Columbia University historian Samuel Moyn has a new book out, The Last Utopia: Human Rights in History (Harvard/Belknap). I haven’t read it – but I have ordered it from Amazon! – and I’m sure I’ll have more to say about it once I’ve read it. However, it received a positive (and quite interesting in its own right) review from Brendan Simms, a well-known Cambridge international relations professor, in the Wall Street Journal. And Professor Moyn has written a summary of the book’s argument that appears as an article in this week’s Nation. The Nation piece is good reading on its own, and this part drew my attention:
Beginning in the 1990s, when human rights acquired a literally millennial appeal in the public discourse of the West during outbreaks of ethnic cleansing in Southeastern Europe and beyond, it became tempting to treat 1948 as a moment of annunciation, with large political consequences. Carter, and the 1970s, were rarely mentioned. It became common to assume that, ever since their birth in a moment of postgenocidal revulsion and wisdom, human rights had become embedded slowly but steadily in humane consciousness in what amounted to a revolution of moral life. In a euphoric mood, high-profile observers like Michael Ignatieff believed that secure moral guidance, born of incontestable shock about the Holocaust, was on the verge of displacing self-interest and power as the foundation of international relations. In Samantha Power’s “A Problem From Hell”: America and the Age of Genocide (2002), Raphael Lemkin, who crafted the draft resolution of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, was dusted off as a human rights sage and hero, with Carter earning attention only for failing to intervene against Pol Pot’s atrocities.
In fact, when “human rights” entered the English language in the 1940s, it happened unceremoniously, even accidentally. Human rights began as a very minor part of a hopeful alternative vision to set against Adolf Hitler’s vicious and tyrannical new order. In the heat of battle and shortly thereafter, a vision of postwar collective life in which personal freedoms would coalesce with more widely circulating promises of some sort of social democracy provided the main reason to fight the war.
It’s important to enumerate what human rights, in the 1940s, were not. Ignatieff was wrong. They were not a response to the Holocaust, and not focused on the prevention of catastrophic slaughter. Though closely associated with the better life of social democracy, only rarely did they imply a departure from the persistent framework of nation-states that would have to provide it.
Above all, human rights were not even an especially prominent idea. Unlike later, they were restricted to international organization, in the form of the new United Nations. They didn’t take hold in popular language and they inspired no popular movement. Whether as one way to express the principles of Western postwar societies or even as an aspiration to transcend the nation-state, the concept of human rights never percolated publicly or globally during the 1940s with the fervor it would have in the ’70s and the ’90s, including during negotiations over the Universal Declaration.
What if the 1940s were cut loose from the widespread myth that they were a dry run for the post–cold war world, in which human rights began to afford a glimpse of the rule of law above the nation-state? What if the history of human rights in the 1940s were written with later events given proper credit and a radically different set of causes for the current meaning and centrality of human rights recaptured? The central conclusion could only be that, however tempting, it is misleading to describe World War II and its aftermath as the essential source of human rights as they are now understood.
From a global perspective, the brief career of human rights in the 1940s is the story of how the Allied nations elevated language about human rights as they reneged on the earlier wartime promise—made in the 1941 Atlantic Charter—of the self-determination of peoples. Global self-determination would have spelled the end of empire, but by war’s end the Allies had come around to Winston Churchill’s clarification that this promise applied only to Hitler’s empire, not empire in general (and certainly not Churchill’s). The Atlantic Charter set the world on fire, but because similar language was dropped from the Universal Declaration, human rights fell on deaf ears. It is not hard to understand why. Human rights turned out to be a substitute for what many around the world wanted: a collective entitlement to self-determination. To the extent they noticed the rhetoric of human rights at all, the subjects of empire were not wrong to view it as a consolation prize.
Without, as I say, yet having read the book, I find this intriguing. No, more than that – it accurately captures in my own experience as an NGO person who first volunteered to do work for Human Rights Watch in 1983 when it was still two somewhat separate organizations, Helsinki Watch and Americas Watch. This was a time when Aryeh Neier was operating out of a tiny dark office in the New York City Bar building, and the organization was not in its current position of glorious NGO hegemony and a $44 million annual budget – meaning, an offer from a Harvard Law student bringing his own funding was not an occasion to giggle at the presumption. Ken Roth was still working as a Federal prosecutor.
The beginning as Moyn describes it dates back to just ahead of that time, to the mid-1970s and post-Vietnam moment of the Helsinki agreement. Not 1948, but instead the Helsinki Final Act, and the coalition of American strange bedfellows, “strategic idealists” across the political spectrum. They ranged from Kirkpatrick and Moynihan to the founders of Human Rights Watch, particularly those who invoked the HFA in Eastern Europe – Jeri Laber and Robert Bernstein and, of course, the dissidents of Eastern Europe. These strategic idealists in the US were up against, well, Kissinger (who later got religion, to judge by a couple of lines in one of his memoir volumes, in which he acknowledged that he had underestimated the power of legitimacy in foreign relations, meaning that itsy-bitsy line in the Helsinki accord). I got involved directly in field missions for Americas Watch in 1983, but it was clear that the reason they had resonance was because of Jeri Laber’s pathbreaking work for Helsinki Watch in Europe. The world has shifted a lot since then, obviously, and HRW itself is a far different organization and, I would say, one with a far different sense of its own mission: less “human rights” and more “international,” in a phrase. One can certainly argue – HRW and Soros certainly do – that the latter creates the conditions for the former, but my own view is that this is to confuse the “universal” of human rights with a very special version of the parochial, “internationalism.”
Not 1948 – and less still “Nuremberg.” In my personal experience of the human rights movement, Nuremberg was regarded all through the 1980s, outside of a relatively limited subset of American academics and activists, as a sort of judicial oddity – an evolutionary detour and cul de sac that had attempted to criminalize and judicialize aggression, rather than the UN’s historic move of committing these matters to the new Security Council.
But it is not my perception of how Nuremberg was perceived or understood prior to the late 1980s and, really, the ideological re-formulation of human rights as the “apex values” of the international system, the UN and all the rest that took place with the fall of the Berlin Wall. I am thus curious as to whether Moyn treats the ICRC’s view, for example, on the question of Nuremberg because, again going to back to my long dealings with it during the 1980s, its legal staff were highly skeptical of any reference to it, preferring by far to locate their work in the 1949 Conventions – and they in no sense, in discussions I had with them in those years, regarded the Nuremberg judgments as in the same universe of legal authority as the Conventions or the UN Charter. Possibly it’s just me, but I was surprised when Nuremberg was successfully resurrected, and reconstructed, to put its focus on the war crimes, crimes against humanity, and genocide issues, rather than the crime of aggression.
Actually, I would say the view among European human rights advocates back then, particularly those who worked in the laws of war, was that Nuremberg was essentially an American production, and that its moral appeal was distinctly American, focused on the Holocaust and the concerns of American Jews – many, of course, refugees or children of refugees – and peculiarly American in its focus on moralizing rather than sources of law as such, meaning the Conventions and the Charter. They didn’t like it, weren’t comfortable with it, and didn’t fundamentally regard it as law in the sense that one could draw a clear set of rules from it. One lawyer put it to me, in El Salvador in the mid 1980s, that the American view that Nuremberg created law is consistent with the American view that international law is a sort of species of common law – and it can be re-written to suit. He much preferred the anchor of treaties. But that perception has changed by today. Think how many times on this Opinio Juris blog, someone cites to a Nuremberg precedent; speaking purely descriptively, however, I don’t believe I ever heard a non-American human rights or humanitarian law lawyer cite Nuremberg case law back in the 1980s, at least not before 1988 or so. And yet by and large, that lawyer and his successors all swung round to celebrate Nuremberg, and the approach it embodies – which is to say, an unblinking belief in the eventual success of international criminal law.
Moyn is not a centrist conservative, or any kind of conservative. He publishes in places like the Nation, and that article expresses certain sentiments that would be quite comfortable in a TWAIL-based discussion (update – for those not familiar with the term, “Third World Approaches to International Law”). So I find the convergences intriguing. I was startled – and yet not really startled, because it conforms to my personal experience of the early human rights movement years – to find how much of Moyn’s article fit with what I argue in my sometime-to-appear book on UN-US relations. My own speculative view is that the human rights movement is in decline as the “apex values” of the international system – at least insofar as it means core individual human rights in the sense that both I and Moyn, on the basis of the Nation article, would mean. For one thing, in my view those human rights, and the universal conception of them, shelters not in the UN system but under US hegemony. The Obama administration has both diagnosed and embraced decline of the form of loose American hegemony that permits those values to be treated as “universal” by organizations like HRW, or funders like George Soros; if and as American hegemony declines (or to put it in Moyn’s historical terms, as the Allies of WWII and their enabling rhetoric fades as a tool of legitimacy) then so too human rights in that substantive meaning.
That does not mean that the rhetoric of human rights fades; rather, its content is redefined to other ends, and as a tool, it is defanged so as to ensure that – contra the vision of Moynihan – it is no longer a tool to go after bad regimes, excepting, of course, the United States and Israel. The Obama administration largely embraces that – human rights as a way of confessing that we are all sinners, and so it is not necessary to single anyone out. Moyn expresses surprise that the Obama administration is apparently so little interested in human rights rhetoric, given the presence of so many luminaries of the movement in its ranks – Harold Koh, Michael Posner, Samantha Power, Diane Orentlicher, Anne-Marie Slaughter, Rosa Brooks, Sarah Cleveland, et al. But Moyn captures very shrewdly the view of the Obama administration and, it seems fair to say, the President himself – “inclined to treat human sin, not human rights, as the point of departure for thinking about America’s relation to the world’s many injustices and horrors.” (emph added) We are all sinners, and there is no need to single out North Korea or Iran, and indeed, the best thing one should do is confess one’s own sins.
In my take on the Obama administration and human rights, it has two wings, the liberal internationalist wing and the New Liberal Realist wing. The latter are those of Hillary Clinton’s general outlook – time to put aside childish things and get on with managing American decline, and with handing out the rhetoric necessary to fend off the problems of the world so that the intellectual firepower of the administration can focus on re-making the US domestically as a European social-democracy. Plus there’s that China-creditor problem.
The former wing, the liberal internationalists, however, who might otherwise have been thought to incline to more stern idealism, are comfortable with that for three reasons, I’d suggest. One is that they have a further belief that a weaker America – given its tendency to elect non-liberal-internationalist presidents and Congresses, and the general atavism of the American people – is better for liberal internationalism, and it is finally a less hegemonic America that leads to a stronger international and UN system, and which in turn leads to a strengthened commitment to human rights through nakedly international institutions and global “constitutionalism.” It is, in other words, precisely the rejection of my earlier proposition that the substance of the traditional form of core individual human rights sheltered under American hegemony, while allowing internationalists the luxury of regarding it as “international” and hence “universal.” My proposition might be correct or incorrect; in any case, the Obama administration’s internationalists, which encompasses those in charge of its human rights policy, do appear to proceed on the basis of rejecting that proposition.
The second reason why the liberal internationalist wing is comfortable with the much more realpolitik stance of the New Liberal Realists goes to something that Eric Posner pointed out back at the time of the Koh confirmation hearings. Viz., American liberal internationalist are interested in international law and human rights primarily as a way of engaging in US domestic political interventions. It’s (mostly) about us. International law is important, on this view, as a way of doing what John Bolton famously called the end-run around US democratic processes, and getting, as he said, two bites at the apple, to achieve through a US judge imposing international law to do what the democratic political process had rejected. This is visible today in how the US uses such mechanisms as its report to the UN Human Rights Council to confess the sins of the State of Arizona, among other examples. The Obama administration loves the HRC because it is a confessional forum for the US – and one that apparently is all symbolism with no actual costs, either for it or for others (save Israel). The view that it’s all just symbolic talk, a way for the liberal internationalists to influence US domestic policy and a way for the New Liberal Internationalists to jaw-jaw with no actual realpolitik consequences – well, pure talk about legitimacy and symbols of legitimacy have a way of finally influencing realpolitik, though the power of legitimacy – so hard for realists to understand – and through the “signaling” behavior to friends and enemies and in-between. But in any case, if international human rights is actually merely a way of ‘doing domestic politics by other means’; and if, as Eric Posner argues, that is one’s deep and abiding interest in international law, then one is much less worried about whether or not this stuff plays out in the rest of the world.
The third reason, however, is also important and not so cynical. It is simply that, as Harold Koh and others have taken pains to say, being an academic or activist outside of government is not the same thing as being an official within it. There is a long jurisprudence within the State Department, for example, and any official who takes up the office of legal advisor or many other positions has to understand that, while one shapes policy and law, one does so as part of a chain stretching back generations, within a tradition that is not necessarily the views one would espouse as a free agent academic. That has independent weight all its own.
So one speculative future for human rights is that they get re-defined in ways that take the pressure off of states individually (other than the US and Israel). After all, could anyone imagine a different outcome once human rights was taken off the table as a mechanism for democratic sovereigns to pressure other states, and instead it was made a matter of discussion among the “sovereign equals” of the United Nations? What would have to be true for the UN, home of the lowest common denominator, to hold any state to any standard in a serious way? I think one would have to be seized with a deep commitment to “international institutions” as the basis for enforcing human rights. Seized so deeply, however, that it makes me doubt that one’s true commitment is to the substance of human rights, but is instead a commitment to internationalism for its own sake. Which is roughly what I believe of Human Rights Watch today; it is committed (as it showed in plumping for what was obviously and plainly a no-better and likely much-worse HRC in 2005 UN reform) to internationalism as its true belief. It believes that human rights will be the consequence as a matter of substance – and it might, I suppose, turn out to be right about that as history unfolds – but there is a priority here that is not about human rights as substance. I myself regard this as the non-falsifiable view, not of human rights, but of international organizations and law. Since there appear to be no conditions under which one could describe it as a factually failed experiment in history, whether for the substance of human rights, or international law, and so on, I simply don’t know what to do with it as an intellectual matter. It’s religion and faith at that point.
It is also quite possible that even a re-defined, watered-down language of human rights loses its supremacy within international values discourse. Before human rights, the watchwords were mostly world peace and self-determination. Other things might arise. Ban Ki Moon appears to want to make climate change the transcendental value, although that star is apparently waning at the UN, and I would imagine his image advisors would advise him to downplay it. But climate change – as far as the member-states of the UN are concerned – is mostly about income transfer, and, in my own view, Copenhagen was less about climate and more about finding a new rationale for global income transfer, given the general collapse of the Millennium Development Goals as a funding mechanism.
(And the increasing sense that the MDGs, dating back to now antediluvian 2000, they are an anachronism to which one must make some level of rhetorical obeisance, but over time less so. Their ability to bring in the cash has waned, straitened wealthy economies and their governments are much less inclined even to the usual veneer of compliance, and the UN system is on the march for a new combination of ideology and interest by which to generate a plausible scenario for transferring funds from wealthy to poor. I think that climate change has already been tried and found wanting within that particular way of looking at the interests involved – which, of course, has little to do with climate change as an issue. But I am not clear what the next big issue seeking to do this at the UN will be; perhaps something related to global finance.)
My guess is that the future transcendental value, the apex values language of the UN system particularly, will morph very gradually from human rights to some version of global welfare, development, human security, income transfer, and all sorts of terms that do not carry baggage for the developing world, or the rising new great powers, in terms of obligations. The internal terms of legitimacy of the rising superpower, China, are conspicuously about rates of growth, with not just no-explicit link to democracy or human rights – but a clear disavowal. Realist IR scholars, I believe, tend to downplay incorrectly the link between sources of internal legitimacy by a hegemon, or possibly rising hegemon, and its legitimacy to act with authority in the world of states. Thus, I think that China’s internal legitimacy of economic growth will tend to re-define what is seen as the apex value in the international system, re-ordering both the substance and the language.
Is there any reason to think that a substantive shift in the values at issue under the banner of human rights would require a shift in the labels – human rights has shown itself to be an adaptable language for just about any purpose or thing one wants to define as a right, so an important question is to ask whether there is a reason why the labels should change, if one can change the clothes, so to speak, to which they are sewed? For a long time, I thought not. But more recently, I have changed my mind. I think that the language of human rights itself might wind of waning slowly, in favor of other terms that are more explicitly about economic growth and welfare. The reason is related to the point above about internal legitimacy of a hegemon conditioning its external legitimacy – what turns power into hegemonic authority. With the United States, that is always bound up with democratic constitutionalism. With China, it is about internal economic growth, and some inchoate sense of the spreading of the benefits of that over time.
Watching Copenhagen unfold, I was struck by the fact that it would have been so easy – and I believe was so expected – that China would take the money, so to speak, and then follow through or not, defect or not, according to its interests down the road. But it was offered material value in return for a merely symbolic and unenforceable commitment – which it did not take. My view today is that China’s leaders made a calculation that although communist, authoritarian, anti-democratic state without any juridical or constitutional need to pay attention to its people, it would still be a mistake to take the deal offered at Copenhagen, if it entailed any real risk of sending an internal signal to its own population that anything other than the commitment to growth mattered. That is the kind of action I would count as consistent with a rising hegemon – viz., an actor not merely about narrow self-interest in realist IR terms, but a state that sees a relationship between even its illiberal and anti-democratic and anti-human rights internal sources of legitimacy and the ability to project legitimate authority externally, appealing to the many other regimes happy to dispense with democracy, human rights, and liberalism as necessary elements of legitimacy. It is a dangerous phenomenon.
In such a world, were any of this to happen as I speculate here, what of human rights? The academy, in large part, seems likely to continue in its increasingly fragmented cultural production of international law. The global constitutionalists of Europe, funded by the EU, will continue faithfully to produce rafts of stuff talking about Our Global Constitutional System, increasingly counterfactual as that might be in a world of rising competitive great powers whose jostling makes the Westphalian system more, not less, salient.. The Americans will continue to sue lots of people and entertain lots of lawsuits via the Alien Tort Statute – but it will continue to evolve in its peculiarly American ways to look less and less like what others in the world see as international law – and what this will mean when Chinese parties are the subjects of suit is anyone’s guess. The State Department will continue in its traditional pragmatism, law infused with and informed by political realities, meaning that targeted killing will be okay by it, particularly if the US military evolves toward greater reliance on the drone in many new varieties as the new version of strategic air power.
But “human rights,” in the hands of the NGOs like HRW and at the UN, seems to me likely to gradually convert over to a version of global religious communalism claims; a language of individual human rights gradually shifted over into a language for the protection of religious communalism, and Muslim global sensibilities in particular. The leading human rights organizations, Amnesty and HRW, already seem to see themselves in something like that role (global New Class managers of group identity relations, to put it in Telos-ian shorthand), positioning themselves as guardians of communalist sensibility as against Western publics.
That is all a long way from Samuel Moyn’s article in the Nation and, I presume, his book. Which I look forward to reading, and it is quite possible that in the time it has taken me to write this long post, Amazon might already have delivered it. My book on UN-US relations should come out from Hoover Press in a few months, perhaps by year end or not, and the tentative title is ... Returning to Earth.
(I will go back and add some more links later, and correct some bits. Cross posted to Opinio Juris.)