Copyright (c) 1998 First Things 82 (April 1998): 23-27.
The Universal Declaration of Human Rights, adopted by the UN General Assembly in December 1948 and widely recognized as the "constitution" of the modern human rights movement, approaches its fiftieth anniversary amidst considerable turmoil. The prevailing approach to the rights it contains is pick-and-choose, cafeteria-style. The universality principle itself has been challenged, sometimes by governments claiming all rights are relative, sometimes by those who charge that universality is a cover for cultural imperialism. The latter accusation acquires credibility as UN conferences begin to resemble off-shore manufacturing sites where special interest groups strive to convert their agendas into new rights to be brought back home, or imposed on the developing world, as "international standards."
In researching the history of the Universal Declaration, I have been struck by the degree to which the men and women who framed the Declaration anticipated such problems. As a lawyer, I am impressed by the skill of the drafters, and by the safeguards they devised to help minimize future difficulties. They were well aware that no document, however skillfully crafted, could immunize their project from abuse, but they were convinced that progress in respecting human dignity required a framework based on a few commonly held principles.
The problem of universality loomed large from the moment the idea of an "international bill of rights" was conceived. In 1946, UNESCO appointed a committee composed of many of the leading thinkers of the day to study the feasibility of framing a charter of rights for all peoples and all nations. The committee began by sending a detailed questionnaire to statesmen and scholars in every part of the world. To their surprise, they found that the lists of basic rights and values they received from their far-flung sources were essentially similar. But as Jacques Maritain (one of the most active members of that committee) famously remarked, "Yes, we agree about the rights, but on condition no one asks us why."
Maritain and his colleagues did not regard the lack of consensus on foundations as fatal. The fact that an agreement could be achieved across cultures on several practical concepts was "enough," he wrote, "to enable a great task to be undertaken." More serious, the philosophers realized, would be the problems of arriving at a common understanding of what the principles meant, of reconciling tensions among the various rights, of integrating new rights, and of incorporating new applications. In that connection, Maritain pointed out that if the document were not to be a mere hodgepodge of ideas, it would need a tuning fork or "key" according to which the rights could be harmonized. Everything depends, he said, on "the ultimate value whereon those rights depend and in terms of which they are integrated by mutual limitations."
The UNESCO committee’s rapporteur, Richard McKeon, anticipated another problem. Different understandings of the meanings of rights usually reflect divergent concepts of man and of society, which in turn cause those who hold those understandings to have different views of reality. Thus, McKeon correctly predicted that, down the road, "difficulties will be discovered in the suspicions, suggested by these differences, concerning the tangential uses that might be made of a declaration of human rights for the purpose of advancing special interests." That is a philosopher’s way of saying, "Watch out, this whole enterprise could be hijacked."
The project passed from the philosophers’ committee to the group assigned to do the actual drafting, the UN Commission on Human Rights, chaired by Eleanor Roosevelt. The task that faced the Commission was daunting. Drafts, proposals, models, and ideas had poured in from all over the world. How could they ever be sorted, evaluated, and integrated into a document that the then fifty-eight member nations of the UN would find acceptable? The framers might have ended up like the architects and builders in Pieter Brueghel the Elder’s rendition of the Tower of Babel. Brueghel shows them huddled together in a corner, poring despondently over their plans. Behind them looms their disaster, constructed by a consortium, each member of which seems to have had a somewhat different conception of what the whole should look like. Happily for the Universal Declaration, the eighteen-member Human Rights Commission chose to put a single author in charge of the drafting process.
The choice fell to one of the most accomplished jurists of the twentieth century, René Cassin, who had been General Charles de Gaulle’s principal legal adviser during World War II. What was especially fortuitous about the choice of Cassin is that he was a master of the art of legislative drafting, a craft skill that has remained relatively undeveloped in the Anglo-American common-law countries, but that was brought to a high level of refinement in code-based legal systems like that of his native France.
That professional background facilitated Cassin’s response to Maritain’s call for an interpretive matrix. The Preamble and the Proclamation, as well as Articles 1 and 2 of the thirty-article Declaration, belong to what in continental legal terminology is called the "general part." These sections set forth the premises, purposes, and principles that are meant to guide the interpretation of the specifically enumerated rights in Articles 3 to 27. The Declaration’s last three articles, again, contain interpretive guides, contextualizing rights in relation to limits, duties, and the social and political order in which they are to be realized.
It was at Cassin’s insistence that a Declaration purporting to be universal should begin with a statement of what all human beings have in common. Thus the first article begins, not with a right, but with a statement about the human person.
Article 1. All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
It tells us much about the spirit of Cassin, a secularized French Jew who had lost twenty relatives in concentration camps, that he insisted on beginning this document with an affirmation of faith in human conscience and rationality. In 1968, that largeness of spirit was recognized when he received the Nobel Peace Prize for his work on behalf of human rights.
As for the "key" in which the various rights were to be "harmonized," the Universal Declaration belongs to a family of postwar rights instruments that accord their highest priority to human dignity. This is signaled by the prominence and strategic placement of references to dignity in the document.
Also guiding the interpretation of dignitarian rights documents like the Declaration is their implicit image of the rights-bearer. The "everyone" whose rights are recognized is not the radically autonomous individual of recent American court decisions. Rather, he or she is portrayed throughout the document as situated in families, communities, workplaces, associations, religious groups, societies, and nations.
Cassin’s deftness is evident in his treatment of the "new" social and economic rights. Contrary to a view that acquired currency during the Cold War years, the Declaration’s articles dealing with rights to work, unionization, education, and so on were not included as concessions to the Soviets. They enjoyed wide support from the liberal democracies, a fact that is hardly surprising in view of their resemblance to the "second Bill of Rights" proposed in FDR’s 1944 State of the Union message, and to the social rights and obligations that were becoming standard features of most postwar constitutions. Agreement on the precise content of these articles, however, was extremely difficult to achieve. England, in particular, wanted these rights to be handled in a separate document. The Soviet Union, for its part, opposed any language that would appear to relegate such rights to an inferior rank.
Cassin resolved the impasse by drafting a "chapeau" article, a kind of mini-preamble introducing the provisions dealing with social and economic rights. The chapeau tried to satisfy the Soviets by making clear that the new rights, like the old, are importantly related to human dignity. It met the English concerns by establishing that the new rights were different in kind, if not in importance, from traditional political and civil liberties. They are dependent on "the organization and resources" of each state (Mrs. Roosevelt’s language) in a way that, say, the right to be free of torture is not.
Cassin provided the Declaration with several features designed to protect the universal rights idea from misuse. For example, the penultimate article specifies that one not only has rights but duties, and that one’s rights can be limited by "the rights and freedoms of others, and . . . the just requirements of morality, public order, and the general welfare in a democratic society." Noteworthy as well is the document’s recognition that participation in important mediating structures of civil society, such as religious groups and unions, needs to be protected, and that the family is a subject of human rights protection in itself.
Yet another important feature is the Declaration’s implicit embodiment of the principle of subsidiarity. As its "Proclamation" clause makes plain, the Declaration is not a legally binding instrument, but "a common standard of achievement for all peoples and all nations." Though many of its provisions later appeared in treaties binding on the signatory nations, the authors of the Declaration were well aware that, as the Commission’s rapporteur Charles Malik put it, the most effective defense of human rights would always be domestic, "in the mind and the will of the people" as reflected in national and local laws, and above all, social practices. They had read their Tocqueville.
In sum, the architects of the Universal Declaration did their best to allay concerns about the coherence and feasibility of the universal rights idea. Thanks to Cassin, the Declaration is no mere list, or "bill," of rights. It possesses an integrity that has considerable strength when the document is read as it was meant to be read, namely, as a whole.
Cassin’s draft, however, was only the beginning. It took another extraordinary individual to shepherd it through the process of deliberation and revision that led up to adoption by the General Assembly. That man was Malik, a Lebanese philosophy professor whose diplomatic skills were as finely honed as Cassin’s legal talents.
Malik steered the draft Declaration through eighty-one difficult meetings in the tense international atmosphere that prevailed in the fall of 1948. His fluency in many languages, including Arabic, French, and English, enabled him to move easily between East and West, and between large and small nations. He made the most of the fact that the document reflected broad consultation and consensus, and he took pains to point each country to the places in the Declaration where it could find either its own contributions or the influence of the culture to which it belonged. In December, the Declaration was adopted without a single dissenting vote, though eight countries, including the Soviet bloc, abstained. In the end, the inclusion of social and economic rights meant less to the Soviets than the perceived need to resist the slightest derogation from the old principle that how a nation-state dealt with its own citizens was no concern of other nations.
Today, when one reads what Maritain, McKeon, Cassin, Malik, and Roosevelt wrote many years ago, it is striking that they foresaw nearly every problem their enterprise would encounter—its buffeting from power politics, its dependence on common understandings that would prove elusive, its embodiment of ideas of freedom and solidarity that would be difficult to harmonize, and its vulnerability to misuse.
Nevertheless, they hoped that with improved means of communication, and with the accumulation of experiences of successful cross-cultural cooperation, the difficulties confronting their enterprise would be reduced and its benefits gradually realized. And indeed, so far as many traditional political and civil rights are concerned, the years have seen impressive progress, even if not as steady or rapid as was hoped.
As for the main challenge, Maritain said it best. Whether the music played on the Declaration’s thirty strings will be "in tune with or harmful to human dignity" will depend primarily on the extent to which "a culture of human dignity" develops.
To the disappointment of the framers, however, the adoption of the Declaration was followed by nearly two decades during which the international human rights project floundered and stalled amidst Cold War politics. When the Declaration woke up, so to speak, it was like Rip Van Winkle, who went to sleep for twenty years and awakened to find himself in a world from which his friends had disappeared, and where no one recognized him.
By the late 1960s, the architects of the Declaration were mostly departed or inactive, and in their place was forming an extensive human rights industry. The giants of the industry are organizations heavily influenced by the ideas about rights, both good and bad, that were developed in the American judicial rights revolution. The Declaration itself began to be widely, almost universally, read in the way that Americans read the Bill of Rights, that is, as a string of essentially separate guarantees. Alas, that misreading of the Declaration not only distorts its sense, but facilitates its misuse.
It would be a fitting tribute to the hopes and dreams of the men and women of ’48 if friends of human dignity the world over celebrated the fiftieth anniversary of the Declaration by reading it—and pondering its structure. The flaws of the human rights project, I would suggest, are less in that document than in ourselves.
Mary Ann Glendon, the Learned Hand Professor of Law at Harvard University, headed the Vatican delegation to UN’s Fourth World Conference on Women, held in Beijing in 1995.
The disrepute into which the United Nations and several of its organs, including the General Assembly and UNESCO, fell at various times during the Cold War years has taken its toll on what might otherwise be greater conservative respect for the Universal Declaration of Human Rights. It was easy enough, and indeed logical, to conclude that almost all the progeny of that organization would share in its seemingly steady decline into a moral relativism that threatened fundamental concepts of human rights. And since the UDHR was used to provide support for the usual Soviet defense of Communist human rights violations—the notion that "we respect our favorites, the economic rights, while you respect yours, the political rights"—the document was often viewed with derision.
On its fiftieth anniversary, it is easy to see why all this was so; yet it is equally evident that this assessment was wrong. The UDHR provided then and provides now powerful ammunition for those fighting in the cause of human rights, and deserves a bit of rehabilitation.
Human rights treaties in general, not just the UDHR, were often viewed with real suspicion by those in the West who zealously fought the terrible evil of communism. First, it was obvious that the Communist side was violating them before the proverbial ink was dry, thereby apparently discrediting the whole idea of signing such agreements. Moreover, the whole process of negotiation was disagreeable: sitting down with butchers, or at least apparatchiks, as if we took their claims with the slightest seriousness. Then there was their reprehensible "philosophical" approach, where they would give us spurious data about how many doctors they had or apartments they had built, and claim that this meant human rights in Moscow or Bucharest or wherever were in fine shape. And this would come wrapped in an argument about cultural differences meant to suggest that while freedom of speech might be valued in Vermont, people in Warsaw or Hanoi cared little for such Western phenomena.
So by the advent of the Reagan Administration, many anti-Communists had concluded that human rights treaties and agreements were a trap, likely to hurt the cause more than they helped it. And they were often right, but not because there was anything fundamentally wrong with such documents. Rather, the documents had done harm because the Communists had known how to prostitute them, while we in the West had been weak and confused about how to use them as weapons. During the late 1970s this began to come clear in the Helsinki Process, as it was then known. "Basket Three" of the Helsinki Accords (signed in 1975) contained human rights provisions of a normal variety similar to provisions in the UDHR, which was why the Soviets ultimately signed them.
But now there was a "process" attached, and if President Carter felt we had an "inordinate fear of communism," others understood that we could now draw attention to the Communists’ inordinate fear of political freedom. Many conservatives remained skeptical of any human rights dialogue with Communists, and many liberals remained mired in relativism and the fear of offending the other side with our "posturing." But we began to pound away, under the early leadership of such men as Henry M. Jackson and Max Kampelman. When the Reagan Administration came into office, we made an early decision to send Kampelman back into the fray and to accompany him with the likes of Michael Novak and Richard Schifter. This was a bipartisan and increasingly popular effort, for it was quickly apparent that we had the Soviet side on the defensive.
And what worked in the Helsinki process proved to work at the United Nations as well. The UN Human Rights Commission, long known for bashing Israel while defending despots, was soon a real battleground where the West could win as well as lose. When we were unable to bring change to UNESCO and its undermining of press freedom, we left and took our money with us. This was the beginning of a long struggle that, in the end, removed its management and changed its internal culture, as well as providing an object lesson about U.S. determination to other UN bodies.
In those last years of the Cold War, the West was on the human rights offensive nearly everywhere. Surely the point has been proved, again and again, that confrontation and debate on human rights issues played an important role in our victory. Yet the suspicion of the UDHR has remained, a relic of the days when the document was more likely to be cited by a commissar than by a congressman. For two reasons that this brief history may have helped illuminate, that suspicion needs rethinking.
First, we face as much today as we did during the Cold War the argument about relativism. Indeed, this argument was wonderfully encapsulated last year by the head of the Chinese government, Jiang Zemin, in his scientifically illiterate statement that just as Einstein’s theory had proven that everything in the physical world was relative, so we must understand that all is relative in the world of politics. You protect demonstrators, we shoot them; who’s to say what’s right? Versions of this argument can be heard from every dictator, or at least every one outside the West, and not least from the remaining Communist rulers and from certain parts of Islam. In truth, the struggle between universalism and relativism remains fierce, and the UDHR therefore remains an important weapon in combating human rights violations.
Second, there is the very old dispute about "internal affairs." It was a standard Soviet line that our human rights complaints against them constituted an intervention in their internal affairs that was itself barred by international law. The Helsinki process, as noted, helped blow that theory apart. During the Reagan years we used to joke about it: that Bulgaria, for instance, was a country that did not have the right to intervene in its own internal affairs. But now the argument is back, and national sovereignty is again being pitted against universal human rights. And here again the UDHR, applicable to all nations and extending therefore beyond the borders of the West, can be a most valuable weapon.
It is not without weaknesses, and this should be acknowledged. That old dispute about economic and social rights can be carried on under the UDHR by rulers willing to employ it. In some versions it becomes a basis for whipping the Western industrialized countries for their alleged social policy failures, but the power of this argument is really not very great, and as an argument against the UDHR it is weak. This is because the collapse of communism revealed finally and indisputably that that system had in fact achieved little but misery wherever it held sway, and had at the same time devastated the environment during the precise decades when free countries were achieving unimaginable (and very widely shared) gains in our standard of living and in environmental protection.
Sometimes we still hear that political rights are given no pride of place in the UDHR, and that it regards economic and social rights as equally important. The very worst one can say is that this may be true, but we must insist that this view provides no solace for dictators: if they are all of equal dignity, what gives any government an excuse to disregard and abuse the political rights? Nowhere in the UDHR is it accepted that political rights may be postponed until a certain per capita income level is reached. As the statement "On Human Rights" suggests, most of us would have preferred language that distinguished political rights from economic and social goods or goals. Yet we can live with the language of the UDHR not only because it provides so much ammunition for the human rights struggle, but also because the conflation of immediate rights with desirable goals in truth confuses no one. If it provides a linguistic haven for dictators, it does not fool their own populations for a moment. It is fodder for the diplomatic spokesmen of dictatorship, but there will rarely be a citizen anywhere who accepts that men may be jailed, beaten, or killed for speaking their minds because the government is focusing "for now" on housing policy.
Throughout the Cold War we struggled to insist on the universality of human rights, and the universality of our understanding of how to define them. The UDHR is irreplaceable and invaluable because it makes that precise claim and every government in the world has signed on. In many of the human rights struggles of the coming years it will be our weapon of choice, and we ought to pause in gratitude to those who fifty years ago designed that weapon and put it in our hands.
Elliott Abrams is President of the Ethics and Public Policy Center and a former U.S. Assistant Secretary of State for Human Rights.