JUSTICE - No. 71

6 No. 71 JUSTICE hank you for giving me the honor of delivering this lecture on the occasion of International Holocaust Remembrance Day. I would like to first mention Tom Buergenthal, a distinguished jurist who passed away at the age of 89 in 2023, after a long career devoted to the protection of human rights. I had the privilege of knowing him, as perhaps some of you also did. A survivor of Auschwitz, he went on to become a major force in the construction of the international human rights regime, transforming his traumatic childhood into a lifetime of effort for universal justice. As a scholar and professor at George Washington University, he co-authored a pioneering casebook on human rights. As a jurist, he played a critical role in the development of the InterAmerican Court of Human Rights, after being appointed by Costa Rica as one of the first judges when it was established in 1979.1 He went on to serve on numerous international bodies, culminating in a decade of work as a judge on the International Court of Justice, in the building in which we are meeting. This lecture is co-sponsored by the Jewish community of The Hague, of which I have fond memories from my own two years here. I would like to begin the first part of my lecture by reflecting on the role of Jewish jurists like Tom in contributing to the development of human rights both before and after World War II. My theme is the interplay of cosmopolitanism and particularism. These ideas are usually seen as in some tension, but I believe that they are mutually constitutive and necessarily dependent on each other. While human rights is a cosmopolitan idea, its historical emergence was motivated by a particular set of sufferings and experiences, from the African slave trade to the Armenian genocide to the destruction of European Jewry. The movement for rights for all was championed in large part by people who suffered for their own particular identities, and responded not by fleeing or rejecting those identities but by working for justice. Cosmopolitan liberalism seeks to limit the power of states to mistreat their own citizens and others. Once the human rights movement emerged, however, it turned out that states were not only the greatest threat to rights, but the primary mechanism by which rights could be effectively advanced. We have just celebrated the 75th anniversary of the Universal Declaration of Human Rights (UDHR), a monumental step in the formation of the international human rights movement. Yet despite the expectations of its drafters, the Declaration’s enforcement has not really come about through the United Nations, which has a sclerotic human rights machinery and a Human Rights Council made up primarily of human rights abusers. Instead, it has come about through the power of states, which have incorporated rights into their national constitutions and deployed their (sometimes imperfect) tools to enforce them. Cosmopolitan values, then, only take life through particular national projects, of which national constitutions are central. The Holocaust and the Age of Rights* Tom Ginsburg * This lecture, slightly edited, was delivered on the occasion of the International Holocaust Remembrance Day, 2024, at the Peace Palace, The Hague. It is dedicated to the memory of Tom Buergenthal, z’’l. 1. The United States is not a member of the Inter-American Court of Human Rights. T Abstract: We have just celebrated the 75th anniversary of the Universal Declaration of Human Rights (UDHR), a monumental step in the formation of the international human rights movement. The UDHR was followed by several other treaties and institutions that together comprise an integrated system. It is one in which individual Jewish jurists, including the late Tom Buergenthal, played an outsized role in building. Despite the promise of universalism, however, our era remains beset by profound human rights abuses. The impossibility of building a truly global system of effective implementation does not mean that the UDHR or the human rights movement has been without impact; instead, the UDHR’s promise of universalism has been best advanced through particularist national and regional projects. This suggests that the tension between particularist loyalties and cosmopolitanism is largely a false one, and that the relationship is complex. Redeeming the promise of the UDHR requires building national capacities for implementation of rights, and strong states.

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