The following article was published in the May 2022 special issue of the International Review of Contemporary Law, the journal of the IADL, focusing on the 75-76 anniversary of the United Nations Charter.
The jurisgenesis of Human Rights
its meaning in the Charter of the United Nations, between 1945 and 1993
Miguel Almeida[1]
Summary:
- Introductory remarks; II. Ad initium: San Francisco, 1945; III. Ad interim: anticolonial and antiracist struggles; IV. Ad finem(?): Vienna, 1993; V. Concluding remarks
From a critical legal theory point of view, this short essay focuses on the evolution of ‘Human Rights’ as a signifier, originally born in the Charter of the United Nations, and how its significance was shaped ‘from below’, over more than 70 years. For methodological purposes, a three-staged analytical process will be followed. Although the main spotlight is naturally on the 1945 Conference in San Francisco and its ground-breaking legal text, what will be highlighted is the counter-hegemonic hermeneutics put forward by the antiracist and (even more bluntly) anticolonial Movements that superseded the 1945 Charter and the following 1948 Universal Declaration. The new legal category was radically shaped in such decades by the ‘Third World’, universalizing and expanding its meaning, breaking with the Eurocentric and conservative chains that haunted it. This jurisgenesis will finally focus on the 1993 World Conference on Human Rights and its own Declaration, where one can undoubtedly see the hodiern manifested by this septuagenarian legal signifier. An elliptic move, from San Francisco to Vienna, and beyond – but an evolution that continues to be unfairly obscured or forgotten by the hegemonic intelligentsia, if not denied by an ever-returning epistemic legal orientalism. More than a eulogy to the Charter, this is an opportunity to shed more light on a jurisgenesis unjustly unrecognized by the majority of Human Rights apprentices.
Introductory remarks
The founding Charter of the United Nations[2] (UN), from 1945, is simultaneously a paramount Event in the History of International Relations and the textual heart of hodiern International Law. It encapsulates the best and the worst from the leading States in the 20th century: a mirror not only of their unerasable sins from colonialism and imperialism, but also a quite progressive program towards a prosperous common future for all Humankind. One can see a dialectic movement in the UN itself: a ‘thesis’ encapsulating the ‘Darker Side of Western Modernity’,[3] and a work-in-progress ‘antithesis’ towards the ‘dreams of a better life’.[4] Human Rights are turning out to be the ‘synthesis’ of such evolution. Precisely because, as we know, the Charter was the first formally legal (some may argue that it is the only political) text to present such category, and the UN itself is the primal stage of those Rights.
However, more than 70 years have passed: words and dreams have changed. To discuss the jurisgenesis[5] of ‘Human Rights’ means, from the start, to challenge the hegemonic vision which presents them[6] – rectius, to decolonize them.[7] Their path has been neither linear nor straight: Human Rights did not come directly from the 1689 English Bill of Rights, or the 1776 North American Declaration of Independence, or the 1789 first French Declaration on the Rights of Man. Such hermeneutics are notoriously Eurocentric and only keeps feeding the traditional ‘legal orientalism’ that displays International Law as a Jus Publicum Europaeum,[8] since its inception in the Modern Age. The jurisgenesis of Human Rights is not a history about an intellectual gift from some enlightened Europeans, but a result of centuries (in a longue durée glance) of struggles and vindications from non-Europeans, against colonialism, racism, patriarchalism and capitalism. Fortunately, there are already many counter-hegemonic approaches to such traditional jurisgenesis, providing a much-needed revisionist movement on this topic. Although we have not yet witnessed a proper pedagogical turn on the matter, one already has all the intellectual tools that are needed.
This perspective is not an exclusive view from some Left-wing scholars (notwithstanding our universalism by default, as Eric Hobsbawm[9] well recalled). Such recognition has been already done on the UN floor decades ago. One just needs to recall the former Secretary General, Boutros-Boutros Ghali, at the 1993 World Conference on Human Rights, where he stated that:
We should be under no illusion: a debate on human rights involves complex issues. Human rights should be viewed not only as the absolute yardstick which they are, but also as a synthesis resulting from a long historical process.
As an absolute yardstick, human rights constitute the common language of humanity. Adopting this language allows all peoples to understand others and to be the authors of their own history. Human rights, by definition, are the ultimate norm of all politics.
As an historical synthesis, human rights are, in their essence, in constant movement. By that I mean that human rights have a dual nature. They should express absolute, timeless injunctions, yet simultaneously reflect a moment in the development of history. Human rights are both absolute and historically defined.[10]
As a matter of fact, this sharp thesis is the starting point for this textual voyage, a brief review on Human Rights’ jurisgenesis. To that end, and for methodological purposes, I will frame it in three ‘stages’: ad initium – and mainly –, one has naturally to focus on the original legal positivization of the signifier, the Charter of the UN [and subsequently on its development in the Universal Declaration of Human Rights (UDHR)]; ad interim, there will be a follow-up light sketch on how these Rights were rescued from oblivion and were reshaped by the anticolonial and antiracist movements, truly universalizing their (counter-hegemonic) meaning; ad finem(?), our attention will be focused on the above mentioned 1993 World Conference, where and when that fully-developed signifier was properly legalized in detail. In sum, a very short story from 1945 San Francisco to 1993 Vienna.
A final introductory remark is yet due, regarding the perspective hereby adopted and all the references mobilised. As is easily deduced, this analysis is enshrined in Critical Legal Thinking.[11] Thus (as was well explained by, e.g., Sol Picciotto and Wade Mansell[12]), like all (International) Law, Human Rights will not be taken as politically neutral – quite on the contrary! –, but as one way (in my view, the most democratic and justiciable one) to legitimize the use of power in a global scale (and specifically due to it[13]). Therefore, (the International Law of) Human Rights is indissociable from International Politics: History taught that how much ‘stronger’ a State or an international actor gets, the more frequently it will ignore Human Rights – or it will try to instrumentalize them. This is why it was so important that the signifier of Human Rights was determined from below, from its main agents, victims and activists. And why this brief jurisgenesis earned a significant and curious temporality: from 1945 to 1993, the same signifier was shaped by a properly radical signifier.
Ad initium: San Francisco, 1945
From a textual perspective, the omphalos of this jurisgenesis was naturally the 1945 San Francisco Conference, where and when ‘Human Rights’ were formally inscribed in an international Charter for the first time ever. Nonetheless, this was the neocolonial period from the post-Second (part of the) World War, and the Charter reflected such Zeitgeist. Limiting ab initio the potential and meaning of this radically new legal signifier – namely with the infamous ‘colonial clause’, blocking people’s self-determination –, the international community would change just enough to be kept as the old one did, in a classical ‘gattopardo’ move.[14] If things had gone unchallenged, Human Rights would have meant as much as the 18th century Rights of Man had, to most of the world population (thus, colonized) – nothing.
By 1945, it was already decided that a posterior Declaration should state explicitly what ‘Human Rights’ would be. However, to fully understand the drafting process of the 1948 UDHR,[15] one must abandon the simplistic (and flawed) view of this Declaration as the direct response to the Evils of Nazism, as the orthodox Eurocentric narrative does, since speaking about Fascism without relating it to Capitalism is just a plain historical error. Within such fable, one can never understand that the purpose for many of the founding members of the UN was to emulate the previous colonial world order; or comprehend why the UDHR was radically reinterpreted after 1948. It is much easier to understand the original purpose of the UN if we remember the so-called ‘mission civilisatrice’ in the Scramble of Africa and of the Middle-East, namely the 1884-1885 Berlin Conference, and its Realpolitk framing. In addition, we should keep in mind the consequences of capitalist competition for resources that monopolized the State rationalities of the European empires, thus originating the First (part of the) World War. Since none of the structural problems were solved with the League of Nations and its Mandate System, and that imperial competition only increased, boosted by racialized narratives justifying nationalisms, the Second (part of the) World War was inevitable, as the planification for the next world order made evident. We must recall that the UN was not an aftermath of that conflict, in 1945, but was already being sketched for four years, most famously in the Atlantic Charter[16] – and for particular advantage of the USA’s geopolitical position in the beginning(… and nowadays).[17]
Nonetheless, in 1948 the (not so) Universal Declaration provided the grounds for this new radical stream of International Law, setting the basis for an inspiring new legal horizon.[18] But, although crumbling, the old world was still standing and, for many, Human Rights met a standstill for decades. As a result, what was deemed to be universal, was ideologically divided in the two 1966/1976 International Covenants (on Civil and Political Rights, and on Economic, Social and Cultural Rights), while having its jurisdiction fragmented worldwide.[19]
But we should take a step back, in order to pay proper attention to the Charter, the primal legal locus of Human Rights. It is always useful to recall that the 1945 San Francisco Conference occurred between April 25 and June 26, thus while the War was still going on: Germany only surrendered on May 8 and Japan on June 26. The Charter earned became fully legal on October 24, after reuniting all the necessary ratifications. As to its composing and writing process, the decisions had to be approved by a two-thirds majority of 50 States represented. With such a rule, the ‘bigger’ nations (from the Allies side) managed to impose their political, economic, and superior military positions; however, when fully coordinated, the ‘smaller’ and ‘medium’ nations had the chance (which they used!) to approve many alterations regarding the General Assembly power and the UN competencies on economic and social issues. Such an approach from these nations (and with the public support of many NGOs) proved to be very successful, managing to democratise the General Assembly’s modus operandi, to enlarge the scope of action of the UN (including Human Rights provisions) and to limit the Security Council’s sphere of intervention. Many lessons from the errors committed by the League of Nations[20] had been learned – namely by the ‘smaller’ nations (who would actually also shape the Universal Declaration three years later, alongside many NGOs, imprinting the most progressive stipulations[21]). With 111 articles and an International Court of Justice to oversee them in action, the Charter became the international legal heart to abide by, additionally founding a new branch for a Modern ius totius orbi focused on Humanity, not States.[22]
A symbol from such counter-hegemonic activity, played by the ‘smaller’ nations, is Chapter XI (articles 73 and 74), consisting of a ‘Declaration Regarding Non-Self-Governing Territories’ – which will be later redeveloped by the 1514 Resolution, the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples. However, in 1945 the (right of self-determination, in the radical sense as a) right to independence of the colonized world[23] was clearly rejected: the Charter still had a neo-colonial agenda. Not all the lessons from the League of Nations and its Mandate (now Trusteeship) System[24] had been learned – the political, economic, and legal forma mentis was still the same. Namely Article 2, paragraph 7 (linked with article 77), on non-interference in domestic issues – which will be known as the ‘colonial clause’ –, would become the principle guarantor of colonialism, regulated by International Law. Thus, the Westphalian system was not altered in its essence, since any mechanism regarding an international intervention to protect Human Rights was precluded – the UN would not interfere in ‘domestic’ issues regarding such Rights, with the sovereignty of all (colonial) States being undoubtedly recognized.
Such were the chains of the Past, of the vampiric dependency that Europe – by 1945 already a Global North – had developed from the colonized world, since the 15th century. It could be human “livestock”, it could be sugar, it could be oil… many were the resources still to be drained. Nonetheless, a new legal horizon was also being forged in San Francisco. Centuries from political, military and even legal resistance (namely through counter-hegemonic visions of natural law), unleashed by the global fight against one type of totalitarianism and violence, were voiced in San Francisco. A new legal category was to emerge – however odd it might sound, considering how until then the ‘Rights of Man’ had been used outside of Europe.
In the Charter, ‘Human Rights’ appear seven times: (1) in the first paragraph of the Preamble, stating that the UN is determined ‘to reaffirm faith in the fundamental human rights’; (2) in article 1, positing that one of the purposes of the UN is ‘promoting and encouraging respect for human rights’; (3) in article 13, affirming that the ‘General Assembly shall initiate studies and write recommendations for the purpose of’ ‘assisting in the realization of human rights’; (4) in article 55, declaring that the UN shall promote ‘universal respect for, and observance of, human rights’; (5) in article 62, proclaiming that the Economic and Social Council ‘may make recommendations for the purpose of promoting respect for, and observance of, human rights; (6) in article 68, asserting that the Economic and Social Council shall set up commissions ‘for the promotion of human rights’; and finally (7) on article 76, stating that one of the basic objectives of the trusteeship system shall be ‘to encourage respect for human rights’.
Considering that we are discussing a newly introduced legal category, seven mentions is quite meaningful. However, even more meaningful is the fact that the UN Charter purposefully does not provide any definition or hermeneutic criteria regarding the meaning of Human Rights. As we know, that answer would only come from the 1948 Universal Declaration, as was planned ab initio.
Ad interim: anticolonial and antiracist struggles
Although corresponding to the longest of the ‘stages’, this one will have the briefest description here. Essentially, Human Rights had also experienced an underground life, outside the main forum of the UN. Even though it was such a spectral existence that saved them from post-1948 oblivion and kept alive their radical normative promise. These were just some of the effects caused by the revolutions of the so-called ‘Third World’ and Civil Rights Movements. Human Rights would not have the same fate as the bourgeois Rights of Man: they would become anticolonialist, antiracist and subsequently anticapitalist. In fact, they would literally be reborn in the 1970s, as Samuel Moyn has famously described.[25]
The ‘Third World’ had reset the arena for Human Rights, and the two 1966/1976 Covenants would clearly reflect that. The radical/progressive interpretation of the Human Rights potential was thus managed by dissident groups acting inside and outside the UN. Carol Anderson,[26] for example, has shown how influential the National Association for the Advancement of Colored People was for the affirmation of Human Rights in the Charter, and for the promotion of the UDHR, linking the racial struggles in the USA with international struggles for colonial liberation. Whilst Roland Burke[27] and Steven Jensen[28] have evidenced how the anticolonial Movements (in Africa and Asia, from the Middle East to the Caribbean[29]) received the UDHR and promoted Human Rights with a radical egalitarian tone, thus shaping the future activism that would become the watermark of those Rights. Symbolically important in stressing this link between Human Rights, anticolonialism and antiracism, was the 1955 Bandung Conference,[30] thus decoupling the legal horizon and mechanisms from the bipolarization of the “Cold” War and the Eurocentric control of it.
The most representative fruits of such Movements in the UN fora are the 1960 Declaration on Independence of Colonial Countries and the 1963 Declaration on Racial Discrimination. These have direct links with the events mentioned above, as its language, its proponents and its hermeneutics show. They are even reflected on the first article of both 1966/1976 International Covenants on Economic, Social and Cultural Rights, and Civil and Political Rights,[31] at last reuniting in a single legal proposition (as envisioned in the UDHR) what the Covenants themselves were trying to decouple. Self-determination and Human Rights’ universalism still had a long path to walk. Only in 1981 did the African Charter on Human and Peoples’ Rights emerge, recognizing a post-colonial international community, delinked from the Global North: a right to development of and for Peoples, not States. And one would even have to wait until 1989 to finally see the recognition of the right to self-determination of non-State agents (although Human Rights agents) in the Convention no. 169, from the International Labour Organization, on Indigenous and Tribal Peoples – not only the first, but also the last victims of European colonialism.[32]
However, the bipolarization of the international community had made its bidding, with ‘Human Rights’ being kept a polemic and non-universalised signifier. After all, in the background of all these events is still the development of Capitalism itself. At a first glance, it looked like that this economic model bypassed its patent incompatibilities with Human Rights, and installed in International Law a blatant confusion between progress and economic growth, development and consumerism. According to the Eurocentric (neo)liberal narrative, Political Rights had to be prioritized and even played against Social and Ecological Rights. For a moment, in the beginning of the Nineties it was as if a new hegemony had made its way, updating the ius totius orbi as a new legal orientalism. But such finalistic visions soon turned out to be short-sighted.
Ad finem(?): Vienna, 1993
Unfortunately, the importance of the 1993 World Conference on Human Rights and its Vienna Declaration and Programme of Action[33] are not usually and properly recognized in the hegemonic discourses on this jurisgenesis. However, this was a key-moment (one could even argue the key-moment) from a legal point of view. After all, such a UN-promoted stage, reuniting delegates from 171 States and observers from 813 NGOs (alongside another 2.000 NGOs in a Parallel Forum), is simultaneously the most legitimized, inclusive, and democratic forum to ever redefine the signifier (therefore, far more than even the UDHR).
In the Nineties, with the fall of a bipolar world and the growing dangers of a monopolistic and totalitarian worldview taking over, Human Rights were in serious danger of a setback, returning them to the hegemonic domain from which they had escaped in the Sixties and Seventies. Thus, a new legal impulse needed – and this is where the 1993 World Conference sets the third ‘stage’. With its Declaration, ‘Human Rights’ became officially whole again – more importantly, since then they have been undoubtedly universal and legally binding, refuting old sovereigntists and isolationists views. This Conference not only acknowledged Human Rights to be a ‘global theme’ uniting State and non-State actors, but diplomatically recognized the radical universality of those Rights as a consensus omnium gentium, a proper ius totius orbi.
As José Lindgren Alves clearly depicted,[34] the above-mentioned division among International Covenants and regional jurisdiction (not to mention the damaging hierarchy that frames Human Rights in three or four generations…) was officially superseded by a consensus on their universality, indivisibility, interdependence, and inter-relationship[35] – thus, returning to the original intention of the Charter and the UDHR. More than an ‘overlapping consensus’, this was a radical elliptical move, expressly legalized in articles 1 and 5 of this Declaration.[36] Truthfully, even the ‘colonial clause’ inherited from the Charter was here overcome, through article 2 and article 4.[37] Ours is a world where Human Rights have no nationality and do not meet any frontiers.
It took almost fifty years, but the normative horizon for such a legal revolution – the jurisgenesis of the signifier Human Rights – was completed. Vienna consensually and democratically closed the gap, finishing what had been envisioned in San Francisco by some vanguardists ‘small’ States and NGOs.
Concluding remarks
There is an urgency to deconstruct the legal mythology surrounding Human Rights – although exposing the jurisgenesis of its key-signifier is just one of the introductory steps. Human Rights lack time because we all lack time: an autophagic Humankind already set in motion too many global changes that may not be undone. Thus, we must keep aiming for a revolutionary praxis of Human Rights, which has to be grounded in proper revolutionary theory (alas, as the agents mentioned in the ‘ad interim stage’ did in their time), to quote by analogy the Leninist classic statement.[38] Otherwise, Human Rights are in danger of being the last legal utopia, as Samuel Moyn has predicted.[39] Probably the best legal utopia proprio sensu ever created[40] – but nonetheless one which will not have time to be fulfilled.
The world has changed a lot since 1945. We are facing different challenges, although not necessarily new ones. Even the refugee crisis and the suicidal ecological epoch of the Anthropocene are the heritage of old and present choices. Among other needs, we are still lacking a proper general understanding (non-Eurocentric, non-Orientalist, non-neoliberal) of the jurisgenesis of Human Rights – including a ‘pedagogical turn’ on the subject. After all, the most enduring revolutions are the ones of the common sense.
The Charter of the UN created a program for a new world order, focusing on common problems and common goods – and legally binding, as stated in article 56, following article 55! Of course, it had (and still has) many defects, but legally there is not anything else that compares to this Charter. And it does not seem feasible that it can be replaced by something better in the near future. Therefore, we must protect the Charter by keeping it ‘alive’. The younger generations should not merely commemorate it – we ought to claim it: it is not a dead letter, by any means. Even more than just united nations – a united Humanity: made also from non-State actors, as it is already obvious that the alternative is our common extinction. Consequently, from a critical legal point of view, the perennial question regarding the Charter is still the same (although even more important, nowadays), after more than seven decades: how should we use such a ground-breaking legal document in order to transform the Realpolitik of the international community towards a more just, peaceful and ecologically sustainable global society. Simply put, making sure that all UN State members comply with the Charter and its program, stop ignoring it,[41] honour their own compromises, and act in accordance with International Law.
[1] Miguel Almeida, PhD. is Invited Assistant Professor at the School of Technology and Management, Polytechnic of Leiria (Portugal). His research interests focus mainly on Philosophy of Human Rights, Critical Legal Thinking and Cultural Legal Studies. He is a member of the APJD, the Portuguese branch of the IADL. Contact: miguel.almeida@ipleiria.pt
[2] Available in <https://www.un.org/en/about-us/un-charter/full-text>.
[3] Vide Walter D. Mignolo, The Darker Side of Western Modernity. Global Futures, Decolonial Options, USA: Duke University Press, 2011.
[4] The original tittle of Ernst Bloch’s major oeuvre, 1959 Das Prinzip Hoffnung (The Principle of Hope).
[5] ‘Polygenesis’ would also be a very suitable term. Notwithstanding, in this short essay the international legal texts are the ones in the spotlight. Which also means that I am only focused on what is written namely in the Charter, not with what the UN is doing – or not doing – in order to respect it.
On the notion of jurisgenesis see inter alia Robert Cover, Derecho, narración y violencia. Poder constructive y poder destructive en la interpretación judicial, Barcelona: Gredisa, 2002 [1993], p. 25-74.
[6] As is well-known, there is by now a humongous quantity (and quality…) of genealogies regarding Human Rights: some with an historiographic approach (even opposing a ‘linguistic turn’ to a ‘contextual turn’), others with a philosophical one (facing natural law against modern international law), and so on. For a showcase, see e.g. Pamela Slotte, Miia Halme-Tuomisaari (ed.), Revisiting the Origins of Human Rights, UK: Cambridge University Press, 2015; for a synthetic review see e.g. M.ª Esther Martínez Quinteiro, ‘El discurso de los derechos humanos en perspectiva histórica. El síndrome de la Torre de Babel’, in María Pando Ballesteros, Alicia Muñoz Ramírez, Pedro Garrido Rodríguez (dir.), Pasado y Presente de los derechos humanos. Mirando al Futuro, Madrid: Catarata, 2016, p. 41-59.
[7] Inter alia see e.g. José-Manuel Barreto, ‘Decolonial Thinking and the Quest for Decolonising Human Rights’, Asian Journal of Social Science, 46 (2018), p. 484-502.
[8] Vide Carl Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum, USA: Telos Press, 2006 [1950].
[9] Vide Eric Hobsbawm, ‘The universalism of the Left’ (1996), in Micheline R. Ishay (ed.), The Human Rights Reader. Major Political Essays, Speeches, and Documents from Ancient Times to the Present, USA: Routledge, 2007 (2nd ed.), p. 402-404.
[10] A/CONF.157/22 (July 12, 1993).
[11] For philosophical and political reasons, I do not depart (legal) theory from (legal) practice. Regarding the dichotomy Critical Legal Theory/Critical Legal Practice, see the debate between Bill Bowring and Robert Knox, in the Finnish Yearbook of International Law, 22 (2011) – respectively, ‘What is Radical in “Radical International Law”?’ (p. 3-29) and ‘What is to be Done (with Critical Legal Theory)?’ (p. 31-47).
[12] Inter alia see e.g. Sol Piccioto, ‘International Law: The Legitimation of Power in World Affairs’, in Paddy Ireland, Per Laleng (ed.), The Critical Lawyer’s Handbook 2, UK: Pluto Press, 1997, p. 13-29; and Wade Mansell, ‘Pure Law in an Impure World’, idem, p. 30-45.
[13] Hoc sensu José Lindgren Alves, Os Direitos Humanos como Tema Global, Sao Paulo: Perspectiva, 2003 (2nd ed.), p. 1-22; idem, Os Direitos Humanos na Pós-Modernidade, Sao Paulo: Perspectiva, 2005, p. 43-63; Micheline R. Ishay, The History of Human Rights. From Ancient Times to the Globalization Era, USA: University of California Press, 2008, p. 245-355; Anderson Vichinkeski Teixeira, Francisco S. Campelo Filho, ‘A Evolução dos Direitos Humanos sob os Influxos dos Processos de Globalização’, Revista de Direitos Fundamentais e Democracia, 16(16), 2014, p. 184-199.
[14] Vide Giuseppe Tomasi di Lampedusa, Il gattopardo (1958).
[15] See e.g. Johannes Morsink, The Universal Declaration of Human Rights. Origins, Drafting, and Intent, USA: University of Pennsylvania Press, 1999.
[16] As is usually presented, this Charter was preceded by ‘The Four Freedoms’ Address to the USA Congress (January 6, 1941), by President Franklin D. Roosevelt. Then, the new world order of the Atlantic Charter was properly announced on August 14 – thus before the USA enter the conflict. It was followed by the 1942 Declaration by United Nations; by the 1943 Moscow Declarations; by the 1944 Dumbarton Oaks Conferences; and by the 1945 Yalta Conference. Since these events exclusively reunited the ‘bigger’ nations, the ‘small’ and ‘medium’ States had to protest beforehand, and dozens of them met priorly to the San Francisco Conference in order to make changes and recommendations to the upcoming Charter. Even during the Conference these countries publicly voiced their disenchantment, and they gained support from many public figures, as Mahatma Gandhi, Ho Chi Minh, Kwame Nkrumah and W.E.B. Du Bois. One of their victories was precisely the inscription of Human Rights in the Charter! Thus, however not properly recognized by the hegemonic discourse on Human Rights, the role of NGOs was absolutely essential, even before such primal stage – see inter alia Jan Herman Burgers, ‘The Road to San Francisco: The Revival of the Human Rights Idea in the Twentieth Century’, Human Rights Quarterly, 14(4) (1992), p. 447-477.
On another sidenote, it ought not be forgotten that the economic world order had also changed around this time, particularly the new stage of modern Capitalism, born of the 1944 Bretton Woods Agreement. Three key-institutions came to life there: the International Monetary Fund, the World Trade Organization and the World Bank. On this, see inter alia German M. Sandoval Trigo, ‘La conferencia de Bretton Woods: imperialismo y orígenes del capitalismo financiero’, in Enrique Prieto-Rios, Paola Acosta Alvarado (ed.), Repensar la educación en derecho internacional en América Latina: avances y discusiones en 2019, Colombia: Editorial Universidad de Rosario, 2020, p. 123-151.
[17] See inter alia Stephen Wertheim, ‘Instrumental Internationalism: The American Origins of the United Nations, 1940-3’, Journal of Contemporary Law, 54(2) (2019), p. 265-283; Marjorie Cohn, ‘The US is still violating the UN Charter After 70 Years’, International Review of Contemporary Law, 1(2) (2016), p. 8-10; Dinorah la Luz Feliciano, ‘The Case of Puerto Rico Under the United Nations Charter’, idem, p. 25-32.
[18] On this issue, see inter alia Miguel Régio de Almeida, ‘Between memoricide and revisionism: subsidies towards a pedagogical turn on the Universal Declaration of Human Rights’, International Review of Contemporary Law, 2(3) (2020), p. 61-67. Let us just recall that the delegates writing the UDHR declined the famous inquiry made by the UNESCO committee on the common convictions regarding ‘Human Rights’. Their aim was that the UDHR should proclaim a radically new signifier, detached from previous conceptions and traditions of legality, philosophy, and religiosity.
[19] As was deductible, different courts inevitably led to different interpretations of ‘Human Rights’, following either a progressive or a conservative (if not reactionary) approach to the field and the signifier. The first one to emerge, the European Court of Human Rights, illustrated paradigmatically such ideological tension: see inter alia Marco Duranti, ‘Conservatives and the European Convention of Human Rights’, in Norbert Frei, Annete Weinke (ed.), Towards a New Moral World Order? Menschenrechtspolitik und Völkerrecht seit 1945, Göttingen: Wallstein, 2013: p. 82-93; idem, The Conservative Human Rights Revolution. European Identity, Transnational Politics, and the Origins of the European Convention, USA: Oxford University Press, 2017.
[20] Whose 1919 Covenant was clearly neo-colonialist, thus not solving the key-issues from the First (part of the) World War.
[21] See Inter alia Susan Waltz, ‘Universalizing Human Rights: The Role of Small States in the Construction of the Universal Declaration of Human Rights’, Human Rights Quarterly, 23(1) (2001), p. 44-72.
[22] See inter alia Micheline Ishay, op. cit., p. 211-225; Manuel de Almeida Ribeiro, Mónica Ferro, A Organização das Nações Unidas, Coimbra: Almedina (2nd ed.), 2016, p. 59-68; Roland Weyl, ‘La Charte Des Nations Unies, Fondement du droit international’, International Review of Contemporary Law, 1(2) (2016), p. 4-7; Norman Paech, ‘70 years of the UN Charter’, idem, p. 11-12.
[23] For such an important topic, see inter alia Micheline R. Ishay, op. cit., p. 181-205; Bill Bowring, ‘The Rights to Self-Determination’, Socialist Lawyer, 53 (2009), p. 18-20; idem, ‘Marx, Engels, Lenin, and the Right of Peoples to Self-Determination in International Law’, in Paul O’Connell, Umut Özsu (ed.), Elgar Handbook on Law and Marxism, forthcoming.
[24] Vide Chapters XII to XIII (articles 75 to 91).
[25] Vide Samuel Moyn, The Last Utopia: Human Rights in History, USA: Belknap Press of Harvard University Press, 2012.
[26] Vide Carol Anderson, Eyes Off the Prize. The United Nations and the African American Struggle for Human Rights, 1944-1955, USA: Cambridge University Press, 2003; idem, Bourgeois Radicals. The NAACP and the Struggle for Colonial Liberation, 1941-1960, USA: Cambridge University Press, 2015.
[27] Vide Roland Burke, Decolonization and the Evolution of International Human Rights, USA: University of Pennsylvania Press, 2010.
[28] Vide Steven Jensen, The Making of International Human Rights. The 1960s, Decolonization, and the Reconstruction of Global Values, UK: Cambridge University Press, 2016.
[29] Vide Vijay Prashad, The Darker Nations: A People’s History of the Third World, USA: The New Press, 2007.
[30] Vide Luis Eslava, Michael Fakhri, Vasuki Nesiah (ed.) Bandung, Global History, and International Law. Critical Pasts and Pending Futures, USA: Cambridge University Press, 2017.
[31] Article 1: 1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence. 3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.
[32] Although such recognition would only come properly with the 2007 UN Declaration on the Rights of Indigenous Peoples.
[33] Available in <https://www.ohchr.org/en/professionalinterest/pages/vienna.aspx>.
[34] Vide José Lindgren Alves, Os Direitos Humanos como Tema Global, op. cit., p. XLV-XLVI, 23-35; idem, Os Direitos Humanos na Pós-Modernidade, op. cit., p. 1-20, 62-63, 156-166, 207-208.
[35] One ought not forget that the 1968 Proclamation of Teeheran (the Final Act of the International Conference on Human Rights – UN Doc. A/CONF. 32/41) already stated such inseparability:
Article 13: Since human rights and fundamental freedoms are indivisible, the full realization of civil and political rights without the enjoyment of economic, social and cultural rights is impossible. The achievement of lasting progress in the implementation of human rights is dependent upon sound and effective national and international policies of economic and social development[.]
[36] Article 1: The World Conference on Human Rights reaffirms the solemn commitment of all States to fulfil their obligations to promote universal respect for, and observance and protection of, all human rights and fundamental freedoms for all in accordance with the Charter of the United Nations, other instruments relating to human rights, and international law. The universal nature of these rights and freedoms is beyond question.
In this framework, enhancement of international cooperation in the field of human rights is essential for the full achievement of the purposes of the United Nations.
Human rights and fundamental freedoms are the birthright of all human beings; their protection and promotion is the first responsibility of Governments.
Article 5: All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.
[37] Article 2: All peoples have the right of self-determination. By virtue of that right they freely determine their political status, and freely pursue their economic, social and cultural development.
Taking into account the particular situation of peoples under colonial or other forms of alien domination or foreign occupation, the World Conference on Human Rights recognizes the right of peoples to take any legitimate action, in accordance with the Charter of the United Nations, to realize their inalienable right of self-determination. The World Conference on Human Rights considers the denial of the right of self-determination as a violation of human rights and underlines the importance of the effective realization of this right.
In accordance with the Declaration on Principles of International Law concerning Friendly Relations and Cooperation Among States in accordance with the Charter of the United Nations, this shall not be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a Government representing the whole people belonging to the territory without distinction of any kind.
Article 4: The promotion and protection of all human rights and fundamental freedoms must be considered as a priority objective of the United Nations in accordance with its purposes and principles, in particular the purpose of international cooperation. In the framework of these purposes and principles, the promotion and protection of all human rights is a legitimate concern of the international community. The organs and specialized agencies related to human rights should therefore further enhance the coordination of their activities based on the consistent and objective application of international human rights instruments.
[38] Hoc sensu Robert Knox, op. cit.
[39] Vide also Samuel Moyn, Human Rights and the Uses of History, USA: Verso, 2014; idem, Not Enough. Human Rights in an Unequal World, USA: Belknap Press of Harvard University Press, 2018.
[40] I agree with Jesús Lima Torrado when he writes (in ‘El significado de utopía y su concreción en el sistema de derechos humanos’, in Pasado y Presente de los derechos humanos. Mirando al Futuro, op. cit., p. 103-114) that ‘los derechos humanos representan hoy la máxima potencialidade de lo utópico, en el contínuo processo histórico de asimilación del Sein y del Sollen, del Ser y del Deber ser, de lo históricamente consumado y lo históricamente por realizar.’
[41] See inter alia Robert Charvin, ‘Contournement, violations et ignorance de la Charte des Nations Unies’, International Review of Contemporary Law, 1(2) (2016), p. 13-16; Géraud de Geouffre de la Pradelle, ‘La Palestine et la Charte des Nations Unies’, idem, p. 17-20; Phyllis Bennis, ‘The Paris Climate Talks, the UN, Terrorism, and the Global War on Terror’, idem, p. 33-37.
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