The idea of universal human rights seems weaker now than at any time in recent memory. The United States has struggled to build democracies in Iraq and Afghanistan. The Arab Spring has wilted, leaving Egypt in the hands of a de facto military autocracy and Syria in a state of horrific civil war. Meanwhile, the standing of the International Criminal Court continues to slip, especially among African countries. It is tempting to conclude that the movement for global human rights is crumbling.
But the question of where the human rights movement is heading also raises the question of where it came from. A number of scholars point to the period since the 1970s as the critical time when human rights took off. They describe a period characterized by three mutually reinforcing developments: powerful countries began to take human rights more seriously, powerful organizations and individuals took up the cause, much of the world came together to build international institutions to protect human rights. As these developments petered out in recent years -- so the argument goes -- the project of universal human rights has faltered.
Yet this narrative is false. In truth, the history of human rights is far longer and more contentious than is generally understood. Claims to rights have always been fraught with questions about who should be considered a rights-bearing individual in the first place. In that sense, the politics of human rights -- still at work today in places ranging from China to Egypt to Russia and Syria -- have always been more likely to generate conflict than consensus.
Three important aspects of human rights are often forgotten. The first is that human rights are a species of general individual rights: individuals claim them on the basis of their status as a particular kind of moral being not on the basis of contracts, customs, or social position. Second, human rights, like all individual rights, have practical force. Weak actors can invoke them against materially stronger actors or institutions; when a prisoner invokes her right not to be tortured, for example, she is wielding a principle to stop actions that she has no material capacity to prevent. Finally, the ability for people to enjoy human rights depends on the existence of legal and political institutions capable and willing to defend them.
Together, these features render human rights inherently contentious, and even politically explosive, in many societies. The idea that individuals have general rights that derive simply from their personhood is a direct challenge to the common belief that social position -- class, gender, rank, religion -- should be an important factor in determining one's power. And even in societies that have accepted the idea of general individual rights, battles have raged over who constitutes a “person” endowed with such rights.
Struggles for new rights always target existing social, political, and legal institutions, since these institutions codify and uphold the status quo. Campaigns for institutional change focus either on legal reform within an otherwise stable political system, a change in regime (by pushing for a shift from autarchy to democracy, for example), or, most dramatically, on the dismantling of the system of rule itself (by fighting for the dissolution of an empire, for instance).
And, for that reason, claiming individual rights most always involves creating political unrest. All hierarchical political orders rest on unequal distributions of political rights and entitlements. They are sustained by might and by their perceived legitimacy, by the perception that an unequal allocation of political entitlements is justified in relation to a given set of values.
The history of human rights, then, is a history of struggle and upheaval. In the contemporary world, human rights have significantly higher status than ever before --they are codified into binding international law; are recognized by a variety of states; can rely on nascent judicial institutions for their defense; and are regularly evoked by social movements fighting for political change -- but that status is the product of centuries of fighting. And the battles are still taking place today.
HISTORY OF STRUGGLE
Over the past five centuries, the proponents of general individual rights have waged their battle against empires -- specifically, the Holy Roman Empire, the Spanish Empire, and the great European empires of the nineteenth and twentieth centuries. These systems were quintessential hierarchies: they rested on an asymmetrical distribution of power between the ruling state and its citizens and the colonies and their subjects. They are built, therefore, at their very foundations, on regimes of unequal entitlements.
In the sixteenth century, the Protestant Reformation brought empire and rights into direct conflict. At that time, the Holy Roman Empire was the self-appointed guardian of the Roman Catholic Church. The status of both the empire and the church rested on a particular conception of individual salvation. Individuals gained salvation by faith and the performance of good works, the second of which gave the Catholic Church a crucial mediating role.
The Reformation challenged all of this. Christian reformers -- soon to be labeled Protestants -- claimed that individuals gained salvation through faith alone. And since the reformers believed that one's relationship with God was unmediated, they had a special interest in religious liberty. But such liberty posed a direct challenge to the Catholic Church’s role as a confessional middleman, and, in turn, posed a challenge to the Holy Roman Empire. The issue went on to fuel 120 years of conflict in Europe. Efforts to restore the peace and reunite Christian lands repeatedly failed. The 1648 Peace of Westphalia succeeded only because it addressed, fully and squarely, the problem of liberty of religious conscience, authorizing the development of politically and confessionally independent states, which compromised their sovereignty through international rules on minority rights.
Empire and individual rights again clashed in the dying years of the Spanish Empire. After Napoleon’s usurpation of the Spanish crown in 1808, insurgencies broke out across the empire. In 1810, a general assembly (or Cortes) was convened in the Spanish city of Cadiz to negotiate a new constitution for a post-Napoleonic empire. Liberals from the Iberian Peninsula and the Americas dominated the Cortes. They agreed, first, that Spain should have a constitutional monarchy, and second, that parliamentary institutions should represent individual citizens, not traditional estates or corporate bodies. The Peninsulares and the Americans fundamentally disagreed, however, on which of the empire’s inhabitants constituted individuals, or “rational adults” in the language of the day. For the Peninsulares, only those of Spanish blood counted; for the Americans, Creoles, freed slaves, and native Americans (although not slaves or women) were individuals with rights to equal political representation.
The constitution that grew out of these disputes, the 1812 Spanish Constitution, was the most liberal of the time, loathed by the ancien regime. Yet it was also fundamentally discriminatory. Outnumbered at the Cortes by the Peninsulares, the Americans lost all of the key votes, denying a large portion of their population any rights to equal political representation. In turn, instead of securing Madrid's control over the Indies, the constitution radicalized South American insurgents, fuelling a wave of secessionist wars that, by 1825, had torn the empire into 17 independent states.
THE POST-EMPIRE WORLD
After 1945, the clash between imperial hierarchy and individual rights took a new turn, with profound implications for the global distribution of political authority. Grievances about the systematic denial of equal rights to subject peoples fueled many anticolonial struggles. And the emergent human rights bodies of the United Nations became forum for airing these grievances. It was there that the concept of empire itself was delegitimized, pulling the moral rug from beneath individual empires.
The West has long congratulated itself for building the post-1945 international human rights regime, but in reality, the crucial agents were early postcolonial states, such as Chile, Egypt, India, Mexico, and the Philippines. Not only did they defeat Western attempts to have “colonial” and “federal state” exemptions included in the two international covenants on human rights. They also fought a long, drawn-out battle for the individual’s right to petition the United Nations directly, resulting eventually in the First Optional Protocol to the International Covenant on Civil and Political Rights. Even more important, they rehabilitated the national right to self-determination, grafting it to the human rights norms they were busily constructing. From then on, self-determination was no longer just a right of ethnically defined nations, as it had been after World War I. Instead, it was a necessary prerequisite for the recognition and protection of fundamental human rights.
This had a transformative impact. In the immediate aftermath of World War II, empires were still considered entirely legitimate forms of political rule. Indeed, imperial powers routinely asserted as much, and their claims were affirmed in institutions such as the United Nations Trusteeship system. By 1960, however, postcolonial states had successfully recast empire as “a denial of fundamental human rights,” in the words of UN General Assembly Resolution 1514. With empire now a synonym for domination and oppression, Europe’s remaining empires collapsed precipitously, all but disappearing by 1975.
In the most recent historical narratives of human rights, it has been fashionable to discount the importance of this postwar period, and to see the period after 1970 as far more important. But that is unjust. Over the previous five centuries, imperial hierarchy had been the target of human rights struggles, and the sovereign state was the institutional ideal. The post-war period saw the first codification of legally binding, genuinely universal human rights norms and the creation of the world’s first global system of sovereign states. In doing so, it changed fundamentally the institutional conditions in which struggles for individual rights are fought out.
Namely, by the 1970s, the sovereign state became the new target. Its limits as a guarantor of basic human rights had quickly become apparent: the proliferation of states only seemed to multiply human rights violations. But human rights proponents now had an advantage. Whereas struggles against the violations of sovereign states were once largely, if not exclusively, obliged to remain local affairs, they were now embedded within a new global human rights politics. There was now an international human rights regime -- consisting of new international institutions and advocacy organizations, with strong backing from a handful of governments -- that gave rights activists added force.
This history presents four lessons. First, there has always been a fundamental tension between hierarchical systems of rule, held together by regimes of unequal social and political entitlements, and the idea of general individual rights (of which human rights are the most recent manifestation). The notion that individuals have civil and political rights simply by virtue of being alive is an inherently subversive challenge to unequal arrangements based on class, gender, political ideology, race, and religion.
Second, Western powers and international institutions have never been the sole, or even principal, advocates for individual rights. The post-1970s era was unique in this regard, marked as it was by heightened engagement by Western powers and civil society. Historically, though, subject peoples have been the most crucial agents, appropriating ideas about rights, and wielding them in struggles over political legitimacy. At best, the West has been an unreliable ally; at worst, and more commonly, an active opponent.
Third, ideas about general individual rights, and human rights more specifically, did not diffuse in a linear fashion, passing from the West to the rest of the world as a prepackaged bundle. As subject peoples have appropriated ideas about rights, they have reinterpreted them in light of their own cultures and experiences. It is notable that, in negotiating the two international covenants on human rights, postcolonial states openly confronted the West in insisting that the new norms had to apply to all humans, without any exemptions for imperial spheres of influence.