Virtual Library

A Most Uncertain Crusade traces and analyzes the emergence of human rights as both an international concern and as a controversial domestic issue for US policy makers during and after World War II. Rowland Brucken focuses on officials in the State Department, at the United Nations, and within certain domestic non-governmental organizations, and explains why, after issuing wartime declarations that called for the definition and enforcement of international human rights standards, the US government refused to ratify the first UN treaties that fulfilled those twin purposes. The Truman and Eisenhower administrations worked to weaken the scope and enforcement mechanisms of early human rights agreements, and gradually withdrew support for Senate ratification. A small but influential group of isolationist–oriented senators, led by John Bricker (R-OH), warned that the treaties would bring about socialism, destroy white supremacy, and eviscerate the Bill of Rights. At the UN, a growing bloc of developing nations demanded the inclusion of economic guarantees, support for decolonization, and strong enforcement measures, all of which Washington opposed. 

Prior to World War II, international law considered the protection of individual rights to fall largely under the jurisdiction of national governments. Alarmed by fascist tyranny and guided by a Wilsonian vision of global cooperation in pursuit of human rights, President Roosevelt issued the Four Freedoms and the Atlantic Charter. Behind the scenes, the State Department planners carefully considered how an international organization could best protect those guarantees. Their work paid off at the 1945 San Francisco Conference, which vested the UN with an unprecedented opportunity to define and protect the human rights of individuals. 

After two years of negotiations, the UN General Assembly unanimously approved its first human rights treaty, the Genocide Convention. The UN Commission on Human Rights (UNCHR), led by Eleanor Roosevelt, drafted the nonbinding Universal Declaration of Human Rights in 1948. Subsequent efforts to craft an enforceable covenant of individual rights, though, bogged down quickly. A deadlock occurred as western nations, communist states, and developing countries disagreed on the inclusion of economic and social guarantees, the right of self-determination, and plans for implementation. 

Meanwhile, a coalition of groups within the United States doubted the wisdom of American accession to any human rights treaties. Led by the American Bar Association and Senator Bricker, opponents proclaimed that ratification would lead to a U.N. led tyrannical world socialistic government. The backlash caused President Eisenhower to withdraw from the covenant drafting process. Brucken shows how the American human rights policy had come full circle: Eisenhower, like Roosevelt, issued statements that merely celebrated western values of freedom and democracy, criticized human rights records of other countries while at the same time postponed efforts to have the UN codify and enforce a list of binding rights due in part to America's own human rights violations.

The issue of racist or hate speech engages both Article 10 and Article 17 of the European Convention on Human Rights. The early admissibility decisions of the Commission, invoking Article 17 alone, or Article 10 in conjunction with Article 17, reflected a confused understanding of the relationship between the provisions. The Lehideux and Isorni vs France (1996) judgement of the European Court of Human Rights clarified that Article 17 applies only in the context of Holocaust denial and related questioning of historical facts, and as a result, racist or xenophobic speech against minorities is protected under Article 10(1) of the Convention. The article asks whether all racist speech should find protection under Article 10(1), interference being allowed only when balanced against the conditions of Article 10(2); or whether all such speech should be condemned and attacked under Article 17. The philosophical arguments and legal implications of both approaches are analysed. Finally, the desire to protect criticism of religion at the European level is explored in the context of the ‘Danish cartoons' controversy and the evolving meaning of the term ‘hate speech’.

Evidence for Hope makes the case that, yes, human rights work. Critics may counter that the movement is in serious jeopardy or even a questionable byproduct of Western imperialism. They point out that Guantánamo is still open, the Arab Spring protests have been crushed, and governments are cracking down on NGOs everywhere. But respected human rights expert Kathryn Sikkink draws on decades of research and fieldwork to provide a rigorous rebuttal to pessimistic doubts about human rights laws and institutions. She demonstrates that change comes slowly and as the result of struggle, but in the long term, human rights movements have been vastly effective. Attacks on the human rights movement’s credibility are based on the faulty premise that human rights ideas emerged in North America and Europe and were imposed on developing southern nations. Starting in the 1940s, Latin American leaders and activists were actually early advocates for the international protection of human rights. Sikkink shows that activists and scholars disagree about the efficacy of human rights because they use different yardsticks to measure progress. Comparing the present to the past, she shows that genocide and violence against civilians have declined over time, while access to healthcare and education has increased dramatically. Cognitive and news biases contribute to pervasive cynicism, but Sikkink’s investigation into past and current trends indicates that human rights is not in its twilight. Instead, this is a period of vibrant activism that has made impressive improvements in human well-being. Exploring the strategies that have led to real humanitarian gains since the middle of the twentieth century, Evidence for Hope looks at how these essential advances can be supported and sustained for decades to come.

Since the Treaty of Westphalia in 1648 the refugee regime has evolved with our modern state system, reflecting changes in international law, politics, economics and ideology. Responding to a history of religious and political persecutions, a comprehensive refugee regime finally emerged under the League of Nations after World War I. This regime underwent dramatic change during World War II to create a permanent framework to cope with the refugee problem through the United Nations High Commissioner for Refugees and the UN Convention Relating to the Status of Refugees. The Cold War had an overwhelming influence on the norms and rules of this regime, and in the post‐Cold War era the regime has struggled to reflect and adapt to emerging global concerns — from internally displaced persons to gender and race distributional issues. As UNHCR is forced to reconsider its definitions, laws, and policies, the larger evolving regime must give way to a form of global governance in which the international authority of the UN body has more meaningful influence on the implementation of national law and policy.

The Universal Declaration on Human Rights was pivotal in popularizing the use of ‘dignity’ or ‘human dignity’ in human rights discourse. This article argues that the use of ‘dignity’, beyond a basic minimum core, does not provide a universalistic, principled basis for judicial decision-making in the human rights context, in the sense that there is little common understanding of what dignity requires substantively within or across jurisdictions. The meaning of dignity is therefore context-specific, varying significantly from jurisdiction to jurisdiction and (often) over time within particular jurisdictions. Indeed, instead of providing a basis for principled decision-making, dignity seems open to significant judicial manipulation, increasing rather than decreasing judicial discretion. That is one of its significant attractions to both judges and litigators alike. Dignity provides a convenient language for the adoption of substantive interpretations of human rights guarantees which appear to be intentionally, not just coincidentally, highly contingent on local circumstances. Despite that, however, I argue that the concept of ‘human dignity’ plays an important role in the development of human rights adjudication, not in providing an agreed content to human rights but in contributing to particular methods of human rights interpretation and adjudication.

The closing months of his presidency, Bill Clinton and some of his entourage have taken to using the buzzphrase "human and political rights" to replace the simpler "human rights. Despite attempts to base the rights on "nature", in most cases they—by their very design—either run counter to nature or, at best, concern things about which nature is strictly neutral. There is nothing wrong with defining rights in terms of high human aspirations, but they will then require a very different justification from rights based on human needs. They involve, in effect, a purely teleological justification: human rights become the rights we need in order to achieve a certain desired end state of society, not rights derived from the elusive state of true humanness. One of the major paradoxes surrounding the human rights issue is that it became central to foreign policy as part of a deliberate strategy to protect the national interest.

This book explains and critiques the position adopted by the UK Supreme Court on disputes involving human rights, especially those protected by the Human Rights Act 1998. Building upon the fact that the UK Supreme Court, which began operating in 2009, has inherited case law developed over many decades by the Appellate Committee of the House of Lords, the book considers whether the Supreme Court’s current views are internally consistent and externally in line with the standards adopted by the European Court of Human Rights in Strasbourg. After three chapters which describe the origins of the Supreme Court and analyse its jurisprudence on the concept of human rights and on the procedural dimensions of the Human Rights Act 1998, the book examines how the Court (and the House of Lords before it) has interpreted the principal Convention rights that are given effect in UK law by the 1998 Act. It finds in relation to almost every right that the top UK court has been unduly cautious and restrained, either because it does not wish to tread on the toes of Parliament or because it is unwilling to go further in protecting human rights than the European Court of Human Rights has already gone. The book pays particular attention to instances in which decisions of the top domestic court have been overturned in Strasbourg and to the occasions on which there has been a prolonged ‘dialogue’ between the two courts over a contentious issue.

As Arthur Schlesinger, Jr. wrote, "The United States was founded on the proclamation of 'unalienable' rights, and human rights ever since have had a peculiar resonance in the American tradition." But the American fondness for human rights rhetoric has presented two fundamental problems in foreign policy. As first a reluctant great power and then a more willing superpower, the United States has faced the traditional conflict between commitment to human values and exercise of power for other interests. Equally importantly in an interdependent and nonhegemonic world, the United States has painfully discovered that the American and international versions of human rights are not the same. This article traces the workings of these twin dialectics (rights rhetoric and national interests, and rights rhetoric and community standards) from 1945 to the present in order to suggest that the United States, despite its dominant power, has not been the major shaper of community standards or international regimes on human rights; the United States in its bilateral diplomacy is still struggling to locate precisely human rights on its foreign policy agenda; the Congress, while it still does not codetermine human rights in foreign policy, is ignored and by-passed only at peril for an administration. Ultimately this article suggests that some painful political socialization is in store for the United States when it deals with human rights in foreign policy, especially since human rights in its many and complex forms is here to stay on both the U.S. and global agendas.

The author argues the concept of human rights is a development of the older notion of natural rights and that the modern understanding of natural rights evolved in the context of the European struggle to legitimate its overseas empires. The French Revolution changed this by, in effect, linking human rights to the idea of citizenship. Human rights were thus tied not only to a specific ethical-legal code but also implicitly to a particular kind of political system, both of inescapably European origin. In both cases, however, being employed was an underlying idea of universality whose origins are to be found in the Greek and Roman idea of a common law for all humanity. He ends by arguing that to defend human rights against its non-Western critics, one must be aware of the genealogy of the concept and then be prepared to endorse an essentially Western European understanding of the human.

Increasingly hard-line and restrictive asylum policies and practices of many governments call into question the scope of protections offered by the 1951 Convention relating to the Status of Refugees. Has the focus on the 1951 Convention been to the detriment and subordination of other rights and standards of treatment owed to refugees and asylum-seekers under international human rights law? Which standard applies in the event that there is a clash or inconsistency between the two bodies of law? In analysing the interface between international refugee law and international human rights law, this article looks at the right to family life and the right to work. Through this examination, content and meaning is offered to the almost forgotten component of the right ‘to enjoy’ asylum in Article 14(1) of the Universal Declaration of Human Rights 1948.