Laun and West German International Law after 1945
Laun was no outlier, politically or professionally, in the fi rst postwar years. Yet his standing declined from about 1949 on. His arguments remained the same, but now they began to embarrass his West German colleagues. His polemics had suited the mood of the early occupation era, but as West Germans sought legitimacy for their new state in the new context of the Cold War, his bitter attacks on all four Allies ensured his obsolescence. It is also likely that by the 1950s his opposition to Nazism was no longer so important as a qualifi cation for a public intellectual. While in the late 1940s he was able to lend some respectability and legitimacy to highly compromised colleagues who shared his concern with Germans’ ethnic rights but not his liberal principles, by the late 1950s that was probably felt to be unnecessary. Two of his professionalendeavors suggest this pattern of early postwar prestige and then rapid obsolescence: his leadership in reconvening the German Society for International Law , and his participation in the massive research project on the expellees, published as the Documentation of the Expulsion of the Germans from East-Central Europe .
The German Society for International Law, founded in 1917 as the associational home of Germany’s progressive international lawyers, had held its last prewar meeting in 1932. Laun gathered about twenty old members and newcomers for a conference in 1947; in 1948 he hosted a second conference that drew over forty. A third conference in 1949 marked the Society’s official refounding, with Laun as chairman. The Society’s proceedings in the early years show that not everyone agreed with Laun’s criticisms of the Allied occupation – or, if they did agree with them, they did not wish to dwell upon them. Nevertheless, Laun did use the Society as a vehicle for his criticisms of the Allies. In 1947 and 1948 the Society voted unanimously in favor of eight resolutions that summarized Laun’s arguments. The first three in 1947 concerned Germany’s international law status, holding that the German state had existed continuously before, during, and after Nazism; that Germany was a subject of international law; and that the Hague principles applied to the Allied occupation. Two more resolutions focused on “human rights,” stating that “universal human rights” were part of international law and had been violated by both sides in both world wars, and that the human right ofindividual freedom included the “right to the homeland.” The next two resolutions focused on the expulsions: They held that mass deportations violated international law. The final 1947 resolution concerned German prisoners of war, stating that retention of POWs beyond the cessation of hostilities violated international law. In 1948 the group passed one overarching resolution: that the German people had a right to self-determination and could demand protection of their basic rights from the Allies. The fact that all of these resolutions were passed unanimously indicates that Laun was hardly an outlier.
Yet the next year saw a sharp turn. The Society’s members voted in 1949 not to issue any more resolutions that took scholarly positions on controversial topics; to do so would “run the risk of lending scientifi c authority to opinions.” In 1953 Laun stepped down as chairman and board member, and the Society’s meetings ceased to focus on German issues from that time onward. Instead, they took up topics of general concern among international lawyers everywhere, such as decolonization, economic treaties, and multiple states’ use of natural resources. Hermann Mosler , an advocate of this new approach, avoided criticizing Laun directly in an internal history of the Society, but made clear that the Society was only to be taken seriously on the international level after 1953, when it had joined the international consensus regarding which topics were important. Human rights, whether Germans’ or anyone else’s, were not a major concern in the Society’s proceedings.
Laun’s last institutional engagement was to join the editorial board of a massive research project on the German refugees and expellees, the Documentation of the Expulsion of the Germans from East-Central Europe (Dokumentation der Vertreibung der Deutschen aus Ost-Mitteleuropa). This project, which lasted from 1951 until the early 1960s, was sponsored by the Federal Ministry for Expellees, Refugees and War-Damaged (Bundesministerium für Vertriebene, Flüchtlinge und Kriegsgeschädigte). Laun, the sole nonhistorian on the board, was to advise regarding the usefulness of the documentation as evidence on behalf of Germans during peace negotiations with the Allies and for a plannedcomplaint to the United Nations. Yet the unfolding political situation was such that a peace treaty or a United Nations case on behalf of the expellees was hardly feasible. Meanwhile, as the project’s team of historians waded through the massive documentary material, their own goals changed. Rather than present the expulsions as unique events, they shifted toward seeing them in the context of Nazi-era forced population movements and the longer history of German nationalism and imperialism in Eastern Europe. This had nothing in common with Laun’s analytical or political approach, and he apparently disengaged from the project. 88 Nor did the project’s sponsors support such a broad contextualization of the expulsions, fearing that that would seem it would appear to excuse the expulsions. Several volumes were published, but the project remained unfi nished. 89 Rudolf Laun did not publish any more scholarly work after 1960.
Laun’s usage of human rights points to four elements in the history of human rights thinking in the old Federal Republic. First, his usage of human rights – on behalf of Germans as victims – was one of the earliest major usages among Germans after 1945. It extended from the Social Democrats to the far right. Second, “human rights” came to be associated with a discourse of German victimhood and, by ca. 1960, the right. Soon after Laun concluded his scholarly career, Amnesty International was founded in Britain in 1961, and the fi rst West German local groups formed later that same year. When one of the West German founders, the journalist Carola Stern , was fi rst approached with the idea of Amnesty, however, she noted that some of her colleagues were skeptical, believing that “Then old Nazis will just come and demand that the war criminals imprisoned in the Spandau Citadel be set free.” While Laun had sought to attach Germans as victims to the concept of “human rights,”
Stern and others sought to fuse a critical approach to the Nazi past to that concept – and they thereby developed a third element. Fourth, Laun’s call for individuals to have some kind of immediate standing in international law and his defense of group rights and a “right to the homeland” did not disappear, even as the West German political context changed. Indeed, in the context of national liberation movements, decolonization, and indigenous resistance in postcolonial states, these ideas appeared on the left of the German political spectrum. In all cases, the language of human rights served the goals of both universal justice and politics. Both are irreducible – and irreducibly controversial – aspects of using the language of human rights.
Human Rights, State Socialism and Dissent
Embracing and Contesting
The Soviet Union and the Universal Declaration of Human Rights, 1948–1958
According to historians, the 1948 vote on the Universal Declaration on Human Rights was a moment of triumph, an ethical milestone when states reached a consensus on political morality. With this vote the United Nations completed the first step toward a Bill of Human Rights with international agreement on the primary aspects of human rights. Forty-eight states representing Judeo-Christian, Islamic, and Buddhist traditions agreed on twenty-eight rights overcoming historical and philosophical differences.
However, the Declaration was not frozen in 1948 but served, as its authors hoped, as a living document. By focusing on the history of its initial drafting, the Declaration loses its historical, political, and cultural complexity. A narrative of the Declaration after the triumphant vote reveals multiple, conflicting interpretations of human rights that the document’s broad language masked.
These confl icts reflected neither Cold War nor developed–underdeveloped dichotomies, but were far more fractured. Because of this multiplicity, many powers, including the Soviet Union , were able to compete for moral authority linked to the Declaration. Despite the dominate narrative, the Declaration and human rights diplomacy in general did not freeze during the Cold War but became a battlefi eld on which many competing ideologies fought. By including the Soviet Union as an active participant in human rights diplomacy, I hope to challenge the Cold War narrative that has dominated both American and Soviet/Russian histories. Despite its abstention, the Soviet government in ten years managed to become a leading proponent of human rights. After the 1948 vote, Soviet diplomats, scholars, and journalistsincluded the Declaration and human rights in multiple frameworks of ideological debate. These ideas served as a complement to Marxist-Leninism, socialist legality, and peaceful coexistences. Issues such as freedom of information, equal pay for women discrimination, and self-determination were framed, depending on audience, time, and location, in multiple ways, including human rights. In many respects, the Soviet government reversed its policy toward the Declaration as human rights ideas gained traction in the Cold War battle for ideological legitimacy and supremacy. Although Stalin initially tried to limit this battle to the international stage, under Khrushchev the Declaration became part of the domestic politics as well. For the Soviet Union, human rights interpenetrated domestic politics and international policy.
The Universal Declaration of Human Rights under Stalin
The United Nations drafted the Universal Declaration of Human Rights as a response to the moral failures of World War II. UN delegates debated which rights were to be included, often centering on actions that enabled the Nazis to perpetrate genocide. For example, they included a right to work within the Declaration after tracing how the German government curtailed the rights of Jews to employment. Although the Declaration was in many ways a response to the atrocities associated with Hitler, the Soviet leader at the time, Joseph Stalin, had committed similar outrages. He had organized a series of concentration camps called gulags to purify the body politic of “class enemies,” including rich peasants, Orthodox priests, and even stamp collectors. He ordered the ethnic cleansing of those he deemed unreliable, such as Koreans, Crimean Tartars, and Chechens. Furthermore, he so mismanaged the Soviet Union’s resources that fi ve million Ukrainians, over 1.6 million Kazakhs, and thousands of others died in a series of famines. Given these atrocities it seems obvious that Stalin’s representatives abstained from the UN vote on Universal Declaration of Human Rights. Despite the Soviet abstention, the Foreign Ministry actively used the Declaration within the United Nations in order to further its own human rights agenda. Although initially resisting, the government embraced the Declaration as yet another weapon in the international ideological struggle that was part of the Cold War.
It may seem surprising that the Soviet Union remained on the United Nations Commission on Human Rights after 1948 and became a powerful voice. After all, it had abstained from the Universal Declaration of Human Rights, which was to serve as the lodestone for the Commission’s subsequent work. However, many Commission members were relieved that the Soviet bloc only abstained rather than rejecting the Declaration outright. As one of the Security Council permanent members, the USSR was represented in all the major UN bodies. Furthermore, the Commission maintained a commitment to geographic and political diversity, which naturally included the communist East. Giving the Soviet Union even more voting power, the USSR had not one representative in the United Nations, but three – one for the Belorussian Soviet Socialist Republic (BSSR), one for the Ukrainian Soviet Socialist Republic (UkSSR), and one for the Union of Soviet Socialist Republics as a whole (USSR) – with two of these three on the Commission for Human Rights.
Simultaneously, the Commission typically included one other representative from the East European satellite states. Although the Soviet Union and other Warsaw states voted as one bloc, the West lacked such unity. Even an ally as close as the United Kingdom voted in opposition to the United States , as well as the former U.S. colony of the Philippines . The Soviet Union began negotiating with a conspicuous voting advantage in the Commission before capitalizing on disagreements within the perceived blocs.
After the vote on the Declaration, the Soviets found that in human rights diplomacy even abstaining states were to be measured by this “nonbinding” declaration. The following year, for example, the United Nations General Assembly charged the Soviet Union with failing to let Soviet women married to foreigners emigrate, defying Articles 13 (freedom of movement and exit) and 16 (right to found a family) of the Declaration. In response, the Soviet delegates countered that sovereign states had the right to control who crossed its borders. International law at the time was (and remains) based on positive law, namely, that states had to agree to any treaty before it could be bound to that treaty’s terms; nevertheless, the Soviet Union was censured for violating the Declaration.
Many have pictured the human rights debate as divided along Cold War lines with the United States and Western Europe fi ghting for political and civil rights, while the Soviet Union and its allies pushed for economic rights to the exclusion of political and civil rights. In this interpretation, the Universal Declaration of Human Rights logically was divided into two separate covenants – the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights – reflecting international tensions. However, the Cold War blocs did not neatly align during the debates on human rights. For example, capitalist countries such as Australia promoted economic, social, and cultural rights, and the communist countries actively negotiated political and cultural rights. Ignoring its earlier abstention, Soviet diplomats employed the Declaration in their fi ght to include in the covenant economic, social, and cultural rights. They did not place theserights in a hierarchy above the already drafted civil and political rights, but argued that the Declaration constituted a whole and could not be divided into subsequent covenants.
After the 1948 vote, the United Nations began drafting a legally binding human rights covenant based on the Declaration. The initial draft of the covenant contained only a portion of the Declaration – civil rights – with no plans to expand into other areas. In response to this highly contracted draft, the Soviet delegates argued that the future covenant must refl ect the entirety of the Universal Declaration because the human rights enumerated therein were indivisible: “[I]f certain of those rights and freedoms [in particular the economic, social, and cultural rights] proclaimed in the Universal Declaration of Human Rights were not restated in the draft covenant, those rights and freedoms would lose all effective value and the meaning of the Universal Declaration would as a result be considerably modified.”
As a result, they proposed a series of rights based on the Declaration and omitted from the covenant, including the rights to work, to social security, and to education. During later negotiations one Soviet representative tasked the Secretariat to compare the draft covenant to the Declaration in order to ascertain which rights were missing. The Universal Declaration became a tool with which to push for the rights that the Soviets saw as lost in the early draft of the covenant. They framed the absence of these rights as a deprivation of them and an effort to break what should be indivisible. Furthermore, attempts to form a covenant addressing only parts of the Declaration threatened the strength of the whole.
Although today the Chinese communist government argues for a hierarchy of rights, the Soviet delegation stressed the interdependence of human rights. For them, civil and political rights were meaningless without economic, social, and cultural rights. Soviet Representative Alexei Pavlov began the Soviet lobbying for these rights by highlighting world public demands to guarantee those economic rights “already … proclaimed in the Declaration.” He then proceeded to explain that “[t]he right to work was the most important; without it all the other rights laid down in the covenant would be meaningless. There were no individual freedom for the hungry and unemployed.”
The Soviet delegation did not discuss the possibility of economic, social, and cultural rights without civil and political rights. Throughout these debates, the Soviet delegation linked the Declaration and the economic, social, and cultural rights contained therein to the Soviet history of rights. In particular, they cited the Soviet Constitution. For example, the Ukrainian representative highlighted the guarantees in the republic’s Constitution of the right to work , education, and medical services and the fulfi llment of those rights despite initial economic hardship. Similarly therepresentative compared the incomplete draft covenant to the unity of both the Declaration and the Stalin Constitution, which provided for not only economic rights but also the rights to freedom of speech, assembly, and personal liberty.
While the Soviet representatives led the fi ght for economic, social, and cultural rights, many states agreed with their rationale. Even capitalist Australia supported their inclusion. “In view of the wide publicity given to the Universal Declaration of Human Rights,” Representative Harry Frederick Ernest Whitlam “was convinced that the exclusion of those rights from the Covenant would cause the latter to be regarded as a mockery.” Latin American states originally played the leading role in incorporating these rights into the Declaration and followed the Soviet drive to include them in the draft covenant. The representative of Uruguay rebuked a European proposal to focus on only civil rights because this rights conception ignored “the progress made since the eighteenth century.” Similarly, Chilean Representative Carlos Valenzuela lobbied for a covenant that would make clear that economic, social, and cultural rights were equal in importance to civil and political ones. Throughout the debate, economic, social, and cultural rights were transformed, particularly for the newly independent states; they became code for a right to development, “a promise to share in all the benefits of modern civilization.” The Pakistani Representative, for example, explained that economic rights “represented the struggle for emancipation and freedom.” Although the United States, the United Kingdom, and France accepted certain understandings of economic rights, they justifi ed the exclusion of these rights from the covenant on the status of developing states, who lacked the means to fulfi ll such legal commitments. For the supporters of economic, social, and cultural rights, the unfulfi lled promise was better than silence.
The Soviet government continued its push for unity in human rights based on the Declaration when others began proposing to separate the covenant into two separate but equal covenants. States such as the United States, New Zealand, Lebanon, Belgium, and Nicaragua fought to divide the draft covenant based on what they deemed radically different types of rights – positive and negative rights. In particular, these governments argued that civil and political rights could be implemented almost immediately by changing legal codes, whereas economic, social, and cultural rights could be implemented only incrementally. The British representative stressed both the difference and the novelty of the positive rights: “It was doubtful whether economic andsocial rights, which were purely relative conceptions, were legally enforceable; they came within an entirely different category.” Furthermore, the parties pushing to divide the Covenant contended that some states were economically underdeveloped and therefore unable to guarantee the latter. As Indian Representative Hansa Mehta explained, the “state of economic development did not permit them to implement the economic and social rights at one stroke of the pen.” Foreseeing Soviet and other states’ concerns about a perceived rights hierarchy, the advocates of two covenants proposed that both covenants be signed on the same day and take effect simultaneously.
The Soviet delegation not only continued to stress the unity of human rights based on the Declaration but also questioned the motives of those who sought to divide the draft covenant. They insinuated that once the covenant was divided, even developed states such as the United States would choose to sign only one. One Soviet delegate, Planton Dmitrievich Morozov, explained that the capitalist states were not concerned about underdeveloped states and their ability to meet the commitments promised in the Declaration. Instead, the United States, like others, was “not interested in the lives of the workers in its own country,” and the U.S. delegate basically warned that “if the Covenant contained provisions calling upon Member States to introduce legislation to relieve their workers of the fear of starvation, to ensure for them the right to health and education, and other economic, social and cultural rights , the United States Government would be unable to ratify it.”
In response to concerns about underdeveloped states, the Soviet representatives highlighted their own history of development. They pointed out that after the October Revolution, social security was granted to workers, schools were built, and illiteracy was virtually eliminated. Furthermore, they questioned the division between positive and negative rights. The Belorussian representative explained that while the U.S. Delegates argued civil and political rights were easily achieved, “there were in fact many countries – including the United States of America, twenty of whose states had discriminatory legislation against Negroes … – where political rights were still not enforced.”
He concluded not only that economic rights would require progressive implementation but also that “time was needed also for the enforcement of political and civil rights, and no valid differentiation could be made between the two sets of rights on that score.” Finally, the Soviet delegation questioned the depiction of economic, social, and cultural rights as exclusively positive rights. They highlighted that the rights included trade union rights and equal pay for minorities and women, which were just as legislative in nature as before, the Soviets were not alone pushing for a single covenant. During negotiations, the economic, social, and cultural rights became, to some developing countries, a right to development and, with that, an obligation of the developed countries to provide international aid. The General Assembly initially voted to draft one united covenant, using arguments similar to those of the Soviets. The Human Rights Commission drafted the covenant so that violations of political and civil rights would be investigated by an international body, while economic, social and cultural rights would be promoted through reporting incremental improvements. As a result of these differences in implementation, the General Assembly reversed its decision only a couple of years later.
The unexpected change in the Soviet attitude toward the Declaration did not go unnoticed or unchallenged. A member of the UN Secretariat recorded his incredulity that the Soviets glossed over their abstention: “[I]f one was to judge by their frequent references to it, [then] an uninitiated person might well think that the Soviets had voted for the Declaration.” Eleanor Roosevelt at a UN debate “questioned their [Soviet] sincerity in citing for their own purposes the Universal Declaration of Human Rights for which they had not voted.” When the Soviet delegation stormed out of the United Nations because of debates over which government legitimately represented China-the Republic of China or the People’s Republic of China - the Chilean delegate assured the Human Rights Commission that it certainly would not impact the Commission’s work: “Everyone who was aware of the conditions which prevailed in the USSR regarding the guarantee of individual rights knew that the country could never sign a covenant such as that which was to be drafted by the Commission.” Although the Soviet bloc rejoined the human rights debates and actively partook in drafting the covenants, doubts remained about Soviet sincerity toward both the covenants and the Declaration.
Although the Stalin-era Foreign Ministry utilized the Declaration in human rights debates at the UN, it tried to defend a boundary between vocal internationalism and internal silence. As part of an effort to educate the public, the General Assembly voted in December 1948 to publish the Universal Declaration of Human Rights globally. To fulfi ll this goal, the Assembly tasked the Secretariat with making the Declaration available in as many languages as possible, not simply the fi ve working languages of the organization.
As a result, the Soviet delegation at the UN received an offer from Secretariat to translate the Declaration, asking in which languages the government had already written the Declaration and which the UN could assist in translating. The delegation forwarded this request to the Foreign Ministry, where opinions varied on how best to respond. A. A. Sobolev, Head of the Department of UN Affairs, advocated bluntly reminding the Secretariat that it abstained from the vote and therefore was “not interested in disseminating the Declaration.” Alternatively, the delegation could inform the Secretariat that it had translated the Declaration into Belorussian and Ukrainian, as well as possessed the offi cial UN version in Russian, thereby meeting the needs of the Soviet delegations. In the end, though, the Soviet representatives received a directive from Deputy Foreign Minister A. A. Gromyko, who ordered a new option, namely, that they ignore the Secretariat’s offer entirely. In so doing, the Foreign Ministry both limited UN dissemination within the country and remained nonconfrontational about its abstention, neither renouncing nor advertising it.
Despite the initial rebuff on publicizing the Declaration, Secretary General Trygvie Lie recommended two years later that states convene ceremonies to promote the anniversary of the Declaration. In response to the Secretary General’s recommendation, the Foreign Ministry’s Department for UN Affairs proposed a series of radio broadcasts and newspaper articles exposing the various ways capitalist countries violated human rights, in spite of the Declaration. Furthermore, these articles were to contrast these international violations with the “broad democratic rights of USSR citizens which were guaranteed by the Stalinist Constitution.” Although the message was to be crafted by the Foreign Ministry’s own press department, these efforts would utilize both domestic and international media . In the end, though, the Foreign Ministry ignored the Department’s suggestion, and the anniversary of Universal Declaration and Human Rights Day passed without notice in the Soviet press. The lower echelon of the Foreign Ministry believed that the Declaration could be used in an expanded ideological debate, but the upper level doubted the effi cacy of the Declaration as a tool for public propaganda. In 1952, the Soviet journal Trud (Work) ended four years of silence on the Declaration. The author of the article, B. Izakov, focused on the Declaration as an insincere pledge on the part of capitalist countries, beginning with the article’s title – “An Empty Declaration.” He denounced, as the Foreign Ministry had debated two years earlier, the failure of capitalist governments to fulfill the Declaration. For example, he noted the reluctance of other states to include the right to a free education in the draft of the legally binding human rights covenant, despite its inclusion in the Declaration: “It is profi table for Wall Street to keep millions of Americans in darkness and ignorance.” Finally, Izakov portrayed the Declaration simply as a tool for capitalists, which the Soviet efforts had failed to shape: “The Soviet delegation consistently defended the principle of democracy and progress, peace and the security of peoples.
But the Anglo-American bloc attempted to use the declaration for purposes of reaction and aggression. During discussion of the declaration they threw aside all proposals which would have guaranteed the opportunity to enjoy the rights in the declaration.” Subsequent articles written after the death of Stalin would stress Soviet infl uence on the Declaration.
The Soviet Foreign Ministry used human rights as part of its Cold War foreign policy. It highlighted the domestic successes in literacy, social security, scientific progress, workers’ rights, freedom of the press, and other rights. The diplomats contrasted these achievements with American discrimination, English unemployment, French imperialism, Lebanese illiteracy, Mexican inequality, and issues in other countries. While actively promoting their understanding of universal human rights abroad, however, the Ministry actively blocked similar discussion domestically. Instead, it attempted to create a border between the international stage and the domestic arena, where it opposed dissemination of these international efforts and these rights. Despite the Stalin-era silence in 1953, prisoners in a camp in Vorkuta demanded reform, explicitly calling on the government to observe the Universal Declaration.