Alston on Martinez's "The Slave Trade and the Origins of International Human Rights Law"

Philip Alston (New York Univ. - Law) has published Does the Past Matter? On the Origins of Human Rights (Harvard Law Review, Vol. 126, no. 7, p. 2043, May 2013). Jenny S. Martinez's response to Alston's review, posted in the Law Review's online Forum, is here. Samuel Moyn previously reviewed Martinez's book here. Here's the abstract:

How far back can we trace the genealogy of today’s international human rights system? And does it matter where we come out on such an arcane academic question? Historians, international lawyers, and human rights activists have recently suggested that there is, in fact, much at stake here. But there the consensus ends, and the accounts reflected in the vibrant literature of recent years diverge radically in the answers they propose. They also disagree in fundamental respects as to why the lineage of human rights really matters in the twenty-first century.

Until fairly recently, little attention was paid to the historiography of human rights, and the main-stream histories mostly reflected an uncritical narrative of relatively steady progress in the evolution of ideas, perhaps dating even from biblical times, and the gradual uptake of these ideas in the form of legal norms. But these somewhat amorphous and largely undifferentiated genealogies have come under strong challenge from a variety of critics, almost all of whom have sought to identify more precise and recent points of origin for today’s human rights family tree. The present analysis takes as its point of departure the claim by Professor Jenny Martinez in The Slave Trade and the Origins of International Human Rights Law that contemporary international human rights law has its origins in the early nineteenth-century movement in Great Britain to abolish the transatlantic slave trade (pp. 149–50). In the final years of the eighteenth century, the British abolitionist movement began to make significant inroads, and by 1807 the reformers had succeeded, apparently against all the odds, in passing the Act for the Abolition of the Slave Trade. Parliament prohibited British subjects from participating in the trade, and slaves were no longer allowed to be imported into Britain’s extensive colonial empire. The British navy began to apply the law, and offenders were initially tried in British courts. Starting in 1817, Britain also entered into a series of bilateral treaties that led to the creation of so-called “courts of mixed commission” sitting in Freetown (Sierra Leone), Havana (Cuba), Rio de Janeiro (Brazil), and Paramaribo (Suriname) with the power to determine whether seized ships had been engaged in slaving and, if so, to order their forfeiture (pp. 78–79). In the course of the next five decades, the mixed commissions heard over six hundred cases and freed some eighty thousand slaves (p. 99).

Martinez portrays the mixed commissions as “the first international human rights courts” (p. 6) and sees them as an integral part of “the most successful episode ever in the history of international human rights law” (p. 13). Not content with staking out a large historical claim, she also implies that genealogy matters by claiming that the nineteenth-century history that she recounts has major implications for many of the key contemporary debates over human rights, so much so that this history should change the way we think about the entire field, including its “origins, limits, and potential” (p. 15).

It is, in many respects, an appealing thesis, but it has to contend with the fact that it flies directly in the face of a highly influential new school of revisionist history. This new understanding largely dismisses the very quest for genealogy, separates the antislavery movement out from what should properly be thought of as matters of human rights, systematically downplays the international significance of all but the most recent discourse around human rights, accords minimal importance to treaties in this area and even less significance to courts, and locates the origins of the international human rights movement firmly in the year 1977.

In this Review, I first consider the extent to which Martinez’s claims about the roles played by rights, treaties, and courts in the first half of the nineteenth century are supported by the evidence. I then situate her account along the spectrum of recent historiographical studies in the field. In particular, I contrast her approach with that of Professor Samuel Moyn, who is the most influential of the revisionists. I argue that much of the heated controversy that has been generated in the recent literature over whether and how the origins of human rights may be discerned is due primarily to a failure to acknowledge the polycentric nature of the human rights enterprise. Attempts to capture the alleged essence of that enterprise by viewing it through a single lens are intrinsically flawed and potentially deeply misleading. I nevertheless conclude by arguing that genealogy matters a great deal in these debates, although not in the ways that Martinez suggests.