by Stephen James. New York: LFB Scholarly Publishing, 2007. 294pp. Cloth. $75.00. ISBN: 9781593322090.
Reviewed by Mark F. Massoud, Jurisprudence and Social Policy Program, University of California, Berkeley. Email: massoud [at] Berkeley.edu.
How did human rights principles evolve into a body of international law? To what extent is international human rights law a feature of global western imperialism, and what is the role of non-state actors in the development of international human rights law? These questions, significant to scholars of international law and development, guide Stephen James’ analysis in UNIVERSAL HUMAN RIGHTS.
James’ answer is succinct: Human rights law is not a product of western hegemony. In fact, he argues, the opposite is true. The incorporation of human rights into international law “was achieved in the face of widespread and persistent western – including American – resistance” (p.251).
James’ interdisciplinary analysis roots itself in political theory around rights, and it equally engages legal history. He begins by presenting his understanding of human rights as universal and rooted in human dignity. James then chronologically tackles early conceptions of human rights as universal, from the likes of Aristotle, Cicero, Roman Catholic theologians of the Middle Ages, and Enlightenment thinkers such as Locke. He provides ample examples of real-world frustrations of these universalist philosophies of rights, including positivism and the emergence of a strengthened nation-state, along with slavery, sexism, and sectarianism. And to counter the caricature of the Enlightenment as offering the world only a liberal, individualistic conception of rights, James documents how influential philosophers of that era also supported economic and social rights as well as regulatory states.
Added value to the book (and to the argument about human rights’ diverse origins) comes from James’ discussion of both early and contemporary non-Western traditions. And whereas many studies of the evolution of human rights begin sometime after the 1945 Universal Declaration of Human Rights (UDHR), James confronts a critical, formative period, 1900-1939. It is through his examination of the early 20th century that his argument about the role of non-state actors crystallizes. That is, non-governmental organizations promoting the protection of minorities and indigenous groups pushed human rights on an international scale, particularly following the First World War and the founding of the League of Nations. These organized and mobilized groups included African American organizations – often neglected in the human rights literature – that linked themselves with emerging transnational struggles against colonialism in the global South during the first half of the 20th century. [*161]
The bulk of James’s book narrates the evolution of a human rights order arising from the aftermath of Nazism and World War II, and the development of the United Nations Charter, the UDHR, and the 1966 International Covenants on Civil and Political Rights, and on Economic, Social, and Cultural Rights – collectively, the International Bill of Rights. The history he portrays is one marked with domestic political disagreements played out on the international arena, confrontations between Cold War enemies, and battles on the frontlines of decolonization. The guiding frames for the book’s analysis are the consistently thwarted attempts by western powers, particularly the United States, to shape the content of human rights documents, and the relative success of non-governmental groups and smaller powers in influencing the scope of the documents. Here, James argues clearly that the International Bill of Rights emerged in large part because of widespread support among small and middle states and non-governmental groups, “in the face of often staunch US resistance” (p.154).
James’ research is thorough, weaving a lengthy history with a consistent narrative, which is helpful to the reader. Nevertheless, one could succumb (as James does in the book’s conclusion) to the lure of pinning obstacles to human rights on American hegemony. But this trap disables political scientists from dealing adequately with the fact that many poor countries have minimal rule of law – or rather, have too much law enforced by plural, divided, or repressive legal traditions. This brand of “repressive law” (Nonet and Selznick 2001) is all too common in unstable states and transitional democracies. It leads to uncertainty in the relationship between ruler and ruled, to gross violations of dignity, and to the obvious attraction by subjugated peoples in unstable or authoritarian states to promote the protections of international human rights law. James’ argument is at its most tenuous here: Saying that, for example, even “Muslim states” such as Syria and Iran supported the UDHR falls short of convincing the reader that human rights are themselves universal. After all, recent treaty adoptions – Saudi Arabia’s ratification of the Convention on the Elimination of All Forms of Discrimination Against Women while its national laws forbid women from foreign travel without the permission of a male “head of household,” and Sudan’s adoption of the Convention on the Rights of the Child while its military government and rebel groups deployed children to fight each other in Africa’s longest civil war – would suggest that some countries that openly support international human rights laws have little if any intent to obey them. Meanwhile, those countries that are serious about the rule of law have made more concerted efforts to understand and evaluate the limits to their domestic rule of law by the International Bill of Rights. In these ways, “human rights” loses its luster as a revered body of law, ushering in the range of arguments about its ultimate lack of both enforceability and universality.
Even if one were to agree that human rights are not a product of western imperialism, as James would urge us to do, then this conclusion does not help political scientists deal with the so-called elephant in the room: Rights – and human rights – themselves are rhetorical devices hegemonic on their own, [*162] regardless of the extent to which they accumulate western support. The paradox of human rights is this: While as a body of law they are narrow and legalistic, they are at the same time nearly ubiquitous in their ability to garner the sympathy of oppressed populations and their advocates. And as an essential element of public international law, human rights are also, for better or for worse, building blocks of the current world order, a system created by and predicated on the maintenance of state power vis-à-vis oppressed populations. Human rights, then, become an exploitable agreement pulled out of the filing cabinet by civilized nations (even the most democratic of which violate human rights in one way or another) or non-state actors in order to shame governments that ill-treat human beings.
Putting all this together, law emerges as a global commodity: It frames the relationship between state and non-state actors, while it at once oppresses and helps to liberate minorities from oppression. As UNIVERSAL HUMAN RIGHTS would suggest, human rights law has evolved organically with diverse origins often ignored by scholarly inquiry. International human rights law is shaped from “above” by the intellectual achievements in, among other arenas, classical and Enlightenment philosophy and by the two World Wars and Cold War of the 20th century, and it is shaped from “below” by anti-colonial movements and transnational activism around the protection of rights of women and minorities. The legacy of James’ book will be in its exposure of these multiple sources of human rights and their relationships to one another, and in chronicling the evolution of human rights from principles to laws.
Nonet, Philippe, and Philip Selznick. 2001. LAW & SOCIETY IN TRANSITION: TOWARD RESPONSIVE LAW (REVISED EDITION). New Brunswick: Transaction Publishers.
© Copyright 2008 by the author, Mark F. Massoud.