(27) Human Rights: Past and Present

Human Rights


Laun after 1945: The Individual as a Subject of International Law and the Right to the Homeland

As an active Social Democrat, Laun faced dismissal under the Law for the Restoration of the Professional Civil Service in 1933. However, he managed to keep his professorial post, at a reduced salary, probably due to his activism on behalf of German minorities in interwar East-Central Europe. In 1935 Laun published a new, expanded edition of his main work on the relationship between morality and law. In 1942 he published Der Satzvom Grunde . Ein System der Erkenntnistheorie (1942), his most complete account of the autonomy of law. It implicitly criticized Nazi concepts such as the Führerprinzip and racial hierarchy, stating, for example, that “there are many religions, many peoples, many states, many languages, but only one science .” In 1945, that anti-Nazi reputation propelled Laun into leading positions at the university: He became dean in May 1945 and once again rector in 1947. Laun was also pivotal in his fi eld’s professional society, as the re-founder and fi rst postwar Chairman of the German Society for International Law (Deutsche Gesellschaft für Völkerrecht , DGVR). Before 1933, this group had been the forum of German progressive international lawyers such as Walther Schücking and Hans Wehberg.

The Allied occupation of Germany shocked and infuriated Laun . He continued to write about nationality rights and democracy after 1945, just as he had before and during Nazism. Laun pointed out his consistency to his students with sarcastic pride, telling them that his lectures, “which had their roots in Imperial Austria , could be given again, essentially unchanged, in the Austrian Republic, the Weimar Republic, National Socialist Germany and most recently in the British Military Government’s regime of the military leadership principle ( soldatischen Führerprinzips ).” Two aspects of his thinking emerge here. First, he clearly considered the cause of German nationality politics in East-Central Europe to be unscathed by its horrific mobilization in dictatorship, world war, and genocide. Second, he perceived a continuum of German victimhood across 1945: Germans had been victimized by the Paris peace settlement, Nazi rule, Allied occupation, and as expellees.

Immediately after 1945, Laun applied his basic concepts to Germans qua victims. Referring to the autonomy of law, he argued that Germans’ compliance with the Nazi regime was overwhelmingly due to coercion. What the Nazis imposed was not genuine law, because it had been imposed on the Germans; they had not embraced it. Using the conscience publique , he made a similar point, arguing that just because many Germans obeyed Nazi precepts did not mean that they accepted them. On the contrary, he insisted, most Germans had favored democracy and human rights all along. Laun seemed to reason that if coercion were present at all, then any inquiry into political will or opinion was moot. His idea of a conscience publique allowed him to avoid considering the possibility that dictatorship could be genuinely popular (or that that popularitycould be complexly layered). Laun insisted that coercion - now Allied coercion – could not create genuine law. He argued that Germans were victims of numerous human rights violations under Allied occupation, and cited the right of national self-determination to condemn the expulsions of ethnic Germans from Poland , Czechoslovakia, and elsewhere in Eastern Europe.

Indeed, Germans were the unrecognized pioneers in the history of human rights thought for Laun. Religious freedom was the fi rst human right to gain recognition, and “thus human rights first emerged in the fi rst half of the sixteenth century in Germany,” demanded by the Anabaptists and Luther .

Germans - including a delegate from Austria-had also produced the Weimar Constitution, the “freest constitution in the world.” No wonder Laun was popular in those years immediately after the war: He had a clean political past, he imparted clear lessons in law that were explicitly informed by morality, and he reassured Germans that they were valuable people with a distinguished past who were being maltreated. Laun repeatedly likened the Allies to Hitler and the Nazi regime. Both were, for Laun, the pure expression of amoral coercion legimitized by legal positivism, under which Germans had to suffer: “We yield to the new positive law … as we had to yield to the positive law of the Hitler regime.” Everyone ought to be concerned about the treatment of defeated Germany after 1945, Laun insisted, because it was a warning to all who may one day experience defeat them. His was not a discussion of human rights that was intended to provoke Germans’ critical introspection. For that reason, some in Germany as well as abroad responded angrily to his writings, seeing him as nationalist and – unfairly – as an apologist for Nazism. It is indeed frustrating to read arguments as narrowly cast and self-pitying as Laun’s, but Laun was no apologist for Nazism. For that reason, some in Germany as well as abroad responded angrily to his writings, seeing him as nationalist and – unfairly – as an apologist for Nazism. Laun formulated two new concepts in the post-1945 era: the individual and non-state group as full (or fuller) subjects of international law, and the right to the homeland. They were outgrowths of his work before 1933: The autonomy of law and conscience publique had already broached the issue of the individual’s voice in international law, and the right to the homeland was a reformulation of the right to national self-determination. As was true of his interwar concepts, these new concepts in his late work were not unique to Laun. Along with many others in the post-1945 era, Laun claimed that an“international law of human rights” was gradually displacing an older “international law of the sovereignty of state power.” His postwar concepts fit with that development, by limiting state power and augmenting the voice of non-state actors (individual persons, nationalities) in international law. In his international professional context, Laun’s distinctiveness lay in applying these concepts to Germans.

According to traditional international law, only states were recognized actors in international law. If an individual were to be recognized as a subject of international law, the international legal order would place states in a very different position. A plaintiff could advance directly to an international forum to have a complaint heard or a case tried, without having fi rst to find a state to represent him or her. The states’ monopoly on international law would be broken. The standing of individuals was important not just as an abstract ideal, but as a practical reality for Germans under occupation between 1945 and 1949. The German state had ceased to be effective; in the view of some, it had ceased to exist entirely. The Allies stepped into its place: Neither annexing nor occupying Germany in the traditional sense, had they replaced the state. In such a case, traditional international law seemed to afford individual Germans no standing to raise complaints. They seemed to be outside the realm of international law.

Laun’s own position was that Germans did have standing under international law to protest violations of human rights by the Allies. First, he argued that international law had recognized individuals as a kind of subject in the Hague Convention of 1907, which outlined the laws of war. The Hague Convention defined a military occupier’s obligations to protect individual civilians, thereby protecting the rights of individuals, not governments. For example, it set limits on requisition in order to protect individuals’ private property, it banned collective punishment to protect individuals, and civilians were not to be relocated unless it was militarily necessary. It also protected soldiers as individuals, by requiring adequate care for prisoners of war, freedom from forced labor, and their earliest possible release. Second, Laun argued that Germans were not in fact without a state after 1945: If the Allies had eliminated the state, then they must have annexed the territory, giving the population the rights of their own citizens. If the Allies were occupying thestate, then The Hague Convention covered Allied actions. Either way, issues such as forced deportation, forced labor, and requisitioning were subject to review. And, importantly for Laun, the Hague Convention mentioned – and thereby positivized – the conscience publique as a source of law.

One of the most important tools for enacting individuals’ status as subjects of international law was the right of individual petition. Like numerous other human rights advocates in the wake of the Second World War , Laun insisted that the right of individual petition was the only effective way to protect human rights. Yet, as Laun complained, it was already falling victim to the opposition of the great powers by 1950, when the UN’s Commission on Human Rights decided that its human rights convention would permit petitions from individuals and NGOs, but that these petitions would not entail a binding hearing before the Commission. This amounted to an empty right of individual petition, as Laun pointed out, and indeed petitions were fi led away, unheard, for years. The right of individual petition was also discussed, though initially rejected, during the drafting of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950). After a few years, the right of petition became part of an optional protocol, so that signatory countries were not obliged to accept it. Here again, we see that Laun’s concepts were part and parcel of current thinking in progressive international law. What was unusual, at least outside of Germany, was Laun’s expectation that Germans might use them effectively on their own behalf.

Laun’s arguments concerning the Hague Convention and occupied Germany appeared mostly in law journals. In more popular versions of his arguments, Laun summarized the issue as a matter of “human rights.” Human Rights ( Die Menschenrechte ) was the title of a 1948 public lecture for a lay audience, given on the fifteenth anniversary of Hitler’s appointment as chancellor. 43 That date, together with his lecture’s content, were intended to indicate that Germans were now subject to dictatorship for a second time. Laun explained that human rights were, by their very nature, rights held by individuals against states – their own as well as foreign. 44 As such holders of human rights, Germans could not be legitimately subjected to the “total authority” (totale ewalt ) of the Allies that the formula of unconditional surrender implied. Laun’s main examples of such total authority were the expulsions of ethnic Germans andthe retention of German POWs. He argued that the Allies ought to be held to their own standard as enunciated in the United Nations Charter and the Nuremberg Charter. (The latter, in the course of asserting the illegality of certain acts by Nazi Germany, held that all states had recognized Hague rules as recently as 1939.) 46 With such lectures and publications, Laun contributed to his German audience’s understanding of “human rights” as concerning Allied wrongs and German victimhood.

In 1949, the Allied military occupation came to an end. From then on, Laun focused his international law work on the expulsions of ethnic Germans, in the hope that one day a case could be brought before an international forum. While his work on the law of war focused on the individual gaining a voice in international law, his work on the expellees turned to the non-state group, here the nationality, as a fuller subject of international law. Laun saw no tension between individual rights and group rights: An individual’s cultural rights clearly implied group rights, as cultural rights could not be exercised in isolation. The innovative concept Laun sought to advance here – the other major concept in his postwar arguments for an “international law of human rights” – was the “right to the homeland” (Recht auf die Heimat ). This concept, which overlapped with the more general concept of national self-determination, has been theorized mainly by Germans and Austrians associated with the expellee lobby. However, the concept certainly reaches beyond that context, as it addresses problems of indigenous and ethnic groups’ rights that have arisen all over the world.

Specific aspects of the Sudeten expellee case, along with Laun’s progressive international law background, helped to propel him to a radical position on limiting state sovereignty. Like other spokespeople for the expellee cause, Laun tended to lump together two categories of displaced Germans and refer to a total number of about fi fteen million “expellees” ( Vertriebene ). While the lived experience of brutalization and trekking westward was similar among persons in this large group, they did have varying legal statuses with corresponding ramifi cations. At least seven million of them were from the former Prussian provinces and were properly refugees ( Flüchtlinge ), not expellees. German citizens living inside the boundaries of Germany, they fled to escape the advance of the Red Army . A second, legally distinct group was the three and a half million German citizens who found their region of Germany transferred to Poland by the Potsdam Agreement of August1945. They were denied the possibility of remaining in the postwar Polish state: The Polish government expelled them. At the same time, postwar Czechoslovakia expelled its three million ethnic German citizens. Unlike the Polish case, almost all of these expellees had been Czechoslovak citizens and, if they were old enough, Habsburg citizens before that. Now they were stripped of their Czechoslovak citizenship; specifi cally, the Czechoslovak government upheld Nazi-era law that had made ethnic Germans there into citizens of Germany. Finally, postwar Hungary, Romania, and Yugoslavia expelled about 600,000 ethnic Germans from among their own citizens. As many as one and a half million of all these refugees and expellees died in these ordeals. 54 By 1950, about eight million refugees and expellees lived in West Germany, four million in East Germany, and half a million in Austria . Just as Laun and other expellee spokespeople confl ated the refugees and expellees, they also confl ated the basis for claims to their homelands. There was a clear legal basis (though little political chance of success) for protesting Poland’s annexation of German lands. As West Germany formally asserted until 1990, the Oder-Neisse Line between East Germany and Poland was not to be considered permanent until it was confi rmed by a peace treaty between all of Germany, on the one hand, and all four of the Allies, on the other – as had been envisioned before the Cold War. Until such time, West Germany maintained, the legal borders of Germany were those of 1937 (the baseline for determining what was Germany proper, before Nazi Germany’s territorial gains). By contrast, ethnic Germans from places outside Germany’s 1937 borders had no such legal claim. The largest group in West Germany for whom this was true was the Sudeten Germans. The Sudetenland had neverbeen part of any German state except for Hitler’s , after the 1938 Munich Agreement . Of all the expellee spokespeople, those claiming to represent the Sudeten Germans were the most in need of legal innovations that would help them outmaneuver traditional, state-based international law. The specific legal predicament of the Sudeten German expellees led legal experts such as Laun to commit themselves to concepts and institutions that would place strong limits on state sovereignty. That, in turn, situated them on the radical edge of international law and human rights argument. They became committed to that radical approach because they had no choice: No state would espouse their complaints. Certainly the expelling states and the Allies would not revisit the issue. And while West Germany offered the majority of the expellees a home as well as extensive social legislation and political sympathy, it did not – and could not – bring a case for international deliberation.

No international agreement expressly banned state-ordered mass deportations or expulsions at Laun’s time of writing – that happened only in 1963, and then only at the European level. However, the expulsions of ethnic Germans obviously violated numerous basic human rights. It was a simple matter for Laun to establish that individuals had suffered loss of property, liberty, and life without due process. According to Laun, these violations of widely recognized basic human rights showed that a right to the homeland – in its narrowest definition, the right not to be forcibly removed from one’s home region – was already practically in existence. To develop the argument for a right to the homeland further, Laun revived his old concept from progressive international law, the conscience publique. While mass expulsion was a technique that belonged to traditional international law based on state sovereignty, Laun argued, the new international law of human rights accepted the conscience publique’s high valuation of nationality. (Laun never discussed the possibility that expulsions could be truly popular, rather than merely the act of a sovereign state, just as he had not raised the question of whether dictatorship could be popular. To do so would have threatened to dismantle the concept of the conscience publique.) Had the conscience publique not been drowned out by the hatreds of the First World War and subjected to the coercion of an international law of state sovereignty, Laun continued, it would have offered selfdetermination for Sudeten and other Habsburg Germans in 1919, permittingthe Sudetenland and Austria to join Germany. Sudeten Germans’ rejoicing in 1938 refl ected the end of their long-denied national self-determination, Laun insisted, not their admiration for the Nazis: “They would have applauded any German regime.” Once again, Laun placed nationality on one plane, and politics on another.

Given the ongoing coercion of sovereign states and the ineffectiveness of individual petitions that went unheard, Laun called for extending the right to self-determination to non-state groups: “We stand before the legal question: can a people, in the sense of a natural formation arising from a common descent, sedentary nature and mother tongue, appear in the international law community as an independent legal subject, one that is different in kind from states, but that nevertheless can realize its own rights?” He hoped the answer was yes, and cited two precedents for that. The fi rst was Pasquale Mancini’s 1851 argument for the “principle of nationalities,” which held that nationality, not domicile, should determine the law under which a person was placed. The second was the Entente’s decision during the First World War, in 1917 and early 1918, to deal diplomatically with the Czechoslovak National Council as a valid treaty partner. At that time, Laun pointed out, the Habsburg Empire was still intact, and so the Czechoslovak National Council was a natural, not a political, state-like unit. To treat the nationality as a fuller subject of international law, Laun insisted, would radically democratize international law, which had traditionally been so undemocratic. It certainly would mean a profound transformation of existing international law. Laun also called for nationalities, newly empowered with his proposed right of self-determination, to link themselves legally to specifi c territories, through making “homeland” (Heimat) a category in international law. The Universal Declaration of Human Rights did state that a person had a right to leave and return to that person’s country (Article 13), but here “country” seemed to be defined merely as any state in which a person was normally permitted to live. Laun did not seek a right to just any homeland (after all, the Sudeten Germans did have a legal home in West Germany, where they immediately gained citizenship), but rather to a nationality’s supposedly unique and irreplaceable homeland. The Universal Declaration of Human Rights said nothing about what Laun saw as the necessarily collective nature of a homeland, and it did not distinguish between a recent arrival to a given region and a person whose ancestors had lived there for generations. Here Laun was obviouslythinking of the Czechoslovak government’s policy of dispatching settlers to formerly German-speaking areas after the expulsion. Using a phrase redolent of decades of German nationalism and anti-Slav racism, he complained that the excessively individualist Article 13 could not prevent “Slavs and Mongols” from saying tomorrow that the Sudetenland was their land. There had to be a way, Laun insisted, to differentiate among various meanings of the word homeland and various claims of individuals and groups to it. To give priority to a group that could claim greater antiquity for its residence in a given territory, he suggested this refi nement to the right to the homeland: a “right to the ancestral homeland” (Recht auf die angestammte Heimat).

Laun’s idea of international law subject status and self-determination for nationalities and his proposed right to the homeland raised the problem of how to define membership in a group. In the fi rst years after the Second World War, Laun emphasized that nationality was a matter of the individual’s choice of affiliation, and not of descent. Like religion, he explained, one’s national affi liation was a “spiritual and moral” (geistig-sittlich) matter. To determine nationality by descent, which no one could choose, would therefore be absurd, he reasoned, and in any case, inherited traits were often indeterminate. Such arguments fi t well with those of his Viennese mentor Edmund Bernatzik, as well as the Austro-Marxists. Yet in 1958, near the end of Laun’s scholarly life, he instead emphasized the permanence of inherited traits: “One can no more get rid of one’s descent than one can get rid of the history of one’s ancestors and one’s homeland, or of inherited, physical racial traits and inherited mental qualities of character.” He did concede that factors other than descent could affect one’s choice of homeland, such as if a child moved with its parents to a different country and learned a new language there. But rather than allowing such real-life ambiguity to stand, he now impatiently asserted that there were limits to it. Contrasting such contingent events with supposedly clearer racial differences, he asserted: “through sudden events and acts of will, a Catholic can become a Protestant, a capitalist can become a proletarian, and vice versa, but an Anglo-Saxon cannot become a Russian or Chinese, for example.” He now insisted that the legal defi nition of homeland had to take account of these permanent traits.

In addition to calling fr the development of a new international law concept of homeland, Laun also proposed to solve the problems of nationality and homeland in Europe by turning back the clock, legally speaking. He cited a precedent for such legal time travel from the Thirty Years’ War. To undo the expulsions of Protestant princes, the Peace of Westphalia of 1648 had determined a baseline year of 1624: Princes expelled between that year and 1648 were to be allowed to return home. Laun likened the right to the homeland to religious freedom, and argued that the rights of the Protestant princes “correspond to the right to the homeland of the Poles, Jews, Germans, etc. expelled since 1933 or better since 1914.” He proposed turning the clock back to 1914; for Laun, clearly, the First World War and its peace settlement was when everything had begun to go wrong. By declaring a particular date to be the point of departure for the proper or natural arrangement of nationalities, he was implicitly suggesting that all the intervening events, including here the genocide of European Jewry, be simply forgotten. (In fact, Laun mentioned Jews only rarely in any of his work. In his post-1945 work, he mentioned them as an example of a nationality, and Zionism and the Israeli state as evidence of the strength of the right to the homeland. 76 He thereby implied that Jews had never had a proper home in Europe. Meanwhile, he claimed the term “genocide”for the expelled Germans.) Laun’s proposal to turn back the legal clock was absurd, but it did show the coherence of his interventions over the previous decades: He had been fighting the Treaty of St. Germain all his life.






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