Seeing the Myth in Human Rights by Reinbold Jenna;

Author:Reinbold, Jenna;
Language: eng
Format: epub
Publisher: University of Pennsylvania Press, Inc.
Published: 2017-04-14T04:00:00+00:00

The “Legal Personality”: The Right to Have Rights

Commission members’ heavy reliance on the foil of Nazi Germany propelled them toward a very particular vision of legal orderliness. Under the reign of the Reich, for example, the veneration of the Volksgemeinschaft had proven nearly synonymous with a willingness to suspend or amend German law in favor of the nearly absolute authority of the Führer.29 In response, the Declaration’s framers endeavored to articulate a vision of the rule of law that would specifically push back against the ability of a state to accomplish that hallmark of totalitarian governance: “the subordination of law and knowledge to politics.”30 The Reich, for example, had utilized denationalization as a key means of manipulating its populations and protecting its interests. In response, the Commission sought to formulate a legal orderliness that would prevent states from arbitrarily withdrawing the mantle of law from certain individuals and groups—a legal orderliness that would be capable of affording what Cassin describes as “access to justice” under all circumstances.31 Finally, the history of the Final Solution had offered the most striking possible example of the manner in which the rights of stateless peoples exist in practice only to the extent that other states are willing to step up, often against their own national interests, and guarantee them. In response, the Commission endeavored to disrupt the state-centeredness of preexisting human rights mechanisms—to anchor the mechanisms of human rights law first and foremost within individuals and only secondarily within political bodies, and thus to rupture what Arendt famously identified as the practical equivalence of “the rights of man [and] the rights of peoples in the European nation-state system.”32 Though it is possible—and, within certain contexts, crucial—to raise the question of the Declaration’s ultimate success in rectifying the various factors that gave rise to the legal violations of the wartime era, the history of the Commission’s negotiations leaves no doubt that its members instinctively linked the success of the Declaration to its capacity to bring every human being irrevocably within the fold of a legal system in order to prevent anyone from ever again being “forced outside the pale of the law.”33 What is more, the Commission endeavored to accomplish this in a manner that would inspire universal compliance independently of any actual mechanisms of legal enforcement.

Precisely how did the Commission accomplish this goal of ensuring universal access to the rule of law? The Declaration’s framers were most assuredly not “internationalists”; they did not seek merely to reinvigorate the state-centric orderliness of previous eras.34 While they spoke on behalf of their governments, Commission members did not “negotiate on the basis of reciprocity, which is what nation-states do in most of their dealings with one another.”35 Rather, the Declaration’s framers were driven together by what Morsink describes as

a vision of cosmopolitan justice, which views all human beings as members of the same family of mankind, each of them born with inherent rights. . . . As cosmopolitans who had their minds set on individual human beings,

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