Historical Perspective The Civil Rights Movement’s Early Embrace of Human Rights by Raymond M. Brown

ost Americans accept that their free - not or will not afford protection and redress for local aggres - doms are protected by the Constitu - sions for colored people, the national policy of the United tion and the Bill of Rights. To many, States... becomes involved, and at the national policy level the the human rights concept applies in UN can take jurisdiction and receive the complaints presented foreign lands like Bangladesh, North by national organizations. A national policy of the United Korea, the Congo, Nigeria or Kaza - States which permits disenfranchisement in the South is just as khstan. However, after World War II, a broad segment of the much an international issue as elections in Poland or the denial

M 5 leadership of the civil rights movement embraced the human of democratic rights in Franco Spain. rights idea 1 and its evolving international law and United Nations (UN) framework. This article focuses on this embrace. Houston and other elements of the civil rights leadership The article suggests the idea that this embrace can provide looked to human rights for relief in the post-war era, in part inspiration for Americans in the 21st century to utilize the because they had not been able to rely on the U.S. civil rights human rights concept more fully in domestic contexts. regime for relief. Houston, perhaps more than any other pre- war leader, had the credentials to make such a judgment. Appealing to the United Nations Houston has been aptly called “the chief engineer and the In 1946, legendary civil rights attorney Charles Hamilton first major architect on the twentieth-century civil rights legal Houston publicly supported the National Negro Congress scene” by A. Leon Higgenbotham Jr., former chief judge of the (NNC) in filing a petition with the United Nations Economic United States Court of Appeals for the Third Circuit. 6 Houston and Social Council (ECOSOC). 2 The NNC sought to have a “spawned” 7 Thurgood Marshall as a civil rights lawyer and United Nations Human Rights Commission subcommittee Houston initiated the legal assault on the “separate but equal” assist in the elimination of race-based discrimination in the rationale of Plessy v. Ferguson ,8 with his stewardship of the United States. The NNC document was called a Petition to the plaintiff’s case in Missouri ex rel Gaines v. Canada .9, 10 In Gaines , United Nations on Behalf of Thirteen Million Oppressed Negro Cit - Houston persuaded the Supreme Court of the unconstitution - izens of the United States of America .3 Responding to NNC crit - ality of Missouri’s practice of paying tuition for blacks who ics, who claimed that discrimination was a purely internal were otherwise qualified to attend the state university’s law U.S. question, Houston offered a defense of the NNC petition school to attend out-of-state law schools rather than the state in his column called The Highway in the African-American school. newspapers. In that column, entitled an Appeal to UN by Judge Higgenbotham has observed that “the decision in Minorities in Order ,4 Houston took the position that: Gaines paved the way for the ultimate victory in Brown v. Board of Education .” 11 Although Houston was lead counsel in ...It may be true that the UN does not have jurisdiction to inves - many seminal civil rights cases before the Supreme Court, he tigate every lynching ...or denial of the ballot.... But where the died in 1950, prior to the decision in Brown .12 However, as a discrimination and denial of human and civil rights reach a lawyer who spent a lifetime seeking constitutional relief, his national level, or where the national government either can - response to the new human rights regime is conceptually and

NJSBNA J.SCBOA M.COM NEW JERSEY LAWYER | February 2014 33 symbolically important. gain those rights and keep them. To was home to “thirteen million Houston’s spirited defense of the that high concept there can be no end oppressed negro citizens.” Roosevelt’s human rights idea is important not just save victory. (Emphasis added) death on April 15, 1945, deprived him because it reflects a larger tendency of the opportunity to address these con - among civil rights leaders but because it The Atlantic Charter, executed by tradictory forces at the founding United emphasizes a combination of despera - Winston Churchill and Roosevelt in Nations’ Conference on International tion and vision at a time when the idea Aug. 1941, set forth certain “common Organization beginning on April 25, in of human rights was still in its embry - principles,” including the right of “all San Francisco. onic stage. The desperation was rooted peoples” to choose their own forms of in the reality that lynching remained government and general rejection of the “Fireworks Erupt” in San Francisco the paramount post-war issue for blacks. use of force in international relations. Shortly after April 25, 1945, and prior The vision involved the need to chal - Roosevelt’s Atlantic Charter anniversary to the drafting of the UN charter, a now lenge a Jim Crow regime that affected message, in 1942, noted the allies had infamous meeting 15 was held at San blacks in every aspect of political and embraced a program reflecting: Francisco’s Fairmount Hotel on Nob economic life. The human rights idea, Hill. The meeting was attended by rep - originally conceived as an antidote for [F]aith in life, liberty, independence, resentatives of 42 non-governmental war not as a platform for blacks in and religious freedom, and in the organizations (NGOs) 16 who had been America, had a great appeal as a possible preservation of human rights and jus - asked by the State Department to serve strategic tool. tice in their own as well as in other as “consultants” to the official U.S. del - lands, [it] has been given form and egation. One of the consultants was A “High Concept” as “War Aim” substance as the United Nations.” Walter White, executive secretary of the Rhetorical and political discussion of (Emphasis added) National Association for the Advance - the human rights concept was intense Although Roosevelt characterized ment of Colored People (NAACP). His during World War II. H. G. Wells’ letter human rights as a “high concept,” his inclusion resulted in part from a letter to The New York Times shortly after the emphasis on its linkage to war reveals written by former executive secretary German invasion of Poland in 1939 had his practical reason for advancing the and then staff member W.E.B. Du Bois a catalytic effect on the discourse. 13 Wells idea. He and Churchill shared a belief to Secretary of State Edward Stettinius, called for a broad public “war aims” dis - that second only to winning the war asking if: cussion, including updating principles was a need to ensure the West would found in the “Magna Carta and going not face future “world wars” like the any provision will be made for the rep - through various Bills of Rights, Declara - two they believed had been initiated by resentation of American Negroes at tions of the Rights of Man and so forth.” German aggression in the first half of the San Francisco meeting in order It is unclear whether President the 20th century. that they may advocate and advise Franklin Roosevelt was influenced by Western leaders identified political measures for their own social progress Wells’ challenge. Nonetheless, Roo - disenfranchisement and economic and also be given opportunity to speak sevelt’s “Four Freedoms Speech,” deliv - inequality as the dry tinder that fed mil - for other peoples of African descent ered in Jan. 1941 as his State of the itary aggression. (This explains why the whom they in a very real sense repre - Union Address, ends with an unmistak - four freedoms included “freedom from sent. 17 able linkage of future war aims and want,” an economic idea not fully human rights. (Recall that the U.S. encompassed by the U.S. constitutional White reported he received an would not enter the war for 11 months or civil rights framework.) Roosevelt and unpleasant surprise at the Fairmount after the speech.) Churchill also accepted the legal notion Hotel gathering: that, in some cases, international law This nation has placed its destiny in the supersedes domestic law. 14 Fireworks erupted at the first meeting hands and heads and hearts of its mil - In advocating human rights, Roo - of delegations and consultants when lions of free men and women: and its sevelt and Churchill were immersing Mr. Stettinius, apparently nervous and faith in freedom under the guidance themselves in conflicting crosscurrents. embarrassed at being required to of God. Freedom means the suprema - Churchill presided over the largest make such a report, announced that cy of human rights everywhere . Our imperial project on Earth. Roosevelt the American delegation had decided support goes to those who struggle to governed a rising world power, which neither to introduce nor support a

34 NEW JERSEY LAWYER | February 2014 NJSBA .COM human rights declaration as an inte - ations from the scourge of war , which installation of a mechanism to protect gral part of the charter which the twice in our lifetime has brought them. For White and Du Bois, there was nations had gathered to draft. All of untold sorrow to mankind, and to the additional challenge of wanting to us sat in stunned silence. 18 reaffirm faith in fundamental human bring these developments to bear on the rights , in the dignity and worth of the conditions of African Americans. The other consulting NGOs included human person, in the equal rights of The adoption of the charter in June the American Bar Association, the Amer - men and women and of nations large 1945 was followed by the appointment ican Jewish Committee, the U.S. Cham - and small, and to establish conditions in Feb. 1946 of a Commission on ber of Commerce, the Congress of Inter - under which justice and respect for the Human Rights, chaired by Eleanor Roo - national Organizations (CIO), 1 and the obligations arising from treaties and sevelt, to draft an “international bill of American Association for the United other sources of international law can rights.” When Houston wrote his High - Nations, Inc. White reported that Stet - be maintained, and to promote social way article in early 1947, the commis - tinius’ positions on human rights, colo - progress and better standards of life in sion was midway through the delibera - nialism and education were so weak larger freedom….(Emphasis added) tions that would ultimately lead to the they obliterated the normal “ideologi - Universal Declaration of Human Rights. cal” differences among those groups Article 1 of the charter proclaims that Houston’s article, therefore, relied on the and led to a concerted and increasingly among the four purposes of the UN is promise in the charter’s Article 1 to “pro - public criticism of the U.S. stance. He “promoting and encouraging respect for mote human rights.” He specifically sup - also noted that on his return to Wash - human rights and for fundamental free - ported the NNC’s practical effort to ington, he met with President Harry doms for all without distinction for all influence the development of a human Truman who seemed “unhappy” at as to race, sex, language or religion…” rights regime by persuading a sub-com - White’s “pessimistic report.” 20 There are two relevant observations mission of the Human Rights Commis - As a result of domestic pressure gen - to be made about the preamble and Arti - sion charged with prevention of discrim - erated by the NGOs, as well as intense cle 1. The first is that they reflect a con - ination and protection of minorities to lobbying by Latin American countries, tinued linkage between war and human investigate U.S. conditions. several of which advocated including a rights. The preamble’s reference to the Bill of Rights provision in the charter, “scourge of war…twice in our lifetime” Challenging a “Vast Hypocrisy” the U.S. changed its position in early is obvious. Slightly more subtle is Article While the NNC awaited a decision on May 1945. As a result, the charter con - 1’s reference to “race, sex, language or its petition in Oct. 1947, the NAACP tains seven references to human rights. 21 religion.” The nexus with war is that created an “international sensation” 23 by However, this was not a sufficiently each of these categories was the avowed filing with the Human Rights Commis - robust commitment to satisfy Du Bois. basis for discrimination, oppression, sion’s staff an “Appeal to the World: A Du Bois, who had accompanied White brutality or murder at the hands of the Statement of Denial of Human Rights to to San Francisco along with civil rights Axis powers. Minorities…” 24 Du Bois, who organized leader and educator Mary Mcleod The second observation is that the appeal, regarded the NNC’s petition Bethune, reported to NAACP President despite multiple references to human as “well done but…too short and not Arthur B. Spingarn in late May that: rights in the charter, which is a legally sufficiently documented.” 25 binding treaty, the term “human rights” The appeal’s, introduction, which Du As consultants we could do little remained undefined. The charter’s solu - Bois drafted, proclaimed: although we exercised some little tion to this lacuna was Article 68, which influence. They would not take a stand authorizes ECOSOC to establish inter [T]herefore, Peoples of the World, we for any race equality or for colonies, alia “Commissions” for “the promotion American Negroes appeal to you; our but did back a contradictory statement of Human Rights.” treatment in America is not merely an on human rights. 22 Imagine the frustration of the NGOs internal question of the United States. when they arrived in San Francisco in It is a basic problem of humanity; of In fact, the charter’s preamble asserts a April 1945 to oversee the drafting of the democracy; of discrimination because commitment to human rights as an orga - charter, only to find the U.S. uncommit - of race and color; and as such it nizational raison d’etre in its initial clause: ted to wrestling with a commitment to demands your attention and action. No We the Peoples of the United Nations human rights, the development of an nation is so great that the world can Determined to save succeeding gener - accepted definition of the idea, or the afford to let it continue to be deliber -

NJSBA .COM NEW JERSEY LAWYER | February 2014 35 ately unjust, cruel and unfair toward its conservative Republicans. More difficult States Delegation to the United own citizens. This is our plea to the to circumvent were the efforts of the Nations. 27 world; and to show its validity; we are erstwhile civil rights supporters Presi - presenting you with the proof…. dent Harry S. Truman and Eleanor Roo - Ultimately, the United States used sevelt. In response to efforts like the diplomatic pressure to ensure there was The bulk of the appeal consisted of appeal and the NNC petition, they, no discussion of the appeal at the Paris sections drafted by four scholars, outlin - along with increasing segments of the General Assembly meeting in the fall of ing the oppressive conditions under American political leadership, took the 1948. This marked the end of efforts to which African Americans lived. Howev - position that international criticism of seek recognition for the appeal. 28 er, Du Bois’ introduction offered a the U.S. on civil rights and race were Despite these U.S. efforts, the principle rationale for the appeal that specifically unpatriotic and served the interests of Soviet delegate, Alexei Pavlov (nephew addressed the intellectual shift from international communism. 26 of the scientist whose work with dogs civil to human rights. After a brief Initially, the U.S. persuaded the and conditioned reflexes is famous), demographic and sociological descrip - ECOSOC not to facilitate debate on the frequently raised the issue of lynching tion of “American Negroes,” the appeal NNC effort. It subsequently persuaded of American blacks and other aspects of noted that their treatment had: the Human Rights Commission to vote the Jim Crow regime. 29 Similarly, the not to deliberate on the appeal during USSR was faced with criticisms of its [L]ed the greatest modern attempt at its meeting in Geneva in Nov. 1947. gulags and the British with challenges democratic government to deny its Prior to the Paris meeting of the Gener - to its rule in India. political ideals, to falsify its philan - al Assembly in 1948, Du Bois met with Perhaps because issues related to thropic assertions and to make its reli - Eleanor Roosevelt in a final effort to African Americans were being discussed gion a vast hypocrisy . (Emphasis encourage UN debate on the appeal. In at times in the UN, Du Bois was unwill - added) a memorandum to White, Du Bois ing to concede defeat, and drafted a new reported her response: petition in 1949, inspired by miscar - The appeal proceeded to identify riages of justice including lynching of both the U.S. founding language (“All [Mrs. Roosevelt said] The Department black women in Georgia. This time, men are equal”) and a list of race-sensi - of State was of the opinion that it however, the document assumed a more tive constitutional provisions before would be unwise to put our Petition hectoring tone. After detailing the fail - and after the Civil War Amendments as on the agenda of the next Assembly ure of state authorities and the refusal of evidence of an inconsistent American for discussion….I replied that I realized the U.S. attorney general to investigate attitude “far more dangerous to that no international action was prob - the allegations, Du Bois: mankind than the atom bomb.” This able or indeed expected; but that I analysis was followed by the final thought that the world ought to know [c]harge[d] that the Human Rights Com - “appeal” to the “Peoples of the World,” just exactly what the situation was in mission under Eleanor Roosevelt.… which included an effort to: the United States, so that they would Instead of receiving complaints and giv - have factual statements before them ing them careful investigation….have detail the status of American Negroes so that they would not be depending buried the complaints and drowned in the past and today, in law, adminis - upon vague references….Mrs. Roo - themselves in a flood of generalities by tration and social condition; and the sevelt thought that this would be seeking to rewrite in verbal platitudes relation of this situation to the Charter embarrassing; that it would be seized of tens of thousands of words, those of the United Nations …. (Emphasis upon by the Soviet Government as an statements on Human Rights which the added) excuse for attacking the United States. Declaration of Independence and the Mrs. Roosevelt said that already, sever - French Declaration of the Rights of Man The attempts by civil rights organiza - al times, she had been compelled to set down a century and a half ago in tions and leaders to utilize the UN struc - answer attacks upon the United States imperishable phrase which no man can ture and effectively harness the human for its race problem by pointing out better today. 30 rights regime in service to their cause the fact that other countries had made met with considerable opposition. similar mistakes….The situation might No action was taken on the petition, Unsurprisingly, some opposition came be so unpleasant that she would feel it and there is no evidence Du Bois sought from Southern Democrats, some from necessary to resign from the United to utilize the UN human rights frame -

36 NEW JERSEY LAWYER | February 2014 NJSBA .COM work again. The bitter tone of Du Bois’ ernments that violate them, or Department realizes that if any intelli - final effort can be attributed to two fac - through some other formal entity, the gent, truly militant Afro-American is tors. The first is the cumulative effect of right of the General Assembly to make ever permitted to come before the U.S. diplomatic efforts to utilize Cold recommendations for the protection United Nations to testify on behalf of War diplomacy to suppress attempts by of human rights is considerably vitiat - the 22 million mistreated Afro-Ameri - civil rights activists to bring issues before ed. It is obviously necessary to hear the cans, our dark-skinned brothers and the UN. The second is that the declara - complaints of minority peoples if stud - sisters in Africa, Asia, and Latin Ameri - tion itself was not a document that pro - ies or recommendations protecting ca would then see America as a “brute vided enforceable remedies. In fact, as a their rights are to have any meaning. 33 beast,” even more cruel and vulturous strategic means of attracting the support than the colonial powers of Europe of states, the declaration was drafted as a Even as the hope of filing successful and South Africa combined. 35 normative rather than a legal document. petitions fell into disfavor, the idea that Eleanor Roosevelt took pains to make human rights was conceptually impor - One of the most interesting uses of this point in her presentation of the dec - tant survived. In 1957, Paul Robeson, ‘human rights’ language occurs in laration to the General Assembly: while commenting on events in Little Martin Luther King’s last speech. This Rock, Arkansas, argued that: sermon is best known for King’s pre - In giving our approval to the Declara - monition of death. In fact, the rhetor - tion today it is of primary importance The status of the Negro in the USA vio - ical structure of the speech is a that we keep clearly in mind the basic lates the Charter of the UN and its Dec - response to critics who demanded jus - character of the document. It is not a laration of Human Rights. It is my tification for King’s use of his civil treaty; it is not an international agree - opinion that the leaders of the fight rights credentials in support of striking ment. It is not and does not purport to against racism should carry this strug - Memphis sanitation workers. His be a statement of law or of legal obli - gle again to the UN. 34 entire discussion (including whether gation. It is a Declaration of basic prin - he would get to the “Promised Land”) ciples of human rights and freedoms , In a seminal speech at the Second is a response to this question of why to be stamped with the approval of the African Summit in Cairo in 1964, Mal - he was in Memphis: General Assembly by formal vote of its colm X addressed what he regarded as members, and to serve as a common the strategic cul de sac provided by the The masses of people are rising up. standard of achievement for all peo - civil rights idea and spoke about the And wherever they are assembled ples of all nations. (Emphasis added) 31 motives of the U.S. for keeping some today, whether they are in Johannes - African American spokesmen from burg, South Africa ; Nairobi, Kenya: After 1949, Du Bois was deterred addressing the UN. He accused a “racist Accra, Ghana; New York City; Atlanta, from expending more effort in this element in the State Department” of Georgia; Jackson, Mississippi; or Mem - direction. Other leaders who focused on using: phis, Tennessee—the cry is always the civil rights issues were not. However, same—”We want to be free.”….That is there was a shift toward a rhetorical and [W]hite “liberals” to gain our friend - where we are today. And also in the political embrace of human rights, ship and confidence in order to human rights revolution , if something international law, and the UN structure. “advise” and maneuver us into a isn’t done, and in a hurry, to bring the In 1951, William Patterson and the Civil twelve-year fight for our civil rights, colored peoples of the world out of Rights Congress approached the UN knowing that as long as our freedom their long years of poverty, their long with a petition entitled “We Charge struggle was labeled “civil rights” it years of hurt and neglect, the whole Genocide ,” which sought to have the would be considered by the African world is doomed. Now, I’m just happy UN initiate an investigation into nations as American “domestic” affairs that God has allowed me to live in this whether U.S. policies created genocidal and our plight would remain within period, to see what is unfolding. And conditions for American blacks. 32 That the sole jurisdiction of the American I’m happy that he’s allowed me to be petition addressed within its framework Federal Government for a “solution.” in Memphis . (Emphasis added). 36 “the right to petition:” Malcolm also charged that: Economic and Social Rights If those whose human rights are violat - The controversy surrounding King’s ed can speak only through those gov - This racist element within the State last efforts (Memphis, the “Poor Peoples

NJSBA .COM NEW JERSEY LAWYER | February 2014 37 Campaign”) revolved around the com - exploited, politically ignored and social - he was helping to focus the internation - plaint that he had strayed from the path ly ostracized. His education reflects his al community’s attention on the need to of civil rights. In a technical sense this condition; the discriminations practiced address the relationship of human was an accurate criticism. In a broader against him are no accident. 37 rights to the interest of entities, which sense the critique failed to take into are in many ways more powerful than account the fact that the struggle for some states—private corporations. As he African American freedom had consis - Mandela and the Future was speaking, an unsuccessful effort was tently focused on economic and social This breadth of vision that marries underway at the Human Rights Com - rights in conjunction with traditional civil rights to economic rights is the mission 40 to develop a law-based regime civil rights. The human rights idea had hallmark of visionary leadership. This governing the human rights obligations comfortably encompassed this breadth, was reemphasized as the news of Nelson of corporations. That effort, however, explaining its popularity among post- Mandela’s death 38 overtook the final was followed by a more impactful proj - war leaders and spokesmen. The human edits of this article. Mandela was a ect resulting in a document called Guid - rights concept had been broader than leader in that rarest of contexts—an ing Principles on Business and Human traditional civil rights ideas from its armed struggle that remained 39 true to Rights: The Implementation of the United inception. principles of human rights. In 1955, just Nations ‘Protect, Respect and Remedy’ Roosevelt’s 1941 articulation of “free - eight years after the declaration was Framework .41 The principles are an dom from want” accompanies refer - adopted by the UN General Assembly, important step in a process by which ences to the Axis powers’ “barbarous the African National Congress promul - the corporate responsibility “to respect acts” in the declaration’s preamble. The gated its Freedom Charter, a critical human rights” is developed and imple - declaration embraces “political and civil human rights manifesto that survived mented in the future. rights,” but also addresses “social” and the overthrow of the Apartheid regime “economic rights.” The common ele - and served as a template for the South The World We Live In ment in all of the petitions and appeals African Constitution. The Guiding Principles on Business and by the American civil rights leadership Interestingly, when Mandela Human Rights and the broader subject of was their emphasis (after lynching) on addressed the General Assembly in business and human rights returns us to economic factors corresponding to the 1998, on the 50th anniversary of the the suggestion at the outset of this arti - declaration’s provisions guaranteeing an declaration, he emphasized the very cle that we might learn from the frus - “adequate standard of living” (Article economic rights that had helped make trated but ingenious efforts of post-civil 25) and “equal pay for equal work” human rights appealing to a generation rights leaders to utilize the burgeoning (Article 23) and a right to an education of American civil rights leader: human rights regime to the advantage (Article 26 of the declaration). of an oppressed people (as well as to This focus on education brings us The very right to be human is denied anticipate opposition). That kind of back to where we began. In the face of every day to hundreds of millions of effort is taking place regularly around the multifaceted oppression faced by people as a result of poverty, the the world. blacks, Charles Hamilton Houston cen - unavailability of basic necessities such On April 24, 2013, Rana Plaza in tered his strategic assault on segregation as food, jobs, water and shelter, educa - Dhaka Bangladesh, a garment manufac - in education for a specific reason: tion, health care and a healthy envi - turing facility in the South Asian city, ronment. The failure to achieve this collapsed, leading to the deaths of more Discrimination in education is symbolic vision contained in the Universal Dec - than 1,100 workers and injuries to of all the more drastic discriminations laration of Human Rights finds dra - another 2,500. In the United States, which Negroes suffer in American life. matic expression in the contrast many compared the tragedy to 1911’s And these apparent senseless discrimi - between wealth and poverty which Triangle Shirtwaist Fire in New York. nations in education against Negroes characterizes the divide between the The Rana collapse has had a significant have a very definite objective on the countries of the North and the coun - impact on American corporations and part of the ruling whites to curb the tries of the South and within individ - their supply chains. In fact, two compet - young [blacks] and prepare them to ual countries in all hemispheres. ing multi-stakeholder schemes have accept an inferior position in American evolved reflecting, in part, domestic life without protest or struggle. In the Although Mandela was talking to American consumer concern with the United States the Negro is economically nation states in the General Assembly, human rights interest of workers in

38 NEW JERSEY LAWYER | February 2014 NJSBA .COM Asia. civil society groups seek to ‘mobilize’ Endnotes There is a decade-long history of vio - the New Jersey travel and hospitality 1. For purposes of this article, the term lence in the Congo in which millions industries around awareness of their “civil rights” refers to those rights have died. A UN expert’s report alleges responsibilities with respect to an antic - guaranteed by a nation state’s con - “Companies trading minerals, [as]…‘the ipated human trafficking upsurge sur - stitutional regime. “Human rights” engine of the conflict in the Democratic rounding Superbowl XLVIII in the refers to those fundamental rights Republic of the Congo.’” In part, at the Meadowlands. outlined in the Declaration of behest of civil society groups, Congress Even popular culture figures with Human Rights and guaranteed to all passed, in 2010, significant (and contro - reputational concerns are focusing on as a matter of international law. The versial) legislation designed to expose the impact of their actions respecting “civil rights movement” here refers business enterprises that ignore the duty human rights. For example, Beyoncé, to the post-civil war movement to to respect human rights. Perhaps more Nellie Furtado, and Mariah Carey divest - protect the rights of the descen - importantly, multi-stakeholder entities ed themselves of millions of dollars dants of former chattel slaves. like the EITI, 42 which involve NGOs, earned performing for Muammar Gad - 2. Chapter X, Article 68 of the UN governments, and corporations, are dafi’s sons. Nonetheless, some, like Charter charged the ECOSOC with continually working to evolve standards Kanye West, who performed for the bru - establishing another charter-based to address ways in which extractive and tal regime in Kazakhstan, and Dennis entity, the Human Rights Commis - mining activities do not undermine Rodman, who maintains a public liaison sion, which was accomplished Feb. democratic government and develop - with North Korea’s Kim Jong Un, com - 16, 1946. Its chair was Eleanor Roo - ment. bine elements of farce with tragedy. sevelt, and it drafted the Universal In April 2013, the Supreme Court Finally, there has been significant Declaration of Human Rights. The issued its long-awaited decision in Kio - response to an online article suggesting commission was replaced in 2006 bel v. Royal Dutch Petroleum .43 Nigerian that whatever the formal legal frame - by the Human Rights Council. The plaintiffs had alleged the company had work, BP’s spill in the Gulf of Mexico is UN Charter, adopted 26 June 1945, violated the Alien Tort Claims Act (ATS) most effectively viewed through the entered into force Oct. 24, 1945, by aiding and abetting mass violations framework of corporate violation of found at un.org/en/documents/ of human rights committed by the American human rights. Of course, as charter . Universal Declaration of Nigerian government. The ATS had an observer noted in a manner eerily Human Rights. Dec. 10, 1948 G.A. been widely interpreted by U.S. courts as appropriate to the BP context: Res. 217A (III) 3 UN GAOR, UN Doc. providing a forum for violations of kA/810 at 78 (1948) available at humanitarian law by individual and A fisher[man] who can no longer eat unorg./aboutun/documents/ga/rew corporate defendants. the fish he catches because the water s/3/ares3htm. Although the Supreme Court has been polluted might immediately 3. See Editor’s Note p 163 fn 1 Corre - affirmed the dismissal, it did not understand the environmental impact spondence of W.E.B. Du Bois, Volume embrace the circuit opinion that the law but may not know that access to safe III , Ed. Herbert Aptheker, 1978. of nations did not support corporate lia - and nutritious food is actually a 4. The article was published Feb. 1, bility for human rights violations. (The human right to which he is entitled. 44 1947, cited in Genna Rae McNeil, case saw 100 amicus briefs filed.) Ulti - Charles Hamilton Houston and the mately, the plurality opinion focused on The fisherman will benefit greatly if Struggle for Human Rights , 1983, a relatively obscure canon of interpreta - he is exposed to the strategic thought of Chapter XIII “In Any Fight Some tion, “the presumption against extrater - men like Houston, Du Bois and King, Fall,” fn 15, Kindle Loc 7188. ritoriality,” to hold that U.S. courts do who saw the possibility of carrying the 5. Groundwork , Kindle location 4577-8 not have jurisdiction to adjudicate ATS fight for freedom beyond narrow intel - and Langston Hughes, Fight for Free - claims arising from acts committed lectual and geographical boundaries dom, the Story of the NAACP , 107, overseas by foreign corporations against into the world of human rights. 1962. foreign plaintiffs. One of the conse - As attractive as the human rights 6. Groundwork , Forward by A. Leon quences of this opinion may be an concept is, making it a valuable tool for Higgenbotham Jr., Kindle Loc 202. increase in state court human rights lit - ordinary people involves struggle and 7. Id . at Kindle Loc 270. igation. the overcoming of legal, economic and 8. 163 US 537 (1896). Just over the horizon, New Jersey diplomatic obstacles. 9. 305 US 337 (1937).

NJSBA .COM NEW JERSEY LAWYER | February 2014 39 10. Donald Gaines Murray was an which embraces international laws pri - Industrial Organizations. Amherst College graduate and macy as it rejects ‘genocide, crimes 20. A Man Called White, at 299. grandson of a well-known AME against humanity’ and other violations 21. The UN Charter contains numerous Zion Bishop. Houston and the of human rights and humanitarian references to “human rights,” NAACP viewed the effort to force law. The foundation for this architec - including its preamble and Articles 1 the University of Missouri Law ture can be found in a trilogy of docu - and 68. Although The Universal Dec - School to evaluate his credentials in ments, the London Charter, the Universal laration of Human Rights served to lieu of paying his tuition to an out- Declaration of Human Rights, and the UN clarify the meaning of human rights, of-state school as an early test of Charter . This trilogy and the resulting it was offered as a normative rather their equal protection strategy. normative architecture has provided a than a legally binding document. 11. A. Leon Higgenbotham, Shades of quantum leap in the protections 22. Letter to Arthur Spingarn, May 30, Freedom , 166, 1996. The reference afforded to two vulnerable groups: (1) 1945, Correspondence of W.E.B. Du here is of course to Brown v. Board of non-combatants during armed conflict Bois, p14 Education , 347 US 483 (1954), which and (2) all human beings subject to 23. A Man Called White, at 358. In fact, held segregation in education persecution by government authori - White says the UN Secretary Gener - unconstitutional and effectively ties. Those protections include estab - al Trygve Lie insisted that the appeal eviscerated white supremacy as lishing and confirming norms, crimi - be mailed, a suggestion rejected by acceptable government doctrine. nalizing violations of many of those the NAACP. The petition presented 12. For those unfamiliar with Houston norms and, where necessary, confer - to the staff apparently consisted of and his work, a quick primer, ring jurisdiction on international 155 mimeographed pages. The chal - including a list of cases argued and courts and tribunals to adjudicate lenge of having the appeal printed publications, can be found in major norm violations.” (Emphasis was beset by problems involving the Charles L. Conyers’ introduction, added). Raymond Brown, Cascading cold war, the U.S. administration’s “Charles Hamilton Houston: An Ironies: The American Perspective on reluctance to be embarrassed by the Efficacious Reflexive Analysis,” to Nuremberg,” The Nuremberg Trials appeal, and the increasing tensions Charles H. Houston: An Interdiscipli - International Criminal Law Since 1945 , between Du Bois and White. nary Study of Civil Rights Leadership , Die Nürnberger Prozesse Völler - 24. Its formal title was An Appeal to the Ed. James L. Conyers Jr., 2012. strafrecht seit 1945, Edited by Herbert World: A Statement of Denial of 13. “At various crises in the history of R. Reginbogin and Christoph J. M. Saf - Human Rights to Minorities in the Case our communities, beginning with ferling, 2006 K. G. Saur Verlag GmbH, of Citizens of Negro Descent in the Magna Carta and going through Munchen festshrift contribution to by United States of America and an Appeal various Bills of Rights, Declarations the author based on a presentation at a to the United Nations for Redress . of the Rights of Man and so forth, it 50th Anniversary Speech in the Court - 25. Memorandum to Walter White has been our custom to produce a room 600, Palace of Justice, Nurem - explaining the necessity for the specific declaration of the broad berg Germany at brownakin. Appeal, Aug. 1, 1946, Correspondence principles on which our public and com/docs/RMB_Festschrift.pdf or on of W.E.B. Du Bois p163. social life is based….The present file with the author. 26. For an interesting account of the time seems peculiarly suitable for 15. Eleanor Roosevelt and the Universal opposition based on the cold war such a restatement of the spirit in Declaration of Human Rights , John F. ‘critique’ see David Levering Lewis, which we face life in general and Sears, 2008 fdrlibrary.marist.edu/ W.E.B. Du Bois 1919-1963: The Fight present combat in particular….In library/pdfs/sears.pdf. for Equality and the American Centu - conjunction with a few friends I 16. Non-governmental Organizations. ry , 2000, Chapter 14: Against the have drafted a trial statement of the 17. Letter W.E.B. Du Bois to Secretary of Grain: From the NAACP to the Far rights of man brought up to date. I State Stettinius, March 10, 1945, Left, and notes accompanying. See think that this statement may serve Correspondence of W.E.B. Du Bois , 6. also generally Mary L. Dudziak, Cold to put the War Aims discussion 18. A Man Called White, The Autobiogra - War, Civil Rights: Race and the Image upon a new and more hopeful foot - phy of Walter White , 1948, p295. of American Democracy , 2000, 2011. ing.” New York Times , Oct. 23, 1939. 19 . The AFL-CIO resulted in 1955 from 27. Memorandum to Walter White 14. “Professor Richard Falk has described a the merger of the old American Fed - from Du Bois July 1, 1948, Corre - post-war ‘normative architecture’ eral of Labor and the Congress of spondence of W.E.B. Du Bois p188-9.

40 NEW JERSEY LAWYER | February 2014 NJSBA .COM 28. It should be noted that lynching Worker, Sept. 23, 1957, Paul Robeson Other Business Enterprises. It was and other aspects of race in America Speaks, Writings, Speeches, Interviews , drafted by an expert subsidiary body were discussed during deliberations 1918-1974, Ed. Philip S. Foner, of what was then the Commission over the declaration despite U.S. ret - 1978, p449. Foner’s annotation for on Human Rights. Essentially, this icence to discuss race in America this article notes promised by Jesse sought to impose on companies, and an unwritten rule among com - Gray, leader of 1964 Harlem Rent directly under international law, the mission members not to discuss Strike to seek UN intervention as same range of human rights duties ‘violations’ in each other’s countries well as the involvement of Con - that states have accepted for them - to avoid ad hominem attacks. The gresswoman Shirley Chisolm and selves under treaties they have rati - Universal Declaration of Human Dr. Nathan Wright and Black Pan - fied: “to promote, secure the fulfill - Rights: Origins, Drafting & Intent , ther Huey P. Newton with the 1970 ment of, respect, ensure respect of Johannes Morskink (1999) at 32. revival of the we charge genocide and protect human rights.” UN Professor Morskink’s work is still petition at fn 2 p 581. Guiding Principles, introduction, regarded as a leading scholarly treat - 35. malcolmxfiles.blogspot.com/2013/ para 2 (see note 41 below). ment of the deliberations surround - 07/speech-to-second-african-sum - This proposal triggered a deeply ing the declaration. A readable mit.html . divisive debate between the busi - account of Eleanor Roosevelt’s role 36. Martin Luther King Jr., I See the ness community and human rights in the drafting and deliberations is Promised Land, in A Testament of advocacy groups while evoking lit - Mary Ann Glendon, A World Made Hope: The Essential Writings of Martin tle support from governments. The New , (2001). Interestingly, Glendon Luther King Jr., 279, 284 (Ed. James [Human Rights] Commission devotes very little attention to the M. Washington, 1986). For the declined to act on the proposal. apparent conflict Mrs. Roosevelt author’s analysis of how this speech 41. A/HRC/17/31 presented to the UN experienced over the domestic race fits into the framework of American Human Rights Council, June 2011, question at the UN, particularly attitudes toward narratives of inter - found at business-humanrights. with respect to the NAACP, on national law violations, see I Into org/media/documents/ruggie/rug - whose board she served. Thou: American Resistance to Narra - gie-guiding-principles-21-mar- 29. Morskink at 32, 94, 96. tives of International Humanitarian 2011.pdf. 30. A petition to the Human Rights Law Violations, Raymond M. Brown, 42. Extractive Industries Transparency Commission of the Social and Eco - Thomas Jefferson L. Rev 28:1 (2005). Initiative. nomic Council of the United 37. Groundwork , Kindle Loc 3136, quot - 43. 133 S. Ct. 1659 (2013). Nations; and to the several delega - ing from “Proposed Legal Attacks on 44. Human Rights Impact Assessments tions of the member states of the Educational Discrimination,” for Foreign Investment Projects, United Nations. Against Racism: address to National Bar Association, International Centre for Human Unpublished Essays, Paper, Addresses Aug. 1935. Rights and Democratic Develop - 1887-1961 W.E.B. Du Bois , Ed. Her - 38. Dec. 5, 2013. ment, 2007, p. 17. Cited in BP Exec - bert Aptheker, 1985, p261-265. 39. The author means the establish - utives’ Human-Rights Miscalcula - 31. Statement by Mrs. Franklin D. Roo - ment of a constitutional regime tion: Have They Bet the Company? , sevelt, Department of State Bulletin, consonant with human rights and diversityinc.com/diversity-manage - Dec. 19, 1948, 751. an initial fair election. The author ment/bp-executives-human-rights- 32. We Charge Genocide: The Crime of the does not comment here on the miscalculation-have-they-bet-the- Government Against the Negro People , ANC’s criticized response as in the company/. Ed. William L. Patterson (1951, “Marikana Massacre” involving 1970). striking miners. dailymail.co.uk/ Raymond M. Brown is a partner at 33. We Charge Genocide at 37. Notwith - news/article-2513189/Marikana- Greenbaum Rowe Smith & Davis, where he standing this view of the suppressed miners-strike-South-African-police- chairs the white-collar crime and interna - right to petition, the petition was ordered-vans-carry-32-bodies-shoot - tional business and human rights compli - revived in 1970 in a printed version ing-34.html , Nov. 25, 2013. ance sections. He has practiced internation - and with a preface by Ossie Davis. 40. One early United Nations-based ini - al law and lectured on human rights and 34. Robeson Urges Government Defend tiative was called the Norms on related issues frequently in the United Constitution Against Racists, Daily Transnational Corporations and States and abroad.

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