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Contents Contents v Acknowledgements vii INTRODUCTION 1 CHAPTER 1 Universal Human Rights: From the Earliest Days to 1939 7 CHAPTER 2 World War II and its Aftermath 67 CHAPTER 3 The U.N. Charter and the Universal Declaration of Human Rights 117 CHAPTER 4 The 1966 Covenants 175 CONCLUSION 251 Select Bibliography 261 Index 285 Acknowledgements At the outset, I must acknowledge my debt to some of the leading human rights scholars whose work has influenced this book. I found the pioneering work of Paul Gordon Lauren and Johannes Morsink particularly valuable. I thank librarians at Princeton University (especially the Inter- Library Loan Service at the Firestone Library) in the U.S.A., and at the University of Melbourne, La Trobe University, Monash University, Victoria University (Melbourne) and Griffith University (Brisbane) in Australia. I am grateful to those who taught me at the University of Melbourne, including David Tucker, David Wood, Stuart Macintyre and the late Lloyd Robson. I also acknowledge with appreciation those professors who taught me at Princeton University, including George Kateb, Alan Ryan, Walter Murphy, Alan Gilbert, Jennifer Hochschild and Gilbert Harman. Also at Princeton, Maurizio Viroli, Robert George and Charles Beitz provided insightful comments on my earlier research into human rights, jurisprudence and political philosophy. I give great thanks to Richard Falk for his inspirational teaching and research, friendly mentoring and helpful responses to my work over a number of years. I thank the School of Law, Victoria University, for granting me supported leave under its Outside Studies Program (OSP). The OSP leave enabled me to take up appointments as a Visiting Fellow in the Key Centre for Ethics, Law, Justice and Governance at Griffith University, and as a Visiting Scholar in the Institute of International Law and the Humanities at the University of Melbourne during 2006_2007. Much of the additional research and writing of the book took place in the peaceful environment of the Key Centre. I thank its director, Ross Homel, as well as Charles Sampford, Howard Adelman and other Key Centre members. I benefited from insightful responses to the paper I presented in the Key Centre_s seminar program in Semester 2, 2006. I also thank Rob McQueen of the Griffith University Law School for his friendly support (at Griffith University and as a colleague in the Law School at Victoria University). I am also grateful for the support given by administrative staff in Brisbane and Melbourne during my period of leave. I thank Ian Britain for technical advice. Special thanks must be given to Richard McGregor for his meticulous copy-editing of the manuscript. I also thank Tania Sisinni for technical assistance in the preparation of the manuscript. And I thank Sasha James for securing books for me from near and far, and for other assistance. Finally, I thank Leo Balk from LFB Scholarly Publishing for his support and advice, and Melvin Urofsky for detailed comments on the manuscript. Responsibility for this work naturally remains with the author. Introduction Thomas Buergenthal is Professor of Law at the George Washington University National Law Center in the U.S.A., where he is an international human rights scholar. As a young boy he lived through the Auschwitz Death March. He recounts how in January 1945, as a boy who had already survived the Polish Ghetto of Kielce and the Auschwitz concentration camp, he was marched in frigid weather to a train bound for another concentration camp in Sachsenhausen, Germany. The march left him with frostbite. He witnessed beatings and shootings, ate snow and grasped for scraps of bread to survive. His toes were later amputated. Having suffered through these experiences, and then having gone on to become one of the world_s leading international law scholars, Buergenthal is able to provide us with an invaluable perspective on the meaning and significance of human rights and the consequences of their violation. On the occasion of a U.S. Holocaust Museum commemoration in 1995, he reflected that while some small relief had come to him over the years through the fading of his childhood memories, they were regularly restored by television images of various atrocities toward the end of the last century: the hollow faces of children starving in Africa, the tormented ones of Bosnian children. He implores us to embrace a universalistic and empathetic commitment to human rights: The suffering of those whose stories we read about today or whose corpses we see on television _ was our suffering not all that long ago. This is what we, the survivors, must feel in our bones, in our emotions, and in our hearts. Unless we can identify with today_s victims and find ways to express our solidarity with them, to help them, our survival will have been nothing more than an act of random good luck of no lasting significance. Only by universalizing its inhumanity does the suffering of our people acquire a meaning for the future. Like Buergenthal, this book understands human rights from a universalistic and "dignitarian" (to use legal scholar Mary Ann Glendon_s term) perspective. Given its already broad scope, this book does not propose either an exhaustive conceptualization of human rights, or a sustained philosophical defence of their universality. Nevertheless, it is possible to provide a synopsis of this work_s understanding of "human rights." The conception of human rights in this book is consistent with the U.N._s. That is, we are all entitled to human rights simply on the basis that we are human beings. As dignitarian instruments, the Universal Declaration of Human Rights (1948) (UDHR), International Covenant on Civil and Political Rights (1966) (ICCPR) and International Covenant on Economic, Social and Cultural Rights (1966) (ICESCR) (which together are colloquially termed the International Bill of Rights) are based on a conception of a shared human nature and inherent human dignity. As Glendon notes, for the drafters of the UDHR "what made universal human rights possible" _ was the similarity among all human beings. Their starting point was the simple fact of the common humanity shared by every man, woman and child on earth, a fact that, for them, put linguistic, racial, religious and other differences into their proper perspective. A strong emphasis on racial and cultural difference was, after all, one of the worst evils of colonialism and Nazism. University of London legal scholar Conor Gearty, while sceptical of some aspects of the global human rights regime, roots the universalism of human rights in "the simple insight that each of us counts, that we are equally worthy of esteem" as human beings. Universalist human rights theorists have produced various lists of objects of rights: what every human being is entitled to simply as a human being. For the philosophers Alan Gewirth and Robert Churchill, it is whatever is necessary for reasonable success as a moral agent. For Gewirth, this means that everyone is entitled to "basic goods" (for example, life, freedom, corporal integrity), "nonsubstantive goods" without which one_s capacity is reduced (such as clothing, food, healthcare, housing and other similar socio-economic goods) and "additive goods" that improve the quality of our lives (for example, education, involvement in the community). Another familiar classification involves a distinction between standard "liberal," negative rights (that bar the state, in particular, from interfering with the rights and liberties of individuals) and positive rights that require the state to allocate appropriate resources and take action to ensure that people enjoy goods such as an adequate standard of living, welfare, adequate food, clothing, healthcare and housing. Gearty_s categorization is distilled into two comparable human rights principles: what "should not be done" to us (prohibitions on killing, torture, racial discrimination and slavery, for example) and "what ought to be striven for" to facilitate human flourishing. Similarly, these classifications are embodied in the architecture of the UDHR, which aims to protect _ painting here with a broad brush _ human dignity (Articles 1_2); civil rights (Articles 3_19); political, economic and social rights (Articles 20_26); and, finally, more communal and solidarist rights (Articles 27_28). As dignitarian instruments, the UDHR and the 1966 Covenants characterize humans as individuals and as social beings who are members of families and communities, toward whom they bear responsibilities. The state also has responsibilities to guarantee the myriad economic and social rights of the International Bill of Rights. It must be emphasized that the universality of human rights does not entail their uniformity. For example, the structure of the UDHR is, thanks to its framers, "flexible enough to allow for differences in emphasis and means of implementation," so that "its fertile principles _ [can] be brought to life in a legitimate variety of ways" within the world_s different cultures. In this respect, the adaptation, further elaboration and specification of the International Bill of Human Rights is analogous to a living constitution : it can evolve through legitimate interpretation (that is, within certain bounds) and through its application over time. This book gives an interdisciplinary account of the origins and development of universal human rights, and their incorporation in international law, from the earliest days until 1966, when the International Bill of Rights was in place. It evaluates historical, legal, political, theoretical (and sometimes philosophical) developments and literature, using the idea of universality as a theme. International legal scholar Balakrishnan Rajagopal has recently criticized mainstream human rights histories (especially those written from an international law perspective) for neglecting the important role of the Third World (and particularly the role of social movements, domestic struggles and anticolonial mobilizations within it) in the emergence of international human rights law and the global human rights regime. His point is well made: there has been less attention in the literature to the Western resistance to, and Third World support of, international human rights. This study goes a significant way toward redressing this deficiency. It develops the argument that the International Bill of Rights had diverse origins, benefiting greatly from non-Western contributions. Contrary to the view of scholars such as British political scientist Tony Evans, the International Bill of Rights was not a Western hegemonic imposition, nor, in particular, an American imposition. Rather, it was concluded despite a long-standing pattern of Western _ including American _ resistance to universal human rights in international law. Note
Library of Congress Subject Headings for this publication:
Human rights.
United Nations. General Assembly. Universal Declaration of Human Rights.