Professor Geraldine Van Bueren from the School of Law at Queen Mary University of London has written an opinion piece for The Times Literary Supplement in which she assesses the legacy of the Universal Declaration of Human Rights seventy years on.
15 January 2019
Seventy years ago, in a rare marriage of idealism and political reality, the United Nations adopted the Universal Declaration of Human Rights. Its text and intentions have been castigated as the product of extreme naivety. Eric Posner, Professor of Law at the University of Chicago, has criticized it as vague and aspirational; but others, including Nelson Mandela, have regarded its “simple and noble words” as a bulwark against isolation.
Despite its countless uses in preventing individual acts of torture and protecting free speech, providing housing for the homeless and reducing global infant mortality, two damaging myths have persisted throughout the Declaration’s seven decades. The first is that the drafting was the product only of Western states, so it should be rejected on political grounds. Hence the statement of Lee Kuan Yew, Singapore’s long-serving first Prime Minister, “Let’s get history right: the Universal Declaration of Human Rights was written up by the victorious powers at the end of World War II”. The second is that it enshrines only Western philosophies.
Both myths require deflating because they risk giving governments – authoritarian regimes and democracies alike – a get-out-of-jail-free card. In fact, the majority of the forty-eight states that voted for and contributed to the drafting of the Declaration – thirty-four of them in fact, including Argentina, Chile, Egypt, Ethiopia, Liberia, the Philippines, Turkey and Uruguay – were not in the geographical West. Nor, from its earliest days, was the Declaration regarded as enshrining only Western philosophical concepts.
The key position of Rapporteur of the Commission, which drafted the Universal Declaration, was held by Dr Charles Malik, the Lebanese delegate. Malik argued that they needed “poets, prophets and philosophers” more than politicians, diplomats and lawyers. The United Nations Education, Scientific and Cultural Organization (UNESCO) agreed, and had sought advice about the nature of the Declaration and its content from people with knowledge of a range of philosophies and religions, including from the Bengali poet and politician Humayun Kabir on human rights and the Islamic tradition, from the political scientist S. V. Puntambekar on the Hindu tradition and human freedoms, and from Chung-shu Lo on human rights, Confucius and the Chinese tradition.
Not all of those consulted supported a Declaration. Eleanor Roosevelt, as Chair of the drafting committee, played a key role not only in the United Nations but also in overcoming later opposition from George Marshall, the US Secretary of State, who, despite overseeing the implementation of his Marshall Plan, was sceptical.
Although newly independent India voted for it, Mahatma Gandhi argued in a letter to Julian Huxley, UNESCO’s Director-General, in 1947 that rights should only be conditional upon the prior fulfilment of duties. Citing the advice of his “illiterate but wise mother” Gandhi concluded that, unless duties came first, rights were “hardly worth fighting for”. This was a dangerous approach, which has consistently been rejected by the UN, and on this occasion the argument went against Gandhi (though duties are included in the Declaration, in Article 29, in connection with the free development of personality). If the enjoyment of human rights were conditional upon the performance of duties, it would mean that governments could ignore the human rights of their critics. It would undermine the very essence of accountable democracy.
The philosophers who criticized the Universal Declaration were not only from the then newly independent and developing states. Hannah Arendt initially welcomed the Universal Declaration, regarding it as a foundation stone for creating international mechanisms, which would guarantee human rights. Later, however, she observed that “the right to have rights, or the right of every individual to belong to humanity, should be guaranteed by humanity itself” – not by a document that would in turn have to be enforced by human institutions. “It is by no means certain whether this is possible.”
The enigmatic challenge accurately identified by Arendt is that human rights depend for their protection on the same states that deprive people of protection. What she could not have foreseen is that human rights protection in the post-Universal Declaration era became not a one-edged sabre for governments, but a double-edged blade, used effectively by civil society.
Although state protection is a fundamental weakness of human rights, it is also its fundamental strength. The European Court of Human Rights delivers almost daily judgments against states, and the vast majority of these are implemented by the same states accused of violating those rights. Nor are these judgments few in number.
By September 18, 2008, the European Court of Human Rights had delivered its 10,000th judgment, and eight years later the number had almost doubled. Other regional human rights courts, the Inter American and African human rights courts, do similarly. Perhaps only a poet, one of Shelley’s “unacknowledged legislators of the world”, could have dreamt of such a possibility.
Arendt’s concerns about effective implementation were, however, shared by one of the greatest international lawyers of his time. Hersch Lauterpacht wrote in a letter to The Times about the risk that the Universal Declaration could become “a mere statement of generalities”. Lauterpacht was the most obvious choice to represent the United Kingdom at the UN, having already considered in depth the need for and the content of An International Bill of the Rights of Man, in his book of that title published in 1945. He was Professor of International Law at Cambridge, but, ironically considering the prohibition against discrimination in the Declaration, his appointment was opposed by the Foreign Office’s Legal Adviser, Eric Beckett, because Lauterpacht was “a Jew recently come from Vienna”. In fact, Lauterpacht had lived in the UK for a quarter of a century and had been a British citizen since 1931. Nonetheless, he was passed over by the Foreign Office, and the trade unionist Charles Dukes was appointed. The document that emerged from the drafters’ deliberations, far from encapsulating exclusively Western philosophies, incorporated rights and philosophical concepts that were radical for many Western states at the time.
The Universal Declaration does not restrict itself to the Cartesian Enlightenment principle, “I think therefore I am”; rather it adopts the more expansive and relational “I am because you are”. “I am because you are” is a philosophy familiar to the Xhosa and Zulu peoples, deriving from the phrase “Umuntu ngumuntu ngabantu”, which literally means that a person is a person through other people. This perception of human rights is likely to have preceded Thomas Paine’s declaration in Rights of Man that his “country is the world”. As Chang Peng-chun, a Chinese playwright and philosopher, who was the Vice Chair of the Commission drafting the Declaration, observed, the aim was “not to ensure the selfish gains of the individual” but to seek to “increase man’s moral stature” and sense of mutual responsibility. This is the reason the Universal Declaration adds the very important concept of “conscience” in the opening article, so that human beings should act towards each other in “a spirit of brotherhood”.
The Declaration expands on the rationality of the Enlightenment to add the necessary humanity of human rights. The spirit of “I am because you are” is also reflected in the range of human rights protected by the Declaration. They go beyond civil and political rights, such as those that apply to free speech, religion, thought and privacy, to include rights such as health care, adequate housing, an adequate standard of living and the right to enjoy the arts and participate in the cultural life of the community. These rights are sometimes referred to as socio-economic rights. Everyone is entitled to an adequate standard of living and the highest attainable standard of health care, as everyone is entitled to the civil rights of free speech and religious freedom.
The sceptic’s approach to the limits of the law’s power to do good had previously been encapsulated in Anatole France’s aperçu about its “majestic equality”, which “forbids rich and poor alike to sleep under bridges, beg in the streets and steal bread”. This blinkered version of neutrality is rejected by the Declaration, which insists instead on the need to provide practical alternatives: for impoverished people to be able, for example, to sleep in dignified conditions.
In practice, the Declaration has functioned as both an umbrella and a catalyst for making its rights legally enforceable by, against and within states. Its provisions are echoed around the globe in many national bills of rights and in subsequent international treaties, including those on the rights of women and of children. No one has ever been able to count how many people have been helped by its provisions. It has been wrongly assumed that it was the influence of the Soviet bloc that led to the inclusion of socio-economic rights in the Declaration (Canada even abstained in the Declaration’s penultimate vote, the day before it was adopted, because the Canadian delegation’s parliamentary adviser, John Hackett, thought it “a proposal for world-wide socialism”).
In fact, many Latin American states had argued forcefully for their inclusion. The working documents reveal that John Humphrey, the bilingual Canadian who was one of two men to complete a draft of the Universal Declaration, took much wording and many of the ideas in his first draft not from the Soviet bloc but from the Latin American states.
The Mexican constitution of 1917 served as a model for many of the twenty-one Latin American members of the United Nations in 1948. Humphrey’s difficult early life gave him insight into human suffering, powerlessness and the nature of human dignity. His father had died of cancer when he was thirteen months old, and when he was six his left arm was amputated at the shoulder after an accident in which his clothes caught fire. When he was eleven his mother, too, died.
The second drafter of the Declaration was René Cassin, who included theterm “universal” in the title. (He later wrote that the term “universal” came to him in a dream.) Cassin had also survived hardships that gave him a deep appreciation of human suffering. As a French Jew, he had been condemned to death by the Gestapo after his sister and family members were murdered in Auschwitz. He fled to London to become De Gaulle’s legal adviser. In 1968, on being honoured with the Nobel Peace Prize for his contributions to the Universal Declaration and for subsequent achievements in the field, including becoming President of the European Court of Human Rights, he remarked he was happy, but would be happier “if there were a little more justice in the world”.
As Mary Ann Glendon observes in A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights, “Humphrey had simply compiled a list of rights, loosely grouped into categories. Cassin’s draft illuminated their meaning and relations”.
Like Indian independence, but with a few minutes to spare, the Universal Declaration was a midnight’s child. The UN General Assembly adopted the Declaration just before midnight on December 10, 1948 with a vote of forty-eight to zero. No state was sufficiently brazen to vote against it, but eight states abstained.
Only three years after the Second World War the idea of universal human rights had become so emblematic of the standard of virtue for the majority of the world that no state was willing to be seen objecting to it. The eight were apartheid South Africa, which abstained for obvious reasons; Saudi Arabia, which could not accept the Declaration’s acknowledgement of equal rights within marriage, the right to change religion and the equality of children whether born inside or outside of marriage (other majority Muslim states, such as Syria, Iran, Turkey and Pakistan, voted for the Declaration, which deprived Saudi Arabia of any religious justification); and the Eastern bloc of Stalin’s USSR, Ukraine, Belorussia, Czechoslovakia, Poland and Yugoslavia. They objected to human rights being independent of the state. This was made clear by the head of the Soviet delegation, Andrei Vyshinsky, the prosecutor of Stalin’s show trials.
The existence of human rights independently of the state, as a birthright, is one of the Declaration’s many positive legacies. Eleanor Roosevelt insisted along with many others on this fundamental conception. Until 1948, states would rarely acknowledge that domestic human rights could be a legitimate concern of another state. Prior to the Declaration it was rare to accept rulings by judges on the subject of human rights violations as applying to those other than their own citizens. There was no expectation either that national violations would be remedied through internationally awarded damages or judgments calling for policy and legal changes. Had the Soviet objection triumphed, the Declaration’s protection of human rights would have been robbed of its potency. The Declaration and the treaties it inspired operate as shields, admittedly not always effectively, but independent of party politics, and in this way they can offer some protection to those who seek it.
Women’s rights were another area in which the Declaration took a pioneering stand. Roosevelt was one of a number of women who contributed significantly to the Declaration at different stages during its passage through the United Nations. These included Minerva Bernardino from the Dominican Republic, Hansa Mehta from India, and Begum Shaista Ikramullah from Pakistan. It was Mehta who amended the opening article, replacing “all men” with “All human beings are born free and equal”. The myth that the Universal Declaration was the product only of Western states also devalues the significant contributions of women from developing states.
The seventieth anniversary prompts the question of the extent to which the Universal Declaration is of its time. In practice, the Declaration is a living instrument, and the meaning of its text evolves constantly and consistently with developments in law, society and science, in the direction of greater dignity for all.
There are clearly new challenges, unforeseen during the original drafting. The Declaration protects “the right to work”, for example, which in an era of robotics and artificial intelligence may prove difficult. However, the UN principles that govern how states implement a right to work for everyone – principles of availability, accessibility, acceptability and quality, particularly for disadvantaged groups – are equally valuable as a guide for states in how to protect the right to work, even in an era of disruptive change.
The Declaration places the responsibility on the state to ensure that in both the public and the private sector the right to work is protected in a manner consistent with human rights. There are other emerging rights in the era of digital technology, such as the right to be forgotten, which the European Court of Justice now recognizes as a facet of the Declaration’s protection of the right to privacy, but which has not yet been universally adopted.
The text of the Universal Declaration was intentionally drafted in an open and non-exhaustive style, so that the principles behind each of the rights are sufficiently flexible to be able to operate in different places, under different conditions and in the most challenging of circumstances.
The Declaration is regrettably silent on sexuality, but human rights tribunals applying the living instrument approach have successfully employed the prohibition against discrimination on the grounds of “sex” and “any other status”. There has also been an acceptance of international legal standards including a UN resolution on sexual orientation and gender identity.
The myths surrounding the Declaration are dangerous because they are disempowering. The Universal Declaration offers an alternative to globalization dominated by greed: globalization with a human face. Had US administrations paid greater heed to the socio-economic rights it protects, then many of those who feel ignored and excluded might not have sought reassurance from Donald Trump as a presidential candidate, and the simultaneous resurgence of the extreme Right would have had less fuel for its grievances.
If the goal of the Universal Declaration is to eradicate all violations of human rights, then it has clearly failed: extreme, widespread violations have continued apace. If the Declaration is judged in its own words, however, as “a tool to promote social progress and better standards of life in larger freedom”, then it has succeeded. We are all indebted to it, and to those men and women who brought it into the world seventy years ago.
This opinion piece was originally published in The Times Literary Supplement on 19 December 2018.
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