This article was downloaded by: [Arizona State University]On: 30 June 2012, At: 11:02Publisher: RoutledgeInforma Ltd Registered in England and Wales Registered Number: 1072954 Registered office: Mortimer House,37-41 Mortimer Street, London W1T 3JH, UK

Australian Journal of International AffairsPublication details, including instructions for authors and subscription information:http://www.tandfonline.com/loi/caji20

A half century of human rightsRichard Falk aa Albert G. Milbank Professor of International Law and Practice, Princeton University

Version of record first published: 20 Mar 2008

To cite this article: Richard Falk (1998): A half century of human rights, Australian Journal of International Affairs, 52:3,255-272

To link to this article: http://dx.doi.org/10.1080/10357719808445256

PLEASE SCROLL DOWN FOR ARTICLE

Full terms and conditions of use: http://www.tandfonline.com/page/terms-and-conditions

This article may be used for research, teaching, and private study purposes. Any substantial or systematicreproduction, redistribution, reselling, loan, sub-licensing, systematic supply, or distribution in any form toanyone is expressly forbidden.

The publisher does not give any warranty express or implied or make any representation that the contentswill be complete or accurate or up to date. The accuracy of any instructions, formulae, and drug doses shouldbe independently verified with primary sources. The publisher shall not be liable for any loss, actions, claims,proceedings, demand, or costs or damages whatsoever or howsoever caused arising directly or indirectly inconnection with or arising out of the use of this material.

Australian Journal of International Affairs, Vol. 52, No. 3, 1998

A Half Century of Human Rights

RICHARD F A L K

(Albert G. Milbank Professor of International Law and Practice, Princeton University)

Fifty years of background: a tentative balance sheet

Although human rights are affirmed in the United Nations Charter in very general language,their operative reality was not specified, and their overall role in international political lifewas deemed marginal in the aftermath of World War II (Weston et al. 1997a; Ott1987:143).1 This marginality existed in 1945 in the face of the vivid disclosures of the Naziera, as well as the surfacing of a vague aura of guilt hovering over Western liberaldemocracies. This guilt was associated with their prolonged forbearance in relation to NaziGermany so long as Hitler's atrocious crimes were directed at his own citizenry. Despite thismood, the foundation of world order continued to rest very much on the territorial logic ofstates, in conjunction with the supportive doctrine of sovereignty and the ideology ofnationalism.2 A major implication of this logic was that the internal arrangements andpolicies of states were never properly subject to external accountability.3 The UN Charterconfirmed this statist feature of world order in Article 2(7) by reassuring its members that itlacked the authority to intervene in matters that were 'essentially within the domestic

1 Prior to World War II, practices associated with protecting aliens and their property could be considered,in some respects, as antecedents to the emergence of the international protection of human rights. Thesepractices, known as 'diplomatic protection of aliens abroad' and 'capitulations', were explicitlyassociated with the colonial era, providing interventionary support for individuals whose rights wereendangered by the 'independent' countries in Latin America or by exempting Europeans from territorialapplications of criminal law in Asia. Status of Forces Agreements that partially exempt United Statesmilitary personnel from territorial application of criminal law have been criticised for these reasons.The main point here is that international law made some effort to uphold the economic, political, andsocial rights of individuals, and, even if Eurocentric in its implementation, initiated a rights discoursein international relations. Additionally, as such individuals were generally supported by theirgovernments, enforcement capabilities existed, although their application was not a right of theindividual, but dependent on a policy assessment by the state.

2 Of course, nationalism and statism are not identical, although the state has done its best to co-optnationalist identities both by the embrace of secularism and through control over the status of juridicalnationality. It is obvious that tensions persist between dominant and subordinate nationalisms caughtwithin the boundaries of a given state. These tensions have strong human rights implications, whichwill be discussed.

3 Of course, the internal accountability of a government for abuses of the rights of its citizens goes backat least as far as the American and French Revolutions in the late eighteenth century. The FrenchRevolution's rhetoric of 'the rights of man', leaving aside its gendered formulation, most directlyanticipates the thinking that underlies 'human rights' as the foundation of external accountability. Ifeven a conservative thinker such as Hobbes acknowledged a right of revolution in reaction to tyrannicalgovernment, the rationale for humanitarian intervention in response to genocidal practices andwidespread crimes against humanity becomes more readily understandable as a limitation uponterritorial sovereignty.

0004-9913/98/030255-18 © 1998 Australian Institute of International Affairs 255

Dow

nloa

ded

by [

Ari

zona

Sta

te U

nive

rsity

] at

11:

02 3

0 Ju

ne 2

012

RICHARD FALK

jurisdiction' of states. This prohibition was subject only to qualification relating to theoverriding responsibility of the UN acting under Chapter VII of the Charter to maintaininternational peace and security.

Even the original articulation of international human rights in the form of the UniversalDeclaration of Human Rights 50 years ago was not initially perceived to be a significantdevelopment. The norms affirmed contributed a comprehensive compilation of various legaland moral ideas about state/society/individual relationships. This enumeration of standardswas, at most, conceived as an admonishment to governments and, more relevantly, as a kindof heterogeneous wish list cobbled together by representatives of liberal individualism andcollectivist socialism. In effect, at birth, the Declaration amounted to a rather innocuous andsyncretist statement of consensus about desirable societal goals and future aspirations forhumanity as a whole, but formulated as if self-regarding states in a world of gross materialdisparities did not exist. Also, it should be appreciated that by using the language of'declaration' and by avoiding all pretensions of implementation, a clear signal was given thatthe contents were not to be treated as necessarily authoritative and binding (Weston et al.1997b: 375-9, 428-34, 435-45).4

Perhaps more damaging was the patent hypocrisy that was manifest with respect to theissuance of the Universal Declaration. Many of the endorsing governments were, at the time,imposing control over their society in a manner that systematically ignored or repudiated thestandards being affirmed by the Declaration. It was not only the Soviet Union and thecountries under its sway that seemed resolutely opposed to upholding the main thrust of theDeclaration as it pertained to the rights of individuals in relation to the state. Theparticipation of the colonial powers of Europe was also beset by contradiction, given theirrole at the time in holding most of the peoples of Asia and Africa under their dominion bymeans of oppressive rule. Furthermore, the military dictatorships that then dotted the politicallandscapes in Latin America never could have intended to take seriously a series of humanrights standards which, if even loosely applied, would undermine their authoritarian style ofrule. So, from the outset of these moves 50 years ago to make the observance of human rightsa matter of international law, there were strong grounds for scepticism as to whether to regardthe development as nominal rather than substantive. A note of scepticism could not beavoided given the patterns of governance that existed around the world. Only the most naivelegalist would avoid the implication of an obvious rhetorical question—why did oppressivegovernments agree to such an elaborate framework for human rights unless their leaders wereconvinced that the Universal Declaration was nothing more than a paper tiger?

In fact, the resistance to this process of intemationalisation of human rights is even moredeeply rooted and pervasive than the considerations so far mentioned. A country like the US,with its strong domestic constitutional and ideological commitment to human rights, hasseveral awkward skeletons in its closet, including slavery, racial discrimination and ethnoci-dal policies pursued against native American people. Also, the US government has beennotably laggard with respect to formal adherence to the very international legal frameworkthat it invokes against others. It has generally viewed human rights standards as important

4 Over time, this legal status has changed as a result of the widespread acceptance of the norms containedin the Declaration as authoritative. The incorporation of the Declaration in the constitutions of manynewly independent developing countries, its frequent citation, and its treatment by scholars as expressiveof jus cogens, endowed the Declaration with an obligatory character in international law with the passageof time. Such an evolution occurred without any very careful scrutiny of its specific standards or thedegree to which they were accepted by states as obligatory. A second step in this evolution was thereformulation of human rights standards in a treaty form, and their broad separation reflecting East/Westideological differences.

256

Dow

nloa

ded

by [

Ari

zona

Sta

te U

nive

rsity

] at

11:

02 3

0 Ju

ne 2

012

Half Century of Human Rights

for the South, but superfluous for the countries of the North, and certainly unnecessary withrespect to the internal political life of the US. The confusingly one-sided message that hasbeen sent by the most powerful state in the world is that human rights are conceived as,almost exclusively, an instrument of foreign policy. In effect, human rights are a series ofobligations for others, although their concerns purport to be mainly domestic, i.e. the relationsof state and society.

Official spokespersons for China took evident satisfaction in pointing out several yearsago that it was strange for Washington to present itself as the world champion ofinternational human rights. After all, the record showed that China had ratified 17 majorhuman rights treaties while the US had only managed to ratify 15. There are, in other words,strong sources of sovereignty-oriented resistance to the internationalisation of human rightseven on the part of major liberal democracies, based on the idea that a sovereign peopleshould never confer any legal authority on an international body external to the state.5 Thissubordination of human rights to the abstraction of sovereignty has been systematicallychallenged only within the comfortable confines of the European Union. In this setting, thecommonality of outlook among the members and a longstanding alliance underpinning it hasproduced a political community that upholds human rights in a form that anticipates theirimplementation by recourse to the European Commission of Human Rights and the EuropeanCourt of Human Rights. Such a breakthrough in the internationalisation of protection forhuman rights is conceptually irreconcilable with the Westphalian logic of world order.

European exceptionalism aside, for the rest of the world, regardless of their commitmentto constitutional democracy as the foundation of domestic public order, the internationalisa-tion of human rights remains minimal, and its prospect is still, to varying degrees,problematic (Kothari and Sethi 1989).6 Not only do the political and juridical aspects ofsovereignty and the prohibition on intervention get in the way, but there are a variety of othertypes of resistance that reflect the characteristics of state/society relation that pertain to theparticular country. While adherence to the framework of international human rights is awidely shared sentiment around the world that definitely informs the conduct of diplomacyand the language of statecraft, departures and resistances are evident in all parts of the world.Their special features vary from state to state, reflecting differences in history, culture, stageof development, domestic public order and many other factors.

Additionally, it is important to take account of some influential general patterns ofcriticism directed at the claim that the norms of international human rights law deserveunconditional respect. For one thing, several anti-hegemonic discourses have been challeng-ing the authority of human rights claims from a variety of perspectives. These criticaldiscourses are particularly persuasive in the post-colonial circumstances of many countries inthe South. Their general orientation is one of calling to mind the history of prior Westerncolonial abuse and exploitation, including intrusions on territorial space justified by inter-

5 Such concerns have united the governments of the US and China in their resistance to the establishmentof a truly independent International Criminal Court; major geopolitical actors, regardless of theirseeming commitment to law and humane governance, are very worried about diluting traditional notionsof sovereignty in relation to the external accountability of their own citizens.

6 The internationalisation of human rights is also an incomplete process even in states that claim theidentity of being a constitutional democracy, and are generally governed according to such an outlook.There are powerful cultural practices that may be difficult to overcome by reliance on law enforcement,especially relating to the treatment of women and children, and to social differentiations among classes,castes and religions.

257

Dow

nloa

ded

by [

Ari

zona

Sta

te U

nive

rsity

] at

11:

02 3

0 Ju

ne 2

012

RICHARD FALK

national law doctrines of protection of nationals abroad and capitulatory regimes. This lineof analysis contends that, despite the end of colonialism, this structure of dominance has beenessentially maintained, assuming more indirect and disguised forms. These discourses argueaccordingly that the promotion of human rights needs to be understood in its primary roleas an instrument of choice to validate renewed claims and innovative modalities ofintervention by the North in the South, although equally damaging and no less objectionable.In effect, current patterns of intervention are allegedly being shaped by the realities ofpost-colonialism.7 Furthermore, it is argued, along a quite independent line of reasoning, thatadherence to international human rights standards is not entirely warranted from either asubstantive or procedural viewpoint. If due account is taken of the facts surrounding theWestern origins and biases of international human rights standards, then their universalapplicability is drawn into question (Muzaffar 1993; Falk 1997a).

Perhaps the most serious of all constraints bearing on the application of internationalhuman rights norms is, in most respects, unappreciated; or, at least, is seldom articulated. Itarises directly from the realist orientation of the political elite that has continued to controlthe shaping of foreign policy on behalf of most states, and especially on behalf of those statesthat play the most active geopolitical roles. The realist frame of reference entertainsextremely serious, principled doubts about the relevance of law and morality to the properoperation of the state system. Realism is not easily reconciled with the human rights traditionunless such concerns are pragmatically invoked as an instrument of foreign policy, and eventhen only in a selective and opportunistic manner.

Alleging human rights violations has become a useful means for realists to indict foreignadversaries in a manner that generates media attention. In this way, exposing human rightsviolations often helps to prepare the ground for a later imposition of sanctions andgeopolitical recourse to other forms of hostile action. The realist outlook is reasonablyforthright about subordinating any commitment to international human rights to its strategicpriorities, including patterns of alignment and conflict. This deference to the interests of thestate has often given human rights a bad name in many circles, as their invocation andevasion by prominent governments seems opportunistic, and thereby lacking in substance andvalues-driven convictions. In this manner, the human rights rhetoric used by political leadersand diplomats causes an impression that is somewhat similar to that created when a filmsubstitutes dubbed voices in another language. A foreign language is superimposed on thesound track, but the lips of the actors on the screen are out of sync, moving with the rhythmsof the spoken language. Reverting to our concerns, the superimposed language is that ofhuman rights, but the lips of political authority are still moving according to the discordantlogic of geopolitics. It is this core interaction between different approaches to the action andidentity of the state that causes so much of the confusion and uncertainty about thesignificance of human rights and its future prospects.8 This is an unfortunate state of affairsas it encourages the formation of misleading polar attitudes as to the significance of human

7 These realities include the techniques, priorities and dominant ideas associated with the theory andpractice of economic globalisation, and rely on the pseudo-internationalist identity of the InternationalMonetary Fund (IMF) and other agents of global market forces.

8 To the extent that the mission of the state is to make the world more receptive to neo-liberal ideas, thenthe promotion of human rights in the sense of constitutionalism becomes a new type of 'strategicinterest'. However, if upholding human rights interferes with important market access and investmentopportunities, then pressure mounts to overlook the human rights abuses of trading partners. In the firstcontext, the state is acting on behalf of the overall neo-liberal program, while in the second, it isfurthering the more mercantilist goals of its citizens.

258

Dow

nloa

ded

by [

Ari

zona

Sta

te U

nive

rsity

] at

11:

02 3

0 Ju

ne 2

012

Half Century of Human Rights

rights: either the exaggerated expectations of human rights activists or the cynical dismissalof power-wielders.

Clinton and China

In many respects, the opposing faces of realist manipulation of human rights have both beenexemplified by the approach taken by the Clinton administration to its relationship withChina.9 So long as the issue of respect for human rights was one of domestic ideologicalposturing within the US, it seemed beneficial to highlight China's responsibility for thebloody crackdown of the democracy movement in Tiananmen Square in June 1989 and itsoverall miserable human rights record. But the attention of American political leaders beganto shift in 1997 to China's relevance to a successful recovery from the Asian crisis and asan economic superpower, as well as being a major trading partner. At that point, it becamedesirable to downplay China's human rights abuses and focus instead on the benefits arisingfrom what is now being called 'cordial engagement', to distinguish it from a colderdiplomatic approach that had been generally known as 'constructive engagement'.10

This shift in emphasis gave rise to extensive and often intemperate commentary inrelation to President Clinton's visit to China in June 1998. On the one side were those whofelt bitterly disappointed, a viewpoint strongly expressed by the former Chinese politicalprisoner, Wei Jingsheng: 'America has become the leader of a full Western retreat from thehuman rights cause in China. Clinton's decision to go to Beijing at this time sends a veryclear signal that he is more concerned with supporting the autocracy than with the democraticmovement in China. The timing of the West's abandonment of China's democratic move-ment could not be worse' (Wei 1998). The realist counter-attack was equally vigorous, andjust as uncompromising. Charles Freeman Jr., First Assistant Secretary of State of Defencefor International Security Affairs, insisted that it was time to approach China from a strategicviewpoint rather than persist with the feel-good human rights agenda: ' . . . the administrationaccepted that it was going to have to deal seriously with China, that China was more thana theme park for the human rights advocates and the Dalai Lama's followers' (Gellman1998). The unfortunate impression created by this remark strongly suggested that the earlierinsistence on human rights was an essentially frivolous way for the US to approach a stateof such size and importance as China. The moment had now arrived when the US neededto abandon a foreign-policy commitment in support of human rights so as to pursue its realinterests, which meant a mature approach that was based on economic opportunity and thecalculus of power relations in Asia.

Because realist priorities impinge, human rights activists are often disappointed by theirrecurrent inability to gain the commanding heights of policy making, especially when strongstrategic interests appear to point in an opposite direction. Those making the policy choicesare generally trying hard to diminish the impact of what they believe to be sentimental andideological concerns that should not, in most circumstances, be given too much weight if the

9 The US approach to human rights has exhibited various forms of contradiction over the years. Humanrights began to assume a high profile role in American foreign policy during the early years of the Carterpresidency (1976-78), partly as an expression of liberal conviction but also because, at the time, it servedto restore national self-esteem in the aftermath of the Vietnam War. By so highlighting human rights,whatever the initial motivations, encouragement was given to human rights activists throughout theworld, given the US leadership role. It also strengthened the role of human rights within the federalbureaucracy of the US. This convergence of political circumstances and support for human rights iswhat has periodically pushed implementation beyond the limits of earlier expectations.

10 This journalistic rephrasing pointed out that the critical side of engagement was muted and overriddenby the effort to exhibit friendship and respect, an acceptance of China's legitimacy, unlike the viewthat the process of engagement is justified because it is the best way to encourage a repudiation ofillegitimate modes of governance.

259

Dow

nloa

ded

by [

Ari

zona

Sta

te U

nive

rsity

] at

11:

02 3

0 Ju

ne 2

012

RICHARD FALK

practice of international relations is going to proceed in a rational manner. Confusion arisesbecause realists themselves 'use' human rights from time to time to accentuate positions ofhostility or to appease domestic pressure groups in relation to a particular country, raisingexpectations about its influence, and then abandon human rights concerns just as easily whenstrategic winds change direction. In these respects, the impact of the realist outlook ingeopolitics produces results that are often confusing and uncertain. Realism has given humanrights an important push from time to time, as occurred in the latter phases of the Cold War,abut realists are ever ready to shove human rights aside if the domestic mood changes orstrategic interest points in a different direction, contending that what is needed is a rationalassessment of interests relating to wealth and power. In some respect, what is required foran understanding of both the achievement and limits of international human rights is a 'Hindusensibility', i.e. forms of consciousness that are much more comfortable in the presence ofcontradiction than is the case for the Western mind that has been caught up in a dualisticworld view since the time of ancient Greece that insists that something is 'this' or 'that'. TheHindu perspective is attractive because it is so much more comfortable in saying that 'this'and 'that' are both true.

Beyond statism

It should be appreciated that the discussion has so far proceeded within the conventionalframework of a statist world order, with the impetus for norms and their implementationcoming from governmental and inter-govemmental action. As is now widely appreciated,such a focus on state action tells far from the whole story of the worldwide emergence ofhuman rights on the global agenda. This emergence owes much to the rise of transnationalhuman rights activism, which deserves major credit for avoiding a stillborn UniversalDeclaration. It is also relevant to take note of the success over time in making human rightsa major dimension of activity within the setting of the UN. The UN system has become muchmore firmly committed to the promotion of human rights than was the case in 1948 whenthe Universal Declaration was first made public. This rising curve of attention to humanrights was dramatised by the 1993 UN Conference on Human Rights and Development,Vienna, and followed shortly by the creation of the new UN post of High Commissioner onHuman Rights, a position now held by the former president of Ireland, Mary Robinson.

This background raises two main questions in this anniversary year of the UniversalDeclaration: why did governments ever agree in the first instance to subvert their ownterritorial sovereignty? And why, despite massive obstacles, has the field of internationalhuman rights evolved to the point where it is widely acknowledged to be of substantiveimportance and growing salience in the contexts of foreign policy and world order? In anintroductory manner, brief responses can be put forward. Governments accepted the Univer-sal Declaration in the first instance precisely because they thought that it would amount tonothing at all. This calculation turned out to be wrong because of the unanticipated activismof voluntary citizens associations, the emergence of a global visual media and the contendingideological claims of the superpowers in the various arenas of the Cold War. Human rightsbecame more politically potent than could have been anticipated 50 years ago.

As we stand poised on the threshold of a new millennium, a further question for carefulscrutiny concerns the future of human rights. Is it likely that the next 50 years are likely towitness the further inclusion of international human rights standards and implementingauthority within both formal and informal structures of global governance? Current trendsseem contradictory in many respects. This allows those who believe in the strengthening ofinternational human rights to find encouraging signs in growing attention and institutionalisa-tion. Similarly, those who believe that self-interest and power are the persisting mainsprings

260

Dow

nloa

ded

by [

Ari

zona

Sta

te U

nive

rsity

] at

11:

02 3

0 Ju

ne 2

012

Half Century of Human Rights

of international relations find confirmation in the opportunistic evasions of human rightsconsiderations by political leaders and market forces.

In the next section of this article, the relation between upholding international humanrights and geopolitical priorities will be discussed with an eye towards a partial acceptanceof their coexistence. A later section will then evaluate several of the main human rightsinitiatives of the last 50 years. On these bases, the final section will offer tentative thoughtson what to expect with regard to human rights, given the deepening process of economicglobalisation.

Geopolitics and international human rights

As suggested earlier, there exist two clusters of views about how best to interpret inter-national experience of the last 50 years with respect to human rights. One cluster isnormatively driven, perceiving the attention given to human rights as indicative of thegrowing importance of law and morality in the world. The second cluster is power driven,perceiving an essential continuity of geopolitics over time based on the retention bysovereign states of the capacity to wage war, to mobilise resources, along with theirconsistent neglect of legal and moral considerations when these are seriously challenged bystrategic interests.

The first view, as might be expected, is generally satisfied with the progress during thelast 50 years in protecting international human rights. It finds support for its positiveassessment of the large number of multilateral treaties devoted to human rights, the increasedactivity on behalf of human rights in various arenas of the UN and at regional levels, andthe greater attention being given to questions of human rights in the media and on the partof policy makers. Adherents of this rights-oriented view are, to be sure, frequently disap-pointed in specific instances, but such failures of performance are usually explained as lapsesin leadership or as unfortunate concessions to domestic pressure groups. There is no doubt,on the part of those who endorse the first view, that human rights will continue to increasein influence over time. Furthermore, it is desirable to subordinate other goals of foreignpolicy to this overriding effort to achieve as full an implementation of human rights standardson a worldwide basis as is feasible at any given time.

In contrast, the second view finds that geopolitical factors remain the decisive forcemoving history. From this perspective, the greater visibility of human rights is heavilydiscounted as a new kind of window-dressing that has come to the fore in recent yearsbecause the winners in the Cold War have remained somewhat trapped within the confinesof their own earlier anti-communist propaganda. Furthermore, that the promotion of valuesat the expense of interests is a dangerous indulgence in international political life that is oftenlikely to intensify conflict among states without really helping the victims of human rightsabuses. A rational foreign policy is based on calculations of gains and losses, not on acomparison of rights and wrongs, and if progress is to be made in the way governments treatindividuals and groups within their borders, it will be as a result of internal struggle andreform.

These polar ways of thinking about the relations between human rights norms andgeopolitics involve a clash of preferences and worldviews that have been sharpened by therealisation that recent decades are the background of a period of transition in the structureof world order (Falk 1995a). It is possible that the promotion of human rights and the realistpursuit of interests will increasingly converge in the future. It is also possible that one or theother will displace its rival, and become the uncontested view of how things do and shouldwork in the relation of power to values. But some sort of reconciliation is also possible.There are several political and ideological trends that are encouraging in partial reconciliation

261

Dow

nloa

ded

by [

Ari

zona

Sta

te U

nive

rsity

] at

11:

02 3

0 Ju

ne 2

012

RICHARD FALK

between geopolitics and human rights. The widespread and severe denial of human rights ina country beset by strife and poverty has increasingly become an occasion causing refugeesand transnational migrations that can be a major source of trouble for neighbouring states.When the US led the UN effort in 1995 to preserve the democratic process in Haiti andprotect Haitians against the brutalities of the military junta, it was strongly motivated by itsinterest in curtailing the outflow of refugees who were, at the time, unwelcome entrants toAmerican society, and threatening to provoke an angry domestic political reaction. The USgovernment had, earlier in pre-Clinton years, been dealing with this problem by interceptingthe refugees at sea and putting them in detention centres, but this too provoked a damagingpolitical backlash among African-Americans in and out of government. The Clintonpresidency did not want to alienate this constituency, and so it was faced with finding apolicy that both avoided an influx of refugees from Haiti, but also abandoned the policies ofthe Bush presidency that was seen as cruel to the escaping victims of Haitian oppression.Establishing civilian, moderate government in Haiti had the intended beneficial side effect ofcurtailing the outflow of Haitians, thereby overcoming Clinton's refugee dilemma (neitheraccept, detain nor return) by 'imposing' democracy and human rights (Falk 1995b). Whetherthe internal play of forces in Haiti will accept this solution is subject to considerable doubt,especially given signs of social and economic deterioration and the renewed threat ofchallenges from the militarist right wing. In this respect, what may appear as a reconciliationof geopolitics and human rights may turn out to be temporary and quite limited. However,the pattern is broader.

Many internal struggles around the world have produced these massive outflows that canbe ended and reversed only by political moderation and stability, which usually entails anoverall improvement in the human rights situation. This pattern also influenced the Europeanand American decision to support the North Atlantic Treaty Organisation (NATO) initiativesin relation to ending the war in Bosnia, and underpin the willingness to exert pressure onBelgrade to restore autonomy and human rights to Kosovo. Part of the geopoliticalmotivation is an anxiety about the potential of the conflict to spread in the Balkan region,even threatening to embroil NATO members, Greece and Turkey, on opposite sides. It is notrelevant to appraise the plausibility of these concerns. The point is that there exists a positivelink between insisting upon human rights for the Kosovars and the geopolitical interest inavoiding a wider European conflict. It should be noted that such a geopolitical link is notpervasive with respect to such separatist movements, as the response to the situation in Tibetor Chechnya confirms. But it should also be appreciated that the protection of human rightsnow often provides a functional alternative to the sort of bloc stability that had been a featureof the Cold War era, and was achieved partly by ignoring the well-being of oppressedpeoples and nations.

The problems of internal chaos and strife have grown far more common in the years since1989, as the unravelling of Yugoslavia most revealingly illustrated. This unravelling, if itoccurs outside the domain of strategic interests, as in sub-Saharan Africa, is not likely tomount strong pressure for humanitarian diplomacy. Such is 'the lesson of Mogadishu', thelearning experience that followed upon the abandonment of the US/UN effort at humanitarianpeacemaking in Somalia during 1992-94. The unwillingness of the US/UN to take steps toavoid humanitarian disasters in Rwanda, Burundi and Zaire in the mid-1990s in the absenceof perceived geopolitical incentives is also a revealing part of the emerging intertwinedrelationship of human rights and geopolitics.

In summary, the polarisation of human rights and geopolitics evident in the two standardpositions is increasingly misleading. International developments have created importantsectors of mutuality in which geopolitical incentives exist for the implementation byinternational action of human rights standards. At the same time, such a convergence shouldnot be exaggerated or generalised. Everything depends on context, and the perceived interests

262

Dow

nloa

ded

by [

Ari

zona

Sta

te U

nive

rsity

] at

11:

02 3

0 Ju

ne 2

012

Half Century of Human Rights

of the major political actors. Captive 'nations' have been struggling in many settings where themain geopolitical interests seem to be associated with maintaining the unity of existing states,leading the organised world community to turn a blind eye to their resolution by force to theextent necessary. Perhaps the most extreme example is the US/UN relationship to the internalsituation in Iraq since the Gulf War where, despite unprecedented intrusions on Iraqi sover-eignty to ensure compliance with duties to abolish weaponry of mass destruction, there hasbeen no willingness to contest Saddam Hussein's oppressive rule for fear of fragmenting Iraq."

The final aspect of the situation is disclosed by a comparison of the response to Bosniaand Kosovo with that in relation to human tragedies of great magnitude in Africa. It is onlywhen geopolitical interests are present that some substantial international effort to protect thehuman rights of a deeply threatened citizenry is likely to be forthcoming (Falk 1996b).12 Theabsence of geopolitical incentives is likely to result in reducing international responses to anominal form. Such a complex interplay of human rights and geopolitics suggests theinappropriateness of the two prevailing views identified at the outset of this section, andthe need for a third view that is more nuanced. This third view formulates the relationshipon the basis of a partial and limited reconciliation of human rights and geopolitics.

Closing the ideological gap: human rights and neo-liberalismA closely related development, in some respects supportive of human rights, has beenoccurring on an ideological front in recent years, contrasting with the approaches adoptedduring the Cold War. The earlier view in conservative political circles had been thatnon-communist forms of authoritarian rule in the South was either the lesser of evils or anecessary, if temporary, expedient in relation to the rivalry with the Soviet Union. The West,which operationally generally meant the US, not only supported many such instances ofrepressive government on the basis of such reasoning, but actually relied upon intervention-ary diplomacy to disrupt or overthrow governments that appeared to be democratic,especially if compared to what preceded or what followed. Covert operations were oftenrelied upon to disguise this sponsorship of an anti-democratic 'solution'. Among the morecelebrated instances of anti-democratic intervention are the restoration to power of the Shahin Iran (1953), the overthrow of the Arbenz government in Guatemala (1954), and the effortsto destabilise the Allende government in Chile (1970-73).13 Although it is conceptually

11 This failure to include the human rights of the Iraqi people in the goals of the US/UN in Iraq since theceasefire in 1991 is further aggravated by the maintenance of sanctions over a period of more than 7years despite overwhelming evidence of their devastating impact upon the wellbeing of the Iraqi civiliansociety, especially the very young. In this respect, the UN seems complicit in a policy that has had theeffect, on a massive scale, of depriving innocent Iraqis of their most basic right to life, and in a settingwhere there is no evidence that the Baghdad government or its leaders have been weakened orsignificantly curtailed in their capacity to rule; indeed, by so alienating the people of Iraq, it has beenargued that the sanctions have strengthened the government's grip on society.

12 Even then, however, the difficulties of humanitarian intervention should not be underestimated,especially if the geopolitical incentives are not very pronounced, as was the case in Bosnia, or,subsequently, in Kosovo. Shallow humanitarian intervention may have the main effect of intensifyingthe internal conflict and adding to the human suffering.

13 In each instance, a political leadership had come to power by constitutional means with a strongprogramme of social reform that includes efforts to acquire greater control over the sources of wealthsituated within the state. These governing elites were suspected of being unfriendly to Western strategicinterests, as defined by Cold War parameters, but their unacceptability seemed most directly rooted intheir hostility to foreign investment and their radical affirmation of a programme of applied economicnationalism. This latter programme adversely affected important vested foreign economic interests,which exerted pressure for intervention. Each case is different, involving different combinations ofideological, geopolitical and economic interests, but in each instance, the end result was to repudiatethe democratising tendencies of the state in question.

263

Dow

nloa

ded

by [

Ari

zona

Sta

te U

nive

rsity

] at

11:

02 3

0 Ju

ne 2

012

RICHARD FALK

possible for a benign autocrat to protect human rights more successfully than an incompetentor paralysed democrat, it is usually the case that the displacement of democratic governanceis accompanied by a dramatic deterioration in human rights. Such was certainly the case inthe instances given.

The new political ideology that has taken hold in the West since 1989 insists that onlydemocratic forms of governance are fully legitimate, with 'democracy1 being presented asincluding a fair measure of human rights (Franck 1992). This advocacy of democracy is tiedvery closely to the endorsement of neo-liberal ideas about state/society relations, especiallythe reliance on the market to guide economic priorities, the minimisation of the social roleof government and the encouragement of maximum privatisation of economic life. In itsmore progressive interpretations, the conviction that marketisation is not enough is evident.Indeed, this was the main theme of Bill Clinton's 1998 message directed at the Chinesepeople and their leaders, but also meant to be heard back home by the US Congress and themedia that had been critical of his visit on human rights grounds. Clinton's formulationssuggested to China that it would not achieve 'the prosperity and social stability that it isseeking until it embraces greater individual freedoms' (Harris 1998).

This linkage between the market and human rights started to influence world orderthinking during the period that Margaret Thatcher and Ronald Reagan were political leadersof their respective countries. Its formulation as 'market-oriented constitutionalism' began tobe evident in the final documents of the annual economic summits of the Group of Sevenindustrialised states (G7). Such an outlook achieved a certain canonical form in the Charterof Paris for a New Europe, adopted at an important meeting of the Conference (laterOrganisation) on Security and Cooperation in Europe, Paris, 21 November 1991 (Westonet al. 1997b:608-15). This formulation signalled the ideological break between the mentalityof the Cold War and that of the dawning era of globalisation.

Although an affirmation of human rights is integral to these neo-liberal perspectives, itis partial in relation to the corpus of rights protected under international law. Human rightsare understood to encompass exclusively the civil and political rights of the individual, witheconomic, social and cultural rights being put aside. Indeed, the neo-liberal repudiation of asocially activist government and public sector approaches to human well-being, is an implicitrejection of many of the standards of human rights that are present in the UniversalDeclaration and the two Covenants. It is relevant to take note of the fact that many of thoseprovisions of the Declaration that are regarded as being of utmost importance in countries ofthe South are those that are treated as non-existent by the North. In a more journalistic vein,William Pfaff has indicted 'unregulated capitalism' of the sort that is occurring underneo-liberal banners of globalisation for its cruel and dangerous disregard of human wellbeing.He dismisses the invocation of democracy and human rights by neo-liberal champions ofglobalisation as a 'complacent and unhistorical argument' that refuses to take account 'of themoral nihilism of an unregulated capitalism' that is making livelihood and employment a'byproduct of the casino' (Pfaff 1998).

It is too early to assess the full impact of economic globalisation of a neo-liberal characterupon the pursuit of economic and social rights, and even in relation to civil and politicalrights. Until the Asian economic crisis of 1997, it seemed that globalisation was bringingeconomic relief to tens of millions of previously impoverished peoples, and providing aprospect for sustained economic improvement with a gradual spill-over effect also enhancingpolitical and civil rights (Falk 1996a; Falk 1997b). Geopolitically, as well, globalisationseemed to be having a levelling up effect, giving a global voice to those countries that werenot only independent, but also economically dynamic.

Now it is more difficult to be so confident about the contributions of globalisation. Whatthe crisis managers within and without the IMF have done in reaction to the Asian financial

264

Dow

nloa

ded

by [

Ari

zona

Sta

te U

nive

rsity

] at

11:

02 3

0 Ju

ne 2

012

Half Century of Human Rights

crisis is exactly what one would expect; namely, to prescribe neo-liberal medicines in varyingdosages, which means, in the short term, a hardening of the life circumstances of the poorersectors of society and a placement of the burden of adjustment costs during the process ofrecovery on those least able to bear it. It was reported in July 1998 that half of the Indonesianpopulation has fallen back into a condition of destitution, and that some of the villages areeating insects in order to survive (Brauchli 1998). The IMF approach is also spreading theneo-liberal model of governance as a substitute for the now discredited Asian model ofcapitalist development. The Asian model, which itself had many diversities, included a largerrole for the state in actively promoting employment, welfare, and poverty alleviation efforts.Unfortunately, it also created the conditions for the flourishing of crony capitalism. To theextent that the text of the Universal Declaration authoritatively identifies the scope of humanrights, neo-liberal ideology amounts to a drastic foreshortening with no legal or moralmandate. Human rights are narrowed to the point that only civil and political rights areaffirmed, or in the more general normative language of the day, 'individual freedom' and'democracy' are asserted as beneficial, and indeed necessary, to the attainment of economicsuccess via the market. By implication, moves to uphold social and economic rights by directaction are seen as generally dangerous to the maintenance of civil and political rights becauseof their tendency to consolidate power in the state and to undermine individualism.

In conclusion, the relationship between the realisation of human rights and the ideologicalorientation of neo-liberal globalisation is ambiguous in conception and behavioural effects.To the extent that neo-liberal perspectives are anti-authoritarian, they tend to encourage theimplementation of human rights in state/society relations, especially through the argumentthat an economistic approach to development will be frustrated if such rights are not upheld.However, the neo-liberal outlook ruptures a sense of human solidarity within a given politicalcommunity and effectively rejects any commitment of responsibility for those members whoare economically and socially disadvantaged. And, in times of difficulties, this weakening ofcommunity bonds tends to impose the most difficult burdens of adjustment on those least ableto bear them, including those with marginal jobs or the unemployed. As such, it representsa de facto repeal of the broad scope of human rights as initially specified by the UniversalDeclaration, and carried forward in the International Covenant on Economic, Social, andCultural Rights.14

The Universal Declaration and civilisational values

The evolution of human rights as a self-conscious tradition was principally associated withWestern patterns of thought and practice, although formulated as if metaphysically groundedon principles of universal validity. There were many echoes and parallel ideas in scripturesand philosophical writings of other civilisations, but no coherent and consistent reliance ona rhetoric of rights. The appearance of the Universal Declaration on the normative scene 50years ago was at a triumphalist moment for the humanist claims of the West, having recentlyprevailed in the struggle against fascism and yet retaining a large measure of control overnon-Western civilisations. As such, the Declaration was never at the time effectivelychallenged as being Western in origins and outlook, and therefore falling far short of itspretension of offering a universal foundation for human rights. This challenge came muchlater, preceded by non-Western preoccupations with carrying the various anti-colonial

14 It should be noted that most of the better known human rights non-government organistions have alsoconcentrated over 90 per cent of their energies and resources on the protection of civil and politicalrights, according virtually no attention to the developmental and anti-poverty priorities within thebroader domain of human rights.

265

Dow

nloa

ded

by [

Ari

zona

Sta

te U

nive

rsity

] at

11:

02 3

0 Ju

ne 2

012

RICHARD FALK

struggles to completion and then engaging in the daunting tasks of state-building andeconomic development. To the extent that a challenge was asserted at all, it was largelyindirect and implicit, premised on the idea that human rights (and democracy) were not apriority for newly independent societies confronting massive poverty and underdevelopment.It was often argued mat order, more than freedom, was the precondition for sustainedeconomic development, which in turn was necessary if massive poverty was to be reducedin the face of a rapidly expanding population (Thakur 1982).

To the extent there was seen to be a cleavage concerning human rights, it was regardedas essentially intra-Western, pitting the liberalism of individualist rights against the Marxiststress on social or collective rights. The Universal Declaration provides a framing of humanrights that encompasses both traditions, allowing each side to stress its own ideologicalinterpretation. This division was acknowledged to a greater extent during the second majorstage of evolution when the two human rights covenants divided human rights in two:political and civil on one side, and economic, social and cultural on the other side. The West,led by the US, made it quite clear, especially from the time in the early 1980s when it wenton the offensive in support of private capital and the market ethos, that it was committed toupholding the first covenant as providing die basis for legitimate governance at the level ofthe state, but nothing more. At the same time, its diplomats were increasingly outspoken intheir insistence that the second covenant was virtually irrelevant to the presence or absenceof a good society, and as having no universally obligatory content under international law.Thus, disguised beneath the original universal framing, was the ideological debate that wascarried on during the Cold War years about the nature of human rights. The debatewas always a bit fraudulent, as the Soviet bloc suppressed their population economically aswell as politically. In this fundamental sense, policies and practices did not reinforce Sovietideological postures. In any event, the debate over rights quickly faded into oblivion with thefall of the Berlin Wall in 1989 and the general discrediting of socialist thinking onstate/society relations.

Another challenge to universality of a more genuine sort (i.e. concerning practices andpolicies) emanated from the global network of indigenous peoples, who became internation-ally active already in the 1970s. Their profound grievances about the evolving internationallaw of human rights assumed salience with the formation of the Informal Working Group ofIndigenous Populations as a project of the Sub-Commission on the Prevention of Discrimi-nation and Protection of Minorities of the UN Human Rights Commission. The sessions ofthe Working Group made it clear that for indigenous peoples, despite their many differencesfrom one another, they were agreed that their worldviews and circumstances had been simplyleft out of consideration when the Universal Declaration was drafted. The Declaration hadproceeded from the alien assumptions of modern and modernising societies and did not speakto the conditions and needs of peoples intent on preserving traditional ways of life in the faceof modernity. Also, the ameliorative efforts of the International Labour Office to remedy thisfailure were unsatisfactory, despite Convention No. 169 (1989) being a big step forwardwhen compared to the embarrassingly paternalistic Convention No. 107 (1957) (Westonet al. 1997b:397-403, 553-61).

What has emerged from the more authentic undertaking by indigenous peoples acting forthemselves is a document crafted by representatives of indigenous peoples over a period ofmore than a decade, called the Draft Declaration on the Rights of Indigenous Peoples (1994).This document, negotiated and drafted for a period of almost a decade, is built around theidea of indigenous peoples as distinct and separate from other peoples, yet equal and fullyentitled to claim a right of self-determination (Weston et al. 1997b: 645-52). This Declar-ation is locked in controversy within the UN system and its future is in doubt. Whether sucha document can survive intergovernmental scrutiny, especially with respect to the claimedright of self-determination, seems uncertain even after more than 4 years of consideration

266

Dow

nloa

ded

by [

Ari

zona

Sta

te U

nive

rsity

] at

11:

02 3

0 Ju

ne 2

012

Half Century of Human Rights

within the UN system. It is also far from clear that the network of indigenous peoples willgo along with a sanitised version of what their lengthy deliberations produced, especially ifthe symbolic affirmation of the right of self-determination is removed or curtailed. What isnot in doubt is the perception of the 1948. Universal Declaration as utterly failing toencompass the circumstances and worldviews of indigenous peoples, and as having neverconceived of their participation in the norm-creating processes as essential to establish theclaim of universality. In this regard, the challenge to universality comes from a vertical,non-geographical perspective as well as from a horizontal, spatial perspective. Indigenouspeoples, seeking often to have the right to a separate existence based on their traditionalpatterns of organisation and governance, do not necessarily share the foundational secularist,modernist and statist assumptions of the human rights mainstream. At the very least, theyinsist that the traditionalist alternative be legitimised and, to the extent necessary, safe-guarded. Such a concern is far from ritualistic, as such peoples are being currently displacedand their lands plundered in many parts of the world, perhaps most flagrantly in Amazoniaand South Asia. The importance attached by representatives of indigenous peoples toself-determination is bound up with their status as nations with claims of autonomy and withthe history of their encounters with settlers who set out to destroy their way of life and, often,also their lives.

The inter-civilisational critique of human rights that has gained most notoriety hasinvolved reactions by parts of the world formerly colonised by European countries against theWest. These reactions are associated both with the norms and with their implementation,especially by coercive or interventionary means. The critique advances both the case onbehalf of cultural relativism (that the Universal Declaration is distinctively Western and assuch is inconsistent with the beliefs and values of non-western civilisation) and the argumentabout Western post-colonial geopolitics (that human rights are a new pretext for interventionand encroachment upon sovereign rights) (Muzaffar 1993; Kothari and.Sethi 1989). Criticsof these critics argue that the claims of Islamic exceptionalism and Asian values are largelydiversionary efforts by brutal and arbitrary governments to evade fundamental responsibili-ties to their own peoples, and represent very cynical efforts to excuse authoritarian abuses ofvarious kinds that are condemned by the moral teachings of all civilisations (Sen 1997).There is also a tendency to suggest that civilisational objections to human rights standardscan be reconciled with the claimed universalism of the Universal Declaration if intervention-ary implementation is avoided and ample space is provided for societal interpretation. Sucha trend has been understood in the West as a reluctant affirmation of the authenticity of theinternational human rights tradition, and as evidence of the power of the human rights idea.15

Widespread public attention to these issues arose in relation to the Islamic response to thepublication of Salman Rushdie's Satanic Verses, especially the fatwa issued in 1989 byAyatollah Khomeini imposing a death sentence on Rushdie, despite his residence andcitizenship in the United Kingdom, and reinforced to this day by a large bounty that wouldbe given to whoever managed to kill Rushdie. There are many issues bound up together here.The first involves the imposition of a death sentence without trial or defence upon an absentindividual over whom mere is no authority. The second involves the use of religion toprovide the basis for condemning and restricting the distribution of a literary work, andjustifying the punishment of its author. Third, differing views about protecting freedom of

15 Ann Mayer so presents the reaction of Sudan to UN censure of its human rights record and theparticipation of representatives of the Islamic governments of Saudi Arabia at the 1993 UN Conferenceon Human Rights and Development along these lines. In effect, an acknowledgement of the authorityof the norms, but a contention that Islamic violations are either unjustified and slanderous, or the claimthat with appropriate interpretative freedom to take account of Islamic tradition the appearance of aviolation would quickly disappear (Mayer 1995: 179-84).

267

Dow

nloa

ded

by [

Ari

zona

Sta

te U

nive

rsity

] at

11:

02 3

0 Ju

ne 2

012

RICHARD FALK

expression in the face of community sensitivities. These are complex matters, but thepotential for international conflict arising from apparent differences based on civilisationaloutlook was vividly disclosed. Such a disclosure opens the way for dangerously inflammatoryviews of impending culture wars, of which the notorious projections of Samuel Huntingtonabout an impending 'clash of civilisations' were the most spectacular and widely discussed.On further reflection, it became evident that there were almost as many differences withinIslam as between Islam and the West; as Edward Said has so persuasively written, allcivilisations and cultures exhibit an extraordinary heterogeneity (Said 1993:xx-xxvii). Inother words, there are certainly differences in belief and values that can be given acivilisational expression, but such differences are not consistent enough across civilisationalboundaries to be, by themselves, the basis of a new geopolitics, especially given the strengthof global market forces and their tendency to establish a global counter-civilisation.

What may turn out to be the case is that the further elaboration and implementation ofhuman rights takes on a regional character. In part, this follows upon the European example,but it also parallels the rise of regionalism in relation to economic and security relations. Itis, also, a reaction to the decline of the UN, although so far this overall decline has notaffected the UN role in relation to human rights, which has actually increased in the 1990s.To the extent that regional initiatives in relation to human rights are advanced, a part of therationale, as in Europe, will be on the basis of shared values and traditions. In this sense, thecultural critique of the Universal Declaration might, in the near future, become less polemicand take on a more substantive and specific character. Of course, in such a setting,intra-regional differences are likely to gain greater attention, especially in Asia where thediversities are so evident.

There is a final point. The main energy associated with the assertion of 'Asian values'accompanied 'the Asian economic miracle'. The successful achievement of sustainedeconomic growth in an atmosphere of political stability apparently gave Asian leaders theconfidence to defend against international criticism by recourse to civilisational arguments,including critiques of the West as arrogant and as itself suffering the adverse socialconsequences of decadence and permissiveness. The Asian crisis, which shows no signs ofan early abatement, has seemingly diverted attention from the cultural dimensions of itsrelations with the West

The Universal Declaration has definitely survived the civilisational critique mountedagainst the claim that the international human rights tradition deserves adherence in all partsof the world. At the same time, the Western origins and evolution of the tradition haveexposed some important weaknesses. Undoubtedly, the claims of inadequacy associated withthe efforts of indigenous peoples will persist. Controversy over implementation will undoubt-edly continue to raise concerns about whether human rights are a vehicle for intervention orwhether opposition to intervention is a pretext for shielding abusive behaviour frominternational accountability. If the Universal Declaration had been drafted in 1998 rather than1948, it would probably exhibit far greater sensitivity to cultural diversity and to the relationsbetween politics and religion, but possibly far less empathy for the economically and sociallydisadvantaged. And so, the Universal Declaration enters the next century, as do the twocovenants, having been somewhat bypassed by historical developments, yet still commandingsuch widespread respect by governments and civil society as to remain authoritative inrelation to the substance of international human rights standards (Robinson 1998).

Achievements, prospects, priorities

The Universal Declaration is being celebrated in 1998 because of its own textual reality, butalso because it initiated a process that has had an extraordinary cumulative impact on the roleof human rights in international political life in the course of the last 50 years. This

268

Dow

nloa

ded

by [

Ari

zona

Sta

te U

nive

rsity

] at

11:

02 3

0 Ju

ne 2

012

Half Century of Human Rights

cumulative impact has exhibited ebbs and flows, and has reflected considerable selectivity inemphasis, as well as being subject to the foreign-policy agenda of major geopolitical actors.Nevertheless, the achievements have been impressive, and can be briefly summarised.

Changing the discourse of international relations

To a considerable extent, invoking human rights standards has come to replace moralising instatecraft. As such, it has been effective in establishing an objective, shared set of standardsas the foundation for legitimate resistance by civil society to abuses of power by the state andfor the display of international concern within the UN and elsewhere. The parameters of thishuman rights discourse are not at all firmly established as yet. Still, as compared to half acentury ago, this intemationalisation of the manner by which a government exercises itsauthority within its territory has challenged the idea of sovereignty in a crucial respect. Theoutcomes of this challenge are not yet clear, and the results are quite uneven at this point.The intemationalisation of human rights is one aspect of globalisation and nascent globalgovernance that is still at an early stage of evolution. And yet, even at this point, thisdiscourse on human rights has altered the language of diplomacy. In so doing, it has alsonarrowed the gaps between state and society, between state and world, by providing acommon normative currency that is invoked by government, international institutions andcivil society.

The elaboration of normative architecture

Starting with the Universal Declaration, there has been a steady stream of lawmakinginternational treaties that have elaborated human rights standards in many areas of inter-national life, and have started to move the process from lawmaking to implementation of law.The most dramatic step in this direction was the transformation of the Universal Declarationinto treaty form by way of the two covenants in 1966. Because these covenants includedreporting requirements, the monitoring of compliance was a further step forward andformally brought within the scope of activity assigned to the UN Economic and SocialCouncil. Subsequently, many additional human rights treaties were negotiated, signed, and sowidely ratified as to stake reasonable claims as qualifying as customary international law.These include Convention on the Status of Refugees (1951), Convention on the PoliticalRights of Women (1953), International Convention on the Elimination of all Forms of RacialDiscrimination (1966), Convention Against Torture and Other Cruel Inhuman or DegradingTreatment or Punishment (1984), and Convention on the Rights of the Child (1989). Inaddition, there have been many declarations endorsed by the UN General Assembly that havehad the effect of adding a further dimension to the human rights discourse. Among the mostimportant of these are: Declaration on the Granting of Independence to Colonial Countriesand Peoples (1960), Universal Declaration on the Eradication of Hunger and Malnutrition(1974), Declaration on the Elimination of All Forms of Intolerance Based on Religion orBelief (1981), Declaration on the Right to Development (1986), Declaration of the Rights ofPersons Belonging to National or Ethnic Minorities (1992), and Declaration on the Elimin-ation of Violence Against Women (1993). In addition, there have been a series of veryimportant regional initiatives with respect to the establishment of human rights standards andprocedures, most far-reaching in Europe, but also significantly in the Inter-American settingof the Western Hemisphere, Africa and Asia.

Enhancing the role of human rights within the UN system

The references to human rights within the UN Charter did not suggest a major role. Over theyears, the UN has come to play a more significant part in evolving human rights standards

269

Dow

nloa

ded

by [

Ari

zona

Sta

te U

nive

rsity

] at

11:

02 3

0 Ju

ne 2

012

RICHARD FALK

and providing an institutional capacity for monitoring compliance and censuring seriousviolations (Thakur 1994; United Nations 1995). The UN Conference on Human Rights andDevelopment in 1993 was a milestone in this regard, and also provided an arena for the civilsociety to assert its particular concerns about the abused circumstances of women andindigenous peoples. One outcome of this event was the mandate to establish a HighCommissioner for Human Rights, ensuring both budgetary support and agenda salience forhuman rights within the UN, despite downsizing pressures.

Historical struggles against oppressive circumstances

On several dramatic occasions, human rights have been at the very centre of popularstruggles for emancipation from oppressive circumstances. These occasions also exhibited theremarkable effects of converging popular movements for change in civil society with stronginternational support for the implementation of human rights. The most dramatic instances ofthis convergence are the anti-colonial struggles of the Asian and African peoples, themovements for freedom and rights in the countries of Eastern Europe and the Soviet Unionduring the 1980s, and, of course, the anti-apartheid campaign in South Africa. In each case,a significant internal political dynamic was reinforced symbolically and diplomatically byinternational action based on fundamental human rights.

The engagement of civil society

From the outset, the effectiveness of human rights within the UN and elsewhere has reflectedthe rise of transnational and indigenous human rights associations of citizens. Theseassociations regarded the realisation of human rights as a political project with legal backingand the strongest possible moral support. The voices of civil society were also filling avacuum created by realist patterns of statecraft that often wanted to give lip service to humanrights commitments or to restrict the relevance of the human rights discourse to the channelsof hostile propaganda. In many respects, the growth of global civil society was based onhuman rights activism in civil society that originated in the Western democracies, butgradually spread to all parts of the world.

Extensions to the humanitarian law of war and crimes against humanity

Increasingly, the domain of human rights has been extended to include wartime behaviourthat violates the fundamental rights of the person. This seeks to encompass what Ken Boothhas termed 'human wrongs' within our sense of human rights (Booth 1995). This dynamichas gone forward in the form of the establishment of ad hoc tribunals charged with theindictment and prosecution of individuals charged with crimes against humanity andgenocide in the former Yugoslavia and Rwanda. This revival of the effort after World WarII associated with the trials of surviving German and Japanese leaders has also led to a strongmovement to establish an independent international criminal court that would be generallyavailable to deal with accusations of extreme abuses of human rights. The struggle tocriminalise extreme abuse has produced a coalition of governments committed to this typeof global reform and supportive elements in civil society that have mounted a massive globalcampaign. It has also produced a geopolitical backlash that has united several powerful statesin resistance, including the US, China and France.

Looking forward to the next century, it seems safe to predict that human rights willcontinue to provide a focus for normative energy within global civil society, the UN systemand in the foreign policy of leading states. At the same time, the friction between realistorientations towards statecraft and the commitment to human rights is likely to persist for the

270

Dow

nloa

ded

by [

Ari

zona

Sta

te U

nive

rsity

] at

11:

02 3

0 Ju

ne 2

012

Half Century of Human Rights

foreseeable future, producing inconsistent expressions of concern and allegations of doublestandards. It is also certain that efforts at implementation will be resisted by invoking claimsof sovereign rights and by mounting arguments against reliance on interventionary techniquesto advance human rights.

In the near future, it is likely that human rights will be seen as producing mixed results.The two major civic campaigns underway are the ratification of the treaty banning anti-personnel landmines (English 1998; Thakur 1998) and the establishment of an internationalcriminal court. Both involve innovative coalitions with like-minded governments, and bothhave generated geopolitical resistance. Their outcome will provide short-run litmus tests ofthe relative potency of the global human rights constituency, but these results are likely tobe provisional. The past 50 years demonstrate, above all else, that the great human rightsvictories have occurred when grassroots activism converges with geopolitical opportunism ina context of favourable historical circumstances. It also demonstrates that the biggestfrustrations and disappointments with respect to human rights are associated with the absenceof civic momentum and the presence of geopolitical resistance.

As with many matters of global policy, the orientation of the American government playsa very influential role in relation to human rights. In one sense, it was the first 2 years of theCarter presidency that raised human rights to a high place in the global policy agenda bymaking human rights a primary foreign policy goal. This emphasis had extremely importantsecondary effects, such as encouraging greater risk-taking by opposition movements inoppressive societies and giving human rights a stronger voice in national bureaucracies,including that of the US government.

The Universal Declaration continues to provide an inspirational foundation for humanrights, although its substantive authority seems to have been mainly transferred to subsequentdocuments with more specific focus and a more obligatory status. The Utopian provisions ofthe Universal Declaration, such as the promise of a standard of living for every personsufficient to meet basic human needs and the commitment to establish an international ordercapable of realising this goal and the overall programme of human rights, are likely to remainimportant reminders of the work that remains to be done (Weston et al. 1997b: 375-9,Articles 25 and 28). As with almost all aspects of the human rights subject matter, theachievements over the course of the last 50 years are extraordinary, but the obstacles to fullrealisation seem as insurmountable as ever.

References

Booth, K., 1995. 'Human Wrongs and International Relations', International Affairs 71: 103-26.Brauchli, M.W., 1998. 'Indonesia's Downfall Casts a Long Shadow Over the World Bank', Wall Street Journal

Europe, 1, 10 (14 July).English, J., 1998. 'The Ottawa Process: Paths Followed, Paths Ahead', Australian Journal of International Affairs

52:121-32.Falk, R., 1995a. On Humane Governance: Toward a New Global Politics (Cambridge, UK: Polity).

1995b. 'The Haitian Intervention: A Dangerous World Order Precedent for the United Nations', HarvardInternational Law Journal 36:341-58.

1996a. 'An Inquiry into the Political Economy of World Order', New Political Economy 1: 13-26.1996b. 'The Complexities of Humanitarian Intervention', Michigan Journal of International Law 17:491-513.1997a. 'False Universalism and the Geopolitics of Exclusion: the Case of Islam', Third World Quarterly

18: 7-23.1997b. 'Resisting "Globalisation-from-above" Through "Globalisation-from-below"', New Political Economy

2: 17-24.Franck, T., 1992. 'The Emerging Right to Democratic Governance', American Journal of International Law 86: 46.Gellman, B., 1998. 'New U.S. China Ties Are the Fruit of '96 Shift in Policy', International Herald Tribune (23

June).

271

Dow

nloa

ded

by [

Ari

zona

Sta

te U

nive

rsity

] at

11:

02 3

0 Ju

ne 2

012

RICHARD FALK

Harris, J.F., 1998. 'Clinton's Message to China: Individual Freedom is Vital', International Herald Tribune 1, 4(June 29).

Kothari, S. and Sethi, H. (eds), 1989. Rethinking Human Rights: Challenges for Theory and Action (New York:New Horizons Press, Delhi: Lokayan).

Meyer, A.E., 1995. Islam and Human Rights: Tradition and Politics, 2nd edn (Boulder, CO: Westview).Muzaffar, C., 1993. Human Rights and the New World Order (Penang, Malaysia: Just World Trust).Ott, D.H., 1987. Public International Law in the Contemporary World (London: Pitman).Pfaff, W., 1998. 'Gambling with Nihilo-Capitalism', International Herald Tribune (18 May).Robinson, M., 1998. 'The Universal Declaration of Human Rights: A Living Document', Australian Journal of

International Affairs 52: 117-20.Said, E.W., 1993. Culture and Imperialism (New York: Knopf).Sen, A., 1997. 'Human Rights and Asian Values', Sixteenth Morgenthau Memorial Lecture on Ethics and Foreign

Policy, Carnegie Council on Ethics and International Affairs.Thakur, R., 1982. 'Liberalism, Democracy and Development: Philosophical Dilemmas In Third World Politics',

Political Studies 30: 333-49.1994. 'Human Rights: Amnesty International and the United Nations', Journal of Peace Research 31 : 143-60.1998. 'Anti-Personnel Landmines', Pacifica Review: Peace, Security and Global Change 10:61-8.

United Nations, 1995. The United Nations and Human Rights (1945-1995), Blue Book Series, Vol. VII (UnitedNations, NY: UN Publications).

Wei, Jingsheng, 1998. 'The "Brutal Cynicism" of the West's Defection', International Herald Tribune (20-21 June).Weston, B.H., Falk, R.A. and Charlesworth, H. (eds), 1997a. International Law and World Order, 3rd edn (St. Paul,

MN: West).1997b. Supplement of Basic Documents to International Law and World Order, 3rd edn (St. Paul, MN: West).

272

Dow

nloa

ded

by [

Ari

zona

Sta

te U

nive

rsity

] at

11:

02 3

0 Ju

ne 2

012