Human Rights in Pinochet’s Chile: The Dethronement of Politics 5 страница
Faced with the rise of collectivist mass politics, mid-twentieth-century neoliberalism was a defensive liberalism. Breaking with the optimism of the eighteenth and nineteenth centuries, the early neoliberals believed the survival of the competitive market required the re-establishment of its moral foundations. It was through this lens that they viewed human rights. Redefined to exclude social protections, human rights, they believed, could protect the market order by securing property and private investment and fostering the morals of the market. From the neoliberal perspective, the UN human rights process, with its expansion of membership beyond the bounds of the ‘civilised’ family of nations, and its challenges to racial hierarchies, threatened the continuity of civilisation. But the neoliberals saw the potential for the language of human rights to provide that ‘generally observed and undisputed code of moral norms and principles of behavior’ which, the German ordoliberal Wilhelm Röpke argued, was the precondition of economic integration.17 Human rights, from this perspective, were not a product of international consensus. They were a product of ‘Western civilisation’, and their role was to support the extension of capitalist social relations by fostering the legal security, morals and forms of subjectivity conducive to an international market order.
The Standard of Civilisation
During the early drafting of the UDHR, the Soviet delegate, Vladimir Koretsky, rebuked the great French jurist René Cassin for his use of the phrase ‘civilised nations’. Framing civilisational hierarchies as an anachronism from the age of the tsars, Koretksy argued the phrase had ‘no meaning at the present time’.18 Noting that the UK’s draft declaration also referred to ‘civilised nations’, the future judge at the International Court of Justice (ICJ) asked that the committee ‘not follow old documents too blindly but find a new track for itself’.19 The Soviet bloc delegates framed the drafting of an international bill of rights as an opportunity to move beyond the civilisational hierarchies of pre-war international relations. At a time of deep international conflict between defenders of starkly different political and economic systems, the campaign against civilisational hierarchies was one aspect of a broader effort to prevent the universalisation of one rival system under the name of human rights.
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In defence of his country’s draft, the UK delegate noted that the phrase ‘civilized nations’ was used in the statute of the ICJ, attached to the UN Charter, which the Soviet Union had also signed.20 Indeed, the statute of the World Court listed the ‘principles of law accepted by civilized nations’ among the sources of international law. Evoking the continuity and authority of a long tradition, the UK submission grounded human rights in these general principles, which it claimed also found expression in phrases like the ‘law of nature’ or jus gentium (‘law of nations’) that informed the ‘fundamental rights of man’.21 That the language of civilisation had a long history was not in question, however questionable may have been the UK delegate’s conflation of it with the history of the law of nations.22 Throughout the nineteenth century, claims about civilisation served to demarcate sovereign states from societies deemed incapable of self-government, and so lacking in legal personality.23 The classical ‘standard of civilisation’ made a state’s recognition under international law contingent on its transformation of its internal and external relations, including by guaranteeing the basic rights of foreign traders. It carried a vision of civilisation defined by the superiority of European law over indigenous legal orders, and of capitalist industry, private property and labour discipline over cooperative forms of social life. It required that ‘inalienable rights were associated with the freedoms of trade, travel and proselytizing’.24 It was therefore a key technology for the inculcation of the morals of the market.
According to the typical story, recounted by the nineteenth-century legal scholar John Westlake, a civilised state was one in which ‘people of a European race’ could live as they were accustomed to living at home.25 Westlake’s story made purported European standards the embodiments of civilisation, and European powers the ultimate judges of whether a state had reformed sufficiently to warrant recognition. A central test of whether a non-European state was ‘civilised’ was whether it had the capacity, and the inclination, to protect European commerce, to enter into binding contracts, and to secure the basic rights to ‘life, dignity and property’ of European traders.26 The protection of rights, the rule of law, and a centralised state with a monopoly on the use of violence and a capacity to enter into contracts were all preconditions for ‘the incorporation of the periphery into an uneven yet fundamentally global system of exploitation and commodity circulation’.27 The Berlin Conference of 1884–85 – which carved up the African continent between European states (the ‘Scramble for Africa’) while claiming to break with the rapacious imperialism of the past – framed commerce as a civilising force that would enable ‘backward’ peoples to enter the world market. As the British statesman Joseph Chamberlain put it, ‘We develop new territory as Trustees of Civilization for the Commerce of the World.’28 The benevolence of European rule, the civilising role of commerce, and the attempt to extend a list of basic rights were deeply intertwined.
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This language of civilisation legitimised ‘hierarchies of wealth, power and privilege’ by taxonomising and ranking peoples.29 Its racial hierarchies were typically understood in evolutionary terms, as stages of a single process. The nineteenth-century Scottish international lawyer James Lorimer gave the clearest account of the rights adequate to such a hierarchical ordering of humanity. Lorimer was a vituperative critic of equality, both of nations and classes, and his hierarchical vision was predicated on a distinction between civilised, barbarian and savage states. In opposition to the anthropology of his time, he contended that ‘primitive man’ threw little light on the characteristics of humanity. ‘For our purposes’, he wrote, in a typically racist passage, ‘the single life of Socrates is of greater value than the whole existence of the negro race.’30 According to Lorimer’s natural law theory, human capacities (or ‘gifts of Providence’) were unequally distributed, and the role of law, in declaring rights, was to recognise and vindicate this underlying factual inequality; ‘to create rights’, he wrote, ‘is as impossible as to create the individual in whom they inhere, to add a cubit to his stature, or to raise him from the dead; and to declare rights in excess of his faculties is simply to declare what is not’.31 The consequence of this position was that ‘higher’ races had more rights, while, within a state, the most ‘gifted’ and educated individuals had more rights than the poor.
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Although he wrote in the late nineteenth century, when the ‘Scottish Enlightenment had certainly run out of steam’, Lorimer’s approach to international law echoes that of his Scottish forebears more than has often been noticed.32 Although Lorimer drew on pseudo-biological theories to advance arguments that were more explicitly racist than those of Adam Smith, Adam Ferguson or their contemporaries, he nonetheless adopted their basic evolutionary assumption that civil society gradually developed from the ‘savage’ condition of tribal existence to the ‘polished’ life of a commercial society. Like Hayek, who drew on such stadial histories to develop his account of the morals of the market, Lorimer saw the extension of the division of labour as integral to the process of civilisation.
A conservative critic of the French Revolution, Lorimer considered free trade to be the ‘only novel and fruitful application of the principle of fraternity’, and he saw the division of society into classes as central to material progress.33 Economic and racial categorisations blurred in this presentation; Lorimer argued that a state’s wealth might furnish the ‘only means available for international purposes of estimating the moral and intellectual qualities of citizens’, and he regularly compared the domestic poor to ‘barbarians’.34 Sanctifying wealth by treating it as evidence of superiority, Lorimer argued that, even if the same means of culture could be placed within the reach of all, ‘men’s powers of availing themselves of it differ so widely, that, relatively at least, the barbarian, like “the poor”, we shall “have with us always”’.35
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This slippage between race and economics persisted even as the standard of civilisation appeared to establish neutral and universal criteria for membership in the ‘family of nations’. On the surface, the standard held out the possibility that independent, non-colonised states like Japan and Siam (now Thailand) could be admitted to this ‘family’ if they transformed their international and external relations.36 In reality, ascriptive racial hierarchies remained central, even if they were no longer framed as static biological accounts of racial difference. The British imperialist Cecil Rhodes exemplified this shift. A firm believer in white supremacy, Rhodes appealed to Dutch Afrikaners in 1897 by promising ‘equal rights for every white man south of the Zambesi’. Two years later, he instead promised ‘equal rights for every civilized man’.37 In 1900, he told the South African League that he had ‘used the word civilised to cover the coloured people’ (a category that did not include the black majority) and others worthy of the rights of voters.38 In a short period of time, the white race became the civilised – a category ultimately extended to certain (wealthy and literate) people of colour. What remained consistent was the hierarchical ordering of humanity, and the belief that this hierarchy was indissolubly racial and economic.
The drafting of the UDHR saw a similarly significant shift in the language of classification and ranking, even as it purported to codify the rights of a universal humanity. The United States, which was both less invested than the UK and France in the old order of European colonialism and more anxious about allowing the Soviets to monopolise the language of progress, worked to construct a civilisational discourse adequate to a new era of universal rights. Eleanor Roosevelt told the delegates that while there were ‘peoples of different levels of development in various parts of the world’, this did not mean they were naturally inferior, but that they had not had the same opportunities for development.39 Such arguments would become central to the neoliberal civilising missions of the later twentieth century.
William Rappard and the Sacred Trust of Civilisation
In his opening address at the inaugural MPS Conference, the Swiss economist and diplomat William Rappard depicted his colleagues as the inheritors of both Adam Smith’s economic science and his liberal politics. What Smith did not realise, this well-travelled diplomat argued, was that the ‘economic man’ underpinning his science was ‘like Smith himself, a Scotchman who preferred to work and to save rather than idly to enjoy idleness’. Rappard contrasted this ‘Scotch brand of homo economicus’, for whom work was a virtue and saving a characteristic trait, with the Algerian Arabs he had witnessed in Algiers five years earlier, shunning work and enjoying themselves by sitting idly on the pavements. Had Smith been ‘reared among the sun-baked race of Arabs who prefer leisure to work’ and equality to liberty, he speculated, ‘would his semi-tropical economic man not have led him quite consistently to preach a very different doctrine?’40 Smith’s liberal economics, Rappard believed, could only thrive in conditions inhabited by a very distinctive subject. It was not only his international experience that had taught Rappard that Smith’s particular brand of homo economicus was not a ‘natural man’. Even the ‘European economic man’ was today clamouring for ‘social security and equality much more than for economic progress and freedom’, he noted.41 Reviving international liberalism, he believed, would require an institutional and moral order to cultivate that Scottish homo economicus that a liberal market presupposed.
Few people were as familiar with the relations between commerce, civilisation and human rights as Rappard. In 1920, the Swiss economist was appointed director of the Mandates Section of the League of Nations, and so tasked with overseeing the territories confiscated from Germany and the Ottoman Empire in the wake of World War I.42 These areas, according to the League of Nations Covenant, were ‘inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world’, whose development formed ‘a sacred trust of civilisation’.43 Reflecting the belief in a hierarchical ordering of peoples, the mandated territories were ranged on a scale from A to C. A mandates (Iraq, Syria, Palestine and Lebanon) were classed as sufficiently ‘advanced’ to expect independence in the near future, while C mandates (Namibia and Germany’s former Pacific territories) were considered so undeveloped that they should be governed as integral parts of the territories of their administering powers. Rappard presented the interests of the ‘native inhabitants’ of the mandates as his paramount concern.44 Yet, as a founding member of the MPS, he had no doubt that these interests would be best served by private capital investment and integration into the world market.
Rappard was deeply involved in both the practical administration of mandate territories and the development of neoliberalism. He was a close friend of Hayek, who wrote to him in the wake of the success of The Road to Serfdom that ‘there are still many more people who feel on the whole as we do than I had ever dared hope’.45 As the co-founder of the Graduate Institute of International Studies in Geneva, Rappard provided a wartime institutional home to a group of neoliberal thinkers that included Ludwig von Mises, Wilhelm Röpke and Luigi Einaudi.46 The long-time MPS executive-secretary, Albert Hunold, wrote that, ‘stone by stone’, Rappard’s institute was building ‘a solid foundation of our western way of life, the very essence of which is freedom and the dignity of man’.47 Rappard provided a bridge between the ‘civilising’ work of the mandate system and the neoliberal attempt to save civilisation from the threat of collectivism. He brought an internationalist perspective to neoliberal thinking, and a belief that the international extension of the competitive market required the cultural and subjective transformation of non-capitalist societies.
The mandates have been described as experimental laboratories for techniques of governance and rule.48 These experiments, I suggest, deeply influenced the neoliberal attempt to submit sovereignty to rules that support a flourishing market and to inculcate the morals of the market. While the locus of sovereignty in the mandates was a topic of great controversy, mandatory powers were generally not considered to be sovereign.49 Rather, the mandates were held in trust, and the presupposition of a trust, as the conservative thinker Edmund Burke outlined in his famous indictment of the British East India Company, is that any power set over people must be exercised for their benefit.50 On this basis, Burke told the House of Commons in 1783 that, if England were to be driven out of India on this day, ‘nothing would remain, to tell that it had been possessed, during the inglorious period of our domination, by anything better than the ourang-outang or the tiger’.51 The mandate system represented the face of an ‘enlightened imperialism’, which sought to distance itself from what was portrayed as the rapacious colonial exploitation of the past.
In contrast to the monopolist practices of the old trading companies, the mandate system guaranteed ‘equal economic opportunity’ in the mandates for all League members. Rappard framed this ‘Open Door’ policy as a recognition that international commerce led to peace. We have seen that this sweetness-of-commerce thesis can be traced back to the eighteenth century, but Rappard credited it to the ‘great trade emancipator and peacemaker’ Richard Cobden. In 1842 (at the height of his campaign against the Corn Laws), Cobden argued that the ‘colonial system, with all its dazzling appeals to the passions of the people, can never be got rid of except by the indirect processes of Free Trade’.52 In contrast, as a typical neoliberal, Rappard was not prepared to leave the fortunes of commerce to laissez-faire. In his search for a body of international norms to secure a competitive market order, the peculiar juridical status of the mandates proved to be both a blessing and a curse.
The curse was starkly outlined by Rappard’s colleague on the Permanent Mandates Commission (PMC), Lord Lugard: without a sovereign state to guarantee investments and secure contracts in the mandates, this former East Africa Company employee and then British colonial official argued, private investors lacked confidence to invest. From this perspective, the mandates lacked key determinants of ‘civilisation’: the capacity to enter into binding contracts, and to protect property rights and investments. Rappard took the problem very seriously, arguing that it was no good to respond that, in deterring capitalists, the mandate system had protected its beneficiaries from exploitation. Although coming from ‘the home of Rousseau’, the Swiss diplomat added, ‘I shall refrain from denouncing the evils of civilisation and singing the praises of the state of nature!’53 Civilisation, Rappard made clear, was synonymous with economic development, and required an attractive climate for private capital investment.
Rappard’s solution would have significant consequences for the development of the mandates and for later neoliberal responses to decolonisation. He successfully proposed that the League make clear it would not approve any cessation or transfer of the mandate (including in the event of eventual independence) without advance assurance that the new government would ‘accept responsibility for the fulfilment of the financial obligations regularly assumed by the former Mandatory Power’, and respect ‘all rights regularly acquired’ under its administration.54 The people of the mandates would not be considered ready to ‘stand by themselves’ until they guaranteed the rights of private capital and respected contracts made without their consent.
The PMC, which Rappard headed, broke with a naturalistic faith in markets in order to develop a body of rules to foster investment and capital accumulation. Its experiment in the use of transnational bodies to bind states in the interests of capital influenced neoliberal techniques of government. It inspired not only the Bretton-Woods institutions and the WTO, but also the European Union (EU), which much later used similar techniques – and similar racialised accusations of laziness and absent entrepreneurialism – to impose austerity on ‘backward’ southern European nations. In Rappard’s description, the PMC was an ‘umpire’ ensuring that the game was played fairly, which must be clearly independent of governments. Otherwise ‘the game would be up, because no one could be expected to play the game if the umpire was suspected of having been unduly influenced’.55 A central lesson of the mandate system, and one that the neoliberals would often insist on, was that the needs of capital would be best served by a transnational body of rules overseen by ‘impartial’ umpires imposing rules on all players. It is fitting, then, that the Centre William Rappard in Geneva is now home to the WTO.56
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