The most obvious value of human rights to the post-Holocaust world has been to set a limit on government power and shine a light on its abuses. The limit comes from the revolutionary idea, conceived in the immediate aftermath of World War II, that all governments are constrained in their actions by the inherent dignity and inalienable rights of their people. The light comes from the people themselves, who have since risen up the world over to defend the fundamental principle that national sovereignty can never be a defense for barbarity and to demand accountability from those who violate this cardinal rule. “Save us from ourselves,” Eleanor Roosevelt said as she presided over the United Nations' adoption of the Universal Declaration of Human Rights in 1948, “and show us a vision of a world made new.”
The value of this new vision of a world governed by human rights has been less obvious to one of its original proponents: the United States. As Harold Koh points out in this special report, the years between the Second World War and the current global war on terrorism saw a willingness on the part of the U.S. government to promote a set of universal standards abroad that it proved unwilling, with few exceptions, to apply at home. The result was a steady devaluation of human rights in the United States that is epitomized, as Elisa Massimino, Deborah Pearlstein, and Alison Parker recount, by the current U.S. administration's defense of torture, its use of detention without review, and its doctrine of preemptive war. The Supreme Court's recent need to remind the executive branch (in Hamdi v. Rumsfeld) that “a state of war is not a blank check for the president when it comes to the rights of the nation's citizens” indicates just how far the U.S. government has strayed from the core values of human rights. The Court's majority decision to do so, however, reflects something else: the increasing revaluation of human rights, not only by the U.S. judiciary but also by the U.S. rights community and the public more generally.
The U.S. courts and the legal defense organizations like the American Civil Liberties Union that appear before them are increasingly pointing to foreign and international rights standards and jurisprudence. In its last two terms alone, the U.S. Supreme Court found it persuasive to cite human-rights treaties prohibiting race and sex discrimination, a European Court of Human Rights sodomy decision, international practices with respect to the death penalty, and the law of nations in deciding important cases addressing affirmative action, same-sex conduct, execution of people with mental retardation, and the rights of detainees at Guantanamo Bay, Cuba. “We face an increasing number of domestic legal questions that directly implicate foreign or international law,” Supreme Court Justice Stephen Breyer told the American Society of International Law in April 2003. “This change reflects the ‘globalization' of human rights, a phrase that refers to the ever-stronger consensus … as to the importance of protecting basic human rights … and the related decision to enlist judges … as instruments to help make that protection effective in practice.” In U.S. courts today, human rights and other international legal norms are clearly seen as more reliable guideposts to domestic issues than they were in the past.
Within the U.S. rights community generally, reliance on human rights is now seen as a proactive approach to domestic advocacy in several key ways. First, as Gay McDougall recalls, by affirming federal obligations to uphold fundamental freedoms, human rights offer a powerful counterbalance to states rights' arguments that have curtailed national-rights advocacy since the days of Jim Crow. Second, as Cass Sunstein argues, by codifying the obligation of governments to ensure economic, social, and cultural rights, human rights set forth a progressive alternative to the “up-by-your-bootstraps” approach to eliminating poverty that now dominates U.S. policy. Third, as several authors here suggest, by framing rights in human rather than single-issue or identity terms, human rights supply a viable antidote to the turf and other divisions endemic to U.S. social-justice work. And by connecting national to international justice, human-rights standards provide a welcome check on U.S. unilateralist tendencies that have rarely been more blatant or more damaging than they are today.
Finally, human rights have tremendous value at the grass-roots level. Local communities across the country are forceful voices for human rights in the United States. For poor, immigrant, and minority communities in the United States, the notion of human rights as dependent on one's humanity rather than on one's status is particularly resonant. “Human rights give the people most affected by abuse a place at the table,” says Ajamu Baraka, executive director of the national Network for Human Rights in the United States, a new membership group of more than 100 mostly community-based organizations. “We have these rights simply by being human, and for disenfranchised and vulnerable communities in this country, that is a very hopeful and powerful basis for advocacy.”
At the Democratic national convention in 1948, Hubert Humphrey urged the Democratic Party to adopt a civil-rights platform to “get out of the shadow of states' rights and walk forthrightly into the bright sunshine of human rights.” Perhaps, given the growing judicial, activist, and popular recourse to human rights in the United States (and coupled with some prescient national leadership), the journey that began with the passage of the Voting Rights and Civil Rights acts in the past century might continue with the adoption of major human-rights policies in this one. These could include U.S. support for the International Criminal Court, legislation to prohibit torture by U.S. officials wherever it occurs, and ratification of the international treaties that defend women's, children's, economic, social, and cultural rights. With these steps, the United States might more fully embody the human-rights values of dignity, equality, and accountability that it helped to envision for the world more that 50 years ago -- and begin, before it's too late, to save us from ourselves.
Dorothy Q. Thomas has worked as a consultant for several human rights organizations.
