Human Rights After October — Jessica Whyte

This post was first published in Overland, and is republished here with permission. For the original post, see here.

The language of human rights is under fire on the right and the left. While right-wing authoritarian leaders frame civil rights and anti-discrimination agendas as the exclusive concern of cosmopolitan elites, left-wing critics have argued that the human rights movement has ignored economic inequality and legitimised military interventions that further neoliberal ends.

Faced with mounting criticisms, human rights NGOs and advocates have recently turned their attention to social and economic rights. In 2015, Philip Alston, the United Nations (UN) Special Rapporteur on extreme poverty and human rights, argued that extreme inequality should be seen as “a cause for shame on the part of the international human rights movement”. He pointed to the Universal Declaration of Human Rights, adopted in 1948 by representatives of forty-eight states, as having emphasised the key place of social and economic rights–to food, housing, medical care, and employment, for instance.

This renewed attention is heartening, but Alston’s proposals for securing such rights are startling for anyone who sees a connection between spiraling inequality and corporate power. Major corporations, he argues, should be persuaded to oppose an “authoritarian, anti-rights, and anti-welfare future”, and to “use their influence and power … for more human rights friendly approaches”. Alston does not explain what would persuade the same corporations that lobby for lower wages and corporate tax cuts to campaign for economic equality.

The drafting of the Declaration in 1947–8 reminds us of the conditions in which social welfare came to be viewed as a human right. More than three decades on, the spectre of the Russian Revolution still haunted attempts to determine what was needed for human flourishing. When Eastern Bloc delegates from the Soviet Union, the Belarusian and Ukrainian Soviet Socialist Republics, and Yugoslavia traveled to upstate New York to participate in the drafting, Russia’s own revolutionary days were a thing of the past. However much, though, the realities of the Soviet Union had departed from the writings of Marx, or even Lenin, the Soviet presence made both figures interlocutors in the drafting process, and forced delegates to face their deep divergences over the social and economic arrangements that each believed were necessary for securing human rights.

In contrast, when human rights once more came to prominence in the late 1970s, it was largely in opposition to both communism and the revolutionary anti-colonialism in the previous decades that had circulated from Algeria to Vietnam to Namibia, transforming international relations. Returning to the Soviet contribution to the drafting of the Declaration reminds us of a different lineage of human rights–one in which revolutions, rather than courts and corporations, were its guarantors.

In a searing 1976 critique, the Austrian neoliberal economist Friedrich Hayek described the Declaration as an incoherent attempt “to fuse the rights of the Western liberal tradition with the altogether different conception deriving from the Marxist Russian Revolution”. Hayek saw the Marxist influence in the Declaration’s extensive list of social and economic rights, including social security; work and its “just remuneration”; the ability to form and join trade unions; rest and leisure; and food, clothing, housing, medical care, social security, and education.

But the attribution of these rights to the revolution is only partly accurate. Meeting in the wake of the Great Depression, the Declaration’s drafters were acutely aware of what Hannah Arendt has termed “the terrifying predicament of mass poverty”, and of the potential for this to lead in revolutionary directions. The rise of socialism and communism had placed “the social question” on the political agenda, including at the United Nations–the concerns of workers could be heard in the halls of international diplomacy.

The early days of the drafting process saw bitter conflicts between supporters of a minimal list of liberal rights (to freedom of speech, conscience, and bodily integrity) and those who believed the Declaration must reflect the gains of the workers’ struggles of the previous centuries and include rights to social welfare. The UK delegate Charles Dukes defended his own country’s draft, which contained no social and economic rights, by telling the assembled delegates that “the world needed freedom and not well-fed slaves”. In liberal societies, the delegate of the Ukrainian Soviet Socialist Republic, Michael Klekovkin, shot back: “Men are free, but are dying of hunger”.

The Russian Revolution no doubt influenced the climate in which hunger could be a topic of political debate. Yet, the strongest advocates of the inclusion of social and economic rights were not the Soviets but rather the Latin American states, under the influence of the Mexican Revolution and its socialist constitution of 1917. It was from drafts prepared by Chile, Colombia, and Cuba that many of the social and economic rights in the Declaration were taken.

While the Soviet delegates supported such rights, they were sceptical about their realisation in a system of private profit, and under no illusions that a declaration of economic rights would heal class antagonisms or overcome poverty. On this they would have agreed with Hayek, who mocked the idealism of those who believed it was possible to bring a state of affairs into being simply by declaring it. “The conception of a ‘universal right’ which assures to the peasant, to the Eskimo, and presumably to the Abominable Snowman ‘periodic holidays with pay’ shows the absurdity of the whole thing”, he scoffed.

The Soviet delegates argued along similar lines, positing that, in a capitalist country, there would always be a “flagrant contradiction” between what was said in such a document and reality. The declaration of a right to rest, for instance, “had a hollow ring in a society in which a small group always rested, while the overwhelming majority worked all the time”. In regard to a system based on private enterprise and the profit motive, only drastically altering it would enable the Declaration’s rights to be realised.

While the Soviets supposedly represented a communist society, their own proposals for securing such rights tied the satisfaction of material needs to the imposition of labour. When the UK delegate argued that the right to work was difficult to achieve without compulsory labour, for instance, the USSR delegate referred to Article 12 of the Soviet Constitution, which described work as “a duty and a matter of honour for every able-bodied citizen, in accordance with the principle: ‘He who does not work, neither shall he eat'”.

The underpinning principle, according to the Soviet constitution, was socialist: “From each according to his ability, to each according to his work.” As Marx argued in his “Critique of the Gotha Program”, this was still a principle of “bourgeois right” that was, in every respect, “stamped with the birthmarks of the old society from whose womb it emerges”. To make the rights of producers proportional to their labour, Marx argued, is to proclaim an equal right for unequal labour–it tacitly recognises the differences between individuals, who may be more or less capable of work, as their natural privileges.

Equal right, which measures unequal individuals by a single standard, ignored the fact that people had different abilities and needs and could thus only result in inequality. “To avoid all these defects”, Marx wrote, “right, instead of being equal, would have to be unequal”. Only then could “the narrow horizon of bourgeois right be crossed in its entirety and society inscribe on its banners: From each according to his ability, to each according to his needs!”

While Marx criticised the formal equality that cemented existing inequalities, Hayek and his neoliberal followers celebrated it for precisely this reason. Treating unequal people equally would entrench the inequalities between them, Hayek argued, and “the only way to place them in an equal position would be to treat them differently”.

We can see this manifesting today: as individuals are made responsible for fulfilling their own needs, the language of equal rights serves to block redistribution, progressive taxation, social welfare, affirmative action, and reparations for slavery and colonialism.

The Marxist critique of formal equality is often mobilised against the abstract language of human rights. Yet, without recognising the gender, racial, and other identity-founded hierarchies that have demarcated the sphere of formal equality and rights, producing what the philosopher Charles Mills calls “subpersons”, such a critique risks erasing a history of struggle against colonialism, slavery, and gender subordination. Formal equality remains an unfinished project.

It is common on the left to hear claims that non-discrimination is a liberal principle, and a distraction from the “real” economic concerns of the working class (implicitly conceived of as white). Quite the opposite was the case for the Soviet Bloc in the wake of the Second World War. Far from focusing on “economic” rights at the expense of political ones, the Soviet delegation argued from the earliest meetings that “one of the first principles” of the proposed declaration ought to be “the destruction of discrimination and inequality”. The Soviets criticised those who spoke of equality while maintaining racial discrimination domestically and in the colonies, and who refused to consider married women as legal persons.

There was undoubtedly some cynicism in highlighting discrimination in the early stages of the Cold War–a time when the United States maintained “Jim Crow laws” enforcing racial segregation throughout the South. Yet, there was more than realpolitik at play in the Soviet championing of non-discrimination. In the racial segregation and white supremacy that persisted in European colonies and the United States, as well as in South Africa’s racial laws, the Soviet delegates saw disturbing parallels to the defeated European fascism. “The absurd theory current among colonial powers that there were superior races and inferior races must be eradicated”, one Soviet Bloc delegate argued forcefully. “It was reminiscent of the defeated Nazi theory.”

Early in the drafting, the Soviet delegate, Vladimir Koretsky, rebuked the French jurist René Cassin for his use of the phrase “civilised nations”–a phrase that Koretsky argued, in the words of a written record of one of the meetings, had “no meaning at the present time”. Civilisational hierarchies were an anachronism belonging to the pre-revolutionary age of the tsars, when age-old civilisations of India and China had been considered uncivilised by the Western establishment.

When the UK tried to retain this language by pointing to the long, established lineage of civilisational hierarchies, it was forced to reckon with the delegate of India, who knew well the historical consequences that had flowed from European assumptions of superiority. India, which had won its independence only the year before, was one of the few former colonies represented, and it insisted that references to agreements between “civilized nations” be replaced by the more inclusive “Members of the United Nations”.

Much of the world’s population, however, still lived under colonial rule, and was therefore excluded from UN membership and the drafting process. The most significant Soviet Bloc contribution to the drafting was to insist that the Declaration specify that all the human rights applied equally to the colonies. This proposal fell short of the position advocated by Lenin prior to 1917: that all revolutionaries must demand the end of colonial oppression. Yet in the world of international agreements, the claim that colonial subjects had equal rights was unprecedented.

This Soviet proposal deeply upset the metropolitan powers, which were drafting a declaration that proclaimed the equality of “all members of the human family” while presiding over empires whose very existence attested to a presumption of inequality between peoples. Were colonial subjects self-evidently included in the universal categories “all humans” and “everyone”? Or did history teach caution about the assumption that those subjected to colonial rule would necessarily be included in emancipatory declarations of universalism?

Led by the UK delegate, who was under instruction to avoid any special mention of the colonies, the metropolitan delegates found a defensive weapon in the language of non-discrimination heralded by the Soviets. Anti-discrimination provisions now proved double-edged, with the colonial powers seizing on the argument that to mention colonised people as subjects of human rights would be to discriminate and cast doubt on their inclusion in the universal category of “humanity”. Specifically mentioning the colonies, the French delegate argued, seemed to imply that “the populations of these territories did not enjoy the essential rights and freedoms on an equal footing with the population of the metropolitan territories”. This colonial position prefigured what Eduardo Bonilla-Silva calls “color-blind racism”–a neoliberal racism in which entrenched racial hierarchies are obscured by myths of individual responsibility and equal treatment.

Such arguments drew a sharp rebuke from the Haitian delegate: his country, which could speak for colonised peoples, “assured the Committee that they would prefer such a slight to their pride rather than have their rights go unrecognised”. The Haitian delegate indeed had a wealth of experience to draw on. In his seminal study of the Haitian revolution of 1791–1804, C. L. R. James draws attention to the crucial role of the slaves of Saint-Domingue–as the country was known prior to independence–in realising the universal aspirations of the “rights of man”.

News of the French Revolution had carried to Saint-Domingue’s plantations, James notes, and the slaves “had construed it in their own image: the white slaves in France had risen, and killed their masters, and were now enjoying the fruits of the earth”. Such an impression was, of course, far from accurate. And yet, James writes, “they had caught the spirit of the thing. Liberty, Equality, Fraternity”. It would only be after a five-year revolutionary war that the former slaves of Haiti would succeed in winning their independence. Their descendants knew not to take the inclusion of colonial subjects in universal categories for granted.

Those who remained under colonial rule in the mid-twentieth century were quick to heed this lesson. In its final form, the Declaration specifies that everyone is entitled to all the human rights therein, and that “no distinction shall be made on the basis of the political, jurisdictional, or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing, or under any other limitation of sovereignty”. But the contradiction involved in declaring equal political rights in “non-self-governing” territories, as the colonies were euphemistically called, was too obvious to remain unchallenged for long.

In the subsequent three decades, victorious anti-colonial revolutions across Asia and Africa more than doubled the membership of the UN. By 1966, when two legally binding human rights covenants were adopted, both declared the right of all peoples to self-determination in their first article. Today, when sovereignty is too often mobilised by wealthy nations as a code for restrictive immigration controls, and when powerful states proclaim their “right to intervene” in the affairs of former colonies, it is often forgotten that postcolonial self-determination represented a challenge to the civilisational and racial hierarchies that underpinned the colonial world order, as well as a forceful rejection of colonial rule.

An earlier generation of anti-colonialists were inspired by Lenin’s argument that self-determination was an essential component of democratic revolution, which must overthrow “national oppression and colonial plunder”. A later generation would embrace his contention that self-determination belongs exclusively to the realm of democracy, and that no reform on this level could abolish the domination of capital.

It was in the struggle against what Kwame Nkrumah, the first post-independence president of Ghana, called “neo-colonialism” that the anti-racist insistence on sovereign equality and self-determination was united with Marxian attempts to transcend equal right in favour of substantive equality.

This unity culminated in the Declaration on the Establishment of a New International Economic Order (NIEO), which was passed unanimously by the UN General Assembly in 1974. The NIEO sought to overcome the remains of colonial domination, racial discrimination, and apartheid by reforming the international economic order and compensating former colonies for colonial exploitation. Debt relief, permanent sovereignty over natural resources, technology transfers, and the regulation of multinational corporations were the means by which formal equality would be made real, its advocates argued.

In his manifesto Towards a New International Economic Order, the Algerian legal scholar Mohammed Bedjaoui, who played a key role in the NIEO, rejected what he termed “the froth and veneer of decolonisation”, by which he meant the combination of formal independence with neo-colonial economic structures designed to prevent economic self-determination.

Decolonisation, he argued, had revealed what the ideology of imperial power had rendered invisible: “universal exploitation, and the dichotomy between poverty and affluence”. Just as the colonial powers had employed the language of anti-discrimination in order to prevent the extension of human rights to the colonies, Bedjaoui astutely noted, international law’s formalism and principles of non-discrimination had permitted colonisation, exploitation, and racial domination, enriching wealthy countries at the expense of impoverished ones. Moreover, claims that colonial hegemony had been replaced by mutually beneficial trade relations only served to obscure the continuing exploitation of former colonies.

Along with other proponents of the NIEO, he evoked a new international law that would instead facilitate “corrective or compensatory inequality” to promote the development of the Third World.

Decolonisation, Bedjaoui argued, was to the international order what the revolutions were to the internal orders of France and Russia. After the winning of independence, there was a need for another decisive stage, which would go beyond the limitations of equal right by eroding the privileges of the former colonial powers through economic decolonisation–an agenda that would include redistribution from North to South and permanent sovereignty over natural resources.

For this, anti-colonialists had to go beyond the approach of the Soviet Union, which Bedjaoui argued had contested the rules of international law but nonetheless come to accept them without “radical upheaval”. The task facing anti-colonial revolutionaries was more akin to that facing the protagonists of the Russian Revolution: how to break with the rule of wealth.

Long after what Bedjaoui called the “strong wind of the Bolshevik Revolution in October 1917” had died down in Saint Petersburg, it continued to blow in what was then called the “Third World”. It was the anti-colonialists who would finally take up Marx’s critique of equal (bourgeois) right, in an attempt to go beyond formal independence and to complete the unfinished task of the Russian Revolution.

It was in the face of these demands for a New International Economic Order to compensate former colonies for colonial exploitation that both neoliberalism and the human rights movement came to prominence. The model of rights upheld by human rights NGOs was explicitly non-revolutionary, and privileged civil and political rights and equality before the law over robust political challenges to economic inequality.

Today, as human rights advocates turn their attention to global poverty and inequality and call for greater emphasis on social and economic rights–even as they dismiss revolutions as violent folly–it is worth remembering the struggles that brought such rights into being. As Leon Trotsky remarked in response to British Fabian socialists who desired working-class welfare while denouncing revolution, “even children’s picture-books teach us that if you want to have acorns you must not dig up the oak tree”.

All quotations from drafting debates in this post are taken from William A. Schabas, The Universal Declaration of Human Rights: The Travaux Préparatoires, three volumes (Cambridge: Cambridge University Press, 2013).

Jessica Whyte is Senior Lecturer in Cultural and Social Analysis at the University of Western Sydney. Her book on human rights and neoliberalism will be published by Verso in 2018.