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