JUSTICE - No. 71

8 No. 71 JUSTICE the event of abuses. That did not work for the Jews or the Roma, the European peoples without land. For such groups, national rights did little good. Thus, the position of Jews within Europe − a people without a land in a land of peoples − meant that they were driven to seek protection from international law. A higher order legal system that could discipline the newly proliferating nations was attractive to the extent that it could overcome a state’s sovereign claim that domestic matters were not the business of anyone else.5 As Henkin wrote, “The primitive international human rights movement of the 19th century, much of it on behalf of Jews, provided fertile seed for an international law of human rights.”6 The universalist seeds were slow to develop. Early efforts at international conferences in the 19th century had not produced fruit. The Hague Peace Conferences of 1899 and 1906 (which established the Permanent Court of Arbitration and inspired this very building to house it) focused on humanitarian law during wartime, rather than the day-to-day practices of discrimination and internal violence that Jews routinely suffered.7 But the announcement in Woodrow Wilson’s Fourteen Points speech that the self-determination of “peoples” would be the basis for a post-Imperial world order gave new urgency to what we might, with Karl Marx, call the Jewish question. Wilson’s call generated a proliferation of peoples each claiming self-determination, but of course they did not live within easily circumscribable borders. The solution in Europe after World War I was to combine recognition of the new nations with a set of collective guarantees of minority rights. These were embodied in a set of “Minorities Treaties” which identified external guarantors of minority rights, especially the great powers, that would be able to intercede when mistreatment was occurring. The rights included in these treaties were mainly religious freedom, minority language rights, and control over communal affairs − what international lawyers now call “internal” self-determination to distinguish it from actual statehood. This was not yet a full-blown international human rights system. For one thing, the rights were collective or communal, rather than individual and belonging to everyone on earth by virtue of their humanity. One obtained rights by virtue of membership in a particular community. In addition, enforcement was to be guaranteed by specifically identified external powers which were territorial states.8 Such states could bring claims to the Permanent Court of International Justice, but only states could do so. There was not yet an international machinery to protect rights at the behest of individuals. The system was not yet cosmopolitan, nor was it particularly effective for Jews. The persistence of vicious antisemitism in the new nationstates led to new massacres on an even larger scale than those of the 19th century. The Jewish question was neither extinguished nor resolved by the idea of selfdetermination. Around the same time, the parallel Zionist project was blossoming, with its various strands. The League of Nations’ failure to actually enforce the minority treaties had the effect of deepening, not redirecting, Jewish energy toward establishing a homeland in Palestine. Had the minorities regime worked out as planned, it may not have been necessary, and diasporic communities could have remained intact. (I note, in light of the vicious fighting under way in Gaza, that we can look back and imagine alternative histories, in which the “revisionist” strand of Zionism associated with Zev Jabotinsky did not come to dominate. Theodore Herzl’s own novel, Altneuland, envisions a multicultural state in which Jews and Arabs live in coexistence, and Moria Paz has shown that René Cassin laid out a vision of a joint state with full equality for both Arabs and Jews.9 I recommend further analysis of this topic and the study of history in depth to anyone interested in understanding how we got to where we are.) The alternative histories that we now can imagine were not to be. European Jewry was, in very large part, destroyed, and it is in solemn memory of this monumental 5. James Loeffler and Moria Paz, “Introduction,” in THE LAW OF STRANGERS: JEWISH LAWYERS AND INTERNATIONAL LAW IN THE TWENTIETH CENTURY, James Loeffler and Moria Paz, Eds. (Cambridge University Press, 2019), 8-9. 6. Louis Henkin, “Judaism and Human Rights,” 25(4) JUDAISM 435, 440 (1976), quoted in Samuel Moyn, “Louis Henkin, Human Rights, and American Constitutional Patriotism,” in THE LAW OF STRANGERS, supra note 5, at 93, 99. Note that there were also efforts to advance particular rights of Jews: the Alliance Israelite Universelle was an organization founded in Paris to advance the Jews’ religious rights and provide resources to Jews throughout the world, including in Arab lands. 7. Loeffler, supra note 4, at 12. 8. Loeffler, supra note 4, at 16. 9. Moria Paz, “A Most Inglorious Right,” in THE LAW OF STRANGERS, supra note 5, at 192; see generally Itamar Mann, “Zionism and Human Rights,” 17 INTERNATIONAL JOURNAL OF CONSTITUTIONAL LAW, 1319-35 (2019).

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