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International Legitimacy and World Society$

Ian Clark

Print publication date: 2007

Print ISBN-13: 9780199297009

Published to Oxford Scholarship Online: May 2007

DOI: 10.1093/acprof:oso/9780199297009.001.0001

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San Francisco and Human Rights, 1945

San Francisco and Human Rights, 1945

Chapter:
(p.131) 6 San Francisco and Human Rights, 1945
Source:
International Legitimacy and World Society
Author(s):

Ian Clark (Contributor Webpage)

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199297009.003.0007

Abstract and Keywords

The draft proposals for the United Nations Charter that emerged from Dumbarton Oaks allowed only for one brief mention of human rights. The final version agreed at San Francisco gave human rights a much higher profile. Why did this change take place? There is a substantial body of literature that accounts for it exclusively in terms of the activities of the US Consultants (representatives of NGOs), attached to the US Delegation. However, the role of Latin American states, as well as of the Soviet Union, needs to be remembered. The chapter draws attention to the problems surrounding the heroic role of the US consultants. It traces the evolution of thinking about human rights during the war years, culminating in the attendance of some 1,200 representatives of NGOs at the San Francisco conference. There is no doubt, therefore, that state officials were conscious of wide public expectations on the human rights front. Since popular support for the UN would be vital to its future effectiveness, respect for human rights can be seen as a kind of ‘social wage’ in return. This gave the individual a new standing in international society and international law.

Keywords:   Dumbarton Oaks, international law, international society, NGOs, United Nations Charter, US Consultants

How and why did the human rights provisions in the UN Charter come to occupy so much more prominent a position than had been originally envisaged at Dumbarton Oaks just a few months earlier? What was the source of this elevation? These are interesting historical questions in their own right, but have a particular resonance in the context of this study. Could it be that there was some effective world‐society push that contributed to their inclusion in a formal document that was, in many ways, an attempt to reconstitute the bases of international society? ‘What the San Francisco conference did, under the official and unofficial pressures brought to bear, was to respect these phrases in several different contexts, giving them prominence in the Charter’ (Corbett 1953: 35). If so, why did international society accede to these pressures?

Historians of human rights invariably draw attention to the contrast between the high profile of human rights in the Charter, on the one hand, and their relative neglect in both the League Covenant and the Dumbarton Oaks proposals, on the other. The question as to why the resulting shift then occurred is a very natural one to pose. Although the League was to deal, in practice, with various issues of human rights—most notably with regard to minorities—the Covenant nowhere mentions human rights by name (Bennett 1977: 234). The paradox is that ‘the notoriously idealist Covenant’ (Donnelly 1999: 72–3) fails to mention them, whereas the more ‘realist’ Charter gives them a certain pride of place. The transition, in retrospect, appears to have been even more abrupt. As we shall see, the Dumbarton Oaks proposals intended only one brief passing mention of human rights—and this had been controversial enough at the time—in the context of economic and social cooperation (Humphrey 1984: 12; Burgers 1992: 474). Indeed, it has been asserted that it was to be in the area of human rights that the Charter ‘amounted to the most significant changes from the Dumbarton Oaks proposals’ (Borgwardt 2005: 184). The then US Secretary of State at San Francisco was to ask the question in its aftermath: ‘Why is there such a marked difference in emphasis between the two documents?’ His own answer was instructive: ‘It was primarily the influence of public opinion’, he contended, ‘resulting from extended public examination of the Dumbarton Oaks Proposals both here and overseas’ (p.132) (Stettinius 1946: 1). Was it then by this route that world society was enabled to make its presence felt?

The adoption by international society of a new norm on human rights in 1945 does seem a watershed event (Donnelly 2003). This allows us to explore the general questions at the heart of this study. As expressed by one student of the emergence and adoption of new international norms, ‘what is needed is a deeper understanding that accounts for how norms gain authority and how normative authority interacts with motives of state and non‐state actors’ (Clark, A. M. 2001: 27). In her own account, she suggests the conclusion that ‘NGOs, through deliberate social action, build and shape norms, especially principled ones, that would be unlikely to emerge naturally out of state considerations of self‐interest’ (Clark, A. M. 2001: 138). Unsurprisingly, those taking a more state‐centric position would reject, or certainly qualify, any such suggestion. They see NGOs as secondary, not primary, referents, and as being ‘dependent’ variables in their activities. For Jackson, it is self‐evident that ‘sovereign states and the society of states are …preconditions of transnational society’, and NGOs operate only to the extent that the ‘states system opens a political space’ for them to do so (Jackson 2000: 107–10).

Since human rights norms are so inherently contentious for the states system (Clark, A. M. 2001: 18–19), their adoption by international society offers a particularly fruitful case study of some of these propositions and contending claims. This is especially so with regard to the drafting of the UN Charter at San Francisco since, at first glance, it appears a telling demonstration of the claim that the initiative, in this case, came from outside international society, and was essentially driven by a group of NGOs. Indeed, in much of the literature, this is the classic illustration of such an intervention in international society by world‐society groups. Referring to the cluster of NGO Consultants who accompanied the US delegation to San Francisco, one exponent of this thesis roundly claims that ‘when comparison is made between the actual proposals of the consultants …with the human rights references in the Charter itself, one is struck by the remarkable impact that the ideas and language of the NGOs exerted on the very genesis of human rights in the UN system’ (Korey 1998: 41).

Not only were the NGOs to be instrumental in the drafting of the Charter, but also their longer‐term position, as previously within the ILO, was to be institutionalized within ECOSOC, under Article 71 (Eichelberger 1977: 272–3), thus giving NGOs a continuing foothold within an international‐society institution. This, it was claimed, amounted to little less than ‘a revolution in international diplomacy’ (Korey 1998: 31). Set against such bold perspectives, we encounter a dose of much colder water when we are reminded elsewhere that ‘human rights as such became a formal part of international relations (p.133) when important states believed that universal human rights affected their own self‐interests’ (Forsythe 2000: 35). It will be the task of this chapter to pick its way through these sharply contrasting accounts.

The claims made on behalf of non‐state actors in establishing the human rights regime within the Charter will be subjected to detailed examination below, as they are central to the continuing interests of this book. Be it noted, however, that even if they were to be accepted, they would still leave a number of related questions unanswered. Given that the NGOs under consideration were predominantly from the USA, does this mean that it was only pressure upon the US government that was decisive, and that the running was above all made by the US authorities, whether or not pressed to do so by non‐governmental groups? Why then was it equally the case that the ‘US proceeded with the utmost caution’ (Cassese 1992: 25)? Did no other states have a decisive role to play? Even if so, what were the calculations of the US government in succumbing to this pressure? Was the government wholly passive in the face of this leverage from civil‐society groups? We are led to examine this carefully by the recollection that it was the state department that had itself initiated the ‘consultation’ with public opinion, to head off any rejectionist sentiment in the country (Korey 1998: 30; Russell 1958: 594). The consultant organizations invited to San Francisco were there, Stettinius candidly observed, ‘to ensure their support for the results of the Conference’ (Russell 1958: 595).

Finally, given that, at the very least, the four sponsoring powers from Dumbarton Oaks had to agree to the modifications to the original proposals, why did those other powers decide to go along with any US initiative to heighten the profile of human rights in the final version of the Charter? ‘How this was achieved’, notes one key protagonist coyly, ‘has never been explained’ (Humphrey 1984: 12–13). What is offered in much of the literature as the answer to the puzzle turns out, on closer inspection, to present as many puzzles of its own. Before any attempt is made to resolve these, we need to begin with the relevant historical context.

The Historical Background

As noted, the League had already undertaken work in the area of human rights, but not by name. This work related mostly to protection of minorities, to issues of labour under the ILO, and to a range of social issues for the protection of women and children. Notably, if anything, it was the general disenchantment with the difficulties of dealing with minority ‘rights’ that helped encourage the different framework of human rights, as a means to (p.134) sidestepping some of these problems. But there is general agreement that it was only with the onset of the Second World War that there was finally sparked enough interest in the advancement of the cause of human rights by that name. To some degree, this was based on the realization that it was the violation of human rights that had contributed to the onset of the war (and not, as became more fashionable to think later on, because the war had made possible the gross violation of human rights). It was ‘tyranny at home’ that had led to ‘military aggression abroad’, and hence any future international organization devoted to prevention of the latter would need to deal with its root cause in the former (Sellars 2002: ix–x).

The language of human rights surfaced conspicuously at the highest political levels early in the war. The examples commonly referred to are President Roosevelt's Four Freedoms speech on 6 January 1941, the Atlantic Charter in August of the same year, and the Declaration of the United Nations on 1 January 1942 (Sands 2005: 9–10; Donnelly 1999: 72; Burgers 1992: 470). The Atlantic Charter pledged assurance that ‘all the men in all the lands may live out their lives in freedom from fear and want’ (Borgwardt 2005: 304). The Declaration adapted this Churchillian phrase into wording calling for the preservation of ‘human rights and justice in their own lands as well as in all other lands’ (Eichelberger 1977: 188). As its most recent historian has powerfully argued, the contemporary understandings of the signatories to the Atlantic Charter were to be quite different from the historic reception of that document, and it was to take on a powerful symbolic role well beyond the immediate goals and aspirations of its creators. What its language did was to imply ‘that the individual was a legitimate object of international concern’ (Borgwardt 2005: 29).

Human rights early became the subject of intensive discussion and planning for the post‐war world within the US administration, particularly with regard to the creation of a future international organization. Much of this work was undertaken during 1942. The Advisory Committee on Post‐War Foreign Policy Subcommittee began to consider a possible bill of rights (United States Department of State 1950: 84), and by the end of the year such a draft bill was ready (United States Department of State 1950: 115–16; Russell 1959: 323–4). This line of thought reflected the weighty tradition of the bill of rights in the constitution of the United States and, in terms of this American planning for the post‐war world, it followed naturally that ‘interest centered on a possible international bill of rights as an integral part of the new world order’ (Russell 1958: 323). It should be noted, however, that in the draft bill, dated 3 December 1942, Article XVI read: ‘These human rights shall be guaranteed by and constitute a part of the supreme law of each state and shall be observed and enforced by its administrative and judicial authorities’ (p.135) (United States Department of State 1950: 485). There was, as this makes clear, to be no international enforcement. The general issue of enforcement was the perceived stumbling block of all these tentative schemes. After a hiatus, the State Department returned to the task in 1944. By that stage, it had clearly decided that specification of a detailed bill of rights needed to be separated from the devising of the constitution of the new international organization (Russell 1958: 329).

US plans became the basic document upon which the Dumbarton Oaks conversations proceeded, in two stages, in the early autumn of 1944. What was decided among the sponsoring powers during these discussions is illustrative of a number of interesting themes that are important for the subsequent unfolding of this story. From the record, it is clear that the inclusion of any reference to human rights in the Dumbarton Oaks version is attributable to US initiative and persistence. The discussions revealed interesting, and crosscutting, alignments. On the general issue of including a body on Economic and Social Co‐operation within the UN, the United States and Britain maintained a common front against Soviet resistance, Gromyko arguing that if there were to be any such body, it should be separate from the main organization, which itself should concentrate exclusively on security (Hoopes and Brinkley 1997: 143; Hilderbrand 1990: 86–7). On the matter of including a statement on human rights, however, it was the United States that found itself in a minority of one, facing obdurate opposition from both Britain and the Soviet Union. It was the US alone that recommended any reference to human rights, but this was rejected in the initial version by both Britain and the USSR (Russell 1958: 423; Luard 1982: 31–2).

The draft proposal had been put together by key State Department officials, Leo Pasvolsky and Benjamin Cohen, and was formulated in a revealing way. Its emphasis was upon non‐intervention by the new organization, as it was to be the responsibility of each state ‘to respect the human rights and fundamental freedoms’ of its own people. By placing the onus on the states, this would circumscribe the role of the organization (Hiderbrand 91–2). Cadogan, the British permanent secretary at the foreign office, thought this language unhelpful, as it was too vague, and he worried about US motives. When consulted, the British Chiefs of Staff found it ‘objectionable in toto’. Gromyko, siding with the British, argued that ‘any reference to human rights and fundamental freedoms was not germane to the main tasks of an international security organization’ (Hilderbrand 1990: 91–2). The US, however, did not desist, and Stettinius expressed the hope that a mention of human rights ‘can be included in some place in the document’ (Borgwardt 2005: 167). A new initiative was launched on 20 September and, interestingly, while the British continued to object, the Soviet Union had become ‘less obdurate’ (p.136) (Hilderbrand 1990: 92). The US group suggested three possible locations for the reference: among the purposes of the organization, in the chapter on the Assembly, or in the chapter on Social and Economic co‐operation. The Russians preferred the last, and agreed, at which point Britain ceased to oppose. As Gladwyn Jebb commented, ‘it would be farcical to give the public impression that the delegates could not agree on the need to safeguard human rights’. Accordingly, the phrase to ‘promote respect for human rights and fundamental freedoms’ was included in the draft chapter on ECOSOC (Hilderbrand 1990: 92; FRUS 1967, i: 223; Tolley 1987: 4). This was to be the only mention of human rights included in the Dumbarton Oaks Proposals.

The major powers subsequently agreed on revisions to the original proposals that would be sponsored by them, ahead of the official opening of the San Francisco conference in the spring of 1945 (Gromyko 1989: 118), and in the meantime a number of groups of states had met to consider the proposals, most notably the states of the Pan‐American Union which had convened in Mexico in February. By the time the San Francisco proceedings opened, initiatives to beef up the human rights provisions were being advanced from a number of quarters, with significant effects on the substance of the final Charter. Briefly, we can trace the new initiatives emerging from the USSR, and the Latin American states. US initiatives will be considered further below.

Having been initially against any mention of human rights at Dumbarton Oaks, the Soviet delegation warmed to the subject at San Francisco. In the first meeting of the Four‐Power Consultative group on 2 May, a number of Soviet proposals were up for consideration. These included insertion, at various points in the text, after mention of human rights, of the words ‘in particular the right to work and the right to education’. The US delegation had already met, and decided to oppose this, as it did not wish to see any selective reference to particular rights. In any case, it is interesting that Leo Pasvolsky commented that ‘the Russians were playing up to the small nations and would undoubtedly insist upon this amendment’ (FRUS 1967, i: 546). In fact, at the Four‐Power meeting, it was agreed to delete the proposed Soviet insertions (FRUS 1967, i: 551–2).

A number of other states also advanced proposals for stronger provisions for human rights within the Charter. Although not exclusively from Latin America, this group of states was nonetheless prominent in making the case. Some Latin American states, especially Panama, proposed to include a formal statement on human rights in the Charter (UNIO 1945, vi: 546–9). It also sought to substitute the word ‘protection’ for ‘promotion’, thereby committing the signatories to specific obligations. All such proposals were defeated (Russell 1958: 780–1; Farer and Gaer 1993: 246–7).

Nonetheless, the Charter emerged a notably different document from that originally proposed at Dumbarton Oaks in what it said about human rights. (p.137) As a result, human rights enjoyed seven major mentions in the text. South African Prime Minister, Jan Smuts, was given the task of producing the initial draft of the Preamble, and Smuts was on record as saying that ‘the Charter should contain at its very outset and in its preamble, a declaration of human rights’ (UNIO 1945, i: 425). This it did. Notably, it was agreed that human rights would appear in Chapter 1.3 as one of the basic purposes of the UN, something that the USSR had resisted at Dumbarton Oaks. This proposal was put forward by the sponsoring powers on 5 May 1945 (UNIO 1945, iii: 622), and adopted by the relevant Commission I on 20 June (UNIO 1945, vi: 65). Despite earlier Soviet misgivings about ECOSOC forming part of the UN structure at all, the relevant committee voted unanimously on 11 May to recommend that ECOSOC (where major human rights responsibilities were to be housed) should be listed as a principal organ of the UN (UNIO 1945, ii).

On two other issues, the US delegation likewise secured its objectives. As earlier noted, it had been determined back in 1944 that the Charter should not itself include a bill of rights. Rather, this was something that should be devised after the UN had been established, for fear that the whole business would get bogged down in wrangles over the specification of particular rights (Sellars 2002: xii). As we have seen, suggestions to append a bill of rights were rejected. In connection with this, there was disagreement as to whether the article on ECOSOC, empowering it to establish commissions as necessary, should mention a human rights commission by name. Britain, China, and the Soviet Union all preferred that it should not. The US delegation was insistent that it should, and this position was particularly pressed by two of its delegates, Dean Gildersleeve and Commander Stassen. The British preferred that no commission be specified, but the American demand won the day (Tolley 1987: 6; FRUS 1967, i: 533, 535–40, 570–84). It was clearly foreshadowed that the first task of the commission would be to develop an international bill of rights.

These are the bald facts of the negotiating history, and the principal stages whereby the Dumbarton Oaks proposals were transformed into the much more potent statement included in the final version of the Charter. As a precursor to an examination of the reasons for this shift, we can highlight some of the major debates that have surrounded these events.

The Debates about San Francisco

There are four principal, and inter‐connected, debates about the San Francisco conference, and about how we should understand the human rights provisions included in the Charter. These are: whether they were driven by emerging knowledge about the holocaust; whether the provisions were prompted (p.138) primarily by state interest and inter‐state compromise, or by non‐state agitation and pressure; whether the key sponsoring power should be seen as the United States alone, or a number of other states, including the Soviet Union, and various Latin American states; and finally, the overall assessment of the significance of the provisions that were included. These issues can be set out briefly in turn.

The first need not detain us. There is no denying that the revival of interest in human rights during the war was generally related to the sense of their infringement. However, the more specific claim, that the toughened language at San Francisco resulted directly from new knowledge about the scale of Nazi atrocities, does not appear to be supportable. As the principal investigator of this relationship has concluded, most of the policy statements, or specific initiatives, related to strengthening human rights were already in place before the German surrender, and before details of the camps became common knowledge (Burgers 1992: 448, 475). Leaving aside the contentious issue of how much was known before that date, it seems safe to suggest that this formed the background to San Francisco, but by itself is insufficient to explain the particular changes that were introduced.

Closer to the core interest of this book is the debate about the source of the initiatives to strengthen human rights. The main axis of debate here is whether the Charter emerged as it did because of classical state diplomacy and compromise, or, as we have noted, because of the extraordinary intervention of NGOs and other forms of public action. Was this a negotiation within international society, or a negotiation between international and world society? The details of this world‐society action will be set out shortly. It forms the basis of the widespread view in the literature that ‘the movement for international human rights was born of the American citizens' passion for freedom and justice, and their powers of moral persuasion’. Such a view, Sellars concludes tartly, is ‘not borne out by the documentary evidence’, and is ‘plainly wrong’ (Sellars 2002: 3). Other interpretations emphasize, instead, a grubbier tale of state interest, compromise, and traditional inter‐state dealing. For instance, the historical account presented by one eminent international lawyer makes no mention of non‐state actors, and stresses instead the interests of various groups of states, and the ‘compromise’ that was struck between them (Cassese 1992: 26). The conclusion reached on this heated debate will have significant implications for the overall thesis of this book.

Thirdly, within the state realm, which country or countries were primarily responsible for pressing a larger human rights agenda at San Francisco? There is an implicit assumption in much of this literature that, without the United States to make the running, the Charter would not have included its distinctive references to human rights. It is certainly the case that, of the major powers, (p.139) the US alone brought to Dumbarton Oaks proposals referring to human rights. Britain remained sceptical throughout. The Soviet Union, as noted, initially resisted American suggestions, but finally acceded to them. Does this mean that the United States was the sole state actor pressing the case, or was at least the most influential one?

Some accounts present these issues as if unproblematic. ‘The initiative for the inclusion of a human rights provision in the Charter’, one standard commentary on the Charter tells us, ‘came from the United States’ (Goodrich, Hambro, and Simons 1969: 372–3). ‘The United States led the Big Four sponsors’, echoes another, in introducing the changes (Tolley 1987: 4–5). These are not unreasonable claims, but neither are they quite as straightforward as they might appear.

What role did the Soviet Union play? Cassese notes the significance for these events of ‘the conversion of the USSR to the cause of human rights’ (Cassese 1992: 25–6). We have already encountered the spate of amendments introduced by the Soviet delegation at the onset of the San Francisco proceedings, mainly with the intent of stipulating a number of specific rights, above all that to work (FRUS 1967, i: 546). No doubt the Soviet delegation may have been playing its own propaganda game, or seeking to stall American initiatives by dragging them into the bog of ideological debate. Nonetheless, the Soviet Union was more receptive than might have been expected, and was the source of a number of initiatives of its own. At a meeting of Commission II, the Soviet representative, A. A. Arutiunian, reflected on the Soviet contribution to the proceedings, and took credit for ‘the incorporation into the Charter of …the promotion of universal respect for and observance of human rights …’ (UNIO 1945, viii: 56). This might seem a bizarre claim to make, given the conventional picture in the historiography. However, it is echoed in a post‐war article written by the distinguished British diplomatic historian, C. K. Webster, recently a British official involved in these negotiations (Reynolds and Hughes 1976). The provisions on human rights in the Charter, he recalled, were ‘due to the initiative …of the Soviet Delegation’ (Webster 1947b: 35). This, coming from a participant so closely involved at Dumbarton Oaks and San Francisco, should be taken seriously, but muddies the waters that others prefer to keep quite limpid.

If we look beyond the Big Four sponsors, there is broad agreement about the decisive contribution of the Latin American states, and this raises further questions in relation to the role of the United States. At their meeting at Chapultepec in February, the Pan‐American Union states had declared their intention to broaden ‘the Charter's vision of human rights’ (Borgwardt 2005: 172). Indeed, the Latin American states then submitted a range of proposals on human rights to the San Francisco conference. For example, on 5 May, (p.140) Brazil, the Dominican Republic, and Mexico jointly submitted a proposal for inclusion in the Purposes (Chapter 1) of a paragraph on human rights very similar to that eventually agreed (UNIO 1945, iii: 602). Panama wanted a statement included in the Purposes, referring to an appended ‘Declaration of Essential Human Rights’. This was echoed in similar Uruguayan proposals of the same date, 5 May 1945 (UNIO 1945, iii: 34–5). Uruguay also wanted to guarantee the respect for these rights, and to establish an ‘effective juridical guardianship of them’ (UNIO 1945, vi: 628). Both Chile and Cuba proposed human rights amendments (UNIO 1945, iii: 294, 500–2).

It is possible, of course, that the United States was orchestrating some of these initiatives behind the scenes, but it would certainly not have encouraged the more intrusive demands that it was then compelled publicly to reject, such as those on protection and enforcement. Alternatively, it could be argued that these Latin American initiatives were an additional pressure upon the United States, perhaps pushing it to take up positions beyond those it would have wished. ‘The United States also had to accommodate’, is one coy comment, ‘the human rights concerns of Latin American neighbours’ (Tolley 1987: 4). The question of who pushed the agenda is then much more complex than it might at first appear.

If there are these disagreements about the causal story, there is finally also controversy about how to assess the significance of these references in the Charter. Whoever forced their inclusion, did they amount to much? Opinions on this, both then and since, have remained sharply polarized. Although subsequently stressing that the Charter conferred ‘no power to enforce the observance of human rights’, Stettinius (1946: 1) took every opportunity to draw attention to the historic significance of the achievement. Addressing the conference on 15 May, he offered this assessment:

It is my conviction that the foundation which we are laying here for the economic and social collaboration of nations in the cause of fundamental human rights and freedoms may well prove to be the most important of all the things we do here for the peace and advancement of the peoples of the world.

(Goodrich and Carroll 1947: 434)

Others have begged to differ. The human rights elements have been adjudged elsewhere as ‘rather disappointing’ (Cassese 1992: 27). The critics tend to be persuaded instead by the degrees of hypocrisy on display, by the lack of enforcement, and by the extent to which the provisions appeared to be cancelled out by the ‘sovereignty’ clause (Art. 2.7) (Robertson 2000: 26; Sellars 2002: 7–8). Typically, it has been said that ‘the lofty language provided an ironic counterpoint to actual state practice’, and that the measures were an ‘intentionally unenforceable gesture’ (Borgwardt 2005: 185, 143). To begin to (p.141) engage with some of these issues and assessments, we need now to turn to the evidence for San Francisco as an example of world society in action.

Human Rights as World Society Action

It has been shown how human rights concerns and rhetoric emerged at the highest political levels during the early phases of the war. There was also a more subterranean counterpart to this human rights discourse. It is commonly accepted that the author, H. G. Wells, was a prime mover in this development. Wells wrote a letter to The Times on 23 October 1939, announcing a Declaration of Rights. This was widely disseminated internationally, and the draft was worked up at a grass‐roots level. For example, Wells spoke at a National Peace Council meeting in London on 12 March 1940, attended by some 3,600 people. He also published a best‐selling book on the subject. There is circumstantial evidence that Roosevelt himself was impressed and influenced by the Wells' initiative (Burgers 1992: 464–6; Robertson 2000: 21–3).

Other individual activists played a key role as well. Here we re‐encounter the ubiquitous Professor James Shotwell, who featured prominently in the establishment of the ILO in 1919. He was likewise to play a major part in the human‐rights story as it unfolded in 1945. The American League of Nations Association had established a Commission to Study the Organization of the Peace, and this body was to be chaired by Shotwell. In this capacity, Shotwell began to proselytise assiduously on behalf of international instruments for human rights (Burgers 1992: 471). Unsurprisingly, given his position on the ILO, and his experience of its formal relationship with NGO groups, Shotwell also became a great advocate of introducing this structural innovation into other walks of international life: to do its job effectively, international society needed to formalize its relationship with world society. In the event, this was exactly the model that was to be adopted for ECOSOC (Korey 1998: 31–2). In a book published in 1945, but ahead of the San Francisco meeting, Shotwell pronounced that human rights were ‘among the problems left untouched by the Dumbarton Oaks Conference’ (Shotwell 1945: viii). He went on to urge the necessity for an international bill of rights, and for a commission on human rights in the new UN (Shotwell 1945: ix, 196).

How widespread was the public campaign on behalf of human rights at this time? There is powerful evidence indeed for the role of world society in the build‐up to, and actual proceedings at, San Francisco. It is equally true that this evidence is profoundly ambivalent as to its exact significance for these momentous events.

(p.142) The activities of individuals such as Wells and Shotwell were only the tip of a very large iceberg. Students of ‘global civil society’ have been impressed by San Francisco as one of those great occasions when NGO power was brought to bear on a major international negotiation. One claimed that San Francisco was attended by some 1,200 representatives of public and NGO bodies ‘who together went on to contribute to the drafting process itself’ (Keane 2003: 109). Certainly, there had been activity aplenty during the war, and at all levels. Any number of public organizations had come up with human rights charters during its course, the Movement for Federal Union (1940), the Catholic Association for International peace (1941), and the American Law Institute (1944), among others. Notably, Shotwell's Commission did likewise in 1943 (Sellars 2002: x).

This process intensified after Dumbarton Oaks, as the state department took the initiative to put the proposals out to public consultation, resulting in a ‘vast mobilization of public opinion’ in the United States (Eichelberger 1977: 250). At one level, this was little more than a hard sell, to ensure that the Charter was accepted by the United States, and so a large public information programme was inaugurated. Stettinius sold the programme in more grandiloquent terms. The future peace needed ‘firm foundations of popular support’, and only thus would it become ‘truly a people's peace’ (Walker 1965: 65). The apex of this system, as we will see, was to be the Consultants who would officially accompany the US delegation to the conference. This arrangement, it is claimed, gave the NGOs a ‘position to bring pressure to bear on the United States delegation’ (Eichelberger 1977: 267). But just who exactly was exercising the influence in this relationship?

Over a generation, there has developed a considerable folklore about the role of the Consultants at San Francisco, and some of the accounts have been endlessly recycled in a succession of histories. As a result, there is now a substantial self‐serving mythology in place, and we need to cut through some of this to see the events in their proper perspective.

A number of groups had been monitoring closely the evolution of policy on human rights, at Dumbarton Oaks and afterwards. For example, the American Jewish Committee (AJC) had called for an international bill of rights on 15 December 1944, supported by 1,300 signatures, representing all faiths. The AJC also held a meeting with Roosevelt on 21 March 1945 and, it has been reported, Roosevelt urged them to go to San Francisco and ‘work to get those human rights provisions into the Charter’ (Korey 1998: 34–5). Shotwell, along with two leaders from the AJC, found themselves among the 42 groups chosen as Consultants to attend at San Francisco. From this baseline has developed the account that it was they who were responsible for putting the backbone into Stettinius and other policymakers, and it was their efforts that issued in (p.143) the transformation of the human rights aspects of the Charter. Only recently has this been challenged. It is central to Sellars' revisionist account, that the Consultants were being used by Washington officialdom to serve their wider political purposes, and that the administration employed ‘the issue of human rights to bait the hook’ (Sellars 2002: 1). So who was leading whom?

The idea to include a party of Consultants at the conference, Stettinius claimed, emerged directly out of the wide public discussion after Dumbarton Oaks (Korey 1998: 30). In today's parlance, this might be best understood as an attempt to generate public ‘ownership’ of the decisions that were taken by it. Bodies represented included the National Association of Manufacturers, the Chamber of Commerce, the AFL and CIO. Within the area of human rights, the principal players were to be James Shotwell, Dr O. Nolde (Federal Council of Churches), Clark Eichelberger (future United Nations Association), and Joseph Proskauer and Jacob Blaustein (both AJC) (Korey 1998: 30–3). Although the organizations to be so represented were restricted to forty‐two, some of these acted as conduits for petitions from other bodies with similar concerns. If Shotwell stands as one element of continuity with the Versailles deliberations on the ILO, W. E. B. Du Bois epitomized another with the Versailles treatment of racial equality. Du Bois, co‐founder of the NAACP, represented that body at the conference (Borgwardt 2005: 189). While no other state delegation incorporated NGO consultants after the fashion of the USA, the Soviet delegation successfully moved to allow the World Trade Union Federation to be represented at the conference (UNIO 1945, i: 58–60). In these various ways, San Francisco once again departed from the strict norms of a gathering of international society. Stettinius considered it an ‘innovation in the conduct of international affairs’ (Korey 1998: 30), but this ignored the precedent already established by the ILO.

The decisive intervention by the Consultants is deemed to have occurred during 1–2 May. According to the standard accounts, principal members among the Consultants were alarmed at the paucity of the human rights proposals and convened a meeting on 1 May. Issuing from this was a collective document that pressed, as a matter of urgency, for some specific additional amendments to the Charter; namely that human rights be identified as a purpose of the UN; that all members guarantee human rights, and that a human rights commission be mentioned by name (Korey 1998: 36). The memorandum included a blunt chastisement: ‘it would come as a grievous shock if the constitutional framework of the Organization would fail to make adequate provision for the ultimate achievement of human rights and fundamental freedoms’ (Eichelberger 1977: 271). In turn, this resulted in an emotional meeting between the Consultants and Stettinius on 2 May. So impressed was Stettinius by the strength of the convictions expressed, that the US Delegation (p.144) was persuaded to adopt the measures. In turn, the US Delegation promptly convinced the Soviet Union, Britain, and China to accept them.

This basic narrative has given rise to a deeply entrenched version of those events. ‘The initiative to turn the UN charter into an instrument concerned with promoting respect for the human rights of individuals’, it is proclaimed, ‘came from the 42 US organizations invited to be present …’ With respect to the decisive meeting on 2 May, ‘the Secretary of State declared that he was convinced: and within a day, all the Big Four powers agreed’ (Gaer 1996: 51–2). Korey provided the most detailed version: ‘the historic breakthrough never would have taken place without the commitment, determination and pressure of a group of American non‐governmental organizations. It was their initiative …which made the difference’ (Korey 1998: 29). Similar accounts of these events are repeated, in essentially the same form, elsewhere (Humphrey 1984: 10–13; Burgers 1992: 476; Hoopes and Brinkley 1997: 191; Robertson 2000: 24).

On the face of it, there is primary documentation that corroborates some of these claims. We have the record of the meeting of the US Delegation in the late afternoon of 2 May, when Stettinius reported on his earlier meeting with the Consultants. Stettinius commented that the Consultants ‘had shown themselves especially concerned about the expansion of the reference to human rights’, and he read out their prepared memorandum. He had promised to take these matters up. Importantly, he went on to emphasize the belief of the Consultants that the United States should press the case, even if there was risk of failure. ‘They thought that even if the United States Delegation failed in its attempt, the Delegation could put out a statement that it had tried and this would carry a great weight with American public opinion’ (FRUS 1967, i: 532). The latter comment gives pause for reflection as to what might have been going on.

It points to a number of potential difficulties for the heroic version found in this conventional account. These become more troublesome when the minutes of the meeting are recounted in full. Stettinius advised that he wanted to go straight off and telephone the President to apprise him of developments. Picking up on the suggestion of the Consultants, he also agreed that the ‘Delegation should make public its position’. Why was there this need to get it into the public realm? Senator Vandenberg concurred with the suggestion, and volunteered that ‘it would make for better public relations all round’ (FRUS 1967, i: 533). Was the priority to advance the diplomacy of human rights, or to win points for the Delegation in the public's esteem? Moreover, and even more damaging for the conventional wisdom, when Stettinius read out the demands made by the Consultants, Senator Vandenberg had also pointed out that ‘two were already included in the United States proposals’ (FRUS 1967, i: 532). At this point, we need to retrace some of the earlier story to uncover (p.145) the course of events. How decisive could the intervention of the Consultants have been if what they demanded was already a part of the US Delegation's formal proposals?

The contents of earlier US official documents cast even more doubt over the folklore of 1–2 May. The most revealing is a memorandum sent by Stettinius to President Truman on 19 April, fully two weeks ahead of the famous meetings on 2 May. Stettinius reported that the US Delegation ‘is unanimously agreed’ that it will propose a number of amendments to the Dumbarton Oaks proposals. Listed among them are an inclusion, under the Purposes of the Organization (Chapter 1), of a statement ‘on the promotion of respect for human rights and fundamental freedoms’. Also proposed is an addition to the recommendatory powers of the General Assembly ‘to foster observance of human rights and fundamental freedoms’ (FRUS 1967, i: 353–4; Russell 1958: 612). There was little need to convince the delegation to take up positions on which it had already reached agreement.

It is only recently that Kirsten Sellars has used some of the available evidence to challenge the dominant myths about this aspect of the Charter's history. She points to even earlier state department papers, from 7 April 1945, which confirm that the essentials of the Consultants' demands were already embraced in draft amendments (Sellars 2002: 3–4). In this version, the administration was happy to hide behind the Consultants, and to allow them to take the credit for the initiatives. She goes further. It was members of the official delegation who prompted the Consultants into action. In this sense, the relationship was always top‐down, even though the Consultants were not fully aware of this reality. ‘They allowed themselves to be flattered by government’, she records, ‘and acquired an exaggerated sense of their own importance’ (Sellars 2002: 10). The patrician British all along had been highly sceptical of Washington's gambit in introducing the Consultants into the world of diplomacy, but ended with some admiration for the skill of the US ploy. Gladwyn Jebb was to note that ‘we had quite underestimated the apparent power of the American administration to delude these simple folk and to make them think that their objectives had been achieved’ (Sellars 2002: 1). Thus is the heroic myth displaced by political conspiracy, and resort to devious bureaucratic practice.

There is a final dimension that emanates also from British sources, and reiterates the power‐political origins of the Charter's new human rights provisions. We have noted already the eagerness on the part of Stettinius and Vandenberg to ‘go public’ on their proposed human rights programme. Stettinius was to do so again over the human rights commission. He stated in a press conference that the new commission would promptly undertake the preparation of a bill of rights. The UK delegation, on 19 May 1945, reported back to the foreign office the following intelligence: (p.146)

The reason for Mr Stettinius sudden statement to the Press with regard to an International Bill of Rights will—according to information given me confidentially in the US Delegation—I fancy be found to be a desire to compensate, to certain Latin American governments, for countervailing concessions on the part of the latter with regard to regional autonomy in the Act of Chapultepec …Hence Stettinius's sop.

Sellars 2002: 7–8)

This is of course only speculative, but potentially highly revealing. Its clear implication is that, to the extent that the United States encouraged an enlargement of human rights in the Charter, it was responding to the known wishes and preferences of the Latin American states which, as we have seen, for their own reasons had pushed hard for such amendments. Indeed, on this basis, the US initiatives were tantamount to a quid pro quo for the concessions that had been made by the Latin Americans over regional security organizations.

There is much in this to encourage a sensible degree of scepticism about prevailing accounts. On the documentary evidence, it appears that Sellars' position is essentially vindicated. However, before we jump from the frying pan of heroic NGO action into the fire of grubby state interest and manipulation, we need to pause and reflect on the totality of the evidence. There is certainly reason to be suspicious of the ‘sudden conversion’ thesis that is entailed by the romantic Consultants' tale. There is equally reason to be suspicious of the notion that human rights are in the Charter simply at the behest of the United States. However, neither is it the case that the United States suddenly discovered human rights in the spring of 1945, just so that it could reciprocate for the trade that the Latin Americans had delivered: as we have seen, this aspect had been deeply embedded in US planning since the outset of the war. It is equally plausible that, in wishing to conduct public diplomacy, Stettinius had other audiences in mind, apart from the states of Latin America. He might have been appealing to public opinion in the United States. He might equally have been appealing to a broadly based international opinion. Either way, there is a deeper question that needs to be asked. Why did he believe that these revelations would play well with public opinion, and what might this tell us about more fundamental transformations underway?

Human Rights as World Society Claim

In her own reflections on the famous meeting of 2 May, Borgwardt accepts key points in the Sellars' critique, but goes on to add that ‘as with the 1941 Atlantic (p.147) Charter …there is another, symbolic layer to the NGO meeting’ (Borgwardt 2005: 190). What matters is not just what motivated the participants at the time, but the significance that was attached to it by others, both then and since. If we construe the events of May 1945 narrowly, then this case study results in rejection of the role of world society in assisting the formulation of the human rights provisions, and replaces it instead with a stereotypical account of manipulative power politics. In reality, both were present, and any balanced conclusion must give due respect to each. In the argument of Clark, previously cited, our task is to explore ‘how normative authority interacts with motives of state and non‐state actors’ (Clark, A. M. 2001: 27). The task is not to reduce everything to either one or the other. It is precisely the interaction between the two that is the area of greater interest. On this basis, the argument can be advanced that world society was empowered on human rights to the degree that international society made ‘political space’ for it; and state actors were able to pursue their interests via human rights, only because there was a responsive world society constituency extending beyond international society and to which appeal could be made. What might be the evidence to support such a point of view?

In the restricted sense, relating to the role of the US Consultants, it is clearly the case that this NGO role was ‘dependent’ upon the ‘political space’ created for it by the US government. This was an innovative development, and was certainly viewed with suspicion and disdain by others, especially by the British. That the US government had its own motives for this inclusion goes without saying, and can be traced back to the haunting memory of treaty rejection in 1919.

That said, there is also a wider context to be borne in mind. We have traced some of the developing civil society interest in human rights that emerged during the course of the war. Whether this was actively stimulated by, or passively responded to, political elites in the wartime coalition is difficult to determine. Nonetheless, public declarations about the need to respect human rights were indeed made, and fed public expectations about the order to be created in the aftermath of war. To the extent that respect for human rights came to be the badge distinguishing the wartime allies from the axis powers, this took on an immensely powerful role for the post‐war future. These declarations, as Borgwardt (2005) and others have shown, were drafted for all manner of instrumental, pragmatic, and short‐term purposes. Regardless, they became an important part of the structure of post‐war expectation. Having fed it, political leaders had also to be seen to respond to it: they were constrained by what they themselves had created.

It is in this deeper sense that the appeal for public support for the post‐war settlement, especially in the United States, has to be understood. It is apparent (p.148) from many of the extant accounts that the administration was determined not to repeat the mistakes of 1919. The peace was to be prepared early and, just as importantly, was to be nested in a thick layer of domestic support, to avert a repetition of 1919. To this extent, the state department's campaign, including the participation of the Consultants, was little more than adept public relations. It was the mission of those consulted to sell the peace to others. All of this can be perfectly understood within the framework of sound political tactics.

There yet remains another side to this coin. If the intent was simply to sell the settlement, and the UN as a distinctive part of it, there was no need to give such a high profile to human rights, except on the calculation that doing so would strike a responsive chord. The tactic could be deployed (and was), but this is only part of the story. It could be deployed to good effect mainly because there was a powerful public constituency likely to be swayed by the nature of this appeal. This also has an international referent, in that the constituency extended beyond the purely domestic. Although the role of the Latin American states is widely remarked in the literature, very little is said about the Soviet role in the context of US policy. And yet if, in some degree, Wilson and Lenin engaged in a bidding war for progressive public opinion in 1919, it seems dangerous to discount the pressure that the Soviet ‘conversion’ to human rights must have placed upon US policy in 1945. To what extent then was US policy on the issue hostage to the alternative propaganda emerging from Moscow, and to what extent did this firm up the resolve to be seen to take the lead on appropriate human rights provisions in the Charter? Much of this remains uncertain, but the bottom line must surely be that many of the pragmatic and self‐interested strategies pursued by various players make sense only on the assumption that their initiatives would hold extensive public appeal. If that was the backdrop, then it might be said that world society played a role in a much more structural sense than its participation in a handful of stage‐managed meetings.

Even if this much is conceded, it still frames the argument in terms of world‐society pressure, rather than world‐society normative claim. The two, in any case, are not wholly separate: political pressure increases commensurately with the sense that a claim is a legitimate one to make. In what sense then is there evidence of this alternative dimension in the adoption of human rights norms in 1945? On this, it is extremely difficult to distinguish substance from rhetoric, but, as claimed, the rhetoric had a substance all of its own. There are two aspects of it that warrant close attention, and can be understood to be inter‐related.

The first concerns the modalities by which the UN in general, and its activities in support of human rights specifically, would operate effectively. On (p.149) a number of occasions, Stettinius was adamant that, although an inter‐state organization, its effectiveness was ultimately dependent upon ‘the people’. Rhetorically, this was little more than a throwback to the language of Wilson, and his assertion of the critical role of world public opinion. Having conceded that the UN did not have juridical power to enforce human rights, Stettinius suggested instead that ‘the ultimate sanction in securing wider observance of, and respect for, human rights lies in the aroused conscience of the peoples of the United Nations’ (Stettinius 1946: 2). At one level, this may be read as little more than a specious attempt to exculpate the drafters from their failure to institute any other such means of enforcement. It also, however, had a deeper resonance. States could be held accountable, and pushed to action, ultimately only by such an ‘aroused conscience’. The travails of international society demanded that human rights provisions be circumscribed within the general sovereignty safeguard in the Charter. Stettinius was pointing to an alternative conception wherein the aroused conscience of world society could still make its presence felt, despite those limitations. In his address to the First Plenary Session at San Francisco on 26 April, Stettinius had struck an identical note. The new organization, he insisted, could be effective only if it could command ‘the allegiance of both the mind and the conscience of mankind’, an appeal made from the very heart of international society to the social reaches well beyond (UNIO 1945, i: 125).

Rhetoric this might have been, but it was accompanied by a logical corollary, and this was the second dimension to human rights in 1945. If the institutions of international society depended ultimately upon the good offices of world society to support them, then international society had to pay it a ‘social wage’ in return. Could the individual human being be presented credibly as the lynchpin of the new inter‐state order, but be treated with a deafening silence as to the rights to be enjoyed within that order? Such a contradiction would now become too apparent to carry any conviction. Accordingly, respect for human rights was the logical accompaniment to the role of the ‘people’ as the guardians of the system as a whole. This went beyond the specific mentions of human rights in the Charter. There was a deeper unifying logic related to this, and this was about the place of the individual in the international legal framework as a whole. It is common enough to see proclaimed the originality of the Charter in being ‘the first treaty in world history to recognize universal human rights’, or ‘the first treaty to make human rights a matter for global concern’ (Forsythe 2000: 36–7; Robertson 2000: 25–6). This much is true, whatever the limitations that were also entailed. But a more general principle was thereby being articulated, again regardless of the qualifications in practice. The Rapporteur for Commission II on economic and social matters, Dr Alfaro, expressed it in these terms: (p.150)

The San Francisco Conference will go down in history as the first world congress where it is definitely recognized and established by the sovereign will of fifty nations that the individual, just as the state, is a subject of international law.

(UNIO 1945, i: 622)

Not only could world society operate through individuals to shape the principles of international society, and its institutions of order, but reciprocally international society now recognized the responsibility that it bore for the protection of the individual, and hence the validity of the claim that individual could make. In the longer term, this was to require a fundamental renegotiation of the relationship between international and world society.

International Legitimacy and Human Rights

Some key points need to be made by way of conclusion. This chapter has explored the detailed history of the insertion of some human rights provisions in the UN Charter. What is the justification for including this in a study of international legitimacy?

There are two ways in which the linkage needs to be made. It is the implicit assumption of this study that international society would not have been drawn to engage in the human rights business entirely of its own accord. This was always likely to be too risky a business for international society. To that extent, its adoption of this agenda is, prima facie, puzzling. To resolve this puzzle, we need to look outside international society, narrowly construed.

Nonetheless, it was to be into a pre‐existing framework of international legitimacy that human rights were to be drawn. International society accommodated human rights, but largely on its own terms. These were twofold: first, what appeared not to be the justifiable business of international society had to be presented in a fashion that made it so; secondly, what was to be done in this area should be no more and no less than could be agreed by consensus. Human rights were not the new imperative to which all other international norms and procedures should succumb. Rather, human rights could be adopted by international society to the extent only that they accommodated the requirements of international consensus. The often‐claimed ‘revolutionary’ quality of the Charter with regard to human rights needs to be understood clearly in that context.

The first was accomplished by extension of the logic that had already been applied to social justice in 1919. Social justice, it had been argued then, was a precondition of international peace and stability, and hence fell properly (p.151) under the purview of international society. This logic was insistently replicated in the drafting of the Charter, and was present from the outset. The first draft of Chapter IX at Dumbarton Oaks read as follows: ‘With a view to the creation of conditions of stability and well‐being which are necessary for peaceful and friendly relations among nations, the Organization should …promote respect for human rights and fundamental freedoms’ (Russell 1958: 424). The Charter not only was the first to use the language of human rights, but the first to link human rights directly to issues of peace and stability (Korey 1998: 29). This has been presented as an expediential American strategy to sell the project to Congress, as being less likely to draw the USA into future world conflicts (Forsythe 2000: 35). It seems more plausible that this was a perspective, equally expediential, designed to facilitate its adoption by a sceptical international society at large.

Secondly, human rights did not displace existing views of international legitimacy but, in important respects, simply grafted them onto what already existed. Although some states sought more ambitious obligations to be included in the Charter, the majority of states were cautious about this new agenda, and none more so than the United States itself. Even had it wished for more, it had to be mindful of Congressional resistance, and so all US proposals were careful of the need not to infringe the existing bounds of international society. The inclusion of the human rights provisions was in no way intended to overturn traditional conceptions of domestic jurisdiction, as the ‘sovereignty’ safeguard clauses made abundantly clear. Above all, there was no intention to subvert international society by appeal to any absolute and universal conception of human rights that had an existence separate from international society itself. Those rights for which international society would promote respect were those only that were ‘first accepted by them …by agreement’ (Cassese 1992: 25). In this crucial respect, human rights would not trump prevailing conceptions of international legitimacy, but would need to be integrated into them. Having accommodated world society by acknowledgement of human rights, international society was not about to let world society prescribe the contents of the rights that were to be so observed, nor the manner of responding in any case where these were infringed. This was to be the new deal in 1945. It was clearly a compromise. It remained to be seen if the elements that gave rise to it could continue in equilibrium over the longer term. (p.152)