(24) Human Rights: Past and Present

Decolonization and Nationalism Triumphant: Crash Course World History

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Decolonization and the Right of Peoples to Self-Determination

One of the most important contexts for the postwar discussion of human rights in the international domain occurred after the adoption of the Universal Declaration, in the course of the drafting of the binding Covenants on Human Rights. In his 1968 Nobel Peace Prize lecture Cassin pointed out rather despondently that the drafting of the Covenants had taken eighteen difficult years.

Over the course of that journey, the fi rst issue to be favourably dealt with ‘was the problem of deciding whether the right of peoples to self-determination, which had previously been considered a principle of political and essentially collective nature, should be inserted in the Covenants intended to implement the rights proclaimed in the Universal Declaration, which was concerned only with the rights exercised separately or communally by the individual’. This shift in priorities, from individual to collective rights, coincided with the disparagement of world citizenship and a renewed emphasis on the nation-state as the most signifi cant form of governance and liberty. As Cassin described in his lecture, ‘the solution arrived at can be explained historically by the movement toward decolonization and, more exactly, toward the political emancipation of territorial entities, which was a logical outcome of the victorious libertarian principles fostered in the course of the Second World War’.

Cassin, like many European delegates, was not always this sure of the compatibility of decolonization and les droits de l’homme. During the 1950s Covenant debates, which privileged the self-determination of peoples as a principle of human rights, Cassin is to be found opposing the attempt by the Soviet-linked states and Danish and Yugoslav representatives to equate human rights with minority rights, and minority rights with nationality. Although Cassin did not always associate the universal implementation of human rightswith the maintenance of the French empire, he always implied a fundamental ideological antagonism between the self-determination of peoples and the cosmopolitan conception of a state such as France as a society comprising equal individuals. Certainly some delegates to the Human Rights Commission and the Third Committee fought incorporating ‘the self-determination of peoples’ into a binding international convention on human rights on the basis that it would undermine the status of their empires (the Netherlands, Britain, France).

Others fought it because they had a profound sense of the unequal difference of the colonized (Greece, Belgium), while others still fought it as an intrusion on the sovereignty of their own states, which contained movements for secession (India). Cassin’s personal objections to the view that the self-determination of peoples is a human right were consistent with his general preference for individual rights over group rights. When the Soviet representative on the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities (it met during the preparation of the 1948 Declaration) urged a text on territorially based minorities, Cassin, the Sub-Commission’s Chair, objected that ‘there were certain countries where different peoples, Christians, Mohammedans and Jews, had lived side by side for centuries; as in North Africa, for instance, and where such a [territorial] text would be inapplicable’.

He added, in acknowledgement of the related colonial question, ‘There were some non-self-governing or trust [formerly colonial but not yet independent] territories where, no doubt, a problem of self-government existed, but there was no minorities problem’. This was a point in favour of individual rights and against minority rights with which even Lakshmi Menon, an outspoken Indian feminist (and in 1949-1950 the head of the Commission on the Status of Women secretariat), agreed. Menon argued that in India minority rights were as problematic because they assumed the introduction of new communities, rather than historically constituted communities where difference was the norm. In her home region of Lucknow, she explained, school exams were held in four languages.

What changed after 1948 was Cassin’s reasoning. He now argued that if France were required to implement across its empire the intended equality of sexes provision, it would not be able to ratify the covenant at all because not all the constituencies within its political administration would be either willing to accept such a provision owing to their cultural difference or able by virtue of their ‘backwardness’. ‘Thus, the result obtained would be the opposite of that which was sought’. Hélène Lefaucheux, the former resistance fi ghter and longstanding French delegate to the Commission on the Statusof Women (its chair for six years) and a close contact of Cassin’s, was concerned that women’s rights would be taken up by anti-colonial forces in the Islamic territories of France’s outre-mer. If that happened, she argued, it would put at threat the political relevance of the ‘French Union’ - the newly fashioned relationship between France and its colonies which both Cassin and Lefaucheux conceived as the manifestation of French respect for its colonials’ ‘own traditions’, and ‘the desires of her populations’. It is important to note that both kept to this view even when confronted with allegations of human rights abuses by French forces in Algeria. Inevitably, arguments that contrasted the ‘high degree of civilization’ of the contracting parties with the ‘ideas of peoples who had not yet reached a high degree of development’, and singled out Islamic traditions as particularly backward, did not go unrepudiated by other members of a rapidly expanding UN. The delegates from Syria, Lebanon, Egypt, and Iran were among those voicing their scepticism of the sudden colonial respect for cultural difference in non-self-governing territories. They took turns contrasting human rights traditions - the greater rights of women - in Islamic countries that had political freedom (such as Syria, Iraq and Egypt), with human rights conditions in those Islamic territories still dependent on colonial masters ( Algeria, Morocco, Tunisia and Libya). Menon was as vocal in her scepticism of the human rights advances in these post-colonial states, but she also described human rights legislation as most required in the non-self-governing territories and in the colonies ‘since it was there that violations of human rights were unfortunately most frequent’. Menon, who otherwise shared Cassin’s perspective on the threat posed by minority rights to culturally diverse states, charged that differences in the degree of development of various territories … was  an outworn argument, and India, speaking for all those countries in Asia which had so often been told that they were not ripe for independence, that they would have to be patient and wait for the day when, after a gradual evolution, they would be able to achieveautonomy, wished to state that all peoples, whatever stage of development they had reached, had the right to govern themselves.

Significantly, before Menon arrived at the UN, her argument had been rehearsed at the Status of Women Commission, not by its Indian delegate, but by American and Australian representatives. In 1947 a different Indian representative had suggested a time-frame of ten to twenty years for the introduction of universal suffrage in ‘backward’, non-self-governing territories. The American lawyer Dorothy Kenyon and the Australian activist Jessie Street both dismissed the idea that any group of people had to be ‘prepared’ for democracy. With perhaps a clear eye on the implications for women, they encouraged the view that differences were irrelevant, the introduction of rights itself brought new practices and possibilities. Read back into this broader context of debate across the organs of the UN, Cassin’s role on the Human Rights Commission was one of increasing conservatism. We do know, however, that his viewpoint, if not his actions, are difficult to assess in the period after the adoption of the Universal Declaration because he felt forced by his superiors to argue for culturally relative human rights. In April 1952 he complained to the French Foreign Ministry that his instructions prevented him ‘from defending the principles of unity, universality and the reciprocity of States, and forced him to protect the interests at the Human Rights Commission of nations such as France that were particularly exposed in their administration of non-self-governing territories’. Little wonder that in his lectures outside the UN system he persisted in reminding his audience of the opportunity that had been lost when it was decided that delegates to the Human Rights Commission should act as the representatives of states, rather than as independent counsels. When he refl ected publicly on la Déclaration universelle des droits de l’homme, Cassin again and again emphasized that it proclaimed the universal and fundamental rights of individuals no matter where they lived or among which group.

Cassin’s perspective shifted not only in relation to his different roles, and audiences, but also the changing rhetorical strategies of his peers, including anti-colonialists. As Roland Burke has described, the same year Cassin accepted his Nobel Prize, he was ‘the only Western delegate to come to the defence of the Universal Declaration during the First International Conference on Human Rights held in Tehran’. Tehran marked the consolidation of a significant shift in rhetoric among anti-colonial powers, which now emphasized the need for culturally-distinctive conceptions of human rights to match the conditions of the Third World. In this context, Burke explains, Cassin ‘urged the rejection of the emerging post-colonial rights concept, which created oneset of rights for the ‘South’, and another for the ‘North’. Rights argued Cassin ‘could not be different for Europeans, Africans, Americans, and Asians’. The simultaneous universalism and Frenchness of les droits de l’homme espoused by Cassin, along with his diffi cult relationship with the process of decolonization, tells a complex story about the transition from individual rights to the rights of ‘peoples’, from the cosmopolitanism of empires and a new internationalism, and the return, after a brief postwar hiatus, to the political supremacy of state-centrism and cultural nationalism, even in international forums and institutions. That story also includes the fragility of Europe’s moral standing at the end of the Second World War, and into the era of decolonization. It is not surprising that as Cassin felt his ‘European’ voice marginalized in the setting of the UN, he turned his attention to the European Community’s own Human Rights Convention (adopted in 1950), and its establishment of a European Court of Human Rights. 52 It could be argued this was partly for idealistic reasons, because, unlike the United Nations, the European Court allowed individual petitioning and had the legal authority to implement human rights, rather than just advise, a contrast Cassin noted in his 1968 Nobel Prize lecture: ‘Europe has really offered a good example after the turning point of 1948, and I, a determined universalist, was able to conclude that certain means of implementation are more readily accepted if they are organized among neighboring nations of similar culture. Communities of law and customs are not invented arbitrarily.’

Cassin was obviously delighted at the advances on offer for les droits de l’homme in this new European institutional setting. But they were advances that saw him retreat radically from his earlier invocations of the political salience of the human family in favour of the inevitability of national and civilizational differences. The assumptions that informed the preamble to the European Convention on Human Rights, with its description of ‘European countries which are like-minded, and have a common heritage of political traditions, ideals, freedom, and the rule of law’, situated Cassin comfortably not in the family of man, but of European lawyers.

The history of Cassin’s role in the Universal Declaration of Human Rights has much to add to current debates about the cultural relativism of human rights. There is no doubt that Cassin conceived of human rights as emerging out of a French political tradition engrained in the ‘true’ culture of France - its language, its laws and its literature. At the same time, the relationshipbetween Cssin’s views and those represented by ‘non-Europeans’ involved in the formulation of an international bill of human rights in the second half of the twentieth century - women and men such as Menon, Mehta, Romulo and Chang - also makes clear that we cannot simply dismiss the history of human rights as a parochial story of European ambitions. In the early postwar years it was these non-Europeans who often invoked the importance of a cosmopolitan politics in order to sustain the universality and practicality of the idea of human rights as individual rights, and in order to challenge Cassin’s invocation of a European, and ultimately French imperial, version of universal human rights as les droits de l’homme. Feminists too had an important part to play in the articulation of a Universalist vision of human rights as an alternative to the gender specifi city of the rights of man political tradition. Taken together, these strands of the history of human rights remind us of the extent to which the terms human rights, rights of man and les droits de l’homme, despite not being the same, have overlapped, and belonged to the world, even as they have implied historically specifi c traditions, or summoned up culturally specifi c pasts. Their histories highlight the variety of contexts that infl uenced the postwar conceptualization of the relative importance of individual and group rights, as well as the similarity in the values and rhetorical strategies of universalists, colonialists and anti-colonialists, of cultural relativists and anti-democrats at different moments, and the important although undermined infl uence exerted by cosmopolitanism and feminism as complementary ideals.

The changing contexts in which human rights were internationalized, and Cassin’s own shifting positions, fundamentally problematize what Reza Afshari has described as the single-cause explanation of human rights. Afshari has in mind specifi cally the presentation of ‘anti-colonial struggle as a human rights movement’, its domination of human rights historiography, and its negative impact on ‘a new awareness for human rights’. When read back into a history of the fl uidity of the meaning and signifi cance of human rights, the connection between human rights, empire, and national self-determination no longer seems so obvious or historically inevitable. In theory, empire offered as powerful a context as the nation-state for imagining a conception of rights that transcended cultural or racial hierarchies - hierarchies that in the modern period, it should be remembered, were as liable to be reproduced in national as much as imperial settings. Indeed, in the twentieth century the shibboleth of national sovereignty has posed the greatest obstacle to the international implementation of human rights.

The question remains, as Kenneth Cmiel has reminded us: What if anything is the impact of this international history of the idea of human rights on the actual status of human rights? Cmiel offers that ‘[i]t is precisely in not treating assertions of “human rights” in hushed, reverential tones that the bestpossibilities lie’. The story of another of Cassin’s transnational adventures reinforces the edifying value of historical demystifi cation. In January 1954 René Cassin set off on one of his routine voyages away from France, across the Channel to London (his former home-in-exile) for a meeting of the International Institute of Administrative Scientists, only to find himself confronted with the shortcomings of the international human rights project. It was in the middle of the Cold War, and Cassin, on arrival at London’s Victoria Station, was subjected to hours of questioning by immigration offi cials. Their suspicions had been aroused by his diplomatic passport, which described him as France’s UN delegate to the Human Rights Commission. In an interview with the press Cassin related that ‘Officials seemed puzzled about “human rights”, they kept asking what these words meant’. To rewrite the history of human rights as a historically specific idea is not to challenge its relevance; it is to acknowledge the importance of continuing to ask with more precision, what these words have meant, what might they mean, and for whom.

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