The United Nations was born with Original Virtue, and certainly with Original Legal Immunity, which is the nearest we come to innocence these days.
The universal human rights régime, under which we live, originated in response to the racial and other atrocities committed by Nazi Germany and its allies. The architects of the post-War system intended to institutionalize the liberal and egalitarian vision that had animated the Allied war effort. Drawing from the constitutional practices of liberal Western societies, they placed the rights-bearing individual at the center of the new global order. They thus refashioned the pre-War states system in four major ways.
First, the protection of the human rights of all individuals became a matter of general international concern, as state sovereignty was limited by and made subject to binding norms that each state accepted and that the community of states could enforce. Governments could shield themselves morally against outside intervention in their domestic affairs only if they demonstrated, or at least professed, a record of human rights observance. Second, a new basis for international legitimacy was found in a state’s treatment of its own people. A legitimate state was henceforward one that governed for the sake of promoting the welfare of its people; a state that did not have that aim was delegitimized. Third, international peace and security were thought to be promoted because states that were flagrant rights-violators domestically were also identified as likely sources of aggressive war. By bridling governments’ freedom to persecute their own populations, it was thought, they would be less likely to go to war in order to guard against domestic discontent and rebellion. Fourth, the human rights that were central to the system tended to break down the racial and civilizational hierarchies that had survived the War, including both those in the overseas European colonial empires and in the white settler nations of the United States, Australia and South Africa.
The post-War human rights system still seems to command near-universal acceptance and respect throughout much of the world. Many nations strive to conform to its requirements, and measure other nations by the extent of their compliance. Wars of humanitarian intervention have been fought in its name. National, regional, and international courts and prosecutors actively seek to enforce it. A host of non-governmental organizations, often assisted by the media, propagate it. Thoughtful Western critics, such as the French philosopher Chantal Delsol, are few. From the beginning of the post-Cold War period up to at least the financial crisis of 2008, the international human rights régime, despite its origins in liberal Western culture, seemed unassailable. If the system seems somewhat less impregnable than it once did, that is mainly because of the emergence of new power centers, such as China, Russia or Iran, that chafe at its restrictions, accuse it of civilizational bias, demand a more robust conception of state sovereignty, or seek to promote their population’s welfare by economic growth rather than by rights enforcement. And it must be said that, in its efforts to uphold human rights principles (in Kosovo, for example), the West has not always served them well.
As the primary victor in the Second World War and the dominant player in the liberal-democratic coalition of states after it, the United States played the leading role in fashioning the international human rights order. Rowland Brucken, a professor of history and political science at Norwich University, describes the unfolding of American human rights policy from the Atlantic Charter of 1941 to the beginning of the Eisenhower Administration in 1953. Brucken’s book supplements other studies of the founding of the post-war international legal order, such as Samuel Moyn’s Last Utopia (2012), Mark Mazower’s No Enchanted Palace (2009), Paul Kennedy’s The Parliament of Man (2007), and Mary Ann Glendon’s A World Made New (2002).
The chief virtue of Brucken’s book is its thoroughness. He examines, in exhaustive (and sometimes exhausting) detail the creation of such instruments as the Atlantic Charter, the United Nations Charter, the Universal Declaration of Human Rights, and the Genocide Convention. It seems that hardly a drafting committee report, an alternative sub-committee draft, a minority dissent, a legal adviser’s memo, a presidential statement, a congressional speech, a press release, a strong editorial, a radio broadcast, a public policy proposal, or a prominent intellectual’s letter escapes his attention. This profusion can be welcome, though it can also be relentless.
What unifies the narrative is a theoretical framework that is analytically and morally simplistic. Brucken repeatedly arrays “good,” “progressive” or “internationalist” groups of NGOs, religious organizations, labor unions, civil rights activists, public intellectuals and the like against “bad,” “reactionary,” “segregationist” and “isolationist” politicians, diplomats, lawyers and their camp followers. Unfortunately, the “bad” actors are often powerful enough to win. Thus the story of post-war American human rights policy is, for Brucken, basically a disappointment. Even “good” figures like Eleanor Roosevelt seem to change sides, following the government’s line even if that means diluting human rights ideals. Other once-“good” figures like John Foster Dulles inexplicably change course upon achieving office (see p. 211). It seems that the siren song of power is simply too alluring, even for the brightest and the best.
To illustrate the point: Brucken discusses a press conference in 1941 in which President Franklin Roosevelt seemed to back away from the ideals he had announced not long before in the Atlantic Charter. Roosevelt’s off-the-cuff remark triggered an outcry, which Brucken describes as follows (69-70):
[T]he damage was done. In a time of growing public backlash, his slip-up illuminated an emerging political reality: The most influential objections to joining the United Nations no longer came from those who felt the Dumbarton Oaks Proposals committed the nation to doing too much abroad; rather they came from those who believed they allowed the United States to not do enough. The former represented the dusty past; the latter those who thought the fiery cast of war must ignite a new order based on justice, true democracy, and economic co-operation facilitated by a powerful United Nations.
Which side, would you guess, is Brucken on?
Or again, in discussing public reactions to the promulgation of the United Nations Charter, Brucken aligns, on one side the “sovereignty-conscious senators” that included “a prewar isolationist bloc,” who joined with Western allies such as “Great Britain, as a colonial power” and with the Soviet Union, still gripped by “traditional xenophobia,” against, on the other side, “united groups of lawyers, religious leaders, civil rights activists, and internationalist-oriented academics” who “advocated for a reduction in armaments, a global parliament that would have to approve of the use of force, progressive economic development programs to eradicate poverty, and protection of individual rights” (87-8). It seems obvious and unarguable to Brucken that the post-War world would have been better off with “a global parliament” instead of NATO, or “progressive economic development programs” instead of the GATT. Others might well disagree.
My point is not that the history of human rights should not be written from a strongly held viewpoint. Of course it can be and should be. What I am saying is that Brucken’s stance is lacking in subtlety, depth and consideration. It makes no concessions to nuance. And because it is both moralizing and simplistic, it precludes historical understanding.
One example must suffice. Brucken repeatedly – and rightly — condemns pro-segregationists in the U.S. Congress and Executive branch for their unremitting, and often successful, opposition to the emerging international human rights system. But because of this monocular fascination with racially motivated opposition, Brucken creates some explanatory predicaments for himself. Why, e.g., did both the Truman and Eisenhower Administrations oppose segregation, often effectively, if their willingness to dilute international human rights guarantees stemmed from fear of the segregationists’ political power? Brucken minimizes the fact that while the Truman Administration objected to judicial reliance on international human rights treaties as a basis for overturning segregationist practices, that Administration did litigate against segregation before the Supreme Court on constitutional grounds. (See p. 120, on Shelley v. Kramer.) Why should it have been better, as a matter of litigation strategy or otherwise, to have argued the anti-segregationist case on international legal grounds rather than on domestic, constitutional ones? And how can the Administration be accused of wavering in its support of international human rights because of segregation, when it was attacking the legality of segregation in the courts?
In general, Brucken discounts the idea that human rights can sometimes be best promoted by methods other than ratifying treaties and issuing legal opinions. International norms can be created by custom, state practice, and court-made common law as effectively as by treaties, while offering more flexibility and adaptability. Indeed, human rights treaties can even stand in the way of achieving human rights objectives. Consider the Genocide Convention’s requirement that a specific intent to destroy a protected group “as such” in whole or in part before a “genocide” can be found to be occurring. This finding has proven extremely hard to make, particularly while a genocide is actually taking place. (Brucken notes that the Convention’s definition has “marred” later enforcement.) Because of the difficulty of making the requisite finding, however, international reaction to a genocide like that in Rwanda can be inhibited until the killing is over and done. And international responses to mass killing like that in Darfur can be stymied because international lawyers opine (correctly, as it seems) that not all of the legal tests for “genocide” have been met. Human rights treaties can be useful in promulgating and stabilizing international normative standards; but that is no reason to make a fetish of adopting them.
There is no good history writing without factual evidence. But good history also requires theory and analysis, as well as fact, with an awareness of the subtlety and complexity that are inherently part of valuable historical work. This would have been a better book if there had been more thought in it, and less sheer information.