the general argument of this article that the historical genesis of the European human rights regime was much less straightforward and politically self-evident than most commentators assume today. With the objective of contributing to the historiography of international human rights, the article examines how a continuous and subtle interplay of law and politics structured early European human rights law, and how this was to have decisive effects on both its institutional and legal development. During the period in focus, from the mid-1940s to late 1960s, European human rights law was, to a large extent, marked by the fact that law and politics were not yet differentiated social spheres as in national legal and political systems. This is not to say that early European human rights law was simply a ‘politicised law’ or a ‘legalised politics’, but that the boundaries between these two social fi elds were blurred.

Drawing on the work of Pierre Bourdieu, the subject area can be described as an emerging ‘fi eld’ – that is, a legal fi eld in the course of being constructed and, therefore, mainly relying on preexisting international and national prac- tices. 4 The European Court was, in other words, constructed at the ‘cross- roads’ of other preexisting fi elds, ranging from national law on related matters to national politics and diplomacy. It is against this background that the arti- cle argues that European human rights law originally emerged as a form of ‘legal diplomacy’. In contrast to what has been labelled ‘judicial diplomacy’ 5 by ‘legal diplomacy’, the article seeks, more generally, to understand how the development of European human rights, at its early stage, was as much a polit- ical process as a legal one. To more concretely analyse this legal diplomacy, the article emphasises the key agents of these developments, the ‘legal entre- preneurs’ who managed to perfection the subtle game of law and diplomacy, defi ning the playing fi eld of postwar European human rights. 6 3 See, for example, Mireille Delmas-Marty, Le relatif et l’universel. Les forces imaginantes du droit (Paris, 2004). 4 T h is not ion of ‘emerg i ng fi elds’ draws on an interpretation of the work of Pierre Bourdieu. See further in Mikael Rask Madsen, ‘Transnational Fields: Elements of a Refl exive Sociology of the Internationalisation of Law’, Retfærd , 3:114 (2006), 23–41. 5 See, for example, Karen Alter, Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe (Oxford, 2001), and J. H. H. Weiler, ‘A Quiet Revolution: The European Court of Justice and Its Interlocutors’, Comparative Political Studies , 26:4 (1994), 510 –534. See also the account in Laurent Scheeck, ‘Competition, Confl ict and Cooperation between European Courts and the Diplomacy of Supranational Judicial Networks’, GAR N ET Working Paper 23/07 (2007). 6 The notion of ‘legal entrepreneurs’ has been explored previously. See, for example, Antonin Cohen and Mikael Rask Madsen, ‘Cold War Law: Legal Entrepreneurs and the Emergence of a European Legal Field (1945–1965)’, in Volkmar Gessner and David Nelken (eds.), European Ways of Law: Towards a European Sociology of Law , (Oxford, 2007), 175–202, and Yves Dezalay, ‘Les courtiers de l’international : Héritiers cosmopolites, mercenaires de l’impérialisme et missionnaires de l’universel’, Actes de la recherche en sciences sociales , 151–152 (2 0 04), 5–34. 0003 Mikael Rask Madsen 64 Make Law, Not War The origins of the idea of establishing, during the postwar period, some kind of supranational protection of human rights are disputed in the litera- ture. 7 In fact, the very changes implied by the postwar innovations in terms of the internationalisation of human rights are contested. 8 A central issue for this literature is the historical continuity, or possible discontinuity, of many of the issues directly related to postwar human rights – the individual subject, international collective guarantee etc. However, it tends generally to downplay what might very well be the most essential transformations implied by the postwar processes. Building on a larger inquiry into the rise of international human rights after World War II, 9 this article argues that, during the postwar period, some of the main innovations in terms of human rights were on the legal-institutional level. 10 The postwar investments in international human rights created not only new international norms but also a set of new international venues for human rights activism. The lat- ter were to transform the very idea of how to protect human rights and, thereby, eventually the very notion of human rights. This is, of course, not to claim a certain built-in automatism in the rise of the contemporary legal- institutional framework of international human rights, but rather to point to the clear differences between the interwar period and the postwar period in terms of the structure of opportunities for pursuing international human rights. In the long run, the actual effects of postwar international human rights and corresponding institutional setup were to be determined by the interplay of the new institutions and norms and their changing geopolitical contexts. Generally, the European experience of the international institutionalisation of human rights was to be considerably different from other attempts made 7 See, for example, Jan Herman Burgers, ‘The Road to San Francisco: The Revival of the Human Rights Idea in the Twentieth Century’, Human Rights Quarterly , 14 (1992), 447–477; Paul Gordon Lauren , The Evolution of International Human Rights: Visions Seen (Philadelphia, 2003); Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (Philadelphia, 1999); Elizabeth Borgwardt, A New Deal for the World: America’s Vision for Human Rights (Cambridge, 2005); Lynn Hunt, Inventing Human Rights: A History (New York, 2007); and Samuel Moyn, ‘On the Genealogy of Morals’, The Nation , 16 April 2007. 8 See, however, Mark Mazower, ‘The Strange Triumph of Human Rights, 1933–1950’, Historical Journal , 47:2 (2004), 379–398, and A. W. Brian Simpson, Human Rights and the End of Empire: Britain and the Genesis of the European Convention (Oxford, 2004). 9 See Mikael Rask Madsen, L’Emergence d’un champ des droits de l’homme dans les pays européens: enjeux professionnels et stratégies d’Etat au carrefour du droit et de la politique (France, Grande-Bretagne et pays scandinaves, 1945–2000 ), Ph.D. diss., Sociology, L’École des hautes études en sciences sociales, Paris, 2005. 10 This is also, albeit in different ways, argued in Norberto Bobbio, The Age of Rights (Cambridge, 1995), and Louis Henkin, The Age of Rights (New York, 1990). See also Costas Douzinas, The End of Human Rights: Critical Legal Thought at the Turn of the Century (Oxford, 2000). 0003 Legal Diplomacy 65 during the same period. As argued elsewhere, 11 the comparative success of the European human rights regime was due to both the timing of the ECHR and the ways in which the Convention was perceived among a politically well- connected elite of legal entrepreneurs. The drafting of U N human rights had been carried forward by the general momentum related to the founding of the U N and the universalist ideology of some of the chief negotiators, but it had been limited by the lack of commitment to enforce such universal standards.

The ECHR was drafted in a surprisingly different context. In Europe, the atrocities of World War II, as well as the breakdown of the protection of fun- damental rights by the legal systems in occupied countries, were present in the memory of the key advocates of the Convention. In many cases, these actors had been active in the resistance struggle or members of the A llied forces dur- ing the war. Moreover, fear of the breaking out of new hostilities along the emerging East-West divide gave the whole undertaking a different political urgency of which the advocates of the Convention were not afraid to remind the involved politicians. Their message was clear: If one was, through the use of international law, to seriously hinder the rise of new totalitarian regimes, the European system could not imitate the well-meaning but toothless legal arrangements at the UN level. 12 Real law and effective legal institutions were the necessary conditions for achieving this goal. Being, thus, an upshot of the emerging Cold War context, the European human rights system was to go further – legally and institutionally – than the other human rights systems created at the same time. 13 Of most signifi - cance was the fact that the European system introduced a human rights court. Moreover, the European Convention was not simply an international agreement in the conventional manner, where states could bring legal actions against each other for breach of a mutually agreed Convention; it also allowed for individuals to bring actions against their own governments at the level of a supranational institution. However, although these international legal innovations have now become practically synonymous with European human rig ht s law, it shou ld be u nderl i ned t hat t hey were ver y fa r f rom a fait accompli at the stage of negotiating the Convention. If the right to individual petition has become the landmark of contemporary European human rights, it is interesting to note that in the original Convention of 1950, the right of indi- vidual petition before the Court was made optional. Perhaps even more strik- ing is the fact that the jurisdiction of the Court was made optional. In other words, the contracting states could choose to accept only the jurisdiction of 11 See, for example, Mikael Rask Madsen, ‘ La Cour qui venait du froid. Les droits de l’homme dans la genèse de l’Europe d’après guerre’, Critique Internationale , 26 (2005), 133–146, and ‘From Cold War Instrument to Supreme European Court: The European Court of Human Rights at the Crossroads of International and National Law and Politics’, Law and Social Inquiry , 32:1 (2007), 137–159. 12 See, for example, Preparatory Work on Article 1 of the European Convention of Human Rights (Strasbourg, 31 March, 1977), 17. 13 These include the Inter-American human rights system and the U N human rights system. 0003 Mikael Rask Madsen 66 an intermediate institution, the European Commission of Human Rights, yet the right to individual petition before the Commission was, in fact, also made optional. Further weakening the basic framework of the system, the recom- mendations of the Commission were not in themselves legally binding and had to be accepted by a Committee of Ministers to gain effect; they were, thus, in principle, under the control of an inter-state political body rather than an independent legal body. The Commission could, however, also choose to bring the case before the Court, granted that the state in question had accepted the jurisdiction of the Court and that the case could not be settled by conciliation.

Individuals had no option of bringing a case before the Court, whilst states could choose to bring a case before the Court. 14 As it appears from this overview of the main institutional features of the original ECHR system, at the time of negotiating the Convention, there was little political will to set up entirely independent legal institutions. The origi- nal institutional framework might indeed be described as somewhat opaque.

The legal diplomacy, which this article claims was at the heart of the early production of European human rights law, was, in fact, installed as a basic premise in the institutional order laid out in the ECHR. From the historical sources available, it is clear that establishing a European human rights system was anything but a straightforward process. 15 At the Congress of Europe in 1948, a number of problems, which were to hamper the subsequent nego- tiations, were already apparent. One of them being the most fundamental, namely, the question of the desirability of such a document in light of the existence of the Universal Declaration of Human Rights, adopted just a year earlier. Although this issue was eventually overcome, particularly due to the intervention of Winston Churchill, 16 the next question to arise was whether to pursue simply a Declaration of human rights – in the style of the Universal Declaration of Human Rights – or to attempt a more ambitious project in the form of a legally binding European Bill of Rights. 17 It was a problem which had already been prophetically anticipated in 1945 by the Cambridge Professor of International Law, Hersch Lauterpach: Should it be decided to reduce any international bill of human rights to a mere state- ment of political or moral principle, then, indeed, it would be most likely to secure easy acceptance; any possible diffi culty in agreeing upon its terms will be merged in the innocuous nature of its ineffectual purpose. But if the second World War ought to end, then a declaration thus emaciated would come dangerously near to a corruption 14 The Committee of Ministers also oversaw that the decisions of the Court were effectuated by the member states. 15 I refer to the minutes of the Congress of Europe in The Hague in 1948, the work of the main expert group (the Committee on Legal and Administrative Questions, which drafted a pre- liminary document the ‘Teitgen Rapport’ of September 1949), the senior offi cials reworking this draft in 1950 and the fi nal sessions of the ministers in 1950. 16 J. G. Merrils and A. H. Robertson, Human Rights in Europe: A Study of the European Convention on Human Rights (Manchester, 2001), 7. 17 Many of these issues arose again during the formal negotiation of the ECHR. This is recorded in the travaux préparatoires of the ECHR. 0003 Legal Diplomacy 67 of l a ng u a ge . By c re at i ng a n u nwa r ra nt e d i mpre s sion of pro g re s s it wou ld , i n t he m i nd s of many, constitute an event which is essentially retrogressive. For it would purport to solve the crucial problem of law and politics in their widest sense by dint of a grandil- oquent incantation whose futility would betray a lack both of faith and of candour. 18 This critique resonated well with a widespread sentiment among many of the main advocates of the ECHR. These ‘lawyers-statesmen’ had almost all experienced the horrors of World War II, and most had developed an ardent dislike of totalitarianism in any form. For them, as for Lauterpacht, a strong legal document – and well-timed political statement – was fundamental. These actors especially made a case against the kind of hypocrisy already observed in the U N, where countries with scant respect for human rights had signed the UDHR with little intention of turning its high prose into effective legal solutions. In Europe, membership of the Council of Europe was, therefore, made conditional upon the respect of human rights and democracy. And the European Convention was precisely to become the benchmark for determin- ing what was to be considered democracy and human rights in Europe. Having established this founding principle, which obviously implied that the Council of Europe and the ECHR became components of the new ideo- logical divide of Europe, the next question concerned which rights to protect and how to protect them. There was surprisingly little consensus on the rights to protect and the extent to which these rights should be defi ned in detail.

Refl ecting the geopolitical context, the debates on the scope of rights, unsur- prisingly, saw the tide turn in favour of political and civil rights, while social and economic rights were left for later amendments. The list of rights included in the original Convention was limited, but it was more than suffi cient for stating the fundamentals of a democratic society in a world marked by grow- ing Cold War tension. Pierre-Henri Teitgen noted in 1949, when presenting the so-called Teitgen Report: ‘The Committee on Legal and Administrative Questions… considered that, for the moment, it is preferable to limit the col- lective guarantee to those rights and essential freedoms which are practised after long usage and experience in all the democratic countries. While they are the fi rst triumph of democratic regimes, they are also the necessary condition under which they operate’. 19 The actual list of rights included in the Convention might come across as somewhat restricted and not very innovative. 20 It is certainly no exaggeration to claim that the real innovation of the Convention was on the institutional level. Not only was the idea of a European court, in particular, highly inno- vative, but it was also to have effects which went far beyond the Cold War political manoeuvrings which were intrinsic to the setting up of the Council of Europe. It should, however, be pointed out that among the member states 18 Hersch Lauterpacht, An International Bill of Rights of Man (New York, 1945), 9. 19 This statement can be found in the Consultative Assembly, Of\f cial Report of 7 September 1949, p. 127. 20 For details, see Merrils and Robertson, Human Rights in Europe , 8–15. 0003 Mikael Rask Madsen 68 no one could have predicted that such an institution would eventually drive toward a dynamic and expansive interpretations of the Convention, with the consequence of considerably altering the very notion of human rights in Europe and, thereby, also the substance and procedures of the protection of human rights in national legal systems. As argued elsewhere, there was a clear element of export trade in the whole exercise of writing the ECHR. 21 This had the effect of somewhat blinding the negotiators toward the potential national ramifi cations of such a document. They generally assumed that their home countries were in compliance with the Convention, as it was assumed to be based upon existing practices. Their greatest fear was that such a suprana- tional system of law would be abused by subversive agitators with friendly views of the Soviet Union, or the struggle for independence in the colonies; 22 that is, they feared that these rather straightforward politics of containment, in the guise of human rights, were to backfi re.

From Great Idea to ‘Convention à la Carte’ A key question related to the broader process of drafting the European Convention is where did the idea of establishing a supranational human rights system come from, and which political and legal milieus advocated what was a radical reform of European inter- and intra-state legal affairs. As suggested by A. W. Brian Simpson, the international legal academic Hersch Lauterpacht was clearly very central to the promotion of genuine legal instruments and institutions in the area of human rights in the aftermath of World War II. He shrewdly used the International Law Society to ensure both the diffusion of his ideas among relevant national and international actors and the legitimacy of an organisation counting some 250 leading international lawyers. 23 At the U N, Lauterpacht had also been a central player, but in a somewhat indirect way. Regardless of his status as a pioneer in the subject area of international human rights law, 24 he had not been appointed an offi cial representative of the United Kingdom. This was due to the Foreign Offi ce’s considering him a ‘disastrous’ candidate: He was not ‘sound enough’, that is, he was considered too idealistically and personally involved to perform the kind of pragmatic diplomacy favoured by the Foreign Offi ce. Perhaps even more critically, the 21 See Mikael Rask Madsen, ‘France, the U K and the “Boomerang” of the Internationalisation of Human Rights (1945–2000)’, in S. Halliday and P. Schmidt (eds.), Human Rights Brought Home: Socio-Legal Studies of Human Rights in the National Context , (Oxford, 2004), 57–86. 22 This is particularly clear in respect to the ‘imperial societies’. On the United Kingdom, see Geoffrey Marston, ‘The United Kingdom’s Part in the Preparation of the European Convention on Human Rights, 1950’, International and Comparative Law Quarterly , 42:4 (1993), 796 – 826, 825. 23 A. W. Brian Simpson, ‘Hersch Lauterpacht and the Genesis of the Age of Human Rights’, Law Quarterly Review (2004), 49–80. 24 He had notably published a shorter, well-timed book on the subject, Lauterpacht, An International Bill of Rights of Man . 0003 Legal Diplomacy 69 Foreign Offi ce head legal advisor did not fi nd him ‘English enough’ because of his Jewish ancestry. 25 Nevertheless, the drafts supplied by the Foreign Offi ce during the negotiation of the Universal Declaration were clearly marked by Lauterpacht’s thinking. 26 On the European level, Lauterpacht’s involvement was also indirect; his only direct involvement in the negotiation and drafting of the ECHR was as an inactive member of the Juridical Committee – the Draupier Commission – which had been set up at The Hague in 1948 to produce a draft European Charter. Moreover, Lauterpacht was not involved in drafting the Teitgen Report, nor was he involved in the many debates under the auspices of the Council of Europe. His role was that of contributing to an idea which is now taken for granted: International and European human rights can be pro- tected only if powerful institutions are created to monitor and enforce such legal documents. However, as already suggested, the text fi nalised in 1950 was to be marked by some striking compromises as regards the institutional mechanisms. The ECHR had at best a ‘refl exive’ institutional order, balanc- ing legal autonomy with national sovereignty. It is telling that Lauterpacht turned out, eventually, to be in favour of an intermediary Commission, and even denounced the idea of an exclusive Court as ‘neither practicable nor desirable’. 27 The original introduction of the idea of a Court in the draft Charter produced after the Congress of Europe was, in fact, mainly seen as a pragmatic solution fi tted to another problem, namely, the aforementioned confl icts over the defi nition of the rights catalogue. 28 A Court, the argument went, could be charged with carving out a detailed jurisprudence, and, thus, the delicate political problem of defi nition was, if not solved, then left for later, allowing the negotiations to proceed. 29 Introducing the idea of a Court in order to solve the problem of defi ning the rights catalogue, however, only opened up a new confl ict concerning the actual desirability of such an institution. It is in this light that Lauterpacht’s somewhat surprising statement has to be seen. Even if the solution of a Court, at fi rst glance, seemed to appeal to common law traditions, the British delega- tion was among the fi ercest opponents of having an imprecise document left with an uncertain supranational institution. 30 Furthermore, as a later judge at the European Court writes: ‘It was considered unacceptable that the code 25 Simpson, ‘Hersch Lauterpacht and the Genesis of the Age of Human Rights’. 26 See Madsen, ‘France, the U K and “Boomerang”’. 27 Simpson, ‘Hersch Lauterpacht and the Genesis of the Age of Human Rights’. Lauterpacht would probably have been more than happy with the way in which the ECHR system was to subsequently develop. As Simpson notes, the idea of ‘practical and effective’ were to become absolutely central in the jurisprudence of the EHRC. 28 For details, see, for example, Moravcsik, ‘The Origins of Human Rights Regimes’. 29 Simpson, ‘ Human Rights and the End of Empire ’. 30 It was ironically the British member of the Teitgen Commission, Sir Maxwell Fyfe, who a r g u e d m o s t s t r o n g l y i n f avo u r o f a C o u r t , e vo k i n g t h e r o l e p l ay e d b y t h e U . S . S u p r e m e C o u r t . See Council of Europe, Collected Edition of the Travaux Préparatoires (1961), 50. 0003 Mikael Rask Madsen 70 of common law and statute law which had been built up in the country over many years should be made subject to review by an International Court’. 31 Adding the argument of the paramount role of Parliament in the British politi- cal tradition, the almost insurmountable task facing the negotiators was plain to see. 32 The question of establishing a Court was, in practice, met with con- siderable opposition from a host of countries well into the meetings held in the summer of 1950. 33 This had the effect that the idea of an intermediary body in the form of a Commission was gradually gaining support as a viable alter- native. Only a small majority supported the question of individual petition, whilst the ongoing issue of whether to draft clear legal obligations or leave it to the Court to carve out the jurisprudence continued to see very confl icting views. 34 The only real agreement was that a document of this kind was needed in light of the geopolitical climate of the day, yet any consensus on the con- tents remained far off. In this context, it becomes apparent why, for example, the Te i t g e n Committee could play a decisive role. It basically provided the right blend of comprehensive legal solutions and ‘diplomatic appeasement’, which was much in demand if the project was to succeed at all. Moreover, by occasionally play- ing their trump cards as hardened World War II freedom fi ghters, these legal- political experts could unambiguously evoke the imminent dangers of the time – the looming imperialism of the Soviet Union – by a double reference to totalitarianism implying simultaneously the Nazis and the ‘Commis’. 35 Besides Pierre-Henri Teitgen, a law professor, postwar French Minister of Justice and well-known member of la Résistance , the Committee also counted amongst its members Sir David Maxwell Fyfe, a British barrister and former Prosecutor at the Nuremberg War Crime trials, and Antonio Azara, a former Italian Minister of Justice and fi rst President of the Italian Court of Cassation. It was this all-star cast of legal and political expertise that was to ensure that most of the draft Convention could pass the fi nal political screening before signature.

The learned opinions of even the most well-endowed and respected law- yer-politicians, however, do not necessarily equate with what can be voted for in a plenary meeting of politicians assisted by their senior legal advisors.

In uncertain policy areas, the crafting, selection and promotion of the main 31 Sir Vincent Evans, ‘The European Court of Human Rights: A Time for Appraisal’, in Human Right for the 21st Century , ed. Robert Blackburn and James J. Busuttil (London, 1997), 88. 32 For a detailed analysis of the British position during the drafting, see Marston, ‘The United Kingdom’s Part in the Preparation of the European Convention on Human Rights, 1950’. 33 These countries included Britain, Denmark, the Netherlands, Norway, Sweden, Greece and Tu r k e y. 34 Simpson, Human Rights and the End of Empire , 711–712. 35 In one of the draft reports presented by Teitgen, he bluntly stated that the Convention ‘will allow Member States to prevent – before it is too late – any new member who might be threatened by a rebirth of totalitarianism from succumbing to the infl uence of evil, as has already happened in conditions of general apathy’. The message could hardly be lost in trans- lation. See Preparatory Work on Article 1 of the European Convention of Human Rights , Strasbourg, 31 March 1977, 17. 0003 Legal Diplomacy 71 ideas obviously constitute a key stage in the manufacturing of consent. In this respect, there is little doubt that the Teitgen Committee, and its predeces- sor set up at the Congress of Europe, generally managed to defi ne what this new subject should entail. Yet the idea of European human rights was, in a somewhat paradoxical way, both novel and well known; that is, even though Teitgen & Co. carried out impressive lobbying, the politicians and their senior legal advisors eventually started scrutinising these proposals and redrafting them according to national conceptions of human rights. In the course of the many meetings and negotiations, the ‘new’ subject area of European human rights was also becoming increasingly familiar to the various national delega- tions, which meant that they also increasingly started to assume their tradi- tional roles as brokers of national interests. As this became the case, it became equally clear that some compromises were badly needed if the Convention was to be saved. To make a long and complex story short, the outcome of the decisive meet- ings in the late summer of 1950 was that a series of optional clauses were introduced in the fi nal text. The acceptance of the Court, individual petition and the application of the Convention in the colonies were all made optional.

This was done in a last-ditch manoeuvre to satisfy what continued to be insurmountable differences of the not yet united Europe. As an effect, the great moral-politico framework of the ‘Free Europe’, which the project of the European Convention had fi rst emerged as in the late 1940s, was at the end of the day turned into more of a ‘Convention à la carte’. Human rights, the inalienable rights of European men and women, were being Europeanised only inasmuch as the contracting states allowed for it. Furthermore, as a result of this situation, the negotiation of the idea of European human rights was to continue well beyond the day of signature of the ECHR, 4 November 1950: In 1952, the European Social Charter saw the light of day, and in the course of the following decades a series of other amendments, known as Protocols 2–5, also appeared. 36 The bottom line was that the rise of a legal practice of European human rights was to take place in the context of a continuous political meddling with the idea of European human rights. Law and poli- tics did not, in other words, go separate ways after the drafting, as is the custom, but remained mutually dependent variables in the manufacturing of postwar human rights. As suggested in the following, the institutionalisation and juridifi cation of the Convention was to be considerably infl uenced by this logic of path dependence.

The Double Challenge of the Strasbourg Institutions For the Convention to be effective, at least ten member states had to ratify.

Britain was the fi rst state to ratify in March 1951, followed by Norway, 36 On the contents of the protocols, see Merrills and Robertson, Human Rights in Europe , 15 –1 7. 0003 Mikael Rask Madsen 72 Sweden and the Federal Republic of Germany in 1952. The Convention entered into force in 1953 after having received six more ratifi cations from smaller European countries. In light of the many compromises included in the fi nal text, the decisive point was then, in reality, whether the member states would accept the two central optional clauses: the right to individual petition and the jurisdiction of the Court. For the procedure of individual petition to be effective, the Convention required six acceptances: Sweden was the fi rst country to accept in 1952, and was followed by Ireland and Denmark a year later. In 1955, Iceland, the Federal Republic of Germany and Belgium also accepted the right, and the procedure entered into force in respect to these six countries. However, accepting the compulsory jurisdiction of the Court was a more drawn-out affair. In 1953, Ireland and Denmark were the fi rst to accept the jurisdiction of the Court, followed by the Netherlands i n 1954. I n 1955, Belgium and the Federal Republic of Germany also took this step and were followed in 1958 by Luxembourg, Austria and Iceland. Having then received the necessary eight acceptances, the Court was competent by September 1958, yet was ready to sit only in January 1959 after the election of the judges had taken place. What is apparent from this overview of the fi rst countries to accept the system is the striking absence of three out of the four major European pow- ers. Although Germany, for obvious reasons, was eager to be included, nei- ther France, the United Kingdom nor Italy had at this point accepted either of the two key optional clauses – and this, regardless of the fact that British, French and Italian actors – on the government level as well as in the expert commissions – had been the most infl uential participants in the negotiations.

Nevertheless, for some rather peculiar legal reasons, this did not completely sideline the big countries. According to the Convention, any country that was a member state to the Council of Europe had the right to have a judge on the EHRC bench, whilst the ratifi cation of the Convention was a condition for being represented at the Commission. This meant, for example, that France and Britain were represented at the Court – in fact, they held the presidency in turn during the fi rst decade – but only Britain had a Commissioner. 37 In 1966, Britain did eventually accept the jurisdiction of the Court and individ- ual petition for a test period. France, however, ratifi ed the Convention only in 1974, with a safe distance from the war in Algeria, and accepted the right to individual petition when Mitterrand was elected President in 1981. What can be deduced is that the challenge facing the ECHR system in its early years of operation was a double one, concerning issues of both building legitimacy, vis-à-vis the contracting States, and providing justice to the many individuals who sought recourse before the Strasbourg institutions. 38 The absence of the major powers in respect to the most central mechanisms of the Convention 37 France, however, had an observer in the Commission. 38 Cf. Max Sørensen, ‘Les experiences personelles de la Convention. L’experience d’un membre de la Commission’, Revue des droits de l’homme (1975), 329 –342, 330. 0003 Legal Diplomacy 73 was obviously a serious problem in both regards. The functionality and legit- imacy of the system depended, at the end of the day, upon individual petition as well as the development of a reasonable jurisprudence in the eyes of the member states. 39 It is in this regard important to note that the early human rights system in Strasbourg was very far from the professionalised and full-time human rights machinery of the post–Protocol 11 era, currently working out of a steel-and- glass palace on the banks of the river Ill. 40 In the 1950s and 1960s, the prem- ises were cramped and the judges worked part-time, remunerated on a daily basis. In fact, they met only sporadically, and, for a period during the 1960s, they met about once a year and only because the rules required them to do so. The same was true of the Commission, although it played a more active role due to its task as a screening body for the applications received. A brief survey of the actual applications admitted to the two bodies reveals a picture of a set of institutions having, at best, a very slow start: In the 1950s, only fi ve applications were admitted, and only 54 throughout the 1960s. Of these, only a marginal number actually ended up as judgements. As concerns the Court, it delivered only ten judgements during its fi rst ten years of operation, in which only a handful found violations of the Convention. 41 In explaining this situation, it is generally suggested in legal literature that the Commission – and not the Court – was the key player during the early period, and that this was due to the particularities of the ECHR screening procedures leaving the Commission to have a fi rst say on the applications. 42 This explanation of the early institutional dynamics, however, overlooks the fact that the omnipres- ence of the Commission was, in part, also the product of the institutional fric- tions of the dual system of a Court and a Commission, as well as the political conditions surrounding these emerging institutions more generally. 43 It appears from interviews conducted for this research that the Commission, in fact, worked deliberately to carve out its role. 44 According to one of the fi rst 39 It should be underlined that of the fi rst eight declarations of acceptance of the jurisdiction of the Court, seven were limited to a time period and, thus, up for renewal. Austria , Denmark, the Federal Republic of Germany, Iceland and Luxembourg had specifi ed this period to be three years; Belgium and the Netherlands initially accepted the jurisdiction for fi ve years. See A. H. Robertson, ‘The European Court of Human Rights’, American Journal of Comparative Law , 9:1 (1960), 1–28, 18. 40 Protocol 11 provided a substantial reform of the European human rights system in Strasbourg.

Coming into force in 1998, a new and permanent Court was set up to deal with an ever increasing case load. 41 Brice Dickson (ed.), Human Rights and the European Convention (London, 1997), 19. 42 Ibid. 43 Generally, as noted by a civil servant working for the ECHR system from its inception, the whole enterprise of European human rights was marked more by ‘human rights than human rights law’ (interview, 20 November 2002). According to the same source, the staff, the civil servants working at the institutions’ secretariat, saw themselves more as the ‘avocats de la Convention’ than a corps of professional bureaucrats (interview, 20 November 2002). 44 See also particularly Sørensen, ‘Les experiences personelles de la Convention’. See also Sture Petrén, ‘La saisine de la Cour europénne par la Commision europénne des droits de l’homme’, 0003 Mikael Rask Madsen 74 civil servants employed at the ECHR, the Commission did, in fact, ‘fermé le robinet’, that is, it cut off the fl ow of cases to the Court for some six years dur- ing the 1960s as a consequence of ‘une affaire d’amour propre’ between the two organs: one in robes with the power to issue legally binding decisions and with well-paid judges and, the other, in civilian attire theoretically only issu- ing decisions to be given effect by the Committee of Ministers. 45 According to the same source, as a response the Court spent most of its time revisiting its Statute with the objective of enhancing its powers, by seeking, for example, to obtain consultative prejudicial competence. A number of judges even launched a critique of the Commission in professional journals. 46 Such an understand- ing of the institutional frictions might be somewhat exaggerated, but the basic point is supported by data on the actual fl ow of cases. After the Court had been called on in the two cases of Lawless and De Becker in the late 1950s, there was a period of fi ve years between 1960 and 1965 when the Court did not receive a single case from the Commission. 47 The situation is captured in an unpublished essay by the Danish judge on the Court, Alf Ross, titled The Unemployed Court . 48 Considering the available empirical material, there is little doubt that the centrality of the Commission was much more the product of the Commission’s self-initiated strategy of enhancing its power vis-à-vis the Court than simply the inevitable outcome of the provisions of the Convention. The Commission made the most of its powers within the dual structure of the Convention, but it does not appear from the legal provisions that the driver for this positioning was intra-institutional frictions and ultimately concerned the Commission’s objective of developing its own jurisprudence before it eventu- ally allowed for cases to go to the Court. 49 This analysis, however, provides only a partial answer as to what came out of this intra-institutional turf war in terms of human rights law. Surprisingly, a closer look at the initial prac- tices of the Commission strongly indicates that quantitatively the main task of the Commission was, in fact, to reject claims of human rights violations.

It appears that the most signifi cant contribution of the Commission’s early jurisprudence on European human rights concerned the notion of ‘manifestly ill-founded’ claims, that is, the development of a jurisprudence of what are not human rights violations under the ECHR. In plain language, the ‘coup’ orchestrated by the Commission did not imply great breakthroughs as regards in Mélanges offerts à Polys Modinos. Problèmes des droits de l’homme et de l’uni\f cation europénne (Paris, 1968), 233–244. 45 Interview, 20 November 2002. 46 See also Sørensen, ‘Les experiences personelles de la Convention’, 330 in this respect. 47 This has to be seen in light of the fact that the number of applications received was actually relatively high. 48 Alf Ross, ‘En arbejdsløs domstol’, unpublished manuscript. 49 This is also apparent when one reads the description of the early years of the Commission provided by its President, Max Sørensen. See Sørensen, ‘Les experiences personelles de la Convention’. 0003 Legal Diplomacy 75 the protection of human rights in Europe, but rather cemented the institution’s ‘fi rst right to reject’, which consequently kept the Court at bay.

The Art of Diplomacy and the Need for Legitimacy In order to more fully explain the early institutional dynamics of the ECHR, these intra-institutional skirmishes obviously have to be analysed in the con- text of the external constraints of these emerging institutions. Regardless of what is normally implied by the very term ‘institution’ and certainly ‘insti- tutional analysis’, it seems relevant to analyse the ECHR institutions as hav- ing been produced at the intersection of external and internal constraints.

What, hereby, is suggested is not simply to raise the question of input and output legitimacy of these institutions, 50 but to analyse these dimensions as interdependent – that is, to analyse the correlation between the internal structures of these institutions and their positioning within a larger external structure, that of an emerging fi eld of human rights. 51 The applicability of such an approach in the context of emerging European legal institutions is already suggested by the relative clash between the Commission and Court.

However, fully explaining the surprising development of a minimalist notion of European human rights under the auspices of the Commission requires a further examination of the specifi c diplomatic climate in which the rise of the European human rights system and jurisprudence took place. The minimal- ist notion of human rights did allow the Commission to control the fl ow of cases, yet the background to this institutional strategy can only partly be located in the internal constraints of the ECHR institutions. It was equally the product of the political-historical context. As argued elsewhere, the Strasbourg institutions were, in fact, rather hesi- tant during the fi rst fi fteen to twenty years of operation before initiating the dynamic jurisprudence which was to cement their position from the early 1980s as a quasi ‘European Supreme Court’. 52 The reasons for this initial reluc- tance was mainly that the institutions were vulnerable in respect to the mem- ber states and, therefore, had to continuously strike a fi ne balance between promoting European human rights and convincing the member states of its relevance and reasonableness. 53 It is curious to note that the fi rst major cases – the Cyprus cases (the Commission) and the Lawless case (the Court) – indeed gave the member states the impression that the ECHR system was not going to take an aggressive stance against the member states in the area of human rights. 54 There is little doubt that this cautious course of action was due to the 50 On this notion, see Fritz W. Scharpf, Governing in Europe: Effective and Democratic? (Oxford, 1999). 51 Such a way of conceptualising institutions obviously draws on Pierre Bourdieu, ‘Le champ économique’, Actes de la recherche en sciences sociales , 119 (1997), 48–66. 52 Madsen, ‘France, the U K and the “Boomerang”’. 53 See Sørensen, ‘Les experiences personelles de la Convention’. 54 See Simpson, Human Rights and the End of Empire . 0003 Mikael Rask Madsen 76 political climate of the late 1950s and early 1960s. During the period, Cold War–inspired clashes in the area of human rights were at their peak, 55 and, more importantly, the battle over decolonisation was still unfi nished, which placed European states in the eye of the hurricane of the broader geopolitical scheme of human rights. Moreover, as suggested above, a very central task of the ECHR institutions consisted, in fact, of seeking to convince the major European powers, which also happened to be geopolitically the most vulner- able in this respect, of accepting the optional clauses. The case of the United Kingdom is exemplary in this regard. As noted, the United Kingdom accepted the individual petition and the jurisdiction of the Court only in 1966 against the backdrop of a very limited jurispru- dence. However, the relevant actors had a ‘feeling’ that these institutions had already developed a sound understanding of what could – and should – be implied by the notion of European human rights. The Foreign Offi ce legal advisor in charge of reviewing the compatibility of English law in respect to the Convention before accepting the optional clauses recalled the situation in an interview: We had to review our legal system in the light of whatever jurisprudence had devel- oped, and it was very little at that time.… [T]he jurisprudence of the Court had not been developed at all at that time. Two cases [had] come before the Court. Several thousand complaints have come before the Commission. But, the Commission had taken, I would say, a rather restrictive view on the interpretation of the Convention, not a liberal view, despite the fact the Convention is drafted in quite broad terms. But, the effect of this approach of the Commission was, in fact, to build up the confi dence of Governments in the system.… They didn’t feel that the system was going mad and that, you know, any applications from any old chap that felt his rights had been vio- lated would be successful before the Commission. 56 As it appears from this quotation, the predictions of what could be expected in Strasbourg played a signifi cant role in convincing the member states of gradually accepting the full ECHR package. 57 The self-constraining strategy of the Commission manifested in its jurisprudence on ‘manifestly ill-founded claims’, along with the few and restrained decisions of the Court, had in fact produced the image of a solid and politically refl exive institution, that is, an institution that was willing to listen to the arguments of the member states and not (yet) pursue an idealist, even radical, human rights agenda. Contributing equally to the image and institutional identity of the ECHR system were the very persons appointed to the Commission and Court and their status in national legal fi elds. A brief look at the main professional 55 See, for instance, Yves Dezalay and Bryant Garth, ‘From the Cold War to Kosovo: The Rise and Renewal of the Field of International Human Rights’, Annual Review of Law and Social Science (2006), 231–255. 56 Interview, 25 April 2001. 57 For a detailed analysis of the political process of the British acceptance of the optional clauses, see Lord Lester, ‘U K Acceptance of the Strasbourg Jurisdiction: What Really Went on in Whitehall in 1965’, Public Law (1998), 237–253. 0003 Legal Diplomacy 77 characteristics of the fi rst judges of the Court provides a picture of a set of actors who, for the most part, were legal academics. Of the fi rst fi fteen judges appointed to the Court, nine can be characterised as mainly academ- ics, whereof most specialised in international law. 58 It is, in this regard, also important to note that only a few had a background as national judges. 59 Indeed, contrary to the fi rst judges of the European Court of Justice, who for the most part were appointed because of more specifi c specialisations in law, economics and the administration of justice, 60 the jurists of the EHRC were a far more homogenous group of elite legal academics. 61 What is certain is that this group of actors could provide, if not expertise on how to run a suprana- tional court, then certainly legal legitimacy in respect to the national legal fi elds of the member states in which they all held great prestige. Hence, despite acting out of an, by all means, uncertain institutional framework, they held a legal capital which was easily exchangeable to the different legal orders of the member states. It is, in this regard, also important to note that a number of the jurists appointed were also well situated in respect to national political fi elds. Many of these jurists had been actively involved in foreign policy issues of a legal nature. For example, the second President of the Court, René Cassin, had a long semi-political career behind him during which he had, among other roles, acted as legal counsel to Charles de Gaulle’s Free France Government i n L ondon du r i ng t he wa r, a s wel l a s b e e n app oi nt e d to a s er ie s of ke y gover n - mental committees and leading NGOs. Another central actor in this respect was the President of the Commission, the eminent Danish public interna- tional law professor Max Sørensen, who had previously not only provided expert consultancy for the Danish Ministry of Foreign Affairs but also been an employee of the same institution. The ECHR experts’ familiarity with the political environments had a double importance in respect to building the legitimacy of the institution. On the one hand, the legal experts were 58 Kemal Fikret Arik was professor of private international law and Dean of the Faculty of Political Science at the University of Ankara; Frederik Mari Van Asbeck was professor of international law at the University of Leyden; Giorgio Balladore Pallieri was professor of pub- lic international law and Dean of the Law Faculty of the Università Cattolica del Sacro Cuore in Milan; Ake Ernst Vilhelm Holmback had been Rector of the University of Uppsala, and Georges Maridakis, Rector of the University of Athens; Hermann Mosler was professor of international law at the University of Heidelberg; Henri Rollin was professor of international law at the University of Brussels; the Danish legal philosopher and expert on public interna- tional law Alf Ross was professor at the University of Copenhagen; and the eminent expert on public international law Alfred Verdross was Dean of the Law Faculty of the University of Vienna. 59 Einar Arnalds (Civil Court of Reykjavik), René Cassin (Vice President of the French Conseil d’Etat but also a professor of law), Lord McNair (former President of the International Court of Justice, as well as professor of international law), Eugene Rodenbourg (President of the Court of Luxembourg) and Terje Wold (President of the Supreme Court of Norway). 60 See, for example, Robertson, ‘The European Court of Human Rights’, 13 n. 40. 61 An examination of the fi rst Commissioners provides a similar picture of a legal academic elite. 0003 Mikael Rask Madsen 78 acquainted with foreign policy problems and milieus, and, on the other hand, the foreign policy milieus did see the Judges and Commissioners as, if not belonging to exactly same social circles, then being perceptive to diplomacy and issues of national sovereignty. 62 In retrospect, it might come across as practically self-evident that the exter- nal legitimisation of the ECHR system was paramount during the early years, and that this issue was partly overcome by the means of appointing a set of legal actors who had both a perfect command of international law and an understanding of its diplomatic dimension. It is, in this conjunction, impor- tant to emphasise that these emerging practices took place in what might best be described as a vacuum of legal knowledge on European human rights. For the same reason, the very few statements and decisions of the ECHR institu- tions were scrutinised by the assembled foreign ministries of the contract- ing states, and, perhaps more importantly, the individual actors representing the ECHR institutions were seen as embodying the ECHR institutions and, thus, were scrutinised as such. 63 It is an important yet generally overlooked element in the production of early European human rights that many of the great jurists of the Strasbourg institutions did very little, in fact, to prompt a broader systematisation and conceptualisation of the subject in their respec- tive countries. 64 In the words of a former Danish judge at the European Court, then a young academic: ‘[Human rights] didn’t cause discussions or disserta- tions of any kind.… Human rights became a word but not a concept, and no one was really interested’. 65 In more interpretive terms, European human rights – even in the view of many of the jurists developing the ECHR institu- tions – was at the time not yet ‘real law’ 66 and, thus, not to be treated with the usual caution and discipline which serious legal science demands. As implied by this analysis, this new European law is perhaps better described as a par- ticular tool of the complex diplomacy of transforming a Europe of opposing empires into an integrated legal space. As history suggests, it did not remain so. However, during the fi rst two decades of the life of European human rights 62 An in-depth analysis of the jurists appointed by the United Kingdom almost suggests that the strategy was to expatriate a cell of the Foreign Offi c e to S t ra sb ou r g i n ord er to h ave a n i mpac t on the legal and institutional developments. See further in Madsen, L’Emergence d’un champ des droits de l’homme dans les pays européens . 63 See, for example, the Foreign Offi ce’s evaluation of the Commission mission to Cyprus in the late 1950s. Simpson, Human Rights and the End of Empire , 941. 64 Only a very few universities offered programmes in the 1960s which tackled directly or indi- rectly the subject of European human rights. Strasbourg was one of the exceptions in this regard. This was due to both the efforts of the Schuman University and the human rights research institute created by René Cassin after having received the Nobel Peace Prize in 1969. 65 Interview, 27 April 1999. 66 Generally on the international and European levels, human rights was originally considered as a new subdiscipline of international relations to be treated by public international law – the law between nations – and thus placed in the hands of diplomats backed up by the judgements of law professors of public international law, albeit these professors’ actual investments in human rights in terms of legal science were only sporadic. 0003 Legal Diplomacy 79 law, this new legal knowledge and savoir faire was, at the end of the day, a very advanced form of diplomacy: a legal diplomacy. Such an understanding obviously draws on Max Weber’s notion of legal rationality and associated forms of domination. The Weberian concepts also provide a tool for understanding the role of a set of key individuals in the making of early European human rights law. Although there is little doubt that much of their credibility was due to their symbolic power as a sort of ‘honoratiores of law’, more important perhaps is the question of what kind of law and legal rationality was being generated by this ‘legal nobility’. Was it – following the scheme of Max Weber – ‘formal irrational’, ‘substantively irrational, ‘formally rational’ or ‘substantively rational?’ 67 This study gener- ally suggests that the answer is somewhere between ‘formally rational’ and ‘substantively rational’ law, leaning toward the former rather than the latter.

This interpretation is partly based upon the fact that the general corpus juris on European (and international) human rights was practically nonexistent at the time and, thus, could not serve as a source of legal certainty. As well, the ECHR institutions’ initial mode of production clearly favoured a case- by-case approach which allowed for balancing national interests and general objectives of human rights. 68 Their initial operations suggest a very subtle balancing act between pursuing the law of human rights and convincing the member states of both the importance and reasonableness of their practices.

The few cases that made their way to the European Commission of Human Rights – and the even fewer that went to the Court – were for the same rea- sons of crucial importance in respect to building these institutions. As A. W.

Brian Simpson has dryly noted, the ones on trial during the early period were, in fact, not the member states but the Court and the Commission. 69 It was not until this initial ‘trial period’ was over, beginning in the mid-1970s, that these institutions could substantially rationalise the law of European human rights; that is, they could neutralise and even reduce the underlying political compromises which had predetermined both the institutional framework and the normative contents of European human rights.

Conclusion The history of the postwar European human rights regime stands out from the other international and regional human rights systems developed during the 67 For further introduction to these notions, see, for example, Anthony T. Kronman, Max Weber (S t a n ford , 1983). 68 Although the famous margin of appreciation doctrine is commonly thought to have been fi rst elaborated in the decision Handyside vs. UK , a closer look at the two founding cases of Cyprus and Lawless clearly suggests that this key balancing principle was already being put into play in the late 1950s. See further in Michael R. Hutchinson, ‘The Margin of Appreciation Doctrine in the European Court of Human Rights’, International and Comparative Law Quarterly , 48:3 (1999), 638–650. 69 Simpson, Human Rights and the End of Empire . 0003 Mikael Rask Madsen 80 same period. This should, however, not overshadow the fact that European and international human rights are deeply enmeshed in the same twentieth- century history. The European Convention continued a legal-politico project already commenced by the U N of impeding large-scale confl ict and the rise of militant ideologies by developing international law. The European ver- sion of this postwar strategy of international law-making, however, almost immediately gained a set of different drivers and characteristics. Although both European and U N human rights were drafted against the background of the atrocities of World War II, the main driving force behind the European regime became the fear of Soviet imperialism into Western Europe. Almost from the outset, this Cold War dimension created a political unity among the negotiating states, which gave the whole undertaking of institutionalising and developing human rights law a decisive sense of urgency and necessity. The European human rights project, thereby, came to differ signifi cantly from the U N human rights regime. If the U N Human Rights Commission was to be paralysed by Cold War–inspired confrontations, the European human rights regime was fuelled by Cold War– enthused sentiments. This starting point only later and gradually transformed toward an idea of European human rights as a dynamic area of law. As well, the idea of European human rights as the underpinning politico-moral framework of European integration, which orig- i n a l ly h ad b e e n e voke d a s pa r t of C old Wa r s t rat e g y of t he l at e 1940 s , h a s on ly recently been achieved with the post– Cold War transformations of Europe. 70 When seen in respect to the broader history of postwar international human rights, the case of European human rights both confi rms some general trends and supplies a number of important nuances. It, fi rst and foremost, confi rms the paramount importance of Cold War politics on the development of human rights. Focusing on the European case provides, however, a much needed cor- rection to the widespread assumption that the development of human rights was brought to a standstill by the Cold War. This analysis argues in contrast that the Cold War was highly decisive to the evolution of European human rights. In fact, the early politics of European human rights necessarily have to be understood in the light of what has been termed the Cultural Cold War; that is, European human rights was not only part of the ideological contest of the period, it was also part of its cultural battle. The struggle for European human rights, in other words, constitutes a highly central but much over- looked component of the Cold War at large. This chapter also confi rms the importance of decolonisation on the development of human rights. In this analysis, decolonisation has not been explicitly emphasised, but it nevertheless appears as the main explanation of the reluctance of France and the United Kingdom. For these two imperial societies, it was vital to maintain that the postwar universalisation of human rights was not in contradiction to colonial politics. Whereas this was more or less achieved on the U N level, European human rights posed a much more serious threat to imperial sovereignty. It 70 Perhaps most strikingly with the EU’s Charter of Fundamental Rights. 0003 Legal Diplomacy 81 has been argued that the European Convention played a direct role in the closing act of the British Empire. 71 Following the analysis suggested here, it is more plausible to argue that for European human rights to develop beyond the initial legal diplomacy analysed in this article, it had to await the end of European empire. More precisely, it was only with the fading of colonial con- fl icts that the European human rights institutions were in a situation where they had the liberty to sharpen the legal tools of the Convention without sub- stantial protest from the larger member states. This is further linked to a general claim in the literature that the 1970s saw the real breakthrough of international human rights. As concerns European human rights, many of the central legal notions – ‘living instrument’, ‘practi- cal and effective’ etc. – did emerge toward the end of the 1970s. However, European human rights did not simply join the bandwagon of human rights activism of the 1970s and 1980s. The metamorphosis of European human rights during the period was, above all, made possible because of the cru- cial processes of legitimisation of the previous period. This also explains why European human rights law could develop as rapidly and substantially as it did throughout the 1980s compared to other human rights regimes. For the same reason, most analysis of the European human rights regime under- stands current European human rights as marked by progressive law, not legal diplomacy. A sharper look at the contemporary practice of perhaps the most central legal principles of the early period, the notion of the (national) ‘mar- gin of appreciation’, however, reveals a more complex picture. The success of European human rights, it appears, remains dependent on the Strasbourg institution’s ability to strike a balance between the national and the European.

In the early period, this diplomacy concerned balancing European law and national politics, while today it concerns balancing national and European law. Nevertheless, it is a crucial act of diplomacy performed by jurists. 71 Simpson, Human Rights and the End of Empire . 0003 0003 Pa rt I I POSTWAR UNIVERSALISM AND LEGAL THEORY 0003 0003 85 4 Personalism, Community, and the Origins of Human Rights Samuel Moyn In the summer of 1947, the Institute for International Law reconvened after a ten-year hiatus. For decades the self-appointed tribune of European “civiliza- tion” and the legal conscience of humanity, the Institute now hoped to retake its former role. Given its prominence in the rhetoric of the Allied new order during World War II, the new concept of human rights – though interna- tional lawyers had not even fl irted with it before – stood as the fi rst item on their agenda. 1 The atmosphere was one of bitter disappointment: Whatever the idealism of wartime dreams, the sad but obvious fact was that when it came time to enact a peaceful order – most fl agrantly in the Dumbarton Oaks documents, in which human rights did not even fi gure – a theory of sovereign power politics ruled. As for the United Nations Charter, the great powers had it adorned with the phrase human rights without providing either any defi nition of its values or any institutional means for their defense. 2 The inter- national lawyers of Europe were, they believed, perhaps the last best hope for making good on what now seemed like broken promises. “Neither the Charter nor diplomatic wrangling is reassuring,” noted Charles de Visscher, Belgian international lawyer and judge (1946–1952) on the International Court of Justice who prepared the Institute’s report and proposal on human rights, in his opening remarks. “International organiza- tion,” he complai ned i nd ig na ntly, “looks li ke a mere bu reaucrac y w it h neit her 1 On the Institute from its nineteenth-century origins through this period, see most notably Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law (Cambridge, 2002). One émigré Russian international lawyer had proposed an international bill of human rights in 1929, but was essentially ignored at the time. See André Mandelstam, “La Déclaration des droits internationaux de l’homme, adoptée par l’Institut de droit inter- national,” Revue de droit international , 5 (1930), 59–78 , and Mandelstam, Les Droits inter- nationaux de l’homme (Paris, 1931); for comment, Dzovinar Kévonian, “Exilés politiques et avènement du ‘droit humain’: la pensée juridique d’André Mandelstam (1869–1949),” Revue d’histoire de la Shoah , 177–178 (January–August 2001), 245–273. 2 Cf. Elizabeth Borgwardt, A New Deal for the World: America’s Vision for Human Rights (Cambridge, Mass., 2005). 0003 Samuel Moyn 86 direction nor soul, unable to open to humanity the horizons of a true inter- national community.” A new international law, based on human rights and theorized and implemented by the caste of jurists, might, however, provide the “morally-inspired salvation” that the world clearly needed. Now comes a very curious statement: “Since the end of the second world war, a powerful current of ideas has arisen against the nameless abuses that we have witnessed: it is the personalist conception of society and power. The intellectual elites of all of the countries with liberal and democratic traditions are rallying to this con- ception.” According to de Visscher, this “personalist conception” alone could provide the basis of an authentic turn to human rights and guide the response of law to Machiavellian power. 3 In spite of the recent wave of studies of the origins of human rights after World War II, one would be hard pressed to understand what this leading international lawyer of the time was talking about. In fact, however, per- sonalism was a principal feature of human rights consciouness of the 1940s, especially, though not exclusively, on the European Continent. What was per- sonalism, how was it possible to view it as the key to the turn to human rights, and how thoroughgoing a resonance did it really have in the postwar moment? Forgotten now, the spiritual and often explicitly religious approach to the human person was, this essay suggests, the conceptual means through which Continental Europe initially incorporated human rights – and, indeed, became the homeland of the notion for several decades. Recovering the cen- trality of personalism, however, should deeply unsettle prevailing opinion about what the concept of human rights implied in its founding era. This essay surveys a few of its sources, looks at the breadth of its percola- tion (not least in legal thought), and evaluates the signifi cance of the personal- ist vehicle for rights in the 1940s. If this episode is missing from the emerging understanding of human rights, it should also drive home a larger lesson about the teleology, tunnel vision, and triumphalism that has so deeply affected cur- rent historiography. Universalistic and formalistic languages always have a historically specifi c and ideologically particular meaning, which it is the mis- sion of historians to seek out. In early postwar Europe, human rights were – contrary to current expectations and desires – most associated with neither a revolutionary nor a republican heritage. For almost nobody were they the essence of post-Holocaust wisdom, not least since the crimes of Nazi evildo- ers were not yet understood to be primarily ones against the Jewish people.

Finally, they were not the inspiration for a new sort of private activism, which had other and later sources. 3 “Les droits fondamentaux de l’homme, base d’une restauration du droit international,” Annuaire de l’Institut de Droit International , 41 (1947), 1–13 (travaux préparatoires by Charles de Visscher), 142–190 (discussion), 258–260 (declaration), at 153–154. For the text of the declaration in English, see “Fundamental Rights of Man, as the Basis of a Restoration of International Law,” International Law Quarterly , 2:2 (Summer 1948), 231–232. On de Visscher, see François Rigaux, “An Exemplary Lawyer’s Life (1884–1973),” European Journal of International Law , 11:4 (2000), 877–886. 0003 Personalism, Community, and the Origins of Human Rights 87 Instead, human rights need to be closely linked, in their beginnings, to an epoch-making reinvention of conservatism. This defi ning event of postwar West European history is familiar from the more general historiography of the period in the form of Christian Democratic hegemony, but is absent so far from human rights history – even though this same Western Europe became the earliest homeland of the concept. In sum, human rights came to the world not just as part of a wartime internationalization of the American New Deal, but also, and just as crucially, as one element of a European reinvention of its humanism as it tried to put self-imposed disaster behind it. 4 The fi rst surprise, perhaps, is that concept of the person not only preexisted the mid-1940s, but had originally served different forces.

“We are neither individualists nor collectivists, we are personalists!” So pro- claimed perhaps the earliest personalist political manifesto, put out by the rightist club Ordre Nouveau (New Order) in 1931. 5 In its 1930s populariza- tion, the person was an anti-liberal conception, and the chief task of tracing its eligibility for its postwar role is to follow the reversal that led it to imply rather than forbid a formalistic conception such as rights – or even a reinvention of international law based on it. The sources of “the person” – besides the Thomistic rendition of Jacques Maritain, who would become the premier postwar philosopher of human rights – were various. One important reference was the émigré Russian Orthodox philosopher Nicholas Berdyaev, who brought to the West an old Russian tradi- tion of religious personalism . 6 Most decisive, according to the historian John Hellman, may have been the infl uence of the originally Russian-Jewish con- vert Alexandre Marc, who founded Ordre Nouveau together with the shadowy guru Arnaud Dandieu, an atheist follower of Friedrich Nietzsche considered the secret genius of personalism (though a mere librarian by day). In Germany, the most prominent personalist was Max Scheler, who also exerted infl uence elsewhere. Not just the cacophony of voices starting in the early 1930s but the essential indeterminacy of the concept made personalism highly ambiguous: the common but deeply contentious cause of Christian and para-Christian intel- lectuals from the far right to the communitarian “left.” The thinker who was to forge the most durable version of personalism, Maritain, could generously acknowledge as much: “There are at least a dozen personalist doctrines, which, at times, have nothing more in common than the term ‘person’.” 7 4 In his classic 1950 indictment of European “pseudo-humanism,” Aimé Césaire could complain that “not one established writer, not one academic, not one crusader for law and religion, not one ‘defender of the human person,’” yet opposed colonialism in principle. Césaire, Discourse on Colonialism , trans. Joan Pinkham (New York, 1972), 17. 5 See John Hellman, The Communitarian Third Way: Alexandre Marc’s Ordre Nouveau, 1930 –2000 (Montreal, 2002). 6 On the larger tradition of Russian personalism, see George L . Kline, “Changing Attitudes toward the Individual,” in Cyril Black (ed.), The Transformation of Russian Society (Cambridge, 1960), 606–625. 7 Maritain, The Person and the Common Good , trans. John J. Fitzgerald (New York, 1947), 13. 0003 Samuel Moyn 88 Yet the ambiguity of personalism was, in a sense, its genius; it signaled the identity of the opposition clearly, while leaving fl exibility about what the alternative program was. (Its ambiguity was also a minimum condition for its eventual extrication from its typically reactionary and always illiberal origins.) Personalism – linked quickly to spiritualism and humanism, and not infrequently to European identity – meant a repudiation of the rival materialisms of liberalism and communism. In the fi rst place, then, person- alism was different than individualism, for it championed a fi gure who was supposed to overcome the destitute atomism of the politics and economics of the nineteenth century. If, however, the person provided a connection to community that individualism ruled out, it also provided the key source of value omitted in, and the political bulwark against, communism. Most boldly, personalists claimed that capitalism and communism, apparently foes, deserved each other, and canceled each other out, in their common materialism .

The spectrum of opinion championing personalism in the inaugural years of the early 1930s ranged from the far right to the farrago of publicists now known as experimental “non-conformists.” The so-called Young Right (Jeune Droite), an up-and-coming cohort of young reactionaries, self-proclaimed “defenders of the West,” were those originally part of Maritain’s reactionary circle when he affi liated with the royalist and anti-Semitic Action Française. But, unlike him, they remained within the fold of the French conservative rev- olution as Maritain cut his ties with it. “Before the tragic failure of materialist prosperity,” one of these fi gures, Thierry Maulnier, wrote in 1932, “polit- ical humanism – the just reckoning of the person, and its possibilities and rights – would seem the sole formula… to furnish the acceptable elements of a reconstruction.” 8 A group such as Ordre Nouveau was representative of non- conformism, a set of movements “neither right nor left” or rather both, since many of its members thought what was true in Marxism and communism – their opposition to bourgeois decadence and their hankering for the death of individualism – had to be saved, so as to redirect revolution against the bour- geoisie in a spiritualist and often explicitly Christian direction. 9 These were the early themes of personalism, then. But if the essential meaninglessness of the person was a minimum condition for the fact that it could eventually be extricated from its reactionary and non-conformist origins, one must at least 8 Cited in Nicolas Kessler, Histoire politique de la Jeune Droite (1929 –1942): une révolution conservatrice à la française (Paris, 2001), 208; cf. 230 –233, 242–249 for more reactionary personalism. 9 On the general scene, the classic is Jean Louis Loubet del Bayle, Les Non-conformistes des années trente: une tentative de renouvellement de la pensée politique française (Paris, 1969).

The allegation that these circles were basically fascistic is most familiar from the controversial works of Zeev Sternhell: Zeev Sternhell, Neither Right nor Left: Fascist Ideology in France , trans. David Maisel (Berkeley, 1986). For the best overview, see Robert O. Paxton, “The Church, the Republic, and the Fascist Temptation,” in Richard J. Wolff and Jörg K. Hoensch (eds.), Catholics, the State, and the European Radical Right, 1919 –1945 (Boulder, 1986), 67–91. 0003 Personalism, Community, and the Origins of Human Rights 89 also note that, for a time after 1934, communism tried to claim the slogan too. In that year, Nicolai Bukharin helped transform the appeal of commu- nism in the West when he announced that the Soviet Union would make the realization of “the personality” for “the fi rst time… a mass phenomenon and not just… part of the slave-owning upper class in its various historical vari- ants.” Such a promise profoundly affected the way ordinary people imagined and constructed themselves; but its ramifi cations were also legal, as the Stalin Constitution of 1936 – in whose drafting Bukharin played an instrumental role – makes clear. 10 Without question, however, the man who made the intellectual fortune of personalism was Emmanuel Mounier, due to the terrifi c impact of his non- conformist journal Esprit beginning in the early 1930s. Drastically expanding the purchase of the theme of the person in his early essays, Mounier proposed going back to where modernity started out in the Renaissance and trying again with a genuine humanism that freed Europe of the secular and liberal mistake of individualism. For Mounier, the challenge was to use the person to insist on respect for self-realization that “collectivism” ruled out, while press- ing it to imply a community that brought atomized individuals back together.

This common idea was one that Mounier developed at length, including in his famous Manifesto in the Service of Personalism . Far from implying rights, this central personalism of the 1930s instead sought new forms of post-liberal politics as well as a personalist economy to go with them. “On the altar of this sad world,” Mounier wrote in an illustrative passage, “there is but one god, smiling and hideous: the Bourgeois”: He has lost the true sense of being, he moves only among things, and things that are practical and that have been denuded of their mystery. He is a man without love, a Christian without conscience, an unbeliever without passion. He has defl ected the universe of virtues from its supposedly senseless course towards the infi nite and made it center about a petty system of social and psychological tranquility. For him there is only prosperity, health, common sense, balance, sweetness of life, comfort.… Next in line among bourgeois values are human respect and protection of rights.… Law is for him not an institution for justice, but the defence of the injustices he infl icts. Thence comes his harsh legalism. 11 Repudiating France’s then minuscule Christian Democratic party – in a noto- rious fracas with Paul Archambault, who considered him dangerous in the extreme – Mounier declared that “the ideology that we are combatting, and which still poisons all democrats, even Christian democrats, is the ideology of 89,” whose principles such as individual rights had to be “evaluated in 10 Bukharin cited in Jochen Hellbeck, Revolution on My Mind: Writing a Diary under Stalin (Cambridge, Mass., 2006), 31. See also Kline, “Changing Attitudes toward the Ind i- vidual,” 624, on the revival of nineteenth-century Russian personalism in this 1930s moment. 11 Emmanuel Mounier, A Personalist Manifesto , trans. Monks of St. John’s Abbey (New York, 1938), 17 –18. 0003 Samuel Moyn 90 the light of our conception of man [and] of the Community that completes him.” 12 The puzzle is how the person, in spite of all these associations, would be readied for its intellectual – and harsh legalistic! – role later; and much of the solution to that puzzle depends on Jacques Maritain, who would, not coin- cidentally, become the most prominent thinker of any kind across the world to champion rights in the postwar moment. Personalism survived its original connotations, as the communitarian third way that it promised between indi- vidualism and communism transcended its reactionary (and occasional leftist) connotations to be linked tightly to Cold War conservatism. Maritain’s career provides the best guide, as a proxy for other trajectories in various places.

Ironically, the Young Right’s clearest source for claims about the relevance of the person was that very mentor who, many years later, would make it the foundation for human rights: Besides a few stray references, Maritain toyed with the sociopolitical relevance of “the person” fi rst in his popular Action Française era book Three Reformers (1925). There he argued that the catas- t rophe of moder n it y, due to t he sensua l ist here sia rch M a r t i n Lut her, the solip- sist metaphysician René Descartes, and the bourgeois reformer Jean-Jacques Rousseau, left behind Saint Thomas’s person for the new individual. Thus, not just generally, but in Maritain’s own case, the basic claim of the political importance of “the person” antedated any break with the far right of his day, rather than driving it. “Are you well-informed about the ideological adven- ture that two pages of Three Reformers [those that originally introduced the person /individual distinction] have allowed?” Maritain’s disciple Yves Simon could ask him in a letter as late as 1941, when the person still remained chiefl y a reactionary conception, in spite of Maritain’s extraordinary labors by then to make it mean something different. 13 Yet Maritain had left the personalist revolution to others for a decade, while he continued his original and enduring interests in metaphysics and aesthetics. In the mid-1930s, this changed. As much as the negative exam- ple of the far right, it was Mounier’s para-Catholic and this-worldly combat for a personalist rupture – whatever that meant – that pushed Maritain to elaborate his own politics. (Intellectually and organizationally, Maritain had been instrumental in Mounier’s path to Esprit , but the obverse of the rela- tionship has not been suffi ciently stressed. Maritain opposed Mounier’s drifts into apparent proximity to fascism, but would never have become a political 12 The texts are most conveniently available in René Rémond, Les crises du catholicisme en France dans les années trente (Paris, 1996), appendix. 13 Maritain, Trois réformateurs: Luther – Descartes – Rousseau (Paris, 1925); in English, Three Reformers: Luther – Descartes – Rousseau (New York, 1955). Simon to Maritain, September 3, 1941, Yves R. Simon Institute, Mishawaka, Indiana. He continued: “Last winter, our seniors had a debate on the question of whether Thomistic personalism is the true interna- tionalism. As a joke it was proclaimed that all that is idiotic is due to individualism, while all that is beautiful stems from personalism.” 0003 Personalism, Community, and the Origins of Human Rights 91 thinker without Mounier’s example.) 14 It is also clear that, though by then an anti-communist of quite long standing, Maritain was angered by the huge propaganda successes of communism in the West in the mid-1930s in the cul- tural preparation of Popular Front anti-fascism, as fi gures such as André Gide and André Malraux responded to Bukharin’s new propaganda by insisting that the Soviets might have the true recipe for the achievement of dignifi ed humanity. 15 Yet even in his Integral Humanism (1936), in which he spelled out his politics of personalism in most classic form, Maritain endorsed the person without endorsing rights, which was a sign of his proximity to non-conformist and illiberal currents in European thought. There is no way to fathom Maritain’s conversion to rights – and that of the whole Continent – without looking to the larger Catholic Church’s con- version to personalism. How this happened was unexpected and dramatic, and due above all to events in the mid-1930s that decided Pius XI to commit the Church to anti-totalitarianism. 16 The move toward the later twentieth- century embrace of rights-talk as the essence of Christian social thought occurred neither at a slow and steady pace nor all at once in a single transfor- mative moment. Famously, the Church had treated the notion of rights with vituperation for the entire modern period. It is not impossible to fi nd allu- s io n s to t h e p e r s o n a nd e ve n to r i g ht s (t hou g h a lway s t ho s e of f a m i ly or l ab or) before the period of reversal. Yet these usages were “neither comprehensive nor tightly systematic.” 17 The same was true of the rhetoric of new Catholic social movements that were of such signal importance to interwar history.

The crucial leap, which has not been effectively studied, occurred when Pius XI toward the end of his papacy began to use the terms in a more serious and organizing way. This remarkable turn against “statolatry” by no means compelled any embrace of rights as an organizing doctrine, but it did involve the assertion 14 These claims are contentious in the literature, but there is no space to defend them here. 15 See Sandra Teroni and Wolfgang Klein (eds.), Pour la défense de la culture: les textes du Congrès international des écrivains, Paris 1935 (Dijon, 2005). Thanks to Anson Rabinbach for sharing his illuminating ongoing work on anti-fascism. 16 This section summarizes the more detailed analysis in Samuel Moyn, “Jacques Maritain: le origini dei Diritti umani e il pensiero politico cristiano,” in Luigi Bonanate and Roberto Papini (eds.), Dialogo interculturale e diritti umani: la Dichiarazione Universale dei Diritti Umani, Genesi, evoluzione, e problemi odierni (1948–2008 ) (Bologna, 2008), 97–124. Existing doctrinal histories of the Church and human rights have sectarian versions of the general fl aws of teleology, tunnel vision, and triumphalism in human rights history. For examples, see Philippe de la Chappelle, La Déclaration universelle des droits de l’homme et le catholicisme , pref. René Cassin (Paris, 1967); Jozef Punt, Die Idee der Menschenrechte: Ihre geschichtli- che Entwicklung und ihre Rezeption durch die moderne katholische Sozialverkündigung (Paderborn, 1987); Alexander Saberschinsky, Die Begründung universeller Menschenrechte (Paderborn, 2002); and Thomas D. Williams, Who Is My Neighbor? Personalism and the Foundations of Human Rights , preface by Mary Ann Glendon (Washington, D.C., 2005). 17 J. Bryan Hehir, “Religious Activism for Human Rights: A Christian Case Study,” in John Witte, Jr., and Johan D. van der Vyver (eds.), Religious Human Rights in Global Perspective: Religious Perspectives (The Hague, 1996), 101. 0003 Samuel Moyn 92 of religious sovereignty over personal conscience; very often, this sovereignty attached to the previously peripheral fi gure of the person. Interestingly, it was most frequently anti-liberal premises that led to what may seem a liberalizing outcome in this denunciation of the era’s dictators (Benito Mussolini some- times exempted), with the modern and “secularist” separation of state from church often presented as having allowed the menacing totalitarian hypertro- phy of the state to occur. 18 I n any event, it was at this moment that Pius – who knew Maritain well and esteemed his work – turned emphatically to person- alism as the foundation of Church’s spiritual alternative to totalitarianism, in 1937–1938. “Man, as a person,” Pius declared, “possesses rig hts that he holds from God and which must remain, with regard to the collectivity, beyond the reach of anything that would tend to deny them, to abolish them, or to neglect them.” 19 This phraseology, from the anti-Nazi encyclical of March 1937, Mit brennender Sorge , was matched by the anti-communist encyclical of the same month, Divini redemptoris , the latter with greater emphasis on the right of property in the context of a more general scheme of the rights of the person against the totalitarian collective. 20 It was thus in a moment of discovering two extreme political ideologies that, in its view, left no room for Christianity that some insisted on sover- eignty over the “human,” over which in turn no merely temporal politics can claim full authority. Soon to become Pius X I I, Eugenio Pacelli, in the summer of 1937, made clear the centrality of this new fi gure, decrying “a vast and dangerous conspiracy” threatening unlike any prior occasion “the inviolabil- ity of the human person that, in his sovereign wisdom and infi nite goodness, the Creator has honored with an incomparable dignity.” Further, Pacelli cited the critical line from Mit brennender Sorge to make clear that this inviolable dignity gave rise to some set of rights. Of course, personalist rights implied moral community, not the selfi sh entitlements of the bankrupt nineteenth cen- tury. All the same, “if a society adopted the pretense that it could diminish the dignity of the human person in refusing it all or some of the rights that come to it from God, it would miss its goal.” 21 What such changes in papal political theory meant on the ground, in the context of much other doctrine and the inherited weight of tradition, var- ied widely – especially after Pius XII’s election a year later to face the fi nal crisis of the 1930s and the diffi cult choices of the war. 22 With respect to the 18 Cf. Emilio Gentile, Politics as Religion , trans. George Staunton (Princeton, 2006), 92–93, and ch. 4. 19 Pius XI, Encyclical Letter “Mit brennender Sorge,” March 14, 1937, as translated in Georges Passelecq and Bernard Suchecky, The Hidden Encyclical of Pius XI , trans. Steven Rendall (New York, 1997), 105. 20 See Xavier de Montclos, “Le discours de Pie XI sur la défense des droits de la personne humaine,” in Achille Ratti, pape Pie XI (Rome, 1996). 21 “Lettre de S. Em. le Cardinal Pacelli,” in La Personne humaine en péril (Lyon, 1937), 5–8. 22 For a variety of contemporary commentaries on the novel surge of the human person after 1936 in statements by Pius XI and XII, see The Foundations of International Order (proceedings 0003 Personalism, Community, and the Origins of Human Rights 93 language of rights as well as in other ways, Pius XII, like any good strategist, left his options open, encouraging some possible lines of future development and tolerating others. 23 In different national contexts, rights-talk had different fates: The new language of the rights of the human person was not just pas- sively received, but was creatively interpreted from place to place and moment to moment. As Paul Hanebrink has shown in the case of Hungarian debates, for example, what was at stake for some churchmen and Christian politi- cians was only “the rights of (Christian) man,” chiefl y the defense of the right of conversion against racist essentialism, still in the name of a exclusionary vision of a Christianized nation. 24 But in America – before Maritain ever turned to rights – a small band of liberal Catholics chose a different direction. In tune with his fi nal thought, Pius XI had written barely two months before his death that “Christian teaching alone gives full meaning to the demands of human rights and lib- erty because it alone gives worth and dignity to human personality.” In a pastoral letter in response to this statement in honor of the golden jubilee of Catholic University, American bishops took the argument a (textually unwar- ranted) step further: “His Holiness calls us to the defense of our democratic government in a constitution that safeguards the inalienable rights of man.” 25 American Catholic liberals opposing Father Charles Coughlin’s Jew baiting founded the publication The Voice for Human Rights in 1939. Historians who have examined the crucial early war years to trace the remarkable affl atus of the hitherto largely unused (in English) phrase “human rights” have discov- ered minor percolations but little else until something happened to catapult the term into its immediate postwar career. Completely neglected among these of the Catholic Congress on International Peace, The Hague, 1938) (Oxford, 1938); André Saint-Denis, Pie XI contre les idoles: bolchévisme, racisme-étatisme (Paris, 1939); or Lewis Watt, S.J., Pope Pius XII on World Order (Oxford, 1940), ch. 5, “The Dignity of the Human Person.” 23 For a general picture of Pius’s wartime positions, see Peter C. Kent, “Toward the Reconstitution of Christian Europe: The War Aims of the Papacy, 1938–1945,” in David B. Woolner and Richard B. Kurial (eds.), FDR, the Vatican, and the Roman Catholic Church in America, 1933–1945 (New York, 2003). 24 Paul A. Hanebrink, In Defense of Christian Hungary: Religion, Nationalism, and Antisemitism, 1890 –1944 (Ithaca, 2006), 170 –180. 25 “Pope Bids Church to Guard Man’s Rights,” New York Times , October 13, 1938; “Pastoral Letter [of the American Catholic Hierarchy] on the Teaching of Democracy,” New York Times , November 25, 1938. The pope made the anti-totalitarian (and anti-capitalist) con- tex t of “hu m a n r ig ht s” cle a r onc e aga i n : “T he C at hol ic i s ne c e s s a r i ly t he ch a mpion of t r ue human rights and the defender of true human liberties; it is in the name of God Himself that he cries out against any civic philosophy which would degrade man to the position of a soulless pawn in a sordid game of power and prestige, or would seek to banish him from membership in the human family; it is in the same holy name that he opposes any social philosophy which would regard man as a mere chattel in commercial competition for profi t, or would set him at the throat of his fellow in a blind brutish class struggle for existence.” 0003 Samuel Moyn 94 percolations so far highlighted, however, is the comparatively early Catholic articulation of the human rights idea. 26 Soon European Catholics were repeating the slogan, and Maritain, on an American sojourn when France fell but transmitting his ideas back to the Continent throughout the war, made himself the premier interpreter of human rights among Catholics, and indeed almost singlehandedly reinvented them as a Christian tradition. By itself, personalism could have led Maritain, like so many other others, into the arms of the Vichy government, whose leader, indeed, himself proclaimed that “individualism has nothing in common with respect for the human person” (a respect he promised his regime would restore, along with religious civilization as a whole). Maritain’s formulae of the “primacy of the spiritual” and “integral humanism” we re e ve n u s e d a s slo - ganeering buzzwords by Vichyite intellectuals and youth. 27 But Maritain, in exile, opposed Vichy uncompromisingly and soon became an inspiration for the Resistance, even if he was ambivalent about Charles de Gaulle as the Free French leader, on the grounds that de Gaulle would not concur with his vision of personalistic democracy. It was most clearly in early 1942 that Maritain transformed into the philosopher of human rights that he had never been before. In Natural Law and Human Rights , Maritain took what would be a fateful step for postwar intellectual history as a whole, making the claim that a revival of natural law implies a broad set of pre-political human rights. 28 What would have been – and still is – curious about this claim, of course, is that whatever their opinions of the origins of modern rights-talk, nearly all histories of the political language concur that the rise of rights in polit- ical theory occurred after and because of the destruction of the Thomistic natural law tradition. 29 In either a stroke of a master, or a sleight of hand, or both, Maritain – as if the Thomistic movement had not long and unanimously 26 See esp. A. W. Brian Simpson, Human Rights and the End of Empire: Britain and the Genesis of the European Convention (Oxford, 2001), ch. 4; also Paul G ordon Lauren, The Evolution of International Human Rights: Visions Seen , 2nd ed. (Philadelphia, 2003), ch. 5. 27 Cited in Hellman, Emmanuel Mounier and the New Catholic Left, 1930 –1950 (Toronto, 1981), 168. For personalism – including fulsome invocation of Maritain’s formulae – at Vichy, see Hellman’s writings: “Maritain, Simon, and Vichy’s Elite Schools,” in Michael D. Torre (ed.), Freedom in the Modern World ( Not re Da me , 1989), 165–180; “C om mu n it a ria ns , Non- conformists, and the Search for a ‘New Man’ in Vichy France,” in Sarah Fishman et al. (eds.), France at War: Vichy and the Historians (Oxford, 2000), 91–106; and The Knight-Monks of Vichy France: Uriage, 1940 –1945 (Montreal, 1994). 28 The earliest publications are “The Natural Law and Human Rights” (Windsor, Ontario, 1942), an award acceptance speech dated January 18, 1942, published as a pamphlet, and “Natural Law and Human Rights,” Dublin Review , 210 (April 1942), 116–124. The book is Les droits de l’homme et la loi naturelle (New York, 1942), translated into many languages. 29 For radically contrasting stories of the origins of rights that nevertheless concur on this point, see Leo Strauss, Natural Right and History (Chicago, 1953); Richard Tuck, Natural Rights Theories: Their Origin and Development (Cambridge, 1979); and Michel Villey, Le droit et les droits de l’homme (Paris, 1983). In Catholicism, see the dissident view of Alasdair MacIntyre, After Virtue: A Study in Moral Theory (Notre Dame, 1981). 0003 Personalism, Community, and the Origins of Human Rights 95 rejected modern rights – claimed that the one implied the other and, indeed, that only the one plausibly and palatably justifi ed the other. Thanks to Maritain above all, the older view that Christianity’s political and social doc- trine could not be reformulated in terms of rights was dropped in exchange for the claim that only the Christian vision placing them in the framework of the common good afforded a persuasive theory of rights. By his Christmas mes- sage of 1942, the one frequently discussed solely for its insuffi cient reference to Jewish suffering, Pius too was laying out his postwar vision in terms of the dignity of the person and human rights. 30 This trajectory cemented the resonance of the dignity of the human person as the communitarian framework for the new rights-talk. By 1942, British Catholic Christopher Dawson (who had imported Maritain in his reaction- ary phase to Great Britain along with Carl Schmitt in his Catholic phase) was sounding similar themes. “We are standing against an order in which all human rights and the human person itself are immolated on the altar of power to the glory of the New Leviathan,” he wrote. Alluding to Franklin D.

Roosevelt’s “four freedoms,” he now explained, in spite of his formerly reac- tionary politics, The liberties which we demand and which humanity demands are not the right of the strong to oppress the weak or the right of the ambitious to enrich themselves at other men’s expense: but the elementary right which are to the human spirit what air and light are to the body: freedom to worship God, freedom of speech, freedom from want and freedom from fear. All the same, he clarifi ed t hat i f C h rist ia n it y now implied some sort of democ- racy, it could not be a liberal kind:

It must be a social order directed to spiritual ends.… From this point of view the use of the term “Democracy” as the defi nition of our cause is not completely satisfactory. For Democracy has a restricted political signifi cance which by no means covers the whole fi eld of values that has to be defended, and the confusion of Democracy as a general term for our tradition of social freedom, and its more limited but more accurate politi- cal meaning, is apt to produce misunderstanding and disagreement. For the cause that we are defending is far more fundamental than any form of government or any politi- cal creed. It is bound up with the whole tradition of Western and Christian culture.… No doubt Democracy as an ideal does stand for these things and is the outcome of this tradition. But in practice modern democratic culture often represents only a debased and secularized version of this ideal and in many respects, as de Tocqueville saw more than a century ago, it prepares the way for the coming of the new mass order which achieves political form in the totalitarian State. What we are defending, in short, is not democracy but humanity. 31 30 Pius XII, “The Internal Order of States and People,” in Vincent A. Yzermans (ed.), The Major Addresses of Pope Pius XII , 2 vols. (St. Paul, 1961). See, e.g., John A. O’Brien, “The Pope’s Way to Peace,” International Conciliation , 44 (October 1944), 647–663 (rights of the human person throughout). In the same papal collection, one may wish to compare the 1958 Christmas message, “The Rights of Man.” 31 Christopher Dawson, The Judgment of the Nations (New York, 1942), 185–186. 0003 Samuel Moyn 96 Dawson’s argument made sense in light of prewar conceptions of democ- racy, which prioritized its formalistic associations as a “bourgeois” electoral and economic phenomenon that both far left and Christian politics were agreed in rejecting in the name of substantive moral community. As the war continued, however, one of Maritain’s main purposes was to lay out a new, Christian conception of democracy that transcended these narrow limits, and soon the Pope would agree. Democracy and humanity could coincide. In the fl ow of Christian political theory in these years, in fact, the orig- inal commitment of the non-individualist person in the non-totalitarian community remained stable, as the overall governing framework into which rights were introduced. In other words, the superimposition of rights on personalism meant as much continuity as change. In an atmosphere in which many Catholics understood the defense of the West to mean all-out war against Bolshevism even at the price of alliance with unholy forces, Maritain’s message was primarily directed against the European prefer- ence for fascism as the lesser evil. “An obscure process of leniency toward totalitarian forms that lying propaganda tries to picture as the upholders of order,” Maritain regretted at the University of Pennsylvania bicentennial in 1940, “has thus invaded parts of the believing groups in many countries.” 32 “The error of those Catholics who follow Pétain in France or Franco in Spain,” Maritain wrote Charles de Gaulle in 1941, “is to convert Catholic thought, through lack of social and political education, in the direction of old paternalistic conceptions of history rejected in the meantime by the popes and condemned by history.” 33 In the process, Maritain’s attitude toward the catastrophe of modernity softened slightly but discernibly (though it never reversed). The ambivalence is well captured in his Fortune magazine story of 1942 in which he still castigated modern man for “claim[ing] human rights and dignity – with- out God, for his ideology grounded human rights and human dignity in a godlike, infi nite autonomy of human will,” while also now referring to the apparently alternative “concept of, and devotion to, the rights of the human person” as “the most signifi cant political improvement of modern times.” 34 His relative move toward an affi rmation of a specifi c kind of state frame- work within which alone a “new Christian order” could come about forced Maritain to quietly but decisively drop old associations of formal liberties and formal democracy with liberal individualism on its deathbed. He broke largely with visions, such as either Marxism or Mounier’s personalism, that treated formal rights and democracy as elements of a hypocritical capitalist 32 William L. Laurence, “Political Theory of Religion Is Hit,” New York Times , September 17, 1940. Though well informed, Maritain consistently presented France as captured, thus drasti- cally understating the extent and zeal of the collaborationism of some of his countrymen. 33 Maritain to Charles de Gaulle, November 21, 1941, in Cahiers Jacques Maritain , 16–17 (April 1988), 61. By the next year he urged de Gaulle to champion a “renewed democratic ideal” rooted in personalism. Ibid., 68. 34 Maritain, “Christian Humanism,” Fortune , April 1942. 0003 Personalism, Community, and the Origins of Human Rights 97 sham. Formal or “bourgeois” liberties formerly condemned now had to be resurrected as providing the legal carapace of the Christian state and even the spiritual interstate order. Arguably, however, these innovations were in the service of keeping personalist communitarianism the same in new circumstances. It is true, though, that this substantive vision now prompted a less critical attitude toward formal guarantees and political structures or might indeed invest them with considerable signifi cance. One could say something similar of Pius X II who, having adopted the rhetoric of the rights of the person, was by the time of his 1944 Christmas message following Maritain by endorsing democracy on condition of differentiating between its Christian communitar- ian and reprobate secularist version. 35 “Defend These Human Rights!” British Catholic John Eppstein wrote in a 1948 pamphlet, explaining that this meant la défense de la personne humaine fi rst discovered by Catholics in the later 1930s. (“This was somewhat different from the familiar enumeration of ‘the Rights of Man and the Citizen’,” he explained, “since by ‘the human person’ the Christian opponents of State absolutism meant particularly man as a spiri- tual being.”) 36 The work of saving the person from its anti-democratic votaries arguably depended on the deeper commitment to a moral and communitarian ethos, which allowed leaving those old versions behind almost as if they had never been. “To avoid all misunderstanding, I must add,” de Visscher, the international lawyer, put it rather charmingly in 1947, “that the personalist conception must be defended against some of those who claim it and who have sometimes compromised it in the very process of advocating for it.” 37 Even Mounier, who remained in France, embraced rights after a fashion – albeit very briefl y. After having fl irted with identifying the National Revolution as a personalist one – he criticized Maritain for his treasonous defense of American democracy before being shut down by the Vichy regime – Mounier penned a dec- laration of “the rights of persons and com munities.” 38 T his made an impor tant 35 See Pius X II, “True and False Democracy,” in Major Addresses . Even in America, the major postwar Catholic thinker, Jesuit and Maritain follower John Courtney Murray, could argue in a 1950 essay that the human rights turn showed that the modern world had fi nally imbibed Catholicism’s message rather than vice versa: “The growing conviction of the old attempts to solve the problem of human liberty and social order in purely secularistic, positivist terms had created a new openness to the world of metaphysical and religious values. [The Christian human rights idea provides] such a basis because it is metaphysical in its foundations, because it is asserted within a religious framework, and because it is realist (not nominalist), soci- etal (not individualist), and integrally human (not rationalist) in its outlook on man and society.” Murray, “The Natural Law,” in Robert M. MacIver (ed.), Great Expressions of Human Rights (New York, 1950), as reprinted in Murray, We Hold These Truths: Catholic Re\b ections on the American Proposition (New York, 1960), 320. 36 John Eppstein, Defend these Human Rights! Each Man’s Stake in the United Nations – A Catholic View (New York, 1948), 5. 37 De Visscher, “Les droits fondamentaux de l’homme,” 158. 38 On Maritain, see Mounier, Oeuvres , 4 vols. (Paris, 1961–1963), 4:694; for the declaration, see Mounier, “Faut-il refaire la Déclaration des droits?” ibid., 4:96–104. This document 0003 Samuel Moyn 98 difference to his followers, many of whom essentially made Maritain’s move to reconcile personalism with formal democracy while Mounier notoriously moved from non-conformism to the far left in the postwar era. Mounier had, it is clear, a far more serious impact on Belgium and France, whereas Maritain’s message found its most signifi cant hearing in Italy and Latin America. 39 Most important, followers of Mounier in the briefl y if meteorically successful post- war Mouvement républicain populaire were able to be more faithful than Mounier was to his brief rights-based revision of personalism. A good example of a Mounier disciple who played a major role in the post- war European human rights moment – besides Charles de Visscher – was François de Menthon, who headed the French prosecution team at Nuremberg.

In his spectacular opening address, now understandably attacked for develop- ing the juristic novelty of “crimes against humanity” while failing to mention which part of humanity actually suffered the crimes, Menthon identifi ed the German acts as “crimes against the spirit,” a clear reference to interwar and wartime anti-materialism that contemporaries, unlike Nuremberg’s many his- torians since, would have readily identifi ed as such. “National Socialism,” he thundered, “ends in the absorption of the personality of the citizen into that of the state and in the denial of any intrinsic value to the human person.” Even his glancing reference at the end of his address to “citizens of the occupied countries categorized as Jews” singled out the damage done to “their per- sonal rights and to their human dignity.” 40 No one else, including Robert H.

Jackson, used similar language at the time: The originally personalist framing of crimes against humanity, and their deep affront to the rights of the digni- fi ed human person, has quite simply been missed.

As for Maritain, he continued to defend a personalistic conception of human rights wherever he went during the years after the war: in his work for U NESCO on the philosophical grounding of human rights, as French Ambassador to the Holy See for a few years (where he decisively infl uenced later popes who would fi nally overcome institutional resistance within the Church to a full move to human rights language two decades later), or Princeton University. 41 But though Maritain was certainly the most prominent was widely read in the framing process of the abortive and then the passed Fourth Republic Declaration of Rights. 39 See esp. Paolo Pombeni, Il gruppo dossettiano e la fondazione della democrazia italiana (1938 –1948 ) (Bologna, 1979), and Olivier Compagnon, Jacques Maritain et l’Amérique du Sud (Villeneuve, 2003). 40 François de Menthon, “Opening Address (January 17, 1946),” in Michael R. Marrus (ed.), The Nuremberg War Crimes Trial 1945–46: A Documentary History ( B o s ton , 1997), 89 – 94 ; cf. Laurent Ducerf, François de Menthon: un Catholique au service de la République (Paris, 2006), ch. 10. 41 His U N ESCO address is La Voie de la Paix: Discours prononcé à la séance inaugurale de la IIe Conférence internationale de l’Unesco (Mexico City, 1947), in English in many places such as “Possibilities for Co-operation in a Divided World,” in Maritain, The Range of Reason (New York, 1952); for his U N ESCO rights inquiry, see Maritain (ed.), Human Rights: Comments and Interpretation (New York, 1949); see also Maritain, The Meaning of 0003 Personalism, Community, and the Origins of Human Rights 99 thinker on the postwar scene to defend the new concept, it was political shifts that made its fortune in the Western European polities that would become its early homeland. Still, because Catholicism aspired to be and to some extent was even then a global phenomenon, there should be no surprise in discover- ing that the personalistic framing of the global human rights “moment” of the era affected the language not simply inside Continental Europe but far beyond it. This included, most obviously, the move to human rights at the level of international organization, essentially rhetorical though it was (as European international lawyers were not wrong to note). Indeed, the human person became a key fi gure of thought at the United Nations, thanks to Christians impressed by papal language who injected it into founding documents. In a multiculturalist age, it is tempting to look back at storied fi gures in the origins of human rights at the United Nations and claim them for the third world and alternative values, when in fact they themselves insisted – before the right audiences at least – that they were mak- ing a Christian contribution. 42 Charles Malik, the Lebanese Christian who is responsible for the personalistic language of the Universal Declaration of Human Rights proper, is a case in point. “In Christianity, the individual human person possesses an absolute value,” Malik explained in 1951, for instance. “The ultimate ground of all our freedom is the Christian doc- trine of the absolute inviolability of the human person.” 43 Carlos Romulo, Philippines delegate to the United Nations and a crucial fi gure in the General Assembly debates over the Universal Declaration, provides another illuminat- ing example, as his lectures on the implicit foundation of new impulses in public international law make plain. “Of all the acts of the United Nations,” he argued in the period, “the Universal Declaration of Human Rights has demonstrated most clearly the tendency… to work out a system of interna- tional law conforming as closely as possible to natural law.… We may yet fi nd ourselves confronted by the seeming paradox of Christianity emerging as the only practical program for lasting peace and equitable order in our troubled world.” 44 There was, however, very little true international human rights law for decades, and the real story of human rights in the early postwar period, with due allowance for the importance of symbolism, is of its nationalization and regionalization. I do not claim that the resumption of the interwar vogue of declarations of rights in the postwar domestic constitutionalism (at least outside the British sphere until the early 1960s policy change) refl ected any Human Rights (Waltham, 1949), and, for his own fullest views, Maritain, Man and the State (Chicago, 1951). 42 Cf. Roland Burke, “‘The Compelling Dialogue of Freedom’: Human Rights at the Bandung Conference,” Human Rights Quarterly , 28:4 (November 2006), 947–965. 43 Charles Malik, “The Prospect for Freedom” (address at honorary rectorial convocation, University of Dubuque, February 19, 1951), unpaginated. 44 Carlos Romulo, “Natural Law and International Law,” University of Notre Dame Natural Law Institute Proceedings , 3 (1949), 121, 126. 0003 Samuel Moyn 10 0 personalistic consensus. 45 Early steps in European unifi cation and the – also initially quite unimpressive – European human rights regime, however, very much did. As Wolfram Kaiser has now shown, Christian Democracy, heg- emonic starting in this era as the Continent restabilized, made personalist communitarianism the fundamental ideology of its work nationally and con- struction of Europe regionally. 46 “In the inter-war period catholicism had been closely linked to nationalism and the League of Nations had been presented as being a dangerous centre of masonic power,” Richard Vinen observes, in a similar vein. “After 1945, this changed. Catholic organizations were enthu- siastic proponents of international harmony, within the western bloc at least, and Christian Democrat parties in all European countries were so intimately linked to European integration that some began to feel that Europe was being built under the aegis of the ‘catholic international.’” 47 It is true that personalism, in both Maritain’s and Mounier’s renditions, could have had left-wing implications, and to some extent did, prompting an evanescent “left Catholicism” that quickly sputtered. 48 This was not, however, because of any dispute about the role of the state in the economy: Though Continental Europeans needed Americans in the 1940s, it was not to learn commitment to an economic New Deal. As de Visscher argued, no one believed that personalism implied a return to “the economic liberalism of the eighteenth or nineteenth centuries.” 49 Rather, Christians on the left and right agreed that some management of the economy was necessary, and diverged from there. Very quickly, as it turned out, left versions of personalism were extinguished, and the ideology underwrote a reinvention of conservatism in power. This “re-recasting of bourgeois Europe,” as one may call it, occurred under the political hegemony of Christian Democracy, even if one wants to see it as redounding to the benefi t of liberal capitalism in the long run. 50 It should 45 See Boris Mirkine-Guetzévitch, Les constitutions européennes (Paris, 1951), ch. 8, and, for British developments, Charles O. H. Parkinson, Bills of Rights and Decolonization: The Emergence of Domestic Human Rights Instruments in Britain’s Overseas Territories (Oxford, 2007). 46 Wolfram Kaiser, Christian Democracy and the Origins of the European Union (Cambridge, 2007). See also the more affi rmative and invested views in Roberto Papini (ed.), L’a p p o r t o del personalismo alla costruzione dell’Europa (Milan, 1981), and Philippe Chenaux, De la chrétienté à l’Europe: les Catholiques et l’idée européenne au X Xe siècle (Paris, 2007), esp.

ch. 3, “L’infl uence du personnalisme dans la construction de l’Europe.” 47 Richard Vinen, Bourgeois Politics in France, 1945–1951 (Cambridge, 1995), 152, footnote omitted. 48 See Gerd-Rainer Horn and Emmanuel Gerard (eds.), Left Catholicism: Catholics and Society in Western Europe at the Point of Liberation (L ouvain, 20 01), esp. M ar tin Conway’s sy nthe- sis, “Left Catholicism in Europe in the 1940s: Elements of an Interpretation,” 270 –271 and 277–278: “In comparison with the rapid growth of Christian Democracy, the Left Catholic groups must inevitably appear as something of a historical footnote.” 49 De Visscher, “Les droits fondamentaux de l’homme,” 158. 50 The allusion is to Charles Maier’s work on Europe after World War I, which has not been comparably repeated for the post–World War II period. As Conway puts it, “perhaps the most durable change in European political life brought about by the war was in fact conservative 0003 Personalism, Community, and the Origins of Human Rights 101 not be surprising, therefore, that many of the chief founders of the European project, both in politics generally and in the tradition of European human rights specifi cally, were avowed personalists (for instance, Robert Schuman, Paul-Henri Spaak, and Pierre-Henri Teitgen ).

In its regionalized domain, human rights law gained only slightly more traction than on the global scene: The case of the European Convention of Human Rights (1950) involved – in the early decades when there was no right of petition and little serious activity, not least because of its derogability dur- ing colonial emergencies – much more ideological signaling about the values on which Western European identity depended than it did legally enforceable guarantees. The common Christian basis for unity mattered a lot here, only now what that meant was the centrality of the human person. The Convention itself, given signal British participation in its origins, is not an exception to this statement but illustrates how powerfully the revolt against materialism as the essence of Europe resonated in these years. As the Convention’s historian Brian Simpson has emphasized, it emerged thanks to Britain’s commitment to “spiritual union” of Western Europeans against communism, in Ernest Bevin’s own phrase. “In the event Bevin’s idea of a spiritual union came to be secularized,” Simpson comments with distinct understatement, “but this was not perhaps how it began.” 51 That the incipient Cold War would soon come to be widely understood in terms of the defense of religion and “the West” that the Church’s struggle against communism had already been for three decades was no doubt cru- cial in the larger postwar spiritualist consensus among Western European liberal-conservatives. 52 In this sense, not just British commitment to “spiri- tual” values in international affairs, which had also antedated the war, could allow new collaborations with Continental religious ideology in the post- war years, of which the Convention is only one example. 53 More generally, there had been important Protestant defenders of third-way personalism all along (perhaps most importantly, Swiss writer Denis de Rougemont, who had been a non-conformist close to both Marc and Mounier before becoming a Europeanist). 54 The larger phenomenon, without which the picture would remain incomplete, is the cross-denominational ratifi cation of human dignity in nature.… Catholicism in the later 1940s and 1950s … while presiding politically over the postwar reconstruction of Western Europe, retained within it the intellectual components of a profound critique of liberalist and individualist values which underpinned that same process of reconstruction.” Conway, “Left Catholicism in Europe in the 1940s,” 277, 281. 51 See Simpson, Human Rights and the End of Empire , esp. 568–570 (“Saving Western Civilization”) and 577–579 (“What Was the Spiritual Union?”) at 579. 52 Dianne Kirby, “Divinely Sanctioned: The Anglo-American Cold War Alliance and the Defence of Western Civilization and Christianity, 1945–1948,” Journal of Contemporary History , 35:3 (2000), 385–412, and Kirby (ed.), Religion and the Cold War (New York, 2003). 53 Jeanne Morefi eld, Covenants without Swords: Idealist Liberalism and the Spirit of Empire (Princeton, 2005). 54 Bruno Ackermann, Denis de Rougemont: De la personne à l’Europe (Lausanne, 2000). 0003 Samuel Moyn 102 as part of an ecumenical reinvention of Christianity of both Catholic and Protestant varieties. A few notes on the German case – a crucial link in the Catholic international but with decisive Protestant participation – are useful in this regard. There is no reason to hypothesize the direct impact of the various thinkers in the Francophone orbit on German developments, though the full ramifi ca- tions of dissident networks across the Rhine in the interwar period are only beginning to be reconstructed. 55 Certainly, the spiritualistic consensus and emphasis on dignitarian personalism – including sometimes human rights – prevalent in the early years after World War II suggest German Christians developed their own versions of the doctrines canvassed so far, based on eas- ily available papal pronouncements. Even if it is true that they had no home- grown Maritain, a cognate spiritualist credo came close to providing the central ideological fulcrum of Christian Democracy in Germany, as Maria Mitchell has shown. 56 And just as in the case of the Universal Declaration on which it drew, the Federal Republic Basic Law’s opening affi rmation of human dignity has to be read not just retrospectively as a response to the Nazi past but prospectively as an allusion to the kind of moral future that would alone overcome that past. It is a mistake, in other words, to think about the “recivilization” of West Germany in the absence of the religious ideology that provided its justifi cation and explained the specifi c, nonsecular, moralized form it was supposed to take. 57 Premier historian and Protestant conservative Gerhard Ritter thus spoke for many when, in 1948, he rallied to human rights, declaring that on the concept “depends nothing less than the survival of Western culture.… Despite all that has divided us for centuries, 55 See Hans-Manfred Bock (ed.), Entre Locarno et Vichy: les relations culturelles franco- allemandes dans les années 30 (Paris, 1993), and Thomas Keller, Deutsch-französische Dritte- Weg-Diskurse: personalistische Intellektuellendebatte der Zwischenkriegszeit (Munich, 2001). See also Heinz Hürten, “Der Einfl uß Jacques Maritains auf das politische Denken in Deutschland,” Jahrbuch für christliche Sozialwissenschaften , 26 (1985), 25–39. 56 Many German Catholics in the emigration, such as Waldemar Gurian or Heinrich Rommen, did not return. A parallel German story to Maritain’s creation of a nonreactionary person- alism can be told about Dietrich von Hildebrand, a Scheler disciple who fl ed Germany to Austria (where he favored “Austro-fascist” corporatism) before fl eeing to France, then the United States and taking up Maritain’s cause. See, e.g., Hildebrand, “Der Kampf um die Person,” Die christliche Ständestaat , 6 (January 14, 1934), reprinted in Ernst Wenisch (ed.), Memoiren und Aufsätze gegen den Nationalsozialismus 1933–1938 (M a i n z , 1994), 191–197, and “The World Crisis and the Human Personality,” Thought , 16:62 (September 1941), 457–472. However, I do not currently have evidence of parallel impact of German personalist political theory on the postwar German scene to match the legal evidence introduced below. 57 Maria Mitchell, “Materialism and Secularism: CDU Politicians and National Socialism, 1945–49,” Journal of Modern History , 67:2 (June 1995), 278–308, and Mitchell, “‘Antimaterialism’ in Early German Christian Democracy,” in Thomas Kselman and Joseph A. Buttigieg (eds.), European Christian Democracy: Historical Legacies and Comparative Pe rspectives (Notre Dame, 2003), 199 –227; cf. Konrad Jarausch, After Hitler: Recivilizing Germans, 1945–1995 (New York, 2006). 0003 Personalism, Community, and the Origins of Human Rights 103 [there still exists] among the great nations of the one-time Christian West a community of moral-religious convictions which is broad and fi rm enough to serve as the foundation for a new solid structure of a Christian oriented social ethics.” Everything depended on human rights – but only so long (Ritter insisted) as they were treated as a reformulation of those ethics, and were clearly distinguished from “the mechanical principle of equality” of secular culture, which had given rise to atomistic capitalism and totalitarian collectivism alike. 58 The transformation of the political meaning of Christianity works far better than the continuation of fascism proper to explain the centrality of dignitarian rights not just in postwar politics, but also in postwar law – most famously, of course, postwar German constitutional law. 59 Catholic jurists such as Willi Geiger and Josef Wintrich, although at times quite compromised during the Nazi regime, could come to draw directly on new papal traditions in the postwar years, to give a strongly communitarian view of the Basic Law. As a judge on the Bundesverfassungsgericht, Geiger, for instance, championed the centrality of dignitarian rights in public and private law in the early Federal Republic, which he saw as totally differ- ent in basis now that they had been reassigned from being Weimar-era products of the sovereign will to being rooted in the pre-constitutional nature of persons. 60 But others found relatively independent routes to sim- ilar conceptions. Protestant Gerhard Leibholz, an émigré in Britain dur- ing the war (and Dietrich Bonhoeffer’s brother-in-law), early established contact with the crucial intermediary fi gure between British and resist- ing German Protestants George Bell, bishop of Chichester. 61 Developing 58 Gerhard Ritter, “Ursprung und Wesen der Menschenrechte,” Historische Zeitschrift , 169:2 (August 1949), 233, 263, and Andreas Dorpalen, “Historiography as History: The Work of Gerhard Ritter,” Journal of Modern History , 34:1 (March 1962), 10. See also Ritter, “Die Menschenrechte und das Christentum,” Zeitwende , 21:1 (July 1949), 1–12, and my “The First Historian of Human Rights,” American Historical Review 116:1 (February 2011). 59 Cf. James Q. Whitman, “On Nazi ‘Honour’ and the New European ‘Dignity’,” in Christian Joerges and Navraj Singh Ghaleigh (eds.), The Darke r L egac y of E uropean L aw: Pe rc e ption s of Europe and Perspectives on a European Order in Legal Scholarship during the Era of Fascism and National Socialism (Cambridge, 2003), 243–266. 60 See Willi Geiger, Grundrechte und Rechtsprechung (Munich, 1959), and “Die Wandlung der Grundrechte,” in Max Imboden (ed.), Gedanke und Gestalt des demokratischen Rechtsstaats (Vienna, 1965), 9–36. See Gerhard Leibholz et al. (eds.), Menschenwürde und freiheitliche Rechtsordnung: Festschrift für Willi Geiger zum 65. Geburtstag (Tübingen, 1974). Also of importance was the Bavarian judge Josef Wintrich, whose personalist for- mulae the Bundesverfassungsgericht took over; see, for example, Zur Problematik der Grundrechte (Cologne, 1957), and Ulrich Becker, Das “Menschenbild des Grundgesetzes” in der Rechtsprechung des Bundesverfassungsgerichts ( B erl i n , 1996). O n G eiger u nder Na z i sm , see Ingo Müller, Hitler’s Justice: The Courts of the Third Reich , trans. Deborah Schneider (Cambridge, Mass., 1992), 218. 61 Bell’s postwar writing shows that Anglicans signed, if slightly less frontally, onto anti- totalitarian Christian personalism too. Bell, “The Church in Relation to International Affairs” (address at Chatham House), International Affairs , 25:4 (October 1949), 405–414.

0003 Samuel Moyn 104 Protestant versions of anti-totalitarianism emphasizing spiritual freedom, both worked together with Anglican Alec Vidler and Continental Catholic refugees to argue for a return of natural law based on the person. “Must not theonomic thinking demand that the State ought to abandon the idea of being a self-contained sovereign entity with only rights of its own, and acknowledge that it is a member of a community of nations each and all of which are bound to serve the rights of the human person?” Leibholz asked in 1946. In the postwar era, he returned to Germany, and as a judge on the nation’s highest constitutional court, he tirelessly promoted the centrality of the human personality ( Persönlichkeit ) as the foundation stone of dem- ocratic order. 62 The intellectual and cultural sources for such a conservative rapproche- ment with the rights of man were not individualist in general or Kantian in particular, certainly not in the early going. In a fi rst moment, in fact, the dominant view was to connect the human dignity affi rmed at the outset of the Basic Law with naturalistic premises, and indeed “the dominant Catholic natural law teaching possessed in the fi rst postwar years such a powerful radiance amongst constitutional experts that Protestants themselves could not withdraw from it.” 63 In a second moment, Catholic personalist and author of the leading commentary on the Basic Law Günter Dürig moved away from natural law to a theory of human dignity, and rights generally, as “objective values” (here Scheler’s old c r it iqu e of K a nt ’s putatively subjectivist procedural- ism in the name of material values provided the main inspiration). 64 In both moments, personalist conceptions of dignity purporting to leave behind the As he put it, “Chief among [the idolatries of the day] are the worship of power, the totalitarian State, nationalism, racialism, the craving for riches.… Put against them the great Christian ideas of the sovereignty and fatherhood of God, the solidarity of the human race with all its varieties, the sacredness of the human personality.… [T]he rights of men derive directly from their condition as children of God and not of the State” (407, 409). 62 Gerhard Leibholz, Christianity, Politics, and Power (London, 1943), and “Politics and Natural Law,” paper delivered at the conference that led to A. R. Vidler and W. H. Whitehouse (eds.), Natural Law: A Christian Re-consideration (London, 1946), 31–36. Both of Leibholz’s texts and many others from his émigré years are in Leibholz, Politics and Law ( L e yd e n , 1965), c it a- tion at 23. On the postwar career, see Manfred Wiegandt, Norm und Wirklichkeit: Gerhard Leibholz, 1901–1982: Leben, Werk und Richteramt (Baden-Baden, 1995). 63 Frieder Günther, Denken vom Staat her: Die bundesdeutsche Staatsrechtslehre zwischen Dezision und Integration 1949 –1970 (Munich, 2004), 192, and, for the larger context of rights, 192–196, 202–204. For the view of a contemporary, see Hans Maier, “Katholische Sozial- und Staatslehre und neuere deutsche Staatslehre,” Archiv des öffentlichen Rechts , 93:1 (1968), 1–36. 64 Günter Dürig, “Die Menschenauffassung des Grundgesetzes,” Juristische Rundschau 7 (1952), 259–263 reprinted in Walter Schmitt Glaeser and Peter Häberle (eds.), Gesammelte Schriften (Berlin, 1984). For his classic commentary on the Grundgesetz , Art. 1, see Dürig and Theodor Maunz, Grundgesetz: Kommentar (Munich, 1958); cf. Ernst-Wolfgang Böckenförde, “Die Menschenwürde war unantastbar,” Frankfurter Allgemeine Zeitung , September 9, 2003. 0003 Personalism, Community, and the Origins of Human Rights 105 choice between individual and collective provided the dominant framework and affected many aspects of what human rights meant within the postwar constitutional framework. 65 It may be true, then, that (as Mark Mazower has argued) there was a concep- tual shift from group to individual in diplomatic and legal circles that set the stage for the post–World War II human rights moment. But there was also a shift afoot from the individual to the person, and in terms of its cultural meaning at the time; and the embedding of its ideas in postwar European politics, the Universal Declaration is a profoundly communitarian document – precisely a moral repudiation of dangerous individualism, albeit one equally intended to steer equally clear of communism. 66 Indeed, in my view this is the key to placing the document – along with the human rights idea in general – more securely in the ambiance of the war’s aftermath, as part of the moral reconstruction of Europe perceived to be necessary to stave off future world crises and confl icts.

One signifi cant irony of this history is that the availability of a now far more familiar paradigm of the moral value of the person – one with roots in Roman law, and embedded in Immanuel Kant’s political thought – may easily promote oblivion of the primacy of a very different human person in the years when the Universal Declaration was framed and the concept was embedded in early postwar European law and common sense. Kantians were few and far between in the 1940s. In a later era, communitarianism could come to seem a major challenge to rights-talk, but few in that debate are even aware that rights-talk in immediate postwar Europe did not exclude communitarianism but instead presupposed it. 67 In short, the original context of the European embrace of human rights – in which they were linked to the conservative defense of human dignity and attached to the fi gure of the human person – was in Christianity’s last golden age on the Continent, which lasted for two decades before the shocking rever- sal for the fortunes of religion after the mid-1960s. The “death of Christian Europe,” as one might call it, forced – along with many other developments – a complete reinvention of the meaning of the human rights embedded in 65 “A strong personalist and communitarian philosophy pervades this conception of the human person,” the leading Anglophone authority on German constitutional jurisprudence confi rms.

Donald P. Kom mers, The Constitutional Jurisprudence of the Federal Republic of Germany , new ed. (Raleigh, 1997), 304. 66 Cf. Mark Mazower, “The Strange Triumph of Human Rights, 1930 –1950,” Historical Journal , 47:2 (June 2004), 379–398. 67 For graphic evidence of the sheer diffi culty of defending individualism in law in the 1940s, see Marcel Waline, L’individualisme et le droit (Paris, 1945). But, for an attempt to inject person- alism into the hitherto powerful – and still anti-individualist – “institutionalist” movement in legal thought by one of its leaders, cf. J. T. Delos and Bruno de Solages, Essai sur l’ordre politique national et international (Paris, 1947), esp. 86–88. 0003 Samuel Moyn 10 6 European identity both formally and really since the war. 68 The only serious thread of persistence was, ironically, in Eastern Europe, and especially in Poland, not coincidentally the main exception to Christian collapse. There Maritain, Mounier, and Scheler enjoyed huge discipleships, not least in the personalism of K a rol Wojt yla, event ual ly Pope Joh n Pau l I I . 69 But by the time of the explosion of human rights in the later 1970s, when the concept gained a currency out of all proportion to any other moment in history, Christian personalism, while not absent, was decidedly peripheral. Human rights had become a secular doctrine of the left; how that happened is another story. 68 This collapse, which ought to be shocking, remains essentially unexplained, but see Callum Brown, The Death of Christian Britain: Understanding Secularization, 1800–2000 (New York, 2001), and Mark Edward Ruff, Wayward Flock: Catholic Youth in Postwar We st Ge r m a n y (Chapel Hill, 2005). 69 The literature here is large, but see Karol Wojtyla, “Thomistic Personalism” (1961), “On the Dignity of the Human Person” (1964), and other essays in Person and Community: Selected Essays (Catholic Thought from Lublin ), trans. Theresa Sandok (New York, 1993); cf. Avery Cardinal Dulles, “John Paul II and the Mystery of the Human Person,” America , February 2, 2004, reprinted in Dulles, Church and Society: The Laurence A. McGinley Lectures, 1988–2007 (New York, 2008), 414–429. Cf. Jens David Ohlin, “Is the Concept of the Person Necessary for Human Rights?” Columbia Law Review , 105:1 (January 2005), 209–249. 0003 10 7 5 René Cassin Les droits de l’homme and the Universality of Human Rights, 1945–1966 Glenda Sluga In January 1947 sixty-year-old René Cassin, Vice-President of the French Conseil d’État and offi cial French delegate to the newly created United Nations Human Rights Commission, arrived in New York from Paris. That commission was to defi ne and implement a postwar international regime of rights, beginning with the drafting of a human rights document that might become internationally binding. 1 Cassin’s mood was less than propitious. The Atlantic had been rough and delayed him. Added to the bitter cold was the isolated locale of his international adventure; the U N had moved its provi- sional administrative headquarters to the relatively isolated village setting of Lake Success, in upstate New York. His general dissatisfaction was only exac- erbated when he discovered that the commission’s chair, Eleanor Roosevelt, wife of the former president, had no Europeans on her team of drafters, an omission he regarded as ‘symbolic’. Instead, at her side there stood ‘two phi- losophers, M[onsieur] Chang, Chinese, vice-president, and M[onsieur] Malik, Lebanese, rapporteur’. From Cassin’s perspective there was worse in store.

French had been demoted to an auxiliary language at the meeting, and he felt his own contribution to the discussions was incapacitated by the simultaneous translation process, which matched the French concept les droits de l’homme (literally, ‘the rights of man’) with the English ‘human rights’. The question of cultural relativism has been long at the heart of the his- toriography of the international programme of human rights introduced in the aftermath of the Second World War. Overall, historians have tended to characterize the universalism of this programme as a European ambition that stood in sharp contrast to an inevitable position of cultural relativism taken up by contemporary anti-colonialists. 2 Ironically, the story of Cassin’s 1 The original intention was to draft an International Bill of Human Rights, but this was down- graded to a Declaration, which was fi nally adopted at the end of 1948. 2 This is a history that is only beginning to be challenged; see, in particular, Roland Burke, ‘From Individual Rights to National Development: The First U N International Conference on Human Rights, Tehran 1968’, Journal of World History , 19:3 (September 2008), 275–296; ‘The Compelling Dialogue of Freedom: Human Rights at the 1955 Bandung Conference’, 0003 Glenda Sluga 108 attachment to les droits de l’homme and his distress at the marginalization of Europeans and the French language offer evidence against this reductive characterization. Cassin was also the drafter who ‘spent the post-adoption years interpreting the Declaration to the larger world, almost always stress- ing the theme of universality’. 3 In his role as a drafter of the 1948 Universal Declaration of Human Rights, he proposed appointing individuals rather than nation-state delegates to the Human Rights Commission. Although unsuc- cessful, his efforts helped sustain a vision of an international organization not only represented by individuals but also representing them. Cassin also sup- ported, against the majority, the right of petition over and above the rights of state representation to the U N. Unusually for a man in high national offi ce, he defended the inclusion in the postwar French Constitution of a clause allow- ing the abrogation of French national sovereignty in the interests of estab- lished international principles. His imprint is also obvious in the Universal Declaration’s invocation of the equality of all individuals as members of ‘the human family’. The reduction of the postwar history of human rights to the problem of cultural relativism versus universalism ignores the more complicated his- tory of human rights as an idea. One need only think of the term ‘human rights’ itself, which, according to Kenneth Cmiel, was hardly used before the 1940s. 4 By contrast, Cassin’s preferred term, the French les droits de l’homme, like its English equivalent ‘the rights of man’, had well-known and well-worn roots in the late-eighteenth-century Enlightenment tradition.

Cassin’s usage of les droits de l’homme was meant to provide the distinc- tive stamp of an unchanging European and French political heritage for the universal claims of human rights. But he invoked that phrase in radically shifting political and cultural circumstances: the twentieth-century trajec- tory of French imperialism, the rise of international institutions (from the League of Nations to the United Nations), and feminist and anti-colonialist negotiations of les droits de l’homme . Cassin’s own role could change in each of these settings. At times he adopted the stance of the beleaguered European, at others the French patriot defending republican values from the challenges of authoritarianism, chauvinism and anti-colonialism. Cassin took international action not only as a delegate to the U N Human Rights Commission from 1947 to 1971 but also as President of the European Court of Human Rights from 1965 to 1968, and as a member of one of the world’s Human Rights Quarterly , 28:4 (November 2006), 947–965; The Politics of Decolonization and the Evolution of the International Human Rights Project (Philadelphia, 2010). See also Reza Afshari, ‘On the Historiography of Human Rights: Refl ections on Paul Gordon Lauren’s The Evolution of International Human Rights: Visions Seen ’, Human Rights Quarterly , 29:1 (2007), 1–67; and Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (Philadelphia, 1999). 3 Morsink, Universal Declaration of Human Right s, 29. 4 Kenneth Cmiel, ‘The Recent History of Human Rights’, American Historical Review , February 2004, http://www.historycooperative.org/journals/ahr/109.1/cmiel.html . 0003 René Cassin 10 9 most vulnerable minorities brought to consciousness of his Jewishness by the Holocaust. 5 This essay draws together the strands of Cassin’s conception of human rights in order to illuminate a more complex account of human rights as a ‘fl uid’ 6 idea mobilized in historically specifi c contexts and amidst competing accounts of its culturally specifi c pasts. 7 The shifting settings and circum- stances of Cassin’s long twentieth-century engagement of human rights as les droits de l’homme are presented here chronologically, beginning with the period before the Second World War, followed by his postwar role in the drafting of the 1948 Universal Declaration of Human Rights, and concluding with the discussions surrounding the International Conventions on Human Rights adopted in 1966. Across these decades, Cassin’s story has much to tell us about the importance of thinking about a twentieth-century history of human rights from the perspective of individuals navigating the cross-currents of social and political change. By emphasising the fl uidity of human rights as an idea my aim is to show just how persistently the imperatives of imperial and national sovereignty, and the tensions between them, have shaped and constrained the career of human rights as an international ideal.

Empire and the League of Nations Even though René Cassin was only one of a signifi cant team responsible for drafting the Universal Declaration of Human Rights, he alone received the Nobel Prize for Peace in 1968 on the basis of ‘his contribution to the protec- tion of human worth and the rights of man’. 8 Cassin believed he was deserv- ing of this accolade. His acceptance speech crafted a narrative of a lifetime devoted to the crusade for les droits de l’homme . He ranked his interwar inter- national activism and his postwar role on the Human Rights Commission as contiguous with the longue durée history of human rights in the tradition of les droits de l’homme . 9 In the period after the First World War (he was a decorated veteran), the young lawyer Cassin energetically devoted himself to the economic and social rights of the thousands of French veterans and war widows whose lives had been ruined by the fi rst total war. Through the 1920s and 1930s he concentrated 5 Cassin was the Commission’s Vice- Chair in 1949 and Chair in 1955; in the early stages of the drafting of the Universal Declaration of Human Rights, he was solely responsible for crafting a working version of that document. 6 See Cmiel, ‘The Recent History of Human Rights’. 7 Most of Cassin’s biographers have tended to the celebratory when discussing his part in the history of human rights; see, for example, Marc Agi, Rene Cassin: Père de la Déclaration universelle des droits de l’homme (Paris, 1998), and in English, the chapter on Cassin in Jay Winter, Dreams of Peace and Freedom: Utopian Moments in the Twentieth Century (New Haven, Conn., 2006). 8 See the Presentation speech for Cassin’s Nobel Peace Prize, 1968, at www.nobel.org . 9 René Cassin, Nobel Lecture, December 11, 1968, ‘The Charter of Human Rights’, http:// nobelprize.org/nobel_prizes/peace/laureates/1968/cassin-lecture.html . 0003 Glenda Sluga 110 on the League of Nations as an instrument for improving the circumstances of veterans worldwide. He was also widely regarded as a supporter of efforts to eradicate political and legal discrimination against women. 10 The alliance of women’s international organizations working with the League of Nation’s Social Questions unit to challenge the panoply of state-based laws that denied married women the right to keep their nationality turned to Cassin to draft a legal resolution to the situation of ‘stateless’ abandoned, widowed and dis- placed women. By then, Cassin was also the French national delegate to the League of Nations, as well as a member of the Ligue des droits de l’Homme (League of the Rights of Man), a national organization devoted to universal rights. In 1936, at a conference in Dijon attended by Cassin, the Ligue adopted a ‘Declaration of The Rights of Man’, demanding that ‘[t]he international pro- tection of the rights of man must be universally organized and guaranteed so that no State can refuse the exercise of these rights by any human being living in its territory’. 11 The Ligue Declaration’s enunciation of the principles of uni- versalism, internationalism and equality resonated a decade later as Cassin exerted his infl uence over the U N’s own Declaration. Of course, the drafters of the 1936 Ligue Declaration were themselves self-consciously echoing a pro- totype – the 1789 French Déclaration des droits de l’homme et du citoyen . But, whereas that late-eighteenth-century document had described ‘droits naturels, inaliénables et sacrés’, the Ligue’s 1936 Declaration marked a more inclusive conception of rights, emphasizing the individual rights of the ‘human being’ ( être humain ) without distinction of sex, race, nation, religion or opinion. It posited social and economic rights, the right to a job, culture and property, but only insofar as the latter did not impede on ‘community interest’ (which, it was claimed, could be the case when cartels, trusts and fi nancial consortiums were given free reign). Such rights included the right to life and, in this regard, the special rights of mothers and children, and of the aged and the ill. For all these cases, the Declaration made no reference to national specifi city; it was intended to have universal relevance. Cassin was deeply committed to this interwar conception of the individual as a fundamentally social human being, and to the Ligue’s social-democratic objectives. It is also true, as the historian Jay Winter has pointed out, that Cassin’s vision of les droits de l’homme was as consistently oriented around the individual, not as a member of a social class or nation, ‘but as the common denominator of humanity’ and as the antithesis of collectively based rights whose potential was to undermine the universality of rights. 12 This emphasis on the individual was in part motivated by the events of the interwar period, specifi cally the Nazi state’s exploitation of the League of Nation’s minority 10 See René Cassin, ‘L’inégalité entre l’homme et la femme dans la legislation civile’, in Annales de la Faculté de droit d’Aix , Nouvelle série no. 3, 1919. 11 Article 1. ‘Le complément à la déclaration des droits de l’homme elaboré par la LDH en 1936’, ‘Ligue des droits de l’homme’, http://www.ldh-france.org/docu_textesfonda2.cfm?ifond=62 . 12 Winter, Dreams of Peace and Freedom , 6. 0003 René Cassin 111 legislation as the legitimation for its aggressive foreign policy on behalf of Germans outside Germany. Cassin had also grown frustrated at the inabil- ity of the League of Nations to protect individual Jews from the discrimina- tion and abuses enacted by states in which they held national citizenship. In this context, Cassin’s preference was for the codifi cation and enforcement of individual rights over the interwar trend toward minority rights and their nationalist and statist rationales. 13 Just as Cassin’s experience at the L eague of Nations, and with the Ligue des droits de l’Homme, helped defi ne his inter- nationalism, the Nazi occupation of France, the establishment of the Vichy regime and his growing awareness of the terrible fate of Jews across Europe (including the disappearance of his own extended family) alerted him to the politically strategic signifi cance of universally-conceived and internationally- sanctioned individual rights. Ironically, this same pragmatism reinforced his view of the crucial international role of the French Republic as the source and defender of those rights. During the war, while in self-imposed political exile in London, 14 Cassin had volunteered his legal expertise in service to Charles de Gaulle, the leader of the Free France resistance and future French President. De Gaulle rewarded him with the role of Permanent Secretary to the Council of Defense of the Empire. In December 1941, Cassin was sent off on a diffi cult journey across the French empire, from the ‘Near East’ of Palestine, Lebanon and Egypt, to Indochina, Chad and the Cameroons, collecting information on the state of support for the French Republic in each of these outposts. With this new responsibility came an acquaintance with the Alliance Israélite Universelle, a secular Jewish organization established in the mid-nineteenth century and devoted to the dissemination of the French language and the republican val- ues of les droits de l’homme , particularly in the French colonies. His atten- tion newly focused on the protection of the rights of Jews, as minorities.

within the French Republic and its empire, Cassin found affi rmation of a tradition of les droits de l’homme that was as intrinsic to secular Judaism as it was to the values of the French republic. Despite evidence that de Gaulle and his French Cabinet members were personally inclined to anti-Semitism, Cassin’s memoirs announce that these wartime travels had made him more profoundly French. They had given him an insight – not shared by most other Frenchmen – into the many departments, possessions, protectorates and mandates of the French empire, as well as into the universal capacity of les droits de l’homme . 15 13 For a full discussion of Cassin’s position on the League’s fascination with minorities, see Greg Burgess, ‘The Human Rights Dilemma in Anti-Nazi protest’, CERC Working Paper 2/2002, University of Melbourne. 14 Cassin quit Paris in 1940; when he returned, he left on the door of his apartment on the Boulevard Saint-Michel the black seal of the Gestapo that the Nazis had put there when they condemned him to death in absentia . 15 See René Cassin, Les hommes partis de rien: le réveil de la France abattue 1940–41 (Paris, 1974), 128. 0003 Glenda Sluga 112 Cassin’s commitment to imperial France as the preferred setting for the implementation of universal individual rights in existing French territories is well capt u red i n t he advice he of fered de G au lle on t he form of a f ut u re i nter- national organization during the early discussions among the Allies (a group- ing known at the time as the ‘ United Nations’) on a postwar order. Cassin took t he oppor t u n it y to rejec t t he L eag ue of Nat ions model , a nd what he saw as its overwrought legal investment in national sovereignty. He contrasted its ineffi ciencies with the international agency exercised by nineteenth-century empires such as Britain and France in the pre-League era. Those empires had been able to take unilateral action to eradicate slavery and, less success- fully, to protect Armenians (against Turks), Lebanese Christians (against the Druze) and Jews (against the Tsar’s pogroms). 16 Cassin proposed that the new international organization should be legally enabled to intervene in interna- tional crises when individual les droits de l’homme were at risk, regardless of national sovereignty. He also defended the integrity of the French empire as crucial for the universal destiny of les droits de l’homme – to the extent of alerting de Gaulle of the creeping infl uence of the concept of national self-determination in colonies such as Indochina. From Cassin’s perspec- tive, there was no inevitable correspondence between les droits de l’homme and national self-determination. In the micro-cosmopolitan spaces of the French empire, Jews such as himself and Muslims, white and black, could seek politico-cultural convergence as French citizens and patriots. The anti- colonial alternative augured ethnic and religious nation-states (in the context of Algeria and Morocco, the assumption was they would be predominantly Muslim) that would reconstitute their Jewish and other non-Muslim citizens as vulnerable minorities.

Cosmopolitanism, Human Rights and the UN In the period extending roughly from 1945 to 1950, another way of concep- tualizing the implementation of universal human rights began to be discussed in the context of the creation of the United Nations, namely, the prospect of a cosmopolitan ‘world citizenship’ that was distilled from cultural differ- ences and potentially transcended them. 17 Although world citizenship was not an ideal that Cassin ascribed to with any obvious enthusiasm, its ambitions shaped the larger discussion amidst the agencies and committees of the U N and the presentation of human rights as simultaneously individualist and uni- versal. In 1950, Jaime Torres Bodet, the Mexican politician and educationalist and second Director-General of the United Nations Educational, Scientifi c and 16 See Paris, Archives de la Ministère des Affaires Étrangères, N UOI: S -1 Dumbarton Oaks, ‘Commission pour l’étude des principes d’une organisation internationale’, Séance Dossiers Générale. 17 See G. Sluga, ‘The Cosmopolitan History of Julian Huxley and U N E SCO’, Journal of World History 21:3 (2 010). 0003 René Cassin 113 Cultural Organization (UNESCO ), described ‘world citizenship’ as ‘engen- dered by the sense of justice, by that principle in the Universal Declaration of Human Rights which assigns to the individual universal rights of which none can be legally or morally deprived’. 18 To be sure, Bodet’s assertion was made against the rising tide of Cold War polarization and anti-colonialist pressures.

The period after 1950 signalled the renunciation by the U N and UNESCO of world citizenship and a return to an older particularist agenda of national ‘self-determination’, claimed anew in the context of emancipatory aspirations for decolonization. Even though the process was gradual, and the universal underpinnings of the new international human rights agenda continued to be defended by the representatives of anti-colonialism well into the period of the Bandung Conference of 1955, 19 by the time the two Covenants on Human Rights – one on Social and Economic Rights, and one on Political and Civil Rights – were adopted by the U N in 1966, world citizenship had been irrepa- rably severed from cosmopolitanism, just as the world citizen had ceded to the rights of ‘peoples’. It was in this shifting ideological setting that Cassin, through his ongoing role on the Human Rights Commission, affi rmed the importance of a conception of human rights that existed over and above that of the patrie , at the same time as he insisted on the historical role of France in inventing, interpreting and implementing les droits de l’homme. As we have seen, when Cassin arrived in New York for the fi rst sessions of the Human Rights Commission in 1947, he was concerned to ensure a prominent role for France and Europe in the formulation of the fundamental principles that could comprise a universal human rights declaration. 20 By this time the terms human rights and les droits de l’homme were interchange- ably drawn upon in the (mostly) simultaneous French and English discussions.

Cassin found too that his non-European colleagues on the Human Rights Commission were keen to identify their own cultures and states in the expo- sition of that universalism, and in the narrative of the origins of human rights as an idea. Delegates from the newly independent (formerly American col- ony) Philippines, for example, made good weather of the specifi c language of world citizenship, describing their nation as the most cosmopolitan state in the world. Indeed, Cassin found his own view of universal rights posi- tioned between a conservative portrait of human nature and humanity put by European delegates in defence of empires, and a relatively radical cosmopol- itan vision of the history and signifi cance of human rights proposed by these ‘non-European’ commissioners. The Philippines’ representative on the Human Rights Commission, Carlos Romulo, appealed for ‘a rational bill of rights that will take into account all the different cultural patterns there are in the 18 Bodet’s published speech, ‘Human Rights: The Task before Us’, was presented to an audience of the International Federation of University Women. 19 For more on this history, see Burke, The Politics of Decolonization . 20 The First Session of the commission was held over January and February 1947 and attended by delegates from Chile, China, France, India, Iran, Lebanon, Panama, the Philippines, the Soviet Union, the United Kingdom, the United States, Uruguay and Yugoslavia. 0003 Glenda Sluga 114 world, especially in respect to popular customs and legal systems’. 21 Romulo gave words also to a common postwar interpretation of how universal human rights might work – it would distil from the variety of different positions an essential body of law relevant to all humans, who belonged to one human family. He was, of course, offering an implicit critique of colonialism along the way, since the hierarchical classifi cation of collective human differences had acted as the justifi cation of European colonialism. Rather than promote human rights in the context of national self-determination, Romulo invoked the potential for indulging ‘the vision of World Government which the imple- mentation of the proposed international bill of rights will doubtless require in some degree, and of which, as a matter of fact, it will be the cornerstone’. 22 In the same session of the Commission on Human Rights, Peng-Chun Chang, the Kuomintang delegate, presented his own history of the cosmopoli- tan nature of the eighteenth-century world. Chang (who, like Romulo, had passed through North A merican institutions as well as universities in his own country) 23 argued that a nineteenth-century European ‘myopia’ had recast the eighteenth century as a period when civilization stood for Europe: ‘That was not true in the eighteenth century. All cultured men in the eighteenth century, especially concerning this idea of the conception of man, knew their Chinese thoughts very clearly’. Chang insisted that his point was not a nationalist one on behalf of China, rather that there was an eighteenth-century tradition of cosmopolitanism, which had been lost to the nineteenth century and which the current international experiment in human rights could restore. Cassin did not let Chang’s foray into the history of the eighteenth-cen- tury pass without comment. He agreed with the view that before the nine- teenth century there was a universalistic trend of thought; but he also believed that it had been reasserted in the twentieth century through the efforts of Europe. The European found himself curiously on the defensive among the non- Europeans of the commission who claimed for themselves a share of the historical ownership of human rights as an idea. Throughout the 1950s and 1960s, as the U N grew more ‘cosmopolitan’, with its rapidly expanding mem- ber states and African and Asian representation, the French jurist grew more insistent on the very point of a We s t e r n , European, liberal tradition of human rights. By then, the real rift was not between Paris and Peking intellectuals, but the West and East of the Cold War, and a new North– South axis – polari- ties that were in turn defi ned by an ideological distinction between individual and collective rights. 21 Romulo served as the President of the Fourth Session of the United Nations General Assembly in 1949–1950 and Chairman of the United Nations Security Council. He later ended up a defender of the Marcos regime, just as Cassin became an apologist for de Gaulle’s creeping authoritarianism in the 1950s – until de Gaulle verbally attacked Israel. 22 Commission on Human Rights, Meeting, February 1, 1947, p. 12, Verbatim Records from Charles Malik archive, and kindly provided by Roland Burke. 23 Chang earned his doctoral degree from Columbia University, specializing in Chinese studies. 0003 René Cassin 115 There is no little irony in the fact that in the early U N debates on human rights the representatives of non-European states at times found themselves defending a more cosmopolitan version of the universal qualities of human rights than their European peers. What most of them paid less attention to was the gender stereotypes that had in the past compromised the universalism of the rights of man rhetoric, and threatened to do the same even when con- templated as the rights of humans.

Human Rights and Les droits des femmes At San Francisco in 1945, and then at the London, Paris and New York gath- erings that shaped the U N’s social and political programme, feminists from the old and new worlds expressed their concern that ‘human rights’ as much as les droits de l’homme, or ‘the rights of man ’, implied men, and women by exception only. 24 Feminists were also wary of the inclination to emphasize the espousal of universality as the antithesis of chauvinist cultural or racial hierarchies as the central motivation for this postwar human rights agenda. 25 Nora Stanton Barney, writing in the feminist periodical Equal Rights in 1946, echoed the sentiments of numerous feminist lobbyists of the U N organization when she claimed: We all know only too well, and have heard only too often great speeches on human rights by people who have in mind only the rights of men, and never think of the human rights of women. Even women who have taken to heart mainly discriminations on account of race and color, completely forget discriminations on account of sex. The Commission on Human Rights will probably emphasize these racial discriminations rather than those of women. 26 Although the U N’s Charter stipulated the equality of men and women, 27 some feminists were so concerned about a bias inherent in the concept of human rights that they supported the establishment of a separate human rights com- mission for women. Others who had grown disillusioned with the segrega- tion of women’s issues in the League of Nations were as adamant that the League precedent should not be followed in the new organization. Cassin 24 Marilyn Lake, ‘From Self-Determination via Protection to Equality via Non-Discrimination:

Defi ning Women’s Rights at the League of Nations and the United Nations’, in P. Grimshaw, K. Holmes and M. Lake (eds.), Women’s Rights and Human Rights: International Perspectives (Basingstoke, 2001), 263. 25 See, ‘Status of Women’, UN Weekly Bulletin , 1:7 (September 16, 1946), 11. 26 Nora Stanton Barney, ‘The World and The Nation’, Equal Rights , September– October 1946, 46. Stanton was a pioneering female civil engineer and the author of World Peace through a Peoples Parli ame nt (1944). See also my ‘National Sovereignty and Female Equality. Gender, Peacemaking, and the New World Orders of 1919 and 1945’, in J. Davy, K. Hagemann, and U. Katzel (eds.), Frieden – Gewalt – Geschlecht: Friedens- und Kon\b iktforschung als Geschlechterforschung (Essen, 2005). 27 See Laura Reanda, ‘Human Rights and Women’s Rights: The United Nations Approach’, Human Rights Quarterly , 3:2 (1981), 11–31. 0003 Glenda Sluga 116 kept a relatively low profi le in these discussions, but we know that he was generally in accord with Eleanor Roosevelt, the chair of the Human Rights Commission. Roosevelt opposed the creation of a second women’s body on the basis that human signifi ed women as well as men. She did not agree that women required ‘identical treatment with men in all cases’, but she believed that the rights of men and women could be represented in the one human rights commission. 28 Nevertheless, in 1946 the U N’s Third Committee created the Sub-Commission on the Status of Women as part of the Human Rights Commission. The Sub-Commission was quickly promoted to the status of an independent body, the Commission on the Status of Women, with a focus on political rights and civil equality. The rights it promoted were concretely juridical and in many ways borrowed from the League of Nations: equality in marriage, monogamy, nationality, property and guardianship of children, social and economic equality, the prevention of traffi c in women and equal opportunity in the domain of education. 29 As Johannes Morsink has shown in his study of the drafting of the Universal Declaration of Human Rights, those critics who anticipated the neglect of women’s rights in the articulation of human rights had a point. Even as the new communist bloc pushed for a conception of nondiscrimination as rel- evant to sex as well as race, the Economic and Social Committee delimited the scope of the Commission on the Status of Women to a ‘very narrow and harmless set of activities around women’s concerns’. 30 In terms of the craft- ing of the declaration, the human rights propositions decided upon refl ected historically specifi c gender norms, particularly in regard to the place of men and women in families 31 – norms which, to be sure, were accepted by the fem- inist organizations, as well as by Cassin. A week before the General Assembly adopted the Universal Declaration, Andrée Lehmann, the president of the Ligue Française pour le Droit des Femmes – an organization that originated in the mid- nineteenth century well before the Ligue des droits de l’Homme – wrote to Cassin, reminding him of a letter she had sent a month earlier about Article 16 of the Declaration. Lehmann was concerned that the use of ‘they’ to indicate the sharing of equal rights in the matter of marriage was too ambiguous. She urged the more specifi c wording ‘men and women’, including the addition of a clause that gave men and women ‘the same rights during the marriage and in respect of its dissolution’. 32 In writing to Cassin, Lehmann was reinforcing the suggestions offered to the Human Rights Commission by 28 Cassin had asked for a copy of Mrs Roosevelt’s statement on equality of treatment for women, under which he then wrote ‘je suis d’accord’. 29 Reanda, ‘Human Rights and Women’s Rights’, 18. 30 Deborah Stienstra, Women’s Movements and International Organizations (New York, 1994), 84. 31 Morsink, The Universal Declaration of Human Rights , 93, 118. See Articles 23 and 25 of the Declaration, which refer to ‘himself and his family’. 32 Paris, Archives Nationales, Fonds Cassin, A P 382, cote 128, dossier 2: Andrée Lehmann, 2 décembre 1948, à Cassin. 0003 René Cassin 117 the Status of Women Commission. The fi nal version of Article 16 refl ects in part these suggestions, since it unambiguously employs ‘men and women’. But, rather than enshrine what was ostensibly a right to divorce, its third clause turned completely in the other direction, affi rming that ‘[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the State’. This claim was certainly the consequence of the infl u- ence of Christian delegates, only some of them European. Yet it also accorded with Cassin’s choice of the ‘human family’ metaphor in the preamble to the Declaration, as well as his theoretical understanding of the family as a pri- mary social setting for the individual, and a corollary conception of the pro- tection of motherhood as a special condition of women’s equal rights. It also echoed the interwar welfarist emphases of the Ligue des droits de l’Homme, as well as the postwar agenda of the Commission on the Status of Women.

By contrast, feminists such as Cassin’s Indian colleague Hansa Mehta (t he one other woman on the Human Rights Commission in this period) were not successful in their demands that the interests of children and mothers be sepa- rated in order to emphasize women’s intrinsic rights as individuals or humans.

Instead, in Article 25 of the Declaration the needs of mothers and children were essentially yoked together. We can interpret the problem of women’s status vis-à-vis human rights as another related dimension of the larger controversy surrounding universal- ism and the question of difference in the postwar debates about the nature of rights. At a practical level, Lehmann’s letter refl ects the extent to which a vari- ety of nongovernmental organizations (NGOs), including Jewish and feminist organizations, were incorporated into the drafting of the Declaration often thanks to Cassin who sat on endless NGO boards and committees (including the Alliance Israélite Universelle, the World Jewish Congress, and the central committee of the Ligue des droits de l’Homme). 33 It also highlights the diffi cult position of the Commission on the Status of Women, a body which emerged out of the fear expressed by some feminists that women would be forgotten or submerged in the assumption of universality and then, once it was created, was effectively marginalized by the Human Rights Commission. 34 Even as conventions about gender difference made their way into the Declaration in the form of the special status of women – whether as mothers, wives or work- ers, or in the family – the question of women’s status intruded in the dominant discussions of the relevance of race and cultural difference usually in ways that some feminists had feared. 35 For Belgium’s delegate to the Human Rights Commission, the fact of sex difference was the basis for accepting the fact of 33 Fonds Cassin, A P 382, cote 128, dossier 2: Cassin, 30 avril 1948, à Monsieur Parodi, Ambassadeur, Chef de la délégation française, N Y. 34 See John Humphrey, On the Edge of Greatness: The Diaries of John Humphrey, First Director of the United Nations Division of Human Rights (Montreal, 1994–2000). 35 Cassin was also inspired in his relatively radical conception of the rights of asylum and refu- gees by his League work on the nationality of women, and their unfi xed status – that is, since according to many legal codes women had no intrinsic nationality, but rather a nationality 0003 Glenda Sluga 118 race difference as a fundamental qualifi cation of any universal application of human rights. 36 Chang, for his part, had no problem with mui jai – the sell- ing of Chinese girls to wealthy families as domestic laborers – even as British delegates who rejected the universal applicability of human rights in their own colon ia l ter r itor ies were depic t i ng t h is prac t ice as a for m of slaver y . As we will see, Cassin’s postwar identifi cation of les droits de l’homme with a specifi cally French and Judaeo-Christian tradition similarly made the status of women a marker of a society’s capacity to value and enact human rights and, concur- rently, a basis for denying the universal application of human rights in cultur- ally differentiated communities.

Decolonization and the Right of Peoples to Self-Determination One of the most important contexts for the postwar discussion of human rights in the international domain occurred after the adoption of the Universal Declaration, in the course of the drafting of the binding Covenants on Human Rights. In his 1968 Nobel Peace Prize lecture Cassin pointed out rather despon- dently that the drafting of the Covenants had taken eighteen diffi cult years.

Over the course of that journey, the fi rst issue to be favourably dealt with ‘was the problem of deciding whether the right of peoples to self-determination, which had previously been considered a principle of political and essentially collective nature, should be inserted in the Covenants intended to implement the rights proclaimed in the Universal Declaration, which was concerned only with the rights exercised separately or communally by the individual’. 37 This shift in priorities, from individual to collective rights, coincided with the dis- paragement of world citizenship and a renewed emphasis on the nation-state as the most signifi cant form of governance and liberty. As Cassin described in his lecture, ‘the solution arrived at can be explained historically by the move- ment toward decolonization and, more exactly, toward the political emanci- pation of territorial entities, which was a logical outcome of the victorious libertarian principles fostered in the course of the Second World War’. Cassin, like many European delegates, was not always this sure of the compatibility of decolonization and les droits de l’homme . During the 1950s Covenant debates, which privileged the self-determination of peoples as a principle of human rights, Cassin is to be found opposing the attempt by the Soviet-linked states and Danish and Yugoslav representatives to equate human rights with minority rights, and minority rights with nationality. 38 Although Cassin did not always associate the universal implementation of human rights status that depended on their domicile, this provided a useful precedent for dealing with refu- gees, who should be able to get domicile regardless of nationality. 36 Ronald LeBeau, Meeting 7 of Commission for Human Rights, February 1, 1947, verbatim records. 37 Cassin, Nobel Prize lecture, December 11, 1968. 38 Fonds Cassin, A P 382, cote 129, dossier 6: typescripts of Commission des droits de l’homme des Nations Unies, mai 1949, Premier rapport du President Cassin. 0003 René Cassin 119 with the maintenance of the French empire, he always implied a fundamental ideological antagonism between the self-determination of peoples and the cos- mopolitan conception of a state such as France as a society comprising equal individuals. 39 Certainly some delegates to the Human Rights Commission and the Third Committee fought incorporating ‘the self-determination of peoples’ into a binding international convention on human rights on the basis that it would undermine the status of their empires (the Netherlands, Britain, France).

Others fought it because they had a profound sense of the unequal difference of the colonized (Greece, Belgium), while others still fought it as an intrusion on the sovereignty of their own states, which contained movements for seces- sion (India ). Cassin’s personal objections to the view that the self-determina- tion of peoples is a human right were consistent with his general preference for individual rights over group rights. 40 When the Soviet representative on the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities (it met during the preparation of the 1948 Declaration) urged a text on territorially based minorities, Cassin, the Sub-Commission’s Chair, objected that ‘there were certain countries where different peoples, Christians, Mohammedans and Jews, had lived side by side for centuries; as in North Africa, for instance, and where such a [territorial] text would be inapplicable’.

He added, in acknowledgement of the related colonial question, ‘There were some non-self-governing or trust [formerly colonial but not yet independent] territories where, no doubt, a problem of self-government existed, but there was no minorities problem’. 41 This was a point in favour of individual rights and against minority rights with which even Lakshmi Menon, an outspoken Indian feminist (and in 1949–1950 the head of the Commission on the Status of Women secretariat), agreed. Menon argued that in India minority rights were as problematic because they assumed the introduction of new communi- ties, rather than historically constituted communities where difference was the norm. In her home region of Lucknow, she explained, school exams were held in four languages. What changed after 1948 was Cassin’s reasoning. He now argued that if France were required to implement across its empire the intended equality of sexes provision, it would not be able to ratify the covenant at all because not all the constituencies within its political administration would be either will- ing to accept such a provision owing to their cultural difference or able by virtue of their ‘backwardness’. ‘Thus, the result obtained would be the oppo- site of that which was sought’. 42 Hélène Lefaucheux, the former resistance fi ghter and longstanding French delegate to the Commission on the Status 39 For more on the history of the fate of a minority rights clause in the 1948 Declaration, see Morsink, The Universal Declaration of Human Rights , 274. 40 Commission on Human Rights, Lake Success, Meeting 292, October 25, 1950, Third Committee, Lake Success. 41 Morsink, The Universal Declaration of Human Rights , 272. 42 Commission on Human Rights, Lake Success, Meeting 129, June 15, 1949, Draft International Covenant on Human Rights (Articles 23, 24, 25). 0003 Glenda Sluga 120 of Women (its chair for six years) and a close contact of Cassin’s, was con- cerned that women’s rights would be taken up by anti-colonial forces in the Islamic territories of France’s outre-mer . 43 If that happened, she argued, it would put at threat the political relevance of the ‘French Union’ – the newly fashioned relationship between France and its colonies which both Cassin and Lefaucheux conceived as the manifestation of French respect for its colonials’ ‘own traditions’, and ‘the desires of her populations’. 44 It is important to note that both kept to this view even when confronted with allegations of human rights abuses by French forces in Algeria. 45 Inevitably, arguments that contrasted the ‘high degree of civilization’ of the contracting parties with the ‘ideas of peoples who had not yet reached a high degree of development’, 46 and singled out Islamic traditions as particularly backward, did not go unrepudiated by other members of a rapidly expanding U N. The delegates from Syria, Lebanon, Egypt and Iran were among those voicing their scepticism of the sudden colonial respect for cultural differ- ence in non-self-governing territories. They took turns contrasting human rights traditions – the greater rights of women – in Islamic countries that had political freedom (such as Syria, Iraq and Egypt), with human rights condi- tions in those Islamic territories still dependent on colonial masters ( Algeria, Morocco, Tunisia and Libya). Menon was as vocal in her scepticism of the human rights advances in these post-colonial states, but she also described human rights legislation as most required in the non-self-governing territo- ries and in the colonies ‘since it was there that violations of human rights were unfortunately most frequent’. 47 Menon, who otherwise shared Cassin’s p ersp e c t ive on t he t h re at pos ed by m i nor it y r ig ht s to c u lt u ra l ly d ivers e st ate s , charged that differences in the degree of development of various territories … was an outworn argument, and India, speaking for all those countries in Asia which had so often been told that they were not ripe for independence, that they would have to be patient and wait for the day when, after a gradual evolution, they would be able to achieve 43 Archives de la Ministère des Affaires Etrangères, N UOI: S -50, Organisation des Nations Unies, 6. Commission de la condition de la femme, 1946–59; Report on Commission de la cond