The Past and Future of Human Rights

Barack Obama could become America’s first human rights president.

By Julie A. Mertus

When I was in law school, I was cynical about human rights. But that was before I spent time in places where people did not have rights guaranteed by the state, and needed international human rights for their survival. That was before I was diagnosed with Parkinson’s, and rights issues became a bit less abstract.

And that was before the Albanians in Kosovo taught me to see the glass as half-full, and never half-empty.

But even Kosovars are growing skeptical about human rights—they’ve heard a lot of rights talk without the right actions. In Pristina, Kosovo, which I visited early this year, things are a mess. The international efforts to promote reconciliation between Serbs and Albanians and to support a multicultural society have fallen flat. Sure, Serb-Albanian conflict is now rare, but that is because very few Serbs live in Kosovo and, with the two groups nearly completely segregated, there are fewer opportunities for communal conflict. So much for human rights…

So how can I be so steadfastly optimistic about human rights? Without human rights, I am convinced, things would have been much worse in Kosovo. In her splendid book Inventing Human Rights, Lynn Hunt writes of “the bulldozer force of the revolutionary logic of human rights.”

But how is the logic of human rights revolutionary? Why are states so afraid of its “bulldozer force”? And what would it take for the Obama administration to demonstrate that the United States no longer fears enforcement of human rights?

This essay attempts to answer those three questions. After explaining the revolutionary past of human rights, I turn to an illustration that has been hidden in history—the efforts of African-American leaders and Nigerian students immediately after World War II to draw attention to human rights issues pertaining to race and colonialism—to show that the United States has always been extremely afraid of implementing human rights. Finally, I make specific suggestions for the Obama administration with respect to the unmet potential of human rights.

The human rights revolution

The modern human rights movement stems from two revolutions—the French and the American. In both cases, individuals who had never fought back were called upon to rebel against authority.

The idea and practice of human rights proved to be both an instigator and sustainer of revolution, and a source for radicalization of social change campaigns. The development of human rights opened space for new actors, working across what had been boundaries with different needs, interests and demands. Revolutionaries seized upon human rights to craft their demands for structural change and new patterns of human/government interaction.

The logic of human rights is simple. Given that human rights are something people have because they are human, the state cannot act like they are privileges; it cannot grant human rights or take them away. And because human rights are something people have because they are human, they are universal. Believing in human rights means believing in the equal moral worth of all of mankind.

The successful development of human rights required a major shift in how individuals perceived themselves. As Lynn Hunt observed: “Thinking and deciding for oneself…requires psychological and political changes as much as philosophical ones.”

Many commentators have discussed the political changes required for human rights to become rooted in a society: States cannot do what they want to their own citizens. States act as duty bearers, and the people are rights holders.

The exact contour of their relationship, however, remains contested. States now have a negative responsibility to refrain from doing certain things—like interfering with one’s choice of religion, ability to speak, and privacy at home. They also have other, positive, responsibilities—but those responsibilities are still being debated, at least in the United States (for example, healthcare, housing and employment).

The psychological shifts required to accept human rights have received less attention. Prior to their acceptance, individuals were born into circumstances that determined their degree of freedom. Moving out of one class and into another was rare and difficult. People were owned by, or at least controlled by, lords and kings—their master.

This arrangement worked in favor of those seeking security. Very little was expected other than obedience from servants, who were identified not as individuals with dreams and desires of their own, but by their position within their society.

In sharp contrast, the logic of human rights blasts these notions apart by making individuals the subject of their own lives. Agency. Bodily inviolability. Empathy. Dignity. These concepts are encouraged by human rights.

Consider this: For a long time, people used to gather in town squares for exhibitions of pain and suffering. They cheered on the hangman as he prepared the noose for the poor fellow who was already almost dead, having been nailed to a cross and put on display.

Today, although torture certainly occurs, it is done clandestinely—and we publicly condemn it. Why? Because human rights presume an individual’s right to bodily integrity, and we want to see ourselves as being on the side of human rights.

The UN and a post-war compromise

Flash forward to the creation of the United Nations at the end of World War II, when the United States was called upon to show what kind of human rights advocate it would be. Would it accept all human rights for all people? Or just some rights for some people?

In his fascinating book, Radio Free Dixie: Robert F. Williams and the Roots of the Black Power Movement, Timothy Tyson observes how the debate in the mid-1940s over the UN Charter’s human rights provisions gave African Americans a powerful podium from which to address race issues.

Human rights held promise in the United States where civil rights had failed. As Professor Carol Anderson observed in her book Eyes off the Prize: “Human rights…had the language and the philosophical power to address not only the political and legal inequities that African Americans endured but also the education, health care, housing and employment needs that haunted the black community.”

U.S. anti-racism advocates at the UN Charter negotiations in San Francisco in 1945 knew that without economic rights, civil liberties rested, at best, on quicksand. But at that time, any group or individual fighting for economic rights risked being branded communist. Afraid of losing what little they had, African Americans muted their demands for economic rights.

Support for anti-colonialist efforts also proved untenable for the U.S. delegation and its consultants at the Charter talks. Highly organized Nigerian students met individually with delegates and pressed for the words “independence” and “freedom” to be added to the Charter, along with a specific provision on colonialism. But outsides the confines of the negotiations, tensions were heating up between Washington and Moscow. The United States did not want to lose the support of any of its allies—or change the positioning of military aircraft that rested on colonized islands within striking distance to the Soviet sphere.

Thus a deal was struck between the United States and colonial nations. The names of the individual colony-ruling states would not be mentioned by name in the Charter, and the United States would support adding a slick little provision that for decades would prove to be an effective roadblock to human rights enforcement: Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state….

A dream deferred (by Eleanor Roosevelt)

This anti-intervention provision also kept racists in the United States happy. They read the provision as complementary to their “states rights” movement, which argued that in a federal system, issues like racism were matters to be decided on a state-by-state basis. Wearing American federalism as a shield against human rights demands, the U.S. delegation at the UN Charter negotiations rejected the NAACP’s demand that it acknowledge and address the ill-effects of American racism.

Ignored, the NAACP filed its own petition with the UN two years later, in 1947. That petition squarely linked racism to U.S. foreign policy, declaring: “It is not Russia that threatens the United States as much as Mississippi, not Stalin or Molotov, but Bilbo and Rankin.” (Senator Theodore Bilbo and Congressman John E. Rankin, both of Mississippi, were two outspoken racists on Capitol Hill at the time.) The petition went on to condemn the denial of human rights to minorities of African descent in the United States.

It was Eleanor Roosevelt, of all people, who led the drive against the NAACP petition, despite being on the organization’s board of directors. At the same time, Roosevelt worked to block a complaint to the UN concerning race discrimination and related human rights abuses in South Africa. Her reasoning? The old slippery slope argument: If the South Africa complaint won, it would set a dangerous precedent that could ultimately lead to the UN investigating the condition of African Americans in Alabama.

Not surprisingly, the NAACP petition went nowhere. Frustrated from its experience and fearful of being red-baited, the NAACP almost completely withdrew from the global campaign for international human rights, situating itself as an American organization concerned with American civil rights.

The U.S. delegation’s actions (or inactions) in San Francisco set the stage for America’s fear of engagement with human rights during the next 61 years. In its dealings with the UN, Washington has kept international human rights laws at bay by excluding the issue of race as much as possible and creating weak enforcement structures whenever possible—unless the U.S. was in control of that structure, or exempted from its ambit. In other words, human rights have not been immune to “American exceptionalism.”

And yet, also from the very beginning, human rights abuses committed by Americans on U.S. soil—in particular, race discrimination and abuse—have inevitably bled into foreign policy.

While serving as vice president in 1954, Richard Nixon—not exactly well-known for his liberal beliefs—adamantly scolded racists: “Every act of discrimination or prejudice in the U.S. hurts America as much as an espionage agent who turns over weapons to a foreign country.”

Still, there is remarkable continuity from president to president on human rights issues. From Harry Truman to George W. Bush, all have embraced American exceptionalism and selectively made good and bad moves on human rights diplomacy, treaty-signing and human rights assistance. While some presidents stand out as exceptionally bad—for example, George W. Bush, who actually “unsigned” the treaty establishing an International Criminal Court—and some exceptionally good—perhaps Bill Clinton, minus all activities in Africa—the trend is consistent. None can really be considered a human rights president.

End of ‘American exceptionalism’?

Flash forward to today, when America’s human rights reputation is in urgent need of repair. Might America finally have a human rights president who doesn’t embrace American exceptionalism?

Almost immediately upon taking office, President Obama did announce that the United States would abide by international law on torture, and that the detention facility at Guantanamo Bay, Cuba would be closed by the end of the year.

Three months into his administration, Obama announced that Washington would try to restore its relationship with international institutions, and would run for a seat on the UN Human Rights Council, the top UN human rights monitoring body. Obama has also exercised a strong commitment to human rights in his choice of key staff—for example, Harold Koh, the Yale Law School dean who was nominated to become State Department Legal Advisor. There is no question that the White House is moving in the right direction.

For a clear break with the Bush era, however, Obama needs to demonstrate leadership and redefine human rights as nonpartisan and in the U.S. national interest. To do so, his administration must follow through with signing and submitting for ratification all core international human rights conventions. It might begin by re-signing the International Criminal Court treaty and adding the America’s name to the Convention on the Rights of the Child—signed by every country in the world except for the United States and Somalia—and the Convention on the Rights of People with Disabilities, which is largely modeled on American disability law.

These are no-brainers. As for other human rights treaties that are not signed and/or ratified, Obama should appoint an independent board of experts to study and report on the likely outcome of greater American engagement in the treaty processes. The U.S. Senate, which has traditionally blocked these treaties through filibusters, is much more likely to approve human rights treaties now that Arlen Specter is a Democrat, and his new party holds a nominal 60-member majority.

Barack Obama could be our first human rights president by showing the world that America is no longer afraid of human rights and the international institutions that enforce them. He could prove that America is willing to apply human rights to itself, not just to other nations.

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