Favourite Readings 2018: Revisiting the Postwar Moment

Editor’s note: Continuing a tradition started by Isabel Feichtner a few years ago, EJIL’s Review Editor, Christian J. Tams, invited members of the EJIL board to offer short reflections on their favourite books of the year 2018. In the following days we will present some selections here on EJIL:Talk! They comprise a wide range of books, from (a few) doctrinal legal texts, to (many more) historical accounts and works of fiction. Unlike in many official book prize competitions, 2018 does not necessarily stand for the year of publication; rather, board members were asked to list books they read or re-read this year, and found inspiring or enjoyable. Today we bring you 2018 favourite reads from Doreen Lustig

In 2018, the international legal world as we know it has faced deep and significant challenges, including the attack on democracies and the rise of authoritarianism, the preference of both the American and Chinese governments for bilateralism over multilateralism or the destabilizing of global economic institutions. How and what does one read at a time like this? Most of the books I survey here revisit the history of the postwar moment and its hopes for a future that is now our present. It may not be surprising that in this moment of bewilderment we return to history and early beginnings, searching for answers. We look for parallels in the past. We look more closely at the key architects of international law and how their ideas shaped (or not) the legal reality over time. We examine whose ideas took prominence and why. We search for the roads not taken. This is by no means a comprehensive list for such an inquiry, but I hope that reading these books may offer some important clues in working with these questions.

Let me open with a book on the transition from the interwar era of minority rights to the postwar era. James Loeffler’s Rooted Cosmopolitans: Jews and Human Rights in the Twentieth Century (Yale University Press, 2018) examines the tension between Jewish lawyers’ great hopes for a postwar human rights order, one that would take seriously the plight and persecution of minority groups, and their limited influence on its content and design. This is an ambitious work of intellectual history that aspires to unravel the contributions of Jewish lawyers to international law. Loeffler’s telling of this history has much to offer. Despite its often celebratory tone, it is perhaps not so much a history of the unknown Jewish lawyers’ contribution to the project of international human rights, as a narrative on their failed attempts to make a difference in the UN arena. Loeffler weaves together the multiplicity of the biographies of figures such as Hersch Lauterpacht (who needs no introduction), Jacob Robinson (a key figure in the minority regime of the League of Nations, the Nuremberg Trials, the UN Commission of Human Rights, Israel’s Legal Counsel to the UN and one of the architects of the Eichmann trial) and Peter Benenson (the founder of Amnesty International) and presents their shared consciousness on international law and human rights. The sensibility shared by Loeffler’s heroes is their tendency to oscillate between Zionist and cosmopolitan visions while sustaining their loyalty to both. It is this ambiguity or ambivalence that is captured in the author’s term “rooted cosmopolitans.”

Why is the specifically Jewish identity of different lawyers relevant to the study of their ideas and contributions to international law? What does writing a Jewish history of international law mean in the broader context of the history of international law or the history of human rights? Did these men conceive of themselves as part of a distinct ‘group’ holding a common consciousness? Would they like us to read their separate works as parts of a unified tradition of international legal thought? These are but a few of the serious questions Loeffler’s book poses. I suspect that at least some of these men (very few women appear in this work) espoused cosmopolitanism not merely as part of the impulse to save the Jewish community, but as a life-long normative commitment that could not be conceptually reconciled with such instrumental reading of its cause. Nevertheless, while the private biographies of these men cannot hold the only key to the meaning of their life’s work, Loeffler’s masterful attempt to interpret their legal thinking against the backdrop of their personal circumstances makes for riveting reading and a fascinating work of history.

If Loeffler chronicles the failings of the Jewish lobby to restore the protection of collective rights, Samuel Moyn’s Not Enough: Human Rights in an Unequal World (Harvard University Press, 2018) targets distributive justice as the lost cause of human rights. After introducing a new periodization to human rights history in The Last Utopia and discovering the origins of human dignity in pre-World War II Christian churches and religious thought in Christian Human Rights, Moyn’s Not Enough centers on the relationship between human rights and social and economic equality.

Moyn chronicles the emergence of both human rights and market fundamentalism in the 1970s, and enquires into whether their troubling, parallel rise to prominence has any bearing on social inequality. Indeed, international legal scholars such as Martti Koskenniemi and David Kennedy, alongside constitutional scholars, have long criticized human rights’ limited concern for social equality. The novelty and contribution of Not Enough lie in its attempt to embed the critical arguments and test them against the history of ideas, institutions and practices related to human rights, social equality and free market ideologies.

The book opens with a genealogy of distributive ideas that Moyn compiles under the title ‘the Jacobin thesis’. The Jacobin thesis is “a vision of what would come to be called ‘property-owning democracy’, which hoped to guarantee the ownership of some land and the participation in the economy of every man, with fair wages or, for those who could not work, backup support, in order to establish shares in the common good” (page 23). This genealogy on the history of distributive theory – an intellectual tour de force – closes with John Rawls, dubbed by Moyn “the last Jacobin.” The book further juxtaposes the rising star of the Welfare State from across the North Atlantic with the history of the Universal Declaration of Human Rights (UDHR). The ideal of the Welfare State (despite its troubling exclusionary aspects –vis-à-vis colonial subjects or women, for instance) signaled an unprecedented intervention by the state in economic affairs. Viewed from this vantage point, the inclusion of economic and social rights in the UDHR is completely unsurprising. Social rights had been part of the canon of national constitutions since 1917. However, these constitutions referred to social rights to affirm the state’s capacity to promote them. There was no debate on how they were to be enforced: “they were linked to the idealization of high capacity states and their empowerment to save the public realm from private interests, rather than to force public power to vindicate fully “private” rights” (page 55). Moyn further points to the gulf between the postwar commitment of Europeans and Latin Americans to the cause of national welfare and the limited consensus among Americans on this issue.

The Welfare State remained a domestic concern until the New International Economic Order (NIEO) emerged as an ideological and political force, articulating what a vision of global justice could look like and what it might mean to think of equality on a global scale. The concluding chapters of Moyn’s book join the immense scholarly interest in the NIEO phenomenon and tell the history of this road not taken and how it was eclipsed by the “real new international economic order” of market fundamentalism and transnational human rights.

Samuel Moyn’s book is a timely work of history. Upon reading, one wonders: Could the postwar ‘Welfare recipe’ adapt to the post-global age? Will the NIEO vision of global justice suffice? What would a theory of global justice that addresses the present-day North/South divide (with its important differences from the 1970s divide) and the growing inequalities within states (in both the North and the South) look like? Should the crisis of the middle class concern international lawyers, and if so, how? Moyn’s study may caution us against transplanting ready-made legal ideas from the past, admit that what we had was not enough and open a conversation on the need for new ways to think on global justice.

Is the correlation between the human rights project and notions of limited intervention in the markets a plot twist of the 1970s, or was it there all along, from the early days of international human rights law? Marco Duranti, in The Conservative Human Rights Revolution: European Identity, Transnational Politics and the Origins of the European Convention (Oxford University Press, 2017), addresses this question in the context of the European Convention on Human Rights (ECHR). The history of the ECHR has long been a fascinating subject of scholarly research – A.W. Brian Simpson’s Human Rights and the End of Empire, Ed Bates’ The Evolution of the European Convention of Human Rights or Andrew Moravcsic’s article The Origins of Human Rights Regimes, to mention but three works. Could one tell a new story on this well-studied historical project? In The Conservative Human Rights Revolution, Marco Duranti, Senior Lecturer in Modern European and International History at the University of Sydney, joins this body of literature and offers some surprising insights.

 Duranti proposes a history of the Convention that analyzes how the inner-political struggles in Britain and France shaped and informed its content and design. He tells how French and British conservatives’ failure to promote their views domestically led them to shift their efforts to the transnational arena, where they could “enshrine[d] human rights as European values in the service of a nostalgic Christian vision of the European legal order, not a liberal cosmopolitan one” (p. 3). Since the British Labor government led by Clement Atlee regarded the European project as a Trojan horse and a distraction from building socialism at home, the ‘coast was clear’ for conservatives to pursue their values and take the lead in the design of the ECHR. The leading British figures in Duranti’s story are Winston Churchill, advocating European imperialism, and David Maxwell Fyfe, a champion for the free market who opposed social and economic rights. Conversely, French protagonists such as Alexandre Marc envisioned a corporatist scheme for the future of human rights – a “European ‘bill of rights’ as a vehicle for the realization of a communitarian rights revolution” (page 275).

Duranti’s book is a must-read for those interested in the history of human rights, European integration and the relationship between international regulation and domestic politics. One possible conclusion from this history may attribute the later failings of the Welfare State discussed in Samuel Moyn’s book to the ECHR. But such conclusions may be too hasty. Duranti’s book engages with the early conservative influence on the ECHR and the vision of European integration. As Guy Sinclair’s book (reviewed next) demonstrates, the intellectual origins of international institutions cannot fully determine their future. These institutions tend to have a life of their own and may evolve in unintended directions. Moreover, as argued by Udi Greenberg (Udi Greenberg, Against Conservative Internationalism, Dissent 181 (April 2017)), such a reading undermines too easily the role and influence of domestic politics on the decline of progressive policies. Duranti’s book is, indeed, relevant to the politics of our time, but it is so precisely because it serves as a model for the tempered, rigorous and nuanced conversation we ought to be having on the longer and more complex history of the relationship between the ECHR and the politics of the Welfare State – one that begins, rather than ends, in 1950.

Guy Sinclair’s To Reform the World: International Organizations and the Making of Modern States (Oxford University Press, 2017), winner of the 2018 European Society of International Law Book Prize, examines the expansion of powers exercised by international organizations under international law. Sinclair’s eloquent writing and meticulous research address three case studies: the International Labour Organization (ILO) from 1920 until World War II; the emergence of United Nations peacekeeping in the 1950s and early 1960s; and the World Bank’s ‘return to governance,’ which reached its zenith in the 1990s. In each of these cases, Sinclair unravels how these international organizations grew their powers, and problematizes the progressive allure attributed to such developments.

Sinclair’s narrative demonstrates the curious journeys of constitutional ideas from the domestic to the international realm. The constitutional imagination of the interwar years found its way into debates over ‘social government’ at the ILO. The New Deal experience of the Welfare–administrative State was projected onto the global institutions of the post-WW2 era. Here, Sinclair elegantly describes how policymakers at the UN drew inspiration from the American constitutional law experience to enhance the powers of the General Assembly and the Secretary-General amid the incompetence of the Security Council. A key example of these processes is the ‘reinvention of peacekeeping’ under the leadership of Dag Hammarskjöld. Sinclair’s story chronicles how the establishment of the United Nations Emergency Force was an attempt to accommodate the concerns of small states about the direct involvement of Europe’s greatest powers in the Suez crisis, which led to the ONUC (Opération des Nations Unies au Congo) and shifted international peacekeeping efforts toward the internal affairs of states. Sinclair further demonstrates how the International Court of Justice’s advisory opinions on Reparations for Injuries and Certain Expenses set empowered this process of constitutional growth.

The book’s narrative clearly echoes the realist critique on the considerable influence of powerful states on international organizations: the United Kingdom and France in the context of the ILO, and the United States in the context of the UN and the World Bank. However, it also exposes the potential influence of smaller, less powerful actors who operate ‘from below’ through transnational networks and other means. Methodologically, Sinclair’s choice to read these three distinct cases together, and the duration of the periods he examines, enable him to make broader claims about international organizations writ large, and to stress the importance of engaging with the longer histories of such institutions.

One of the most surprising features of Sinclair’s history is that his heroes are not only the international organizations he studies but also the ideal of the state they wish to promote. His critique is powerful because it delves into the inner workings of these institutions and exposes their deep logics. Indeed, critical histories of international law tend to embrace the internal point of view of international legal agents as the ultimate perspective for developing their critique. Since international lawyers tend to focus on formal global institutions as the most relevant arenas for international practice, historians follow their lead and study the histories of these institutions. However, adopting the prevailing perspectives lawyers hold on international law may limit the scope of our critique. Leora Bilsky’s The Holocaust, Corporations and the Law: Unfinished Business (Michigan University Press, 2017) challenges that tendency by drawing attention to two important but neglected issues in international law: bureaucratic crimes and corporate responsibility.

Leora Bilsky explores the history of the American restitution lawsuits against German corporations and Swiss banks in the 1990s to win reparations for victims. Bilsky calls for critical reflection on what has remained repressed and marginalized in the history and theory of international responsibility: the responsibility of business corporations. According to the many critics of these cases, the absence of a principled judgment represents a missed opportunity to achieve belated justice and to contribute to the development of norms on corporate responsibility in international law. Bilsky presents an alternative reading. From a historical point of view, this litigation, termed transnational Holocaust litigation (THL), facilitated a new historiography that was not, and could not, be available before.

 Furthermore, from a normative perspective, the class actions introduced ways to deal with the liability of bureaucratic institutions due to such factors as the group structure of the claim and the change in the role of the court. Bilsky further demonstrates how the monetary character of the remedy and the lack of a clear judgment assigning legal responsibility to specific defendants led to the spreading of the financial burden of legal liability between the state and business actors in ways that reflect their shared responsibility. Bilsky follows the spirit of other books in this survey and invites us to think critically and constructively on the doors THL may have opened, rather than narrow our outlook to the ones it regrettably closed.

***

For many international lawyers, the postwar moment is synonymous with human rights, the outlawing of war, decolonization and the quest for development. Reading the books I have briefly discussed here makes a compelling, erudite case for revisiting these narratives. The denial of collective rights and group identity in the formative years of human rights (Sinclair), the rising income inequality and the decline of the Welfare State (Moyn), as well as the limited accountability of market actors (Bilsky), are neglected areas of international legal research unearthed by these manuscripts. Indeed, to unravel the deep causes of the crisis of international institutions and democracy more broadly may require us to venture further away to even less familiar territories. We will probably need to delve more deeply into the role and influence of market actors, constitutional design and the interplay between these aspects and international legal institutions. We could well draw inspiration from the forthcoming Anti-Oligarchy Constitution by Joseph R. Fishkin and William E. Forbath (Harvard University Press) or Adam Winkler’s We the Corporations: How American Businesses Won Their Civil Rights (Liveright, 2018), a work particularly pertinent to thinking on corporations, regulatory capture and equal distribution.

But a Christmas review cannot end with the grim reality and its dark causes. Indeed, this is also the moment for new political and legal forces. The books in this modest survey tell the histories of alternative modes of struggle in the international arena. Reflecting on the network of Jewish international lawyers (Loeffler), postcolonial coalitions (Moyn, Sinclair), the coalition of victims (Bilsky) or transnational networks (Duranti) could spark our legal imagination to think anew on international law and the possibilities it may hold as a deliberative space for new modes of resistance.