The following article was published in the December 2020 issue of the International Review of Contemporary Law, the journal of the IADL.
by Miguel Régio de Almeida
Abstract: After 70 years, the UDHR continues to be celebrated without proper reference to its foundational narrative, thus still reproducing academic and institutional ethnocentrism. For decades, teaching the UDHR without a truly global perspective and historical context was another way to insist on a new linear legal ‘Orientalism’ and a renovated ius publicum europaeum. Aiming towards a pedagogical shift in the philosophy of human rights, I deconstruct some of the legal mythology surrounding the origins of the UDHR, while highlighting recent studies that shed new insights on the generation of human rights, afterwards reimagined as an unprecedented ius totius orbis and a ‘language of resistance’.
Key-words: Philosophy of Human Rights; Critical Legal Thinking; Critical Legal Education; International Law; Colonialism.
Between memoricide and revisionism: subsidies towards a pedagogical turn on the Universal Declaration of Human Rights[1]
As is deducible from the rather pompous title of this text – which will be promptly deconstructed –, I am primarily concerned with a couple of problems derived from the mythification that the Universal Declaration of Human Rights (UDHR) has been under since 1948, concerning its genealogy and meanings, within the meta-dogmatic subject of philosophy of human rights.[2] In order to help overcome such legal mythology, I will highlight some recent contributions, namely historiographic, from the counter-hegemonic strand of legal thought. They urge the revision and the rethinking of the UDHR genealogy and meanings, following the retrieval of unjustly forgotten facts or subaltern agents. The ‘pedagogical turn’ – something which is recognizably called for in the field[3] – here suggested aims to echo what the North-American scholar Duncan Kennedy had in illo tempore advocated regarding the ‘critical legal education’.[4] This demands a brief introduction, in order to clarify my doctrinal framing on the Critical Legal Thinking stream, marginalized due to its dissidence towards the orthodox jurisprudence. Moreover, on the background of this text one should notice the influence of a critical thinker in particular: the German Marxist philosopher Ernst Bloch (1885-1977) and his radical interpretation of natural law, rights of man and human rights.[5] Thus, more than a legal utopic legacy, I am thinking of the emancipatory potential of human rights and the actuality of its promissory text.
Human Rights and Critical Legal Thought
Knowing that there are many different legal ‘critiques’ – including Kantian, Marxist, and jurisprudential to name a few, I should first clarify that the position here adopted builds on the notion formulated by Michel Foucault: «the critique of what we are is at one and the same time the historical analysis of the limits that are imposed on us and an experiment with the possibility of going beyond them.»[6] Such characterization is ultimately that echoed by the school, or movement, of Critical Legal Thought/Theory, better known by its original Anglo-Saxon terminology as Critical Legal Studies (CLS), the «enfant terrible of legal thinking»,[7] with which I am intellectually affiliated.
To think about the actualization of human rights can, within a meta-dogmatic approach, prove to be a problematic exercise. This is because it prompts us to question many doctrinal pre-conceptions usually found in more orthodox strands of legal philosophy. For example, we are driven to question the dogma of the autonomy of law and its neutral relationship with politics and ideology. We find that the radical potential of natural law has been reintroduced in legal and political discourses. In addition, international law theory is gradually recognizing the contrast between itself and the colonialist realpolitik context. The legal ramifications of citizenship and humanity, introduced by the bourgeois concept of droits de l’homme, are finally being deconstructed. When thinking about post-sovereignty, the topoi about the common good has been revived. The legal discussions on the extra-judicial arena have been expanded, since one cannot deny the democratic reanimation of the demonstrations in the streets and other public spaces. Finally, organizations from civil society (non-governmental organizations, or NGOs) outside the traditional professional legal circle, are being accepted as new legal agents.
As a consequence, the strands of legal philosophy more akin to orthodox conceptions – attached to the binomial jus naturalism/positivism and the absolute autonomy of law, as opposed to ideological deconstruction and to analyses on law’s contexts and effects – pose difficulties in thinking about the sui generis jurisprudence, construction and realization of human rights. . Traditional legal reference is inadequate here, and sometimes such strands even simply ignore the field of human rights, since they do not fit into the traditional theoretical framework. Such denial is an enormous mistake, considering that human rights undeniably constitute one of the most significant influences on national and international legal orders. From the legal philosophy point of view, it is through the jus naturalist that human rights are usually studied,[8] whether to associate or dissociate them from traditional natural law. Consider the examples of Leo Strauss,[9] Michel Villey[10] or Jonh Finnis,[11] from the omnipresent neo-Thomist strand. But, notwithstanding their intellectual sophistication, these interpretations do not provide answers to the problems mentioned above. Nor could they, since such traditional perspectives were not grounded in the context of contemporary human rights, nor do they deal with the revision of their ethnocentric premises. Human rights have been redefined in light of the many antiracist struggles and anticolonial wars. They have also been analysed anew following the 2008 financial crises, and the current anticapitalistic struggles and appeals to active citizenship, through the Arab Spring, the Indignados and the Occupy Movements.
Regardless of such recent transformations, according to the North-American legal historian Samuel Moyn,[12] the presence of human rights qua tale in the popular legal imaginary and social conscience only dates to the mid-Seventies. This is many years after their foundational institution in 1948, with the UDHR, and their first judicialization in 1959, in the Cour Européene des Droits de l’Homme. Since the early 1940’s, human rights have been a target for ideological instrumentalization, particularly by North-American diplomats against the Soviet bloc during the ‘Cold War’. They have been supported by the Catholic Church, with the aim to improve its geopolitical position, leading to the contamination by the different clerical factions. On the other hand, NGO’s such as Amnesty International and the Helsinki Watch Groups have recharacterized human rights in the last decades through their extrajudicial mobilization. Civil and activist movements in many countries aim to transform their societies via the appeal to human rights and the denunciation of their violations.[13] They employ the ‘language of resistance’ whose ‘emancipatory appeal’ had already been echoed in past theorizations on natural law and rights of man. Such perspective is not popular within orthodox legal doctrine. However, although peripheral, it benefits from worldwide academic approval, that is, Critical Legal Thought that specifically focuses on the issue,[14] in the tradition of the Greek legal philosopher Costas Douzinas.[15]
Thus, the heretofore-mentioned theoretical and practical problems raised by traditional legal thinking are not at issue from the CLS point of view. For CLS assumes that law is theorized and operates in the context of politics and ideology. This way, law’s ‘symbolic power’ is made evident and one can see beyond the legal ‘habitus’ and the ‘homo academicus’, to evoke Pierre Bourdieu.[16] Although such analysis undoubtedly challenges the predetermined boundaries of academic epistemology, it has the capacity to analyse legal problems and themes while recognizing their ideological limitations. It investigates how they were erected, and suggests means to transform or overcome them through law’s ‘radical normative potential’. That is why one of the key topos of this stream of legal studies is to take law as resistance,[17] as counter-conduct. Brevitatis causa, it is worth quoting the summary characterization of this movement provided by the Portuguese legal historian António Hespanha, to which I subscribe: «what the Critical School of Law suggests is more than to replace a doctrinal opinion by another: more radically, it is to substitute the rules of legal practice and discourse; to admit that other type of subjects can participate on the academic and jurisprudential dialogue of lawyers; to use other types of facts as relevant; to speak another language; and, above all, to recognize that Law is a controversial knowledge, whose choices also represent ideological and political options».[18]
The pedagogical turn
Having concluded the background briefing, we can now turn to the genesis of the UDHR[19] and its recent ephemeris, which has already celebrated its seventh decade. These moments should reflect a mixture of emotional recall and of critical jurisprudence. On one hand, as the Kenyan legal scholar Makau Mutua[20] has advocated, we must avoid the «orgy of celebrations» that have become common on such occasions, as well as the reiterated memoricide of its generational context. On the other hand, we should recall its impact on and promotion by counter-hegemonic organizations in extra-institutional fora. This has begun to shape the movement for human rights, which a posteriori demanded the radical interpretation of the UDHR and guaranteed its current role in popular jurisprudence.
This is not the proper place to expose and deconstruct the orthodox ‘big narrative’ on human rights.[21] There is already an excellent textual analysis on the preparatory works of the UDHR.[22] But, as a rule, its foundational myth is the absolute blaming of Nazism (while ignoring its logical connections with capitalism and colonialism) and the attribution of authorship to the editing collective, usually reduced to a parental duo, focused basically on the influence of Eleanor Roosevelt and René Cassain.[23] This ignores the previous key work of John Humphrey[24] and the fact that the UDHR was the collective result of the extensive labour of dozens of delegates. And, even more shockingly, it purposely neglects the work outside the institutional stage: beforehand, in preparation for the lengthy process of writing the UDHR; and, afterwards, to earn acceptance and validity in the troubled context of post-1948 decolonisation.
In this sense, the pedagogical turn I am advocating results from identifying both a lack and a tendency to a limited syllabus on the teaching of this topos in different areas of legal thought. It also emanates from a common insistence on ignoring the contributions from the CLS movement on international law and human rights – and it happens that human rights are precisely a field that aggregates different generations of critical legal scholars.[25] Transversally to the CLS, there has been a specific research strand on the genealogy of human rights that is gradually interjecting itself.[26] It proudly displays its historiographic revisionism (for example, highlighting the recency of such rights), following the iconic head-start made by the North-American historian Kenneth Cmiel.[27] It is with this revisionism that Samuel Moyn has distinguished himself, particularly by defending the thesis that human rights only turned out to be truly valid from 1977 onwards. That year was symbolized by the attribution of the Nobel Peace Prize to the NGO Amnesty International and by the election of the USA President Jimmy Carter.
In this context, the methodologies of the history of human rights are themselves being questioned. Specifically, the demystification of the UDHR is part of[28] this phenomenon, as well the generic tendency to denounce the erroneous emphasis on occidental legal perspectives,[29] nowadays a recognized and unjustified affront that calls for its urgent overruling. Therefore, it is increasingly inescapable to integrate the contributions from the subaltern legal thinking on the curricula concerned with human rights education that benefits from many academics still influenced by the CLS, and others specifically integrated in the post- and decolonial studies. I am speaking namely of strands of the New Approaches to International Law (NAIL), the Third World Approaches to International Law (TWAIL), and the study of human rights trough the optics of decolonial theory.[30]
For example, within NAIL, one can already see how the colonial origin and modulation of international law constitute the premise for a full understanding of its methodology, as well of the plundering and commercial interests that the ius publicum europaeum[31] had always showcased.[32] The Finnish scholar Martti Koskenniemi has distinguished himself as a great interlocutor of this critique of the traditional eurocentric view of international law, which extends itself to human rights.[33] Equally broad and heterodox, TWAIL presents itself as unified under the assumption of a post-colonial perspective on the study of the international community normativity, giving significant attention to the politics of and for human rights.[34] In this usually interdisciplinary strand, we should highlight the works of the Indian scholar Upendra Baxi, who concentrates specifically on the future of human rights,[35] following the revision of the eurocentric premises and episteme. And finally, as a result of the epistemological deconstruction developed by decolonial theory in these last decades, and quite popularly by the Argentinian semiologist Walter Mignolo, the ‘darker side’ of European modernity is being undoubtedly denounced, exposing how coloniality reverberates in every sphere of knowledge and social regulation.[36] Facing the relativization of the meaning of the European-made national and international normativity, human rights are also necessarily seen from a different point of view, as the Colombian scholar José-Manuel Barreto paradigmatically demonstrated, adding to the historiographical revision the appeal for different references and expressions of this new legal horizon.[37]
Consistent with this doctrinal framing, I argue that the study of the UDHR should not restrict itself to the year 1948.[38] On the contrary, we must take as benchmarks at least the beginning of modern European colonialism as well as its end. Ergo, only by understanding the strategic interest in, and the subsequent organized ripeness of, natural and human resources from Africa, the South- and Middle-East (paradigmatically expressed on the 1884-85 Congo/Berlin Conference), are we able to connect the ongoing realpolitik in light of World War I and World War II. And it also allows us to identify the motives that lead to the failure of the League of Nations, when it reorganized the colonial international community in 1919. It employed the Mandate System, with the various meanings that the Atlantic Charter netted in 1941. According to the conservative interpretation of Winston Churchill, it was a defence of the integrity of Europe and the British Empire. According to Franklin D. Roosevelt, the Charter had a tendentially universalist meaning, inspiring anticolonial sentiments.
Only within this context can we analyze the divisions and suspicions between the UN founding-members and the fellow ‘small’ member-states, as well the polemic initiated by the timid reference to «human rights» when the 1945 UN Charter was being drafted. This is how the deafening silence from most of the international audience following the proclamation of the UDHR was justified. Most people were familiar with the different practical meaning that a humanitarian text (one echoing the Atlantic Charter) could have to the majority of the world’s population – especially when the victors of World War II were renewing their neo-colonial planification. In fact, as had happened with the symptomatic promotion of the Droits de l’Homme in the ultramarine context, human rights were also used in the beginning as a justification to perpetuate the colonial legal pluralism, as the British imperialism example has illuminated, only recognizing them as applicable to Europeans.[39] Nevertheless, however originally tainted for its connivance with this system, it turned out that the UDHR has justly affirmed itself as a symbol of the rupture with colonial dominion.
In this light, I think that the study of the UDHR must be complemented with (until quite recently) subalternity reference, and the reports of what happened upstream and downstream from the UN. Thus, we can make the seemingly paradoxical observation that that political document, while founding a new legal genus, was received with both disappointment and enthusiasm. That is to say, there was a dystonia between the UDHR’s immediate meaning – in a colonial context which presumed, by definition, a legalized biopolitical hierarchy amid different phalanxes of the human species – and its potential – as a new political-normative horizon, based on the egalitarianism and universalism of such species, ergo with a necessary anticolonial and antiracist meaning. Following such logic, and, in my opinion, justifying the pedagogical turn here recommended, there are two complementary historiographies on the generation and meaning of human rights that have cemented themselves in recent years. On the one hand, there are the historiographies on local NGO or subaltern activist groups from ‘civil society’; on the other, are the ones about the international organization of post-colonial states in parallel to the UN, particularly escaping from the instrumentalization imposed by both aisles of the ‘Cold’ War.
Regarding the first historiography, it should be emphasized that the different interpretations the signifier «human rights» – and its emancipatory potential – could have in the UN Charter, as well as its development in the UDHR, was clearly illustrated by the activism of the National Association for the Advancement of Colored People (NAACP). As the North-American historian Carol Anderson has been particularly evincing, the NAACP played an important role not only at the 1945 San Francisco Conference, regarding the inclusion of human rights in the UN Charter, and its promotion. It also had a significant effect on the publication of the UDHR among the African-American community, especially due to the works of Walter White and W.E.B. du Bois. In the beginnings of the (more restricted) North-American Civil Rights Movement, civil rights were initially vindicated under the aegis of ‘human rights’, as Malcolm X, Martin Luther King, Jr., and the Black Panther Party then noted. Thus, as a recognized NGO, the NAACP was responsible for many developments inside the UN. Furthermore, in its grassroots activism, the NAACP connected the national antiracist principles to those emanating from the self-determination anticolonial movement, bringing to light the undoubtable link between both radical aspirations.[40]
In addition to that historiography, there is the other one concerned with the importance of the ‘small’ Latin-American and Asian UN member-states, namely those countries from the different decolonial waves including Jamaica, Cuba, India and Indonesia. This line of research is increasingly being recognized among specialists on human rights genealogy. It was actually due to these subaltern agents that human rights in general, and the UDHR in particular, were rescued from their initial disappointing silence and instrumentalization on the ‘Cold War’ stage. In the process, they were entwined in political-legal networks and spheres leading to egalitarianism between the different member-states and amid world populations. Therefore, human rights were taken not only as a means or a channel to transform the inequalities among the functioning and representations of the UN itself, but also to transform the modus vivendi of most recently – or soon to be – decolonized peoples worldwide.
In this strand, it is namely the Australian Roland Burke[41] and the Danish Steven Jensen[42] who have best retraced how determinant these subaltern states were in the proliferation of human rights documents, petitions and inquiries. They aimed to remedy many different types of discrimination to which the subaltern states have been historically subjected. Furthermore, in my opinion, we can observe the zenith of the radical link between the right to self-determination, antiracism and human rights in the 1955 Bandung Conference. In accordance with this historiography, Bandung’s relevance has recently been recognized.[43] This underscores how human rights and the UDHR became so important to the ‘Third World’, and therefore earned their place on the legal plane and social conscience worldwide. At Bandung, the new legal horizon and its founding text were consistent with anticolonialism and antiracism, as the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples,[44] and the 1963 Declaration on the Elimination of All Forms of Racial Discrimination[45] would later find purchase in the UN system.
Thus, the long interregnum between 1948 and 1966/76, which connects the three parts of the ‘International Bill of Rights’– the UDHR and the International Covenants on Economic, Social and Cultural Rights, and on Civil and Political Rights –, survived due to what was developed before and beyond the UN. In sum, the original popularization of human rights was a result of the activism and radical aspirations of various local and dissident NGOs, nowadays indisputably recognized as a global movement.[46] And it was because of the internationalist coalition of non-aligned states that human rights were rescued from oblivion, from the post-1945 neo-colonial order, and from the instrumentalization by ‘Cold War’ bipolarized realpolitk.
Conclusion
In light of these considerations and their respective (albeit only indicative) bibliographical support, I would make a final observation regarding the ‘intellectual responsibility’ of the different political and legal agents in the public sphere, as a Chomskyan reminder.[47] Considering Critical Legal Thought, past experience and the opposition to many counter-hegemonic proposals on human rights, the cordial acceptance of this ‘pedagogical turn’ by the majority of the academic community is not to be expected in the foreseeable future. However, the relevance of the facts and analysis detailed above must not be ignored. There is no doubt that this perspective (and complementary bibliography) offer an innovative clarifying context and reference on the paradoxes that surround the UDHR since its genesis, and still hollowly hover around human rights in general. Even better, they can help overcome some justified suspicions that haunt these rights as the most recent form of the ius publicum europaeum and of another legal ‘Orientalism’. Such contributions indeed provide support for an expansive understanding of human rights – correcting the conservative and neoliberal one – backing the progressive doctrine that assumes them as an unprecedented ius totius orbi, truly global and egalitarian.
We should agree that all legal and political activities regarding human rights, or under its aegis, must be made with the maxim of knowledge and critical conscience that this dissident episteme enables. Thus, the most possibly complete disposal of theoretical, historical, philosophical, normative, et cetera, referents is a nuclear and inalienable part of the role played by human rights pedagogues. However, what should be done with such knowledge is the (individual and collective) responsibility of the many legal and political actors, in their various fields of action. Therefore, to quote the North-American historian Mary Ann Glendon, at the least we should call for the UDHR to not be treated «like a monument to be venerated from a distance», but as a «living document to be re-appropriated by each generation».[48] Human rights must continue to be an «authentic germ of indestructible nonconformity», to quote the Portuguese legal scholar Orlando de Carvalho.[49] This should assist us all to stand, more than enragés, as lawyers «engagés».[50]
Miguel Régio de Almeida
PhD. candidate on Legal Philosophy (University of Coimbra, Faculty of Law)
PhD. researcher (Foundation for Science and Technology, Portugal)
miguel.regio.almeida@gmail.com
Miguel Almeida is a Lecturer in the School of Technology and Management, Polytechnic of Leiria (Portugal), and a PhD. candidate in Legal Philosophy at Coimbra Faculty of Law (Portugal).
His academic work focuses primarily on Philosophy of Human Rights, Critical Legal Thinking and Cultural Legal Studies. The present text was developed while benefiting from a PhD. scholarship, granted by the Portuguese National Funding Agency for Science, Research and Technology. The author aims to reinforce a counter-hegemonic approach to the history and philosophy of human rights.
Entre o memoricídio e o revisionismo: subsídios para uma viragem pedagógica sobre a DUDH
Resumo: Após 70 anos, a DUDH continua a ser genericamente celebrada sem a revisão necessária da sua narrativa fundacional, destarte mantendo a reprodução de um etnocentrismo académico e institucional. Durante décadas, o seu ensino sem uma perspectiva e um contexto histórico veramente globais redundou num outro modo de insistir num novo “Orientalismo” jurídico e num renovado ius publicum europaeum. Visando uma viragem pedagógica na Filosofia dos Direitos Humanos, propomo-nos a desconstruir alguma da mitologia jurídica concernente às origens da DUDH, relevando vários estudos recentes que projectam novas luzes sobre a geração dos Direitos Humanos, posteriormente re-imaginados como um ius totius orbis inédito e uma “linguagem de resistência”.
Palavras-chave: Filosofia dos Direitos Humanos; Pensamento Jurídico Crítico; Ensino Jurídico Crítico; Direito Internacional; Colonialismo.
[1] This text follows the conference given on November 30, 2018, at the Faculty of Law of the University of Lisbon. The author is sincerely grateful to the Associação Portuguesa de Juristas Democratas, for their invitation, as also to the IADL and the Editorial Board of the Review, for this publication. A special thanks is due to Lopes de Almeida, Manuela Pires, Madalena Santos, and Evelyn Dürmayer. Let us keep changing the world together.
[2] This is a more sensible subject that one would think prima facie. It is worth recalling that the Committee responsible for the writing of the UDHR chose to ignore the 1947 global questionnaire promoted by UNESCO, under the guidance of the French philosopher Jacques Maritain, that had justly the purpose of collecting the philosophic Zeitgeist regarding Human Rights: v. UNESCO/PHS/3 (rev.), Paris, 25.07.1948.
Nonetheless, there are many orthodox approaches to Philosophy of Human Rights – which are not followed here, for reasons explained below. V. e.g. Guy Haarscher, A Filosofia dos direitos do homem, Lisboa: Instituto Piaget, 1993 [1987]; Patrick Hayden, The Philosophy of Human Rights, USA: Paragon House, 2001; David Boersema, Philosophy of Human Rights. Theory and Practice, USA: Westview Press, 2011; Rowan Cruft, S. Mathew Liao, Massimo Renzo (ed.), Philosophical Foundations of Human Rights, USA: Oxford University Press, 2015.
[3] V. e.g. André Kleet, «It is time: Critical Human Rights Education in an age of counter-hegemonic distrust», Education as Change, 19/3 (2015), p. 46-64.
[4] Duncan Kennedy, Legal Education and the Reproduction of Hierarchy. A Polemic against the System (A Critical Edition), EUA: New York University Press, 2004 [1983].
[5] Namely in his 1961ouvre, Naturrecht und menschliche Würde (Derecho natural y dignidad humana, Madrid: Dykinson, 2011). V. e.g. Anselmo Borges, «Ernst Bloch: A esperança ateia contra a morte», Revista Filosófica de Coimbra, 4/2 (1993), p. 403-426; Costas Douzinas, «Adikia: On Communism and Rights», in Costas Douzinas, Slavoj Žižek (ed.), The Idea of Communism, London: Verso, 2010, p. 81-100; Francisco Serra Giménez, «El pensamiento filosófico-jurídico y político de Ernst Bloch», Anuario de Filosofía del Derecho, 14 (1997), p. 827-844; Michel Löwy, «Romanticism, Marxism and Religion in the “Principle of Hope” of Ernst Bloch», Crisis & Critique, 2/1 (2015), p. 350-355; Miguel Cardina, «A filosofia da esperança de Ernst Bloch», in UNIPOP (org.), Pensamento Crítico Contemporâneo, Lisboa: Edições 70, 2014, p. 88-100.
[6] Michel Foucault, «What Is Enlightenment? », in Paul Rabinow (ed.), The Foucault Reader, USA: Pantheon Books, 1984, p. 32-50: 50.
[7] Alan Hunt, «The Critique of Law: What is ‘Critical’ about Critical Legal Theory? », in Peter Fitzpatrick, Alan Hunt (ed.), Critical Legal Studies, UK: Basil Blackwell, 1990, p. 5-19: 5.
[8] Per definition, Legal Positivism is not properly inclined to Legal Philosophy, but to Theory or Methodology of Law.
[9] V. e.g. Natural Right and History, 1953.
[10] V. e.g. Le Droit et les Droits de l’homme, 1983.
[11] V. e.g. Natural Law and Natural Rights, 1980, and Aquinas: Moral, Political and Legal Theory, 1998.
[12] V. Samuel Moyn, The Last Utopia: Human Rights in History, USA: Belknap Press of Harvard University Press, 2010; id., Human Rights and the Uses of History, USA: Verso, 2014; id., Christian Human Rights, USA: University of Pennsylvania Press, 2015; id., Not Enough: Human Rights in an Unequal World, USA: Belknap Press of Harvard University Press, 2018.
[13] V. Aryeh Neier, The International Human Rights Movement: A History, USA: Princeton University Press, 2013.
[14] V. Boaventura de Sousa Santos, César A. Rodríguez-Garavito (ed.), Law and Globalization from Below, UK: Cambridge University Press, 2005: Cap. 8-11; Conor Gearty, Costas Douzinas (ed.), The Cambridge Companion to Human Rights Law, Cambridge: Cambridge University Press, 2012; Costas Douzinas, Conor Gearty (ed.), The Meanings of Rights: The Philosophy and Social Theory of Human Rights, Cambridge: Cambridge University Press, 2014.
[15] V. Costas Douzinas, The End of Human Rights. Critical legal thought at the turn of the century, UK: Hart Publishing, 2000; id., Human Rights and Empire. The political philosophy of cosmopolitanism, UK: Routledge-Cavendish, 2007.
[16] V. Pierre Bourdieu, «La force du droit. Éléments pour une sociologie du champ juridique», Actes de la recherche en sciences sociales, 64 (1986), p. 3-19; ibidem, «Habitus, code et codification», p. 40-44; id., Homo Academicus, Portugal: Edições Mulemba, Edições Pedago, 2016 [1984].
[17] V. Peter Fitzpatrick, «Law as Resistance», in Ian Grigg-Spall, Paddy Ireland (ed.), The Critical Lawyer’s Handbook, UK: Pluto Press, 1992, p. 44-48.
[18] António Manuel Hespanha, O caleidoscópio do direito. O direito e a justiça nos dias e no mundo de hoje, Coimbra: Almedina, 2014 (2nd ed.), p. 291-292 (the translation is mine). For a Portuguese depiction of the CLS v. e.g. Ana Simões Gaudêncio, Entre o Centro e a Periferia. A perspectivação ideológico-política da dogmática jurídica e da decisão judicial no critical legal studies movement, Rio de Janeiro: Editora Lumen Juris, 2013.
[19] Gen. Ass. Res. 217A (III).
[20] Makau Mutua, Human Rights. A Political & Cultural Critique, USA: University of Pennsylvania Press, 2002: p. 15.
[21] Ibid.
[22] V. Johannes Morsink, The Universal Declaration of Human Rights. Origins, Drafting, and Intent, USA: University of Pennsylvania Press, 1999.
[23] V. e.g. Mary Ann Glendon, A World Made New. Eleanor Roosevelt and the Universal Declaration of Human Rights, USA: Random House, 2002.
[24] V. Clinton Timothy Curle, Humanité. John Humphrey’s Alternative Account of Human Rights, Canada: University of Toronto Press, 2007.
[25] In Portuguese Academia, within an epistemic and sociological focus, it is Boaventura de Sousa Santos that has been most recognized in this field. V. id., «Por uma concepção multicultural de direitos humanos», Revista Crítica de Ciências Sociais, 48 (1997), p. 11-32; id., A Gramática do Tempo: para uma nova cultura política, Porto: Edições Afrontamento, 2006; id., Se Deus Fosse um Activista dos Direitos Humanos, Coimbra: Almedina, 2013.
[26] V. Jeffrey N. Wasserstrom, Greg Grandin, Lynn Hunt, Marilyn B. Young (ed.), Human Rights and Revolutions, USA: Rowman & Littlefield, 2007; Akira Iriye, Petra Goedde, William I. Hitchcock (ed.), The Human Rights Revolution: An International History, USA: Oxford University Press, 2012.
[27] Kenneth Cmiel, «The Recent History of Human Rights», American Historical Review, 109/1 (2004), p. 117-135.
[28] V. Susan Waltz, «Reclaiming and rebuilding the history of the Universal Declaration of Human Rights», Third World Quarterly, 23/3 (2002), p. 437-448.
[29] V. Reza Afshari, «On Historiography of Human Rights. Reflections on Paul Gordon Lauren’s The Evolution of International Human Rights: Visions Seen», Human Rights Quarterly, 29 (2007), p. 1-67; Bartolomé Clavero, Derecho global. Por una historia verosímil de los derechos humanos, Madrid: Editorial Trotta, 2014.
[30] The option for a tripartite exposition of these academic movements, on the grounds of theoretical organization, does not invalidate the fact that they usually interconnect themselves. Therefore, they are part of a truly counter-hegemonic approach to legal thinking.
[31] V. Carl Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum, USA: Telos Press, 2006 [1950].
[32] V. José María Beneyto, David Kennedy (ed.), New Approaches to International Law. The European and American Experiences, The Hague: T.M.C. Asser Press & Springer, 2011; China Miéville, Between Equal Rights. A Marxist Theory of International Law, London: Pluto Press, 2006.
[33] Martti Koskenniemi, «Colonization of the «indies». The origin of International Law?», in Yolanda Gamarra Chopo (coord.), La idea de América en el pensamiento ius internacionalista del siglo XXI (Estudios a propósito de la conmemoración de los bicentenarios de las independencias de las repúblicas latinoamericanas), España: Institución «Fernando el Católico», 2010, p. 43-63; id., The Politics of International Law, UK: Hart Publishing, 2011; id., «Vitoria and Us. Thoughts on Critical Histories of International Law», Rechtsgeschichte Legal History, 22 (2014), p. 119-138; id., «Rights, History, Critique», in Adam Etinson (ed.), Human Rights: Moral or Political, UK: Oxford University Press, 2018, p. 41-60.
[34] V. Antony Anghie, Imperialism, Sovereignty and the Making of International Law, USA: Cambridge University Press, 2004; James Thuo Gathii, «TWAIL: A Brief History of its Origins, its Decentralized Network, and a Tentative Bibliography», Trade, Law and Development, 3/1 (2011), p. 26-64; Larissa Ramina, «TWAIL – “Third World Approaches to International Law” and human rights: some considerations», Revista de Investigações Constitucionais, 5/1 (2018), p. 261-272.
[35] Upendra Baxi, The Future of Human Rights, India: Oxford University Press, 2012; id., Human Rights in a Posthuman World. Critical Essays, India: Oxford University Press, 2009.
[36] Walter D. Mignolo, The Darker Side of the Renaissance. Literacy, Territoriality, and Decolonization, USA: The University of Michigan Press, 1995; id., The Darker Side of Western Modernity. Global Futures, Decolonial Options, USA: Duke University Press, 2011.
[37] José-Manuel Barreto (ed.), Human Rights from a Third World Perspective: Critique, History and International Law, UK: Cambridge Scholars Publishing, 2013; id., «A Universal History of Infamy. Human Rights, Eurocentrism, and Modernity as Crisis», in Prabhakar Singh, Benoît Mayer (ed.), Critical International Law. Postrealism, Postcolonialism, and Transnationalism, India: Oxford University Press, 2014, p. 143-166.
[38] Historical landmarks are the fruit of preconceptions and impositions of common sense. As this is not the proper place to discuss such qualifications, it will have to suffice mentioning that my understanding of the Past is based on the ‘History from Below’ movement. Ratione materiae, regarding the historical context of 1948 and the «short XX century», v. Eric Hobsbawm, The Age of Extremes. The Short Twentieth Century, 1914-1991, UK: Abacus, 2013 [1994]; William A. Pelz, História do Povo da Europa Moderna, Lisboa: Objectiva, 2016; Raquel Varela, Breve História da Europa. Da Grande Guerra aos nossos dias, Lisboa: Bertrand Editora, 2018.
[39] V. Bonny Ibhawoh, Imperialism and Human Rights. Colonial Discourses of Rights and Liberties in African History, USA: State University of New York Press, 2007.
[40] Carol Anderson, Eyes Off the Prize. The United Nations and the African American Struggle for Human Rights, 1944-1955, USA: Cambridge University Press, 2003; id., Bourgeois Radicals. The NAACP and the Struggle for Colonial Liberation, 1941-1960, USA: Cambridge University Press, 2015.
[41] Roland Burke, Decolonization and the Evolution of International Human Rights, USA: University of Pennsylvania Press, 2010.
[42] Steven L. B. Jensen, The Making of International Human Rights. The 1960s, Decolonization, and the Reconstruction of Global Values, UK: Cambridge University Press, 2016.
[43] V. Luis Eslava, Michael Fakhri, Vasuki Nesiah (ed.), Bandung, Global History, and International Law. Critical Pasts and Pending Futures, USA: Cambridge University Press, 2017.
[44] Gen. Ass. Res. 1514 (XV).
[45] A/RES/18/1904.
[46] Although with many defects, v. Paul Gordon Lauren, The Evolution of International Human Rights. Visions Seen, Philadelphia: University of Pennsylvania Press, 2011 (3rd ed.), p. 195ff.
[47] Noam Chomsky, «The Responsibility of Intellectuals», The New York Review of Books, 23.02.1967 (available at <http://www.nybooks.com/articles/1967/02/23/a-special-supplement-the-responsibility-of-intelle/>, accessed at 25.05.2016); id., Quem governa o Mundo?, Lisboa: Editorial Presença, 2016: 15-33.
[48] Mary Ann Glendon, op. cit.: p. XVII.
[49] Orlando de Carvalho, Os Direitos do Homem no Direito Civil Português, Coimbra: Vértice, 1973: p. 14 (the translation is mine).
[50] Roland Weyl, Une robe pour un combat. Souvenirs et réflexions d’un avocat engagé, Paris: Messidor, 1989.
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